Cases C-673/13 P and C-442/14, Judgments of 23 November 2016
The concept of information on emissions into the environment derives directly from the Aarhus Convention.Footnote
1
But there is little case law clarifying the interpretation of the concept, despite its wide-ranging consequences for the possibility to claim confidentiality of documents used in regulatory and administrative processes. On 23 November the European Court of Justice (ECJ) delivered its judgment in two separate cases dealing in detail with the concept of information on emissions: appeal Case C-673/13 P European Commission v Greenpeace Nederland and Pesticide Action Network Europe
Footnote
2
and preliminary reference Case C-442/14 Bayer Crop Science v College voor de toelating van gewasbeschermingsmiddelen en biociden
Footnote
3
(Board for the authorisation of plant protection products and biocides). Both cases confirm a somewhat broad interpretation of the concept in the context of EU Regulation 1367/2006 and Directive 2004/3, which implement the Aarhus Convention’s provisions on access to environmental information held by EU institutions and national public authorities respectively.
According to the Regulation and the Directive, public authorities, including the EU institutions, can refuse to 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 and no exception based on commercial confidentiality can be claimed. The long list of international, European and American pesticide lobbies, and Member State governments, that intervened to defend commercial interest shows that these cases may have widespread consequences, not only for information on pesticides but for all substance-related information.
I Facts
Case C-673/13 P concerned glyphosate, the most heavily-used herbicide in history,Footnote
4
and the subject of intense controversy regarding whether or not it is dangerous to human health. In 2015, EU and UN agencies issued contrasting opinions on whether or not glyphosate is carcinogenic. While the European Food Safety Authority (EFSA) found that it is “unlikely to pose a carcinogenic hazard to humans”,Footnote
5
the World Health Organization’s International Agency for Research on Cancer (IARC) classified it as a “probable carcinogen”.Footnote
6
Therefore the public interest on information relating to the approval of glyphosate as an active substance under EU Plant Protection legislation is clear. In December 2010, Greenpeace Nederland and Pesticide Action Network Europe (PAN Europe) requested from the Commission access to the documents regarding the first authorisation to place 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. The NGOs wanted access to the information in the report that would allow them to check the assessment of the emissions into the environment 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. In Case T-545/11 the General Court annulled the Commission’s decision insofar as it refused access to those parts of the document at issue containing information on emissions into the environment. The General Court granted access to the following documents:
-
– the identity and quantity of all the impurities in the active substance notified by each operator;
-
– the impurities present in the various batches and the minimum, median and maximum quantities of each of those impurities;
-
– the composition of the plant protection products developed by the operators (on the basis of the active substance).
The Commission appealed against the decision, alleging that the General Court erred in its interpretation of the term “information [which] relates to emissions into the environment”. In addition to Germany, the Commission was supported in the form of order sought by seven chemical industry lobby groups: the American Chemistry Council Inc (ACC), CropLife America Inc (“CropLife”), CropLife International AISBL (CLI), the European Chemical Industry Council (Cefic), the European Crop Care Association (ECCA), the European Crop Protection Association (ECPA) and the National Association of Manufacturers of the United States of America (NAM) (“NAM USA”). Pan Europe and Greenpeace Netherland were supported only by Sweden.
The ECJ 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 because Article 6(1) of Regulation 1367/2006 allows actual implementation of the principle that the public should have the widest possible access to information held by institutions and bodies of the European Union.Footnote
7
The ECJ also rejected the argument that the definition of emissions should be restricted to emissions emanating from industrial installations, as this would be contrary to the express wording of Article 4(4)(d) of the Aarhus Convention, which states that information on emissions that is relevant for the protection of the environment must be disclosed. According to the Court, information concerning emissions emanating from sources other than industrial installations, such as those resulting from the use of plant protection products on plants or soil is just as relevant to environmental protection as information relating to emissions of industrial origin.Footnote
8
Such a restriction would also be contrary to the objective of Regulation 1367/2006 of disclosing environmental information as widely as possible. In reaching this conclusion, the Court also pointed out that no distinction can be made between the concepts of emissions, releases and discharges as the Aarhus Convention merely refers to “information on emissions, which is relevant for the protection of the environment”.Footnote
9
The Court then rejected 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. According to the Court, the concept does not cover “purely hypothetical emissions”, but covers “information on foreseeable emissions into the environment.” In this respect, the fact that glyphosate, by its very function, is intended to be released into the environment is 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’”.Footnote
10
Finally, the ECJ examined the application of the General Court’s criterion of a “sufficiently direct link” between the information and the emissions into the environment. It rejected that information on emissions includes information containing “any kind of link”, even direct, to emissions into the environment and 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”. 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”.
