Opinion of the Advocate General — ECLI:EU:C:2020:590
Date: 2020-07-16
Language of the case: German
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation  C-619/19 — 1 
Case C-619/19 
Request for a preliminary ruling 
Date lodged: 
19 August 2019 
Referring court: 
Bundesverwaltungsgericht (Germany) 
Date of the decision to refer: 
8 May 2019 
Applicant and respondent on a point of law: 
D.R. 
Defendant and appellant on a point of law: 
Land Baden-Württemberg 
  
Bundesverwaltungsgericht 
DECISION 
[...] 
In the administrative-law case 
of Mr D.R., 
…,…, 
Applicant, appellant    
and respondent on a point of law,    
[...] 
v 
EN 
REQUEST FOR A PRELIMINARY RULING OF 8. 5. 2019 — CASE C-619/19 
 
2  
Land Baden-Württemberg, 
[...] 
Defendant, respondent and  
appellant on a point of law:     
[Or. 2] 
[...] 
Joined party: 
Deutsche Bahn AG. 
[...] Berlin, 
Appellant on point of law,     
[...], 
Other party: 
The representative of the federal interest 
at the Bundesverwaltungsgericht, 
[...], 
the 7th Chamber of the Bundesverwaltungsgericht 
[...] 
made the following order on 8 May 2019: 
The proceedings before the Bundesverwaltungsgericht (Federal 
Administrative Court) are stayed. 
The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
1. Is point (e) of the first subparagraph of Article 4(1) of Directive 2003/4/EC 
of the European Parliament and of the Council of 28 January 2003 on public 
access to environmental information and repealing Council Directive 
LAND BADEN-WÜRTTEMBERG 
 
3 
90/313/EEC (the Environmental Information Directive) to be interpreted as 
meaning [Or. 3] that the term ‘internal communications’ covers all 
communications which do not leave the internal sphere of an authority 
which is required to provide information? 
2. Is the temporal scope of the protection of ‘internal communications’ under 
point (e) of the first subparagraph of Article 4(1) of the Environmental 
Information Directive unlimited? 
3. If Question 2 is answered in the negative: Does the protection of ‘internal 
communications’ under point (e) of the first subparagraph of Article 4(1) of 
the Environmental Information Directive apply only until the authority 
required to provide information has taken a decision or completed any other 
administrative process? 
G ro u n d s: 
I 
1 The applicant seeks from the Staatsministerium Baden- Württemberg (Baden-
Württemberg State Ministry) access to documents relating to tree felling for the 
‘Stuttgart 21’ transport and urban development project in Stuttgart’s Schlossgarten 
park in October 2010. 
2 For the purpose of the questions referred to the Court of Justice of the European 
Union (‘the Court’), those documents concern information held by the executive 
committee of the State Ministry relating to the committee of inquiry ‘Follow-up to 
the police operation on 30 September 2010 in Stuttgart’s Schlossgarten park’ and 
memoranda held by the State Ministry relating to a conciliation procedure 
conducted on 10 and 23 November 2010 in connection with the ‘Stuttgart 21’ 
project. 
3 The Verwaltungsgericht (Administrative Court) dismissed the action brought 
following an unsuccessful request relating to those documents. On appeal by the 
applicant, the Verwaltungsgerichtshof (Higher Administrative Court) ordered the 
defendant to make the documents available to the applicant. Those documents 
concern environmental information. There are no grounds for refusing to make 
that information available. The State Ministry’s documents concerning the 
information held by the executive committee and the conciliation procedure are 
not protected as internal communications since such protection exists only, ratione 
temporis, for the duration of a public authority’s decision-making process. [Or. 4] 
4 By its appeal on a point of law, the defendant seeks to have the judgment at first 
instance reinstated. 
II 
REQUEST FOR A PRELIMINARY RULING OF 8. 5. 2019 — CASE C-619/19 
 
