1.

In order to implement the Aarhus Convention, ( 2 ) the Environmental Information Directive ( 3 ) establishes a right of access to environmental information. At the same time, both the Convention and the directive provide for exceptions to that right which permit, in particular, the protection of internal communications and proceedings of public authorities.

2.

The present request for a preliminary ruling seeks to clarify whether records of government cabinet discussions come either under the exception for internal communications or under the exception for proceedings of public authorities. It must also be considered whether this question may be re-examined at all if it has already been decided in an earlier final judgment on the same request for access.

3.

The right of access to environmental information is laid down in Article 4 of the Aarhus Convention.

4.

Article 4(3)(c) of the Aarhus Convention contains an exception for internal communications:

‘A request for environmental information may be refused if:

…

5.

The confidentiality of the proceedings of public authorities may be protected under Article 4(4)(a) of the Aarhus Convention:

‘A request for environmental information may be refused if the disclosure would adversely affect:

…

The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.’

6.

Article 3(1) of the Environmental Information Directive lays down the right of access to environmental information:

‘Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest.’

7.

Article 4 of the Environmental Information Directive provides for various exceptions to that right.

8.

The exception for internal communications appears in Article 4(1)(e) of the Environmental Information Directive:

‘Member States may provide for a request for environmental information to be refused if:

…

9.

In addition, Article 4(2)(a) of the Environmental Information Directive contains an exception for the proceedings of public authorities:

‘Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect:

…

The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal. Member States may not, by virtue of paragraph 2(a), (d), (f), (g) and (h), provide for a request to be refused where the request relates to information on emissions into the environment.’

10.

Article 28.4.3 of the Irish Constitution provides for the confidentiality of discussions at meetings of the Irish Government. Exceptions are laid down only for inquiries by courts or similar bodies.

11.

Ireland transposed the Environmental Information Directive by the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No 133/2007) (28 March 2007).

12.

On 8 March 2016, Right to Know CLG, a not-for-profit organisation governed by Irish law, made a request to the Irish Taoiseach (Prime Minister) for access to all documents which showed cabinet discussions on Ireland’s greenhouse gas emissions from 2002 to 2016. The Taoiseach (Prime Minister) refused that request in June 2016 following an internal review procedure. Right to Know thereupon brought proceedings before the High Court seeking a judicial review of that decision.

13.

By judgment of 1 June 2018, Right to Know CLG v An Taoiseach ([2018] IEHC 372), the High Court remitted the decision to the Taoiseach (Prime Minister) for reconsideration. The High Court held inter alia, on the basis of a precedent discussed by the parties, ( 4 ) that meetings of the Irish Government were to be characterised as ‘internal communications’ of a public authority, with the result that the requirement to disclose records on emissions into the environment (third sentence of Article 4(2) of the Environmental Information Directive) did not apply. The Taoiseach (Prime Minister) had, however, failed to weigh the public interest served by disclosure and the interest in confidentiality (second sentence of Article 4(2)).

14.

By order of 16 August 2018, the Taoiseach (Prime Minister) granted partial access to the requested documents. Right to Know thereupon made a fresh application to the High Court for judicial review of that second decision. The judge who had delivered the judgment of 1 June 2018 is no longer responsible. The new judge addresses the following questions to the Court of Justice:

15.

Right to Know CLG, Ireland and the European Commission submitted written observations. The Court decided not to hold a hearing pursuant to Article 76(2) of the Rules of Procedure because it considers that it has sufficient information to give a ruling.

16.

In adopting the Environmental Information Directive, the EU legislature intended to ensure the compatibility of EU law with the Aarhus Convention by providing for a general scheme to ensure that any applicant has a right of access to environmental information held by or on behalf of the public authorities, without having to state an interest. ( 5 )

17.

It provided, in Article 4 of the Environmental Information Directive, that the Member States may establish exceptions to that right. In so far as such exceptions have in fact been transposed into national law, it is permissible for the public authorities to rely upon them in order to oppose requests for information that they receive. ( 6 )

18.

