It is a clear feature of access regime embodied in the EIR that the right of public access to environmental information does not apply to bodies to the extent that they are ‘acting in a … legislative capacity’ (r. 3(3)). This exclusion is permissible under both Article 2(2) of the Directive 2003/4/EC on Public Access to Environmental Information and Article 2(2) of the Aarhus Convention. The exclusion is no doubt derived from the constitutional principle that legislators are democratically elected and are directly accountable to the public (see further the Implementation Guide to the Aarhus Convention, p. 34). But what is the position if a legislative act does not in practice involve any kind of democratically driven legislative process? What if the legislation in question amounts to the mere rubber stamping of a decision by administrators? Will that act still fall within the scope of the exclusion, despite lacking any meaningful democratic credentials? Following a recent judgment of the CJEU, it would seem that the latter question must be answered in the negative. In Solvay & Ors v Région Wallone Case C-182/10 (judgment delivered on 16 February 2012), the Walloon Parliament had legislated to ratify the granting of certain planning consents in respect of a number of major developments. A question arose as to whether the Aarhus Convention applied to the ratifications. The CJEU were in no doubt that the legislation in question could not fall within the ambit of the exclusion provided for in Article 2(2) of the Convention. This was because that legislation ‘simply ratified’ a pre-existing administrative act. It was not derived from a substantive legislative process of the kind required by the Aarhus Convention (see paras. 29-43 of the judgment and note in particular in those paras. the consideration of Article 1(5) of Directive on the assessment of the effects of certain public and private projects on the environment, which provides for a specific right of access to information relevant to environmentally significant developments). It follows that administrative acts cannot be rendered immune from the full force of the environmental information access regime merely by being covered in a thin legislative veneer (see also the judgment in Boxus & Ors [2011] ECR 1-0000 where the Court reached a similar conclusion).

The judgment in Solvay is also interesting for what it says on the question of the effect of the Implementation Guide to the Aarhus Convention. In response to the question whether the Convention must be interpreted in accordance with the Guide, the Court concluded that the Guide, which was drawn up by international experts, was designed to be an ‘explanatory document’ which contained observations which were ‘capable of being taken into consideration if appropriate among other relevant material for the purpose of interpreting the Convention’ but which had ‘no binding force and do not have the normative effect of the provisions of the Aarhus Convention’ (para. 27).