Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

HOGAN

delivered on 16 July 2020(1)

Case C‑619/19

Land Baden-Württemberg

v

D.R.,

joined parties:

Deutsche Bahn AG,

Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

(Request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Germany))

(Reference for a preliminary ruling — Environment — Aarhus Convention — Directive 2003/4/EC — Article 4(1) — Public access to environmental information — Exceptions to the right of access — Concept of ‘internal communication’ — Scope — Limitation in time of the protection of internal communications — ‘Stuttgart 21’ transport and urban development project)

I.      Introduction

1.        Many systems of freedom of information provide for exemptions in relation to internal communications. The rationale for such an exemption is that such freedom from disclosure is designed to promote full and honest debate within decision-making bodies otherwise subject to that legislation. These exemptions are granted in the knowledge that it is desirable in the public interest that administrators should feel free to express doubts, objections, concerns and generally debate a variety of different views safe in the knowledge that such internal debate will generally be shielded from public view and disclosure under the relevant freedom of information legislation.

2.        A similar dispensation exists as a matter of EU law. As we shall now see, the interpretation and delineation of that system of internal communication exemption forms the background to this preliminary reference which concerns the interpretation of Article 4(1) 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. (2) It addresses, more precisely, the meaning of one of the possible derogations to access to documents laid down in that provision – namely the exception relating to ‘internal communications’ – and the possibility of limiting that exception in time.

3.        The request has been made in proceedings between, on the one hand, Land Baden-Württemberg and, on the other, D.R. These proceedings concerned D.R.’s request for environmental information contained in certain documents of the Staatsministerium Baden-Württemberg (Baden-Württemberg State Ministry, ‘the State Ministry’). These documents related in turn to a transport and urban planning infrastructure development project entitled ‘Stuttgart 21’ in the Stuttgart’s Schlossgarten park (Stuttgart Castle park).

II.    Legal context

A.      International law

4.        Article 4 of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (‘the Aarhus Convention’), approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, (3) is entitled ‘Access to environmental information’. The third, fourth and sixth paragraphs of this article state that:

‘3.      A request for environmental information may be refused if:

…

(c)      the request concerns material in the course of completion or concerns internal communications of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure.

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

(a)      the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law;

…

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.      Each Party shall ensure that, if information exempted from disclosure under paragraphs 3(c) and 4 above can be separated out without prejudice to the confidentiality of the information exempted, public authorities make available the remainder of the environmental information that has been requested.’

B.      EU law

1.      Regulation No 1049/2001

5.        Article 4(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (4) states:

‘Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.’

2.      Regulation No 1367/2006

6.        Article 6 of Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (5) is entitled ‘Application of exceptions concerning requests for access to environmental information’, and provides

‘1.      As regards Article 4(2), first and third indents, of Regulation (EC) No 1049/2001, with the exception of investigations, in particular those concerning possible infringements of Community law, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment. As regards the other exceptions set out in Article 4 of Regulation (EC) No 1049/2001, the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment.

…’

3.      Directive 2003/4

7.        Recitals 11, 16 and 17 of Directive 2003/4 state:

‘(11)      To take account of the principle in Article 6 of the Treaty, that environmental protection requirements should be integrated into the definition and implementation of Community policies and activities, the definition of public authorities should be expanded so as to encompass government or other public administration at national, regional or local level whether or not they have specific responsibilities for the environment. The definition should likewise be expanded to include other persons or bodies performing public administrative functions in relation to the environment under national law, as well as other persons or bodies acting under their control and having public responsibilities or functions in relation to the environment.

…

(16)      The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. The reasons for a refusal should be provided to the applicant within the time limit laid down in this Directive.

(17)      Public authorities should make environmental information available in part where it is possible to separate out any information falling within the scope of the exceptions from the rest of the information requested.’

8.        Under Article 4 of Directive 2003/4, entitled ‘Exceptions’:

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

…

(d)      the request concerns material in the course of completion or unfinished documents or data;

(e)      the request concerns internal communications, taking into account the public interest served by disclosure.

Where a request is refused on the basis that it concerns material in the course of completion, the public authority shall state the name of the authority preparing the material and the estimated time needed for completion.

