New commission rules undermine public access to environmental information

By ClientEarth environmental democracy lawyer Juliette Delarue

In December 2024, the European Commission published not only two, but three sets of decisions relating to transparency. Two of the decisions (see here and here) were applauded by the press and transparency advocates and promised to improve transparency of meetings between the Commission and lobbyists. However, one of these decisions was adopted quietly as an annex to the revised Commission rules of procedure. This revision will make the Commission more opaque than ever, notably by barring access to documents that used to be public.  

ClientEarth, and the broader community of NGOs advocating for EU transparency, only found about the new rules late in January when the first information refusals referred to the new rules. Fortunately, this was just on time to file a request for internal review under Article 10 Regulation (EU) 1367/2006 (“the Aarhus Regulation”). 

What is the problem? 

The annex significantly revises previous rules (dating back from 2001) in a number of respects, namely by:

• Restricting eligibility to request Commission documents to EU citizens, residents or registered entities, 
• Preventing access to draft and un-registered documents (including text messages!),  
• Extending and creating presumptions of non-disclosure.  

In terms of environmental democracy, the new rules impose restrictions on access to environmental information, as defined in Article 2(1)(d) of the Aarhus Regulation. This runs counter to the principle of ensuring the “widest possible access to environmental information,” enshrined in Article 1 of the Aarhus Regulation. The most significant restrictions are outlined below. 

Main violations of environmental law 

Violations and inconsistencies with the Aarhus Regulation are evident from the outset, beginning with Article 1 of the annex and Article 65 of the rules of procedure. The Commission has decided that non-EU citizens or entities are no longer eligible to request documents, For example, a request by a US resident concerning DG MOVE’s meetings with Nissan was denied. Although Article 42 of the Charter and Article 2(2) of Regulation (EC) No 1049/2001 permit such restrictions, they conflict with the Aarhus Regulation and the Aarhus Convention, which prohibit discrimination based on citizenship or residence in access to environmental information. 

The new rules also block access to draft and unregistered documents. Article 2 of the annex excludes documents not “approved as ready for transmission” from the notion of ‘documents drawn by’ the Commission,. Article 5(2)(f) excludes draft documents (e.g. a draft legislative proposal or policy communication or a draft impact assessment) from registration, limiting their availability, even when they contain environmental information. Commission staff will not be able to search and find documents that are not registered, as explained in the internal guidance to staff. Such draft documents may contain environmental information, in particular when they are preparing for measures such as environmental policies or legislation. Additionally, text messages will be automatically deleted, regardless of their content – does it ring a bell? 

Moreso, two new legal presumptions of non-disclosure are particularly problematic in environmental matters. These relate to Legal Service opinions, including those linked to the elaboration of environmental measures and documents being part of “administrative authorisation proceedings”. These presumptions have not been recognised by the CJEU. The latter category is undefined, but could cover authorisations for the use of chemicals of high concern or for placing on the market active substances or food additives, for instance. Relevant sector-specific legislation typically addresses the confidentiality of such processes — in particular, by stipulating that environmental information must be disclosed, subject to the protection of business confidentiality (see, for example, Articles 11 and 12 of Regulation (EC) No 1331/2008). The new Commission rules, however, cast a blanket of secrecy over the entire dossier. It remains unclear how the Commission intends to reconcile compliance with its own procedural rules and adherence to higher-ranking secondary legislation. 

Comment 

The new rules represent a flagrant violation of established CJEU case law. It is well-settled (notably judgments in C-57/16P and recently C726/22 P) that draft proposals, impact assessments and policy communications drawn up in the course of a decision-making process must be disclosed under certain circumstances. Their provisional character, in itself, does not justify withholding them. Similarly, legal opinions of the Legal Service must be made public during the legislative process (see judgments in Turco v Council, C39/05 P and recently ClientEarth and Päivi Leino-Sandberg v Council , T682/21 and T683/21).  

The rules also formalise practices that many of us naïvely thought belonged to a bygone era — such as the non-registration of potentially important documents and the automatic deletion of text messages. 

Essentially, the new rules obviously contradict the EU Parliament’s call that “the [new internal] guidelines [the Commission intended to adopt] entail a policy of ‘transparency by design’ and reflect the relevant case-law and the Ombudsman’s recommendations from recent years”. Instead, the Commission negated each and every recommendation the democratically-elected representatives of EU citizens were making. 

The backtracking on transparency, accountability of the Commission and therefore, on democratic rights set out in the new rules is particularly worrying. In a political context of ‘simplification’, ‘sovereignty’ and push for mining proposals, it is particularly important that environmental information, and information about decision-making, is widely available. We can only hope that the Commission will reconsider the new rules and improve transparency, thus democracy, as soon as possible.