1. The Aarhus Convention On 25 June 1998 in Aarhus, Denmark, during the 4th Pan-European Conference of Environment Ministers, the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters -further the Aarhus Convention was signed. The Convention, which came into being within the United Nations Economic Commission for Europe, was signed in Aarhus by 35 countries (including Poland) and by the European Community. Four other countries which did not do so in Aarhus (namely Hungary, Belorussia, Malta and Germany) signed the Convention in New York before the deadline for signing, which was 21 December 1998. It should be noted that states such as the USA, Canada, Germany, Russia and Turkey were not, for various reasons, among those to have signed the Convention in Aarhus. Satisfied by the well-known level of advancement of their legislation and practice in the area covered by the Convention, the first two states mentioned above had reported at the very beginning the lack of interest in the Convention and considered it to be an internal affair of the Europeans. As for Germany, Russia and Turkey, the fact that they did not sign the Convention in Aarhus was generally incomprehensible if their relatively active participation in the negotiations is taken into consideration, such an attitude causing the need for seeking compromise solutions, (see JENDROŚKA J., p. 4). In addition the Protocol on Pollutant Release and Transfer Registers (the Protocol on PRTRs) was adopted at an extraordinary meeting of the Parties to the Aarhus Convention on 21 May 2003. The meeting took place in the framework of the fifth Ministerial Conference “Environment for Europe”, held in Kiev on 21-23 May 2003. Forty member States and the European Community signed the Protocol in Kiev. As of 31 December 2003, the following had signed the Protocol: Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Portugal, Republic of Moldova, Romania, Serbia and Montenegro, Slovenia, Spain, Sweden, Switzerland, Tajikistan, the Former Yugoslav Republic of Macedonia, Ukraine and the United Kingdom of Great Britain and Northern Ireland. In addition, the European Community had signed the Protocol. Following the declaration of independence of the Montenegro and its succession to the treaties to which the State Union of Serbia and Montenegro was a signatory, the number of Signatories to the Protocol rose to 38. Slovakia acceded to the Protocol in 2008 and Albania acceded to the Protocol in 2009. Although the period for signature of the Protocol closed on 31 December 2003, the Protocol is open for accession (from 1 January 2004) by States and regional economic integration organizations constituted by sovereign States members of the United Nations to which their member States have transferred competence over matters governed by this Protocol (Articles 24 and 26). One of those organizations is the European Community, that attached to its admission act the Declaration reading as follows: „The European Community declares that, in accordance with the Treaty establishing the European Community, and in particular Article 175 (1) thereof, it is competent for entering into international agreements, and for implementing the obligations resulting therefrom, which contribute to the pursuit of the following objectives: preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilization of natural resources, promoting measures at international level to deal with regional or worldwide environmental problems. Pollutant release and transfer registers are appropriate tools for encouraging improvements in environmental performance, for providing public access to information on pollutants released, and for use by competent authorities in tracking trends, demonstrating progress, thereby contributing to the achievement of the abovementioned objectives. Moreover, the European Community declares that it has already adopted legislation, binding on its Member States, covering matters governed by this Protocol and will submit and update, as appropriate, a list of that legislation in accordance with Article 26 (4) of the Protocol. The European Community is responsible for the performance of those obligations resulting from the Protocol which are covered by Community law in force. The exercise of Community competence is, by its nature, subject to continuous development.” The European Community’s approval followed adoption of a PRTR Regulation by the Members States of the European Union which will bring the provisions of the Protocol to bear directly on those States. The Protocol became international law binding its Parties on 8 October 2009. In February 2006, Luxembourg became the first State to ratify the Protocol and the European Community approved it, a step having the force of ratification. As of 8 October 2009 the Protocol had been ratified by Switzerland, Netherlands, Estonia, Germany, Slovakia, Latvia, Norway, Croatia, Denmark, Sweden, Lithuania, Belgium, Albania, France, Spain, Portugal. All States can participate in the Protocol, including those which not ratified the Aarhus Convention and those which are not members of the Economic Commission for Europe. It is by design an open global protocol. The main objective of the Protocol is to enhance public access to information through the establishment of coherent, nationwide pollutant release and transfer registers. This is to achieve by designing the first legally binding international instrument on pollutant release and transfer registers. Although regulating information on pollution, rather than pollution directly, the Protocol is expected