Access to environmental information in the Member States

A first directive on access to environmental information was adopted in 19 90.66 It was replaced in 2003 by Directive 2003/4/EC on public access to environmental information^ The aim was to expand the access granted under the previous directive, inter alia to make EU law consistent with the Aarhus Convention. The Directive, which is based on a previous article corresponding to the current Article 192(1) TFEU, has two objectives. One is to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise. The second, less precise objective is to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information. (Art 1.)

The Court of Justice has made clear that in adhering to the Aarhus Convention, the EU undertook to ensure, within the scope of EU law, a general principle of access to environmental information held by the public authorities and that when interpreting Directive 2003/4, account is to be taken of the wording and aim of the Convention.68

‘Environmental information’ is given a wide definition. It covers any information in written, visual, aural, electronic, or any other material form on, inter alia, the state of the elements of the environment and the interaction among these elements; factors, such as substances, energy, noise, radiation, or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment; and measures, including administrative measures, such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the mentioned elements and factors, as well as those designed to protect elements of the environment. It also covers reports on the implementation of environmental legislation and economic analyses and assumptions used within the framework of the measures and activities referred to above. (Art 2.) The Court of Justice has found it to include information submitted within the framework of a national procedure for the authorisation or the extension of the authorisation of a plant protection product.[1]

The Member States’ public authorities[2] [3] shall be required, in accordance with the provisions of the Directive, to make available environmental information held by or for them. It shall be made available to any applicant at his request and without his having to state an interest. The directive lays down timeframes within which requested information must be made available and specifies in which form an applicant has a right to access the information. Public authorities shall make all reasonable efforts to maintain environmental information held by or for them in forms or formats that are readily reproducible and accessible by electronic means. Such authorities shall also inform the public adequately of the rights they enjoy as a result of the Directive and provide information, guidance, and advice that enable members of the public to exercise these rights. (Art 3.)

The right to access environmental information is not without exceptions. Member States may provide for a request for such information to be refused in a number of listed situations. This applies, inter alia, if the request is manifestly unreasonable; if the request concerns material in the course of completion or unfinished documents or data; or if it concerns internal communications, taking into account the public interest served by disclosure. (Art 4.)

Member States may furthermore provide for a request to be refused if disclosure of the information would adversely affect any of a number of listed interests. Among these are the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law/1 international relations, public security, or national defence; the course of justice, the ability of any person to receive a fair trial, or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature; and the confidentiality of commercial or industrial information under certain conditions. Access may also be refused if the protection of the environment to which the information relates, such as the location of rare species, would be adversely affected. When weighing the public interests served by disclosure against the interests served by refusal to disclose, a number of the grounds for refusal may, according to the Court of Justice, be taken into account cumulatively.^

The grounds for refusal are to be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal.73 Several of the grounds for refusal do not apply where the request relates to information on emissions into the environment/4 (Art 4.)

A refusal to make available all or part of the information requested shall be notified to the applicant within specified time limits. The notification must state the reasons for the refusal and include information on the review procedure. (Art 4.)

Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amounTh (Art 5).

Any applicant who considers that his request for information has been ignored, wrongfully refused, inadequately answered, or otherwise not dealt with in accordance with the pertinent provisions of the directive must have access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered. Any such procedure shall be expeditious and either free of charge or inexpensive. An applicant shall also have access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final/6 (Art 6.)

The directive also contains an obligation to organise environmental information with a view to its active and systematic dissemination to the public. Member States shall ensure that environmental information progressively becomes available in electronic databases which are easily accessible to the public. National and, where appropriate, regional or local reports on the state of the environment shall be published at regular intervals not exceeding four years. Such reports shall include information on the quality of, and pressures on, the environment. Member States must, so far as is within their power, ensure that any information that is compiled by them or on their behalf is up to date, accurate, and comparable. (Arts 7 and 8.)

It should also be pointed out in this context that rules on access to environmental information can be found in several other directives as well, including Directive 2001/18/EC on the deliberate release of GMOs77 and Regulation (EC) No 1907/ 2006 (REACH)/8

  • 72 CaseC-71/10 Office of Communications ECLI:EU:C:2011:525, para 32.
  • 73 That balancing of the interests involved must be carried out in every particular case does not, however, prevent the use of general provisions to determine criteria to facilitate the comparative assessment of the interests involved. Case C-266/09 StichtingNatuur (n 69), paras 56—58.
  • 74 On this ‘emissions rule’, see Oliver, ‘Access to Information and to Justice..(n 62).
  • 75 On what may be included in the charge see Case C-71/14 East Sussex County Council ECLI:EU:C:2015:656.
  • 76 On the right to administrative and judicial review see ibid, paras 58—59 and the case law cited there.
  • 77

[2001] OJ L 106/1.


[2006] OJ L 396/1.

  • [1] Case C-266/09 StichtingNatuur en Milieu and Others ECLI:EU:C:2010:779, para 43.
  • [2] On the meaning of ‘public authorities’ see Art 2(2); Case C-524/09 Ville de Lyon (n 68); CaseC-515/11 Deutsche Umwelthilfe ECLI:EU:C:2013:523; and Case C-279/12 Fish Legal (n 68).
  • [3] On the requirement that confidentiality must be provided for by law see C-204/09 FlachglasTorgau ECLI:EU:C:2012:71, para 65.
< Prev   CONTENTS   Source   Next >