Pesticide sales data used to calculate the harmonised risk indicator 1 (2011-2020)

Alice Bernard made this Informationsfreiheit request to Gesundheit und Lebensmittelsicherheit

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To Whom It May Concern:

In accordance with Article 6(1) of Regulation (EC) No 1049/2001, Article 3 of Regulation (EC) No 1367/2006, and Article 42 of the Charter of Fundamental Rights, ClientEarth AISBL and Global 2000 (Friends of the Earth Austria) hereby request access to any documents containing pesticide sales data per active substance from 2011 to 2020, aggregated at EU level, that have been relied on by the European Commission to calculate the “harmonised risk indicators 1”, measuring the use and risk of pesticides under Commission Directive (EU) 2019/782, in application of Directive 2009/128/EC (accessible at: https://food.ec.europa.eu/plants/pestici...).

Considering that DG Eurostat may also hold documents that fall under the scope of the present request, we kindly request that DG Health and Food Safety inquires DG Eurostat about the present request for access to documents as provided by Article 15(1) of Regulation 1049/2001, according to which EU institutions have the obligation to ensure a good administrative practice in facilitating the exercise of the right of access to documents.

For the sake of clarity, we do not seek access to the documents that are publicly available on Eurostat’s website, showing data that are aggregated per groups of active substance. We seek access to documents that mention the sales data per active substance. We also do not seek with this request access to the data per EU country. We seek access to the documents recording the data aggregated at EU level.

Yours faithfully,
Alice Bernard, Senior Law and Policy Advisor, Chemicals
ClientEarth AISBL
60 Rue du Trône, Box 11, Ixelles, 1050, Belgium

Dr. Helmut Burtscher-Schaden, Umweltchemiker
GLOBAL 2000, Friends of the Earth Austria
Neustiftgasse 36, A-1070 Wien, Austria

SANTE-ACCESS-TO-DOCUMENTS@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your request for access to documents
sent on 26/09/2022 and registered on 29/09/2022 under the case number
2022/5529.

We will handle your request within 15 working days as of the date of
registration. The time-limit expires on 20/10/2022. We will let you know
if we need to extend this time limit for additional 15 working days.

To find more information on how we process your personal data, please see
[1]the privacy statement.

Yours faithfully,

Directorate-General for Health and Food Safety - Access to Documents
European Commission

References

Visible links
1. https://ec.europa.eu/info/principles-and...

SANTE-ACCESS-TO-DOCUMENTS@ec.europa.eu,

Dear Ms Bernard,

We are writing concerning your request for access to Commission documents
registered on 29th September 2022 under case number EASE 2022/5529.

We are currently working on your request. However, we have not yet been
able to gather all the elements necessary to carry out a full analysis of
your request. We will not be able to send you the reply within the
prescribed time limit expiring on 20th October 2022 therefore an extended
time limit is needed due to internal consultations and internal approval
procedure.

Therefore, in line with Article 7(3) of [1]Regulation (EC) No 1049/2001,
we need to extend this time limit by 15 additional working days. The new
time limit expires on 14th November 2022.

We apologise for any inconvenience this may cause.

Kind regards,

EUROPEAN COMMISSION

Directorate-General for Health and Food Safety (DG SANTE)

Directorate F – Health and food audits and analysis

Unit F3 - Plants and organics

Grange, Dunsany, C15 DA39

IRL - Co. Meath

References

Visible links
1. https://eur-lex.europa.eu/legal-content/...

SANTE-ACCESS-TO-DOCUMENTS@ec.europa.eu,

1 Attachment

Dear Ms Bernard,

Please find attached a message concerning your request for access to
Commission documents registered under the above case number 2022/5529.
According to the standard operational procedure, the reply is sent by
e-mail only.

We would therefore appreciate if you could explicitly confirm receipt of
the e-mail within 5 working days by replying to
[1][email address]”.

 

Kind regards,

EUROPEAN COMMISSION

Directorate-General for Health and Food Safety (DG SANTE)

Directorate F – Health and food audits and analysis

Unit F3 - Plants and organics

Grange, Dunsany, C15 DA39

IRL - Co. Meath

 

Web:  [2]Health and food audits and analysis

Video: [3]link

Twitter: DG SANTE: [4]EU Food Safety and [5]EU_Health

References

Visible links
1. mailto:[email address]
2. https://ec.europa.eu/food/horizontal-top...
3. https://ec.europa.eu/food/horizontal-top...
4. https://twitter.com/Food_EU
5. https://twitter.com/EU_Health

Dear [email address],

We hereby acknowledge the receipt of your response. As the e-mail address indicated by you is not visible on this platform, we are unable to send a confirmation to that inbox.

