STIX-HACKL delivered on 14 January 2003 (1)

((Failure of a Member State to fulfil its obligations – Incorrect transposition of Articles 2(a) and 3(2), (3) and (4) of Council Directive 90/313/EEC on the freedom of access to information on the environment – Transposition by means of a general legal framework))

I ─ Subject-matter of the proceedings

II ─ Relevant legislation

A ─ Community law

(a) information relating to the environment shall mean any available information 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 which give rise to nuisances such as noise) or measures adversely affecting or likely so to affect these, and on activities or measures designed to protect these, including administrative measures and environmental management programmes; ...

5. Article 3 provides:

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

─ public security,

─ matters which are, or have been, sub judice, or under enquiry (including disciplinary enquiries), or which are the subject of preliminary investigation proceedings,

─ commercial and industrial confidentiality, including intellectual property,

─ the confidentiality of personal data and/or files,

─ material supplied by a third party without that party being under a legal obligation to do so,

─ material, the disclosure of which would make it more likely that the environment to which such material related would be damaged.

Information held by public authorities shall be supplied in part where it is possible to separate out information on items concerning the interests referred to above.

B ─ National law

6. Title I of Law No 78-753 (3) contains provisions on access to administrative documents.

7. Article 2 of that law provides as follows: Subject to Article 6, administrative documents shall as of right be available to persons who request them, whether they are documents of the administrative authorities of the State, local authorities, public undertakings or bodies, even private-law bodies, responsible for the operation of a public service.

8. Article 6 of that law in part reads: The administrative authorities mentioned in Article 2 may refuse to allow consultation of or to provide an administrative document when such consultation or provision would prejudice:...

─ or, generally, secrets protected by legislation.

10. Article 2 of Decree No 88-465 provides inter alia: Failure by the competent authority to reply within one month to a request to supply documents in accordance with Title I of 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 expiry of the period prescribed in the first paragraph of this article.

11. Article 5 of Law No 79/587 (5) contains the following provision concerning implied decisions: An implied decision made in cases where an express decision would have had to be reasoned is not unlawful merely because reasons are not given for it. Nevertheless, at the applicant's request, made within the time-limit for bringing proceedings, the reasons for any implied refusal shall be notified to him within a month of that request. In that case, the time-limit for bringing proceedings against that decision shall be extended until two months after the day on which the reasons are notified to him.

III ─ Pre-litigation procedure and legal proceedings

12. Under Article 9(1) of the Directive, Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 31 December 1992 at the latest.

15. As the reply of 23 February 1995 failed to dispel the Commission's misgivings, it sent a reasoned opinion on 8 February 1999 to the French Republic requesting it to adopt the measures necessary correctly to transpose Article 2(a) and Article 3(2), (3) and (4) of the Directive within two months.

16. The French Republic contends that the Court should:

─ dismiss the Commission's application with the exception of the third plea which concerns the final subparagraph of Article 3(2) of the Directive;

─ order the Commission to pay the costs.

17. Under cover of a letter of 13 September 2001 the French Government sent a copy of the Law of 12 April 2000 (6) and of the Ordinance of 11 April 2001 (7) to the Court, pointing out that, as far as it was concerned, the shortcomings alleged by the Commission in particular in its first four pleas were rectified by those implementing provisions. As regards the fifth plea, it continued to work on the principle that prevailing French law was consistent with the Directive.

IV ─ Legal assessment

A ─ Preliminary observations

24. In the present infringement proceedings the French Government considers that the obligations under the Directive are already fulfilled by the general legal framework in 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 necessary, by requiring that national authorities interpret the national legislation in accordance with the Directive.

25. In its five pleas in law the Commission seeks to demonstrate that the above principle is not applied in the circumstances of this case. In very general terms, it regards the legal provisions notified by the French Government as being too general and too vague to be considered to have transposed the Directive correctly. It refers to the fact that national provisions which are too vague or too general give rise to legal uncertainty surrounding the rights and obligations laid down in the Directive, such uncertainty being contrary to Community law. Even the obligation to interpret national provisions in accordance with the Directive could not alter that fact in any way.

26. New provisions implementing the Directive have in the meantime entered into force in France. (8) Although the Commission 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 French Government that, the above positive development notwithstanding, there was still some legal ambiguity as regards the contested issues.

27. It is appropriate at this stage to point out that the Court has consistently held that the Commission enjoys discretion to 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)

I will therefore proceed to examine each of the pleas raised by the Commission but will not take into account the new implementing provisions mentioned above because the Court has already repeatedly held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes.

(11)

First plea alleging the incomplete transposition of the combined provisions of Article 2(a) and Article 3(1) of the Directive (definition of information relating to the environment)

By that plea the Commission is maintaining that the term administrative documents used in the French legislation is narrower than that of information relating to the environment contained in the Directive and, consequently, access to such information is not guaranteed to the extent required by the Directive.

The Commission in essence argues that the scope covered by the term administrative document used in Article 2 of Law No 78-753 falls short of that covered by the term information relating to the environment within the meaning of the Directive because, even following its broad interpretation by the Commission d'accès aux documents administratifs (French Commission on Access to Administrative Documents, hereinafter: the CADA), it includes only those documents held by the authorities which relate to the activity of the public service or an activity of the public authorities. Thus, it adds, many non-legislative decisions by the authorities, in the area of private-sector management or private-law contracts between public authorities and private persons for example, do not fall within the scope of that provision. 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 environment, shows that the Directive in fact also covers documents not necessarily connected with an activity of a public authority.