Case C-442/14 concerned the competent Dutch authority’s decision to amend the authorisations of a number of pesticide products containing imidacloprid, a pesticide found to be toxic to bees, many uses of which were banned in 2013.Footnote
11
A Dutch association for the protection of bees, Bijenstichting, requested access to a large number of the authorisation documents on the basis of Directive 2003/4. Bayer objected to the disclosure on the basis of commercial confidentiality, infringement of intellectual property rights and data protection. The Dutch Court asked the ECJ, inter alia, whether the documents concerned “information on emissions into the environment” in the sense of Article 4(2) of Regulation 2003/4.
With regard to the interpretation of emissions into the environment, the Court’s reasoning is complementary to case C-673/13 P and will be discussed below.
II Comments
The decisions of the ECJ clarify a number of issues but leave others unresolved. They clarified that information on emissions relates to any emission that is relevant to environmental protection.Footnote
12
It also considers the function of pesticides, i.e. that they are required to be released into the environment, as material in determining whether the information is related to emissions into the environment.Footnote
13
The Court reiterated that the placing on the market of a product or substance is not sufficient for it to be concluded that that product or substance will necessarily be released into the environment and, consequently, that information concerning the product or substance relates to “emissions into the environment”.Footnote
14
Indeed, the ECJ specifically recognised that the actual emissions into the environment depend on the quantities used by the farmers as well as the exact composition of the substance. Thus a distinction is made between “foreseeable” emissions, which are included within the concept of information relating to emissions, and “hypothetical” emissions, which are excluded from the concept. Also, the ECJ made it clear that the availability of this information is important to allow public participation in the decision-making process.Footnote
15
The practical implications of these decisions are potentially enormous, but the grey areas that remain may allow the Commission, supported by the pesticides industry, to wriggle out of its transparency obligations in the future.
1 Foreseeable emissions v hypothetical emissions
With regard to the question of “foreseeable emissions” in Case C-442/14, the ECJ clarified that “the public must have access not only to information on emissions as such, but also to information concerning the medium to long-term consequences of those emissions on the state of the environment, such as the effects of those emissions on non-targeted organisms. The public interest in accessing information on emissions into the environment is specifically to know not only what is, or foreseeably will be, released into the environment, but also, […] to understand the way in which the environment could be affected by the emissions in question”.Footnote
16
The ECJ also confirmed that the concept includes “information concerning the nature, composition, quantity, date and place of the ‘emissions into the environment’ of plant protection products and biocides and substances contained therein, and 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”.Footnote
17
Most importantly, emissions into the environment covers studies that seek to establish the toxicity, effects and other aspects of a product or substance under the most unfavourable realistic conditions that could possibly occur, and studies carried out in conditions as close as possible to normal agricultural practice and conditions that prevail in the area where that product or substance is to be used.Footnote
18
In relation to toxicity studies, the line between a hypothetical and a foreseeable emission will be difficult to determine. According to the ECJ, “data from tests whose objective is to study the effects of the use of a dose of the product or substance in question which is significantly above the maximum dose for which the marketing authorisation is granted and which is to be used in practice, or a dose in a much higher concentration, do not, in particular, constitute ‘information on emissions into the environment’, since that information relates to emissions which are not foreseeable under normal or realistic conditions of use”.Footnote
19
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. Any interpretation of the ECJ criterion that would restrict the transparency of the toxicity studies used to determine the hazards and the risks of a substance should be rejected, as these studies are essential for the public participation on the decision-making process about chemicals. As long as the documents are used to draw conclusions about the foreseeable conditions of use and the realistic scenarios of exposure of the substance, the information should be considered to be on emissions into the environment.
2 Information that relates to emissions v information with a sufficiently direct link to emissions
At paragraph 81 of Case C-673/13 P the ECJ 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 that the placing on the market of a product is not sufficient to draw the conclusion that it will be released into the environment,Footnote
20
and that emissions depend, inter alia, on the quantities of product actually used by farmers and the exact composition of the final product marketed.Footnote
21
In any event, the Court clarifies that the concept of information on emissions must be understood to include, inter alia, “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, and the data relating to the effects of those emissions on the environment”.Footnote
22
Thus the ECJ recognises that the purpose of access to environmental information provided by Regulation 1367/2006 is, inter alia, to promote more effective public participation in the decision-making process, thereby increasing, on the part of the competent bodies, the accountability of decision-making and contributing to public awareness and support for the decisions taken. Therefore, the public must have access to 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. This includes data that will allow the public to know what is actually released into the environment or what it may be foreseen will be released into the environment under normal or realistic conditions of use of the product or substance in question. By stating this point clearly, the ECJ avoids the creation of 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.
