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Document 52012DC0774

REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT ON THE EXPERIENCE GAINED IN THE APPLICATION OF DIRECTIVE 2003/4/EC ON PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION

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52012DC0774

REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT ON THE EXPERIENCE GAINED IN THE APPLICATION OF DIRECTIVE 2003/4/EC ON PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION /* COM/2012/0774 final */


REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT

ON THE EXPERIENCE GAINED IN THE APPLICATION OF DIRECTIVE 2003/4/EC ON PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION

I. Introduction

The Commission established this evaluation report to the European Parliament and to the Council in accordance with Article 9(2) of Directive 2003/4/EC ('the Directive')[1] of the European Parliament and of the Council on public access to environmental information and repealing Council Directive 90/313/EEC.[2] It is based on the experience gained by the Commission and the Member States over several years of application of the Directive. As required by Article 9(1), every Member State has reported on how it is implementing the Directive.

As stipulated in Article 9(2), the report takes into account developments in electronic technology. This review therefore forms part of the Digital Agenda for Europe.[3] It also fits in with the general goal of making 'full use of information and communication technologies', set in the Europe 2020 Strategy.[4]

This report focuses on the new provisions, such as the broader definitions of terms and more active dissemination of information. It must also be seen in the context of recent policy developments such as the Communication on Implementation[5], in which the Commission identified access to information as a key priority for improving implementation of environmental law and committed itself to assessing how to make the Directive more effective.

II. Key features of the Directive

The previous directive

Directive 90/313/EEC started from the concept that environmental issues are best handled and that environmental protection will ultimately improve if everyone concerned participates at the relevant level. To foster public awareness and involvement, it provided a set of rights of access to information on the environment and laid down the basic terms and conditions under which they could be exercised. The Commission's report on the application of the previous directive[6] concluded that it had brought positive results, but also identified some shortcomings. The Commission therefore decided to replace it by a new directive.

Changes introduced by the Directive

The Directive built on the experience gained under its predecessor. Furthermore, at the time it was drafted, the European Union was preparing to ratify the UN-ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ('the Aarhus Convention').[7] In that context, the Directive was brought into line with the generally more far-reaching provisions of the Aarhus Convention on access to information. The Directive also took account of developments in electronic communication technology, particularly for the format in which information was to be provided. It also placed stronger emphasis on active dissemination of information and set out more detailed rules in areas where Directive 90/313/EEC had still referred to national law. The main changes are:

-     a broader definition of 'environmental information' which encompasses a wider range of matters related to the environment;

-     a broader definition of 'public authorities' which includes persons who perform public administrative functions;

-     more detailed provisions on the form in which information is to be made available, including a general obligation to provide information in the format requested and the possibility to use electronic means;

-     a shorter deadline of one month for making the information requested available, to be extended by a further month if the volume and complexity of the information so require;

-     limitations on the grounds for refusal. Requests for information may be refused only if disclosure would adversely affect one of the interests listed. The exceptions are to be interpreted restrictively, taking into account the public interest served by disclosure;

-     limitations on the grounds for refusal if the request relates to information on emissions into the environment ('emissions-rule');

-     additional obligations placed on national authorities to collect and disseminate information going beyond the obligation to disclose information;

-     additional obligations placed on national authorities to assist the public in seeking access to information;

-     improved procedures for review of acts or omissions by public authorities, in particular before a court of law or another independent and impartial body established by law.

III. Transposition by the Member States

Under Article 10, the Directive had to be transposed into national legislation by 14 February 2005 (1 January 2007 for Bulgaria and Romania). However, most Member States were late in transposing it. The Commission therefore initiated infringement and then Court proceedings. Three cases, against Germany, Greece and Spain,[8] were, however, closed after these Member States had transposed the Directive. In two cases, the Court of Justice ruled that by not adopting, within the period prescribed, all the laws, regulations and administrative provisions necessary to transpose the Directive, Austria[9] and Ireland[10] had failed to fulfil their obligations under the Directive. In the meantime, all the Member States have transposed it.[11]

IV. The review procedure

As a first step in the review procedure under Article 9, Member States were asked to report on their experience with application of the Directive. As required by Article 9(1), the Commission sent them a guidance document on 19 June 2007. It asked the Member States to present a general description of the measures taken to implement the Directive, to report on their impact, to focus on the individual articles of the Directive and to provide any statistics.