The Commission considers, moreover, that an interpretation by the CADA cannot, on the basis of the principles of legal clarity and legal certainty, confirm the required transposition of the Directive because the CADA is not a judicial institution the interpretations of which have to be taken into account by the Court; it is, rather, an independent consultative body the opinions of which have no legal force, as the French Government itself acknowledges.

It adds, lastly, that the specific texts relating to environmental information submitted to the Court by the French Government and designed to supplement the general provisions of Law No 78-753 concern nothing more than the supply of general information to the public on the state of the environment as provided for in Article 7 of the Directive.

The French Government submits that the Commission could not adduce evidence of any information relating to the environment which was not covered by Law No 78-753, nor could it point to a single instance where an item of information relating to the environment had not been recognised as an administrative document within the meaning of that law. It argues that since environmental information is connected with the environment and therefore with environmental protection, it is in any event more likely by its nature to be 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 construed 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 activities or with public functions delegated to private persons. The sole restriction introduced by that concept concerned documents held by an authority acting as a private person, which were not in any way connected as described above. In most cases, however, it was improbable that documents of that kind would exist in the context of environmental protection because that context usually required the public authorities to assume a regulatory or supervisory role. It was also apparent from Case C-343/95 (13) that environmental protection was essentially a function of the State performed by a public authority, thus indicating that the French legislation was consistent with the Directive.

The French Government also cites Case C-132/91 (14) according to which laws, regulations and administrative provisions transposing a directive must be understood as meaning the laws, regulations and administrative provisions as they are interpreted by the courts. Although it concedes that the CADA is not a judicial institution with the authority to give binding interpretations of the law, it underlines the significance of that body's role in determining and interpreting the law to be applied in the individual circumstances.

In the light of the argument raised by the French Government that the Commission could not point to a single instance where a document concerning information relating to the environment was not recognised as an administrative document within the meaning of the French legislation, I shall commence by considering the settled case-law of the Court concerning the burden of proof imposed on the Commission.

The Court has indeed consistently held that, in proceedings under Article 226 EC for failure to fulfil an obligation, it is in principle incumbent on the Commission to prove that the obligation has not been fulfilled and to place before the Court the evidence necessary to enable it to determine whether that is the case. (15) However, in order to prove that the transposition of a directive into national law by specific 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 legislation to produce harmful effects. (16) On the contrary, it is the wording of the legislation itself which determines whether the transposition in question is insufficient or defective. (17)

Consequently, a Member State for its part cannot argue in its defence that reference cannot be made to any specific examples of the application of implementing provisions which are capable of demonstrating the defectiveness of those provisions in view of the obligations laid down by the directive. (18)

In the present case, the French Government has put before the Court various administrative provisions of a general nature which were not adopted for the specific purpose of transposing the Directive. As both parties to the proceedings have rightly pointed out, the Court has consistently held that transposing a directive into national law does not necessarily require its provisions to be reproduced verbatim in a specific, express law or regulation; a general legal context may, depending on the context of the directive in question, be sufficient .... (19)

Nevertheless, such a general legal context is sufficient only provided that it does effectively ensure the full application of the directive in a sufficiently clear and precise manner. (20)

However, it is clear from the arguments put forward by the French Government that the equivalent in French law of information relating to the environment as provided for in the Directive is the term administrative document used in Law No 78-753, because the national authorities interpret the latter term broadly or, in other words, in accordance with the Directive.

That legal framework, in my view, does not meet the requirements of legal clarity and legal certainty to be laid down in the transposing of a directive. Indeed, the 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 unquestionable binding force. (22)

It cannot be inferred from the case-law cited by the French Government, according to which the scope of national laws, regulations and administrative provisions must be assessed in the light of their interpretation by the national courts, (23) that the practice of a body such as the CADA giving interpretations is sufficient for national legislation to be deemed appropriate implementing measures. After all, the case-law primarily addresses no more than the fundamental allocation of functions between the Court of Justice on the one hand and the national courts on the other; and establishes that the Court has no jurisdiction, in principle, to interpret national law and that it is incumbent on the national courts alone to determine the precise scope of national laws, regulations and administrative provisions. (24)

That case-law indicates that, where a national implementing provision is assessed, it must be afforded the same scope as that arising from the case-law established by the national courts. (25)

However, case-law established by 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 State interprets the provisions of national law in a manner deemed to satisfy the requirements of a directive. (26)

On that basis, it cannot be sufficient to transpose the concept of information relating to the environment by reference to the method of interpretation practised by the CADA.

Moreover, the French Government has itself stated that the CADA is a consultative body the recommendations of which have no legal force. For that very reason, as the Commission has correctly concluded, the CADA's interpretations cannot be relied on to transpose the concept of information relating to the environment contained in the Directive with unquestionable binding force and in a manner that meets the requirement of legal certainty.

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 valid in this case as a relatively stringent criterion must be applied in this regard.

