By Anne Friel
On 23rd November the Court of Justice handed down its judgment in appeal case C-673/13 P European Commission v Greenpeace Nederland and Pesticide Action Network Europe, confirming a broad interpretation of the concept of “information which relates to emissions into the environment” in the context of pesticides. According to the EU’s access to documents laws, public authorities, including the EU institutions, cannot disclose information that would harm the commercial interests of a third party unless there is an overriding public interest in doing so. And if the information relates to emissions into the environment, there is an irrebuttable presumption that disclosure is in the public interest (Article 4(4)(d) of the Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, implemented with regard to the EU institutions by Article 6(1) of Regulation 1367/2006 (the Aarhus Regulation)). Consequently, a broad interpretation of the term “information which relates to emissions into the environment” has a direct impact on the ability of companies to protect commercially sensitive information. The long list of international, European and American pesticide lobbies that intervened in the case bears witness to this.
Judgment under appeal: Case T-545/11 Greenpeace Nederland and PAN Europe v Commission
The initial General Court decision concerned an access to documents request by Greenpeace Nederland and PAN Europe to the Commission regarding the first authorization to place the pesticide, glyphosate, on the market in accordance with Directive 91/414 concerning the placing of plant protection products on the market (currently Regulation 1107/2009 on the same subject). The Directive required Germany to submit a “draft assessment report” to the Commission, detailing whether glyphosate met the conditions for approval. Amid concerns about the ubiquitous use of glyphosate and scientific studies suggesting adverse health and environmental impacts, the NGOs wanted access to the information in the report that would allow them to check the assessment of the emissions into the environment from the product and their effect on the environment, namely the degree of purity of the active substance, the identity and quantities of the impurities present, the analytical profile of the batches used for testing, and the exact composition of the product developed. The request was refused on the ground that disclosure would harm the manufacturers’ commercial interests by allowing competing undertakings to copy the production method. The Commission could not identify an overriding public interest to justify disclosure; it did not deem the information to be related to emissions into the environment. The General Court disagreed, and annulled the Commission’s decision on the grounds that the documents constituted information “relating, in a sufficiently direct manner, to emissions into the environment” (paragraph 71).
Case C-673/13 P Commission v Greenpeace Nederland and PAN Europe
The pesticide industry threw their weight behind the Commission’s appeal to the Court of Justice. The Commission was supported by no less than seven pesticide lobbies from Europe and the United States, as well as the German Government. The Swedish Government intervened in support of Greenpeace and PAN Europe.
The Court reaffirmed a number of the General Court’s findings that were disputed by the Commission. It held that the term “emissions into the environment” could not be interpreted restrictively and that it was not restricted to emissions emanating from industrial installations.
The Court then dealt with the Commission’s argument that the term “information which related to emissions into the environment” only covers information on the nature and quantity of the emissions actually released into the environment when the product is used. While the Court agreed that the concept does not cover “purely hypothetical emissions”, it stated that it “covers information on foreseeable emissions into the environment.” The fact that glyphosate, by its very function, is intended to be released into the environment was significant: “In that case, foreseeable emissions, under normal or realistic conditions of use, from the product in question, or from the substances which that product contains, into the environment are not hypothetical and are covered by the concept of ‘emissions into the environment’” (paragraph 75).
Finally, the Court looked at the General Court’s application of the criterion of a “sufficiently direct link” between the information and the emissions into the environment. The Court agreed with the Commission that the criterion has no basis in law. Article 6(1) of the Regulation 1367/2001 refers to information which “relates to emissions” and Article 4(4)(d) of the Aarhus Convention refers to “information on emissions”. According to the Court, this covers “information which concerns or relates to such emissions and not information with a direct or indirect link to emissions into the environment.” (paragraph 78). On this basis, the Court set aside the judgment of the General Court and sent it back for a new assessment of whether the documents fall within the scope of “information which relates to emissions into the environment”.
