Confidentiality in EU Pesticide Risk Assessment: A Violation of the Aarhus Convention?

Abstract

Transparency is a prerequisite for effective public participation and public scrutiny. Without information the public cannot effectively participate in public decision-making, nor can it review the acts of public authorities. However, in EU pesticide law the public right to information is often limited by commercial confidentiality clauses. Such clauses aim to protect confidential commercial information against disclosure by public authorities.

There is a clear tension between commercial confidentiality and the right to environmental information in EU pesticide law. This dilemma is high on the agenda of the European Food and Safety Authority (EFSA). Approval of new pesticides under Regulation (EC) No 1107/2009 concerning the placing of plant protection products on the market,is largely based on a risk assessment carried out by the pesticide producer himself. The fast amount of these risk assessment data are kept confidential. This makes it virtually impossible for the general public to review the legitimacy EFSA's scientific opinions and the Commission's pesticide approval decisions.

This paper assesses the confidentiality clauses in EU pesticide law in light of the Aarhus Convention and recent national and EU case law. Moreover, it will propose various options which could protect the public's right to know, while also taking account of industries' legitimate interest in keeping commercial data confidential.

Keywords: right to information, public participation, environmental law, pesticide law, confidentiality