Indeed, it is particularly important, in order to satisfy the requirement for legal certainty, that individuals should have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and obligations and, where appropriate, to rely on them before the national courts. (27) As regards determining the necessary legal clarity and legal certainty, it is important in this context to establish how the legal situation appears to the person concerned. (28) As I have already commented in this regard in my Opinion in Case C-145/99, (29) more stringent requirements may even be imposed on specific target groups. However, in accordance with the sixth recital in the preamble thereto, the Directive is designed to guarantee to any natural or legal person free access to available information on the environment held by public authorities. Its 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 therefore be transposed in an appropriately clear and unequivocal manner.

However, even if the French legal framework on information relating to the 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.

It is, after all, clear from the arguments put forward by the French Government that the concept of the administrative document, even on a broad reading, presupposes a certain connection with action by public authorities.

However, as the Court already found in Case C-321/96, (30) the wording of Article 2(a) of the Directive makes it clear that the Community legislature intended to 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 environmental protection, in fact refer simply to the state of the environment: the provision, for example, covers that kind of document of a general nature. Contrary to the argument put forward by the French Government, it cannot ultimately be inferred from the judgment in Case C-343/95 (31) that the concept in question is intended to include only information which is connected at least in a relatively broad manner with acts in the exercise of public authority. In that judgment the Court simply held that surveillance involved with environmental protection is typically connected with the exercise of powers by a public authority. (32)

The Commission has, therefore, rightly objected that the French concept of the administrative document is narrower than that of information relating to the environment within the meaning of the Directive.

In the light of all the foregoing considerations, it can be established that the first plea raised by the Commission concerning the incomplete transposition of the combined provisions of Article 2(a) and Article 3(1) of the Directive is well founded.

Second plea alleging the incorrect transposition of the first subparagraph of Article 3(2) of the Directive (exceptions to the obligation to communicate information)

By that plea the Commission is claiming 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 disclosure of a document would be prejudicial to secrets protected by legislation. It argues that an exception of that kind is not provided for in the first subparagraph of Article 3(2) of the Directive and is therefore contrary thereto.

55. The Commission maintains that the refusal of a request for information under the Directive is permissible only in very specific cases, an exhaustive list of which is provided in the first subparagraph of Article 3(2), and that, furthermore, those exceptional cases must be interpreted strictly. The possibility of refusing to communicate information, as laid down in Law No 78-753, by reason of secrets protected by law constituted an inadmissible addition to those exceptions. The French provisions thus provided insufficient clarity and legal certainty with regard to the scope of the possibilities for refusing requests for information. The general reference to secrets protected by law paved the way for an indefinite number of exceptions of undetermined scope.

56. The Commission finally notes that the special derogating provisions cited by the French Government, to which the ground of refusal relating to secrets protected by law refers, are in themselves already covered by the exceptions listed in the Directive, thus meaning that the general ground of refusal in question is itself redundant and can only contribute to legal uncertainty.

57. The French Government, on the other hand, takes the view that the exceptions under French law are not designed to be any broader in scope than those provided for by the Directive. A general category of exception, relating to secrets protected by legislation, was necessary on account of the many French laws and special arrangements applying to the confidentiality of data in various areas often unrelated to the environment. Each of those special arrangements on confidentiality was drawn up in a very precise manner. The Commission could not single out any one of those exceptions which did not comply with the Directive. The French Government refers to the fact that there have been no complaints thus far by individuals in this area. It none the less concedes that it is impossible to draw up a definitive list of the exceptions contained in the various national provisions on confidentiality.

58. Article 1 of the Directive lays down the principle of freedom of access to information. However, under the seventh recital in the preamble to the Directive, it may be justified in certain specific and clearly defined cases to refuse a request for information relating to the environment. The interests for the protection of which a Member State may refuse access to information on the environment are listed exhaustively in Article 3(2) of the Directive and must be interpreted strictly as derogations 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 is conferred on individuals by the Directive, and must therefore be sufficiently clear and precise to enable those individuals to know the precise extent of their rights and to rely on them. (34)

59. It follows that the national provisions transposing Article 3(2) of the Directive must ensure unequivocally that requests for access to information may be refused by a public authority only for the purpose of safeguarding the interests defined in that provision.

60. The ground for refusal relating to secrets protected by legislation which is laid down in Article 6 of Law No 78-753 refers, however, to arrangements governing confidentiality which are set out in specific laws and, as the French Government has conceded, cannot be listed exhaustively. The abovementioned provision does not therefore ensure that requests for information on the environment can be refused only on the grounds mentioned in Article 3(2).

61. Thus, the argument put forward by the French Government that each of those special arrangements on confidentiality is (in itself) drawn up in a precise manner and the point that there have been no complaints thus far by individuals in this area are irrelevant. (35)

62. On that basis, it can be established that the Commission's plea that the first subparagraph of Article 3(2) has been incorrectly transposed is also well founded.

