European Union: EU Court Of Justice Landmark Rulings On Access To Environmental Information

Last Updated: 8 December 2016
Article by Claudio Mereu and Koen Van Maldegem

On 23 November 2016, the Court of Justice of the European Union (''CJEU'') delivered two important judgments in cases C-442/14 Bayer CropScience and Stichting De Bijenstichting and C-673/13 PCommission v Stichting Greenpeace Nederland and PAN Europe which, although factually different, address the same issue – i.e. the right of access to environmental documents, and in particular, the scope of the concept of ''information on emissions into the environment''.

1. Background

In Case C-442/14, Bijenstichting, a bee-protection association in the Netherlands, submitted a request to the Dutch plant protection and biocidal products authority (''ctgb'') for the disclosure of 84 documents concerning marketing authorisations of certain plant protection products. Since Bayer was holding a large number of those authorisations, it objected to that disclosure, on the ground that disclosure would infringe its copyrights and adversely affect the confidentiality of commercial or industrial information. In 2013, ctgb provided access to 35 of the 84 requested documents, on the ground that they contained information on emissions into the environment under Directive 2003/4/EC on public access to environmental information, and regardless of the fact that such a disclosure could have an adverse effect on the confidentiality of commercial or industrial information. According to this directive, commercial and industrial confidentiality may not be invoked to preclude the disclosure of such information. Both Bijenstichting and Bayer appealed the ctgb's decision before a national court, which referred the matter for a preliminary ruling to the CJEU.

In Case C-673/13 P, the associations Stichting Greenpeace Nederland and Pesticide Action Network Europe (''PAN Europe'') submitted a request to the Commission under Regulation (EC) 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. The request concerned access to a number of documents relating to the initial marketing authorisation for the pesticide substance glyphosate. The Commission granted access to those documents, with the exception of some parts of the draft assessment report (''DAR'') prepared by the Rapporteur Member State (''RMS''), Germany. The Commission justified its refusal on the ground that the document in question contained confidential information on intellectual property rights of applicants for the glyphosate authorisation – i.e. the detailed chemical composition of the substance, its manufacturing process, and the impurities and composition of the finished products.

The two associations brought an appeal before the EU General Court, which ruled in their favour (case T-545/11) stating that certain parts of the requested document contained information relating to emissions intothe environment, and therefore the Commission was not entitled to invoke the confidentiality of commercial and industrial information and should have granted the associations access to those parts of the file.

2. Ruling

In the two judgments, the CJEU clarified what must be understood by ''emissions into the environment'' and ''information on [or which relates to] emissions into the environment''within the meaning of Directive 2003/4/EC and Regulation (EC) No 1367/2006. Specifically, according to the Court:

  • The notion of ''emissions into the environment' includes the release into the environment of products or substances,such as plant protection products or biocides or active substances contained in those products, to the extent that that release is actual or foreseeable under normal or realistic conditions of use of the product or substance;
  • Consequently, this notion is indistinguishable from the concepts of ''release'' and ''discharge'' and cannot be restricted to emissions emanating from industrial installations (e.g. factories and power stations) but also coversemissions resulting from the spraying of a product, such as a plant protection product or biocide, into the air or its use on plants, in water or on soil. This approach is in line with the objective of the regulation and directive on environmental information which is to disclose that type of information as widely as possible.
  • The regulation and directive cover not only information relating to actual emissions (i.e. emissions which are actually released into the environment when a plant protection product or a biocide is used on plants or in soil), but also information on foreseeable emissions from products into the environment.
  • However, the Court considers that the concept of information on emissions into the environment does not include information relating to purely hypothetical emissions – e.g., data from tests to study the effects of the use of a dose of a product which is significantly above the maximum dose for which the marketing authorisation was granted and which is used in practice.
  • Finally, the concept of ''information on emissions into the environment'' must be interpreted as covering not only information on emissions as such (i.e. information relating to the nature, composition, quantity, date and place of those emissions) but also information enabling the public to check whether the assessment of actual or foreseeable emissions, on the basis of which the competent authority authorised the product or substance in question, is correct, as well as the data relating to the medium or long-term effects of those emissions on the environment. In particular, that concept covers information relating to residues in the environment after the product has been used, as well as studies on the measurement of the substance's drift during that use, irrespective of whether those data come from studies performed entirely or in part in the field, from laboratory studies or translocation studies.

On the basis of the foregoing, the CJEU set aside the judgment of the General Court in case C-673/13 P and referred back the case for a second review, stating that Regulation (EC) No 1367/2006 covers information which ''relates to emissions into the environment'', that is to say information which concern or is relevant to such emissions and not information containing any link at all, direct or indirect, to emissions into the environment.


The conclusions reached by the CJEU in these two judgments have far-reaching consequences for EU manufacturers of plant protection products and biocides.

Firstly, the CJEU interprets the notion of ''information on emissions into the environment" in an extensive way such that a wide range of information concerning the assessment of plant protection products and biocides may be made available to the public.

Secondly, the exceptions to the access of environmental information are to be construed narrowly. Notably, according to these two judgements, confidential information linked to the commercial or industrial interests, such as the detailed chemical composition of the substance, its manufacturing process, and the impurities and composition of the finished products, may have to be disclosed if such information is considered to be related to the "emissions into the environment".

It is also worth noting that some Member States have followed a similar approach in the past. For example, the French Commission on Access to Administrative Documents (''CADA'') interprets the notion of "information on emissions into the environment'' in a similar way as the CJEU. Specifically, in accordance with Article L. 124-5 of the French code of the environment, CADA considers that information which is related to the impact of the use of plant protection products on human beings, animals and plants also corresponds to information related to the emission of substances into the environment which is disclosable.

Finally, it should be highlighted that these two judgments confirm the current trend which the CJEU follows regarding access to environmental documents. Indeed, according to the CJEU, exceptions to disclosure must be applied restrictively as they derogate from the general principle of widest possible access to documents on emissions to the environment.

Thus, in a judgment of 20 September 2016 (PAN Europe v Commission, case T-51/15), the General Court annulled the Commission's decision as it refused access to environmental documents on the basis of the exception in the first subparagraph of Article 4.3 of Regulation 1049/2001 (i.e. linked to the institution's decision-making process) because the Commission had incorrectly based its refusal to disclose the documents at issue on that exception.

The General Court considered that the application of such exception to give access to environmental information "requires it to be established that access to the document in question drawn up by the institution for its internal use was likely, specifically and actually, to undermine protection of the institution's decision-making process, and that the risk of that interest being undermined was reasonably foreseeable and not purely hypothetical " (underline added). The General court considerably restricted the scope of application of such exception linked to the decision-making process of an institution.

Notwithstanding the above, it is important to note that the CJEU has excluded from the concept of "emissions into the environment" information that relates to purely hypothetical emissions, e.g., data resulting from tests conducted at higher doses than those actually authorised and used in practice.

This caveat is important as various studies on plant protection products, or substances contained therein, are typically conducted at much higher doses than those ultimately authorised and actually used in practice, and to which a safety factor may be added. This approach is followed routinely in the context of the assessment of plant protection products in order to derive certain toxicological/ecotoxicological endpoints for the risk assessment. This caveat could entail the application of a specific derogation from the general rule of access to documents, in cases where tests are not based on realistic or reasonably foreseeable conditions of use of the plant protection product or substance.

Furthermore, the definition of "emissions into the environment" is more specific than the definition of "environmental information".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions