OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 21 March 2013 ( 1 )

Case C-515/11

Deutsche Umwelthilfe eV

v

Bundesrepublik Deutschland

(Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany))

‛Access to environmental information held by or for public authorities — Scope of the exception in Article 2(2) of Directive 2003/4/EC — Whether public authorities adopting executive regulatory instruments act in a legislative capacity’

1. A hierarchy of norms is a usual feature of modern legal systems. It connotes the idea of a vertical ordering of legal acts, those lower in rank being made pursuant to enabling powers contained in an act of a higher status. Thus, primary legislation enacted pursuant to parliamentary procedures and adopted by the legislature is complemented by secondary legislation ( 2 ) adopted by the executive pursuant to an enabling power set out in a primary legislative act. When adopting such acts the executive is often able to follow a less elaborate procedure than that which applies to primary legislation. ( 3 )

2. In this reference from the Verwaltungsgericht Berlin (Germany), the national court raises the issue that the Court did not answer in Flachglas Torgau, ( 4 ) because it was not relevant to the outcome of that case, namely whether the executive branch of government is a body or institution acting in a legislative capacity within the meaning of Article 2(2) of Directive 2003/4 ( 5 ) when it adopts regulatory instruments pursuant to a legal power conferred by enabling provisions contained in primary legislation.

Legislation

The Aarhus Convention

3. The European Union, the Member States and 19 other States are contracting parties to the Aarhus Convention which entered into force on 30 October 2001. ( 6 ) The Convention is based on three ‘pillars’ – access to information, public participation, and access to justice. Its preamble includes the following recitals:

‘Recognising that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns,

Aiming thereby to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment,

Recognising the desirability of transparency in all branches of government and inviting legislative bodies to implement the principles of this Convention in their proceedings’.

4. Article 2(2) of the Convention defines ‘public authority’ as, in particular, ‘government at national, regional and other level’, together with any natural or legal persons having public duties, responsibilities or functions, particularly with regard to the environment, but excludes from that definition ‘bodies or institutions acting in a judicial or legislative capacity’.

5. Article 4 of the Convention, which introduces the first pillar, is entitled ‘Access to environmental information’. In essence, its first two paragraphs require the contracting parties to ensure that public authorities, in response to a request for environmental information, make such information available to the public as soon as possible, without an interest having to be stated. Article 4(3) and (4) lay down certain grounds on which such a request may be refused. The final subparagraph of Article 4(4) states: ‘The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.’

6. Article 8 of the Convention is entitled ‘Public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments’. It provides that the contracting parties must strive to promote effective public participation at an appropriate stage and while options are still open in relation to the preparation of such measures.

Treaty provisions

7. Article 289 TFEU concerns legislative acts in the European Union system. Article 289(3) provides that legal acts adopted by legislative procedure shall constitute legislative acts. Article 290 TFEU defines delegated acts and sets the conditions and controls over making such acts at European Union level.

The Environmental Impact Assessment Directive

8. The EIA Directive ( 7 ) is intended to harmonise the assessment of effects on the environment which are likely to occur if certain projects are realised. The sixth recital in the preamble states that ‘development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; … this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question’.

9. Article 1(5) of the EIA Directive provides that that directive does not apply to projects the details of which are adopted by a specific act of national legislation, since the directive’s objectives, including that of supplying information, are achieved through the legislative process.

Directive 2003/4

10. Directive 2003/4 covers the first pillar of the Aarhus Convention, together with those parts of the third pillar which are relevant to access to information.

