T-545/11 RENV: assessment of the Member State’s decision to object access to documents; article 6(1) of Regulation No 1367/2006 must not be interpreted restrictively; the concept of ‘information [which] relates to emissions into the environment’; approval of a substance at the EU level differs from the product authorisation at the Member States level; it is only at the stage of the national authorisation procedure to place a specific plant protection product on the market that the Member State assesses any emissions into the environment; concept of commercial interests; it is within the jurisdiction of the EU judicature to complete review decisions on access; article 4(4) of the Aarhus Convention is not capable of producing direct effects; in the case at hand, the need to protect intellectual property rights outweighed the public interest in disclosure.

 “The scope of the dispute

30      In the light of the detailed information provided by the applicants, as already noted in paragraphs 22 to 24 of the initial judgment, which was not challenged in the judgment on appeal, the dispute must be limited to the part of the document at issue which contains information on the degree of purity of the active substance, the ‘identity’ and quantities of all the impurities present in the technical material, the analytical profile of the batches, and the exact composition of the product developed, as specified by the applicants at the hearing on 26 February 2013. As regards the impurities, the applicants stated that they sought to discover the other chemical substances produced in the course of the glyphosate manufacturing process and their quantity. As regards the analytical profile of the batches submitted by the undertakings for the tests, they stated that they sought to discover the content and the composition of the batches, in particular the other chemical substances added, the description of the tests and their actual effects.

 Law

31      The applicants put forward three pleas in law in support of their action. First, they submit that Article 4(5) of Regulation No 1049/2001 does not constitute a right of veto for a Member State and that the Commission may not rely on the Member State’s opinion regarding the application of an exception provided for by Article 4(2) of that regulation. Secondly, they maintain that the exception to the right of access designed to protect the commercial interests of a natural or legal person must be waived, because of an overriding public interest in disclosure of the information requested, which relates to emissions into the environment. Thirdly, they argue that the contested decision is not in accordance with Article 4(2) of Regulation No 1049/2001 and Article 4 of the Aarhus Convention, on the ground that the Commission did not evaluate the actual risk of damage to the commercial interests invoked.

 The first plea, alleging failure to take account of the scope of Article 4(5) of Regulation No 1049/2001

32      By their first plea, the applicants maintain that Article 4(5) of Regulation No 1049/2001 cannot constitute a ground for refusing to disclose information or limit the Commission’s power to consideration solely of whether the exceptions invoked by the Member State apply prima facie. This follows, first, from the judgment of 18 December 2007, Swedenv Commission(C‑64/05 P, EU:C:2007:802), and, secondly, from the application of Regulation No 1367/2006 and from an Aarhus Convention-compliant interpretation of EU law.

33      The Commission contends that the applicants’ arguments should be rejected.

34      In the first place, it should be pointed out that, as is apparent from the fourth recital and Article 1 of Regulation No 1049/2001, the purpose of the regulation is to give the fullest possible effect to the right of public accessto documents held by an institution. Under Article 2(3) of the regulation, that right extends not only to documents drawn up by an institution but also to documents received by an institutionfrom third parties, including the Member States, as expressly stated in Article 3(b) of the regulation.

35      However, Article 4 of Regulation No 1049/2001 lays down exceptionsto the right of access to a document. In particular, Article 4(5) provides that a Member State may request an institution not to disclosea document originating from that State without its prior agreement.

36      It is apparent from the case-law that Article 4(5) of Regulation No 1049/2001 is procedural in nature, since it confines itself to requiring the prior agreement of the Member State concerned where that State has made a specific request to that effect, and that it is a provision dealing with the process of adoption of an EU decision (judgment of 18 December 2007, Swedenv Commission, C‑64/05 P, EU:C:2007:802, paragraphs 78 and 81).

37      UnlikeArticle 4(4) of Regulation No 1049/2001, which gives third parties only a right to be consulted, with respect to documents originating from them, by the institution concerned as regards the application of one of the exceptions in Article 4(1) and (2), Article 4(5) provides that a Member State may requestan institution not to disclose a document originating from that State without its prior agreement.

38      It has been held that, where a Member State has made use of the option given to it by Article 4(5) of Regulation No 1049/2001 to request that a specific document originating from that State should not be disclosed without its prior agreement, disclosure of that document by the institution requires the prior agreement of that Member State(judgment of 18 December 2007, Swedenv Commission, C‑64/05 P, EU:C:2007:802, paragraph 50).

39      It follows, conversely, that an institution which does not have the agreement of the Member State concerned is not entitled to disclose the document at issue(judgment of 18 December 2007, Swedenv Commission, C‑64/05 P, EU:C:2007:802, paragraph 44). In the present case, the Commission’s decision regarding the request for access to the document at issue thus depended on the decision taken by the German authorities in the context of the process of adoption of the contested decision.

40      However, it follows from the case-law that Article 4(5) of Regulation No 1049/2001 does not confer on the Member State concerned a general and unconditional right of veto, such that it might oppose, in an entirely discretionary manner and without having to give reasons for its decision, the disclosure of any document held by an institution simply because it originates from that Member State (judgment of 18 December 2007, Swedenv Commission, C‑64/05 P, EU:C:2007:802, paragraph 58). Indeed, the power conferred by Article 4(5) of Regulation No 1049/2001 on the Member State concerned is delimited by the substantive exceptions set out in Article 4(1) to (3) of that regulation, with the Member State merely being given in this respect a power to take part in the institution’s decision.The prior agreement of the Member State referred to in Article 4(5) thus resembles not a discretionary right of veto but a form of assent confirming that none of the grounds of exception under Article 4(1) to (3) of that regulation is present(judgment of 18 December 2007, Swedenv Commission, C‑64/05 P, EU:C:2007:802, paragraph 76). The decision-making process thus established by Article 4(5) of Regulation No 1049/2001 therefore requires the institution and the Member State involved to confine themselves to the substantive exceptions laid down in Article 4(1) to (3) (judgment of 18 December 2007, Swedenv Commission, C‑64/05 P, EU:C:2007:802, paragraph 83).

