C-321/96

MECKLENBURG v KREIS PINNEBERG — DER LANDRAT

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 15 January 1998 *

I — Introduction based his two applications directly upon the provisions of Directive 90/313/EEC. The German law implementing the Directive, the Umweltinformationsgesetz (Law on infor­ mation on the environment), was passed on 8 July 1994 and entered into force on 16 July 1994, that is to say, not until after the com­ 1. In the present case, the Court is called mencement of the action which led to the upon to interpret, for the first time, Council present proceedings. Directive 90/313/EEC of 7 June 1990 on the freedom of access to information relating to the environment ('the Directive'). 1In par­ ticular, the Court is asked to define the extent of the derogations which the Directive provides for public authorities in relation to 3. On 17 March 1993 the defendant rejected their duty to provide information in the case the plaintiff's application on the ground that of matters which are the subject of 'prelimi­ the 'statement of views requested did not nary investigation proceedings'. constitute information relating to the envi­ ronment within the meaning of the Directive since it simply evaluated information which was in any case already available to the plaintiff. In any event, as the referring court has stated, the defendant was of the view that II — The facts of the case the exception provided for in the third indent of Article 3(2) of the Directive fell to be applied in this case, since the proceedings in question were preliminary investigation proceedings. Challenging both of the views expressed by the defendant, the plaintiff 2. On 1 January 1993 the plaintiff applied to requested it to reconsider its decision. The the municipality of Pinneberg for a copy of defendant rejected the plaintiff's request by the statement of views by the competent decision of 3 September 1993 and on 4 Octo­ countryside protection authority in connec­ ber 1993 the plaintiff brought an action tion with planning approval for the con­ against that decision. struction of the 'western by-pass'. The plain­ tiff made a similar application to the defendant on 18 March 1993. The plaintiff

constituted an administrative measure and as which was in force on the date when the such fell within the concept of information facts of the case occurred. Among the relating to the environment and that, in any grounds on which the Verwaltungsgericht event, the authority's evaluation of the infor­ dismissed the action was the restriction con­ mation in its possession did not detract from stituted by the confidentiality of the delib­ its nature as 'information relating to the erations of public authorities as defined in environment'. Secondly, the plaintiff argued Paragraphs 7(1) and (3) of the Umweltinfor­ that the reference to the third indent of mationsgesetz. On 27 October 1995 the Article 3(2) of the Directive was irrelevant. plaintiff appealed against that decision at first Development consent proceedings did not instance to the Oberverwaltungsgericht constitute preliminary investigation proceed­ Schleswig-Holstein. In its appeal the plaintiff ings within the meaning of the Directive. submitted that the provisions of the Umweltinformationsgesetz had been infringed, arguing that what was involved in this case was not a deliberation by a public authority and that, for what it was worth, such an act did not fall within the proviso in Paragraph 7(1) of the Umweltinformations- 5. Supporting the plaintiff's case, the Repre­ gesetz. In response to that argument the sentative of the Public Interest attached to defendant contended that the case did indeed the Oberverwaltungsgericht (Higher Admin­ fall within the said provisions of that law. istrative Court) maintained that the authori­ The Representative of the Public Interest ty's statement of views which was in issue attached to the Oberverwaltungsgericht before the referring court had to be regarded Schleswig-Holstein supported the arguments as an administrative measure for the protec­ developed by the plaintiff. He maintained tion of the environment in the sense contem­ that interpretation of the provisions of the plated by the Directive. According to that Umweltinformationsgesetz in isolation intervening party, every act on the part of a would indeed lead to the dismissal of the public authority fell within the broader con­ plaintiff's application in that there had been cept of 'administrative measure'. Moreover, deliberations of a public authority which, as there was the particular circumstance that such, were exempt from the requirement to the act in question was adopted for the pro­ communicate information. Nevertheless, he tection of the environment in that the activ­ considered that those provisions conflict ity of the defendant authority, which was with the terms of the Directive because the responsible for the protection of the coun­ administrative measure in question could not tryside, was also designed to protect the be classified as 'preliminary investigation environment in development consent pro­ proceedings' within the meaning of the third ceedings. indent of Article 3(2) of the Directive. In conclusion, the Representative of the Public Interest maintained that, in this regard, the Directive had not been correctly transposed into German law.

