Veit Koester Presentation on the application of the

Veit Koester Presentation on the application of the restrictions on access to environmental information provided by article 4 (4) (d)-(f) of the Convention (agenda item 3) Task Force on Access to Information Geneve, 3 -5 December 2014

Article 4 4. A request for environmental information may be refused if the disclosure would adversely affect: (d) The confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest. Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed; (e) Intellectual property rights; (f) The confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for in national law;

Article 4 (4), last para. The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.

Questions to be asked when applying Article 4 (4)(d) on commercial or industrial information. Is the information requested: 1) information on emissions relevant for the protection of the environment? 2) of a commercial/industrial nature? 3) subject to confidentiality according to domestic law (provided that it is secret)? 4) in order to protect a legitimate economic interest? and in addition: 5) is the economic interest at stake legitimate? 6) would disclosure adversely affect the confidentiality?

Relevant findings of the Compliance Committee (CC) referred to in the Implementation Guide 1. ACCC/C/2005/15 (Romania) (Implementation Guide p. 85) • no justification for applying copyright so as to exclude EIA studies from public disclosure 2. ACCC/C/2007/21 (EU) (Implementation Guide p. 90) • a significant public interest in disclosure and a relatively small amount to the interests involved requires disclosure 3. ACCC/C/2008/30 (Moldova) (Implementation Guide p. 86) • confidentiality of information received from rent holders and contracts of rent of lands of a State Forestry Fund goes beyond the limits of Article 4 (4)

Other relevant findings of the CC ACCC/C/2010/51 (Romania) adopted by MOP-decision V/9 j (2014) 1. clearly defined criteria for characterization of “commercial or industrial information” in national law 2. Article 4 (4)(d) may be applied to protect “legitimate economic interests” of state bodies or even entire states 3. study on possible locations for a nuclear power plant not “commercial or industrial information”

Case-law of the European Court of Justice – some general remarks 1. EU is a Party to the Convention 2. hence, the Convention according to the jurisprudence of the ECJ is binding upon EU institutions and Member States, and 3. EU implementing legislation must be in conformity with the provisions of the Convention

C-266/09 Judgement of the EU-Court of 16 December 2010 (Stickting Natuur en Milieu and Others v. College voor de toelating van gewashbeschermingsmiddelen en biosiden) Preliminary ruling in respect of, inter alia, the question whether: 1. Article 4 (2) of the Information Directive requires that the balancing test (confidentiality v. public interest) is carried out at the application level 2. or may be effected in national legislation?

C-71/10 Judgement of the EU Court of 28 July 2011 (Office of communications v. Information Commissioner) Preliminary ruling 1. in respect of a situation where more than one of the exemptions in Article 4 (2) of the Information Directive are applicable 2. should the balancing test be carried out for each exemption viewed separately or may the cumulative effect of a number of the grounds for refusal be taken into account?

T-545/11 Judgement of the EU General Court of 8 October 2013 (Stichting Greenpeace Netherlands and Pesticide Action Network Europe v. European Commission) (case under appeal) Case concerning 1. the interpretation of “emissions into the environment”, 2. and, inter alia, however indirectly, also the relationship between Article 4 (4) and other international obligations