Brussels, 15/02/2012 (Agence Europe) - Public access to environmental information may be refused by a ministry if the information relates to a legislative process in which the ministry is participating, for example, through bringing forward Bills or opinions. However, that exception no longer applies if the legislative process has ended, the Court of Justice of the EU ruled in Case C-204/09 on Tuesday 14 February.
The Court was responding to the Bundesverwaltungsgericht (German Federal Administrative Court) which had asked it to interpret Directive 2003/4/Econ public access to environmental information and to clarify, in that context, what restrictions member states may put on the public's right of access to this information. In main proceedings, the German Ministry for the Environment refused a German company taking part in the greenhouse gas emissions trading scheme access to information (internal memoranda and comments and correspondence) relating to the legislative process in which the law on the national allocation plan for greenhouse gas emission licences was adopted and the implementation of that law. To justify its refusal, the ministry said it considered, firstly, that it was exempt from the duty to provide information relating to the legislative process because it participated in that process (an exemption for which there is proviso in the directive), and, secondly, that the information relating to the implementation of the 2007 law was covered by the confidentiality of the proceedings of public authorities.
The Court ruled that the refusal is legal. Member states may provide for ministries to refuse public access to environmental information to the extent that they participate in the legislative process, in particular by tabling draft laws or giving opinions. In such cases, member states may make use of the option to exclude that right of access in respect of “bodies and institutions acting in a … legislative capacity”. The purpose of that option 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. However, once the legislative process has come to an end (by the promulgation of the law), the ministry which participated in that process can no longer rely on that exception because the smooth running of that process can no longer, in principle, be impeded by making environmental information available.
Nevertheless, member states may provide for a request for environmental information to be refused if disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, in so far as the confidentiality is “provided for by law” and that national law has clearly established the scope of the concept of “proceedings”. This is to prevent public authorities being able to determine unilaterally the circumstances in which confidentiality can be invoked. In addition, the Court recalls that a public authority wishing to rely on the confidentiality of its proceedings in order to refuse a request for access to environmental information must balance the interests involved in each particular case. (FG/transl.rt)