The EU and Access to Environmental Information Unit D4 European Commission, Directorate General for the Environment 1

Points in the presentations: The Aarhus Convention and the implementing instruments for the EU Substantive and procedural provisions on access to environmental information in the EU legislation Developments advanced by the Court of Justice of the European Union The role of the national judges Mechanisms for private and public enforcement at EU level 2

Implementation of the Aarhus Convention by the EU – Implementation of the Aarhus Convention by the EU – instruments adopted by the EU to ensure compliance of the EU and of its MSts with the obligations of the Aarhus Convention : At EU level At EU level - one single legal instrument - Regulation 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision- making and Access to Justice in Environmental Matters to Community institutions and bodies (the Aarhus Regulation) At Member States’ level At Member States’ level – separate legislative text for each of the pillars Pillar I Directive 2003/4 on access to environmental information Provisions in sector specific acts – EIA Directive, IPPC Directive (now IED), etc. Pillar II Directive 2003/35 providing for public participation Pillar III New proposal from the Commisison - ? 3

Legal Framework in the EU for access to environmental information The Aarhus Convention – applies only to acts of public authorities At the level of the EU instittutions: Regulation 1367/2006 Regulation 1049/2001 on access to documents the relation between the two: – Article 3 of Regulation 1367/ Regulation 1049/2001 applies to any request for access to environmental information - Article 6 of Regulation 1367/2006 concerns the application of the exceptions concerning requests for access to environmental information - Thus, Regulation 1049/2001 applies as adapted by Articles 3 to 8 of Regulation 1367/2006 and the two go beyond the Aarhus Convention in some aspects (to be seen in the part related to exceptions) At MSts level: Directive 2003/4 on access to environmental information Sector specific legislation The case law of the Court of Justice Soft law (the 2012 Implemenation Communication, the 7th Environmental Action Programme) 4

Legal Framework for Access to environmental information Substantive quarantees What are the substantive quarantees? Transparency obligations for the public authorities and right of access to information for the public (1) In the Treaties Article 15 of the TFEU « 1. In order to promote good governance and ensure the participation of civil society, the Union's institutions, bodies, offices and agencies shall conduct their work as openly as possible. … 3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union's institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph. » 5

Legal Framework for Access to environmental information Procedural guarantees What are the procedural guarantees? Right of access to an administrative or judicial review procedures: - The Aarhus Convention Article 9(1) Article 9(4) – provides the 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) – information for public about review procedures - Directive 2003/4 Article 6(1) Article 6(2) - Regulation 1049/2001 6

Developments from the case law of the Court of Justice “acting in a legislative capacity” Article 2(2) of the Aarhus Convention – documents emanating from public authorities acting in a legislative capacity fall outside the scope of the Convention Member States level Directive 2003/4 goes beyond the requirements of the Directive - Article 2(2) leaves it to the Member States to decide whether to exclude bodies or institutions acting in a legislative capacity from the definition of public authorities Flachglas Torgau - the Court recognised that Article 2(2) excludes bodies or institutions acting in a legislative capacity, irrespective if whether or not they are legislative bodies – functional approach Deutsche Umwelthilfe v. Federal Repulic of Germany C-515/11 – narrow interpretation of “legislative capacity”; the derogation may not be applied to Ministries when they adopt regulation that are of a lower rank than a law EU institutions – Regulation 1367/ Regulation 1049/2001 do not permit refusals on this ground. On the contrary, recital 6 of Regulation 1049/2001 – wider access should be given to documents when the institutions are acting in their legislative capacity 7

Developments from the case law of the Court of Justice The exceptions to the public right of access -the ongoing investigation The legal presumption that an overriding public interest in disclosure must be deemed to exist where the information requested relates to emissions into the environment does not apply to ‘investigations, in particular those concerning possible infringements of Community law’ - Joined cases C-514/11 P and C- 605/11 P (LPN) -When performing the balancing exercise, a public authority may evaluate the grounds for refusal to disclosure provided for under Article 4(2) cumulatively – C- 71/10 Office of Communications v Information Commissioner -Public participation rules in the IPPC Directive (now the IED) must be interpreted in the light of the Aarhus Convention. The public must in principle have access to all information relevant to the IPPC aithorisation procedure from the beginnng of the procedure. However, the Court also suggests that exceptionally there might be confidential commercial or industrial information.- C- 416/10, Križan 8

Developments from the case law of the Court of Justice The exceptions and the emissions into the environment - interpretation in the case law (1/2) AG Kokott opinion in Case C-266/09 – the AG rejected the Commission’s narrow reading of "emissions", nevertheless found that emissions concern “information on the direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources into the air, water or land”. The Court did not address the issue in its judgment. AG Kokott opinion in Case C-524/09, Ville de Lyon – the AG concluded in relation to Article 4(4)(d) of Directive 2003/4 that, if the emissions rule “covered indirect information on emissions into the environment, the scope of exceptions excluded thereunder, and in particular confidentiality of commercial or industrial information, would be very severely restricted. Most environmental information can be linked indirectly with emissions.” The AG continues that “the arguments made in the Implementation Guide for the Aarhus Convention are therefore more persuasive. It states that the protection of commercial confidentiality should end when the substances to which the confidential information relates are released. Emission allowance trading, on the other hand, takes place before substances are released. Information on such trading consequently does not constitute information on emissions.” 9

Developments from the case law of the Court of Justice The exceptions and the emissions into the environment - interpretation in the case law (2/2) The judgment in T-545/11 (under appeal in C-673/13 P) Broad interpretation of the General Court of emissions into the environment Para. 53 – “it suffices that the information requested relate in a sufficiently direct manner to emissions into the environment”. Para. 57 – “it must be determined whether the document at issue contains information which relates, sufficiently directly, to emissions into the environment”. - judgment in C-514/11 P and C-605/11 P (LPN) - ongoing investigation The legal presumption that an overriding public interest in disclosure must be deemed to exist where the information requested relates to emissions into the environment does not apply to ‘investigations, in particular those concerning possible infringements of Community law’ - Joined cases C-514/11 P and C- 605/11 P (LPN) 10

What do we expect? Legislative devopments -the proposal for amendment of Regulation 1049/2001 of 2011 and of 2008 Developments in jurisprudence – pending cases related to: - emissions into the environment - C-673/13 P - costs for producing environmental information - C- 71/14 11