OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 27 January 2005 ( )

Case C-186/04

Pierre Housieaux

(Reference for a preliminary ruling from the Conseil d’État (Belgium))

(Freedom of access to information on the environment – Request for information – Obligation to give reasons in the event of refusal – Failure by an authority to respond within the time-limit for responding – Fiction of an implied refusal – Fundamental right to effective legal protection and right to good administration)

I – Introduction

1. This case concerns the right of members of the public to have access to information on the environment, more specifically, the procedure for obtaining such access before national authorities.

2. Under the legislation in force at the material time in the Région de Bruxelles-Capitale (or Brussels Hoofdstedelijk Gewest) of Belgium, requests for access to information on the environment were deemed to have been implicitly refused once the time-limit prescribed for processing them had expired.

3. The question whether such a fiction is permissible under Community law lies at the heart of the reference for a preliminary ruling made by the Belgian Conseil d’État (Raad van State) (Council of State) to the Court of Justice.

II – Relevant legislation

A – Community law

4. The Community legislation relevant to this case is Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment (hereinafter: ‘Directive 90/313’). ( )

5. Article 3(1) of Directive 90/313 lays down the principle that ‘information relating to the environment [must be made available] to any natural or legal person at his request and without his having to prove an interest’. The possible reasons for refusal are then listed in paragraphs 2 and 3.

6. Under Article 3(4) of the directive, a public authority is to respond to a person requesting information ‘as soon as possible and at the latest within two months. The reasons for a refusal to provide the information requested must be given.’

7. Article 4 of Directive 90/313 states that ‘[a] person who considers that his request for information has been unreasonably refused or ignored, or has been inadequately answered by a public authority, may seek a judicial or administrative review of the decision in accordance with the relevant national legal system.’

B – National law

8. The relevant national provisions are contained in an Order of the Région de Bruxelles-Capitale of 29 August 1991 on access to information on the environment in the Région de Bruxelles-Capitale (hereinafter: ‘the Regional Order’).

9. That Regional Order requires firstly that the competent administrative service must examine and, where appropriate, grant requests for information on the environment within a period of one month. However, such requests may be refused only by the Delegates of the Council of the Région de Bruxelles-Capitale (Délégués du Conseil de la Région de Bruxelles-Capitale). A period of a further month is, in principle, provided for their decision. If a decision is not taken within the overall time-limit of two months from submission of the request, that request is deemed to have been refused.

10. More specifically, those rules arise from the following provisions of the Regional Order:

‘Article 8

As regards information other than the documents mentioned in Article 7 [which can be consulted on the premises], and without prejudice to an authority’s power to allow it to be consulted immediately on the premises, the authority to which the request is addressed shall have one month in which to reply to the applicant in writing.

Where, at the expiry of the time-limit indicated, no action has been taken on the request, the authority’s failure to reply shall be deemed to constitute a decision to refuse access. In that case, the applicant may, by way of exception to Article 12 § 2, refer the matter directly to the Délégués du Conseil, who shall then decide on the request.

…

Article 12

§1. Only the Délégués du Conseil shall have the power to refuse access to information held by the authorities … . They shall exercise that power acting as a body and within the limits set out in Article 9.

§2. … [A]ny authority which refuses to disclose information which is the subject of a request for access must inform the applicant of that decision and at the same time refer the matter to the Délégués du Conseil. Reference to the Délégués du Conseil is made by transmission of the request for access, together with a specimen or a copy of the information and the reasons which the authority considers justify the refusal of access. The time-limit mentioned in Article 8 § 1 shall be extended by one month from the date of the notification to the applicant of the reference to the Délégués du Conseil.

Article 13

Any total or partial refusal of access must set out the reasons which seek to justify it in a manner that is clear, precise, complete and genuine.

Article 14

The Délégués du Conseil shall provide the applicant with the document requested or notify him of refusal of access within two months of his request. Failure to reply within that period shall be deemed to constitute a decision to refuse access. Their decision shall also be communicated to the authority to which the request for access had been referred.’ ( )

III – Facts and main proceedings

11. In 1991, in the territory of the Belgian commune of Ixelles (also known as Elsene) in the Région de Bruxelles-Capitale, work began on the urban redevelopment (‘reurbanisation’) of the site of a former military hospital, the plan being primarily to create residential dwellings and a large green space.

