Case C-442/14, Bayer CropScience – Bee deaths? Buzz Off! The data requested is confidential [judgment 2016, ECLI:EU:C:2016:890]

Citizens can request public entities to disclose information about ‘emissions into the environment’ under the EU’s ‘Access to Environmental Information’ Directive 2003/4. However, it is unclear what constitutes an emission into the environment. Equally unclear is what a public entity can do when a company claims that the data being requested from the entity is of a commercial and industrial nature and is thus covered by confidentiality.

Facts
Pesticides and biocides are designed to protect plants. They are designed to kill non-plant life. The inherent danger to humans and other forms of life means that before these products can be put on the market they must be checked for compliance with EU safety laws.

In Holland, the body that does the checking and then issues the product authorisations is known, in English, as the Dutch ‘Board for the Authorisation of Plant Protection Products and Biocides’ (‘the Board’).

The Board is in a peculiar position, however. In order to decide whether to issue a market authorisation, the Board has access to a welter of scientific information. Yet the Board is also a public body, which means that it can also receive requests for information from the public. In some circumstances, the Board may be required by law to disclose the requested information.

This is the regulatory backdrop to the present reference in which a well-known Dutch NGO has asked for information about the environmental effects of using a particular product that the Board has already authorised.

More specifically, the NGO is a charitable foundation known as ‘The Bees’. As its name implies, it represents the interests of wild bees and honey bees. It promotes the dissemination of knowledge about bees and bumble bees to the Dutch public at large. (Although I refer to ‘The Bees’, the Dutch NGO’s official name is ‘de Bijenstichting’.)

Of late, The Bees have been concerned about general products containing an insecticide known as imidacloprid, and a plant protection product known as Merit Turf made by Bayer CropScience (this company owns many of the plant protection products benefiting from the Board’s authorisations).

Given their concerns about these products and their effects on bees, The Bees wrote to the Board in 2011 requesting access to specific pieces information. These requests related to a number of field studies and lab reports which had studied the effects of those products on bees. It was information which had been given to the Board by applicant companies when they were applying for the Board’s authorisation of the plant protection products, and a biocide.

In 2012, the Board turned down The Bees’ requests for those specific pieces of information. The Bees took umbrage, and lodged an objection to the Board’s decisions – an objection duly handled by the Board in accordance with Dutch law.

The Board reconsidered its position and this time it decided to allow access to 35 of the documents which had been requested by The Bees. It was a decision however that would not apply to the remaining 49 documents which The Bees had also requested. The reason for the Board’s refusal was the confidential nature of the documents.

The Board’s refusal to release all of the information which had been requested prompted The Bees to lodge a further appeal, this time to the relevant Dutch appellate body which deals with a broad range of public administrative law appeals of a commercial nature, the ‘College van Beroep voor het bedrijfsleven’ (‘the College’).

At the Appellate Body
The College heard legal submissions from The Bees, the Board and also Bayer CropScience (the latter being keen that the information was not released because it contained information about other companies and their applications).

In 2013, the College wrote to the parties warning them it was going to make a reference to the CJEU. The essence of the College’s order is as follows. The Bees’ had made requests for information relating to ‘environmental information’. This concept is defined in the EU’s public access to environmental information Directive 2003/4/EC. However, the Directive also allows requests for environmental information to be turned down.

Article 4 provides:

Exceptions
1. Member States may provide for a request for environmental information to be refused if:
(a) the information requested is not held by or for the public authority to which the request is addressed. In such a case, where that public authority is aware that the information is held by or for another public authority, it shall, as soon as possible, transfer the request to that other authority and inform the applicant accordingly or inform the applicant of the public authority to which it believes it is possible to apply for the information requested;
(b) the request is manifestly unreasonable;
(c) the request is formulated in too general a manner, taking into account Article 3(3);
(d) the request concerns material in the course of completion or unfinished documents or data;
(e) the request concerns internal communications, taking into account the public interest served by disclosure.

Where a request is refused on the basis that it concerns material in the course of completion, the public authority shall state the name of the authority preparing the material and the estimated time needed for completion.

The College also noted that there was another plank of EU legislation was which relevant to the present case. Namely, when it came to plant protection products, there was Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ [1991] L230/1).

Article 14 of the plant protection products Directive is a specific provision dealing with confidentiality and plant protection products, and states:

Member States and the Commission shall, without prejudice to Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment (6), 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 authorization 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:
– the names and content of the active substance or substances and the name of the plant protection product,
– the name of other substances which are regarded as dangerous under Directives 67/548/EEC and 78/631/EEC,
– physico-chemical data concerning the active substance and plant protection product,
– any ways of rendering the active substance or plant protection product harmless,
– a summary of the results of the tests to establish the substance’s or product’s efficacy and harmlessness to humans, animals, plants and the environment,
– recommended methods and precautions to reduce handling, storage, transport, fire or other hazards,
– methods of analysis referred to in Articles 4 (1) (c) and (d) and 5 (1),
– methods of disposal of the product and of its packaging,
– decontamination procedures to be followed in the case of accidential spillage or leakage,
– first aid and medical treatment to be given in the case of injury to persons.
If the applicant subsequently discloses previously confidential information, he shall be required to inform the competent authority accordingly.

In light of these two planks of the two EU law Directives, the College deduced that before such a request for environmental information could be turned down, a body needed to perform a balancing exercise between on the one hand, the public interest; and on the other, a specific interest of confidentiality – at least, that was the general approach.

However, when it came to a refusal relating to information about the traces and residues of pesticides and their subsequent presence in bees and honey, that information concerned ‘emissions into the environment’. Consequently, there was a special balancing exercise which needed to be undertaken. The balance favoured disclosure. The permitted grounds for refusing information about emissions were very much narrower in scope.

