OPINION OF ADVOCATE GENERAL

Sharpston

delivered on 22 December 2008 ( )

Case C‑552/07

Commune de Sausheim

v

Pierre Azelvandre

(Reference for a preliminary ruling from the Conseil d’État (France))

(Definition of the location of the release of genetically modified organisms – Public order justifications for refusal to disclose such information)





1. This reference for a preliminary ruling from the French Conseil d’État concerns access to information regarding the locations of a series of field trials for genetically modified organisms (‘GMOs’), where the authorities consider that there may be a public order risk if such information were to be released.





Factual background

2. In April 2004, Mr Azelvandre requested the Mayor of Sausheim to disclose the public notice, planting record ( ) and prefectoral covering letter for each GMO field trial which had taken place within the commune of Sausheim. He also asked to be sent the information file on each new GMO field trial taking place within the commune in 2004.

3. The Mayor did not respond to this request. Mr Azelvandre therefore applied to the Committee on Access to Administrative Documents. The Committee issued a favourable opinion on the production of the public notice and first page of the prefectoral covering letter, but issued an unfavourable opinion on the production of a copy of the planting record and the map showing where the field trials had occurred, on the ground that disclosure would prejudice the privacy and safety of the farmers concerned. The Committee declared inadmissible the application for disclosure of the information files relating to the releases taking place in 2004.

4. The Mayor duly produced the public notices relating to the five field trials which had already been carried out within the Commune, and the prefectoral covering letters for two of them. Mr Azelvandre then appealed to the Strasbourg Administrative Tribunal, which annulled the Mayor’s implicit decision to refuse to produce the prefectoral correspondence relating to the other three field trials and the planting records (save for information as to names) relating to all five field trials, and ordered the Mayor to produce those documents.

5. The commune appealed to the Conseil d’État against the Tribunal’s decision. The Conseil d’État has referred the following questions to the Court of Justice:

‘(1) Must “the location where the release” of genetically modified organisms “will be carried out” which, under Article 19 of Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of genetically modified organisms, ( ) may not be kept confidential, mean the registered parcel of land or a larger geographical area corresponding either to the commune in which the release occurs or to an even greater area such as a canton or department?

(2) If the location is to be understood as requiring designation of the registered parcel of land, can an exception relating to the protection of public order or other confidential matters protected by law preclude, on the basis of Article 95 [EC], or of Directive 2003/4/EC of 28 January 2003 on public access to environmental information ( ) or of a general principle of Community law, the disclosure of the registered reference number or numbers of the location of the release?’





Preliminary remarks

The applicable legislation

6. Mr Azelvandre made his request in April 2004. At that time Council Directive 90/220/EEC (‘Directive 90/220’) had been replaced by Directive 2001/18/EC (‘Directive 2001/18’), ( ) and Directive 2003/4/EC (‘Directive 2003/4’) had not yet replaced its predecessor, Council Directive 90/313/EEC (‘Directive 90/313’). ( )

7. I therefore suggest that in answering the questions submitted by the Conseil d’État, the Court should base its answers upon Directive 2001/18 ( ) and Directive 90/313. ( ) As will become clear later, since there is for the most part no difference between the relevant provisions of the earlier and later directives, the views that I here express would apply, mutatis mutandis, to Directives 90/220 and 2003/4.





The type of release

8. From both the wording of the reference and the national case file, it is clear that the releases at issue are field trials, falling within the scope of part B of Directive 2001/18.

9. Furthermore, the referring court has provided the Court of Justice with the identity numbers for those field trials. The field trial reports ( ) reveal that the trials concern maize, which is a ‘higher plant’ as defined by Annex III, belonging as it does to the spermatophytae (seed-producing) taxonomic group. The information required from the notifier during the authorisation process is therefore that set out in Annex III B.





Legal background

Treaty provisions

10. Article 95(4) EC provides that:

‘If, after the adoption by the Council … of a harmonisation measure, a Member State deems it necessary to maintain national provisions on grounds of major needs referred to in Article 30 [EC] … it shall notify the Commission of these provisions as well as the grounds for maintaining them.’

11. The justifications set out in Article 30 EC include public security, the protection of health and life of humans or plants, and the protection of industrial and commercial property.





Directive 2001/18

12. Directive 2001/18 regulates the release of GMOs into the environment. ( ) It establishes the procedure which must be followed where a party wishes to effect a deliberate release into the environment of GMOs.

13. Article 1 states that the directive’s objective is ‘to approximate the laws, regulations and administrative provisions of the Member States and to protect human health and the environment when … carrying out the deliberate release into the environment of genetically modified organisms …’.

14. Article 2(3) defines ‘deliberate release’ as:

‘… any intentional introduction into the environment of a GMO or a combination of GMOs for which no specific containment measures are used to limit their contact with and to provide a high level of safety for the general population and the environment’.