11. Recitals 1, 5, 7, 11 and 16 in the preamble to Directive 2003/4 state: ‘(1) Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment. … (5) … Provisions of Community law must be consistent with [the Aarhus Convention] with a view to its conclusion by the European Community. … (7) Disparities between the laws in force in the Member States concerning access to environmental information held by public authorities can create inequality within the Community as regards access to such information or as regards conditions of competition. … (11) To take account of the principle in Article 6 of the Treaty, that environmental protection requirements should be integrated into the definition and implementation of Community policies and activities, the definition of public authorities should be expanded so as to encompass government or other public administration at national, regional or local level whether or not they have specific responsibilities for the environment. The definition should likewise be expanded to include other persons or bodies performing public administrative functions in relation to the environment under national law, as well as other persons or bodies acting under their control and having public responsibilities or functions in relation to the environment. … (16) The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. … …’

12. Article 1 of Directive 2003/4 states: ‘The objectives of this Directive are: (a) to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise; and (b) to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information. …’

13. Article 2(1) of Directive 2003/4 defines ‘environmental information’ as: ‘… any information in written, visual, aural, electronic or any other material form on: (a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a); (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements; …’

14. Article 2(2) defines public authority as: ‘(a) government or other public administration, including public advisory bodies, at national, regional or local level; … Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. …’

15. Article 2(3) defines information held by a public authority as ‘environmental information in its possession which has been produced or received by that authority’.

16. Article 3(1) provides: ‘Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest.’

17. Article 4 is entitled: ‘Exceptions’. It sets out, in paragraphs 1 and 2, the circumstances in which Member States may provide for a request for environmental information to be refused. Those circumstances reflect the provisions of Article 4(3) and (4) of the Aarhus Convention. ( 8 ) The second subparagraph of Article 4(2) states: ‘The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure.’

National law

18. The Umweltinformationsgesetz (Environmental Information Law, ‘the UIG’) implemented Directive 2003/4 in German federal law.

19. Paragraph 2(1)(1) of the UIG includes ‘the government and other public administrative bodies’ among those required to provide information. However, Paragraph 2(1)(1)(a) expressly excludes ‘the highest Federal authorities from that obligation when acting in the context of a legislative process or issuing regulatory instruments [“Rechtsverordnungen”]’.

20. National legislation ( 9 ) empowers the Federal Ministry of Economic Affairs and Technology (‘the Ministry’) to adopt regulations amending the Pkw-Energieverbrauchskennzeichnungsverordnung (‘Regulation on energy-consumption labelling of motor cars’).

21. The regulation of 22 August 2011 ( 10 ) was duly adopted by the Ministry under those enabling powers. That regulation deals with the provision of information to consumers regarding the fuel consumption, carbon dioxide emissions and electricity consumption of new motor cars. It provides that that information must be given to consumers prior to the conclusion of a contract of sale, because it is considered that such information may influence whether or not they make a purchase. Consumers’ decisions determine which cars are on the road generating carbon dioxide emissions and thus ultimately affect the air and the atmosphere.

Facts, procedure and the questions referred

22. On 14 October 2010 Deutsche Umwelthilfe, an environmental association, made a request to the Ministry under the UIG. Specifically, it sought access to information which the German car industry had submitted to the Ministry during the preparatory stages of the process that led in due course to the adoption of the regulation of 22 August 2011.

23. The Ministry rejected Deutsche Umwelthilfe’s request on the grounds that it had been acting in a legislative capacity and was therefore not a public authority subject to an obligation to provide environmental information.

24. Deutsche Umwelthilfe instituted proceedings challenging that decision before the Verwaltungsgericht Berlin, which has referred the following questions to the Court: ‘(1) Is the second sentence of Article 2(2) of [Directive 2003/4/EC] to be interpreted as meaning that bodies and institutions are acting in a legislative capacity when their activities relate to legislation by the executive on the basis of authorisation given by a law enacted by parliament? (2) If question 1 is to be answered in the affirmative, are such bodies and institutions permanently excluded from the term “public authority”, or only until completion of the legislative process?’

25. Written observations were submitted by Deutsche Umwelthilfe, the German Government and the European Commission, all of whom made oral submissions at the hearing on 17 January 2013.

Preliminary issues

26. The Commission has raised three matters which I shall address before embarking on the substance of my analysis.

27. First, the Commission points out that prior to the Lisbon Treaty there was no general definition of ‘legislative act’ at European Union level. It was therefore possible to claim legitimately that Commission regulations, by virtue of their substantive content, were legislative acts. However, such a claim is no longer possible in the light of Article 289(3) TFEU. Whether an EU measure is a legislative act is now a question of form rather than substance. ( 11 ) The Commission argues that, if regard is had to whether a particular type of regulatory instrument is classified as a legislative or executive act in each Member State, the answer to the question whether the exception in Article 2(2) of Directive 2003/4 applies would vary from Member State to Member State.

