REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT ON THE EXPERIENCE GAINED IN THE APPLICATION OF DIRECTIVE 2003/4/EC ON PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION
Date: 2012-12-17
Institutions: European Commission
Subjects: EU Member State, access to information, application of EU law, dissemination of information, environmental policy

EUROPEAN 
COMMISSION 

Brussels, 17.12.2012  
COM(2012) 774 final 

REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN 
PARLIAMENT 

ON THE EXPERIENCE GAINED IN THE APPLICATION OF DIRECTIVE 
2003/4/EC ON PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 

EN 

   EN 

 
 
 
 
  
 
REPORT FROM THE COMMISSION 
TO THE COUNCIL AND THE EUROPEAN PARLIAMENT 

ON THE EXPERIENCE GAINED IN THE APPLICATION OF DIRECTIVE 2003/4/EC ON 
PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION 

I. Introduction 

The  Commission  established  this  evaluation  report  to  the  European  Parliament  and  to  the 
Council  in  accordance  with  Article  9(2)  of  Directive  2003/4/EC  ('the  Directive')1  of  the 
European Parliament  and  of  the  Council on public access to environmental information and 
repealing  Council  Directive  90/313/EEC.2  It  is  based  on  the  experience  gained  by  the 
Commission  and  the  Member  States  over  several  years  of  application  of  the  Directive.  As 
required  by  Article  9(1),  every  Member  State  has  reported  on  how  it  is  implementing  the 
Directive. 

As  stipulated  in  Article 9(2),  the  report  takes  into  account  developments  in  electronic 
technology. This review therefore forms part of the Digital Agenda for Europe.3 It also fits in 
with the general goal of making 'full use of information and communication technologies', set 
in the Europe 2020 Strategy.4 

This report focuses on the new provisions, such as the broader definitions of terms and more 
active  dissemination  of  information.  It  must  also  be  seen  in  the  context  of  recent  policy 
developments  such  as  the  Communication  on  Implementation5,  in  which  the  Commission 
identified  access  to  information  as  a  key  priority  for  improving  implementation  of 
environmental  law  and  committed  itself  to  assessing  how  to  make  the  Directive  more 
effective. 

II. Key features of the Directive 

The previous directive 

Directive 90/313/EEC started from the concept that environmental issues are best handled and 
that  environmental  protection  will  ultimately  improve  if  everyone  concerned  participates  at 
the relevant level. To foster public awareness and involvement, it provided a set of rights of 
access to information on the environment and laid down the basic terms and conditions under 
which  they  could  be  exercised.  The  Commission's  report  on  the  application  of  the  previous 

1   OJ L 41 of 14 February 2003, p. 26.  
2   Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment, 

OJ L 158 of 23 June 1990, p. 56. Repealed by the Directive with effect from 14 February 2005. 

3   Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of the Regions of 26 August 2010 on a Digital Agenda for Europe, 
COM (2010)245 final/2. 

4   Communication from the Commission of 3 March 2010 on Europe 2020 – A strategy for smart, sustainable 

and inclusive growth, COM(2010)2020, p. 9. 

5     Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of the Regions of 7 March 2012 on improving the delivery of benefits 
from  EU  environment  measures:  building  confidence  through  better  knowledge  and  responsiveness, 
COM(2012)95 final. 

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directive6  concluded  that  it  had  brought  positive  results,  but  also  identified  some 
shortcomings. The Commission therefore decided to replace it by a new directive. 

Changes introduced by the Directive  

The Directive built on the experience gained under its predecessor. Furthermore, at the time it 
was drafted, the European Union was preparing to ratify the UN-ECE Convention on Access 
to  Information,  Public  Participation  in  Decision-Making  and  Access  to  Justice  in 
Environmental Matters ('the Aarhus Convention').7 In that context, the Directive was brought 
into line with the generally more far-reaching provisions of the Aarhus Convention on access 
to information. The Directive also took account of developments in electronic communication 
technology, particularly for the format in which information was to be provided. It also placed 
stronger emphasis on  active  dissemination of information and set out more detailed rules in 
areas where Directive 90/313/EEC had still referred to national law. The main changes are: 

