netherlands-en
Dieses Dokument ist Teil der Anfrage „Dokumente zum Überprüfungsverfahren nach Art. 9 2003/4/EG“
Question 5.3 Have any steps been taken to ensure the accessibility of a list of criteria, as
mentioned under Article 4(3), on the basis of which the authority concerned may decide
how to handle requests?
Legal perspective
As far as is known, there is no list of criteria as mentioned under Article 4(3) of the Directive
at national level in the Netherlands. According to this Article, where a Member State provides
for exceptions, it may draw up a publicly accessible list of criteria on the basis of which the
authority concerned can decide how to handle requests.
The Explanatory Memorandum to the Directive Implementation Act states that
implementation under a legal instrument is not necessary and that the option provided for in
Article 4(3) of the Directive is implemented by means of practical arrangements such as
making manuals available. 53
Empirical perspective
No observations.
Question 5.4 Do you have any other observations relating to the practical application of
Article 4?
Legal perspective
Integrating specific provisions on environmental information into the general legislation on
public access to government information has complicated the accessibility of the legal text.
This has led in particular to making exceptions to exceptions and to an inconvenient
arrangement of the text as a whole.
Empirical perspective
No observations.
53
Parliamentary Papers II 2004/05, 29 877, No 3, p. 18.
28
6. Charges (Article 5 of the Directive)
Question 6.1 According to Article 5(2) of the Directive, public authorities may make a
charge for supplying environmental information. Have public authorities fixed charges?
Please give examples of what measures public authorities have implemented on
charging.
Legal perspective
According to Article 5(2) of the Directive, public authorities may make a charge for
supplying any environmental information, but such a charge should be reasonable.
Concerning this reasonableness requirement, recital 18 to the Directive states that in principle
the charge may not exceed actual costs of producing the material in question. In particular
cases, according to the recital, a market-based charge is considered to be reasonable. The
Directive also requires that where charges are made, a schedule of charges and the conditions
on which a charge may be levied or waived must be published in advance (Article 5(3)).
These requirements under the Directive concerning the reasonableness of the charge and on
the publication of rates in advance are not implemented as such in the national legislation. For
the central government, these requirements are met in the Decree on charges for public access
to government information (Besluit tarieven openbaarheid van bestuur).
Pursuant to Article 12 of the Wob, charges are fixed in the Decree on charges for public access
to government information (below: the Decree) for supplying copies of written documents and
for producing excerpts or summaries. The Decree is applicable to the supplying of information
on request by central government bodies. 54
The Decree stipulates that a charge may be made for supplying copies of written documents,
which may not exceed the cost price (Article 2(1) and (3) of the Decree). The following charges
apply (Article 2(2) of the Decree):
- fewer than six copies: free of charge;
- for 6-13 copies: EUR 4.50;
- for 14 or more copies: EUR 0.35 per copy.
A charge may be made for supplying an excerpt from a document or a summary of the content;
this amounts to EUR 2.25 per page of the excerpt or summary (Article 3 of the Decree).
The Wob does not contain any regulations concerning charges by the lower tiers of
government. Article 12 of the Wob also does not confer powers to do so. In legal history, it is
expressly stipulated that it is not necessary for the Government to be given the power to
regulate municipal charges, for example.55
Article 19.1b of the Environmental Management Act (Wet milieubeheer – Wm) provides the
following for allowing perusal of a decision and supplying a copy of it specifically for
environmental information. The competent authority allows any person so wishing to peruse
the decisions referred to there after the expiry of the time limit for appeal and before the
decision is cancelled. A charge not exceeding the cost price may be made for supplying a
copy of the decision. This regulation relates to decisions under the Acts referred to in Article
13.1 of the Wm, to which the uniform public access preparation procedure under the Awb
(section 3.4) is applicable.56 Where possible, this also applies in respect of the accompanying
54
Bulletin of Acts and Decrees 1993, 112.
55
Explanatory Memorandum to the Wiebenga/Mateman amendment, Parliamentary Papers II 1988/89,
1985g, No 18. Here it is stated that the Government can already oppose an excessive charge in other
ways.
