Access to environmental information - Wilhelm Mecklenburg v Kreis Pinneberg-Der Landrat (17 June 1998) European Court of Justice

Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (17 June 1998) European Court of Justice

In March 1993 Mr Mecklenburg requested that Kreis Pinneberg send him a copy of a statement submitted by the local countryside protection authority in relation to a planning consent for the construction of a road. Kreis Pinneberg rejected his request on the grounds that (1) the authority's statement was not "information relating to the environment" within the meaning of Article 2(a) of Council Directive 90/313/EEC on the freedom of access to information on the environment because it was merely an assessment of information already available to Mr Mecklenburg and (2) the criteria for refusing a request for environmental information set out in Article 3(2), third indent, of Directive 90/313/EEC applied because a development consent procedure should be regarded as "preliminary investigation proceedings". An administrative appeal lodged by Mr Mecklenburg was dismissed in September 1993. In October 1993 Mr Mecklenburg brought an action in the Administrative Court in Schleswig-Holstein claiming that the countryside authority's statement constituted an administrative measure, that the authority's evaluation of the information in its possession did not detract from its nature as "information relating to the environment" and that development consent proceedings did not constitute "preliminary investigation proceedings" within the meaning of Article 3(2) of Directive 90/313/EEC. This action was dismissed on the grounds that the information sought by Mr Mecklenburg was covered by confidentiality provisions relating to the proceedings of public authorities set out in the legislation that had transposed Directive 90/313/EEC into German law. In October 1995 Mr Mecklenburg appealed to the Higher Administrative Court in Schleswig-Holstein. That Court expressed a view that the countryside authority's statement constituted an "administrative measure for the protection of the environment" within the meaning of Article 2(a) of Directive 90/313/EEC. However, since it retained a measure of doubt on the matter, the Court decided to stay the proceedings and refer the following issues to the European Court of Justice for a preliminary ruling: (1) whether a statement of views given in development consent proceedings by a countryside protection authority constitutes an administrative measure designed to protect the environment within the meaning of Article 2(a) of Directive 90/313/EEC; and (2) whether the proceedings of an administrative authority are "preliminary investigation proceedings" within the meaning of Article 3(2), third indent, of Directive 90/313/EEC. The Court noted that the legislation makes it clear that the concept of "environmental information" is very broad. Article 2(a) of Directive 90/313/EEC applies to any information on the state of the environment as well as activities or measures which may adversely affect or protect the environment, including administrative measures. The Court also noted that the use in Article 2 of the term "including" indicates that administrative measures are merely an example of the activities covered by Directive 90/313/EEC. In order to constitute "information relating to the environment" for the purposes of Directive 90/313/EEC it is sufficient for an authority's statement of views to be an act capable of adversely affecting or protecting the environment. That will be the case where the statement is capable of influencing the outcome of development consent proceedings. Accordingly Article 2(a) is to be interpreted as covering a statement of views given by a countryside protection authority (or similar body) in development consent proceedings if that statement is capable of influencing the outcome of those proceedings in relation to the protection of the environment. In relation to the second question the Court noted that, as far as the objective of Directive 90/313/EEC is concerned, the principle of freedom of access to information is laid down in Article 1 thereof. The preamble to the Directive emphasises that a refusal to comply with a request for information relating to the environment may, however, be justified in "certain specific and clearly defined cases". It is clear that, by virtue of the third indent of Article 3(2), this exception includes proceedings of a judicial or quasi-judicial nature. Viewed in that context, "preliminary investigations proceedings" must refer to the stage immediately prior to judicial proceedings or an enquiry. Accordingly, the term "preliminary investigation proceedings" in the third indent of Article 3(2) can be taken to include an administrative procedure which prepares the way for administrative measures 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 start of the actual procedure.