CELEX: 62000CC0233
Language: en
Date: 2003-01-14 00:00:00
Title: Opinion of Advocate General Stix-Hackl delivered on 14 January 2003. # Commission of the European Communities v French Republic. # Failure of a Member State to fulfil obligations - Directive 90/313/EEC - Freedom of access to information on the environment - Incomplete or incorrect transposition. # Case C-233/00.

OPINION OF ADVOCATE GENERALSTIX-HACKL delivered on 14 January 2003  (1)
         Case C-233/00 Commission of the European CommunitiesvFrench Republic
            ((Failure of a Member State to fulfil its obligations – Incorrect transposition of Articles 2(a) and 3(2), (3) and (4) of Council Directive 90/313/EEC on the freedom of access to
               information on the environment – Transposition by means of a general legal framework))
            
            
      
         
        I ─ Subject-matter of the proceedings
      
      1.  By the present action the Commission is seeking a declaration that by not correctly transposing Article 2(a) and Article 3(2),
      (3) and (4) of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment 
      
         			(2)
         		 (hereinafter:  
      the Directive) the French Republic has failed to fulfil its obligations under that directive and under the third paragraph of Article 249
      EC.
      
      2.  The dispute concerns the extent of the duty to provide information under the Directive, or, to be more precise, the concept
      of  
      information relating to the environment (contained in the combined provisions of Article 2(a) and Article 3(1) of the Directive), the exceptions to the principle
      that environmental information is to be communicated (first subparagraph of Article 3(2) of the Directive), the obligation
      to supply information in part where appropriate (second subparagraph of Article 3(2) of the Directive), the possibility of
      refusing a request for information which is unreasonable or calls for unfinished or internal documents to be supplied (Article 3(3)
      of the Directive) and the obligation incumbent on the relevant public authority to respond to a person requesting information
      at the latest within two months and to give reasons for a refusal to provide the information requested (Article 3(4) of the
      Directive).
       II ─ Relevant legislation
      
      
      
      A ─
       Community law
      
      3.  The object of Directive 90/313/EEC, pursuant to Article 1 thereof, is to ensure freedom of access to, and dissemination of,
      information on the environment held by public authorities and to set out the basic terms and conditions on which such information
      should be made available.
      
      4.  Article 2 of the Directive in part reads: For the purposes of this Directive:
      (a) information relating to the environment shall mean any available information in written, visual, aural or data-base form on the state of water, air, soil, fauna,
      flora, land and natural sites, and on activities (including those which give rise to nuisances such as noise) or measures
      adversely affecting or likely so to affect these, and on activities or measures designed to protect these, including administrative
      measures and environmental management programmes; ...
      .
      
      5.  Article 3 provides: 
      1.  Save as provided in this Article, Member States shall ensure that public authorities are required to make available information
      relating to the environment to any natural or legal person at his request and without his having to prove an interest.Member States shall define the practical arrangements under which such information is effectively made available.
      
      2.  Member States may provide for a request for such information to be refused where it affects:
      
      
      ─
      the confidentiality of the proceedings of public authorities, international relations and national defence,   
      
      
      
      ─
      public security,  
      
      
      
      ─
      matters which are, or have been,  
      sub judice, or under enquiry (including disciplinary enquiries), or which are the subject of preliminary investigation proceedings,
       
      
      
      
      ─
      commercial and industrial confidentiality, including intellectual property,  
      
      
      
      ─
      the confidentiality of personal data and/or files,  
      
      
      
      ─
      material supplied by a third party without that party being under a legal obligation to do so,  
      
      
      
      ─
      material, the disclosure of which would make it more likely that the environment to which such material related would be damaged.
       
      Information held by public authorities shall be supplied in part where it is possible to separate out information on items
      concerning the interests referred to above.
      
      3.  A request for information may be refused where it would involve the supply of unfinished documents or data or internal communications,
      or where the request is manifestly unreasonable or formulated in too general a manner.
      
      4.  A public authority shall respond to a person requesting information as soon as possible and at the latest within two months.
      The reasons for a refusal to provide the information requested must be given.
      
      
      
      
      B ─
       National law
      
      6.  Title I of  
       Law No 78-753  
      
         			(3)
         		 contains provisions on access to administrative documents.
      
      7.  Article 2 of that law provides as follows:Subject to Article 6, administrative documents shall as of right be available to persons who request them, whether they are
      documents of the administrative authorities of the State, local authorities, public undertakings or bodies, even private-law
      bodies, responsible for the operation of a public service.
      
      8.  Article 6 of that law in part reads: The administrative authorities mentioned in Article 2 may refuse to allow consultation of or to provide an administrative
      document when such consultation or provision would prejudice:...
      
      
      ─
         or, generally, secrets protected by legislation.
      
      
      9.  Article 7 of that law as amended by Decree No 88-465,  
      
         			(4)
         		 provides inter alia: Refusal to supply a document shall be notified to the citizen in the form of a reasoned, written decision.....
      
      10.  Article 2 of  
       Decree No 88-465  provides inter alia:  Failure by the competent authority to reply within one month to a request to supply documents in accordance with Title I of
      Law No 78-753 of 17 July 1978, shall be deemed to constitute a refusal.In the event of an express or tacit refusal, the applicant may make a reference to the commission established under Article 5
      of Law No 78-753 of 17 July 1978 within two months of notification of the refusal or the expiry of the period prescribed in
      the first paragraph of this article.
      
      11.  Article 5 of  
       Law No 79/587  
      
         			(5)
         		 contains the following provision concerning implied decisions:An implied decision made in cases where an express decision would have had to be reasoned is not unlawful merely because reasons
      are not given for it. Nevertheless, at the applicant's request, made within the time-limit for bringing proceedings, the reasons
      for any implied refusal shall be notified to him within a month of that request. In that case, the time-limit for bringing
      proceedings against that decision shall be extended until two months after the day on which the reasons are notified to him.
       III ─ Pre-litigation procedure and legal proceedings
      
      12.  Under Article 9(1) of the Directive, Member States are to bring into force the laws, regulations and administrative provisions
      necessary to comply with the Directive by 31 December 1992 at the latest.
      
      13.  Under cover of a letter of 28 March 1991 the French Government forwarded a copy of Law No 78-753 and of Decree No 88-465 by
      way of implementing measures.
      
