Judgment of the Court (First Chamber) of 20 January 2021

International law

3 The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1) (‘the Aarhus Convention’), states, in Article 4(3):

‘A request for environmental information may be refused if:

…

1. the request concerns material in the course of completion or concerns internal communications of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure.

…’

EU law

German law

12 Paragraph 28(2)(2) of the Umweltverwaltungsgesetz Baden-Württemberg (Law of the Land of Baden-Württemberg on environmental administration) of 25 November 2014 (GBl. 2014, 592), as amended by Article 1 of the Law of 28 November 2018 (GBl. 2018, 439), provides:

‘Where a request … relates to internal communications of authorities required to provide information within the meaning of Paragraph 23(1), … it shall be refused unless the public interest in disclosure is stronger.’

The first question

27 By its first question, the referring court asks whether 4(1)(e) of Directive 2003/4 must be interpreted as meaning that the term ‘internal communications’ covers all information which does not leave the internal sphere of a public authority.

28 First of all, it should be noted that, in adopting Directive 2003/4, the EU legislature intended to ensure the compatibility of EU law with the Aarhus Convention by providing for a general scheme to ensure that any applicant within the meaning of Article 2(5) of that directive has a right of access to environmental information held by or on behalf of the public authorities, without having to state an interest (see, to that effect, judgment of 14 February 2012, Flachglas Torgau , C‑204/09, EU:C:2012:71, paragraph 31 ).

29 It should also be pointed out that the right of access guaranteed by Directive 2003/4 applies only to the extent that the information requested satisfies the requirements for public access that that directive lays down, which presupposes inter alia that the information is ‘environmental information’ within the meaning of Article 2(1) of the directive, a matter which is for the referring court to determine in the main proceedings (see, to that effect, judgment of 14 February 2012, Flachglas Torgau , C‑204/09, EU:C:2012:71, paragraph 32 ).

30 As regards the aims pursued by Directive 2003/4, Article 1 states in particular that it seeks to guarantee the right of access to environmental information held by public authorities and to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public (judgment of 14 February 2012, Flachglas Torgau , C‑204/09, EU:C:2012:71, paragraph 39 ).

31 However, the EU legislature provided, in Article 4 of Directive 2003/4, that the Member States may establish exceptions to the right of access to environmental information. In so far as such exceptions have in fact been transposed into national law, it is permissible for the public authorities to rely upon them in order to oppose requests for information that they receive.

32 In the present case, it is clear from the order for reference that Paragraph 28(2)(2) of the Law of the Land of Baden-Württemberg on environmental administration transposed the exception, provided for in Article 4(1)(e) of Directive 2003/4, under which a request for environmental information may be refused if the request concerns internal communications, taking into account the public interest served by disclosure.

33 As is apparent from the scheme of Directive 2003/4 and, in particular, from the second subparagraph of Article 4(2) and recital 16, the right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in a few specific and clearly defined cases. The exceptions to the right of access should, consequently, be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal of disclosure (judgment of 28 July 2011, Office of Communications , C‑71/10, EU:C:2011:525, paragraph 22 ).

34 Furthermore, according to settled case-law, the need for the uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of that provision and the purpose of the legislation in question (judgment of 14 February 2012, Flachglas Torgau , C‑204/09, EU:C:2012:71, paragraph 37 ).

35 It is in the light of those considerations that the internal communications exception to the right of access, laid down in Article 4(1)(e) of Directive 2003/4, should be interpreted.

36 Directive 2003/4 does not define the term ‘internal communications’ and makes no reference to the law of the Member States in that regard. A uniform interpretation of that term should therefore be provided, in accordance with the case-law referred to in paragraph 34 of the present judgment.

37 As regards, first, the word ‘communication’ used in Article 4(1)(e) of Directive 2003/4, as the Advocate General has observed in points 20 and 21 of his Opinion, this word relates to information addressed by an author to someone, an addressee who or which may be an abstract entity – such as ‘members’ of an administration or the ‘executive board’ of a legal person – or a specific person belonging to that entity, such as a member of staff or an official.

