Commission turns a blind eye to public concerns on Member States’ compliance with EU environmental law

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The European Commission is refusing to let citizens see its studies checking whether national governments are following EU environmental law. The Commission’s non-disclosure policy of these studies is at odds with EU legislation on access to environmental information, which commits EU institutions to actively disseminate information related to the environment. This jeopardises a wider public discussion on how well Member States implement EU environmental legislation.

We have the right to know whether our governments comply with EU environmental law

Conformity studies analyse the compliance of national transposing measures with EU law. They are normally used by the Commission as background information in the framework of the so-called “infringement proceeding”, in its function to ensure EU legislation is fully and correctly transposed in the Member States.

Public access to these studies would support a wider public debate on the compliance of national legislation with EU law, and particularly with environmental law.

It is an undeniable fact that EU citizens want to know whether the Union legislation is correctly implemented in their countries. A proactive disclosure of these studies would therefore allow public discussions on the need to protect our environment and to hold our governments to account.

A limit to the presumption of confidentiality

In 2010, the Commission rejected ClientEarth’s application for access to several studies relating to the conformity of the legislation of various Member States with EU environmental law.

The Directives analysed included ones on the quality of air, drinking and bathing water, waste (electric and electronic, from extractive industries), access to information and public participation. The Commission relied on a general presumption of confidentiality and claimed that disclosure of the studies would jeopardise the purpose of the investigations, by exposing Member States to an unjustified criticism which would have undermined the mutual trust between those countries and the Commission.

On appeal, the European Court of Justice concluded that the Commission was not entitled to rely on the general presumption of confidentiality and said that it doesn’t apply to conformity studies which have not led to any infringement proceedings. The decision of the Court should have allowed campaigners and individuals to have access to the conformity studies which the Commission makes, as long as no letters of formal notice have been started. Unfortunately, this has not been the case.

Should infringements of EU law be confidential information?

The Commission continues to withhold the studies even when no letter of formal notice has been sent to the Member State, keeping the citizens in the dark. The Commission discloses the studies which conclude that the States are not in breach or the ones which have been followed by a legal proceedings that has been closed.

This prevents public debate or pressure being put on a government which is breaching EU law and putting our health and environment at risk.

This is all the more difficult to understand since these studies do not contain any confidential information, only an analysis of the conformity of national law with an EU Directive. Not only does the Commission refuse to disclose all the studies it holds, it also refuses to actively disseminate (by publishing on its website) the ones provided on request.

As a public authority, using public money and holding this information in the public interest, one would expect that the DG Environment arm of the Commission would make the effort to ensure that the public has access to this information. To add to the confusion, DG Justice already publishes similar studies.

Shedding light on Member States’ practice under EU law

Disclosure of conformity studies would in no way hamper the ultimate objective of the investigations, which is to encourage Member States to make their national law comply with EU law.

On the contrary, by sharing the studies, the Commission would help the public get involved in decision-making and holding their governments to account, to make them comply with laws protecting people and the planet.

After all, the quality of the water we drink and bathe in, and the way waste is sorted and treated has an impact on our everyday life. It would also shed some light on the role of the Commission to ensure conformity with EU law, and in this case, to ensure a right level of environmental protection. This should bring citizens closer to the EU.

Photo by Ryan Hagerty

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