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5 The legal proceedings are stayed. A preliminary ruling on the questions set out in 
the operative part of the decision is to be obtained from the Court (Art. 267 
TFEU). 
6 1. The relevant provisions of EU law are set out in point (e) of the first 
subparagraph of Article 4(1) and the first and second sentences of the second 
subparagraph of Article 4(2) of Directive 2003/4/EC of the European Parliament 
and of the Council of 28 January 2003 on public access to environmental 
information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26) — 
the Environmental Information Directive.  
7 2. The relevant provision of national law is the second indent of Paragraph 28(2) 
of the Umweltverwaltungsgesetz Baden-Württemberg (Baden-Württemberg 
Environmental Administration Act, ‘the UVwG BW’) of 25 November 2014 [...], 
as last amended by Article 1 of the Act of 28 November 2018 [...]. 
The second indent of Paragraph 28(2) of the UVwG BW reads as follows: 
Where a request relates to internal communications of authorities required to 
provide information within the meaning of Paragraph 23(1), it shall be 
refused unless it is outweighed by the public interest in disclosure. 
III 
8 The questions referred are relevant. Depending on how the questions referred are 
answered, the appeal on a point of law will either be dismissed on legal grounds or 
the matter will need to be referred back to the Verwaltungsgerichtshof 
(Administrative Court) as judges of fact for a new hearing and judgment. 
9 The documents sought by the applicant concern environmental information within 
the meaning of Article 2(1)(c) of the Environmental Information Directive. The 
defendant is an authority required to provide information within the meaning of 
Article 2(2)(a) of the Environmental Information Directive. [Or. 5] 
IV 
10 The questions referred need to be clarified by the Court, as they have not been 
clarified in its case-law and there are no obvious answers. 
11 The following considerations are relevant to the individual questions referred: 
l2 1. Question 1: 
The first question that arises is how the term ‘internal communications’ within the 
meaning of point (e) of the first subparagraph of Article 4(1) of the Environmental 
Information Directive is to be interpreted. The Environmental Information 
Directive does not contain a definition of that term. 
LAND BADEN-WÜRTTEMBERG 
 
5 
13 As regards Paragraph 8(2)(2) of the Environmental Information Act 
(Umweltinformationsgesetz, ‘the UIG’) in the version published on 27 October 
2014 [...], as last amended by Article 2(17) of the Act of 20 July 2017 [...], which 
transposes point (e) of the first subparagraph of Article 4(1) of the Environmental 
Information Directive into Federal law and corresponds to the relevant provision 
of the law of the Länder, that is the second indent of Paragraph 28(2) of the 
UVwG BW, taking into account the intention of the legislator [...] the Senate 
decided with regard to the term ‘internal’ that the ground for refusal only covers 
communications that do not leave the internal sphere of an authority required to 
provide information [...]. Accordingly, communications which have not (yet) left, 
but are intended to leave the internal sphere of an authority which is required to 
provide information, cannot also be considered to be ‘internal’. 
14 In that context, it is necessary to clarify what constitutes a ‘communication’ 
within the meaning of point (e) of the first subparagraph of Article 4(1) of the 
Environmental Information Directive. The question arises in particular whether 
documents or information have to be of a certain quality in order to be considered 
to be ‘communications’ within the meaning of the Environmental Information 
Directive. The term ‘communications’ at least suggests that the relevant 
information must (also) be addressed to a third party. [Or. 6] 
15 The determination of the content of the term ‘communications’ should moreover 
be defined because the first sentence of the second subparagraph of Article 4(2) of 
the Environmental Information Directive requires that the grounds for refusal 
referred to  in paragraphs 1 and 2 be interpreted in a restrictive way. This 
requirement is reflected in the second subparagraph of Article 4(4) of the 
Convention on Access to Information, Public Participation in Decision-Making 
and Access to Justice in Environmental Matters — the Aarhus Convention — of 
25 June 1998. 
16 In that context, not every document that is communicated internally necessarily 
constitutes an ‘internal communication’. 
17 The Implementation Guide to the Aarhus Convention contains guidance on a 
teleological reduction of the term ‘communications’. As regards Article 4(3)(c) of 
the Aarhus Convention (‘internal communications of public authorities’), the 
Implementation Guide to the Aarhus Convention states that, in some Member 
States, the internal communications exception is intended to protect the personal 
opinions of government staff. In that context, the exception does not usually apply 
to factual materials (see United Nations Economic Commission for Europe, The 
Aarhus Convention, An Implementation Guide, 2nd edition 2014, p. 85). 
18 The representative of the interests of the Federal Government before the 
Bundesverwaltungsgericht proposes that the term ‘internal communications’ 
within the meaning of point (e) of the first subparagraph of Article 4(1) of the 
Environmental Information Directive cover only significant documents that 
concern internal information and that are relevant to the decisions and actions that 
REQUEST FOR A PRELIMINARY RULING OF 8. 5. 2019 — CASE C-619/19 
 
