Model agreements on transfrontier co-operation in the field of nuclear safety - CG (6) 15 Part II

Rapporteur: Tomas JIRSA (Czech Republic)

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EXPLANATORY MEMORANDUM

I. The Outline Convention on Transfrontier Co-operation

The purpose of the Outline Convention was defined as follows by the European Ministers responsible for Local Government at their first conference (Paris, 20-21 November 1975): to "outline the general, legal and common bases on which bilateral co-operation could be founded, in the framework of the national sovereignty of each country. This co-operation should be adapted to the specific conditions of each country and region."

Because of the variety of situations and structures regarding local communities in member States and the wide range of problems to be solved, the technique chosen for regulating the subject was that of an outline convention embodying the major relevant undertakings, to which are appended a series of model and outline agreements, statutes and contracts designed to meet the various co-operation needs. For the same reason, the Convention is not intended to deal itself with all the problems concerned but frequently refers to the provisions of domestic legislation.

The graduated system of models and outlines appended to the Convention (but not forming an integral part thereof) is designed to provide States on the one hand, and territorial communities on the other, with a choice of forms of co-operation best suited to their problems. Accordingly, the Convention does not preclude either the use of different forms of agreements or the adaptation of the appended models to each specific case of transfrontier co-operation. Moreover, as may be seen from Article 3, paragraph 1, and Article 8, further model and outline agreements between territorial communities or authorities may be drawn up within the Council of Europe.

The Convention's authors preferred not to include in the Convention itself any lists of matters suitable for transfrontier co-operation. However, a list of a purely indicative kind is to be found in model agreement 1.2 appended to the Convention (model inter-state agreement on regional transfrontier consultation).

The text of the Convention draws a distinction between "agreements" concluded between States on the subject of transfrontier co-operation and "arrangements" concluded between territorial communities and authorities.

The models referred to in the Convention for these agreements and arrangements cover forms of co-operation already in existence. The Council of Europe compiled a catalogue of a large number of agreements reflecting the desire of territorial authorities and communities to develop their relations at frontier level.

However, these are only "models" or standard forms proposed to States and territorial authorities or communities as a means of facilitating their co-operation efforts. The fact that they have been appended to the Convention does not oblige contracting Parties to use them or even, if they do intend to use them, to apply them as they stand (see also paragraph 3 of Article 3). The reference to these models in the Convention does not give them treaty force but merely implies an undertaking by States to pay them all due attention. Moreover, the models are texts of a fairly general kind intended to be adapted to various cases. It will lie with the States concerned and with territorial authorities and communities to make all necessary arrangements in keeping with the texts' policy when they decide to conclude co-operation agreements. States and territorial communities will thus regard the models as examples and retain full freedom to adapt them to particular situations and co-operation objectives.

II. The environment, agriculture and spatial planning

These three fields of activity are a definite stumbling block for transfrontier co-operation. They give rise to a host of problems and are often thought to encroach on prerogatives linked to the national territory. In certain transfrontier areas of Europe, some leading figures prefer to use the term "right of interference" rather than develop partnership in environmental matters, for instance where nuclear energy is concerned.

Although the idea of a natural frontier has long been a basic tenet of geography and political science, the environmental impact of transfrontier co-operation is today unequivocally revealing the spatial continuity of frontier areas and hence the need for their joint management to cope with problems of pollution, soil degradation and optimal land use.

Particularly in view of the nuclear energy problem, the environment may become a taboo subject and be ignored in institutionalised transfrontier co-operation, as energy problems and most of all nuclear energy problems rest entirely with the sovereign national authorities. The only way to transcend this outlook is for transfrontier institutions to be backed by unrestricted operation of local associations and also by better co-ordination of national plans to block or supervise such projects in frontier areas.

Environmental consequences do not end at national borders, and hence border regions face the necessity to co-operate for the mutual benefit of their citizens. International or bilateral treaties can enable local authorities to enter into transfrontier co-operations and internal administrative rules may pertnit local authorities to conclude individual contracts with parties abroad.

For this purpose, transfrontier Consultation Groups between local authorities should be established, which can investigate and evaluate new co-operation opportunities and provide legal and administrative assistance or advice to local authorities in border regions on new and existing instances of transfrontier co-operation. Transfrontier co-operation between local authorities can function in an informal way but a legal basis might be essential in many fields. The Outline Agreement on the creation of a Consultation Group between local authorities appended to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities could serve as an example or guideline in this respect. Particularities of each form of co-operation, however, could require an adjustment.

III. The involvement of territorial authorities in the transfrontier impact assessments

The current process of changes in Europe is posing new and compelling challenges to regional cooperation in general and to cooperation in the fields of the environment and the security in particular. With the emergence of new countries with economies in transition, new frontiers are cutting through the region, creating more transboundary situations and issues.

Environmental protection, sustainable development and a rational use of natural resources represent problems mostly transboundary in nature. They include: fresh and sea water use and protection; (long-range) air pollution; desertification or flooding; dangerous waste; transport; nuclear risks; impact of military activities.

The fact that a growing number of countries in transition are at the level of developing countries increases the diversity of socio-economic and environmental backgrounds and therefore the challenges in the field of transboundary environmental cooperation.

