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data-base form on the state of water, the label of [the products in question] that air, soil, fauna, flora, land and natural they were obtained by genetic modification sites, and on activities (including those techniques' (second recital). That being which give rise to nuisances such as established, the regulation seeks 'to ensure noise) or measures adversely affecting, that the final consumer is informed of any or likely so to affect these, and on characteristic or food property... which activities or measures designed to pro- renders a food or food ingredient no longer tect these, including administrative equivalent to an existing food or food measures and environmental manage- ingredient' (ninth recital). ment programmes'.

4. Regulation No 1139/98, for its part, introduces harmonised labelling require- ments for certain foodstuffs produced from genetically modified soya beans and gen- etically modified maize, providing in par- ticular that the words 'produced from genetically modified soya' or 'from geneti- The relevant national provisions cally modified maize' must appear in the relevant list of ingredients (Article 2(3)).

— the state of water, air, soil, fauna, flora, land and natural sites, and any changes I I — Facts and procedure thereto or noise pollution;

— plans or activities which endanger or 8. The main proceedings arose from a could endanger humans, or which question put by Dr Eva Glawischnig, a damage or could damage the environ- member of the Austrian parliament. Citing ment, in particular as a result of the Auskunftspflichtgesetz and the UIG, Dr emissions, the introduction or release Glawischnig asked her own Government, of chemicals, waste, dangerous organ- to be precise the Bundeskanzler (Federal isms or energy, including ionising rays, Chancellor) who at the time was respon- into the environment, or as a result of sible for the matter, for details of examin- noise; ations carried out by the administrative authorities to monitor compliance with the rules laid down in Regulation No 1139/98. In particular, she asked the following five questions about examinations in the period 1 August to 31 December 1999: — chemicals, waste, dangerous organ- isms, released energy, including ionis- ing rays, or noise, in each case possess- ing properties in amounts or having effects that are damaging to the environment;

'1. How many products made from gen- etically modified soya and genetically modified maize were examined during — existing or planned measures to pre- the abovementioned period to check serve, protect or improve the quality of they were correctly labelled under EC water, air, soil, fauna, flora, land and Regulation 1139/98?

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10. Dr Glawischnig brought an appeal against the decision refusing the infor- 4. How many administrative penalties mation before the Unabhängiger Verwal- were imposed? Which manufacturers tungssenat Wien, requesting that the were fined in respect of which prod- decision be amended or referred to the ucts? competent administrative authority. In the course of the proceedings the Bundesmin- ister für soziale Sicherheit (Federal Minister for Social Security) replaced the Bundesk- anzler as defendant, following a transfer of responsibility for the matter. The appellant 5. How high were the highest and lowest claims that, contrary to the Bundesk- penalties for incorrect labelling (a) anzler'sassertion, placing the products in between 1 August and 31 December question on the market does fall into the 1999 and (b) before?'. category defined in Paragraph 2(2) of the UIG, since they could cause allergic reac- tions in the human body and have detri- mental effects on the environment.

12. In addition to the parties in the main ' 1 . Can the name of the manufacturer of proceedings, the Austrian Government and foodstuffs and their product description, in the Commission also intervened in the respect of which a complaint has been procedure thus initiated before the Court. made in the context of the monitoring by the administrative authorities of instances of incorrect labelling, pursuant to Council Regulation (EC) No 1139/98 of 26 May 1998 concerning the compulsory indication of the labelling of certain foodstuffs pro- duced from genetically modified organisms of particulars other than those provided for I I I— Legal analysis in Directive 79/112/EEC, constitute "infor- mation relating to the environment" within the meaning of Article 2(a) of Council Directive 90/313/EEC of 7 June 1990 on 13. As we have seen, the national court has the freedom of access to information on the referred three questions to the Court, seek- environment? ing essentially to ascertain whether admin- istrative documents relating to examin- ations to monitor compliance with the rules on labelling laid down in Regulation No 1139/98, in particular documents revealing the name of the manufacturer 2. Does information contained in adminis- and the description of the product in trative documents revealing the frequency respect of which a complaint has been with which administrative penalties have made, the name of the manufacturer and been imposed for infringement of Regu- the description of the product on which lation (EC) No 1139/98 constitute "infor- administrative penalties have been mation relating to the environment" within imposed, and the frequency with which the meaning of Article 2(a) of Council such penalties have been imposed, can Directive 90/313/EEC of 7 June 1990 on constitute information relating to the the freedom of access to information on the environment within the meaning of environment? Article 2(a) of Directive 90/313.

15. I should make it clear at once that the parties are essentially agreed in considering that the details in question do not fall into the first category because, as the Commis- 17. More generally, Dr Glawischnig points sion in particular has pointed out, they do out that the term 'environment' used in the not relate to the 'state of water, air, soil, directive also covers human beings. In her fauna, flora, land and natural sites'. 5I too v i e w , this is a l r e a d y clear from take the view that a document revealing Article 130r(1) of the EC Treaty (now that a complaint has been made or pen- Article 174 EC), under which protecting alties have been imposed more or less human health is still listed among the frequently with respect to a certain manu- objectives of Community policy on the facturer for marketing products when their environment, and it is confirmed by Direc- labelling does not comply with the Com- tive 90/313, which includes among activ- munity provisions, does not in itself ities capable of adversely affecting the describe or give any indication as to the environment 'those which give rise to present situation of the aspects of the nuisances such as noise' to which human environment listed in the provision at issue. beings alone are exposed. According to Dr Glawischnig, products containing geneti- cally modified organisms whose effects on the human body are not known should be regarded as dangerous pending proof to the contrary. She also claims that the labelling of the products in question is particularly important for certain sections of the popu- 16. There is less general agreement as to lation such as those suffering from allergies, whether the details in question can be whose health is closely dependent on indi- cations regarding the characteristics of products they consume. Consequently, 5 — My emphasis. products that may damage human health

must also constitute a danger to the 90/220/EC on the release into the environ- environment and access to data concerning ment of genetically modified organisms. 6 the marketing of such products must there- And by Decisions 96/281/EC and fore be granted in accordance with the 97/98/EC, 7 the Commission authorised directive. the placing on the market of the products in question on the premiss that 'there is no reason to believe that there will be any adverse effects on human health and the environment' (seventh and fifth recitals in the preambles to Decisions 96/281 and 97/98 respectively).

the directive. Moreover, it argues that if question do not relate to activities or any activity that could endanger human measures capable of adversely affecting health were to be included in the second the environment and consequently do not category, the result would be to extend the fall into the second category of information scope of the directive unduly, far beyond relating to the environment covered by the the intentions of the Community legis- directive. Without going into the question lature. whether the activity of marketing food- stuffs containing genetically modified organisms is liable to damage the environ- ment, suffice it to say that the information requested by Dr Glawischnig does not relate directly to that activity but to exam- inations carried out in that connection.

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monitor compliance with Regulation 23. The Commission and the Austrian No 1139/98, an activity that is clearly not, Government consider that, on the contrary, in itself, capable of adversely affecting the information on measures taken by a public environment. authority to ensure compliance with Regu- lation No 1139/98 does not fall into the third category of information relating to the environment. In particular, the Com- mission contends that examinations carried out by the administrative authorities to ensure compliance with the provisions in force fall into the latter category only in cases where the purpose of the provisions in question is to protect one of the sectors of 21. It only remains, therefore, to determine the environment listed in Article 2 of the whether the information relating to that directive. In its view, that is not so in the supervisory activity may fall into the third present case, because the purpose of Regu- category of information relating to the lation No 1139/98 is not to protect the environment, which comprises information environment but, as the legal basis and the on activities or measures designed to pro- preamble to the regulation make clear, to tect the environment. The parties differ in ensure that consumers are adequately their views on this point. informed.