      14.  Since the Commission took the view ─ even after its ensuing correspondence with the French authorities ─ that the Directive
      had not been correctly transposed by those provisions, it sent a letter of formal notice on 17 November 1994 to the French
      Government requesting it to submit its observations on that matter within two months. 
      
      15.  As the reply of 23 February 1995 failed to dispel the Commission's misgivings, it sent a reasoned opinion on 8 February 1999
      to the French Republic requesting it to adopt the measures necessary correctly to transpose Article 2(a) and Article 3(2),
      (3) and (4) of the Directive within two months.
      
      16.  The French Government replied by a letter of 25 June 1999 in which it disputed the infringement and reaffirmed its view that
      the Directive indeed was largely transposed into existing French administrative law, albeit not by specific implementing provisions.
      It none the less promised to look into the possibilities for improving access to information relating to the environment.
      
      17.  By letter of 19 January 2000 the French Government notified the Commission that the drafting of a law which would introduce
      various amendments into environmental law, including amendments on access to environmental information, was under way.
      
      18.  Given that it did not subsequently receive a copy of the notified draft law, the Commission ─ by an application lodged on
      8 June 2000 and registered at the Court of Justice on 13 June 2000 ─ brought an action against the French Republic before
      the Court of Justice under Article 226 EC.
      
      19.  The Commission claims that the Court should:
      
      
      ─
         declare that by not correctly transposing Article 2(a) and Article 3(2), (3) and (4) of Council Directive 90/313/EEC of 7
         June 1990 on the freedom of access to information on the environment the French Republic has failed to fulfil its obligations
         under that directive and under the third paragraph of Article 249 of the Treaty; 
      
      
      
      ─
         order the French Republic to pay the costs. 
      
      
      
      20.  The French Republic contends that the Court should:
      
      
      ─
         dismiss the Commission's application with the exception of the third plea  which concerns the final subparagraph of Article 3(2)
         of the Directive; 
      
      
      
      ─
         order the Commission to pay the costs. 
      
      
      
      21.  Under cover of a letter of 13 September 2001 the French Government sent a copy of the Law of 12 April 2000 
      
         			(6)
         		 and of the Ordinance of 11 April 2001 
      
         			(7)
         		 to the Court, pointing out that, as far as it was concerned, the shortcomings alleged by the Commission in particular in
      its first four pleas were rectified by those implementing provisions. As regards the fifth plea, it continued to work on the
      principle that prevailing French law was consistent with the Directive.
      
      22.  The French Government sent copies of the abovementioned legislation together with a request that the Commission withdraw its
      application. The Commission notified the Court by letter of 24 September 2001 that it still intended to continue with its
      application.
       IV ─ Legal assessment
      
      
      
      A ─
       Preliminary observations
      
      23.  Before examining the pleas in law in turn, I should like to make some observations on the general positions adopted by the
      parties and on the background to these proceedings.
      
      24.  In the present infringement proceedings the French Government considers that the obligations under the Directive are already
      fulfilled by the general legal framework in force in relation to access to administrative documents and that specific implementing
      measures are consequently unnecessary. It proceeds in particular on the principle that a national legal situation consistent
      with Community law can be guaranteed, where necessary, by requiring that national authorities interpret the national legislation
      in accordance with the Directive.
      
      25.  In its five pleas in law the Commission seeks to demonstrate that the above principle is not applied in the circumstances
      of this case. In very general terms, it regards the legal provisions notified by the French Government as being too general
      and too vague to be considered to have transposed the Directive correctly. It refers to the fact that national provisions
      which are too vague or too general give rise to legal uncertainty surrounding the rights and obligations laid down in the
      Directive, such uncertainty being contrary to Community law. Even the obligation to interpret national provisions in accordance
      with the Directive could not alter that fact in any way.
      
      26.  New provisions implementing the Directive have in the meantime entered into force in France. 
      
         			(8)
         		 Although the Commission conceded at the hearing that the defects in transposing the Directive alleged to exist in the first
      four pleas had been eliminated as a result of the adoption of those provisions, it at the same time stated that it still intended
      to continue with the proceedings before the Court because it was clear from the observations of the French Government that,
      the above positive development notwithstanding, there was still some legal ambiguity as regards the contested issues.
      
      27.  It is appropriate at this stage to point out that the Court has consistently held that the Commission enjoys discretion to
      decide whether or not to bring proceedings under Article 226 EC and to continue with them, 
      
         			(9)
         		 and that there can still be an interest in pursuing the action even where the default has been remedied after the time-limit
      given in the reasoned opinion has expired. 
      
         			(10)
         		
      28.  I will therefore proceed to examine each of the pleas raised by the Commission but will not take into account the new implementing
      provisions mentioned above because the Court has already repeatedly held that  
      the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation
      prevailing in that Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take
      account of any subsequent changes. 
      
         			(11)
         		
      
      B ─
         First plea alleging the incomplete transposition of the combined provisions of Article 2(a) and Article 3(1) of the Directive
         (definition of  
         information relating to the environment)
      
      
      
      1. Submissions of the parties
      
      29.  By that plea the Commission is maintaining that the term  
      administrative documents used in the French legislation is narrower than that of  
      information relating to the environment contained in the Directive and, consequently, access to such information is not guaranteed to the extent required by the
      Directive.
      
      30.  The Commission in essence argues that the scope covered by the term  
      administrative document used in Article 2 of Law No 78-753 falls short of that covered by the term  
      information relating to the environment within the meaning of the Directive because, even following its broad interpretation by the  
       Commission d'accès aux documents administratifs   (French Commission on Access to Administrative Documents, hereinafter: the CADA), it includes only those documents held by
      the authorities which relate to the activity of the public service or an activity of the public authorities. Thus, it adds,
      many non-legislative decisions by the authorities, in the area of private-sector management or private-law contracts between
      public authorities and private persons for example, do not fall within the scope of that provision. The Commission submits
      that the judgment in Case C-321/96, 
      
         			(12)
         		 according to which a broad interpretation should be applied to the term  
      information relating to the environment, shows that the Directive in fact also covers documents not necessarily connected with an activity of a public authority.
      
