Source: EURLEX
Language: en
Format: md

Case T-545/11

Stichting Greenpeace Nederland and Pesticide Action Network Europe (PAN Europe)

v

European Commission

‛Access to documents — Regulation (EC) No 1049/2001 — Documents relating to the first authorisation of the placing on the market of the active substance ‘glyphosate’ — Partial refusal of access — Risk of an adverse effect on the commercial interests of a natural or legal person — Article 4(5) of Regulation No 1049/2001 — Overriding public interest — Regulation (EC) No 1367/2006 — Article 6(1) of Regulation No 1367/2006 — Directive 91/414/EEC’

Summary — Judgment of the General Court (Second Chamber), 8 October 2013

1. Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Strict interpretation and application

   (Art. 1, second para., TEU; European Parliament and Council Regulation No 1049/2001, first, second, fourth and eleventh recitals and Arts 1 and 4)
2. Institutions of the European Union — Right of public access to documents — Request for access concerning environmental information — Exceptions to the right of access to documents — Regulation No 1367/2006 having special character in relation to Regulation No 1049/2001 — Irrebuttable presumption of a higher public interest requiring disclosure of information concerning emissions into the environment — Charter of Fundamental Rights of the European Union and the TRIPS Agreement irrelevant

   (Charter of Fundamental Rights of the European Union, Arts 16 and 17; TRIPS Agreement, Art. 39(2) and (3); European Parliament and Council Regulations No 1049/2001, Art. 4(2) and (5), No 1367/2006, eighth and fifteenth recitals and Arts 3 and 6(1), and No 1107/2009, Art. 63(2); Council Directive 91/414)
3. Institutions of the European Union — Right of public access to documents — Request for access concerning environmental information — Regulation No 1367/2006 — Irrebuttable presumption of a higher public interest requiring disclosure of information concerning emissions into the environment — Concept of emissions into the environment

   (European Parliament and Council Regulations No 1049/2001 and No 1367/2006, fifteenth recital and Art. 6(1); Council Directive 96/61, Art. 2, para. 5)

1. See the text of the decision.

   (see paras 27-29, 50)
2. 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)
3. Neither the logic of the right of access to documents of the EU institutions, as it emerges from Regulation No 1049/2001 and Regulation No 1367/2006 and their application, nor the wording of the latter regulation, as clarified by the preparatory documents, implies that the concept of emission into the environment should be interpreted restrictively. Accordingly, in order for the disclosure to be lawful, it suffices that the information requested relate in a sufficiently direct manner to emissions into the environment.

   By holding that, where information sought concerns emissions into the environment, disclosure is of a higher public interest than an interest protected by an exception, the first sentence of Article 6(1) of Regulation No 1367/2006 permits a concrete implementation of the general principle of giving the public the widest possible access to documents held by the EU institutions. Moreover, as stated in recital 15 of Regulation No 1367/2006, only the grounds for refusal as regards access to environmental information should be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment.

   Furthermore, the definition of emission into the environment which emerges from the Implementation Guide to the Aarhus Convention cannot be used to interpret Regulation No 1367/2006. As the Implementation Guide’s interpretation of the Aarhus Convention is not binding, that must be the case a fortiori as regards the interpretation of Regulation No 1367/2006. In that regard, the Implementation Guide refers to the concept of emission under Directive 96/61 concerning integrated pollution prevention and control, Article 2(5) of which defines emission as the direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into the air, water or land, the installation being a stationary unit where one or more activities listed in Annex I of the directive are carried out. Such a definition can be explained by the purpose of Directive 96/61, namely integrated prevention and control of pollution resulting from exclusively industrial activities. Neither the scope of application of the Aarhus Convention nor that of Regulation No 1367/2006 is limited to the consequences of such activities.

   (see paras 51-53, 55, 56)

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