For the purposes of this Directive: '(1) Does the statement of views given in development consent proceedings by a subordinate countryside protection authority participating in those pro­ ceedings as a representative of a public interest constitute an administrative (a) "information relating to the environ­ measure designed to protect the envi­ ment" shall mean any available infor­ ronment within the meaning of Article mation in written, visual, aural or data­ 2(a) of Council Directive 90/313/EEC base form on the state of water, air, soil, of 7 June 1990 on the freedom of access fauna, fiora, land and natural sites, and to information on the environment? on activities (including those which give

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OPINION OF MR LA PERGOLA — CASE C-321/96

rise to nuisances such as noise) or mea­ Member States may provide for a request for sures adversely affecting, or likely so to such information to be refused where it affect these, and on activities or measures affects: designed to protect these, including administrative measures and environ­ mental management programmes;

(b) "public authorities" shall mean any pub­ lic administration at national, regional or local level with responsibilities, and pos­ sessing information, relating to the envi­ — matters which are, or have been, sub ronment with the exception of bodies judice, or under enquiry (including disci­ acting in a judicial or legislative capacity. plinary enquiries), or which are the sub­ ject of preliminary investigation proceed­ ings,

Save as provided in this Article, Member States shall ensure that public authorities are required to make available information relat­ ing to the environment to any natural or legal person at his request and without his having to prove an interest.

The defendant further maintains that the statement of views of the authority in ques­ Alternatively, the plaintiff argues that, should tion is no more than a preparation for the this Court hold that the administrative actual measure itself which will subsequently authority's statement of views, at issue in be adopted by a different administrative this case, does not fall within the description body. Moreover, the statement in question is of environmental management measures, it nothing more than a legal appraisal of facts must nevertheless be held to rank among the and information. These, in the defendant's activities referred to in Article 2(a) of the view, are almost inseparably linked with the Directive. In the further alternative, if that appraisal itself and upon which it is necessar­ approach is not accepted by the Court, the ily based. To provide the information sepa­ plaintiff contends that what is concerned, in rately from the appraisal of it would impose a more general way, is environmental infor­ upon the defendant authority a burden out mation, in view of the objectives to which of all proportion to the objective pursued by the statement of views, which constitutes the the Directive. basis upon which the public authority must then found its decision, is directed.

12. The Commission, for its part, states that the question posed by the Oberverwaltungs­ 11. The defendant is of the opposite view. It gericht Schleswig-Holstein, even though it maintains that the concept of 'administrative refers to 'administrative measures for envi- measure' is, on the basis of the French ('mesure administrative') and the English ('administrative measure') versions of the Directive, denotes an act adopted by an 2 — Council Document No 6888/90, ENV 136 of 5 June 1990.

