Opinion of the Advocate General — ECLI:EU:C:2016:213
Date: 2016-04-07
Language of the case: English
Subject matter: Agriculture and Fisheries;Provisions governing the Institutions;Plant health legislation;Access to documents
Procedure: Action for annulment;Appeal - successful
Origin: Belgium;Netherlands

Summary — Judgment of the Court (Fifth Chamber), 23 November 2016 1. EU institutions — Right of public access to documents — Request for access concerning environmental information — Regulation No 1367/2006 — Information relating to emissions into the environment — Meaning — Broad interpretation (European Parliament and Council Regulations Nos 1049/2001, Arts 1 and 4, and No 1367/2006, recital 15 and Art. 6(1)) 2. International agreements — Community agreements — Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) — Implementation guide of that convention — No binding — None (Aarhus Convention; Council Decision 2005/370) 3. EU institutions — Right of public access to documents — Request for access concerning environmental information — Regulation No 1367/2006 — Information relating to emissions into the environment — Meaning — Limitation to emissions emanating from certain industrial installations — Not permissible (Aarhus Convention, Arts 1 and 4(4), first subpara., point (d); European Parliament and Council Regulation No 1367/2006, Arts 2(1)(d)(ii) and 6(1)) 4. EU institutions — Right of public access to documents — Request for access concerning environmental information — Regulation No 1367/2006 — Information relating to emissions into the environment — Meaning — Information concerning actual or foreseeable emissions into the environment — Included (European Parliament and Council Regulation No 1367/2006, Art. 6(1)) 5. EU institutions — Right of public access to documents — Request for access concerning environmental information — Regulation No 1367/2006 — Information relating to emissions into the environment — Meaning — Sufficiency of a direct link between the information and the relevant emissions — Not permissible (Aarhus Convention, Article 4(4), first subpara., point (d); European Parliament and Council Regulation No 1367/2006, recital 2 and Art. 6(1)) 1. The concept of information relating to emissions into the environment, within the meaning of the first sentence of Article 6(1) of Regulation No 1367/2006 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, may not be interpreted restrictively. Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents is intended, as is apparent from recital 4 and Article 1 thereof, to give the fullest possible effect to the right of public access to documents of the institutions. Likewise, Regulation No 1367/2006 aims, as provided for in Article 1 thereof, to ensure the widest possible systematic availability and dissemination of the environmental information held by the institutions and bodies of the European Union. Therefore, it is only in so far as they derogate from the principle of the widest possible public access to documents of the institutions that exceptions to that principle, in particular those provided for in Article 4 of Regulation No 1049/2001, must be interpreted and applied strictly. The need for such a restrictive interpretation is, moreover, confirmed by recital 15 of Regulation No 1367/2006. On the other hand, by establishing a presumption that the disclosure of information which relates to emissions into the environment, with the exception of information relating to investigations, is deemed to be in the overriding public interest, compared with the interest in protecting the commercial interests of a particular natural or legal person, with the result that the protection of those commercial interests may not be invoked to preclude the disclosure of that information, the first sentence of Article 6(1) of Regulation No 1367/2006 derogates from the rule requiring the weighing up of the interests laid down in Article 4(2) of Regulation 1049/2001. Nonetheless, the first sentence of Article 6(1) thus allows actual implementation of the principle that the public should have the widest possible access to information held by the institutions and bodies of the European Union, with the result that a narrow interpretation of that provision cannot be justified. (see paras 51-54) 2. See the text of the decision. (see para. 59) 3. There is nothing in Regulation No 1367/2006 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 to support the view that the concept of emissions into the environment within the meaning of the first sentence of Article 6(1) of that regulation must be limited to emissions emanating from certain industrial installations, such as factories and power stations. Nor may that restriction be inferred from the Aarhus Convention, which must be taken into account in interpreting Regulation No 1367/2006, since, as Article 1 provides, the objective of that regulation is to contribute to the implementation of the obligations arising under that convention, by laying down rules to apply the provisions of that convention to EU institutions and bodies. Furthermore, restriction of the concept of emissions into the environment within the meaning of the first sentence of Article 6(1) of Regulation No 1367/2006 to emissions emanating from certain industrial installations, such as factories and power stations, would be contrary to that regulation’s objective of disclosing environmental information as widely as possible. Finally, such a restriction has no basis in Article 2(1)(d)(ii) of Regulation 1367/2006. That provision, which sets out factors that may fall within the scope of the concept of environmental information, appears, at first glance, to distinguish the concept