Judgments nº T-545/11 of The General Court, October 08, 2013

• Resolution Date: October 08, 2013
• Issuing Organization: The General Court
• Decision Number: T-545/11

(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to the first authorisation of the placing on the market of the active substance ‘glyphosate’ – Partial refusal of access – Risk of an adverse effect on the commercial interests of a natural or legal person – Article 4(5) of Regulation No 1049/2001 – Overriding public interest – Regulation (EC) No 1367/2006 – Article 6(1) of Regulation No 1367/2006 – Directive 91/414/EEC)

In Case T‑545/11,

Stichting Greenpeace Nederland, established in Amsterdam (Netherlands),

Pesticide Action Network Europe (PAN Europe), established in Brussels (Belgium),

represented by B. Kloostra and A. van den Biesen, lawyers,

applicants,

v

European Commission, represented initially by P. Oliver, P. Ondrůšek and C. ten Dam, and subsequently by P. Oliver, P. Ondrůšek and C. Zadra, acting as Agents,

defendant,

APPLICATION for annulment of the Commission’s decision of 10 August 2011 refusing access to volume 4 of the Draft Assessment Report issued by the Federal Republic of Germany as rapporteur Member State for the active substance glyphosate under Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1),

THE GENERAL COURT (Second Chamber),

composed of N. J. Forwood, President, F. Dehousse and J. Schwarcz (Rapporteur), Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 26 February 2013,

gives the following

Judgment

Background to the dispute

1 On 20 December 2010, the applicants, Stichting Greenpeace Nederland and Pesticide Action Network Europe (PAN Europe), requested access to several documents relating to the first authorisation of the placing of glyphosate on the market as an active substance, granted under Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1). The request was based on Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), and on Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 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 (OJ 2006 L 264, p. 13).

2 The following documents were requested:

– a copy of the draft assessment report issued by the rapporteur Member State, the Federal Republic of Germany, prior to the first inclusion of glyphosate in Annex I to Directive 91/414 (‘the draft report’);

– a complete list of all tests submitted by the operators seeking the inclusion of glyphosate in Annex I to Directive 91/414, which was decided by Commission Directive 2001/99/EC of 20 November 2001 amending Annex I to Directive 91/414 to include, inter alia, glyphosate (OJ 2001 L 304, p. 14);

– the full, complete and original test documents supplied by the operators seeking the inclusion of glyphosate in Annex I to Directive 91/414 in 2001, in so far as concerns all long-term toxicity tests, all mutagenicity tests, carcinogenicity tests, neurotoxicity tests and all reproduction studies.

3 By letter of 20 January 2011 the Commission invited the applicants to contact the German authorities in order to obtain access to the documents requested.

4 By letter of 7 February 2011, the applicants submitted, pursuant to Article 7(2) of Regulation No 1049/2001, a confirmatory application for access to the documents.

5 After seeking the prior agreement of the German authorities, in accordance with Article 4(5) of Regulation No 1049/2001, the Secretary General of the Commission, by letter of 6 May 2011, granted access to the draft report, with the exception of volume 4 thereof (‘the document at issue’), 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 to Directive 91/414. The Secretary General informed the applicants that the Commission did not have in its possession the full, complete and original test documents, which had never been transmitted to it. She also explained that the consultation with the German authorities regarding the disclosure of the document at issue was still ongoing and that a decision would be taken in due course.

6 By decision of 10 August 2011, the Secretary General of the Commission refused access to the document at issue, relying on the Federal Republic of Germany’s refusal (‘the contested decision’).

7 In the contested decision, the Secretary General of the Commission stated the reasons why the Federal Republic of Germany opposed disclosure of the document at issue on the basis of the exception in Article 4(2), first indent, of Regulation No 1049/2001, namely the protection of the commercial interests of a natural or legal person. The Federal Republic of 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.

8 After noting that the German authorities had declared that they did not consider there to be an overriding public interest, as provided for in Article 4(2) of Regulation No 1049/2001, justifying the disclosure of the document at issue, the Secretary General examined whether, in the light of Regulation No 1367/2006, such an overriding public interest could be invoked. She pointed out that Article 6(1) of Regulation No 1367/2006 was not applicable to the document at issue, since that document did not contain information which could be regarded as relating to emissions into the environment.

9 According to the Secretary General, the Commission considered that the information in question concerned the glyphosate production process of the operators which had sought the inclusion of glyphosate in Annex I to Directive 91/414 and that, on balance, the need to protect the intellectual property rights of those operators outweighed the public interest in disclosure of the information. In the Commission’s view, disclosure of the information contained in the document at issue would allow competing undertakings to copy the production method followed by the operators which had sought the inclusion of glyphosate, which would lead to considerable loss for those operators and leave their commercial interests and intellectual property rights unprotected. The public interest in disclosure of the information had already been taken into account, since the possible effects of glyphosate emissions were shown in other parts of the draft report that had already been disclosed to the public, in particular those concerning relevant impurities and metabolites. As regards the information relating to the non-relevant impurities that was included in the document at issue, the Commission considered it to relate to elements which do not present risks to health or the environment but which make it possible to reconstitute the manufacturing process of each product.

10 The Secretary General of the Commission then noted that it was apparent from the procedure by which glyphosate had been included in Annex I to Directive 91/414 that the requirements laid down by Regulation No 1367/2006, concerning public disclosure of information on the environmental effects of that substance, had been taken into account. In those circumstances, the protection of the interests of the manufacturers of that substance had to prevail.

11 The Secretary General of the Commission concluded that the information requested did not relate to emissions into the environment, within the meaning of Article 6(1) of Regulation No 1367/2006, and that there was no evidence of an overriding public interest in disclosure, within the meaning of Regulation No 1049/2001; in her view, such an interest lay in protecting the commercial interests and intellectual property rights of the glyphosate manufacturers.

Procedure and forms of order sought

12 By application lodged at the Court Registry on 14 October 2011, the applicants brought the present action.

13 The applicants claim that the Court should:

– declare that the Commission acted in breach of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed in Aarhus on 25 June 1998 (‘the Aarhus Convention’), Regulation No 1049/2001 and Regulation No 1367/2006;

– annul the contested decision;

– order the Commission to pay the costs.

14 The Commission contends that the Court should:

– dismiss the action as unfounded;

– order the applicants to pay the costs.

15 By way of measure of organisation of procedure, the Court asked the applicants two questions, which were answered by letter lodged at the Registry on 18 January 2013.

16 By order of 9 January 2013, the Commission was asked to produce the document at issue before the Court and to identify the parts concerning the purity of glyphosate, the ‘identity’ and quantities of all the impurities present in that substance and the analytical profile of the batches used for the testing. The Court stated that the document at issue would not be communicated to the applicants. By letter lodged on 25 January 2013, the Commission produced the document at issue.

17 The document at issue consists of three sub-documents. The first...