The Commission noted delays in communication of the national reports. By the deadline set in the Directive (14 August 2009), less than half of the reports had been received. After further invitations to respond, in December 2009 the Commission initiated 11 infringement procedures. By mid-April 2010, all the national reports had been received. They were translated by the end of July 2010[12], and then assessment of all the reports started.

The Commission has also gained experience in the course of performing its own tasks, notably by handling complaints and monitoring compliance. Petitions and parliamentary questions provided another valuable source of information on how far Member States were meeting their obligations. The European Court of Justice has in turn also ruled on several provisions.

V. Application of the Directive

This is the first evaluation of application of the Directive. As mentioned earlier, most Member States were late in transposing it. Some pointed out in their national reports that, because of this, they could not fully assess its impact at that time. Their experience cannot, therefore, be regarded as entirely conclusive at this stage. However, the Commission wants to draw conclusions already and identify areas which need further attention.

Some Member States have transposed the Directive in numerous pieces of legislation. This could make it difficult for citizens to track down the applicable legislation when they want to exercise their right of access.

Member States generally felt that the Directive had a positive impact on involvement of civil society. On the negative side, the administrative burden was a major concern for many.

In the Commission's view, overall, the level of transposition seems satisfactory. However, there are a number of difficulties in both transposition and practical application. These are described below.

Article 2 - Definitions

a) 'Environmental information'

The definition of 'environmental information' in the Directive encompasses information in any form on the state of the environment or on the state of human health and safety. It is the same as the definition in the Aarhus Convention. Correct classification is important, as 'environmental information' comes under the specific provisions of the Directive, which tend to provide broader access rights than exist for access to general administrative information.

The Commission has found only isolated instances of incorrect, notably incomplete or ambiguous, transposition of the definition of 'environmental information' into the laws of the Member States. It is following these up with the Member States concerned. As for application of the definition, the Commission has learned, notably via complaints, of instances where national authorities have been reluctant to classify certain sector-specific or technical documents as 'environmental information'.

The Court of Justice interprets the definition of 'environmental information' in Article 2(1) broadly. In its judgment of 16 December 2010 in Case C-266/09, Stichting Natuur en Milieu and Others v College voor de toelating van gewasbeschermingsmiddelen en biociden, the Court included a procedure for authorisation of a plant protection product within this term. This broad definition of 'environmental information' sets an important precedent for interpretation of Article 2(1) by the Member States.

National courts or authorities like the Ombudsman have already stated their positions on the definition of 'environmental information' in their national laws. They appear to have followed the broad definition indicated by the Court. The Commission is following up on only a limited number of apparently too narrow interpretations by public authorities.

b) 'Public authority'

Article 2(2) of the Directive defines public authorities in a broad and functional way, as does the Aarhus Convention. The term includes bodies performing public administrative functions, having public responsibilities or functions or providing public services.

The vast majority of Member States have transposed the term correctly. However, some difficulties have arisen in application, notably in determining whether a certain type of body falls under that definition. Examples of entities that individual Member States have considered to be 'public authorities' in some cases following rulings by national courts include heat generation, water or waste management companies and local environmental foundations. The question of whether a given entity can be counted as a 'public authority' cannot be answered in a general manner, but has to be decided case by case. The Commission found that, overall, Member States are correctly implementing the broad definition of 'public authority' in Article 2(2).

The second subparagraph of Article 2(2) allows Member States not to include in the definition 'bodies or institutions when acting in a judicial or legislative capacity'. In its judgment of 14 February 2012 in Case C-204/09 on a reference for a preliminary ruling from the Bundesverwaltungs­gericht (Germany), Flachglas Torgau GmbH v Federal Republic of Germany, the Court interpreted the derogation for legislative action broadly. It held that ministries participating in the legislative process may be exempt for the duration of the process.

Article 3 - Access to environmental information upon request

a) Time-limits

Article 3(2) states that, having regard to any timescale specified by the applicant, environmental information must be made available as soon as possible and at the latest within one month of receipt of the request. If the information is voluminous and complex, the deadline can be extended by a further month, in which case the reasons have to be given.

