On 23 November 2016, the Court of Justice of the European Union (''CJEU'') delivered two important judgments in cases C-442/14 Bayer CropScience and Stichting De Bijenstichting and C-673/13 P Commission v Stichting Greenpeace Nederland and PAN Europe which, although factually different, address the same issue – i.e. the right of access to environmental documents, and in particular, the scope of the concept of ''information on emissions into the environment''.
1. Background
In Case C-442/14, Bijenstichting, a bee-protection association in the Netherlands, submitted a request to the Dutch plant protection and biocidal products authority (''ctgb'') for the disclosure of 84 documents concerning marketing authorisations of certain plant protection products. Since Bayer was holding a large number of those authorisations, it objected to that disclosure, on the ground that disclosure would infringe its copyrights and adversely affect the confidentiality of commercial or industrial information. In 2013, ctgb provided access to 35 of the 84 requested documents, on the ground that they contained information on emissions into the environment under Directive 2003/4/EC on public access to environmental information, and regardless of the fact that such a disclosure could have an adverse effect on the confidentiality of commercial or industrial information. According to this directive, commercial and industrial confidentiality may not be invoked to preclude the disclosure of such information. Both Bijenstichting and Bayer appealed the ctgb's decision before a national court, which referred the matter for a preliminary ruling to the CJEU.
In Case C-673/13 P, the associations Stichting Greenpeace Nederland and Pesticide Action Network Europe (''PAN Europe'') submitted a request to the Commission under Regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies. The request concerned access to a number of documents relating to the initial marketing authorisation for the pesticide substance glyphosate. The Commission granted access to those documents, with the exception of some parts of the draft assessment report (''DAR'') prepared by the Rapporteur Member State (''RMS''), Germany. The Commission justified its refusal on the ground that the document in question contained confidential information on intellectual property rights of applicants for the glyphosate authorisation – i.e. the detailed chemical composition of the substance, its manufacturing process, and the impurities and composition of the finished products.
The two associations brought an appeal before the EU General Court, which ruled in their favour (case T-545/11) stating that certain parts of the requested document contained information relating to emissions into the environment, and therefore the Commission was not entitled to invoke the confidentiality of commercial and industrial information and should have granted the associations access to those parts of the file.
2. Ruling
In the two judgments, the CJEU clarified what must be understood by ''emissions into the environment'' and ''information on [or which relates to] emissions into the environment'' within the meaning of Directive 2003/4/EC and Regulation (EC) No 1367/2006. Specifically, according to the Court:
The notion of ''emissions into the environment' includes the release into the environment of products or substances, such as plant protection products or biocides or active substances contained in those products, to the extent that that release is actual or foreseeable under normal or realistic conditions of use of the product or substance;
Consequently, this notion is indistinguishable from the concepts of ''release'' and ''discharge'' and cannot be restricted to emissions emanating from industrial installations (e.g. factories and power stations) but also covers emissions resulting from the spraying of a product, such as a plant protection product or biocide, into the air or its use on plants, in water or on soil. This approach is in line with the objective of the regulation and directive on environmental information which is to disclose that type of information as widely as possible.
The regulation and directive cover not only information relating to actual emissions (i.e. emissions which are actually released into the environment when a plant protection product or a biocide is used on plants or in soil), but also information on foreseeable emissions from products into the environment.
However, the Court considers that the concept of information on emissions into the environment does not include information relating to purely hypothetical emissions – e.g., data from tests to study the effects of the use of a dose of a product which is significantly above the maximum dose for which the marketing authorisation was granted and which is used in practice.
Finally, the concept of ''information on emissions into the environment'' must be interpreted as covering not only information on emissions as such (i.e. information relating to the nature, composition, quantity, date and place of those emissions) but also information enabling the public to check whether the assessment of actual or foreseeable emissions, on the basis of which the competent authority authorised the product or substance in question, is correct, as well as the data relating to the medium or long-term effects of those emissions on the environment. In particular, that concept covers information relating to residues in the environment after the product has been used, as well as studies on the measurement of the substance’s drift during that use, irrespective of whether those data come from studies performed entirely or in part in the field, from laboratory studies or translocation studies.
On the basis of the foregoing, the CJEU set aside the judgment of the General Court in case C-673/13 P and referred back the case for a second review, stating that Regulation (EC) No 1367/2006 covers information which ''relates to emissions into the environment'', that is to say information which concern or is relevant to such emissions and not information containing any link at all, direct or indirect, to emissions into the environment.
3. Comments
The conclusions reached by the CJEU in these two judgments have far-reaching consequences for EU manufacturers of plant protection products and biocides.
Firstly, the CJEU interprets the notion of ''information on emissions into the environment" in an extensive way such that a wide range of information concerning the assessment of plant protection products and biocides may be made available to the public.
Secondly, the exceptions to the access of environmental information are to be construed narrowly. Notably, according to these two judgements, confidential information linked to the commercial or industrial interests, such as the detailed chemical composition of the substance, its manufacturing process, and the impurities and composition of the finished products, may have to be disclosed if such information is considered to be related to the "emissions into the environment".
It is also worth noting that some Member States have followed a similar approach in the past. For example, the French Commission on Access to Administrative Documents (''CADA'') interprets the notion of "information on emissions into the environment'' in a similar way as the CJEU. Specifically, in accordance with Article L. 124-5 of the French code of the environment, CADA considers that information which is related to the impact of the use of plant protection products on human beings, animals and plants also corresponds to information related to the emission of substances into the environment which is disclosable.
Finally, it should be highlighted that these two judgments confirm the current trend which the CJEU follows regarding access to environmental documents. Indeed, according to the CJEU, exceptions to disclosure must be applied restrictively as they derogate from the general principle of widest possible access to documents on emissions to the environment.
Thus, in a judgment of 20 September 2016 (PAN Europe v Commission, case T-51/15), the General Court annulled the Commission’s decision as it refused access to environmental documents on the basis of the exception in the first subparagraph of Article 4.3 of Regulation 1049/2001 (i.e. linked to the institution's decision-making process) because the Commission had incorrectly based its refusal to disclose the documents at issue on that exception.
The General Court considered that the application of such exception to give access to environmental information "requires it to be established that access to the document in question drawn up by the institution for its internal use was likely, specifically and actually, to undermine protection of the institution’s decision-making process, and that the risk of that interest being undermined was reasonably foreseeable and not purely hypothetical " (underline added). The General court considerably restricted the scope of application of such exception linked to the decision-making process of an institution.
Notwithstanding the above, it is important to note that the CJEU has excluded from the concept of "emissions into the environment" information that relates to purely hypothetical emissions, e.g., data resulting from tests conducted at higher doses than those actually authorised and used in practice.
This caveat is important as various studies on plant protection products, or substances contained therein, are typically conducted at much higher doses than those ultimately authorised and actually used in practice, and to which a safety factor may be added. This approach is followed routinely in the context of the assessment of plant protection products in order to derive certain toxicological/ecotoxicological endpoints for the risk assessment. This caveat could entail the application of a specific derogation from the general rule of access to documents, in cases where tests are not based on realistic or reasonably foreseeable conditions of use of the plant protection product or substance
