Case C‑442/14

Bayer CropScience SA-NV

and

Stichting De Bijenstichting

v

College voor de toelating van gewasbeschermingsmiddelen en biociden

(Request for a preliminary ruling from the College van Beroep voor het bedrijfsleven)

(Reference for a preliminary ruling — Environment — Aarhus Convention — Directive 2003/4/CE — Article 4(2) — Public access to information — Concept of ‘information relating to emissions into the environment’ — Directive 91/414/EEC — Directive 98/8/EC — Regulation (EC) No 1107/2009 — Placing of plant protection products and biocides on the market — Confidentiality — Protection of industrial and commercial interests)

Summary — Judgment of the Court (Fifth Chamber), 23 November 2016

Environment—Freedom of access to information—Directive 2003/4—Grounds that may justify a refusal to supply information relating to the environment—Inapplicability of certain grounds in the presence of a request for access to information relating to emissions into the environment—Request for access concerning information relating, in part, to other grounds of refusal—Disclosure only of information covered by inapplicable grounds—Condition

Environment—Freedom of access to information—Directive 2003/4—Grounds that may justify a refusal to supply information relating to the environment—Information relating to emissions into the environment—Meaning—Data contained in dossiers for authorisation to place plant protection products or biocides on the market—Included—Condition—Relationship to emissions into the environment—Disproportionate restriction on the freedom to conduct a business and the right to property—No such restriction

Environment—Freedom of access to information—Directive 2003/4—Grounds that may justify a refusal to supply information relating to the environment—Request for access to information submitted in the context of a procedure to place a plant protection product or biocide on the market—No obligation to disclose information in the absence of a relevant request for confidential treatment

See the text of the decision. (see paras 37, 38)

Article 4(2) of Directive 2003/4 on public access to environmental information must be interpreted as meaning that the fact that the applicant for authorisation to place a plant protection product or biocide on the market, did not, during the procedure for obtaining that authorisation, request that information submitted under that procedure be treated as confidential on the basis of Article 14 of Directive 91/414 concerning the placing of plant protection products on the market, Article 19 of Directive 98/8 concerning the placing of biocidal products on the market or Article 33(4) and Article 63 of Regulation No 1107/2009 concerning the placing of plant protection products on the market does not preclude the competent authority, which has received, following the closure of that procedure, a request for access to the information submitted on the basis of Directive 2003/4 by a third party, from examining the applicant’s objection to that request for access and refusing it, if necessary, pursuant to point (d) of the first subparagraph of Article 4(2) of that directive on the ground that the disclosure of that information would adversely affect the confidentiality of commercial or industrial information. It is apparent that the EU legislature intended to subject requests for access by third parties to information contained in application dossiers for authorisation to place plant protection products or biocides on the market, in respect of which confidential treatment may be requested pursuant to those provisions, to the general provisions of Directive 2003/4. In that regard, Article 4(2) of that directive authorises Member States to provide for a request for access to environmental information to be refused if disclosure of that information would adversely affect any of the interests referred to in that article, inter alia, the confidentiality of commercial or industrial information. That provision does not require submission of a request for confidential treatment prior to the request for disclosure. (see paras 44-46, 49, operative part 1)

The objective of Directive 2003/4 on public access to environmental information is to ensure a general principle of access to environmental information held by or for public authorities and to achieve, as is apparent from recital 9 and Article 1 of that directive, the widest possible systematic availability and dissemination to the public of environmental information. It follows, that, as expressly provided for in the second subparagraph of Article 4(4) of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters and recital 16 and the second subparagraph of Article 4(2) of Directive 2003/4, the disclosure of information must be the general rule and the grounds for refusal referred to by those provisions must be interpreted in a restrictive way. In that regard, by establishing that the confidentiality of commercial or industrial information may not be invoked against the disclosure of information relating to emissions into the environment, the second subparagraph of Article 4(2) of Directive 2003/4 allows for specific application of that rule and of the principle of the widest possible access to the environmental information held by or for public authorities. It follows that it is not necessary to apply a restrictive interpretation of ‘emissions into the environment’ and ‘information on emissions into the environment’ within the meaning of the second subparagraph of Article 4(2) of Directive 2003/4. (see paras 55-58)