      31.  The Commission considers, moreover, that an interpretation by the CADA cannot, on the basis of the principles of legal clarity
      and legal certainty, confirm the required transposition of the Directive because the CADA is not a judicial institution the
      interpretations of which have to be taken into account by the Court; it is, rather, an independent consultative body the opinions
      of which have no legal force, as the French Government itself acknowledges.
      
      32.  It adds, lastly, that the specific texts relating to environmental information submitted to the Court by the French Government
      and designed to supplement the general provisions of Law No 78-753 concern nothing more than the supply of general information
      to the public on the state of the environment as provided for in Article 7 of the Directive.
      
      33.  The French Government submits that the Commission could not adduce evidence of any  
      information relating to the environment which was not covered by Law No 78-753, nor could it point to a single instance where an item of information relating to
      the environment had not been recognised as an administrative document within the meaning of that law. It argues that since
      environmental information is connected with the environment and therefore with environmental protection, it is in any event
      more likely by its nature to be contained in measures associated with the exercise of public authority. Consequently, such
      information without doubt had to fall within the definition of  
      administrative document. Under French law the concept of the administrative document was construed more broadly than the concept of the administrative
      measure and additionally covered measures drawn up under private law by the authorities and measures held by the authorities
      but issuing from private persons, provided that those measures were in some way connected with administrative activities or
      with public functions delegated to private persons. The sole restriction introduced by that concept concerned documents held
      by an authority acting as a private person, which were not in any way connected as described above. In most cases, however,
      it was improbable that documents of that kind would exist in the context of environmental protection because that context
      usually required the public authorities to assume a regulatory or supervisory role. It was also apparent from Case C-343/95 
      
         			(13)
         		 that environmental protection was essentially a function of the State performed by a public authority, thus indicating that
      the French legislation was consistent with the Directive.
      
      34.  The French Government also cites Case C-132/91 
      
         			(14)
         		 according to which laws, regulations and administrative provisions transposing a directive must be understood as meaning
      the laws, regulations and administrative provisions as they are interpreted by the courts. Although it concedes that the CADA
      is not a judicial institution with the authority to give binding interpretations of the law, it underlines the significance
      of that body's role in determining and interpreting the law to be applied in the individual circumstances.
      
      2. Assessment
      
      35.  In the light of the argument raised by the French Government that the Commission could not point to a single instance where
      a document concerning information relating to the environment was not recognised as an administrative document within the
      meaning of the French legislation, I shall commence by considering the settled case-law of the Court concerning the burden
      of proof imposed on the Commission.
      
      36.  The Court has indeed consistently held that, in proceedings under Article 226 EC for failure to fulfil an obligation, it is
      in principle incumbent on the Commission to prove that the obligation has not been fulfilled and to place before the Court
      the evidence necessary to enable it to determine whether that is the case. 
      
         			(15)
         		 However, in order to prove that the transposition of a directive into national law by specific legislation is insufficient
      or inadequate, it is not necessary to establish the actual effects of that legislation, nor is it necessary to wait for the
      application of that legislation to produce harmful effects. 
      
         			(16)
         		 On the contrary, it is the wording of the legislation itself which determines whether the transposition in question is insufficient
      or defective. 
      
         			(17)
         		
      37.  Consequently, a Member State for its part cannot argue in its defence that reference cannot be made to any specific examples
      of the application of implementing provisions which are capable of demonstrating the defectiveness of those provisions in
      view of the obligations laid down by the directive. 
      
         			(18)
         		
      38.  In the present case, the French Government has put before the Court various administrative provisions of a general nature
      which were not adopted for the specific purpose of transposing the Directive. As both parties to the proceedings have rightly
      pointed out, the Court has consistently held that transposing a directive into national law  
      does not necessarily require its provisions to be reproduced verbatim in a specific, express law or regulation; a general
      legal context may, depending on the context of the directive in question, be sufficient .... 
      
         			(19)
         		
      39.  Nevertheless, such a general legal context is sufficient only  
      provided that it does effectively ensure the full application of the directive in a sufficiently clear and precise manner. 
      
         			(20)
         		
      40.  However, it is clear from the arguments put forward by the French Government that the equivalent in French law of  
      information relating to the environment as provided for in the Directive is the term  
      administrative document used in Law No 78-753, because the national authorities interpret the latter term broadly or, in other words, in accordance
      with the Directive.
      
      41.  That legal framework, in my view, does not meet the requirements of legal clarity and legal certainty to be laid down in the
      transposing of a directive. Indeed, the Court has defined those principles, holding for instance that Member States must establish
      a  
      specific  
       legal  framework in the area in question 
      
         			(21)
         		 and must implement directives by means of provisions of  
      unquestionable binding force. 
      
         			(22)
         		
      42.  It cannot be inferred from the case-law cited by the French Government, according to which the scope of national laws, regulations
      and administrative provisions must be assessed in the light of their interpretation by the national courts, 
      
         			(23)
         		 that the practice of a body such as the CADA giving interpretations is sufficient for national legislation to be deemed appropriate
      implementing measures. After all, the case-law primarily addresses no more than the fundamental allocation of functions between
      the Court of Justice on the one hand and the national courts on the other; and establishes that the Court has no jurisdiction,
      in principle, to interpret national law and that it is incumbent on the national courts alone to determine the precise scope
      of national laws, regulations and administrative provisions. 
      
         			(24)
         		
      43.  That case-law indicates that, where a national implementing provision is assessed, it must be afforded the same scope as that
      arising from the case-law established by the national courts. 
      
         			(25)
         		
      44.  However, case-law established by national courts cannot be a substitute for implementing provisions. Thus, the Court held
      in Case C-144/99 that the requirement of legal certainty cannot be met  
      even where the settled case-law of a Member State interprets the provisions of national law in a manner deemed to satisfy
      the requirements of a directive. 
      
         			(26)
         		
      45.  On that basis, it cannot be sufficient to transpose the concept of  
      information relating to the environment by reference to the method of interpretation practised by the CADA.
      
      46.  Moreover, the French Government has itself stated that the CADA is a consultative body the recommendations of which have no
      legal force. For that very reason, as the Commission has correctly concluded, the CADA's interpretations cannot be relied
      on to transpose the concept of  
      information relating to the environment contained in the Directive with  
      unquestionable binding force and in a manner that meets the requirement of legal certainty.
      
