ECJ ruling on document access rattles chemical, pesticide industries

Date:11-28-2016

A decision by the European Court of Justice last Wednesday in favor of disclosing confidential safety tests by large pesticide companies has sent shockwaves through the wider chemical industry.

The court’s decision dealt with two cases in which non-governmental organizations had been denied access to documents about pesticides on the grounds that the information was commercially sensitive.

Some lawyers argued that Wednesday’s rulings on what documents can be accessed set an important precedent and could radically shift the balance of power away from big business when authorities decide whether or not to release sensitive information such as confidential safety studies for pesticides and other industrial chemicals.

“The impact to any industry that can possibly pollute is that any study or test result has to be made available to the public if these tests are relevant to the actual toxicity, hazard, danger or risk the substance can have when used in real conditions,” said Vito Buonsante, a legal expert in health and environmental issues for ClientEarth, which seeks to protect the environment through litigation.

Buonsante explained that because the ECJ ruling deemed all safety tests and documents as potentially disclosable as long as they are related to actual or foreseeable “emissions,” the commercial interests of large businesses have been severely diminished. Crucially, pesticides can be viewed as a form of “emission.”

“Usually there is always a balance between commercial interests and that of the public interest. In this case, when you can prove that the information is about an emission, this balancing does not happen anymore. You prove it’s about an emission and the document goes out,” he said.

The Court ruling dealt with two related cases in which the European Commission and a court in the Netherlands declined access to documents to three NGOs on the grounds that the information was confidential.

One case dealt with an access to documents request from the Pesticide Action Network Europe and Greenpeace to the European Commission for internal studies linked to the safety of the controversial weedkiller glyphosate. The second case concerned a request from the Dutch bee preservation group Stichting de Bijenstichting for confidential information on the authorization process of a neonicotinoid pesticide called imidacloprid, which is produced by Bayer CropScience. Both cases must now go back to the original court of decision for a final decision.

Hypothetical emissions

Spokespeople for Bayer and the Commission said they needed more time to analyze the decisions due to their complexities.

One of those complexities centers on what exactly the ECJ has deemed as appropriate for public release. While the Court stated that public authorities should consider the requested documents as “information related to actual emissions,” it also concluded that “the concept of information on emissions into the environment does not include information relating to purely hypothetical emissions.” In other words, only documents containing data on the actual exposure to human beings can be released, leaving some potential wiggle room for authorities to deny some access.

The Commission observed, however, that the Court’s rulings clarified the scope of the rules on access to documents containing information on the environment “in an important way.”

Still, legal experts said broadening the definition of what information is deemed an emission could set a dangerous precedent for many chemical businesses.

“There is a very serious concern about the dangerous broadening of the definition of what constitutes an emission into the environment,” said Peter Bogaert, managing partner at the law firm Covington & Burling.

In a sign of just how significant the rulings could be, the European Chemical Industry Council, which represents the wider chemical industry, said the rulings set a “potentially dangerous precedent for the protection of confidential business information submitted by companies for EU substance and product registrations and approvals.”

Businesses producing chemicals and pesticides say confidentiality and the protection of business secrets linked to production is a vital driver for increased investment in the market.

“As an industry, we are not opposed to access to data. I cannot be clearer on this,” said Graeme Taylor, director of public affairs for the European Crop Protection Association, the EU’s pesticide lobby. But, he added, “in order to continue to invest in bringing important innovations to the market we have to be able to protect confidential business information like any other sector.”

Hans Muilerman, chemicals officer for PAN Europe, which requested the documents on glyphosate, said the ECJ’s decision potentially opened the door for documents containing information about the production process for glyphosate. This information could include toxicity data on the different “runs,” or samples the likes of Monsanto uses when conducting safety tests, he said.

Muilerman noted that pesticide companies currently test different samples of their products on animals, some of which are more toxic than others depending on where and how they are manufactured.

“It’s possible that one ‘run’ is tested and other ‘runs’ that are more toxic are being used in our fields,” he said. “Releasing the documentation could show us this information.”

Brandon Mitchener, a spokesperson for Monsanto, said the company does not selectively choose the best data to provide to regulators.

“The tests are done by us, or for us, in certified labs according to standardized testing protocols specified by law,” he said.