Opinion of the Advocate General — ECLI:EU:C:2016:215
Date: 2016-04-07
Language of the case: Dutch
Subject matter: Agriculture and Fisheries;Fruit and vegetables;Plant health legislation
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary and two presentations. The laboratory studies contain data on experiments conducted on the effects of imidacloprid on bees. The (semi-) field studies contain the results of measurements of residues of the plant protection product and/or the active ingredient, which include metabolites and products which are released during the degradation or the reaction. It concerns — broadly speaking — residues which, as a result of the use of plant protection products or biocides as the case may be, are present on or in the treated seeds, leaves, pollen or nectar of a crop (which is derived from treated seed), honey and bees. 29. Thereupon both Bayer CropScience and the Bee Foundation appealed against that decision. In those proceedings the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal in matters of Trade and Industry) has referred the following questions to the Court: ‘(1) Do the provisions of Article 14 of the Plant Protection Directive and Article 63, respectively, read in conjunction with Article 59 of the Plant Protection Regulation and Article 19 of the Biocidal Products Directive, respectively, mean that a request for confidentiality, as referred to in the aforementioned Articles 14, 63 and 19 from an applicant referred to in those articles, must be decided on for each individual information source before or when granting the authorisation, or before or when amending the authorisation, respectively, by means of a decision which can be made known to interested third parties? (2) If the previous question is answered in the affirmative: must Article 4(2) of the Environmental Information Directive be interpreted as meaning that in the absence of a decision as referred to in the previous question, the respondent, as a national authority, is obliged to disclose the environmental information requested when such a request is made after the granting of the authorisation or after the amendment of the authorisation respectively? (3) How must the term “emissions into the environment” in Article 4(2) of the Environmental Information Directive be interpreted, given what the parties have stated in that regard in section 5.5 of this interlocutory judgment, against the background of the content of the documents as set out in section 5.2? (4) (a) Can data which provide an estimate of the release into the environment of a product, its active ingredient(s) and other components as a result of the use of the product be deemed to be “information on emissions into the environment”? (b) If so, does it matter whether those data have been obtained by means of (semi-) field studies or other types of studies (such as, for example, laboratory studies and translocation studies)? (5) Can laboratory studies be deemed to be “information on emissions into the environment” when the test is aimed at examining isolated aspects under standardised conditions and in that framework many factors, such as, for example (climatological influences) are excluded and the tests are often conducted with — in comparison with customary practice — high dosages? (6) In that regard, must residues after the application of the product in the experimental set-up, in, for example, the air or on the ground, leaves, pollen or nectar of a crop (which is derived from treated seed), in honey or on non-target organisms also be included under “emissions into the environment”? (7) And is that also the case in respect of the degree of (dust) drift when the product is applied in the experimental set-up? (8) Do the words “information on emissions into the environment”, as referred to in the second sentence of the second paragraph of Article 4(2) of the Environmental Information Directive, mean that, if there are emissions into the environment, the information source must be disclosed in its entirety and not be limited to the (measurement) data which may, where applicable, be derived therefrom? (9) Does the application of the exception relating to commercial or industrial information within the meaning of the aforementioned Article 4(2)(d) require a distinction to be made between “emissions”, on the one hand, and “discharges and other releases into the environment” within the meaning of Article 2(1)(b) of the Environmental Information Directive, on the other hand?’ 30. In addition to Bayer CropScience and the Bee Foundation, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of the Netherlands, the Kingdom of Sweden and the European Commission took part in the written procedure. Except for Greece and Germany, they also presented oral argument at the hearing on 4 February 2016. IV – Legal assessment 31. The nine questions referred in the request for a preliminary ruling concern three subjects. First, it must be clarified whether the confidential treatment of the desired information requires the undertakings concerned to have requested such treatment at an early stage (first and second questions, see section A). Second, the scope of the notion of ‘information on emissions into the environment’ must be determined (third and ninth questions, see section B). Lastly, that notion must be applied to certain kinds of information (fourth to eighth questions, see section C). A – The request for confidentiality 32. By its first two questions, which should be answered together, the referring court is seeking to ascertain whether a request for confidentiality as referred to in Article 14 of the Plant Protection Directive must be the subject of a decision which can be made known to interested third parties before or when granting the authorisation and, if so, whether environmental information requested must be disclosed when such a request is made only after the granting of the authorisation or the amendment of the authorisation. 