Aarhus Compliance Committee finds communication…

On 28 March 2013 the Aarhus Compliance Committee held communication ACCC/C/2013/83 to be admissible. The communication, brought by Mr Robert Latimer, relates to the decision of the UK Government not to disclose an environmental report which formed part of its defence to infraction proceedings before the European Court of Justice.

In those proceedings (C-301/10, Commission v United Kingdom), the Court of Justice found the UK Government to be in breach of its obligations under Directive 91/271/EEC concerning Urban Waste Water Treatment, namely failing to ensure the appropriate collection and treatment of urban waste water at sites in Sunderland (Whitburn) and London (Beckton and Crossness collecting systems) contrary to Articles 3 and 4 of the Directive.

Earlier in those proceedings, the Advocate General, in his Opinion of 26 January 2012, considered that the Commission had failed to demonstrate that the United Kingdom had not fulfilled its obligations under the Directive. An important part of the Advocate General’s reasoning was that a study into the Whitburn facility, carried out in 2010, found that improvements to the facility would only bring about negligible improvements to the quality of the receiving waters (0.31%). At paragraph 83 of his Opinion the Advocate General described the study as a ‘key document’.

Mr Latimer considered that study to contain errors and requested its disclosure under the Environmental Information Regulations. The relevant department (DEFRA) sought the view of the European Commission, which advised that disclosure of the report would undermine the on-going infraction proceedings which are conducted on a confidential basis. The request was subsequently refused by DEFRA on the basis of Regulation 12(5)(a): damage to international relations. The Department stated, however, that it would reconsider the request once the judgment of the court was published. The Department’s refusal was upheld in a subsequent review the Information Commissioner’s Office (Mr Latimer did not take his case to the First Tier Tribunal (Information Rights)). A request to the European Commission for the document was also refused.

Following the judgment of the Court of Justice, DEFRA re-examined its position and made further disclosure, and now considers that it has provided Mr Latimer with all relevant information, including the report referred to by the Advocate General.

The Communication (available here) complains that “the Court case is a fundamental part of the ‘legislative process’ and access to this key study was a vital element of public participation.”