Having adopted that premiss, the Commis­ sion concludes on the point at issue that the 13. In view of the considerations thus put concept of 'administrative measure' is a very forward by the parties, and in particular by broad one and is capable of including any the Commission, it is my opinion that the kind of administrative activity carried out by statement of views in question must be a public authority. Proof of this is the alter­ linked to the measures and activities contem­ native and complementary use of the terms plated by the directive in question. There can 'measure' and 'activity'. By this means the be no doubt that the Community legislature Community legislature sought to cover all intended to include within the concept of possible areas in which an administrative 'information relating to the environment' all activity concerning the environment is car­ conduct on the part of public authorities, as ried on. The Commission goes on to add defined in the Directive, subject only to the that the nature of the concept in question exceptions specially provided for in that does not change and that concept thus con­ regard. The concept of information relating tinues to be governed by the law of the to the environment is, by the express inten­ Directive even if the administrative activity tion of the Community legislature, all- 4 does not give rise to factual or legal conse­ embracing. For the rest, it is possible to quences. identify it on the basis of the two criteria that the provision in point of the Directive implicitly lays down. The first relates to the substantive element, that is to say, to the existence of information and in this connec­ The Commission also stresses the relation­ tion it is of no importance whether this con­ ship which must in any event exist between sists of information accessible in the form of the administrative measure and the objective a collection of raw data or, instead, material pursued by the public authority's activity, which has already been the subject of techni­ which is of no interest for the purposes of cal or logico-juridical analysis. The second is the Directive unless it is directed to the pro­ tection of the environment. In the present case, the Commission is of the view that this 3 — Council Directive of 27 June 1985 on the assessment of the link indubitably exists, since the institutional effects of certain public and private projects on the environ- ment (OJ 1985 L 175, p. 40). task of the authority in question is the pro­ 4 — Academic legal writing concurs with this view. See Krämer, tection of the environment. Furthermore, the 'La directive 90/313/EEC sur l'accès à l'information en matière d'environnement: genèse et perspectives position taken by the defendant authority d'application', in Revue du Marché Commun, 1991, p. 872; influences the decision approving the project Magalhães, Rumo ao espaço comum informativo?, Coimbra, 1991, p. 30, Vercher Noguera, El medio ambiente y el dere- taken by the administrative body competent cho de aceso a la información, La Ley, 1992, p. 1078.

concerned with the relationship linking the the present proceedings. Moreover, it is in information to the protection of the environ­ my opinion altogether irrelevant for the pur­ ment. For the definition in the Directive to poses of its inclusion within the class of be satisfied, the data or other information in information to which the Directive refers, point must be produced or collected or pro­ that such information as a whole, which in cessed with the principal aim of protecting the present case could equally well be classi­ the environment or must at least be related fied as a 'measure', contains assessments of a 5 legal nature. Indeed, in this connection, I to the environment. would observe that the text of the Commis­ 6 sion's proposal for a directive contained a much more detailed list of 'information relating to the environment'. The list pro­ posed by the Commission began with the phrase 'all data, of a factual or legal nature, concerning ...'. This idea of listing data in the 14. Where the data in question satisfy both possession of public authorities has not dis­ criteria, we are, in my opinion, dealing with appeared from the text of the directive 'information relating to the environment' adopted by the Council. That institution, within the meaning of the Directive. The however, simplified the wording and, as I Directive itself swiftly goes on to give, mentioned earlier, made it all-embracing. purely by way of illustration, some examples The term 'measure' employed by the Com­ of data or activities which can fall within the munity legislature reflects the need to concept in question. Significantly, the word include within the acts governed by the which introduces that definition and which Directive even the most diverse forms in the Directive itself uses to identify the infor­ which administrative activity is carried on. mation that is the subject of the body of However, this does not mean that, as the rules laid down by it, is the adjective 'any'. defendant erroneously maintains, a 'measure' Such a formulation, which in fact employs in the sense intended by the Community leg­ terms whose accepted meaning is very broad islature corresponds solely to acts which and inclusive, cannot therefore be construed may have an impact upon particular legal in a restrictive manner. situations by regulating their effects. On close inspection, it can be seen that the Directive is not solely concerned with administrative measures in a technical sense, against which it is possible to bring a legal action or raise other forms of claim in accordance with the procedures prescribed by law. On the contrary, the 'measure' to 15. Thus, administrative acts of the type at which the Directive refers must here be issue also fall within the 'activities or mea­ given its true meaning, that is, the result of sures designed to protect' the environment, administrative action lacking in specified in so far as they constitute information gath­ characteristics. This holds true even where ered by public administrative bodies with the public authority's activity takes the form responsibilities for the protection of the of the production of instruments or docu- environment, such as the public authority in