56
Article 13.1(1) of the Wm, according to Article 13.1(2), refers to the following Acts: Mining Act
(Mijnbouwwet), Animal Health and Welfare Act (Gezondheids- en welzijnswet voor dieren) (Chapter
VIIa), Nuclear Energy Act (Kernenergiewet), Noise Pollution Act (Wet geluidhinder), Groundwater
Act (Grondwaterwet), Air Pollution Act (Wet inzake de luchtverontreiniging), Surface Water Pollution
Act (Wet verontreiniging oppervlaktewateren), Sea Water Pollution Act (Wet verontreiniging
29
documents which could be inspected at the time of the drawing up of the decision, according
to Article 19.1b of the Wm. The Awb provides that the administrative body may make a
charge for an amount not exceeding cost price for supplying a copy of the documents relating
to a draft Decree made available for inspection (Article 3:11(3) of the Awb). For information
other than that mentioned here, there is no national legislation for lower tiers of government
and other bodies under the Wob. This applies for both the requirement to fix charges
(reasonableness requirement) and the publication in advance of the schedule of charges used,
as required under Article 5(3) of the Directive. 57 Citizens’ rights in this respect are not
therefore clear in advance. As a rule, the scale of charges will be regulated by the lower tiers
of government (see under empirical perspective), such as by municipalities in a municipal by-
law, but there is no general arrangement for the obligation.
In its letter to members 04/139, the Association of Dutch Municipalities (Vereniging
Nederlandse Gemeenten – VNG) advises regulating the charge for supplying environmental
information in the municipal by-law. The VNG schedule of administrative charges contains no
separate sections concerning environmental information. 58 Some VNG information is not very
accessible for non-members of this organisation. 59 This means that the citizens’ rights granted
by the Directive, i.e. obtaining information at a reasonable charge and the charge being known in
advance, are difficult to know in the case of a municipality which does not regulate this at all or
only incorrectly.
On comparing the Directive with the Aarhus Convention as regards the charges, it is striking
that the Directive refers to ‘publishing’ a schedule of charges and circumstances in which
they are levied or waived, whilst under the Convention public authorities ‘shall make
available to applicants a schedule of charges’ (Article 4(8)). The Convention therefore
requires an active move towards persons seeking information here. On this point, the
Directive seems not to implement the Convention in full and will have to be interpreted in
accordance with the Convention.
Conclusion
The requirements laid down in the Directive that charges must be reasonable and that a
schedule of charges must be published in advance are not transposed as such in national
legislation. For the national government, the system of charges is regulated in the Decree on
charges for public access to government information (Besluit tarieven openbaarheid van
bestuur). At the lower tiers of government it is less clear in advance for citizens what they
may expect.
zeewater), Soil Protection Act (Wet bodembescherming), Earth Removal Act (Ontgrondingenwet),
Antarctica Conservation Act (Wet bescherming Antarctica).
57
According to the assistance on the Infomil website, the Dutch legislation on the system of charges is
in conformity with the Directive, in spite of the fact that the provision in the Directive is not to be
found verbatim in the Dutch legislation (paragraph 5.2 system of charges). The basis for this
conclusion is not stated.
58
The Handreiking kostentoerekening leges en tarieven (Deloitte Consultants, on behalf of the
Ministry of the Interior, July 2007) does not deal with the allocation of costs for the disclosure of
environmental information.
59
The VNG (Association of Dutch Municipalities) information phone line provides information to
members only (i.e. the municipalities) (telephone communication VNG information centre 10.2.2009).
The database of standard regulations is accessible to subscribers only.
30
In respect of the supply of information on charges, the Aarhus Convention lays down more
far-reaching requirements than the Directive. Tightening-up or clarification of the Directive
seems desirable in this respect. An interpretation of the Directive in line with the Convention
entails public authorities not only ‘publishing’ but also ‘making available’ to applicants a
schedule of charges together with any particularities.