It is not necessary, for the purposes of interpreting ‘emissions into the environment’, within the meaning of the second subparagraph of Article 4(2) of Directive 2003/4 on public access to environmental information to draw a distinction between that concept and those of discharges and releases into the environment. First, no such distinction is made by the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, which merely provides in point (d) of the first subparagraph of Article 4(4) 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, a distinction between emissions, discharges and other releases is irrelevant in the light of the objective of Directive 2003/4 concerning the disclosure of environmental information and would be artificial. Emissions of gas or substances into the atmosphere and other releases or discharges such as the release of substances, preparations, organisms, micro-organisms, vibrations, heat or noise into the environment, in particular into air, water or land, may affect those various elements of the environment. Furthermore, the concepts of emissions, discharges and releases broadly coincide, as shown by the use of the expression ‘other releases’ in Article 2(1)(b) of that directive from which it follows that emissions and discharges are also releases into the environment. (see paras 62-65, 67)

See the text of the decision. (see paras 69, 70)

Nothing in the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters or in Directive 2003/4 on public access to environmental information permits the view that the concept of ‘emissions into the environment’ should be restricted to emissions emanating from certain industrial installations. Such a restriction would be contrary to the express wording of point (d) of the first subparagraph of Article 4(4) of that convention. That provision states that information on emissions which is relevant for the protection of the environment must be disclosed. Information concerning emissions emanating from sources other than industrial installations, such as those resulting from the application of plant protection products or biocides, are just as relevant to environmental protection as information relating to emissions of industrial origin. Furthermore, restriction of the concept of ‘emissions into the environment’, within the meaning of the second subparagraph of Article 4(2) of Directive 2003/4, to emissions emanating from certain industrial installations would be contrary to that directive’s objective of the widest possible disclosure of environmental information. (see paras 71-73)

‘Emissions into the environment’ within the meaning of the second subparagraph of Article 4(2) of Directive 2003/4 on public access to environmental information must be interpreted as including, inter alia, the release into the environment of products or substances such as plant protection products or biocides and substances contained in those products, to the extent that that release is actual or foreseeable under normal or realistic conditions of use. That concept must be limited to non-hypothetical emissions, that is to say actual or foreseeable emissions from the product or substance in question under normal and realistic conditions of use. In that regard, although the placing of a product on the market alone is not sufficient in general to consider that that product must necessarily be released into the environment and that information concerning it relates to emissions into the environment, the situation is different as regards a product, such as a plant protection product or biocide, which is, in the context of normal use, intended to be released into the environment by virtue of its function. Therefore the foreseeable emissions from that product into the environment are not, in the latter case, hypothetical. Under those circumstances, ‘emissions into the environment’ covers emissions which are actually released into the environment at the time of the application of the product or substance in question and foreseeable emissions from that product or that substance into the environment under normal or realistic conditions of use of that product or substance corresponding to those under which the authorisation to place the product in question on the market is granted and which prevail in the area where that product is intended for use. (see paras 77-79, 81, 103, operative part 2)

See the text of the decision. (see para. 84)

‘Information on emissions into the environment’, within the meaning of the second subparagraph of Article 4(2) of Directive 2003/4 on public access to environmental information, covers information concerning the nature, composition, quantity, date and place of the ‘emissions into the environment’ of plant protection products and biocides and substances contained therein, and data concerning the medium to long-term consequences of those emissions on the environment, in particular information relating to residues in the environment following application of the product concerned and studies on the measurement of the substance’s drift during that application, whether the data comes from studies performed entirely or in part in the field, or from laboratory or translocation studies. That interpretation of ‘information on emissions into the environment’ does not in any way mean that all data contained in dossiers for authorisation to place plant protection products or biocides on the market, in particular, all data from studies carried out in order to obtain that authorisation, are covered by that concept and must always be disclosed. Only data relating to emissions into the environment are covered by that concept, which excludes, inter alia, not only information which does not concern emissions from the product in question into the environment, but also information which relates to hypothetical emissions, that is to say emissions which are not actual or foreseeable from the product or substance in question under representative circumstances of normal or realistic conditions of use. That interpretation does not therefore lead to disproportionate undermining of protection of the rights ensured by Articles 16 and 17 of the Charter of Fundamental Rights of the European Union and by Article 39(3) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement). Likewise, that interpretation does not deprive Article 63 of Regulation 1107/2009 concerning the placing of plant protection products on the market of its effectiveness. The presumption established by paragraph 2 of that article allows the competent authority to consider that information submitted by an applicant for a marketing authorisation covered by that provision is in principle confidential and may not be made available to the public if no request for access to that information has been made on the basis of Directive 2003/4. That presumption also guarantees the applicant, in the event that such a request is made, that the competent authority may disclose that information only after establishing, on an individual basis, whether that information relates to emissions into the environment or whether another overriding public interest justifies that disclosure. (see paras 96, 100, 102, 103, operative part 2)