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2. The Directive is motivated by the pre- sumption set out in the third recital in the preamble that 'access to information on the environment held by public authorities will improve environmental protection'. Its objective, as declared in Article 1, is 'to ensure freedom of access to, and dissemi- (b) The German provisions nation of, information on the environment held by public authorities and to set out the

* Original language: English. 3. Germany sought to transpose the Direc- 1 — OJ 1990 L 158, p. 56. tive by means of the Umweltinformations-

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gesetz (Law on Information Relating to the II — Analysis Environment, hereinafter 'UIG') of 4 July 1994. 2The following aspects of the UIG are at issue:

(a) The exclusion of judicial bodies

'possessing information' in Article 2(b) are possibility that courts, or prosecuting or cumulative and that the obligations of the disciplinary authorities, could have envi- Directive do not apply to a public admin- ronmental responsibilities outside their judi- istration which, though in possession of cial activities, a possibility which does not relevant information, does not exercise arise in Germany, as information on crim- responsibilities 'relating to the environ- inal proceedings is passed on to the statis- ment'. tical offices of the Länder rather than being collected by the courts themselves. In Germany's view, Article 2(b) excludes from the Directive public authorities which have responsibilities, and possess information, relating to the environment by virtue of the fact that they exercise a judicial capacity; environmental information acquired by 5. In the Commission's view, the Directive courts is not accessible to the public is based on a functional, rather than an whether during or after their judicial activ- organic, conception of public authorities. ities. Courts, prosecuting and disciplinary autho- rities, which have access to information on the environment in the exercise of their administrative functions are therefore sub- ject to the Directive, whereas they are excluded from the scope of the UIG. Courts may, for example, have statistics on the state of the environment, on acts which cause damage to the environment or on the number of prosecutions for breaches of laws against pollution. While it may be true that courts do not produce, and may not have available, such information, this does not exclude the possibility that they may exercise responsibilities relating to the environment outside their judicial activ- ities. 7. I agree with both the Commission and Germany that Article 2(b) of the Directive adopts a functional approach to the defini- tion of 'public authorities'. It may be the case that certain bodies which normally act in a judicial capacity could also be called upon to exercise 'responsibilities relating to the environment', in which case they would 6. While not disputing that the Directive fall within the ambit of the Directive in adopts a functional approach to the notion respect of environmental information in of public authorities, Germany contends their possession as a result of those respon- that this refers to authorities which have sibilities. However, I am not satisfied that responsibilities in the environmental field, the Commission has shown that this is the to the exclusion of those which act 'in a case in Germany, or that German courts do judicial or legislative capacity'. The Com- in fact possess information on the environ- mission's argument concerns the marginal ment in the exercise of any functions other

11. Germany contends that the sole possi- (b) The partial supply of information ble interpretation of Paragraphs 7 and 8 of the UIG is that they define the situations in which access to information must be refused, and that where, and in so far as, no grounds for refusal exist, Paragraph 4 of 9. After listing a number of grounds on the UIG provides for a right of access, which Member States may, but are not which by implication includes the supply of obliged to, refuse access to information, the information from which those parts cov- second subparagraph of Article 3(2) of the ered by the exceptions have been with- Directive provides that '[information] held drawn. It was not therefore necessary by public authorities shall be supplied in expressly to provide for the right to the partial supply of information in the UIG.

3 — Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6. 4 — Case C-58/89 Commission v Germany [1991] ECR 1-4983.

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Moreover, the German courts are obliged der Dauer') of certain procedures and to interpret the UIG in the light of the whenever there is reason to believe that Directive, in accordance with the case-law ('wenn zu besorgen ist') disclosure of of both the Court of Justice and the information may have negative conse- Bundesverwaltungsgericht (Federal Admin- quences for the environment. Para- istrative Court). 5 graph 8(1) provides that the right does not exist in so far ('soweit') as the protec- tion of personal information would be affected or the protection of intellectual property would oppose disclosure.

