CELEX: 62004CC0186
Language: en
Date: 2005-01-27 00:00:00
Title: Opinion of Advocate General Kokott delivered on 27 January 2005. # Pierre Housieaux v Délégués du conseil de la Région de Bruxelles-Capitale. # Reference for a preliminary ruling: Conseil d'État - Belgium. # Directive 90/313/EEC - Freedom of access to information on the environment - Request for information - Requirement to give reasons in the event of refusal - Mandatory time-limit - Failure of a public authority to respond within the time-limit for reply - Implied refusal - Fundamental right to effective judicial protection. # Case C-186/04.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      delivered on 27 January 2005 (1)
      
      Case C-186/04
      Pierre Housieaux
      (Reference for a preliminary ruling from the Conseil d’État (Belgium))
      (Freedom of access to information on the environment – Request for information – Obligation to give reasons in the event of refusal – Failure by an authority to respond within the time-limit for responding – Fiction of an implied refusal – Fundamental right to effective legal protection and right to good administration)I –  Introduction
      1.     This case concerns the right of members of the public to have access to information on the environment, more specifically,
         the procedure for obtaining such access before national authorities.
      
      2.     Under the legislation in force at the material time in the Région de Bruxelles-Capitale (or Brussels Hoofdstedelijk Gewest)
         of Belgium, requests for access to information on the environment were deemed to have been implicitly refused once the time-limit
         prescribed for processing them had expired.
      
      3.     The question whether such a fiction is permissible under Community law lies at the heart of the reference for a preliminary
         ruling made by the Belgian Conseil d’État (Raad van State) (Council of State) to the Court of Justice.
      
      II –  Relevant legislation
      A –    Community law
      4.     The Community legislation relevant to this case is Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to
         information on the environment (hereinafter: ‘Directive 90/313’). (2)
      
      5.     Article 3(1) of Directive 90/313 lays down the principle that ‘information relating to the environment [must be made available]
         to any natural or legal person at his request and without his having to prove an interest’. The possible reasons for refusal
         are then listed in paragraphs 2 and 3. 
      
      6.     Under Article 3(4) of the directive, a public authority is to 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.’
      
      7.     Article 4 of Directive 90/313 states that ‘[a] person who considers that his request for information has been unreasonably
         refused or ignored, or has been inadequately answered by a public authority, may seek a judicial or administrative review
         of the decision in accordance with the relevant national legal system.’
      
      B –    National law
      8.     The relevant national provisions are contained in an Order of the Région de Bruxelles-Capitale of 29 August 1991 on access
         to information on the environment in the Région de Bruxelles-Capitale (hereinafter: ‘the Regional Order’).
      
      9.     That Regional Order requires firstly that the competent administrative service must examine and, where appropriate, grant
         requests for information on the environment within a period of one month. However, such requests may be refused only by the
         Delegates of the Council of the Région de Bruxelles-Capitale (Délégués du Conseil de la Région de Bruxelles-Capitale). A period
         of a further month is, in principle, provided for their decision. If a decision is not taken within the overall time-limit
         of two months from submission of the request, that request is deemed to have been refused.
      
      10.   More specifically, those rules arise from the following provisions of the Regional Order:
      ‘Article 8
      As regards information other than the documents mentioned in Article 7 [which can be consulted on the premises], and without
         prejudice to an authority’s power to allow it to be consulted immediately on the premises, the authority to which the request
         is addressed shall have one month in which to reply to the applicant in writing.
      
      Where, at the expiry of the time-limit indicated, no action has been taken on the request, the authority’s failure to reply
         shall be deemed to constitute a decision to refuse access. In that case, the applicant may, by way of exception to Article
         12 § 2, refer the matter directly to the Délégués du Conseil, who shall then decide on the request.
      
      …
      Article 12
      §1. Only the Délégués du Conseil shall have the power to refuse access to information held by the authorities … . They shall
         exercise that power acting as a body and within the limits set out in Article 9.
      