33. The referring court thus explores the legal opinion put forward by the Bee Foundation according to which a declaration on confidentiality which — as in this case — was not made when a request for authorisation or amendment was submitted cannot be rectified subsequently. The information in question is not therefore to be kept confidential. 34. A prima facie indication in support of that opinion would seem to be given in the judgment in Stichting Natuur en Milieu. In that judgment the Court found that under Article 14 of the Plant Protection Directive the Member States and the Commission must ensure that information supplied by applicants for authorisations to place plant protection products on the market which involves industrial or commercial secrets is treated confidentially if the applicants so request and the Member State or the Commission accepts that their request is warranted. (12) 35. However, the Court cannot be understood to mean that confidential treatment is possible only if the applicants so request. Rather, that finding relates solely to the implementation of the procedure for making a request under Article 14 of the Plant Protection Directive. 36. That provision applies without prejudice to the Environmental Information Directive, the conditions of which must be complied with where a request for access to environmental information is made. (13) Under Article 4(2) of that directive, Member States may provide for such a request — except where it concerns information on emissions into the environment — to be refused if disclosure of the information would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided for by national or EU law. 37. Neither the wording nor the scheme of the Environmental Information Directive makes the Member States’ power to protect confidential commercial or industrial information contingent on a request for confidential treatment previously having been made. Furthermore, in the Plant Protection Directive the right to make such a request is envisaged only as a possibility. If no request is made, the only apparent legal consequence is that no decision is taken by the competent authorities at that point in time on the confidential treatment of the information in question. 38. However, even a decision on confidentiality does not release the competent authorities from the obligation to decide on a request for access to environmental information in compliance with Article 4 of the Environmental Information Directive. (14) Consequently, even the absence of a decision on confidentiality cannot prevent the competent authorities from applying Article 4. 39. No other conclusion can be drawn from the fourth subparagraph of Article 13(7) of the Plant Protection Directive. Under that provision, the holder of a previous authorisation may be ordered to make certain information available to subsequent applicants if this avoids the repetition of tests on animals. 40. The Bee Foundation infers from the use of the different terms ‘applicant’ and ‘holders of previous authorisations’ that only an ‘applicant’ may claim confidentiality. Anyone who is a ‘holder of previous authorisations’ can no longer request confidentiality (retroactively). 41. However, that inference cannot be drawn, as the fourth subparagraph of Article 13(7) of the Plant Protection Directive relates solely to the specific question of how to deal with a conflict between an applicant and the holder of previous authorisations in respect of knowledge obtained from experiments with vertebrate animals. On the other hand, the Plant Protection Directive does not employ the expression ‘holders of previous authorisations’ when dealing with any other matters, in particular the confidential treatment of information in the case of requests for access. 42. This relationship between the right to request confidentiality and the protection of commercial and industrial confidentiality by the Environmental Information Directive is also in keeping with the objectives of the relevant provisions. The right to make a request under Article 14 of the Plant Protection Directive is intended to make it easier for the competent authority to identify sensitive information. However, an infringement of this interest in efficiency does not justify the impairment of (overriding) legitimate economic interests of the undertakings concerned, which are to be protected under Article 4(2)(d) of the Environmental Information Directive by the confidentiality of commercial or industrial information. 43. In practice, the absence of a request for confidential treatment may nevertheless have consequences for the protection of the confidentiality of commercial or industrial information. Without such a request the competent authorities can, as a rule, assume that information which is not obviously to be protected as industrial and commercial secrets may be disclosed. In such cases, they are not required to consult the undertaking prior to disclosure. 