The timeframe for answering requests for environmental information is applied differently by the Member States. Some set even shorter initial deadlines (5, 14, 15 or 20 working days), which is in line with the Directive.

The twin requirements that the applicant may specify a timescale and that the information must be given as soon as possible have not been implemented by every Member State. Furthermore, in cases where the deadline is extended, national legislation does not always require that the applicant has to be informed and that reasons have to be given. However, these were limited cases and the vast majority of Member States have transposed these requirements correctly.

Some found it difficult to provide the requested information in time, e.g. in cases where the information was spread across different departments or when they had a large volume of requests to handle at the same time. Consultation with third parties affected by the request equally made it difficult to meet the deadlines.

Some Member States allow the deadlines to be broken in case of force majeure or under special circumstances. These exceptions are broader than those envisaged in the Directive and can give rise to interpretation problems. The Commission is following up such instances of non-compliance.

Overall, the shorter timeframe for answering requests for environmental information introduced by the Directive seems reasonable. Concerns voiced by some Member States about how to meet the deadlines set in the Directive contrast with the even shorter deadlines set in others. Making information widely available on the internet should help to lighten the information tasks of public authorities.

b) Practical arrangements

Article 3(5) lists certain practical arrangements that Member States have to make to support members of the public seeking access to environmental information (e.g. assistance or establishment of registers or lists). These are a strong corollary for the public to exercise effectively their rights under the Directive. However, some Member States have not yet fully implemented them. In particular, further attention needs to be given to subparagraph (b), which requires Member States to ensure that lists of public authorities are publicly accessible. Best practice for implementing Article 3(5) consists of designating information officers and information points, providing information on the responsibilities of individual public authorities, publishing registers of available environmental information and establishing publicly accessible information networks and databases. Member States provide the information required under Article 3(5) primarily via the internet, plus, in some cases, specific brochures. This meets the requirements.

Article 4 - Exceptions

The list of exceptions in Article 4 of the Directive mirrors Article 4(3) to (5) of the Aarhus Convention. Partly, it even provides better rights of access than the Convention.[13]

Article 4 is one of the key provisions of the Directive. It contains an exhaustive list of all cases where Member States may refuse a request for environmental information. Disclosure is the general rule, unless one of the specific exceptions applies. Member States may not add further exceptions to the list. However, nor do they have to transpose every possible exception into their national law, in line with the general principle that Member States are free to provide broader access than required by the Directive. For example, some have not transposed the exceptions for manifestly unreasonable or too general requests and thus allow wider access to environmental information.

Implementation of Article 4 is not yet entirely satisfactory in every Member State. Problem areas include:

Unlawful addition to the list of exceptions

Some national legislation unduly adds grounds for refusal to those in the Directive. One Member State exempts information once classified as confidential from disclosure. Another has systematically been refusing queries about particular proceedings that might contain environmental information if the applicant was not a party to them. These are all examples of non-compliant transposition and/or application of the Directive and the Commission is following them up accordingly.

Definitions

Member States feel that certain terms, although used in the previous directive, still pose difficulties when it comes to interpretation. Examples include 'manifestly unreasonable' or "internal communications". Court of Justice case law provides valuable guidance on this. Case C-204/09, Flachglas Torgau (see above), concerns i.a. the definition of 'confidentiality of the proceedings of public authorities' in Article 4(2)(a).[14] For issues not yet settled by case law, one solution adopted by Member States has been to add further indications in the transposing measures to circumscribe these terms.

Transposition of new provisions

The Directive added new provisions in Article 4. The paragraph on the restrictive interpretation of the exceptions, the weighing of interests and the 'emissions rule' (legal presumption that the public interest served by disclosure prevails if the request relates to emissions into the environment) was not part of the previous directive (Article 4(2), second subparagraph). The same goes for the paragraphs on the Data Protection Directive[15] and on which information has to be given to the applicant when the request is refused on the ground that it concerns material in the course of completion.

Member States often appear not to have transposed these new provisions or not correctly. For instance, some have no specific provision that the grounds for refusal must be interpreted in a restrictive way, nor do they expressly provide for weighing the interests concerned.

