European Court of Justice rules on access to documents
The General Court gave its ruling on 23 September 2015, in case T-245/11, in which it backed ECHA's decision not to disclose the production volumes of hazardous chemicals.
In December 2010, two non-governmental organisations ("NGOs"), the International Chemicals Secretariat ("ChemSec") and ClientEarth, requested from ECHA information on the names of manufacturers and importers, the specific tonnages, and total tonnage bands of 356 substances included on the SIN list (ChemSec's "Substitute it Now" list), on the basis of Regulations No 1049/2001 (access to documents) and No 1367/2006 (application of the Aarhus Convention on access to information in environmental matters) and Article 118 of the REACH Regulation.
This request was refused by ECHA, which argued that disclosure of information on manufacturer/importer would reveal information on links between manufacturer/importer and downstream users, and thus undermine the protection of commercial interest. In addition, ECHA considered that this information could also result in making the market more transparent and allow operators to adapt their behaviour according to the status of their competitors and that an overriding public interest in disclosure of this information could not be established. The two NGOs brought an action against that decision in May 2011.
In May 2011 and June 2012, ECHA changed its dissemination practice and extended the publication of information to the names of the manufacturers and the aggregated total tonnage bands within which each substance had been registered, except where a request for confidentiality had been made by the registrant,
Consequently, ECHA conceded part of the case. However ECHA still withheld information on the exact production quantities.
In September 2015, the Court ruled that ECHA correctly applied the UN Aarhus Convention on access to environmental information, Regulation 1049/2001 on access to documents and Article 118 of REACH by providing the names of the registrants but not the specific tonnages because the disclosure of that information would have undermined the commercial interests of the companies concerned. The Court also considered that ChemSec and ClientEarth did not make a strong enough case as to why disclosing the quantities was in the public interest or why there would be an overriding interest that would justify the disclosure of the information,.
According to the two NGOs, information on specific amounts produced by companies would help protecting people and allowing consumers to make informed choices, while encouraging industry to look for safer alternatives.