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

(a)      the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law;

…

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.

…

4.      Environmental information held by or for public authorities which has been requested by an applicant shall be made available in part where it is possible to separate out any information falling within the scope of paragraphs 1(d) and (e) or 2 from the rest of the information requested.

…’

C.      German law

9.        The relevant provision of national law is the second indent of Paragraph 28(2) of the Umweltverwaltungsgesetz Baden-Württemberg (Baden-Württemberg Environmental Administration Act, ‘the UVwG BW’) of 25 November 2014, (6) as amended by Article 1 of the Act of 28 November 2018. (7) It reads as follows:

‘Where a request relates to internal communications of authorities required to provide information within the meaning of Paragraph 23(1), it shall be refused unless it is outweighed by the public interest in disclosure.’

III. Facts of the main proceedings

10.      The present case has its origin in a request for environmental information submitted by an individual, namely D.R, who seeks access to certain documents of the State Ministry relating to tree felling in the context of the ‘Stuttgart 21’ transport and urban development project in Stuttgart’s Schlossgarten park in October 2010.

11.      Those documents concern, on the one hand, information held by the executive committee of the State Ministry relating to the committee of inquiry ‘Follow-up to the police operation on 30 September 2010 in Stuttgart’s Schlossgarten park’ and, on the other hand, memoranda held by the State Ministry relating to a conciliation procedure conducted on 10 and 23 November 2010 in connection with the ‘Stuttgart 21’ project.

12.      The Verwaltungsgericht (Administrative Court) dismissed the action brought following the unsuccessful request of D.R. relating to those documents. On appeal by D.R., the Verwaltungsgerichtshof of Baden-Württember (Higher Administrative Court of Baden-Württemberg) ordered Land Baden-Württemberg to make the documents available to D.R. According to that court, the documents in question concern environmental information and there are no grounds for refusing to make that information available. The State Ministry’s documents concerning the information held by the executive committee and the conciliation procedure are not protected as internal communications since such protection exists only, ratione temporis, for the duration of a public authority’s decision-making process.

13.      By its appeal on a point of law before the Bundesverwaltungsgericht (Federal Administrative Court), Land Baden-Württemberg seeks to have the judgment at first instance reinstated.

14.      It follows from the request for a preliminary ruling that the referring court considers that the information D.R. requested is ‘environmental information’ held by a ‘public authority’ within the meaning of Directive 2003/4. By contrast, it has doubts as to whether the exception relating to ‘internal communications’ could apply in the present case, given that that term is not defined by the directive.

15.      First, the referring court seeks clarification about what constitutes an ‘internal communication’ and, in particular, whether documents or information have to be of a certain quality in order to be considered as ‘communications’ within the meaning of Directive 2003/4 and, moreover, if the term ‘communication’ implies that the relevant information must be addressed to a third party or may cover factual material. Secondly, it also asks whether the ‘internal’ requirement implies that the communications in question, which have not yet left the internal sphere of an authority but are intended to do so, are not covered by the exception. Thirdly, the referring court finally expresses some doubts on the temporal scope of that exception.

IV.    The request for a preliminary ruling and the procedure before the Court

16.      It is in those circumstances that, by decision of 8 May 2019, received at the Court on 19 August 2019, the Bundesverwaltungsgericht (Federal Administrative Court, Germany) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)      Is point (e) of the first subparagraph of Article 4(1) of [Directive 2003/4] to be interpreted as meaning that the term “internal communications” covers all communications which do not leave the internal sphere of an authority which is required to provide information?

(2)      Is the temporal scope of the protection of “internal communications” under point (e) of the first subparagraph of Article 4(1) of [Directive 2003/4] unlimited?

(3)      If Question 2 is answered in the negative: Does the protection of “internal communications” under point (e) of the first subparagraph of Article 4(1) of [Directive 2003/4] apply only until the authority required to provide information has taken a decision or completed any other administrative process?’

