Dr. José Ignacio Cubero Marcos University of the Basque Country PUBLIC AUTHORITIES ENFORCED TO SUPPLY INFORMATION ON ENVIRONMENTAL ISSUES AND THE ADAPTATION TO THE TRANSPARENCY AND GOOD GOVERNANCE LAW IN SPAIN Dr. José Ignacio Cubero Marcos University of the Basque Country

APPLICABLE LAW ON ACCESS TO INFORMATION. ENVIRONMENTAL ISSUES University of the Basque Country APPLICABLE LAW ON ACCESS TO INFORMATION. ENVIRONMENTAL ISSUES 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 Law on Transparency and Good Governance regarding the rules to obtain information from every public Administration in Spain How to determine the rules to know the legal regime: rights, obligations, enforced subjects or procedure to request information on environmental issues

GENERAL CRITERIA Aarhus Convention gives Member States the choice of providing an additional protection of the right to information on environmental issues Aarhus Convention and the 2003/4 Directive are 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

PUBLIC AUTHORITIES REQUIRED The Transparency and Good Governance Law Access to information Spanish Law Aarhus Convention 2003/4 Directive - 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 - 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

LEGAL OR NATURAL PERSONS They must be subjected to the public powers, including regulation or control of activities. Public Administration must exercise decisive influence on the activity or the market: previous authorization, 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 Spain, the Agency for the application of the Transparency and Good Governance Law has accepted information from telecommunications companies and companies managing nuclear plants. ( C0253/2015 and 0432/2015)

EXCEPTIONS TO THE RIGHT TO ACCESS The Transparency and Good Governance Law Access to information Spanish Law Aarhus Convention 2003/4 Directive Additional exceptions: Public Inspection and Functions of control Economic and commercial interests Reasons connected with economic policy 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

ADDING EXCEPTIONS BY MEMBER STATES? 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)

PROCEDURE TO REQUIRE INFORMATION The Transparency and Good Governance Law Access to information Spanish Law Aarhus Convention 2003/4 Directive In case an application is submitted, Public authorities must notify third parties who can be affected by 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. It is different the appealing procedure and submitting allegations

THIRD PARTIES WITHIN THE PROCEDURE TO REQUEST INFORMATION 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

APPEAL PROCEDURE The Transparency and Good Governance Law Access to information Spanish Law Aarhus Convention 2003/4 Directive 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

IMPARTIAL AND INDEPENDENT AUTHORITY Appealing before judicial authorities guarantees the requirements provided by the 2003/4 Directive and the Aarhus Convention First , appellant must exhaust administrative remedies, 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)

OUT OF TIME DECISIONS AFTER APPLICATION The Transparency and Good Governance Law Access to information Spanish Law Aarhus Convention 2003/4 Directive 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

POSITIVE OR NEGATIVE SILENCE? Negative silence is based on an effective 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.

CONCLUSIONS 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