38 That interpretation of the term ‘communication’ is supported by the context of Article 4(1)(e) of Directive 2003/4.

39 Article 4(3)(c) of the Aarhus Convention indeed provides for an exception to the right of access to environmental information where a request concerns material in the course of completion or concerns internal communications of public authorities. That provision thus distinguishes the term ‘material’ from the term ‘communication’.

40 As the Advocate General has observed in points 23 and 24 of his Opinion, the same distinction was adopted by the EU legislature, which transposed Article 4(3)(c) of the Aarhus Convention by two separate provisions. On the one hand, Article 4(1)(d) of Directive 2003/4 contains an exception concerning material in the course of completion or unfinished documents or data and, on the other, Article 4(1)(e) provides for the exception relating to internal communications. It follows that the term ‘communication’ and the terms ‘material’ or ‘document’ should be given separate meanings. In particular, unlike the former term, the latter do not necessarily concern information that is addressed to someone.

41 As regards, second, the word ‘internal’, it is clear from Article 3(1) of Directive 2003/4 that the environmental information to which that directive is designed to grant access is held by public authorities. In accordance with Article 2(3) of the directive, that is so in the case of information in an authority’s possession which has been produced or received by it. In other words, public authorities which hold environmental information may have it at their disposal, process it and analyse it internally, and decide on its disclosure.

42 It follows that not all environmental information held by a public authority is necessarily ‘internal’. That is so only in the case of information which does not leave the internal sphere of a public authority, in particular when it has not been disclosed to a third party or been made available to the public.

43 Where a public authority holds environmental information that it has received from an external source, that information may also be ‘internal’ if it was not or should not have been made available to the public before that authority received it and it does not leave that authority’s internal sphere after it received it.

44 That interpretation of the word ‘internal’ is supported by the objective pursued by the internal communications exception to the right of access to environmental information. It is apparent from the explanations relating to Article 4 of the proposal for a Directive of the European Parliament and of the Council on public access to environmental information presented by the Commission on 29 June 2000 (COM(2000) 402 final – COD 2000/0169, OJ 2000 C 337 E, p. 156) that, like the exception concerning material in the course of completion or unfinished documents, the exception permitting access to internal documents to be refused is intended to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions.

45 Such a need has also been recognised in respect of environmental information held by the EU institutions covered by Regulation No 1049/2001.

46 That regulation applies to any request for access to environmental information. Under Article 4(3) thereof, the EU institutions are able to refuse access to documents for internal use or containing opinions for internal use. That provision is thus intended to ensure that those institutions are able to enjoy a space for deliberation in order to be able to decide as to the policy choices to be made and the potential proposals to be submitted (see, to that effect, judgment of 4 September 2018, ClientEarth v Commission , C‑57/16 P, EU:C:2018:660, paragraphs 99 and 109 ).

47 In the light of the considerations set out in paragraphs 37 to 46 of the present judgment, the exception to the right of access to environmental information that is laid down in Article 4(1)(e) of Directive 2003/4 for internal communications must be understood as concerning information that circulates within a public authority and which, on the date of the request for access, has not left the public authority’s internal sphere – as the case may 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.

48 It is true that, as recalled in paragraph 33 of the present judgment, exceptions to the right of access should be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal of disclosure. However, that rule of interpretation cannot limit the scope of Article 4(1)(e) of Directive 2003/4 in disregard of its wording.

49 It follows that the fact that an item of environmental information may be liable to leave the internal sphere of a public authority at a given time, inter alia where it is intended to be published in the future, cannot cause the communication that contains it to cease immediately to be internal in nature.

50 Furthermore, there is nothing in the wording of Article 4(1)(e) of Directive 2003/4 to suggest that the term ‘internal communications’ should be interpreted as covering only the personal opinions of a public authority’s staff and essential documents or as not including information of a factual nature. Such limitations would, moreover, be incompatible with that provision’s objective, namely the creation, for public authorities, of a protected space in order to engage in reflection and to pursue internal discussions.