The Community Directive 85/337, which has been amended by Directive 97/11/EC of 3 March 1997, on the assessment of environmental impact stipulates that a specific consultation procedure involving the other member state should be applied whenever considerable impact effects on the environment of another member state is expected. The member state in turn informs and consults its citizens. It is envisaged that the citizens of the "affected party" are informed and can express comments or objections to be duly taken account of by the "originating party" when making the final decision after a consultation phase among the parties.

In order to contribute to the solving of transboundary problems, the UN Economic Commission for Europe promotes transboundary cooperation by developing institutional and legal frameworks which are applicable at the regional level but can serve also as model for solving transboundary environmental issues in other regions. ECE has fully recognized the increasing importance of public participation in environmental decision-making. References to the information of the public exist in all ECE environmental conventions, and in particular in the Convention on Environmental Impact Assessment in a Transboundary Context. In addition, An ECE Task Force on Environmental Rights and Obligations led by the Netherlands drafted Guidelines on Public Participation in Environmental Decision-making, which were submitted to and endorsed by the Third Ministerial Conference “Environment for Europe”, held in Sofia (Bulgaria) on 23-25 October 1995.

IV. The Espoo Convention on Environmental Impact Assessment in a Transboundary Context

Environmental impact assessment (EIA) has already proven to be a very important instrument for implementing and strengthening sustainable development. It combines the precautionary principle with the principle of preventing environmental damage and arranges for public participation. EIA has become the major tool for an integrated approach to the protection of the environment since it requires a comprehensive assessment of the impacts of an activity on the environment, contrary to the traditional sectoral approach. Moreover, it looks into alternatives to the proposed activity and brings facts and information on environmental impacts to the attention of the decision makers, including at the local levels, and the public. The EIA Convention was adopted at Espoo (Finland) on 25 February 1991. It was signed by twenty-nine countries.

This Convention is the first multilateral treaty to specify the procedural rights and duties of Parties with regard to transboundary impacts of proposed activities and to provide procedures, in a transboundary context, for the consideration of environmental impacts in decision-making procedures. The EIA Convention stipulates the obligations of Parties to assess the environmental impacts at an early stage of planning. The EIA Convention prescribes measures and procedures to prevent, control or reduce any significant adverse effect on the environment, particularly any transboundary effect, likely caused by a proposed activity or any major change to an existing activity. Appendix I to this Convention covers seventeen groups of activities to which the Convention applies, including activities such as nuclear and thermal power stations, road and railway construction, chemical installations, waste disposal facilities, oil refineries, oil and gas pipelines, mining, steel production, pulp and paper manufacturing as well as water management activities such as the construction of dams and reservoirs, ground water abstraction and the construction of ports and water ways.

Definitions

Article 1 contains the definitions. The definition of "proposed activity" comprises not only new or planned activities but also "any major change to an activity". The definition of "transboundary impact" explicitly excludes impacts of a global nature and therefore concentrates on impacts of a local or subregional character in the ECE region.

Field of application

Normally, Parties must apply the provisions of the EIA Convention when two requirements are met. According to Article 2, a Party has to take the necessary legal, administrative or other measures to implement the provisions of this Convention, such as the establishment of an EIA procedure that permits public participation and the preparation of the EIA documentation according to Appendix II, for proposed activities (I) listed in Appendix I to the EIA Convention and (ii) likely to cause a significant adverse transboundary impact.

Proposed activities listed in Appendix I

Many activities listed in Appendix I to the EIA Convention are fairly well defined. However, the words "major", "integrated" and "large" are also used to set a threshold for several activities in Appendix I to this Convention. Difficulties in determining thresholds may arise due to the differences in environmental, social and economic conditions in a geographical area under consideration for the purposes of the EIA Convention. Despite many difficulties, specific thresholds would serve as useful initial guidance in the application of the EIA Convention. It must be decided whether an activity is referred to in the list of proposed activities in Appendix I to the EIA Convention, before the significance of the likely transboundary impact can be considered.

Significant impact

The consideration of the "significance" of an adverse transboundary impact will always be part of the decision to apply the EIA Convention. At the national level, various approaches to determining the significance of an impact has been developed in ECE countries. They are described in the ECE publication "Policies and Systems of Environmental Impact Assessment". In some countries, particular criteria have been used to draw up lists of activities subject to an EIA at the national level. These so-called positive lists are usually more extensive than the one included in Appendix I to the EIA Convention. The advantage of establishing and applying lists of activities, considered a priori to have a significant adverse impact, is that both authorities and proponents know when an EIA has to be carried out.

According to Article 3 of the EIA Convention, the identification of likely transboundary impacts and the determination of significance for transmitting the notification to the affected country could be set in a general framework, which would give a structured starting point for further discussions between the competent authorities in the country of origin, the proponent and the affected country. The information to be submitted to the affected country in the notification in accordance with Article 3 of the EIA Convention could include a description of the impacts and indicate which impacts are considered possibly significant. In all cases of likely transboundary impacts, a central consideration will be the likely area of impact relative to the border. The competent authority in the country of origin must decide on the likely area of impact and on the criteria by which it is delimited. Reference should be made to relevant environmental standards and threshold values.

EIA Procedure

If a planned activity is listed in Appendix I to the EIA Convention and this activity is likely to cause a significant adverse transboundary impact, the EIA procedure as indicated in this Convention must be implemented. This procedure starts with a notification by the Party of origin to any Party that it considers an affected Party as early as possible and no later than when informing its own public about the proposed activity.

