Action brought on 24 May 2017 – Hautala and Others v EFSA

(Case T-329/17)

Language of the case: English

Parties

Applicants: Heidi Hautala (Helsinki, Finland), Benedek Jávor (Budapest, Hungary), Michèle Rivasi (Valence, France) and Bart Staes (Antwerp, Belgium) (represented by: B. Kloostra, lawyer)

Defendant: European Food Safety Authority (EFSA)

Form of order sought

The applicants claim that the Court should:

annul EFSA’s confirmatory decision of 14 March 2017 with reference PAD 2017/005 CA, confirming its decision of 9 December 2016 and 7 October 2016 with reference PAD 2016/034 to refuse most of the documents requested by the applicants; and

order EFSA to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.

First plea in law, alleging that EFSA violated Article 6(1) of Regulation 1367/2006¹ by not applying it to the requested information. The exception to disclosure for the protection of ‘commercial interests of a natural or legal person, including intellectual property’, laid down in Article 4(2), first indent, of Regulation 1049/2001 should have been waived by EFSA and not been applied to the requested information, based on Article 6(1) of Regulation 1367/2006.

Second plea in law, alleging that EFSA violated Articles 2(4) and 4(2), first indent, of Regulation 1049/2001² and Article 41 of Regulation 178/2002³ by refusing to disclose the requested information for the protection of commercial interests of the study-owners, meanwhile not substantiating concrete harm and/ or an actual risk to concrete harm, also violating Article 4(4) under d, of the Aarhus Convention, where it is provided that an exception to disclosure may only be granted for protecting the interest of ‘confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest’ as no concrete legitimate economic interest has been identified and/or substantiated in the contested measure.

Third plea in law, alleging that EFSA incorrectly applied Article 63(2) of Regulation 1107/2009⁴ , as this provision does not apply to the requested information and/or the disclosure of the information is of overriding public interest in the sense of Article 63(2) and/or Article 16 of Regulation 1107/2009.

Fourth plea in law, alleging that EFSA violated Article 4(2) of Regulation 1049/2001 by not recognising that there is an overriding public interest in the disclosure of the studies and by denying the applicants substantiation of an overriding public interest in the disclosure of the studies.

Fifth plea in law, alleging that by omitting to weight the interest of public access to environmental information in the studies against the private interest of companies to protect their commercial interests and/or letting prevail the economic interests of the companies EFSA violated Article 4(2), first indent, of Regulation 1049/2001.

Sixth plea in law, alleging that as the available data do not permit an independent and complete review of EFSA’s peer review on Glyphosate the applicants have an interest in the disclosure of the studies. By denying the general interest and the applicants’ interest in disclosure of the requested information EFSA has violated its obligations under the Articles 2 and 4 of Regulation 1049/2001 and Article 41 of Regulation 178/2002.

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¹ Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 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 (OJ L 264, 2006, p.13)

² Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 2001, p.43)

³ Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ L 31, 2002, p. 1)

⁴ Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ L 309, 2009, p.1)