Access to information at EU law landscape – Member States level
As regards the interpretation of this concept, the contribution of the CJEU jurisprudence is crucial in different cases such as C-204/09 Flachgas Torgau GmbH v Federal Republic of Germany, C-279/12 Fish Legal et al v Information Commissioner et al., C-115/09 Bund für Umwelt und Naturschutz Deutchland, Landesverband Nordrhein-Westfalen and C-515/11 Deutsche Umwelthilfe.
The central provision is Article 3(1) of Directive 2003/4/EC – it requires the Member States to make environmental information available upon request without the applicant having to state an interest. The request must be precise. Requests that are too general may be refused, provided that the authority has invited the applicant to specify his request (Article 4(1)(c) in connection with Article 3(3) of Directive 2003/4/EC). The duty to set up a dialogue with the applicant applies to requests sent to the wrong public authority (Article 4(1)(a) of Directive 2003/4/EC). In order to facilitate access to environmental information, Article 3(5) of Directive 2003/4/EC requires the Member States to set up registers and lists of this information.
Limitations to access to environmental information are provided under the Article 4 of Directive 2003/4/EC. Namely, it concerns exceptions that relate primarily to the internal working of the authority (1st paragraph of Article 4 of Directive 2003/4/EC); exceptions involving the interests of third parties or confidentiality of commercial information (Article 4(2)(d) of the European Directive 2003/4/EC). Whenever one of the exceptions is invoked by an authority, there must be a balance between the public interest served by free access to information and the interests that are protected by the exception (last paragraph of Article 4 of Directive 2003/4/EC). This list is exhaustive, hence Member States are not allowed to add further derogations for refusal. Moreover, exceptions must be narrowly interpreted in all cases and conform with the Aarhus Convention.
There will always be an overriding public interest in disclosure of the information if it relates to emissions into the environment (exception of interests listed in Article 4 paragraph 1 and 2 (b), (c) and (e) of Directive 2003/4/EC). Emission-related material must always be made public; it may only be refused on grounds of intellectual property rights, international relations, public security or national defence or course of justice. However, this is difficult because the term ‘emissions’ is not further defined. In this context, it seems likely that this concept will receive a wide interpretation due to the Court’s case law concerning Directive 90/313/EEC, leading to environmental information being as widely accessible as possible. However, in case C-524/09, Ville de Lyon v Caisse des dépôts et consignations the CJEU held that data on greenhouse gas emissions allowance trading did not fall within the scope of the Article 4 of Directive 2003/4.