28. Given the rich variety of legal traditions and legal systems across the 27 Member States, it seems desirable to adopt an approach towards interpreting the directive that is more likely to achieve a uniform interpretation. ( 12 )

29. Second, the Commission accepts that the information sent to the Ministry by the German car industry to which Deutsche Umwelthilfe seeks access is environmental information for the purposes of Article 2(1) and (3) of Directive 2003/4. However, it submits that that material falls outside the scope of the second subparagraph of Article 2(2), because it does not emanate from a public authority. The Commission therefore contends that it is unnecessary to answer the national court’s first question.

30. I cannot agree.

31. The national court has not felt it necessary to refer a question asking whether requests for environmental information addressed to a public authority may target information provided to that authority by a private individual. In my view, it was fully entitled not to do so.

32. The emphasis that the Commission places on the provenance of the information in question and whether it emanates from a private individual or a public authority is plainly at variance with Article 2(3) of Directive 2003/4, which states that information held by a public authority is ‘environmental information in its possession’ if it has been ‘produced or received by that authority’. Whilst the former category of information will indeed (by definition) have been generated by a ‘public authority’, I can see no good reason to suppose that the latter category is meant to be limited to information received from other public authorities. On the contrary: the natural reading is that authorship is irrelevant – what matters is possession.

33. Third, the national court takes the view that the adoption of regulatory instruments within the meaning of Paragraph 2(1)(1)(a) of the UIG covers all directly associated activities including consultations between the Ministry and the German car industry. The Commission considers that the national court’s interpretation of Paragraph 2(1)(1)(a) of the UIG is incompatible with the second subparagraph of Article 2(2) of Directive 2003/4 and puts forward a different interpretation of national law.

34. Again, I cannot accept the Commission’s position.

35. It is settled law that the Court is in principle required to base its consideration on the description of national law given in the order for reference. ( 13 )

36. Furthermore, it is a characteristic of the preliminary reference procedure under Article 267 TFEU that it is for the national court to rule on the dispute before it taking account of the Court’s reply. ( 14 ) Thus, it is for the court making the reference to assess the compatibility of national legislation with European Union rules. This Court’s function is to provide the national court with the criteria to enable it to interpret Article 2(2) of Directive 2003/4 and to apply its national rules, ( 15 ) not to rule on the compatibility of Paragraph 2(1)(1)(a) of the UIG with that directive. It follows that the Court should answer the national court’s first question.

Question 1

37. In Flachglas Torgau the Court was asked whether the exception in Article 2(2) of Directive 2003/4 applies to ministries when they participate in the process of adopting primary legislation. The Court held that a functional interpretation should apply to the phrase ‘bodies or institutions acting in a … legislative capacity’. Where ministries are responsible under national law for tabling draft laws, presenting them to parliament and participating in the legislative process, in particular by formulating opinions, they may therefore fall within the exception (if the Member State chooses to apply it).

38. The present case differs from Flachglas Torgau. Here, the question is whether regulatory instruments adopted by the executive are covered by that exception.

39. Deutsche Umwelthilfe contends that Article 2(2) of Directive 2003/4 should be interpreted narrowly so as to exclude the process of adopting such measures. The German Government considers that, on the contrary, a wide interpretation is appropriate. The Commission submits that a narrow interpretation would fail to take account of the Court’s functional approach in Flachglas Torgau. Too wide an interpretation, however, would be inconsistent with the meaning of the directive as construed in the light of the Aarhus Convention.

40. Should the exception provided in Article 2(2) of Directive 2003/4 be interpreted widely or narrowly? Or is there a third option whereby certain regulatory instruments, but not others, are covered by the exception? If so, how should the protected category be delineated?

