OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 7 April 2016 (1)
Case C‑442/14
Bayer CropScience SA-NV
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 (Administrative Court of Appeal in matters of Trade and Industry, Netherlands))
(Directive 2003/4/EC — Access to environmental information — Exceptions — Industrial and commercial secrets — Information on emissions into the environment — Confidentiality — Regulation (EC) No 1107/2009 — Plant protection products — Directive 98/8/EC — Biocidal products)
I – Introduction
1. Transparency is a guiding principle of European environmental policy. Not only authorities and undertakings but also citizens, non-governmental organisations and independent scientists are intended to be able to participate fully in the debate on environmental protection and thus to contribute to improved environmental protection.
2. There is a very lively debate regarding the role played by plant protection products in ‘bee mortality’, that is to say, the decline of bee populations, but also of other pollinating insect species. (2) Therefore, there is a particular public interest in the information which manufacturers submit to the authorities in the authorisation procedures regulated by EU law in order to obtain approval of active substances and plant protection products. However, those manufacturers fear that they may suffer competitive disadvantages if their competitors gain access to that information.
3. This conflict of interests is regulated by the Environmental Information Directive, (3) which governs access to such information. (4) Under that directive, authorities may in principle refuse access to environmental information held by them in order to protect the confidentiality of commercial or industrial information, but they must nevertheless release information on emissions into the environment and information whose disclosure is in the overriding public interest.
4. The present case concerns access to information submitted in authorisation procedures for plant protection products and a biocidal product. In addition to the question whether the information relates to emissions, it must be clarified in particular what effect the absence of a request for confidentiality has on a request for environmental information. A request for confidentiality may be made by the manufacturer in the context of the authorisation procedures for plant protection products and biocidal products.
II – Legislative framework
A – International law
5. The right of access to environmental information is established in the Convention on access to information, public participation in decision-making and access to justice in environmental matters (5) (‘the Aarhus Convention’), which was signed by the Community on 25 June 1998 in Aarhus (Denmark). (6)
6. Article 4(4)(d) of the Convention governs the refusal to disclose environmental information on grounds of industrial and commercial confidentiality:
‘A request for environmental information may be refused if the disclosure would adversely affect:
…
(d) the confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest. Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed;
…’
7. The protection of the confidentiality of commercial information which is communicated to the national authorities is also the subject of Article 39(3) of the TRIPS Agreement: (7)
‘Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilise new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use.’
B – EU law
1. The Environmental Information Directive
8. The right of access to environmental information is granted on the basis of the Environmental Information Directive, which implements the right of access to environmental information under the Aarhus Convention.
9. The definitions contained in Article 2 of the Environmental Information Directive include environmental information:
‘For the purposes of this Directive:
1. “Environmental information” shall mean any information in written, visual, aural, electronic or any other material form on
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);
…’
10. The right of access to environmental information is laid down in Article 3(1) of the Environmental Information Directive:
‘Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest.’
11. The exceptions are laid down in Article 4 of the Environmental Information Directive. In the present case Article 4(2)(d), (e) and (g) is of particular interest:
‘Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect:
…
(d) the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy;
(e) intellectual property rights;
…
(g) the interests or protection of any person who supplied the information requested on a voluntary basis without being under, or capable of being put under, a legal obligation to do so, unless that person has consented to the release of the information concerned;
…
The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal. Member States may not, by virtue of paragraph 2(a), (d), (f), (g) and (h), provide for a request to be refused where the request relates to information on emissions into the environment.
…’
2. The Plant Protection Directive
12. The Plant Protection Directive (8) initially regulated the placing on the market of plant protection products.
13. The fourth subparagraph of Article 13(7) of the Plant Protection Directive concerns the avoidance of unnecessary tests on animals:
‘If, nevertheless, the applicant and holders of previous authorisations of the same product can still not reach an agreement on the sharing of data, Member States may introduce national measures obliging the applicant and holders of previous authorisations located within their territory to share the data with a view to avoiding duplicative testing on vertebrate animals and determine both the procedure for utilising information, and the reasonable balance of the interests of the parties concerned.’
14. Article 14 of the Plant Protection Directive provides as follows:
‘Member States and the Commission shall, without prejudice to [the Environmental Information Directive], ensure that information submitted by applicants involving industrial and commercial secrets is treated as confidential if the applicant wishing to have an active substance included in Annex I or the applicant for authorisation of a plant protection product so requests, and if the Member State or the Commission accepts that the applicant’s request is warranted.
Confidentiality shall not apply to:
…’
3. The Plant Protection Regulation
15. The Plant Protection Regulation (9) has applied since 14 June 2011 pursuant to Article 84 thereof and has replaced the Plant Protection Directive.
16. Recital 39 of the Plant Protection Regulation states:
‘Studies represent a major investment. This investment should be protected in order to stimulate research. For this reason, tests and studies, other than those involving vertebrate animals, which will be subject to obligatory data sharing, lodged by one applicant with a Member State should be protected against use by another applicant. This protection should, however, be limited in time in order to allow competition. It should also be limited to studies which are genuinely necessary for regulatory purposes, to avoid applicants artificially extending the period of protection by submitting new studies which are not necessary. Business operators, in particular small and medium-sized enterprises, should have the same opportunities in respect of market access.’