16. In the case before this Court, the infor­ mation is in the possession of a body respon­ sible, inter alia, for protecting general inter­ ests of a higher order relating to the More specifically, the plaintiff maintains that protection of the environment when it exer­ the term 'preliminary proceedings' must be cises its own technical competence in the interpreted in the context of the sentence in matter of planning approval. This is how the which it appears. That sentence, thus read, matter was presented by the referring court provides for an exception only in the case of and on this point the parties are not in dis­ proceedings before a court. Thus, the plain­ pute. It follows from this premiss that the tiff maintains, the preliminary investigation information in the possession of the public proceedings referred to by the Directive fall authority in question meets both of the cri­ within the context of criminal investigation teria set out above: it constitutes a set of data proceedings preparatory to proceedings and it is produced for the purpose of envi­ before a court. In short, what is in point are ronmental protection. We are therefore administrative proceedings which precede clearly dealing with a measure designed to and are designed to lead to the imposition of protect the environment. a penalty.

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MECKLENBURG v KREIS PINNEBERG — DER LANDRAT

19. The Commission is of a different opin­ That interpretation is moreover also based ion. It interprets the exception in question in upon a linguistic comparison with the other the light of the seventh recital in the pre­ versions of the Directive and in particular amble to the Directive which provides that with the English ('preliminary investigation 'in certain specific and clearly defined cases, proceedings'), the Italian ('azione investiga­ it may be justified to refuse a request for tiva preliminare'), the French ('instruction information relating to the environment'. préliminaire'), the Spanish ('investigación The Commission considers that the excep­ preliminar') and the Portuguese ('investiga­ tion must therefore be construed narrowly, ção preliminar'). in conformity with the Court's case-law on derogations from the application of Commu­ nity rules. The Court has indeed already made it clear that a derogating provision 'may not be interpreted in such a way as to extend its effects beyond what is necessary to safeguard the interests which it seeks to 20. A further point raised by the Commis­ secure' and that 'the scope of the derogations sion in support of its argument relates to the ... must be determined in the light of the

8 — See Case C-116/91 Foster and Others v British Gas [1992] ECR I-4071 and Case C-335/94 Mrozek and Jäger [1996] 7 — Council Document no 6888/90, ENV 136, of 5 June 1990. ECR I-1573.

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The Commission accordingly concludes that the objective underlying the provision in 22. Now that this point has been clarified, it question is to exclude certain information remains to be determined which of the affecting the normal process of justice. On authorities required to comply with the the other hand, to permit information held in Directive are entitled to the benefit of the the context of the normal conduct of admin­ exception at issue. The answer, in all truth istrative procedures to be systematically evident enough, is that they are to be found withdrawn from the ambit of the Directive within the wide range of administrative would be to go far beyond the objective pur­ authorities. The exception at issue in the pro­ sued by the Community legislature. It fol­ ceedings can thus only relate to information lows, according to the Commission, that the held by administrative authorities which do provision at issue, on its true construction, not act in a judicial capacity. makes it permissible to exclude from the duty of communication information relating to preliminary enquiry proceedings which precede one or other of the types of pro­ ceeding mentioned immediately beforehand in the text of the provision in question. It is just as easy, next, to establish what information is concerned by referring, as the Commission has done, to the genesis of the provision and comparing the texts of the Directive as drafted in the various languages.

21. It is my opinion that the provision in question must be construed organically within the text of the Directive. However an

