EN Official Journal of the European Union C 98/2

Judgment of the Court (Grand Chamber) of 14 February 2012 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Flachglas Torgau GmbH v Federal Republic of Germany

(Case C-204/09) (1)

(Reference for a preliminary ruling - Aarhus Convention - Directive 2003/4/EC - Access to environmental information - Bodies or institutions acting in a legislative capacity - Confidentiality of the proceedings of public authorities - Condition that the confidentiality must be provided for by law)

2012/C 98/03

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Flachglas Torgau GmbH

Defendant: Federal Republic of Germany

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of the second sentence of Article 2(2) and indent (a) of the first 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) — National legislation exempting the supreme federal authorities from the obligation to provide information where they act in the context of the legislative process and providing generally that a request for information must be refused where disclosure of the information will adversely affect the confidentiality of proceedings — Limits of the power of the Member States to exclude bodies acting in a legislative capacity from the definition of ‘public authority’ under Directive 2003/4/EC — Conditions of application of the exception for the confidentiality of proceedings

Operative part of the judgment

1. The first sentence of the second subparagraph of Article 2(2) of Directive 2003/4/EC of the European Parliament and the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC 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 may be applied to ministries to the extent that they participate in the legislative process, in particular by tabling draft laws or giving opinions, and that option is not subject to the conditions set out in the second sentence of the second subparagraph of Article 2(2) of that directive.

2. The first sentence of the second subparagraph of Article 2(2) of Directive 2003/4 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 can no longer be exercised where the legislative process in question has ended.

3. Indent (a) of the first subparagraph of Article 4(2) of Directive 2003/4 must be interpreted as meaning that the condition that the confidentiality of the proceedings of public authorities must be provided for by law can be regarded as fulfilled by the existence, in the national law of the Member State concerned, of a rule which provides, generally, that the confidentiality of the proceedings of public authorities is a ground for refusing access to environmental information held by those authorities, in so far as national law clearly defines the concept of ‘proceedings’, which is for the national court to determine.

(1) OJ C 193, 15.8.2009.