D ─

Third plea alleging a failure to transpose the second subparagraph of Article 3(2) of the Directive (Obligation to supply information relating to the environment in part, where a ground of refusal exists for some of that information)

63. By that plea the Commission is alleging that the French Government has failed expressly to reproduce in the French legislation the obligation to supply in part information relating to the environment laid down in the second subparagraph of Article 3(2) of the Directive. In that connection it refers in particular to the judgment of the Court in Case C-217/97. (36)

64. The French Government does not dispute the third plea.

65. Since the Court has already held in Case C-217/97 that the partial communication of information under the second subparagraph of Article 3(2) of the Directive is a measure which must be transposed into national law by an express provision and the French Government does not dispute that it has failed to adopt measures to that effect, it must be established that by failing to transpose the second subparagraph of Article 3(2) of the Directive, the French Republic has failed to fulfil its obligations under the Directive and under the third paragraph of Article 249 EC.

E ─

Fourth plea alleging a failure to transpose Article 3(3) of the Directive (possibility of refusing a request)

66. By its fourth plea the Commission is claiming that, unlike Article 3(3) of the Directive, the French legislation does not provide that a request for access to information may be refused where it would involve the supply of unfinished documents or data or internal communications, or where the request is manifestly unreasonable or formulated in too general a manner.

67. The Commission admittedly concurs with the French Government that refusing a request is a possibility of which Member States may choose to avail themselves, rather than an obligation imposed on Member States. Indeed, in practice the French authorities clearly avail themselves of that possibility of refusal. In such a situation, a Member State is required to transpose the relevant provision of the directive in such a way that the individual concerned can ascertain with sufficient precision the extent of his right of access to information. In view of the absence of implementing provisions in that regard, the case-law of the Conseil d'État (French Council of State) cannot constitute appropriate transposition.

68. The French Government does not dispute the absence of specific implementing 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 in the form of Law No 78-753 ─ that is to say, as it is interpreted by the Conseil d'État ─ lays down sufficiently clear and transparent rules governing the possibility open to the public authorities to refuse a request on those grounds. As regards the grounds for refusal, it refers in each instance to a judgment of the Conseil d'État. It adds that, Article 3(3) of the 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 codification of that possibility does not contribute to safeguarding the rights of individuals.

69. As stated earlier in this Opinion, Article 3(2) of the Directive defines specific interests for the protection of which a Member State may refuse access to information relating to the environment.

70. Furthermore, Article 3(3) of the Directive provides that a request for information may be refused where it would involve the supply of unfinished documents or data or internal communications, or where the request is manifestly unreasonable or formulated in too general a manner.

71. It must first be observed that the French Government has pointed out that those possibilities for refusal exist in French law on the basis of the case-law of the Conseil d'État concerning Law No 78-753. It is also significant that the French Government does not in essence dispute the necessity to transpose those provisions relating to refusal especially since, as it has likewise pointed out, the French authorities may well avail themselves of those possibilities.

72. The dispute in the case at issue does not therefore cover the necessity per se of transposing Article 3(3) of the Directive; on the contrary, it is restricted to establishing whether the provision in question has been (appropriately) transposed into French law.

73. In so far as the French Government relies in this regard on the case-law of the Conseil d'État, it is essential to note again that the transposition of provisions of directives cannot be based on national case-law alone. (37) It is therefore insufficient that grounds for refusal as set out in Article 3(3) of the Directive are acknowledged in the case-law of the Conseil d'État.

74. Furthermore, the distinction made by the French Government, in response to the alleged absence of legal certainty, between the discretion of the public authorities which, it argues, is the predominant concern in Article 3(3) of the Directive and the case of a provision of a directive which is deemed to confer a right on individuals is, in my view, incorrect.

75. The scope of the right of access to environmental information which the Directive confers on the individual is determined by the degree to which the public authorities are permitted to refuse such access to that individual. Accordingly, Article 3(3) of the Directive most certainly does govern the rights conferred on the individual under the Directive and must 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 legal certainty cannot be guaranteed by transposition based primarily on the case-law of the Conseil d'État.

76. It therefore follows that the allegation of failure to transpose the provisions of Article 3(3) of the Directive is correct. Consequently, the fourth plea raised is well founded.

F ─

Fifth plea alleging the defective transposition of Article 3(4) of the Directive (obligation to give reasons for a refusal within two months)

77. By that plea the Commission maintains that the French provisions are contrary to Article 3(4) of the Directive in that they do not ensure that a person requesting information will receive notification of a refusal of that request together with the reasons for that decision within two months at the latest.

78. The Commission levels its criticism specifically against the mechanism of the tacit refusal enshrined in Article 2 of 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 requesting the information to the CADA, in both cases the silence is to be regarded as a refusal of the request. The possibility, introduced by Law No 79-587, subsequently 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 Directive were met precisely because the time-limit prescribed by that provision would in the meantime have expired. Again the Commission refers to the absence in the national provisions of legal certainty and clarity for individuals.

79. Moreover, it was only in theory that individuals could subsequently obtain reasons still within the period of two months prescribed by the Directive; that theory was based on the additional assumption that individuals would react immediately following the month's silence maintained by the public authority concerned. Even the French Government had also conceded that in the prevailing legal situation it was possible that the person requesting the information would not obtain the relevant reasons until that two-month period had expired.

80. The Commission furthermore refers to the fact that the reasons on which a legal measure is based must, in accordance with the case-law of the Court, in principle be notified along with the decision itself. (39) The reasons must in any event be given within the prescribed period of two months.