17.      Written observations were submitted by Land Baden-Württemberg, Deutsche Bahn, D.R., the German Government, Ireland, the United Kingdom and the Norwegian Governments and by the European Commission. At the end of the written part of the procedure, the Court considered that it had sufficient information to proceed to judgment without a hearing, in accordance with Article 76(2) of the Court’s Rules of Procedure.

V.      Analysis

A.      The first question

18.      By its first question, the referring court asks, in substance, whether the exception to the public access to environmental information provided for in Article 4(1)(e) of Directive 2003/4 covers all communications which do not leave the internal sphere of an authority required to provide information, irrespective of the content, purpose or addressee of the communication in question or whether, on the contrary, the scope of the exception is limited by one or more of those aspects.

19.      As underlined by the referring court, the concept of ‘internal communication’ is not defined by Directive 2003/4. Nor does Directive 2003/4 refer to national legislation on this aspect either. In those circumstances, according to settled case-law, the need for the uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard not only to its wording, but also to the context of that provision and the objective pursued by the legislation in question. (8)

1.      The meaning of ‘communications’ under Article 4(1)(e) of Directive 2003/4

20.      In regard to the wording of the provision in question, it appears that the legislator used the term ‘communications’ without any further clarification of that term, save the use of the adjective ‘internal’. The choice, however, of the word ‘communications’ implies that the subject of the exception in Article 4(1)(e) of Directive 2003/4 is not just any document. On the contrary, the notion of ‘communication’ implies an ‘addressee’. As indicated by the referring court, the term ‘communications’ suggests that the relevant information must be addressed to someone. (9)

21.      In other words, a communication requires two persons: an author, and another person who is addressed, even though the latter may be an abstract entity – such as ‘members’ of an administration or the ‘executive board’ of a legal person – rather than the specific individuals who compose it.

22.      The terms used in other language versions of Article 4(1)(e) of Directive 2003/4 confirm this analysis and, consequently, the deliberate will of the legislature. Thus, while the Spanish, French, Italian or Romanian versions use the word ‘comunicaciones’, ‘communications’, ‘comunicazioni’ and ‘comunicările’ respectively, the Swedish version uses the word ‘meddelanden’, the Slovak version uses the word ‘korešpondenci[a]’ and the German version uses the word ‘Mitteilung’. All these terms attest that the relevant information must be addressed to a third party.

23.      The particular context in which Article 4(1)(e) of Directive 2003/4 is placed further confirms that interpretation. Indeed, whereas the EU legislature uses the term ‘communications’ in that provision, broader and more general terms – namely ‘material in the course of completion or unfinished documents or data’ – have been used in Article 4(1)(d) of the Directive 2003/4. This legislative usage is consistent with the wording of Article 4(3)(c) of the Aarhus Convention, which also uses two distinct terms in stating that a request for environmental information may be refused if ‘the request concerns material in the course of completion or concerns internal communications of public authorities …’. (10) However, it follows from the Court’s case-law that, for the purposes of interpreting Directive 2003/4, account is to be taken of the wording and aim of the Aarhus Convention, which that directive is designed to implement in EU law. (11)

24.      There can be no doubt about the EU legislature’s intention to distinguish between the two exceptions. Quite independently of the legislative text, this is also confirmed by the relevant travaux preparatoires which the Court has been invited to consider. Indeed, whereas the first proposal of the Commission grouped the two exceptions in a single provision with similar wording to Article 4(3) of the Aarhus Convention, (12) the European Parliament attempted, during its first and second readings, to remove the exception relating to internal communications from the directive. (13) Not only did the Commission and the Council reject those amendments, (14) but the two exceptions were ultimately split into two separate litterae.

25.      By contrast, I do not think that the exception laid down in Article 4(1)(e) of Directive 2003/4 should be limited to personal opinions or, as suggested before the referring court, to ‘significant documents’. Quite apart from the fact that there is nothing in either the wording or the context of Article 4(1)(e) of Directive 2003/4 to suggest this – after all, the words used are neutral and do not contain any limitation or specification as to the content of the communications referred to in that provision – these alternative interpretations of that provision would, I fear, be both impractical and almost impossible to apply. Many judicial hours could be spent in rather fruitless debates as to whether a particular document was significant or not. If, moreover, the proposed ‘personal opinion test’ were to be adopted, would this mean, for example, that by the mechanism of prefacing purely factual statements with common phrases such as ‘I consider that’ or ‘it seems to me’, this otherwise purely factual statement would thereby be converted into a personal opinion for this purpose, so that the ‘internal communication’ exemption would thereby come into play? It would be hard to see why not. After all, many personal opinions either relate to or are intrinsically linked to or are based on factual elements.

