Article 6(1), first sentence, 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, requires that if the institution concerned receives an application for access to a document, it must disclose it where the information requested relates to emissions into the environment, even if such disclosure is liable to undermine the protection of the commercial interests of a particular natural or legal person, including that person’s intellectual property, within the meaning of Article 4(2), first indent, of Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents. That interpretation cannot be called into question under the pretext of a coherent or harmonious interpretation of Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, or interpretation in conformity with the provisions of Article 39(2) and (3) of the Agreement on the Trade Related Aspects of Intellectual Property Rights (‘the TRIPS Agreement’) that forms Annex 1 C to the Agreement establishing the World Trade Organisation, of Directive 91/414 concerning the placing of plant protection products on the market, or of Regulation No 1107/2009 concerning the placing of plant protection products on the market.

In the first place, Regulation No 1367/2006 contains provisions which replace, amend or clarify some of the provisions of Regulation No 1049/2001.

In the second place, the first sentence of Article 6(1) of Regulation No 1367/2006 lays down an irrebuttable legal presumption that an overriding public interest in disclosure exists where the information requested relates to emissions into the environment, except where that information concerns an investigation, in particular one concerning possible infringements of European Union law. The same provision requires that, if the institution concerned receives an application for access to a document, it must disclose it where the information requested relates to emissions into the environment, even if such disclosure is liable to undermine the protection of the commercial interests of a particular natural or legal person. In that regard, neither Directive 91/414 nor Regulation No 1107/2009 permit that irrebuttable presumption being opposed and the public and private interests which they protect being given precedence over the higher public interest referred to in the first sentence of Article 6(1) of Regulation No 1367/2006.

Nor, in the third place, can the application of the said Article 6(1) be set aside under the pretext of ensuring a fair balance between the protection of the fundamental right to property, which encompasses intellectual property rights under the Charter of Fundamental Rights of the European Union and the TRIPS Agreement, and the protection of other fundamental rights. Such an approach would amount to disapplying a clear and unconditional provision of a European Union regulation, which is not even claimed to be contrary to a superior rule of law.

Finally, whilst the provisions of the TRIPS Agreement constitute an integral part of the EU legal order and, where there are EU rules in a sphere concerned by that Agreement, there is an obligation to adopt an interpretation in keeping with that Agreement, there can be no question, for the purposes of ensuring an interpretation of the relevant law consistent with Article 39(2) and (3) of the TRIPS Agreement, of disapplying the provisions of the said Article 6(1), first sentence, of Regulation No 1367/2006, since such an approach would lead, in reality, to calling into question the lawfulness of the first sentence of Article 6(1) of Regulation No 1367/2006 in the light of Article 39(2) and (3) of the TRIPS Agreement.

(see paras 35-38, 40, 41, 44-46)