of emissions from those of discharges and releases into the environment. However, first, no distinction between those concepts is made by the Aarhus Convention, which merely provides in the first subparagraph of Article 4(4)(d) that the confidentiality of commercial and industrial information may not be invoked against the disclosure of information on emissions which is relevant for the protection of the environment. Secondly, such a distinction is irrelevant in the light of the objective of disclosure of environmental information which Regulation No 1367/2006 seeks to attain and would be artificial. Furthermore, those concepts broadly coincide, as shown by the expression ‘other releases’ in Article 2(1)(d)(ii), in that regulation, from which it follows that emissions and discharges are also releases into the environment. (see paras 60, 61, 63, 65-68) 4. The concept of information relating to emissions into the environment, within the meaning of the first sentence of Article 6(1) of Regulation (EC) No 1367/2006 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, cannot be limited to information concerning emissions actually released into the environment when the plant protection product or active substance in question is used on plants or soil, where those emissions depend, inter alia, on the quantities of product actually used by farmers and the exact composition of the final product marketed. Consequently, that concept also covers information on foreseeable emissions into the environment from the plant protection product or active substance in question, under normal or realistic conditions of use of that product or substance, namely the conditions under which the authorisation for placing on the market was granted and which prevail in the area where that product or substance is intended to be used. Although the placing on the market of a product or substance is not sufficient in general for it to be concluded that that product or substance will necessarily be released into the environment and that information concerning the product or substance relates to emissions into the environment, the situation is different as regards a product such as a plant protection product, and the substances which that product contains, which, in the course of normal use, are intended to be released into the environment by virtue of their very function. In that case, foreseeable emissions, under normal or realistic conditions of use, from the product in question, or from the substances which that product contains, into the environment are not hypothetical and are covered by the concept of emissions into the environment within the meaning of the first sentence of Article 6(1) of Regulation No 1367/2006. (see paras 73-75) 5. It does not suffice for information to have a sufficiently direct link with emissions into the environment in order to fall within the scope of the concept of information relating to emissions into the environment within the meaning of the first sentence of Article 6(1) of Regulation No 1367/2006 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. It follows from the wording of that provision that it concerns information which relates to emissions into the environment, that is to say information which concerns or relates to such emissions and not information with a direct or indirect link to emissions into the environment. That interpretation is confirmed by point (d) of the first subparagraph of Article 4(4) of the Aarhus Convention, which refers to information on emissions. In the light of the objective set out in the first sentence of Article 6(1) of Regulation No 1367/2006 of ensuring a general principle of access to information which relates to emissions into the environment, that concept must be understood to include, inter alia, data that will allow the public to know what is actually released into the environment or what, it may be foreseen, will be released into the environment under normal or realistic conditions of use of the product or substance in question, namely those under which the authorisation to place that product or substance on the market was granted and which prevail in the area where that product or substance is intended to be used. Consequently, that concept must be interpreted as covering, inter alia, information concerning the nature, composition, quantity, date and place of the actual or foreseeable emissions, under such conditions, from that product or substance. It is also necessary to include in the concept of information which relates to emissions into the environment information enabling the public to check whether the assessment of actual or foreseeable emissions, on the basis of which the competent authority authorised the product or substance in question, is correct, and the data relating to the effects of those emissions on the environment. It is apparent, in essence, from recital 2 of Regulation No 1367/2006 that the purpose of access to environmental information provided by that regulation is, inter alia, to promote more effective public participation in the decision-making process, thereby increasing, on the part of the competent bodies, the accountability of decision-making and contributing to public awareness and support for the decisions taken. In order to be able to ensure that the decisions taken by the competent authorities in environmental matters are justified and to participate effectively in decision-making in environmental matters, the public must have access to information enabling it to ascertain whether the emissions were correctly assessed and must be given the opportunity reasonably to understand how the environment could be affected by those emissions. (see paras 78-80, 82)