41      It follows that Article 4(5) of Regulation No 1049/2001 entitles the Member State concerned to object to the disclosure of documents originating from it only on the basis of the substantive exceptions laid down in Article 4(1) to (3) of that regulation and if it gives proper reasons for its position (judgment of 18 December 2007, Swedenv Commission, C‑64/05 P, EU:C:2007:802, paragraph 99).

42      In the present case, it must be noted that, as the Commission observes, while Article 4(5) of Regulation No 1049/2001 has been applied in the present case, it is apparent from the contested decision that the refusal of access to the document at issue is based on the exception in Article 4(2), first indent, of Regulation No 1049/2001, namely the protection of the commercial interests of a natural or legal person, including intellectual property,put forward by the German authorities.

43      In the second place, it has also been held that, before refusing access to a document originating from a Member State, the institution concerned must examine whether that State has based its objection on the substantive exceptions in Article 4(1) to (3) of Regulation No 1049/2001 and has given proper reasons for its position. Consequently, in the procedure for the adoption of a decision to refuse access, the Commission must make sure that those reasons exist and refer to them in the decision it makes following that procedure (judgment of 18 December 2007, Swedenv Commission, C‑64/05 P, EU:C:2007:802, paragraph 99).

44      On the other hand, according to the case-law regarding Article 4(5) of Regulation No 1049/2001, the institution to which a request for access to a document has been made does not have to carry out an exhaustive assessment of the Member State’s decision to object by conducting a review going beyond the verification of the mere existence of reasons referring to the exceptions in Article 4(1) to (3) of Regulation No 1049/2001(judgment of 21 June 2012,IFAW Internationaler Tierschutz-Fondsv Commission, C‑135/11 P, EU:C:2012:376, paragraph 63; order of 27 March 2014, Ecologistas en Acciónv Commission, T‑603/11, not published, EU:T:2014:182, paragraph 44, and judgment of 25 September 2014, Spirleav Commission, T‑669/11, EU:T:2014:814, paragraph 54). The institution must, however, check whether the explanations given by the Member State appear to it, prima facie, to be well founded (judgment of 5 April 2017, Francev Commission, T‑344/15, EU:T:2017:250, paragraph 54).

45      The Commission verified, in the Federal Republic of Germany’s decision to object to the disclosure of the document at issue, the existence of reasons referring to the exception for the protection of the commercial interests in Article 4(2), first indent, of Regulation No 1049/2001, and that those reasons were, prima facie, well founded (see paragraphs 7 to 11 above).

46      Furthermore, the applicants’ argument that the Commission could not rely on the exception provided for in the provisions of Article 4(5) of Regulation No 1049/2001 to oppose the disclosure of environmental information, since that regulation must be interpreted in accordance with Regulation No 1367/2006 and the Aarhus Convention, must be rejected.

47      Suffice it to note that, in the light of the considerations set out in paragraph 42 above, the argument put forward cannot succeed, since Article 4(5) of Regulation No 1049/2001 is not the basis on which the Commission refused access to that document.

48      Consequently, the first plea in law must be rejected.

 The second plea, alleging that there is an overriding public interest in disclosing information relating to emissions into the environment

The scope of the right of access arising from the first sentence of Article 6(1) of Regulation No 1367/2006

49      The first sentence of Article 6(1) of Regulation No 1367/2006 requires the disclosure of a document where the information requested relates to emissions into the environment, even if there is a risk of undermining the interests protected by Article 4(2), first indent, of Regulation No 1049/2001. That interpretation cannot be called into question under the pretext of an interpretation that is consistent, harmonious, or in conformity with Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, Article 39(2) and (3) of the Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS) of 15 April 1994 (OJ 1994 L 336, p. 214) that forms Annex 1 C to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3), Directive 91/414 or Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1), in particular Article 63 thereof (see, to that effect, initial judgment, paragraphs 27 to 46; see also, by analogy, judgment of 23 November 2016, Bayer CropScience and Stichting De Bijenstichting, C‑442/14, EU:C:2016:890, paragraphs 96 to 102).

The concept of ‘information relating to emissions into the environment’

50      The applicants, supported by the Kingdom of Sweden, submit that the Commission infringed the presumption arising from Article 6(1) of Regulation No 1367/2006, the information requested being environmental information relating to emissions into the environment. They argue that the information concerns all the substances released into the environment when the authorised substance ‘glyphosate’ is used and applied in pesticides. The information in the draft report would, moreover, enable the public to verify whether the tests conducted give an insight into the emissions and effects of the substance authorised on the basis of those tests, namely the active substance ‘glyphosate’.

51      The Commission, supported by CropLife America, NAM, ACC, CLI, Cefic, ECPA and the Federal Republic of Germany, submits that the concept of ‘emissions’ is to be interpreted restrictively and that, according to the Implementation Guide to the Aarhus Convention, published by the United Nations Economic Commission for Europe (UNECE) in 2000, it means the direct or indirect release of substances from installations. It states that the information requested does not relate to emissions into the environment, since the information in the document at issue concerns the detailed specifications of the glyphosate manufacturing processes provided by the various operators which had sought its inclusion and protected by intellectual property rights, it being impossible to distinguish and isolate the information of interest to the applicants from the information on the manufacturing processes of the active substance, which are the very subject of the document at issue. The information at issue is ‘too far from the market’ to be able to constitute information relating to emissions into the environment and is not environmentally relevant, in so far as any impurity deemed toxicologically, ecotoxicologically or environmentally relevant has been disclosed.

