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The EU, access to environmental information and the open society

Ludwig Krämer

elni Review 2013,  pp. 38-43. https://doi.org/10.46850/elni.2013.005

The Treaties of Lisbon which entered into force at the end of 2009, underlined no less than five times that the European Union (EU) adheres to the principles of an open society. This commitment is further strengthened by the reevaluation of the EU Charter on Fundamental Rights of 20002, which obtained, through the Lisbon Treaties, the same legal value as the Lisbon Treaties themselves and which gave EU citizens a fundamental right of access to information, stressing that the EU "placed the individual at the heart of its activities". In practice, it is alarming to see how much expert opinion, research results, studies, data and facts are withheld from the interested public in EU environmental matters. Numerous data are stored and monitored by the EU administration without being made public – as if the environment were the private property of the administration and not of everybody. Administrative inertia, professional or commercial secrets, the power which is given to superior knowledge, all these contribute to the present "mafia of silence". What is worse, some groups, representing organized or vested interests, have informal means of access to data which are in the hands of the administration.
This article by Ludwig Krämer analyses the practice of access to documents within the EU on the basis of several examples of legislation, and its use and interpretation by the EU Courts of Justice in the area of access to environmental information.

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References

  1. Consolidated version of the Treaty on European Union (TEU), OJ 2012 C 326/13.
  2. Consolidated version of the Treaty on the Functioning of the European Union (TFEU), OJ 2012 C 226/47.
  3. Charter of Fundamental Rights of the European Union, OJ 2000 C 364/1.
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  15. Court of Justice of the European Union, 2011, Judgment of the General Court (Third Chamber) of 22 March 2011. Access Info Europe v Council of the European Union. Access to documents - Regulation (EC) No 1049/2001 - Document concerning an ongoing legislative procedure - Partial refusal of access - Action for annulment - Period allowed for bringing proceedings - Admissibility - Disclosure by a third party - Interest in bringing proceedings not lost - Identification of the Member State delegations which made proposals - Exception relating to the protection of the decision-making process (Case T-233/09).
  16. Court of Justice of the European Union, 2013, Judgment of the Court (First Chamber), 17 October 2013. Council of the European Union v Access Info Europe. Appeal — Right of access to documents of the institutions — Regulation (EC) No 1049/2001 — Article 4(3), first subparagraph — Protection of the institutions’ decision-making process — Note from the Council General Secretariat on the proposals submitted in the course of the legislative process for the revision of Regulation No 1049/2001 — Partial access — Refusal of access to information relating to the identity of Member States which put forward proposals (Case C‑280/11 P).
  17. Court of Justice of the European Union, 2011, Judgment of the General Court (Eighth Chamber) of 13 January 2011. IFAW Internationaler Tierschutz-Fonds gGmbH v European Commission. Access to documents - Regulation (EC) No 1049/2001 - Documents relating to the carrying out of an industrial project in an area protected under Directive 92/43/EEC - Documents originating from a Member State - Objection on the part of the Member State - Partial refusal of access - Exception relating to the economic policy of a Member State - Article 4(5) to (7) of Regulation No 1049/2001 (Case T-362/08).
  18. Court of Justice of the European Union, 2006, Judgment of the Court (Grand Chamber) of 10 January 2006. The Queen, on the application of International Air Transport Association and European Low Fares Airline Association v Department for Transport. Reference for a preliminary ruling: High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) - United Kingdom. Carriage by air - Regulation (EC) No 261/2004 - Articles 5, 6 and 7 -Compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights - Validity - Interpretation of Article 234 EC (Case C-344/04).
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  21. Court of Justice of the European Union, 2015, Judgment of the General Court (Second Chamber) of 23 September 2015. ClientEarth and The International Chemical Secretariat v European Chemicals Agency (ECHA). Access to documents — Regulation (EC) No 1049/2001 — Documents held by ECHA — Documents deriving from a third party — Time-limit for response to an application for access — Refusal of access — Exception relating to protection of the commercial interests of a third party — Exception relating to protection of the decision-making process — Overriding public interest — Environmental information — Emissions into the environment (Case T-245/11).
