Limits to calling upon intellectual property to justify non-disclosure of environmental information – The ECJ in Greenpeace and PAN Europe v Commission (glyphosate)

The ECJ yesterday morning held in an important case with respect to the EU’s transparency regime.

Regulation 1049/2001 constitutes the general regime on access to documents held by EU Institutions. Regulation 1367/2006 implements the Aarhus Convention as far as the EU Institutions are concerned. Directive 91/414 is the plant protection Directive. Under the plant protection Directive, Germany had been the Member State with responsibility to report on the acceptability of approving glyphosate. Greenpeace and Pesticide Action Network Europe had requested access to

–        a copy of the draft assessment report issued by Germany, prior to the first inclusion of glyphosate in Annex I to Directive 91/414;

–        a complete list of all tests submitted by the operators seeking the inclusion of glyphosate in Annex I;

–        the full, complete and original test documents supplied by the operators seeking the inclusion of glyphosate in Annex I, in so far as concerns all long-term toxicity tests, all mutagenicity tests, carcinogenicity tests, neurotoxicity tests and all reproduction studies.

The Commission, upon assist by Germany, granted access to the draft report, with the exception of volume 4 thereof, which the German authorities refused to disclose and which includes the complete list of all tests submitted by the operators seeking the first inclusion of glyphosate in Annex I. Germany was of the opinion that the document at issue contained confidential information relating to the intellectual property rights of the operators which had sought the inclusion of glyphosate in Annex I to Directive 91/414, namely the detailed chemical composition of the active substance produced by each of them, detailed information concerning the process by which each of them produced the substance, information on the impurities, the composition of the finished products and the contractual relations between the various operators which had sought the inclusion of glyphosate.

The ECJ noted the important impact of 1367/2006 on the working of the basic Regulation, Regulation 1049/2001: the first sentence of Article 6(1) of Regulation No 1367/2006 lays down a legal presumption that an overriding public interest in disclosure (relevant for the application of exceptions written into Regulation 1049/2001) exists where the information requested relates to emissions into the environment, except where that information concerns an investigation, in particular one concerning possible infringements of EU law. The Court held that accordingly,  the first sentence of Article 6(1) of Regulation No 1367/2006 requires that if the institution concerned receives an application for access to a document, it must disclose it where the information requested relates to emissions into the environment, even if such disclosure is liable to undermine the protection of the commercial interests of a particular natural or legal person, including that person’s intellectual property, within the meaning of Article 4(2), first indent, of Regulation No 1049/2001. (at 38) The Court rejected any attempt by the EC to soften the impact of Article 6(1) of Regulation 1367/2006: ‘in claris non fit interpretatio’, the provision has to be read on its prima facie meaning. Any other application ‘would amount to disapplying a clear and unconditional provision of a European Union regulation, which is not even claimed to be contrary to a superior rule of law.‘ (at 44 in fine)

The Court subsequently at length considered the meaning of ‘environmental information’ and gave this a wide interpretation.

The case is a good illustration of the complex web of transparency requirements and the consistent approach of the ECJ in favour of disclosure.

Geert.

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  1. #1 by Geert Van Calster on 09/10/2013 - 7:09 AM

    Reblogged this on blog.coleurope.eu.

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