52      In the first place, the Court rejects the Commission’s argument that the provision relating to emissions into the environment must be interpreted restrictively.Suffice it to note that the Court of Justice held, in that regard, that the General Court did not err in law, in paragraphs 49 and 53 of the initial judgment, in concluding that the first sentence of Article 6(1) of Regulation No 1367/2006 and the concept of ‘information [which] relates to emissions into the environment’ must not be interpreted strictly (judgment on appeal, paragraph 55).

53      In the second place, as regards the Commission’s reference to the implementation guide cited in paragraph 51 above as support for its contention that the concept of ‘emissions’ means emissions from installations, suffice it to note that the Court of Justice held that the General Court did not err in law in considering, in paragraphs 54 to 56 of the initial judgment, that the concept of ‘information [which] relates to emissions into the environment’within the meaning of the first sentence of Article 6(1) of Regulation No 1367/2006 is not limited to information concerning emissions emanating from certain industrial installations(judgment on appeal, paragraph 70).

54      In the third place, it must be noted that the Court of Justice stated that, while the concept of ‘information [which] relates to emissions into the environment’ within the meaning of the first sentence of Article 6(1) of Regulation No 1367/2006 does not include information relating to hypothetical emissions, that concept cannot be limited to information concerning emissions actually released into the environment when the plant protection product or active substance in question is used on plants or soil, where those emissions depend, inter alia, on the quantities of product actually used by farmers and the exact composition of the final product marketed (judgment on appeal, paragraph 73). Therefore, the Court of Justice held that that concept covers information on foreseeable emissions into the environment from the plant protection product or active substance in question, under normal or realistic conditions of use of that product or substance, namely the conditions under which the authorisation to place that product or substance on the market was granted and which prevail in the area where that product or active substance is intended to be used(judgment on appeal, paragraph 74). It also stated that, although the placing on the market of a product or active substance is not sufficient in general for it to be concluded that that product or substance will necessarily be released into the environment and that information concerning the product or substance relates to emissions into the environment, the situation is different as regards a product such as a plant protection product, and the active substances which that product contains, which, in the course of normal use, are intended to be released into the environment by virtue of their very function. In that case, foreseeable emissions, under normal or realistic conditions of use, from the product in question, or from the active substances which that product contains, into the environment are not hypothetical and are covered by the concept of ‘emissions into the environment’ within the meaning of the first sentence of Article 6(1) of Regulation No 1367/2006 (judgment on appeal, paragraph 75).

55      In the fourth place, it should be recalled that the Court of Justice, in the judgment on appeal, took the view that the General Court erred in law in holding that it is sufficient that information relates, in a sufficiently direct manner, to emissions into the environment in order for that information to fall within the scope of ‘information [which] relates to emissions into the environment’ within the meaning of the first sentence of Article 6(1) of Regulation No 1367/2006.

56      First, it noted that it follows from the wording of the first sentence of Article 6(1) of Regulation No 1367/2006 that that provision concerns information which ‘relates to emissions into the environment’, that is to say information which concerns or relates to such emissions and not information with a direct or indirect link to emissions into the environment. That interpretation is confirmed by point (d) of Article 4(4) of the Aarhus Convention, which refers to ‘information on emissions’ (judgment on appeal, paragraph 78). Secondly, the Court of Justice held that that concept must be understood to include, inter alia, data that will allow the public to know what is actually released into the environment or what, it may be foreseen, will be released into the environment under normal or realistic conditions of use of the product or substance in question, namely those under which the authorisation to place that product or substance on the market was granted and which prevail in the area where that product or substance is intended to be used. Consequently, that concept must be interpreted as covering, inter alia, information concerning the nature, composition, quantity, date and place of the actual or foreseeable emissions, under such conditions, from that product or substance(judgment on appeal, paragraph 79).

57      It is also necessary to include in the concept of ‘information [which] relates to emissions into the environment’ information enabling the public to check whether the assessment of actual or foreseeable emissions, on the basis of which the competent authority authorised the product or substance in question, is correct,and the data relating to the effects of those emissions on the environment. It is apparent, in essence, from recital 2 of Regulation No 1367/2006 that the purpose of access to environmental information provided by that regulation is, inter alia, to promote more effective public participation in the decision-making process, thereby increasing, on the part of the competent bodies, the accountability of decision-making and contributing to public awareness and support for the decisions taken. In order to be able to ensure that the decisions taken by the competent authorities in environmental matters are justified and to participate effectively in decision-making in environmental matters, the public must have access to information enabling it to ascertain whether the emissions were correctly assessed and must be given the opportunity reasonably to understand how the environment could be affected by those emissions (judgment on appeal, paragraph 80).

58      On the other hand, while it is not necessary to apply a restrictive interpretation of the concept of ‘information [which] relates to emissions into the environment’, that concept may not, in any event, include information containing any kind of link, even direct, to emissions into the environment. If that concept were interpreted as covering such information, it would to a large extent deprive the concept of ‘environmental information’ as defined in Article 2(1)(d) of Regulation No 1367/2006 of any meaning. Such an interpretation would deprive of any practical effect the possibility, laid down in the first indent of Article 4(2) of Regulation No 1049/2001, for the institutions to refuse to disclose environmental information on the ground, inter alia, that such disclosure would have an adverse effect on the protection of the commercial interests of a particular natural or legal person and would jeopardise the balance which the EU legislature intended to maintain between the objective of transparency and the protection of those interests. It would also constitute a disproportionate interference with the protection of business secrecy ensured by Article 339 TFEU (judgment on appeal, paragraph 81).

Application of the concept of ‘information relating to emissions into the environment’ to the document at issue

59      First, it must be noted that the applicants are not requesting access to information on the contractual relationships between various operators which notified glyphosate or information on the method of manufacture of that substance, corresponding to parts entitled ‘C.1.1 Detailed information on the manufacturing process or processes for the active substance (Annex II A 1.8)’ (pp. 1 to 11) and ‘C.2 Summary and evaluation of information relating to the collective submission of dossiers’ (pp. 88 and 89) of the first sub-document submitted to the Court by the Commission and ‘C.1.1 Detailed information on the manufacturing process or processes for the active substance (Annex II A 1.8)’ (pp. 1 to 3 inclusive) of the third sub-document submitted by the Commission.