81. Should it on the other hand be considered, adopting the view held by the French Government, that the obligation to respond within two months is independent of the obligation to give reasons, such an approach would imply that there was no time-limit for fulfilling the obligation to state reasons. The Commission also rejects an approach of this kind in the light of the principles of good administration.

82. The French Government is seeking to have the arguments it raised at the hearing expressly understood as forming its main line of argument.

83. Accordingly, it takes the view that Article 3(4) of the Directive contains two independent, entirely separate obligations in that the first sentence of that provision provides that the public authority has to respond to a request within two months whilst the second sentence, which makes no reference to the first sentence, requires the public authorities to give reasons for a refusal to provide the information requested. It consequently argues that the statement of reasons does not have to coincide with the refusal or be notified within the two-month period.

84. The French Government refers to the fact that only the basic terms and conditions governing access to information are considered to be laid down in Article 1 of the Directive and that it is for the Member States to draw up the arrangements by which information is to be made available. Under the principle of procedural autonomy of Member States, it argues, there is no obligation to ensure that decisions and the reasons on which they are based issue simultaneously.

85. The purpose of the obligation to state reasons was to prevent arbitrary decision-making and to enable the person concerned to have resort to a legal remedy, as the Court established in Case 222/86 (40) in which it had also acknowledged the possibility of a separate statement of reasons. That a contrario interpretation was also borne out, in the French Government's view, by the common position adopted by the Council with regard to a draft directive intended to supersede the directive at issue, and by Regulation (EC) No 1049/2001 of the European Parliament and of the Council. (41) Unlike the directive at issue, those texts provided that both the decision and the reasons on which it was based had to be communicated within a specified time-limit and simultaneously.

86. As stated earlier in this Opinion, Article 3(2) of the Directive defines specific interests for the protection of which a Member State may refuse access to information relating to the environment.

87. Furthermore, Article 3(3) of the Directive provides that a request for information may be refused where it would involve the supply of unfinished documents or data or internal communications, or where the request is manifestly unreasonable or formulated in too general a manner.

88. It must first be observed that the French Government has pointed out that those possibilities for refusal exist in French law on the basis of the case-law of the Conseil d'État concerning Law No 78-753. It is also significant that the French Government does not in essence dispute the necessity to transpose those provisions relating to refusal especially since, as it has likewise pointed out, the French authorities may well avail themselves of those possibilities.

89. The dispute in the case at issue does not therefore cover the necessity per se of transposing Article 3(3) of the Directive; on the contrary, it is restricted to establishing whether the provision in question has been (appropriately) transposed into French law.

91. Furthermore, the distinction made by the French Government, in response to the alleged absence of legal certainty, between the discretion of the public authorities which, it argues, is the predominant concern in Article 3(3) of the Directive and the case of a provision of a directive which is deemed to confer a right on individuals is, in my view, incorrect.

92. The scope of the right of access to environmental information which the Directive confers on the individual is determined by the degree to which the public authorities are permitted to refuse such access to that individual. Accordingly, Article 3(3) of the Directive most certainly does govern the rights conferred on the individual under the Directive and must 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 legal certainty cannot be guaranteed by transposition based primarily on the case-law of the Conseil d'État.

93. It therefore follows that the allegation of failure to transpose the provisions of Article 3(3) of the Directive is correct. Consequently, the fourth plea raised is well founded.

F ─

Fifth plea alleging the defective transposition of Article 3(4) of the Directive (obligation to give reasons for a refusal within two months)

94. By that plea the Commission maintains that the French provisions are contrary to Article 3(4) of the Directive in that they do not ensure that a person requesting information will receive notification of a refusal of that request together with the reasons for that decision within two months at the latest.

95. The Commission levels its criticism specifically against the mechanism of the tacit refusal enshrined in Article 2 of 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 requesting the information to the CADA, in both cases the silence is to be regarded as a refusal of the request. The possibility, introduced by Law No 79-587, subsequently 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 Directive were met precisely because the time-limit prescribed by that provision would in the meantime have expired. Again the Commission refers to the absence in the national provisions of legal certainty and clarity for individuals.

96. Moreover, it was only in theory that individuals could subsequently obtain reasons still within the period of two months prescribed by the Directive; that theory was based on the additional assumption that individuals would react immediately following the month's silence maintained by the public authority concerned. Even the French Government had also conceded that in the prevailing legal situation it was possible that the person requesting the information would not obtain the relevant reasons until that two-month period had expired.

97. The Commission furthermore refers to the fact that the reasons on which a legal measure is based must, in accordance with the case-law of the Court, in principle be notified along with the decision itself. (39) The reasons must in any event be given within the prescribed period of two months.

98. Should it on the other hand be considered, adopting the view held by the French Government, that the obligation to respond within two months is independent of the obligation to give reasons, such an approach would imply that there was no time-limit for fulfilling the obligation to state reasons. The Commission also rejects an approach of this kind in the light of the principles of good administration.

99. The French Government is seeking to have the arguments it raised at the hearing expressly understood as forming its main line of argument.

100. Accordingly, it takes the view that Article 3(4) of the Directive contains two independent, entirely separate obligations in that the first sentence of that provision provides that the public authority has to respond to a request within two months whilst the second sentence, which makes no reference to the first sentence, requires the public authorities to give reasons for a refusal to provide the information requested. It consequently argues that the statement of reasons does not have to coincide with the refusal or be notified within the two-month period.

