Opinion of the Advocate General — ECLI:EU:C:2005:70
Date: 2005-01-27
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary, therefore, it is appropriate to find that: Article 3(4) of Directive 90/313 precludes national legislation under which a request for information on the environment may be refused without reason by the mere failure of a public authority to respond within the two-month time-limit. However, Article 3(4) in conjunction with Article 4 of that directive does not preclude national legislation under which, for the purpose of affording effective legal protection, the failure of a public authority to respond within the two-month time-limit is deemed to be a decision open to review in accordance with the relevant national legal system. C – Second question: remedies available in the event of the public authority’s failure to respond 39. By its second question, the referring court wishes to ascertain what constitutes the reviewable ‘decision’ within the meaning of Article 4 of Directive 90/313 in cases where a public authority has failed to respond to a request within the two-month time-limit laid down in Article 3(4) of that directive. 40. On the face of it, this question appears already to have been answered by the explanations in relation to question 3. However, on closer examination, in particular with reference to the aforementioned facts in the main proceedings of this case, it is clear that the second question seeks clarification as to how to deal with those cases in which an implied refusal is later, that is to say after expiry of the two-month time-limit for processing requests, followed by an express (and at least partly negative) decision by the competent public authority. 41. Article 4 of Directive 90/313 merely sets out the objective of affording effective legal protection, as is also required, moreover, by the fundamental rights of the Community. (26) Such legal protection must be guaranteed not only in the case of an express (and at least partly negative) response to the request for information on the environment, (27) but also in the case of the public authority’s failure to act (failure to respond). (28) However, in accordance with the third paragraph of Article 249 EC, it is for the Member States to choose the form and methods for achieving that objective. 42. The reference in Article 4 of Directive 90/313 to a ‘decision’ of which the person requesting information may ‘seek a … review’ is intended only as an illustrative example of the legal protection available in the event of an express but (at least partly) negative decision on a request for information. Conversely, Article 4 does not contain a specific example of a possible legal remedy in cases where a request for information is ignored, that is to say where the public authority fails to respond. One reason for this is probably the fact that the procedures available in the Member States for securing legal protection in the event of a failure to act by the public authorities can vary greatly. Conceivable means of obtaining redress include not only an action for failure to act, (29) but also, inter alia, the aforementioned statutory fiction of a failure to respond being regarded as a refusal, combined with the possibility of appealing against such an implied refusal. (30) 43. Under the principle of the procedural autonomy of the Member States, (31) it is therefore, as already stated in the context of the third question, (32) perfectly permissible for national legislation, for the purpose of affording effective legal protection, to provide that a public authority’s failure to respond within the two-month time-limit is deemed to be a decision open to review in accordance with the relevant national legal system. 44. However, Community law also imposes limits on the procedural autonomy of the Member States. Thus, the procedural rules governing actions for the enforcement of rights under Community law must not be less favourable than the rules governing similar domestic actions (principle of equivalence), nor must they render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness). (33) 45. National procedural provisions under which remedies against a public authority’s failure to respond are available only within a prescribed time-limit may pose a problem as regards the principle of effectiveness. The problem is exacerbated where national procedural law also provides that an action against a later express refusal is likewise no longer admissible because an implied refusal is already deemed to have been given by virtue of the public authority’s failure to respond and the time-limit for contesting that implied refusal has already expired. 46. It is true that, in a different context (the reimbursement of charges paid though not due), the Court has held that it may be compatible with Community law, and in particular with the principle of effectiveness, to lay down reasonable limitation periods for bringing proceedings in the interests of legal certainty. (34) Similarly, it is possible to conceive of cases in which an applicant loses his right to bring proceedings against a late express (and at least partially negative) decision by a public authority where he had not previously challenged in due time that same authority’s failure to respond. By way of example, such a loss of the right to bring proceedings is provided for under the Community law on the public service. Thus, for an official of the Communities, time begins to run from the implied rejection of a complaint submitted by him; (35) any subsequent express decisions by the appointing authority can be challenged only if they were taken within the original period for