15. This description encompasses field trials of GMOs.

16. Directive 2001/18 consists of four parts and a series of annexes. Part A sets out the obligations imposed on Member States when authorising the deliberate release of GMOs into the environment. Parts B and C contain provisions detailing the authorisation procedure for a deliberate release for purposes other than placing GMOs on the market (part B), and for placing GMOs on the market as, or in, products (part C). Part D sets out a series of final provisions, which, like those in part A, are generally applicable. The annexes give more specific details of the obligations imposed under the main parts of the directive.

17. In part A, Article 4 sets out the general authorisation procedure which all notifiers must follow. In particular, it provides that:

‘1. … GMOs may only be deliberately released or placed on the market in conformity with part B or part C respectively.

…

2. Any person shall, before submitting a notification under part B or part C, carry out an environmental risk assessment. The information which may be necessary to carry out the environmental risk assessment is laid down in Annex III.

…

4. Member States shall designate the competent authority or authorities responsible for complying with the requirements of this Directive. The competent authority shall examine notifications under part B and part C for compliance with the requirements of this Directive and whether the assessment provided for in paragraph 2 is appropriate …’

18. Part B sets out the standard authorisation procedure for notifiers who wish to carry out (inter alia) field trials of GMOs. The procedure is detailed in Article 6. The relevant provisions of that article read as follows:

‘1. Without prejudice to Article 5 [which concerns medicinal substances and compounds for human use], any person must, before undertaking a deliberate release of a GMO or of a combination of GMOs, submit a notification to the competent authority of the Member State within whose territory the release is to take place.

2. The notification referred to in paragraph 1 shall include:

(a) a technical dossier supplying the information specified in Annex III necessary for carrying out the environmental risk assessment of the deliberate release of a GMO or combination of GMOs …





…





8. The notifier may proceed with the release only when he has received the written consent of the competent authority, and in conformity with any conditions required in this consent.

…’

19. Part D contains two provisions, Articles 25 and 31(3), which impose duties on the national authorities regarding information acquired during the authorisation process.

20. Article 25 deals with the confidentiality of the information submitted to the competent authorities under the procedure set out in part B. It states that:

‘1. The Commission and the competent authorities shall not divulge to third parties any confidential information notified or exchanged under this Directive and shall protect intellectual property rights relating to the data received.

2. The notifier may indicate the information in the notification submitted under this Directive, the disclosure of which might harm his competitive position and which should therefore be treated as confidential. Verifiable justification must be given in such cases.

3. The competent authority shall, after consultation with the notifier, decide which information will be kept confidential and shall inform the notifier of its decisions.

4. In no case may the following information when submitted according to [inter alia, Article 6] … be kept confidential:

– … location of release …’ ( )

21. Article 31(3) imposes a duty of publicity upon the Member States. It provides that:

‘Without prejudice to paragraph 2 and point A No 7 of Annex IV[( )],

(a) Member States shall establish public registers in which the location of the release of the GMOs under part B is recorded.’

22. Of the annexes to the directive, the present reference is only concerned with Annex III. That annex specifies the information to be notified to the national authorities during the authorisation process. It is divided into two parts. Part A sets out the information to be submitted where the notification concerns a GMO other than a higher plant. Part B sets out the information required in notifications concerning releases of higher plant GMOs.

23. Section E of Annex III B prescribes the information relating to the site of release that is to be required by the competent national authorities. In particular, paragraph 1 of section E specifies that a notifier must disclose the ‘[l]ocation and size of the release site(s)’. ( )





Directive 90/313

24. At the material time, Directive 90/313 governed access to environmental information held by the public authorities of a Member State. ( )

25. Article 1 of that directive states that its objective is to ‘ensure freedom of access to, and dissemination of, information on the environment held by public authorities and to set out the basic terms and conditions on which such information should be made available’.

26. Article 2(a) defines the scope of the directive. It provides that:

‘For the purposes of this Directive:

(a) “information relating to the environment” shall mean any information … on the state of water, air, soil, fauna, flora, land and natural sites, and on activities … or measures adversely affecting, or likely so to affect these, and on activities or measures designed to protect these, including administrative measures and environmental management programmes’.

27. Article 3 of Directive 90/313 establishes the framework within which Member States are to permit access to environmental information. It reads as follows:

‘1. Save as provided in this Article, Member States shall ensure that public authorities are required to make available information relating to the environment to any natural or legal person at his request and without his having to prove an interest.

…

2. Member States may provide for a request for such information to be refused where it affects:

…

– public security,

…

– material, the disclosure of which would make it more likely that the environment to which such material related would be damaged.

…’





Procedure

28. The Commune de Sausheim, the French, Greek, Netherlands and Polish Governments and the Commission submitted written observations and made oral submissions at the hearing on 14 October 2008.





