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In two judgments, the European Court of Justice has provided
guidance on the extent of the exemption for authorities acting in a
legislative capacity from having to provide access to environmental
information under the Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in
Environmental Matters (Aarhus Convention). These decisions
have specific relevance to Ireland because the exemption set out in
the Aarhus Convention is mirrored by Article 3(2) of the European
Communities (Access to Information on the Environment) Regulations
2007.
In the first judgment (Flachglas Torgau GmbH v Germany),
the Court held that the provision of not regarding 'bodies
or institutions acting in a ... legislative capacity' as
public authorities may be applied to ministries to the extent that
they participate in the legislative process, in particular by
tabling draft laws or giving opinions. Additionally, the
option is not subject to the conditions set out in the second
sentence of the second subparagraph of Article 2(2) of Directive
2003/4, this being the option to exclude such bodies from the
definition if their constitutional provisions at the date of the
adoption of the directive make no provision for a review procedure
within the meaning of Article 6 of the directive.
The Court also held that this option can no longer be exercised
where the legislative process in question has ended.
The Court also considered Article 4(2)(a) of the Directive.
It stated that the condition that the confidentiality of the
proceedings of public authorities must be provided for by law can
be regarded as being fulfilled by the existence in
style="text-decoration: underline;">national law of a
rule that the confidentiality of the proceedings of public
authorities is a ground for refusing access to environmental
information held by those authorities. However, the Court
went on to state that, in order for this to apply, national law
must clearly define the concept of 'proceedings'.
In the second judgment (Solvay v Region wallonne), the
Court made findings on a number of matters, including:
It is permissible to take the Implementation Guide for the
Aarhus Convention into account when interpreting the Convention,
but the Guide has no binding force;
The exemption in Article 2(2) does not apply to ratifying
legislation that is based on prior substantive legislation and is
not itself open to a full, open democratic process. In other
words, acts of public authorities which are essentially
administrative cannot be rendered immune from access under the
regime merely by the fact that they rubber-stamp certain
decisions. In the case in question, the Walloon Parliament
had legislated to ratify the granting of certain planning consents
in respect of a number of major developments. The ECJ was in
no doubt that the legislation in question could not fall within the
ambit of the exemption provision.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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