In this case the Court was called upon to interpret the Community directive on the freedom of access to information on the environment (90/313/EEC). The directive provides that the public authorities of the Member States "are required to make available information relating to the environment" - defined in the directive - "to any natural or legal person at his request and without his having to prove an interest". However, it also states in what circumstances such authorities may refuse a request for access - including "where it affects matters which are, or have been, sub judice, or under enquiry or which are the subject of preliminary investigation proceedings". The directive was transposed into German law in 1994 by the Umweltinformationsgesetz (Law on information on the environment, "the UIG"), which provides that there is no right of access to information on the environment inter alia "during the course of an administrative procedure, as regards information received by the authorities in the course of such proceedings" (Paragraph 7 UIG).

Relying on the directive, Mr Mecklenburg requested the town of Pinneberg on 1 January 1993 and Kreis Pinneberg on 18 March 1993 to send him a copy of the statement of views adopted by the countryside protection authority in connection with a development consent procedure regarding the construction of the "western bypass". By decision of 17 May 1993 Kreis Pinneberg rejected his request on the ground that the authority's statement of views was not "information relating to the environment" within the meaning of the directive because it was merely an assessment of information already accessible to him and because, in any event, the criteria for refusal set out in the directive applied, since a development consent procedure must be regarded as "preliminary investigation proceedings".

The Schleswig-Holsteinische Oberverwaltungsgericht (Higher Administrative Court, Schleswig-Holstein), the appellate administrative court currently considering the case, was in doubt as to the correct interpretation of the directive and stayed the proceedings pending a preliminary ruling from the Court of Justice on the questions to which the Court has replied today.

The first question asks in essence whether Article 2 of the directive (which defines "information relating to the environment") is to be interpreted as covering a statement of views given in development consent proceedings by a countryside protection authority participating in those proceedings. The Court noted that Article 2 includes under that concept any information on the state of various aspects of the environment mentioned therein as well as on activities or measures which may adversely affect, or protect, those aspects, "including administrative measures and environmental management programmes". The Community legislature thus intended to make the concept of "information relating to the environment" a broad one, embracing both information and activities relating to the state of those aspects. It purposely avoided giving any definition of that concept which could lead to the exclusion of any of the activities engaged in by the public authority.

Accordingly, the Court's reply to the first question was that Article 2 of the directive is to be interpreted as covering a statement of views given by a countryside protection authority in development consent proceedings if that statement is capable of influencing the outcome of those proceedings as regards interests pertaining to the protection of the environment.

The second question asks in essence whether the phrase "preliminary investigation proceedings", which may be relied upon to refuse access to information on the environment, is to be interpreted as including administrative proceedings such as those referred to in the UIG which merely prepare the way for an administrative measure. The Court noted that that exception related solely to proceedings of a judicial or quasi-judicial nature, or at least proceedings which would inevitably lead to the imposition of a penalty if the offence, whether administrative or criminal, was established. Viewed in that context, therefore, "preliminary investigation proceedings" must refer to the stage immediately prior to the judicial proceedings or enquiry. The history of the adoption of the directive and a comparison of the various language versions of the phrase "preliminary investigation proceedings" in the official languages of the European Community bear out that interpretation.

Consequently, the Court's reply was that the cases in which access to information could be refused under the Community directive did not include an administrative procedure such as that referred to in Paragraph 7 of the UIG, which merely prepares the way for an administrative measure, unless it immediately precedes a contentious or quasi-contentious procedure and arises from the need to obtain proof or to investigate a matter prior to the opening of the actual procedure.

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For the full text of the judgment or for further information, please contact Tom Kennedy tel: (00 352) 4303-3355 fax: (00 352) 4303 2731