      §2. … [A]ny authority which refuses to disclose information which is the subject of a request for access must inform the applicant
         of that decision and at the same time refer the matter to the Délégués du Conseil. Reference to the Délégués du Conseil is
         made by transmission of the request for access, together with a specimen or a copy of the information and the reasons which
         the authority considers justify the refusal of access. The time-limit mentioned in Article 8 § 1 shall be extended by one
         month from the date of the notification to the applicant of the reference to the Délégués du Conseil.
      
      Article 13
      Any total or partial refusal of access must set out the reasons which seek to justify it in a manner that is clear, precise,
         complete and genuine.
      
      Article 14
      The Délégués du Conseil shall provide the applicant with the document requested or notify him of refusal of access within
         two months of his request. Failure to reply within that period shall be deemed to constitute a decision to refuse access.
         Their decision shall also be communicated to the authority to which the request for access had been referred.’ (3)
      
      III –  Facts and main proceedings
      11.   In 1991, in the territory of the Belgian commune of Ixelles (also known as Elsene) in the Région de Bruxelles-Capitale, work
         began on the urban redevelopment (‘reurbanisation’) of the site of a former military hospital, the plan being primarily to
         create residential dwellings and a large green space.
      
      12.   The task of executing that project was entrusted to a body governed by public law, the Société de développement régional de
         Bruxelles (hereinafter: ‘the SDRB’). (4) Then, in July 1992, the SDRB concluded a contract with a private consortium, the temporary association SA Bâtipont Immobilier
         – SA Immomills Louis De Waele Development. Under the contract, the association was commissioned to erect a complex of buildings
         in accordance with a programme predetermined by the SDRB.
      
      13.   By letter of 21 March 1993 addressed to the SDRB, the applicant in the main proceedings, Mr Housieaux (hereinafter: ‘the applicant’),
         asked to consult the contract and be provided with a copy of it. On 5 April 1994, the SDRB refused the applicant’s request
         on the ground that there were no procedural rules governing its sphere of competence.
      
      14.   On 22 April 1994, the applicant appealed against that decision to the defendants in the main proceedings, the Délégués du
         Conseil de la Région de Bruxelles-Capitale (hereinafter: ‘the defendants’), and reasserted his request to consult the contract
         at issue.
      
      15.   After a further exchange of written correspondence, the defendants decided at their meeting of 1 February 1995 to grant the
         applicant’s request in part by allowing him to consult two annexes to the abovementioned contract, ‘since they concern the
         environment’. The applicant was notified of that decision by letter of 3 February 1995; the two annexes were enclosed with
         that letter.
      
      16.   On 31 March 1995, the applicant brought an action against that decision before the referring court.
      17.   In the main proceedings, the defendants contend that the action is inadmissible. They take the view that their decision of
         1 February 1995 was merely a confirmatory decision against which an action cannot be brought. Leaving aside the communication
         of the two annexes to the contract at issue, the decision of 1 February 1995 merely confirmed the defendants’ earlier implied
         refusal. In view of the defendants’ failure to respond during the prescribed two-month period, the applicant’s request was
         deemed to have been refused implicitly as soon as that time-limit expired, pursuant to Article 14 of the Regional Order. That
         refusal is now final, since the applicant did not bring judicial proceedings to challenge it in due time. Article 14(1) of
         the consolidated laws on the Belgian Conseil d’État provides for a 60-day time-limit for bringing such proceedings.
      
      18.   In the main proceedings, the SDRB, SA Bâtipont Immobilier and SA Immomills Louis de Waele Development appear as interveners
         in support of the defendants.
      
      IV –  Reference for a preliminary ruling and procedure before the Court
      19.   By judgment of 1 April 2004, the Belgian Conseil d’État stayed proceedings and referred the following questions to the Court
         of Justice for a preliminary ruling:
      
      (1)      Is the two-month time-limit in Article 3(4) of … Directive 90/313 … a directory time-limit – that is to say, merely indicatory
         for the authority to which a request for information is addressed – or is it a mandatory time-limit with which that authority
         must comply?
      
      (2)      If the two-month time-limit is mandatory and on expiry of that time-limit the authority to which a request for information
         was addressed has not taken a decision, what is the ‘decision’ referred to at the end of Article 4 of the Directive against
         which a judicial or administrative review may be sought ‘in accordance with the relevant national legal system’?
      