The Court of Justice has already given valuable guidance on interpretation of the second subparagraph of Article 4(2). Case C-266/09, Stichting Natuur en Milieu (see above), deals with the balance between the right of public access to environmental information and the confidential treatment of commercial and industrial information. The Court confirmed that, as indicated by the wording of the second subparagraph, the interests must be balanced case by case and protection of commercial or industrial information is limited if it relates to information on emissions into the environment (application of the 'emissions-rule').

Case C-71/10, on a reference for a preliminary ruling from the UK Supreme Court, Office of Communications v The Information Commissioner, also concerns weighing the public interest served by disclosure against the interests protected under Article 4(2). More than one protected interest was at stake but neither, on its own, would have been sufficient to outweigh the public interest in disclosure. On 28 July 2011, the Court ruled that, when weighing the public interest served by disclosure against the interests served by refusal to disclose, separate interests protected under Article 4(2) have to be considered cumulatively.

Relationship to other EU legislation

A further problem is the relationship between Article 4 and provisions on access to information in sector-specific EU legislation. As a general rule, the sector-specific act as "lex specialis" overrules the general access provisions in the Directive. However, many sector-specific acts contain provisions on their relationship to the Directive, either allowing general access to information subject to the Directive[16] or further specifying the scope of the Directive within their ambit.[17] Nevertheless, it can be difficult to ascertain which legal instrument applies to a specific case. There is already some case law on this subject.

In its judgment of 17 February 2009 in Case C-552/07, Commune de Sausheim v Pierre Azelvandre[18], the Court held that a Member State cannot invoke an exemption provided for by Article 4(2), including 'public security', in order to refuse access to information which should be in the public domain under the GMO Directive.[19] The transparency requirements arising from the GMO Directive therefore take precedence over the exception to protect public order or other interests under the Directive.

In its judgement of 22 December 2010 in Case C-524/09, Ville de Lyon v Caisse des dépôts et consignations, the Court dealt, in particular, with whether data on greenhouse gas emission allowance trading had to be considered as 'information on emissions into the environment' within the meaning of Article 4 in which case 'the confidentiality of commercial or industrial information' could not be invoked. However, it found that provision of such information was governed by the specific rules on confidentiality in the emission trading scheme.[20]

As regards the form and content of refusals (Article 4(5)), one Member State still provides for tacit refusals, where the national authority is presumed to refuse if it neither makes the information available nor issues a written refusal before the time limit expires. However, such tacit refusal is contrary to the Directive which calls for an express answer, stating the reasons, in each individual case.[21] Best practice amongst Member Sates concerning the form of refusals consists of having to give a written reply in every case even when the request was not in writing – a requirement that is even stricter than provided for in the Directive.

The Commission will continue to interact with the Member States to ensure correct transposition of the Directive. Member States are invited to provide further guidance to their authorities to avoid any ambiguous or arbitrary application of the exemptions.

Article 5 – Charges

Article 5 aims to prevent financial obstacles to the rights of information under the Directive.

Paragraph 1 states that access to registers or lists and examination of the information in situ must be free of charge. Establishing completely free access to information in situ is still a challenge for a number of Member States.

Paragraph 2 adds that any charges for supplying environmental information must not exceed a reasonable amount. This is generally the case.

Paragraph 3 requests Member States to provide information on any charges, including on the circumstances in which a charge may be levied or waived. Such information is generally available in the Member States. However, access to clear rules on the fees charged could be further improved to ensure greater transparency. This is particularly valid in cases where Member States opted to make the rules available only at local level. In that case, availability should be improved by further means, such as dedicated websites, in order to create an easily accessible, well-structured framework on charges. Some Member States have adopted legislation clearly indicating the costs charged. This solution ensures legal certainty and at the same time guarantees wide availability.

Article 6 - Access to Justice

The right to an effective remedy is guaranteed by Article 19(1) of the Treaty on European Union ('Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union Law') and Article 47(1) of the Charter of Fundamental Rights of the EU ('Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy […]'). Article 6 of the Directive applies the right to an effective remedy with regard to environmental information. It provides for two levels of appeal: administrative review and review before a court of law or another independent and impartial body established by law.