to exert a significant downward pressure on levels of pollution, as no company will want to be identified as among the biggest polluters. The Convention itself is a normative expression of political declarations included in the Guidelines on Access to Environmental Information and Public Participation in Environmental Decision-Making adopted at the 3rd Pan-European Conference in Sofia in 1995. By way of the act of 21 June 2001 (Dz. U. [Journal of Laws] No 89 of 2001, item 970) the Polish Parliament consented to the ratification of the Aarhus Convention. The ratification document was signed by the President of the Republic of Poland on 31 December 2001 and filed with the Convention Depositary (UN Secretary-General in New York) on 15 February 2002. The convention was published in May 2003 (Dz. U. [Journal of Laws] No 78 of 2003, item 706). The publication in the Dziennik Ustaw Rzeczypospolitej Polskiej [the Journal of Laws of the Republic of Poland] means that, in conformity with Article 91 of the Constitution of the Republic of Poland, the Convention constitutes a part of the national legal order and is applied directly. Indeed, in conformity with Article 91 paragraph 1 of the Constitution of the Republic of Poland a ratified international agreement, following its publication in the Dziennik Ustaw, shall constitute a part of the national legal order and apply directly unless the application of such an international agreement depends on the issuance of an act. In turn, in compliance with the provision of Article 91 paragraph 2, an international agreement ratified upon previous consent expressed in an act has priority before the act if such an act and the agreement cannot be reconciled. The Convention departs from the traditional formula of international agreements, which specify the obligations of one state to the other states. When drafting the convention, its authors used the method typical of the conventions governing human rights. Those authors formulated legal provisions containing general and abstract obligations of the states before their own inhabitants or, more precisely, before the public which is not restricted in the Aarhus Convention to the citizens of a state. In practice, that means granting specific rights to the public and imposing certain obligations on administration bodies. Both the rights and obligations are designated for direct application in national legal relations including those before the courts. The norms of the Convention must also be taken into consideration in the processes of interpretation of the provisions included in national legal acts. Therefore, if a provision of national law provides, for example, for giving grounds for refusal to provide information (as set forth in Article 20 of the Environmental Protection Law Act Dz.U. [Journal of Laws] No 25 of 2008, item 150 – the consolidated text as amended), in conformity with Article 4 paragraph 4 of the Aarhus Convention such a provision shall be interpreted in a restrictive way. The requirements concerning, for example, giving information to the public (those requirements are set forth by the provision of Article 3 item 20) in conjunction with Article 32 of the Environmental Protection Law Act), will also comprise those stated in the provision of Article 6 paragraph 2 of the Convention, which requires the provision of information „in an adequate, timely and effective manner.” In the event that the provisions of national legal acts depart from the requirements of the Aarhus Convention, a national provision will not be applied but will be substituted by a provision of the Convention. The priority of national provisions will be retained in the case of those facts which are not subject to subsumption under the norm of the Convention. In the evaluation of the doctrine, the Aarhus Convention is not an „ordinary” convention on environmental protection. The convention is less concerned with environmental protection itself and more with the human right to the clean environment (JENDROŚKA J, p. 4). Access to information, public participation in decision-making and access to justice in environmental matters may be perceived as the „next generation” of human rights. In Article 4 paragraph 1, the Aarhus Convention imposes on the states the obligation to ensure that „subject to the following paragraphs of this article, public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation.” It should be stressed that the activity of public authorities takes place only at the request of a person concerned, therefore there is no obligation to act „ex officio.” Public authorities may also refuse a request for information where the public authority does not hold the information requested (Article 4 paragraph 3 (a)) or where the request concerns material in the course of completion (Article 4 paragraph 3 (c)). The Convention sets out several other exceptions from the obligation to make data available, such exceptions included in the provision of Article 4 paragraph 4. Request for environmental information may be refused if the disclosure would adversely affect: (a) the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law; (b) international relations, national defence or public security; (c) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature; (d) the confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest, within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed; (e) intellectual property rights; (f) The confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for in national law; (g) the interests of a third party which 