Empirical perspective
It appeared from the empirical research that the extent to which authorities make charges for
supplying environmental information varies. As shown in Table 6, the ministries questioned
supply the information free of charge, but it is customary to a greater or lesser extent at the
other authorities to make a charge for the services provided. This is the least applicable for the
water boards and the most applicable for the smaller municipalities. The arrangements for
charges are disclosed in most cases, for example in a municipal by-law.
Table 6. Charge and arrangements for charging
Type of authority Charge Charge not Charge never Disclosure of
always made always made made (%) schedule of charges
(%) (%) (%) 60
Ministries (n=3) 0 0 100 n.a.
Water boards 0 27 73 100
(n=15)
Provinces (n=9) 0 44 56 75
Municipalities 5 60 35 85
(n=40)
> 100 000 (n=12) 0 50 50 100
< 100 000 (n=28) 7 64 29 80
Total authorities 3 48 49 85
(n=67)
60
N values are adapted to the number of authorities making a charge.
31
7. Access to justice (Article 6 of the Directive)
Question 7.1 What kind of review procedure is provided for an applicant in cases
mentioned in Article 6(1)? Please specify the appointed authority or independent body.
Article 6(1) of the Directive requires Member States to ensure that an applicant who considers
that his request for information has been ignored, wrongfully refused (whether in full or in part),
inadequately answered or otherwise not dealt with in accordance with the provisions of Articles
3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority
concerned can be reconsidered by that or another public authority or reviewed administratively
by an independent and impartial body established by law. Any such procedure shall be
expeditious and either free of charge or inexpensive.
Legal perspective
According to Article 3(1) of the Wob, any person may submit a request for information. This
means that an applicant for information is an interested party 61 and can lodge an objection
against a Wob decision and subsequently appeal against a decision on an objection.
Objection:
Under Article 7:1 of the Awb, the person assigned the right to appeal against a decision to an
administrative court can lodge a notice of objection with the administrative body which has
taken the decision. The written refusal to take a decision and failure to take a decision in time
are equated with taking a decision (Article 6:2 of the Awb). If the objection is admissible, the
administrative body reviews the decision (Article 7:11 of the Awb). In principle, this takes
place within six weeks of receiving the notice of objection (Article 7:10 of the Awb).
No costs are payable for processing the objection. Costs reasonably incurred by an interested
party are met by the administrative body only if it is a matter of revocation of the decision on
account of an irregularity attributable to the administrative body (Article 7:15 of the Awb).
Empirical perspective
No observations.
Question 7.2 What kind of procedure is provided for an applicant in cases mentioned in
Article 6(2)? Please specify the institutions entitled to review.
Legal perspective
Appeal:
According to Article 8:1 of the Awb, 62 following the objection procedure, an interested party
may lodge an appeal against a decision with the court. On the basis of this, the applicant
seeking information will be able to lodge an appeal against the decision on the objection.
61
An interested party refers to a person whose interests are directly affected by a decision (Article
1:2(1) of the Awb).
62
In conjunction with Article 43 of the Judiciary (Organisation) Act (Wet op de rechterlijke
organisatie).
32
In the general system of administrative procedure in the Netherlands, an appeal can be made
against the ruling of the court to the Administrative Law Division of the Council of State. 63
A registry fee is charged on lodging notice of appeal. At the beginning of 2008, this amounted
to EUR 145 for lodging an appeal by a natural person and EUR 288 if the appeal is lodged
other than by a natural person. 64
If the appeal is declared to be well-founded, the person lodging the appeal is refunded the
registry fee he has paid (Article 8:74 of the Awb).
Empirical perspective
No observations.
Question 7.3 Is the decision issued by the institution referred to in question 7.2 final? If
not, please specify what kind of procedures could follow this one to get a final decision.
Legal perspective
The ruling by the Administrative Law Division of the Council of State is final.
Empirical perspective
No observations.
Question 7.4 Do you have any other observations relating to the practical application of
Article 6?
Legal perspective
During the appeal proceedings concerning disclosure, the documents not made accessible to
the public are not available for inspection. Normally, the judge may rule only on the basis of
documents known to both parties, unless a party gives consent to the ruling being pronounced
on the basis of a document which is not available for inspection. A specific feature of a Wob
procedure is that, according to the case-law of the Division, this consent must be given. In the
case of this consent not being given, the Division is deprived of the possibility to examine the
document in question, according to the established case-law of the Division.