Also, could you please confirm that DG Eurostat will provide their initial response to this thread as well or otherwise, please inform us about the manner of transmitting it. For any additional information, please reach out to: Madalina Popirtaru - mpopirtaru[at]clientearth.org, adding abernard[at]clientearth.org in copy.

Yours sincerely,
Alice Bernard

Mail Delivery System,

2 Attachments

This message was created automatically by mail delivery software.

A message that you sent could not be delivered to one or more of its
recipients. This is a permanent error. The following address(es) failed:

[email address]
host mxa-00244802.gslb.pphosted.com [185.132.180.112]
SMTP error from remote mail server after end of data:
550 5.7.1 Delivery not authorized. To contact the Commission, please send an email to:
[email address]

Dear Health and Food Safety DG,

We hereby acknowledge the receipt of your response. As the e-mail address indicated by you is not visible on this platform, we are unable to send a confirmation to that inbox.

Also, could you please confirm that DG Eurostat will provide their initial response to this thread as well or otherwise, please inform us about the manner of transmitting it. For any additional information, please reach out to: Madalina Popirtaru - mpopirtaru[at]clientearth.org, adding abernard[at]clientearth.org in copy.

Yours sincerely,
Alice Bernard

ESTAT-ACCESS-DOCUMENTS@ec.europa.eu,

Dear Ms Bernard,

We hereby acknowledge the receipt of your request for access to documents
under the case number 2022/5566.

We will handle your request within 15 working days as of the date of
registration. The time-limit

expires on 14/12/2022. We will let you know if we need to extend this time
limit for additional 15

working days.

Yours sincerely,

The Eurostat Access to Documents Team

[1][email address]

References

Visible links
1. mailto:[email address]

ESTAT ACCESS DOCUMENTS, Gesundheit und Lebensmittelsicherheit

1 Attachment

Link: [1]File-List
Link: [2]Edit-Time-Data
Link: [3]themeData
Link: [4]colorSchemeMapping

Dear Ms Bernard,

We are writing concerning your request for access to Commission documents
registered on 26 September 2022 under case number 2022/5566.

We are currently working on your request. However, we have not yet been
able to gather all the elements necessary to carry out a full analysis of
your request. We will unfortunately not be able to send you the reply
within the prescribed time limit, expiring today, 14 December 2022.

An extended time limit is needed as in order to assess the feasibility of
producing the documents requested, large files have to be examined.
Therefore, in line with Article 7(3) of [5]Regulation (EC) No 1049/2001,
we need to extend this time limit by 15 additional working days. The new
time limit expires on 13 January 2023

We apologise for any inconvenience this may cause.

Kind regards,

EUROSTAT Access to Documents Team

European Commission

Eurostat - Unit A2
Bech Building F2/929

L-2920 Luxembourg
[6][email address]

 

 

References

Visible links
1. file:///tmp/cid:filelist.xml@01D90FCC.F169D450
2. file:///tmp/cid:editdata.mso
3. file:///tmp/~~themedata~~
4. file:///tmp/~~colorschememapping~~
5. https://eur-lex.europa.eu/legal-content/...
6. mailto:[email address]

ESTAT-ACCESS-DOCUMENTS@ec.europa.eu,

1 Attachment

  • Attachment

    Reply for ClientEarth application for access to documents 2022 5566.pdf

    211K Download View as HTML

Hello,

Please find attached a message concerning your request for access to
Commission documents registered under the above case number 2022/5566.

Please acknowledge the receipt of this message by return email.

Kind regards,

EUROSTAT ACCESS TO DOCUMENTS TEAM

Dear Sir/Madam,

Confirmatory application in relation to Request for access to documents Gestdem 2022/5566.

In conformity with Article 7(2) of Regulation 1049/2001, ClientEarth AISBL and GLOBAL 2000, Friends of the Earth Austria (the “Applicants”) hereby submit a confirmatory application regarding the Commission’s decision of 9 January 2023 which informs the Applicants that Eurostat DG does not hold any documents that would correspond to the description given in the request for access to documents submitted on 26 September 2022, which was registered under Gestdem/EASE 2022/5566 (the “Request”).

