Opinion of the Advocate General — ECLI:EU:C:2008:772
Date: 2008-12-22
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment 1. Environment – Deliberate release of genetically modified organisms – Directive 2001/18 (European Parliament and Council Directive 2001/18, Art. 25(4)) 2. Environment – Deliberate release of genetically modified organisms – Directive 2001/18 (European Parliament and Council Directive 2001/18, Art. 25(4)) 1. The system of transparency established by Directive 2001/18 on the deliberate release into the environment of genetically modified organisms and repealing Directive 90/220 is reflected in particular in Articles 9, 25(4) and 31(3) thereof. By those provisions, the Community legislature has sought to establish not only procedures for consultation of the general public and, if appropriate, of certain groups on a deliberate release of genetically modified organisms (GMOs), but also a right of public access to information relating to that operation and the establishment of public registers which must include information on the location of every release of GMOs. It follows also from those provisions that the rights set out in them are closely related to the information which must be provided in the context of the notification procedure required to be followed for every deliberate release of GMOs for any purpose other than that of being placed on the market, in accordance with Articles 5 to 8 of Directive 2001/18. It follows from the connection thereby established between the notification procedure and the access to information relating to the proposed deliberate release of GMOs that, save in the case of exemptions under that directive, the relevant public may request the disclosure of all information submitted by the notifier in the context of the authorisation procedure relating to that release. The Member States must take account of all of those factors in their obligations under Article 4(1) and (2) of Directive 2001/18 to ensure that all appropriate measures are taken to avoid adverse effects on human health and the environment which might arise from the deliberate release of GMOs and to carry out an appropriate assessment of possible risks for the environment deriving from such an operation. As regards the level of detail of information to provide, as indicated in Annex III to that directive, it varies according to the nature of the proposed deliberate release of GMOs. Therefore, the factors relating to the geographical location of a deliberate release of GMOs which must be included in the notification thereof fulfil requirements intended to determine the concrete effects of such an operation on the environment. The information concerning the site of such a release must therefore be defined according to the nature of each operation and of its possible impact on the environment. Consequently, the ‘location of release’ within the meaning of the first indent of Article 25(4) of Directive 2001/18 is determined by all the information relating to the location of the release submitted by the notifier to the competent authorities of the Member State on whose territory that release is to take place in the context of the procedures referred to in Articles 6 to 8, 13, 17, 20 or 23 of that directive. (see paras 30-32, 34-35, 38-39, operative part 1) 2. An exception relating to the protection of public order or other interests protected by law cannot be relied on to oppose the disclosure of the information set out in Article 25(4) of Directive 2001/18 on the deliberate release into the environment of genetically modified organisms and repealing Directive 90/220, including in particular that relating to the location of release. Article 25(1) to (3) of Directive 2001/18 creates a system which precisely defines the confidentiality which can apply to the various information that is disclosed in the context of the notification procedures and exchange of information provided for by that directive. By that body of provisions, Directive 2001/18 therefore established exhaustive rules relating to the right of public access in the area considered and the existence of any exceptions to that right. As regards the information relating to the location of release, under the first indent of Article 25(4) of that directive, it can in no case be kept confidential. That interpretation of Directive 2001/18 is substantiated by the requirement, referred to in the third indent of Article 25(4) thereof, that information concerning the environmental risk assessment may not be kept confidential. Indeed, such an assessment is possible only with full knowledge of the proposed release, because, without such information, it would not be possible validly to assess the potential effects of a deliberate release of genetically modified organisms on human health and the environment. (see paras 45, 47-49, 51, 55, operative part 2)