-   a broader definition of 'environmental information' which encompasses a wider range of 

matters related to the environment; 

-   a  broader  definition  of  'public  authorities'  which  includes  persons  who  perform  public 

administrative functions; 

-   more  detailed  provisions  on  the  form  in  which  information  is  to  be  made  available, 
including  a  general  obligation  to  provide  information  in  the  format  requested  and  the 
possibility to use electronic means; 

-   a  shorter  deadline  of  one  month  for  making  the  information  requested  available,  to  be 
extended by a further month if the volume and complexity of the information so require; 

-  

limitations  on  the  grounds  for  refusal.  Requests  for  information  may  be  refused  only  if 
disclosure  would  adversely  affect  one  of  the  interests  listed.  The  exceptions  are  to  be 
interpreted restrictively, taking into account the public interest served by disclosure; 

-  

limitations  on  the  grounds  for  refusal  if  the  request  relates  to  information  on  emissions 
into the environment ('emissions-rule'); 

-   additional  obligations  placed  on  national  authorities  to  collect  and  disseminate 

information going beyond the obligation to disclose information; 

-   additional obligations placed on national authorities to assist the public in seeking access 

to information; 

-  

improved  procedures  for  review  of  acts  or  omissions  by  public  authorities,  in  particular 
before a court of law or another independent and impartial body established by law. 

6   Report from the Commission to the Council and the European Parliament on the experience gained in the 
application of Council Directive 90/313/EEC of 7 June 1990, on freedom of access to information on the 
environment, COM(2000) 400 final. 

7   The  European  Community  signed  the  Aarhus  Convention  on  25  June  1998  and  ratified  it  on  17 February 

2005. The Convention entered into force on 30 October 2001. 

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III. Transposition by the Member States 

Under Article 10, the Directive had to be transposed into national legislation by 14 February 
2005 (1 January 2007 for Bulgaria and Romania). However, most Member States were late in 
transposing it. The Commission therefore initiated infringement and then Court proceedings. 
Three cases, against Germany, Greece and Spain,8 were, however, closed after these Member 
States  had  transposed  the  Directive.  In  two  cases,  the  Court  of  Justice  ruled  that  by  not 
adopting, within the period prescribed, all the laws, regulations and administrative provisions 
necessary  to  transpose  the  Directive,  Austria9  and  Ireland10  had  failed  to  fulfil  their 
obligations under the Directive. In the meantime, all the Member States have transposed it.11 

IV. The review procedure 

As a first step in the review procedure under Article 9, Member States were asked to report on 
their  experience  with  application  of  the  Directive.  As  required  by  Article  9(1),  the 
Commission sent them a guidance document on 19 June 2007. It asked the Member States to 
present a general description of the measures taken to implement the Directive, to report on 
their impact, to focus on the individual articles of the Directive and to provide any statistics. 

The Commission noted delays in communication of the national reports. By the deadline set 
in  the  Directive  (14  August  2009),  less  than  half  of  the  reports  had  been  received.  After 
further  invitations  to  respond,  in  December  2009  the  Commission  initiated  11  infringement 
procedures.  By mid-April  2010,  all  the  national  reports  had  been  received.  They  were 
translated by the end of July 201012, and then assessment of all the reports started. 

The  Commission  has  also  gained  experience  in  the  course  of  performing  its  own  tasks, 
notably  by  handling  complaints  and  monitoring  compliance.  Petitions  and  parliamentary 
questions  provided  another  valuable  source  of  information  on  how  far  Member  States  were 
meeting  their  obligations.  The  European  Court  of  Justice  has  in  turn  also  ruled  on  several 
provisions. 

V. Application of the Directive 

This is the first evaluation of application of the Directive. As mentioned earlier, most Member 
States were late in transposing it. Some pointed out in their national reports that, because of 
this, they could not fully assess its impact at that time. Their experience cannot, therefore, be 
regarded  as  entirely  conclusive  at  this  stage.  However,  the  Commission  wants  to  draw 
conclusions already and identify areas which need further attention. 

