Regional Overview: Central and Eastern Europe

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CONCLUSIONS

Achievements

There has been substantial progress in most of the CEE countries since the Ministerial Conference in Sofia, Bulgaria, in October 1995. Following the development of the basic legal framework and of legal institutions securing access to information, public participation and access to justice by the mid-1990s, recent years have brought implementation of the laws and regulations and strengthening or further creation of the practice of public participation. The gap between the legal framework and the actual practice has shrunk in all CEE countries to some extent, but especially in the Visegrad countries, where public participation has become part of the normal day-to-day practice. There has been remarkable development also in the Baltic states and in Albania, Bulgaria and Romania. Meanwhile, some of the countries of the former Yugoslavia have experienced an extremely difficult period of war and isolation during which environmental issues and public participation rights were suppressed or pushed back on the agenda even more than in other countries. However, even if start-up conditions are more difficult, there is now a better chance for development and catching up with the other countries.

Overall, the political climate in Europe has been supportive, and the process of public participation has been one of the priority issues in the Environment for Europe Process. After the Guidelines on Access to Environmental Information and Public Participation in Environmental Decisionmaking were endorsed by the Sofia Ministerial Conference, the new UN ECE Convention on Access to Information, Public Participation in Environmental Decisionmaking and Access to Justice in Environmental Matters has been drafted and will be signed at the next Ministerial Conference, at the end of June in Aarhus. The Aarhus Conference will also devote a special session to public participation organized by the NGOs. With the adoption of the Aarhus Convention comes a comprehensive international legal instrument that contains internationally agreed upon public participation norms to guarantee equal treatment for all citizens in Europe. The convention will also create a baseline for the minimum requirements on public participation that reflects the highest level that the countries participating in the negotiation could accept by consensus. On one hand, the agreement will be a tool for further approximation and harmonization of public participation standards for all European and - within this - for all CEE countries. On the other hand, because the provisions laid out should not be interpreted as a ceiling, the convention will allow the progressive countries to preserve the existing positive achievements and even go beyond them.

The major achievements of the CEE countries in the past three years can be summarized as follows:

The legal framework - in the form of basic constitutional and other rights, of general environmental framework laws, and of other environmental laws to guarantee access to information, public participation and access to justice - is in place and has been further strengthened. This includes the legal institutions allowing access to justice (i.e. independent judiciary, constitutional court, ombudsman) in most countries of the region. Measures have been taken to implement laws through specific detailed regulations and guidelines, to build up the institutional background and to strengthen enforcement.
Since 1995, several CEE countries have passed or begun developing specific laws containing concrete mechanisms for access to information, public participation and access to justice. Among these laws, the EIA laws have brought the strongest tools for public involvement. Several countries also have started to draft laws on access to environmental information, although the specific legal framework is still missing in most countries.
In the process of accession with the European Union, the CEE countries, although with varying speed, are trying to follow and implement the EU legislation in this respect. The draft laws on access to environmental information and the new EIA laws are basically in line with the Directive of the European Union on Access to Environmental Information and the EIA Directive.
Environmental information is provided upon request to everyone in most countries within a relatively short time, although the conditions are not always clear. In several ministries, special units or services have been set up and have improved access for the public. The practice of information provision is very positive in some of the Visegrad countries, where priority is given to disclosure of public interest information. There are innovative laws in a few countries that provide a comprehensive, general access to information approach for all fields, including a special ombudsman and cooperation with NGOs to facilitate better access to information (e.g. Hungary).
With regard to active provision of information, data on the state of the environment is easily available and usually there are no problems with distribution of emergency information. Although it is not required by law, a growing number of governmental agencies disseminate information in electronic format. In addition, the first steps have been taken in several countries to establish PRTR systems.
In the field of public participation, EIA and local land-use planning procedures place a generally strong tool into the hands of citizen and NGOs. EIA is operated with substantial public input as a common practice in some countries, while in others the practice is just emerging. Local referendum is used more and more often in several countries, showing that citizens are willing to take the decisions in their own hands.
Although legislation requiring or guaranteeing public participation in lawmaking and policymaking exists in only a handful of CEE countries, there are cooperative ad hoc practices in almost all the CEE countries, allowing increasing involvement opportunities for the NGOs. Some of the former ad hoc practices have produced creative solutions for open participation in commenting on draft policy documents and laws, for joint decisionmaking, or for partnership in different decisionmaking bodies.
In several countries, especially in the Visegrad countries, citizens are using innovative non-formal tools to overcome the deficiencies of the legal procedures (especially in the Czech Republic). NGOs have created and maintained a cooperative network and several public interest law centers to assist individuals, local communities, and each other with legal and other expertise and capacity building.
Access to justice is provided in the form of access to the courts, and in some countries there is additional direct access to constitutional institutions (i.e. constitutional courts or ombudsman) to guarantee remedies. In most countries, citizens can seek justice in an administrative or court procedure if their right to information or right to public participation is infringed. NGOs also have access to special rights when representing public interests in some countries.

Problems

Although there has been substantial progress both in the legal and non-formal areas of public participation, there are still substantial disparities among countries of the region with regard to the level of participation and implementation of laws and regulations in practice. There are also widespread differences in the possibilities for public participation in the different types of decisions. Access to information and public participation have not yet become an integral part of some specific "hot topic" areas, such as the energy sector (especially nuclear energy), waste, hazardous waste management, and toxic materials.

