Keywords
Summary

Keywords

1 Actions for failure to fulfil obligations - Sufficient evidence - Burden of proof on the Commission - Whether a presumption may be relied on - Not permissible

(EC Treaty, Art. 169 (now Art. 226 EC))

2 Environment - Freedom of access to information - Directive 90/313 - Derogation provided for in Article 3(2), first subparagraph, third indent - Scope - `Preliminary investigation proceedings' - Meaning - Administrative procedure preparing the way for an administrative measure - Condition

(Council Directive 90/313, Art. 3(2), first subpara., third indent)

3 Acts of the institutions - Directives - Implementation by the Member States - Transposition of a directive into national law without legislative action - Conditions - Existence of a general legal context ensuring full implementation of the directive

(EC Treaty, Art. 189, third para. (now Art. 249, third para., EC))

4 Environment - Freedom of access to information - Directive 90/313 - Obligation to make a partial disclosure of information - Implementation - Whether the mere mention of partial communication in an annex to rules concerning the fixing of charges constitutes implementation - Insufficient

(Council Directive 90/313, Art. 3(2), second subpara.)

5 Environment - Freedom of access to information - Directive 90/313 - Information disclosed on payment of a charge - `Reasonable' amount - Meaning

(Council Directive 90/313, Art. 5)

Summary

1 In the context of proceedings under Article 169 of the Treaty (now Article 226 EC) for failure to fulfil obligations, it is for the Commission to prove the existence of the alleged failure, and it may not rely on any presumption for that purpose.

2 The term `preliminary investigation proceedings' which appears in the third indent of the first subparagraph of Article 3(2) of Directive 90/313 - which provides for a derogation from the general rules for access to information on the environment, in relation to matters which are sub judice or under enquiry, or which are the subject of preliminary investigation proceedings - is to be interpreted as including an administrative procedure such as that referred to in the German legislation transposing the Directive into national law, which merely prepares the way for an administrative measure, only if it immediately precedes a contentious or quasi-contentious procedure and arises from the need to obtain proof or to investigate a matter prior to the opening of the actual procedure.

3 The transposition of a directive into national law does not necessarily require its provisions to be formally incorporated verbatim in express, specific legislation; a general legal context may be adequate for the purpose, provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner. The persons concerned must be able to ascertain the full extent of their rights and, where appropriate, to rely on them before the national courts.

4 Although, under Article 3(2), first subparagraph, of Directive 90/313 on the freedom of access to information on the environment, Member States may refuse to grant a request for information in the cases listed exhaustively in that provision, the second subparagraph of Article 3(2) requires them to communicate information from which it is possible to detach information which may be covered by the requirements of confidentiality or privilege, thus imposing on Member States an obligation which is precise as regards the result to be obtained and which directly affects the legal situation of individuals, who are accordingly entitled to obtain information under the conditions laid down in that subparagraph.

National legislation which merely mentions the partial communication of information, for the purposes of levying certain charges, in an annex to the national rules fixing the charges which may be made for supplying information on the environment, and which, moreover, applies only to the federal authorities, is not sufficient to implement clearly the obligation set out in the second subparagraph of Article 3(2) of the Directive in relation to the partial communication of information.

5 Consequently, the term `reasonable' for the purposes of Article 5 of Directive 90/313 - which permits Member States to make the supply of information on the environment subject to payment of a charge, provided that such a charge does not exceed a reasonable amount - must be understood as meaning that Member States are not thereby authorised to pass on to those seeking information the entire amount of the costs (indirect costs, in particular) actually incurred for the State budget in conducting an information search. Furthermore, a charge made where a request for information is refused cannot be described as reasonable, since in such a case no information has in fact been supplied within the meaning of Article 5 of the Directive.