8   Cases C-44/07, C-85/06 and C-53/06, respectively. 
9  
Judgement of 5 July 2007 in Case C-340/06, ECR 2007, p. I-96. 
10   Judgement of 3 May 2007 in Case C-391/06, ECR 2007, p. I-65. 
11   A list of the transposing measures communicated by the Member States to the Commission is available at: 

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:72004L0003:EN:NOT 
12   The reports by the Member States and the translations are published on the Europa website at: 

http://ec.europa.eu/environment/aarhus/reports_ms.htm.  

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Some  Member  States  have  transposed  the  Directive  in  numerous  pieces  of  legislation.  This 
could make it difficult for citizens to track down the applicable legislation when they want to 
exercise their right of access. 

Member States generally felt that the Directive had a positive impact on involvement of civil 
society. On the negative side, the administrative burden was a major concern for many. 

In  the  Commission's  view,  overall,  the  level  of  transposition  seems  satisfactory.  However, 
there  are  a  number  of  difficulties  in  both  transposition  and  practical  application.  These  are 
described below. 

Article 2 - Definitions 

a) 'Environmental information' 

The definition of 'environmental information' in the Directive encompasses information in any 
form on the state of the environment or on the state of human health and safety. It is the same 
as  the  definition  in  the  Aarhus  Convention.  Correct  classification  is  important,  as 
'environmental information' comes under the specific provisions of the Directive, which tend 
to provide broader access rights than exist for access to general administrative information. 

The  Commission  has  found  only  isolated  instances  of  incorrect,  notably  incomplete  or 
ambiguous, transposition of the definition of 'environmental information' into the laws of the 
Member States. It is following these up with the Member States concerned. As for application 
of  the  definition,  the  Commission  has  learned,  notably  via  complaints,  of  instances  where 
national  authorities  have  been  reluctant  to  classify  certain  sector-specific  or  technical 
documents as 'environmental information'. 

The  Court  of  Justice  interprets  the  definition  of  'environmental  information'  in  Article  2(1) 
broadly. In its judgment of 16 December 2010 in Case C-266/09, Stichting Natuur en Milieu 
and  Others  v  College  voor  de  toelating  van  gewasbeschermingsmiddelen  en  biociden,  the 
Court  included  a  procedure  for  authorisation  of  a  plant  protection  product  within  this  term. 
This  broad  definition  of  'environmental  information'  sets  an  important  precedent  for 
interpretation of Article 2(1) by the Member States. 

National courts or authorities like the Ombudsman have already stated their positions on the 
definition of 'environmental information' in their national laws. They appear to have followed 
the broad definition indicated by the Court. The Commission is following up on only a limited 
number of apparently too narrow interpretations by public authorities. 

b) 'Public authority' 

Article 2(2) of the Directive defines public authorities in a broad and functional way, as does 
the Aarhus Convention. The term includes bodies performing public administrative functions, 
having public responsibilities or functions or providing public services. 

The  vast  majority  of  Member  States  have  transposed  the  term  correctly.  However,  some 
difficulties have arisen in application, notably in determining whether a certain type of body 

5

 
 
falls  under  that  definition.  Examples  of  entities  that  individual  Member  States  have 
considered to be 'public authorities' in some cases following rulings by national courts include 
heat generation, water or waste management companies and local environmental foundations. 
The  question  of  whether  a  given  entity  can  be  counted  as  a  'public  authority'  cannot  be 
answered  in  a  general  manner,  but  has  to  be  decided  case  by  case.  The  Commission  found 
that,  overall,  Member  States  are  correctly  implementing  the  broad  definition  of  'public 
authority' in Article 2(2). 

The second subparagraph of Article 2(2) allows Member States not to include in the definition 
'bodies  or  institutions  when  acting  in  a  judicial  or  legislative  capacity'.  In  its  judgment  of 
14 February  2012  in  Case  C-204/09  on  a  reference  for  a  preliminary  ruling  from  the 
Bundesverwaltungsgericht  (Germany),  Flachglas  Torgau  GmbH  v  Federal  Republic  of 
Germany,  the  Court  interpreted  the  derogation  for  legislative  action  broadly.  It  held  that 
ministries  participating  in  the  legislative  process  may  be  exempt  for  the  duration  of  the 
process. 

