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.
It held :
Those considerations point therefore to a functional interpretation of the phrase ‘bodies or institutions acting in a … legislative capacity’, according to which ministries which, pursuant to national law, are responsible for tabling draft laws, presenting them to Parliament and participating in the legislative process, in particular by formulating opinions, can be considered to fall within that definition, within the meaning of and for the application of Directive 2003/4.
However, this is no longer the case if the legislative process has ended. Ministries should then again be regarded as public authorities within the meaning of the Directive:
While making environmental information available during the course of the legislative process, under the conditions set out in Article 3 of Directive 2003/4, may impede the smooth running of that process, that is in principle no longer the case once that process has come to an end. Furthermore, the documents relating to that process, and, in particular, parliamentary reports are, generally, available to the public.
56 In those circumstances, although, in order to ensure the effectiveness of the first sentence of the second subparagraph of Article 2(2) of Directive 2003/4, a broad interpretation of ‘legislative process’ should be adopted, including the different stages of that process until the promulgation of any law that may be adopted in that process, prolonging the derogation from the principle, set out in Article 1 of the directive, of the right of access to environmental information beyond the end of that process does not appear to be justified.