Participatory and Procedural Rights in Environmental Matters

Article 193 of the Treaty on the Functioning of the European Union (TFEU), taken together with the intention of Directive 2003/4/EC, would seem to leave the Member States room to restrict the number of grounds for refusing information even further – the more inflexible protective measures referred to there are better ensured by greater freedom of information. The phrase ‘Member States may provide for a request for such information to be refused’ in Article 4(1) and (2) of Directive 2003/4/EC makes it clear that there is no duty to maintain confidentiality, but that there is merely a discretionary power. The directive does not provide protection for a person who feels that the authorities have exceeded their distribution of information (i.e. publishing confidential commercial or industrial data, breaching the confidentiality personal data/files), assuming that these grounds for confidentiality had previously been transposed in the relevant national legislation.

Article 5(1) of Directive 2003/4/EC – prohibits Member States from imposing any charges for access to the lists referred to in Article 3(5) of Directive 2003/4/EC. Article 5(2) of Directive 2003/4/EC expressly permits Member States to impose a charge for supplying the information, but also states that such charge may not exceed a reasonable cost:

Judicial or administrative review may be sought with the relevant national legal system (Article 6 of Directive 2003/4/EC) by a person who feels that their request for information has been unreasonably refused or ignored, inadequately answered, or otherwise not dealt with in accordance with Articles 3, 4 or 5 of Directive 2003/4/EC. The current wording is significantly wider compared to the similar provision in D 90/313, meaning that the judicial review is not limited to the statement of reasons alone and could also involve an analysis of the reasons raised.