Participatory and Procedural Rights in Environmental Matters

A very important type of environmental information relates to emissions into the environment. The gathering of this type of information was the subject of the so-called EPER Decision (European Pollutant Emission Register).

The EU is a signatory, meaning that it had to implement the UNECE Protocol on Pollutant Release and Transfer Registers to the Aarhus Convention. This has taken in the form of Regulation 166/2006, the Pollutant Release and Transfer Register (PRTR) Regulation.

According to Article 5(1) of the Regulation 166/2006 the reporting obligation applies to all releases from installations mentioned in Annex I of pollutants mentioned in Annex II for which a certain threshold is exceeded. The list in Annex I is nearly identical to that in Annex I to the Directive 2008/1/EC concerning integrated pollution prevention and control (IPPC Directive). In this regard the PRTR Regulation hardly goes beyond the EPER Decision it builds upon. In addition to true releases, transfers of hazardous waste are also subjecting to a reporting obligation.

The information collected by the national authorities must be reported to the Commission on the basis of Article 7(2) of the Regulation 166/2006. With the assistance of the European Environment Agency, the Commission will then incorporate the information in a European PRTR (Article 5(3) of the Regulation 166/2006). The PRTR will also include information on releases from diffuse sources, but only insofar as this information has already been reported by the Member States (Article 8 of the Regulation 166/2006). The PRTR shall be freely accessible through the internet (Article 10 of the Regulation 166/2006) and possible exceptions to the free access to the information contained therein or in the Member State report must comply with Article 4 of Directive 2003/4/EC (Article 11 of the Regulation 166/2006).

The PRTR Regulation allows for confidentiality of information on releases. In view of the fact that emissions-related information must always be disclosed, this leads to the question of what the exact relation is between the ‘release’ within the meaning of Article 2(10) of the PRTR Regulation and ‘emissions’ as referred to in Article 4(2) of Directive 2003/4/EC. It would seem that the European legislature considers that emissions are not to be equated with, for example, discharging. It seems doubtful whether this narrow concept of emission is plausible.

The regulation provides for public participation (Article 12 of the Regulation 166/2006) as well as access to justice (Article 13 of the Regulation 166/2006). Article 15 of the Regulation 166/2006 may just be of greatest practical importance, as it can be construed as containing an obligation on the part of the Member States and the Commission edit the technical information contained in the PRTR in order to make it more accessible.