60      Secondly, at the hearing on 26 February 2013 the applicants clarified certain aspects of their request for access. They seek access to information relating to the ‘identity’ and quantity of impurities present in the glyphosate, the analytical profile of the batches, in particular their composition, the ‘identity’ and quantity of chemical substances added during the tests, the duration of those tests and the actual effects on the active substance.

61      Thus, it is only inasmuch as the parts of the document at issue other than those referred to in paragraph 59 above contain information such as that mentioned in paragraph 60 above or information which relates to the composition of plant protection products containing glyphosate, and on condition that the information relates to emissions into the environment, that it should be found that the Commission made an error of assessment in refusing to disclose them.

62      Thirdly, in the initial case, the applicants clarified the manner in which the information relating to the ‘identity’ and the quantity of impurities in the glyphosate, the analytical profile of the batches tested and the composition of products containing that substance could allow the determination of the level of emission of those impurities into the environment.

63      In the application, the applicants claim that the residues of the active substance in the environment and their effect on human health are directly linked to the purity of the substance, in particular to the ‘identity’ and the quantity of impurities present in the glyphosate, and not only to the ‘identity’ and the quantity of the impurities considered relevant by the Commission. In the applicants’ view, it is also of great interest to know the analytical profile of the batches used for the testing, in order to be able to interpret the tests and studies on which the inclusion of glyphosate in Annex I to Directive 91/414 was based. That, they claim, is the reason that the exact composition of products developed and tested must be disclosed, allowing the determination of which toxic elements are emitted into the environment and are liable to remain there for some time.

64      In their reply to the General Court’s written questions in the initial case, the applicants also clarified the manner in which the requested information is linked to the concept of ‘emissions into the environment’. Thus, they stated that the impurities contained in glyphosate are released into the environment at the same time as the glyphosate itself. Moreover, those impurities may have, depending on their quantity, an influence on the outcome of the tests that are prescribed for the examination of the adverse effects of glyphosate with a view to its inclusion in Annex I of Directive 91/414. In order to be able to verify whether the tests carried out for the purpose of its inclusion are representative of the emissions into the environment that occur during the use of plant protection products containing glyphosate, it is thus essential to have the information about the analytical profile of batches. In annex to their reply, the applicants included a document indicating, inter alia, a process by which glyphosate is manufactured and the elements that are added in order to produce that active substance, and emphasising the fact that the impurities present in the active substance produced will be emitted into the environment. Furthermore, that document stresses the importance of obtaining the information relating to the analytical profile of the lots tested, in order to verify whether that profile corresponds to that of the products placed on the market, since a small scale production may lead to an analytical profile of glyphosate different from that produced on a large scale with a view to its marketing. In obtaining that information, it is possible to verify any differences between the analytical profiles of the batches tested with a view to the inclusion of glyphosate in Annex I to Directive 91/414 and those of products placed on the market, and to determine whether the tests carried out were relevant as regards the actual emission of glyphosate into the environment. Lastly, that document emphasises that the information requested would allow the verification of the level of the metabolite into which glyphosate transforms; a metabolite which is emitted into the environment, is very persistent and pollutes groundwater.

65      While the Commission acknowledges that every substance is inevitably released into the environment at some stage of its life cycle, it submits that the document at issue does not contain any information which could be considered as relating to emissions into the environment, but rather contains information relating to the manufacturing processes used by the various operators that notified glyphosate for the purpose of its inclusion in Annex I to Directive 91/414. It opposes the disclosure of information relating to the impurities and the analytical profile of the batches, on the ground that such disclosure would make it possible to reconstitute the manufacturing process of the active substance and the related business secrets, since it is impossible to distinguish and isolate the various categories of information contained in that document. Lastly, the Commission claims that all of the relevant information from a toxicological perspective and as regards the effect of the active substance on human health were subject to a careful analysis and were disclosed by the Commission decision of 6 May 2011. It also states that the applicants have not indicated the reasons why the documents which have already been disclosed are not sufficient for assessing the validity of the process of glyphosate’s inclusion in Annex I to Directive 91/414.

66      Fourthly, in the context of measures of inquiry taken in the initial case, the General Court took note of the document at issue, which is divided, as the Commission stated in its letter accompanying the document, into sub-documents.

67      The first sub-document contains, inter alia, a part entitled ‘C.1.2 Detailed specification of the active substance (Annex II A 1.9 to 1.11)’, indicating, on the one hand, the notifications submitted to the rapporteur Member State by the operators seeking the inclusion of glyphosate in Annex I to Directive 91/414 and identifying the various impurities contained in the glyphosate produced as well as the exact or maximum quantity of each of those impurities (part ‘C.1.2.1 Identity of isomers, impurities and additives (Annex II A 1.10)’, pp. 11 to 61) and, on the other hand, the analytical profile of the batches tested, setting out, in a table, the quantities of all of the impurities present in the various batches as well as the minimum, median and maximum quantities of each of the impurities, the majority of the operators in question having also submitted the methods of analysis and validation of the data (part ‘C.1.2.2 Analytical profile of batches (Annex II A 1.11)’, pp. 61 to 84). The first sub-document also contains a part entitled ‘C.1.3 Detailed specification of the preparations (Annex II A 1.4)’, describing the content of the plant protection product containing glyphosate manufactured by each of the operators which notified that active substance (pp. 84 to 88).

68      The single part of the second sub-document (see paragraph 15 above) consists of a table which indicates the various operators that notified glyphosate, the structural formula of each impurity present in the active substance of each of those operators and the exact or maximum quantity of each of those impurities (pp. 1 to 6).