      47.  The conclusion that that manner of transposing Article 3(1) of the Directive does not meet the requirements of legal clarity
      and legal certainty is all the more valid in this case as a relatively stringent criterion must be applied in this regard.
      
      48.  Indeed, it is particularly important, in order to satisfy the requirement for legal certainty, that individuals should have
      the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and obligations
      and, where appropriate, to rely on them before the national courts. 
      
         			(27)
         		 As regards determining the necessary legal clarity and legal certainty, it is important in this context to establish how
      the legal situation appears to the person concerned. 
      
         			(28)
         		 As I have already commented in this regard in my Opinion in Case C-145/99, 
      
         			(29)
         		 more stringent requirements may even be imposed on specific target groups. However, in accordance with the sixth recital
      in the preamble thereto, the Directive is designed to guarantee to any natural or legal person free access to available information
      on the environment held by public authorities. Its object is precisely to improve public access to information, hence its
      focus on a very broad target group of people who do not have specialised knowledge. It must therefore be transposed in an
      appropriately clear and unequivocal manner.
      
      49.  However, even if the French legal framework on  
      information relating to the environment within the meaning of Article 2(a) in conjunction with Article 3(1) of the Directive were regarded as sufficiently clear
      and precise, it still does not fully transpose the substance of that provision.
      
      50.  It is, after all, clear from the arguments put forward by the French Government that the concept of the administrative document,
      even on a broad reading, presupposes a certain connection with action by public authorities.
      
      51.  However, as the Court already found in Case C-321/96, 
      
         			(30)
         		 the wording of Article 2(a) of the Directive makes it clear that the Community legislature intended to make the concept of
       
      information relating to the environment a broad one. It should also be noted that the wording of that provision also includes the most diverse forms of information
      which, rather than relating to measures promoting environmental protection, in fact refer simply to the state of the environment:
      the provision, for example, covers that kind of document of a general nature. Contrary to the argument put forward by the
      French Government, it cannot ultimately be inferred from the judgment in Case C-343/95 
      
         			(31)
         		 that the concept in question is intended to include only information which is connected at least in a relatively broad manner
      with acts in the exercise of public authority. In that judgment the Court simply held that surveillance involved with environmental
      protection is typically connected with the exercise of powers by a public authority. 
      
         			(32)
         		
      52.  The Commission has, therefore, rightly objected that the French concept of the administrative document is narrower than that
      of  
      information relating to the environment within the meaning of the Directive.
      
      53.  In the light of all the foregoing considerations, it can be established that the first plea raised by the Commission concerning
      the incomplete transposition of the combined provisions of Article 2(a) and Article 3(1) of the Directive is well founded.
      
      
      C ─
         Second plea alleging the incorrect transposition of the first subparagraph of Article 3(2) of the Directive (exceptions to
         the obligation to communicate information)
      
      
      
      1. Submissions of the parties
      
      54.  By that plea the Commission is claiming that Article 6 of Law No 78-753 actually allows a request for access to information
      relating to the environment to be refused where the consultation or disclosure of a document would be prejudicial to  
      secrets protected by legislation. It argues that an exception of that kind is not provided for in the first subparagraph of Article 3(2) of the Directive
      and is therefore contrary thereto.
      
      55.  The Commission maintains that the refusal of a request for information under the Directive is permissible only in very specific
      cases, an exhaustive list of which is provided in the first subparagraph of Article 3(2), and that, furthermore, those exceptional
      cases must be interpreted strictly. The possibility of refusing to communicate information, as laid down in Law No 78-753,
      by reason of  
      secrets protected by law constituted an inadmissible addition to those exceptions. The French provisions thus provided insufficient clarity and legal
      certainty with regard to the scope of the possibilities for refusing requests for information. The general reference to secrets
      protected by law paved the way for an indefinite number of exceptions of undetermined scope.
      
      56.  The Commission finally notes that the special derogating provisions cited by the French Government, to which the ground of
      refusal relating to secrets protected by law refers, are in themselves already covered by the exceptions listed in the Directive,
      thus meaning that the general ground of refusal in question is itself redundant and can only contribute to legal uncertainty.
      
      57.  The French Government, on the other hand, takes the view that the exceptions under French law are not designed to be any broader
      in scope than those provided for by the Directive. A general category of exception, relating to  
      secrets protected by legislation, was necessary on account of the many French laws and special arrangements applying to the confidentiality of data in various
      areas often unrelated to the environment. Each of those special arrangements on confidentiality was drawn up in a very precise
      manner. The Commission could not single out any one of those exceptions which did not comply with the Directive. The French
      Government refers to the fact that there have been no complaints thus far by individuals in this area. It none the less concedes
      that it is impossible to draw up a definitive list of the exceptions contained in the various national provisions on confidentiality.
      
      2. Assessment
      
      58.  Article 1 of the Directive lays down the principle of freedom of access to information. However, under the seventh recital
      in the preamble to the Directive, it may be justified  
      in certain specific and clearly defined cases to refuse a request for information relating to the environment. The interests for the protection of which a Member State
      may refuse access to information on the environment are listed exhaustively in Article 3(2) of the Directive and must be interpreted
      strictly as derogations from the general rules laid down by the Directive. 
      
         			(33)
         		 Those grounds for refusal are, moreover, decisive as regards the scope of the right of access to information which is conferred
      on individuals by the Directive, and must therefore be sufficiently clear and precise to enable those individuals to know
      the precise extent of their rights and to rely on them. 
      
         			(34)
         		
      59.  It follows that the national provisions transposing Article 3(2) of the Directive must ensure unequivocally that requests
      for access to information may be refused by a public authority only for the purpose of safeguarding the interests defined
      in that provision.
      
      60.  The ground for refusal relating to secrets protected by legislation which is laid down in Article 6 of Law No 78-753 refers,
      however, to arrangements governing confidentiality which are set out in specific laws and, as the French Government has conceded,
      cannot be listed exhaustively. The abovementioned provision does not therefore ensure that requests for information on the
      environment can be refused only on the grounds mentioned in Article 3(2).
      
      61.  Thus, the argument put forward by the French Government that each of those special arrangements on confidentiality is (in
      itself) drawn up in a precise manner and the point that there have been no complaints thus far by individuals in this area
      are irrelevant. 
      
