Exemptions to access to information for public bodies limited
Case C-204/09, Flachglas Torgau v Germany, 14 February 2012
This reference for preliminary ruling answers questions of the German Federal Administrative Court regarding obligations under Directive 2003/4/EC on public access to environmental information. Under the directive, public authorities are required to make environmental information available upon request. Flachglas Torgau, a glass manufacturer in Germany covered by the EU emissions trading system (EU ETS), requested the Federal Ministry for the Environment to provide information concerning the law on the allocation of EU allowances (and on the legislative process leading to the adoption of this law). The ministry refused to provide this information and the referring German court is asking whether such a refusal can be accordance with directive 2003/4/EC.
The Court noted that Member States are allowed to exclude public bodies from the requirement to disclose information when they are acting in a legislative capacity. This is to ensure that process for the adoption of legislation runs smoothly. However, it stipulated that the ministry which participated in that process can no longer rely on that exception once the legislative process has ended, i.e. through the promulgation of the law. The Court reasoned that the smooth running of the legislative process can no longer be impeded at this stage by making environmental information available.
Moreover, the exception to disclosure if this would adversely affect the confidentiality of proceedings of authorities has also been qualified by the Court. The confidentiality upon which access is denied must be ‘provided for by the law’. Thus, the national law of the Member State must provide for the confidentiality to be a ground for refusal and it must also define the concept of the proceedings which are confidential. The Court additionally noted that reliance on the confidentiality of its proceedings by a public authority shall be accompanied by a balance of the interest involved in each particular case.
Case law
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