Confidential business information is a valuable asset and this is especially true of product formulations and manufacturing processes. Helping the business to protect such information from competitors is often a key role for in-house lawyers.
However, EU rules on access to environmental information can provide a mechanism for the public in general – and by way of extension, competitors – to gain access to the commercially sensitive information of businesses being held by public authorities.
In addition, the rise of sophisticated product stewardship and related regulatory regimes over the past few years has produced numerous requirements for businesses manufacturing or importing products and substances into the EU to provide detailed information on them to public authorities. Examples include the chemicals regimes for plant protection products, REACH and biocidal products.
Consequently, where information that would usually be considered confidential is shared with public authorities for regulatory purposes, there is a risk of its disclosure to the public under the regime for access to environmental information. It is important to understand those regimes and the balancing act required of public bodies when deciding whether to release the information requested by a third party, both prior to providing information and when resisting an application by a third party for public disclosure.
The EU access to environmental information regimes are based on the UNECE Aarhus Convention. One of its core concepts is that the public benefit in the release of information on emissions to the environment overrides issues of commercial confidentiality. Therefore, the scope of “emissions” to the environment has become an important issue.
In two similar recent cases currently being considered by the Court of Justice of the European Union (ECJ), companies are arguing a narrow interpretation of “emissions to the environment” to prevent the release of commercially sensitive information. For example, one company is arguing that results of testing products for discharges/releases in laboratory conditions is not an environmental emission because nothing is actually released to the environment (it is a test only).
Furthermore, in the wrong hands, the company argues, that analysis/test data could be scrutinised to reveal (valuable) information on product composition and the manufacturing process. The counter-argument is that the laboratory testing is designed to model the impact on the actual environment from use of the product and is precisely the sort of information that should be provided to the public under the EU access to environmental information regime.
In two recent Opinions in those cases (C-442/14 and C-673/13 P), Advocate General Kokott favoured a broad interpretation of “emissions”. However, in both cases, she held that the companies involved benefitted from a separate and additional regime in place to protect confidential information relating to plant protection products (Article 63 of the Plant Protection Product Regulation). We now await the ECJ’s judgment.
These cases are potentially of much wider application beyond plant protection products. If followed by the ECJ in its judgments in due course, the broad interpretation of emissions would make it harder for businesses to object to disclosure of emissions-related information, especially where the additional safeguard recommended by AG Kokott under the plant protection regime or equivalent regimes would not apply.
Producers, manufacturers and importers of products should continue to give careful consideration to the protection of information about their products when dealing with European and national public bodies and ensure, where possible, that appropriate safeguards are in place. Examples of practical steps include:
- Reviewing the information to remove or redact sensitive information that is not essential to the application.
- Separating information into confidential annexes.
- Providing the information for a limited period for review.
- Obtaining written confirmation that the authority recognises certain information as confidential.
- Agreeing a mechanism for the business to take an active role in any third party request for disclosure.