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a public authority takes. However, this raises the further question of what 
constitutes ‘significant documents’. 
19 2. Question 2: 
The temporal scope of point (e) of the first subparagraph of Article 4(1) of the 
Environmental Information Directive also needs to be clarified. 
20 The wording of that provision — like the wording of point (c) of Article 4(3) of 
the Aarhus Convention — does not provide an indication of a strict temporal 
limitation of the scope of point (e) of the first subparagraph of Article 4(1) of the 
Environmental Information Directive. A clear indication is also not provided by 
the legislative history [Or. 7]. The Commission’s original proposal for a Directive 
of 29 June 2000 provided, in point (c) of the first subparagraph of Article 4(1) of 
the Environmental Information Directive, for a ground for refusal for ‘information 
in the course of completion or internal communications. In each such case, the 
public interest served by the disclosure shall be taken into account’. At the first 
and second reading, the European Parliament called for the ground for refusal for 
‘internal communications’ to be deleted (see report of 28 February 2001, 
A5/2001/74, amendment 20, and report of 24 April 2002, A5/2002/136, 
amendment 27). This was rejected by the Commission (amended proposal of 
6 June 2001, COM (2001) 303 final, OJ C 240 E/289, p. 293; Commission 
Opinion of 5 September 2002, COM (2002) 498 final, p. 8) and the Council 
(Council Common Position No 24/2002 of 28 January 2002, OJ C 113 E/1, p. 11) 
with reference to the Aarhus Convention. An agreement on the final proposal for a 
Directive was reached in the Conciliation Committee. In that context, the ground 
for refusal for ‘internal communications’ was settled in point (e) of the first 
subparagraph of Article 4(1) of the Environmental Information Directive, and 
since then makes no link any more tothe grounds for refusal limited in time of 
point (d) of the first subparagraph of Article 4(1) of the Environmental 
Information Directive. 
21 The Implementation Guide to the Aarhus Convention also does not provide any 
indications that the temporal scope of Article 4(3)(c) of the Aarhus Convention is 
limited. The practice of the Aarhus Convention Compliance Committee (ACCC) 
also appears to acknowledge — implicitly — that the temporal scope of 
Article 4(3)(c) of the Aarhus Convention is not limited (see ACCC/C/2010/51 
(Romania) and ACCC/C/2013/93 (Norway)). 
22 From a systematic perspective, it must be taken into account that the 
Environmental Information Directive formulates grounds for refusal whose 
temporal scope is correspondingly limited. Accordingly, point (d) of the first 
subparagraph of Article 4(1) of the Environmental Information Directive provides 
for a ground for refusal for ‘material in the course of completion’ and for 
‘unfinished ... data’. [Or. 10] 
LAND BADEN-WÜRTTEMBERG 
 