3 Impact of the judgment on related substances legislation
These judgements stress the connection between the function of pesticides and their necessary release into the environment. The ECJ also stresses, as did previous opinions of Advocate General Kokott,Footnote
23
that the placing on the market of a product or substance is not sufficient in general for it to be concluded that that product or substance will necessarily be released into the environment and, therefore, that information concerning the product or substance relates to “emissions into the environment”. Nevertheless, even when substances are not designed to be released into the environment due to their function, emissions can be predicted under normal or realistic conditions of use. Therefore, this interpretation of the ECJ may facilitate the transparency of information collected under other chemicals legislation, in particular, the REACH Regulation. At the moment most information on the effects of substances registered under REACH, generally included in a “Chemical Safety Report”,Footnote
24
is largely withheld from the public as well as scenarios of exposure, details of decisions on compliance with the registration provisions and the quantities of the substances on the market. These documents contain information about the amount of emissions into the environment from the use of a substance and on how the substance interacts with the elements of the environment once the substance is released. The release may happen both during the manufacturing of the substance and during the normally foreseeable conditions of use. However, since the emission into the environment is not in itself the function of the substance, it may have to be demonstrated on a case-by-case basis that the information relates to emissions. Therefore the effects of this judgment may go beyond access to specific studies on the effects of chemicals in an authorisation process, and extend to other information generally considered to be sensitive by the chemicals industry. This would improve the public’s participation and understanding of the effects of chemicals on the environment, but it may cause losses of investments for companies that have first carried out the studies or prepared risk assessments that are then submitted to public authorities. The Commission would do better to refocus its priorities on mechanisms that protect companies from free riders rather than trying to limit the dissemination of information that is of interest to all EU citizens and crucial to the effective public participation in the decision-making process, regarding chemicals that are allowed to be placed on the market, particularly those with a hazardous profile.
III Conclusion
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 and national courts must ensure that they give access to all the information needed to properly evaluate the assessment of the effects of pesticides 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 ECJ 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.
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Cases C-673/13 P and C-442/14, Judgments of 23 November 2016
The concept of information on emissions into the environment derives directly from the Aarhus Convention.Footnote 1 But there is little case law clarifying the interpretation of the concept, despite its wide-ranging consequences for the possibility to claim confidentiality of documents used in regulatory and administrative processes. On 23 November the European Court of Justice (ECJ) delivered its judgment in two separate cases dealing in detail with the concept of information on emissions: appeal Case C-673/13 P European Commission v Greenpeace Nederland and Pesticide Action Network Europe Footnote 2 and preliminary reference Case C-442/14 Bayer Crop Science v College voor de toelating van gewasbeschermingsmiddelen en biociden Footnote 3 (Board for the authorisation of plant protection products and biocides). Both cases confirm a somewhat broad interpretation of the concept in the context of EU Regulation 1367/2006 and Directive 2004/3, which implement the Aarhus Convention’s provisions on access to environmental information held by EU institutions and national public authorities respectively.
According to the Regulation and the Directive, public authorities, including the EU institutions, can refuse to 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 and no exception based on commercial confidentiality can be claimed. The long list of international, European and American pesticide lobbies, and Member State governments, that intervened to defend commercial interest shows that these cases may have widespread consequences, not only for information on pesticides but for all substance-related information.
I Facts
Case C-673/13 P concerned glyphosate, the most heavily-used herbicide in history,Footnote 4 and the subject of intense controversy regarding whether or not it is dangerous to human health. In 2015, EU and UN agencies issued contrasting opinions on whether or not glyphosate is carcinogenic. While the European Food Safety Authority (EFSA) found that it is “unlikely to pose a carcinogenic hazard to humans”,Footnote 5 the World Health Organization’s International Agency for Research on Cancer (IARC) classified it as a “probable carcinogen”.Footnote 6 Therefore the public interest on information relating to the approval of glyphosate as an active substance under EU Plant Protection legislation is clear. In December 2010, Greenpeace Nederland and Pesticide Action Network Europe (PAN Europe) requested from the Commission access to the documents regarding the first authorisation to place 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. The NGOs wanted access to the information in the report that would allow them to check the assessment of the emissions into the environment 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. In Case T-545/11 the General Court annulled the Commission’s decision insofar as it refused access to those parts of the document at issue containing information on emissions into the environment. The General Court granted access to the following documents:
– the identity and quantity of all the impurities in the active substance notified by each operator;
– the impurities present in the various batches and the minimum, median and maximum quantities of each of those impurities;
– the composition of the plant protection products developed by the operators (on the basis of the active substance).
