Flachglas Torgau GmbH v Bundesrepublik Deutschland.

• Jurisdiction: European Union
• Celex Number: 62009CJ0204
• ECLI: ECLI:EU:C:2012:71
• Date: 14 February 2012
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C‑204/09

JUDGMENT OF THE COURT (Grand Chamber)

14 February 2012 (*1 )

‛Reference for a preliminary ruling — Aarhus Convention — Directive 2003/4/EC — Access to environmental information — Bodies or institutions acting in a legislative capacity — Confidentiality of the proceedings of public authorities — Condition that the confidentiality must be provided for by law’

In Case C-204/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Bundesverwaltungsgericht (Germany), made by decision of 30 April 2009, received at the Court on 8 June 2009, in the proceedings

Flachglas Torgau GmbH

v

Federal Republic of Germany,

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano, J. N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot (Rapporteur), J. Malenovský and U. Lõhmus, Presidents of Chambers, A. Rosas, M. Ilešič, E. Levits, A. Ó Caoimh, L. Bay Larsen and M. Berger, Judges,

Advocate General: E. Sharpston,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 1 September 2010, after considering the observations submitted on behalf of:

— Flachglas Torgau GmbH, by S. Altenschmidt and M. Langner, Rechtsanwälte,

— the German Government, by M. Lumma and T. Henze, acting as Agents,

— the European Commission, by P. Oliver and B. Schima, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 22 June 2011,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 2 and 4 of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26).

2 The reference has been made in proceedings between Flachglas Torgau GmbH (‘Flachglas Torgau’) and the Federal Republic of Germany concerning the rejection by the latter of Flachglas Torgau’s request for access to information relating to the Law on the national allocation plan for greenhouse gas emission licences in the allocation period 2005-2007 (Gesetz über den nationalen Zuteilungsplan für Treibhausgas Emissionsberechtigungen in der Zuteilungsperiode 2005 bis 2007) (‘Zuteilungsgesetz 2007’).

Legal context

International law

3 The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was signed on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1) (‘the Aarhus Convention’).

4 Article 2(2) of the Aarhus Convention defines ‘public authority’ as follows: ‘“Public authority” means: (a) government at national, regional and other level; (b) natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; … This definition does not include bodies or institutions acting in a judicial or legislative capacity.’

5 Article 4(1) of the Convention provides that, subject to a number of reservations and conditions, each party is to ensure that public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation.

6 Article 4(4) of the Convention states: ‘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.’

7 Article 8 of the Convention, ‘Public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments’, provides: ‘Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment. …’

8 The Declaration by the European Community concerning certain specific provisions under Directive 2003/4, annexed to Decision 2005/370, states: ‘In relation to Article 9 of the Aarhus Convention, the European Community invites Parties to the Convention to take note of Article 2(2) and Article 6 of Directive [2003/4]. These provisions give Member States of the European Community the possibility, in exceptional cases and under strictly specified conditions, to exclude certain institutions and bodies from the rules on review procedures in relation to decisions on requests for information. Therefore the ratification by the European Community of the Aarhus Convention encompasses any reservation by a Member State of the European Community to the extent that such a reservation is compatible with Article 2(2) and Article 6 of Directive [2003/4].’

European Union law

9 Recitals 1, 5, 11 and 16 in the preamble to Directive 2003/4 state: ‘(1) Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment. … (5) … Provisions of Community law must be consistent with [the Aarhus Convention] with a view to its conclusion by the European Community. … (11) To take account of the principle in Article 6 of the Treaty, that environmental protection requirements should be integrated into the definition and implementation of Community policies and activities, the definition of public authorities should be expanded so as to encompass government or other public administration at national, regional or local level whether or not they have specific responsibilities for the environment. The definition should likewise be expanded to include other persons or bodies performing public administrative functions in relation to the environment under national law, as well as other persons or bodies acting under their control and having public responsibilities or functions in relation to the environment. … (16) The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal.

…’

10 Article 1 of Directive 2003/4 defines its objectives as follows: ‘The objectives of this Directive are: (a) 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; and (b) 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. To this end the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted.’

11 Article 2(1) of Directive 2003/4 defines ‘environmental information’ within the meaning of the directive as follows: ‘“Environmental information” means any information in written, visual, aural, electronic or any other material form on: (a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) 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 referred to in (a); (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements; (d) reports on the implementation of environmental legislation; (e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); (f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).’

12 Article 2(2) of Directive 2003/4 defines ‘public authority’ as follows: ‘“public authority”...