The wording of Article 3, paragraph 1, of the EIA Convention should, in principle, pose no problem for countries that have introduced a national scoping procedure as part of the EIA procedure, which includes the mandatory participation of the public. These countries must notify affected countries no later than when informing their own public in the scoping procedure.

Article 3 furthermore requires the affected Party to respond to the Party of origin and to indicate whether it intends to participate in the EIA procedure. The purpose of this provision is to help the Party of origin to prepare the EIA documentation. The information shall be furnished "promptly". The EIA Convention sets a standard for the minimum requirements for the content of the EIA documentation to be submitted to the competent authority. When the EIA documentation has been prepared it is transmitted to the competent authority of the Party of origin, which has to transmit the documentation to the affected Party. The documentation is to be used for further consultations between the concerned Parties.

The EIA Convention includes provisions that aim at establishing mechanisms to prevent a dispute about the application or interpretation of the agreement.

Public participation

The role of local/regional democracy in the Convention is most pronounced where the public participation is concerned. The EIA Convention contains three references to public participation. Article 2, paragraph 6, includes a general reference to this issue and Articles 3 and 4 mention more specific parts in the EIA procedure where the public has the right to participate. Article 3, paragraphs 8, of the EIA Convention requires the concerned Parties to ensure that the public of the affected Party in the areas likely to be affected is informed of, and provided with possibilities for making comments on or objections to the proposed activity and for the transmittal of these comments or objections to the competent authority of the Party of origin. Similarly, under Article 4, paragraph 2, the concerned Parties shall arrange for distribution of the EIA documentation to the authorities and the public of the affected Party in the areas likely to be affected and for the submission of comments to the competent authority of the Party of origin. In either case the following questions should be answered:
- Whether the concerned parties are to carry out those tasks jointly; or, if not;

- Which Party is responsible for which tasks in this contents.

In this matter, the rights and obligations of each Party under international law should be borne in mind. For instance, the Party of origin will be able to conduct public hearings in the territory of the affected Party only with the consent of the latter Party. For reasons of expediency and unless the concerned Parties agree otherwise, the tasks should be divided between them, and each Party should fulfil such tasks as fall within its own range of competence. Thus, the Party of origin should according to Article 3, paragraph 8, provide the relevant information on the proposed activity to the affected Party, and receive these comments and objections, unless the comments and objections by the public of the affected Party are to be sent directly to the competent authority.

The affected Party, on the other hand, should be responsible for specifying the arrangements for distributing the information on the proposed activity in its own country (by means of the press, posters, or other medial). And it should collect these comments and objections and forward them to the Party of origin or to its competent authority, unless the comments and objections are to be transmitted directly to the Party of origin or its competent authority.

According to Article 4, paragraph 2, the Party of origin should transmit the EIA documentation to the affected Party and, unless the comments are transmitted directly to the competent authority, receive these comments. The affected Party should specify the arrangements for distributing the documentation to its own authorities and the public, and, unless the comments are to be forwarded directly to the Party of origin or its competent authority, collect these comments and transmit them to the Party of origin or its competent authority. The way in which the tasks mentioned in Article 4, paragraph 2, are fulfilled should conform to the EIA procedure of the Party of origin, as this procedure is relevant to the proposed activity. The information should be made available to the public of the affected Party according to the normal practice of that Party for the distribution of information.

Interim implementation

Meetings of the Signatories to the EIA Convention, open to all ECE member countries, were held in 1991, 1992, 1994, 1995 1996 and 1997. These meetings reviewed the actions taken by Signatories to implement the EIA Convention pending its entry into force, considered legal, administrative and methodological aspects of its practical application, discussed ways and means of strengthening the capability of future Parties, particularly countries with economies in transition, to comply with the obligations under this Convention, and established a work programme. Draft rules of procedures for the Meeting of Parties have been prepared. ECE member countries are making the necessary arrangements to implement the provisions of the EIA Convention at the subregional level, in particular through bilateral and multilateral agreements or other arrangements of relevance to this Convention.

A number of existing bilateral and multilateral agreements are being used to implement the Convention. For example, in Hungary, bilateral agreements on transboundary waters with neighbouring countries relate to activities that might have an adverse impact on the quality and quantity of these waters, and include provisions for the submission of information on such impact. The bilateral agreement between Hungary and Ukraine on environmental cooperation provides for cooperation in the field of EIA in relation to proposed activities that may have an adverse environmental transboundary impact. In Finland, in many cases the relevant cooperation regarding EIA in a transboundary context is done through joint bodies. The mandate of these joint bodies and the means of cooperation are defined in agreements. Finland is a party to such joint bodies or otherwise regularly cooperates with other countries according to several agreements. In some agreements there are provisions on the right of parties to obtain information on a planned project and participate in the relevant planning and permit procedures. Also new agreements are being elaborated for this purpose and other cooperative arrangements are being made. For instance, in the Netherlands, initiatives were taken to start bilateral discussions, with Belgium and Germany. Examples of specific experiences with transboundary EIA include the application of the Convention between Croatia and Hungary, Hungary and Slovakia and The Netherlands and Germany. In Finland, the first notification according to the Convention was sent to Sweden in later autumn 1994. The notification included information on plans to build the Vuotos artificial lake (i.e. large dam and reservoir) in Lapland. It is likely that the building of the reservoir will have an adverse impact on the water quality in the Bothnian Bay, which is also on Swedish territory. According to some other agreements and arrangements Finland and neighbouring countries have cooperated concerning permission procedures for the planned projects.