44. Article 19 of the Biocidal Products Directive and Article 63 of the Plant Protection Regulation are largely similar — in so far as is relevant to the point of interest — to Article 14 of the Plant Protection Directive and do not therefore lead to any other conclusion. 45. Accordingly, the answer to the first two questions must be that the confidential treatment of information submitted in connection with authorisation procedures under the Plant Protection Directive or the Biocidal Products Directive does not require, in accordance with Article 4(2) of the Environmental Information Directive, that such confidential treatment was previously requested pursuant to Article 14 of the Plant Protection Directive, Article 19 of the Biocidal Products Directive or Article 63(1) of the Plant Protection Regulation. B – The interpretation of the emissions clause 46. The request for a preliminary ruling centres on the emissions clause laid down in the fourth sentence of Article 4(2) of the Environmental Information Directive. Under that clause, Member States may not, by virtue of the exceptions in Article 4(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. The disclosure of information on emissions cannot therefore be precluded by the protection of official proceedings, commercial secrets, personal data, persons who supplied the information on a voluntary basis or environmental interests. 47. However, the Environmental Information Directive itself does not define the expression ‘emissions into the environment’. The Aarhus Convention, which is partially implemented by the Environmental Information Directive, does not contain a definition of the expression either. 48. I have already expressed a position on this point in my Opinion in Stichting Natuur en Milieu, taking the view that both information on the release of substances as such and information on the consequences of such a release are to be regarded as information on emissions into the environment. (15) The Court, on the other hand, has not yet taken a position on this point. 49. Nevertheless, the ninth question posits a hypothesis which has not yet been discussed, namely whether a distinction must be made between emissions, on the one hand, and discharges and other releases, on the other hand (see section 1). I will then turn to the first part of the third question, which asks whether the term ‘emission’ corresponds to the definition in Article 2(5) of the IPPC Directive (16) or in Article 3(4) of the Industrial Emissions Directive (17) (see section 2). I will then answer the second part of the third question, namely whether the emissions clause should be limited to information on actual emissions (see section 3). The interpretation of the emissions clause thus developed nevertheless has to be qualified in the light of the Plant Protection Regulation (see section 4). 1. The distinction between emissions, discharges and other releases 50. By the ninth question, the referring court is seeking to ascertain whether the application of the exception relating to commercial or industrial information within the meaning of Article 4(2)(d) of the Environmental Information Directive requires a distinction to be made between ‘emissions’, on the one hand, and ‘discharges and other releases into the environment’, on the other hand. If this distinction did apply, the term ‘emission’ would have to be interpreted strictly. 51. Arguments in favour of the distinction can be taken from the legislative history and from the scheme of the Environmental Information Directive. 52. The Proposal for the Environmental Information Directive contained a provision in Article 4(2)(d) under which Member States could not provide, in the case of confidentiality of commercial or industrial information, for a request to be refused where the request relates to information on emissions, discharges or other releases into the environment which are subject to provisions of Community legislation. (18) Emissions, discharges and other releases of substances into the environment were therefore to be subject to a single provision. 53. In the Council Common Position the wording of that provision was limited to emissions with a view to moving more closely in line with the wording of the Aarhus Convention. (19) 54. The Parliament, on the other hand, continued to support the use of the terms ‘emissions’, ‘discharges’ and ‘other releases’ in parallel. (20) However, in the Conciliation Committee it was not able to assert that position with the result that Article 4(2) of the Environmental Information Directive was given its present wording. 55. It could be inferred from this that the emissions clause does not cover ‘discharges or other releases of substances into the environment’. 56. A variation on this position is put forward by Germany and Bayer CropScience, relying on Article 2(1)(b) of the Environmental Information Directive. Under that provision, ‘environmental information’ means any information on factors, such as emissions, discharges or other releases into the environment, affecting or likely to affect the elements of the environment referred to in Article 2(1)(a). 