Lausunto

Concerns regarding the development of the Aarhus Convention and EU state aid

26.06.2024

European Commission

Reply to questionnaire in connection with public consultation regarding the Aarhus convention and how an excessive interpretation affects forestry and farming and challenges European property rights.

First of all, the recent findings by the ACCC lack support in any primary source of law. The scope of the recent initiatives in this area clearly contains redefinitions and re-interpretations far beyond the original scope of the Convention. This also applies to the current initiative regarding EU state aid policy.

Regarding the other views on the current initiative, MTK Finland refers to the views of the Swedish Farmers Union (LRF) reply. The intensions of the drafters of the original convention should be taken into account but the convention should also be in balance with other European Conventions and EU policies as well.

Particular concerns caused by the Aarhus Convention in the agricultural sector

In addition to the other views stated here, it is crucial to re-evaluate other provisions of the Aarhus Convention as well. Especially, the provisions in article 4 should be at least re-evaluated, as those rules do not withstand the test of time as well anymore. Moreover, the overall effects and legal tensions that the Aarhus Convention is currently having on the European Convention on Human Rights (especially on the right to property) and on other conventions and policies (e.g., privacy and safety) should be re-evaluated.

Due to digitalization and surging use of data, the provisions in article 4 are in collusion with landowners’ right to property and puts landowners’ bargaining power in jeopardy as already powerful purchasing entities can abuse up-to-date publicly available data of landowners’ property, for example by combining different publicly open data sources and using neural network calculations on the expected harvest. The evolution in the data driven markets has raised concerns that the Aarhus Convention (specifically art 4) colludes with

1) the EU competition policy,
2) the EU digital strategy and
3) it endangers the objectives of the CAP. Moreover, the ongoing negotiations on the future CAP and EU membership negotiations of Ukraine are challenging the foundations of CAP.

If the amount of the subsidies is to decrease, more emphasis must be put on the fair functioning of the food markets. This means that the availability of public information on farmland and forests should be reduced.

To address this concern, an immediate and profound impact assessment of the Aarhus Convention's effects on competition in the primary production markets, where there is an imbalance in bargaining power, should be conducted. Even if there are limitations to what information could be given to the public in the article 4.4 subsection d, the provisions of that article do not give enough legal protection against unfair use of trade secrets. The information available on farmland and forests should only be accessible for independent scientists and authorities.

Particular concerns caused by the Aarhus Convention in the forestry sector

The business activities of forest owners are based on the utilization of forests, and success in the market requires accurate and diverse information on forest resources and forest biodiversity. The line between forest resource data and environmental data is thin, and it might be unclear what data belongs to environmental data.

At present, small forest owners (16 million family forest owners in Europe) are facing unequal status in the markets due to the openness of forest resource data. It is also questionable from the point of view of market competitiveness that timber buyers have access to accurate information about forests and information over supply potential. At same time forest owners do not have information over the total wood demand from forest industry.

A good principle is to ensure that the owner decides on the use of his property and the data related to his forests. Currently, mapping systems make it possible to collect forest data with the accuracy of a single tree or publish nature data with high accuracy.

Technological developments highlight the wider need to review the Aarhus agreement. Are the current agreement and its interpretations jeopardizing the fundamental right of forest owners, the protection of property? The protection of property is also a human right. The Aarhus agreement and the interpretations of different countries must ensure that information related to forest owners or their forest units is not published or that combining them is not possible without the permission of the owner of the information.

The forest monitoring regulation currently being prepared in the EU raises additional threats for the protection of forest owners' property. Excessive transparency of information makes forests owners trade secrets visible and reduces their ability to operate in the market. Forest owners are often already the weaker party in negotiations if, for example, they are faced with a globally operating forest industry company. In today's world, information is a valuable raw material, and it must not be taken away from its owner. Forest owners must be given the opportunity to earn money on a contractual basis by selling their data.

Today, for example, in Eastern Finland, the openness of spatial forest data is also a security issue, and the publicity of data must be carefully assessed. The Aarhus Agreement must therefore be carefully assessed from the point of view of property rights. Is it suitable as such for the present day and how should it be updated? Forest owners are also concerned about the Commission's trend towards a control commission. Meticulous regulation and the related supervision give power for the Commission at the time when decisions should be made close to the citizens, especially in forestry matters.

The Central Union of Agricultural Producers and Forest Owners (MTK ry, Finland)

Marko Mäki-Hakola
Director (forest)

Kimmo Tammi
Legal advisor

aiheet: aarhus convention, opinion