41. There is no indication in the wording of Directive 2003/4 or the Aarhus Convention as to whether bodies or institutions adopting regulatory instruments are to be considered as ‘acting in a … legislative capacity’.

42. When interpreting exceptions to a general rule the Court will adopt a strict approach. ( 16 ) Thus in Flachglas Torgau the Court held that the second subparagraph of Article 2(2) of Directive 2003/4 may not be interpreted in such a way as to extend the effects of the derogation beyond what is necessary to safeguard the interests which it seeks to secure; and that the scope of the derogations which it lays down must be determined in the light of the aims of the directive. ( 17 ) That approach should clearly be followed here.

43. Furthermore, Directive 2003/4 is to be read in the light of the objectives and scheme of the Aarhus Convention. ( 18 ) Where there is a choice of more than one approach towards interpreting that directive, I consider it preferable to take that which deviates less from the Convention. ( 19 )

44. Both the Convention and Directive 2003/4 reflect a determination to ensure increased transparency, in particular with respect to a citizen’s ability to hold public authorities to account. ( 20 ) Guaranteeing the right of public access to environmental information is expressly mentioned as an objective in Article 1 of the Convention (and Article 1 of the directive). In overall terms transparency is beneficial, although unlimited transparency is not envisaged. In particular, both the Convention and Directive 2003/4 accept that the objective of providing transparency may be tempered by the need to allow public authorities to carry out their tasks without undue disruption. ( 21 )

45. Given the importance that the Convention affords to ensuring transparency Directive 2003/4 should, where ambiguous, be construed so as to promote that objective rather than adopting an interpretation that would render achieving that objective more difficult. ( 22 )

46. Article 4(1) of the Convention provides that, upon request, public authorities are under an obligation to make environmental information available to the public. However, where the exception in Article 2(2) applies, the body or institution concerned falls outside the definition of a ‘public authority’ and it is consequently not subject to that obligation. It is therefore relieved from the task of considering whether access to information sought may or should be refused on the basis of the exceptions listed in Article 4(3) and (4).

47. Would bodies or institutions be impeded in adopting regulatory instruments if the overarching exception in Article 2(2) of the directive did not apply to them and they were subject to the normal obligation to disclose subject to the exceptions listed in Article 4(1) thereof?

48. The Court held in Flachglas Torgau that: ‘The purpose of the first sentence of the second subparagraph of Article 2(2) of Directive 2003/4 is to allow Member States to lay down appropriate rules to ensure that the process for the adoption of legislation runs smoothly, taking into account the fact that, in the various Member States, the provision of information to citizens is, usually, adequately ensured in the legislative process’. ( 23 )

49. In the light of that statement, Germany asks: why should the process for the adoption of regulatory instruments not be protected by the same safeguards that apply to adopting primary legislation?

50. That is a fair question. In answering it, I shall take account of the following factors.

51. Like primary legislation, regulatory instruments are usually measures that contain binding rules of general application. The two categories of legal norm are, however, not the same. Importantly, the procedures leading to the adoption of primary and secondary legislation differ. Indeed that is partly why many (if not most legal) systems contain mechanisms making it possible to legislate at different levels. Parliamentary procedures for adopting primary legislation are by their nature time-consuming. They can also be rigid. Thus, an interruption to the timescale can derail an administration’s legislative agenda. The procedures for adopting secondary legislation, whilst sometimes complex, are nonetheless significantly quicker and more flexible than a full parliamentary process, thus allowing the administration to take regulatory action relatively expeditiously. ( 24 ) A feature of the process of adopting secondary legislation is that, in general, the full democratic parliamentary process is less engaged. There may be little (or indeed no) procedural requirement for parliamentary debate. There is, in general, therefore less transparency and less opportunity for public scrutiny.

52. Germany maintains that the process leading to the adoption of the regulation of 22 August 2011 was transparent. Deutsche Umwelthilfe claims that that process did not provide a comparable degree of transparency and public scrutiny to that afforded by the parliamentary process for adopting primary legislation.