         			(35)
         		
      62.  On that basis, it can be established that the Commission's plea that the first subparagraph of Article 3(2) has been incorrectly
      transposed is also well founded.
      
      
      D ─
         Third plea alleging a failure to transpose the second subparagraph of Article 3(2) of the Directive (Obligation to supply
         information relating to the environment in part, where a ground of refusal exists for some of that information)
      
      
      
      1. Submissions of the parties
      
      63.  By that plea the Commission is alleging that the French Government has failed expressly to reproduce in the French legislation
      the obligation to supply in part information relating to the environment laid down in the second subparagraph of Article 3(2)
      of the Directive. In that connection it refers in particular to the judgment of the Court in Case C-217/97. 
      
         			(36)
         		
      64.  The French Government does not dispute the third plea.
      
      2. Assessment
      
      65.  Since the Court has already held in Case C-217/97 that the partial communication of information under the second subparagraph
      of Article 3(2) of the Directive is a measure which must be transposed into national law by an express provision and the French
      Government does not dispute that it has failed to adopt measures to that effect, it must be established that by failing to
      transpose the second subparagraph of Article 3(2) of the Directive, the French Republic has failed to fulfil its obligations
      under the Directive and under the third paragraph of Article 249 EC.
      
      
      E ─
         Fourth plea alleging a failure to transpose Article 3(3) of the Directive (possibility of refusing a request)
      
      
      
      1. Submissions of the parties
      
      66.  By its fourth plea the Commission is claiming that, unlike Article 3(3) of the Directive, the French legislation does not
      provide that a request for access to information may be refused where it would involve the supply of unfinished documents
      or data or internal communications, or where the request is manifestly unreasonable or formulated in too general a manner.
      
      67.  The Commission admittedly concurs with the French Government that refusing a request is a possibility of which Member States
      may choose to avail themselves, rather than an obligation imposed on Member States. Indeed, in practice the French authorities
      clearly avail themselves of that possibility of refusal. In such a situation, a Member State is required to transpose the
      relevant provision of the directive in such a way that the individual concerned can ascertain with sufficient precision the
      extent of his right of access to information. In view of the absence of implementing provisions in that regard, the case-law
      of the Conseil d'État (French Council of State) cannot constitute appropriate transposition.
      
      68.  The French Government does not dispute the absence of specific implementing provisions. It has also conceded that it is necessary
      to provide for the possibility to refuse a request on the grounds referred to in Article 3(3) because it does not rule out
      the French authorities having regard to those grounds for refusal. It considers, however, that the general legal framework
      in the form of Law No 78-753 ─ that is to say, as it is interpreted by the Conseil d'État ─ lays down sufficiently clear and
      transparent rules governing the possibility open to the public authorities to refuse a request on those grounds. As regards
      the grounds for refusal, it refers in each instance to a judgment of the Conseil d'État. It adds that, Article 3(3) of the
      Directive is predominantly concerned with the granting of a possibility to the public authorities ─ as is already established
      on the basis of the case-law of the Conseil d'État ─, not with the conferring of rights on individuals. It concludes that
      mere codification of that possibility does not contribute to safeguarding the rights of individuals.
      
      2. Assessment
      
      69.  As stated earlier in this Opinion, Article 3(2) of the Directive defines specific interests for the protection of which a
      Member State may refuse access to information relating to the environment.
      
      70.  Furthermore, Article 3(3) of the Directive provides that a request for information may be refused where it would involve the
      supply of unfinished documents or data or internal communications, or where the request is manifestly unreasonable or formulated
      in too general a manner.
      
      71.  It must first be observed that the French Government has pointed out that those possibilities for refusal exist in French
      law on the basis of the case-law of the Conseil d'État concerning Law No 78-753. It is also significant that the French Government
      does not in essence dispute the necessity to transpose those provisions relating to refusal especially since, as it has likewise
      pointed out, the French authorities may well avail themselves of those possibilities.
      
      72.  The dispute in the case at issue does not therefore cover the necessity per se of transposing Article 3(3) of the Directive;
      on the contrary, it is restricted to establishing whether the provision in question has been (appropriately) transposed into
      French law.
      
      73.  In so far as the French Government relies in this regard on the case-law of the Conseil d'État, it is essential to note again
      that the transposition of provisions of directives cannot be based on national case-law alone. 
      
         			(37)
         		 It is therefore insufficient that grounds for refusal as set out in Article 3(3) of the Directive are acknowledged in the
      case-law of the Conseil d'État. 
      
      74.  Furthermore, the distinction made by the French Government, in response to the alleged absence of legal certainty, between
      the discretion of the public authorities which, it argues, is the predominant concern in Article 3(3) of the Directive and
      the case of a provision of a directive which is deemed to confer a right on individuals is, in my view, incorrect.
      
      75.  The scope of the right of access to environmental information which the Directive confers on the individual is determined
      by the degree to which the public authorities are permitted to refuse such access to that individual. Accordingly, Article 3(3)
      of the Directive most certainly does govern the rights conferred on the individual under the Directive and must therefore
      be transposed into national law in a sufficiently clear and precise manner to enable a person requesting information to ascertain
      the precise extent of his right of access to information. 
      
         			(38)
         		 However, that legal certainty cannot be guaranteed by transposition based primarily on the case-law of the Conseil d'État.
      
      76.  It therefore follows that the allegation of failure to transpose the provisions of Article 3(3) of the Directive is correct.
      Consequently, the fourth plea raised is well founded.
      
      
      F ─
         Fifth plea alleging the defective transposition of Article 3(4) of the Directive (obligation to give reasons for a refusal
         within two months)
      
      
      
      1. Submissions of the parties
      
      77.  By that plea the Commission maintains that the French provisions are contrary to Article 3(4) of the Directive in that they
      do not ensure that a person requesting information will receive notification of a refusal of that request together with the
      reasons for that decision within two months at the latest.
      
      78.  The Commission levels its criticism specifically against the mechanism of the tacit refusal enshrined in Article 2 of Decree
      No 88-465 which provides that where a public authority remains silent for more than one month following a request for information
      or for more than two months following recourse by the person requesting the information to the CADA, in both cases the silence
      is to be regarded as a refusal of the request. The possibility, introduced by Law No 79-587, subsequently of obtaining ─ within
      one month ─ the written reasons for such tacit refusals and of replacing those reasons with others drawn up by the CADA could
      not, in the Commission's view, ensure that the obligations under Article 3(4) of the Directive were met precisely because
      the time-limit prescribed by that provision would in the meantime have expired. Again the Commission refers to the absence
      in the national provisions of legal certainty and clarity for individuals.
      
