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

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 14 September 2023 (1)

Case C‑234/22

Roheline Kogukond MTÜ and Others

v

Keskkonnaagentuur

(Request for a preliminary ruling from the Tallinna Halduskohus (Administrative Court, Tallinn, Estonia))

(Reference for a preliminary ruling – Directive 2003/4/EC – Public access to environmental information – The concept of environmental information – Data on the location of permanent sample plots for the statistical forest inventory – exceptions – Protection of international relations – Protection of the environment – Quality of environmental information)

I.      Introduction

1.        Does the Environmental Information Directive (2) establish a right for anyone to know the locations of permanent sample plots for the statistical forest inventory? That question must be answered in the present proceedings.

2.        At regular intervals, the Environment Agency of Estonia collects data at those permanent sample plots, which serve as representative samples to draw conclusions on the overall condition of forests. The locations shall remain confidential in order to prevent the habitats at those locations from being manipulated and the locations thereby losing their representative character.

3.        Nevertheless, as is common knowledge, under the Environmental Information Directive it is possible to request the disclosure of environmental information from public authorities without having to state a specific interest. If it is confirmed that the location data at issue is environmental information, difficult questions therefore arise about possible exceptions to that right, in particular whether international cooperation on forest inventories or the protection of the environment justify keeping that data confidential. It is also necessary to discuss the importance that the Environmental Information Directive attaches to the risk that the disclosure of the locations could undermine the quality of the forest inventory.

II.    Legal context

A.      Aarhus Convention

4.        The right to access to environmental information is enshrined at international level environmental information in the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (3) (‘the Aarhus Convention’), which was signed by the Community in Aarhus (Denmark) on 25 June 1998. (4)

5.        Article 2(3) of the Convention defines the concept of environmental information as follows:

‘For the purposes of this Convention,

…

3.      “Environmental information” means any information in written, visual, aural, electronic or any other material form on:

(a)      The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

…’

6.        Article 4 of the Convention governs the right of access to environmental information. Exceptions are provided for in Article 4(3) and (4):

‘(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:

…

(b)      International relations, national defence or public security;

…

(h)      The environment to which the information relates, such as the breeding sites of rare species.

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.’

B.      Environmental Information Directive

7.        The objectives of access to environmental information are set out in recital one of the Environmental Information Directive:

‘Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.’

8.        Recital 16 of the Environmental Information Directive concerns refusal of a request for environmental information:

‘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. …’

9.        The quality of environmental information and the method used in collecting it are addressed in recital 20 of the Environmental Information Directive:

‘Public authorities should seek to guarantee that when where environmental information is compiled by them or on their behalf, the information is comprehensible, accurate and comparable. As that is an important factor in assessing the quality of the information supplied the method used in compiling the information should also be disclosed upon request.’

10.      Article 2 of the Environmental Information Directive defines, inter alia, the concept of environmental information:

‘For the purposes of this Directive the following definitions shall apply:

1.      “Environmental information” shall mean any information in written, visual, aural, electronic or any other material form on:

(a)      the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b)      factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

…’

11.      The right of access to environmental information is governed by Article 3 of the Environmental Information Directive:

‘1.      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.

2.      Subject to Article 4 …, environmental information shall be made available to an applicant’.

12.      The exceptions to the right of access are governed by Article 4 of the Environmental Information Directive:

‘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;

…

(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;

(b)      international relations, public security or national defence;

…

(h)      the protection of the environment to which such information relates, such as the location of rare species.

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. …’

13.      Article 8 of the Environmental Information Directive addresses the quality of information and the procedures for its compilation:

‘1.      Member States shall, so far as is within their power, ensure that any information that is compiled by them or on their behalf is up to date, accurate and comparable.

2.      Upon request, public authorities shall reply to requests for information pursuant to Article 2(1)b, reporting to the applicant on the place where information, if available, can be found on the measurement procedures, including methods of analysis, sampling, and pre-treatment of samples, used in compiling the information, or referring to a standardised procedure used.’

III. The facts and the request for a preliminary ruling

14.      Since 1999, the Environment Agency (the defendant) has been carrying out the national forest inventory in Estonia. Its main objective is to compile statistical tables concerning the status, state and use of forest stands in Estonia, as well as land use and changes to it. It is a method for obtaining an objective survey of large-scale forest areas at as low a cost as possible. The measurement data and evaluations are collected on sample plots bundled in groups located on the margins of square parcels of land (so-called tracts) of 800 x 800 m (64 ha). The parcels of land are categorised as permanent or temporary. In accordance with the conditions of a random sample survey, each sample plot represents, proportionally, a part of total forest area in Estonia. The observation data are generalised and, on the basis of those data, a statistical report on Estonia’s forest stands is drafted. The Environment Agency publishes the results of the forest inventory on its website.

15.      The Mittetulundusühing Roheline Kogukond, the MTÜ Eesti Metsa Abiks, the Päästame Eesti Metsad MTÜ and the Sihtasutus Keskkonnateabe Ühendus (‘the environmental organisations’) submitted requests for information to the Environment Agency seeking inter alia the release of the data forming the basis of the statistical forest inventory. That basic data is data on the locations, measurements and evaluations of the sample plots. However, the Environment Agency submitted only part of the basic data as it did not provide the coordinates of the permanent sample plots.

16.      The applicants brought an action before the Tallinna Halduskohus (Administrative Court, Tallinn, Estonia) seeking an order requiring the Environment Agency to comply with their request for information and to communicate to them the coordinates of the permanent sample plots used for the statistical forest inventory.

17.      The Tallinna Halduskohus (Tallinn Administrative Court) refers the following questions to the Court from those proceedings:

‘(1)      Must data such as those relating to the location of permanent sample plots for the statistical forest inventory in the main proceedings be classified as environmental information within the meaning of Article 2(1)(a) or (b) of the Environmental Information Directive?

(2)      If, according to the answer to the first question, they are to be classified as environmental information:

(i)      Is Article 4(1)(d) of the Environmental Information Directive consequently to be interpreted as meaning that data on the location of permanent sample plots for the statistical forest inventory are also to be classified as material in the course of completion or unfinished documents or data?

(ii)      Is Article 4(2)(a) of the Environmental Information Directive to be interpreted as meaning that the condition laid down in that provision – namely that the relevant confidentiality is provided for by law – is satisfied where the confidentiality requirement is laid down by law not for a specific type of information but results, by way of interpretation, from a provision of an instrument of a general nature, such as the Law on public information or the Law on State statistics?

(iii)      Is it necessary, for the purposes of the application of Article 4(2)(b) of the Environmental Information Directive, to establish the existence of actual negative effects on the international relations of the State resulting from the disclosure of the requested information, or is it sufficient to establish that there is a risk in that regard?

(iv)      Does the ground of ‘the protection of the environment [in question]’ referred to in Article 4(2)(h) of the Environmental Information Directive justify restricting access to environmental information in order to ensure the reliability of State statistics?

(3)      If, according to the answer to the first question, data such as those relating to the location of the permanent sample plots for the statistical forest inventory in the main proceedings are not environmental information, must a request for information concerning such data be regarded as a request for access to information as defined in Article 2(1)(b) of the Environmental Information Directive, which must be treated in accordance with Article 8(2)?

(4)      If the third question is answered in the affirmative: Must data such as those relating to the location of the permanent sample plots for the statistical forest inventory in the main proceedings be regarded as information on methods of analysis, sampling and pre-treatment of samples within the meaning of Article 8(2) of the Environmental Information Directive?

(5)      If the fourth question is answered in the affirmative:

(i)      Can the access to such information pursuant to Article 8(2) of the Environmental Information Directive be restricted for any serious reason arising from national law?

(ii)      Can a refusal to release information on the basis of Article 8(2) of the Environmental Information Directive be mitigated by other measures, such as measures which provide access to the requested information to research and development institutions or to the Court of Auditors for the purposes of an audit?

(6)      Can a refusal to release data such as those relating to the location of the permanent sample plots for the statistical forest inventory in the main proceedings be justified by the objective of ensuring the quality of environmental information within the meaning of Article 8(1) of the Environmental Information Directive?

(7)      Does recital 21 of the Environmental Information Directive constitute a legal basis for the release of data relating to the location of permanent sample plots for the statistical forest inventory?’

18.      The environmental organisations, the Environment Agency, Estonia and the European Commission submitted written observations and replied to a request for information from the Court of Justice. In accordance with Article 76(2) of the Rules of Procedure, the Court has refrained from holding a hearing as it considers that it has sufficient information to give a ruling.

IV.    Legal assessment

19.      By posing its questions, the referring court seeks to know whether the right of access to environmental information obliges the defendant to release data on the location of the permanent sample plots of the statistical forest inventory.

20.      The right of access to environmental information derives from Article 3(1) of the Environmental Information Directive and requires only that the information requested is environmental information. However, the directive also provides for some exceptions to the right of access, allowing the competent authority to refuse disclosure.

21.      In the following, I will start by demonstrating that the location data at issue is environmental information (question 1, see A) and will then discuss the exceptions to the right of access to environmental information (questions 2 and 6, see B). I will conclude by showing that the remaining questions are irrelevant to the main proceedings (see C and D).

A.      Question 1 – the concept of environmental information

22.      By posing question 1, the referring court seeks to ascertain whether data such as those relating to the location of permanent sample plots for the statistical forest inventory in the main proceedings must be classified as environmental information for the purposes of Article 2(1)(a) or (b) of the Environmental Information Directive.

23.      According to Article 2(1)(a) of the Environmental Information Directive, the concept of environmental information means all information relating to the state of elements of the environment, such as, in particular, soil, land, landscape and natural habitats, as well as biodiversity and its components.

24.      Viewed in isolation, the location data at issue are merely geographical coordinates that say nothing about the state of elements of the environment.

25.      In contrast, the information on permanent sample plots of the statistical forest inventory in terms of the abovementioned definition is information on the state of elements of the environment, that is to say on certain natural habitats and components of biodiversity at those locations. However, that also includes location data. In the absence of that information, the totality of that data allows statistical statements to be made about the condition of the forests, but only together with location data can the status information be assigned to specific habitats.