      (3)      Do Articles 3(4) and 4 of the Directive prohibit a ‘relevant national legal system’ from interpreting a failure to respond
         on the part of the authority to which a request for information is referred – a failure to respond which continues throughout
         the two-month period referred to in Article 3(4) of the Directive – as a decision implicitly refusing that request, a decision
         for which no reasons are thus given but which may be the subject of the judicial or administrative review provided for in
         Article 4?
      
      (4)      If the two-month time-limit referred to in Article 3(4) of the Directive is a directory time-limit, do Articles 3(4) and 4
         of the Directive preclude a ‘national legal system’ from providing that the person requesting information may give the authority
         notice to respond to his request for information within a certain period, failing which the persistent failure by the authority
         to respond will be deemed to be an implied decision to refuse to provide the information, which can then be the subject of
         an administrative judicial review?
      
      20.   In the proceedings before the Court, written and oral observations were submitted by the applicant, the defendants, the SDRB
         and the Commission.
      
      V –  Assessment
      21.   The four questions referred by the Conseil d’État all concern procedural aspects of the right of access to information on
         the environment. I consider it appropriate to examine them in a slightly different order, that is to say to consider the third
         question before the second. 
      
      A –    First question: mandatory nature of the time-limit laid down in Article 3(4) of Directive 90/313
      22.   By its first question, the referring court essentially seeks to ascertain whether the time-limit laid down in Article 3(4)
         of Directive 90/313 is mandatory or merely indicative for the public authorities of the Member States.
      
      23.   The very wording of that provision argues against the assumption that the provision is merely indicative and in favour of
         a mandatory procedural time-limit. It provides that the public authority concerned is to respond to the person requesting
         information ‘as soon as possible and at the latest within two months’. Consequently, the two-month period represents the outside
         limit of the processing time (‘at the latest’) and is coupled with a requirement to expedite matters which, in line with the
         principle of good administration, (5) states that a response is to be given ‘as soon as possible’, that is to say, if possible, in less than two months. Scope
         for flexibility therefore exists at most within the two-month time-limit – and even then subject to the objective of expediting matters – but not beyond that time-limit.
      
      24.   That conclusion is also consistent with the spirit and purpose of the provision. After all, the aim of Directive 90/313 is
         to grant individuals a subjective right of access to information on the environment. However, that right could be devalued
         if a public authority were able to take as long as it pleased to decide on a request for such access. The value of information
         on the environment is dependent not least on the individual’s being able to obtain it as quickly as possible. Thus, timely
         access to current information on the environment makes it in particular easier for the person requesting the information to
         use it, for example in ongoing construction or planning proceedings in which he may be involved as a neighbour and in which
         he would like to protect his interests.
      
      25.   Moreover, if it is assumed that the time-limit is merely indicative, the legal protection available to the individual under
         Article 4 of the directive would be illusory. That article requires the Member States to provide legal remedies where a person
         considers that his request for information has been ‘unreasonably refused or ignored’. If, however, the public authority is
         not subject to any mandatory procedural time-limits, but rather to purely indicative time-limits, it cannot automatically
         be concluded from the fact that the time-limit has been exceeded that a request for information on the environment has been
         ‘unreasonably … ignored’. Reliance on the legal protection provided for in Article 4 of the directive in the event of a failure
         to act would, therefore, be made at least more difficult if not altogether impossible.
      
      26.   Finally, it must be taken into account that an interpretation of the two-month time-limit as being merely indicative might
         also give rise to the emergence of different administrative practices in the Member States. The promptness with which an individual
         is granted access to the information on the environment requested would depend on the strictness with which the public authority
         to which the request is made complies with the two-month time-limit when processing requests. However, in those circumstances,
         the right of access to information on the environment would vary greatly depending on the Member State in which the request
         is made, and also, perhaps, the public authority to which a request is addressed. Such a development would be contrary to
         the aim of Directive 90/313, that is to say to ensure equal treatment for all Community citizens and to prevent disparities
         in conditions of competition. (6)
      
      27.   For the reasons given above, I concur with all the parties to the proceedings that the time-limit laid down in Article 3(4)
         of Directive 90/313 is mandatory for the public authorities of the Member States. (7)
      
      B –    Third question: implied refusal of requests on expiry of the time-limit
      28.   By its third question, the referring court essentially seeks to ascertain whether Article 3(4) of Directive 90/313 precludes
         national legislation under which a public authority’s failure to respond by the expiry of the two-month time-limit is deemed
         to constitute an implied refusal of the request for information on the environment, for which, in such circumstances, no reasons
         are given.
      