Analysis

29. The questions referred seek to clarify how the directives which govern the release into the environment of GMOs interact with the directives which provide for access to environmental information concerning those releases.





The first question

30. Directive 2001/18 is not an ‘access to information’ directive. Its primary purpose is to provide a harmonised legislative framework within which Member States may authorise releases of GMOs into the environment. It establishes criteria for the case-by-case evaluation of the potential risks which may arise. The measures envisaged by the directive are intended to ensure the safe (and effective) development of industrial products which use GMOs. ( )

31. To these ends, the directive obliges any party wishing to effect a release to provide information to the competent authorities of the Member State in which the proposed release would take place. The purpose of this information is to enable those authorities to conduct an effective risk evaluation before deciding whether to authorise the notifier to bring its GMOs into contact with the environment.

32. Once the authorities have the necessary information to make an informed decision as to whether or not to authorise the release and have taken that decision, Directive 2001/18 imposes certain secondary duties upon them, governing the further uses to which the information given by the notifier should be put.

33. One is a duty of public information. ( ) However, the obligation to inform the public is an ancillary obligation rather than one which arises independently.

34. Let us now examine the directive’s structure and contents more closely.

35. Parties wishing to release GMOs into the environment are obliged by Article 6 to notify the competent national authorities and to submit a dossier of information, in order that those authorities can take an informed decision on whether or not to authorise the release.

36. Article 6 cross-refers to Annex III. That annex prescribes the information which the notifier must provide. This includes, inter alia, information on the location of the release.

37. In the present case, it is the wording of Annex III B that is pertinent. ( )

38. Section E, paragraph 1, of Annex III B states that notifiers must inform the competent authorities of the ‘location and size of the release site(s)’.

39. Whilst Annex III A (which applies to non-higher plant GMOs) specifies that the notifier must inform the competent authorities of the ‘geographical location and grid reference’ of the intended sites of release, Annex III B appears to provide a less specific definition.

40. It seems to me that the explanation lies in the purpose of the notification dossier. The notifier is required to give the competent authorities the information that they require in order to carry out an environmental risk assessment before authorising the release. ( )

41. The actual level of detail that those authorities will need will vary from case to case. ( ) In some instances, it might be possible to carry out a satisfactory environmental risk assessment when the location is disclosed at the level of a canton or commune. In other instances, only the exact co-ordinates may suffice. ( )

42. Once the competent national authorities have been given the information necessary to conduct an environmental risk assessment and authorise the release if appropriate, the directive contains ancillary provisions governing the subsequent use to which that information should be put. ( )

43. Article 25 sets out a number of grounds that the notifier may invoke to request the national authorities to refrain from disclosing information that it provided during the authorisation process outlined in Article 6 and detailed in Annex III.

44. Article 25(4) sets out the limits of this entitlement to protection. In particular, Article 25(4) states that in no circumstances can the ‘location of release’ be withheld from the public.

45. In my view, the term ‘location of release’ in Article 25 is a descriptive phrase which must be read as referring back to the information on location which was required by the national authorities for the purposes of the environmental risk assessment during the authorisation process in each particular case.

46. As Article 25 is of general application, it is therefore logical that Article 25(4) uses the generic term ‘location of release’ to encompass both situations where a less precise location was sufficient to satisfy the needs of the environmental risk assessment and situations in which geographical location and grid references had to be provided. ( )

47. Accordingly, I cannot accept that the term ‘location’ provides Member States with a margin of appreciation for the purposes of drawing a balance between public security and the public’s right to access information. ( )

48. Article 25(4) should be read as meaning that the Member State is obliged to disclose whatever information as to location it possesses by application of Annex III. More generally, the obligation that Directive 2001/18 places on the competent national authorities is to make public the information which it received in order to carry out the environmental risk assessment and grant the authorisation for the release (subject only to the specific grounds of confidentiality indicated in Article 25(1)).

49. The interpretation that I propose has two consequences. First, national authorities cannot be obliged to disclose information that they do not hold. ( ) Second, if those authorities are given information (even in the course of the authorisation process) which is not necessary for the environmental risk assessment, that information will not fall within the scope of Annex III and they are therefore not required under Directive 2001/18 to release it to an inquiring party. ( )

50. Article 25 cannot be construed as operating as a filter upon the release of information as to location. Rather, it seems to me that Article 25 is to be read as follows. Article 25(1) places upon the Commission and the competent authorities of the Member States two obligations: an obligation not to disclose to third parties ‘confidential information notified or exchanged under the directive’ and an obligation to protect intellectual property rights relating to the data received. Article 25(2) and (3) then set out the process whereby the scope of the material to be so protected is to be determined. It follows that, in applying that process, the competent authorities exercise their judgment. ( ) An exercise of judgment connotes some exercise of discretion.