The concrete problems to be addressed include the following:

In the absence of general access to information laws or specific environmental information laws, the procedures to provide information are either lacking or they are not always clear in many countries. The vague, general provisions give officials the ability to avoid or refuse to provide information.
The lack of a specific definition of what is considered to be environmental information and what is public interest information causes a great deal of confusion, uncertainty and fear. Environmental officials have little basis upon which to interpret certain regulations, and this leads to a negative approach to disclosure. The biggest problem is interpreting business confidentiality. CEE countries still need to find the right balance between the protection of business interests and the interests of the public in disclosure of information about damaging or polluting business activities.
Officials have multiple, sometimes outdated, reasons to withhold information. The lists of exemptions from public disclosure requirements (i.e. reasons to declare data classified) are too long in many countries, and the general tendency is to maintain the legacy of secrecy instead of moving toward openness and transparency. In addition, several countries do not provide the possibility of a public interest test to overcome the shroud of secrecy.
The lack of specific deadlines for refusal and supply of information inhibits timely public action on environmental matters.
There is no clear obligation for public authorities to collect, update and make accessible information.
There is no coherent and integrated information system to ensure the flow of information among the government, the private sector and the public (and within and among the different governmental authorities). There are reporting requirements put on the polluters and the data are accessible for the governmental authorities, but often they are not accessible to the public neither directly or indirectly
There are no PRTR-type systems or public registers accessible to the public directly (except for Poland).
Product information does not contain real and reliable environmental and health information. There are no strict legal requirements to include product information on consumer product labeling.
Despite the general provisions on public participation and the positive practice in a few countries, there is a lack of concrete procedures to facilitate public involvement in lawmaking and rulemaking and in the drafting of policies, programs and plans on the national and local levels. This also applies to permitting procedures. In short, the practice of public participation still lags behind the legislative framework in several countries.
Strategic environmental assessments of policies and decisions on sectoral development programs are often done without any public input.
Experience with EIA is only beginning, although more and more examples of public participation are emerging in EIA procedures.
There is only limited opportunity for the public and NGOs to become involved in decisionmaking on the international level.
Citizens in many countries experience difficulties in access to justice due to administrative barriers to court access, lack of liberal standing rules, high court fees, the lack of interim and permanent injunctive relief, and slow court procedures.
Apart from a few countries, there is no positive public interest court practice in the majority of CEE countries. Especially in the Balkan region, and to some extent in the Baltic countries, appeals and court cases are still exceptional, and legal servicing is weak.
There is only limited direct access or no access at all to constitutional courts or ombudsman in several CEE countries.

Needs

There are a number of areas where concrete improvements are needed. Access to information, public participation and access to justice mechanisms need to be applied in an effective way, not just on the level of generalities. Some countries still have not installed the proper legal framework and procedures in some areas. Meanwhile, in the more mainstream countries the legal and other mechanisms need further refinement and enrichment according to the details of everyday applicability and incorporating the lessons of best practices.

The specific framework improvements that are needed include the following:

Specific laws or regulations and practical guidance to implement access to information standards are needed. These must have clear rules and procedural guarantees on access to information, including a short timeframe for refusal, supply and appeal.
Information policy should be based on the presumption of openness and transparency instead of secrecy.
Countries should establish a clearly defined list of exemptions based on the disclosure of public interest information (i.e. public interest test).
A clear definition of environmental information based on the public-interest approach should be used to indicate what must be made accessible.
Public authorities should have an obligation to collect and provide access to all relevant information.
The countries must develop mechanisms for operational, transparent and free information flow among all stakeholders. These mechanisms should include coherent, transparent, integrated and accessible information systems, and they should ensure a flow of information among the authorities, the business sector and the public, enabling citizens to easily access all relevant environmental information.
Improvements in the area of active information provision should guarantee that a minimum amount of basic environmental information is made accessible through active dissemination (i.e. regular publications, reports, announcements, electronic and other databases, information centers, PRTRs, public registers, electronic dissemination, consumer product information, etc.).
Public participation standards should be stronger and similar in all types of decisionmaking, including lawmaking and rulemaking and the adoption of policies, programs and plans, as well as in international decisions and especially in the "hot topic" areas (i.e. energy; transport; waste, including hazardous and toxic waste; GMOs, etc.).
EIA systems should be improved to include adequate early notification and involvement, and systematic and continuous participation throughout the decisionmaking process. In addition, EIA regulations and practice must ensure comments are seriously taken into account.
Administrative and court procedures should be adapted to provide efficient, equitable, fair, transparent and inexpensive access to justice mechanisms. This would include the addition of broad standing rights and adequate remedies, including interim and permanent injunction; and the removal of financial barriers and time constraints.

The improvement of public participation in the present phase requires also that some countries catch up with the mainstream trends of CEE countries in order to have the proper legislation and institutions in place. All the countries should focus more on establishment and operation of effective mechanisms for access to information, public participation and access to justice, and their practical applicability. Countries of the region must work to set up a comprehensive framework for public participation at all levels of decisionmaking based on the same principles, including all sectors whose activities affect the environment. To this end, governments and parliaments need to take the initiative and formally commit themselves to establishing and implementing certain good standards of public participation. The Aarhus Convention can serve as a minimal initial starting point, but many CEE countries have better practices that have proved to work in different areas of decisionmaking and also can serve as examples of good practices for others. In addition to the substantial improvement of legislative systems and practices, more attention and support should be given to empowerment and to capacity and institution building to promote public participation at all levels and phases of decisionmaking, both for public authorities and for NGOs.

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