      29.   The starting point for answering that question should be the judgment in Commission v France. (8) In that case, the Court held that it is perfectly permissible within the scope of Directive 90/313, to regard a public authority’s
         failure to respond as an implied refusal. (9) However, it also pointed out at the same time that, in the case of an implied refusal of a request for information on the
         environment, the reasons for that refusal must be notified within two months of the submission of the initial request, since
         that notification must, in that situation, be regarded as a ‘response’ for the purposes of Article 3(4) of the directive. (10)
      
      30.   At first sight, those findings in the judgment in Commission v France seem contradictory: on the one hand, an implied refusal is said to be permissible, yet, on the other hand, there is said
         to be an obligation to give the person requesting information an express response within the two-month time-limit, that is
         to say to notify him of the reasons for any refusal. The two findings seem incompatible, since, if a public authority is required
         to inform the person requesting information expressly of the reasons for its decision, there is no scope for refusals implied
         by the mere expiry of a procedural time-limit.
      
      31.   That apparent contradiction is explained by reference to the fundamental right to effective legal protection (11) in conjunction with the right to good administration. (12) It is common knowledge that the Member States, in so far as they act within the scope of Community law, must observe the
         general principles of law recognised at Community level, (13) and in particular the fundamental rights (14) of the Community. (15)
      
      32.   The right to good administration creates for the administration an obligation to give reasons for its decisions. (16) Such a statement of reasons is not merely a general expression of the transparency of the administration’s actions, but is
         also intended, in particular, to give the individual the possibility of deciding, with a full knowledge of the relevant facts,
         whether there is any point in his applying to the courts. (17) There is therefore a close connection between the obligation to give reasons and the fundamental right to effective legal
         protection.
      
      33.   Accordingly, it would be incompatible with both the right to good administration and the fundamental right to effective legal
         protection if a public authority could simply let the two-month time-limit provided for in Article 3(4) of Directive 90/313
         expire and for this to be deemed to constitute a lawful refusal of a request for information on the environment. Logically,
         therefore, the Court has held that the individual must automatically be informed of the reasons for the refusal of his request,
         not necessarily at the same time as the actual refusal but in any event within the two-month time-limit. (18)
      
      34.   On those grounds, I, unlike the defendants and the SDRB, agree with Mr Housieaux and the Commission that the mere failure
         by a public authority to respond within the two-month time-limit can never be compatible with the directive as a procedure
         for processing a request for information on the environment. Rather, the statutory interpretation of a public authority’s
         failure to respond as a refusal of the request made to it may only ever be a device  intended to allow members of the public to obtain effective legal protection against the public authority’s (unlawful) failure to take action in their regard. Understood in this way, the fiction that a failure to respond constitutes a refusal
         (or an approval) is primarily a means of disciplining the public authority. First and foremost, it is intended to strengthen
         the rights of those concerned and, at best, can also serve generally to expedite the administrative process.
      
      35.   Moreover, fictions of this kind are by no means unusual at the Community level as well. In this context, it is particularly
         noteworthy that, under the Community’s ‘Transparency Regulation’, a request for access to European Parliament, Council and
         Commission documents is deemed to have been refused if the body concerned itself fails to reply within the prescribed time-limit
         to a confirmatory application from the applicant. (19) Likewise under the Community law on the public service, the appointing authority’s failure to respond to a request or a complaint
         made by an official is deemed to constitute an implied refusal. (20) And Community competition law even contains fictions of positive decisions: under that law, a concentration between undertakings
         notified to the Commission is deemed to have been authorised if the Commission does not take within specified procedural time-limits
         any of the decisions provided for in the EC Merger Regulation; (21) the same applies if the Commission does not initiate within the prescribed time-limit the procedure for examining a measure
         of State aid which has been notified to it. (22)
      
      36.   However, fictions of this kind are always devices intended to strengthen the rights of the applicant. Under no circumstances
         do such fictions serve to relieve the Community institutions concerned or still less to exempt them from the statutory obligation
         to provide the applicant with an express and reasoned response in each individual case.
      