26.      The Environment Agency objects that the methodology of collecting environmental information is not necessarily encompassed by the concept of environmental information. In response to that objection, it must be acknowledged that Article 8(2) of the Environmental Information Directive contains specific information obligations with regard to the procedures for compiling environmental information, which are the subject of questions 3 to 5.

27.      But even if the location data were to be allocated to that methodological information, that would not mean that those data must be excluded from the concept of environmental information on that basis alone. Location data therefore differ, for example, from criteria for the selection of sample plots, which do not describe the state of specific elements of the environment.

28.      Thus, it can be concluded that location data of the permanent sample plots of the statistical forest inventory, together with the information on the state of those plots, is information on the state of elements of the environment and therefore environmental information for the purposes of Article 2(1)(a) of the Environmental Information Directive.

29.      Whether, in addition, that information constitutes environmental information for the purposes of Article 2(1)(b) of the Environmental Information Directive is irrelevant for the right of access and does not need to be decided.

B.      Questions 2 and 6 – exceptions to the right of access

30.      Since environmental organisations thus have a fundamental right to disclosure of the disputed location data pursuant to Article 3(1) of the Environmental Information Directive, the question arises whether the Environment Agency can rely on an exception to that right and refuse disclosure. Those exceptions are based on certain interests that would be undermined in the event of a disclosure.

31.      I will therefore start by describing the necessary degree of risk to a protected interest in the context of an exception (question 2.3, see 1 below). On that basis, the various interests that could justify a refusal to disclose can be discussed. In that context, I will start by examining question 6 because the interest in the quality of the forest inventory addressed therein is at the core of all objections to the disclosure of the location data at issue (see 2 below). In addition, the referring court asks about various exceptions pursuant to Article 4 of the Environmental Information Directive, that is to say matters that are in the course of completion (question 2.1, see 3 below), about the need for the exception to confidentiality of the proceedings of public authorities to be provided for by law (question 2.2, see 4 below), about negative effects on the international relations of the State (question 2.3, see 5 below) and about the protection of the environment (question 2.4, see 6 below).

1.      Question 2.3 – necessary degree of risk to a protected interest

32.      By posing question 2.3, the referring court seeks to ascertain whether, for the purposes of the application of the exception to the right of access pursuant to Article 4(2)(b) of the Environmental Information Directive, it is necessary to establish the existence of actual negative effects on the international relations of the State resulting from the disclosure of the requested information, or whether it is sufficient to establish that there is a risk in that regard.

33.      While the referring court poses that question specifically in relation to the exception for the protection of international relations pursuant to Article 4(2)(b) of the Environmental Information Directive, the degree of risk required for an exception is relevant to all exceptions. I will therefore answer that part of the question first.

34.      The answer follows from the settled case-law on access to documents of the institutions of the European Union. If the authority decides to refuse access, it must explain how access to that document could specifically and effectively undermine the interest protected by an exception upon which it relies. Moreover, the risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical. (5)

35.      As Estonia notes, the Court of Justice has now applied that standard to the application of exceptions to the right to information under the Environmental Information Directive. (6)

36.      Thus, the application of exceptions to the right of access to environmental information requires that the disclosure of the information in question creates a reasonably foreseeable and not purely hypothetical risk of specifically and actually undermining the interest protected in each case.

2.      Question 6 – quality of the forest inventory

37.      The sixth question aims to determine whether a risk to the quality of future forest inventories can justify a refusal to disclose location data.

38.      The Environmental Information Directive explicitly recognises that interest and even creates a corresponding protection obligation. Pursuant to Article 8(1), Member States shall, so far as is within their power, ensure that any information that is compiled by them or on their behalf is up to date, accurate and comparable.

39.      The forest inventory is carried out at regular intervals by the Environment Agency, an authority of the Estonian State, and, according to the concurring statements of the parties, serves as a basis for forestry and environmental policy decisions by State authorities. The comparability of the information collected is of vital importance here, as the forest inventory is intended to record the development of the condition of forests over time and also be comparable with similar surveys in other States. It therefore amounts to information for the purposes of Article 8(1) of the Environmental Information Directive.

40.      According to the referring court, the Environment Agency has credibly demonstrated that disclosure of the contested location data could lead to attempts by interested persons to manipulate forest statistics in order to obtain, for example, higher logging volumes. If that risk materialises, the quality of the forest inventory would be undermined. It would probably be less precise and the comparability of results in terms of time and place would also be in doubt. That means that the Member State would have to prevent such disclosure, at least as far as possible. According to the submissions of the Environment Agency and Estonia, that assessment is shared internationally (7) and in particular in other Member States. (8)

41.      But is that sufficient to justify an exception to the right of access to location data on the basis of Article 8(1) of the Environmental Information Directive?