The request for a preliminary ruling concerns, first, the question whether the information at issue comes either under the exception for internal communications or under the exception for the protection of the confidentiality of the proceedings of public authorities (see A). Second, it asks whether and to what extent the applicability of those exceptions in the present case has already been definitively decided by the final judgment of 1 June 2018 (see B).

19.

Under the third sentence of Article 4(2) of the Environmental Information Directive, certain exceptions to the right of access to environmental information do not justify a refusal of access to information on emissions into the environment. One of those exceptions is laid down in Article 4(2)(a) and permits the protection of the confidentiality of the proceedings of public authorities. Because records of cabinet discussions on greenhouse gas emissions might be regarded as information on emissions into the environment, it is doubtful whether this exception can justify refusal of access.

20.

If, on the other hand, the exception for internal communications under Article 4(1)(e) of the Environmental Information Directive is applicable, emissions into the environment is to be taken into account in the weighing exercise pursuant to the second sentence of Article 4(2) as part of the public interest served by disclosure, although opposing interests may also be relevant.

21.

The first question thus seeks to ascertain which of these two exceptions is applicable. It is, however, based on the assumption that the two exceptions cannot be applicable concurrently. I will show below that this assumption is incorrect.

22.

The concept of ‘internal communications’ concerns information that circulates within a public authority and which, on the date of the request for access, has not left the public authority’s internal sphere inter alia as a result of being disclosed to a third party or being made available to the public. ( 7 ) This exception is intended to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions. ( 8 )

23.

Article 2(2)(a) of the Environmental Information Directive defines government as a public authority within the meaning of the directive. According to the request for a preliminary ruling, documents showing cabinet discussions of the Irish Government have not left the Irish Government’s internal sphere. They are not intended to be made available either to third parties or to the public. This is consistent with Article 28.4.3 of the Irish Constitution, which provides for the confidentiality of discussions at meetings of the Irish Government.

24.

Consequently, the requested documents constitute internal communications. Access to those documents may be refused if there is no overriding public interest in their disclosure.

25.

Records of formal meetings of the executive branch of the Irish Government are therefore to be characterised, for the purpose of a request for access to environmental information contained therein, as internal communications of a public authority within the meaning of Article 4(1)(e) of the Environmental Information Directive.

26.

Furthermore, under Article 4(2)(a) of the Environmental Information Directive, Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law.

27.

If regard is had to the German version of that provision alone, the cabinet discussions of the Irish Government clearly appear to be ‘Beratungen’ (‘discussions’) of a public authority in that sense.

28.

It therefore seems surprising at first that the High Court considered the application of this exception to be ‘artificial and strained’. ( 9 ) This view could stem from the English version of the Environmental Information Directive. Like many other language versions, it does not include a term which can necessarily be translated as ‘discussions’. Instead, the term ‘proceedings’ is used, suggesting the protection of the confidentiality of processes, ( 10 ). Only the French ( 11 ) and Italian ( 12 ) versions of the directive correspond to the German term, while the other language versions refer to the activities of the public authorities, ( 13 ) in particular to the processing or handling of cases. ( 14 )

29.

The discrepancies also appear in the authentic language versions of Article 4(4)(a) of the Aarhus Convention, which is transposed by Article 4(2)(a) of the Environmental Information Directive. The English and French versions of the Convention are identical in this regard to the respective language versions of the directive. The Russian version of the Convention, which is also authentic, refers to the confidentiality of the work of the public authority. ( 15 )

30.

The different language versions of a provision of EU law, specifically of the Environmental Information Directive in this case, must be interpreted uniformly, ( 16 ) with no language version taking precedence. ( 17 ) The general scheme and the purpose of the provision must therefore be examined. ( 18 )

31.

The starting point must be that under the second sentence of Article 4(2) of the directive and the second sentence of Article 4(4) of the Convention exceptions to the right of access should be interpreted restrictively. ( 19 ) In order to confer a separate function on the exception for proceedings alongside the exception for ‘internal communications’, it must be restricted to the actual discussion process in the context of decision-taking procedures, whereas the factual basis for the decision-making process is not covered. ( 20 ) The Court has thus ruled that Article 4(2)(a) of the Environmental Information Directive and Article 4(4)(a) of the Aarhus Convention refer to the final stages of the decision-making process of public authorities, ( 21 ) that is to say, they protect the confidentiality of the (final) proceedings of public authorities, and not the entire administrative procedure at the end of which those authorities hold their proceedings. ( 22 )

32.