      37.   If a public authority were permitted simply to let the time-limit prescribed for processing a request made to it expire rather
         than responding to it expressly, the obligation to give reasons which stems from Community law would be rendered meaningless. (23) After all, contrary to the view taken by the defendants, a public authority’s failure to respond cannot as such provide any
         explanation as to whatever reasons there may be for authorising or refusing the action requested. (24) Thus under Article 3(2) and (3) of Directive 90/313, a request for information on the environment can be refused for a wide
         variety of reasons. The same applies to any refusal of access to documents under Article 4 of Regulation No 1049/2001. Indeed,
         a decision on the compatibility with the common market of a concentration or a measure of State aid generally requires the
         assessment of complex economic issues. The reasons which prompted the public authority in a particular case not to respond
         within the time-limit, if indeed it had formed an opinion at all within that period, could only be guessed at by those concerned
         by the decision (the applicant or third parties (25)). Reliance on guesswork, however, would not satisfy the right of members of the public to good administration and their fundamental
         right to effective legal protection.
      
      38.   In summary, therefore, it is appropriate to find that:
      Article 3(4) of Directive 90/313 precludes national legislation under which a request for information on the environment may
         be refused without reason by the mere failure of a public authority to respond within the two-month time-limit.
      
      However, Article 3(4) in conjunction with Article 4 of that directive does not preclude national legislation under which,
         for the purpose of affording effective legal protection, the failure of a public authority to respond within the two-month
         time-limit is deemed to be a decision open to review in accordance with the relevant national legal system.
      
      C –    Second question: remedies available in the event of the public authority’s failure to respond
      39.   By its second question, the referring court wishes to ascertain what constitutes the reviewable ‘decision’ within the meaning
         of Article 4 of Directive 90/313 in cases where a public authority has failed to respond to a request within the two-month
         time-limit laid down in Article 3(4) of that directive.
      
      40.   On the face of it, this question appears already to have been answered by the explanations in relation to question 3. However,
         on closer examination, in particular with reference to the aforementioned facts in the main proceedings of this case, it is
         clear that the second question seeks clarification as to how to deal with those cases in which an implied refusal is later,
         that is to say after expiry of the two-month time-limit for processing requests, followed by an express (and at least partly
         negative) decision by the competent public authority.
      
      41.   Article 4 of Directive 90/313 merely sets out the objective of affording effective legal protection, as is also required,
         moreover, by the fundamental rights of the Community. (26) Such legal protection must be guaranteed not only in the case of an express (and at least partly negative) response to the request for information on the environment, (27) but also in the case of the public authority’s failure to act (failure to respond). (28) However, in accordance with the third paragraph of Article 249 EC, it is for the Member States to choose the form and methods
         for achieving that objective.
      
      42.   The reference in Article 4 of Directive 90/313 to a ‘decision’ of which the person requesting information may ‘seek a … review’
         is intended only as an illustrative example of the legal protection available in the event of an express but (at least partly)
         negative decision on a request for information. Conversely, Article 4 does not contain a specific example of a possible legal
         remedy in cases where a request for information is ignored, that is to say where the public authority fails to respond. One
         reason for this is probably the fact that the procedures available in the Member States for securing legal protection in the
         event of a failure to act by the public authorities can vary greatly. Conceivable means of obtaining redress include not only
         an action for failure to act, (29) but also, inter alia, the aforementioned statutory fiction of a failure to respond being regarded as a refusal, combined
         with the possibility of appealing against such an implied refusal. (30)
      
      43.   Under the principle of the procedural autonomy of the Member States, (31) it is therefore, as already stated in the context of the third question, (32) perfectly permissible for national legislation, for the purpose of affording effective legal protection, to provide that
         a public authority’s failure to respond within the two-month time-limit is deemed to be a decision open to review in accordance
         with the relevant national legal system. 
      