53. There is no neat division regarding what is covered by primary legislation and by instruments of a lower rank. Regulatory instruments can be used to introduce contentious measures. It is not unknown for legislators to manipulate their national system by using the less transparent process afforded by secondary legislation to implement difficult policy choices outside the glare of public scrutiny in the parliamentary process (I add at once that I am not suggesting that that was the case here). Proposed measures affecting the environment can evoke strong views for or against. The Aarhus Convention aims to prevent legislation affecting the environment being made in secret.

54. Insofar as procedures for adopting secondary legislation provide less transparency and less opportunity for public scrutiny, it follows that an interpretation of Article 2(2) of Directive 2003/4 that extended the exception for ‘acting in a … legislative capacity’ to cover all regulatory instruments would be inconsistent with attaining the objectives of the Convention. ( 25 )

55. I prefer to resolve the ambiguity in Article 2(2) by interpreting that provision in a manner which ensures that more (rather than less) transparency and therefore more (rather than less) public scrutiny are achieved. I thus take the view that the presumption should be that regulatory instruments fall outside the scope of the exception.

56. I add that the Convention itself makes specific provision for ‘executive regulations and/or generally applicable legally binding normative instruments’ in Article 8, concerning the second pillar, (which deals with public participation). Such a distinction suggests that, within the scheme of the Convention, the adoption of primary legislation is considered to be intrinsically different from the adoption of regulatory instruments. It is therefore, unlikely that the words ‘acting in a … legislative capacity’ in Article 2(2) of the Convention, which are transposed almost verbatim by Article 2(2) of Directive 2003/4, were intended automatically to include both activities.

57. Would the process of adopting secondary legislation cease to run smoothly ( 26 ) if the overarching exception in Article 2(2) did not apply automatically to that category of legal norm?

58. The words ‘acting in a … legislative capacity’ in Article 2(2) cover a fluid process. A number of preparatory functions are performed by the executive branch of government before the draft text of a proposed law is debated during a parliamentary session. These may include gathering and assessing information, forming policy, drafting legal rules, preparing legal opinions relating to the act concerned, and conducting a consultation exercise. Information concerning certain of those activities might well be covered by one of the exceptions in Article 4(1) or (2) of Directive 2003/4, thus affording the necessary degree of protection within the regulatory process. For the rest, it seems to me that the potential risk of ‘disruption’ to the adoption of regulatory instruments is the price that is paid for achieving the transparency and public accountability sought by the Convention and the directive.

59. Both Germany and the Commission acknowledge that different constitutional provisions may lead to different results in the various Member States. Any interpretation based upon specific procedural features of the regulatory process therefore risks applying the exception in Article 2(2) of the directive in different ways across the European Union. That would be contrary to one of the clear objectives of Directive 2003/4, as set out in recital 7 in the preamble, which is to harmonise the disparities between the laws of the Member States concerning access to environmental information held by public authorities, which in turn requires a uniform interpretation of EU law. ( 27 )

60. Thus far I have spoken of a presumption that the adoption of regulatory instruments is not covered by the overarching exception for ‘legislative activity’ contained in Article 2(2) of Directive 2003/4. Is that presumption rebuttable and if so on what basis?

61. Both the German Government and the Commission invite the Court to establish criteria to enable national courts to determine whether a particular regulatory instrument falls within or without the scope of the exception in Article 2(2) of the directive. (In so suggesting, it seems to me that they must necessarily accept – albeit implicitly – that some regulatory instruments ought not to be protected by that exception.)

62. Is it possible to lay down such criteria?

63. The Commission suggests that the case-law developed by the Court in interpreting the EIA Directive should apply here by analogy. ( 28 ) That case-law indicates essentially that only projects the details of which have been adopted by a specific legislative act, in such a way that the objectives of the EIA Directive have been achieved by the legislative process, are excluded from that directive’s scope. ( 29 ) The German Government disagrees. It submits that the case-law concerning the EIA Directive does not assist in interpreting the scope of Article 2(2) of Directive 2003/4.