In so far as the discussions of the Irish Government can be attributed to the final stage of a process, which is a matter to be assessed by the national court, they therefore constitute proceedings of a public authority within the meaning of Article 4(2)(a) of the Environmental Information Directive.

33.

By its first question, the referring court wishes to know, however, whether records of formal meetings of the executive branch of government of a Member State, at which members of the government are required to meet and act as a collective authority, are to be characterised as ‘proceedings’or as ‘communications’. It assumes that, contrary to the foregoing considerations, the two exceptions under Article 4(1)(e) and Article 4(2)(a) of the Environmental Information Directive should be delineated from each other. This is a false premiss, however. Rather, the two exceptions overlap. ( 23 )

34.

They are based on the same need of the public authorities for a protected space in order to engage in reflection and to pursue internal discussions.

35.

The exception to the right of access to documents of the Union institutions under Article 4(3) of Regulation No 1049/2001 ( 24 ) makes this very clear. Under that provision, access inter alia to a document drawn up by an institution for internal use may be refused if disclosure of the document would seriously undermine the institution’s decision-making process.

36.

Furthermore, within the scope of the EU rules on access to documents, refusal of access to certain information is often based on multiple exceptions concurrently, without any objection having been raised by the Court. ( 25 )

37.

The answer to the first question is therefore that records of formal meetings of the executive branch of government of a Member State, at which members of the government are required to meet and act as a collective authority, are to be characterised, for the purpose of a request for access to environmental information contained therein, as ‘internal communications’ within the meaning of Article 4(1)(e) of the Environmental Information Directive. Where such meetings can be attributed to the final stage of the process, they also constitute ‘proceedings’ of a public authority within the meaning of Article 4(2)(a).

38.

By the other questions, the High Court is seeking to ascertain whether the principle of res judicata prevents it from calling into question findings from its judgment of 1 June 2018 on the basis of the present request for a preliminary ruling. According to the final first judgment of 1 June 2018, the information at issue comes under the exception for internal communications within the meaning of Article 4(1)(e) of the Environmental Information Directive ( 26 ) but not under the exception for the protection of proceedings of public authorities within the meaning of Article 4(2)(a). ( 27 )

39.

The referring court is now considering ruling to the contrary, that is to say, categorising the information at issue not under the exception for internal communications, but under the exception for proceedings. The exception for the protection of proceedings might not be effective because, under the third sentence of Article 4(2) of the Environmental Information Directive, it does not permit the withholding of information on emissions into the environment. That restriction does not apply to the protection of internal communications, on the other hand.

40.

It follows from the answer to the first question, however, that the conditions for both exceptions can be satisfied concurrently and, according to the indications available, the information at issue in any case constitutes internal communications. The exception for the protection of internal communications can therefore be applied to preclude the release of information even though that information relates to emissions into the environment and concerns proceedings of public authorities.

41.

For this reason, the force of res judicata of the finding that the information at issue constitutes internal communications and not proceedings of public authorities is actually no longer material. The considerations hereinafter therefore apply in the alternative, in the event that the Court nevertheless wished to take a view on these questions.

42.

In the absence of EU legislation governing the force of res judicata of national judicial decisions, this question falls within the procedural autonomy of the Member States. The principles of equivalence and effectiveness nevertheless apply. ( 28 )

43.

The second question seeks to clarify whether it is compatible with the principle of effectiveness if the force of res judicata is not confined to the operative part of a judgment but also includes its grounds.

44.

The principle of effectiveness is not infringed in any event where the scope of the force of res judicata under national law is consistent with the principles applied in this regard in EU law, under which the authority of res judicata is attached to the ratio decidendi of the judgment which is inseparable from it. ( 29 ) The grounds of the judgment which do not support the operative part, on the other hand, are not covered by the force of res judicata under EU law. ( 30 )

45.

