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Judgment of the General Court of the EU on Access to Information under Substance Law

Case T-545/11, Judgment of 08 October 2013

Published online by Cambridge University Press:  20 January 2017

Horst von Holleben
Horst von Holleben*
Affiliation:
Rechtsanwalt in Bad Homburg
Rights & Permissions [Opens in a new window]

Abstract

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On 08 October 2013, the General Court of the European Union (hereinafter General Court) delivered a judgment based on the Aarhus Regulation 1367/2006 on the access to information on substances under plant protection law, which attracted considerable attention among experts with conflicting response from environmental associations and industry. The judgment – still appealable at the time this article was written – would in case of becoming unappealable result in extensive limitations to the protection of commercial and industrial secrets under plant protection law, but additionally also generally under substance law. The following article analyses the content of the decision.

Type
Case Notes
Information
European Journal of Risk Regulation , Volume 4 , Issue 4 , December 2013 , pp. 565 - 578
Creative Commons
Creative Common License - CCCreative Common License - BY
© Horst von Holleben 2013 This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
Copyright
Copyright © Cambridge University Press 2013

References

1 Operative part of the judgment is available on the website of the Court of Justice of the EU at <www.curia.europa.eu>. The German version of this case annotation is published in StoffR 6/2013. The English translation was produced with friendly support of the Verband der Chemischen Industrie e.V. (VCI, the German chemical industry association).

2 OJ 2001 L 145 p. 43, hereinafter Transparency Regulation.

3 OJ 2006 L 264 p. 13, hereinafter Aarhus Regulation.

4 Art. 14(1) of Directive 91/414 reads: “Member States and the Commission shall, without prejudice to Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment (OJ L 158 of 23 June 1990, p. 56), ensure that information submitted by applicants involving industrial and commercial secrets is treated as confidential if the applicant wishing to have an active substance included in Annex I or the applicant for authorization of a plant protection product so requests, and if the Member State or the Commission accepts that the applicant's request is warranted.”

5 According to Art. 63(2) disclosure of specific information shall normally be deemed to undermine the protection of the commercial interests of the individuals concerned. This inter alia includes information on impurities of the active substance except for the impurities that are considered to be toxicologically, ecotoxicologically or environmentally relevant (Art. 63(2) lit. b)), but also information on the complete composition of a plant protection product (Art. 63(2) lit. f)).

6 Wording: “[…] that there is an overriding public interest in the disclosure if the requested information relates to emissions into the environment”.

7 This provision and its interpretation in consideration of Aarhus is, inter alia, the subject matter of the still pending legal dispute Case T-245/11.

8 Good overview at Garcon, Access to environmental information versus protection of confidential business information, Recent case-law of the CJEU and of administrative courts in Germany, EurUP 2/2013 p. 100.

9 Insofar identical with Art. 6(1) sentence 1 Aarhus Regulation.

10 Cf. v. Holleben/Scheidmann, Öffentlicher Zugang zu Stoffinformationen nach REACH im Licht der Aarhus-Konvention [Public access to information on substances according to REACH in the light of the Aarhus Convention], StoffR 6/2011 p. 237 (242); Kaus, The term „emission” in the domain of freedom of access to information, EurUP 6/2011 S. 293; Garcon, Access to environmental information versus protection of confidential business information, Recent case-law of the CJEU and of administrative courts in Germany, EurUP 2/2013 p. 100 (105–108); Garcon, Aarhus and Agrochemicals: The scope and limitations of access rights In Europe, EurUP 2012 p. 725 (7).

11 Data relating to the names of the owners of transferred accounts and of receiving accounts for transactions with emission certificates, certificates or Kyoto units relating to these transactions and their date and time of day.

12 Opinion in Case C-524/09 paragraph 69–74.

13 BVerwGE 135, 34

14 http://www.verwaltungsgericht-braunschweig.niedersachsen.de/portal/live.php?navigation_id=25368&_psmand=124 (last accessed on 13 Nov. 2013). The decision is described in Garcon, Access to environmental information versus protection of confidential business information, Recent case-law of the CJEU and of administrative courts in Germany, EurUP 2/2013 p. 100 (117, 118).

15 According to Art. 4(2) sentence 4 of Directive 2003/4 this does not apply to the protection of intellectual property. Thus, intellectual property can be disclosed only in case an overriding public interest in disclosure is stated.

16 See footnote 4.

17 The information specified therein cannot be kept secret.

18 In Case C-266/09 the ECJ applies Directive 2003/4, which replaced Directive 90/313 with effect as from 14 Feb. 2005. The ECJ also declared that Directive 91/414 can be applied only in consideration of Directive 2003/4 (paragraph 54).

19 This formulation is also found in Art. 118(2) REACH Regulation and in Art. 66(2) Biocidal Products Regulation. It links to Art. 4(2), first indent, Transparency Regulation with the consequence that its requirements no longer need to be substantiated and proven. The legislator has already rendered this performance.

20 Art. 63(3) of Regulation 1107/2009 states this expressly for the application in the Member States (Directive 2003/4). For application at a European level, Regulation 1367/2006 applies directly, also without explicit reservation.

21 As far as is known, the risk of erosion of protection by a wider interpretation of the notion “emissions into the environment” were not even discussed in the legislation procedures of the more recent substance laws. The legislation materials might have to be reviewed in this respect, if necessary.

22 Garcon, EurUP 2/2013 p. 100 (107) considers Art. 63(2) Regulation 1107/2009 as lex specialis towards the Aarhus legislation and requests a reversal of the burden of proof to the effect that an overriding public interest in disclosure must be made evident.

23 Here, the ECJ did not cite the principle lex specialis derogat legi generali but nonetheless applied it.

24 See in this respect footnote 20.

25 In the German legal terminology the notion “verfassungskonforme Auslegung” is common.

26 The EU Court correctly says that the TRIPS Agreement is an integral component of Union Law and, although not directly applicable, should to the greatest possible extent be considered upon interpreting secondary laws (paragraph 45).

27 The Court did not question that the information contained in the “document at issue” related to commercial and industrial secrets.

28 Opinion of the Advocate General Ms. Kokott in Case C-524/09 paragraph 71.

29 Opinion of the Advocate General Ms. Kokott in Case C-524/09 paragraph 72, 73.

30 The IPPC Directive was replaced by the IED Directive of 24 Nov. 2010 and defines emission as “direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into air, water or land”.

31 More details in Garcon, The Aarhus Rights in the EU: Internal Review and Access to Justice, StoffR 2012 p. 134 et seq.

32 Opinion in Case C-266/09 paragraph 91.

33 Opinion in Case C-266/09 paragraph 93. Thus also Garcon, loc. cit. EurUP 2012 p. 100 (108)

34 The Advocate General holds that information on trading with emission rights is only indirect information on emissions, because the trading takes place before substances are released.

35 Opinion in Case C-524/09 paragraph 69–74.

36 Opinion in Case C-524/09 paragraph 74.

37 The short version of the Dossier is published according to Art. 10 Regulation 1107/09. There, information on the relevant impurities cannot be kept secret.

38 E.g. C-266/09 and C-524/09.

39 E.g. also the ECHA for REACH.

40 In the article, this conclusion is also substantiated by the ECJ’s ruling in Case C-524/11 (see III.4 b).