Article 3 - Access to environmental information upon request 

a) Time-limits 

Article  3(2)  states  that,  having  regard  to  any  timescale  specified  by  the  applicant, 
environmental information must be made available as soon as possible and at the latest within 
one  month  of  receipt  of  the  request.  If  the  information  is  voluminous  and  complex,  the 
deadline can be extended by a further month, in which case the reasons have to be given. 

The timeframe for answering requests for environmental information is applied differently by 
the  Member  States.  Some  set  even  shorter  initial  deadlines  (5,  14,  15  or  20  working  days), 
which is in line with the Directive. 

The  twin  requirements  that  the  applicant  may  specify  a  timescale  and  that  the  information 
must  be  given  as  soon  as  possible  have  not  been  implemented  by  every  Member  State. 
Furthermore,  in  cases  where  the  deadline  is  extended,  national  legislation  does  not  always 
require  that  the  applicant  has  to  be  informed  and  that  reasons  have  to  be  given.  However, 
these  were  limited  cases  and  the  vast  majority  of  Member  States  have  transposed  these 
requirements correctly. 

Some found it difficult to provide the requested information in time, e.g. in cases where the 
information  was  spread  across  different  departments  or  when  they  had  a  large  volume  of 
requests  to  handle  at  the  same  time.  Consultation  with  third  parties  affected  by  the  request 
equally made it difficult to meet the deadlines. 

Some  Member  States  allow  the  deadlines  to  be  broken  in  case  of  force  majeure  or  under 
special circumstances. These exceptions are broader than those envisaged in the Directive and 
can  give  rise  to  interpretation  problems.  The  Commission  is  following  up  such  instances  of 
non-compliance. 

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Overall,  the  shorter  timeframe  for  answering  requests  for  environmental  information 
introduced by the Directive seems reasonable. Concerns voiced by some Member States about 
how to meet the deadlines set in the Directive contrast with the even shorter deadlines set in 
others.  Making  information  widely  available  on  the  internet  should  help  to  lighten  the 
information tasks of public authorities. 

b) Practical arrangements 

Article 3(5) lists certain practical arrangements that Member States have to make to support 
members  of  the  public  seeking  access  to  environmental  information  (e.g.  assistance  or 
establishment  of  registers  or  lists).  These  are  a  strong  corollary  for  the  public  to  exercise 
effectively their rights under the Directive. However, some Member States have not yet fully 
implemented  them.  In  particular,  further  attention  needs  to  be  given  to  subparagraph  (b), 
which requires Member States to ensure that lists of public authorities are publicly accessible. 
Best  practice for  implementing  Article  3(5) consists of designating information officers and 
information  points,  providing  information  on  the  responsibilities  of  individual  public 
authorities,  publishing  registers  of  available  environmental  information  and  establishing 
publicly  accessible  information  networks  and  databases.  Member  States  provide  the 
information required under Article 3(5) primarily via the internet, plus, in some cases, specific 
brochures. This meets the requirements. 

Article 4 - Exceptions  

The list of exceptions in Article 4 of the Directive mirrors Article 4(3) to (5) of the Aarhus 
Convention. Partly, it even provides better rights of access than the Convention.13 

Article  4  is  one  of  the  key  provisions  of  the  Directive.  It  contains  an  exhaustive  list  of  all 
cases where Member States may refuse a request for environmental information. Disclosure is 
the  general  rule,  unless  one  of  the  specific  exceptions  applies.  Member  States  may  not  add 
further exceptions to the list. However, nor do they have to transpose every possible exception 
into  their  national  law,  in  line  with  the  general  principle  that  Member  States  are  free  to 
provide broader access than required by the Directive. For example, some have not transposed 
the  exceptions  for  manifestly  unreasonable  or  too  general  requests  and  thus  allow  wider 
access to environmental information. 