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 (h) the environment to which the information relates, such as the breeding sites of rare species. The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment. In the general provisions, the Convention orders a state, inter alia, to ensure the necessary consistency between the various regulations issued for the implementation of the Convention (such consistency pertaining, for example, to the need for the compatibility of time limits within which information may be obtained and those for submission of comments on or reservations regarding a matter). When making the definition of „the public” precise, the Convention also forbids any discrimination as to nationality, citizenship, or domicile. The ban is expressed by the use of the term „the public” instead of a „citizen” to specify the subjective scope of the Convention. It should be noted that the rights conferred on the public are vested within the same scope in natural persons, even single ones. In accordance with Article 2 item 4) of the Convention, „the public means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups.” The issues relating to the openness to the public are resolved by the Convention in two relevant provisions. The provision of Article 4 formulates the so-called passive dissemination of information, such dissemination consisting in access to information and in the obligations of the state bodies when access to information is requested. The provision of Article 5 imposes on the states the obligation to make information accessible free of charge in the form of electronic data bases and publicly accessible registers, including the creation of pollution registers based on standardized reporting from polluting plants. The Aarhus Convention requires the states to adopt legislation permitting the public to participate in the preparation of plans and programmes relating to the environment. Such legislation must contain reasonable time-frames for the provision of information on an environmental decision-making process to the public. To be effective, public participation must take place at an early stage, when all options are open. When introducing legislation concerning public participation, institutions and bodies of the Community should specify the subjective scope of the possible participation of the public. The Aarhus Convention also requires the states to endeavour to provide opportunities for public participation in the preparation of policies relating to the environment. The provision of Article 9 paragraph 3 of the Aarhus Convention ensures access to judicial or other review procedures allowing the public to challenge acts and omissions by private persons and public authorities which contravene the provisions of environmental protection law. The provision in question constitutes grounds for requiring protection in the case of contravention by the authorities of the rights of the public in relation to access to information and to participation in decision-making. The above provision also permits the submission of claims to the court in the public interest against, for example, enterprises failing to comply with national environmental protection law. In Poland, the problem may lie in the participation of natural persons not having the status of a party in administrative proceedings concerning environmental decisions. The provision of Article 31 of the Polish Code of Administrative Procedure governs the participation of social organisations without making a reference to a natural person or to natural persons not organised in formal structures. It may, however, be considered that the Aarhus Convention as an independent legal basis should be taken into consideration when allowing the entities not organised formally to participate in administrative proceedings. By ratifying the Aarhus Convention, Poland transferred a part of control powers to an external forum. According to Article 10, paragraph 2, of the Aarhus Convention, the Parties are required to keep under continuous review the implementation of the Convention on the basis of regular reporting by the Parties. A compliance mechanism has been prepared on the basis of Article 15 of the Aarhus Convention. The first meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters held in Lucca (Italy) on 21-23 October 2002 established the Compliance Committee for the review of compliance by the Parties with their obligations under the Convention. The decision 1-7 Review of compliance was adopted at the first meeting of the Parties held in Lucca, Italy, on 21-23 October 2002 (UN Social and Economic Council ECE/MP.PP/2/Add.8 2 April 2004). To assist the performance of its functions, the Committee may: (a) request further information on matters under its consideration; (b) undertake, with the consent of any Party concerned, information gathering in the territory of that Party; (c) consider any relevant information submitted to it; and (d) seek the services of experts and advisers as appropriate. According to section 15 of Decision 1-7 a submission may be brought before the Committee by one or more Parties that have reservations about another Party’s compliance with its obligations under the Convention. Such a submission shall be addressed in writing to the secretariat and supported by corroborating information. The secretariat shall, within two weeks of receiving a submission, send a copy of it to the Party whose compliance is at issue. Any reply and supporting information shall be submitted to the secretariat and to the Parties involved within