42.      That conclusion would contradict the exhaustive list of exceptions in Article 4 of the Environmental Information Directive. As the Court of Justice (9) and I myself (10) have previously stated, according to recital 16, public authorities should be permitted to refuse a request for environmental information only in specific and clearly defined cases. Those cases are summarised in Article 4. Therefore, the right of access to environmental information pursuant to Article 3 is subject to Article 4. Article 3, however, is not subject to Article 8(1), nor does Article 8(1) contain any explicit reference to the fact that the protection of the quality of environmental information may justify the refusal to disclose it.

43.      Additional exceptions would also conflict with the Aarhus Convention which was implemented by way of the Environmental Information Directive, (11) which in Article 4(3) and (4) also makes provision for specific, expressly stated exceptions only. (12)

44.      However, paragraph 17 of the preamble to the Aarhus Convention also emphasises the importance of fully integrating environmental considerations into governmental decision-making and the consequent need for public authorities to be in possession of accurate, comprehensive and up-to-date environmental information. Pursuant to Article 5(1) of the Convention, each Party shall ensure that public authorities possess and update environmental information which is relevant to their functions. Mandatory systems shall be established so that there is an adequate flow of information to public authorities about proposed and existing activities which may significantly affect the environment. The forest inventory is such a system.

45.      That shows, on the one hand, that the interest in the quality of environmental information recognised in Article 8(1) of the Environmental Information Directive cannot, in itself, justify the refusal to disclose environmental information because that Article does not make provision for specific, clearly defined cases in which a refusal is permitted.

46.      On the other hand, the recognised significance of the quality of environmental information lends particular weight to that interest. That is why that interest needs to be fully taken into consideration when interpreting and applying the explicitly defined grounds for a refusal to disclose.

47.      The entry point for that is the second subparagraph of Article 4(2) of the Environmental Information Directive. According to the first sentence, the grounds for refusal shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. And according to the second sentence, in every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal.

48.      That does not necessarily involve comparing public interests in disclosure and private interests in confidentiality. Rather, many of the exceptions also relate to public interests. In fact, it is not the public interest as a whole, but the public’s interest in disclosure, which must be weighed against the protected interests. (13)

49.      However, the public interest in the disclosure of the contested location data as such is limited. Indeed, the primary value of such data does not lie in the description of the state of the environment at the individual locations in question. Viewed in isolation, the respective status descriptions appear relatively uninteresting and, where necessary, could be relatively easily replaced, or probably even improved, by an inspection of the location in question.

50.      Rather, the value of those local status descriptions lies in the fact that together they provide a representative overall impression of the state of the forest that can be compared with previous and future forest inventories. That function would be undermined, however, if a disclosure gave rise to a fear that the state of the forest on the sample plots might be manipulated.

51.      The significance of the risks associated with disclosure, however, must be carefully assessed. It may be low if manipulation can be effectively prevented by other measures or if the location data is already widely available or can be easily worked out.

52.      The significance of the risk of manipulation would also be low if the environmental organisations’ argument that there is an incentive in Estonia, and above all for the Estonian State as the largest forest owner, to manipulate the forest inventory is correct. The Estonian State, however, already knows the location data because it was the Environment Agency who chose the locations. The risk to the forest inventory would then not primarily lie in the disclosure of location data to the public, but rather in the fact that certain State agencies would not be prevented from carrying out manipulations.

53.      From that angle, the interest invoked by the environmental organisations to monitor the truthfulness of the forest inventory would be all the more important.

54.      If, however, a disclosure of the location data were to give rise to a serious additional risk of sample plots being manipulated, that would also reduce the interest in public monitoring by the environmental organisations. Such monitoring would undermine its own objectives if it required disclosure of the location data even though such disclosure would call into question the quality of the forest inventory.

55.      Moreover, the interest in public monitoring by the environmental organisations might also be reduced by the fact that the quality and truthfulness of the forest inventory would be monitored by independent bodies without a general disclosure of the location data, a point that is addressed in question 5.2.

56.      The Court of Justice does not have the necessary information available to assess those aspects conclusively. Instead, that task falls to the domestic court with jurisdiction in the matter.

57.      Thus, in the interpretation of the exceptions to the right of access and in the balancing of interests, the interest of the public in the disclosure of the locations of the permanent sample plots of the statistical forest inventory must be taken into account. That interest is limited if such disclosure creates a reasonably foreseeable and not purely hypothetical risk of specifically and actually undermining the reliability of the forest inventory and if any benefits of disclosure can be achieved by other means.

3.      Question 2.1 – matters in the course of completion

58.      By posing question 2.1, the referring court seeks to ascertain whether data relating to the location of permanent sample plots for the statistical forest inventory constitute an exception pursuant to Article 4(1)(d) of the Environmental Information Directive. Pursuant to that provision, Member States may provide for a request for access to environmental information to be refused if it concerns material in the course of completion or unfinished documents or data. That exception is intended to take account of the authorities’ need for a protected space in order to engage in internal reflection and discussions. (14)

59.      However, like all exceptions to the right of access, the exception under the second subparagraph of Article 4(2) of the Environmental Information Directive must be interpreted in a restrictive way. Therefore, it must be limited to the three groups of cases specifically provided for. They are characterised by the fact that the materials, documents and data collected are still being processed – Article 4(3)(c) of the Aarhus Convention refers to ‘material in the course of completion’. There is a connection to data quality, in that public access to that information might give rise to an inaccurate impression. However, that risk can only justify a refusal to disclose if it cannot be addressed by adding appropriate advice. (15)

60.      However, the data on the location of the permanent sample plots of the statistical forest inventory are already available in full and therefore do not fall into any of the three categories.

