Analysis: “The restrictive interpretation of the exceptions to the right of access to environmental information under Directive 2003/4 and its limits (C-619/19)” by Theodoros G. Iliopoulos
Directive 2003/4 aligns EU law with the first pillar of the Aarhus Conventions on ‘Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters’, which is on the public’s access to environmental information. Accordingly, its Article 3(1) guarantees the right of access to environmental information held by or for public authorities to any applicant, at request and without any obligation for an interest to be stated. The wide extent of the right enshrined is complemented by the broad interpretation of the foregoing concepts. In the same vein, the exceptions that may delimit its coverage, exhaustively listed in Article 4 of Directive 2003/4, are interpreted restrictively.
As per Article 4(1)(e) of Directive 2003/4 and Article 4(3)(c) of the Aarhus Convention, a request may be refused if it concerns internal communications, taking into account the public interest served by disclosure. In 2010 the State Ministry of Baden-Württemberg applied this exception and refused access to documents relating to tree felling in the context of the ‘Stuttgart 21’ transport and urban development project. The requested documents were an item of information about a police operation transmitted to the Ministry and notes about a conciliation procedure. The legality of the refusal was doubted. It was argued that the rule of restrictive interpretation entails that the concept ‘communication’ only covers items that have a special significance and that convey opinions, not facts, unlike what the items at issue arguably did. It was also claimed that information that will be disclosed in the future cannot be considered ‘internal’, and that the application of the exception shall be limited in time and not exceed the completion of the decision-making process.
The national court referred to the CJEU for a preliminary ruling, which was delivered yesterday on 20 January 2021 (C-619/19).
After distinguishing the concept of ‘communication’ from similar concepts on the basis of a grammatical and systematic interpretation (paragraphs 37-40), the CJEU found no indication in the law that the significance or the non-factual nature of an item is crucial for the definition (paragraphs 50-51). Next, it held that a communication is ‘internal’ if it has not left the internal sphere of a public authority after being received by it and by the date of the request for access, regardless of a possible publication of it in the future (paragraphs 47-49). This was established after a teleological interpretation, which highlighted the need to ensure that authorities have a protected space for reflection and deliberation in private – same ratio with the similar exception in Regulation 1049/2001 (paragraphs 44-46).
Subsequently, the CJEU noted that neither Directive 2003/4 nor the Aarhus Convention set a time limitation or link the applicability of the exception at issue with the progress of an administrative process (paragraphs 54-57). However, the application of the exception is subject to an ad hoc and in concreto weighing of the interests involved, which must be tightly controlled. The passage of time may impact on it, because after a certain period an internal communication may, wholly or partially, not retain its sensitive character that would justify non-disclosure of its content. In any case, the authorities shall provide the specific reasons for applying the exception and shall not circumvent the right of access to environmental information by invoking purely hypothetical risks or by requiring applicants to prove a specific interest (paragraphs 58-69). Compliance with the above obligations is subject to administrative and judicial review, as per Article 6 of the directive.
In conclusion, on the basis of a grammatical, teleological and systematic interpretation, the judgment in Land Baden-Württemberg (C-619/19) eloquently analysed certain concepts of Directive 2003/4/EC and attempted a delimitation of the restrictive interpretation of the exceptions. A restrictive interpretation should not disregard the ratio of those provisions and cannot justify a contra legem result. On the other hand, an exception shall not be applied in a manner that will end up militating against the right of access to environmental information. The disclosure of information remains the rule and a refusal shall only occur after a tight weighing of the interests involved.
Theodoros G. Iliopoulos is a Doctoral Researcher in energy and environmental law at Hasselt University and a lawyer (Athens Bar Association).