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concerned are made fully aware of their 16. At the oral hearing, the agent for rights', or, in the case of public authorities, Germany expressly conceded the Commis- their duties, as required by the third sion's complaint under this head, in the paragraph of Article 189 of the EC light of the judgment in Mecklenburg. That Treaty. 8 In such circumstances, Germany this matter has effectively been decided cannot, in my view, be said to have ensured does not deprive the Commission's com- freedom of access to such partial informa- plaint of its raison d'être; as the Court tion. pointed out in Commission v Germany, it is only in infringement proceedings that it can reach a formal finding that a Member State has failed in its obligations, and a 'formal finding is a prerequisite for the initiation, where appropriate, of the procedure pro- vided for in Article 171'. 10 I therefore propose that the Court grant the Commis- (c) The scope of preliminary investigation sion the declaration it has sought on this proceedings ground.

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applicable to Federal authorities only. They 19. The Commission has suggested that, allow the administration to charge, apart because of its potentially dissuasive effect, from general costs, between DEM 50 and Article 5 should be considered an exception DEM 1 000 for the provision of detailed and for that reason should be interpreted written information and between DEM 20 very strictly. While I agree, for reasons and DEM 10 000 for the supply of infor- given below, that the cost of the supply of mation depending essentially on the information can indeed have an impact on amount of time expended in providing such the exercise of the rights given, I do not supply. These charges may be reduced for consider that this provision can be treated reasons of equity and if the information has as a derogation. Article 5 is rather in the no economic value. nature of a limitation on the discretion of the Member States in laying down the conditions for the exercise of the right of access. The extent of that limitation must be evaluated on the basis of an interpreta- tion of this provision in its context.

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matter, national law applies. The German general scheme and purpose of the Direc- rules do not prevent the access to informa- tive, and of the context in which it is used. tion required by the Directive. In any case, As already noted, the Directive proceeds the amount would in practice be reduced, upon the basis that access to environmental or even waived, for reasons of equity. information will 'improve environmental protection'. Its primary objective is 'to ensure freedom of access to ... [such] infor- mation', and it seeks to achieve this end by obliging the Member States to ensure such information is effectively 'made availa- ble ... to any natural or legal person at his 21. The argument regarding Community request without his having to prove an competence does not seem particularly interest'. In the light of this objective and relevant, since Germany has not challenged the means chosen to achieve it, the question the validity of Article 5. In any event, of whether the charges for the supply of the Germany accepts that the Directive may information are 'reasonable' must be limit the charges and costs imposed in so judged from the perspective of the member far as they are unreasonably high and liable of the public requesting the information, to impede access to information. rather than from that of the public autho- rity. While it does not expressly preclude a Member State levying a charge for the time and effort of public officials, such an approach seems to me to be fundamentally incompatible with the principal features of the Directive. 22. As the Court noted in Mecklenburg, 'the need for a uniform interpretation of Community directives makes it impossible for the text of a provision to be considered, in case of doubt, in isolation; on the contrary, it requires that it be interpreted and applied in the light of the versions existing in the other official languages'. 11 Despite the variations, the different ver- sions of Article 5 have in common the idea that the citizen may only be charged a reasonable amount for the supply of infor- mation.

access to information held by public autho achievement of the very objectives of the rities, where the benefits are of a more Directive. Unlike most other categories of general and intangible character, and a publicly held information, the likely cost right of access to administrative informa will inevitably have a direct bearing on the tion for those who have a direct interest in extent to which members of the public will 13 its disclosure. In particular, the compar use the right of access given to them under ison relied upon by Germany between national implementing provisions; requir access to environmental information and ing the individual seeker of information to the provision of other administrative infor bear what is effectively the entire cost of mation governed by the Verwaltungskos processing his request would amount to tengesetz of 23 June 1970 14 seems to me to restricting the enjoyment of the right of be misplaced. This Law is based on the access, in practice if not in law, to those principle of equivalence, that is that there who have a direct interest in the informa should be a reasonable relationship tion, contrary to the clear exclusion of the between the charge, taking into account need for such an interest. the efforts of the administration, on the one hand, and the importance, the economic value and any other interest of the appli cant, on the other hand. Since access to environmental information is in the public interest, it follows that the public autho

25. In restricting the amount of any fee or judicial review of the amount of the charge to reasonable costs or a reasonable charges, as it did in respect of the refusal amount, the Directive recognises that or failure properly to reply to a request. unreasonably high charges would have a Secondly, such an approach would contra dissuasive effect on the exercise of the right dict the clear intention set out in Article 1 which could, in turn, undermine the of the Directive that the Member States should organise their administrative ser vices so as to 'ensure freedom of access 12 — The importance of which has subsequently been recognised at Community level (see Case C-58/94 Netherlands ν to .