The Commission’s spokesperson reacted to the judgment by saying they need more time to analyse its complexities, and I must admit to having some sympathy for this position. At first sight a number of questions seem to have been left unanswered by the Court of Justice. Where is the line between “foreseeable” emissions and “hypothetical” emissions? How does this impact on information on laboratory testing with different strengths of dose? What is the difference between “information which relates to emissions” and “information with a sufficiently direct link to emissions”? And will these shades of grey allow the Commission, supported by the pesticides industry, to wriggle out of its transparency obligations in the future?
Foreseeable emissions v. hypothetical emissions
With regard to the question of “foreseeable emissions”, the Court referred to its judgment of the same day in case C-442/14 Bayer CropScience, in which it made some important clarifications on this point. The Court confirmed that the concept includes “data concerning the medium to long-term consequences of those emissions on the environment, in particular information relating to residues in the environment following application of the product in question, and studies on the measurement of the substance’s drift during that application, whether those data come from studies performed entirely or in part in the field or from laboratory or translocation studies” (case C-442/14, paragraph 96). Importantly, information from tests the objective of which is to study the effects of a substance “under the most unfavourable realistic conditions which could possibly occur” also constitutes information on emissions into the environment (paragraph 91).
On the other hand, information from tests that study the effects of a dose which is significantly above that which has been authorized is hypothetical (case C-442/14, paragraph 90). This difference may seem straightforward in theory but, in reality, toxicity testing entails a series of tests using a wide range of doses. The results are then extrapolated to enable conclusions to be drawn regarding safe levels of exposure, including for acute and chronic (long-term) exposure of the type suffered by workers. All of these tests are interrelated and relevant to the assessment of the effects of use under realistic conditions. The danger is that this definition creates ambiguity regarding the tests using doses at the higher end of the range.
Information which relates to emissions v. information with a sufficiently direct link to emissions
At paragraph 81 the Court states that the concept of “information which relates to emissions into the environment” does not include “information containing any kind of link, even direct, to emissions into the environment”. According to the Court, such a wide interpretation would rid the definition of environmental information in Article 2(1)(d) of the Aarhus Regulation of any meaning and make it practically impossible for the institutions to apply the exception that aims to protect commercial interests. It would also constitute a disproportionate interference with the protection of business secrecy in Article 339 TFEU. This restriction is consistent with the Court’s argument at paragraph 75 that the placing on the market of a product is not sufficient to draw the conclusion that it will be released into the environment, and therefore that information about the product relates to emissions into the environment.
In any event, the Court’s reasoning in paragraphs 79 and 80 serves to ensure that it does not create a loophole that can be easily exploited by the Commission, particularly in the context of pesticides and other products that are, by their very function, emitted into the environment. The Court referred to the purpose of access to environmental information as expressed in recital 2 of the Aarhus Regulation, which is to promote more effective public participation in the decision-making process, increase the accountability of decision-making and contribute to public awareness and support for the decisions taken. This purpose necessitates “that the public must have access to the information enabling it to ascertain whether the emissions were correctly assessed and must be given the opportunity reasonably to understand how the environment could be affected by those emissions”.
The Court’s definition of “foreseeable emissions”, as opposed to “hypothetical emissions” is rather ambiguous in the context of toxicity testing. In applying the definition, the General Court must ensure that it gives access to all of the information needed to properly evaluate the assessment of the effects of glyphosate under realistic conditions of use, including acute and chronic exposure.
Nevertheless, access to information enthusiasts can be hopeful on two counts. First, it is refreshing to see the Court of Justice refer explicitly to the purpose of the Aarhus Regulation when interpreting its concepts. If the Court applies this approach in its upcoming decisions, for example case C-60/15 P Saint Gobain and case C-57/16 ClientEarth, the EU may come closer to giving full effect to the access to environmental information obligations it signed up to in the Aarhus Convention. This can only be a good thing for environmental protection.
Second, the Commission’s willingness to defend commercial interests at the expense of the public’s ability to access information belies the current fragility of the EU. The Commission must realise that the effort it puts into flouting transparency obligations only increases citizens’ disaffection towards EU institutions. In this context, the Court’s role in holding the Commission to account assumes greater significance.