Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The European Court of Justice held that The European Commission’s refusal to grant access to documentation containing information about the pesticide glyphosate cannot be justified by reference to the commercial confidentiality or the intellectual property rights of a natural or legal person. The Court reasoned that Article 6(1) of Directive No. 1367/2006 lays down a legal presumption that there is an overriding public interest in disclosure of a document relating to emissions into the environment, even if such disclosure might damage commercial interests.
This case analysis was contributed by Right2Info.org.
Stichting Greenpeace Nederland and Pesticide Action Network Europe (PAN Europe) requested access to several documents relating to the first authorization of the placing of glyphosate on the market as an active substance, granted under Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market. The Commission refused to grant access to the documents basing its opinion on the Federal Republic of Germany’s refusal. The decision stated that the requested information was subject to an exception envisaged under Article 4(2) of Regulation No 1049/2001, namely the protection of the commercial interests of a natural or legal person. In the Commission’s view, disclosure of the information contained in the document would lead to violation of commercial interest and intellectual property rights of the operators, since the information disclosed “would allow competing undertakings to copy the production method”.
The applicants maintained in front of the Court of Justice that that this exception must be waived because of an overriding public interest in disclosure of the information requested, which relates to emissions into the environment.
The Court observed that Regulation (EC) 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information establishes a legal presumption that “an overriding public interest in disclosure exists where the information requested relates to emissions into the environment.” Accordingly, the Court ruled that an institution is obliged to disclose documents relating to emissions into the environment, even if such disclosure is liable to undermine “the protection of the commercial interests of a particular natural or legal person, including that person’s intellectual property, within the meaning of Article 4(2), first indent, of Regulation No 1049/2001”.
The Court noted that Article 6(1) of Regulation 1367/2006 needs to be read on its prima facie meaning. It rejected the Commission’s attempt to strike a balance between the protection of the fundamental right to property and the protection of other fundamental rights because its line of argument implied rejection of the application of an overriding interest altogether and, if accepted, would amount to “dis-applying a clear and unconditional provision of a European Union regulation, which is not even claimed to be contrary to a superior rule of law”.
The Court favored a broad interpretation of the notion of ‘information relating to emissions into the environment” and, accordingly, ordered disclosure given that the information requested related “in a sufficiently direct manner to emissions into the environment”.
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