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The State Environmental Investments Agency and the Ministry of Justice of Ukraine denied against the claim the Expert Advisory Center "Legal Analytics" on access to information on international agreements on greenhouse gas emissions quotas trading
Friday, 14 September 2012 08:10

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District Administrative Court of Kyiv appointed to trial the claim the Expert Advisory Center "Legal Analytics" (EACLA) against the State Environmental Investments Agency (SEIA) and the Ministry of Justice of Ukraine to declare unlawful inaction of public authorities in publication of international agreements on greenhouse gas emissions quotas trade (trading of assigned amount units (AAUs)) (For more information on the case see http://legalanalytics.com.ua/en/newsofcentr/28-categorynewscenter/120-agreementsongasemissions.html)

On August, 28 and September 10, 2012 during preliminary hearing in the case the court, taking into account the arguments of the EACLA, resumed the limitation period for the plaintiff to appeal to court the inaction of the governmental authorities, refusing at the same time to satisfy the requests of the defendants to leave the claim without consideration, because of the omission of the limitation period by plaintiff.

The Defendants provided objections, in which they did not agree with the claims of the EACLA.

Thus, confirming the fact of signing of international interagency agreements on AAUs trading with Japan and Spain, according to the Law of Ukraine "On International Treaties and Agreements", objections of the SEIA are based on the following arguments:

- the Regulation of the Cabinet of Ministers of Ukraine № 392 from 17.04.2008 "On fulfillment of international obligations under the United Nations Framework Convention on Climate Change" defines a separate procedure for the conclusion of interagency agreements for the SEIA and because "the Resolution number 392 hasn’t defined the order of disclosure the information on the agreements concluded by the SEIA, therefore there are no legal basis to assert a violation of the law by the SEIA";

- Parties to the signed agreements on AAUs trade keep confidential any information about the other party, including the terms and conditions of this Agreement (including, but not limited to the unit price and the amount of the Contract / total amount of the contract by the contracting AAU) which is: a) assigned by either party as confidential, and b)obviously confidential arising from correspondence from interested parties), and do not disclose it to any third party without the written consent of the other Party. Thus, referring to the wording of contracts, Respondent (SEIA) considers as legal the limit of public access to information on international agreements on AAUs trade.

The Ministry of Justice of Ukraine, referring to the norm of Law of Ukraine "On International Treaties and Agreements", that international treaties are published in the "Collection of existing international agreements of Ukraine" and other official publications, and registered in the Ministry of Foreign Affairs, denies the claim of the EACLA, justifying its position with the following arguments:

- If the contracts concluded by the SEIA on AAUs trade were international, they would be concluded and registered in the Ministry of Foreign Affairs, as a body which exercises general supervision over the implementation of such agreements;

- Ministry of Justice publishes international treaties and registers them in the Unified State Register of legal acts only after it receives such contracts from the competent ministries and other central executive bodies, and not on its own initiative;

- In accordance with the Regulation of the Ministry of justice of Ukraine the Ministry checks the compliance with the commitments under international treaties of Ukraine on international legal relations and legal cooperation in civil and criminal cases, and provides recommendations for improvement of related work, makes proposals to address identified violations and deficiencies and to bring to justice officials guilty of violations;

- Administrative Court is not empowered to interfere in the free discretion of subject of state authority outside the criteria defined in the article 2 of the Code of Administrative legal proceeding, and therefore court cannot compel defendants to take steps to publish international agreements, since such an obligation is a form of court intervention in the discretion of the subject of power, and goes beyond administrative proceedings.

Thus, according to the defendants position, they are not obliged to publish signed international environmental agreements since a) those powers are discretionary; b) the publication procedure of international agreements is not defined; c) the governmental authority has no duty to control over the publishing of international agreements, nevertheless it is required to publish them and keep relevant records; d) the AAUs trading agreements are not registered in the Ministry of Foreign Affairs of Ukraine.

This position of defendants creates the conditions for the possibility of actual rejection in public access to information on environmental agreements on AAUs trade. This in turn contradicts the law on access to information, the international obligations of Ukraine, and that’s why such violations are contested by the plaintiff in court.

The EACLA is preparing explanation for the court to support its claims considering presented objections by the defendants. Panel of three judges is appointed to hear the case on the merits.

Prepared by M.Bulgakova.