Conclusion on access to justice
The Awb objection and appeal proceedings provide for a procedure for the person who
requests information in which he can lodge an objection against a decision on his/her request
for information and can lodge an appeal. This meets the requirement of Article 6 of the
Directive to provide access to justice.
Empirical perspective
No observations.
63
On the basis of Article 8:6(1) of the Awb, this is only not possible if an appeal can or could have
been lodged with another administrative court.
64
Article 8:41 of the Awb and Article 39 of the Council of State Act (Wet op de Raad van State).
33
8. Dissemination of environmental information (Article 7 of the Directive)
Question 8.1 Which measures have been taken to ensure that public authorities organise
the environmental information, with a view to its active and systematic dissemination to
the public, in particular by means of computer telecommunications and/or electronic
technology?
Legal perspective
o Introduction
General measures in the field of digitisation of government information are of very great
importance for environmental information too. 65A great deal of government information is to
be found, including all national laws and regulations and some of the laws and regulations of
the lower tiers, at www.overheid.nl. The official publications from the Bulletin of Acts and
Decrees (Staatsblad) and the Government Gazette (Staatscourant) are published at
www.bekendmaking.nl. Both websites are updated daily. This and other general measures are
not examined here.
In the description below, the emphasis is placed on measures which concern the environment
directly and not so much on the adjoining legal areas of health and neighbourhood which
under certain conditions also may fall under the concept of environmental information. The
description mainly relates to legislative measures, but also to a number of policy or
management measures. 66
A distinction is drawn between the following aspects:
- legal environmental information and disclosure obligations;
- reporting obligations for authorities and enterprises;
- making information accessible, including via registers and databases.
o Statutory environmental, information and disclosure obligations
The Wob requires an administrative body to actively provide information on policy, including
its preparation and implementation, as soon as this is in the interests of good, democratic
decision-making (Article 8(1)). This information must be provided in a comprehensible form,
in such a way that interested parties and citizens expressing an interest are reached as far as
possible and at such points in time that they can make their views known in time to the
administrative body (Article 8(2)). In addition, Article 9 of the Wob requires the
administrative body to ensure the disclosure of policy recommendations from unofficial
advisory committees.67 In so far as policy is laid down in policy guidelines within the
meaning of the Awb, Article 1:3(4) of the Awb requires this to be established by decree so
disclosure is required under Article 3:42 of the Awb before this policy can enter into force.
The arrangements for the disclosure of environmental information in the Wm contain some
obligations for active dissemination of information. Article 19.1c of the Wm requires the
administrative body to provide information of its own accord on the public responsibilities
and functions it has and the public services it provides with regard to the environment. Article
19.2 contains an obligation for the town council to provide information on measures in a
suitable manner if an event occurs giving rise to a direct threat to life or health, the
65
See, for example, the Electronic Government Action Programme, Parliamentary Papers 26 387
(www.overheid.nl under official publications). This programme is based inter alia on the
recommendations of the Wallage Commission, which advocate arriving at a central register, accessible
to all, in which all official government documents are entered (Parliamentary Papers II 2001/02,
26 387, No 12).
66
The description gives an idea of the measures, but does not claim to be exhaustive.
67
Such as, for example, the recommendations of the Technical Committee on Soil Protection
(Technische Commissie Bodembescherming).
34
environment or to large-scale material interests. This obligation applies in so far as the
information does not already have to be provided on the basis of Article 10b of the Disasters
and Serious Accidents Act (Wet rampen en zware ongevallen) or on the basis of another legal
provision.
The publication of instruments containing generally binding provisions, such as national,
provincial and municipal legislation, is regulated in the Publication Act (Bekendmakingswet),
inter alia. The electronic publication of these instruments is also regulated by law. 68
Publication is a condition for entry into force of these regulations. 69
Articles 3:12 and 3:42 of the Awb contain publication obligations in connection with the
provision of information on (draft) decrees. In this connection, the case-law of the
Administrative Law Division of the Council of State on notification of draft decrees which
are not directed to specific addressees merits attention.