17. Recital 41 of the Plant Protection Regulation concerns requests for information. It states:
‘As different rules are applied by Member States, the Commission and the Authority in relation to access to and confidentiality of documents, it is appropriate to clarify the provisions concerning access to information contained in the documents in the possession of these authorities and the confidentiality of these documents.’
18. Article 7 of the Plant Protection Regulation relates to the approval procedure for active substances. Paragraph 3 provides:
‘When submitting the application, the applicant may pursuant to Article 63 request certain information, including certain parts of the dossier, to be kept confidential and shall physically separate that information.
Member States shall assess the confidentiality requests. Upon a request for access to information, the rapporteur Member State shall decide what information is to be kept confidential.’
19. Article 33 of the Plant Protection Regulation contains provisions on the authorisation procedure for plant protection products:
‘1. An applicant who wishes to place a plant protection product on the market shall apply for an authorisation or amendment of an authorisation himself, or through a representative, to each Member State where the plant protection product is intended to be placed on the market.
…
4. When submitting the application, the applicant may, pursuant to Article 63, request certain information, including certain parts of the dossier, to be kept confidential and shall physically separate that information.
The applicant shall at the same time submit the complete list of studies submitted pursuant to Article 8(2) and a list of test and study reports for which any claims for data protection pursuant to Article 59 are requested.
Upon a request for access to information the Member State examining the application shall decide what information is to be kept confidential.
…’
20. Article 59 of the Plant Protection Regulation governs data protection. It states:
‘1. Test and study reports shall benefit from data protection under the conditions laid down in this Article.
…
Where a report is protected, it may not be used by the Member State which received it for the benefit of other applicants for authorisation of plant protection products, safeners or synergists and adjuvants, except as provided in paragraph 2 of this Article, in Article 62 or in Article 80.
…
3. Data protection under paragraph 1 shall only be granted where the first applicant has claimed data protection for test and study reports concerning the active substance, safener or synergist, adjuvant and the plant protection product at the time of submitting the dossier and has provided to the Member State concerned for each test or study report the information referred to in point (f) of Article 8(1) and in point (d) of Article 33(3) as well as confirmation that a period of data protection has never been granted for the test or study report or that any period granted has not expired.’
21. Chapter IV of the regulation, which is entitled ‘Public access to information’, consists of Article 63, which concerns confidentiality:
‘1. A person requesting that information submitted under this Regulation is to be treated as confidential shall provide verifiable evidence to show that the disclosure of the information might undermine his commercial interests, or the protection of privacy and the integrity of the individual.
2. Disclosure of the following information shall normally be deemed to undermine the protection of the commercial interests or of privacy and the integrity of the individuals concerned:
(a) the method of manufacture;
(b) the specification of impurity of the active substance except for the impurities that are considered to be toxicologically, ecotoxicologically or environmentally relevant;
(c) results of production batches of the active substance including impurities;
(d) methods of analysis for impurities in the active substance as manufactured except for methods for impurities that are considered to be toxicologically, ecotoxicologically or environmentally relevant;
(e) links between a producer or importer and the applicant or the authorisation holder;
(f) information on the complete composition of a plant protection product;
(g) names and addresses of persons involved in testing on vertebrate animals.
3. This Article is without prejudice to Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information.’
4. The Biocidal Products Directive
22. The Biocidal Products Directive (10) lays down Union-wide rules inter alia on the authorisation and the placing on the market for use of biocidal products within the Member States. Article 19 (‘Confidentiality’) provides:
‘1. Without prejudice to [the Environmental Information Directive], an applicant may indicate to the competent authority the information which he considers to be commercially sensitive and disclosure of which might harm him industrially or commercially and which he therefore wishes to be kept confidential from all persons other than the competent authorities and the Commission. Full justification will be required in each case. Without prejudice to the information referred to in paragraph 3 and the provisions of Directives 67/548/EEC and 88/379/EEC, Member States shall take the necessary steps to ensure the confidentiality of the full composition of product formulations if requested by the applicant.
2. The competent authority receiving the application shall decide, on the basis of documentary evidence produced by the applicant, which information shall be confidential within the terms of paragraph 1.
Information accepted as being confidential by the receiving competent authority shall be treated as being confidential by the other competent authorities, Member States and the Commission.
3. After the authorisation has been granted, confidentiality shall not in any case apply to:
…’
23. The Biocidal Products Directive was replaced with effect from 1 September 2013 by the Biocidal Products Regulation. (11) However, because the relevant applications for authorisation were submitted in 2011, that regulation is not relevant to the answer to the questions referred for a preliminary ruling.