69      The third sub-document comprises, inter alia, two parts respectively entitled ‘C.1.2 Detailed specification of the active substance (Annex II A 1.9 to 1.11)’ and ‘C.1.2.1 Identity of isomers, impurities and additives (Annex II A 1.10)’ (pp. 4 to 13). Part C.1.2 indicates the various impurities contained in the glyphosate-trimesium as well as the exact or maximum quantity of each of those impurities (p. 4), and the analytical profile of the batches tested, setting out in a table the quantities of all of the impurities present in the various batches (p. 7). Part C.1.2.1 is comprised of a table similar to that contained in the second sub-document and contains information of the same nature (pp. 8 to 13).

70      The question whether the document at issue contains information relating to emissions into the environment needs to be determined in the light of these clarifications.

71      It must be noted at the outset that, first, it is common ground between the parties that an active substance such as glyphosate is inevitably released into the environment at some stage of its life cycle and that, secondly, the document at issue contains information relating to the environment. On the other hand, the parties disagree on whether that information is covered by the concept of ‘information relating to emissions into the environment’ as defined by the Court of Justice in the judgment on appeal.

72      In order to resolve that dispute, reference must be made to the relevant provisions of Regulation No 1107/2009. That regulation is intended to lay down rules for the authorisation of plant protection products in commercial form and for their placing on the market, use and control within the European Union (Article 1 of Regulation No 1107/2009) and applies to products, in the form in which they are supplied to the user, consisting of or containing active substances, safeners or synergists (Article 2 of Regulation No 1107/2009).

73      It follows from Regulation 1107/2009 that substances should only be included in plant protection products where it has been demonstrated that they present a clear benefit for plant production and they are not expected to have any harmful effect on human or animal health or any unacceptable effects on the environment (recital 10). In the interest of predictability, efficiency and consistency, a detailed procedure should be laid down for assessing whether an active substance can be approved (recital 12). In addition to active substances, plant protection products may contain safeners or synergists as well as co-formulants (recitals 21 and 22).

74      Plant protection products containing active substances can be formulated in many ways and used on a variety of plants and plant products, under different agricultural, plant health and environmental (including climatic) conditions. Authorisations for plant protection products should therefore be granted by Member States (recital 23). The provisions governing authorisation must ensure a high standard of protection. In particular, when granting authorisations of plant protection products, the objective of protecting human and animal health and the environment should take priority over the objective of improving plant production. Therefore, it should be demonstrated, before plant protection products are placed on the market, that they present a clear benefit for plant production and do not have any harmful effect on human or animal health, including that of vulnerable groups, or any unacceptable effects on the environment (recital 24).

75      The active substances contained in a plant protection product can be produced by different manufacturing processes, leading to differences in specifications. Such differences may have safety implications. For efficiency reasons, a harmonised procedure at EU level should be provided for the assessment of those differences (recital 27).

76      Finally, recital 29 of Regulation No 1107/2009 states that the principle of mutual recognition is one of the means of ensuring the free movement of goods within the European Union. To avoid any duplication of work, to reduce the administrative burden for industry and for Member States and to provide for more harmonised availability of plant protection products, authorisations granted by one Member State should be accepted by other Member States where agricultural, plant health and environmental (including climatic) conditions are comparable. Therefore, the European Union should be divided into zones with such comparable conditions in order to facilitate such mutual recognition. However, environmental or agricultural circumstances specific to the territory of one or more Member States might require that, on application, Member States recognise or amend an authorisation issued by another Member State, or refuse to authorise the plant protection product in their territory, where justified as a result of specific environmental or agricultural circumstances or where the high level of protection of both human and animal health and the environment required by this regulation cannot be achieved.

77      For the purposes of the placing of plant protection products on the market in the European Union, Regulation No 1107/2009 introduced a system in which approval procedures for active substances (Articles 7 to 13 of Regulation No 1107/2009), such as glyphosate, are separated from authorisation procedures for the formulated plant protection product, namely the final product including the active substance and other elements, which is then used by operators (Articles 33 to 39 of Regulation No 1109/2009).

78      The procedure for the approval of active substances takes place at EU level and culminates in a Commission decision on the approval or non-approval of the substance. It is common ground between the parties that, for the purposes of approving an active substance, the assessment concerns ‘one or more representative uses of at least one plant protection product containing that active substance’ (Article 4(5) of Regulation No 1107/2009), consisting in essence of one or more specific suggested uses of the plant protection product on one or more specific plants, and includes the relevant suggested conditions of use for that representative use.

79      Since a plant protection product is not to be placed on the market or used unless it has been authorised in the Member State concerned in accordance with Regulation 1107/2009 (Article 28 of Regulation No 1107/2009), in accordance with the authorisation requirements provided for, inter alia, in Article 29 thereof, an applicant who wishes to place a plant protection product on the market is to apply for an authorisation or amendment of an authorisation himself, or through a representative, to each Member State where the plant protection product is intended to be placed on the market (Article 33 of Regulation No 1107/2009).

80      In the authorisation procedure, the Member State examining the application is to make an independent, objective and transparent assessment in the light of current scientific and technical knowledge using guidance documents available at the time of application. It is to give all Member States in the same zone the opportunity to submit comments to be considered in the assessment. It is to apply the uniform principles for evaluation and authorisation of plant protection products, referred to in Article 29(6) of Regulation No 1107/2009, to establish, as far as possible, whether the plant protection product meets the requirements provided for in Article 29 in the same zone, where used in accordance with Article 55, and under realistic conditions of use. The Member State examining the application is to make available its assessment to the other Member States within the same zone (Article 36(1) of Regulation No 1107/2009).

81      Finally, where it is necessary to establish for an active substance, safener or synergist whether a different source or, for the same source, a change of the manufacturing process or manufacturing location complies with point (b) of Article 29(1) of Regulation No 1107/2009, this is to be assessed by the Member State which acted as rapporteur for the active substance, safener or synergist as referred to in Article 7(1) of that regulation unless the Member State examining the application as referred to in Article 35 of that regulation agrees to assess the equivalence. The applicant is to submit all necessary data to the Member State assessing equivalence (Article 38 of Regulation No 1107/2009).

82      It follows from the provisions referred to in paragraphs 73 to 81 above that an active substance such as glyphosate must be approved at EU level before being included in plant protection products, which must, for their part, necessarily be subject to the authorisation of a Member State in order to ensure that the composition of those products meets the authorisation requirements laid down in Article 29 of Regulation No 1107/2009. Furthermore, as pointed out, in essence, by the Federal Republic of Germany, there is still, in principle, no link between the assessment and approval of the active substance ‘glyphosate’ at EU level and the actual subsequent use that will be made of that substance. Approval of the active substance ‘glyphosate’ does not in any way include authorisation for the isolated use of that substance. Use will be made of that substance only once it is included in a plant protection product authorised for placement on the market by a Member State. Therefore, while it is true that an active substance such as glyphosate is inevitably released into the environment at some stage of its life cycle, that is the case only via a plant protection product subject to the authorisation procedure.

83      It also follows from the provisions referred to in paragraphs 73 to 81 above that the system established by Regulation No 1107/2009 has the consequence that the plant protection product for which authorisation is requested from a Member State may differ in several respects from the product presented and evaluated at EU level for the purposes of approving the active substance. As the Commission rightly noted, first, the use and conditions of use of the plant protection product covered by authorisation in a Member State may be very different from those which have been subject to the theoretical assessment at EU level.

84      Secondly, the active substance and the specific plant protection product containing it for which authorisation is requested at national level may, in certain technical aspects, be very different from the active substance and representative use of the plant protection product examined at EU level during the approval procedure. This is due to the fact that the plant protection product for which authorisation is requested may be produced, and often is produced, by a different undertaking than that which requested approval for the active substance at EU level.

85      Furthermore, it must be noted that, even if the active substance and the specific plant protection product authorised are produced by the same undertaking as that which made the request for approval of the active substance, the manufacturing process of that substance and, accordingly, the impurities in the plant protection product for which authorisation is requested and which will then be released into the environment may differ from those analysed at EU level. As mentioned inter alia in recitals 23 and 27 of Regulation No 1107/2009, not only can plant protection products be formulated in many ways and used on a variety of plants and plant products, under different agricultural, plant health and environmental (including climatic) conditions (see paragraph 74 above) but also an active substance contained in a plant protection product can be produced by different manufacturing processes, leading to differences in specifications (see paragraph 75 above).

86      That is, in particular, the reason why, in accordance with Article 29(1)(b) of Regulation No 1107/2009, the Member State is required, during the authorisation procedure, to examine whether the active substance is produced by a different source, or by the same source with a change in the manufacturing process and/or manufacturing location. If that is the case, that Member State must examine whether the specification of the active substance in the plant protection product for which authorisation is requested (Article 38 of Regulation No 1107/2009) is nevertheless equivalent to that assessed at EU level and is deemed to fulfil the approval criteria provided for in Article 4 of Regulation No 1107/2009.

87      It must be added, moreover, that Article 29(3) of Regulation No 1107/2009 provides that compliance with the requirement of equivalence set out in Article 29(1)(b) of Regulation No 1107/2009 ‘shall be established by official or officially recognised tests and analyses carried out under agricultural, plant health and environmental conditions relevant to the use of the plant protection product in question and representative of the conditions prevailing in the zone where the product is intended to be used’.

88      In those circumstances, as has been maintained by the Commission and the Federal Republic of Germany, it must be held that it is only at the stage of the national authorisation procedure to place a specific plant protection product on the market that the Member State assesses any emissions into the environmentand that specific information emerges concerning the nature, composition, quantity, date and place of the actual or foreseeable emissions, under such conditions, from the active substance and the specific plant protection product containing it, within the meaning of paragraph 79 of the judgment on appeal (see paragraph 56 above).

89      In the present case, this means that the draft report, drawn up in the course of the approval procedure at EU level, concerns one or more representative uses of plant protection products containing glyphosate, suggested by operators requesting the approval of that substance, and the specific composition of plant protection products resulting from the manufacturing process of those operators, at the time when the request for approval was made.

90      Since the use, the conditions of use and the composition of a plant protection product authorised by a Member State on its territory may be very different from those of products evaluated at EU level during the approval of the active substance, it must be held that the information in the document at issue does not relate to emissions whose release into the environment is foreseeable and has, at the very most, a link to emissions into the environment. Accordingly, such information is excluded from the concept of ‘information relating to emissions into the environment’, in accordance with paragraph 78 of the judgment on appeal.

91      In the light of the foregoing considerations, it must therefore be concluded that the Commission did not commit an error of assessment in considering that the document at issue does not contain information relating to emissions into the environment and, accordingly, the second plea in law must be rejected.

92      That conclusion cannot be called in question by the argument reiterated by the applicants at the hearing, according to which, in essence, at the stage of authorising a plant protection product, as the Member States do not reassess the active substance approved at EU level, it is essential to obtain access to the document at issue. It must be pointed out, as noted by the Commission, Cefic and ECPA, that, during the authorisation procedure, it is the plant protection product as a whole, with all its components, which is analysed. The product is authorised only if all the tests and analyses support the conclusion that the authorisation requirements referred to in Article 29 of Regulation No 1107/2009 are met and that it may therefore be considered that the product has no harmful effect on human or animal health or unacceptable effect on the environment.

93      In any event, it must be held that the applicants’ argument is not capable of calling into question the fact that, in essence, since the active substance ‘glyphosate’ is not intended to be released into the environment as such, but may be released only once integrated in a plant protection product subject to authorisation, the information contained in the document at issue cannot be covered by the concept of ‘information relating to emissions into the environment’ as defined by the Court of Justice in the judgment on appeal.