The EIA Convention is understood to be an innovative international legal instrument for achieving sustainable development and for preventing, reducing and controlling transboundary environmental impacts. The importance of this legal instrument as an efficient tool to promote active, direct and action-oriented international cooperation at the regional level is growing in view of the increasing membership of the ECE.

V. ECE Guidelines on access to environmental information and public participation in environmental decision-making

Triggered by the increasing call for public participation in environmental decision-making, and by the provisions on public information in the Convention on Environmental Impact Assessment in the Transboundary Context, ECE has drafted Guidelines on Access to Environmental Information and Public Participation in Environmental Decision-Making. Contrary to the Convention, the Guidelines are not legally binding. On the other hand, they are applicable in any national context and not focused upon the transboundary issues. In the following, the contents of the Guidelines will be briefly reviewed.

Access to environmental information

° Natural or legal persons should have free access to environmental information without regard to citizenship, nationality or domicile.

° Public authorities (at national, regional and local level) should supply environmental information.

° Public authorities should collect and update information ensuring adequate flow of information

° States should take the necessary steps to make information systems more transparent.

° A request for information may be refused only where it affects:

° Public authorities should respond to a request at latest within 6 weeks.

° Environmental information contained in public registers should be available free of charge.

° States should actively publicize the availability of important national and international documents and legal instruments.

° States should encourage entities whose activities have a significant adverse impact on the environment to report regularly to the public.

Public participation

° States should facilitate public participation in environmental decision-making processes.

° States are encouraged to establish formal and informal consultation processes.

° States should promote public participation in environmental policy-making and decisions that are of particular interest to regional and local communities.

° Consultations should take place early in the decision-making process, at a stage when options are still open and effective public influence can be exerted.

° Authorities should be responsible for the effective training of public officials to improve their understanding of their responsibilities in granting the public access to information and facilitating public participation in decision-making.

° States should introduce measures ensuring that public opinion is taken into account.

° States should ensure public participation by explicit rules governing procedures, such as EIA and the issuing of permits or licenses. Those rules could include:
- the right to be heard
- the right to propose alternatives
- a reasonable time to comment
- the right to a reasoned decision
- right of recourse to administrative/judicial proceedings to appeal decisions.

° States are encouraged to take as a minimum standard the obligations and recommendations on EIA as contained in the Espoo Convention.

Administrative and judicial proceedings

° The public should have access to administrative and judicial proceedings.

° Legal guarantees should ensure that proceedings are fair, open, transparent and equitable.

Implementation of the Guidelines

° Establish a clear regulatory framework providing procedural and institutional guarantees and proper enforcement programmes.

° States should recognize the special role of local and regional governments and delegate the necessary authority to these bodies to ensure implementation.

° States should promote education and training for the general public and specified target groups regarding the methods and techniques of access to information and public participation.

When endorsing the Guidelines during the Third Ministerial Conference “Environment for Europe”, held in Sofia (Bulgaria) in 1995, the Ministers stressed the importance of developing a regional convention on public participation with appropriate involvement of non-governmental organisations. The ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was opened for signature during the Fourth Ministerial Conference “Environment for Europe”, held in Aarhus (Denmark) in 1998. The Working Group in charge of preparing the Convention consulted the CLRAE on the draft text.

This new Convention, together with the relevant provisions in the Convention on Environmental Impact Assessment in the Transboundary Context and other ECE environmental conventions, will form a powerful tool for promoting environmental protection and the development of democracy and civil society at the pan-European level.

VI. The Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters

The Convention was adopted and signed at the fourth Ministerial Conference "Environment for Europe" in Aarhus on 25 June 1998. Thirty-nine countries and the European Community have already signed it.

The Convention - more so than traditional environmental conventions - contains obligations on the part of the public authorities towards the public at large. It is also more intersectoral by nature, as it covers all environmental areas, such as water, air, soil, chemicals, biodiversity, human health and living conditions. This Convention lays down more detailed requirements in terms of openness and transparency in the decision-making process and access to all environmental information, and, in this way, its implementation will strengthen both environmental protection and democracy throughout the ECE region.
After two years of difficult negotiations, the final "Aarhus Convention" was a compromise, hammered out to gain consensus of diverse governments. The process benefited from the unprecedented participation of non-governmental organisations (NGOs), including a pan-European NGO Coalition, the Regional Environmental Center for Central and Eastern Europe (REC) and others, without whom many new initiatives would not have been raised.

The Convention goes well beyond norms existing in international law and national environmental legislation in many countries. Some positive elements include:

· a right-based approach whereby access to information, participation and justice are based on the right to a healthy environment;
· a definition of public authorities extending to all governmental bodies (including non-environmental authorities), as well as to private bodies providing services under the control of public authorities;
· the principle that any member of the public has the right to information without discrimination and without having to state an interest;
· a broad definition of environmental information, including environmental-related human health information;
· a public interest test for virtually all exemptions to access to information;
· a limitation of the commercial confidentiality exemption so that it does not apply to information on emissions relevant to environmental protection;
· early notice and public participation requirements for specific decisions having significant impact on the environment including an obligation to take a due account of the outcome of the public input;
· assurance of expeditious and inexpensive review by an independent body for denial of requests for information or participation;
· the inclusion of EU institutions;
· the requirement on parties to promote the application of the principles of the Convention in international bodies in matters relating to the environment.