Apart from individual exceptions, the Member States have transposed Article 6 correctly. In parallel to assessing Member States’ transposing legislation, the Commission has also initiated a limited number of infringement procedures, mainly to ensure transposition of the requirements for an 'expeditious' and 'inexpensive' review procedure.

However, there are certain shortcomings with application of Article 6 in some Member States. If the provisions in the Directive are to be effective, they must be applied to all levels of appeal. For instance, administrative authorities authorised to deal with appeals at first or second instance need to be independent from each other and to be able to give decisions complying with the Directive. A number of Member States have set up a special tribunal for first instance appeals already. However, this good practice must not lead to ineffectiveness at the second stage of appeal in the form of costly and protracted procedures. Procedural guarantees covering all instances are important to provide full access to justice and avoid having only one effective instance of appeal, while the subsequent stages remain costly and slow.

Bodies overseeing mal-administration, such as the Ombudsman, also play an important role in ensuring effective remedies. However, they should be regarded as complementary to an effective appeal system.

These deficiencies in implementation are addressed by the Commission with the Member States. They require further action at Member State level, monitored by the Commission.

Article 7 - Dissemination of environmental information

Article 7 provides for active and systematic dissemination of environmental information to the public, in particular by means of computer telecommunication and/or electronic technology. Article 7(2) indicates what kind of information needs to be made available (e.g. legal texts, policies, plans and programmes, reports and studies, data or summaries of data obtained from monitoring activities affecting, or likely to affect, the environment).

Electronic technology is the key to implementing the objectives (Article 1) and provisions of the Directive. The Directive does not prescribe which types of electronic technology should be used. However, the means chosen must be easily accessible and not create further obstacles to provision of information. Article 7 also allows Member States to adapt to developments in technology. Good use of technology can also help to reduce costs and the administrative burden of responsive disclosure which several Member States are concerned about.

Member States have implemented Article 7 in different ways. Most offer electronic portals and/or websites to give access to some of the categories of information listed in Article 7(2) at different levels of government. However, it can be difficult to find online information on how individual environmental directives are implemented in national legislation and how authorities are meeting their demands. In general, to allow easier and more effective use of information, further progress is needed on how active dissemination is organised.

The Directive can be regarded as the most extensive individual EU legislation on active dissemination of environmental information. However, other acts such as the INSPIRE[22] and PSI Directives[23] and initiatives such as SEIS[24] also provide wide electronic access to certain information held by public bodies. Together, they make up a framework for sharing environmental information, including data obtained from monitoring activities. This wider context which is continuously evolving influences the implementation of Article 7. A high degree of coordination is desirable in order to ensure overall consistency across all relevant instruments and initiatives.

Article 8 - Quality of environmental information

Article 8 sets quality standards for the environmental information compiled. Member States should aim so far as is within their power to ensure that the data are up to date, accurate and comparable.

Environmental information should enable users to participate meaningfully in developing and implementing environment policy and to assess policy effectiveness.

Data quality proved a difficult objective as it largely depends on resources, capacity and technology. Moreover, there is often no standard method to ensure and measure data quality and achieve comparability of environmental information.

Quality is also relevant to other environmental directives, as the action required is often triggered by state-of-the-environment monitoring or other information on implementation. Notwithstanding this, and the progress made on a number of fronts, quality problems have been reported in various areas of environment policy[25].

VI. Conclusions and way forward

The Commission considers that application of the Directive has substantially improved access to environmental information on request. Individual instances of infringements in specific Member States are followed up by the Commission. The Commission expects that, over time, the new provisions will be adequately integrated into the Member States' legal orders and duly applied by their authorities.

The emergence of an information society with an increased emphasis on wide access requires a shift from an approach dominated by information-on-request needs to an approach centred on active and wide dissemination using the latest technologies. The Directive leaves flexibility for Member States to choose the appropriate means to disseminate environmental information actively and accommodate changes in computer telecommunications and electronic technology. Some Member States have developed user-friendly websites – for example, allowing the public to see on a map the level of waste-water treatment for their city or town. In that context, the Commission calls on all Member States to make the widest possible use of the provisions on active dissemination.

