C-233/00

COMMISSION v FRANCE

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 14 January 2003 1

I — Subject-matter of the proceedings documents to be supplied (Article 3(3) of the Directive) and the obligation incumbent on the relevant public authority to respond to a person requesting information at the latest within two months and to give reasons for a refusal to provide the infor- 1. By the present action the Commission is mation requested (Article 3(4) of the Direc- seeking a declaration that by not correctly tive). transposing Article 2(a) and Article 3(2), (3) and (4) of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environ- ment 2 (hereinafter: 'the Directive') the French Republic has failed to fulfil its obligations under that directive and under the third paragraph of Article 249 EC.

II — Relevant legislation

(a) "information relating to the environ- ment" shall mean any available infor- mation in written, visual, aural or data-base form on the state of water, air, soil, fauna, flora, land and natural sites, and on activities (including those 2. Member States may provide for a which give rise to nuisances such as request for such information to be refused noise) or measures adversely affecting where it affects: or likely so to affect these, and on activities or measures designed to pro- tect these, including administrative measures and environmental manage- ment programmes;

— the confidentiality of the proceedings of public authorities, international relations and national defence,

...'.

— public security, 5. Article 3 provides:

— matters which are, or have been, sub ' 1 . Save as provided in this Article, judice, or under enquiry (including Member States shall ensure that public disciplinary enquiries), or which are authorities are required to make available the subject of preliminary investigation information relating to the environment to proceedings, I - 6630

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Information held by public authorities shall be supplied in part where it is possible to separate out information on items concern- ing the interests referred to above. 'Subject to Article 6, administrative docu- ments shall as of right be available to persons who request them, whether they are documents of the administrative auth- orities of the State, local authorities, public undertakings or bodies, even private-law bodies, responsible for the operation of a 3. A request for information may be re- public service.' fused where it would involve the supply of unfinished documents or data or internal communications, or where the request is 3 — Law No 78-753 of 17 July 1978 establishing various manifestly unreasonable or formulated in measures to improve relations between the authorities and the public and various administrative, social and fiscal too general a manner. provisions (JORF, 18 July 1978, p. 2851).

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8. Article 6 of that law in part reads: 10. Article 2 of Decree No 88-465 provides inter alia:

'The administrative authorities mentioned in Article 2 may refuse to allow consul- 'Failure by the competent authority to reply tation of or to provide an administrative within one month to a request to supply document when such consultation or provi- documents in accordance with Title I of sion would prejudice: Law No 78-753 of 17 July 1978, shall be deemed to constitute a refusal.

In the event of an express or tacit refusal, the applicant may make a reference to the commission established under Article 5 of Law No 78-753 of 17 July 1978 within two months of notification of the refusal or the — or, generally, secrets protected by legis- expiry of the period prescribed in the first lation.' paragraph of this article.'

III — Pre-litigation procedure and legal proceedings 16. The French Government replied by a letter of 25 June 1999 in which it disputed the infringement and reaffirmed its view that the Directive indeed was largely trans- posed into existing French administrative 12. Under Article 9(1) of the Directive, law, albeit not by specific implementing Member States are to bring into force the provisions. It none the less promised to laws, regulations and administrative provi- look into the possibilities for improving sions necessary to comply with the Direc- access to information relating to the tive by 31 December 1992 at the latest. environment.

17. By letter of 19 January 2000 the French 13. Under cover of a letter of 28 March Government notified the Commission that 1991 the French Government forwarded a the drafting of a law which would intro- copy of Law No 78-753 and of Decree duce various amendments into environ- No 88-465 by way of implementing meas- mental law, including amendments on ures. access to environmental information, was under way.

14. Since the Commission took the view — even after its ensuing correspondence with 18. Given that it did not subsequently the French authorities — that the Direc- receive a copy of the notified draft law, tive had not been correctly transposed by the Commission — by an application those provisions, it sent a letter of formal lodged on 8 June 2000 and registered at notice on 17 November 1994 to the French the Court of Justice on 13 June 2000 — Government requesting it to submit its brought an action against the French observations on that matter within two Republic before the Court of Justice under months. Article 226 EC.

