Judges O Spineanu-Matei, J‑C Bonichot (Rapporteur), S Rodin, LS Rossi
Advocate General J Kokott
The claimant, a not-for-profit environmental organisation governed by Irish law, put in a request to the Irish Government for access to records of cabinet discussions relating to greenhouse gas emissions. The request was refused pursuant to national law transposing article 4 of Parliament and Council Directive 2003/4/EC which set out the exceptions which could be relied on by member states’ public authorities in order to oppose requests for confidential environmental information. The claimant applied for judicial review of that refusal before the Irish High Court, which held that the exception to the right of access laid down in article 4(1)(e) of the Directive in respect of “internal communications” was applicable, since meetings of the Irish Government had to be characterised as such communications. However, the court found that the Government had failed to carry out the balancing exercise required by article 4, in that it had not weighed the public interest served by disclosure against the interest served by refusal. The High Court therefore quashed the decision refusing access and remitted the claimant’s request to the defendant, An Taoiseach (the Irish Prime Minister), for reconsideration. Upon reconsideration, the Prime Minister allowed the claimant’s request in part, granting access in respect of one record of discussions, partial access in relation to 17 records and no access in relation to the remaining 13 records. The claimant, again, sought judicial review of that decision before the Irish High Court, on the ground inter alia that the requested information constituted “proceedings of public authorities” within the meaning of article 4(2)(a) of the Directive, rather than “internal communications”, and that, therefore, the exception to the right of access did not apply, since the information concerned “emissions into the environment”. In those circumstances, the Irish High Court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question, inter alia and in essence, whether records of government meetings constituted “internal communications” within the exception to the right of access to environmental information under article 4(1)(e) of Directive 2003/4, or constituted “proceedings of public authorities” within the exception under article 4(2)(a) of that Directive.
On the reference—
Held, the two exceptions to the right of access to environmental information under articles 4(1)(e) and 4(2)(a) of Directive 2003/4, respectively, corresponded to separate legal regimes. The protection of “internal communications” allowed a protected space to be created for public authorities in order to engage in reflection and to pursue internal discussions. It followed that the exception laid down in article 4(1)(e) of Directive 2004/3 covered information which circulated within a public authority and which, on the date of the request for access, had not left the internal sphere of that authority, provided that it was not or should not have been made available to the public before it had been received by the authority. That exception had a broad scope and could apply at each stage throughout the work carried out by the authority. By contrast, the exception relating to the “proceedings of public authorities” under article 4(2)(a) applied only to information exchanged in the context of the final stages of the decision-making process of public authorities, which were clearly defined as proceedings under national law, and in respect of which such law provided for a duty of confidentiality. Therefore, the scope of that exception was precise and limited. Access to information relating to “emissions into the environment” had to be disclosed if it had been exchanged in the course of confidential “proceedings” within article 4(2)(a) of the Directive, unless it was impossible to separate it out from the rest of the information exchanged in the same context. Conversely, where the information fell within either article 4(1)(e) as “internal communications” or it did not relate to emissions into the environment, the authorities had to weigh the public interest served by disclosure of that information against the interest served by the refusal to disclose it. The subject of the request for access in the present case, namely records of government discussions, were capable of falling within both concepts of “internal communications” or “proceedings of public authorities”. It followed that, subject to matters to be determined by the referring court, it could not be ruled out that the conditions for applying both the exception in article 4(1)(e) and that in 4(2)(a) were satisfied. However, a cumulative application of those two exceptions was not possible and the provision in article 4(2)(a) constituted a lex specialis in relation to article 4(1)(e). Thus, if the conditions for applying the more specific exception in relation to “proceedings of public authorities” were satisfied, the application of that exception took precedence over that of the exception relating to internal communications, which was more general in scope (judgment, paras 35, 41, 44–47, 49–51, 53–55, 57, operative part, para 1).
D Browne and NJ Travers (instructed by FP Logue LLP, Dublin), for the claimant.
M Browne, E O’Hanrahan and A Joyce, agents, and Brian Kennedy SC and Aoife Carroll, for the Irish Prime Minister and Ireland.
G Gattinara and L Haasbeek, agents, for the European Commission.