57. Germany and Bayer CropScience infer from this that the term ‘emissions’ must be interpreted strictly, otherwise the scope of the terms ‘discharges’ and ‘other releases’ would be eradicated. 58. I consider this to be a false distinction, however. A precise differentiation between emissions and discharges is neither consistent with the objective of the emissions clause nor can it be inferred from the meaning of the words in question. 59. Under Article 4(4)(d) of the Aarhus Convention, information on emissions which is relevant for the protection of the environment must be disclosed. A distinction between emissions, discharges and other releases does not have any clear relevance for the protection of the environment. 60. The meaning of the terms ‘emission’, ‘discharge’ and ‘release’ confirms this objective, as they are largely identical. There might be a tendency to limit emissions to releases into the atmosphere and discharges to liquid releases, but such a differentiation between the two terms would be rather artificial. 61. This can be seen from definitions of ‘emissions’ in other provisions of EU legislation, which largely equate the term with the term ‘release’. For example, Article 3(4) of the Industrial Emissions Directive defines emissions as ‘the direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into air, water or land’. Article 2(8) of the Environmental Liability Directive (21) describes emissions as the release in the environment of substances, preparations, organisms or micro-organisms. These definitions do not leave any scope for a distinction between emissions, discharges and other releases. 62. The combined use of the three terms in Article 2(1)(b) of the Environmental Information Directive is also not intended to limit the notion of emission. It must be assumed that it seeks, first and foremost, to provide the widest possible description of the release of substances into the environment. This is in keeping with the objective of the Environmental Information Directive, which, under Article 1(b), is to achieve the widest possible systematic availability and dissemination to the public of such information (22) The concept of environmental information is thus intended to be a broad one. (23) 63. For this reason, the terms ‘emissions’, ‘discharges’ and ‘other releases’ must overlap, a situation which is not unfamiliar in respect of the Environmental Information Directive. (24) On the other hand, they are not intended to establish sharply defined categories of environmental information which are subject to different legal consequences as far as access is concerned. 64. There can have been no other purpose of the temporary use of the three terms in the emissions clause during the discussions on the Environmental Information Directive. There is nothing to suggest that the notion of ‘emission’ should be limited or that the three notions should have different legal consequences. Rather, the decision not to use all three terms can be explained by reasons of consistency with the Aarhus Convention and by the fact that the term ‘emission’ already adequately describes the envisaged releases. 65. Accordingly, with regard to the emissions clause laid down in the fourth sentence of Article 4(2) of the Environmental Information Directive, a distinction should not be made between emissions, discharges and other releases. 2. The definition of emissions in other directives 66. The abovementioned definition of emissions in Article 3(4) of the Industrial Emissions Directive leads on to the first part of the third question, namely whether the emissions clause must be limited to emissions emanating from installations. In that case the use of plant protection products and biocidal products could not generally be regarded an emission, as the release of such products does not emanate from an installation. 67. This view has no basis in the wording of the Environmental Information Directive, as that directive does not refer to other directives for the definition of the term ‘emission’. On the contrary, the original Commission proposal to restrict the emissions clause to ‘emissions which are subject to provisions of Community legislation’, that is to say, to emissions as defined in other directives, was not accepted. (25) 68. Some parties nevertheless base the limitation of the emissions clause to emissions from installations on the Implementation Guide for the Aarhus Convention. It originally proposed using the definition in Article 2(5) of the IPPC Directive for the purposes of the application of the emissions clause in the Aarhus Convention. (26) In the second edition it refers instead to the identical definition of emissions in Article 3(4) of the Industrial Emissions Directive. (27) Both definitions limit the notion of emissions to releases from installations. 69. While the Guide may be regarded as an explanatory document, capable of being taken into consideration if appropriate among other relevant material for the purpose of interpreting the Convention, the observations in the Guide have no binding force and do not have the normative effect of the provisions of the Aarhus Convention. (28) 70. As far as the question at issue is concerned, it should be stated that the Guide does not give any reason why the definition contained in the IPPC Directive and the Industrial Emissions Directive in particular should apply. Regard could also be had, for example, to the definition in Article 2(8) of the Environmental Liability Directive, which does not focus on an installation as the origin of the emission, but only on whether it is a result of human activities. 