In line with its Communication on Implementation and the subsequent conclusions adopted by the Council on 11 June 2012 and in line with the proposed 7th Environmental Action Programme[26], the Commission will seek to help Member States to structure information better for active dissemination.[27] It will also conduct separate studies to review in more detail the current practices on active dissemination and the challenges related to the quality of environmental information. Depending on the outcome and on wider developments in information technology, the Commission will decide whether any further amendments to the Directive might be necessary in the future.

[1]       OJ L 41 of 14 February 2003, p. 26.

[2]       Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment, OJ L 158 of 23 June 1990, p. 56. Repealed by the Directive with effect from 14 February 2005.

[3]       Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 26 August 2010 on a Digital Agenda for Europe, COM (2010)245 final/2.

[4]       Communication from the Commission of 3 March 2010 on Europe 2020 – A strategy for smart, sustainable and inclusive growth, COM(2010)2020, p. 9.

[5]       Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 7 March 2012 on improving the delivery of benefits from EU environment measures: building confidence through better knowledge and responsiveness, COM(2012)95 final.

[6]       Report from the Commission to the Council and the European Parliament on the experience gained in the application of Council Directive 90/313/EEC of 7 June 1990, on freedom of access to information on the environment, COM(2000) 400 final.

[7]       The European Community signed the Aarhus Convention on 25 June 1998 and ratified it on 17 February 2005. The Convention entered into force on 30 October 2001.

[8]       Cases C-44/07, C-85/06 and C-53/06, respectively.

[9]       Judgement of 5 July 2007 in Case C-340/06, ECR 2007, p. I-96.

[10]     Judgement of 3 May 2007 in Case C-391/06, ECR 2007, p. I-65.

[11]     A list of the transposing measures communicated by the Member States to the Commission is available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:72004L0003:EN:NOT

[12]     The reports by the Member States and the translations are published on the Europa website at: http://ec.europa.eu/environment/aarhus/reports_ms.htm.

[13]     For example, the Directive explicitly names a wider range of exceptions that cannot be invoked if the request relates to information on emissions into the environment ('emissions-rule').

[14]     The Court held that the confidentiality of proceedings of public authorities within the meaning of Article 4(2)(a) of the Directive is 'fulfilled by the existence, in the national law of the Member State concerned, of a rule which provides, generally, that the confidentiality of the proceedings of public authorities is a ground for refusing access to environmental information held by those authorities', insofar as the concept of 'proceedings' is clearly defined.

[15]     Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; OJ L 281 of 23 November 1995, p. 31.

[16]       The INSPIRE-Directive (see reference below) for instance provides in its Article 2 that it is without prejudice to Directive 2003/4/EC.

[17]       Article 22 of the Seveso III Directive for instance refers to Article 4 of the Directive (Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC; OL L 197 of 24 July 2012, p. 1).

[18]       ECR 2009, p. I-987.

[19]       Directive 2001/18/EC of the European Parliament and of the Council on the deliberate release into the environment of genetically modified organisms, OJ L 106 of 17 April 2001, p. 1.

[20]       Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended by Directive 2004/101/EC of the European Parliament and of the Council of 27 October 2004 and by Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87 and Decision No 280/2004/EC of the European Parliament and of the Council. Article 17 of Directive 2003/87/EC provides for access to information subject to Directive 2003/4/EC.

[21]       In its judgment of 21 April 2005 in Case C-186/04, Housieux, the Court has already ruled, in relation to the previous directive, that an implied refusal is unlawful (ECR 2005, p. I-3299).  A tacit refusal can only be a device intended to allow effective legal protection and a means of disciplining the public authority.

[22]     Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infra­structure for Spatial Information in the European Community (INSPIRE), OJ L 108 of 25 April 2007, p. 1.

[23]     Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, OJ L 345 of 31 December 2003, p. 90.

[24]     Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions of 1 February 2008 Towards a Shared Environmental Information System (SEIS), COM(2008) 46 final.

[25]     For example, the Commission review of the EU Pollutant Release and Transfer Register (E-PRTR) Regulation highlighted a lack of comparability in the information provided by the Member States, due to the use of different methods used for generating the data and lack of consistency of information.

[26] COM(2012)710 final

[27]     The Communication refers to Structured Implementation and Information Frameworks (SIIFs) which would aim to provide online information in a more coherent way on the outputs of implementing individual directives – plans adopted, authorisations issued, monitoring data obtained etc.

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