With that qualitative division in mind, the College looked at how the Board had struck the balance in respect of information about ‘an emission in to the environment’. The College did not criticise the Board’s decision. The Board had used the definition of ‘emissions into the environment’ in Dutch administrative law whereby an emission into the environment related only to that which was directly emitted into the environment. Properly applied here, the Board had felt it appropriate to publish 35 of the documents requested by The Bees. (For the purposes of understanding the present reference, the definition of ‘emissions into the environment’ in Dutch administrative law originates in Advocate General Kokott’s Opinion in an earlier Dutch plant protection and IP law case, Case C-266/09, Stichting Natuur en Milieu and Others v College voor de toelating van gewasbeschermingsmiddelen en biociden ECLI:EU:C:2010:779; and the Opinion of Kokott AG, paras 86-96).

The College then turned to how the Board had decided to refuse disclosure of the remaining 49 documents requested by The Bees. It noted that those requests concerned information which did not relate to emissions into the environment. Consequently, the Board had set the balance back towards favouring confidentiality (data protection, the interests of the holder of the plant protection authorisation, the interests of the right holder in the data, the interest of the holder of the copyrights, and also the sensitive commercial, financial and investment nature of the information contained in those reports). The College noted that on that basis, the Board had refused disclosure.

However, the College was not convinced that that was right. It had doubts surrounding how EU law should be applied. Namely, The Bees’ approach was that companies applying for plant protection authorisations could and should have indicated at the time of their application which information was commercially or industrially sensitive. That could and should have been assessed by the Board, and if necessary challenged if the company. However, The Bees also contended that once an application for a plant protection authorisation had been granted by the Board, then it belonged to the public domain, together with all of the relevant information, which also became public. With that in mind, The Bees ran the argument that if a company had submitted information to the Board in the course of its application and had failed to identify which pieces of information were commercially or industrially sensitive, then it would be wrong in law for that company then to subsequently prevent the Board from releasing the information to a third party – after all, it was a legitimate request for environmental information and the information was already in the public domain.

The College had its doubts with that argument. Its doubts and difficulties centred on the relevant time. It did not seem wrong to the College that the Board had undertaken its balancing act at the moment when the specific information request was received. Conceivably, facts and circumstances could have changed from the time when the application for authorisation was made and the time when that request for information was made.

However, if the material time was that of the environmental information request, and if the Board was minded to disclose the information but realised it was covered by confidentiality, then there was a risk of a real delay arising in responding to the request because the authorisation holder might well mount a legal challenge to that decision.

Further doubts arose in the mind of the College. Should the information be considered as belonging to the public domain? What if the information request was refused, for that would make the information requested no longer subject to public discussion. Should such factors also be taken into account when performing the requisite balancing exercise? The correct interpretation of EU law was unclear to the College.

Questions Referred
My unofficial translation of the questions asked by the College van Beroep voor het bedrijfsleven reads:

1. Does Article 14 of Directive 91/414, or Article 63 and Article 59 of the plant protection products Regulation 1107/2009 of 21 October 2009, or Article 19 of Directive 98/8
mean that a request for confidentiality as defined in the aforementioned Articles 14, 63 and 19, is to be determined per source of information before or at the time of the granting of the authorisation, or rather before or at the amendment of the authorisation by means of a decision recognising third party interests?

2. If the answer to the previous question is in the affirmative, is Article 4(2) of the Environmental Information Directive to be interpreted as meaning that in the absence of a decision as defined in the previous question, that the defendant national authority must disclose the requested information in the event that such a request is made either after the grant of the authorisation or after the amendment of the authorisation?

3. How is the concept of ‘emissions into the environment’ in Article 4(2) of the Environmental Information Directive to be interpreted in light of paragraph 5.5 of the referring order and against the backdrop of the content of the documents as indicated in paragraph 5.2 as explained by the relevant parties?

4a. Is data which estimates the emission of a product, its active ingredient(s), and other elements, into the environment resulting from the use of a product to be considered as ‘information about emissions into the environment’?

4b. If so, then does it matter whether this data is obtained from (semi) field studies and other sorts of studies (such as for example laboratory reports and translocation studies)?

5. Does ‘information about emissions into the environment’ cover laboratory studies in which the trial is designed to research discrete aspects under standard conditions and in that framework many factors are excluded (such as for example climatic conditions) and the trials are often conducted with doses which are comparably higher than those used in practice?

6. In that context, do ‘emissions into the environment’ include the post-application residues – for example in the air or the soil, leaves, pollen or nectar of a plant (that originates from dressed seed) – of the trialled product in honey or on non-target organisms?

7. And does that also apply to the degree of dust and dust drift when applying the product in the trial?

8. Do the words ‘information about emissions into the environment’ as defined in Article 4(2)(second para, second sentence) of the Environmental Information Directive mean that if there are emissions into the environment, that the complete source of information must be disclosed and not only the measurement data or data from which it is possible that this can be distilled?

9. For the application of the commercial or industrial information exception in the aforementioned Article 4(2)(d), is a distinction to be made between on the one hand ‘emissions’; and on the other, ‘discharges and other releases into the environment’ as defined in Article 2(1)(b) of the Environmental Information Directive?

Update – 15 December 2014
Although not a preliminary reference, the CJEU is dealing with another ‘Aarhus Convention’ dispute. There is a cluster of cases docketed as Joined Cases C-401/12 P, C-402/12 P, C-403/12 P, Council v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht. The potential importance of these cases can be inferred from the fact that the case is being heard by the Grand Chamber. Advocate General Jääskinen has already handed down his Opinion in May 2014 and various language versions of the Opinion are available. Regrettably, seven months on, there is still no English version of his Opinion. Perhaps the English version of the Opinion will be made available when the judgment of the Grand Chamber is handed down on 13 January 2015?