Comisión de las Comunidades Europeas contra República Federal de Alemania.

• Jurisdiction: European Union
• Celex Number: 61997CJ0217
• ECLI: ECLI:EU:C:1999:395
• Court: Court of Justice (European Union)
• Docket Number: C-217/97
• Procedure Type: Recurso por incumplimiento – fundado
• Date: 09 September 1999

Avis juridique important

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61997J0217

Judgment of the Court (Sixth Chamber) of 9 September 1999. - Commission of the European Communities v Federal Republic of Germany. - Failure of a Member State to fulfil obligations - Directive 90/313/EEC - Freedom of access to information on the environment - Definition of 'public authorities' - Exclusion of the courts, criminal prosecution authorities and disciplinary authorities - Partial communication of information - Exclusion of the right to information during administrative proceedings - Amount of charges and mode of collecting them. - Case C-217/97.

European Court reports 1999 Page I-05087

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1 Actions for failure to fulfil obligations - Sufficient evidence - Burden of proof on the Commission - Whether a presumption may be relied on - Not permissible

(EC Treaty, Art. 169 (now Art. 226 EC))

2 Environment - Freedom of access to information - Directive 90/313 - Derogation provided for in Article 3(2), first subparagraph, third indent - Scope - `Preliminary investigation proceedings' - Meaning - Administrative procedure preparing the way for an administrative measure - Condition

(Council Directive 90/313, Art. 3(2), first subpara., third indent)

3 Acts of the institutions - Directives - Implementation by the Member States - Transposition of a directive into national law without legislative action - Conditions - Existence of a general legal context ensuring full implementation of the directive

(EC Treaty, Art. 189, third para. (now Art. 249, third para., EC))

4 Environment - Freedom of access to information - Directive 90/313 - Obligation to make a partial disclosure of information - Implementation - Whether the mere mention of partial communication in an annex to rules concerning the fixing of charges constitutes implementation - Insufficient

(Council Directive 90/313, Art. 3(2), second subpara.)

5 Environment - Freedom of access to information - Directive 90/313 - Information disclosed on payment of a charge - `Reasonable' amount - Meaning

(Council Directive 90/313, Art. 5)

Summary

1 In the context of proceedings under Article 169 of the Treaty (now Article 226 EC) for failure to fulfil obligations, it is for the Commission to prove the existence of the alleged failure, and it may not rely on any presumption for that purpose.

2 The term `preliminary investigation proceedings' which appears in the third indent of the first subparagraph of Article 3(2) of Directive 90/313 - which provides for a derogation from the general rules for access to information on the environment, in relation to matters which are sub judice or under enquiry, or which are the subject of preliminary investigation proceedings - is to be interpreted as including an administrative procedure such as that referred to in the German legislation transposing the Directive into national law, which merely prepares the way for an administrative measure, only if it immediately precedes a contentious or quasi-contentious procedure and arises from the need to obtain proof or to investigate a matter prior to the opening of the actual procedure.

3 The transposition of a directive into national law does not necessarily require its provisions to be formally incorporated verbatim in express, specific legislation; a general legal context may be adequate for the purpose, provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner. The persons concerned must be able to ascertain the full extent of their rights and, where appropriate, to rely on them before the national courts.

4 Although, under Article 3(2), first subparagraph, of Directive 90/313 on the freedom of access to information on the environment, Member States may refuse to grant a request for information in the cases listed exhaustively in that provision, the second subparagraph of Article 3(2) requires them to communicate information from which it is possible to detach information which may be covered by the requirements of confidentiality or privilege, thus imposing on Member States an obligation which is precise as regards the result to be obtained and which directly affects the legal situation of individuals, who are accordingly entitled to obtain information under the conditions laid down in that subparagraph.

National legislation which merely mentions the partial communication of information, for the purposes of levying certain charges, in an annex to the national rules fixing the charges which may be made for supplying information on the environment, and which, moreover, applies only to the federal authorities, is not sufficient to implement clearly the obligation set out in the second subparagraph of Article 3(2) of the Directive in relation to the partial communication of information.

5 Consequently, the term `reasonable' for the purposes of Article 5 of Directive 90/313 - which permits Member States to make the supply of information on the environment subject to payment of a charge, provided that such a charge does not exceed a reasonable amount - must be understood as meaning that Member States are not thereby authorised to pass on to those seeking information the entire amount of the costs (indirect costs, in particular) actually incurred for the State budget in conducting an information search. Furthermore, a charge made where a request for information is refused cannot be described as reasonable, since in such a case no information has in fact been supplied within the meaning of Article 5 of the Directive.

Parties

In Case C-217/97,

Commission of the European Communities, represented by Götz zur Hausen, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Federal Republic of Germany, represented by Ernst Röder, Ministerialrat at the Federal Ministry of Economic Affairs, acting as Agent, and Dieter Sellner, Rechtsanwalt, Bonn,

defendant,

">APPLICATION for a declaration that the Federal Republic of Germany has failed to fulfil its obligations under Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment (OJ 1990 L 158, p. 56), in particular Article 2(b), Article 3(2), third indent of the first subparagraph and second subparagraph, and Article 5 thereof,

THE COURT

(Sixth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, G. Hirsch and R. Schintgen (Rapporteur), Judges,

Advocate General: N. Fennelly,

Registrar: L. Hewlett, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 3 December 1998,

after hearing the Opinion of the Advocate General at the sitting on 28 January 1999,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 9 June 1997, the Commission of the European Communities brought an action under Article 169 of the EC Treaty (now Article 226 EC) for a declaration that the Federal Republic of Germany had failed to fulfil its obligations under Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment (OJ 1990 L 158, p. 56, `the directive'), in particular Article 2(b), Article 3(2), third indent of the first subparagraph and second subparagraph, and Article 5 thereof.

The directive

2 Article 1 of the directive provides that `the object of this directive is to ensure freedom of access to, and dissemination of, information on the environment held by public authorities and to set out the basic terms and conditions on which such information should be made available'.

3 Article 2 provides:

`For the purposes of this directive:

(a) "information relating to the environment" shall mean any available information in written, visual, aural or data-base form on the state of water, air, soil, fauna, flora, land and natural sites, and on activities (including...