94      The second plea in law must therefore be rejected.

 The third plea, alleging infringement of Article 4(2) of Regulation No 1049/2001 and Article 4 of the Aarhus Convention

95      The applicants maintain, in essence, that the exception to the right of access should be interpreted restrictively in accordance with Article 4(4)(d) of the Aarhus Convention. Furthermore, they claim that commercial interests may prevail only if they constitute interests protected by law in order to protect a legitimate economic interest. Moreover, such interests have limited scope, since Article 13 of Directive 91/414 provides that other applicants seeking inclusion of the active substance may, after a period of ten years, make use of the dossier that was submitted for the inclusion. Finally, the Commission has not given any concrete information to support the conclusion that property rights have to prevail over the right of access. According to the applicants, a fair balancing based on Article 4(4) of the Aarhus Convention, or based on an Aarhus Convention-compliant interpretation of Article 4(2) of Regulation No 1049/2001, should lead to the disclosure of the information requested.

96      The Commission disputes the applicants’ arguments.

97      As a preliminary point, it should be recalled that, in so far as the exceptions laid down in Article 4 of Regulation No 1049/2001 derogate from the principle that there should be as wide a right of public access to documents as possible, they must be interpreted and applied strictly(see, to that effect, judgment of 21 July 2011, Swedenv MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 75). It must be shown that the access in question is likely specifically and actually to undermine the interest protected by the exception, and that the risk of that interest being undermined is reasonably foreseeable and not purely hypothetical. That examination must be apparent from the reasons for the contested decision (see, to that effect, judgments of 13 April 2005, Verein für Konsumenteninformationv Commission, T‑2/03, EU:T:2005:125, paragraph 69, and of 22 May 2012, Sviluppo Globalev Commission, T‑6/10, not published, EU:T:2012:245, paragraph 64).

98      It must also be noted that the system of exceptions laid down in Article 4 of Regulation No 1049/2001, particularly in Article 4(2), is based on a weighing of the opposing interestsin a given situation, that is to say, on the one hand, the interests which would be favoured by the disclosure of the documents in question and, on the other, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on which interest must prevail in the particular case (judgments of 14 November 2013, LPN and Finlandv Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 42, and of 23 September 2015, ClientEarth and International Chemical Secretariatv ECHA, T‑245/11, EU:T:2015:675, paragraph 168).

99      Moreover, the Court points out that, in order to justify refusal of access to a document, it is not sufficient, in principle, for that document to fall within an activity or an interest mentioned in Article 4 of Regulation No 1049/2001. The institution concerned must also supply explanations as to how access to that document could specifically and actually undermine the interest protected by an exception laid down in that article (judgments of 28 June 2012, Commissionv Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 116; of 28 June 2012, Commissionv Agrofert Holding, C‑477/10 P, EU:C:2012:394, paragraph 57; and of 27 February 2014, Commissionv EnBW, C‑365/12 P, EU:C:2014:112, paragraph 64).

100    As regards the concept of commercial interests, it is apparent from the case-law that it is not possible to regard all information concerning a company and its business relations as requiring the protection which must be guaranteed to commercial interests under the first indent of Article 4(2) of Regulation No 1049/2001 without frustrating the application of the general principle of giving the public the widest possible access to documents held by the institutions (judgments of 15 December 2011, CDC Hydrogene Peroxidev Commission, T‑437/08, EU:T:2011:752, paragraph 44, and of 9 September 2014, MasterCard and Othersv Commission, T‑516/11, not published, EU:T:2014:759, paragraph 81).

101    Consequently, in order to apply the exception provided for by the first indent of Article 4(2) of Regulation No 1049/2001, it must be shown that the documents at issue contain elements which may, if disclosed, seriously undermine the commercial interests of a legal person. That is the case, in particular, where the requested documents contain commercially sensitive information relating, in particular, to the business strategies of the undertakings concerned or to their commercial relations or where those documents contain information particular to that undertaking which reveal its expertise(judgment of 9 September 2014, MasterCard and Othersv Commission, T‑516/11, not published, EU:T:2014:759, paragraphs 82 to 84).

102    Finally, it must be noted that the present case concerns a refusal decision of the Commission which is not at odds with the grounds of opposition relied on by the Federal Republic of Germany, but is based on those grounds and therefore led to the document at issue not being disclosed.

103    With regard to judicial review of the legality of a decision refusing access, it is clear from paragraph 94 of the judgment of 18 December 2007, Swedenv Commission(C‑64/05 P, EU:C:2007:802), that it is within the jurisdiction of the EU judicature to review, on application by a person to whom the institution has refused to grant access, whether that refusal was validly based on the exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001, regardless of whether the refusal results from an assessment of those exceptions by the institution itself or by the relevant Member State. It follows that, as a result of the application of Article 4(5) of Regulation No 1049/2001, the review carried out by the EU judicature is not limited to a prima facie review. The application of that provision does not prevent a complete review being carried out of the Commission’s refusal decision, which must, in particular, respect the obligation to give reasons and be based on the substantive assessment made by the Member State concerned of the applicability of the exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001.

104    The applicants’ line of argument — which amounts, in essence, to asking the Court, first, to apply Article 4(4) of the Aarhus Convention or to interpret EU legislation in compliance with that provision, according to which the grounds for refusal must be interpreted restrictively and, secondly, to find that, when weighing up the relevant interests, the Commission gave too much weight to the commercial interests without specifically and precisely showing the risk of those interests being undermined — must be examined in the light of those factors.

105    In the first place, as regards the arguments relating to Article 4(4) of the Aarhus Convention, it must be noted at the outset that the EU judicature has held that the obligation to interpret restrictively the grounds for refusal of access cannot be understood as imposing a precise obligation(judgments of 16 July 2015, ClientEarthv Commission, C‑612/13 P, EU:C:2015:486, paragraph 42, and of 13 September 2013, ClientEarthv Commission, T‑111/11, EU:T:2013:482, paragraphs 92 and 94). It is for this reason that, in EU law, that provision is not capable of producing direct effectsfor individuals (judgment of 23 January 2017, Justice & Environmentv Commission, T‑727/15, not published, EU:T:2017:18, paragraph 75).