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tions on the general positions adopted by 26. New provisions implementing the the parties and on the background to these Directive have in the meantime entered proceedings. into force in France. 8 Although the Com- mission conceded at the hearing that the defects in transposing the Directive alleged to exist in the first four pleas had been eliminated as a result of the adoption of those provisions, it at the same time stated that it still intended to continue with the proceedings before the Court because it was clear from the observations of the 24. In the present infringement proceedings French Government that, the above posi- the French Government considers that the tive development notwithstanding, there obligations under the Directive are already was still some legal ambiguity as regards fulfilled by the general legal framework in the contested issues. force in relation to access to administrative documents and that specific implementing measures are consequently unnecessary. It proceeds in particular on the principle that a national legal situation consistent with Community law can be guaranteed, where 27. It is appropriate at this stage to point necessary, by requiring that national auth- out that the Court has consistently held orities interpret the national legislation in that the Commission enjoys discretion to accordance with the Directive. decide whether or not to bring proceedings under Article 226 EC and to continue with them, 9 and that there can still be an interest in pursuing the action even where the default has been remedied after the time-limit given in the reasoned opinion has expired. 10

held that 'the question whether a Member trative document' used in Article 2 of Law State has failed to fulfil its obligations must No 78-753 falls short of that covered by the be determined by reference to the situation term 'information relating to the environ- prevailing in that Member State at the end ment' within the meaning of the Directive of the period laid down in the reasoned because, even following its broad interpre- opinion and that the Court cannot take tation by the Commission d'accès aux account of any subsequent changes.' 11 documents administratifs (French Commis- sion on Access to Administrative Docu- ments, hereinafter: the CADA), it includes only those documents held by the auth- orities which relate to the activity of the public service or an activity of the public authorities. Thus, it adds, many non-legis- lative decisions by the authorities, in the B — First plea alleging the incomplete area of private-sector management or pri- transposition of the combined provisions vate-law contracts between public auth- of Article 2(a) and Article 3(1) of the orities and private persons for example, do Directive (definition of 'information relat- not fall within the scope of that provision. ing to the environment') The Commission submits that the judgment in Case C-321/96, 12 according to which a broad interpretation should be applied to the term 'information relating to the 1. Submissions of the parties environment', shows that the Directive in fact also covers documents not necessarily connected with an activity of a public authority.

33. The French Government submits that 34. The French Government also cites Case the Commission could not adduce evidence C-132/91 14 according to which laws, regu- of any 'information relating to the environ- lations and administrative provisions trans- ment' which was not covered by Law posing a directive must be understood as No 78-753, nor could it point to a single meaning the laws, regulations and adminis- instance where an item of information trative provisions as they are interpreted by relating to the environment had not been the courts. Although it concedes that the recognised as an administrative document CADA is not a judicial institution with the within the meaning of that law. It argues authority to give binding interpretations of that since environmental information is the law, it underlines the significance of connected with the environment and there- that body's role in determining and inter- fore with environmental protection, it is in preting the law to be applied in the any event more likely by its nature to be individual circumstances. contained in measures associated with the exercise of public authority. Consequently, such information without doubt had to fall within the definition of 'administrative document'. Under French law the concept of the administrative document was con- 2. Assessment strued more broadly than the concept of the administrative measure and additionally covered measures drawn up under private law by the authorities and measures held by the authorities but issuing from private persons, provided that those measures were in some way connected with administrative 35. In the light of the argument raised by activities or with public functions delegated the French Government that the Commis- to private persons. The sole restriction introduced by that concept concerned 1 3— C a s e C-343/95 Cali & Figh [1997] ECR I-1547, para- documents held by an authority acting as graphs 22 and 23. a private person, which were not in any 14 —Joined Cases C-132/91, C-138/91 and C-139/91 KATSIKAS and Others v Kmistantanidis and Others [1992| ECR way connected as described above. In most I-6577, paragraph 40.