71. There is also no particular connection between the IPPC Directive or the Industrial Emissions Directive and the right of access to environmental information that could justify applying the installation-based definition of emissions. It is true that the IPPC Directive and the relevant sections of the Industrial Emissions Directive contribute to the implementation of the Aarhus Convention. (29) Nevertheless, the provisions of the Aarhus Convention which relate to installations have a much narrower scope than the right of access to environmental information. 72. In addition, on closer examination of the emissions clause in Article 4(4)(d) of the Aarhus Convention it is clear that it is even inappropriate to restrict it to emissions from installations, as under that provision information on emissions which is relevant for the protection of the environment is to be disclosed. Yet the question whether emissions originate from installations is immaterial to their effects on the environment. One need only think of transport emissions. (30) Accordingly, the Guide also states, immediately before referring to the definition of emissions in the Industrial Emissions Directive, that in principle any information on emissions should fall under the emissions clause of the Convention. (31) 73. Since the emissions clause is to be broadly construed, it is more reasonable to take the different definitions of the term as an illustration and to disregard limitations based solely on the particular regulatory purpose. 74. It is thus evident from the definition of emission in Article 3(1) of the directive on the limitation of emissions of certain pollutants into the air from medium combustion plants (32) that the term ‘emission’ in any event covers the discharge of substances. On the other hand, the limitation in that directive to discharges into the air from combustion plants stems solely from the very narrow purpose of that directive and is therefore irrelevant. 75. The definition of emissions in Article 3(4) of the Industrial Emissions Directive confirms that emissions cover the release of substances. It is also clear from that provision that the release of vibrations, heat or noise is also to be included, as they may evidently be relevant for the protection of the environment within the meaning of Article 4(4)(d) of the Aarhus Convention. It is further clear that not only releases into air are relevant for the protection of the environment, but also releases into water or land. 76. On the other hand, the express limitation to emissions from installations merely fulfils the purpose of the Industrial Emissions Directive of regulating that particular form of emissions. That aim is of no significance for access to information on emissions which is relevant for the protection of the environment. 77. The definition of emission in Article 2(8) of the Environmental Liability Directive confirms that the determining factor cannot be whether emissions are released from installations. The determining factor is whether they result from human activities. Furthermore, it can be seen from that definition that the release of organisms or micro-organisms can also constitute an emission, as this may also be relevant for the protection of the environment. On the other hand, the fact that vibrations, heat or noise are not mentioned there should not be taken as a reason to exclude them from the emissions clause. 78. I therefore propose that the emissions clause should be understood as covering information on the release of substances, organisms, micro-organisms, vibrations, heat or noise into the environment, in particular into air, water or land, as a result of human activities. 3. Limitation to information on actual emissions 79. The second part of the third question is intended to clarify whether the emissions clause is to be limited to actual emissions. It concerns, first, the differentiation from hypothetical emissions (see section a) and, second, the question whether information on emissions covers only the emissions as such or also information on their effects (see section b). (a) The differentiation from hypothetical emissions 80. The Commission, in particular, argues on the basis of my Opinion in Ville de Lyon that the emissions clause covers only actual emissions, but not hypothetical emissions. The information at issue does not relate to actual emissions. 81. It is true that in that Opinion I took the view that the protection of commercial confidentiality ends only when the substances to which the confidential information relates are released. (33) 82. The notion of environmental information in the case of emissions also requires that they affect or are likely to affect the elements of the environment referred to in Article 2(1)(a) of the Environmental Information Directive. If an effect is at most hypothetically possible, the directive is not applicable at all. 83. The Commission is therefore correct to state that information on hypothetical emissions does not fall under the emissions clause. 