51 Nor can the scope of the term ‘internal communications’, as referred to in paragraphs 20, 49 and 50 of the present judgment, be limited by the taking into account of the Aarhus Convention and the Aarhus Convention Implementation Guide. First, as the Advocate General has observed in point 27 of his Opinion, Article 4(3)(c) of the Aarhus Convention does not itself restrict the scope of ‘internal communications’ according to their content or importance. Second, in its judgment of 16 February 2012, Solvay and Others (C‑182/10, EU:C:2012:82, paragraph 27 ), the Court held that, while the Aarhus Convention Implementation Guide may be regarded as an explanatory document, capable of being taken into consideration if appropriate among other relevant material for the purpose of interpreting the Aarhus Convention, the observations in the guide have no binding force and do not have the normative effect of the provisions of the convention.

52 In the present instance, according to the information set out in the order for reference, the documents covered by the request for access at issue in the main proceedings contain, first, an item of information transmitted to the management of the State Ministry of the Land of Baden-Württemberg and, second, notes of that ministry relating to the carrying out of a conciliation procedure. The file before the Court does not show that this information originated outside that ministry. Subject to the checks which are for the referring court to carry out, it seems that those documents were drafted in order to relay information within the State Ministry of the Land of Baden-Württemberg and that they did not leave the internal sphere of that administration. It follows that those documents would be capable of being classified as ‘internal communications’ within the meaning of Article 4(1)(e) of Directive 2003/4.

53 In the light of the foregoing, the answer to the first question referred is that Article 4(1)(e) of Directive 2003/4 must be interpreted as meaning that the term ‘internal communications’ covers all information which circulates within a public authority and which, on the date of the request for access, has not left that authority’s internal sphere – as the case may be, after being received by that authority, provided that it was not or should not have been made available to the public before it was so received.

The second question

54 By its second question, the referring court asks, in essence, whether Article 4(1)(e) of Directive 2003/4 must be interpreted as meaning that the applicability of the exception to the right of access to environmental information provided for by it in respect of internal communications of a public authority is limited in time.

55 Article 4(1)(e) of Directive 2003/4, like Article 4(3)(c) of the Aarhus Convention which it transposed into EU law, contains nothing to support the limitation of its application in time. Nor does the Aarhus Convention Implementation Guide provide any guidance in that regard.

56 In particular, unlike the exception to the right of access to environmental information which is set out in Article 4(1)(d) of Directive 2003/4 and concerns material in the course of completion and unfinished documents or data, the exception provided for in respect of internal communications is not linked to the development or drawing up of documents. Nor does it depend on the extent to which some administrative process has progressed. The end of such a process or of a stage thereof, marked by the adoption of a decision by a public authority or by the completion of a document, cannot, therefore, be the deciding factor for the applicability of Article 4(1)(e) of Directive 2003/4.

57 The lack of temporal limitation of the scope of that provision tallies with its objective, set out in paragraphs 44 and 50 of the present judgment, namely the creation, for public authorities, of a protected space in order to engage in reflection and to pursue internal discussions. As the Advocate General has observed, in essence, in points 44 and 50 of his Opinion, in order to determine whether the need to protect the freedom of thought of the people behind the communication concerned and the ability to exchange views freely continues to exist, account should be taken of all the factual and legal circumstances of the case on the date on which the competent authorities have to take a decision on the request which has been made to them, since, as is clear from paragraph 34 of the judgment of 16 December 2010, Stichting Natuur en Milieu and Others (C‑266/09, EU:C:2010:779 ), the right of access to environmental information crystallises on that date.

58 Whilst it is true that the exception provided for in Article 4(1)(e) of Directive 2003/4 is not limited in time, it is apparent, however, from that provision itself and the second subparagraph of Article 4(2) of the directive that refusal of access to environmental information on the ground that it is included in an internal communication must always be founded on a weighing of the interests involved.