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23 A systematic comparison with the second subparagraph of Article 4(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) — the Transparency 
Regulation — reveals that, according to the European legislator’s intention, the 
disclosure of internal documents can undermine an institution’s decision-making 
process even after it has been concluded. Where the European Union has, in 
Article 6 of Regulation (EC) No 1367/2006 of the European Parliament and of the 
Council of 6 September 2006 on the application of the provisions of the Aarhus 
Convention on Access to Information, Public Participation in Decision-making 
and Access to Justice in Environmental Matters to Community institutions and 
bodies (OJ L 264, p. 13) — the Aarhus Regulation — partly amended the 
provisions of the Transparency Regulation, the temporal scope of the ground for 
refusal for internal documents is not affected by this. Therefore, the European 
Union clearly assumes that the Aarhus Convention does not require that the 
ground for refusal for ‘internal communications’ be limited, ratione temporis, to 
the conclusion of the decision-making process. There do not appear to be any 
indications that EU law intended to impose stricter requirements on Member 
States for the disclosure of environmental information as regards internal 
communications than for the disclosure of environmental information held by the 
EU institutions. 
24 With regard to the protection of the confidentiality of the proceedings of public 
authorities under point (a) of the first subparagraph of Article 4(2) of the 
Environmental Information Directive, for which indications of a strict temporal 
limitation are also lacking, the Court assumes, in principle, that this ground for 
refusal may be relevant where a legislative procedure and the related proceedings 
have already been concluded (see judgement of the Court of 14 February 
2012,  C-204/09, ECLI:EU:C:2012:71, Flachglas Torgau,  paragraph 57; see, to 
that effect, BVerwG judgment of 2 August 2012 — 7 C 7.12 — Buchholz 
406.252, second indent of Paragraph 2 UIG, paragraph 28). The case-law cited 
appears, in principle, to be transferable to point (e) of the first subparagraph of 
Article 4(1) of the Environmental Information Directive. [Or. 9] 
25 However, the requirement of the first sentence of the second subparagraph of 
Article 4(2) of the Environmental Information Directive that the grounds for 
refusal mentioned in paragraphs 1 and 2 be interpreted in a restrictive way should 
also apply to their temporal scope. This suggests that the temporal scope of point 
(e) of the first subparagraph of Article 4(1) of the Environmental Information 
Directive is at least not completely unlimited. A temporal limitation of the ground 
for refusal may result not only from a restrictive interpretation of the term 
‘internal communications’, but also from the case-by-case assessment required 
under point (e) of the first subparagraph of Article 4(1) and the second sentence of 
the second subparagraph of Article 4(2) of the Environmental Information 
Directive. In any event, the interest in confidentiality will, over time, usually 
become less important than the interest in a disclosure of the relevant information. 
REQUEST FOR A PRELIMINARY RULING OF 8. 5. 2019 — CASE C-619/19 
 
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26 3. Question 3: 
If the temporal scope of the protection of ‘internal communications’ under point 
(e) of the first subparagraph of Article 4(1) of the Environmental Information 
Directive is not unlimited, up to what specific point in time does that protection 
apply? 
27 In that regard, the first-instance court [...] considered that, under point (e) of the 
first subparagraph of Article 4(1) of the Environmental Information Directive, 
access to internal communications is excluded only for the duration of a decision-
making process of a public authority. In the first-instance court’s point of view, 
the drafting history of that provision supports this, namely that is the direct 
regulatory connection, originally provided for by the draft Environmental 
Information Directive, between that provision and the exception for ‘material in 
the course of completion’ (see point (d) of the first subparagraph of Article 4(1) of 
the Environmental Information Directive), the requirement that the grounds for 
refusal be interpreted in a restrictive way (first sentence of the second 
subparagraph of Article 4(2) of the Environmental Information Directive) and the 
systematic consideration that the further ground for refusal concerning the 
confidentiality of the proceedings of public authorities (point (a) of the first 
subparagraph of Article 4(2) of the Environmental Information Directive) would 
otherwise be meaningless. 
28 A temporal limitation of the ground for refusal under point (e) of the first 
subparagraph of Article 4(1) [Or. 10] of the Environmental Information Directive, 
which is exclusively linked to the duration of a public authority’s decision-making 
process, would not take into account the fact that not every instance of a public 
authority required to provide information dealing with environmental information 
leads to a (formal) decision. In that regard, the (internal) completion of the 
relevant administrative process could be considered a relevant point in time. 
[...]