The Commission appealed against the decision, alleging that the General Court erred in its interpretation of the term “information [which] relates to emissions into the environment”. In addition to Germany, the Commission was supported in the form of order sought by seven chemical industry lobby groups: the American Chemistry Council Inc (ACC), CropLife America Inc (“CropLife”), CropLife International AISBL (CLI), the European Chemical Industry Council (Cefic), the European Crop Care Association (ECCA), the European Crop Protection Association (ECPA) and the National Association of Manufacturers of the United States of America (NAM) (“NAM USA”). Pan Europe and Greenpeace Netherland were supported only by Sweden.
The ECJ 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 because Article 6(1) of Regulation 1367/2006 allows actual implementation of the principle that the public should have the widest possible access to information held by institutions and bodies of the European Union.Footnote 7 The ECJ also rejected the argument that the definition of emissions should be restricted to emissions emanating from industrial installations, as this would be contrary to the express wording of Article 4(4)(d) of the Aarhus Convention, which states that information on emissions that is relevant for the protection of the environment must be disclosed. According to the Court, information concerning emissions emanating from sources other than industrial installations, such as those resulting from the use of plant protection products on plants or soil is just as relevant to environmental protection as information relating to emissions of industrial origin.Footnote 8 Such a restriction would also be contrary to the objective of Regulation 1367/2006 of disclosing environmental information as widely as possible. In reaching this conclusion, the Court also pointed out that no distinction can be made between the concepts of emissions, releases and discharges as the Aarhus Convention merely refers to “information on emissions, which is relevant for the protection of the environment”.Footnote 9
The Court then rejected 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. According to the Court, the concept does not cover “purely hypothetical emissions”, but covers “information on foreseeable emissions into the environment.” In this respect, the fact that glyphosate, by its very function, is intended to be released into the environment is 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’”.Footnote 10
Finally, the ECJ examined the application of the General Court’s criterion of a “sufficiently direct link” between the information and the emissions into the environment. It rejected that information on emissions includes information containing “any kind of link”, even direct, to emissions into the environment and 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”. 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”.
Case C-442/14 concerned the competent Dutch authority’s decision to amend the authorisations of a number of pesticide products containing imidacloprid, a pesticide found to be toxic to bees, many uses of which were banned in 2013.Footnote 11 A Dutch association for the protection of bees, Bijenstichting, requested access to a large number of the authorisation documents on the basis of Directive 2003/4. Bayer objected to the disclosure on the basis of commercial confidentiality, infringement of intellectual property rights and data protection. The Dutch Court asked the ECJ, inter alia, whether the documents concerned “information on emissions into the environment” in the sense of Article 4(2) of Regulation 2003/4.
With regard to the interpretation of emissions into the environment, the Court’s reasoning is complementary to case C-673/13 P and will be discussed below.
II Comments
The decisions of the ECJ clarify a number of issues but leave others unresolved. They clarified that information on emissions relates to any emission that is relevant to environmental protection.Footnote 12 It also considers the function of pesticides, i.e. that they are required to be released into the environment, as material in determining whether the information is related to emissions into the environment.Footnote 13 The Court reiterated that the placing on the market of a product or substance is not sufficient for it to be concluded that that product or substance will necessarily be released into the environment and, consequently, that information concerning the product or substance relates to “emissions into the environment”.Footnote 14 Indeed, the ECJ specifically recognised that the actual emissions into the environment depend on the quantities used by the farmers as well as the exact composition of the substance. Thus a distinction is made between “foreseeable” emissions, which are included within the concept of information relating to emissions, and “hypothetical” emissions, which are excluded from the concept. Also, the ECJ made it clear that the availability of this information is important to allow public participation in the decision-making process.Footnote 15 The practical implications of these decisions are potentially enormous, but the grey areas that remain may allow the Commission, supported by the pesticides industry, to wriggle out of its transparency obligations in the future.