      79.  Moreover, it was only in theory that individuals could subsequently obtain reasons still within the period of two months prescribed
      by the Directive; that theory was based on the additional assumption that individuals would react immediately following the
      month's silence maintained by the public authority concerned. Even the French Government had also conceded that in the prevailing
      legal situation it was possible that the person requesting the information would not obtain the relevant reasons until that
      two-month period had expired.
      
      80.  The Commission furthermore refers to the fact that the reasons on which a legal measure is based must, in accordance with
      the case-law of the Court, in principle be notified along with the decision itself. 
      
         			(39)
         		 The reasons must in any event be given within the prescribed period of two months.
      
      81.  Should it on the other hand be considered, adopting the view held by the French Government, that the obligation to respond
      within two months is independent of the obligation to give reasons, such an approach would imply that there was no time-limit
      for fulfilling the obligation to state reasons. The Commission also rejects an approach of this kind in the light of the principles
      of good administration.
      
      82.  The French Government is seeking to have the arguments it raised at the hearing expressly understood as forming its main line
      of argument.
      
      83.  Accordingly, it takes the view that Article 3(4) of the Directive contains two independent, entirely separate obligations
      in that the first sentence of that provision provides that the public authority has to respond to a request within two months
      whilst the second sentence, which makes no reference to the first sentence, requires the public authorities to give reasons
      for a refusal to provide the information requested. It consequently argues that the statement of reasons does not have to
      coincide with the refusal or be notified within the two-month period.
      
      84.  The French Government refers to the fact that only the basic terms and conditions governing access to information are considered
      to be laid down in Article 1 of the Directive and that it is for the Member States to draw up the arrangements by which information
      is to be made available. Under the principle of procedural autonomy of Member States, it argues, there is no obligation to
      ensure that decisions and the reasons on which they are based issue simultaneously.
      
      85.  The purpose of the obligation to state reasons was to prevent arbitrary decision-making and to enable the person concerned
      to have resort to a legal remedy, as the Court established in Case 222/86 
      
         			(40)
         		 in which it had also acknowledged the possibility of a separate statement of reasons. That  
       a contrario   interpretation was also borne out, in the French Government's view, by the common position adopted by the Council with regard
      to a draft directive intended to supersede the directive at issue, and by Regulation (EC) No 1049/2001 of the European Parliament
      and of the Council. 
      
         			(41)
         		 Unlike the directive at issue, those texts provided that both the decision and the reasons on which it was based had to be
      communicated within a specified time-limit and simultaneously.
      
      86.  In its written observations, which should henceforth be regarded as pleas in the alternative, the French Government argued
      that the Commission had misunderstood Article 7 of Law No 78-753 as amended by Decree No 88-465. That provision very clearly
      provided, according to the French Government, that the refusal of a request for information had to be issued in the form of
      a written, reasoned decision. The possibility of a tacit decision under Decree No 88-465 arose only where the public authority
      concerned failed, through negligence, to issue an appropriate decision, thereby failing to meet the abovementioned requirement.
      The purpose of that mechanism was thus to make a legal remedy available to the individual concerned. The public authorities
      were not therefore entitled to refuse a request for information without stating the reasons for that decision; on the contrary,
      it was the individual concerned who found himself entitled to legal redress against the authorities' failure to act. The French
      Government none the less concedes that the mechanism of the tacit decision may result in the adoption of unreasoned decisions. 
      
         			(42)
         		
      87.  Article 5 of Law No 79-587, however, ensures that the reasons for a tacit decision are communicated to the individual within
      one month [of a request to that effect]. The French Government states that the abovementioned procedure does not necessarily
      lead to delays in the notification of reasons because, on the basis of Decree No 88-465, the individual can establish the
      existence of a tacit refusal as early as after one month and move on to the next stage of the proceedings.
      
      2. Assessment
      
      88.  The French Government bases its view that the legislation it has submitted before the Court meets the requirements of Article 3(4)
      of the Directive primarily on the fact that obligations which are independent of one another are laid down in the two sentences
      of that provision respectively and that, consequently, only the response, not the reasons, has to be communicated within two
      months.
      
      89.  That interpretation, in my view, is based on an  
       unjustified distinction  between the first and the second sentence of Article 3(4) of the Directive and I consider it inappropriate in the light of
      the spirit and purpose of that provision.
      
      90.  Article 1 provides that one of the objects of the Directive is to set out the basic terms and conditions on which information
      relating to the environment is made available. The substantive conditions on which natural or legal persons are to be given
      access, at their request, to such information are in that context laid down in Article 3(1) to (3).
      
      91.  Article 3(4) of the Directive lays down the rules governing decisions on that right of access from a procedural aspect. Under
      the first sentence of that provision, a public authority must react and respond to a request for information as soon as possible
      and at the latest within two months. In accordance with the scope of the right of access, as it is provided for under Article 3(1)
      to (3), that response may involve granting access to the information requested or refusing access to that information on the
      grounds cited therein.
      
      92.  The time-limit set in the first sentence of Article 3(4) of the Directive applies therefore in relation to responses by the
      public authorities both granting and refusing the requested access. That fact alone clearly demonstrates that the second sentence
      of that provision cannot be a measure entirely independent of the first sentence. On the contrary, as regards refusing a request
      for information ─ a matter already covered by the first sentence ─ the second sentence additionally provides that the reasons
      for that refusal must be given.
      
      93.  Therefore, the laying down of that obligation to give reasons in a second, separate sentence is, rather, the outcome of the
      translation into language of that additional condition in the event of a response for the purposes of the first sentence of
      Article 3(4) by which a public authority refuses, rather than grants, a request for information. Contrary to the argument
      raised by the French Government, it cannot be concluded from the foregoing that that obligation to give reasons can be separated
      from the general obligation to respond, nor that it is not subject to the time-limit prescribed by that provision.
      
