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UNIVERSITY OF PADUA FACULTY OF ENVIRONMENTAL ENGINEERING 2009-2010 INTERNATIONAL ENVIRONMENTAL LAW Prof. Luciano Butti avv. Silvia Iliadis B&P Avvocati.

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Presentation on theme: "UNIVERSITY OF PADUA FACULTY OF ENVIRONMENTAL ENGINEERING 2009-2010 INTERNATIONAL ENVIRONMENTAL LAW Prof. Luciano Butti avv. Silvia Iliadis B&P Avvocati."— Presentation transcript:

1 UNIVERSITY OF PADUA FACULTY OF ENVIRONMENTAL ENGINEERING 2009-2010 INTERNATIONAL ENVIRONMENTAL LAW Prof. Luciano Butti avv. Silvia Iliadis B&P Avvocati www.buttiandpartners.com luciano.butti@buttiandpartners.com

2 ACCESS TO ENVIRONMENTAL INFORMATION THE AARHUS CONVENTION SUMMARY: 1. EUROPEAN LEGISLATION ON ACCESS TO ENVIRONMENTAL INFORMATION 2. PRINCIPLE 10 OF THE RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT 3. THE AARHUS CONVENTION 4. ACCESS TO ENVIRONMENTAL INFORMATION IN ITALY

3 1. EUROPEAN LEGISLATION ON ACCESS TO ENVIRONMENTAL INFORMATION  1.1 COUNCIL DIRECTIVE 90/313/EEC OF JUNE 1990 ON THE FREEDOM OF ACCESS TO INFORMATION ON THE ENVIRONMENT;  1.2 CASE C-321/96 MECKLENBURG V. KREIS PINNEBERG – DER LANDRAT;  1.3. DIRECTIVE 2003/4/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 28 JANUARY 2003 ON PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION: WHAT DOES “ENVIRONMENTAL INFORMATION” MEAN?

4 1. EUROPEAN LEGISLATION ON ACCESS TO ENVIRONMENTAL INFORMATION 1.1 COUNCIL DIRECTIVE 90/313/EEC OF JUNE 1990 ON THE FREEDOM OF ACCESS TO INFORMATION ON THE ENVIRONMENT:  the main theme of the directive (article 1);  the definition of “information relating to the environment” (article 2);

5 1. EUROPEAN LEGISLATION ON ACCESS TO ENVIRONMENTAL INFORMATION 1.2 CASE C-321 MECKLENBURG V. KREIS PINNEBERG – DER LANDRAT:  the European Court of Justice (ECJ) provided a broad interpretative approach to its provisions;  the flaws of the Directive…

6 1. EUROPEAN LEGISLATION ON ACCESS TO ENVIRONMENTAL INFORMATION  Vague scope of application;  the definition of “environmental information” is unclear in relation to certain cathegories of informations;  too many and too wide exemptions;  ineffective review mechanism to challenge the decisions;  unreasonably high charges to access informations;  authorities deadlines to reply are too long.

7 1. EUROPEAN LEGISLATION ON ACCESS TO ENVIRONMENTAL INFORMATION … In order to solve the abovementioned gaps and to better fulfil the need to implement the Aarhus Convention (1998), 1990 Directive was replaced in 2003;  Directive 2003/4/EC on public access to environmental information was designed to address many of the flaws of the 1990 Directive;  the revised Directive was developed in parallel with the access to information provisions of the Aarhus Convention.

8 1. EUROPEAN LEGISLATION ON ACCESS TO ENVIRONMENTAL INFORMATION 1.3 DIRECTIVE 2003/4/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 28 JANUARY 2003: WHAT DOES “ENVIRONMENTAL INFORMATION” MEAN? "Environmental information" shall mean any information in written, visual, aural, electronic or any other material form on: (A) the environmental media condition, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

9 1. EUROPEAN LEGISLATION ON ACCESS TO ENVIRONMENTAL INFORMATION (B) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the environmental media referred to in (a); (C) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

10 1. EUROPEAN LEGISLATION ON ACCESS TO ENVIRONMENTAL INFORMATION (D) reports on the implementation of environmental legislation; (E) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and (F) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).