51. In contrast, Article 25(4) states in terms what may not be kept confidential. Here, an exercise of discretion or judgment is excluded. National authorities are not given a right to filter the information listed in Article 25(4) and to decide which parts of (for example) plans for monitoring GMOs and for emergency response are not to be disclosed. On the contrary; they are told expressly that ‘in no case’ shall that information be kept confidential. In my view, where the competent authorities have received, under the notification process, information in order to carry out the environmental risk assessment that falls within a category identified in Article 25(4), they enjoy no discretion as to how that information is treated. It may not be kept confidential.

52. Further support for the view that, in particular, the location of release may in no case be kept confidential comes from considering the terms of Article 31(3)(a). That provision requires Member States to ‘establish public registers in which the location of the release of the GMOs under part B is recorded’. ( ) Clearly it would be impossible to comply with that obligation if information on the location of release could benefit from the confidentiality envisaged in Article 25(1).

53. I conclude that under Directives 90/220 and 2001/18, the competent authorities of the Member States are obliged to place in the public domain information as to the location of the releases, to the same degree of precision as was necessary in order to perform the environmental risk assessment under the authorisation procedure.





The second question

54. Unlike Directive 2001/18 (which is primarily concerned with procedures for authorising the safe release of GMOs) the specific purpose of Directive 90/313, as its title suggests, is to enable members of the public to access environmental information held by national authorities. The directive’s framework facilitates access to information whilst providing a number of derogations enabling Member States, in some circumstances, to refuse to disclose such information.

55. The purpose of these directives is to provide access to information which would not otherwise be disclosed. It is not to provide a further basis for restricting public access to information which would otherwise be disclosed. ( )

56. A Member State cannot invoke the provisions of Directives 90/313 and 2003/4 in order to refuse access to information which should be in the public domain under Directives 2001/18 and 90/220.

57. Accordingly I reject the argument, put forward by the Commune de Sausheim and the French, Greek and Polish Governments, that Article 25 of Directive 2001/18 provides certain grounds for restricting disclosure (intellectual property, competition, the economic interests of the notifier) whilst Article 3 of Directive 90/313 provides other grounds (inter alia, public security). This argument reflects neither the structure of Directive 2001/18 nor the way in which it interacts with the directives on access to environmental information. ( )

58. Where a Member State’s authorities have more information than they are required to disclose under Directive 2001/18, Directive 90/313 becomes relevant. ( ) A request for access to such information may be made under the national provisions transposing Directive 90/313.

59. A Member State may, however, then invoke the reasons set out in Article 3(2) of Directive 90/313 in order to justify a refusal to disclose information as to the location of release, provided the other requirements of that article are met. Restriction on the grounds of public security (one of the grounds identified in Article 3(2)) would, in my view, cover circumstances in which the disclosure of the specific location of a release would lead to its unlawful destruction.

60. I am aware that the interpretation that I have put forward will, in some circumstances, leave the Member States concerned with no choice other than to disclose the exact location of the releases. At the hearing the French and Netherlands Governments reminded the Court that a detailed disclosure of location may lead to crops being destroyed. If such action were widespread, that might slow the development of GMOs. They asserted that punitive measures taken after the event, such as criminal sanctions for crop destruction, were not necessarily effective against ‘eco-warriors’.

61. Where access to information is given, that may imply accepting some enhanced risk of lower security. It is and remains open to the Community legislator to adjust the balance between promoting the development of GMO crops and enhancing public access to environmental information if experience suggests that the present balance is unworkable.

62. Moreover, Article 95 EC ( ) permits a Member State that faces a particularly serious public order problem to maintain national measures setting stricter limits on public access to detailed information on the release into the environment of GMOs. If a Member State were to exercise that option and systematically disclose a less well-defined location, any more detailed information which it retained would fall under the scope of Directive 90/313. It would then be possible for the State to refuse disclosure under the public security exception in those directives.

63. Any Member State wishing to maintain national measures in such a way must, however, follow the mandatory procedure prescribed in Article 95 EC. The French Government has not availed itself of this possibility. ( )

64. Finally, I am unaware of any general principle of Community law upon which the competent national authorities could rely to justify a refusal to disclose the information in question. No such principles were mentioned, still less invoked, during the course of the proceedings by any of the parties that submitted observations.





Conclusion

65. I therefore suggest that the Court answer the two questions referred to it by the Conseil d’État as follows:

(1) The ‘location’ where the release of genetically modified organisms will be carried out which, under Article 25 of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, may not be kept confidential, corresponds to the area indicated in the notification submitted to the competent authorities of the Member State under the procedure set out in Article 6 of that directive.

(2) Member States may not rely on the exceptions relating to the protection of public security in Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment to refuse the disclosure of information as to location whose disclosure is mandatory under Directive 2001/18.