Although the Convention is perceived by many as a big step in the right direction, there is a need for further improvement. Several governments and the NGOs sought stronger provisions on some issues, but the divergence of views meant that not everyone could be satisfied. NGOs welcomed the Convention, though they did not hide their criticism over the many weaknesses, loopholes and ambiguities, including:

Although Europe is moving slowly in the direction of more participatory forms of democracy, major problems still exist in each of the main regions. Whereas Central and Eastern European countries tend to have constitutional provisions protecting rights to information, participation and justice, development of specific detailed laws capable of delivering these rights in practice is quite limited. In Western Europe, specific laws setting down concrete procedures are more developed, especially in the field of information, but there are large variations within the region. There is room for improvement in public participation laws and practices in all European countries.

Laws alone are not sufficient to create a truly participatory democracy. Cultural changes are needed, especially in countries with deeply entrenched customs based on official secrecy. Countries with a thriving NGO sector find that public participation is enhanced and better informed.

The Right to Information

· Most European countries now apply the right of access to information to any natural or legal person, without their having to prove an interest and irrespective of nationality, citizenship or domicile. However, a few countries still fail to apply the "any person" principle.
· In countries not having general freedom of information laws, narrow definitions of environmental information can prevent public access to some important environment-related information (e.g. relating to human health, GMOs, energy, economic analysis related to environmental decisionmaking, policies, programs and plans).
· In both East and West, broadly defined exempt categories of information give excessive discretion to public authorities to withhold information without good reason ("state secrets" or "official secrets" in NIS and CEE; "internal communications," "confidential proceedings of public authorities"or "voluntarily supplied information" in the West; commercial confidentiality everywhere). The requirement of a public interest test, to be applied if information is to be withheld, is emerging as a good practice in some countries.
· There is considerable variation in time limits on providing information, ranging from a few days up to two months and more. Failure to respond at all is also a problem.
· Excessive charges for information tend to be more of a problem in Western countries than in CEE or NIS countries, even though paradoxically it tends to be Western countries that have rules to prevent over-charging. In NIS and some CEE countries, the lack of availability of copying equipment can often be a greater problem than high charges.
· Despite the dramatically improved efficiency and reduced costs which can result from providing information in electronic form, none of the countries studied make it obligatory for public authorities to provide information in this form when requested or to put certain types of information on the Internet, though this is emerging as a good practice in a number of countries.
· Countries do not generally require the private sector to provide information directly to the public except in respect of major hazards or pollution incidents. There are considerable differences between countries in the mechanisms whereby the private sector is obliged to supply information to public authorities. The prevailing climate in favor of deregulation of industry has led to over-reliance on a voluntary approach. The introduction of mandatory pollutant release and transfer registers, a powerful tool for gathering information on potential polluters and putting it into the public domain, is at an early stage in Europe when compared for example to the US.

The Right to Participation

· Public participation in the preparation of laws and regulations occurs in the parliamentary phase only to a very limited extent (e.g. through hearings involving representative NGOs). During the executive phase there is slightly more scope for participation, but some of the essential elements are missing (e.g. draft regulations are not publicly available in many countries). A few countries (e.g. Hungary) have quite extensive participation possibilities for NGOs, showing what is possible given the political will.
· Public participation in the preparation of policies, programs and plans is provided for to some extent in most Western and CEE countries, but much less so in the NIS countries. Some interesting models of partnerships between NGOs and public authorities have emerged in some CEE and Western countries, but substantial improvements are needed in most countries.
· A significant number of countries are now using Strategic Environmental Assessment (SEA), involving public participation as a tool in the development of policies, programs and plans, and a few are using it in the context of developing legislation, though overall its use in the ECE region is still quite limited.
· Provisions for public participation in Environmental Impact Assessment (EIA) of projects in NIS countries are extremely inadequate and urgently need upgrading. Western and CEE countries provide for participation at the stage of reviewing EIA documentation, but in virtually all countries of the ECE region there is a lack of public participation in the crucial scoping phase of EIA.
· Public participation in licensing or permitting of specific activities is quite limited in most countries, and especially in the NIS region, with participation often limited to the "affected" public and inadequate mechanisms to ensure that comments are seriously taken into account.
· A small but significant number of countries provide for referenda and the right of legislative initiative as means of involving the public directly as decision makers.

The Right to Justice

· The scope for the public to directly enforce environmental laws through citizen suits is very limited in Europe, though a few countries are taking steps in that direction, e.g. by granting standing to environmental NGOs.
· Restrictive standing rules are one of the major factors limiting the degree of access to justice. The trends are toward more open standing in certain administrative proceedings, especially those relating to access to information, and special standing for NGOs in specific procedures.
· Costs are a significant barrier to access to justice in many countries, especially in the NIS region. In some countries, NGOs and citizens are exempt from paying court fees when taking cases to protect health.
· Difficulty in obtaining injunctive relief is one of the major stumbling blocks to achieving access to justice in environmental matters.
· Low cost accessible administrative or quasi-judicial appeals mechanisms (e.g.the ombudsperson facility found in Scandinavian and other countries) can provide swift and flexible resolution of disputes as well as reducing the burden on the courts.

