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European Ombudsman European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

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Page 1: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

European Ombudsman Access to environmental information

Task Force on Access to Information

Geneva, 4 December 2014

Page 2: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

About the Ombudsman

Complaints against EU institutions

Own-initiative inquiries

Decisions not legally binding

Reports to European Parliament

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Page 3: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

Good administration andmaladministration

Includes (but not limited to) compliance with law, policies and practices

Public service principles:o Commitment to the EUo Integrityo Objectivityo Respect for otherso Transparency

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Page 4: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

Global administrative law

For example…

Open Government Partnership

Extractive Industries Transparency Initiative

International Aid Transparency Initiative

Aarhus Convention

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Page 5: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

Areas of Ombudsman work relevant to the first pillar of Aarhus

Proactive and reactive transparency

“…the Union has signalled its commitment to grant the widest possible public access to documents containing environmental information by joining the Aarhus Convention”.

Case 1861/2009/AN, Decision of 15 February 2011

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Page 6: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

… key areas (2)

The Commission’s role as Guardian of the Treaties

…the Commission's power to conduct infringement proceedings against a Member State which does not fulfil its environmental obligations is a powerful instrument that contributes to achieving the purpose of the Convention (same case)

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Page 7: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

… key areas (3)

European Investment Bank

Memorandum of Understanding o Two-stage procedure for

complaintso Use of Ombudsman’s own-

initiative powero EIB disseminates information

about environmental policies, standards and procedures

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Page 8: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

Access to documentsis a fundamental right

Charter of Fundamental Rights, Article 42

Treaty on the Functioning of the European Union (TFEU), Article 15

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Page 9: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

Euratom Treaty

Article 44:

The Commission may, with the consent of the Member States, persons and undertakings concerned, publish any investment projects communicated to it.

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Page 10: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

The Ombudsman’s view

Case 127/2010VIK, Decision of 4 July 2012:

Post Lisbon, Article 44 should be read in conjunction with Article 15 TFEU, Regulation 1049/2001 and the Union's obligations stemming from the Aarhus Convention.

Case 2335/2008/CK, Decision of 28 May 2013:

Case law on Article 4 (5) of Regulation 1049/2001 should apply to Article 44Undertakings’ legitimate interests should be taken into account.

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Page 11: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

Critical remark in Case 2335/2008/CK

The Commission failed to take into account recent developments in EU law concerning the principle of transparency and the fundamental right of access to documents when interpreting and applying Article 44 of the Euratom Treaty and Article 15 TFEU.

The Commission’s subsequent refusal to change its position puts in question the Union’s compliance with the Aarhus Convention.

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Page 12: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

The European Investment Bank

O1/3/2013/MHZ, Decision of 25 June 2014

Ukrainian NGO complained about lack of proactive dissemination of information

… led EIB to set up a public register of documents.

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Page 13: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

Greenhouse gases methodology

Case 863/2012/FOR, Decision of 21 May 2014

EIB invoked Article 4(3)(c) and 4(4)(d) of the Aarhus Convention

Ombudsman rejected Article 4(3)(c) argument and found an overriding public interest in disclosure

EIB released the document.

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Page 14: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

The transparency policy review

Ombudsman’s suggestions include strengthening section on proactive disclosure to take account of

o Aarhus Convention Implementation Guidelines and

o Maastricht recommendations on promoting effective public participation in environmental matters.

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Page 15: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

The Implementation of the Aarhus Convention into EU law

Regulation 1367/2006 (the Aarhus Regulation)

… refers to

Regulation 1049/2001

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Page 16: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

Exceptions to the right of access

Aarhus Regulation Article 6(1):

As regards Article 4(2), first and third indents, of Regulation 1049/2001, with the exception of investigations, in particular those concerning possible infringements of [Union] law, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment. As regards the other exceptions set out in Article 4 of Regulation 1049/2001, the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment.

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Page 17: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

The Ombudsman’s view: Article 4 (1) exceptions

Case 339/2011/AN, Decision of 19 January 2012

When environmental information is involved, the Union institutions should expressly take Article 6(1) of the Aarhus Regulation into account in exercising the discretion that the Court has recognised they have as regards the exceptions in Article 4(1) of Regulation 1049/2001

Application of exception for protection of international relations upheld in the specific case.

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Page 18: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

Infringement procedures

Case 1947/2010/PB, Decision of 26 September 2013

In environmental cases, involvement of civil society and public opinion would be likely to promote, not harm, the purpose of infringement procedures.

However, the Commission's current practices are supported by case law, in particular Case T-111/11, ClientEarth v Commission.

See now judgment of 14 November 2013 in Joined Cases C‑514/11 P and C‑605/11 P, LPN and Finland v Commission.

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Page 19: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

On-going inquiries (1)

Case 181/2013/AN

Concerns public access to questionnaires completed by project promoters in context of the “PCI” RegulationOmbudsman is currently evaluating Commission's response to a proposed friendly solutionComplainant also turned to the Aarhus Compliance Committee contesting the adequacy of public consultation on the PCI Regulation (ACCC/C/2013/96)

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Page 20: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

On-going inquiries (2)

Cases 0803/2012/TN and 0369/2013/TN

Complaints by Greenpeace about refusal of access to documents in infringement procedures related to the environment.

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Page 21: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

On-going inquiries (3)

Case 1895/2013/LP

Complaint against the Court of Justice concerning access to written submissions in a closed caseThe Court argues that it holds the documents in its judicial capacity and so its rules on access to documents do not applyThe Court contests the Ombudsman’s mandate to investigate.

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Page 22: European Ombudsman Access to environmental information Task Force on Access to Information Geneva, 4 December 2014

European Ombudsman

www.ombudsman.europa.eu@EUOmbudsman

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