By Jörn Kassow and Eun-Kyung Lee

Businesses operating in Europe are under increasing pressure to comply with new environmental requirements introduced under the Industrial Emissions Directive (IED). So far, operators have focused on the headline changes under IED, such as the strengthened requirement for a baseline survey and challenging emission limits. However, operators also need to consider the provisions of IED which target increased transparency associated with the findings from regulatory inspections.

The IED has made environmental inspections of IED-installations mandatory. Such inspections must examine the full range of environmental effects from the installation and take place on a regular basis (to be determined systematically, but the period between two site visits shall not exceed one year for the highest risk sites and three years for the lowest risk sites).

Once undertaken, IED also requires the competent public authorities, responsible for examining such installations, to:

  • share their findings with the operator within two months of the inspection taking place; and
  • then publish the relevant findings of their inspection within four months of the site visit taking place.

However, some corporations unhappy with the findings in the public authorities’ report have challenged the ability of authorities to make these reports publicly available. This is understandable given the reputational damage that could result from a negative report.

Consequently, a number of cases have been brought before the German courts as to whether an inspection report could be published. The result is that whilst recognising that the public authorities are, in principle, authorised to make reports on environmental inspections publicly available under Art. 23 IED and Sec. 52a BImSchG, the German administrative courts have prohibited – partially or even completely – the publication of three reports in a total of five cases.

So far the courts have prevented the publication of an inspection report where the report fails to provide a clear and objective description of the findings that can be understood by the general public and where the draft report was not provided to the operator within two months of the site visit taking place (this short time period allows the operator to review the report promptly and verify its accuracy).

As such, and based on the cases to date, it appears that the publication of findings is subject to the following requirements:

  • An adequate description of any non-compliance that is discovered must be provided to ensure that the findings are clear and are understood by the public.
  • The IED-installation operator concerned must be notified of the draft report within two months of the date of the site visit.

Failure to comply with the above requirements may prevent the report being published. In addition, the authority is obliged to update any report if deficiencies have been remedied by the operator.