64. I am not convinced that the EIA Directive case-law can be applied by direct analogy.

65. The EIA Directive applies in particular circumstances where an environmental impact assessment is made on the basis of information supplied by the developer concerned. Directive 2003/4 is much broader in its scope. It provides 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 the public authorities, without that person having to show an interest. ( 30 ) I do not consider therefore that it is appropriate merely to transpose the Court’s interpretation of the very specific provisions of the EIA Directive to the general regime covered by Directive 2003/4.

66. However, I agree with the Commission to the extent that, in seeking to formulate criteria to determine whether, in a particular case, the presumption that regulatory instruments do not fall within the exception to Article 2(2) is rebutted, it is essential to refer to the objectives of Directive 2003/4. It seems to me that where (a) the procedures leading to the adoption of a regulatory instrument meet the objectives identified by the Court, guaranteeing the right of access to environmental information held by a public authority, and (b) the dissemination and making available of such information to the public ( 31 ) are achieved in a manner that is comparable to that which pertains when primary legislation is enacted, transparency and the opportunity for public scrutiny are ensured. In those circumstances, applying the exception in Article 2(2) of Directive 2003/4 would not undermine the effectiveness of that directive. It will be for the national court to determine whether those criteria are satisfied in a particular case; and the burden of proof to demonstrate that that is so should lie with the public authority that is seeking to invoke the exception.

67. Admittedly, not having a black/white rule as to whether or not the procedure for making regulatory instruments is covered by the Article 2(2) exception will mean that national courts will, as necessary, have to examine and compare national procedures for enacting primary and secondary legislation. In reviewing the level of safeguards provided by national law, national judges will become the guardians of the transparency and accountability required by the Aarhus Convention and by Directive 2003/4. They will of course always be able, if they wish, to seek further guidance from this Court before pronouncing judgment.

68. The referring court has, of course, not yet embarked upon such an exercise in the present case. Should the Court adopt the approach that I am proposing, it will be a matter for the national court to examine the procedures under national law leading to the adoption of the regulation of 22 August 2011 and to determine whether the objectives of transparency and public scrutiny were guaranteed in the process of adopting that regulatory instrument, in particular in allowing access to information received by the Ministry concerned, as well as information emanating from it, preparatory documents and any parliamentary debates. Only if the national court is satisfied that that was the case should it allow the exception in Article 2(2) of Directive 2003/4 to apply.

69. Accordingly, I consider that the national court’s first question should be answered to the effect that executive bodies adopting binding acts under powers granted by a parliamentary act are excluded from the scope of the exception in the first sentence of the second subparagraph of Article 2(2) of Directive 2003/4, unless the procedure for adopting such instruments guarantees a right of access to environmental information in such a way that the objectives of Directive 2003/4 have been achieved in a way comparable to that provided by the procedure for adopting legislative acts. The burden of demonstrating that that is so lies with the executive body seeking to rely upon that exception. It is for the national court to verify that the objectives of Directive 2003/4 have been satisfied, taking account in particular of the objectives of transparency and public scrutiny.

Question 2

70. If the Court answers question 1 as I have suggested, there is no need to reply to question 2. However, for the sake of completeness, should the Court wish to answer that question I agree with all the parties that – applying the reasoning of the Court in Flachglas Torgau ( 32 ) – 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.

Conclusion

71. In the light of the foregoing considerations, I suggest that the Court should answer question 1 raised by the Verwaltungsgericht Berlin as follows: For the purposes of Article 2(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, an executive body is excluded from the exception in the first sentence of Article 2(2) of that directive when adopting regulatory instruments pursuant to enabling powers contained in a legal rule of a higher rank, unless the procedure for adopting such instruments guarantees a right of access to environmental information in such a way that the objectives of Directive 2003/4 have been achieved in a way comparable to that provided by the procedure for adopting legislative acts. The burden of demonstrating that that is so lies with the executive body seeking to rely upon that exception. It is for the national court to verify that the objectives of Directive 2003/4 have been satisfied, taking account in particular of the objectives of transparency and public scrutiny. There is no need to answer question 2.

( 1 ) Original language: English.

( 2 ) I shall also use the term ‘regulatory instruments’ when referring to such measures in this Opinion.