26.      In any event, the objective of the exception provided for in Article (4)(1)(e) of Directive 2003/4 which is, as we have seen, to preserve the necessary space for the public authorities to deliberate in private, (15) also leads to no distinction being made as to the content of communications concerned.

27.      The fact that the Aarhus Convention Implementation Guide explains that the internal communications exception ‘does not usually apply to factual materials’ is not likely to reverse this interpretation. As previously stated by the Court, the observations contained in this guide have no binding force and do not have the normative effect of the provisions of the Aarhus Convention. (16) In any event, it must be noted that Article 4(3) of that convention does not restrict the scope of ‘internal communications’ in terms of their content or importance.

28.      It is nonetheless convenient to recall that, as is apparent from the scheme of Directive 2003/4 and, in particular, from the second subparagraph of Article 4(2) thereof, and from recital 16 in the preamble thereto, the right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in a few specific and clearly defined cases. The grounds for refusal should therefore be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal. (17) This is particularly true as regards the exception relating to ‘internal communications’, since the EU legislature considered it necessary to repeat this latter general rule laid down in the second subparagraph of Article 4(2) of Directive 2003/4 at the end of Article 4(1)(e) of that directive.

29.      As the United Kingdom Government moreover stressed, reliance on Article 4(1)(e) of Directive 2003/4 is, in any event, never absolute. (18) The interests at stake must be weighed on the basis of an actual and specific examination of each situation brought before the competent authorities in connection with a request for access to environmental information made on the basis of Directive 2003/4. (19)

30.      Furthermore, two final requirements should also be borne in mind.

31.      On the one hand, pursuant to Article 4(4) of Directive 2003/4, although this is probably particularly difficult in the case of the exception of ‘internal communications’, environmental information held by or on behalf of public authorities which has been requested by an applicant shall be made available in part where it is possible to separate out any information falling within the scope of that exception from the rest of the information requested. On the other hand, Article 4(5) of Directive 2003/4 requires that a refusal to make available all or part of the information requested shall be notified to the applicant and shall state the reasons for that refusal.

32.      In this context, the requirement to state reasons is of particular importance. This right has been linked to the right to an effective remedy since Heylens and Others, (20) and it is now expressly provided for in Article 41 of the Charter of Fundamental Rights of the European Union. It requires that the authority which adopted the measure in question should disclose in a clear and unequivocal fashion the reasoning followed in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court with jurisdiction to exercise its power of review. (21)

33.      This was particularly well explained by the General Court in its judgment in Interporc v Commission. (22) As the General Court observed in that case, the statement of the reasons for a decision refusing access to documents must therefore contain the specific reasons for which the authority considers that disclosure of the documents requested is precluded in order to enable the person to whom the decision is addressed to assess whether the grounds for refusal are justified. (23) In other words, if the authority concerned decides to refuse access to a document which it has been asked to disclose, it must explain how the disclosure of that document could specifically and effectively undermine the interest protected by the exception – among those provided for in Article 4(1) of Directive 2003/4 – upon which it is relying. Moreover, the risk of that undermining the protected interest must be reasonably foreseeable and not purely hypothetical. (24)

34.      The mere fact that a document falls within the subject matter of an exception to disclosure is not in and of itself sufficient for an authority to apply that exception. (25) It is therefore not enough merely to refer formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4 in order to satisfy the requirement to state reasons laid down in Article 4(5) of that directive.

2.      The meaning of ‘internal’ under Article 4(1)(e) of Directive 2003/4

35.      The second term which constitutes the exception laid down in Article 4(1)(e) of Directive 2003/4 is the adjective ‘internal’. This word raises two questions: on the one hand, which authorities are concerned and, on the other, to what extent can a communication of this nature be regarded as internal?