Background of the Request

The Applicants submitted the Request on 26 September 2022 through the platform AsktheEU.org addressed to DG Health and Food Safety and requesting the latter to inquire also DG Eurostat on the Request. On 29 September 2022, DG Health and Food Safety informed the Applicants that it had registered the Request under registration number EASE 2022-5529. On 13 November 2022, DG Health and Food Safety transmitted their initial response, informing the Applicants that it does not hold any documents.

Following this, DG Eurostat has confirmed on 23 November 2022, the registration of the Request under registration number Gestdem/EASE 2022/5566, setting the initial deadline to respond on 14 December 2022, which it subsequently extended until 13 January 2023. On 9 January 2023, within the deadline, DG Eurostat has provided its initial response to the Request ("DG Eurostat Decision ”).

The scope of the initial Request

In their Request, the Applicants sought access to any documents containing pesticide sales data per active substance from 2011 to 2020, aggregated at EU level, that the European Commission relied on to calculate the “harmonised risk indicators 1”, which measure the use and risk of pesticides under Commission Directive (EU) 2019/782, in application of Directive 2009/128/EC (accessible at: https://food.ec.europa.eu/plants/pestici... - fig1) ("Requested Documents”).

Scope of the present Confirmatory Application

The present Confirmatory Application is submitted solely in relation to the DG Eurostat Decision received by the Applicants to their Request, namely the one registered under number Gestdem/EASE 2022/5566. The Applicants hereby respectfully asks the Commission for a new examination of the documents that fall under the scope of the Request and requests access to any existing document that may be found following the new examination.

According to Case T-468/16, Verein Deutsche Sprache e. V. v EU Commission, the applicant in a request for access to documents can rebut the presumption of legality attached to the statement of the EU institution relating to the non-existence of documents requested by submitting relevant supporting evidence (para. 35). In this context, the Applicants’ expectation that DG Eurostat would hold documents falling under the scope of the Request is supported by the fact that without this data, Eurostat would be unable to fulfil its attributions as provided in Article 3(4) of Regulation No. 1185/2009 concerning statistics on pesticides: “For reasons of confidentiality, the Commission (Eurostat) shall aggregate the data before publication in accordance with the chemical classes or categories of products indicated in Annex III, taking due account of the protection of confidential data at the level of individual Member State. ”

DG Eurostat in its Decision, starting from this same legal provision, explains that it does not have any documents falling under the Request, stating that : “Eurostat has never been in a position to aggregate or publish data on active substances, at Member State level or at European Union level. The EU aggregates per active substance have never been computed inside Eurostat’s internal database or otherwise, therefore they are not available upon a search of the database as a separate document. The Harmonised Risk Indicator, measuring the progress achieved in meeting the objectives of the Directive 2009/128/EC3 on the sustainable use of pesticides, is computed on a different technical workflow, which also does not include any aggregates per active substance.”

On this point, the response appears contradictory to Art. 3(4) Regulation 1185/2009 quoted above which clearly states that “the Commission (Eurostat) shall aggregate the data”. It is unclear how the Commission discharges this obligation if it does not have access to the data prior to the aggregation process, i.e. access to the data aggregated by substance (and not only aggregated by group).Moreover, and apparently contrary to the above, DG Eurostat seems to suggest further down in its response that it does hold the data, but that the data cannot be extracted from the database by using routine search options in the sense of Case C-491/15P: “Furthermore, I would like to bring to your attention the most recent judgement in Case C-491/15P, where the Court of Justice took the position that the routine character of an operation which determines whether information extracted from a database is a document, is determined by whether the operation has been made available to final users for general use. The information requested by you is not stored in Eurostat’s database MDTAPROPRODNS-PESTSALES, which contains the data on placing on the market of pesticides. The data range concerned can therefore not be extracted from the relevant database by means of a routine search operation using the search tools available.”

The Applicants consider that this explanation is confusing and contradictory as initially DG Eurostat states that it has never aggregated the data requested, and after appears to explain that the data aggregated by substance does not amount to a document in the sense of Case C-491/15P.

In this context, the Applicants respectfully request a reconsideration of the DG Eurostat assessment regarding the documents falling under the Request. The Applicants do not see how it would have been possible that the European Commission would have been able to calculate the “Harmonised Risk Indicators”, measuring the use and risk of pesticides under applicable EU law, without holding documents containing sales data per active substance at EU level at some stage in the process of coming to that indicator. We therefore consider it unlikely that the Commission does not hold documents containing the requested information.

