Dear Secretariat General of the European Commission,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting :

- any impact assessments on the Mercury Regulation submitted to the Regulatory Scrutiny Board (RSB)

- all RSB opinions on these impact assessments

- a list and minutes of any upstream meetings held between RSB members and staff in the Commission on this file

I note that usually the Commission usually only publishes the IA and RSB opinion when the final legislative proposal is published. However, I note the Judgment of the Court of Justice of the European Union of 4 September 2018 in Case C-57/16 P in which the Court held that documents drawn up in the context of an impact assessment procedure for a legislative proposal constitute legislative documents that should be made directly accessible to the public pursuant to Article 12(2) of Regulation No 1049/2001 before the proposal and that access should not be denied on request.

I look forward to hearing from you.

Yours faithfully,

Vicky Cann
CEO
Rue d'Edimbourg 26
1050 Brx

Dear Secretariat General of the European Commission,

Please pass this on to the person who reviews confirmatory applications.
I am filing the following confirmatory application with regards to my access to documents request 'Mercury regulation at the Regulatory Scrutiny Board', Gest-dem 2023/0325.

I originally requested:
- any impact assessments on the Mercury Regulation submitted to the Regulatory Scrutiny Board (RSB)
- all RSB opinions on these impact assessments
- a list and minutes of any upstream meetings held between RSB members and staff in the Commission on this file

In its response to me dated 24 February 2023 (the Decision), the Regulatory Scrutiny Board (RSB) told me that it had identified the following documents as falling in the remit of my application:
- a draft impact assessment submitted to RSB of 15 November 2022 as corresponding to your request (registration number ARES(2022)7871350);
- a Regulatory Scrutiny Board’s opinion on the above-mentioned impact assessment of 16 December 2022 as corresponding to your request (registration number ARES(2022)8770545);
- the minutes of an upstream meeting of 11 January 2022 as corresponding to your request (registration number ARES(2022)7871350).

However, no documents were sent to me and the RSB cited Article 4(3) first subparagraph of Regulation (EC) No 1049/2001. I would like to appeal this.

Precedent
Firstly, I note that when I made a similar request for similar documents relating to the Reach Revision, gestdem 2022/6860, the documents were sent to me, albeit with heavy redactions which I am currently trying to address via another confirmatory application. I do not understand why they were sent in that case but not in this one.

Case C-57/16 P
I am surprised that the RSB refused access to the requested documents given the Court of Justice of the European Union (“Court of Justice”) (in grand chamber formation) in Case C-57/16 P1 already ruled that documents drawn up in the context of an impact assessment for a possible legislative proposal, including draft and final impact assessment reports and the opinions of the RSB, represent legislative documents which the Commission is obliged to make directly accessible to the public pursuant to Article 12(2) of Regulation No 1049/2001 and that access should not be denied on request.

Denying access to the requested documents stands in clear conflict with this judgment, to which I specifically referred in my request. The Decision makes no reference to why this jurisprudence is not being followed.
In case C-57/16 P the Court of Justice found that draft and final impact assessment documents and RSB reports represent legislative documents: "[i]t follows that, as was noted by the Advocate General in points 67 and 68 of his Opinion, such documents, in view of their purpose, are among those covered by Article 12(2) of Regulation No 1049/2001”.2 The fact that, at the stage of the impact assessment, the adoption of a legislative proposal is uncertain, as well as the potential amendments it may undergo, had no bearing on the Court’s conclusion on this point.3

Regulation 1367/2006
The Requested Documents also contain environmental information within the meaning of Article 2(1)(d) of Regulation 1367/2006. In this sense also comparable to those at stake in case C-57/16 mentioned above, which concerned access to the (draft) impact assessment reports and associated opinions pertaining to the potential adoption of EU legislation meant to protect the environment.4 The Court held that these documents contain environmental information.5

The status of the Requested Documents as legislative documents containing environmental information is of significance with regard to the application of the exception in Article 4(3) first paragraph of Regulation 1049/2001.