36.      Given the absence of any precise definition in the text of the provision itself, it is necessary to refer to the context of that provision and the objective pursued by the legislation in question.

37.      Regarding the context, it follows from recital 11 of Directive 2003/4 that a clear – but broad – definition of the ‘public authorities’ concerned by the directive was one of the main objectives of the new directive. The explanatory memorandum of the Commission confirms that intention.

38.      Thus, in accordance with Article 3(1) of Directive 2003/4, Member States must ensure that ‘public authorities’ – as defined in Article 2(2) of that directive – are required to make available environmental information held by or for them to any applicant at his request and without him having to state an interest in accordance with the provisions of the directive.

39.      In those circumstances, since Article 4(1) of Directive 2003/4 provides for derogations from the principle laid down in Article 3(1) of that directive, without further specification as to its scope ratione personae, it must be admitted that the ‘public authorities’ pointed out in Article 4(1) of Directive 2003/4 are all those defined in Article 2(2) of Directive 2003/4, even if the communication in question is exchanged between two or more of those public authorities in the course of the same decision-making process or project.

40.      This functional interpretation is also the most able to respect the objective of the ‘internal communications’ exception which is, as already indicated, to preserve a necessary space for the public authorities to deliberate in private. (26)

41.      In that regard, as underlined by several governments which submitted written observations, there is actually a matter of administrative necessity that a ‘communication’ can be shared between different public bodies or agencies without losing its quality of ‘internal communication’. Furthermore, it should be borne in mind that the number of administrative bodies and agencies involved may differ significantly from one Member State to another – especially in an area as complex as environmental law – and that it is therefore necessary to adopt an interpretation that ensures a uniform application of Directive 2003/4 in those Member States. (27)

42.      As regards the second issue raised by the term ‘internal’, I do not share the view that information intended to leave the internal sphere of public authorities at a given time cannot be covered by the exception provided for in Article 4(1)(e) of Directive 2003/4.

43.      First, it must be noted that, in the context of the similar exception applicable to the European Parliament, the Council and the Commission and provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001, the Court ruled that the fact that a document is likely to be published does not in itself exclude the possibility that that same document might fall within the exception in question. (28)

44.      Second, as also previously held by the Court, the right of access to environmental information can crystallise only on the date on which the competent authorities have to take a decision on the request which has been placed before them. It is therefore only at that point that those authorities have to assess, in the light of all the factual and legal circumstances of the case, whether or not the information requested should be supplied or, as in the present case, the information is still internal to the public authorities involved. (29)

3.      Conclusion on the first question

45.      Accordingly, in the light of the foregoing considerations, I am of the view that Article 4(1)(e) of Directive 2003/4 should be interpreted as meaning that the term ‘internal communications’ covers any document intended to be addressed to someone, regardless of its content, and which has not yet left the sphere of public authorities as defined in Article 2(2) of Directive 2003/4 on the date on which the competent authority has to take a decision on the request which has been made to it.

B.      The second and the third questions

46.      By its second question, the referring court asks whether the protection of ‘internal communications’ under Article 4(1)(e) of Directive 2003/4 is unlimited in time. If that question is answered in the negative, the referring courts seeks to know, by its third question, if the protection of ‘internal communications’ apply only until the authority requested to provide information has taken a decision or completed any other relevant administrative process.

47.      For reasons related to the wording, context and objective of that provision, which I will set out below, I conclude in the affirmative to the second question.

