The conflict between professional secrecy and the right of access to environmental information

1. The conflict between professional secrecy and the right of access to environmental information Prof.Dr.Ludwig Krämer Kramer.ludwig@belgacom.net

2. Legal provisions • Aarhus Convention (ratified by EC and by its Member States) Art.1: each Party shall guarantee the rights of access to information. Art.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 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.

3. Legal provisions 2. EC law: Directive 2003/4 on access to environmental information (OJ 2003 L 41 p.26) Art.1: The objective of this Directive is to guarantee the right of access to environmental information held by or for public authorities. Recital 16: The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal.

4. Legal provisions EC law (continued) Art.4(2) Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect (d) the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy; Member States may not, by virtue of paragraph (d), provide for a request to be refused where the request relates to information on emissions into the environment.

5. Legal provisions EC law (continued) Directive 92/32 on chemical substances (OJ 1992 L 154 p.1): Art.19: industrial and commercial secrecy shall not apply to • physico-chemical data concerning the substance; • The summary results of the toxicological and ecotoxicological tests • In the case of dangerous substances, anaytical methods that make it possible to detect a dangerous substance when discharged into the environment Regulation 793/93 on existing chemical substances (OJ 1993 L 84 p.1): Art.16: (same +) methods and precautions; information which, if withheld, might lead to animal experiments

6. Problems What about • A right of access of a Chinese researcher? 2. The full registration dossier for chemical substances? 3. The Chemical Safety Report? 4. Studies on a substance (Monsanto-case)? • Quantities of a substance put on the market? • The composition of a product? • Emissions which allow to conclude on production methods? • Quantities of emissions?