Opinion of Advocate General Kokott delivered on 17 May 2023.

• Jurisdiction: European Union
• Date: 17 May 2023
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 17 May 2023 (1)

Case C‑84/22

Right to Know CLG

v

An Taoiseach

(Request for a preliminary ruling from the High Court (Ireland))

(Request for a preliminary ruling – Public access to environmental information – Exceptions – Internal communications – Proceedings of public authorities – Records of government cabinet discussions – Categorisation of records under an exception by an earlier judicial decision – Disregarding of the force of res judicata)

I. Introduction

1. In order to implement the Aarhus Convention, (2) the Environmental Information Directive (3) establishes a right of access to environmental information. At the same time, both the Convention and the directive provide for exceptions to that right which permit, in particular, the protection of internal communications and proceedings of public authorities.

2. The present request for a preliminary ruling seeks to clarify whether records of government cabinet discussions come either under the exception for internal communications or under the exception for proceedings of public authorities. It must also be considered whether this question may be re-examined at all if it has already been decided in an earlier final judgment on the same request for access.

II. Legal framework

A. Aarhus Convention

3. The right of access to environmental information is laid down in Article 4 of the Aarhus Convention.

4. Article 4(3)(c) of the Aarhus Convention contains an exception for internal communications:

‘A request for environmental information may be refused if:

…

(c) the request concerns material in the course of completion or concerns internal communications of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure.’

5. The confidentiality of the proceedings of public authorities may be protected under Article 4(4)(a) of the Aarhus Convention:

‘A request for environmental information may be refused if the disclosure would adversely affect:

(a) the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law;

…

The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.’

B. Environmental Information Directive

6. Article 3(1) of the Environmental Information Directive lays down the right of access to environmental information:

‘Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest.’

7. Article 4 of the Environmental Information Directive provides for various exceptions to that right.

8. The exception for internal communications appears in Article 4(1)(e) of the Environmental Information Directive:

‘Member States may provide for a request for environmental information to be refused if:

…

(e) the request concerns internal communications, taking into account the public interest served by disclosure.’

9. In addition, Article 4(2)(a) of the Environmental Information Directive contains an exception for the proceedings of public authorities:

‘Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect:

(a) the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law;

…

The grounds for refusal mentioned in paragraphs 1 and 2 shall 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. Member States may not, by virtue of paragraph 2(a), (d), (f), (g) and (h), provide for a request to be refused where the request relates to information on emissions into the environment.’

C. Irish law

10. Article 28.4.3 of the Irish Constitution provides for the confidentiality of discussions at meetings of the Irish Government. Exceptions are laid down only for inquiries by courts or similar bodies.

11. Ireland transposed the Environmental Information Directive by the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No 133/2007) (28 March 2007).

III. Facts and request for a preliminary ruling

12. On 8 March 2016, Right to Know CLG, a not-for-profit organisation governed by Irish law, made a request to the Irish Taoiseach (Prime Minister) for access to all documents which showed cabinet discussions on Ireland’s greenhouse gas emissions from 2002 to 2016. The Taoiseach (Prime Minister) refused that request in June 2016 following an internal review procedure. Right to Know thereupon brought proceedings before the High Court seeking a judicial review of that decision.

13. By judgment of 1 June 2018, Right to Know CLG v An Taoiseach ([2018] IEHC 372), the High Court remitted the decision to the Taoiseach (Prime Minister) for reconsideration. The High Court held inter alia, on the basis of a precedent discussed by the parties, (4) that meetings of the Irish Government were to be characterised as ‘internal communications’ of a public authority, with the result that the requirement to disclose records on emissions into the environment (third sentence of Article 4(2) of the Environmental Information Directive) did not apply. The Taoiseach (Prime Minister) had, however, failed to weigh the public interest served by disclosure and the interest in confidentiality (second sentence of Article 4(2)).

14. By order of 16 August 2018, the Taoiseach (Prime Minister) granted partial access to the requested documents. Right to Know thereupon made a fresh application to the High Court for judicial review of that second decision. The judge who had delivered the judgment of 1 June 2018 is no longer responsible. The new judge addresses the following questions to the Court:

‘(1) Are records of formal meetings of the executive branch of government of a Member State, at which members of the government are required to meet and act as a collective authority, to be characterised, for the purpose of a request for access to environmental information contained therein, as ‘internal communications’ or as ‘proceedings’ of a public authority within the meaning of those terms as set out, respectively, in Article 4(1)(e) and Article 4(2)(a) of the Environmental Information Directive?

(2) Does the principle of res judicata (as discussed in Köbler, Case C‑224/01, EU:C:2003:513 and subsequent case-law) extend beyond the operative or dispositive part of the earlier judgment, and include, in addition, findings of fact and law featuring in the earlier judgment? Put otherwise, is the principle of res judicata confined to cause of action estoppel, or does it extend to issue estoppel?

(3) In ongoing proceedings between parties regarding alleged non-compliance with the Environmental Information Directive concerning a specific request for environmental information, where an applicant/requester has succeeded in having a decision quashed with some grounds of challenge based on EU law upheld and others rejected, does EU law, and in particular, the principle of effectiveness preclude a national rule of res judicata based on issue estoppel that requires a national court, in fresh proceedings concerning a further decision on the same request, to exclude such an applicant/requester from challenging the said further decision on EU-law-based grounds that were previously rejected but not, in the circumstances, appealed?

(4) Is the answer to Question (3) above affected by the facts that: (i) no reference was made to the Court of Justice; and (ii) relevant case-law of the Court of Justice had not been brought to the national court’s attention by either of the parties?’

15. Right to Know CLG, Ireland and the European Commission submitted written observations. The Court decided not to hold a hearing pursuant to Article 76(2) of the Rules of Procedure because it considers that it has sufficient information to give a ruling.

IV. Legal assessment

16. In adopting the Environmental Information Directive, 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 has a right of access to environmental information held by or on behalf of the public authorities, without having to state an interest. (5)

17. It provided, in Article 4 of the Environmental Information Directive, that the Member States may establish exceptions to that right. In so far as such exceptions have in fact been transposed into national law, it is permissible for the public authorities to rely upon them in order to oppose requests for information that they receive. (6)

18. The request for a preliminary ruling concerns, first, the question whether the information at issue comes either under the exception for internal communications or under the exception for the protection of the confidentiality of the proceedings of public authorities (see A). Second, it asks whether and to what extent the applicability of those exceptions in the present case has already been definitively decided by the final judgment of 1 June 2018 (see B).

A. Interpretation of the exceptions at issue (first question)

19. Under the third sentence of Article 4(2) of the Environmental Information Directive, certain exceptions to the right of access to environmental information do not justify a refusal of access to information on emissions into the environment. One of those exceptions is laid down in Article 4(2)(a) and permits the protection...