Published: 14 November 2024. Writer: Tiina Paloniitty
As a signatory of the Aarhus Convention, the European Union has committed to uphold transparency, public participation, and access to justice in environmental matters. Yet, recent data from EU Commission responses to document access requests reveal persistent challenges in meeting these commitments, especially when it comes to information on climate change. Restrictive interpretations and limited access to information raise critical questions about the EU’s approach to climate transparency and its fulfillment of Aarhus Convention obligations.
The European Union is a party to the Aarhus Convention. The EU is, however, known for its lack of ambition when it comes to fulfilling the environmental and human rights secured in the Convention. The EU Commission’s confirmatory review decisions (from 2017–2020) with regard to the Aarhus Convention tell an interesting story about the relationships between EU’s access to documents practices, information relevant to climate change and fulfillment of environmental democracy in the EU. The three pillars of the Aarhus Convention are access to information, public participation, and access to courts, of which I studied the first mentioned.
The Commission’s responses to confirmatory requests constitute a valuable data pool for analyzing how the Commission interprets international and EU norms related to the Aarhus Convention. The confirmatory review is an administrative decision-making process establised by the Access to Documents Regulation (Regulation No 1049/2001). When an access to document request is faced with administrative silence, declined, or only partially accepted by some Union institution or body, the applicant can approach the Commission with a confirmatory application. The unsatisfied applicant can ‘make a confirmatory application asking the institution to reconsider its position’.
Initial numbers revealing the problem
In my recent research I examined the EU Commission’s responses to access to document requests. I sought data (that is, Commission’s responses to confirmatory requests) in two separate occassions. The first request was made in May 2021, covering the years 2019 and 2020, and the second in October 2021, covering the years 2017 and 2018. I thus analysed a total of 43 decisions on confirmatory requests from four years, 2017–2020.
The number 43 is already of significance: the Commission identified very limited number of decisions as being relevant to the Aarhus Convention. Comparing the total amounts of confirmatory review requests to the number of decisions identified as relevant to the Aarhus Convention, the latter were between 1.2 and 5 per cent of all decisions. This highlights a crucial decision-making step that takes place when the Commission decides whether or not a matter is relevant to the Aarhus Convention. Of all the confirmatory review applications the Commission receives, only a few per cent relate to environmental matters – that appears marginal but as this decision-making process is completely opaque, no more can be said about it.
Legislative choices working against access rights
In the EU, the specific Aarhus Regulation is understood to build upon the Access to Documents Regulation. The EU has been stern in its stance that the Aarhus Regulation merely secures compatibility between the Aarhus Convention and the Access to Documents Regulation. When joining the Convention, the EU partially prompted the revision of the latter. As a consquence, regarding participatory rights in the Union, the EU has adopted an instrumental view: participation is understood as complimentary, as the expert knowledge of environmental matters is prioritised.
This ‘complimentary discourse’ was also present in the data, resulting in rather strict interpretations on access to information rights. The demand for transparency lies at the heart of the legitimacy of governance, and access to document claims are not only about the information itself, but also about ensuring the democracy of governance. Thus a fundamental legislative choice has played its part in creating a regulatory landscape where it is even more difficult to gain access to information relevant to climate change than it is to gain access to information relevant to other environmental concerns.
The EU Commission interpreting the environment / climate boundary
The Aarhus Regulation defines environmental information very broadly – so broadly that it would not be entirely mistaken to assume that such broad definitions could also include climate emissions. Alas, when the interpretative powers are vested with the Commission, the outcome can be to the contrary. The Commission has used the chosen regulatory strategies against information transparency, resulting in a situation where access to climate information is even more restricted than access to other environmental information.
Under the Aarhus Convention, key legal concept guiding the access to information right is ‘emission into the evironment’. In its practice, the Commission interpreted this pivotal ‘emission into the environment’ test so that information relevant to climate change – witnessed in global scale processes, and commonly regulated with quotas and reference values – falls outside of it. As the Commission also upheld the tradition of submitting transparency to commercial interests or confidentiality of infringement procedures, the procedural human rights that the Convention ought to secure have been compromised.
Climate change regulatory instrument choice working against environmental democracy
There were also other stories on how regulatory instrument choice was working against environmental democracy when the Commission has its say on the matter. This was visible when requests dealt with the EU Emission Trading System, a key EU climate change law instrument that operates with an emission cap, emission allowances and emission markets. In the confirmatory request decisions, the Commission decoupled the link between the ‘emission allowances’ and actual emissions contributing to the climate change.
The Commission deemed the allowance to be ‘an abstract ceiling’ having no link with the possible source of the emission. This warranted a rejection of the information request: emission allowances do not reflect actual or foreseeable emissions that the doctrine developed in earlier case law (Stichting Greenpeace ruling) would have required. However, climate change as a phenomenon eludes the traditional definitions of environmental degradation, and thus choosing to review it against the thresholds developed for more geographically local environmental harms is not in line with the purposive interpretation that the underlying Convention would require of the Commission.
Characteristic of climate change impacts working against access rights too
The outcome of the analysis leaves much to hope for in the Commission’s actions, and for the coherence of EU legal order. This is not only because of the traditionally poor transparency of the Union’s actions, but also owing to the characteristics of climate change itself. The confirmatory review decisions I have analysed are not climate change policy or legislation in sensu stricto, but run-of-the-mill administrative decisions the Commission has taken that can have, and are of, significance to climate change. In doing so, a tactic popular in the Global South was adopted, where the ‘perfecting’ category of climate litigation has been common: in it, the pre-existing regulatory regime is used to address climate change. Alas, it seems that in the EU, this pre-existing regulatory regime is doing its best to hinder access to information on matters relevant to climate change and fulfillment of environmental democracy.
No light at the end of the tunnel?
Although the 2021 revision improved the norms of the Aarhus Regulation concerning access to justice, it unfortunately did not do the same for the clauses on access to information, leaving the improvement of the situation in the hands of the interpreter. Based on the Commission’s track record thus far, an interpreter has their hands full if they wish to improve the situation with the access right and environmental democracy.
Reseach output the blog extensively cites:
Tiina Paloniitty, ‘Climate Change, Access to Information and the Mechanism of a Confirmatory Review: Mounting Discrepancies’ in Sikora, Alicja and Inga Kawka (eds.) The European Green Deal and the Impact of Climate Change on the EU Regulatory Framework: Searching for coherence. Presses universitaires Saint-Louis Bruxelles, 2024. Open Access at https://books.openedition.org/pusl/36391
Tiina Paloniitty is an Associate Professor of Environmental and Sustainability Law at the University of Helsinki.