101. The French Government refers to the fact that only the basic terms and conditions governing access to information are considered to be laid down in Article 1 of the Directive and that it is for the Member States to draw up the arrangements by which information is to be made available. Under the principle of procedural autonomy of Member States, it argues, there is no obligation to ensure that decisions and the reasons on which they are based issue simultaneously.

102. The purpose of the obligation to state reasons was to prevent arbitrary decision-making and to enable the person concerned to have resort to a legal remedy, as the Court established in Case 222/86 (40) in which it had also acknowledged the possibility of a separate statement of reasons. That a contrario interpretation was also borne out, in the French Government's view, by the common position adopted by the Council with regard to a draft directive intended to supersede the directive at issue, and by Regulation (EC) No 1049/2001 of the European Parliament and of the Council. (41) Unlike the directive at issue, those texts provided that both the decision and the reasons on which it was based had to be communicated within a specified time-limit and simultaneously.

103. As stated earlier in this Opinion, Article 3(2) of the Directive defines specific interests for the protection of which a Member State may refuse access to information relating to the environment.

104. Furthermore, Article 3(3) of the Directive provides that a request for information may be refused where it would involve the supply of unfinished documents or data or internal communications, or where the request is manifestly unreasonable or formulated in too general a manner.

105. It must first be observed that the French Government has pointed out that those possibilities for refusal exist in French law on the basis of the case-law of the Conseil d'État concerning Law No 78-753. It is also significant that the French Government does not in essence dispute the necessity to transpose those provisions relating to refusal especially since, as it has likewise pointed out, the French authorities may well avail themselves of those possibilities.

106. The dispute in the case at issue does not therefore cover the necessity per se of transposing Article 3(3) of the Directive; on the contrary, it is restricted to establishing whether the provision in question has been (appropriately) transposed into French law.

107. In so far as the French Government relies in this regard on the case-law of the Conseil d'État, it is essential to note again that the transposition of provisions of directives cannot be based on national case-law alone. (37) It is therefore insufficient that grounds for refusal as set out in Article 3(3) of the Directive are acknowledged in the case-law of the Conseil d'État.

108. Furthermore, the distinction made by the French Government, in response to the alleged absence of legal certainty, between the discretion of the public authorities which, it argues, is the predominant concern in Article 3(3) of the Directive and the case of a provision of a directive which is deemed to confer a right on individuals is, in my view, incorrect.

109. The scope of the right of access to environmental information which the Directive confers on the individual is determined by the degree to which the public authorities are permitted to refuse such access to that individual. Accordingly, Article 3(3) of the Directive most certainly does govern the rights conferred on the individual under the Directive and must 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 legal certainty cannot be guaranteed by transposition based primarily on the case-law of the Conseil d'État.

110. It therefore follows that the allegation of failure to transpose the provisions of Article 3(3) of the Directive is correct. Consequently, the fourth plea raised is well founded.

In its written observations, which should henceforth be regarded as pleas in the alternative, the French Government argued that the Commission had misunderstood Article 7 of Law No 78-753 as amended by Decree No 88-465. That provision very clearly provided, according to the French Government, that the refusal of a request for information had to be issued in the form of a written, reasoned decision. The possibility of a tacit decision under Decree No 88-465 arose only where the public authority concerned failed, through negligence, to issue an appropriate decision, thereby failing to meet the abovementioned requirement. The purpose of that mechanism was thus to make a legal remedy available to the individual concerned. 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 individual concerned who found himself entitled to legal redress against the authorities' failure to act. The French Government none the less concedes that the mechanism of the tacit decision may result in the adoption of unreasoned decisions.

Article 5 of Law No 79-587, however, ensures that the reasons for a tacit decision are communicated to the individual within one month [of a request to that effect]. The French Government states that the abovementioned procedure does not necessarily lead to delays in the notification of reasons because, on the basis of Decree No 88-465, the individual can establish the existence of a tacit refusal as early as after one month and move on to the next stage of the proceedings.

Assessment

The French Government bases its view that the legislation it has submitted before the Court meets the requirements of Article 3(4) of the Directive primarily on the fact that obligations which are independent of one another are laid down in the two sentences of that provision respectively and that, consequently, only the response, not the reasons, has to be communicated within two months.

That interpretation, in my view, is based on an unjustified distinction between the first and the second sentence of Article 3(4) of the Directive and I consider it inappropriate in the light of the spirit and purpose of that provision.

Article 1 provides that one of the objects of the Directive is to set out the basic terms and conditions on which information relating to the environment is made available. The substantive conditions on which natural or legal persons are to be given access, at their request, to such information are in that context laid down in Article 3(1) to (3).

Article 3(4) of the Directive lays down the rules governing decisions on that right of access from a procedural aspect. Under the first sentence of that provision, a public authority must react and respond to a request for information as soon as possible and at the latest within two months. In accordance with the scope of the right of access, as it is provided for under Article 3(1) to (3), that response may involve granting access to the information requested or refusing access to that information on the grounds cited therein.