38. In the present case, the French Govern- ment has put before the Court various administrative provisions of a general nature which were not adopted for the 36. The Court has indeed consistently held specific purpose of transposing the Direc- that, in proceedings under Article 226 EC tive. As both parties to the proceedings for failure to fulfil an obligation, it is in have rightly pointed out, the Court has principle incumbent on the Commission to consistently held that transposing a direc- prove that the obligation has not been tive into national law 'does not necessarily fulfilled and to place before the Court the require its provisions to be reproduced evidence necessary to enable it to determine verbatim in a specific, express law or whether that is the case. 15 However, in regulation; a general legal context may, order to prove that the transposition of a depending on the context of the directive in directive into national law by specific question, be sufficient ...'. 19 legislation is insufficient or inadequate, it is not necessary to establish the actual effects of that legislation, nor is it necessary to wait for the application of that legis- lation to produce harmful effects. 16 On the contrary, it is the wording of the legislation 39. Nevertheless, such a general legal con- itself which determines whether the trans- text is sufficient only 'provided that it does position in question is insufficient or defec- effectively ensure the full application of the tive. 17 directive in a sufficiently clear and precise manner.' 20

43. That case-law indicates that, where a 41. That legal framework, in my view, does national implementing provision is not meet the requirements of legal clarity assessed, it must be afforded the same and legal certainty to be laid down in the scope as that arising from the case-law transposing of a directive. Indeed, the established by the national courts. 25 Court has defined those principles, holding for instance that Member States must establish a 'specific legal framework' in the area in question 21 and must implement directives by means of provisions of 'un- 44. However, case-law established by questionable binding force'. 22 national courts cannot be a substitute for implementing provisions. Thus, the Court held in Case C-144/99 that the requirement of legal certainty cannot be met 'even where the settled case-law of a Member 42. It cannot be inferred from the case-law State interprets the provisions of national cited by the French Government, according law in a manner deemed to satisfy the to which the scope of national laws, regu- requirements of a directive'. 26 lations and administrative provisions must be assessed in the light of their interpre- tation by the national courts, 23 that the practice of a body such as the CADA giving interpretations is sufficient for national 45. On that basis, it cannot be sufficient to legislation to be deemed appropriate imple- transpose the concept of 'information relat- menting measures. After all, the case-law ing to the environment' by reference to the primarily addresses no more than the method of interpretation practised by the fundamental allocation of functions CADA. between the Court of Justice on the one

46. Moreover, the French Government has the person concerned. 28 As I have already itself stated that the CADA is a consultative commented in this regard in my Opinion in body the recommendations of which have Case C-145/99, 29 more stringent require- no legal force. For that very reason, as the ments may even be imposed on specific Commission has correctly concluded, the target groups. However, in accordance CADA's interpretations cannot be relied on with the sixth recital in the preamble to transpose the concept of 'information thereto, the Directive is designed to guar- relating to the environment' contained in antee to any natural or legal person free the Directive with 'unquestionable binding access to available information on the force' and in a manner that meets the environment held by public authorities. Its requirement of legal certainty. object is precisely to improve public access to information, hence its focus on a very broad target group of people who do not have specialised knowledge. It must there- fore be transposed in an appropriately clear and unequivocal manner.

47. The conclusion that that manner of transposing Article 3(1) of the Directive does not meet the requirements of legal clarity and legal certainty is all the more 49. However, even if the French legal valid in this case as a relatively stringent framework on 'information relating to the criterion must be applied in this regard. environment' within the meaning of Article 2(a) in conjunction with Article 3(1) of the Directive were regarded as sufficiently clear and precise, it still does not fully transpose the substance of that provision.

