1. 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

2. 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

3. 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

4. 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

5. Legal Framework: Three Levels of Legal Authority -Aarhus Convention -Directive 2003/4/EC -National measures designed to transpose Aarhus and EU law obligations

6. Complex Interactions between Multiple Sources of Legal Authority Aarhus Convention National Law EU Law

7. Complex Interactions between Multiple Enforcement Mechanisms Aarhus Convention Compliance Committee Public authorities/ National Courts & Tribunals EU Commission/ Court of Justice (CJEU)

8. Aarhus Convention & Access to Environmental Information Recital 17Public 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.

9. 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

10. EU Law – Directive 2003/4/EC Repealed & replaced Directive 90/313/EEC Aims to implement Aarhus access to environmental information obligations at Member State level Deadline for transposition: 14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

11. Directive 2003/4/EC Recital 16The right to info → disclosure of info should be the general rule Article 1 Objectives Article 2Key definitions – “environmental information” & “public authority” Broad definitions – but grey areas

12. Directive 2003/4/EC Article 3Right 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

13. Directive 2003/4/EC Article 4Exceptions 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

14. 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.

15. 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

16. 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

17. 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

18. 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

19. Directive 2003/4/EC Article 7 (Proactive) Dissemination of environmental info. Article 8 Quality of environmental info. Article 9 Review of Directive by COM

20. 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

21. 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”

22. 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 (2 nd 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

23. 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

24. Key Points emerging from CJEU Jurisprudence on Directive 2003/4/EC 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

25. Key Points emerging from CJEU Jurisprudence on Directive 2003/4/EC 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

26. Key Points emerging from CJEU Jurisprudence on Directive 2003/4/EC 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”

27. Key Points emerging from CJEU Jurisprudence on Directive 2003/4/EC 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?

28. Key Points emerging from CJEU Jurisprudence on Directive 2003/4/EC 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

29. Key Points emerging from CJEU Jurisprudence on Directive 2003/4/EC 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 Case C-204/09, Flachglas Torgau 14 February 2012 In every particular case, public authorities must weigh the public interest served by disclosure against the interest served by refusal

30. Key Points emerging from CJEU Jurisprudence on Directive 2003/4/EC 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?

31. Key Points emerging from CJEU Jurisprudence on Directive 2003/4/EC 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”

32. Key Points emerging from CJEU Jurisprudence on Directive 2003/4/EC Case C-204/09, Flachglas Torgau 14 February 2012 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

33. Key Points emerging from CJEU Jurisprudence on Directive 2003/4/EC 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

34. Key Points emerging from CJEU Jurisprudence on Directive 2003/4/EC 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.

35. Key Points emerging from CJEU Jurisprudence on Directive 2003/4/EC 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]

36. Key Points emerging from CJEU Jurisprudence on Directive 2003/4/EC 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)

37. 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

38. 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”?

39. Role of the National Judge 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

40. Role of the National Judge 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

41. 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