The European Food Safety Authority (EFSA) refused to grant public access to several studies on the toxicity and carcinogenicity of glyphosate.
In two judgments of 7 March 2019 in cases T-716/14 and T-329/17, the General Court of the EU established a presumption that the disclosure of information which ‘relates to emissions into the environment’, with the exception of information relating to investigations, is deemed to be in the overriding public interest, compared with the interest to protect the commercial interests of a particular natural or legal person, with the result that the protection of those commercial interests may not be invoked to preclude the disclosure of that information.
In the cases at hand, the General Court examined whether the information contained in the requested studies constitutes information which ‘relates to emissions into the environment’ for the purposes of the Aarhus Regulation.
The General Court considered that an active substance contained in plant protection products, such as glyphosate, is in the course of normal use intended to be discharged into the environment by virtue of its function, and its foreseeable emissions cannot, therefore, be regarded as purely hypothetical. In any event, glyphosate emissions cannot be classified as merely foreseeable emissions. Moreover, the requested studies formed part of the dossier for the renewal of approval of the active substance glyphosate.
In that respect, the General Court noted that glyphosate has been listed as an active substance since 1 July 2002. Since that date, glyphosate has been authorised in Member States and has actually been used in plant protection products. Glyphosate is one of the most widely-used herbicides in the EU. Glyphosate emissions into the environment are therefore a reality. That active substance is present particularly as residue in plants, water and food. Hence, the requested studies are studies which are intended to establish the carcinogenicity or toxicity of an active substance which is actually present in the environment.
The General Court concluded that EFSA cannot argue that the requested studies do not concern actual emissions or the effects of actual emissions.
With regard to EFSA’s argument that a link with emissions into the environment is not sufficient for those studies to be covered by the Aarhus Regulation, the General Court stated that it is clear from the case law of the Court of Justice that the concept of information which ‘relates to emissions into the environment’ for the purposes of the Aarhus Regulation is not limited to information which makes it possible to assess the emissions as such, but also covers information relating to the effects of those emissions.
Therefore, the public must have access not only to information on emissions as such, but also to information concerning the medium to long-term consequences of those emissions on the state of the environment, such as the effects of those emissions on non-targeted organisms. The public interest in accessing information on emissions into the environment is specifically to know not only what is, or foreseeably will be, released into the environment, but also to understand the way in which the environment could be affected by the emissions in question.
By way of consequence, the General Court annulled EFSA’s decisions denying access to the aforementioned studies.
Please contact Pierre de Bandt or Raluca Gherghinaru for further information on this case and/or for general legal advice relating to access to documents of the EU’s institutions.