Mr Fennelly rejected the Commission's first complaint, that the law should not have explicitly excluded all juridical bodies from the its provisions. Although information which is sub judice or under enquiry may be withheld by authorities under the EU law, Fennelly said that the directive was based on a "functional, rather than an organic conception" of public bodies and that it was thus possible that court bodies could sometimes be deemed to be "exercising responsibilities relating to the environment" outside their juridical activities and be subject to the directive. However, he accepted the German argument that under their court system this situation could not arise.
The advisor accepted three other charges of non-compliance brought by the Commission. He felt that the German law did not state clearly enough that partial information might be provided even if some of the original information requested was refused, and that in that sense it could act as a barrier to access.
He also agreed that the wording of national law left too much room for exemption of "administrative proceedings" from the directive's scope, and, most contentiously, that the charges for information provided exceeded "a reasonable cost" and would "have a dissuasive effect" on the public. The German law allows for a fee of up to euros 5,112 (DM10,000) to be charged, depending on the time spent processing the request.
Although the German agent at the Court had argued "strenuously" to allow "manpower" and "overhead" costs to be included in the charging system, the advocate general decided that the cost should be "reasonable" to the member of the public rather than the public authority concerned, and that administrative services should be organised accordingly if the authorities wanted to save costs. Providing access to environmental information was, he said, "the recognition of a right, rather than the provision of a service," and that only immediate costs of provision, such as photocopying, should apply.
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