Friends of the Irish Environment Ltd v Commissioner for Environmental Information.
Date: 2021-04-15
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As a preliminary point, it must be recalled that, by becoming a party to the Aarhus Convention, the European Union undertook to ensure, within the scope of EU law, a general principle of access to environmental information held by public authorities (judgment of 14 February 2012, Flachglas Torgau, C‑204/09, EU:C:2012:71, paragraph 30 and the case-law cited).
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By adopting Directive 2003/4, the EU legislature intended to ensure the compatibility of EU law with that Convention in view of its conclusion by the Community by providing for a general scheme to ensure that any natural or legal person in a Member State has a right of access to environmental information held by or on behalf of the public authorities, without that person having to show an interest (judgment of 14 February 2012, Flachglas Torgau, C‑204/09, EU:C:2012:71, paragraph 31 and the case-law cited).
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It must also be pointed out that the right of access guaranteed by Directive 2003/4 applies only to the extent that the information requested satisfies the requirements for public access laid down by that directive, which presupposes, inter alia, that the information is ‘environmental information’ within the meaning of Article 2, point 1, of the directive, a matter which is for the referring court to determine as regards the main proceedings (judgment of 14 February 2012, Flachglas Torgau, C‑204/09, EU:C:2012:71, paragraph 32).
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Furthermore, it must be borne in mind that, in accordance with settled case-law, the need for the uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of that provision and the purpose of the legislation in question (judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C‑619/19, EU:C:2021:35, paragraph 34).
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Finally, the second sentence of the second subparagraph of Article 2, point 2, of Directive 2003/4 provides that Member States may exclude those bodies or institutions from the definition of ‘public authorities’ set out in the first subparagraph of Article 2, point 2, if, at the date of adoption of that directive, their constitutional provisions did not provide for a review procedure within the meaning of Article 6 of that directive. The second sentence of the second subparagraph of Article 2, point 2, of Directive 2003/4, which is intended to govern the specific case of certain national authorities whose decisions could not be reviewed in accordance with the requirements of that directive at the date of its adoption, has neither the purpose nor the effect of limiting the Member States’ power to exclude from the scope of that directive bodies or institutions acting in a legislative or judicial capacity, which is, moreover, provided for in the Aarhus Convention itself without restriction (see, to that effect, judgment of 14 February 2012, Flachglas Torgau, C‑204/09, EU:C:2012:71, paragraphs 45 to 48).
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It follows from Article 2, point 2, of Directive 2003/4, taken as a whole, that the option available to Member States to exclude from the notion of ‘public authority’ bodies or institutions acting in a legislative or judicial capacity, provided for in the first sentence of the second subparagraph of Article 2, point 2, of that directive, which must be interpreted in a functional manner (see, by analogy, judgment of 14 February 2012, Flachglas Torgau, C‑204/09, EU:C:2012:71, paragraph 49), can affect only bodies or institutions which correspond to the institutional definition of the notion of ‘public authority’ set out in the first subparagraph of Article 2, point 2, of that directive. Satisfaction of that definition is an essential prerequisite for the exercise of the power to derogate provided for in the first sentence of the second subparagraph of Article 2, point 2, of Directive 2003/4.
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It is clear from both the Aarhus Convention itself and Directive 2003/4, the purpose of which is to implement that Convention in EU law, that, by referring to ‘public authorities’, their authors intended to designate not judicial authorities, in particular courts, but, as the Court has previously held, only administrative authorities since, within States, it is they which are normally required, in the exercise of their functions, to hold environmental information (see, to that effect, judgment of 14 February 2012, Flachglas Torgau, C‑204/09, EU:C:2012:71, paragraph 40).
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By adopting Directive 2003/4, the EU legislature took account of the diversity of the existing rules in the Member States concerning public access to information in court files, as attested to by the first sentence of the second subparagraph of Article 2, point 2, and Article 4(2)(c) of that directive, which give Member States, first, the option of excluding from the scope of the directive bodies and institutions corresponding to the definition of ‘public authority’ which, such as certain independent administrative authorities, may occasionally be called upon to act in the exercise of judicial powers without themselves having the nature of a court (see, by analogy, with regard to a minister required to exercise legislative powers without personally forming part of the legislative, judgment of 14 February 2012, Flachglas Torgau, C‑204/09, EU:C:2012:71, paragraph 49), and, second, the option of derogating from the principle of public access to environmental information held by ‘public authorities’ when the disclosure could adversely affect ‘the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature’.
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In that regard, the approach taken by the Court in the judgment of 14 February 2012, Flachglas Torgau (C‑204/09, EU:C:2012:71, paragraphs 54 to 58), cannot lead, by analogy, to a different conclusion since at issue in the case which gave rise to that judgment was access to information held by a ‘public authority’, within the meaning of the first subparagraph of Article 2, point 2, of Directive 2003/4. Nor is that the case of the approach taken by the Court in the judgments of 21 September 2010, Sweden and Others v Commission (C‑514/07 P, C‑528/07 P, C‑532/07 P, EU:C:2010:541), and of 18 July 2017, Commission v Breyer (C‑213/15 P, EU:C:2017:563), which concerned public access to documents relating to proceedings before the EU Courts, such access being governed by provisions of EU law, the content of which differs materially from those of which the interpretation is at issue in the present proceedings.