lodging an appeal. (36) 47. However, the situation of an official of the Communities who is in dispute with his appointing authority is not comparable to that of a member of the public who submits a request for information on the environment to a public body. Officials are generally informed upon their appointment of the principal features of the law on the public service and, furthermore, are acquainted with the day-to-day workings of public authorities. The same cannot be assumed of a member of the public, especially one with no legal knowledge. A person requesting information on the environment will usually be completely unaware of whether and when the time-limit for replying to his request expires and, should the case arise, when the time-limit applicable to him for bringing any appeals starts to run. 48. In those circumstances, if it were accepted that mandatory time-limits could be introduced within which members of the public must challenge a public authority’s failure to act, the fiction that a failure to respond constitutes a refusal – the very purpose of which, as has already been stated, is to guarantee the effectiveness of their legal protection – could turn into a trap for the public. The applicant summed this up neatly at the hearing: a person requesting information who is still waiting for an authority to respond after the two-month time-limit for responding has expired and who does not immediately begin legal proceedings would be punished for his patience. 49. This would make it considerably more difficult for members of the public to exercise their right of free access to information on the environment. It is not consistent with the spirit and purpose of Directive 90/313, which is specifically intended to open up and facilitate such access. 50. In summary, therefore, it is appropriate to find that: Article 3(4) in conjunction with Article 4 of Directive 90/313 does not preclude national legislation under which, for the purpose of affording effective legal protection, the failure of a public authority to respond within a two-month time-limit is deemed to be a decision open to review in accordance with the relevant national legal system. This notwithstanding, however, an express decision by the public authority in which that authority, after the expiry of the two-month time-limit, at least partly refuses access to information on the environment must also be open to review in accordance with the relevant national legal system. D – Fourth question: the authority’s failure to respond in the case of non-mandatory time-limits 51. In view of the answer which I propose to the first question – to the effect that Article 3(4) of Directive 90/313 contains a mandatory time-limit and not merely an indicative one –, the fourth question need not be answered. VI – Conclusion 52. In the light of the foregoing considerations, I propose that the Court should answer the questions referred to it by the Belgian Conseil d’État as follows: (1) The time-limit laid down in Article 3(4) of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment is mandatory for the public authorities of the Member States. (2) Article 3(4) of Directive 90/313 precludes national legislation under which a request for information on the environment may be refused without reason by the mere failure of a public authority to respond to it within the two-month time-limit. Article 3(4) in conjunction with Article 4 of that directive does not, however, preclude national legislation under which, for the purpose of affording effective legal protection, the failure of a public authority to respond within the two-month time-limit is deemed to be a decision open to review in accordance with the relevant national legal system. This notwithstanding, however, an express decision by the public authority in which that authority, after the expiry of the two-month time-limit, at least partly refuses access to information on the environment must also be open to review in accordance with the relevant national legal system. 1 – Original language: German. 2 – OJ 1990 L 158, p. 56. This directive has been repealed and replaced by Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 (OJ 2003 L 41, p. 26; hereinafter: ‘Directive 2003/4’), but with effect only from 14 February 2005; Directive 90/313 is therefore still relevant to this case. 3 – The second sentence of Article 14 (‘Failure to reply within that period shall be deemed to constitute a decision to refuse access’) has since been repealed by the Order of the Région de Bruxelles-Capitale of 2 March 2000 (Moniteur belge No 69, 5 April 2000, p. 10595). However, in terms of time, it is still the original version of that provision which is applicable to the facts of the main proceedings. 4 – On the SDRB’s status as a body governed by public law and its tasks, see also the information provided at < http://www.sdrb.irisnet.be/fr/mainf.html > (18 November 2004). 5 – In this connection, see also point 41 of my Opinion in Case C-417/02 Commission v Greece [2004] ECR I-0000. 6 – See the fifth recital in the preamble to Directive 90/313. 7 – On the basis of analogous considerations, the judgments in Case C-245/03 Merck, Sharp & Dohme [2005] ECR I-0000, paragraphs 20 to 24, and Case C-296/03 Glaxosmithkline [2005] ECR I-0000, paragraphs 26 to 30, acknowledge the mandatory nature of the time-limit laid down in Article 6(1) of Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the pricing of medicinal products for human use and their inclusion in the scope of national health insurance systems (OJ 1989 L 40, p. 8; hereinafter: ‘Directive 89/105’); in this regard, see also the Opinion of Advocate General Tizzano in Case C-245/03 and Case C-296/03 [2005] ECR I-0000, point 35 et seq. 8 – Judgment in Case C-233/00 Commission v France [2003] ECR I-6625. 