      94.  In addition, a time-limit within which the public authorities must respond, such as that laid down in Article 3(4) of the
      Directive, is particularly conducive to legal certainty because it ensures that the person requesting the information is not
      left for an indefinite length of time in the dark as regards the outcome of his request and his legal position. In my view,
      this aspect merits special attention precisely in the context of a directive which is designed to guarantee public access
      to information held by the public authorities.
      
      95.  In that regard it should be assumed that the abovementioned requirement of legal certainty also arises in relation to the
      actual reasons for a refusal, especially where account is taken of the fact that Article 4 of the Directive provides for the
      possible review of both positive and negative responses issued by the public authorities and that the lawfulness of those
      responses must be assessed by reference to the reasons on which they are respectively based.
      
      96.  An interpretation under which a time-limit is not considered to apply to the requirement under Article 3(4) of the Directive
      to give reasons in the event of a public authority's refusal is not therefore compatible either with the spirit and purpose
      of that provision or with the Directive as a whole.
      
      97.  Therefore, under Article 3(4) of the Directive Member States must in any event ensure that where a person's request for information
      is refused, he will also obtain notification of the reasons for that refusal at the latest within two months. Accordingly,
      the approach adopted by the French Government that the reasons and the time-limit can be separated is incorrect. The argument
      raised by the French Government on the basis of that approach must consequently be rejected in its entirety.
      
      98.  The Commission was therefore right to proceed on the assumption that the refusal of a request for access to information must
      in any event be communicated together with the reasons on which that decision is based at the latest within two months.
      
      99.  In that context it also had to be established whether the reasons have to be given at the same time as the refusal. However,
      as I have already made clear in this Opinion, the objection that Article 3(4) of the Directive has been transposed incorrectly
      would indeed be well founded if there were no guarantee that the  
       reasons   for a refusal to supply the information requested would be given to the person requesting the information
       within the prescribed period of two months.  If those circumstances are proven to be true below, there will then be no need to ascertain additionally whether the reasons
      have to be given at the same time as the refusal.
      
      100.  First of all, I would like generally to stress that a Member State is quite at liberty to determine the form and methods to
      be used to transpose a directive, which is indeed clear from the third paragraph of Article 249 EC. Moreover, as far as transposing
      directives is concerned, a matter to which I have already referred on a number of occasions, a Member State can confine itself
      in principle to a general legal context. 
      
         			(43)
         		
      101.  However, the method of transposition chosen by a Member State in any event must actually ensure the full application of the
      directive in a sufficiently clear and precise manner, thus enabling the persons affected by the directive to ascertain the
      full extent of their rights. 
      
         			(44)
         		
      102.  The Commission considers the French legislation to be contrary to the Directive in so far as it does not ensure that persons
      requesting information are sent the refusal of the public authority, including the reasons for that refusal, within two months
      in accordance with Article 3(4).
      
      103.  The following can be established as regards the legislation by which, according to the French Government, that obligation
      is transposed:
      
      104.  Even though the French Government maintains that the public authority is in principle required, on the basis of Article 7
      of Law No 78-753 as amended by Decree No 88-465, to give reasons for its refusal of a request for access to documents, it
      has still acknowledged that the mechanism of the tacit decision contained in that decree, to which the Commission predominantly
      objects, may lead to  
       unreasoned   refusals
       .  Consequently, that legislation is in itself incapable of ensuring without any doubt that reasons are given for refusals by
      the public authorities and, indeed, that they are given within the time-limit of two months.
      
      105.  However, the French Government has referred in that context to Article 5 of Law No 79-587 under which,  
       at the request  of the person concerned, the reasons for a tacit refusal are to be notified to him within one month [of that request].
      
      106.  In this regard it is sufficient to point out that the obligation of a public authority to send the reasons for its tacit refusal
      within one month to the recipient of that refusal in accordance with that provision arises only upon a request made by that
      very recipient. Under Article 3(4) of the Directive, however, Member States must ensure that both the refusal of a request
      for information on the environment and the reasons on which that decision is based issue in any event within two months without
      the person requesting the information having to take further action. Therefore, the obligation to give reasons under Article 3(4)
      of the Directive is not properly transposed into national law by that provision either.
      
      107.  Finally, the French Government has also maintained that the provisions described do not necessarily result in
       delays in the notification of reasons . It explained that individuals could, on the basis of Law No 78-753 and Decree No 88-465, clearly establish the existence
      of a tacit refusal after expiry of one month and subsequently request under Article 5 of Law No 79-587 notification of the
      reasons within one month, thus concluding that it was possible to obtain the reasons required by Article 3(4) of the Directive
      within two months.
      
      108.  Irrespective of the fact ─ as I have just established above ─ that the provision concerned requires that an (additional) request
      be made and thus imposes on the person requesting information obligations to cooperate which are not laid down in the Directive,
      it is also insufficient to create a mere possibility for that person to obtain a reasoned response within the two-month period
      prescribed. On the contrary, there has to be a clear obligation under the national implementing provisions to give reasons
      within two months for the refusal of a request for access to information on the environment.
      
      109.  It may therefore be stated overall that the French legislation does not ensure in a clear and precise manner that a person
      whose request for information is refused will obtain reasons for that refusal within two months. Article 3(4) of the Directive
      consequently has not been fully transposed. Therefore, there is no longer any need in the present case to address the question
      whether the reasons for the refusal have to be given not only within the period prescribed by that provision but also at the
      same time as the decision refusing the request. 
      
      110.  On that basis, the fifth plea is well founded.
        V ─ Conclusion
      
      111.  I therefore propose that the Court should:
      (1) declare that, by not correctly transposing Article 2(a) and Article 3(2), (3) and (4) of Council Directive 90/313/EEC of 7
      June 1990 on the freedom of access to information on the environment the French Republic has failed to fulfil its obligations
      under that directive and under the third paragraph of Article 249 of the Treaty; 
      
      (2) order the French Republic to pay the costs. 
      
      
      
       1 –
         
           Original language: German.
      
      2 –
         
         OJ 1990 L 158, p. 56.
      
      3 –
         
         Law No 78-753 of 17 July 1978 establishing various measures to improve relations between the authorities and the public and
            various administrative, social and fiscal provisions (JORF, 18 July1978, p. 2851). 
         
      
      4 –
         
         Decree No 88-465 of 28 April 1988 on the procedure governing access to administrative documents (JORF, 30 April1988, p. 5900).
      