Under Article 3:12 of the Awb, as interpreted by the Administrative Law Division of the
Council of State, the competent authority has a certain freedom of choice of the method of
notification of a (draft) decree. It must be a suitable method of notification. A suitable method of
notification can also include notification only in free local papers, according to the Division. 70
The Division rules in another case that the competent authority is not bound to mention a draft
decree on its own website. 71
This notification practice in accordance with the above-mentioned interpretation by the
Division only in free local papers may lead to interested parties – and especially organisations
not bound by a specific location – not being reached at all or not in time by this method of
notification. The question therefore arises of whether these provisions, as interpreted by the
Division, are in conformity with the ‘Aarhus obligations’ and with IPPC obligations
concerning public participation in decision-making and with Article 8 of the Wob on
provision of information by the administrative body of its own accord. In view of the
emphasis placed by the Aarhus legislation on electronic publication and on the involvement
of the public at an early stage in decision-making, the lack of electronic publication of draft
decrees via the administrative body’s own website seems to be contrary to the system under
the Aarhus legislation.
68
Electronic Publication Act (Wet elektronische bekendmaking), Bulletin of Acts and Decrees 2008,
51. The entry into force of this Act is scheduled for 1 April 2009. Texts and explanatory memorandums
of laws and regulations are available to all via www.overheid.nl.
69
Recommendations of the Council of State on legislative proposals and such like are published on the
basis of Articles 25a-25b of the Council of State Act (Wet op de Raad van State).
70
Administrative Law Division of the Council of State 9 April 2008, M and R 2009/8, No 79 with note
by VL.
71
See, for example, Administrative Law Division of the Council of State 14 August 2008, No
200802429/3 (Stichting Natuur en Milieu v Provincial Executive of the Province of North Brabant).
35
o Reporting commitments
The Wm contains various reporting commitments for authorities concerning the state of the
environment. This subject is dealt with under the reply to question 8.3. This section deals with
the reporting and registration commitments for enterprises and authorities underlying these
reports, on the basis of which authorities report at national and EU levels. 72
Environmental reporting
Since 1999, on the basis of Chapter 12 of the Wm, 73 integration and streamlining of reporting
of environmental data by large enterprises (about 250) to the government have taken place. A
large number of statutory and extra-legal reports, which were previously made in the context
of the permit, for example, were hereby integrated into the annual environmental report
(MJV). The annual environmental report is currently available in electronic form (e-MJV).
The enterprises concerned supply the reports to the competent authorities under the Wm and
Surface Waters Pollution Act (Wet verontreiniging oppervlaktewater – Wvo). After validation
by these administrative bodies, the data are transferred to the National Institute for Public
Health and the Environment (RIVM)/Netherlands Environmental Assessment Agency
(Planbureau voor de leefomgeving) database. The principal is the Minister for VROM; the
‘Facilitaire Organisatie Industrie’ has executive/information tasks, including the running of a
helpdesk (www.fo-industrie.nl).
The annual environmental report can be viewed by anyone free of charge and is obtainable at
cost price (Article 12.10 of the Wm). The ‘public report’ previously derived from the annual
environmental report, which was also regulated by law, was abolished in 2005.
The annual environmental reports are used as input for various EU reporting commitments
with regard to emissions.
PRTR reporting and PRTR
In 2008, the Act implementing the EC PRTR Regulation and PRTR Protocol and the
accompanying implementing legislation entered into force.74 Articles 12.18-12.30 of the Wm
contain implementing provisions for the PRTR Regulation.75 The PRTR is a public register
with emissions data (for about 90 pollutants) and off-site waste transfers by certain enterprises
and data on diffuse sources. The reporting duty applies when certain threshold values for the
pollutants are exceeded. This prospectively affects about 1200 industrial enterprises (IPPC
enterprises) and about 500 intensive livestock farms in the Netherlands.76 The enterprises
report to the competent authorities.77 After validation, the latter forward the data to the
Minister for VROM, who keeps the register. Under the PRTR, the validation by the
competent authorities (provinces, water management departments, water boards and
municipalities) has become a statutory duty (checking that data are on time, complete, reliable
and consistent).