three months or such longer period as the circumstances of a particular case may require but in no case later than six months. The secretariat shall transmit the submission and the reply, as well as all corroborating and supporting information, to the Committee, which shall consider the matter as soon as practicable. On the other hand, as per section 16 of the decision 1-7, submission may be brought before the Committee by a Party that concludes that, despite its best endeavours, it is or will be unable to comply fully with its obligations under the Convention. Such a submission shall be addressed in writing to the secretariat and explain, in particular, the specific circumstances that the Party considers to be the cause of its noncompliance. The secretariat shall transmit the submission to the Committee, which shall consider the matter as soon as practicable. Section 17 of the Decision 1-7 makes the secretariat to act on its own by making referrals. Where the secretariat, in particular upon considering the reports submitted in accordance with the Convention’s reporting requirements, becomes aware of possible noncompliance by a Party with its obligations under the Convention, it may request the Party concerned to furnish necessary information about the matter. If there is no response or the matter is not resolved within three months, or such longer period as the circumstances of the matter may require but in no case later than six months, the secretariat shall bring the matter to the attention of the Committee, which shall consider the matter as soon as practicable. The decision has also established, as per section18, a new mechanism of communications from the public, which is separate and different from the Parties’ rights under the Aarhus Convention and the Decision 1-7. Communications may be brought before the Committee by one or more members of the public concerning that Party’s compliance with the Convention, unless that Party has notified the Depositary in writing by the end of the applicable period that it is unable to accept, for a period of not more than four years, the consideration of such communications by the Committee. The Depositary shall without delay notify all Parties of any such notification received. During the four-year period mentioned above, the Party may revoke its notification thereby accepting that, from that date, communications may be brought before the Committee by one or more members. 2. Statute Law In its resolution of 12 May 2005 (European Parliament resolution on the EU strategy for the Almaty Conference on the Aarhus Convention of 12 May 2005), the European Parliament declared that the Aarhus Convention was the competent forum for deliberating on horizontal principles of public access to information, participation and access to justice in environmental matters. The normative implication of that declaration of political will of the European community was the adoption of the Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ L 264 of 2006, p. 0013 – 0019). The provisions of the Regulation aim at the introduction of provisions pertaining to the application of the requirements of the Convention to the Community institutions and bodies. The preamble of the Regulation mentions the three pillars of the Convention, namely access to information, public participation in decision-making and access to justice in environmental matters as the axiological basis for the Regulation. The rights guaranteed by the three pillars of the Convention are without discrimination as to citizenship, nationality or domicile. The Regulation introduces the control of administrative acts through the review procedure including the review proceedings before the Court of Justice of the European Union. Omissions will be controlled in the same way where an administrative act must be issued under the environmental protection law. The Regulation allows the so-called self-amendment by giving the institution or body which issued the act subject to review or which, in the case of an alleged administrative omission, omitted to act, the opportunity to reconsider its former decision, or, in the case of an omission, to act. Non-governmental organizations active in the field of environmental protection are entitled to request internal review at Community level including the right to file an application to the Court of Justice of the European Union. A detailed control procedure was provided by the Commission Decision No 2008/50/EC of 13 December 2007 laying down detailed rules for the application of Regulation (EC) No 1367/2006 of 6 September 2006 on the Aarhus Convention as regards requests for the internal review of administrative acts (OJ L 13 of 2008, p. 24). A more specialised scope of access to information on environmental matters was dealt with in Directive 2003/35/EC of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment (OJ l 156 of 2003, p. 1), in Directive 2001/42/EC on the assessment of the effect of certain plans and programmes on the environment (OJ L 197 of 2001, p. 30) and in Directive 2003/4/EC on public access to environmental information (OJ L 41 of 2003, p. 26). Before Regulation No 1367/2006 came into force, Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment had been binding (OJ L 41 of 2003, p. 26). Pursuant to EU law, access to information on environmental matters is comprised by the broader scope of the right to access to the documents of the European Union bodies. The latter issue is governed by Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, p. 43), which Regulation was