      5 –
         
         Law No 79-587 of 11 July 1979 on the requirement to state reasons for administrative measures and on improving relations between
            the authorities and the public (JORF, 12 July 1979, p. 1711).
         
      
      6 –
         
         Law No 2000-321 of 12 April 2000 concerning the rights of citizens in their relationship with the authorities, amending Law
            No 78-753 of 17 July 1978 establishing various measures to improve relations between the authorities and the public and various
            administrative, social and fiscal provisions (JORF, 13 April 2000, p. 5646).
         
      
      7 –
         
         Ordinance No 2001-321 of 11 April 2001 on transposing Community directives and implementing Community provisions relating
            to the environment (JORF, 14 April 2001, p. 5820).
         
      
      8 –
         
         See point 21 above.
      
      9 –
         
         To that effect, compare for example Case C-474/99  
             Commission  v  
             Spain  [2002] ECR I-5293, paragraph 25, and Case C-243/89  
             Commission  v  
             Denmark  [1993] ECR I-3353, paragraph 30.
         
      
      10 –
         
         Compare, for example, Case C-166/00  
             Commission  v  
             Greece  [2001] ECR I-9835, paragraph 9, and Case C-29/90  
             Commission  v  
             Greece   [1992] ECR I-1971, paragraph 12.
         
      
      11 –
         
         See in particular Case C-394/00  
             Commission  v  
             Ireland  [2002] ECR I-581, paragraph 12, Case C-435/99  
             Commission  v  
             Portugal  [2000] ECR I-11179, paragraph 16, and Case C-111/00  
             Commission  v  
             Austria   [2001] ECR I-7555, paragraph 13.
         
      
      12 –
         
         Case C-321/96  
             Mecklenburg  [1998] ECR I-3809.
         
      
      13 –
         
         Case C-343/95  
             Calì & Figli   [1997] ECR I-1547, paragraphs 22 and 23.
         
      
      14 –
         
         Joined Cases C-132/91, C-138/91 and C-139/91  
             Katsikas  and Others   v  
             Konstantinidis  and Others  [1992] ECR I-6577, paragraph 40.
         
      
      15 –
         
         Cf. inter alia Case C-337/98  
             Commission   v  
             France  [2000] ECR I-8377, paragraph 45, and Case C-96/98  
             Commission  v  
             France  [1999] ECR I-8531, paragraph 36.
         
      
      16 –
         
         See Case C-392/96  
             Commission   v  
             Ireland   [1999] ECR I-5901, paragraphs 60 and 61.
         
      
      17 –
         
         . Commission   v  
             Ireland  (cited in footnote 16), at paragraph 60.
         
      
      18 –
         
         To that effect, cf. Case C-131/88  
             Commission  v  
             Germany  [1991] ECR I-825, paragraphs 4 and 9.
         
      
      19 –
         
         Inter alia Case C-49/00  
             Commission  v  
             Italy  [2001] ECR I-8575, paragraph 21, Case C-214/98  
             Commission  v  
             Greece   [2000] ECR I-9601, paragraph 49, and Case C-38/99  
             Commission  v  
             France  [2000] ECR I-10941, paragraph 53.
         
      
      20 –
         
         . Ibidem. 
         
      
      21 –
         
         Case C-131/88 (cited in footnote 18), at paragraph 8 (no emphasis in the original version) and Case C-59/89  
             Commission  v  
             Germany  [1991] ECR I-2607, paragraph 28. 
         
      
      22 –
         
         Case C-354/98  
             Commission   v  
             France   [1999] ECR I-4927, paragraph 11.
         
      
      23 –
         
         . Katsikas and Others   v  
             Konstantinidis and Others  (cited in footnote 14), at paragraph 40.
         
      
      24 –
         
         To that effect, cf. Case C-343/96  
             Dilexport  [1999] ECR I-579, paragraph 51, which refers in this context to Case C-347/89  
             Eurim-Pharm  [1991] ECR I-1747, paragraph 15 and to the  
             Katsikas  judgment (cited in footnote 14), at paragraph 39.
         
      
      25 –
         
         To that effect, cf. Case C-372/99  
             Commission  v  
             Italy   [2002] ECR I-819, paragraph 22.
         
      
      26 –
         
         Case C-144/99  
             Commission  v  
             Netherlands  [2001] ECR I-3541, paragraph 21.
         
      
      27 –
         
         Inter alia Case C-236/95  
             Commission  v  
             Greece  [1996] ECR I-4459, paragraph 13.
         
      
      28 –
         
         Case C-131/88 (cited in footnote 18), at paragraph 6, and Case C-59/89 (cited in footnote 21), at paragraph 18.
      
      29 –
         
         Opinion in Case C-145/99  
             Commission   v  
             Italy  [2002] ECR I-2235, points 45 to 47. 
         
      
      30 –
         
         Case C-321/96 (cited in footnote 12), at paragraph 19.
      
      31 –
         
         . Calì & Figli  (cited in footnote 13), at paragraphs 22 and 23.
         
      
      32 –
         
         See  
             ibidem . 
         
      
      33 –
         
         
      
      34 –
         
         Compare, for example, Case C-217/97  
             Commission   v  
             Germany  [1999] ECR I-5087, paragraphs 32 to 35.
         
      
      35 –
         
         
      
      36 –
         
         . Commission  v  
             Germany  (cited in footnote 34), at paragraphs 33 and 35.
         
      
      37 –
         
         Cf. in particular  
             Commission  v  
             Netherlands  (cited in footnote 26) at paragraph 21, and observations of the Advocate General in relation to the first plea at points
            43 and 44 above.
         
      
      38 –
         
         To that effect, cf. observations of the Advocate General on the second plea at point 55 above.  
      
      39 –
         
         Case 195/80  
             Michel   v  
             Parliament  [1981] ECR 2861, paragraph 22.
         
      
      40 –
         
         Case 222/86  
             Heylens and Others  [1987] ECR 4097.
         
      
      41 –
         
         Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European
            Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
         
      
      42 –
         
         See the defence in that connection. 
      
      43 –
         
         See my comments in points 38 and 39 above and the case-law cited in footnote 19.
      
      44 –
         
         Cf. inter alia Case C-217/97 (cited in footnote 34), at paragraphs 31 and 32, and the case-law of the Court cited therein.