( 3 ) See point 51 below.

( 4 ) Case C-204/09 [2012] ECR, paragraph 34. See also points 47 and 48 of my Opinion in that case.

( 5 ) 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). Directive 90/313 on the freedom of access to information on the environment made provision for access to environmental information held by public authorities from 1 January 1993.

( 6 ) The Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters (‘the Aarhus Convention’ or ‘the Convention’) was signed on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).

( 7 ) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) (‘the EIA Directive’).

( 8 ) See point 5 above.

( 9 ) Paragraph 1(1)(1), (2)(2), (3)(1) and (3)(3) to (3)(5) of the Energieverbrauchskennzeichnungsgesetz (‘Law on energy consumption labelling’) of 30 January 2002, as amended by the regulation of 31 October 2006 (the ‘EnVKG’).

( 10 ) The Erste Verordnung zur Änderung der Pkw-Energieverbrauchskennzeichnungsverordnung (‘First Regulation amending the Regulation on energy-consumption labelling of motor cars’) of 22 August 2011 (‘the regulation of 22 August 2011’).

( 11 ) See point 7 above.

( 12 ) See recital 7 in the preamble to Directive 2003/4 and Flachglas Torgau, cited in footnote 4 above, paragraph 50. See also point 59 below.

( 13 ) Case C-511/03 Ten Kate Holding Musselkanaal and Others [2005] ECR I-8979, paragraph 25 and the case-law cited.

( 14 ) Case C-14/09 Genc [2010] ECR I-931, paragraph 31.

( 15 ) Case C-284/06 Burda [2008] ECR I-4571, paragraph 39.

( 16 ) See, for example, Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27, and Joined Cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission [2010] ECR I-8533, paragraph 36, both concerning access to documents. See also Case C-321/96 Mecklenburg [1998] ECR I-3809, paragraph 25, concerning the interpretation of Article 2(a) and Article 3(2), third indent, of Council Directive 90/313/EEC (the predecessor to Directive 2003/4).

( 17 ) See paragraph 38 and the case-law cited.

( 18 ) See recital 5 in the preamble to Directive 2003/4. See also Flachglas Torgau, cited in footnote 4 above, paragraph 30 and the case-law cited.

( 19 ) See point 42 of my Opinion in Flachglas Torgau.

( 20 ) See the recitals to the Convention cited in point 3 and see in particular recital 1 in the preamble to Directive 2003/4, cited in point 11 above.

( 21 ) See points 30 and 31 of my Opinion in Flachglas Torgau.

( 22 ) See recital 16 in the preamble to Directive 2003/4, cited in point 11 above.

( 23 ) See Flachglas Torgau, cited in footnote 4 above, paragraph 43.

( 24 ) In its written observations the German Government states that in the years between 1949 and 1994 15000 regulatory instruments were adopted while 5000 primary acts were promulgated in the same period.

( 25 ) See recital 2 in the preamble to the Convention, cited in point 3 above.

( 26 ) See, with regard to judicial activities, Sweden and Others v API and Commission, cited in footnote 16 above, paragraphs 92 and 93. It does not necessarily follow, however, that a right to request procedural documents will automatically and in all contexts disturb the desired ‘atmosphere of serenity’ for the conduct of proceedings – see, for example, with regard to the European Court of Human Rights, Article 40(2) of the European Convention on Human Rights.

( 27 ) Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraph 27.

( 28 ) The Commission refers to Joined Cases C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus and Roua [2011] ECR I-9711, and Case C-435/97 WWF and Others [1999] ECR I-5613, paragraph 57.

( 29 ) Case C-287/98 Linster [2000] ECR I-6917, paragraph 51.

( 30 ) Flachglas Torgau, cited in footnote 4 above, paragraph 31 and the case-law cited.

( 31 ) Flachglas Torgau, cited in footnote 4 above, paragraph 38. See also points 30 and 54 of my Opinion in that case.

( 32 ) Flachglas Torgau, cited in footnote 4 above, paragraphs 52 to 58. See also points 66 to 76 of my Opinion in that case.