61.      The fact that the data on the location of the permanent sample plots of the statistical forest inventory are to be used to regularly produce further reports on the state of the forests does not change that. Those reports and the information collected therein may at certain times fall under the abovementioned categories of cases and thus within the exception pursuant to Article 4(1)(d) of the Environmental Information Directive. However, that does not mean that the location data may be withheld. While they are explicitly or implicitly part of the reports, they are significant in their own right regardless of the individual reports, which may not yet have been completed. That is also demonstrated by the fact that those location data not only form the basis of reports that are still being processed, but – as the Environment Agency acknowledges – also form the basis of reports that have already been completed in the past.

62.      The above considerations on the possibly limited interest of the public in the disclosure of the location data (16) do not change the conclusion. They do not change the fact that the location data are part of operations that have already been completed.

63.      It would be contrary to the temporary nature of that exemption to apply it indefinitely to certain data by reason of the repeated use of that data, even though the data has already been definitively established. Rather, the exception is intended to apply only during a specific period, that is to say during the processing of materials, documents and data. (17) The idea of a time-limited application of that exception is confirmed by the second subparagraph of Article 4(1) of the Environmental Information Directive, according to which a refusal to disclose material that is in the process of being completed must already indicate when the material is expected to be complete.

64.      Therefore, data on the location of the permanent sample plots of a regularly repeated statistical forest inventory do not constitute material in the process of being completed, nor are they documents which have not yet been completed or data which have not yet been processed for the purposes of Article 4(1)(d) of the Environmental Information Directive.

4.      Question 2.2 – confidentiality of the proceedings of public authorities provided for by law

65.      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.

66.      By posing question 2.2, the referring court seeks to ascertain whether the requirement set out in that provision – that is to say that the relevant confidentiality is provided for by law (18) – is satisfied where the confidentiality requirement is laid down by law not for a specific type of information but results, by way of interpretation, from a provision of an instrument of a general nature, such as the Law on public information or the Law on state statistics.

67.      However, that question is not relevant to the decision and is therefore inadmissible because that exception does not cover the data on the location of the permanent sample plots of the statistical forest inventory. As I have recently explained in more detail, (19) that exception is 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) Therefore, the Court has held 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, they protect the confidentiality of the (final) discussions of public authorities and not the entire administrative procedure at the end of which those authorities hold their proceedings. (22)

68.      The contested information forms part of the factual basis of the discussions regarding the forest inventory but are not a part of the discussions protected by the exception in question.

69.      Therefore, it is not necessary to answer that question.

70.      By way of an aside, it should be noted that it should normally be sufficient for the confidentiality of final discussions to be derived by interpreting an instrument of a general nature. The Environmental Information Directive contains no reference to the need to specifically provide for the confidentiality of discussions in the context of access to environmental information.

5.      Question 2.3 – international relations

71.      Question 2.3 refers to Article 4(2)(b) of the Environmental Information Directive. According to that provision, Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect international relations.

72.      If question 2.3 were to be understood narrowly, it would have already been answered because, according to its wording, it refers exclusively to the degree of risk to international relations necessary for a refusal. (23)

73.      However, it is also clear from the grounds of the reference for a preliminary ruling that the court assumes that an exception to the disclosure obligation because it would undermine international relations requires the risk of a breach of an obligation under international law. That perspective explains why, in that context, the referring court states that the argument put forward by the Environment Agency based on the protection of international relations is ‘hypothetical’. Contrary to the Commission’s view, the court does not mean to say that the question is hypothetical, that is to say not relevant to the decision and thus inadmissible. Rather, it considers the invocation of that interest to be unconvincing.

74.      In order to provide a useful answer, it is therefore all the more important to examine more closely what would be regarded as ‘undermining international relations’, which would render a refusal to provide information permissible. The Court of Justice has not yet interpreted that concept in the context of the Environmental Information Directive, and the Aarhus Compliance Committee has not made any relevant statements in that regard. However, the corresponding exception to the right of access to EU documents (24) has already been the subject of case-law of the EU courts.