51. However, as the Court already found in cerning the incomplete transposition of the Case C-321/96, 3 0the wording of combined provisions of Article 2(a) and Article 2(a) of the Directive makes it clear Article 3(1) of the Directive is well that the Community legislature intended to founded. make the concept of 'information relating to the environment' a broad one. It should also be noted that the wording of that provision also includes the most diverse forms of information which, rather than relating to measures promoting environ- mental protection, in fact refer simply to C — Second plea alleging the incorrect the state of the environment: the provision, transposition of the first subparagraph of for example, covers that kind of document Article 3(2) of the Directive (exceptions to of a general nature. Contrary to the argu- the obligation to communicate infor- ment put forward by the French Govern- mation) ment, it cannot ultimately be inferred from the judgment in Case C-343/95 31that the concept in question is intended to include only information which is connected at 1. Submissions of the parties least in a relatively broad manner with acts in the exercise of public authority. In that judgment the Court simply held that sur- veillance involved with environmental pro- tection is typically connected with the 54. By that plea the Commission is claim- exercise of powers by a public authority. 32 ing that Article 6 of Law No 78-753 actually allows a request for access to information relating to the environment to be refused where the consultation or dis- closure of a document would be prejudicial to 'secrets protected by legislation'. It 52. The Commission has, therefore, rightly argues that an exception of that kind is objected that the French concept of the not provided for in the first subparagraph administrative document is narrower than of Article 3(2) of the Directive and is that of 'information relating to the environ- therefore contrary thereto. ment' within the meaning of the Directive.

56. The Commission finally notes that the 58. Article 1 of the Directive lays down the special derogating provisions cited by the principle of freedom of access to infor- French Government, to which the ground mation. However, under the seventh recital of refusal relating to secrets protected by in the preamble to the Directive, it may be law refers, are in themselves already justified 'in certain specific and clearly covered by the exceptions listed in the defined cases' to refuse a request for Directive, thus meaning that the general information relating to the environment. ground of refusal in question is itself The interests for the protection of which a redundant and can only contribute to legal Member State may refuse access to infor- uncertainty. mation on the environment are listed exhaustively in Article 3(2) of the Directive and must be interpreted strictly as deroga- tions from the general rules laid down by the Directive. 33 Those grounds for refusal are, moreover, decisive as regards the scope of the right of access to information which 57. The French Government, on the other is conferred on individuals by the Directive, hand, takes the view that the exceptions and must therefore be sufficiently clear and under French law are not designed to be precise to enable those individuals to know any broader in scope than those provided the precise extent of their rights and to rely for by the Directive. A general category of on them. 34 exception, relating to 'secrets protected by legislation', was necessary on account of the many French laws and special arrange- ments applying to the confidentiality of data in various areas often unrelated to the environment. Each of those special arrange- ments on confidentiality was drawn up in a 59. It follows that the national provisions very precise manner. The Commission transposing Article 3(2) of the Directive could not single out any one of those exceptions which did not comply with the Directive. The French Government refers to 33 — Cf. Mecklenburg (cited in footnote 12), at paragraph 25; for the grounds of refusal under Article 3(3) of the the fact that there have been no complaints Directive, see point 70 et seq. below. thus far by individuals in this area. It none 34 — Compare, for example, Case C-217/97 Commission v Germany [1999] ECR I-5087, paragraphs 32 to 35.

62. On that basis, it can be established that 65. Since the Court has already held in the Commission's plea that the first sub- Case C-217/97 that the partial communi- paragraph of Article 3(2) has been incor- cation of information under the second rectly transposed is also well founded. subparagraph of Article 3(2) of the Direc-

35 — Cf . Commission v Germany (cited m footnote 18), at paragraph 9, and observations or the Advocate General at 36 — Commission v Germany (cited in footnote 34), at para- point 35 et seq. above. graphs 33 and 35 .

