In two judgments, the European Court of Justice has provided guidance on the extent of the exemption for authorities acting in a legislative capacity from having to provide access to environmental information under the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention). These decisions have specific relevance to Ireland because the exemption set out in the Aarhus Convention is mirrored by Article 3(2) of the European Communities (Access to Information on the Environment) Regulations 2007.
In the first judgment (Flachglas Torgau GmbH v Germany), the Court held that the provision of not regarding 'bodies or institutions acting in a ... legislative capacity' as public authorities may be applied to ministries to the extent that they participate in the legislative process, in particular by tabling draft laws or giving opinions. Additionally, the option is not subject to the conditions set out in the second sentence of the second subparagraph of Article 2(2) of Directive 2003/4, this being the option to exclude such bodies from the definition if their constitutional provisions at the date of the adoption of the directive make no provision for a review procedure within the meaning of Article 6 of the directive.
The Court also held that this option can no longer be exercised where the legislative process in question has ended.
The Court also considered Article 4(2)(a) of the Directive. It stated that the condition that the confidentiality of the proceedings of public authorities must be provided for by law can be regarded as being fulfilled by the existence in national law of a rule that the confidentiality of the proceedings of public authorities is a ground for refusing access to environmental information held by those authorities. However, the Court went on to state that, in order for this to apply, national law must clearly define the concept of 'proceedings'.
In the second judgment (Solvay v Region wallonne), the Court made findings on a number of matters, including:
- It is permissible to take the Implementation Guide for the Aarhus Convention into account when interpreting the Convention, but the Guide has no binding force;
- The exemption in Article 2(2) does not apply to ratifying legislation that is based on prior substantive legislation and is not itself open to a full, open democratic process. In other words, acts of public authorities which are essentially administrative cannot be rendered immune from access under the regime merely by the fact that they rubber-stamp certain decisions. In the case in question, the Walloon Parliament had legislated to ratify the granting of certain planning consents in respect of a number of major developments. The ECJ was in no doubt that the legislation in question could not fall within the ambit of the exemption provision.
Full copies of the judgments are available at http://curia.europa.eu