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 refusing the requested access. That fact alone clearly demonstrates that the second sentence of that provision cannot be a measure entirely independent of the first sentence. On the contrary, as regards refusing a request for information ─ a matter already covered by the first sentence ─ the second sentence additionally provides that the reasons for that refusal must be given.

Therefore, the laying down of that obligation to give reasons in a second, separate sentence is, rather, the outcome of the translation into language of that additional condition in the event of a response for the purposes of the first sentence of Article 3(4) by which a public authority refuses, rather than grants, a request for information. Contrary to the argument raised by the French Government, it cannot be concluded from the foregoing that that obligation to give reasons can be separated from the general obligation to respond, nor that it is not subject to the time-limit prescribed by that provision.

In addition, a time-limit within which the public authorities must respond, such as that laid down in Article 3(4) of the Directive, is particularly conducive to legal certainty because it ensures that the person requesting the information is not left for an indefinite length of time in the dark as regards the outcome of his request and his legal position. In my view, this aspect merits special attention precisely in the context of a directive which is designed to guarantee public access to information held by the public authorities.

In that regard it should be assumed that the abovementioned requirement of legal certainty also arises in relation to the actual reasons for a refusal, especially where account is taken of the fact that Article 4 of the Directive provides for the possible review of both positive and negative responses issued by the public authorities and that the lawfulness of those responses must be assessed by reference to the reasons on which they are respectively based.

An interpretation under which a time-limit is not considered to apply to the requirement under Article 3(4) of the Directive to give reasons in the event of a public authority's refusal is not therefore compatible either with the spirit and purpose of that provision or with the Directive as a whole.

Therefore, under Article 3(4) of the Directive Member States must in any event ensure that where a person's request for information is refused, he will also obtain notification of the reasons for that refusal at the latest within two months. Accordingly, the approach adopted by the French Government that the reasons and the time-limit can be separated is incorrect. The argument raised by the French Government on the basis of that approach must consequently be rejected in its entirety.

The Commission was therefore right to proceed on the assumption that the refusal of a request for access to information must in any event be communicated together with the reasons on which that decision is based at the latest within two months.

In that context it also had to be established whether the reasons have to be given at the same time as the refusal. However, as I have already made clear in this Opinion, the objection that Article 3(4) of the Directive has been transposed incorrectly would indeed be well founded if there were no guarantee that the reasons for a refusal to supply the information requested would be given to the person requesting the information within the prescribed period of two months. If those circumstances are proven to be true below, there will then be no need to ascertain additionally whether the reasons have to be given at the same time as the refusal.

First of all, I would like generally to stress that a Member State is quite at liberty to determine the form and methods to be used to transpose a directive, which is indeed clear from the third paragraph of Article 249 EC. Moreover, as far as transposing directives is concerned, a matter to which I have already referred on a number of occasions, a Member State can confine itself in principle to a general legal context.

However, the method of transposition chosen by a Member State in any event must actually ensure the full application of the directive in a sufficiently clear and precise manner, thus enabling the persons affected by the directive to ascertain the full extent of their rights.

The Commission considers the French legislation to be contrary to the Directive in so far as it does not ensure that persons requesting information are sent the refusal of the public authority, including the reasons for that refusal, within two months in accordance with Article 3(4).

The following can be established as regards the legislation by which, according to the French Government, that obligation is transposed:

Even though the French Government maintains that the public authority is in principle required, on the basis of Article 7 of Law No 78-753 as amended by Decree 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 objects, may lead to unreasoned refusals. Consequently, that legislation is in itself incapable of ensuring without any doubt that reasons are given for refusals by the public authorities and, indeed, that they are given within the time-limit of two months.

However, the French Government has 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].

In this regard it is sufficient to point out that the obligation of a public authority to send the reasons for its tacit refusal within one month to the recipient of that refusal in accordance with that provision arises only upon a request made by that very recipient. Under Article 3(4) of the 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 information having to take further action. Therefore, the obligation to give reasons under Article 3(4) of the Directive is not properly transposed into national law by that provision either.

Finally, the French Government has also maintained that the provisions described do not necessarily result in delays in the notification of reasons. It explained that individuals could, on the basis of Law No 78-753 and Decree No 88-465, clearly 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 months.

Irrespective of the fact ─ as I have just established above ─ that the provision 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 reasoned response within the two-month period prescribed. On the contrary, there has to be a clear obligation under the national implementing provisions to give reasons within two months for the refusal of a request for access to information on the environment.

It may therefore be stated overall that the French legislation does not ensure in a clear and precise manner that a person whose request for information is refused will obtain reasons for that refusal within two months. Article 3(4) of the Directive consequently has not been fully transposed. Therefore, there is no longer any need in the present case to address the question whether the reasons for the refusal have to be given not only within the period prescribed by that provision but also at the same time as the decision refusing the request.

On that basis, the fifth plea is well founded.

Conclusion

I therefore propose that the Court should:

declare that, by not correctly 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 environment the French Republic has failed to fulfil its obligations under that directive and under the third paragraph of Article 249 of the Treaty;

order the French Republic to pay the costs.

Original language: German.

OJ 1990 L 158, p. 56.

Law No 78-753 of 17 July 1978 establishing various measures to improve relations between the authorities and the public and various administrative, social and fiscal provisions (JORF, 18 July1978, p. 2851).