adopted on the basis of Article 255 of the Treaty Establishing the European Community and specified the rules and conditions of and restrictions on access to the documents of those institutions. The principle laid down in Article 2 of the Regulation was that any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation. The Regulation applies to all documents held by an institution, that is to say, documents drawn up or received by it and remaining in its possession, in all areas of activity of the European Union. The right of access to documents is not absolute as Article 4 paragraph 1 (a) of the Regulation provides for the circumstances in which a body is entitled to refuse access to a document. A body or institution shall refuse access to a document where disclosure would undermine the protection of the public interest as regards, inter alia, international relations, the fiscal, monetary or economic policy of the Union or a Member State. Refusal of access to a document is also allowed if such access contravenes the privacy and integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data (Article 4 paragraph 1 (b). The bodies or institutions will refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property, unless there is an overriding public interest in disclosure. Pursuant to Article 4 paragraph 3 of the Regulation, access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, or access to a document containing opinions for internal use as part of deliberations and preliminary consultations shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure. In compliance with Article 7 of the Regulation, any applications for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 of the Regulation within that period or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application. In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position. On top of that there are regulations included in Polish internal law. The Polish legislator needed a considerable amount of time to realise the mere principle of such participation, as can be seen from the fact that the Aarhus Convention was ratified as late as in 2003. Certain hopes of a change of the attitude towards public participation in environmental protection lay in the introduction of the Act of 3 October 2008 on making information on the environment and its protection available, on public participation in environmental protection and on environmental impact assessments (Dz.U. [Journal of Laws] No 199 of 2008, item 1227). The Act contains the provisions regarding the so-called general principles of environmental protection law. Whilst they were explicitly expressed in the Environmental Protection Law Act of 27 April 2001, the legislator deemed it necessary to repeat some of them in the act mentioned above. An example of such a repetition is Article 4 of the Act on making information on the environment and its protection available, on public participation in environmental protection and on environmental impact assessments, which Act reiterated that the universality of access to information on the condition and protection of the environment is one of the cardinal principles of Polish environmental protection law. The legislator had expressed that idea before in Article 9 of the Environmental Protection Law Act. In this specific case there is no problem with superfluum or praxeological contradiction (Lewandowski, 2010, p.69-70) because the legislator took advantage of a legislation technique instrument, which is unusual in that situation, namely by way of the provision of Article 144 item 4 of the above Act the legislator cancelled the provision of Article 9 of the Environmental Protection Law. An opinion is expressed in the doctrine that, from the point of view of the system, the repetition referred to above is irrational (Gruszecki, 2009, Art. 4). It may, however, lead to the omission of the rules existing outside the Act; whilst that is not a formal defect of the legal system, it may affect its effectiveness. As far as access to information is concerned, the legislator was indecisive. Suffice it to say that the Act on making information on the environment and its protection available, on public participation in environmental protection and on environmental impact assessments is already the third act of internal law in which the principle under consideration was stated. At first, the provisions governing public participation in the matters regarding environmental protection were included in the Act of 9 November 2000 on the access to environmental information, on environmental protection and on environmental impact assessments (Dz.U. [Journal of Laws] No 109 of 2000, item 1157 as amended). Those provisions were then taken over nearly in their entirety and without amendments by the Environmental Protection Law Act. At present, they are in an autonomous act despite the fact that the highest position in the legal system from the substantive point of view is occupied by the Environmental Protection Law Act 3. Judicial Decisions Against the background of those provisions, the judicial decisions of the Court of First Instance and of the Court of Justice have assumed judicial interpretation specifying the scope of application of the right of access to documents. The rule is that the public is to have access to the documents of the institutions and refusal of access is an exception to that rule (Judgement of the Court of First Instance of 25 April 2007 in case T 264/04 WWF European Policy Programme versus Council of the European Union). Consequently, the grounds