III – Main proceedings and questions referred for a preliminary ruling
24. Bayer CropScience SA-NV (‘Bayer CropScience’) is the authorisation holder for a number of plant protection products and one biocidal product based on the active ingredient imidacloprid. Stichting de Bijenstichting (‘the Bee Foundation’), an organisation concerned with bee mortality, has made a request to the competent Netherlands authority, the College voor de toelating van gewasbeschermingsmiddelen en biociden (‘the authority responsible for issuing authorisations’), for access to the authorisation documents for those products.
25. Bayer CropScience did not request that the documents submitted in connection with the authorisation be kept confidential either at the time of the first authorisation of the products or at the time of amendment of that authorisation or of the statutory conditions of use on 28 April 2011 and on 8 July 2011. It was only following the requests for disclosure made by the Bee Foundation that Bayer CropScience objected to disclosure on grounds of a possible infringement of copyright, confidentiality of commercial or industrial information and the right to data protection.
26. By decision of 9 July 2012 the authority responsible for issuing authorisations refused the requests made by the Bee Foundation on 11 May 2011, 24 August 2011 and 25 October 2011 because they did not relate to information on ‘emissions into the environment’ and weighing the general interest in disclosure, on the one hand, against the specific interest of the authorisation holders in confidentiality, on the other hand, did not justify disclosure.
27. On 18 March 2013 a ruling was made on the objection lodged by the Bee Foundation by which the authority responsible for issuing authorisations partially upheld the objection and ordered the disclosure of 35 documents because they contained information on emissions into the environment. It ruled that 49 other documents did not contain any such information and there was also no overriding public interest in their disclosure. The authority responsible for issuing authorisations rejected the objection in this regard.
28. The 35 documents which the authority responsible for issuing authorisations wishes to disclose consist of laboratory studies, (semi-) field studies, a summary and two presentations. The laboratory studies contain data on experiments conducted on the effects of imidacloprid on bees. The (semi-) field studies contain the results of measurements of residues of the plant protection product and/or the active ingredient, which include metabolites and products which are released during the degradation or the reaction. It concerns — broadly speaking — residues which, as a result of the use of plant protection products or biocides as the case may be, are present on or in the treated seeds, leaves, pollen or nectar of a crop (which is derived from treated seed), honey and bees.
29. Thereupon both Bayer CropScience and the Bee Foundation appealed against that decision. In those proceedings the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal in matters of Trade and Industry) has referred the following questions to the Court:
‘(1) Do the provisions of Article 14 of the Plant Protection Directive and Article 63, respectively, read in conjunction with Article 59 of the Plant Protection Regulation and Article 19 of the Biocidal Products Directive, respectively, mean that a request for confidentiality, as referred to in the aforementioned Articles 14, 63 and 19 from an applicant referred to in those articles, must be decided on for each individual information source before or when granting the authorisation, or before or when amending the authorisation, respectively, by means of a decision which can be made known to interested third parties?
(2) If the previous question is answered in the affirmative: must Article 4(2) of the Environmental Information Directive be interpreted as meaning that in the absence of a decision as referred to in the previous question, the respondent, as a national authority, is obliged to disclose the environmental information requested when such a request is made after the granting of the authorisation or after the amendment of the authorisation respectively?
(3) How must the term “emissions into the environment” in Article 4(2) of the Environmental Information Directive be interpreted, given what the parties have stated in that regard in section 5.5 of this interlocutory judgment, against the background of the content of the documents as set out in section 5.2?
(4) (a) Can data which provide an estimate of the release into the environment of a product, its active ingredient(s) and other components as a result of the use of the product be deemed to be “information on emissions into the environment”?
(b) If so, does it matter whether those data have been obtained by means of (semi-) field studies or other types of studies (such as, for example, laboratory studies and translocation studies)?
(5) Can laboratory studies be deemed to be “information on emissions into the environment” when the test is aimed at examining isolated aspects under standardised conditions and in that framework many factors, such as, for example (climatological influences) are excluded and the tests are often conducted with — in comparison with customary practice — high dosages?
(6) In that regard, must residues after the application of the product in the experimental set-up, in, for example, the air or on the ground, leaves, pollen or nectar of a crop (which is derived from treated seed), in honey or on non-target organisms also be included under “emissions into the environment”?
(7) And is that also the case in respect of the degree of (dust) drift when the product is applied in the experimental set-up?
(8) Do the words “information on emissions into the environment”, as referred to in the second sentence of the second paragraph of Article 4(2) of the Environmental Information Directive, mean that, if there are emissions into the environment, the information source must be disclosed in its entirety and not be limited to the (measurement) data which may, where applicable, be derived therefrom?
(9) Does the application of the exception relating to commercial or industrial information within the meaning of the aforementioned Article 4(2)(d) require a distinction to be made between “emissions”, on the one hand, and “discharges and other releases into the environment” within the meaning of Article 2(1)(b) of the Environmental Information Directive, on the other hand?’
30. In addition to Bayer CropScience and the Bee Foundation, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of the Netherlands, the Kingdom of Sweden and the European Commission took part in the written procedure. Except for Greece and Germany, they also presented oral argument at the hearing on 4 February 2016.