12. The task of executing that project was entrusted to a body governed by public law, the Société de développement régional de Bruxelles (hereinafter: ‘the SDRB’). ( ) Then, in July 1992, the SDRB concluded a contract with a private consortium, the temporary association SA Bâtipont Immobilier – SA Immomills Louis De Waele Development. Under the contract, the association was commissioned to erect a complex of buildings in accordance with a programme predetermined by the SDRB.

13. By letter of 21 March 1993 addressed to the SDRB, the applicant in the main proceedings, Mr Housieaux (hereinafter: ‘the applicant’), asked to consult the contract and be provided with a copy of it. On 5 April 1994, the SDRB refused the applicant’s request on the ground that there were no procedural rules governing its sphere of competence.

14. On 22 April 1994, the applicant appealed against that decision to the defendants in the main proceedings, the Délégués du Conseil de la Région de Bruxelles-Capitale (hereinafter: ‘the defendants’), and reasserted his request to consult the contract at issue.

15. After a further exchange of written correspondence, the defendants decided at their meeting of 1 February 1995 to grant the applicant’s request in part by allowing him to consult two annexes to the abovementioned contract, ‘since they concern the environment’. The applicant was notified of that decision by letter of 3 February 1995; the two annexes were enclosed with that letter.

16. On 31 March 1995, the applicant brought an action against that decision before the referring court.

17. In the main proceedings, the defendants contend that the action is inadmissible. They take the view that their decision of 1 February 1995 was merely a confirmatory decision against which an action cannot be brought. Leaving aside the communication of the two annexes to the contract at issue, the decision of 1 February 1995 merely confirmed the defendants’ earlier implied refusal. In view of the defendants’ failure to respond during the prescribed two-month period, the applicant’s request was deemed to have been refused implicitly as soon as that time-limit expired, pursuant to Article 14 of the Regional Order. That refusal is now final, since the applicant did not bring judicial proceedings to challenge it in due time. Article 14(1) of the consolidated laws on the Belgian Conseil d’État provides for a 60-day time-limit for bringing such proceedings.

18. In the main proceedings, the SDRB, SA Bâtipont Immobilier and SA Immomills Louis de Waele Development appear as interveners in support of the defendants.

IV – Reference for a preliminary ruling and procedure before the Court

19. By judgment of 1 April 2004, the Belgian Conseil d’État stayed proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

(1) Is the two-month time-limit in Article 3(4) of … Directive 90/313 … a directory time-limit – that is to say, merely indicatory for the authority to which a request for information is addressed – or is it a mandatory time-limit with which that authority must comply?

(2) If the two-month time-limit is mandatory and on expiry of that time-limit the authority to which a request for information was addressed has not taken a decision, what is the ‘decision’ referred to at the end of Article 4 of the Directive against which a judicial or administrative review may be sought ‘in accordance with the relevant national legal system’?

(3) Do Articles 3(4) and 4 of the Directive prohibit a ‘relevant national legal system’ from interpreting a failure to respond on the part of the authority to which a request for information is referred – a failure to respond which continues throughout the two-month period referred to in Article 3(4) of the Directive – as a decision implicitly refusing that request, a decision for which no reasons are thus given but which may be the subject of the judicial or administrative review provided for in Article 4?

(4) If the two-month time-limit referred to in Article 3(4) of the Directive is a directory time-limit, do Articles 3(4) and 4 of the Directive preclude a ‘national legal system’ from providing that the person requesting information may give the authority notice to respond to his request for information within a certain period, failing which the persistent failure by the authority to respond will be deemed to be an implied decision to refuse to provide the information, which can then be the subject of an administrative judicial review?

20. In the proceedings before the Court, written and oral observations were submitted by the applicant, the defendants, the SDRB and the Commission.

V – Assessment

21. The four questions referred by the Conseil d’État all concern procedural aspects of the right of access to information on the environment. I consider it appropriate to examine them in a slightly different order, that is to say to consider the third question before the second.