VII. Some examples of applying the legal obligations mentioned above

Right to be informed and consulted

Legal provisions granting local and regional authorities on the other side of a border the right to be informed about relevant construction do not exist in the Czech Republic and Estonia.

There are various conventions which are binding on Finland that contain provisions for providing information and negotiations concerning the environmental impact of a project. These are the Convention on Environmental Impact Assessment in a Transboundary Context, the Convention on the Protection of the Marine Environment of the Baltic Sea Area, Convention between Finland, Norway, Sweden and Denmark on the Protection of the Environment and various agreements on transboundary waters and on the communication of security matters of nuclear power plants.

In Germany, section 4 of the Federal Spatial Planning Act provides for mutual information and discussion in the case of plans and measures affecting neighbouring states. Foreign local authorities have no legal right to information or participation in spatial planning. However, the regional planning departments in the neighbouring state which will be affected by a given plan are supposed to be associated with the planning process and the subsequent voting. These departments are then free to bring in the relevant local authorities, if they see fit.

Irish planning legislation under Article 31 of the Local Government (Planning and Development) Regulations, 1994, obliges local authorities to give the Minister for the Environment notice of any planning application in respect of development which is likely to have significant effects on the environment in another member state of the European Union. For Ireland, this article in practice relates to the transboundary effects in Northern Ireland of development and vice versa. The consultation in such cases is between the Irish local and public authorities and the Northern Ireland Department for the Environment, the planning authority for that jurisdiction.

Public notification procedures in Ireland ensure that territorial communities and authorities are informed of the existence of an environmental impact assessment which may have transfrontier effects. It is open to any individual or community, regardless of where the person(s) live(s) to comment on the application.

In Italy, local authorities participate in the procedure for transfrontier environmental impact assessments by sending written comments to the relevant authorities.

In Luxembourg, the Convention on the Environmental Impact Assessment in a Transboundary Context, is transposed into the Law of 29 July 1993. Hence the provisions of this Convention on Consultation with Frontier Citizens, and the procedure for admitting complaints from a foreign country on the transfrontier impact of a construction, are to be applied.

In the Netherlands, according to the Spatial Planning Act, communities and authorities on the other side of the border have the right to be informed about or participate in spatial planning matters. In the same way complaints from German or Belgian communities or authorities are allowed and taken account of in the planning procedures on the same basis as those from Dutch communities and authorities.

In Portugal, environmental impact studies are made if it implies a large territorial area. Projects such as communication routes, polluting industries and dams require impact studies. In this case, central administration, the Commission for Regional Co-ordination, local authorities, associations for natural protection and citizens play a significant part in initiating and encouraging exchange of information and debates between the two countries.

In Romania, existing regulations require the assessment of the impact of certain projects on the environment, but studies for the transfrontier impact of such projects are not envisaged. There are no explicit regulations to allow the right to direct information by the territorial authorities and communities with regard to projects having a transfrontier impact. However, there are possibilities to inform the foreign authorities about the activities with a transfrontier impact. This is executed by bilateral committees created within the framework of the signed bilateral conventions on the protection of the environment (e.g. the Romanian and Moldavian joint committees).

In the Slovak Republic, the right to be informed and to take part in planning of the relevant construction (building, equipment or any other activity) is laid out by Act 127/1994 Dg concerning the impact on the environment.

Sweden also implements the provisions of the European Union Directive (85/337/EEC) and of the Espoo Convention where the establishment of consultation procedures are required.

In Switzerland, for hydraulic plants, all bilateral agreements envisage responsibility for consultations and for providing of information. A similar principle was adopted in the federal law concerning regional planning.

In Turkey, no legal provisions exist to inform the local authorities of a neighbouring country on the transfrontier impact of a project.

In the United Kingdom, the Department of the Environment (Northern Ireland) has a reciprocal arrangement with the Republic of Ireland whereby notification is given of any proposed development which is likely to have significant environmental effects.

Right to file a complaint

In Bulgaria, complaints can be received from foreign countries due to several international agreements to which Bulgaria is a party, such as those concerning the ozone layer, transfrontier air pollution, industrial accidents, protection and use of transfrontier water currents and international lakes.

In principle, national courts of the Czech Republic may admit complaints from abroad according to the Act on International Private Law and Procedural Rules (No. 97/1963).

In Germany, the national courts admit appeals from neighbouring states on the same terms as those lodged by nationals. No complaint procedure is available for spatial planning decisions, either from "home" or abroad.

The Convention on Environmental Protection signed by Denmark, Finland, Norway and Sweden in 1974 provides that those exposed to an environmental disturbance from another country have the right to complain to courts or authorities in the country of activity, in principle on the same conditions as domestic complaints.

In Romania, legal procedures through which complaints from foreign states concerning transfrontier impact due to specific construction, are not yet in force.

In Switzerland, there is no legal arrangement to allow complaints from a foreign country on issues concerning the environmental impact of certain constructions. However, according to the Swiss law, this right is not excluded.

Transfrontier impact assessments and studies

In Austria, transfrontier studies on the economic, spatial and environmental impact of projects are rare. Recently, studies were conducted concerning transfrontier parks and power stations.

In Bulgaria, transfrontier air pollution studies were made, particularly in the city of Rousse area. Some of the studies are made by regional authorities or by regional inspectorates at the Ministry of Environment.