59 It is clear from the Court’s case-law that the interests must be weighed on the basis of an actual and specific examination of each situation brought before the competent authorities in connection with a request for access to environmental information made on the basis of Directive 2003/4, but the national legislature is not precluded from determining, by a general provision, criteria to facilitate that comparative assessment of the interests involved (see, to that effect, judgments of 16 December 2010, Stichting Natuur en Milieu and Others , C‑266/09, EU:C:2010:779, paragraph 58 , and of 28 July 2011, Office of Communications , C‑71/10, EU:C:2011:525, paragraph 29 ).

60 In the case of Article 4(1)(e) of Directive 2003/4, that examination is especially important since the material scope of the exception to the right of access to environmental information which that provision lays down for internal documents is particularly broad. Thus, in order not to render Directive 2003/4 meaningless, the weighing of the interests involved that is required in Article 4(1)(e) and the second subparagraph of Article 4(2) of the directive must be tightly controlled.

61 Since, as has been noted in paragraph 28 of the present judgment, Directive 2003/4 is intended to ensure that any applicant within the meaning of Article 2(5) of the directive has a right of access to environmental information held by or on behalf of the public authorities, without having to state an interest, the authority to which a request for access has been made cannot require the applicant to set out a specific interest justifying disclosure of the environmental information sought.

62 It is apparent from recital 1 of Directive 2003/4 that the reasons which may support disclosure and which an authority must in any event take into account when weighing the interests involved include bringing about ‘a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and … a better environment (see, to that effect, judgment of 28 July 2011, Office of Communications , C‑71/10, EU:C:2011:525, paragraphs 25 and 26 ).

63 Since, as noted in paragraph 59 of the present judgment, the examination of a request for access must take account of the specific interests involved in each particular case, the public authority is also required to examine any particulars provided by the applicant as to the grounds that may justify disclosure of the information sought.

64 In addition, public authorities to which a request for access to environmental information contained in an internal communication has been made must take into account the time that has passed since that communication and the information that it contains were drawn up. The exception referred to in Article 4(1)(e) of Directive 2003/4 to the right of access to environmental information can apply only for the period during which protection is justified in the light of the content of such a communication (see, by analogy, judgment of 26 January 2010, Internationaler Hilfsfonds v Commission , C‑362/08 P, EU:C:2010:40, paragraph 56 ).

65 In particular, if, in the light of the objective of creating, for public authorities, a protected space in order to engage in reflection and to pursue internal discussions, information contained in an internal communication could properly not be disclosed on the date of the request for access, a public authority may, on the other hand, be led to take the view that, on account of its age, the information has become historical and that it is accordingly no longer sensitive, where some time has passed since it was drawn up (see, by analogy, judgment of 19 June 2018, Baumeister , C‑15/16, EU:C:2018:464, paragraph 54 ).

66 Furthermore, when a public authority examines a request for access to environmental information that has been made to it, it must establish, in accordance with Article 4(4) of Directive 2003/4, whether some of the information sought may be separated out from the information covered by the applicable exception to the right of access, with the result that it may make partial disclosure.

67 Compliance with all the obligations which, as is apparent from paragraphs 58 to 66 of the present judgment, are owed by public authorities when they examine a request for access to environmental information, including, in particular, the obligation to weigh the interests involved, must be capable of being checked by the person concerned and be open to scrutiny in the administrative and judicial review procedures provided for at national level, in accordance with Article 6 of Directive 2003/4.

68 In order to meet that requirement, Article 4(5) of Directive 2003/4 provides that a decision refusing access is to be notified to the applicant and to contain the reasons for refusal on which it is based.

69 As the Advocate General has observed in point 34 of his Opinion, that obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical (see, by analogy, judgment of 21 July 2011, Sweden v MyTravel and Commission , C‑506/08 P, EU:C:2011:496, paragraph 76 ).

70 In the light of all the foregoing considerations, the answer to the second question referred is that Article 4(1)(e) of Directive 2003/4 must be interpreted as meaning that the applicability of the exception to the right of access to environmental information provided for by it in respect of internal communications of a public authority is not limited in time. However, that exception can apply only for the period during which protection of the information sought is justified.

The third question

71 In the light of the answer to the second question, it is no longer necessary to reply to the third question.