current judicial proceedings. It goes on to preparation of administrative measures and extend the exception to information relating other acts on the part of public authorities, to enquiries (including disciplinary enqui­ the Directive would lose the most important ries) and ends with the term at issue 'prelimi­ part of its substance and would be of no nary investigation proceedings'. The posi­ practical utility. If the Court were, per­ tioning of that term is decisive: what are chance, to go on to find in favour of the concerned are proceedings of a judicial or defendant when it submits that all adminis­ quasi-judicial nature or at least proceedings trative acts fall within the ambit of the provi­ which will inevitably lead to the imposition sion at issue, in that they are challengeable of a penalty if the offence (administrative or before a court, the Directive would then criminal) is established. contain an illogical and paradoxical syllo­ gism, since it would be de facto inapplicable to all the activities of public authorities whereas in a State based on the rule of law those activities are in any event subject to judicial control. Such an interpretation would, furthermore, conflict with the general In that context, the term 'preliminary inves­ principle of law which requires that legisla­ tigation proceedings' cannot but signify pro­ tive provisions be construed in such a way ceedings which are capable of constituting an that they can be vested with their full mean­ immediate, direct and functional prologue to ing and that they do not become in practice one of the other types of proceeding listed illogical or inapplicable. immediately before it. Such a reading does not, in my view, present any difficulty and finds confirmation in the origin of the provi­ sion which, as mentioned above, was inserted at the suggestion of the Economic and Social Committee in order to exclude from the duty of communication infor­ mation that is not formally the subject of judicial or quasi-contentious proceedings but which nevertheless constitutes the necessary prerequisite for them. In that regard, the 25. The line of interpretation I have fol­ example which the Economic and Social lowed finds support also, were it needed, in a Committee itself mentions in brackets '(... comparative reading of the different linguis­ proceedings involving the police and public tic versions of the Directive. As the Com­ prosecutors)', provides a striking confirma­ mission rightly pointed out, the expression tion and indeed, I dare to suggest, clear used in the German version of the Directive, proof of this. 'Vorverfahren', which is in itself somewhat misleading, clearly appears, when compared with the other language versions of the Directive, as necessarily referring to the group of activities which precede the other contentious or quasi-contentious proceed­ ings mentioned in the provision at issue. 24. If, to the contrary, one were minded to What is in point is essentially administrative ascribe to the term upon which the present acts which arise from the need to obtain dispute centres a broader meaning in order proof or to investigate a matter before the generally to exclude all procedures for the procedural phase properly so called has even

begun. In that sense, it is of no consequence in question and as to their unsuitability as a that the preliminary investigation proceed­ basis for deciding the matter before the ings are antecedent only to proceedings of a national court is wholly without merit. To genuinely judicial nature. The provision, dispel any doubt on this point, it will be suf­ even though it must be construed narrowly, ficient to note first of all that the Directive as required by the canons of interpretation imposed a deadline of 31 December 1992 for laid down by the Court in the case of Com­ the transposition of its provisions into munity provisions which derogate from pre­ national law, that is to say, the date earlier cepts of general application, is intended to than the one on which the facts of the case safeguard the interest of the administration occurred. Equally decisive, secondly, is the and the parties (public or private, as the case point that the obligation to provide infor­ may be) also in relation to an act connected mation relating to the environment is con­ with proceedings which may result in a pen­ tained in a provision the terms of which are alty or to any other act designed to bring to sufficiently clear and precise and constitute light the existence of offences, even if these an unconditional obligation. Those charac­ be of an administrative nature. teristics therefore satisfy the criteria which, 10 according to the case-law of the Court, must be met for the provisions in question to produce direct effects. Nor, in this connec­ tion, can the objection, as raised by the defendant, be taken that the direct effects of directives cannot apply as between private individuals. The doctrine developed by the Court in the matter of the 'horizontal' direct effects of directives would not, it is true, per­ mit the provisions of a directive to be relied Understood in this way, the exception in on in relationships between private individu­ question does not lend itself to systemati­ als where those provisions had not yet been cally removing from the authority of the or had been incorrectly transposed into Directive the procedural administrative national law. 11 However, in the present case, phase preparatory to the adoption of an the defendant does not possess the status of a administrative measure when the measure in 'private individual' as defined in this connec­ question does not have the particular conno­ tion by the case-law of the Court in similar tation of a penalty, to which I have referred 12 cases. We are concerned here with a public earlier. territorial body which is incorporated into the administrative structure of the State and with respect to which the provisions of the directive in point may, therefore, according to the doctrine established by the Court, be applied directly.

(2) The concept of 'preliminary investigation proceedings' within the meaning of the third indent of Article 3(2) of Directive 90/313/EEC includes proceedings before a court and contentious or quasi-contentious administrative proceed­ ings in the nature of a preliminary investigation or of an enquiry which pre­ cede the imposition of a penalty, or administrative proceedings designed to establish facts which are of significance for penal purposes or constitute an offence.

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