IV – Legal assessment
31. The nine questions referred in the request for a preliminary ruling concern three subjects. First, it must be clarified whether the confidential treatment of the desired information requires the undertakings concerned to have requested such treatment at an early stage (first and second questions, see section A). Second, the scope of the notion of ‘information on emissions into the environment’ must be determined (third and ninth questions, see section B). Lastly, that notion must be applied to certain kinds of information (fourth to eighth questions, see section C).
A – The request for confidentiality
32. By its first two questions, which should be answered together, the referring court is seeking to ascertain whether a request for confidentiality as referred to in Article 14 of the Plant Protection Directive must be the subject of a decision which can be made known to interested third parties before or when granting the authorisation and, if so, whether environmental information requested must be disclosed when such a request is made only after the granting of the authorisation or the amendment of the authorisation.
33. The referring court thus explores the legal opinion put forward by the Bee Foundation according to which a declaration on confidentiality which — as in this case — was not made when a request for authorisation or amendment was submitted cannot be rectified subsequently. The information in question is not therefore to be kept confidential.
34. A prima facie indication in support of that opinion would seem to be given in the judgment in Stichting Natuur en Milieu. In that judgment the Court found that under Article 14 of the Plant Protection Directive the Member States and the Commission must ensure that information supplied by applicants for authorisations to place plant protection products on the market which involves industrial or commercial secrets is treated confidentially if the applicants so request and the Member State or the Commission accepts that their request is warranted. (12)
35. However, the Court cannot be understood to mean that confidential treatment is possible only if the applicants so request. Rather, that finding relates solely to the implementation of the procedure for making a request under Article 14 of the Plant Protection Directive.
36. That provision applies without prejudice to the Environmental Information Directive, the conditions of which must be complied with where a request for access to environmental information is made. (13) Under Article 4(2) of that directive, Member States may provide for such a request — except where it concerns information on emissions into the environment — to be refused if disclosure of the information would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided for by national or EU law.
37. Neither the wording nor the scheme of the Environmental Information Directive makes the Member States’ power to protect confidential commercial or industrial information contingent on a request for confidential treatment previously having been made. Furthermore, in the Plant Protection Directive the right to make such a request is envisaged only as a possibility. If no request is made, the only apparent legal consequence is that no decision is taken by the competent authorities at that point in time on the confidential treatment of the information in question.
38. However, even a decision on confidentiality does not release the competent authorities from the obligation to decide on a request for access to environmental information in compliance with Article 4 of the Environmental Information Directive. (14) Consequently, even the absence of a decision on confidentiality cannot prevent the competent authorities from applying Article 4.
39. No other conclusion can be drawn from the fourth subparagraph of Article 13(7) of the Plant Protection Directive. Under that provision, the holder of a previous authorisation may be ordered to make certain information available to subsequent applicants if this avoids the repetition of tests on animals.
40. The Bee Foundation infers from the use of the different terms ‘applicant’ and ‘holders of previous authorisations’ that only an ‘applicant’ may claim confidentiality. Anyone who is a ‘holder of previous authorisations’ can no longer request confidentiality (retroactively).
41. However, that inference cannot be drawn, as the fourth subparagraph of Article 13(7) of the Plant Protection Directive relates solely to the specific question of how to deal with a conflict between an applicant and the holder of previous authorisations in respect of knowledge obtained from experiments with vertebrate animals. On the other hand, the Plant Protection Directive does not employ the expression ‘holders of previous authorisations’ when dealing with any other matters, in particular the confidential treatment of information in the case of requests for access.
42. This relationship between the right to request confidentiality and the protection of commercial and industrial confidentiality by the Environmental Information Directive is also in keeping with the objectives of the relevant provisions. The right to make a request under Article 14 of the Plant Protection Directive is intended to make it easier for the competent authority to identify sensitive information. However, an infringement of this interest in efficiency does not justify the impairment of (overriding) legitimate economic interests of the undertakings concerned, which are to be protected under Article 4(2)(d) of the Environmental Information Directive by the confidentiality of commercial or industrial information.
43. In practice, the absence of a request for confidential treatment may nevertheless have consequences for the protection of the confidentiality of commercial or industrial information. Without such a request the competent authorities can, as a rule, assume that information which is not obviously to be protected as industrial and commercial secrets may be disclosed. In such cases, they are not required to consult the undertaking prior to disclosure.
44. Article 19 of the Biocidal Products Directive and Article 63 of the Plant Protection Regulation are largely similar — in so far as is relevant to the point of interest — to Article 14 of the Plant Protection Directive and do not therefore lead to any other conclusion.
45. Accordingly, the answer to the first two questions must be that the confidential treatment of information submitted in connection with authorisation procedures under the Plant Protection Directive or the Biocidal Products Directive does not require, in accordance with Article 4(2) of the Environmental Information Directive, that such confidential treatment was previously requested pursuant to Article 14 of the Plant Protection Directive, Article 19 of the Biocidal Products Directive or Article 63(1) of the Plant Protection Regulation.