Acknowledging the ruling of the CJEU in case Typke (C-491/15P) on documents that are extracted from databases of EU institutions, the Applicants remind that the Court concluded that: “[…] [A]ll information which can be extracted from an electronic database by general use through preprogrammed search tools, even if that information has not previously been displayed in that form or ever been the subject matter of a search by the staff of the institutions, must be regarded as an existing document. It follows that the institutions, to satisfy the requirements of Regulation No 1049/2001, may be led to establish a document from information contained in a database by using existing search tools” (para. 37 & 38). In light of this obligation, the Applicants respectfully request the Commission to perform the reassessment.
Should any other relevant documents in fact exist, non-disclosure would constitute an implied, unjustified refusal contrary to Article 7(1) Regulation 1049/2001.

Additionally, the Applicants consider that the unclear and apparently contradictory explanations contained in the decision amount to a failure of the EU institutions’ obligation to state reasons as provided by Article 296 TFEU and Article 41 of Charter of Fundamental Rights. According to the CJEU case law interpreting the duty to state reasons (Case T 450/12, para.3): “the purpose of the obligation to state reasons under Article 296 TFEU is to is to provide the person concerned with sufficient information to make it possible to determine whether the decision is well founded or whether it is vitiated by an error which may make it possible for its validity to be contested, and to enable the Courts of the European Union to review its lawfulness”.

Last but not least, the Applicant point of the Requested Documents contain information on emissions into the environment in the sense of case T-716/14, para. 81. In this context, the disclosure of the Requested Documents, should they exist, benefit from an overriding public interest in disclosure according to Article 6(1) of Regulation 1367/2007.

We, the Applicants, are looking forward to receiving your response to the present Confirmatory Application.

Alice Bernard, Senior Law and Policy Advisor, Chemicals
ClientEarth AISBL
60 Rue du Trône, Box 11, Ixelles, 1050, Belgium

Guy Linley Adams, Senior Law and Policy Advisor, Chemicals
ClientEarth AISBL
60 Rue du Trône, Box 11, Ixelles, 1050, Belgium

Dr. Helmut Burtscher-Schaden, Umweltchemiker
GLOBAL 2000, Friends of the Earth Austria
Neustiftgasse 36, A-1070 Wien, Austria

sg-acc-doc@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/5566, sent on 30/01/2023 and registered on 02/02/2023.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 23/02/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.

Yours faithfully,

Secretariat-General - Access to Documents
European Commission

sg-acc-doc@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/5566, sent on 30/01/2023 and registered on 02/02/2023.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 23/02/2023. We will let
you know if we need to extend this time limit for additional 15 working
days.

Yours faithfully,

Secretariat-General - Access to Documents
European Commission

sg-acc-doc@ec.europa.eu,

Hello,

We are writing concerning your confirmatory request for access to
Commission documents for case 2022/5566 registered on 02/02/2023.

We are currently working on your confirmatory request. However, we have
not yet been able to gather all the elements necessary to carry out a full
analysis of your request. We will not be able to send you the reply within
the prescribed time limit expiring on 23/02/2023.

Therefore, in line with Article 8(2) of [1]Regulation (EC) No 1049/2001 we
need to extend this time limit by 15 additional working days. The new time
limit expires on 16/03/2023.

We apologise for any inconvenience this may cause.

Kind regards,

SG ACCESS TO DOCUMENTS TEAM

References

Visible links
1. https://eur-lex.europa.eu/legal-content/...

Dear Health and Food Safety,

Considering that the extended deadline to respond to our confirmatory application has passed, we would kindly ask you to let us know about your response.

Yours faithfully,

Alice Bernard

sg-acc-doc@ec.europa.eu,

1 Attachment

Hello,

We are writing to you in relation to you confirmatory application for
access to Commission documents for the case 2022/5566. On 29/03/2023, you
sent us a message inquiring about the status of the processing of your
application (attached).

Please note that your application is currently being handled by the
Secretariat-General. Unfortunately, it cannot be processed in a timely
manner, due to the delay caused by the ongoin internal consultation
between the Commission services concerned by the subject matter of your
request. As soon as those are completed, a draft confirmatory decision
will be prepared and submitted for the Legal Service's review.
Subsequently, it will be adopted by the Secretary-General and notified to
you.

We regret the delay in the processing fo your confrimatory application and
sincerely apologise for any inconvenince it may cause.

With kind regards,

SG ACCESS TO DOCUMENTS TEAM

Dear Health and Food Safety,

Considering that the extended deadline to respond to our confirmatory application has passed for six months, we would kindly ask you to let us know about your response.

Kind wishes,
Madalina Popirtaru
Environmental Democracy Lawyer ClientEarth