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Under this view, a member of the public spot or by having a copy sent at his own could be asked to cover the travel and expense; the fee will not exceed a reason- subsistence costs, as well as the time spent, able amount'. 15 In implementing the Code, for an official to go from, to take a both of these institutions, and most of the hypothetical example, Kiel to Munich, in other Community institutions and ancillary order to deal with a request submitted in bodies which have adopted rules on access the former town relating to information to their documents inspired more or less centralised, for the convenience of the closely by the provisions of the Code, have German administration, in the latter. That adopted a fee based on photocopying an individual should be required to bear charges. 16 While it is true that these these costs, even in part, might well seem provisions post-date the Directive by some 'reasonable' to the public authorities; I find years, it is also clear that the thinking of the it hard to conceive that it might be so Council and the Commission, as reflected viewed by the applicant for information or in the wording of the Code of Conduct and that the Directive intended he should bear the content of the implementing decisions, such costs. Thirdly, several provisions of bears a distinct resemblance to that of the the Directive demonstrate that public original Commission proposal which authorities are required to undertake became the Directive, and which provided important tasks relating to the environment that '[access] to information contained with obvious cost implications. Article 7, in ... written documents ... shall be ... for example, obliges Member States to either by consultation free-of-charge on publish periodic descriptive reports con- the spot or by the issue of copies, in which taining 'general information ... on the state case the applicant shall be charged the of the environment'. Article 3(1) requires actual cost of reproduction'. 17 them to 'define the practical arrangements under which such information is effectively made available'.

as many as 50 very detailed questions. the supply of unfinished documents or data Furthermore, it would prevent the Member or internal communications' or which is States from taking account of the difference 'manifestly unreasonable'. I do not con- between information which can be used for sider, however, that the fact that a request is commercial ends, and that which is of little detailed means that it is prima facie unrea- value, and of the difference between infor- sonable, or as going to justify the inclusion mation concerning old projects, which may of manpower costs in the charge levied for require considerable mobilisation of its processing; after all, the Member States administrative resources, and that which are also entitled under the same provision is digitalised, and, presumably, rather more to refuse any request which is 'formulated easily accessible. in too general a manner'. Furthermore, Article 7, which requires the periodic pub- lication of general information on the state of the environment, appears to indicate that individual requests should, in principle, be on questions of detail. In my view, the Directive does not impose unreal, excessive or unreasonable obligations on the Mem- 29. In my view, nothing in the Directive ber States. The environmental information would justify the distinction between to be supplied is what is available and detailed and less detailed requests for actual, not merely historic or theoretical, information on which Germany seeks to and Article 5 should be interpreted accord- rely. The Directive applies to 'any available ingly. information in written, visual, aural or data-base form on the state of water, air, soil, fauna, flora, land and natural sites, and on activities (...) or measures adversely affecting, or likely so to affect [or protect] these', without distinguishing between the level of detail of the information. Further- more, it may be that only the provision of detailed information in many circum- stances will contribute to the achievement of improved environmental protection.

