Commercial Confidentiality in EU Pesticide Law: An Environmental Risk?

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 the field of environmental law and human health, 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.

The tension between commercial confidentiality and the right to environmental information, will be the focus of this paper. This dilemma is high on the agenda of the European Food and Safety Authority (EFSA). To exemplify the problem, this paper focuses on EU pesticide law. The EU approval of new pesticides is largely based on a risk assessment carried out by the pesticide producer himself. The fast amount of the risk assessment data are kept confidential. This renders it virtually impossible for the general public to review the legitimacy of EFSA's scientific opinions and the Commission's pesticide approval decisions.

This paper discusses the tension between protection of commercial data on the one hand, and the public right to environmental information on the other. It will discuss the confidentiality clauses in EU pesticide law versus the right to environmental information under the Aarhus Convention, in the light of recent national and EU case law. Last, 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.