The county of Pärnu (Estonia) is intending to initiate an impact study concerning the planned harbour construction in Ainazhi (Latvia). It is intended to include: environmental impact assessment, socio-economic impact assessment, analysis of possibilities for participation in the free-trade zone.

An intergovernmental commission was set up between Italy and France in 1996 which is charged with the preparations for the construction of a high-speed train link between Lyons and Turin.

In Germany, participation in a project spanning the Brandenburg border is being planned by the supreme regional planning authority in agreement with its counterpart in the neighbouring country, under Article 4 of the Decree on the Execution of Spatial Planning Procedures. This means that neighbouring Polish voivodships will be involved in preparing and executing spatial planning procedures. This has already happened in the projects concerning a commercial park, a transfrontier ring road and in the creation of a Euro-transport and trade centre. German road-building authorities in the Land Brandenburg also select their projects in close co-operation with the Polish road-building departments. This ensures that the Polish and German bodies conduct their environmental impact studies simultaneously. The German road-building authorities extend their impact studies regarding new roads with new border crossings up to the border.

Latvia signed an agreement with Estonia on the Environmental Impact Assessment in a Transboundary Context on 14 March 1997. This agreement covers activities in the area within fifteen kilometres of the common border. Some activities include: thermal power stations, processing and transformation of asbestos, industrial installations, construction of motorways and airports, waste disposal installations, water regulation projects in certain rivers, drainage of wetlands, and extraction of water and mineral resources.
An agreement has been signed by Lithuania, Latvia and Belarus for the monitoring of the Ignalina nuclear power plant. Other transfrontier impact studies are to be included in the transfrontier regional development projects.

VIII. The Franco-German Commission and the German-Swiss Commission for questions relating to the safety of nuclear installations in close proximity to frontiers

Baden-Württemberg, a Land situated in south-western Germany, borders on both France and Switzerland. The French atomic power station Fessenheim, which has two pressurised water reactors with a net electrical output of 880 MW, lies directly on the border on the French side of the Rhine. On the Swiss side, there are several facilities close to the border in an area of about 10 kms diameter, namely the atomic power station Leibstadt, on the Rhine, with a net electrical output of 1030 MW, the two older blocks of the Beznau atomic power station, on the river Aare, with a net electrical output of 350 MW each, the Paul Scherrer Institute (a nuclear research centre) in Würenlingen and the central temporary storage facility for all types of radioactive waste, also located in Würenlingen.

In view of the considerable potential danger inherent in atomic power stations and the extreme sensitivity of the population towards nuclear installations, the Land of Baden-Württemberg thus has a vital interest in properly functioning cross-border co-operation. This is an indispensable precondition for it being able, on the one hand, effectively to protect its interests with regard to nuclear safety and, on the other hand, to ensure that the public has the necessary factual information to which people living near the border are entitled.

The Franco-German Commission for questions relating to the safety of atomic power installations is responsible for co-operation with France.

As a result of the construction of the Fessenheim atomic power station at the beginning of the 70s and following bilateral contacts between the authorities that began as early as 1972, this commission was set up as a fixed institution under a treaty signed in 1976 by the German Interior Minister and the French Minister for Industry and Research.

The Commission, which deals with all issues of mutual interest to do with nuclear safety, radiation protection and emergency planning consists of:

* on the French side, the Department for the Safety of Nuclear Installations (DSIN) at the French Interior Ministry and the Regional Directorate for Industry, Research and the Environment (Direction Régionale de l'Industrie, de la Recherche et de l'Environnement);

* on the German side, the responsible department of the Federal Ministry for the Environment, Conservation and Reactor Safety and the authorities of the Länder Baden-Württemberg, Rhineland-Palatinate and the Saarland responsible under nuclear power legislation; and

* experts consulted by both sides.
There are currently three working groups that have been set up for the in-depth discussion of issues to be considered:

* Working group 1 on the safety of pressurised water reactors,
in which questions relating to the safety of pressurised water reactors at nuclear plants are discussed and information is exchanged on incidents at, and experience gained in the operation of, the reference group of atomic power stations, namely the Fessenhein (F) and Neckarwestheim Block 1 900 MW installations (D) and the Cattenom (F) and Philippsburg Block 2 (D) 1300 MW installations.

* Working group 2 on emergency planning,
which deals with questions to do with cross-border emergency plans and communications, as well as joint disaster prevention exercises.

* Working group 3 on radiation protection,
which mainly deals with questions to do with discharges of radioactive substances into the environment and the monitoring of radio-ecological pollution in the surrounding area on both sides of the border.

An important aim of this bilateral co-operation is to give the neighbouring state the possibility of safeguarding its legitimate interests by being able to obtain a sufficiently clear picture of whether the necessary safety precautions have been taken in respect of a nuclear facility close to the border and of being able to make sure that the rules concerning radiation protection that apply in its territory are complied with both under normal operation and in the hypothetical case of an accident.

With this aim in mind, the Franco-German Commission has, in particular, produced comparisons between the 900 MW installations at Fessenhein (F) and Neckarwestheim Block 1 (D) and the 1300 MW installations at Cattenom (F) and Philippsburg Block 2 (D) and drawn up and published joint reports for the information of the population concerned.

