Judges L Bay Larsen, C Toader, M Safjan, N Jääskinen
Advocate General G Hogan
The applicant, a member of the public in Germany, applied to the State Ministry of the Land of Baden-Württemberg (“the public authority”) to obtain copies of documents relating to tree felling in the context of a transport and urban planning development project in Stuttgart’s Schlossgarten Park. The documents concerned the public authority’s inquiry into a police operation that had taken place in the park and memoranda relating to a conciliation procedure. The applicant’s action against the public authority’s decision refusing him access to the documents was ultimately allowed on the ground that the dispute related to “environmental information”, within the meaning of article 2(1)(c) of Parliament and Council Directive 2003/4/EC, held by a public authority. In particular, the court held that the ground for refusal provided by article 4(1)(e) of the Directive in relation to “internal communications” of public authorities could no longer be relied upon once the authority’s decision-making process had been completed. By article 4(1)(d) and (e) of the Directive, the EU legislature implemented article 4(3)(c) of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998) (“the Aarhus Convention”), to which the UK was a party. Article 4(3)(c) provided for an exception to the right of access to environmental information where a request concerned “material” in the course of completion, or concerned internal “communications” of public authorities, thus distinguishing the terms “material” and “communication”. On the public authority’s appeal, the German court stayed the proceedings and referred to the Court of Justice of the European Union for preliminary ruling, the questions whether, on the proper construction of article 4(1)(e) of Directive 2003/4: (i) the term “internal communications” covered all information which did not leave the internal sphere of a public authority; and (ii) the exception was limited in time.
On the reference—
Held, (1) the exception to the right of access to environmental information under article 4(1)(e) of Directive 2003/4 for internal communications concerned information that circulated within a public authority and which, on the date of the request for access, had not left the authority’s internal sphere (as the case might be, after being received by that authority), inter alia as a result of being disclosed to a third party or being made available to the public. The fact that an item of environmental information might be liable to leave the internal sphere of a public authority at a given time, for example where it was intended to be published in the future, did not cause the communication that contained it to cease immediately to be “internal” in nature. Further, the term “internal communications” was not limited to the personal opinions of a public authority’s staff and essential documents, and included information of a factual nature. The scope of that term was not limited by taking the Aarhus Convention into consideration, since article 4(3)(c) of the Convention did not itself restrict the scope of “internal communications” according to their content or importance. It appeared that the documents covered by the request for access in the present case were “internal communications” within the meaning of article 4(1)(e) of Directive 2003/4, subject to checks to be made by the referring court. Accordingly, the term “internal communications” in article 4(1)(e) of Directive 2003/4 covered all information which circulated within a public authority and which, on the date of the request for access, had not left that authority’s internal sphere (judgment, paras 47, 49–53, operative part, para 1).
(2) There was no temporal limitation for the application of article 4(1)(e) of Directive 2003/4 or article 4(3)(c) of the Aarhus Convention, in accordance with their objective, namely to create a protected space for public authorities to engage in reflection and pursue internal discussions. However, a refusal of access to environmental information on the ground that it was included in an internal communication had to be founded by weighing the interests involved, on the basis of an examination of each situation. That examination was especially important in the case of article 4(1)(e), since the scope of the exception to the right of access therein was particularly broad, and the weighing of the interests involved had to be tightly controlled. Accordingly, public authorities to which a request for access to environmental information contained in an internal communication had been made had to take into account the time that had passed since that communication and the information that it contained had been drawn up. The exception in article 4(1)(e) applied only for the period during which protection was justified in the light of the content of such a communication (judgment, paras 55, 57–60, 64, 70, operative part, para 2).
G Torsten for the public authority.
F-U Mann for the applicant.
T Krappel for the first intervener, a German railway company.
J Möller and S Eisenberg, agents, for the German Government.
M Browne, J Quaney and A Joyce, agents, for Ireland.
Christopher Knight (instructed by The Treasury Solicitor) for the United Kingdom Government.
G Gattinara and M Noll-Ehlers, agents, for the European Commission.
L-M Moen Jünge and K Isaksen, agents, for the Norwegian Government.