CJEU rules on meaning of public authority in the…

In Case C-515/11 Deutsche Umwelthilfe eV v Bundesrepublik Deutschland (18 July 2013) the CJEU considered Article 2(2) of Directive 2003/4 on public access to environmental information. This defines the term 'public authority' as “government or other public administration, including public advisory bodies, at national, regional or local level” but also provides that “Member States may provide that this definition shall not include bodies or institutions when acting in a ... legislative capacity. ...”.
The Verwaltungsgericht, Berlin referred these questions:

“(1) Is the [first sentence of the second subparagraph of Article 2(2) of Directive 2003/4/EC] to be interpreted as meaning that bodies and institutions are acting in a legislative capacity when their activities relate to legislation by the executive on the basis of authorisation given by a law enacted by parliament?
(2) If Question 1 is to be answered in the affirmative, are such bodies and institutions permanently excluded from the term "public authority", or only until completion of the legislative process?”

The CJEU answered the question as follows:

“The first sentence of the second subparagraph of Article 2(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC must be interpreted as meaning that the option given to Member States by that provision of not regarding 'bodies or institutions acting in a ... legislative capacity' as public authorities, required to allow access to the environmental information which they hold, may not be applied to ministries when they prepare and adopt normative regulations which are of a lower rank than a law.”

The Aarhus Convention was relied on by the CJEU in reaching this decision:

“29 ... is the specific nature of the legislative process and its particular characteristics that justify the special rules relating to acts adopted by bodies acting in a legislative capacity in connection with the right to information, as provided for both by the Aarhus Convention and Directive 2003/4.

30 It follows that the nature of the act in question, and in particular the fact that it concerns an act of general application, is not, in itself, capable of exempting a body which adopts that act from the obligations to provide information under that directive.

31 As regards the aims of the directive, only the smooth running of the process for the adoption of legislation and the particular characteristics of the legislative process which ensure that the public is usually adequately informed justify the fact that those bodies acting in a legislative capacity or participating in the legislative process should be exempt from the obligations to provide information imposed by that directive.

32 That interpretation is supported by the wording and the scheme of the Aarhus Convention, in the light of which Directive 2003/4 must be interpreted (see, by analogy, Case C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen [2011] ECR I-3673, paragraph 41).

33 The Aarhus Convention distinguishes between the rules for legislative acts and those for regulatory acts. Thus, while the second sentence of Article 2(2) of that convention allows Party States to refuse access to documents held by the public authorities acting in a 'legislative capacity', Article 8 thereof, by contrast, requires them to promote effective public participation during the 'preparation of executive regulations'.”