Implementation of Article 4 is not yet entirely satisfactory in every Member State. Problem 
areas include:  

Unlawful addition to the list of exceptions 

Some  national  legislation  unduly  adds  grounds  for  refusal  to  those  in  the  Directive.  One 
Member  State  exempts  information  once  classified  as  confidential  from  disclosure. Another 
has  systematically  been  refusing  queries  about  particular  proceedings  that  might  contain 
environmental information if the applicant was not a party to them. These are all examples of 

13   For  example,  the  Directive  explicitly  names  a  wider  range  of  exceptions  that  cannot  be  invoked  if  the 

request relates to information on emissions into the environment ('emissions-rule'). 

7

 
 
                                                            
non-compliant  transposition  and/or  application  of  the  Directive  and  the  Commission  is 
following them up accordingly. 

Definitions 

Member  States  feel  that  certain  terms,  although  used  in  the  previous  directive,  still  pose 
difficulties  when  it  comes  to  interpretation.  Examples  include  'manifestly  unreasonable'  or 
"internal  communications".  Court  of  Justice  case  law  provides  valuable  guidance  on  this. 
Case C-204/09, Flachglas Torgau (see above), concerns i.a. the definition of 'confidentiality 
of the proceedings of public authorities' in Article 4(2)(a).14 For issues not yet settled by case 
law,  one  solution  adopted  by  Member  States  has  been  to  add  further  indications  in  the 
transposing measures to circumscribe these terms. 

Transposition of new provisions 

The  Directive  added  new  provisions  in  Article  4.  The  paragraph  on  the  restrictive 
interpretation  of  the  exceptions,  the  weighing  of  interests  and  the  'emissions  rule'  (legal 
presumption  that  the  public  interest  served  by  disclosure  prevails  if  the  request  relates  to 
emissions into the environment) was not part of the previous directive (Article 4(2), second 
subparagraph). The  same  goes  for  the paragraphs on the  Data  Protection  Directive15 and on 
which information has to be given to the applicant when the request is refused on the ground 
that it concerns material in the course of completion. 

Member States often appear not to have transposed these new provisions or not correctly. For 
instance, some have no specific provision that the grounds for refusal must be interpreted in a 
restrictive way, nor do they expressly provide for weighing the interests concerned. 

The  Court  of  Justice  has  already  given  valuable  guidance  on  interpretation  of  the  second 
subparagraph  of  Article  4(2).  Case  C-266/09,  Stichting  Natuur  en  Milieu  (see  above),  deals 
with  the  balance  between  the  right  of  public  access  to  environmental  information  and  the 
confidential treatment of commercial and industrial information. The Court confirmed that, as 
indicated by the wording of the second subparagraph, the interests must be balanced case by 
case  and  protection  of  commercial  or  industrial  information  is  limited  if  it  relates  to 
information on emissions into the environment (application of the 'emissions-rule'). 

Case C-71/10, on a reference for a preliminary ruling from the UK Supreme Court, Office of 
Communications v The Information Commissioner, also concerns weighing the public interest 
served  by  disclosure  against  the  interests  protected  under  Article  4(2).  More  than  one 
protected interest was at stake but neither, on its own, would have been sufficient to outweigh 
the  public  interest  in  disclosure.  On  28  July  2011,  the  Court  ruled  that,  when  weighing  the 

14   The Court held that the confidentiality of proceedings of public authorities within the meaning of Article 
4(2)(a) of the Directive is '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',  insofar  as  the  concept  of 
'proceedings' is clearly defined. 

15   Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of 
individuals with regard to the processing of personal data and on the free movement of such data; OJ L 281 
of 23 November 1995, p. 31. 

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public interest served by disclosure against the interests served by refusal to disclose, separate 
interests protected under Article 4(2) have to be considered cumulatively. 

Relationship to other EU legislation 

A  further  problem  is  the  relationship  between  Article  4  and  provisions  on  access  to 
information in sector-specific EU legislation. As a general rule, the sector-specific act as "lex 
specialis"  overrules  the  general  access  provisions  in  the  Directive.  However,  many  sector-
specific acts contain provisions on their relationship to the Directive, either allowing general 
access to information subject to the Directive16 or further specifying the scope of the Directive 
within  their  ambit.17  Nevertheless,  it  can  be  difficult  to  ascertain  which  legal  instrument 
applies to a specific case. There is already some case law on this subject. 

In  its  judgment  of  17  February  2009  in  Case  C-552/07,  Commune  de  Sausheim  v  Pierre 
Azelvandre18, the Court held that a Member State cannot invoke an exemption provided for by 
Article 4(2), including 'public security', in order to refuse access to information which should 
be  in  the  public  domain  under  the  GMO  Directive.19  The  transparency  requirements  arising 
from the GMO Directive therefore take precedence over the exception to protect public order 
or other interests under the Directive. 

In its judgement of 22 December 2010 in Case C-524/09, Ville de Lyon v Caisse des dépôts et 
consignations,  the  Court  dealt,  in  particular,  with  whether  data  on  greenhouse  gas  emission 
allowance  trading  had  to  be  considered  as  'information  on  emissions  into  the  environment' 
within the meaning of Article 4 in which case 'the confidentiality of commercial or industrial 
information' could not be invoked. However, it found that provision of such information was 
governed by the specific rules on confidentiality in the emission trading scheme.20 

As regards the form and content of refusals (Article 4(5)), one Member State still provides for 
tacit  refusals,  where  the  national  authority  is  presumed  to  refuse  if  it  neither  makes  the 
information available nor issues a written refusal before the time limit expires. However, such 
tacit refusal is contrary to the Directive which calls for an express answer, stating the reasons, 

16   The  INSPIRE-Directive  (see  reference  below)  for  instance  provides  in  its  Article 2  that  it  is  without 

prejudice to Directive 2003/4/EC.  

17   Article 22 of the Seveso III Directive for instance refers to Article 4 of the Directive (Directive 2012/18/EU 
of  the  European  Parliament  and  of  the  Council  of  4  July  2012  on  the  control  of  major-accident  hazards 
involving  dangerous  substances,  amending  and  subsequently  repealing  Council  Directive  96/82/EC; 
OL L 197 of 24 July 2012, p. 1). 

18   ECR 2009, p. I-987. 
19   Directive  2001/18/EC  of  the  European  Parliament  and  of  the  Council  on  the  deliberate  release  into  the 

environment of genetically modified organisms, OJ L 106 of 17 April 2001, p. 1. 

20   Directive  2003/87/EC  of  the  European  Parliament  and  of  the  Council  of  13  October  2003  establishing  a 
scheme  for  greenhouse  gas  emission  allowance  trading  within  the  Community  and  amending  Council 
Directive 96/61/EC, as amended by Directive 2004/101/EC of the European Parliament and of the Council 
of  27  October  2004  and  by  Commission  Regulation  (EC)  No  2216/2004  of  21  December  2004  for  a 
standardised and secured system of registries pursuant to Directive 2003/87 and Decision No 280/2004/EC 
of the European Parliament and of the Council. Article 17 of Directive 2003/87/EC provides for access to 
information subject to Directive 2003/4/EC. 

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in  each  individual  case.21  Best  practice  amongst  Member  Sates  concerning  the  form  of 
refusals consists of having to give a written reply in every case even when the request was not 
in writing – a requirement that is even stricter than provided for in the Directive. 

The  Commission  will  continue  to  interact  with  the  Member  States  to  ensure  correct 
transposition of the Directive. Member States are invited to provide further guidance to their 
authorities to avoid any ambiguous or arbitrary application of the exemptions. 

Article 5 – Charges 

Article 5 aims to prevent financial obstacles to the rights of information under the Directive. 

Paragraph 1 states that access to registers or lists and examination of the information in situ 
must  be  free  of  charge.  Establishing  completely  free  access  to  information  in  situ  is  still  a 
challenge for a number of Member States. 

Paragraph 2 adds that any charges for supplying environmental information must not exceed a 
reasonable amount. This is generally the case. 

Paragraph 3 requests Member States to provide information on any charges, including on the 
circumstances  in  which  a  charge  may  be  levied  or  waived.  Such  information  is  generally 
available in the Member States. However, access to clear rules on the fees charged could be 
further  improved  to  ensure  greater  transparency.  This  is  particularly  valid  in  cases  where 
Member States opted to make the rules available only at local level. In that case, availability 
should be improved by further means, such as dedicated websites, in order to create an easily 
accessible,  well-structured  framework  on  charges.  Some  Member  States  have  adopted 
legislation clearly indicating the costs charged. This solution ensures legal certainty and at the 
same time guarantees wide availability. 

Article 6 - Access to Justice 

The  right  to  an  effective  remedy  is  guaranteed  by  Article  19(1)  of  the  Treaty  on  European 
Union ('Member States shall provide remedies sufficient to ensure effective legal protection in 
the fields covered by Union Law') and Article 47(1) of the Charter of Fundamental Rights of 
the  EU  ('Everyone  whose  rights  and  freedoms  guaranteed  by  the  law  of  the  Union  are 
violated has the right to an effective remedy […]'). Article 6 of the Directive applies the right 
to an effective remedy with regard to environmental information. It provides for two levels of 
appeal:  administrative  review  and  review  before  a  court  of  law  or  another  independent  and 
impartial body established by law. 

Apart from individual exceptions, the Member States have transposed Article 6 correctly. In 
parallel  to  assessing  Member  States’  transposing  legislation,  the  Commission  has  also 
initiated a limited number of infringement procedures, mainly to ensure transposition of the 
requirements for an 'expeditious' and 'inexpensive' review procedure. 

21  

In its judgment of 21 April 2005 in Case C-186/04, Housieux, the Court has already ruled, in relation to the 
previous directive, that an implied refusal is unlawful (ECR 2005, p. I-3299).  A tacit refusal can only be a 
device intended to allow effective legal protection and a means of disciplining the public authority. 

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However, there are certain shortcomings with application of Article 6 in some Member States. 
If  the  provisions  in  the  Directive  are  to  be  effective,  they  must  be  applied  to  all  levels  of 
appeal.  For  instance,  administrative  authorities  authorised  to  deal  with  appeals  at  first  or 
second  instance  need  to  be  independent  from  each  other  and  to  be  able  to  give  decisions 
complying with the Directive. A number of Member States have set up a special tribunal for 
first instance appeals already. However, this good practice must not lead to ineffectiveness at 
the  second  stage  of  appeal  in  the  form  of  costly  and  protracted  procedures.  Procedural 
guarantees  covering  all  instances  are  important  to  provide  full  access  to  justice  and  avoid 
having only one effective instance of appeal, while the subsequent stages remain costly and 
slow. 

Bodies overseeing mal-administration, such as the Ombudsman, also play an important role in 
ensuring  effective  remedies.  However,  they  should  be  regarded  as  complementary  to  an 
effective appeal system. 

These  deficiencies  in  implementation  are  addressed  by  the  Commission  with  the  Member 
States. They require further action at Member State level, monitored by the Commission. 

Article 7 - Dissemination of environmental information 

Article  7  provides  for  active  and  systematic  dissemination  of  environmental  information  to 
the  public,  in  particular  by  means  of  computer  telecommunication  and/or  electronic 
technology. Article 7(2) indicates what kind of information needs to be made available (e.g. 
legal  texts,  policies,  plans  and  programmes,  reports  and  studies,  data  or  summaries  of  data 
obtained from monitoring activities affecting, or likely to affect, the environment). 

Electronic technology is the key to implementing the objectives (Article 1) and provisions of 
the Directive. The Directive does not prescribe which types of electronic technology should 
be used. However, the means chosen must be easily accessible and not create further obstacles 
to provision of information. Article 7 also allows Member States to adapt to developments in 
technology.  Good  use  of  technology  can  also  help  to  reduce  costs  and  the  administrative 
burden of responsive disclosure which several Member States are concerned about. 

Member  States  have  implemented  Article  7  in  different  ways.  Most  offer  electronic  portals 
and/or websites to give access to some of the categories of information listed in Article 7(2) at 
different levels of government. However, it can be difficult to find online information on how 
individual  environmental  directives  are  implemented  in  national  legislation  and  how 
authorities  are  meeting  their  demands.  In  general,  to  allow  easier  and  more  effective  use  of 
information, further progress is needed on how active dissemination is organised. 

The  Directive  can  be  regarded  as  the  most  extensive  individual  EU  legislation  on  active 
dissemination of environmental information. However, other acts such as the INSPIRE22 and 

22   Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infra-

structure for Spatial Information in the European Community (INSPIRE), OJ L 108 of 25 April 2007, p. 1. 

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PSI Directives23 and initiatives such as SEIS24 also provide wide electronic access to certain 
information  held  by  public  bodies.  Together,  they  make  up  a  framework  for  sharing 
environmental  information,  including  data  obtained  from  monitoring  activities.  This  wider 
context  which  is  continuously  evolving  influences  the  implementation  of  Article  7.  A  high 
degree of coordination is desirable in order to ensure overall consistency across all relevant 
instruments and initiatives. 

Article 8 - Quality of environmental information 

Article 8 sets quality standards for the environmental information compiled. Member States 
should aim so far as is within their power to ensure that the data are up to date, accurate and 
comparable. 

Environmental information should enable users to participate meaningfully in developing and 
implementing environment policy and to assess policy effectiveness. 

Data  quality  proved  a  difficult  objective  as  it  largely  depends  on  resources,  capacity  and 
technology. Moreover, there is often no standard method to ensure and measure data quality 
and achieve comparability of environmental information. 

Quality  is  also  relevant  to  other  environmental  directives,  as  the  action  required  is  often 
triggered  by  state-of-the-environment  monitoring  or  other  information  on  implementation. 
Notwithstanding  this,  and  the  progress  made  on  a  number  of  fronts,  quality  problems  have 
been reported in various areas of environment policy25. 

VI. Conclusions and way forward 

The Commission considers that application of the Directive has substantially improved access 
to  environmental  information  on  request.  Individual  instances  of  infringements  in  specific 
Member States are followed up by the Commission. The Commission expects that, over time, 
the new provisions will be adequately integrated into the Member States' legal orders and duly 
applied by their authorities. 

The emergence of an information society with an increased emphasis on wide access requires 
a shift from an approach dominated by information-on-request needs to an approach centred 
on  active  and  wide  dissemination  using  the  latest  technologies.  The  Directive  leaves 
flexibility for Member States to choose the appropriate means to disseminate environmental 
information  actively  and  accommodate  changes  in  computer  telecommunications  and 
electronic  technology.  Some  Member  States  have  developed  user-friendly  websites  –  for 
example, allowing the public to see on a map the level of waste-water treatment for their city 

23    Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of 

public sector information, OJ L 345 of 31 December 2003, p. 90. 

24   Communication from the Commission to the Council, the European Parliament, the European Economic and 
Social Committee and the Committee of the Regions of 1 February 2008 Towards a Shared Environmental 
Information System (SEIS), COM(2008) 46 final. 

25   For  example,  the  Commission  review  of  the  EU  Pollutant  Release  and  Transfer  Register  (E-PRTR) 
Regulation highlighted a lack of comparability in the information provided by the Member States, due to the 
use of different methods used for generating the data and lack of consistency of information.  

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or  town.  In  that  context,  the  Commission  calls  on  all  Member  States  to  make  the  widest 
possible use of the provisions on active dissemination. 

In  line  with  its  Communication  on  Implementation  and  the  subsequent  conclusions  adopted 
by  the  Council  on  11  June  2012  and  in  line  with  the  proposed  7th  Environmental  Action 
Programme26, the Commission will seek to help Member States to structure information better 
for  active  dissemination.27  It  will  also  conduct  separate  studies  to  review  in  more  detail  the 
current  practices  on  active  dissemination  and  the  challenges  related  to  the  quality  of 
environmental  information.  Depending  on  the  outcome  and  on  wider  developments  in 
information technology, the Commission will decide whether any further amendments to the 
Directive might be necessary in the future. 

26 COM(2012)710 final 
27   The Communication refers to Structured Implementation and Information Frameworks (SIIFs) which would 
aim  to  provide  online  information  in  a  more  coherent  way  on  the  outputs  of  implementing  individual 
directives – plans adopted, authorisations issued, monitoring data obtained etc.  

13