A – First question: mandatory nature of the time-limit laid down in Article 3(4) of Directive 90/313

22. By its first question, the referring court essentially seeks to ascertain whether the time-limit laid down in Article 3(4) of Directive 90/313 is mandatory or merely indicative for the public authorities of the Member States.

23. The very wording of that provision argues against the assumption that the provision is merely indicative and in favour of a mandatory procedural time-limit. It provides that the public authority concerned is to respond to the person requesting information ‘as soon as possible and at the latest within two months’. Consequently, the two-month period represents the outside limit of the processing time (‘at the latest’) and is coupled with a requirement to expedite matters which, in line with the principle of good administration, ( ) states that a response is to be given ‘as soon as possible’, that is to say, if possible, in less than two months. Scope for flexibility therefore exists at most within the two-month time-limit – and even then subject to the objective of expediting matters – but not beyond that time-limit.

24. That conclusion is also consistent with the spirit and purpose of the provision. After all, the aim of Directive 90/313 is to grant individuals a subjective right of access to information on the environment. However, that right could be devalued if a public authority were able to take as long as it pleased to decide on a request for such access. The value of information on the environment is dependent not least on the individual’s being able to obtain it as quickly as possible. Thus, timely access to current information on the environment makes it in particular easier for the person requesting the information to use it, for example in ongoing construction or planning proceedings in which he may be involved as a neighbour and in which he would like to protect his interests.

25. Moreover, if it is assumed that the time-limit is merely indicative, the legal protection available to the individual under Article 4 of the directive would be illusory. That article requires the Member States to provide legal remedies where a person considers that his request for information has been ‘unreasonably refused or ignored’. If, however, the public authority is not subject to any mandatory procedural time-limits, but rather to purely indicative time-limits, it cannot automatically be concluded from the fact that the time-limit has been exceeded that a request for information on the environment has been ‘unreasonably … ignored’. Reliance on the legal protection provided for in Article 4 of the directive in the event of a failure to act would, therefore, be made at least more difficult if not altogether impossible.

26. Finally, it must be taken into account that an interpretation of the two-month time-limit as being merely indicative might also give rise to the emergence of different administrative practices in the Member States. The promptness with which an individual is granted access to the information on the environment requested would depend on the strictness with which the public authority to which the request is made complies with the two-month time-limit when processing requests. However, in those circumstances, the right of access to information on the environment would vary greatly depending on the Member State in which the request is made, and also, perhaps, the public authority to which a request is addressed. Such a development would be contrary to the aim of Directive 90/313, that is to say to ensure equal treatment for all Community citizens and to prevent disparities in conditions of competition. ( )

27. For the reasons given above, I concur with all the parties to the proceedings that the time-limit laid down in Article 3(4) of Directive 90/313 is mandatory for the public authorities of the Member States. ( )

B – Third question: implied refusal of requests on expiry of the time-limit

28. By its third question, the referring court essentially seeks to ascertain whether Article 3(4) of Directive 90/313 precludes national legislation under which a public authority’s failure to respond by the expiry of the two-month time-limit is deemed to constitute an implied refusal of the request for information on the environment, for which, in such circumstances, no reasons are given.

29. The starting point for answering that question should be the judgment in Commission v France. ( ) In that case, the Court held that it is perfectly permissible within the scope of Directive 90/313, to regard a public authority’s failure to respond as an implied refusal. ( ) However, it also pointed out at the same time that, in the case of an implied refusal of a request for information on the environment, the reasons for that refusal must be notified within two months of the submission of the initial request, since that notification must, in that situation, be regarded as a ‘response’ for the purposes of Article 3(4) of the directive. ( )

30. At first sight, those findings in the judgment in Commission v France seem contradictory: on the one hand, an implied refusal is said to be permissible, yet, on the other hand, there is said to be an obligation to give the person requesting information an express response within the two-month time-limit, that is to say to notify him of the reasons for any refusal. The two findings seem incompatible, since, if a public authority is required to inform the person requesting information expressly of the reasons for its decision, there is no scope for refusals implied by the mere expiry of a procedural time-limit.