If this delimitation of the force of res judicata were applied to the case at issue in the main proceedings, the subsumption of the information at issue under the exception for the protection of internal communications, as the ratio decidendi for the judgment of 1 June 2018, would be final. It was necessary to annul the refusal of the request for access and to remit the request to the administration for a fresh decision.

46.

It is less clear, however, whether the rejection of the exception for the protection of the confidentiality of proceedings likewise cannot be separated from the operative part. From the perspective of the High Court, that rejection was inseparably linked to the application of the exception for internal communications, as it assumed that only one exception can ever be applied. According to the considerations regarding the first question, however, both exceptions may be applicable concurrently.

47.

Separability is ultimately immaterial, however. The principle of effectiveness does not require the Member States to adapt the scope of the force of res judicata under national law in accordance with EU law governing res judicata. It also permits a further-reaching principle of res judicata, provided this does not render practically impossible or excessively difficult the exercise of the rights conferred by the Union legal order.

48.

Subject to the considerations set out below, in particular regarding the possibility of appeal, ( 31 ) it is not apparent that extending the principle of res judicata to grounds of a judicial decision which do not support it would render excessively difficult the exercise of such rights.

49.

Consequently, the answer to the second question is that the principle of effectiveness does not require the force of res judicata of a judgment to be confined to the ratio decidendi.

50.

By the third and fourth questions, the referring court is seeking to ascertain whether it is compatible with the principle of effectiveness if the final findings from its judgment of 1 June 2018 concerning the same request for access preclude the re-examination of the subsumption of the information at issue under the exception for internal communications and under the exception for proceedings of public authorities in the main proceedings. It wishes to know in particular whether it is significant to the compatibility of the force of res judicata of findings from a first judgment in second judicial proceedings that, in the first proceedings, no request for a preliminary ruling was made to the Court of Justice and the parties had not brought relevant case-law of the Court of Justice to the court’s attention.

51.

The referring court therefore wishes to know whether EU law requires final findings to be disregarded if there is a possibility that they infringe EU law.

52.

It is settled case-law that EU law does not require a national court to disapply domestic rules of procedure conferring finality. This applies even if to do so would make it possible to remedy an infringement of a provision of EU law, regardless of its nature. ( 32 )

53.

The situation is different, however, if the applicable domestic rules of procedure provide the possibility, under certain conditions, for a national court to reverse a decision having the authority of res judicata in order to render the situation arising from that decision compatible with national law. The court must also avail itself of that possibility in accordance with the principles of equivalence and effectiveness in order to bring the situation back into line with EU legislation. ( 33 )

54.

It is true that no information on the relevant requirements of national law is contained in the request for a preliminary ruling itself, but in an appended judgment ( 34 ) by which the referring court had decided to make the request for a preliminary ruling to the Court. According to that judgment, Irish courts have discretion, in special circumstances, to allow a party to pursue an issue in subsequent proceedings notwithstanding that the issue had been decided against the party in earlier proceedings. In exercising this discretion, the court must seek to balance the constitutional right of access to the courts against the public interest and the common good. It is in the public interest that there is (in principle) finality to litigation and that an individual is not subject to repeated or duplicative litigation in respect of issues which have previously been determined.

55.

In the exercise of that power, both the principle of equivalence and the principle of effectiveness may require the referring court to disregard final findings in the judgment of 1 June 2018.

56.

The principle of equivalence requires the referring court to exercise its discretion in matters of EU law in a manner similar to in purely domestic cases. The referring court did not provide any specific details of Irish practice. However, in English common law, in which the legal situation appears to be similar to that in Ireland, it is highly important whether the party against which a final finding from an earlier judgment was made had the possibility to challenge that finding by means of an appeal. ( 35 )

57.

Because Right to Know, Ireland and the abovementioned judgment of 23 April 2021 discuss the question whether Right to Know was able to lodge an appeal against the judgment of 1 June 2018, this aspect presumably plays a similar role in Irish practice. From the above discussions it seems doubtful whether such an appeal was possible.

58.