explain in the judgment in Mecklenburg, 8 27. In that connection, I must say that I am cited by the referring court and the inter- not persuaded by Dr Glawischnig's argu- veners, 'the Community legislature pur- ment that, merely because it regulates the posely avoided giving any definition of labelling of products containing genetically "information relating to the environment" modified organisms whose effects on the which could lead to the exclusion of any of human body are not known, the purpose of the activities engaged in by the public the regulation in question is to protect authorities'; 9 consequently all forms of human health and therefore the environ- activity exercised by the administrative ment. authorities, including activity to ensure compliance with the Community rules on the labelling of certain foodstuffs produced from genetically modified organisms, may in principle be regarded as relevant for the purposes of Article 2 of the directive. 28. It is true that the Commission essen- tially maintained in its report on the application of Directive 90/313 1 1that the information to which freedom of access is accorded under the directive must generally speaking include information relating to human health, since protecting human health is one of the objectives of Commu- nity policy on the environment. However, without going into the question whether, and if so what, information relating to human health is specifically relevant for the 26. However, as the Court held on that purposes of the directive, I merely observe occasion, 'in order to constitute "infor- that, as the Commission makes abundantly mation relating to the environment for the clear, the p u r p o s e of R e g u l a t i o n purposes of the directive"', the activity of No 1139/98 is not to protect the environ- the public authorities must be 'an act ment at all, nor even to protect it in a broad capable of... protecting the state of one of sense that also includes protecting human the sectors of the environment covered by health. the directive'. 10 In the present case, there- fore, as the Commission has rightly pointed out, information relating to the monitoring of compliance with the regulation may be regarded as 'information relating to the environment' only if it is shown that the purpose of the regulation itself is to protect 29. Indeed the regulation expressly states the environment. Consequently, it must that 'there were no safety grounds for now be established what the purpose of Regulation No 1139/98 is. 11 — The Commission, in Annex C to the 'Report to the Council and the European Parliament on experience acquired in the application of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the 8 — Case C-321/96 Mecklenburg [1998] ECR I-3809. environment' of 29 June 2000, recommends that the directive be amended to make it clear that 'information 9 — Judgment in Mecklenburg, cited above, paragraph 20. relating to the environment' also includes among other 10 — Judgment in Mecklenburg, cited above, paragraph 21. things information relating to health (my emphasis).

32. In actual fact, it seems to me that the purpose of the regulation at issue is, on the one hand, to promote the free movement of 31. Unlike the Community measure that such products by means of uniform rules preceded it, 14 Regulation No 1139/98 does which have replaced the differing measures adopted by certain Member States in respect of their own labelling (fourth 12 — My emphasis. recital) and, on the other, to inform the 13 — Namely Decisions 96/281 and 97/98, cited in point 19 above. final consumer 'of any characteristic or 14 —Namely Commission Regulation (EC) No 1813/97 of food property, such as composition, nutri- 19 September 1997 concerning the compulsory indication on the labelling of certain foodstuffs produced from genetically modified organisms of particulars other than those provided for in Directive 79/112/EEC (OJ 1997 L 257, p. 7). 15 — Article 2 of Regulation No 1813/97, cited above.

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33. I therefore conclude that the purpose of 35. That being said, I must again point out Regulation No 1139/98 is not to protect that the directive does not in itself prevent human health either in general or, even less, Member States from recognising a more from the specific point of view considered extensive right of access to information here; nor is it to protect the environment, than that accorded under the directive. The not even in a broad sense that also includes conclusions I have just reached do not protecting human health. Nor, therefore, is therefore preclude an interpretation of that the purpose of the examinations car- national law more favourable to the appel- ried out to ensure compliance with the said lant in the main proceedings if the broad regulation, so the information requested by meaning of 'environmental data' contained Dr Glawischnig does not relate to activities in the Austrian provisions would sustain it. or measures designed to protect the It was certainly accorded a broad inter- environment within the meaning of the pretation by the Bundeskanzler in the directive. administrative procedure that led to the

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main proceedings, since the administrative can do no more than indicate this possibil- authorities did allow Dr Glawischnig ity, since it is clearly for the referring court access to some of the information she to interpret the relevant national law and sought, despite the fact that, for the reasons determine whether or not it assures free- given earlier, the data in question could not dom of access also to the rest of the be described as information relating to the information requested by Dr Glawischnig environment within the meaning of the that was mentioned in the question referred directive. In the present context, however, I to the Court.