Case C‑71/14

East Sussex County Council

v

Information Commissioner

(Request for a preliminary ruling from the First-tier Tribunal)

‛Reference for a preliminary ruling — Aarhus Convention — Directive 2003/4/EC — Articles 5 and 6 — Public access to environmental information — Charge for supplying environmental information — Reasonable amount — Costs of maintaining a database and overheads — Access to justice — Administrative and judicial review of a decision imposing a charge’

Summary — Judgment of the Court (Fifth Chamber), 6 October 2015

Article 5(2) of Directive 2003/4 on public access to environmental information must be interpreted as meaning that the charge for supplying a particular type of environmental information may not include any part of the cost of maintaining a database used for that purpose by the public authority, but may include the overheads attributable to the time spent by the staff of the public authority on answering individual requests for information, properly taken into account in fixing the charge, provided that the total amount of the charge does not exceed a reasonable amount. It follows from Article 5(1) in conjunction with Article 3(5)(c) of Directive 2003/4 that, in principle, it is only the costs that do not arise from the establishment and maintenance of those registers, lists and facilities for examination that are attributable to the ‘supplying’ of environmental information and are costs for which the national authorities are entitled to charge under Article 5(2) of Directive 2003/4. Such costs encompass not only postal and photocopying costs but also the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, which includes the time spent on searching for the information and putting it in the form required. Furthermore, in view of the use of the expression ‘actual costs’ in recital 18 of Directive 2003/4, overheads, properly taken into account, may in principle be included in the calculation of the charge provided for in Article 5(2) of Directive 2003/4. The inclusion of overheads in the calculation of that charge corresponds to normal accounting principles. However, those costs can be included in the calculation of that charge only to the extent that they are attributable to a cost factor falling within the ‘supplying’ of environmental information. (see paras 34, 36, 39, 40, 45, operative part 1)

As regards the second condition laid down in Article 5(2) of Directive 2003/4 on public access to environmental information, namely that the total amount of the charge provided for in that provision must not exceed a reasonable amount, any interpretation of the expression ‘reasonable amount’ that may have a deterrent effect on persons wishing to obtain information or that may restrict their right of access to information must be rejected. In order to assess whether a charge made under Article 5(2) of Directive 2003/4 has a deterrent effect, account must be taken both of the economic situation of the person requesting the information and of the public interest in protection of the environment. That assessment cannot therefore relate solely to the person’s economic situation, but must also be based on an objective analysis of the amount of the charge. To that extent, the charge must not exceed the financial capacity of the person concerned, nor in any event appear objectively unreasonable. Moreover, the mere fact that a charge does not have a deterrent effect in relation to the economic situation of the persons concerned does not release the public authority from its obligation also to ensure that the charges do not appear unreasonable to the public, having regard to the public interest in protection of the environment. (see paras 42-44)

See the text of the decision. (see paras 48, 49)

Article 6 of Directive 2003/4 on public access to environmental information must be interpreted as not precluding national legislation under which the reasonableness of a charge for supplying a particular type of environmental information is the subject only of limited administrative and judicial review, as provided under the applicable national law, provided that the review is carried out on the basis of objective elements and, in accordance with the principles of equivalence and effectiveness, relates to the question whether the public authority making the charge has complied with the conditions in Article 5(2) of that directive, which is for the referring tribunal to ascertain. In Directive 2003/4, the expressions ‘be reconsidered’ and ‘reviewed administratively’ in Article 6(1) and ‘be reviewed’ in Article 6(2) do not determine the extent of the administrative and judicial review required by the directive. In the absence of further detail in EU law, it is for the legal systems of the Member States to determine that extent, subject to observance of the principles of equivalence and effectiveness. In that regard, the existence of effective administrative and judicial review of the making of a charge for supplying environmental information is intrinsically linked to the realisation of the objective pursued by the legislature of the European Union in adopting Directive 2003/4, namely to ensure the compatibility of EU law with the Aarhus Convention by providing for a general scheme to ensure that any natural or legal person in a Member State has a right of access to environmental information held by or on behalf of public authorities, without that person having to state an interest. (see paras 53, 56, 61, operative part 2)