Flachglas Torgau GmbH v Bundesrepublik Deutschland.
Date: 2012-02-14
30. It should be recalled as a preliminary point that, by becoming a party to the Aarhus Convention, the European Union undertook to ensure, within the scope of European Union law, a general principle of access to environmental information held by the public authorities (see, to that effect, Case C‑524/09 Ville de Lyon  [2010] ECR I‑14115, paragraph 35).
31. In adopting Directive 2003/4, the European Union intended to ensure the compatibility of European Union 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 (see, to that effect, Ville de Lyon , paragraph 36).
32. It should also be noted that the right of access guaranteed by Directive 2003/4 only applies to the extent that the information requested satisfies the requirements for public access laid down by that directive, which requires inter alia that the information is ‘environmental information’ within the meaning of Article 2(1) of the directive, which is for the referring court to determine in the main proceedings.
Question 1(a) and (b)
34. It is apparent from the order for reference and from the written and oral submissions made to the Court that this question refers only to the legislative process stricto sensu  and not to that leading to the adoption of a provision of a lower rank than a law.
37. According to settled case‑law, the need for the uniform application of European Union law and the principle of equality require that the terms of a provision of European Union 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 (see, in particular, Case C‑236/01 Monsanto Agricoltura Italia and Others  [2003] ECR I‑8105, paragraph 72).
38. Moreover, the first sentence of the second subparagraph of Article 2(2) of Directive 2003/4, which permits Member States to derogate from the general rules laid down by that directive, may not be interpreted in such a way as to extend its effects beyond what is necessary to safeguard the interests which it seeks to secure, and the scope of the derogations which it lays down must be determined in the light of the aims pursued by the directive (see, by analogy, Case C‑321/96 Mecklenburg  [1998] ECR I‑3809, paragraph 25).
39. As regards the aims pursued by Directive 2003/4, Article 1 states in particular that it seeks to guarantee the right of access to environmental information held by public authorities and that, as a matter of course, environmental information is progressively made available and disseminated to the public.
40. It is apparent from both the Aarhus Convention itself and Directive 2003/4, the purpose of which is to implement the Convention in European Union law, that in referring to ‘public authorities’ the authors intended to refer to administrative authorities, since within States it is those authorities which are usually required to hold environmental information in the exercise of their functions.
43. The purpose of the first sentence of the second subparagraph of Article 2(2) of Directive 2003/4 is to allow Member States to lay down appropriate rules to ensure that the process for the adoption of legislation runs smoothly, taking into account the fact that, in the various Member States, the provision of information to citizens is, usually, adequately ensured in the legislative process.
44. In that regard, it may also be noted that the European Union legislature takes into account the specific nature of the legislative and judicial organs of the Member States. Thus, in the different context of the rules on the assessment of the effects of certain public and private projects on the environment, Council Directive 85/337/EEC of 27 June 1985 (OJ 1985 L 175, p. 40) excludes from the duty to carry out an assessment projects the details of which are adopted by a specific legislative act where the objectives of the directive, including that of supplying information, are achieved through the legislative process (see, in particular, to that effect, Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09 Boxus and Others [2011] ECR I‑9711, paragraph 36).
45. It is true that, as the referring court noted, the second sentence of the second subparagraph of Article 2(2) of Directive 2003/4 provides that if their constitutional provisions at the date of adoption of that directive make no provision for a review procedure within the meaning of Article 6 of that directive, Member States may exclude those bodies or institutions from that definition.
46. However, that provision was intended to deal with the specific situation of certain national authorities, and in particular authorities acting in an administrative capacity, whose decisions, at the date of adoption of Directive 2003/4, could not, according to the national law in force in certain Member States, be subject to review in accordance with the requirements of that directive.
47. That interpretation is supported by the Declaration by the European Community concerning certain specific provisions under Directive 2003/4.
48. Therefore, that provision has neither the aim nor the effect of limiting the option given to the Member States to exclude bodies and institutions acting in a legislative capacity from the scope of the directive, an option which is, moreover, provided for without restriction by the Aarhus Convention itself.