106    Furthermore, it must be noted that, according to settled case-law, the primacy of international agreements concluded by the EU over secondary legislation requires that the latter be interpreted, in so far as is possible, in conformity with those agreements (see judgment of 7 June 2007, Řízení Letového Provozu, C‑335/05, EU:C:2007:321, paragraph 16 and the case-law cited). In addition, it is common ground that the European Union is bound by the Aarhus Convention. Furthermore, it follows from the case-law that the fact that a provision of an international agreement does not have direct effect does not preclude it being relied upon for the purposes of an interpretation of EU law that is in conformity with it. Thus, for example, if the case-law has noted that Article 9(3) of the Aarhus Convention does not have direct effect (see, to that effect, judgments of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 45, and of 13 January 2015, Council and Othersv Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraphs 55 and 61), it has, however, recognised, in spite of that absence of direct effect, a principle that secondary law should be interpreted in conformity with, and in the light of, that provision (see, to that effect, judgment of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 51).

107    In the present case, it must be held that the applicants have failed to demonstrate that Article 4(2) of Regulation No 1049/2001 must necessarily be interpreted in the way desired by them in order to ensure compliance with Article 4(4) of the Aarhus Convention. It should be recalled that the case-law of the Courts of the Union has already recognised that the exceptions to the right of access to documents must be interpreted and applied strictly (see paragraph 97 above). Even if the applicants’ unsupported allegation is to be interpreted as meaning that they submit that this case-law should be even more restrictive, it must be stated that an interpretation compatible with Article 4(4) of the Aarhus Convention does not impose any obligation to reach the outcome they desire(see, by analogy, judgment of 23 January 2017, Justice & Environmentv Commission, T‑727/15, not published, EU:T:2017:18, paragraph 78). This argument must therefore be rejected.

108    Likewise, the applicants’ arguments that, first, in accordance with Article 4(4) of the Aarhus Convention, commercial interests may prevail only if they constitute interests protected by law in order to protect a legitimate economic interest and, secondly, such interests had limited scope in accordance with Article 13 of Directive 91/414 (see paragraph 95 above) must be rejected. It must be stated that the applicants have not referred to any other matters capable of showing that the commercial interests raised in the present case are not protected by law in order to protect a legitimate economic interest. In any event, as the Commission observes, it must be noted that the commercial interests of operators seeking the inclusion of glyphosate in Annex I to Directive 91/414, in particular their intellectual property rights, are protected by EU legislation, namely Article 14 of Directive 91/414, which was replaced by Article 63(2) of Regulation No 1107/2009 as from 14 June 2011, as is apparent from Article 84 of that regulation. As regards the argument relating to Article 13 of Directive 91/414, which was replaced by Article 59 of Regulation No 1107/2009, it must be stated, as the Commission pointed out, that that provision covers test and study reports concerning the active substance and not documents such as those at issue in the present case relating inter alia to the manufacturing process of the active substance. Such information is covered by the confidential treatment established by Article 14 of Directive 91/414, which was replaced by Article 63(2) of Regulation No 1107/2009.

109    In the second place, as regards the weighing up of the relevant interests, as it rightly contended, the Commission informed the applicants, in the contested decision, of the exception on the basis of which the German authorities refused access to the document at issue, namely the first indent of Article 4(2) of Regulation No 1049/2001, presenting in detail the information which, according to those authorities, related to intellectual property rights. Thus, reference was made to the detailed chemical composition of the active substance, detailed information concerning the production process of the substance, information on the chemical analysis of the substance and all its impurities, the composition of the finished products and information on the contractual relations between the various undertakings that notified the substance.

110    The Commission refused to disclose the document at issue on the basis of the exception relied upon by the Federal Republic of Germany.

111    However, the Commission weighed up the commercial interests and the public interest in disclosure of the document at issue, precisely examining the risk of undermining the intellectual property rights of the operators seeking the inclusion. It noted that the document at issue concerns the production process of plant protection products containing the active substance and that the need to protect intellectual property rights outweighed the public interest in disclosureof that document. It stressed the risks for the operators seeking the inclusion of having the details of their production methods and the technical specifications of glyphosate copied by their competitors. According to the Commission, such a situation would result in considerable losses in market share for the undertakings in question and would leave their intellectual property rights unprotected.

112    Furthermore, the Commission noted that the public interest in disclosure had been sufficiently taken into consideration, since the other parts of the draft report, disclosed in their entirety, made it possible to know the potential effects of releasing glyphosate into the environment. It then listed the various relevant elements which had been disclosed. It also stated that the disclosure of information relating to non-relevant impurities that was included in the document at issue made it possible to reconstitute the manufacturing process of each product, recalling the risks posed for the intellectual property rights of the operators seeking the inclusion of glyphosate.

113    The Commission relied upon the procedure under which the active substance was assessed and included in Annex I to Directive 91/414, inter alia the scientific assessments to which the dossiers pertaining to that inclusion were subject. It took the view that the publicly available information on the effects of glyphosate following the procedure for the inclusion of the substance and the request for access to documents made by the applicants met the requirements of Regulation No 1367/2006.

114    The Commission concluded that the relevant interests had been weighed up in considering that, in view of the risks posed by the disclosure of information to the specific manufacturing processes and the rights of the undertakings, the protection of those undertakings’ interests had to prevail.

115    In those circumstances, it must therefore be held that the Commission correctly weighed up the relevant interests, having set out precisely and specifically the way in which the commercial interests of producers of glyphosate or plant protection products containing it would be jeopardised by the disclosure of the document at issue.

116    In the light of all the foregoing considerations, the third plea must be rejected and the action must be dismissed in its entirety”.