In addition, in order to update this data on safety measures after a long period of operation, comparisons have been or are being made of major retrofitting work carried out at the reference plants in both states since they were first commissioned.

In the area of radiation protection, just to mention examples, the plans implemented in both states to limit and monitor discharges of radioactive substances into the environment, the computer models on which the calculations of the spread of radiation are based and the programmes for the radio-ecological monitoring of air pollution in the surrounding area are the subjects of joint comparative reports.

In addition to these activities, an important element of cross-border co-operation is the exchange of up-to-date information on any incidents that have occurred in the facilities close to the border. This is governed by a special bilateral agreement between France and Germany. Here it is very important for the authorities of the neighbouring state responsible for safety or public relations to be informed without delay of any malfunction that has occurred and of how it is assessed so that they can, if necessary, respond quickly and both provide the public with expert information and effectively counter any unjustified fears or unfounded speculation.

In order also to have undisturbed cross-border communication links available in the event of a genuine malfunction, special permanently connected telephone lines have been set up between the French authority (the Prefecture in Colmar) and the German authority (the Regierungspräsidium in Freiburg) responsible for public relations and disaster prevention.

The German-Swiss Commission for the Safety of Nuclear Installations is responsible for similar cross-border co-operation with Switzerland.

This commission was set up in 1983 in implementation of the agreement of 10 August 1982 between the Federal Republic of Germany and the Government of the Swiss Confederation concerning the construction and operation of nuclear installations in close proximity to frontiers, and replaced the bilateral agreement between the national authorities that had existed since the early 70s.

The Swiss members of the commission are the Federal Office for the Energy Industry (Bundesamt für Energiewirtschaft), the latter's Division for the Security of Nuclear Installations and representatives of the Swiss cantons involved. The German side is represented by the Federal Ministry for the Environment, Conservation and Reactor Safety and the nuclear energy authorities of the Land of Baden-Württemberg. Both sides also consult experts.

There are currently four working groups for the detailed discussion of the issues involved:

* Working group 1 on the safety of installations,
which discusses all technical issues of mutual interest with regard to the safety of nuclear installations.

* Working group 2 on emergency planning,
which deals with questions to do with cross-border emergency planning, the co-ordination of cross-border emergency exercises, and communications.

* Working group 3 on radiation protection,
which is responsible for the exchange of information on discharges of, and pollution caused by, radioactive substances, for the relevant monitoring programmes and for all questions of mutual interest with regard to radiation protection.

* Working group 4 on the disposal of radioactive waste,
which engages in the relevant activities in this field.

Each new procedure for granting a permit under nuclear power legislation to build or operate a large plant in Switzerland, such as an atomic power station or a temporary storage facility for radioactive waste, is accompanied by the drawing up of a report on the essential aspects of nuclear safety and radiation protection.

For this purpose the Swiss authorities make the most important documents relating to the project available early on, in accordance with the bilateral agreement mentioned at the beginning. These initially consist of the request for planning permission together with the safety report and any accompanying documents and later also, when it is available, the safety report of the Division for the Security of Nuclear Installations.

The commission discusses the project on the basis of this and any supplementary information, including, inter alia, a comparison of the safety standards and relevant rules relating to radiation protection that apply to such a project in both Switzerland and Germany. An examination is carried out of whether the conclusions drawn by the Swiss authorities in their report on the project can also be accepted by the German side. In particular, the latter also examines whether the radiological effects of the installation do not infringe the German rules relating to radiation protection both with regard to normal operation and in the hypothetical case of an accident.

The commission publishes the results of its deliberations and examinations in the form of a report informing the public concerned on both sides of the border. For example, the most recent reports have been on

· the project of the temporary storage facility for all types of radioactive waste at the Beznau atomic power station (Report No. 91/1)

· the safety and radiological impact of the project to establish the Swiss central temporary storage facility for all types of radioactive waste in Würenlingen (Reports Nos. 93/1 and 96/1)

· the extension by 10 years of the operation permit for the Beznau Block 2 atomic power station (Report No. 94/2) and

· the planned increase in the output of the Leibstadt atomic power station by 14.7% (Report No. 96/2)

The particularly important question of the exchange of up-to-date information on any incidents that have occurred at facilities close to the border is also the subject of a bilateral agreement governed by the provisions of international law. Moreover, special permanently connected telephone lines have been set up between the Swiss and German authorities responsible (the Division for the Security of Nuclear Installations, Zurich National Alarm Headquarters, and the Freiburg Regierungspräsidium respectively) in order to ensure that an undisturbed link is available if necessary.

In addition, the area around the French atomic power station at Fessenheim and the Swiss atomic power station at Leibstadt, both of which are located on the border, is continuously monitored on the German side by 13 and 14 radioactivity measuring units respectively, all arranged on the German side in a semicircle around the plants. These units are connected to the Nuclear Reactor Remote Monitoring System of the Land of Baden-Württemberg and automatically transmit the data measured if a certain low threshold value is exceeded.

To sum up, it has to be said that the experience gained with both the Franco-German and German-Swiss commission for the safety of atomic power facilities has been excellent. The very productive exchange of information is characterised by mutual openness in an atmosphere of trust and by dedicated co-operation. In view of the potential danger inherent in nuclear installations, if a serious accident occurs, any effects of which will clearly not stop at the border, properly functioning cross-border co-operation will be essential for the effective protection of the neighbouring country's legitimate interests.