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68. The French Government does not dis- pute the absence of specific implementing 1. Submissions of the parties provisions. It has also conceded that it is necessary to provide for the possibility to refuse a request on the grounds referred to in Article 3(3) because it does not rule out the French authorities having regard to those grounds for refusal. It considers, however, that the general legal framework 66. By its fourth plea the Commission is in the form of Law No 78-753 — that is to claiming that, unlike Article 3(3) of the sav, as it is interpreted by the Conseil Directive, the French legislation does not d'État — lays down sufficiently clear and provide that a request for access to infor- transparent rules governing the possibility mation may be refused where it would open to the public authorities to refuse a involve the supply of unfinished documents request on those grounds. As regards the or data or internal communications, or grounds for refusal, it refers in each where the request is manifestly unreas- instance to a judgment of the Conseil onable or formulated in too general a d'État. It adds that, Article 3(3) of the manner. Directive is predominantly concerned with the granting of a possibility to the public authorities — as is already established on the basis of the case-law of the Conseil d'État —, not with the conferring of rights on individuals. It concludes that mere 67. The Commission admittedly concurs codification of that possibility does not with the French Government that refusing a contribute to safeguarding the rights of request is a possibility of which Member individuals.

72. The dispute in the case at issue does not 37 — Cf. in particular Comnussion v Netherlands (cited in footnote 26) at paragraph 2 1 , and observations of the therefore cover the necessity per se of Advocate General in relation to the first plea at points 43 transposing Article 3(3) of the Directive; and 44 above.

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does govern the rights conferred on the that decision within two months at the individual under the Directive and must latest. therefore be transposed into national law in a sufficiently clear and precise manner to enable a person requesting information to ascertain the precise extent of his right of access to information. 38 However, that 78. The Commission levels its criticism legal certainty cannot be guaranteed by specifically against the mechanism of the transposition based primarily on the case- tacit refusal enshrined in Article 2 of law of the Conseil d'État. Decree No 88-465 which provides that where a public authority remains silent for more than one month following a request for information or for more than two months following recourse by the person 76. It therefore follows that the allegation requesting the information to the CADA, in of failure to transpose the provisions of both cases the silence is to be regarded as a Article 3(3) of the Directive is correct. refusal of the request. The possibility, Consequently, the fourth plea raised is well introduced by Law No 79-587, sub- founded. sequently of obtaining — within one month — the written reasons for such tacit refusals and of replacing those reasons with others drawn up by the CADA could not, in the Commission's view, ensure that the obligations under Article 3(4) of the Direc- tive were met precisely because the time- limit prescribed by that provision would in F — Fifth plea alleging the defective trans- the meantime have expired. Again the position of Article 3(4) of the Directive Commission refers to the absence in the (obligation to give reasons for a refusal national provisions of legal certainty and within two months) clarity for individuals.

80. The Commission furthermore refers to requested. It consequently argues that the the fact that the reasons on which a legal statement of reasons does not have to measure is based must, in accordance with coincide with the refusal or be notified the case-law of the Court, in principle be within the two-month period. notified along with the decision itself. 39 The reasons must in any event be given within the prescribed period of two months. 84. The French Government refers to the fact that only the basic terms and con- ditions governing access to information are considered to be laid down in Article 1 of the Directive and that it is for the Member 81. Should it on the other hand be con- States to draw up the arrangements by sidered, adopting the view held by the which information is to be made available. French Government, that the obligation to Under the principle of procedural auton- respond within two months is independent omy of Member States, it argues, there is of the obligation to give reasons, such an no obligation to ensure that decisions and approach would imply that there was no the reasons on which they are based issue time-limit for fulfilling the obligation to simultaneously. state reasons. The Commission also rejects an approach of this kind in the light of the principles of good administration.