32. The access of the citizen to information covered; Paragraph 10(1), second sentence, on the environment intended by the Direc- of the UIG establishes that the charges tive is, in my view, the recognition of a should cover probable costs, and therefore right, not the provision of a service, the does not limit these to reasonable costs as exercise of which is, furthermore, in the required by Article 5 of the Directive. The public interest. It is therefore both concep- Commission further considers the possibi- tually and legally incorrect to subject such lity allowed under the German provisions exercise to the payment of a fee which is that a charge be made when a request for intended to cover, at least in principle, all information is refused to be contrary to the costs incurred by the public authorities, Article 5. as distinct from the cost element arising directly as a result of the individual request. I am of the opinion that Article 5 should be interpreted as allowing the Member States to charge either a standard scale of fees, which need not be based directly on the direct costs, or a charge based directly on such costs; in neither case may the fee or the charge exceed an amount which is 34. It follows from the interpretation of equivalent to reasonable, direct costs, or be Article 5 I have suggested above that I do such as to permit the charging out of part not consider that the Member States may of the cost and time of a public authority in impose a fee for the supply of environ- performing a public duty. mental information covering (part of) the general overheads of the administration. Nor do I find any support in the Directive for the distinction upon which the Com- mission relies between 'exceptional' and other cases, apart from the possibility allowed under Article 3(3) to refuse 'mani- festly unreasonable' or excessively general requests which has been noted above. Moreover, the Commission's suggested reli- ance on the rather vague criterion of a 'great deal of time' could lead to consider- 33. This does not conclude the question of able uncertainty in an area where legal whether the Commission should succeed on certainty clearly may have a significant the first branch of its complaint under this impact on the effectiveness of the measure. heading. The Commission maintains that a charge may be levied in exceptional cases, when the search, collation, evaluation and sorting of information which is not other- wise accessible requires a great deal of time. The charge must not therefore be prohibi- tive and must be at a level which the public can afford. According to the Commission, the levels at which the charge may be levied 35. As the Court must respect the limits of under the German provisions are such that the Commission's action, as defined in the they exclude access to the information pre-contentious phase and the application,

it may not, in my view, declare Germany to 37. I agree with the Commission that both be at fault simply because its provisions on the wording of Article 5 and the objective the charging of costs allow the administra- of the Directive militate against the tion to charge a fee in addition to direct approach adopted by Germany. On this costs. On the other hand, the Commission point, the language versions seem to be should be granted the declaration it concordant; the German text of Article 5 requests under the first branch of this head allows a charge to be imposed in respect of of complaint, in so far as the German the communication of information ('für die provisions, in allowing for a fee to be Übermittlung der Informationen'), rather charged in all cases in respect of the time than official action ('Amtshandlungen') in expended by public officials treating respect of a request, as in Paragraph 10(1) requests for information on the environ- of the UIG. Under Germany's rather literal ment, fail to ensure that the total amount interpretation of Article 5, the Member charged to the citizen for the supply of such States would not even be obliged to ensure information does not exceed a reasonable that a charge imposed where information cost. was refused did not exceed a reasonable amount. More significantly, however, it is the objective of the Directive, as defined in the preamble and Article 1, and its general scheme, which I have examined at length above, which lead me to conclude that the Directive would not permit a Member State to impose a charge for refusing a request for information. I therefore propose that 36. The second branch of this head of the Commission be granted the declaration complaint concerns the possibility impli- it has sought in respect of the second citly allowed under Paragraph 10(1) of the branch of this head of complaint. UIG and the implementing regulation for the administration to impose a charge in cases where the request is refused. Ger- many argues that the Directive does not restrict the liberty of the Member States to 38. If the Court were to follow my recom- impose a charge when a request for infor- mendations on the merits, the Commission mation is refused. At the hearing, the agent would have succeeded in most of its for Germany suggested that, if a fee could submissions. In those circumstances I be charged for supplying information, it would recommend that Germany be could equally be charged when the infor- ordered to pay the costs of the action, as mation was refused. the Commission has requested.

— by failing to restrict the derogation allowed by Paragraph 7(1)(2) of the Umweltinformationsgesetz of 4 July 1994 to administrative procedures which immediately precede a contentious or quasi-contentious procedure and arise from the need to obtain proof or investigate a matter prior to the opening of the actual procedure; and

— by failing to ensure that the total amount charged to the applicant in respect of the supply of environmental information does not exceed a I-5103

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reasonable cost, and by allowing public authorities to impose a charge where a request is refused;

the Federal Republic of Germany has failed to comply with its obligations under the third indent of the first subparagraph and the second subparagraph of Article 3(2), and Article 5, of Directive 90/313/EEC;

(2) Order the Federal Republic of Germany to pay the costs.