November 2013
The extent to which governments’
breaches of EU environmental
law are confidential
The General Court decision on ClientEarth case T-111/11
Last month, the General Court dismissed ClientEarth’s legal action in case T-111/11. The case was
about having access to "conformity-checking studies" carried out by consultants, at the request of
the European Commission, on the way Member States transpose directives in the environmental
field. These studies compare the provisions of the relevant directives with those of the national
legislation transposing them and concludes whether the States are in compliance or not.
The directives for which implementation was in question were on the quality of bathing water, water
policy, access to information and public participation, hazardous waste, batteries and accumulators,
and the management of waste from extractive industry. All issues that affect the life of every single
person living in the EU and beyond. ClientEarth's assumption was that the public had the right to
know whether their governments comply with EU environmental law or not, and if they do not then at
least they should know to what extent and what measures are adopted by the Commission to put an
end to the violation. The Commission and the General Court do not see it that way.
Information on violation of EU law by Member States is protected by a
presumption of confidentiality
With regard to the procedure, the Commission has once again not replied to our request within the
prescribed time limits provided by Regulation 1049/2001 on access to documents. After
withholding all the documents, they provided partial access once we had brought our action before
the Court. This obliged us to amend our pleas in law and challenge the new express decision of
the Commission. Already, the principle of good administration of justice was disregarded.
Access was provided to the studies which concluded that the Member States had committed only
minor incorrectness in the transposition. The Commission withheld the other studies because they
could serve or were already serving within infringement proceedings against certain Member States.
This is in line with the policy of the Commission to keep all the documents relating to these
proceedings confidential (letters of formal notice and reasoned opinions). The legal basis being that
disclosure of the documents would undermine the protection of the purpose of the investigations
carried out by the Commission in accordance with Article 4(2) third indent of Regulation 1049/2001
and that no public interest overrides the need to keep the procedure confidential.
The extent to which governments' breaches of EU law
are confidential
November 2013
Unfortunately, the case law of the General Court supports the position of the Commission and
establishes a general presumption of confidentiality covering documents used by the
Commission within these proceedings (Case T-29/08 LPN v Commission [2011] ECR II-6021,
Case C-139/07 P Commission v Technische Glaswerke Ilmenau [2010] ECR I-5885). Case T29/08 is under appeal and the Advocate General has adopted an opinion supporting the
decision of the General Court.
However, the studies in question are not part of infringement proceedings. They are factual data
on the way our governments transpose EU environmental law into national law. No confidential
information is used or referred to in the studies. Any lawyer can make these studies provided
they have the time and resources, and the analysis carried out only engages its author. They are
not correspondence between the Commission and the Member States nor documents
enshrining the strategy of the Commission. On the contrary, the studies all contain a disclaimer
which indicates that the Commission is not bound by the content or the results of the study
which prevents any legal action against the Commission provided the studies were erroneous.
The Court therefore errs in that it confuses documents which are part of the infringement
proceeding and others which are only sources of information. This is evidenced also by the case
law referred to by the Court (Case T-36/04 API v Commission [2007]ECR II-3201) and the cases
to which the Court indirectly refers to in case T-36/04 (cases T-105/95 and T-309/97) which
concern either correspondence between Member States and the Commission or reasoned
opinions sent by the Commission to infringing Member States.
The studies do not either constitute a proof or a presumption that an infringement exists and
cannot be used as such before the Court in case the Commission brings an action against the
Member States. Yet, if we follow the reasoning of the General Court, an article of an
investigative journalist on the violation of a specific piece of environmental law or any other legal
analysis of a lawyer on the implementation of EU law could be treated as confidential data as
long as it is held by the Commission. It is even surprising that opening an infringement
proceeding is not confidential itself!
The General Court has therefore stretched the applicability of Article 4(2) of Regulation 1049/2001
even further in this case and comforted the Commission in its decision to continue to negotiate
behind closed doors with Member States infringing EU law and protect these states from public
scrutiny or "undue external pressure". The Commission, along with the Court, protect Member
States which breach their obligations under environmental law from any public pressure and
questioning and increase even the more secrecy around the decision making in the Commission.
The ruling also makes the Commission immune from accountability in the way it fulfils its
obligation to monitor and enforce EU law. This adds opaqueness to the already contestable fact
that the opening of infringement proceedings is at the complete discretion of the Commission
and not does not fall under any scrutiny from the Court.
The General Court supports the Commission's argument that confidentiality is needed to
increase the chance of Member States and the Commission reaching an amicable settlement
and starting to comply with the law. However, proceedings when the Commission takes the
Invu125546
2
The extent to which governments' breaches of EU law
are confidential
November 2013
Member States to Court take years before the Court adopts a decision, leaving the public
without any information on the state of compliance or violation of EU law and consequently on
the state of the environment. Sometimes, proceedings under Article 260 TFEU have to be
initiated to make the States comply with the General Court's judgments, under the same
confidentiality rules. However, confidentiality does not guarantee better and faster compliance
by Member States. It increases the suspicion and lack of trust from the public in the Commission
and the EU as a whole which has the long term effect of making the people walk away from the
political scene where decisions that affect their environment are taken.
Also, giving access to studies that allude to only minor incorrectness in the transposition of the
directives and keeping the ones that raise breaches confidential is deeply problematic. The
Commission discloses information that supports the governments and give a complacent image of our
governing powers while they withhold data that could prejudice their reputation. That is not acceptable.
