Judgments nº T-245/11 of The General Court, September 23, 2015

• Resolution Date: September 23, 2015
• Issuing Organization: The General Court
• Decision Number: T-245/11

(Access to documents - Regulation (EC) No 1049/2001 - Documents held by ECHA - Documents deriving from a third party - Time-limit for response to an application for access - Refusal of access - Exception relating to protection of the commercial interests of a third party - Exception relating to protection of the decision-making process - Overriding public interest - Environmental information - Emissions into the environment)

In Case T-245/11,

ClientEarth, established in London (United Kingdom),

The International Chemical Secretariat, established in Gothenburg (Sweden),

represented by P. Kirch, lawyer,

applicants,

v

European Chemicals Agency (ECHA), represented by M. Heikkilä, A. Iber and T. Zbihlej, acting as Agents, and by D. Abrahams, Barrister,

defendant,

supported by

European Commission, represented initially by E. Manhaeve, P. Oliver and C. ten Dam, and subsequently by E. Manhaeve, P. Oliver and F. Clotuche-Duvieusart, and latterly by E. Manhaeve, F. Clotuche-Duvieusart and J. Tomkim, acting as Agents,

and by

European Chemical Industry Council (Cefic), established in Brussels (Belgium), represented by Y. van Gerven and M. Bronckers, lawyers,

interveners,

APPLICATION for the annulment of the ECHA decision of 4 March 2011 refusing access to information supplied in the context of the procedure for registration of certain chemical substances,

THE GENERAL COURT (Second Chamber),

composed of M.E. Martins Ribeiro (Rapporteur), President, S. Gervasoni and L. Madise, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written procedure and further to the hearing on 30 January 2015,

gives the following

Judgment

Legal context

A - International law

1. The TRIPS Agreement

   1 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 15 April 1994 (OJ 1994 L 336, p. 214; ‘the TRIPS Agreement), which constitutes Annex 1 C to the Agreement establishing the World Trade Organisation (‘WTO’) (OJ 1994, L 336, p. 3), contains a Part II headed ‘Standards concerning the availability, scope and use of intellectual property rights’. In that part II, under Section 7, headed ‘Protection of undisclosed information’, Article 39 reads as follows:

   ‘1. In the course of ensuring effective protection against unfair competition as provided in Article 10 bis of the Paris Convention (1967), Members shall protect undisclosed information in accordance with paragraph 2 and data submitted to governments or governmental agencies in accordance with paragraph 3.

2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information:

   (a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;

   (b) has commercial value because it is secret; and

   (c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

3. Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilise new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use.’

2. Aarhus Convention

   2 The Convention on access to information, public participation in decision-making and access to justice in environmental matters was signed in Aarhus on 25 June 1998 (‘the Aarhus Convention’).

   3 Article 2(3) of the Aarhus Convention provides:

   ‘“Environmental information” means any information in written, visual, aural, electronic or any other material form on:

   (a) the state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

   (b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above …;

   (c) the state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above.’

   4 Article 3(1) of the Aarhus Convention provides:

   ‘Each Party shall take the necessary legislative, regulatory and other measures, including measures to achieve compatibility between the provisions implementing the information, public participation and access-to-justice provisions in this Convention, as well as proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention.’

   5 Article 4(1) to (4) of the Aarhus Convention read as follows:

   ‘1. Each Party shall ensure that, subject to the following paragraphs of this article, public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation, including, where requested and subject to subparagraph (b) below, copies of the actual documentation containing or comprising such information:

   (a) without an interest having to be stated;

   (b) in the form requested unless:

   (i) it is reasonable for the public authority to make it available in another form, in which case reasons shall be given for making it available in that form; or

   (ii) the information is already publicly available in another form.

2. The environmental information referred to in paragraph 1 above shall be made available as soon as possible and at the latest within one month after the request has been submitted, unless the volume and the complexity of the information justify an extension of this period up to two months after the request. The applicant shall be informed of any extension and of the reasons justifying it.

3. A request for environmental information may be refused if:

   (a) the public authority to which the request is addressed does not hold the environmental information requested;

   (b) the request is manifestly unreasonable or formulated in too general a manner; or

   (c) the request concerns material in the course of completion or concerns internal communications of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure.

4. A request for environmental information may be refused if the disclosure would adversely affect:

   (a) the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law;

   (b) international relations, national defence or public security;

   (c) the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;

   (d) the confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest. Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed;

   (e) intellectual property rights;

   (f) the confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for in national law;

   (g) the interests of a third party which has supplied the information requested without that party being under or capable of being put under a legal obligation to do so, and where that party does not consent to the release of the material; or

   (h) the environment to which the information relates, such as the breeding sites of rare species.

   The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.’

   B - EU law

1. Regulation (EC) No 1049/2001

   6 Article 2 of 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) provides that any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in that regulation.

   7 Article 2(3) of that regulation provides that the regulation applies ‘to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union’.

   8 Article 4 of Regulation No 1049/2001, headed ‘Exceptions’, provides:

   ‘…

2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

   - commercial interests of a natural or legal person, including intellectual property,

   …

   unless there is an overriding public interest in disclosure.

3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the...