  22. Court of Justice of the European Union, 2013, Order of the General Court of 8 July 2013 — ClientEarth and Stichting BirdLife Europe v European Commission (Access to documents of the institutions — Document held by the Commission concerning European Union energy policy — Implied refusal of access — Express decision adopted after the action was brought — No need to adjudicate), (Case T-56/13).
  23. Court of Justice of the European Union, 2013, Judgment of the General Court (Sixth Chamber), 13 September 2013. ClientEarth v European Commission. Access to documents — Regulation (EC) No 1049/2001 — Studies received by the Commission concerning the transposition of directives on the environment — Partial refusal of access — Exception relating to protection of the purpose of inspections, investigations and audits — Specific and individual assessment — Compatibility with the Aarhus Convention — Overriding public interest — Consequences of exceeding the period for the adoption of an express decision — Extent of the obligation actively to disseminate environmental information (Case T‑111/11).
  24. Court of Justice of the European Union, 1989, Judgment of the Court (Second Chamber) of 14 February 1989. Star Fruit Company SA v Commission of the European Communities. Action for failure to act brought by an undertaking - Failure by the Commission to commence proceedings under Article 169 of the EEC Treaty (Case 247/87).
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  28. Court of Justice of the European Union, 2012, Order of the General Court (Fourth Chamber), 13 November 2012. ClientEarth and Others v European Commission. Actions for annulment — Access to documents — Regulation (EC) No 1049/2001 — Implied refusal of access — Period allowed for commencing proceedings — Delay — Manifest inadmissibility (Case T‑278/11).
  29. Directive 2009/28 on the promotion of the use of energy from renewable sources, OJ 2009, L 140/16.
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  31. Commission Implementing Decision 2011/436/EU of 19 July 2011 on the recognition of the ‘Abengoa RED Bioenergy Sustainability Assurance’ scheme for demonstrating compliance with the sustainability criteria under Directives 2009/28/EC and 2009/30/EC of the European Parliament and of the Council, OJ 2001 L 190/75.
  32. Commission Implementing Decision 2011/437/EU of 19 July 2011 on the recognition of the ‘Biomass Biofuels Sustainability voluntary scheme’ for demonstrating compliance with the sustainability criteria under Directives 2009/28/EC and 2009/30/EC of the European Parliament and of the Council, OJ 2001 L 190/77.
  33. Commission Implementing Decision 2011/438/EU of 19 July 2011 on the recognition of the ‘International Sustainability and Carbon Certification’ scheme for demonstrating compliance with the sustainability criteria under Directives 2009/28/EC and 2009/30/EC of the European Parliament and of the Council, OJ 2001 L 190/79.
  34. Commission Implementing Decision 2011/439/EU of 19 July 2011 on the recognition of the ‘Bonsucro EU’ scheme for demonstrating compliance with the sustainability criteria under Directives 2009/28/EC and 2009/30/EC of the European Parliament and of the Council, OJ 2001 L 190/81.
  35. Commission Implementing Decision 2011/440/EU of 19 July 2011 on the recognition of the ‘Round Table on Responsible Soy EU RED’ scheme for demonstrating compliance with the sustainability criteria under Directives 2009/28/EC and 2009/30/EC of the European Parliament and of the Council, OJ 2011 L 190/83.
  36. Commission Implementing Decision 2011/441/EU of 19 July 2011 on the recognition of the ‘Greenergy Brazilian Bioethanol verification programme’ scheme for demonstrating compliance with the sustainability criteria under Directives 2009/28/EC and 2009/30/EC of the European Parliament and of the Council, OJ 2001 L 190/85.
  37. Court of Justice of the European Union, 2013, Judgment of the General Court (Fourth Chamber) of 15 January 2013. Guido Strack v European Commission. Access to documents - Regulation (EC ) No 1049/2001 - Documents relating to confirmatory applications for access to documents and to a case brought before the General Court - Document register - Action for annulment - Implied refusal of access - Interest in bringing proceedings - Admissibility - Partial refusal of access - Exception relating to the protection of the privacy and the integrity of the individual - Exception relating to the protection of the decision-making process - Duty to state reasons - Non-contractual liability (Case T-392/07).