Directive 2003/4, which implements the Aarhus Convention, gives citizens and businesses the right to access to environmental information in possession of public authorities without making it necessary for them to state reasons. The definition of public authorities is therefore quite important, as the Directive applies as soon as a body falls under that definition. In case C-204/09 Flachglas Torgau, the undertaking Flachglas Torgau sought information from Federal Ministry for the Environment about the conditions in which the Federal Office for the Environment in Germany had allocated emission allowences between 2005 and 2007. This was refused by the Federal Ministry for the Environment on grounds that it related to the legislative process which had resulted in the adoption of the Zuteilungsgesetz 2007. The Directive allows Member States to exclude bodies or institutions from the definition of public authorities ‘when acting in a judicial or legislative capacity.’ Because the requested information related to documents that were used in the process of adaptation of the Zuteilungsgesetz 2007, the Federal Ministry maintained that that it had acted in a legislative capacity and that therefore the Directive did not apply to it.
The Court agreed. It noted that although the Directive was intended to apply to administrative authorities, the purpose for excluding legislative authorities was ‘to ensure that the process for the adoption of legislation runs smoothly, taking into account the fact that, in the various Member States, the provision of information to citizens is, usually, adequately ensured in the legislative process’. According to the Court, ministries do not fall under the definition of public authority to the extent that they participate in the legislative process.