84. However, authorised plant protection products are generally released in accordance with their intended use. Consequently, information on their authorisation cannot be considered to concern hypothetical emissions. (b) Information on the effects of emissions 85. A much more important question is whether the limitation of the emissions clause to actual emissions means that it only concerns information on emissions as such, that is to say only details of when and where a certain emission took place. In that case only very little information from authorisation procedures for plant protection products or biocidal products would fall under the emissions clause, essentially details regarding the release of the product in field tests. The results of such tests, on the other hand, would no longer be regarded as information on emissions. 86. As I have already stated in my Opinion in Stichting Natuur en Milieu and Others, (34) however, the consequences of emissions are the precise reason why information on emissions into the environment is generally disclosed. The public has an increased interest in finding out how they may be affected by an emission. Before the emission, effects on humans and the environment were rather unlikely or at least restricted to the sphere of the possessor of the commercial secrets. Released substances, on the other hand, necessarily interact with the environment and perhaps also with humans. The Implementation Guide for the Aarhus Convention therefore emphasises that the protection of commercial confidentiality should end when the substances to which the confidential information relates are released. (35) Accordingly, possible environmental effects are not to be construed as commercial secrets. 87. The situation of the Bee Foundation illustrates the need for this interpretation. It fears that certain plant protection products harm bees, to the protection of which it is dedicated. In order to address that concern, it needs the widest possible access to the authorisation dossier for those products, as only that dossier makes it possible to understand and verify the reasons for the authorisation of plant protection products and, if necessary, to object to them on the ground that insufficient account has been taken of risks to bees. (36) 88. Consequently, the emissions clause covers not only details of emissions as such, but also information on the effects of emissions. 4. The Plant Protection Regulation 89. The Plant Protection Regulation, which was adopted subsequent to the emissions clause, nevertheless changes the legal situation, as Article 63(2) catalogues information the disclosure of which would undermine the protection of commercial interests. 90. The Plant Protection Regulation is applicable ratione temporis to the main proceedings, as under Article 84(1) it has been in force since 14 June 2011 and had to be applied since then, as is confirmed by the transitional rule laid down in Article 80(5) for pending authorisation and amendment procedures. 91. In formal terms the catalogue of sensitive information under Article 63(3) of the Plant Protection Regulation does not preclude the application of the emissions clause in the Environmental Information Directive. 92. First, the catalogue under Article 63(3) of the Plant Protection Regulation is without prejudice to the Environmental Information Directive and does not therefore affect the emissions clause. 93. Second, the catalogue only makes clear what information falls under the protection of certain exceptions to the right of access. It is thus without prejudice to the question whether information should nevertheless be disclosed on grounds of overriding public interests. The emissions clause regulates precisely this question in respect of information concerning emissions into the environment on the basis of a legal presumption of an overriding public interest. 94. However, a formal approach like this would ignore the fact that in defining the catalogue the legislature ought to have known that the information arises in connection with the approval of plant protection products. If it had assumed that information from the approval procedure falls under the emissions clause because plant protection products are intended to be released into the environment, it would have defined a catalogue of highly sensitive information which would be rendered ineffective in practice, as such information would always be subject to the presumption of an overriding public interest in disclosure. As the Commission rightly observes, however, the view cannot be taken that the legislature intended to adopt a provision which was ineffective in practice. 95. It must therefore be assumed that the legislature implicitly reassessed the anticipated weighing of the relevant fundamental rights and principles and thus defined the scope of the emissions clause strictly. 96. This reassessment found in particular that information on the full composition of the plant protection product and on residues in the active substance should be protected. As was explained in Case C‑673/13 P, such information is sensitive above all because it makes it easier for conclusions to be drawn regarding the production process and thus for copying to take place. (37) Consequently, this reassessment by the legislature is consistent with the appraisal by the Court in ABNA and Others, (38) on which Bayer CropScience relies. 