Decree No 88-465 of 28 April 1988 on the procedure governing access to administrative documents (JORF, 30 April1988, p. 5900).

Law No 79-587 of 11 July 1979 on the requirement to state reasons for administrative measures and on improving relations between the authorities and the public (JORF, 12 July 1979, p. 1711).

Law No 2000-321 of 12 April 2000 concerning the rights of citizens in their relationship with the authorities, amending Law No 78-753 of 17 July 1978 establishing various measures to improve relations between the authorities and the public and various administrative, social and fiscal provisions (JORF, 13 April 2000, p. 5646).

Ordinance No 2001-321 of 11 April 2001 on transposing Community directives and implementing Community provisions relating to the environment (JORF, 14 April 2001, p. 5820).

See point 21 above.

To that effect, compare for example Case C-474/99 Commission v Spain [2002] ECR I-5293, paragraph 25, and Case C-243/89 Commission v Denmark [1993] ECR I-3353, paragraph 30.

Compare, for example, Case C-166/00 Commission v Greece [2001] ECR I-9835, paragraph 9, and Case C-29/90 Commission v Greece [1992] ECR I-1971, paragraph 12.

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11See in particular Case C-394/00 <i>Commission</i> v <i>Ireland</i> [2002] ECR I-581, paragraph 12, Case C-435/99 <i>Commission</i> v <i>Portugal</i> [2000] ECR I-11179, paragraph 16, and Case C-111/00 <i>Commission</i> v <i>Austria </i>[2001] ECR I-7555, paragraph 13.

12Case C-321/96 <i>Mecklenburg</i> [1998] ECR I-3809.

13Case C-343/95 <i>Calì &amp; Figli </i>[1997] ECR I-1547, paragraphs 22 and 23.

14Joined Cases C-132/91, C-138/91 and C-139/91 <i>Katsikas</i> <i>and Others </i>v <i>Konstantinidis</i> <i>and Others</i> [1992] ECR I-6577, paragraph 40.

15Cf. inter alia Case C-337/98 <i>Commission </i>v <i>France</i> [2000] ECR I-8377, paragraph 45, and Case C-96/98 <i>Commission</i> v <i>France</i> [1999] ECR I-8531, paragraph 36.

16See Case C-392/96 <i>Commission </i>v <i>Ireland </i>[1999] ECR I-5901, paragraphs 60 and 61.

18To that effect, cf. Case C-131/88 <i>Commission</i> v <i>Germany</i> [1991] ECR I-825, paragraphs 4 and 9.

19Inter alia Case C-49/00 <i>Commission</i> v <i>Italy</i> [2001] ECR I-8575, paragraph 21, Case C-214/98 <i>Commission</i> v <i>Greece </i>[2000] ECR I-9601, paragraph 49, and Case C-38/99 <i>Commission</i> v <i>France</i> [2000] ECR I-10941, paragraph 53.

21Case C-131/88 (cited in footnote 18), at paragraph 8 (no emphasis in the original version) and Case C-59/89 <i>Commission</i> v <i>Germany</i> [1991] ECR I-2607, paragraph 28.

22Case C-354/98 <i>Commission </i>v <i>France </i>[1999] ECR I-4927, paragraph 11.

24To that effect, cf. Case C-343/96 <i>Dilexport</i> [1999] ECR I-579, paragraph 51, which refers in this context to Case C-347/89 <i>Eurim-Pharm</i> [1991] ECR I-1747, paragraph 15 and to the <i>Katsikas</i> judgment (cited in footnote 14), at paragraph 39.

25To that effect, cf. Case C-372/99 <i>Commission</i> v <i>Italy </i>[2002] ECR I-819, paragraph 22.

26Case C-144/99 <i>Commission</i> v <i>Netherlands</i> [2001] ECR I-3541, paragraph 21.

27Inter alia Case C-236/95 <i>Commission</i> v <i>Greece</i> [1996] ECR I-4459, paragraph 13.

28Case C-131/88 (cited in footnote 18), at paragraph 6, and Case C-59/89 (cited in footnote 21), at paragraph 18.

29Opinion in Case C-145/99 <i>Commission </i>v <i>Italy</i> [2002] ECR I-2235, points 45 to 47.

30Case C-321/96 (cited in footnote 12), at paragraph 19.

32See <i>ibidem</i> .

34Compare, for example, Case C-217/97 <i>Commission </i>v <i>Germany</i> [1999] ECR I-5087, paragraphs 32 to 35.

36Case C-131/88 (cited in footnote 34), at paragraphs 33 and 35.

37Cf. in particular <i>Commission</i> v <i>Germany</i> (cited in footnote 34), at paragraphs 33 and 35.

38To that effect, cf. observations of the Advocate General on the second plea at point 55 above.

39Case 195/80 <i>Michel </i>v <i>Parliament</i> [1981] ECR 2861, paragraph 22.

40Case 222/86 <i>Heylens and Others</i> [1987] ECR 4097.

41Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

42See the defence in that connection.

43See my comments in points 38 and 39 above and the case-law cited in footnote 19.

44Cf. inter alia Case C-217/97 (cited in footnote 34), at paragraphs 31 and 32, and the case-law of the Court cited therein.