Stichting Natuur en Milieu and Others v College voor de toelating van gewasbeschermingsmiddelen en biociden.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Bonichot
• ECLI: ECLI:EU:C:2010:546
• Date: 23 September 2010
• Docket Number: C-266/09
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 23 September 2010 (1)

Case C‑266/09

Stichting Natuur en Milieu

Vereniging Milieudefensie

Vereniging Goede Waar & Co.

v

College voor de toelating van gewasbeschermingsmiddelen en biociden

(Reference for a preliminary ruling from the College van beroep voor het bedrijfsleven (Netherlands))

(Directive 2003/4/EC – Access to environmental information – Environmental information – Directive 91/414/EEC – Plant protection products – Authorisation procedure)

I – Introduction

1. The present proceedings concern access to information regarding residues from a plant protection product on lettuces which was submitted in the authorisation procedure for that product. In particular, it must be clarified whether that information is environmental information within the meaning of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (2) (‘the Environmental Information Directive’) and to what extent Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (3) (‘the Plant Protection Directive’) affects the application of the Environmental Information Directive.

II – Legislative framework

A – International law

2. The right of access to environmental information is established in the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (4) (‘the Aarhus Convention’), which was signed by the Community on 25 June 1998 in Aarhus (Denmark). (5)

3. Article 4(4)(d) of the Convention governs the refusal to disclose environmental information on grounds of industrial and commercial confidentiality:

‘A request for environmental information may be refused if the disclosure would adversely affect

…

(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;

…’

4. The protection of commercial confidentiality is also the subject of Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights in Annex 1C of the Agreement Establishing the World Trade Organisation (WTO), which was signed in Marrakech on 15 April 1994 and was approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (‘the TRIPS Agreement’): (6)

‘1. In the course of ensuring effective protection against unfair competition as provided in Article 10bis 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.’

B – European Union law

1. The Environmental Information Directive

5. The right of access to environmental information was first laid down in Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment (7) (‘the old Environmental Information Directive’). That directive was repealed upon the expiry of the implementation period for the new Environmental Information Directive, namely on 14 February 2005. The new directive implements the right of access to information in accordance with the Aarhus Convention.

6. The definitions contained in Article 2 include environmental information:

‘For the purposes of this Directive:

1. “Environmental information” shall mean any information in written, visual, aural, electronic or any other material form on:

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

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

(d) reports on the implementation of environmental legislation;

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and

(f) the state of human health and safety, including the contamination of the food chain, where relevant, 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 referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).

…’

7. The right of access to environmental information is laid down in Article 3(1):

‘Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest.’

8. Exceptions are laid down in Article 4. In the present case, Article 4(2)(d), (e) and (g) are of particular interest:

‘Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect:

…

(d) the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy;

(e) intellectual property rights;

…

(g) the interests or protection of any person who supplied the information requested on a voluntary basis without being under, or capable of being put under, a legal obligation to do so, unless that person has consented to the release of the information concerned;

...

The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal. Member States may not, by virtue of paragraph 2(a), (d), (f), (g) and (h), provide for a request to be refused where the request relates to information on emissions into the environment.

...’

2. The Plant Protection Directive

9. The Plant Protection Directive regulates the authorisation, placing on the market, use and control of plant protection products and the placing on the market and control of their active substances. In particular, plant protection products require authorisation by the Member States. Such authorisation is subject to an impact study.

10. Article 14 governs the protection of information submitted in the authorisation procedure:

‘Member States and the Commission shall, without prejudice to Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment, ensure that information submitted by applicants involving industrial and commercial secrets is treated as confidential if the applicant wishing to have an active substance included in Annex I or the applicant for authorisation of a plant protection product so requests, and if the Member State or the Commission accepts that the applicant’s request is warranted.

Confidentiality shall not apply to:

– the names and content of the active substance or substances and the name of the plant protection product,

– the name of other substances which are regarded as dangerous under Directives 67/548/EEC and 78/631/EEC,

– physico-chemical data concerning the active substance and plant protection product,

– any ways of rendering the active substance or plant protection product harmless,

– a summary of the results of the tests to establish the substance’s or product’s efficacy and harmlessness to humans, animals, plants and the environment,

– recommended methods and precautions to reduce handling, storage, transport, fire or other hazards,

– methods of analysis referred to in Articles...