Can your competitors use EU environmental information rules to uncover commercially sensitive information about your products? Quite possibly, according to two recent opinions from the CJEU’s Advocate General Kokott. The tension between access to environmental information and commercially sensitive information has long been a source of some concern (see our previous commentary here). The question for AG Kokott was how the rules apply to sensitive information about the impact of emissions from products on the environment.
In two comparable cases (Case C-442/14 and C-673/13 P), AG Kokott rejected an argument that rules about access to information on emissions to the environment should be limited to emissions from installations, and should not apply to products. She also rejected an argument that laboratory testing or modelling to identify the potential impact of releases from products was not an actual emission to the environment and therefore outside of the EU environmental information regime.
The consequence is that, unless a specific regime for retaining confidentiality applies, information on the environmental impact of emissions from products is likely to be disclosed by public authorities holding that information upon request, notwithstanding that it might be commercially sensitive. This is true even if the information might enable competitors to retro-engineer your product composition and your manufacturing processes.
In the two cases in question, the products did benefit from a specific additional regime for the protection of confidential information. The products were plant protection products and AG Kokott interpreted Article 63 of the Plant Protection Product Regulation to contain an additional safeguard for information provided in the process of seeking authorisation under EU law for the use of the product. The authorities were therefore able to assess on a case-by-case basis whether the information provided for the purpose of seeking authorisation was confidential, and whether that should override the public interest in disclosure. However, such a safeguard may not be available for all products.
We now wait to see if the CJEU agrees with AG Kokott’s opinions. In the meantime, those placing products on the market should give careful consideration to what information is shared with public authorities about those products and, where it is obligatory to share information, whether any safeguards are in place to protect confidentiality.