Action brought on 6 May 2011 - ClientEarth and International Chemical Secretariat v ECHA

(Case T-245/11)

Language of the case: English

Parties

Applicants: ClientEarth (London, United Kingdom) and The International Chemical Secretariat (Gothenburg, Sweden) (represented by: P. Kirch, lawyer)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

Declare the defendant in violation of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters;

Declare the defendant in violation of Regulation (EC) No 1367/2006¹;

Declare the defendant in violation of Regulation (EC) No 1049/2001²;

Annul the decision set out in the defendant's confirmatory reply of 4 March 2011 to withhold the requested documents; and

Order the defendant to pay the applicants' costs, including the costs of any intervening party.

Pleas in law and main arguments

By means of their application, the applicants seek, pursuant to Article 263 TFEU, the annulment of the decision set out in the defendant's confirmatory reply of 4 March 2011 not to grant access to documents containing the names and contact details of the registrants (manufacturers/importers) of and important number of alleged dangerous substances for human health and the environment and the tonnage in which they are placed on the EU market.

In support of the action, the applicants rely on five pleas in law.

First plea in law, alleging that the contested decision violates Article 8(2) of Regulation No 1049/2001 for not replying within the prescribed time limits to the applicants' confirmatory application and not having a justification for not doing so.

Second plea in law, alleging that the contested decision violates Article 4(4) and Article 4(6) of Regulation No 1049/2001 for not consulting the registrants in order to assess whether a commercial interest in non disclosure exists and not providing sufficient grounds to prove that it was clear that the documents did not have to be disclosed.

Third plea in law, alleging that the contested decision violates Article 4(1) (2) (3) and (4) of the Aarhus Convention for failure to provide the applicants access to the requested information. The contested decision also violates Article 6(1) of Regulation No 1367/2006 for failure to interpret the exceptions provided under Article 4 of Regulation No 1049/2001 in a restrictive way taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment.

Fourth plea in law, alleging that the contested decision violates Article 4(3) first subparagraph of Regulation No 1049/2001 for failure to demonstrate that the disclosure of the requested documents would seriously undermine ECHA's internal decision-making process, as well as Article 4(2) first indent of the same act for failing to demonstrate the existence of a commercial interest justifying non-disclosure.

Fifth plea in law, alleging that the contested decision violates Article 4(3) second subparagraph and Article 4(2) first subparagraph of Regulation No 1049/2001 for failure to assess whether there is an overriding public interest in disclosure and to provide a detailed statement of reasons for such a refusal.

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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 2006 L 264, 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 2001 L 145, p. 43)