General provisions of the EU Treaties do not have any normative value
According to the General Court, the EU Treaties, even after the Lisbon process and the stress on
the need for more openness and transparency in the decision-making of the EU institutions (Article
1 and 11TEU, 15TFEU), do not provide for any provisions specific enough to change the way
compliance with the law is dealt with/negotiated between the Commission and the Member States.
The judgment provides that we cannot rely on general provisions of the Treaties "to support an
argument that an exception to the right of access is not applicable". However, the exception in
question (Article 4(2) third indent of Regulation 1049/2001) does not mention the concerned
types of documents that are at stake, it only requires institutions to refuse access to documents
where disclosure would undermine the protection of "the purpose of investigations, unless there
is an overriding public interest in disclosure". Its applicability to conformity checking studies is
thus the result of an interpretation by the Commission backed up by the Court.
The Court needs to assess whether the disclosure of these studies would undermine the
protection of the purpose of the investigations within infringement proceedings, or on the
contrary, enhance the chances of compliance by the Member States. It is thus utterly a question
of interpretation. The fact that DG Environment first withheld all the studies and that the
Secretariat General eventually decided to provide partial access demonstrates that the
exception may be interpreted differently even within the European Commission.
Yet, secondary legislation needs to be interpreted in the light of primary law. The obligation imposed
on EU institutions by EU Treaties to act transparently must thus be taken into account in the
implementation of EU regulations. The EU Treaty "marks a new stage in the process of creating an
ever closer union among the peoples of Europe, in which decisions are taken as openly as possible
and closely as possible to the citizen" (Article 1); "The institutions shall maintain an open,
transparent and regular dialogue with representative associations and civil society"(Article 11).
Moreover, "In order to promote good governance and ensure the participation of civil society, the
Union institutions, bodies, offices and agencies shall conduct their work as openly as possible"
Invu125546
3
The extent to which governments' breaches of EU law
are confidential
November 2013
(Article 15TFEU). The EU’s Seventh Environment Action Plan that is being adopted also explicitly requires
better information of citizens on the implementation of EU environmental legislation.
In holding that the public cannot rely on these "general provisions" as guidance to interpret
exceptions provided in regulations, the General Court raises the question of whether these
provisions stressing the need for more openness, transparency and public-participation have a
normative value at all and can ever be relied upon.
The Aarhus Convention is not directly applicable to EU institutions
International law, and the Aarhus Convention in particular, are not useful sources of law either.
The Court held that the access to information provision of the Aarhus Convention was not
unconditional and sufficiently precise to be directly applicable “at least in relation to the institutions”
of the EU which have specific features compared to the Member States. However, Article 4 of the
Aarhus Convention is one of the more specific and precise provisions of the Convention. Indeed, it
does not leave any room for manoeuvre to the State Parties and can be applied as it is.
Article 4 (4)(c) provides that "a request for environmental information may be refused if the
disclosure would adversely affect:... the ability of a public authority to conduct an enquiry of a
criminal or disciplinary nature." The option to keep information confidential within these type of
enquiries is justified as they are conducted against individuals, not public authorities or
institutions. However, as investigations conducted within infringement proceedings are neither
criminal nor disciplinary, this exception should not apply in this case.
This reasoning puts into question the applicability of international conventions to the EU as the
Court creates an "à la carte" option for the EU institutions. According to the Court, the EU
institutions may decide whether certain provisions of the Convention apply to them as they stand
or need to be interpreted differently than for the Member States. However, the EU has had the
opportunity to propose specific provisions applicable to the EU institutions like any other State
Parties during the negotiation of the Convention. They did for certain provisions of the
Convention. Article 2(2)(d) of the Convention makes a distinction between national authorities
and EU institutions to define a "public authority" and includes "Institutions of any regional
economic integration organization" in the definition. If the EU institutions are included in the
definition of a public authority for the purpose of the applicability of the Convention, then surely
the conditions under which these authorities can withhold information under Article 4 of the
Convention apply to the EU institutions. It is thus unclear what is required by the Court for a
provision of the Convention to be directly applicable.
Additionally, the exceptions laid down in the Aarhus Convention may not be enlarged or
completed by any exception which is mentioned in Regulation 1049/2001 or Regulation
1367/2006 applying the Convention to EU institutions, as the Aarhus Convention prevails over
secondary EU legislation. The fundamental right of access to information, granted by the Aarhus
Convention and its ratification by the EU, cannot be restricted by secondary EU legislation.
ClientEarth has appealed against this judgment in the Court of Justice.
Invu125546
4
The extent to which governments' breaches of EU law
are confidential
November 2013
Anaïs Berthier
Senior Lawyer, Environmental law
and justice
t 02808 3468
e aberthier@clientearth.org
www.clientearth.org
Brussels
4ème Etage
36 Avenue de Tervueren
1040 Bruxelles 1
Belgium
Name Surname
Job title
Address
t 020 7749 5975
e name@clientearth.org
www.clientearth.org
London
274 Richmond Road
London
E8 3QW
UK
Warsaw
Aleje Ujazdowskie 39/4
00-540 Warszawa
Poland
ClientEarth is a company limited by guarantee, registered in England and Wales, company number
02863827, registered charity number 1053988, registered office 2-6 Cannon Street, London EC4M 6YH,
with a registered branch in Belgium, N° d’entreprise 0894.251.512, and with a registered foundation in
Poland, Fundacja ClientEarth Poland, KRS 0000364218, NIP 701025 4208