Land Baden-Württemberg v D.R.
Date: 2021-01-20
The ground for refusal laid down for ‘internal communications’  should, moreover, be compared with the ground for refusal laid down in Article 4(2)(a) of Directive 2003/4 which is intended to protect the confidentiality of the proceedings of public authorities. The latter ground also applies after the completion of decision-making processes, as follows from the judgment of the Court of 14 February 2012, Flachglas Torgau (C‑204/09, EU:C:2012:71, paragraph 57). A broad interpretation of the ground for refusal laid down for ‘internal communications’  therefore could well render the ground for refusal relating  to the confidentiality of proceedings meaningless.
First of all, it should be noted that, in adopting Directive 2003/4, the EU legislature intended to ensure the compatibility of EU law with the Aarhus Convention by providing for a general scheme to ensure that any applicant within the meaning of Article 2(5) of that directive has a right of access to environmental information held by or on behalf of the public authorities, without having to state an interest (see, to that effect, judgment of  14 February 2012, Flachglas Torgau, C‑204/09, EU:C:2012:71, paragraph 31).
It should 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 that that directive lays down, which presupposes inter alia that the information is ‘environmental information’ within the meaning of Article 2(1) of the directive, a matter which is for the referring court to determine in the main proceedings (see, to that effect, judgment of  14 February 2012, Flachglas Torgau, C‑204/09, EU:C:2012:71, paragraph 32).
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 to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public (judgment of  14 February 2012, Flachglas Torgau, C‑204/09, EU:C:2012:71, paragraph 39).
As is apparent from the scheme of Directive 2003/4 and, in particular, from the second subparagraph of Article 4(2) and recital 16, the right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in a few specific and clearly defined cases. The exceptions to the right of access should, consequently, be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal  of disclosure  (judgment of  28 July 2011, Office of Communications, C‑71/10, EU:C:2011:525, paragraph 22).
Furthermore, according to 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  14 February 2012, Flachglas Torgau, C‑204/09, EU:C:2012:71, paragraph 37).
That regulation applies to any request for access to  environmental information. Under Article 4(3) thereof, the EU institutions are able to refuse access to documents for internal use or  containing opinions for internal use.  That provision is thus intended to ensure that those institutions are able to enjoy a space for deliberation in order to be able to decide as to the policy choices to be made and the potential proposals to be submitted (see, to that effect, judgment of  4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraphs 99  and 109).
Nor can the  scope of the term ‘internal communications’, as referred to in paragraphs 20, 49 and 50 of the present judgment,  be limited by the taking into account  of the Aarhus Convention and the Aarhus Convention Implementation Guide. First, as the Advocate General has  observed in  point 27 of his Opinion,  Article 4(3)(c) of the Aarhus  Convention does not itself restrict the scope of ‘internal communications’ according to their content or importance. Second, in its  judgment of  16 February 2012, Solvay and Others (C‑182/10, EU:C:2012:82, paragraph 27), the Court held that, while  the Aarhus Convention Implementation Guide may be regarded as an explanatory document, capable of being taken into consideration if appropriate among other relevant material for the purpose of interpreting the Aarhus Convention, the observations in the guide have no binding force and do not have the normative effect of the provisions of the convention.
It is clear from the Court’s case-law that the interests must be weighed on the basis of an actual and specific examination of each situation brought before the competent authorities in connection with a request for access to environmental information made on the basis of Directive 2003/4, but the national legislature is not precluded from determining, by a general provision, criteria to facilitate that comparative assessment of the interests involved (see, to that effect, judgments of 16 December 2010, Stichting Natuur en Milieu and Others, C‑266/09, EU:C:2010:779, paragraph 58, and of 28 July 2011, Office of Communications, C‑71/10, EU:C:2011:525, paragraph 29).
It is apparent from  recital 1  of Directive 2003/4 that the reasons which may support disclosure and which an authority must in any event take into account when weighing the interests involved include bringing about  ‘a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and … a better environment (see, to that effect, judgment of  28 July 2011, Office of Communications, C‑71/10, EU:C:2011:525, paragraphs 25  and 26).
In addition, public authorities to which a request for access to  environmental information contained in an internal communication has been made must take into account the time that has passed since that communication and the information that it contains were drawn up. The exception referred to in  Article 4(1)(e) of Directive 2003/4 to the right of access to  environmental information  can apply only for the period during which protection is justified in the light of the content of such a communication (see, by analogy, judgment of  26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 56).
In particular, if, in the light of the objective of creating, for public authorities, a protected space in order to engage in reflection and to pursue internal discussions, information contained in an internal communication could properly not be disclosed on the date of the request for access, a public authority may, on the other hand, be led to take the view that, on account of its age, the information has become historical  and that it is accordingly no longer sensitive,  where  some time  has passed since it was drawn up (see, by analogy, judgment of  19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 54).
As the Advocate General has observed in  point 34  of his Opinion, that obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of  Directive 2003/4.  On the contrary, a public authority which adopts a decision refusing access to environmental information  must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not  purely hypothetical  (see, by analogy, judgment of  21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 76).