49. Those considerations point therefore to a functional interpretation of the phrase ‘bodies or institutions acting in a … legislative capacity’, according to which ministries which, pursuant to national law, are responsible for tabling draft laws, presenting them to Parliament and participating in the legislative process, in particular by formulating opinions, can be considered to fall within that definition, within the meaning of and for the application of Directive 2003/4.
50. That functional approach is all the more justified because the legislative process is likely to differ significantly between Member States and it is therefore necessary to adopt an interpretation which ensures a uniform application of Directive 2003/4 in those Member States.
51. In the light of the foregoing, the answer to Question 1(a) and (b) is therefore that the first sentence of the second subparagraph of Article 2(2) of Directive 2003/4 must be interpreted as meaning that the option given to Member States by that provision of not regarding ‘bodies or institutions acting in a … legislative capacity’ as public authorities may be applied to ministries to the extent that they participate in the legislative process, in particular by tabling draft laws or giving opinions, and that option is not subject to the conditions set out in the second sentence of the second subparagraph of Article 2(2) of that directive.
Question 1(c)
54. This question must be answered in the light of the objectives of the provision in question which, as stated in paragraph 43 above, is justified by the need to allow Member States to ensure the smooth running of the legislative process as provided for by national constitutional rules.
55. While making environmental information available during the course of the legislative process, under the conditions set out in Article 3 of Directive 2003/4, may impede the smooth running of that process, that is in principle no longer the case once that process has come to an end. Furthermore, the documents relating to that process, and, in particular, parliamentary reports are, generally, available to the public.
57. That is all the more the case because, as the Advocate General noted in points 77 and 78 of her Opinion, that restriction on the possibility of derogation provided for in the first sentence of the second subparagraph of Article 2(2) of Directive 2003/4 to only the duration of the legislative process applies without prejudice to the discretion of the institution or body having participated in that process to refuse to provide environmental information on other grounds, and in particular to make use of, where relevant, one of the exceptions provided f or in Article 4 of that directive.
58. In the light of the foregoing, the answer to question 1(c) is that the first sentence of the second subparagraph of Article 2(2) of Directive 2003/4 must be interpreted as meaning that the option given to Member States by that provision of not regarding bodies or institutions acting in a legislative capacity as public authorities can no longer be exercised where the legislative process in question has ended.
Question 2(a) and (b)
61. However, while it is true that transposing a directive into national law does not require the provisions of the directive to be formally enacted in an express and specific legal provision, since the general legal context may be sufficient for its implementation, depending on its content (see, in particular, Case 29/84 Commission  v Germany  [1985] ECR 1661, paragraphs 22 and 23; Case C‑217/97 Commission  v Germany  [1999] ECR I‑5087, paragraphs 31 and 32; and Case C‑233/00 Commission  v France  [2003] ECR I‑6625, paragraph 76), it should be noted that by specifying in indent (a) of the first subparagraph of Article 4(2) of Directive 2003/4 that the protection of the confidentiality of public proceedings must be ‘provided for by law’, a condition which corresponds to the requirement laid down in Article 4(4) of the Aarhus Convention that the confidentiality of proceedings must be ‘provided for under national law’, the European Union legislature clearly wanted an express provision to exist in national law with a precisely defined scope, and not merely a general legal context.
62. However, that specification cannot be interpreted as requiring all the conditions for application of that ground for refusing access to environmental information to be determined in detail since, by their very nature, decisions taken in that domain are heavily dependant on the actual context in which they are adopted and necessitate an assessment of the nature of the documents in question and the stage of the administrative procedure at which the request for information is made (see, by analogy, Commission  v France , paragraphs 81 and 82).
64. Lastly and in any event, the requirement that the confidentiality of the proceedings of public authorities must be provided for by law applies without prejudice to the other obligations imposed by Article 4 of Directive 2003/4, in particular the obligation of the public authority concerned to balance the interests involved in each particular case (see, in that regard, Case C‑266/09 Stichting Natuur en Milieu and Others  [2010] ECR I‑13119, paragraph 58).