9 – Judgment in Commission v France (cited in footnote 8, paragraph 111). 10 – Judgment in Commission v France (cited in footnote 8, paragraph 118). 11 – Judgments in Case 222/84 Johnston [1986] ECR 1651, paragraphs 18 and 19, Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 39, and Case C‑327/02 Panayotova and Others [2004] ECR I-0000, paragraph 27; see also Article 47(1) of the Charter of Fundamental Rights of the European Union (OJ 2000 C 364, p. 1); on the legal status of the Charter, see my Opinion in Case C-387/02 Berlusconi and Others [2005] ECR I‑0000, footnote 83. 12 – Article 41 of the Charter of Fundamental Rights of the European Union; see also the judgment in Case C-170/02 P Schlüsselverlag J.S. Moser and Others v Commission [2003] ECR I-9889, paragraph 29, in which reference is made to sound administration. 13 – Judgments in Case C-36/94 Siesse [1995] ECR I-3573, paragraph 21, Case C-262/99 Louloudakis [2001] ECR I-5547, paragraph 67. See also the judgment in Case C-220/01 Lennox [2003] ECR I-7091, paragraph 76. 14 – Judgments in Case C-260/89 ERT [1991] ECR I-2925, paragraph 42, Case C-112/00 Schmidberger [2003] ECR I-5659, paragraphs 74 and 75, and in Panayotova (cited in footnote 11, paragraph 27). 15 – See also Article 51(1) of the Charter of Fundamental Rights of the European Union. 16 – Third indent of Article 41(2) of the Charter of Fundamental Rights of the European Union. 17 – Judgment in Case 222/86 Heylens [1987] ECR 4097, paragraph 15. 18 – Judgment in Commission v France (cited in footnote 8, paragraphs 113 to 118). In matters falling within the scope of the new Directive 2003/4, the applicant is, in future, to be informed of the reasons for the refusal at the same time as the refusal, pursuant to the second sentence of Article 4(5) of that directive. 19 – Article 8(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43; hereinafter: ‘Regulation No 1049/2001’). 20 – Article 90 of the Staff Regulations of officials of the European Communities, as laid down in Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 (OJ, English Special Edition 1968 (I), p. 30), as most recently amended by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 (OJ 2004 L 124, p. 1). 21 – Article 10(6) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (‘the EC Merger Regulation’, OJ 2004 L 24, p. 1). 22 – Article 4(6) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1). 23 – The obligation to give reasons follows, as has been stated above, from the third indent of Article 41(2) of the Charter of Fundamental Rights of the European Union. Community institutions are also so bound by Article 253 EC; national public authorities to which requests for information on the environment are made are subject to the abovementioned obligation to give reasons under Article 3(4) of Directive 90/313. 24 – In their written observations, the defendants refer to a ‘motivation interne’, that is to say the reasoning which is inherent in a decision even if no (formal) notification of reasons is given to third parties. 25 – If a request is deemed by law to have been refused, it will of course be the applicant who asks for the reasons for the refusal and, depending on the circumstances, seeks legal protection. However, in the case of a positive decision, that is to say where a request is deemed to have been authorised, it will be third parties who ask for the reasons for the decision, in order in some cases to be able to protect their interests. 26 – On the fundamental right to effective legal protection, see the references in footnote 11. 27 – Article 4 of Directive 90/313 refers to a person’s request for information which has been refused or inadequately answered. 28 – Article 4 of Directive 90/313 refers to a person’s request for information which ‘has been … ignored’. 29 – Such a remedy exists, for example, in German law: see the third version of Paragraph 42(1) of the Verwaltungsgerichtsordnung (German Code of Administrative Procedure) of 21 January 1960 (BGBl. I 1960 p. 70), as revised and published on 19 March 1991 (BGBl. I 1991 p. 686), as most recently amended by the Law of 24 August 2004 (BGBl. I 2004 p. 2198). 30 – This was the solution chosen by the legislature of the Région de Bruxelles-Capitale in that version of the second sentence of Article 14 of the Regional Order which is applicable to the main proceedings. The same is true of the French legislation contested by the Commission in Case C-233/00 (see judgment in Commission v France, cited in footnote 8, in particular paragraphs 13 to 15). 31 – On procedural autonomy, see the judgment in Case C-201/02 Wells [2004] ECR I-0000, paragraph 67. 32 – See points 34 to 38 of this Opinion. 33 – See the judgments in Case C-231/96 Edis [1998] ECR I-4951, paragraph 34, Case C-276/01 Steffensen [2003] ECR I-3735, paragraph 60, and Case C-30/02 Recheio– Cash & Carry [2004] ECR I-0000, paragraph 17; as regards administrative procedure, see by analogy the judgment in Wells (cited in footnote 31, paragraph 67). 34 – In this regard, see the judgments in Edis (paragraph 35) and Recheio – Cash & Carry (paragraph 18), cited in footnote 33. 35 – This is the underlying meaning of the second indent of Article 91(3) of the Staff Regulations of officials of the European Communities, which states that the period for filing an appeal is to begin ‘on the date of expiry of the period prescribed for the reply’. 36 – Article 90(2) in conjunction with the second indent of Article 91(3) of the Staff Regulations of officials of the European Communities.