75.      Accordingly, that concept not only covers the breach of obligations under international law through the disclosure of information. The Court has previously recognised that that exception can also justify the confidential treatment of strategic objectives in international negotiations. (25)

76.      More generally, the Court convincingly summed up the scope of the protection of international relations by stating that the way in which the authorities of a third country perceive the decisions of the European Union is a component of the relations established with that third country. Indeed, the pursuit and the quality of those relations depend on that perception. (26)

77.      It is therefore consistent for the Court to accept that the disclosure of documents or information which third States had communicated to the Union may affect those relations, whether in the fight against terrorism, (27) in the protection of geographical indications (28) or in the context of other negotiations. (29) The same applies to an agreement concluded by an EU institution with a third country State-owned enterprise designed to promote a programme to improve the safety of nuclear power plants. (30)

78.      As the Environment Agency and Estonia point out, the forest inventory is an important tool in the application of the regulations on the consideration of land use in climate protection, (31) which is known to be the subject of intensive international cooperation. Therefore, the States also cooperate specifically on forest inventory (32) and the Commission intends to propose a new EU framework for forest monitoring. (33)

79.      If the quality of the inventory were to be compromised due to manipulation, that could have a detrimental effect on that international cooperation. Indeed, less reliable information on forest development reduces the incentive for other States to cooperate and collect such information.

80.      It is true that that risk of international relations being undermined does not appear to be particularly serious here – it does not appear to be a question of war and peace and disputes under international law are also rather unlikely. However, I have already set out above that the weight to be attached to the public interest in the disclosure of the contested location data may also be limited. (34)

81.      What is more, the decision to disclose that information must also take into account other interests that may be affected. Particularly the protection of the environment, which will be discussed below, must be considered for that purpose.

82.      With regard to question 2.3, it must be noted that a reasonably foreseeable and not purely hypothetical risk of specifically and actually undermining the reliability of the forest inventory used by a Member State in the context of international cooperation with other States may have a negative impact on international relations for the purposes of Article 4(2)(b) of the Environmental Information Directive.

6.      Question 2.4 – protection of the environment

83.      By posing question 2.4, the referring court seeks to ascertain whether the protection of the environment justifies a restriction on access to environmental information in order to ensure the reliability of the national forest inventory.

84.      Under Article 4(2)(h) of the Environmental Information Directive, Member States may provide for a request for environmental information to be refused if the disclosure would adversely affect the protection of the environment to which such information relates, such as the location of rare species.

85.      The example given shows that that exception was intended for certain places that are threatened by poachers or excessive curiosity, for example. (35) That reference to specific locations also seems to be reflected in the German version of the Environmental Information Directive, which, unlike other language versions, does not use the term ‘environment’ but the term ‘areas of the environment’. However, the term ‘area’ can be understood to refer to a place.

86.      To a lesser extent, permanent sample plots are also subject to such a local risk because manipulations can affect the habitats located there. The Environment Agency and Estonia even claim that information on the presence of protected species was collected at certain sample plots as part of the forest inventory.

87.      However, the low risk of such adverse effects is not the main reason relied upon by the Environment Agency. Rather, its point – and that of the referring court – is that a qualitatively impaired forest inventory is also a less reliable basis for measures to protect the environment. The protection of the locations to which the location data refer would at most be indirectly affected by that.

88.      The German version is worded particularly narrowly with regard to localised disadvantages by referring to ‘areas’ of the environment. In other versions, such as the English, French or Spanish versions, and also in the authentic language versions of the Aarhus Convention, more general reference is made to the ‘environment’ to which the information relates.

89.      That could also include forests in general, which could be adversely affected by environmental policies based on a less reliable forest inventory. Due to the significance of the forest inventory in the field of climate protection, (36) as mentioned above, undermining its quality could also have adverse effects in that field of environmental policy, which is even further removed from the state of the respective locations.

90.      An interpretation of Article 4(2)(h) of the Environmental Information Directive that would not exclusively cover the protection of specific locations but also the protection of the environment in general, as proposed by the Commission, would certainly not be the most restrictive conceivable interpretation of that exception.

91.      However, the objective of a restrictive interpretation according to the second subparagraph of Article 4(2) of the Environmental Information Directive is not absolute, which is already illustrated by the fact that the public’s interest in disclosure must also be taken into account. As has already been explained, that interest is rather low if the disclosure jeopardises the reliability of the forest inventory and any advantages of disclosure can be achieved by other means. (37)

92.      What is more, the Environmental Information Directive recognises the interest in the quality of the forest inventory through Article 8(1). And, notwithstanding the above, access to environmental information is not an end in itself, but, according to the first recital of the Directive, is intended to contribute to improving environmental protection. It would therefore be contradictory to interpret the exception for the protection of the environment so narrowly that environmentally harmful disclosure of environmental information could not be prevented only because the damage to the location to which the information directly relates is minor.

93.      Thus, a reasonably foreseeable and not purely hypothetical risk of specifically and actually undermining the reliability of the forest inventory, which is the basis for measures to protect the environment, may have a negative impact on the protection of the environment for the purposes of Article 4(2)(h) of the Environmental Information Directive.

7.      Final remarks on the specific application of the exceptions

94.      Finally, it should be noted that the existence of an exception to the right to information for the purposes of Article 4 of the Environmental Information Directive does not necessarily already permit the refusal of disclosure. Rather, the risks to protected interests, here possibly international relations and/or the protection of the environment, must still be weighed against the public’s interest in disclosure.

C.      Questions 3, 4 and 5 – information on the procedure for collecting information

95.      By posing questions 3, 4 and 5, the referring court seeks to ascertain whether the request relates to the methods of identifying environmental information on which disclosure is sought pursuant to Article 8(2) of the Environmental Information Directive.

