Opinion of the Advocate General — ECLI:EU:C:2013:189
Date: 2013-03-21
Language of the case: German
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Second Chamber), 18 July 2013 Environment — Freedom of access to information — Directive 2003/4 — Exceptions — Option for Member States to exclude public bodies or institutions acting in a legislative capacity from the definition of public authorities — Applicability to ministries when preparing and adopting normative regulations of a lower rank than a law — Not included (European Parliament and Council Directive 2003/4, Arts 2(2) and second para.) The first sentence of the second subparagraph of Article 2(2) of Directive 2003/4 on public access to environmental information and repealing Directive 90/313 must be interpreted as meaning that the option given to Member States by that provision of not regarding bodies or institutions acting in a legislative capacity as public authorities, required to allow access to the environmental information which they hold, may not be applied to ministries when they prepare and adopt normative regulations which are of a lower rank than a law. In that regard, that provision may not be interpreted in such a way as to extend its effects beyond what is necessary to safeguard the interests which it seeks to secure, and the scope of the derogations which it lays down must be determined in the light of the aims pursued by the directive. Indeed, it is the specific nature of the legislative process and its particular characteristics that justify the special rules relating to acts adopted by bodies acting in a legislative capacity in connection with the right to information, as provided for both by the Aarhus Convention on access to information, public participation in decision‑making and access to justice in environmental matters and Directive 2003/4. It follows that the nature of the act in question, and in particular the fact that it concerns an act of general application, is not, in itself, capable of exempting a body which adopts that act from the obligations to provide information under that directive. Finally, in the absence of any specific provision of EU law with regard to what falls within the scope of a law or norm of equivalent rank for the purposes of applying the first sentence of the second subparagraph of Article 2(2) of Directive 2003/4, that assessment is subject to the law of the Member States, provided that the effectiveness of the directive is not undermined. (see paras 22, 29, 30, 35, 36, operative part)