B – The interpretation of the emissions clause
46. The request for a preliminary ruling centres on the emissions clause laid down in the fourth sentence of Article 4(2) of the Environmental Information Directive. Under that clause, Member States may not, by virtue of the exceptions in Article 4(2)(a), (d), (f), (g) and (h), provide for a request to be refused where the request relates to information on emissions into the environment. The disclosure of information on emissions cannot therefore be precluded by the protection of official proceedings, commercial secrets, personal data, persons who supplied the information on a voluntary basis or environmental interests.
47. However, the Environmental Information Directive itself does not define the expression ‘emissions into the environment’. The Aarhus Convention, which is partially implemented by the Environmental Information Directive, does not contain a definition of the expression either.
48. I have already expressed a position on this point in my Opinion in Stichting Natuur en Milieu, taking the view that both information on the release of substances as such and information on the consequences of such a release are to be regarded as information on emissions into the environment. (15) The Court, on the other hand, has not yet taken a position on this point.
49. Nevertheless, the ninth question posits a hypothesis which has not yet been discussed, namely whether a distinction must be made between emissions, on the one hand, and discharges and other releases, on the other hand (see section 1). I will then turn to the first part of the third question, which asks whether the term ‘emission’ corresponds to the definition in Article 2(5) of the IPPC Directive (16) or in Article 3(4) of the Industrial Emissions Directive (17) (see section 2). I will then answer the second part of the third question, namely whether the emissions clause should be limited to information on actual emissions (see section 3). The interpretation of the emissions clause thus developed nevertheless has to be qualified in the light of the Plant Protection Regulation (see section 4).
1. The distinction between emissions, discharges and other releases
50. By the ninth question, the referring court is seeking to ascertain whether the application of the exception relating to commercial or industrial information within the meaning of Article 4(2)(d) of the Environmental Information Directive requires a distinction to be made between ‘emissions’, on the one hand, and ‘discharges and other releases into the environment’, on the other hand. If this distinction did apply, the term ‘emission’ would have to be interpreted strictly.
51. Arguments in favour of the distinction can be taken from the legislative history and from the scheme of the Environmental Information Directive.
52. The Proposal for the Environmental Information Directive contained a provision in Article 4(2)(d) under which Member States could not provide, in the case of confidentiality of commercial or industrial information, for a request to be refused where the request relates to information on emissions, discharges or other releases into the environment which are subject to provisions of Community legislation. (18) Emissions, discharges and other releases of substances into the environment were therefore to be subject to a single provision.
53. In the Council Common Position the wording of that provision was limited to emissions with a view to moving more closely in line with the wording of the Aarhus Convention. (19)
54. The Parliament, on the other hand, continued to support the use of the terms ‘emissions’, ‘discharges’ and ‘other releases’ in parallel. (20) However, in the Conciliation Committee it was not able to assert that position with the result that Article 4(2) of the Environmental Information Directive was given its present wording.
55. It could be inferred from this that the emissions clause does not cover ‘discharges or other releases of substances into the environment’.
56. A variation on this position is put forward by Germany and Bayer CropScience, relying on Article 2(1)(b) of the Environmental Information Directive. Under that provision, ‘environmental information’ means any information on factors, such as emissions, discharges or other releases into the environment, affecting or likely to affect the elements of the environment referred to in Article 2(1)(a).
57. Germany and Bayer CropScience infer from this that the term ‘emissions’ must be interpreted strictly, otherwise the scope of the terms ‘discharges’ and ‘other releases’ would be eradicated.
58. I consider this to be a false distinction, however. A precise differentiation between emissions and discharges is neither consistent with the objective of the emissions clause nor can it be inferred from the meaning of the words in question.
59. Under Article 4(4)(d) of the Aarhus Convention, information on emissions which is relevant for the protection of the environment must be disclosed. A distinction between emissions, discharges and other releases does not have any clear relevance for the protection of the environment.
60. The meaning of the terms ‘emission’, ‘discharge’ and ‘release’ confirms this objective, as they are largely identical. There might be a tendency to limit emissions to releases into the atmosphere and discharges to liquid releases, but such a differentiation between the two terms would be rather artificial.
61. This can be seen from definitions of ‘emissions’ in other provisions of EU legislation, which largely equate the term with the term ‘release’. For example, Article 3(4) of the Industrial Emissions Directive defines emissions as ‘the direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into air, water or land’. Article 2(8) of the Environmental Liability Directive (21) describes emissions as the release in the environment of substances, preparations, organisms or micro-organisms. These definitions do not leave any scope for a distinction between emissions, discharges and other releases.
62. The combined use of the three terms in Article 2(1)(b) of the Environmental Information Directive is also not intended to limit the notion of emission. It must be assumed that it seeks, first and foremost, to provide the widest possible description of the release of substances into the environment. This is in keeping with the objective of the Environmental Information Directive, which, under Article 1(b), is to achieve the widest possible systematic availability and dissemination to the public of such information (22) The concept of environmental information is thus intended to be a broad one. (23)
63. For this reason, the terms ‘emissions’, ‘discharges’ and ‘other releases’ must overlap, a situation which is not unfamiliar in respect of the Environmental Information Directive. (24) On the other hand, they are not intended to establish sharply defined categories of environmental information which are subject to different legal consequences as far as access is concerned.
64. There can have been no other purpose of the temporary use of the three terms in the emissions clause during the discussions on the Environmental Information Directive. There is nothing to suggest that the notion of ‘emission’ should be limited or that the three notions should have different legal consequences. Rather, the decision not to use all three terms can be explained by reasons of consistency with the Aarhus Convention and by the fact that the term ‘emission’ already adequately describes the envisaged releases.
65. Accordingly, with regard to the emissions clause laid down in the fourth sentence of Article 4(2) of the Environmental Information Directive, a distinction should not be made between emissions, discharges and other releases.
2. The definition of emissions in other directives
66. The abovementioned definition of emissions in Article 3(4) of the Industrial Emissions Directive leads on to the first part of the third question, namely whether the emissions clause must be limited to emissions emanating from installations. In that case the use of plant protection products and biocidal products could not generally be regarded an emission, as the release of such products does not emanate from an installation.
67. This view has no basis in the wording of the Environmental Information Directive, as that directive does not refer to other directives for the definition of the term ‘emission’. On the contrary, the original Commission proposal to restrict the emissions clause to ‘emissions which are subject to provisions of Community legislation’, that is to say, to emissions as defined in other directives, was not accepted. (25)
68. Some parties nevertheless base the limitation of the emissions clause to emissions from installations on the Implementation Guide for the Aarhus Convention. It originally proposed using the definition in Article 2(5) of the IPPC Directive for the purposes of the application of the emissions clause in the Aarhus Convention. (26) In the second edition it refers instead to the identical definition of emissions in Article 3(4) of the Industrial Emissions Directive. (27) Both definitions limit the notion of emissions to releases from installations.
69. While the Guide may be regarded as an explanatory document, capable of being taken into consideration if appropriate among other relevant material for the purpose of interpreting the Convention, the observations in the Guide have no binding force and do not have the normative effect of the provisions of the Aarhus Convention. (28)
70. As far as the question at issue is concerned, it should be stated that the Guide does not give any reason why the definition contained in the IPPC Directive and the Industrial Emissions Directive in particular should apply. Regard could also be had, for example, to the definition in Article 2(8) of the Environmental Liability Directive, which does not focus on an installation as the origin of the emission, but only on whether it is a result of human activities.
71. There is also no particular connection between the IPPC Directive or the Industrial Emissions Directive and the right of access to environmental information that could justify applying the installation-based definition of emissions. It is true that the IPPC Directive and the relevant sections of the Industrial Emissions Directive contribute to the implementation of the Aarhus Convention. (29) Nevertheless, the provisions of the Aarhus Convention which relate to installations have a much narrower scope than the right of access to environmental information.
72. In addition, on closer examination of the emissions clause in Article 4(4)(d) of the Aarhus Convention it is clear that it is even inappropriate to restrict it to emissions from installations, as under that provision information on emissions which is relevant for the protection of the environment is to be disclosed. Yet the question whether emissions originate from installations is immaterial to their effects on the environment. One need only think of transport emissions. (30) Accordingly, the Guide also states, immediately before referring to the definition of emissions in the Industrial Emissions Directive, that in principle any information on emissions should fall under the emissions clause of the Convention. (31)
73. Since the emissions clause is to be broadly construed, it is more reasonable to take the different definitions of the term as an illustration and to disregard limitations based solely on the particular regulatory purpose.
74. It is thus evident from the definition of emission in Article 3(1) of the directive on the limitation of emissions of certain pollutants into the air from medium combustion plants (32) that the term ‘emission’ in any event covers the discharge of substances. On the other hand, the limitation in that directive to discharges into the air from combustion plants stems solely from the very narrow purpose of that directive and is therefore irrelevant.
75. The definition of emissions in Article 3(4) of the Industrial Emissions Directive confirms that emissions cover the release of substances. It is also clear from that provision that the release of vibrations, heat or noise is also to be included, as they may evidently be relevant for the protection of the environment within the meaning of Article 4(4)(d) of the Aarhus Convention. It is further clear that not only releases into air are relevant for the protection of the environment, but also releases into water or land.
76. On the other hand, the express limitation to emissions from installations merely fulfils the purpose of the Industrial Emissions Directive of regulating that particular form of emissions. That aim is of no significance for access to information on emissions which is relevant for the protection of the environment.
77. The definition of emission in Article 2(8) of the Environmental Liability Directive confirms that the determining factor cannot be whether emissions are released from installations. The determining factor is whether they result from human activities. Furthermore, it can be seen from that definition that the release of organisms or micro-organisms can also constitute an emission, as this may also be relevant for the protection of the environment. On the other hand, the fact that vibrations, heat or noise are not mentioned there should not be taken as a reason to exclude them from the emissions clause.
78. I therefore propose that the emissions clause should be understood as covering information on the release of substances, organisms, micro-organisms, vibrations, heat or noise into the environment, in particular into air, water or land, as a result of human activities.
3. Limitation to information on actual emissions
79. The second part of the third question is intended to clarify whether the emissions clause is to be limited to actual emissions. It concerns, first, the differentiation from hypothetical emissions (see section a) and, second, the question whether information on emissions covers only the emissions as such or also information on their effects (see section b).
(a) The differentiation from hypothetical emissions
80. The Commission, in particular, argues on the basis of my Opinion in Ville de Lyon that the emissions clause covers only actual emissions, but not hypothetical emissions. The information at issue does not relate to actual emissions.
81. It is true that in that Opinion I took the view that the protection of commercial confidentiality ends only when the substances to which the confidential information relates are released. (33)
82. The notion of environmental information in the case of emissions also requires that they affect or are likely to affect the elements of the environment referred to in Article 2(1)(a) of the Environmental Information Directive. If an effect is at most hypothetically possible, the directive is not applicable at all.
83. The Commission is therefore correct to state that information on hypothetical emissions does not fall under the emissions clause.
84. However, authorised plant protection products are generally released in accordance with their intended use. Consequently, information on their authorisation cannot be considered to concern hypothetical emissions.
(b) Information on the effects of emissions
85. A much more important question is whether the limitation of the emissions clause to actual emissions means that it only concerns information on emissions as such, that is to say only details of when and where a certain emission took place. In that case only very little information from authorisation procedures for plant protection products or biocidal products would fall under the emissions clause, essentially details regarding the release of the product in field tests. The results of such tests, on the other hand, would no longer be regarded as information on emissions.
86. As I have already stated in my Opinion in Stichting Natuur en Milieu and Others, (34) however, the consequences of emissions are the precise reason why information on emissions into the environment is generally disclosed. The public has an increased interest in finding out how they may be affected by an emission. Before the emission, effects on humans and the environment were rather unlikely or at least restricted to the sphere of the possessor of the commercial secrets. Released substances, on the other hand, necessarily interact with the environment and perhaps also with humans. The Implementation Guide for the Aarhus Convention therefore emphasises that the protection of commercial confidentiality should end when the substances to which the confidential information relates are released. (35) Accordingly, possible environmental effects are not to be construed as commercial secrets.
87. The situation of the Bee Foundation illustrates the need for this interpretation. It fears that certain plant protection products harm bees, to the protection of which it is dedicated. In order to address that concern, it needs the widest possible access to the authorisation dossier for those products, as only that dossier makes it possible to understand and verify the reasons for the authorisation of plant protection products and, if necessary, to object to them on the ground that insufficient account has been taken of risks to bees. (36)
88. Consequently, the emissions clause covers not only details of emissions as such, but also information on the effects of emissions.
4. The Plant Protection Regulation
89. The Plant Protection Regulation, which was adopted subsequent to the emissions clause, nevertheless changes the legal situation, as Article 63(2) catalogues information the disclosure of which would undermine the protection of commercial interests.
90. The Plant Protection Regulation is applicable ratione temporis to the main proceedings, as under Article 84(1) it has been in force since 14 June 2011 and had to be applied since then, as is confirmed by the transitional rule laid down in Article 80(5) for pending authorisation and amendment procedures.
91. In formal terms the catalogue of sensitive information under Article 63(3) of the Plant Protection Regulation does not preclude the application of the emissions clause in the Environmental Information Directive.
92. First, the catalogue under Article 63(3) of the Plant Protection Regulation is without prejudice to the Environmental Information Directive and does not therefore affect the emissions clause.
93. Second, the catalogue only makes clear what information falls under the protection of certain exceptions to the right of access. It is thus without prejudice to the question whether information should nevertheless be disclosed on grounds of overriding public interests. The emissions clause regulates precisely this question in respect of information concerning emissions into the environment on the basis of a legal presumption of an overriding public interest.
94. However, a formal approach like this would ignore the fact that in defining the catalogue the legislature ought to have known that the information arises in connection with the approval of plant protection products. If it had assumed that information from the approval procedure falls under the emissions clause because plant protection products are intended to be released into the environment, it would have defined a catalogue of highly sensitive information which would be rendered ineffective in practice, as such information would always be subject to the presumption of an overriding public interest in disclosure. As the Commission rightly observes, however, the view cannot be taken that the legislature intended to adopt a provision which was ineffective in practice.
95. It must therefore be assumed that the legislature implicitly reassessed the anticipated weighing of the relevant fundamental rights and principles and thus defined the scope of the emissions clause strictly.
96. This reassessment found in particular that information on the full composition of the plant protection product and on residues in the active substance should be protected. As was explained in Case C‑673/13 P, such information is sensitive above all because it makes it easier for conclusions to be drawn regarding the production process and thus for copying to take place. (37) Consequently, this reassessment by the legislature is consistent with the appraisal by the Court in ABNA and Others, (38) on which Bayer CropScience relies.
97. The emissions clause cannot thus be applicable to the information referred to in Article 63(2) of the Plant Protection Regulation. A decision on access to such information must therefore be taken pursuant to the third sentence of Article 4(2) of the Environmental Information Directive based on an assessment of the individual case.
98. It should be noted, for the sake of completeness, that Article 66 of the Biocidal Products Regulation contains further special rules on access to information, which are not, however, applicable ratione temporis to the biocidal product in the main proceedings.
5. Conclusion
99. The expression ‘information on emissions into the environment’ in the fourth sentence of Article 4(2) of the Environmental Information Directive is thus to be interpreted as covering information on the release of substances, organisms, micro-organisms, vibrations, heat or noise into the environment, in particular into air, water or land, as a result of human activities and information on the effects of such emissions, but not the information referred to in Article 63(2) of the Plant Protection Regulation.
100. This interpretation is not necessarily precluded either by the fundamental right of protection of commercial secrets in respect of information on emissions or by Article 39(3) of the TRIPS Agreement, as the legislature was permitted to give greater weight to the interest in respect of the environmental effects of emissions than to the commercial interests in the protection of commercial and industrial confidentiality. (39)
101. With particular regard to the TRIPS Agreement, the legislature was able to take the view that in the case of plant protection products and biocidal products the protection of the public necessitated access to the information in question and the catalogue of highly sensitive information in Article 63(2) of the Plant Protection Regulation guaranteed adequate protection. The question of unfair commercial use is independent of this and subject to specific rules, for example regarding ‘data protection’ under the plant protection legislation.
102. Lastly, it should be noted that, within the scope of the right of access to documents, the Court has repeatedly refrained from examining the individual case and recognised general presumptions. (40) While those presumptions concerned refusal of access in each case, presumptions in favour of access should be equally possible.
C – Various individual questions
103. Questions 4 to 8 in the order for reference concern various detailed problems to which an answer can be given relatively easily on the basis of the interpretation of the emissions clause developed above. All those questions concern information used to assess the consequences of the release of the products and prima facie the information in question does not fall under Article 63(2) of the Plant Protection Regulation, although this would have to be verified by the national court if objections are raised to that effect.
104. The expression ‘information on emissions into the environment’ within the meaning of the fourth sentence of Article 4(2) of the Environmental Information Directive thus covers in particular
– data which provide an estimate of the release into the environment of a product, its active ingredient(s) and other components as a result of the use of the product, irrespective of whether those data have been obtained by means of (semi-) field studies or other types of studies (such as, for example, laboratory studies and translocation studies);
– information on laboratory studies, when the test is aimed at examining isolated aspects under standardised conditions and in that framework many factors, such as, for example (climatological influences) are excluded and the tests are often conducted with — in comparison with customary practice — high dosages;
– residues after the application of the product in the experimental set-up, in, for example, the air or on the ground, leaves, pollen or nectar of a crop (which is derived from treated seed), in honey or on non-target organisms;
– the degree of (dust) drift when the product is applied in the experimental set-up;
– the information source in its entirety and not be limited to the (measurement) data which may, where applicable, be derived therefrom.
V – Conclusion
105. I propose that the Court answer the questions referred for a preliminary ruling as follows:
(1) The confidential treatment of information submitted in connection with authorisation procedures under Directive 91/414/EEC concerning the placing of plant protection products on the market or under Directive 98/8/EC concerning the placing of biocidal products on the market does not require, in accordance with Article 4(2) of Directive 2003/4/EC on public access to environmental information, that such confidential treatment was previously requested pursuant to Article 14 of Directive 91/414, Article 19 of Directive 98/8 or Article 63(1) of Regulation (EC) No 1107/2009 concerning the placing of plant protection products on the market.
(2) The expression ‘information on emissions into the environment’ in the fourth sentence of Article 4(2) of Directive 2003/4 is to be interpreted as covering information on the release of substances, organisms, micro-organisms, vibrations, heat or noise into the environment, in particular into air, water or land, as a result of human activities and information on the effects of such emissions, but not the information referred to in Article 63(2) of Regulation (EC) No 1107/2009.
(3) The expression ‘information on emissions into the environment’ within the meaning of the fourth sentence of Article 4(2) of Directive 2003/4 covers in particular:
– data which provide an estimate of the release into the environment of a product, its active ingredient(s) and other components as a result of the use of the product, irrespective of whether those data have been obtained by means of (semi-) field studies or other types of studies (such as, for example, laboratory studies and translocation studies);
– information on laboratory studies, when the test is aimed at examining isolated aspects under standardised conditions and in that framework many factors, such as, for example (climatological influences) are excluded and the tests are often conducted with — in comparison with customary practice — high dosages;
– residues after the application of the product in the experimental set-up, in, for example, the air or on the ground, leaves, pollen or nectar of a crop (which is derived from treated seed), in honey or on non-target organisms;
– the degree of (dust) drift when the product is applied in the experimental set-up; and
– the information source in its entirety and not be limited to the (measurement) data which may, where applicable, be derived therefrom.