11 2. PUBLIC PARTICIPATION IN PRINCIPLE 10 OF THE RIO DECLARATION The United Nations Conference on Environment and Development - having met at Rio de Janeiro from 3 to 14 June 1992 - proclaims that:  “Environmental issues are best handled with participation of all concerned citizens, at the relevant level.  At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities …

12 2. PUBLIC PARTICIPATION IN PRINCIPLE 10 OF THE RIO DECLARATION  … and the opportunity to participate in decision-making processes.  States shall facilitate and encourage public awareness and participation by making information widely available.  Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided”. The basic principle of the Rio Declaration has been developed at an international level, as evidenced by the Aarhus Convention …

13 3. THE AARHUS CONVENTION  3.1:THE MAIN THEME OF THE CONVENTION  3.2:THE BENEFITS OF PROMOTING PUBLIC PARTICIPATION  3.3:THE FIRST PILLAR: ACCESS TO ENVIRONMENTAL INFORMATION.  3.4:THE SECOND PILLAR: PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISION - MAKING  3.5:THE THIRD PILLAR: ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS

14 3. THE AARHUS CONVENTION 3.1: THE MAIN THEME OF THE CONVENTION The Convention consists of three “pillars” of promoting public participation:  access to environmental information;  public participation in environmental decision making;  access to justice in environmental matters.

15 3. THE AARHUS CONVENTION The Aarhus Convention is a new kind of environmental agreement. The Convention:  Links environmental rights and human rights.  Acknowledges that we owe an obligation to future generations.  Establishes that sustainable development can be achieved only through the involvement of all stakeholders.  Links government accountability and environmental protection.  Focuses on interactions between the public and public authorities in a democratic context.

16 3. THE AARHUS CONVENTION  The subject of the Convention goes to the heart of the relationship between people and governments;  the convention is not only an environmental agreement, it is also a Convention about government accountability, transparency and responsiveness.  The Aarhus Convention establishes a number of rights of the public (individuals and their associations) with regard to the environment. The Parties to the Convention are required to make the necessary provisions so that public authorities (at national, regional or local level) will contribute to these rights to become effective.

17 3. THE AARHUS CONVENTION 3.2: THE BENEFITS OF PROMOTING PUBLIC PARTICIPATION  Improving the quality of decision.  Environmental problem solving.  Promoting environmental citizenship.  Improving procedural legitimacy.  Eliciting values.

18 3. THE AARHUS CONVENTION 3.3: THE FIRST PILLAR: ACCESS TO ENVIRONMENTAL INFORMATION.  “Access to environmental information“ is the right of everyone to receive environmental information that is held by public authorities.  This can include information on the state of the environment, but also on policies or measures taken, or on the state of human health and safety where this can be affected by the state of the environment.

19 3. THE AARHUS CONVENTION  Applicants are entitled to obtain this information within one month of the request and without having to say why they require it.  In addition, public authorities are obliged, under the Convention, to actively disseminate environmental information in their possession;

20 3. THE AARHUS CONVENTION 1. Public Authorities, in response to a request for environmental information, make such information available to the public:  without an interest having to be stated;  in the form requested. 2. The environmental information shall be made available:  as soon as possible;  at the latest within one month after the request has been submitted.  The applicant shall be informed of any extension and of the reasons justifying it.

21 3. THE AARHUS CONVENTION 3. A request for environmental information may be refused if:  the public authority to wich the request is addressed does not hold the environmental information requested;  the request is manifestly unreasonable or formulated in too general a manner; or  the request concerns material in the course of completion or concerns internal communications of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure.

22 3. THE AARHUS CONVENTION 4. A request for environmental information may be refused if the disclosure would adversely affect:  the confidentiality of the proceedings of public authorities;  international relations, national defence or public security;  the course of justice;  the confidentiality of commercial and industrial information; information on emissions which is relevant for the protection of the environment shall be disclosed;  intellectual property rights;

23 3. THE AARHUS CONVENTION  the confidentiality of personal data and/or files relating to a natural person where that person has not consented to a disclosure of the information to the public;  the interests of a third party wich has supplied the information requested without that party being under or capable of being put under a legal obligation to do so, and where that party does not consent to the release of the material; or  the environment to wich the information relates, such as the breeding sites of rare species.  The aforementioned grounds for refusal shall be interpreted in a restrictive way.

24 3. THE AARHUS CONVENTION 5. Where a public authority does not hold the environmental information requested, this public authority shall, as promptly as possible, inform the applicant of the public authority to wich it believes it is possible to apply for the information requested or transfer the request to that authority and inform the applicant accordingly. 6. Each Party shall ensure that, if information exempted from disclosure can be separated out without prejudice to the confidentiality of the information exempted, public authorities make available the remainder of the environmental information that has been requested.