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86. In its written observations, which 2. Assessment should henceforth be regarded as pleas in the alternative, the French Government argued that the Commission had misunder- stood Article 7 of Law No 78-753 as amended by Decree No 88-465. That provision very clearly provided, according 88. The French Government bases its view to the French Government, that the refusal that the legislation it has submitted before of a request for information had to be the Court meets the requirements of issued in the form of a written, reasoned Article 3(4) of the Directive primarily on decision. The possibility of a tacit decision the fact that obligations which are indepen- under Decree No 88-465 arose only where dent of one another are laid down in the the public authority concerned failed, two sentences of that provision respectively through negligence, to issue an appropriate and that, consequently, only the response, decision, thereby failing to meet the above- not the reasons, has to be communicated mentioned requirement. The purpose of within two months. that mechanism was thus to make a legal remedy available to the individual con- cerned. The public authorities were not therefore entitled to refuse a request for information without stating the reasons for that decision; on the contrary, it was the 89. That interpretation, in my view, is individual concerned who found himself based on an unjustified distinction between entitled to legal redress against the auth- the first and the second sentence of orities' failure to act. The French Govern- Article 3(4) of the Directive and I consider ment none the less concedes that the mech- it inappropriate in the light of the spirit and anism of the tacit decision may result in the purpose of that provision. adoption of unreasoned decisions. 42

92. The time-limit set in the first sentence of Article 3(4) of the Directive applies therefore in relation to responses by the public authorities both granting and refus- 95. In that regard it should be assumed that ing the requested access. That fact alone the abovementioned requirement of legal clearly demonstrates that the second sen- certainty also arises in relation to the actual tence of that provision cannot be a measure reasons for a refusal, especially where entirely independent of the first sentence. account is taken of the fact that Article 4 On the contrary, as regards refusing a of the Directive provides for the possible request for information — a matter review of both positive and negative already covered by the first sentence — responses issued by the public authorities the second sentence additionally provides and that the lawfulness of those responses that the reasons for that refusal must be must be assessed by reference to the reasons given. on which they are respectively based.

101. However, the method of transposition 98. The Commission was therefore right to chosen by a Member State in any event proceed on the assumption that the refusal must actually ensure the full application of of a request for access to information must the directive in a sufficiently clear and in any event be communicated together precise manner, thus enabling the persons with the reasons on which that decision is affected by the directive to ascertain the full based at the latest within two months. extent of their rights. 44

104. Even though the French Government Therefore, the obligation to give reasons maintains that the public authority is in under Article 3(4) of the Directive is not principle required, on the basis of Article 7 properly transposed into national law by of Law No 78-753 as amended by Decree that provision either. No 88-465, to give reasons for its refusal of a request for access to documents, it has still acknowledged that the mechanism of the tacit decision contained in that decree, to which the Commission predominantly 107. Finally, the French Government has objects, may lead to unreasoned refusals. also maintained that the provisions Consequently, that legislation is in itself described do not necessarily result in delays incapable of ensuring without any doubt in the notification of reasons. It explained that reasons are given for refusals by the that individuals could, on the basis of Law public authorities and, indeed, that they are No 78-753 and Decree No 88-465, clearly given within the time-limit of two months. establish the existence of a tacit refusal after expiry of one month and subsequently request under Article 5 of Law No 79-587 notification of the reasons within one month, thus concluding that it was possible to obtain the reasons required by Article 3(4) of the Directive within two 105. However, the French Government has months. referred in that context to Article 5 of Law No 79-587 under which, at the request of the person concerned, the reasons for a tacit refusal are to be notified to him within one month [of that request]. 108. Irrespective of the fact — as I have just established above — that the provi- sion concerned requires that an (additional) request be made and thus imposes on the person requesting information obligations to cooperate which are not laid down in the Directive, it is also insufficient to create a mere possibility for that person to obtain a 106. In this regard it is sufficient to point reasoned response within the two-month out that the obligation of a public authority period prescribed. On the contrary, there to send the reasons for its tacit refusal has to be a clear obligation under the within one month to the recipient of that national implementing provisions to give refusal in accordance with that provision reasons within two months for the refusal arises only upon a request made by that of a request for access to information on very recipient. Under Article 3(4) of the the environment. Directive, however, Member States must ensure that both the refusal of a request for information on the environment and the reasons on which that decision is based issue in any event within two months without the person requesting the infor- 109. It may therefore be stated overall that mation having to take further action. the French legislation does not ensure in a

(2) order the French Republic to pay the costs.

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