Ref. Ares(2020)4117196 - 05/08/2020
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DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 4 OF THE
IMPLEMENTING RULES TO REGULATION (EC) NO 1049/20011
Your confirmatory application for access to documents under
Regulation (EC) No 1049/2001 - GESTDEM 2018/4341
I refer to the e-mail of 16 October, registered on 18 October 2018, in which you
submitted a confirmatory application, on behalf of ClientEarth, in accordance with
Article 7(2) of Regulation (EC) No 1049/2001 regarding public access to European
Parliament, Council and Commission documents2 (hereafter ‘Regulation (EC) No
SCOPE OF THE REQUEST
In the initial application of 8 August 2018, registered under the reference number
GESTDEM 2018/4341 and dealt with by the Directorate-General for Internal Market,
Industry, Entrepreneurship and SMEs, ClientEarth requested access to the report
submitted by the authorisation holder to the European Commission, in accordance with
Article 1(3)(e) of the Commission Implementing Decision C(2016)5644 of 7 June 2016
granting an authorisation for some uses of two lead chromate pigments, i.e. lead
Official Journal L 345 of 29 December 2001, p. 94.
Official Journal L 145 of 31 May 2001, p. 43.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
and lead chromate molybdate sulfate red
, under Regulation (EC)
No 1907/20063 of the European Parliament and of the Council.
Taking into account the opinion of the authorisation holder DCC Maastricht B.V., from
which the requested document originates, the Directorate-General for Internal Market,
Industry, Entrepreneurship and SMEs refused access in its initial reply dated
25 September 2018. This refusal was based on the exceptions of Article 4(2), first indent
(protection of commercial interests of a legal person) and of Article 4(2), third indent
(protection of the purpose of inspections, investigations and audits) of Regulation (EC)
In the confirmatory application, ClientEarth requested a review of the position of the
Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs. The
request was supported with detailed arguments that I have taken into account in my
review, the results of which are set out below.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) NO 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant to
Regulation (EC) No 1049/2001, the Secretariat-General conducts a review of the reply
given by the relevant Directorate-General at the initial stage.
Following the confirmatory review and taking into account the opinion of DCC
Maastricht B.V., which had been re-consulted and agreed to partial disclosure, I can
inform you that partial access is granted to the document requested.
The partial refusal is based on the exception of Article 4(2), first indent (protection of
commercial interests of a natural or legal person, including intellectual property) of
Regulation (EC) No 1049/2001.
2.1. Protection of the commercial interests of a natural or legal person,
including intellectual property
Article 4(2), first indent of Regulation (EC) No 1049/2001 stipulates that ‘[t]he
institutions shall refuse access to a document where disclosure would undermine the
protection of commercial interests of a natural or legal person, including intellectual
property, […] unless there is an overriding public interest in disclosure’.
The General Court clarified that documents, the disclosure of which would seriously
undermine the commercial interests of a legal person, ‘contain commercially sensitive
information relating, in particular, to the business strategies of the undertakings
3 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006
concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH),
establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council
Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council
Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and
2000/21/EC, Official Journal L 39 of 30.12.2006, p.1; a consolidated version is published as
2006R1907 — EN — 10.04.2014 — 018.001.
concerned or their commercial relations or where those documents contain information
particular to that undertaking which reveal its expertise’.4
The redacted parts on numerous pages of the requested document contain the names of
the downstream users of the authorisation holder.
Moreover, the redacted parts contain absolute and percentage figures on the number of
downstream users who indicated alternative uses as well as on the sectors where these
users committed to continuing the use of the two pigments.
Furthermore, they contain pie charts with percentage figures that show precise shares of
end uses of the two pigments concerned for different (sub-)sectors within the relevant
market segment. In addition, the redacted parts of the bar charts on pages 19 and 82 of the
document contain absolute figures indicating exactly for how many downstream users
each key technical property of the pigments is important.
All of this information clearly pertains to the commercial relations and the business
strategy of DCC Maastricht B.V.
Indeed, the public disclosure of this specific information would not only reveal the
commercial relations of DCC Maastricht B.V. with its downstream users, but also the
overall importance as well as the specific segmentation of its customer base concerning
the two pigments, thus showing how important the use of the two pigments is for the
company, in general, and which sectors within the market segment concerned are the
most important for the company, in particular.
Furthermore, the disclosure of the exact figures concerning the key properties of the two
pigments would put in the public domain detailed information on the preferences of the
downstream users and the resulting importance for the economic activities and the
business strategy of DCC Maastricht B.V.
On the basis of this information, the competitors of DCC Maastricht B.V. would be able
to align their economic action and to target specifically the latter's customers, thereby
gaining a commercial advantage that they would otherwise not have had, undermining in
this way the commercial interests of the company.
With regard to the names of the downstream users, I also refer to Article 118(2), point (d)
of Regulation (EC) No 1907/2006, according to which information on ‘links between a
manufacturer or importer and his distributors or downstream users’ is to be considered as
information the disclosure of which ‘shall normally be deemed to undermine the
protection of the commercial interests of the concerned person’.