for a refusal must be construed and applied strictly so as not to defeat the application of the rule. Moreover, an institution is obliged to consider in respect of each document to which access is sought whether, in the light of the information available to that institution, disclosure of the document is in fact likely to undermine one of the public interests protected by the exceptions which permit refusal of access. In order for those exceptions to be applicable, the risk of the public interest being undermined must therefore be reasonably foreseeable and not purely hypothetical (Judgement of the Court of 7 February 2002 in case T-211/00 Kuijer versus Council and judicial decisions referred to therein). It also follows from judicial decisions that institutions have wide discretion when analysing the possible contravention of the public interest by allowing access to a document. The above has fundamental implications for the scope of court control of decisions refusing access. The review by the Court of the lawfulness of decisions made by institutions refusing access to documents in view of absolutely binding exceptions relating to the public interest must be limited to verifying whether the procedural rules have been complied with, the contested decision is properly reasoned, and the facts have been accurately stated, and whether there has been a manifest error of assessment of the facts or a misuse of powers (Judgement of the Court of 19 July 1999 in case T-14/98 Hautala versus Council. Exceptions provided for by Article 4 paragraph 1 (a) of the Regulation No 1049/2001 relating to the right of access to documents covering the public interest or the interest of the individual are of absolutely mandatory nature (ius cogens); consequently, institutions are obliged to refuse access to documents falling under those exceptions once the relevant circumstances are shown to exist (Judgement of the Court of 5 March1997 incase T-105/95 WWF UK versus Commission). The above exceptions are therefore different from those provided for by Article 4 paragraph 3 of the Regulation concerning the interest of institutions in protecting the confidentiality of their proceedings; by applying such exceptions, institutions have full discretion allowing them to strike balance between the interest in protecting the confidentiality of their deliberations and the citizen’s interest in gaining access to documents (Judgement of the Court of 19 October1995 incase T-194/94 Carvel and Guardian Newspapers versus Council). Judicial decisions note the subjective scope of the right to access to documents by assuming that the concepts of a document and information should be differentiated. The public’s right of access to a document of an institution only concerns the documents and not information understood in a more general way; such a right does not imply the institution’s duty to reply to any request for information from an individual (by analogy, order of the Court of 27 October 1999 in case T‑106/99 Meyer versus Commission). Reference by the institutions to the non-existence of documents to avoid the application of Regulation No 1049/2001 would be contrary to the requirement for transparency following from that Regulation. Effective exercising of the right to access to documents means that institutions must, in the widest possible scope and in a foreseeable way free from arbitrariness, draw up and keep documents concerning their activity. If a body or institution does not have the duty to draw up documents and it does not draw up a document, the right of access to documents cannot be exercised and there are no grounds for stating that the right holder was deprived of that right in an arbitrary and unlawful way. Access to data may be granted only when such data is included in the documents, which implies that those documents exist. It follows from the judgement in case Council versus Hautala that Council decision 93/731/EC of 20 December 1993 on public access to Council documents (OJ L 340, p. 43), which had been in force before Regulation No 1049/2001 became effective, applied not only to documents as such held by institutions but also to data included in those documents. A body or institution has no duty to give information to the right holder if such information is not included in a document made on a mandatory basis 4.WWF European Policy Programme versus Council of the European Union- a kind of a leading case Judicial decisions recognise the importance of the Aarhus Convention as the basis of the right of public participation in environmental matters, a fundamental difference in understanding of that right cannot, however, be overlooked. On the one hand, the Aarhus Convention formulates the right to “environmental information,” that means any information in written, visual, aural, electronic or any other material form on (b) the state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making; (c) the state of human health and safety, 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 or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above. On the other hand, it follows clearly from the judgement in case WWF European Policy Programme versus Council of the European Union that access pertains to documents and not to information concerning a specific matter. It may therefore be reasonably presumed that access to environmental information in the meaning of the Aarhus Convention is wider than access to other substantive non-environmental information which must have the form of a document under the provisions of Regulation No 1049/2001. 