      44.   However, Community law also imposes limits on the procedural autonomy of the Member States. Thus, the procedural rules governing
         actions for the enforcement of rights under Community law must not be less favourable than the rules governing similar domestic
         actions (principle of equivalence), nor must they render virtually impossible or excessively difficult the exercise of rights
         conferred by Community law (principle of effectiveness). (33)
      
      45.   National procedural provisions under which remedies against a public authority’s failure to respond are available only within
         a prescribed time-limit may pose a problem as regards the principle of effectiveness. The problem is exacerbated where national
         procedural law also provides that an action against a later express refusal is likewise no longer admissible because an implied refusal is already deemed to have been given by virtue of the public authority’s failure to respond and the time-limit for
         contesting that implied refusal has already expired. 
      
      46.   It is true that, in a different context (the reimbursement of charges paid though not due), the Court has held that it may
         be compatible with Community law, and in particular with the principle of effectiveness, to lay down reasonable limitation
         periods for bringing proceedings in the interests of legal certainty. (34) Similarly, it is possible to conceive of cases in which an applicant loses his right to bring proceedings against a late
         express (and at least partially negative) decision by a public authority where he had not previously challenged in due time
         that same authority’s failure to respond. By way of example, such a loss of the right to bring proceedings is provided for
         under the Community law on the public service. Thus, for an official of the Communities, time begins to run from the implied
         rejection of a complaint submitted by him; (35) any subsequent express decisions by the appointing authority can be challenged only if they were taken within the original
         period for lodging an appeal. (36)
      
      47.   However, the situation of an official of the Communities who is in dispute with his appointing authority is not comparable
         to that of a member of the public who submits a request for information on the environment to a public body. Officials are
         generally informed upon their appointment of the principal features of the law on the public service and, furthermore, are
         acquainted with the day-to-day workings of public authorities. The same cannot be assumed of a member of the public, especially
         one with no legal knowledge. A person requesting information on the environment will usually be completely unaware of whether
         and when the time-limit for replying to his request expires and, should the case arise, when the time-limit applicable to
         him for bringing any appeals starts to run.
      
      48.   In those circumstances, if it were accepted that mandatory time-limits could be introduced within which members of the public
         must challenge a public authority’s failure to act, the fiction that a failure to respond constitutes a refusal – the very
         purpose of which, as has already been stated, is to guarantee the effectiveness of their legal protection – could turn into
         a trap for the public. The applicant summed this up neatly at the hearing: a person requesting information who is still waiting
         for an authority to respond after the two-month time-limit for responding has expired and who does not immediately begin legal
         proceedings would be punished for his patience. 
      
      49.   This would make it considerably more difficult for members of the public to exercise their right of free access to information
         on the environment. It is not consistent with the spirit and purpose of Directive 90/313, which is specifically intended to
         open up and facilitate such access.
      
      50.   In summary, therefore, it is appropriate to find that:
      Article 3(4) in conjunction with Article 4 of Directive 90/313 does not preclude national legislation under which, for the
         purpose of affording effective legal protection, the failure of a public authority to respond within a two-month time-limit
         is deemed to be a decision open to review in accordance with the relevant national legal system.
      
      This notwithstanding, however, an express decision by the public authority in which that authority, after the expiry of the
         two-month time-limit, at least partly refuses access to information on the environment must also be open to review in accordance
         with the relevant national legal system. 
      
      D –    Fourth question: the authority’s failure to respond in the case of non-mandatory time-limits
      51.   In view of the answer which I propose to the first question – to the effect that Article 3(4) of Directive 90/313 contains
         a mandatory time-limit and not merely an indicative one –, the fourth question need not be answered.
      
      VI –  Conclusion
      52.   In the light of the foregoing considerations, I propose that the Court should answer the questions referred to it by the Belgian
         Conseil d’État as follows:
      
      (1)      The time-limit laid down in Article 3(4) of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information
         on the environment is mandatory for the public authorities of the Member States.
      
