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CJEU confirms the possibility to refuse disclosure of environmental information affecting the right to a fair trial [EU]

In an order of 8 May 2014, the Court of Justice of the European Union (CJEU) confirmed the compatibility of Directive 2003/4/EC of 28 January 2003 on public access to environmental information with the right to a fair trial within the meaning of Article 47 of the Charter of Fundamental rights of the European Union (EU) and Article 6 of the Treaty on EU (TEU). Thus, the CJEU concluded in its order that the provision of Directive 2003/4/EC which authorises Member States to refuse the disclosure of environmental information if it would adversely affect the ability of any person to receive a fair trial, may not be considered invalid in the light of Article 47 of the Charter or Article 6 TEU.

Following significant rainfall, the overflow of the Drau river has caused considerable damage. Wishing to obtain information for clarifying the conditions under which this flood has occurred, an individual addressed on 26 November 2012 a request to the Federal Ministry of Agriculture, Forestry, Environment and Water Management in order to obtain information on levels and flows of the Drau river in the vicinity of several power plants. However, the department refused to provide this information in a decision of 8 March 2013, in order to enable persons involved in the criminal investigation to obtain a fair trial.

Directive 2003/4/EC was transposed into Austrian law by the Austrian Federal Law on access to environmental information. The referring court states that the transposing law does not permit the ground for refusal to be applied to the abovementioned request for information because “the ground for refusal at issue does not apply to environmental information”. In addition, the referring court emphasizes that Directive 2003/4/EC allows (without imposing) Member States to reject a request for access to environmental information where the disclosure of such information would prejudice the ability of any person to a fair trial (Article 4). Therefore, an issue is raised concerning the compatibility of the Directive with the fundamental right under Article 47 of the Charter which provides that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law”. Firstly, the CJEU reminds that “a provision of secondary EU law must, so far as possible, be given an interpretation which renders that provision consistent with the Treaties and the general principles of EU law”. Then, it reminds that Directive 2003/4/EC allows Member States, under its Article 4, to provide for an exception to the obligation to disclose environmental information in order to enable them, if circumstances require, to respect the right to a fair trial under Article 47, second paragraph, of the Charter. Furthermore, the CJEU points out that the obligation to ensure compliance with rules of EU law applies to all Member States’ authorities in the framework of their competences, including to administrative and jurisdictional bodies. Therefore, such bodies are required, if the conditions are met for application of Article 47 of the Charter, to ensure respect for the right to a fair trial. Therefore, the CJEU finds no incompatibility between Directive 2003/4/EC and the Charter and concludes that Directive 2003/4/EC may not be considered invalid in the light of Article 47 of the Charter or Article 6 TEU.

Sources : Order of the Court of Justice of the European Union, Case C 329/13, 8 may 2014

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