WRITTEN QUESTION E-1612/03 by Heide Rühle (Verts/ALE) to the Commission. Further possible breach of directive on access to environmental information.
Date: 2003-05-13
Institutions: European Parliament, Provisional data
Subjects: Germany, access to information, case-law (EU), environmental protection, interpretation of the law, legislative procedure, public authorities, regional government

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The application was rejected on the grounds that, pursuant to § 3, paragraph 1, S2, No 3 of the above
German law, the public prosecutor’s office, as a law enforcement agency, does not fall among the
authorities governed by that law.

Does the Commission consider the rejection pursuant to § 3, paragraph 1, S2, No 3 of the German
Environment Information Law to be justified even though the public prosecutor’s office was acting only in
an investigative capacity and not in a ‘judicial capacity’ in accordance with Article 2(b) of Directive 90/313/
EEC?

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

(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))?

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

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
(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.

the German law on access to information concerning the environment

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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
judicial activities such as court procedures and judgements are in principle public. In
Member States,
contrast
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.

to that, prosecutors do not normally act

in public. Furthermore,

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 (1) 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 (2) 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.

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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 (3) 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) COM(2000) 400 final.
(2) OJ C 337 E, 28.11.2000.
(3) OJ L 41, 14.2.2003.

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WRITTEN QUESTION P-1608/03

by Bart Staes (Verts/ALE) to the Commission

(7 May 2003)

Subject: Destruction of obsolete pesticides

In its esteemed answer to Written Question P-0480/03 (1), the Commission states that, to date, not one of
the applicant countries has reacted to the letter from 28 MEPs concerning the receipt of financial aid for
inventory work on and the destruction of obsolete pesticides. On the other hand, the Commission has, on
several occasions in the past, acknowledged the problems posed by such obsolete pesticides.

At the same time, it leaves unanswered the question whether or not the applicant countries now have a
sufficient number of appropriate and efficient thermal
incinerators available in which to destroy the
stockpiles of obsolete pesticides (and, possibly, other hazardous waste prohibited in the EU of the Fifteen).

Can the Commission indicate whether the thermal incinerators in the applicant countries now meet the
requirements
in a manner which complies with the
Commission’s strictest standards in this area and what steps it will take, should that not be the case?

the incineration of obsolete pesticides

for

Can it indicate the approximate share that expired pesticides account for in the requests for financial aid
from seven Member States for inventory work on the pollution connected with persistent organic
pollutants and what share that constitutes of the total (estimated) amount of obsolete pesticides in general?

Does the Commission still take the view that it is for the applicant countries to take the initiative to apply
to it if they want to receive financial aid for the destruction of expired pesticides when it is obvious that,
after repeated urgent requests from, inter alia, the European Parliament, the applicant countries have not
yet realised that this problem must be taken seriously with a view to the protection of public health in
Europe? If so, on the basis of what arguments does the Commission persist in its view?

(1) OJ C 268 E, 7.11.2003.

Answer given by Mrs Wallström on behalf of the Commission

(13 June 2003)

In the accession negotiations for the environment chapter, nine of the Acceding Countries agreed to fully
comply with the standards set out in Directive 2000/76/EC of the Parliament and of the Council of
4 December 2000 on the incineration of waste (1) by accession for new installations and by the date