      (2)      Article 3(4) of Directive 90/313 precludes national legislation under which a request for information on the environment may
         be refused without reason by the mere failure of a public authority to respond to it within the two-month time-limit.
      
      Article 3(4) in conjunction with Article 4 of that directive does not, however, preclude national legislation under which,
         for the purpose of affording effective legal protection, the failure of a public authority to respond within the two-month
         time-limit is deemed to be a decision open to review in accordance with the relevant national legal system.
      
      This notwithstanding, however, an express decision by the public authority in which that authority, after the expiry of the
         two-month time-limit, at least partly refuses access to information on the environment must also be open to review in accordance
         with the relevant national legal system. 
      
      1 –	 Original language: German.
      
      2 –	OJ 1990 L 158, p. 56. This directive has been repealed and replaced by Directive 2003/4/EC of the European Parliament and
         of the Council of 28 January 2003 (OJ 2003 L 41, p. 26; hereinafter: ‘Directive 2003/4’), but with effect only from 14 February
         2005; Directive 90/313 is therefore still relevant to this case.
      
      3 –      The second sentence of Article 14 (‘Failure to reply within that period shall be deemed to constitute a decision to refuse
         access’) has since been repealed by the Order of the Région de Bruxelles-Capitale of 2 March 2000 (Moniteur belge  No 69, 5 April 2000, p. 10595). However, in terms of time, it is still the original version of that provision which is applicable
         to the facts of the main proceedings.
      
      4 –	On the SDRB’s status as a body governed by public law and its tasks, see also the information provided at < http://www.sdrb.irisnet.be/fr/mainf.html
         > (18 November 2004).
      
      5 –	In this connection, see also point 41 of my Opinion in Case C-417/02 Commission v Greece [2004] ECR I-0000.
      
      6 –	See the fifth recital in the preamble to Directive 90/313.
      
      7 –	On the basis of analogous considerations, the judgments in Case C-245/03 Merck, Sharp & Dohme [2005] ECR I-0000, paragraphs 20 to 24, and Case C-296/03 Glaxosmithkline [2005] ECR I-0000, paragraphs 26 to 30, acknowledge the mandatory nature of the time-limit laid down in Article 6(1) of Council
         Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the pricing of medicinal products
         for human use and their inclusion in the scope of national health insurance systems (OJ 1989 L 40, p. 8; hereinafter: ‘Directive
         89/105’); in this regard, see also the Opinion of Advocate General Tizzano in Case C-245/03 and Case C-296/03 [2005] ECR I-0000,
         point 35 et seq.
      
      8 –	Judgment in Case C-233/00 Commission v France [2003] ECR I-6625.
      
      9 –	Judgment in Commission v France (cited in footnote 8, paragraph 111).
      
      10 –	Judgment in Commission v France (cited in footnote 8, paragraph 118).
      
      11 –	Judgments in Case 222/84 Johnston [1986] ECR 1651, paragraphs 18 and 19, Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 39, and Case C‑327/02 Panayotova and Others [2004] ECR I-0000, paragraph 27; see also Article 47(1) of the Charter of Fundamental Rights of the European Union (OJ 2000
         C 364, p. 1); on the legal status of the Charter, see my Opinion in Case C-387/02 Berlusconi and Others [2005] ECR I‑0000, footnote 83.
      
      12 –	Article 41 of the Charter of Fundamental Rights of the European Union; see also the judgment in Case C-170/02 P Schlüsselverlag J.S. Moser and Others v Commission [2003] ECR I-9889, paragraph 29, in which reference is made to sound administration.
      
      13 –	Judgments in Case C-36/94 Siesse [1995] ECR I-3573, paragraph 21, Case C-262/99 Louloudakis [2001] ECR I-5547, paragraph 67. See also the judgment in Case C-220/01 Lennox [2003] ECR I-7091, paragraph 76.
      
      14 –	Judgments in Case C-260/89 ERT [1991] ECR I-2925, paragraph 42, Case C-112/00 Schmidberger [2003] ECR I-5659, paragraphs 74 and 75, and in Panayotova (cited in footnote 11, paragraph 27).
      
      15 –	See also Article 51(1) of the Charter of Fundamental Rights of the European Union.
      