48.      First, it must be noted that the wording of Article 4(1)(e) of Directive 2003/4 does not contain any information on the specific issue of its application in time. On the contrary, the exception provided for in Article 4(1)(d) of Directive 2003/4 is clearly limited in time since it concerns ‘material in the course of completion or unfinished documents or data’. However, as we have previously seen, the choice to distinguish those two exceptions was the result of a clear intention of the EU legislator. (30)

49.      Second, while Article 4 of Regulation No 1049/2001 is more precise in relation to the application in time of the exception related to the ‘documents containing opinions for internal use’, the Court nevertheless held that ‘the mere possibility of using the exception in question to refuse access to documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned [– namely, the European Parliament, the Council or the Commission –] is not in any way affected by the fact that the decision has been adopted. That does not, however, mean that the assessment which the institution concerned is called upon to make in order to establish whether or not the disclosure of one of those documents is likely seriously to undermine its decision-making process must not take account of the fact that the administrative procedure to which those documents relate has been closed.’ (31)

50.      That non-automaticity is all the more important in the application of the exception provided for in Article 4(1)(e) of Directive 2003/4 since, contrary to the exception in Article 4(1)(d), an internal communication does not necessarily occur as part of a process leading to the adoption of a legal act. However, the need to protect the freedom of thought of the people behind the communication concerned and the possibility to exchange views freely – which is the objective of the exception in question – (32) may still be relevant when the request for access is made.

51.      Thus, it appears that it is in the exercise of this specific obligation of balance of interests – which the legislature expressly emphasised in Article 4(1)(e) of Directive 2003/4, in addition to the general rule laid down in the second sentence of the second subparagraph of Article 4(2) – that the public authority is best placed to assess the need to maintain a communication internally, whether it was issued several years previously or not. As previously stated, recourse to Article 4(1)(e) of Directive 2003/4 is at no time absolute. (33) The public authority is always obliged to balance the public interest served by disclosure against the interest served by the exception, having regard to the specific concerns relied on to justify refusing disclosure. (34) In this respect, the passage of time, and the extent to which a decision has eventually been taken, are certainly very important factors.

52.      In those circumstances, I am of the opinion that the temporal scope of the exception provided for in Article 4(1)(e) of Directive 2003/4 is unlimited. The time elapsed may, however, constitute an element which indicates that the internal communication requested must be disclosed and must therefore be included in the balancing exercise imposed by Article 4(1)(e) and the second subparagraph of Article 4(2) of Directive 2003/4.

VI.    Conclusion

53.      Accordingly, I propose that the Court should answer the questions referred by the Bundesverwaltungsgericht (Federal Administrative Court, Germany) as follows:

(1)      Article 4(1)(e) 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 term ‘internal communications’ covers any document intended to be addressed to someone, regardless of its content, and which has not yet left the sphere of a public authority as defined in Article 2(2) of Directive 2003/4 on the date on which the competent authority has to take a decision on the request which has been made to it.

(2)      The temporal scope of the exception provided for in Article 4(1)(e) of Directive 2003/4 is unlimited. The time elapsed may, however, constitute an element which indicates that the internal communication requested must be disclosed and must therefore be included in the balancing exercise imposed by Article 4(1)(e) and the second subparagraph of Article 4(2) of Directive 2003/4.

1      Original language: English.

2      OJ 2003 L 41, p. 26.

3      OJ 2005 L 124, p. 1.

4      OJ 2001 L 145, p. 43.

5      OJ 2006 L 264, p. 13.

6      GBl. p. 592.

7      GBl. p. 439.

8      See, for a recent application, judgment of 18 May 2017, Hummel Holding (C‑617/15, EU:C:2017:390, paragraph 22). See also, in relation to access to environmental information, judgments of 14 February 2012, Flachglas Torgau (C‑204/09, EU:C:2012:71, paragraph 37); of 18 July 2013, Deutsche Umwelthilfe (C‑515/11, EU:C:2013:523, paragraph 21); and of 19 December 2013, Fish Legal and Shirley (C‑279/12, EU:C:2013:853, paragraph 42).

9      Paragraph 14 of the request for a preliminary ruling.

10      Emphasis added.

11      See, to that effect, judgment of 19 December 2013, Fish Legal and Shirley (C‑279/12, EU:C:2013:853, paragraph 37).

12      See Proposal for a Directive of the European Parliament and of the Council on public access to environmental information, 29 June 2000, COM(2000) 402 final - COD 2000/0169 (OJ 2000 C 337 E, p. 156).

