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 2

European Ombudsman Good administration and maladministration Includes (but not limited to) compliance with law, policies and practices Public service principles: o Commitment to the EU o Integrity o Objectivity o Respect for others o Transparency 3

European Ombudsman Global administrative law For example… Open Government Partnership Extractive Industries Transparency Initiative International Aid Transparency Initiative Aarhus Convention 4

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 2011Decision of 15 February

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) 6

European Ombudsman … key areas (3) European Investment Bank Memorandum of Understanding o Two-stage procedure for complaints o Use of Ombudsman’s own- initiative power o EIB disseminates information about environmental policies, standards and procedures 7

European Ombudsman Access to documents is a fundamental right Charter of Fundamental Rights, Article 42 Treaty on the Functioning of the European Union (TFEU), Article 15 8

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. 9

European Ombudsman The Ombudsman’s view Case 127/2010VIK, Decision of 4 July 2012: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:Decision of 28 May 2013 Case law on Article 4 (5) of Regulation 1049/2001 should apply to Article 44 Undertakings’ legitimate interests should be taken into account. 10

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. 11

European Ombudsman The European Investment Bank O1/3/2013/MHZ, Decision of 25 June 2014Decision of 25 June 2014 Ukrainian NGO complained about lack of proactive dissemination of information … led EIB to set up a public register of documents. 12

European Ombudsman Greenhouse gases methodology Case 863/2012/FOR, Decision of 21 May 2014Decision 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. 13

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. 14

European Ombudsman The Implementation of the Aarhus Convention into EU law Regulation 1367/2006 (the Aarhus Regulation) … refers to Regulation 1049/

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. 16

European Ombudsman The Ombudsman’s view: Article 4 (1) exceptions Case 339/2011/AN, Decision of 19 January 2012Decision 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. 17

European Ombudsman Infringement procedures Case 1947/2010/PB, Decision of 26 September 2013Decision 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. 18

European Ombudsman On-going inquiries (1) Case 181/2013/AN Concerns public access to questionnaires completed by project promoters in context of the “PCI” Regulation Ombudsman is currently evaluating Commission's response to a proposed friendly solution Complainant also turned to the Aarhus Compliance Committee contesting the adequacy of public consultation on the PCI Regulation (ACCC/C/2013/96) 19

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. 20

European Ombudsman On-going inquiries (3) Case 1895/2013/LP Complaint against the Court of Justice concerning access to written submissions in a closed case The Court argues that it holds the documents in its judicial capacity and so its rules on access to documents do not apply The Court contests the Ombudsman’s mandate to investigate. 21

European Ombudsman 22