1 Foreseeable emissions v hypothetical emissions
With regard to the question of “foreseeable emissions” in Case C-442/14, the ECJ clarified that “the public must have access not only to information on emissions as such, but also to information concerning the medium to long-term consequences of those emissions on the state of the environment, such as the effects of those emissions on non-targeted organisms. The public interest in accessing information on emissions into the environment is specifically to know not only what is, or foreseeably will be, released into the environment, but also, […] to understand the way in which the environment could be affected by the emissions in question”.Footnote 16 The ECJ also confirmed that the concept includes “information concerning the nature, composition, quantity, date and place of the ‘emissions into the environment’ of plant protection products and biocides and substances contained therein, and 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”.Footnote 17 Most importantly, emissions into the environment covers studies that seek to establish the toxicity, effects and other aspects of a product or substance under the most unfavourable realistic conditions that could possibly occur, and studies carried out in conditions as close as possible to normal agricultural practice and conditions that prevail in the area where that product or substance is to be used.Footnote 18
In relation to toxicity studies, the line between a hypothetical and a foreseeable emission will be difficult to determine. According to the ECJ, “data from tests whose objective is to study the effects of the use of a dose of the product or substance in question which is significantly above the maximum dose for which the marketing authorisation is granted and which is to be used in practice, or a dose in a much higher concentration, do not, in particular, constitute ‘information on emissions into the environment’, since that information relates to emissions which are not foreseeable under normal or realistic conditions of use”.Footnote 19 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. Any interpretation of the ECJ criterion that would restrict the transparency of the toxicity studies used to determine the hazards and the risks of a substance should be rejected, as these studies are essential for the public participation on the decision-making process about chemicals. As long as the documents are used to draw conclusions about the foreseeable conditions of use and the realistic scenarios of exposure of the substance, the information should be considered to be on emissions into the environment.
2 Information that relates to emissions v information with a sufficiently direct link to emissions
At paragraph 81 of Case C-673/13 P the ECJ 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 that the placing on the market of a product is not sufficient to draw the conclusion that it will be released into the environment,Footnote 20 and that emissions depend, inter alia, on the quantities of product actually used by farmers and the exact composition of the final product marketed.Footnote 21
In any event, the Court clarifies that the concept of information on emissions must be understood to include, inter alia, “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, and the data relating to the effects of those emissions on the environment”.Footnote 22 Thus the ECJ recognises that the purpose of access to environmental information provided by Regulation 1367/2006 is, inter alia, to promote more effective public participation in the decision-making process, thereby increasing, on the part of the competent bodies, the accountability of decision-making and contributing to public awareness and support for the decisions taken. Therefore, the public must have access to 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. This includes data that will allow the public to know what is actually released into the environment or what it may be foreseen will be released into the environment under normal or realistic conditions of use of the product or substance in question. By stating this point clearly, the ECJ avoids the creation of 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.
3 Impact of the judgment on related substances legislation
These judgements stress the connection between the function of pesticides and their necessary release into the environment. The ECJ also stresses, as did previous opinions of Advocate General Kokott,Footnote 23 that the placing on the market of a product or substance is not sufficient in general for it to be concluded that that product or substance will necessarily be released into the environment and, therefore, that information concerning the product or substance relates to “emissions into the environment”. Nevertheless, even when substances are not designed to be released into the environment due to their function, emissions can be predicted under normal or realistic conditions of use. Therefore, this interpretation of the ECJ may facilitate the transparency of information collected under other chemicals legislation, in particular, the REACH Regulation. At the moment most information on the effects of substances registered under REACH, generally included in a “Chemical Safety Report”,Footnote 24 is largely withheld from the public as well as scenarios of exposure, details of decisions on compliance with the registration provisions and the quantities of the substances on the market. These documents contain information about the amount of emissions into the environment from the use of a substance and on how the substance interacts with the elements of the environment once the substance is released. The release may happen both during the manufacturing of the substance and during the normally foreseeable conditions of use. However, since the emission into the environment is not in itself the function of the substance, it may have to be demonstrated on a case-by-case basis that the information relates to emissions. Therefore the effects of this judgment may go beyond access to specific studies on the effects of chemicals in an authorisation process, and extend to other information generally considered to be sensitive by the chemicals industry. This would improve the public’s participation and understanding of the effects of chemicals on the environment, but it may cause losses of investments for companies that have first carried out the studies or prepared risk assessments that are then submitted to public authorities. The Commission would do better to refocus its priorities on mechanisms that protect companies from free riders rather than trying to limit the dissemination of information that is of interest to all EU citizens and crucial to the effective public participation in the decision-making process, regarding chemicals that are allowed to be placed on the market, particularly those with a hazardous profile.
III Conclusion
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 and national courts must ensure that they give access to all the information needed to properly evaluate the assessment of the effects of pesticides 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 ECJ 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.