25 3. THE AARHUS CONVENTION 7. A refusal of a request:  shall be in writing if the request was in writing or the applicant so requests;  shall state the reasons for the refusal and give information on access to the review procedure provided;  shall be made as soon as possible and at latest within one month.  The applicant shall be informed of any extension and of the reasons justifying it.  Each Party may allow its public authorities to make a charge for supplying information, but such charge shall not exceed a reasonable amount.  Collection and dissemination of environmental information.

26 3. THE AARHUS CONVENTION 3.4 THE SECOND PILLAR: PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISION - MAKING  “Public participation in environmental decision- making“ is the right to participate in environmental decision-making.  Arrangements are to be made by public authorities to enable the public affected and environmental non-governmental organisations to comment on, for example, proposals for projects affecting the environment, or plans and programmes relating to the environment, these comments to be taken into due account in decision-making, and information to be provided on the final decisions and the reasons for it

27 3. THE AARHUS CONVENTION 3.5: THE THIRD PILLAR: ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS  “Access to justice“ is the right to review procedures to challenge public decisions that have been made without respecting the two aforementioned rights or environmental law in general.  In order to implement the provisions of the Convention, there have been significant changes of law at both EC and domestic levels.

28 4. ACCESS TO ENVIRONMENTAL INFORMATION IN ITALY The history of the Italian legislation on acces to environmental information  Law 8 July 1986, no. 349  Law 7 August 1990, no. 241 and Law 8 June 1990, no. 142  Decree 24 February 1997, no. 39  Law 16 March 2001, no. 108 (implementation of Aarhus Convention)  Decree 19 August 2005, no. 195  Decree 3 Avril 2006, no. 52

29 4. ACCESS TO ENVIRONMENTAL INFORMATION IN ITALY Article 14 (3) of the Legge 8 July 1986, n. 349 states: “every citizen has, in accordance with the existing legislation, the right of access to information on the state of the environment held by Public Administration and can obtain copies against the coasts of reproduction and real office coasts”. This provision was, however, generally considered ineffective, since a denial of access to information could not be appealed.

30 4. ACCESS TO ENVIRONMENTAL INFORMATION IN ITALY The Law 7 August 1990, no. 241:  contains new provisions regulating administrative proceedings and right of access to administrative documents;  confers a general right of public access to administrative documents;  requires each public authority to adopt an internal regulation for access to administrative documents and information.  All citizens, firms, associations have this right and all those who have a direct and real interest corresponding to a lawfully governed situation wich is linked to a document for wich a request of access is bein

31 4. ACCESS TO ENVIRONMENTAL INFORMATION IN ITALY The Law 7 August 1990, no. 241:  All citizens, firms, associations have this right and all those who have a direct and real interest corresponding to a lawfully governed situation wich is linked to a document for wich a request of access is being made: limit of this definition.  The Public Administration Response.  The citizen’s appeal.

32 4. ACCESS TO ENVIRONMENTAL INFORMATION IN ITALY The Law 8 June 1990, no. 142 on the System of Local Authorities:  article 7: guarantees the right of citizens to have access to all administrative documents held by local authorities, except those expressly exempted by law or on the basis of a temporary and justifiable decision ot the major or president of the province.

33 4. ACCESS TO ENVIRONMENTAL INFORMATION IN ITALY The Decree 24 February 1997, no. 39:  is a literal translation of the original text of Directive 90/313/CE;  applies to all the “information relating to the environment” held by “public authorities”;  article 2 (b): public authorities are “any Public Administration at national, regional or local level – that is, regions, provinces, municipalities, mountain communities, and other bodies having public responsibilities or functions, or providing public services in relation to the environment (Regional Agencies for the Environment, or ARPA);

34 4. ACCESS TO ENVIRONMENTAL INFORMATION IN ITALY The Decree 24 February 1997, no. 39:  “information relating to the environment” is any information available “in written, visual, aural, or database form on the state of water, air, soil, fauna, flora, land and natural sites, and on activities (including those dangerous) or measures adversely affecting, or likely so to affect these, and on activities or measures designed to protect these, including administrative measures and environmental programmes”.  Everyone has the right to submit a request for information to a public authority.

35 4. ACCESS TO ENVIRONMENTAL INFORMATION IN ITALY  Law 16 March 2001, no. 108: the Aarhus Convention was ratified by Italy and legislation resulting from the Convention has already started to take effect in Italy.  Decree 19 August 2005, no. 195: implementation of Directive 2003/4/EC on public access to environmental information;  Decree 3 Avril 2006, no. 52: article 3 – sexies: everyone has the right to access environmental information.

36 END OF PRESENTATION THANKS FOR YOUR ATTENTION


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