EU General Court ruling may open the door to far-reaching public access to protected regulatory data

Aarhus Regulation 1367/2006 grants the public right of access to any information held by EU bodies relating to "emissions into the environment". Access can be refused only to protect an ongoing investigation. Thus, unlike other transparency related legislation, the Aarhus Regulation does not allow refusal of access for the purposes of protecting commercial interests. This makes the precise scope of the expression "emissions into the environment" crucial. In its judgment of 8 October 2013, the EU General Court examines that question for the first time (Case T-545/11, Stichting Greenpeace Nederland and PAN Europe -v- Commission).

The case was brought before the General Court by environmental NGOs seeking the annulment of the EU Commission's refusal to disclose confidential information submitted to it as part of the approval process for the active substance glyphosate. Such confidential business information (CBI) is submitted in vast quantities to a number of EU bodies as part of a range of regulatory approval processes (for chemicals, plant protection products, etc.). The information is normally protected from disclosure under the relevant sector specific regulation (in this case the plant protection product Regulation 1107/2009), as well as under the general Transparency Regulation 1049/2001.

The EU Commission considered that "emissions" should be interpreted narrowly as releases of substances from technical installations (e.g. factories). This would be in line with the UNECE 2000 Implementation Guide to the Aarhus Convention, as well as the various sector specific EU Regulations protecting CBI. The information requested in this case did not concern releases of substances from technical installations. Instead it related to product composition, the identity and level of impurities, and the notifiers' manufacturing process which competitors - if they were given access - would be able to duplicate without incurring any investment costs. Disclosure would thus leave the notifiers' commercial interests and secret know-how unprotected.

The Court rejected the EU Commission's reading of "emissions". According to the Court, it is enough for the requested information to relate "in a sufficiently direct manner" to emissions into the environment. This, in the Court's view, includes release into the air through spraying of the active substance and impurities contained in a plant protection product.

This is potentially an extremely broad reading of the notion of "emissions" and a far-reaching precedent. Is anything sprayed into the air an "emission"? Is anything that ends up in the air, soil or water by a more indirect route an "emission"? How, then, are "emissions" to be distinguished from all other types of "environmental information"? Indeed, the Court's broad reading appears to go far beyond what the Aarhus Convention intended and to conflict with other legislation and international agreements (EU Charter of Fundamental Rights, TRIPS, etc.). If the ruling remains unchallenged it will open up the possibility of unlimited disclosure of large amounts of valuable - and hitherto protected - regulatory data, such as those submitted in authorisation procedures for plant protection products and chemicals.

An appeal against this judgment can be brought before the EU Court of Justice within two months by the Commission, another EU institution, or a Member State. A similar case against the European Chemicals Agency is pending before the General Court (Case T-245/11, ClientEarth and International Chemical Secretariat -v- ECHA). In that case, NGOs also claim that the information requested from ECHA relates to emissions.

Please click on the links below for the other articles in the 4 November 2013 Life sciences and regulatory newsletter

• No Supplementary Protection certification (SPC) possible for "emergency" plant protection product authorisations, EU Court of Justice says
• EU Court of Justice blurs the lines: a product can be a medical device and a medicinal product
• New actions before the European courts