96.      However, there is no need to answer those questions because they are raised only in the event that the disputed information on the location of the permanent sample plots of the statistical forest inventory does not constitute environmental information.

D.      Question 7 – publication obligation

97.      By posing question 7, the referring court seeks to ascertain whether the obligation to actively disseminate environmental information requires a disclosure of the contested location data. Although it refers to recital 21 of the Environmental Information Directive, in fact that obligation is laid down in Article 7.

98.      In principle, it is conceivable that that obligation extends to the contested location data. Pursuant to Article 7(2)(d) and (3) of the Environmental Information Directive, it includes reports on the state of the environment and, according to Article 7(2)(e), data derived from the monitoring of activities affecting, or likely to affect, the environment.

99.      However, pursuant to Article 7(5) of the Environmental Information Directive the obligation to actively disseminate information can also be restricted due to the exceptions pursuant to Article 4(1) and (2).

100. Therefore, the obligation to actively disseminate environmental information pursuant to Article 7 of the Environmental Information Directive does not extend further than the obligation to disclose environmental information upon request pursuant to Article 3.

V.      Conclusion

101. I therefore propose that the Court rule as follows:

(1)      Data on the location of permanent sample plots of the statistical forest inventory, together with information on the state of those plots, constitute information on the state of environmental elements and therefore environmental information for the purposes of Article 2(1)(a) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information.

(2)      The application of exceptions to the right of access to environmental information requires that the disclosure of the information in question creates a reasonably foreseeable and not purely hypothetical risk of specifically and actually undermining the interest protected in each case.

(3)      The interest in the quality of environmental information recognised in Article 8(1) of Directive 2003/4 cannot, in itself, justify a refusal to disclose environmental information. However, in the interpretation of the exceptions to the right of access and in the balancing of interests, the interest of the public in the disclosure of the locations of the permanent sample plots of the statistical forest inventory must be taken into account. That interest is limited if such disclosure creates a reasonably foreseeable and not purely hypothetical risk of specifically and actually undermining the reliability of the forest inventory and if any benefits of disclosure can be achieved by other means.

(4)      Data on the location of the permanent sample plots of a regularly repeated statistical forest inventory are neither material that is in the course of being completed, nor are they documents that have not yet been completed or data that have not yet been processed for the purposes of Article 4(1)(d) of Directive 2003/4.

(5)      A reasonably foreseeable and not purely hypothetical risk of specifically and actually undermining the reliability of the forest inventory used by a Member State in the context of international cooperation with other States may have a negative impact on international relations for the purposes of Article 4(2)(b) of Directive 2003/4.

(6)      A reasonably foreseeable and not purely hypothetical risk of specifically and actually undermining the reliability of the forest inventory, which is the basis for measures to protect the environment, may have negative effects on the protection of the environment for the purposes of Article 4(2)(h) of Directive 2003/4.

(7)      The obligation to actively disseminate environmental information pursuant to Article 7 of Directive 2003/4 does not extend further than the obligation to disclose environmental information on request pursuant to Article 3.

1      Original language: German.

2      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 (OJ 2003 L 41, p. 26).

3      OJ 2005 L 124, p. 4.

4      Adopted by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).

5      Judgments of 1 July 2008, Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 43 and 49); of 21 July 2011, Sweden v MyTravel and Commission (C‑506/08 P, EU:C:2011:496, paragraph 76); of 17 October 2013, Council v Access Info Europe (C‑280/11 P, EU:C:2013:671, paragraph 31); and of 3 July 2014, Council v In ’t Veld (C‑350/12 P, EU:C:2014:2039, paragraph 52).

6      Judgment of 20 January 2021, Land Baden-Württemberg (Internal communications) (C‑619/19, EU:C:2021:35, paragraph 69).

7      The Environment Agency and Estonia rely inter alia on McRoberts, Ronald E., Tomppo, Erkki O., and Czaplewski, Raymond L., ‘Sampling designs for national forest assessments’, in: Food and Agriculture Organization of the United Nations, Knowledge reference for national forest assessments, Rom, 2015, p. 26.

8      Estonia refers to Päivinen, R., Astrup, R., Birdsey, R.A. et al. Ensure forest-data integrity for climate change studies. Nat. Clim. Chang. 13, 495 and 496 (2023).  https://doi.org/10.1038/s41558-023-01683-8.

9      Judgments of 28 July 2011, Office of Communications (C‑71/10, EU:C:2011:525, paragraph 22), and of 20 January 2021, Land Baden-Württemberg (Internal communications) (C‑619/19, EU:C:2021:35, paragraph 33).

10      My Opinion in Office of Communications (C‑71/10, EU:C:2011:140, points 45 to 48), see also Opinion of Advocate General Hogan in Land Baden-Württemberg (Internal communications) (C‑619/19, EU:C:2020:590).

11      Judgments of 14 February 2012, Flachglas Torgau (C‑204/09, EU:C:2012:71, paragraphs 30 and 31), and of 20 January 2021, Land Baden-Württemberg (Internal communications) (C‑619/19, EU:C:2021:35, paragraph 28).

