access to information in environmental...

Access to Information

in Environmental Matters

Implementation & Application of Aarhus

Convention & Directive 2003/4/EC at

National Level

Áine Ryall

School of Law, University College Cork, IRELAND

Warsaw, 6 March 2015

Objectives & Outline Presentation

- Introduce Aarhus Convention and EU law

provisions governing the right of access to

environmental information at Member State

level

- Examine Directive 2003/4/EC on public access

to environmental information

- Analyse CJEU case law on Directive 2003/4/EC

Objectives & Outline Presentation

- Consider the role of the national judge in

environmental information disputes & the

enforcement of information rights

- Identify and explore current issues around

implementation and enforcement of Directive

2003/4/EC at national level via a Case Study

- Consider likely future developments

Why is public access to environmental

information important?

What role does information play in environmental

governance?

What are the justifications for the right of access

to environmental information?

- Aarhus Convention: Recitals 7, 8, 9, 10 and 17

- Directive 2003/4/EC: Recital 1

Legal Framework: Three Levels of

Legal Authority

- Aarhus Convention

- Directive 2003/4/EC

- National measures designed to transpose

Aarhus and EU law obligations

Complex Interactions between

Multiple Sources of Legal Authority

Aarhus

Convention

National

LawEU Law

Complex Interactions between

Multiple Enforcement Mechanisms

Aarhus

Convention

Compliance

Committee

Public authorities/

National Courts & Tribunals

EU Commission/

Court of Justice

(CJEU)

Aarhus Convention & Access to

Environmental Information

Recital 17 Public authorities hold environmental

info. in the public interest

Article 2 Key definitions

Article 4 Right of access to

environmental info.

Article 5 Collection & dissemination

of environmental info.

Aarhus Convention & Access to

Environmental Information

Article 9(1) Right of access to a review

procedure

Article 9(4) Sets down minimum standards for

review procedures – must provide

adequate & effective remedies,

including injunctive relief, and must be

fair, equitable, timely and not

prohibitively expensive

Article 9(5) Info. for public about review procedures

EU Law – Directive 2003/4/EC

Repealed & replaced Directive 90/313/EEC

Aims to implement Aarhus access to environmental

information obligations at Member State level

Deadline for transposition: 14 February 2005

Directive 2003/4/EC

Recital 16 The right to info → disclosure of info

should be the general rule

Article 1 Objectives

Article 2 Key definitions – “environmental

information” & “public authority”

Broad definitions – but grey areas

Directive 2003/4/EC

Article 3 Right of access to

environmental information

on request & without having to

state an interest

Guarantees a right of access to “environmental information”

held by, or for, “public authorities”, within specified

timeframes, subject to certain exceptions

Directive 2003/4/EC

Article 4 Exceptions to right of access

Article 4(1)

- Info. requested not held by, or for, public authority

- Request “manifestly unreasonable “or “formulated in

too general a manner”

- Material in course of completion/unfinished documents

or data (but NB no such exception in Aarhus Convention)

- Internal communications

Directive 2003/4/EC

Article 4(2)

Access may be refused if disclosure would “adversely affect”

certain specified interests e.g.:

- confidentiality of proceedings of public

authorities

- confidentiality of commercial or industrial

info.

- intellectual property rights

- the course of justice etc.

Directive 2003/4/EC

Exceptions must be interpreted in a restrictive way,

taking into account for the particular case the

public interest served by disclosure

Plus, in every particular case, a balancing exercise must be

carried out between:

- the public interest served by disclosure

v.

- the public interest served by refusing access

Directive 2003/4/EC

Very limited scope for Member States to refuse access where

the request relates to “information on emissions into the

environment”

Certain exceptions cannot be invoked to refuse access to

information on emissions into the environment

But no definition of “emissions” is provided in the directive

Directive 2003/4/EC

Article 5 Charges

Examination of info. requested in situ must be free of charge

Public authorities may charge for supplying info.

But:

Any such charge must not exceed “a reasonable amount” and

a schedule of charges etc. must be published & made

available to applicants

Directive 2003/4/EC: Access to Justice

Article 6(1)

Reconsideration of the matter by the public authority or

another public authority or administrative review by an

independent & impartial body established by law

This review must be expeditious and either free of charge or

“inexpensive”

Article 6(2)

Plus access to a review procedure before a court of law or

another independent & impartial body established by law

Directive 2003/4/EC

Article 7 (Proactive) Dissemination of

environmental info.

Article 8 Quality of environmental

info.

Article 9 Review of Directive by COM

Directive 2003/4/EC

Report on the experience gained in the application of

Directive 2003/4/EC COM (2012) 774, 17.12.12

A highly optimistic assessment given obvious problems with

practical implementation at Member State level

CJEU Jurisprudence on Directive

2003/4/EC: General Points

Recital 16:

Confirms that the right to information means that disclosure

of information “should be the general rule”

→ a strong presumption in favour of disclosure

Public authorities are only permitted to refuse a request for

access “in specific and clearly defined cases”

CJEU Jurisprudence on Directive

2003/4/EC: General Points

Directive 2003/4/EC aims to give effect to Aarhus Convention

→ must be interpreted in light of the wording and aim of the

Convention: Case C-279/12, Fish Legal 19 December 2013

Status and role of Aarhus Convention: An Implementation Guide (2nd ed) 2014 → No binding force, but “an explanatory

document” that can be taken into consideration for the

purpose of interpreting the Convention:

Case C-279/12, Fish Legal 19 December 2013

Key Points emerging from CJEU

Jurisprudence on Directive 2003/4/EC

Article 2(1) Definition of “environmental

information”

