Commission of the European Communities v French Republic.
Date: 2003-06-26
30.  It should be pointed out in that regard that it is settled case-law that whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see,   inter alia  , Case C-152/00   Commission   v   France   [2002] ECR I-6973, paragraph 15).
31.  Moreover, the Court has repeatedly held that, under the system established by Article 226 EC, the Commission enjoys a discretionary power as to whether it will bring an action for failure to fulfil obligations and it is not for the Court to judge whether that discretion was wisely exercised (see,   inter alia  , Case C-236/99   Commission   v   Belgium   [2000] ECR I-5657, paragraph 28). It is therefore a matter for the Commission alone to decide whether it will continue such an action (see, to that effect, Case C-474/99   Commission   v   Spain   [2002] ECR I-5293, paragraph 25), all the more so since, even where the default has been remedied after the time-limit given in the reasoned opinion has expired, there is still an interest in pursuing the action in order to establish the basis of liability which a Member State may incur, as a result of its default, towards other Member States, the Community or private parties (see to that effect,   inter alia  , Case C-166/00   Commission   v   Greece   [2001] ECR I-9835, paragraph 9).
45.  That finding is supported by the interpretation already given to that provision by the Court in Case C-321/96   Mecklenburg   [1998] ECR I-3809, paragraphs 19 to 22. In particular, the Court thus held in paragraph 20 of that judgment that the Community legislature purposely avoided giving any definition of   "information relating to the environment"   which could lead to the exclusion of any of the activities engaged in by the public authorities.
55.  For the purpose of ruling on the merits of the second ground, it must first be pointed out that it is clear from the very wording of the first subparagraph of Article 3(1) of Directive 90/313 that information relating to the environment must be made available to any person at his request and without his having to prove an interest, and that this obligation lies with public authorities,   "save as provided in this article"  .
62.  The French Government's argument that no individual has ever lodged a complaint alleging incorrect application of the first subparagraph of Article 3(2) of Directive 90/313 must be rejected in the light of the Court's case-law, according to which failure to comply with an obligation imposed by a rule of Community law is itself sufficient to constitute the breach, and the fact that such a failure had no adverse effects is irrelevant (see Case C-392/96   Commission   v   Ireland   [1999] ECR I-5901, paragraphs 60 and 61, and Case C-333/99   Commission   v   France   [2001] ECR I-1025, paragraph 37). It also follows that the argument that there has been no known case in practice in which the directive was infringed cannot be accepted (see Case C-131/88   Commission   v   Germany   [1991] ECR I-825, paragraph 9).
66.  First, the Court has already held that the second subparagraph of Article 3(2) of Directive 90/313 requires the Member States to supply information from which it is possible to separate out information on items which may be covered by the requirements of confidentiality or privilege. It inferred that that provision imposes on Member States an obligation which is precise as regards the result to be obtained and directly affects the legal situation of individuals, who are thus entitled to obtain information under the conditions laid down in that provision (Case C-217/97   Commission   v   Germany   [1999] ECR I-5087, paragraph 33).
68.  In the absence of any express provision concerning the supply in part of information relating to the environment, the obligation to supply that information in part is not guaranteed in a manner sufficiently clear and precise to ensure legal certainty and to enable persons who may submit a request for information to know the full extent of their rights (see, to that effect,   Commission   v   Germany  , cited above, paragraphs 34 and 35).
75.  In order to evaluate the merits of the Commission's fourth ground, it should be recalled that, according to settled case-law, each of the Member States to which a directive is addressed is obliged to adopt, within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues (see,   inter alia  , Case C-478/99   Commission   v   Sweden   [2002] ECR I-4147, paragraph 15).
76.  While it is therefore essential that the legal situation resulting from national implementing measures is sufficiently precise and clear to enable the individuals concerned to know the extent of their rights and obligations, it is none the less the case that, according to the very words of the third paragraph of Article 189 of the Treaty, Member States may choose the form and methods for implementing directives which best ensure the result to be achieved by the directives, and that provision shows that the transposition of a directive into national law does not necessarily require legislative action in each Member State. The Court has thus repeatedly held that it is not always necessary formally to enact the requirements of a directive in a specific express legal provision, since the general legal context may be sufficient for implementation of a directive, depending on its content.  In particular, the existence of general principles of constitutional or administrative law may render superfluous transposition by specific legislative or regulatory measures provided, however, that those principles actually ensure the full application of the directive by the national authorities and that, where the relevant provision of the directive seeks to create rights for individuals, the legal situation arising from those principles is sufficiently precise and clear and that the persons concerned are put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts (see,   inter alia,   Case 29/84   Commission   v   Germany   [1985] ECR 1661, paragraphs 22 and 23, and Case C-217/97   Commission   v   Germany  , cited above, paragraphs 31 and 32).
77.  Consequently, it is important in each individual case to determine the nature of the provision, laid down in a directive, to which the action for infringement relates, in order to gauge the extent of the obligation to transpose imposed on the Member States.
79.  Moreover, in paragraph 33 of Case C-217/97   Commission   v   Germany  , cited above, the Court already made a similar distinction between the second subparagraph and the first subparagraph of Article 3(2) of Directive 90/313; the wording of the second provision is fully comparable to that of Article 3(3), which is at issue in connection with the present ground.
81.  In particular, as regards a provision such as Article 3(3) of Directive 90/313, the requirement for specific transposition would be of very little practical use since that provision is drafted in very general terms and sets out rules which are in the nature of general principles common to the legal systems of the Member States.
82.  Compliance with a provision of a directive which exhibits those characteristics must thus be essentially ensured when it is applied in practice to a specific situation, regardless of whether it is transposed into national law in precisely the same words.
84.  The Court has thus held that the scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts (see, in particular, Case C-300/95   Commission   v   United Kingdom   [1997] ECR I-2649, paragraph 37). Similarly, it is appropriate to take into account the interpretation given by those courts to the general principles of law upheld in the national legal system.
87.  Since the Commission is required to prove the alleged infringement, by providing the Court with the information necessary for it to determine whether the infringement is made out, and may not rely on any presumption (see,   inter alia,  Commission   v   United Kingdom  , cited above, paragraph 31), the Commission's fourth complaint must be rejected.
The existence of implied refusals for which reasons are not given
Arguments of the parties
109.  Finally, paragraph 22 of   Michel   v   Parliament  , cited above, which is relied on by the Commission, cannot be applied by analogy to the present case, since that judgment was given in a different context from that of the present action.
110.  On the other hand, it is important to point out that, in paragraph 15 of Case 222/86   Heylens and Others   [1987] ECR 4097, the Court expressly acknowledged that the authorities could notify the reasons on which a refusal is based in a subsequent communication.
111.  In the light of the foregoing, it must be held that, in contrast to what the Commission claims, the fiction by which the failure of the authorities to reply is deemed to constitute an implied refusal cannot, as such, be considered incompatible with the requirements of Directive 90/313 on the sole ground that a tacit refusal by definition does not include any reasons.  Moreover, as Community law currently stands, the wording of that directive does not provide sufficient justification for the alleged necessity that the refusal be accompanied by the reasons for it.
114.  Secondly, the purpose of Directive 90/313 is to ensure freedom of access to information on the environment, without the applicant having to prove an interest to justify his request, and to avoid any obstacle to that freedom (see, to that effect, Case C-217/97   Commission   v   Germany  , cited above, paragraphs 47 and 58).
118.  On the other hand, in the case of an implied refusal of a request for information relating to 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.