31. That apparent contradiction is explained by reference to the fundamental right to effective legal protection ( ) in conjunction with the right to good administration. ( ) It is common knowledge that the Member States, in so far as they act within the scope of Community law, must observe the general principles of law recognised at Community level, ( ) and in particular the fundamental rights ( ) of the Community. ( )

32. The right to good administration creates for the administration an obligation to give reasons for its decisions. ( ) Such a statement of reasons is not merely a general expression of the transparency of the administration’s actions, but is also intended, in particular, to give the individual the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in his applying to the courts. ( ) There is therefore a close connection between the obligation to give reasons and the fundamental right to effective legal protection.

33. Accordingly, it would be incompatible with both the right to good administration and the fundamental right to effective legal protection if a public authority could simply let the two-month time-limit provided for in Article 3(4) of Directive 90/313 expire and for this to be deemed to constitute a lawful refusal of a request for information on the environment. Logically, therefore, the Court has held that the individual must automatically be informed of the reasons for the refusal of his request, not necessarily at the same time as the actual refusal but in any event within the two-month time-limit. ( )

34. On those grounds, I, unlike the defendants and the SDRB, agree with Mr Housieaux and the Commission that the mere failure by a public authority to respond within the two-month time-limit can never be compatible with the directive as a procedure for processing a request for information on the environment. Rather, the statutory interpretation of a public authority’s failure to respond as a refusal of the request made to it may only ever be a device intended to allow members of the public to obtain effective legal protection against the public authority’s (unlawful) failure to take action in their regard. Understood in this way, the fiction that a failure to respond constitutes a refusal (or an approval) is primarily a means of disciplining the public authority. First and foremost, it is intended to strengthen the rights of those concerned and, at best, can also serve generally to expedite the administrative process.

35. Moreover, fictions of this kind are by no means unusual at the Community level as well. In this context, it is particularly noteworthy that, under the Community’s ‘Transparency Regulation’, a request for access to European Parliament, Council and Commission documents is deemed to have been refused if the body concerned itself fails to reply within the prescribed time-limit to a confirmatory application from the applicant. ( ) Likewise under the Community law on the public service, the appointing authority’s failure to respond to a request or a complaint made by an official is deemed to constitute an implied refusal. ( ) And Community competition law even contains fictions of positive decisions: under that law, a concentration between undertakings notified to the Commission is deemed to have been authorised if the Commission does not take within specified procedural time-limits any of the decisions provided for in the EC Merger Regulation; ( ) the same applies if the Commission does not initiate within the prescribed time-limit the procedure for examining a measure of State aid which has been notified to it. ( )

36. However, fictions of this kind are always devices intended to strengthen the rights of the applicant. Under no circumstances do such fictions serve to relieve the Community institutions concerned or still less to exempt them from the statutory obligation to provide the applicant with an express and reasoned response in each individual case.

37. If a public authority were permitted simply to let the time-limit prescribed for processing a request made to it expire rather than responding to it expressly, the obligation to give reasons which stems from Community law would be rendered meaningless. ( ) After all, contrary to the view taken by the defendants, a public authority’s failure to respond cannot as such provide any explanation as to whatever reasons there may be for authorising or refusing the action requested. ( ) Thus under Article 3(2) and (3) of Directive 90/313, a request for information on the environment can be refused for a wide variety of reasons. The same applies to any refusal of access to documents under Article 4 of Regulation No 1049/2001. Indeed, a decision on the compatibility with the common market of a concentration or a measure of State aid generally requires the assessment of complex economic issues. The reasons which prompted the public authority in a particular case not to respond within the time-limit, if indeed it had formed an opinion at all within that period, could only be guessed at by those concerned by the decision (the applicant or third parties ( )). Reliance on guesswork, however, would not satisfy the right of members of the public to good administration and their fundamental right to effective legal protection.

38. In 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. ( ) 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, ( ) but also in the case of the public authority’s failure to act (failure to respond). ( ) 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, ( ) 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. ( )

43. Under the principle of the procedural autonomy of the Member States, ( ) it is therefore, as already stated in the context of the third question, ( ) 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). ( )

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. ( ) 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; ( ) any subsequent express decisions by the appointing authority can be challenged only if they were taken within the original period for lodging an appeal. ( )

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.