Case C-266/09, Stichting Natuur en Milieu 16 December 2010

CJEU’s reasoning in [37] – [43] confirms a wide definition

Studies of residues & reports on field trials in connection with

a procedure for extending the authorisation of a product

under Directive 91/414/EEC on the placing of plant

protection products on the market fell within the definition



Article 2(2) Definition of “public authority”

Member States may opt to exclude “bodies or institutions

when acting in a judicial or legislative capacity”

Case C-204/09, Flachglas Torgau 14 February 2012

- Adopted a functional approach to determine whether a

“public authority” is acting in a legislative capacity

- Option to exclude is no longer available once legislative

process has concluded



Case C-515/11, Deutsche Umwelthilfe 18 July 2013

A narrow interpretation of “legislative capacity” is to be

applied - i.e. preparation of a law or a norm of equivalent

rank to a law

Derogation may not be applied to Ministries when they

prepare and adopt normative regulations which are of a lower

rank than a law



Case C-279/12, Fish Legal 19 December 2013

Whether the “privatised” commercial water companies in this

case were “public authorities” for the purpose of Directive

2003/4/EC?

Article 2(2)(b): “any natural or legal person performing public

administrative functions under national law, including

specific duties, activities or services in relation to the

environment”



Were the “privatised” water companies performing public

administrative functions within meaning of Article 2(2)(b)?

Question to be asked here is:

Whether the entity in question is vested, under the national

law which is applicable to it, with special powers beyond

those which result from the normal rules applicable in

relations between persons governed by private law?



Article 2(2)(c) – reference to an entity that is “under the

control of” a body or person falling within Article 2(2)(a) or

2(2)(b)

An entity is “under the control of” a public authority if it

does not determine, in a genuinely autonomous manner, the

way in which it provides those services, since the public

authority is in a position to exert decisive influence on its

action in the environmental field



Article 4 Exceptions to right of access

Confidentiality of commercial & industrial info. &

confidentiality of proceedings of public authorities

Case C-266/09, Stichting Natuur en Milieu 16 December 2010


In every particular case, public authorities must weigh the

public interest served by disclosure against the interest

served by refusal



When weighing the public interests served by disclosure

against the interests served by refusal to disclose, can a

public authority take into account cumulatively a number of

the grounds for refusal listed in Article 4(2)?

OR

Must it weigh the interests served by refusal to disclose, one

at a time (i.e. exception by exception), against the public

interests served by disclosure?



Case C-71/10, Office of Communications v Information

Commissioner 28 July 2011

When undertaking the balancing exercise, a public authority

may evaluate the grounds for refusal to disclose set out in

Article 4(2) cumulatively

The public interest served by disclosure, and the interests

served by refusal to disclose, are two “overarching concepts”




The exception in respect of confidentiality of proceedings of

public authorities, where such confidentiality provided by law

CJEU ruled that national law must provide an express

measure to this effect which clearly defines “proceedings” in

this particular context



Case C-416/10, Križan 15 January 2013

Public participation rules in IPPC Directive (now Industrial

Emissions Directive) must be interpreted in light of Aarhus

Convention

The public must, in principle, have access to all info. relevant

to the IPPC authorisation procedure from the beginning of

that procedure



In the context of an authorisation procedure for a landfill site

under IPPC Directive, the public authority could not rely on

the commercial confidentiality exception in Directive

2003/4/EC to refuse to make the planning decision on the

location of the landfill site available to the public (!)

At [83] CJEU appears to suggest that “exceptionally” there

may be situations where a planning decision may contain

confidential commercial or industrial info.



An unlawful failure to make info. available to the public at

the initial stage of the procedure may be remedied at a later

stage

But only provided that all options and solutions remain open

and that the public can still effectively influence the

outcome

Principle of effectiveness of EU law

CJEU’s reasoning at [84] – [90]



Article 5 Charges

Pending reference for a preliminary ruling

Case C-71/14, East Sussex County Council

Reference to CJEU made on 10 February 2014 by First-tier

Tribunal (Information Rights) United Kingdom

Concerns scope of a public authority’s power to charge for

supply of info. under Article 5(2)

General Principles emerging from the

CJEU Jurisprudence

Directive 2003/4/EC falls to be interpreted in light of wording

and aims of the Aarhus Convention

Strong purposive approach to right to environmental info.

Broad interpretation of key definitions

Pragmatic approach to exceptions etc.

Keen to ensure environmental rights are effective in practice

Role of the National Judge

Determine disputes over a wide range of issues including:

- Is the info. at issue “environmental information”?

- Is the entity from whom info. is requested a “public

authority”?

- Is the public authority entitled to rely on any exceptions

to justify refusal to disclose?

- Is the public authority entitled to levy a charge in the

particular circumstances?

- If so, does the charge exceed “a reasonable amount”?


Recall general principles emerging from CJEU case law and

the Court’s strong purposive approach to the right to

environmental info.

Timely determination of environmental info. disputes vital in

practice and also mandatory under Aarhus Article 9(4)

Seek a preliminary ruling where necessary

“Champion” the right of access to environmental information

& be alert to the potential for State liability to arise


There may be problems with national measures aimed at

transposing Aarhus & Directive 2003/4/EC

Tools at the national judge’s disposal to address

implementation gaps:

- direct effect

- consistent interpretation

Principle of effective judicial protection

Future Directions?

Proactive dissemination of environmental information via electronic means → reduce/eliminate need for requests

Greater awareness of environmental rights/Aarhus →

more requests for access & demands on public authorities

Resources to support the rights conferred by the Aarhus Convention & EU law → requires political will & leadership

Training for public authorities → avoid disputes arising in the

first place

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