97. The emissions clause cannot thus be applicable to the information referred to in Article 63(2) of the Plant Protection Regulation. A decision on access to such information must therefore be taken pursuant to the third sentence of Article 4(2) of the Environmental Information Directive based on an assessment of the individual case. 98. It should be noted, for the sake of completeness, that Article 66 of the Biocidal Products Regulation contains further special rules on access to information, which are not, however, applicable ratione temporis to the biocidal product in the main proceedings. 5. Conclusion 99. The expression ‘information on emissions into the environment’ in the fourth sentence of Article 4(2) of the Environmental Information Directive is thus to be interpreted as covering information on the release of substances, organisms, micro-organisms, vibrations, heat or noise into the environment, in particular into air, water or land, as a result of human activities and information on the effects of such emissions, but not the information referred to in Article 63(2) of the Plant Protection Regulation. 100. This interpretation is not necessarily precluded either by the fundamental right of protection of commercial secrets in respect of information on emissions or by Article 39(3) of the TRIPS Agreement, as the legislature was permitted to give greater weight to the interest in respect of the environmental effects of emissions than to the commercial interests in the protection of commercial and industrial confidentiality. (39) 101. With particular regard to the TRIPS Agreement, the legislature was able to take the view that in the case of plant protection products and biocidal products the protection of the public necessitated access to the information in question and the catalogue of highly sensitive information in Article 63(2) of the Plant Protection Regulation guaranteed adequate protection. The question of unfair commercial use is independent of this and subject to specific rules, for example regarding ‘data protection’ under the plant protection legislation. 102. Lastly, it should be noted that, within the scope of the right of access to documents, the Court has repeatedly refrained from examining the individual case and recognised general presumptions. (40) While those presumptions concerned refusal of access in each case, presumptions in favour of access should be equally possible. C – Various individual questions 103. Questions 4 to 8 in the order for reference concern various detailed problems to which an answer can be given relatively easily on the basis of the interpretation of the emissions clause developed above. All those questions concern information used to assess the consequences of the release of the products and prima facie the information in question does not fall under Article 63(2) of the Plant Protection Regulation, although this would have to be verified by the national court if objections are raised to that effect. 104. The expression ‘information on emissions into the environment’ within the meaning of the fourth sentence of Article 4(2) of the Environmental Information Directive thus covers in particular – data which provide an estimate of the release into the environment of a product, its active ingredient(s) and other components as a result of the use of the product, irrespective of whether those data have been obtained by means of (semi-) field studies or other types of studies (such as, for example, laboratory studies and translocation studies); – information on laboratory studies, when the test is aimed at examining isolated aspects under standardised conditions and in that framework many factors, such as, for example (climatological influences) are excluded and the tests are often conducted with — in comparison with customary practice — high dosages; – residues after the application of the product in the experimental set-up, in, for example, the air or on the ground, leaves, pollen or nectar of a crop (which is derived from treated seed), in honey or on non-target organisms; – the degree of (dust) drift when the product is applied in the experimental set-up; – the information source in its entirety and not be limited to the (measurement) data which may, where applicable, be derived therefrom. V – Conclusion 105. I propose that the Court answer the questions referred for a preliminary ruling as follows: (1) The confidential treatment of information submitted in connection with authorisation procedures under Directive 91/414/EEC concerning the placing of plant protection products on the market or under Directive 98/8/EC concerning the placing of biocidal products on the market does not require, in accordance with Article 4(2) of Directive 2003/4/EC on public access to environmental information, that such confidential treatment was previously requested pursuant to Article 14 of Directive 91/414, Article 19 of Directive 98/8 or Article 63(1) of Regulation (EC) No 1107/2009 concerning the placing of plant protection products on the market. (2) The expression ‘information on emissions into the environment’ in the fourth sentence of Article 4(2) of Directive 2003/4 is to be interpreted as covering information on the release of substances, organisms, micro-organisms, vibrations, heat or noise into the environment, in particular into air, water or land, as a result of human activities and information on the effects of such emissions, but not the information referred to in Article 63(2) of Regulation (EC) No 1107/2009. (3) The expression ‘information on emissions into