12      Cf. Aarhus Convention Compliance Committee (‘the Aarhus Compliance Committee’), Findings and recommendations of 24 July 2021 with regard to communication ACCC/C/2014/118, concerning compliance by Ukraine, ECE/MP.PP/C.1/2021/18, paragraph 114.

13      Cf. judgment of 28 July 2011, Office of Communications (C‑71/10, EU:C:2011:525, paragraph 22 to 31); and on access to European Union documents, judgements of 1 July 2008, Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 44 and 49), and of 3 July 2014, Council v In ’t Veld (C‑350/12, EU:C:2014:2039, paragraph 53).

14      Judgment of 20 January 2021, Land Baden-Württemberg (Internal communications) (C‑619/19, EU:C:2021:35, paragraph 44).

15      Aarhus Compliance Committee, Findings and recommendations of 11 January 2013 with regard to communication ACCC/C/2010/53, concerning compliance by the United Kingdom of Great Britain and Northern Ireland, ECE/MP.PP/C.1/2013/3, No 77.

16      See above, points 49 to 57.

17      Judgment of 20 January 2021, Land Baden-Württemberg (Internal communications) (C‑619/19, EU:C:2021:35, paragraph 56). Cf. also Aarhus Compliance Committee, Findings and recommendations of 26 July 2021 with regard to communication ACCC/C/2014/124 concerning compliance by the Netherlands, ECE/MP.PP/C.1/2021/20, Nos 107 and 108.

18      Judgment of 20 January 2021, Land Baden-Württemberg (Internal communications) (C‑619/19, EU:C:2021:35, paragraph 31).

19      My Opinion in Right to Know (C‑84/22, EU:C:2023:421, point 31).

20      Cf. Opinion of Advocate General Sharpston in Flachglas Torgau (C‑204/09, EU:C:2011:413, point 83); and of Advocate General Szpunar in Saint-Gobain Glass Deutschland v Commission (C‑60/15 P, EU:C:2016:778, points 76 and 57 et seq.); and of the Aarhus Compliance Committee, Findings and recommendations of 28 March 2014 with regard to communication ACCC/C/2010/51, concerning compliance by Romania, ECE/MP.PP/C.1/2014/12, No 89.

21      Judgment of 14 February 2012, Flachglas Torgau (C‑204/09, EU:C:2012:71, paragraph 63).

22      Judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission (C‑60/15 P, EU:C:2017:540, paragraph 81).

23      See above, points 32 to 36.

24      The third indent of Article 4(1)(a) 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 (OJ 2001 L 145, p. 43). As far as environmental information is concerned, that Regulation must be applied in the light 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 (OJ L 264, 25.9.2006, p. 13), as amended by Regulation (EU) 2021/1767 (OJ 2021 L 356, p. 1).

25      Judgments of 3 July 2014, Council v In ’t Veld (C‑350/12, EU:C:2014:2039, paragraph 67), and of 19 March 2020, ClientEarth v Commission (C‑612/18, not published, EU:C:2020:223, paragraphs 34 to 38 and 41 to 44).

26      Judgments of the General Court of 27 February 2018, CEE Bankwatch Network v Commission, (T‑307/16, EU:T:2018:97, paragraph 90), and of 25 November 2020, Bronckers v Commission (T‑166/19, EU:T:2020:557, paragraph 61).

27      Judgment of the Court of First Instance of 26 April 2005, Sison v Council (T‑110/03, T‑150/03 and T‑405/03, EU:T:2005:143, paragraphs 79 to 81).

28      Judgment of the General Court of 25 November 2020, Bronckers v Commission (T‑166/19, EU:T:2020:557, paragraphs 60, 63 and 64).

29      Judgment of the General Court of 12 September 2013, Besselink v Council (T‑331/11, not published, EU:T:2013:419, paragraph 58).

30      Judgment of the General Court of 27 February 2018, CEE Bankwatch Network v Commission (T‑307/16, EU:T:2018:97, paragraph 95).

31      Regulation (EU) 2018/841 of the European Parliament and of the Council of 30 May 2018 on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework (OJ 2018 L 156, p. 1), as amended by Regulation (EU) 2023/839 (OJ 2023 L 107, p. 1).

32      See, for example, the Global Forest Resources Assessment of the FAO, https://fra-data.fao.org/assessments/fra/2020, the Ministerial Conference on the Protection of Forests in Europe, foresteurope.org, or the European National Forest Inventory Network, http://enfin.info/, which implements projects under the Commission’s Joint Research Centre.

33      Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, New EU Forest Strategy for 2030 (COM(2021) 572 final, p. 26).

34      See above, points 49 to 57.

35      Aarhus Compliance Committee, Findings and recommendations of 25 February 2011 with regard to communication ACCC/C/2009/38, concerning compliance by the United Kingdom of Great Britain and Northern Ireland, ECE/MP.PP/C.1/2011/2/Add.10, Nos 70 to 77.

36      See above, point 78.

37      See above, points 49 to 57.

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