13      See European Parliament, Report of the Committee on the Environment, Public Health and Consumer Policy of 28 February 2001 on the proposal for a directive of the European Parliament and of the Council on public access to environmental information, A5-0074/2001 (OJ 2001 C 343, p. 177), and Recommendation of the European Parliament (Committee on the Environment, Public Health and Consumer Policy) of 24 April 2002 for second reading on the Council common position for adopting a European Parliament and Council directive on public access to environmental information and repealing Council Directive 90/313/EEC, A5-0136/2002 (OJ 2003 C 187 E, p. 118).

14      See Opinion of the Commission of 5 September 2002 pursuant to Article 251(2), third subparagraph, point (c), of the EC Treaty, on the European Parliament’s amendments to the Council’s common position regarding the proposal for a Directive of the European Parliament and of the Council on public access to environmental information amending the proposal of the Commission pursuant to Article 250(2) of the EC Treaty, COM(2002) 498 final (on amendment 27); and Common Position (EC) No 24/2002 of 28 January 2002 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2002 C 113 E, p. 1, esp. p. 11).

15      See, to that effect, explanations in relation to Article 4 of the Commission’s proposal for a Directive of the European Parliament and of the Council on public access to environmental information, 29 June 2000, COM(2000) 402 final - COD 2000/0169 (OJ 2000 C 337 E, p. 156). See also, in relation to Regulation No 1049/2001, judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraph 109).

16      See, to that effect, judgments of 16 February 2012, Solvay and Others (C‑182/10, EU:C:2012:82, paragraph 27), and of 19 December 2013, Fish Legal and Shirley (C‑279/12, EU:C:2013:853, paragraph 38).

17      See, to that effect, judgments of 16 December 2010, Stichting Natuur en Milieu and Others (C‑266/09, EU:C:2010:779, paragraphs 52 and 56), and of 28 July 2011, Office of Communications (C‑71/10, EU:C:2011:525, paragraph 22).

18      Paragraph 39 of the United Kingdom Government’s written observations.

19      See, to that effect, judgment of 28 July 2011, Office of Communications (C‑71/10, EU:C:2011:525, paragraph 29).

20      Judgment of 15 October 1987 (222/86, EU:C:1987:442).

21      See to that effect, among many other examples, judgments of 17 March 2011, Peñarroja Fa (C‑372/09 and C‑373/09, EU:C:2011:156, paragraph 63), and of 22 November 2018, Swedish Match (C‑151/17, EU:C:2018:938, paragraph 78).

22      Judgment of 6 February 1998 (T‑124/96, EU:T:1998:25).

23      See, to that effect, judgment of 6 February 1998, Interporc v Commission (T‑124/96, EU:T:1998:25, paragraph 54).

24      See, to that effect, in relation to Regulation No 1409/2001, judgment of 21 July 2011, Sweden v MyTravel and Commission (C‑506/08 P, EU:C:2011:496, paragraph 76).

25      Wyatt, D, ‘Is the Commission a “lawmaker”? On the right of initiative, institutional transparency and public participation in decision-making: ClientEarth’, Common Market Law Review, vol. 56, Wolters Kluwer, 2019, pp. 825 to 841, esp. p. 837.

26      Point 26 of the present Opinion.

27      See, to that effect, in regard to the interpretation of the first sentence of the second subparagraph of Article 2(2) of Directive 2003/4 and the notion of ‘legislative activity’, judgment of 14 February 2012, Flachglas Torgau (C‑204/09, EU:C:2012:71, paragraph 50).

28      See, to that effect, judgment of 21 July 2011, Sweden v MyTravel and Commission (C‑506/08 P, EU:C:2011:496, paragraph 93).

29      See, to that effect, judgment of 16 December 2010, Stichting Natuur en Milieu and Others (C‑266/09, EU:C:2010:779, paragraph 34).

30      Point 24 of the present Opinion.

31      Judgment of 21 July 2011, Sweden v MyTravel and Commission (C‑506/08 P, EU:C:2011:496, paragraph 81).

32      Point 26 of the present Opinion.

33      Point 29 of the present Opinion.

34      See, to that effect, judgment of 16 December 2010, Stichting Natuur en Milieu and Others (C‑266/09, EU:C:2010:779, paragraph 52).

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