      16 –	Third indent of Article 41(2) of the Charter of Fundamental Rights of the European Union.
      
      17 –	Judgment in Case 222/86 Heylens [1987] ECR 4097, paragraph 15.
      
      18 –	Judgment in Commission v France (cited in footnote 8, paragraphs 113 to 118). In matters falling within the scope of the new Directive 2003/4, the applicant
         is, in future, to be informed of the reasons for the refusal at the same time as the refusal, pursuant to the second sentence of Article 4(5) of that directive.
      
      19 –	Article 8(3) of 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; hereinafter: ‘Regulation No 1049/2001’).
      
      20 –	Article 90 of the Staff Regulations of officials of the European Communities, as laid down in Regulation (EEC, Euratom,
         ECSC) No 259/68 of the Council of 29 February 1968 (OJ, English Special Edition 1968 (I), p. 30), as most recently amended
         by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 (OJ 2004 L 124, p. 1).
      
      21 –	Article 10(6) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings
         (‘the EC Merger Regulation’, OJ 2004 L 24, p. 1).
      
      22 –	Article 4(6) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of
         Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).
      
      23 –	The obligation to give reasons follows, as has been stated above, from the third indent of Article 41(2) of the Charter
         of Fundamental Rights of the European Union. Community institutions are also so bound by Article 253 EC; national public authorities
         to which requests for information on the environment are made are subject to the abovementioned obligation to give reasons
         under Article 3(4) of Directive 90/313.
      
      24 –	In their written observations, the defendants refer to a ‘motivation interne’, that is to say the reasoning which is inherent in a decision even if no (formal) notification of reasons is given to third
         parties.
      
      25 –	If a request is deemed by law to have been refused, it will of course be the applicant who asks for the reasons for the
         refusal and, depending on the circumstances, seeks legal protection. However, in the case of a positive decision, that is
         to say where a request is deemed to have been authorised, it will be third parties who ask for the reasons for the decision,
         in order in some cases to be able to protect their interests.
      
      26 –	On the fundamental right to effective legal protection, see the references in footnote 11.
      
      27 –	Article 4 of Directive 90/313 refers to a person’s request for information which has been refused or inadequately answered.
      
      28 –	Article 4 of Directive 90/313 refers to a person’s request for information which ‘has been … ignored’.
      
      29 –	Such a remedy exists, for example, in German law: see the third version of Paragraph 42(1) of the Verwaltungsgerichtsordnung
         (German Code of Administrative Procedure) of 21 January 1960 (BGBl. I 1960 p. 70), as revised and published on 19 March 1991
         (BGBl. I 1991 p. 686), as most recently amended by the Law of 24 August 2004 (BGBl. I 2004 p. 2198).
      
      30 –	This was the solution chosen by the legislature of the Région de Bruxelles-Capitale in that version of the second sentence
         of Article 14 of the Regional Order which is applicable to the main proceedings. The same is true of the French legislation
         contested by the Commission in Case C-233/00 (see judgment in Commission v France, cited in footnote 8, in particular paragraphs 13 to 15).
      
      31 –	On procedural autonomy, see the judgment in Case C-201/02 Wells [2004] ECR I-0000, paragraph 67.
      
      32 –	See points 34 to 38 of this Opinion.
      
      33 –	See the judgments in Case C-231/96 Edis [1998] ECR I-4951, paragraph 34, Case C-276/01 Steffensen [2003] ECR I-3735, paragraph 60, and Case C-30/02 Recheio– Cash & Carry [2004] ECR I-0000, paragraph 17; as regards administrative procedure, see by analogy the judgment in Wells (cited in footnote 31, paragraph 67).
      
      34 –	In this regard, see the judgments in Edis (paragraph 35) and Recheio – Cash & Carry (paragraph 18), cited in footnote 33.
      
      35 –	This is the underlying meaning of the second indent of Article 91(3) of the Staff Regulations of officials of the European
         Communities, which states that the period for filing an appeal is to begin ‘on the date of expiry of the period prescribed
         for the reply’.
      
      36 –	Article 90(2) in conjunction with the second indent of Article 91(3) of the Staff Regulations of officials of the European
         Communities.