Opinion of the Advocate General — ECLI:EU:C:1999:34
Date: 1999-01-28
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment 
1. Actions for failure to fulfil obligations — Sufficient evidence — Burden of proof on the 
Commission — Whether a presumption may be relied on — Not permissible 
(EC Treaty, Art. 169 (now Art. 226 EC)) 
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SUMMARY — CASE C-217/97 
2. Environment — Freedom of access to information — Directive 90/313 — Derogation 
provided for in Article 3(2), first subparagraph, third indent — Scope — 'Preliminary 
investigation proceedings' — Meaning — Administrative procedure preparing the way 
for an administrative measure — Condition 
(Council Directive 90/313, Art. 3(2), first subpara., third indent) 
3. Acts of the institutions — Directives — Implementation by the Member States — 
Transposition of a directive into national law without legislative action — Condi­
tions — Existence of a general legal context ensuring full implementation of the 
directive 
(EC Treaty, Art. 189, third para, (now Art. 249, third para., EC)) 
4. Environment — Freedom of access to information — Directive 90/313 — Obligation 
to make a partial disclosure of information — Implementation — Whether the mere 
mention of partial communication in an annex to rules concerning the fixing of charges 
constitutes implementation — Insufficient 
(Council Directive 90/313, Art. 3(2), second subpara.) 
5. Environment — Freedom of access to information — Directive 90/313 — Information 
disclosed on payment of a charge — 'Reasonable' amount — Meaning 
(Council Directive 90/313, Art. 5) 
1. In the context of proceedings under 
Article 169 of the Treaty (now Arti­
cle 226 EC) for failure to fulfil obliga­
tions, it is for the Commission to prove 
the existence of the alleged failure, and 
it may not rely on any presumption for 
that purpose. 
2. The term 'preliminary investigation 
proceedings' which appears in the third 
indent of the first subparagraph of 
Article 3(2) of Directive 90/313 — 
which provides for a derogation from 
the general rules for access to informa­
tion on the environment, in relation to 
matters which are sub /udice or under 
enquiry, or which are the subject of 
preliminary investigation proceed­
ings — is to be interpreted as including 
an administrative procedure such as 
that referred to in the German legisla­
tion transposing the Directive into 
national law, which merely prepares 
the way for an administrative measure, 
only if it immediately precedes a con­
tentious or quasi-contentious proce­
dure and arises from the need to obtain 
proof or to investigate a matter prior to 
the opening of the actual procedure. 
3. The transposition of a directive into 
national law does not necessarily 
require its provisions to be formally 
incorporated verbatim in express, spe­
cific legislation; a general legal context 
may be adequate for the purpose, 
provided that it does indeed guarantee 
the full application of the directive in a 
sufficiently clear and precise manner. 
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COMMISSION V GERMANY 
The persons concerned must be able to 
ascertain the full extent of their rights 
and, where appropriate, to rely on 
them before the national courts. 
4. Although, under Article 3(2), first sub­
paragraph, of Directive 90/313 on the 
freedom of access to information on 
the environment, Member States may 
refuse to grant a request for informa­
tion in the cases listed exhaustively in 
that provision, the second subpara­
graph of Article 3(2) requires them to 
communicate information from which 
it is possible to detach information 
which may be covered by the require­
ments of confidentiality or privilege, 
thus imposing on Member States an 
obligation which is precise as regards 
the result to be obtained and which 
directly affects the legal situation of 
individuals, who are accordingly enti­
tled to obtain information under the 
conditions laid down in that subpara­
graph. 
National legislation which merely men­
tions the partial communication of 
information, for the purposes of levy­
ing certain charges, in an annex to the 
national rules fixing the charges which 
may be made for supplying informa­
tion on the environment, and which, 
moreover, applies only to the federal 
authorities, is not sufficient to imple­
ment clearly the obligation set out in 
the second subparagraph of Arti­
cle 3(2) of the Directive in relation to 
the partial communication of informa­
tion. 
5. Consequently, the term 'reasonable' for 
the purposes of Article 5 of Directive 
90/313 — which permits Member 
States to make the supply of informa­
tion on the environment subject to 
payment of a charge, provided that 
such a charge does not exceed a 
reasonable amount — must be under­
stood as meaning that Member States 
are not thereby authorised to pass on to 
those seeking information the entire 
amount of the costs (indirect costs, in 
particular) actually incurred for the 
State budget in conducting an informa­
tion search. Furthermore, a charge 
made where a request for information 
is refused cannot be described as rea­
sonable, since in such a case no infor­
mation has in fact been supplied within 
the meaning of Article 5 of the Direc­
tive. 
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