Key Messages from Civil Society Regional Consultative Meeting in Latin America and the Caribbean
Regional stakeholders in Latin America and the Caribbean discussed positive progress achieved, principles for stakeholder engagement, and decisions to promote UNEP Regional Forums for Civil Society. The meeting emphasized the importance of participation, coherence, and accountability, aiming for inclusive and effective regional environmental governance.
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Presentation Transcript
Dr. Jos Ignacio Cubero Marcos University of the Basque Country
Aarhus Convention. Ratified by Spain in 2004 2003/4 Directive adopted by European Communities 27/2006 Law related to access to information, participation and access to justice 19/2013 regarding the rules to obtain information from every public Administration in Spain How to determine the rules to know the legal regime: rights, obligations, information on environmental issues Law on Transparency and Good Governance enforced subjects or procedure to request
Aarhus Convention gives Member States the choice of providing information on environmental issues Aarhus considered as negative limits for the internal regulations. They provide minimal requirements. Can be applied additional regulation, even so it is not laid in the specific regulation on environmental issues? And if it is, which criteria must be applied? Transparency and Good Governance Law: it is Supplementary. If an issue is not ruled, the Transparency and Good Governance Law (general Law) will be applied Different cases will be analyzed: procedure, exceptions, subjects and lack of resolution in a specific period of time an additional protection of the right to Convention and the 2003/4 Directive are
The Transparency and Good Governance Law - Private companies, when public Administration holds a majority of the undertaking s subscribed capital - Private Companies or associations when receive aids from public Administration (40% of their incomes or more than 100.000 ) - Public foundations The Transparency and Good Governance Law Access to information Spanish Access to information Spanish Law Aarhus Convention Aarhus Convention 2003/4 Directive 2003/4 Directive Law - Natural or legal persons if provide public services related to the environment Natural or legal persons exercising, according to the internal Law, public functions, particularly, specific activities, services and tasks related to the environment Juridical or legal persons that exercise public functions, particularly tasks, works, activities or specific services related to the environment
They regulation or control of activities. Public Administration must exercise decisive influence on the regulation or inspection. Although public Administration does not dispose the control on the management decisions adopted by the comapny. The company has not any real autonomy (C- 279/12, Fish Legal, par. 69-71). Services of general economic interest. For example, wastewater treatment plants. In Transparency and Good Governance Law has accepted information from companies managing nuclear plants. 0432/2015) must be subjected to the public powers, including activity or the market: previous authorization, Spain, the Agency telecommunications companies and for the application of the ( C0253/2015 and
The Transparency and Good Governance Law The Transparency and Good Governance Law Access to information Spanish Access to information Spanish Law Aarhus Convention Aarhus Convention 2003/4 Directive 2003/4 Directive Law Additional exceptions: Confidenciality: commercial secrets -Data protection - Fair hearing - Protection of rare species - Protection of people colaborating with the Administration The same as the Spanish Access to Information Law The same as the Spanish Access to Information Law Public Inspection and Functions of control Economic and commercial interests Reasons connected with economic policy
In Spain some of them are more restrictive for the right to access than provided by the Aarhus Convention and the 2003/4 Directive: economic policy, inspections Exceptions provided by the Directive or Aarhus Convention can only be alleged (EC C-266 /09, par. 48-51) Rights and interests must be weighed, and general interest of third parties could be affected by disclosing information. Those rights or interests must be recognized by the legislation on access to information Domestic Law can provide criteria to weigh rights and interests concerned, but they must assess them case by case (EC C-266/09, Stichting Natuur, , par. 59)
The Transparency and Good Governance Law The Transparency and Good Governance Law Access to information Spanish Access to information Spanish Law Aarhus Convention Aarhus Convention 2003/4 Directive 2003/4 Directive Law In case an application is submitted, Public authorities must notify third parties who can be affected required information. Public authorities must give the opportunity to bring allegations Domestic law does not provide the hearing procedure for the third parties There is no provision about third parties within procedure. Public authorities only will examine whether they can be interested people in order to appeal. Public authorities must weigh the rights and interests Art.6.2 Member States can provide that the third parties prejudiced by disclosing information have the access to a procedure for appeal. different the appealing procedure and submitting allegations by disclosing information have the access to a procedure for appeal. It is can be affected by information. Public authorities must give the opportunity to bring allegations
Member States have the power to rule the requirements connected with the procedure In order to weigh better the rights concerned, hearing people, who could be prejudiced by disclosing information, can be necessary If the Directive has laid down the opportunity to appeal, Public Administration could give them the opportunity to defend his interests and rights within the administrative procedure
The Transparency and Good Governance Law The Transparency and Good Governance Law Access to information Spanish Access to information Spanish Law Aarhus Convention Aarhus Convention 2003/4 Directive 2003/4 Directive Law The dismissed applications can be appealed before the Transparency and Good Governance Council. It is an administrative agency not subjected to the public Administration The decisions adopted by public authorities can be appealed before the supreme authorities of the public Administration and It is possible a judicial review against this last decision The decisions can be appealed before an impartial and independent authority recognized by Law Decisions can be impugned before a judicial body or impartial or independent authority
Appealing requirements provided by the 2003/4 Directive and the Aarhus Convention First , appellant which can be more expensive and spend very long time Secondly, the agency is a more specialized body Thirdly, the decisions adopted by the agency can be reviewed by judicial bodies The procedure before the Council for the application of the Transparency and Good Governance Law gives more guarantees for the protection of the rights concerned. Sometimes it has declared lack of competence to apply legislation on environmental issues. In different cases, however, it has settled the complaints (mobile phone stations and radiologic information of the waters of Ebro) before judicial authorities guarantees the must exhaust administrative remedies,
The Transparency and Good Governance Law The Transparency and Good Governance Law Access to information Spanish Access to information Spanish Law Aarhus Convention Aarhus Convention 2003/4 Directive 2003/4 Directive Law There is no real decision, but applicants are allowed to appeal the decision as if the application had been rejected. It is called negative administrative silence rule Law recognizes a right to access to information and that means public authority must provide a service or carry out a positive action. The positive silence rule Convention enforce public authorities to provide the information in a period of time. In addition, rejecting decisions must be reasoned under the exceptions set by the Convention. There is no provision about silence Art. 3. Information will be supplied to the applicant
Negative protection of the third parties affected. For example, supplied information could be used for an investigation or in a trial. Right to defence can be breached. However, the Directive and Aarhus Convention provides an obligation to allow access in a period of time. That involves a positive silence. So, applicants can require to the judicial bodies information on environmental issues directly, if the term has concluded. silence is based on an effective
The Transparency and Good Governance Law is limited by the European legislation and the Aarhus Convention and it must respect their provisions Transparency Legislation is a supplementary Law and it is applied in the next cases: - When it involves an additional protection for the environment - If it is better adapted to the European legislation and the Aarhus Convention - When an issue has not specifically ruled by the environmental legislation
