EN Official Journal of the European Union CE 33/140

(2004/C 33 E/139)

WRITTEN QUESTION E-1612/03

by Heide Rühle (Verts/ALE) to the Commission

(13 May 2003)

Subject: Further possible breach of directive on access to environmental information

The German Federal Ministry of Transport, Building and Housing has had a cost-benefit study carried out for a number of transport projects, in some cases in conjunction with environmental assessments. This report is also to be taken into account for draft legislation on the continuation of the federal road-building plan.

The Federal Government has asked the governments of the Länder for their opinions on the results of the cost-benefit study. The Baden-Württemberg Ministry of Transport has in turn asked the regional councils (Regierungspräsidien)for their opinions.

The Karlsruhe regional council was asked for a copy of its opinion pursuant to the German law on freedom of access to environmental information (UIG) and the Directive on public access to environmental information. The Karlsruhe regional council refused to comply with the request on the following grounds:

Under § 3, paragraph 1 No 1 of the UIG, the highest Land authorities, in so far as they are acting in a legislative capacity, are not subject to the obligation to provide information.

The Karlsruhe regional council is not the highest authority in the Land. However, the opinion of the Karlsruhe regional council on the federal road-building plan is required by the Ministry of the Environment and Transport for the purposes of Baden-Württemberg Land's participation in a legislative procedure, namely the procedure leading to the next law on the expansion of the national road network. § 3, paragraph 1 No 1 of the UIG, which exempts the Ministry from the obligation to provide information, cannot be circumvented by requesting the information not from the Ministry enjoying the privilege conferred by § 3, paragraph 1 No 1 of the UIG but from a subordinate body which does not enjoy that privilege.

Does the Commission take the view that the regional council may exempt its opinion from the principle of access to information on the grounds that the document was drawn up by the (subordinate) regional council for the (superior) Land Ministry acting in a legislative capacity (Article 2(b) of Directive 90/313/EEC (1))?

Joint answer

to Written Questions P-1605/03 and E-1612/03

given by Mrs Wallström on behalf of the Commission

(25 June 2003)

The questions put forward by the Honourable Member both relate to the question of compatibility of § 3, paragraph 1, of the German law on access to information concerning the environment (Umweltin-formationsgesetz) with Article 2 (b) of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment.

Article 2 (b) of this Directive defines ‘public authorities’ as ‘any public administration at national, regional or local level with responsibilities, and possessing information, relating to the environment with the exception of bodies acting in a judicial or legislative capacity’.

§ 3 (1) of the German law on access to information excludes the whole category of judicial bodies and gives an extensive interpretation to the concept of ‘judicial bodies’: Courts, prosecution and disciplinary authorities are excluded.

The interpretation of Directive 90/313/EEC is the responsibility of the Court of Justice. The Commission is of the opinion that, generally, the Directive tries to give free access to information on the environment that is held by public authorities and that therefore, any exception must be interpreted narrowly. In all Member States, judicial activities such as court procedures and judgements are in principle public. In contrast to that, prosecutors do not normally act in public. Furthermore, they might depend on instructions from political or administrative bodies, which is not the case with judges. Accordingly, prosecutors normally do not appear to act in a judicial capacity. For this reason, access to information on the environment which is held by a prosecutor should normally not be withheld, at least not in cases such as the one raised by the Honourable Member, where the investigation has been finished.

However, Directive 90/313/EEC enables Member States to refuse access to information which is or was subject to investigation procedures (Article 3(2), third indent). Under the present wording of Directive 90/313/EEC, public prosecutors may therefore refuse access to information on the environment which was subject of an investigation procedure, provided the transposing legislation of the Member State in question so provides.

As regards the bodies acting in legislative capacity, the German legislation defines that the highest federal and Land authorities are excluded in so as far as they are active in their legislative capacity. It appears from the contents of Written Question E-1612/03 that the Regierungspräsidium Karlsruhe considers itself not an oberste Landesbehörde, but that it refuses access to its comments on the cost-benefit study, because the Ministry for Transport of the Land Baden-Württemberg, as oberste Landesbehörde to which the Regierungspresidium Karlsruhe is sending these comments, would not be covered by the legislation as the comments are taken into account in the preparation of legislation.

As regards the opinion of an administrative authority which is given in preparation of or during a legislative procedure, the Commission is of the opinion that such an opinion is in no case part of the legislative procedure itself. It is irrelevant, whether the administrative authority is or is not the highest administrative authority in a Member State or a region. Indeed, the purpose of Directive 90/313/EEC is to give the largest possible access to information on the environment. In case C-321/96 (Mecklenburg) ECR 1998, p. I-3809, the Court of Justice has recognised this approach, without differentiating according to the level of administrative authority. Based on these considerations the Commission is currently investigating a complaint on this case of refusal to provide information.

The Commission would also like to draw the attention of the Honourable Member to recent developments relevant to the implementation of access to environmental information. On 29 June 2000, on the basis of Article 8 of Directive 90/313/EEC, the Commission presented a report (2) to the Council and the Parliament on the experience gained in the application of Directive 90/313/EEC. On page 10 of this report, the Commission indicated that the definitions of the information required to be disclosed and of the public authorities and other bodies required to disclose it, was one of the problem areas detected. The Commission considered that these should be clarified with the aim of extending each of the categories concerned.

On 29 June 2000, the Commission adopted a proposal (3) for a new Directive modifying Directive 90/313/EEC, which had as its aim correcting the shortcomings identified in the practical application of Directive 90/313/EEC and at the same time paving the way towards the ratification by the Community of the United Nations/Economic Commission for Europe (UN/ECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the so-called Aarhus Convention), signed in 1998.

As a result of the legislative process Directive 2003/4/EC of the Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (4) was adopted on 28 January 2003. Article 2 (2) of this Directive further clarifies which public authorities are subject to the Directive and indicates that ‘Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity.’

The Commission is aware that the German authorities are currently working on the modification of the Umweltinformationsgesetz in order to meet the obligations of Directive 2003/4/EC.

The Commission will, when monitoring the legislative processes in the Member States as regards the modification of existing legislation with a view to align this to Directive 2003/4/EC, take due account of the issue raised by the Honourable Member along the lines set out above.

(1) OJ L 158, 23.6.1990, p. 56.

(2) COM(2000) 400 final.

(3) OJ C 337 E, 28.11.2000.

(4) OJ L 41, 14.2.2003.