5. Inflation of soft law International and EU legal regulation of public participation in environmental protection seems to be excessively abundant. Despite such abundant national and international legal regulation, the result seems to be contrary to ratio legis and the purpose of law-making. With regard to the preparation by public authorities of binding legal provisions that may have an effect on the environment, Article 8 of the Convention encourages the parties to “promote effective public participation at an appropriate stage during the preparation of such provisions.” The norm included in that provision is regarded as the so-called soft law. Pursuant to Polish law, the situation of a land owner in the context of the Natura 2000 programme (Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora and Directive 79/403/EEC on the conservation of wild birds. In Poland, the Regulation of the Minister of the Environment of 21 July 2004 on Natura 2000 special bird conservation areas remains in effect, Dz.U. [Journal of Laws] No 229 of 2004, item 2313- works on a regulation specifying the habitat protection area are under way) is an argument supporting the thesis on legal regulation being ineffective. An owner of land in Poland will not be advised of his or her land being located on the draft list of habitat protection areas. One cannot, however, overlook the conflict between the public interest and that of an individual owner of land which, based on the opinion of specialists, may be arbitrarily incorporated into the territorial scope of the Natura 2000 project. The boundaries of a Natura 2000 area are established without taking into consideration the opinions of the owners of that real estate which may fall within the Natura 2000 area. No consent is sought, either, at least in Polish practice, to the entry onto real estate by persons conducting nature research. That situation causes concern about Natura 2000 areas being established with prejudice to the rights of and, as it were, at the cost of real property owners, who are completely disregarded in the process of designing those areas. With regard to the preparation by public authorities of binding legal provisions that may have an effect on the environment, the provision of Article 8 of the Convention „encourages the parties to promote effective public participation at an appropriate stage during the preparation of such provisions.” The norm included in that provision is regarded as the so-called soft law. A natural person who is the owner of real estate covered by the provisions of the Nature Protection Act has no influence on a decision on the incorporation of his or her real estate into a special bird or habitat conservation area because the Act gives a discretionary power in that regard to a minister competent for the environment. The procedure for issuing opinions on a draft protection plan does not provide for the participation of the owner of private real estate; in that regard the minister is obliged to obtain an opinion from the municipal council and act in consultation with the other ministers listed in the Nature Protection Act (Dz.U. [Journal of Laws ] No 92 or 2004, item 880). Objections as to the procedure for the creation of areas protected under the environmental directive were formulated also in the petition „Holmes et Montagnes Catalanes” (Petition 0887/2005 submitted by Veronique Mathieu on behalf of the inhabitants of the Catalan Mountains (in) Notice to Members of the Committee of Petitions of 10 October 2006). The same claims are included in the petition from the owners of real estate situated at the proposed habitat protection area called the Piaśnickie Łąki [Piaśnica Meadows] in the municipality of Krokowa (Poland), represented by Janusz Lewandowski, a member of the European Parliament. The petition concerns the failure to consult the plan to establish the above habitat protection area with the owners of real estate located in that area and, consequently, those owners being prevented from expressing consent to the incorporation of their real estate into the proposed habitat protection area or voice reservations about that matter (The Polish text is held by the author and published at WWW.superfluum.eu, tag: petycja). By way of the decision of the Committee of Petitions of 24 August 2008, the petition was acknowledged for consideration. To the best of author’s knowledge the proceedings have not been finalised yet. A conclusion may reasonably be reached that legal regulation is, to a large extent, superficial. The large scale of that legal regulation is to carry the conviction that the public, and even one natural person, has real influence on the creation of environmental protection law. The norms following from such numerous provisions seem to fulfil a symbolic function thus pretending the pursuance of a specific policy in a given area, such a function being one of the typical sources of praxeological contradiction (Lewandowski, 2010, p.71).
References:
JENDROŚKA J.: Konwencja z Aarhus – geneza, status i kierunki rozwoju, Wrocław, February 2002
LEWANDOWSKI P.: Superflua, Practical Inconsistencies and Legal Gaps in Marine Environmental Protection Law, Prawo Morskie, vol. XXVI/2010.
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The article has been re-formulated exclusively for the Journal on LEM 2 Dez. /2011. Originally the content was presented on the Dudince Conference “The Importance of Human Potential in Regional Development” 2011 and released electronically.
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