Aarhus and Agrochemicals: The Scope and Limitations of Access Rights in Europe
Access to information on dangerous chemical substances is of increased interest to stakeholders, in particular to those who involve themselves in environmental matters. Recently, a number of court proceedings have been instituted with the aim to enforce access rights, based on the EU legislation pertaining to transparency in general or alternatively on the legislation implementing the Aarhus Convention. The action brought by ClientEarth and the International Chemical Secretariat against the EChA regarding access to documents containing the names of the registrants of certain dangerous substances under REACH, and the tonnages in which they are placed on the EU market, is just one example. Also in the crop protection sector, the number of actions based on the Aarhus legislation has increased.
Like for chemical substances under REACH, extensive data and study dossiers must be generated for agrochemicals and submitted to the authorities in order to obtain regulatory approval. Registrants must demonstrate that the agrochemical substance meets the regulatory requirements for quality, safety and efficacy. Such dossiers contain proprietary information and know-how of the registrants, and may also be protected by intellectual property rights such as copyrights. Registrants, therefore, have a legitimate interest in the confidential treatment of such information, taking into consideration in particular the significant investment in terms of time and resources required for the development and regulatory approval of agrochemical substances. In the EU, the protection of confidential business information is enshrined in articles 15 and 17 of the Charter of Fundamental Rights of the European Union.