Although Ireland asserts that Right to Know could have challenged the judgment of 1 June 2018 by means of an appeal, this is called into question by the judgment of 23 April 2021 and the submissions by Right to Know. Because Right to Know obtained the annulment of the contested refusal of its request for access in the judgment of 1 June 2018, there would be a risk that an appeal against some of the grounds of the judgment would be dismissed as premature. ( 36 )

59.

This would, in essence, be consistent with the legal situation before the EU Courts. Under the first sentence of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union, an appeal may (only) be brought by any party which has been unsuccessful, in whole or in part, in its submissions. On the other hand, appeals challenging only the grounds of a judgment that is generally in favour of the appellant are inadmissible. ( 37 ) Even in appeal proceedings that are admissible in principle, certain objections raised only against the grounds of a substantive decision, where the party concerned does not at the same time contest that substantive decision, are inadmissible in the absence of an interest in bringing proceedings. ( 38 )

60.

In the event that Right to Know was actually unable to challenge the finding from the judgment of 1 June 2018, this would be significant not only for the application of the principle of equivalence, but also for the application of the principle of effectiveness.

61.

At first sight, the absence of an appeal does not appear to be a particularly serious impediment to the exercise of rights. The principle of effective judicial protection, which largely overlaps with the principle of effectiveness, ( 39 ) affords an individual a right of access under EU law only to a court or tribunal but not to a number of levels of jurisdiction. ( 40 ) In this instance, the judgment of 1 June 2018 shows that access to a court or tribunal did exist in this sense.

62.

In the present case, however, the absence of an appeal would be accompanied by a breach of the principle of equality of arms, since it must be assumed that the opposite party, the Taoiseach (Prime Minister), did have the possibility to challenge the judgment of 1 June 2018 as the unsuccessful party.

63.

The principle of equality of arms is an integral part of the principle of effective judicial protection of the rights that individuals derive from EU law, enshrined in Article 47 of the Charter. ( 41 ) It is a corollary of the very concept of a fair trial and implies that each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. ( 42 )

64.

It is a substantial disadvantage if one party is bound by a finding which subsequently proves to be a disadvantage, while the opposite party, which derives an advantage from that finding, was able to choose whether to challenge or accept that finding.

65.

The two aspects raised by the referring court in the fourth question, the failure to make a request for a preliminary ruling in the final judgment and gaps in the submissions of the parties, are likewise of interest, but not decisive in themselves.

66.

Thus, the fact that no request for a preliminary ruling was made to the Court in the proceedings which led to the judgment of 1 June 2018 may tend to suggest that a point of law which has already been finally decided should be reconsidered. In the absence of an obligation to make a reference, however, this fact has relatively low importance in the assessment. ( 43 )

67.

If, in the proceedings which led to the judgment of 1 June 2018, the parties, and Right to Know in particular, did not bring attention to the existing relevant case-law of the Court, this tends to suggest, by contrast, that they should be bound by the findings of that judgment, as in that case they would not have made all reasonable efforts to bring about a correct decision in their favour. This applies a fortiori where the procedural law in question includes a strong principle that the procedural initiative lies with the parties, who are required to submit the relevant precedents. However, this aspect too has only limited importance as an absence of precedents would have required the High Court to give more thorough consideration whether a request a preliminary ruling in the first proceedings. Furthermore, the key judgment on the interpretation of the term ‘internal communications’ ( 44 ) was not delivered until after the judgment of 1 June 2018.

68.

The answer to the third and fourth questions is therefore that a national court must disregard final findings in accordance with the principles of equivalence and effectiveness in order to bring the situation at issue back into line with EU legislation if that possibility exists under the applicable domestic rules of procedure for a purely domestic situation. In so far as the court enjoys discretion, it must take into consideration in particular whether the party placed at a disadvantage by the final finding had the possibility to challenge that finding by means of an appeal and whether there was equality of arms between the parties in this regard. It is less important for the purposes of the exercise of discretion, on the other hand, whether prior to the final finding a request for a preliminary ruling was made to the Court of Justice or whether the parties submitted the relevant case-law of the Court of Justice to the national court prior to that finding.

69.

I therefore propose that the Court of Justice rule as follows: