Case T‑545/11 RENV
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 — Exception relating to the protection of the commercial interests of a third party — 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 (Fourth Chamber), 21 November 2018
1. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Documents originating from a Member State — Power of the Member State to request the institution not to disclose documents — Competence of the institution — Review of the merit of the refusal of access having regard to the exceptions set out in that regulation — Scope — Obligation to state reasons
(European Parliament and Council Regulation No 1049/2001, Arts 4(1) to (3) and 5)
2. EU institutions — 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 — Risk of undermining the commercial interests of the persons concerned in the event of disclosure — Irrelevant
(European Parliament and Council Regulations No 1049/2001, Art. 4(2), 1st indent, and No 1367/2006, Art. 6(1))
3. EU institutions — Right of public access to documents — Request for access concerning environmental information — Regulation No 1367/2006 — Information relating to emissions into the environment — Concept — Broad interpretation
(Art. 339 TFEU; Aarhus Convention, Art. 4(4)(d); European Parliament and Council Regulations No 1049/2001, Art. 4(2), 1st indent, and No 1367/2006, recital 2 and Arts 2(1)(d), and 6(1))
4. EU institutions — Right of public access to documents — Request for access concerning environmental information — Regulation No 1367/2006 — Information relating to emissions into the environment — Concept — Documents relating to the first authorisation of the placing on the market of the active substance ‘glyphosate’ — Not included
(European Parliament and Council Regulations No 1367/2006, Art. 6(1), and No 1107/2009, Art. 29; Council Directive 91/414, Annex I)
5. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Strict interpretation and application — Obligation to make a specific and individual examination for documents covered by an exception — Scope
(European Parliament and Council Regulation No 1049/2001, Art. 4)
6. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of commercial interests — Refusal to grant access — Obligation to state reasons — Scope
(European Parliament and Council Regulation No 1049/2001, Art. 4(2), 1st indent)
7. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Documents originating from a Member State — Power of the Member State to request the institution not to disclose documents — Jurisdiction of the EU judicature to review the merit of the refusal of the institution concerned — Scope
(European Parliament and Council Regulation No 1049/2001, Arts 4(1) to (3) and 5)
8. International agreements — European Union Agreements — Convention on access to information, participation of the public in the decision-making process and access to justice in environmental matters (Aarhus Convention) — Provisions of that convention concerning grounds for refusing an application for access to environmental information — No direct effect
(Aarhus Convention, Art. 4(4))
9. International agreements — European Union Agreements — Convention on access to information, participation of the public in the decision-making process and access to justice in environmental matters (Aarhus Convention) — Effects — Primacy over secondary legislation of the European Union — Interpretation of secondary law having regard to international agreements concluded by the EU — Obligation of conforming interpretation — Limits
(Aarhus Convention, Art. 9(3))
1. See the text of the decision.
(see paras 36-41, 43, 44)
2. The first sentence of Article 6(1) 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 the disclosure of a document where the information requested relates to emissions into the environment, even if there is a risk of undermining the interests protected by Article 4(2), first indent, of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents.
(see para. 49)
3. See the text of the decision.
(see paras 56-58)
4. Documents relating to the first authorisation of the placing on the market of glyphosate as an active substance, granted under Directive 91/414 concerning the placing of plant protection products on the market, do not contain information relating to emissions into the environment within the meaning of the first sentence of Article 6(1) 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.
An active substance such as glyphosate must be approved at EU level before being included in plant protection products, which must, for their part, necessarily be subject to the authorisation of a Member State in order to ensure that the composition of those products meets the authorisation requirements laid down in Article 29 of Regulation No 1107/2009 concerning the placing of plant protection products on the market. Furthermore, there is still, in principle, no link between the assessment and approval of the active substance glyphosate at EU level and the actual subsequent use that will be made of that substance. Approval of the active substance glyphosate does not in any way include authorisation for the isolated use of that substance. Use will be made of that substance only once it is included in a plant protection product authorised for placement on the market by a Member State. Therefore, while it is true that an active substance such as glyphosate is inevitably released into the environment at some stage of its life cycle, that is the case only via a plant protection product subject to the authorisation procedure.
In those circumstances, it must be held that it is only at the stage of the national authorisation procedure to place a plant protection product on the market that the Member State assesses any emissions into the environment and that specific information emerges concerning the nature, composition, quantity, date and place of the actual or foreseeable emissions, under such conditions, from the active substance and the specific plant protection product containing it. In that regard, since the use, the conditions of use and the composition of a plant protection product authorised by a Member State on its territory may be very different from those of products evaluated at EU level during the approval of the active substance, the information in documents relating to the first authorisation of the placing on the market of glyphosate as an active substance does not relate to emissions whose release into the environment is foreseeable and has, at the very most, a link to emissions into the environment. Accordingly, such information is excluded from the concept of information relating to emissions into the environment.
(see paras 82, 88, 90, 91)
5. See the text of the decision.
(see paras 97-99, 107)
6. See the text of the decision.
(see paras 100, 101)
7. See the text of the decision.
(see para. 103)
8. See the text of the decision.
(see para. 105)
9. See the text of the decision.
(see para. 106)