the environment’ within the meaning of the fourth sentence of Article 4(2) of Directive 2003/4 covers in particular: – data which provide an estimate of the release into the environment of a product, its active ingredient(s) and other components as a result of the use of the product, irrespective of whether those data have been obtained by means of (semi-) field studies or other types of studies (such as, for example, laboratory studies and translocation studies); – information on laboratory studies, when the test is aimed at examining isolated aspects under standardised conditions and in that framework many factors, such as, for example (climatological influences) are excluded and the tests are often conducted with — in comparison with customary practice — high dosages; – residues after the application of the product in the experimental set-up, in, for example, the air or on the ground, leaves, pollen or nectar of a crop (which is derived from treated seed), in honey or on non-target organisms; – the degree of (dust) drift when the product is applied in the experimental set-up; and – the information source in its entirety and not be limited to the (measurement) data which may, where applicable, be derived therefrom. 1 Original language: German. 2 See, for example, European Academies’ Science Advisory Council, Ecosystem services, agriculture and neonicotinoids, EASAC policy report 26, April 2015, http://www.easac.eu/fileadmin/Reports/Easac_15_ES_web_complete_01.pdf. 3 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 (OJ 2003 L 41, p. 26). 4 Judgment in Stichting Natuur en Milieu and Others (C‑266/09, EU:C:2010:779, paragraph 43). 5 OJ 2005 L 124, p. 4. 6 Approved by Council Decision 2005/370/EC of 17 February 2005, OJ 2005 L 124, p. 1. 7 Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the Agreement Establishing the World Trade Organization (WTO), which was signed in Marrakesh on 15 April 1994 and approved on behalf of the European Community 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) (OJ 1994 L 336, p. 1). 8 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). 9 Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1). 10 Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (OJ 1998 L 123, p. 1). 11 Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products (OJ 2012 L 167, p. 1). 12 Judgment in Stichting Natuur en Milieu and Others (C‑266/09, EU:C:2010:779, paragraph 50). 13 Judgment in Stichting Natuur en Milieu and Others (C‑266/09, EU:C:2010:779, paragraph 51). 14 Judgment in Stichting Natuur en Milieu and Others (C‑266/09, EU:C:2010:779, paragraph 51). 15 My Opinion in Stichting Natuur en Milieu (C‑266/09, EU:C:2010:546, points 93 to 95). 16 Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26). 17 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (OJ 2010 L 334, p. 17). 18 Article 4(2)(d) of the Commission Proposal for the Environmental Information Directive, COM(2000) 402 final, p. 25 (reproduced partially in OJ 2000 C 337E, p. 156). 19 Statement of reasons for the Common Position of 28 January 2002 (Council document 11878/1/01 REV 1 ADD 1, p. 10) and Communication from the Commission to the European Parliament concerning the common position of the Council on the adoption of the Environmental Information Directive, SEC(2002) 103 final. 20 OJ 2003 C 187E, p. 124. 21 Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56). 22 See judgment in Fish Legal (C‑279/12, EU:C:2013:853, paragraph 66). 23 Judgments in Mecklenburg (C‑321/96, EU:C:1998:300, paragraph 19) and Glawischnig (C‑316/01, EU:C:2003:343, paragraph 24). 24 Judgment in Office of Communications (C‑71/10, EU:C:2011:525, paragraph 30). 25 See above, points 52 to 54. 26 Stec/Casey-Lefkowitz/Jendrośka, The Aarhus Convention: An Implementation Guide, New York 2000, p. 60. 27 Ebbesson/Gaugitsch/Miklau/Jendrośka/Stec/Marshall, The Aarhus Convention: An Implementation Guide, Second Edition 2014, p. 88. 28 Judgments in Flachglas Torgau (C‑204/09, EU:C:2012:71, paragraph 36) and Solvay and Others (C‑182/10, EU:C:2012:82, paragraph 27). 29 See recital 27 of the Industrial Emissions Directive. 30 See my Opinion in Stichting Natuur en Milieu (C‑266/09, EU:C:2010:546, point 90). 31 Ebbesson et al., cited in footnote 27, p. 88. 32 Directive (EU) 2015/2193 of the European Parliament and of the Council of 25 November 2015 (OJ 2015 L 313, p. 1). 33 My Opinion in Ville de Lyon (C‑524/09, EU:C:2010:613, points 73 and 74). 34 Case C‑266/09, EU:C:2010:546, point 95. 35 Ebbesson et al., cited in footnote 27, p. 88. 36 See also the judgment in Azelvandre (C‑552/07, EU:C:2009:96, paragraph 51). 37 See my Opinion delivered today in that case, point 21. 38 Judgment in ABNA and Others (C‑453/03, C‑11/04, C‑12/04 and C‑194/04, EU:C:2005:741, paragraphs 82 and 83). 39 Judgment in Nelson and Others (C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 81) and my Opinion in Stichting Natuur en Milieu and Others (C‑266/09, EU:C:2010:546, point 95). 40 Judgments in Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376, paragraph 61); Sweden v API and Commission (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 94); Commission v Agrofert Holding (C‑477/10 P, EU:C:2012:394, paragraph 64); Commission v Éditions Odile Jacob (C‑553/10 P and C‑554/10 P, EU:C:2012:682, paragraph 123), and LPN v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 49).