EIR: Court of Justice gives guidance on the internal communications exception in Land Baden-Württemberg v DR

March 4th, 2021

The Court of Justice recently gave guidance on the “internal communications” exception in the Environmental Information Directive 2003/4/EC. It gave its views on the principle that exceptions should be interpreted restrictively and the relevance of the Aarhus Convention Implementation Guide (tl;dr – internal is the opposite of external, to be a communication information has to be shared, there is no time limit on the exception, and neither the principle nor the Guide makes any difference to the outcome in the end).

In its judgment, Land Baden-Württemberg v DR (Case C-619/19, ECLI:EU:C:2021:35), the Court demonstrated impressive devotion to the idea that facts don’t matter in preliminary references. Apparently, the environmental information requested has something to do with felling trees, a castle and a police operation but the Court left the rest of this tantalising plot to the reader’s imagination.

Communication

Focusing on what really matters, the Court explained that a “communication” means “information addressed by an author to someone” [37]. This, it explained, is because this exception uses the word “communication” whereas other exceptions use words with a wider meaning, such as “material” or “document”, which “do not necessarily concern information that is addressed to someone” [40]. The Court explained that there is no restriction on the content of a “communication”: it is not limited to personal opinions, can include non-essential documents and can be entirely factual (i.e. the sharing of information, without more, from one person to another is a communication).

This succinct conclusion was distilled from AG Hogan’s reasoning in his Opinion, which set out why it would make no sense to limit the exception to particular types of communications:

“… I do not think that the exception laid down in Article 4(1)(e) of Directive 2003/4 should be limited to personal opinions or, as suggested before the referring court, to ‘significant documents’. Quite apart from the fact that there is nothing in either the wording or the context of Article 4(1)(e) of Directive 2003/4 to suggest this – after all, the words used are neutral and do not contain any limitation or specification as to the content of the communications referred to in that provision – these alternative interpretations of that provision would, I fear, be both impractical and almost impossible to apply. Many judicial hours could be spent in rather fruitless debates as to whether a particular document was significant or not. If, moreover, the proposed ‘personal opinion test’ were to be adopted, would this mean, for example, that by the mechanism of prefacing purely factual statements with common phrases such as ‘I consider that’ or ‘it seems to me’, this otherwise purely factual statement would thereby be converted into a personal opinion for this purpose, so that the ‘internal communication’ exemption would thereby come into play? It would be hard to see why not. After all, many personal opinions either relate to or are intrinsically linked to or are based on factual elements.” [25]

Internal

“Internal” refers only “to information that circulates within a public authority and which, on the date of the request for access, has not left the public authority’s internal sphere … inter alia as a result of being disclosed to a third party or being made available to the public” [47]. The Court stated that this can include information that was originally received from someone outside the public authority “if it was not or should not have been made available to the public before that authority received it and it does not leave that authority’s internal sphere after it received it” [43].

Time limit

DR had argued that the internal communications exception should be subject to a time limit. The Court adopted a literal interpretation of the Directive in order to reject this: there is no time limit written into the text, so none should be imposed. To hammer home the point, the Court decided that a purposive interpretation comes to the same place: the purpose of the exception is to create “a protected space” for internal discussions, which would be hampered by a time limit [57].

AG Hogan’s Opinion spells out in a little more detail the thinking behind the purposive interpretation. He explained that there is no need for a time limit on the question of what constitutes an internal communication because the public interest balance serves the same function in a more case-sensitive way. This drew on the United Kingdom government’s observation that the exception is always subject to the public interest balance and so never absolute, such that a time limit would be unnecessary. AG Hogan said:

[I]t is in the exercise of this specific obligation of balance of interests … that the public authority is best placed to assess the need to maintain a communication internally, whether it was issued several years previously or not. As previously stated, recourse to Article 4(1)(e) of Directive 2003/4 is at no time absolute. The public authority is always obliged to balance the public interest served by disclosure against the interest served by the exception, having regard to the specific concerns relied on to justify refusing disclosure. In this respect, the passage of time, and the extent to which a decision has eventually been taken, are certainly very important factors.” [51]

Interpretation of the Directive

The Court also set out how (or rather, how not) to use the Aarhus Convention Implementation Guide and the principle that the exceptions should be interpreted restrictively.

The Court condemned the Guide to the status of “and finally…” interpretive aids that make no difference to the outcome but add an extra paragraph to the judgment/opinion/submissions/blogpost you happen to be writing. The Court said: “while the Aarhus Convention Implementation Guide may be regarded as an explanatory document, capable of being taken into consideration if appropriate among other relevant material for the purpose of interpreting the Aarhus Convention, the observations in the guide have no binding force and do not have the normative effect of the provisions of the convention.” [51] In other words: interpret the words of the Directive in the same manner as any other directive. If the Guide agrees with you use, great – it would be appropriate to use it to bolster to your conclusion. If it doesn’t, no problem – feel free to ignore it confident in the view that it would inappropriate to have cited it.

The principle that the exceptions have to be interpreted restrictively was similarly inconsequential. The Court said: “It is true that … exceptions to the right of access should be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal of disclosure. However, that rule of interpretation cannot limit the scope of Article 4(1)(e) of Directive 2003/4 in disregard of its wording.” [48]

The first sentence suggests that the rule of interpretation applies only to the public interest balance and not (in domestic EIR language) to the prior question of whether the exception is engaged. This is a phrase the Court has used before but it has not been the ratio of a case previously (Office of Communications v IC (C-71/10, EU:C:2011:525) and Stichting Natuur en Milieu (C‑266/09, EU:C:2010:779)). A literal reading of article 4(2) (from which this principle derives) could, just about, support this narrow approach but it is not the only available interpretation of it: “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.” There is an irony in adopting a restrictive interpretation of a provision mandating a restrictive approach, if that is what the Court intended to suggest. Notably, the domestic Tribunals do not take this narrow approach, applying the principle to both the engagement and balance questions (e.g. Highways England v IC and Manistry [2018] UKUT 423 (AAC)).

The second sentence is harder to understand. On a literal (but rather dull) reading it just says that an interpretive aid cannot override the express language of the legislation. Interpreted within the context of its adjoining paragraphs (and the fact that DR didn’t argue to “disregard” any wording but rather to “interpret” it), however, the Court’s conclusion becomes more questionable. It seems to be that this interpretive aid should be discounted in the face of its preferred interpretation of the legislation. The problem with this is that it kills off the character right before the big scene. The point of mandating a particular interpretative approach is to indicate how ambiguous words are to be construed. The word “internal” has a degree of ambiguity, as the Court’s own reasoning from [41]-[46] demonstrates. Rather than rejecting the principle, the Court could have been expected to explain why the interpretation it favoured was, in fact, a restrictive one (spoiler: it was).

11KBW’s Chris Knight appeared for the United Kingdom government.

Ben Mitchell

 

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