This kind of information is therefore presumed to be covered by the exception referred to
in Article 4(2), first indent, of Regulation (EC) No 1049/2001. There is no element, in the
4 Judgments of the General Court of 5 February 2018, PTC Therapeutics Ltd v. European Medicines
, Case T-718/15 EU:T:2018:66, paragraph 85 and MSD Animal Health Innovation GmbH v
European Medicines Agency
, Case T-729/15, EU:T:2018:67, paragraph 68.
present case, that could be seen as capable of rebutting this presumption. In addition, the
conditions under which such information may be disclosed, in accordance with Article
118(2), last paragraph of Regulation (EC) No 1907/2006, are not met in the case at hand.
Following the same considerations, in the context of the indications on potential
alternative uses of downstream users, the names of a brand and of a customer of
downstream users have been redacted (pages 55, 56, 62), as their disclosure would reveal
the commercial relations between the different commercial organisations involved.
Furthermore, information concerning the composition of mixtures of pigments evaluated
by downstream users as potential alternatives to the two pigments concerned has also
been redacted (on pages 31, 59, 62 and 69). These issues relate to the know-how of each
downstream user concerned and thus constitute – in line with the above-mentioned case
law – elements of information ‘particular to that undertaking which reveal its expertise’.5
Based on the foregoing analysis, I consider that there is a real and non-hypothetical risk
that public access to the above-mentioned information would negatively affect the
commercial activities of the company DCC Maastricht B.V. as well as those of its
downstream users and the latter’s customers, in particular in the existing competitive
context, thereby seriously undermining their commercial interests.
Therefore, I conclude that access to the relevant parts in the requested document has to be
refused, on the basis of the exception laid down in the first indent of Article 4(2) of
Regulation (EC) No 1049/2001.
Partial access is hereby granted to the requested document, as set out above.
OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in Article 4(2), first indent of Regulation (EC) No 1049/2001
must be waived if there is an overriding public interest in disclosure. Such an interest
must, firstly, be public and, secondly, outweigh the harm caused by disclosure.
ClientEarth claims that it is in the public interest to have access to the specific
information in the context of the authorisation of certain uses of the two pigments, in
particular ‘on the status of the suitability and availability of alternatives, providing a
detailed justification of the need to use lead sulfochromate yellow
or lead chromate
molybdate sulfate red’
as well as ‘why the performance criteria […] are technically
achievable only by using that substance and that such performance is necessary for the
The redacted parts do not contain any relevant information in this context.
Moreover, I consider that the argument contained in the confirmatory application, according
to which the ‘identity and location6’ of downstream users fall within the scope of the
concept of information on emissions into the environment and that an overriding public
interest deems to exist in accordance with Article 6(1) of Regulation (EC) No 1367/20067,
does not hold.
Indeed, the General Court has recently confirmed the settled case law of the European
Courts on the concept of information relating to emissions into the environment as
follows. The latter ‘must be understood to include, inter alia, data that will allow the
public to know what is actually released into the environment or what, it may be foreseen,
will be released into the environment under normal or realistic conditions of use of the
product or substance in question, namely those under which the authorisation to place
that product or substance on the market was granted and which prevail in the area where
that product or substance is intended to be used. Consequently, that concept must be
interpreted as covering, inter alia, information concerning the nature, composition,
quantity, date and place of the actual or foreseeable emissions, under such conditions,
from that product or substance.’8 The Court also held that that concept ‘may not, in any
event, include information containing any kind of link, even direct, to emissions into the
Against this background, neither the names of the downstream users nor the other
protected commercially sensitive information relate to emissions into the environment, as
this kind of information does not provide any indications concerning the nature,
composition, quantity, date and place of actual or foreseeable emissions under normal or
realistic conditions of use of a concrete product containing the two pigments concerned.
Consequently, no overriding public interest seems to exist.
Nor have I, based on the elements at my disposal, been able to identify any elements
capable of demonstrating the existence of a public interest that would override the need to
protect the commercial interests of the companies concerned.
The fact that the document relates to an administrative procedure and not to any
legislative act, for which the Court of Justice has acknowledged the existence of wider
openness,10 provides further support to this conclusion.
6 The requested document does not contain information on the location of downstream users.
7 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on
the application of the provisions of the Aarhus Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environmental Matters to Community
institutions and bodies, Official Journal L 264 of 25.9.2006, p. 13.
8 Judgment of the General Court of 21 November 2018, Stichting Greenpeace Nederland and Pesticide
Action Network Europe v European Commission,
T-545/11 RENV, EU:T:2013:523, paragraph 56.
, paragraph 58.
10 Judgment of the Court of Justice of 29 June 2010, Commission v Technische Glaswerke Ilmenau
C-139/07 P, EU:C:2010:376, Commission
v Bavarian Lager
judgment, cited above, paragraphs
56-57 and 63.
MEANS OF REDRESS
I would like to draw your attention to the means of redress that are available against this
decision concerning public access to the requested documents, that is, judicial
proceedings and complaints to the Ombudsman under the conditions specified
respectively in Articles 263 and 228 of the Treaty on the Functioning of the European
For the Commission