The aforementioned annual environmental report will be integrated into the PRTR report. The
processing of the Bill in which this is regulated has been completed. 78 At present, both
systems operate in parallel, with a coordinating system so that information has to be supplied
only once. There are differences between the two systems in terms of scope (number of
establishments) and content (number of pollutants on which reports are made).
72
The environmental impact reporting obligations are not dealt with (chapter 7 of the Wm).
73
Article 12.1-12.10 of the Wm. Also see the Environmental Reporting Decree (Besluit
milieuverslaglegging), Bulletin of Acts and 1998, 665, last amended Bulletin of Acts and Decrees
2008, 30.
74
Bulletin of Acts and Decrees 2008, 28. PRTR Implementing Decree: Bulletin of Acts and Decrees
2008, 30; Government Gazette 2008, 46.
75
PRTR: pollutant release and transfer register.
76
Parliamentary Papers II 2007/08, 31 592, No 3, p. 11.
77
These are the competent authorities under the Wm and Wvo and, for the intensive livestock farms,
the Minister for Agriculture, Nature and Food Quality.
78
Parliamentary Papers I, 2008/09, 31 592, A.
36
Public safety register
Since 2007, there is a national hazardous substances risk situations register, which records
risk situations involving hazardous substances (Article 12.12 of the Wm). Article 12.13 of the
Wm provides for a duty for competent authorities to register high-risk situations involving
hazardous substances (in facilities, transport itineraries and pipes). The RIVM keeps the risk
register. The Public Safety Registration Decree (Registratiebesluit Externe veiligheid) 79
establishes which competent authority must report which information. There is a risk
calculation helpdesk, run by the Ministry of VROM and DCMR, to carry out the risk
calculations.
The risk data are used in the context of spatial planning. The register also has a function for
disaster response and for municipal risk inventories with a view to disasters. The register data
are made accessible via provincial risk maps 80 (www.risicokaart.nl). Rules can be laid down
by general administrative regulation with regard to charges for copies of data from the
register. This charge does not exceed the costs (Article 12.17 of the Wm).
Protected areas registers
Registers are kept for protected areas in accordance with the requirements of the Water
Framework Directive. The Ministers for Transport and Water Management and Agriculture,
Nature and Food Quality, the provincial and municipal executives and the quality and
quantity managers are responsible for this (Article 12.10 of the Wm).
o Measures for organising information, databases and websites and making them
accessible
Emission registration project
An important organisational project from the environmental point of view is the Emission
registration project, which has existed since 1974. This establishes the emissions to soil,
water and air for about 350 substances/groups of substances. The registration includes data
collection, data processing, registration and reporting. The data are stored per emission source
and per location in a central database. The data include both point sources and diffuse
sources. The principals are the Ministers for Housing, Regional Planning and Environment
and Transport and Water Management. The Netherlands Environmental Assessment Agency
runs it. The data are used for national and international reports. The emission data are
available to the public via the website www.emissieregistratie.nl.
Apart from via the websites of ministries (for example www.vrom.nl), planning offices
(www.planbureauvoordeleefomgeving.nl) and research institutes (for example www.rivm.nl),
there are specific websites with the objective of making environmental information
accessible. An example is www.monitoringportaal.nl, in which information on monitoring is
made easy to find. 81 An environmental and nature status report is published each year,
previously by the Milieu- en natuurplanbureau (MNP), the predecessor of the Planbureau
voor de leefomgeving (PBL). The PBL, the Central Statistical Office and the WUR 82 compile
facts and figures on the environment and nature in the Netherlands in an easily surveyable
manner in the Environment and Nature Compendium (www.milieuennatuurcompendium.nl).
79
Bulletin of Acts and Decrees 2006, 656.
80
These maps are managed by provinces under the Disaster and Serious Accidents Act (Wet rampen en
zware ongevallen).
81
This website was created by IPO, PBL and RIVM in cooperation with the Ministries of VROM,
LNV and V&W.
82
Wageningen University and Research Centre.
37