Public right of access
The Court of Justice previously concluded that "the public right of access to documents of the institutions is related to the democratic nature of those institutions."6 This is enshrined in primary EU law.
According to Article 1 second paragraph of the Treaty on European Union (“TEU”), the legal order of the European Union should be characterised by an "ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen". Moreover, Article 15(1) of the TFEU provides that the institutions, bodies, offices and agencies of the European Union are to conduct their work as openly as possible. Other very important sources of law that oblige EU institutions to respect this principle of openness are Article 10(3) TEU, Article 298(1) TFEU and Article 42 of the Charter of Fundamental Rights of the European Union7.

In light of these requirements, disclosure of documents should be the norm and information may only be withheld under narrowly defined circumstances.
In addition to this, it is the settled case law of the Court of Justice that the exceptions in Article 4 of Regulation 1049/2001 "must be interpreted and applied strictly" because they "depart from the principle of the widest possible public access to documents."8

Thus, “[t]he mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception”.9

According to the Court, “if an EU institution hearing a request for access to a document decides to refuse to grant that request on the basis of one of the exceptions laid down in Article 4 of Regulation No 1049/2001, it must, in principle, explain how access to that document could specifically and actually undermine the interest protected by that exception. Moreover, the risk of the interest being so undermined must be reasonably foreseeable and must not be purely hypothetical.”10

In addition, in order to be covered by the exception in the first subparagraph of Article 4(3) of Regulation No 1049/2001, the decision-making process must be seriously undermined.

Analysing the wording of the Decision in light of the cited case law above, the RSB gives insufficient reasons to justify withholding the requested documents based on Article 4(3) Regulation 1049/2001. No specific evidence is provided in relation to what is the actual and specific risk that the decision-making process would be undermined by the full disclosure of the requested documents. Any potential impacts of disclosure on the decision-making procedure therefore remain purely hypothetical.

Moreover, given that these are legislative documents containing environmental information, the exception in Article 4(3), first subparagraph, must be subject to an even stricter interpretation.11 Accordingly, the justification for refusing to disclose the documents provided by the RSB should have been more compelling. It was not.

The fact that the Decision contains no evidence of the RSB having considered whether these documents contain environmental information amounts to a failure to state reasons. The documents clearly contain environmental information. As such, the RSB should have justified how the exception from disclosure applies with an express consideration and explanation related to the fact that they contain environmental information.

The above mentioned Court of Justice judgement in Case C-57/16 illustrates that the Decision is in direct contravention of the legal standard applicable to requests pertaining to legislative documents containing environmental information. In this case, the Court made clear that transparency in EU decision-making processes contributes “to increasing those citizens’ confidence in those institutions" and recognised that the disclosure of information in good time is crucial to allow citizens to make their views known in an ongoing decision-making procedure.12 Specifically regarding draft and final impact assessment reports and RSB opinions, the Court held that, “such a disclosure, at a time when the Commission’s decision-making process is still ongoing, enables citizens to understand the options envisaged and the choices made by that institution and, thus, to be aware of the considerations underlying the legislative action of the European Union. In addition, that disclosure puts those citizens in a position effectively to make their views known regarding those choices before those choices have been definitively adopted, so far as both the Commission’s decision to submit a legislative proposal and the content of that proposal, on which the legislative action of the European Union depends, are concerned.”13

The future proposal of the Commission in respect of the Mercury Regulation will have a profound effect on people and the environment. Therefore, the process leading to its adoption by the Commission should be open to public scrutiny as required by the EU’s founding treaties. Citizens have a right to know the assessments which represent the basis of the future legislative proposal, which are contained in the requested documents.
Finally, the judgement also demonstrates that the dissemination of certain information related to the initiative, such as by way of consultations etc is no substitute for disclosing documents meeting the definition of legislative documents, either proactively or on request, which is essential to the transparency and openness of the legislative process. As the Court held, specific consultation activities, which are moreover not open to the public as a whole, do not replace the possibility to be granted access to documents on request. It would only be relevant if “publicly available” information would “correspond, in essence”, to the documents requested by the applicant.14 The RSB has not established that this is the case.

To conclude, the refusal provided in the Decision does not allow me to understand if the need for protection of the ongoing decision-making process related to these documents is genuine. This amounts to a breach of Article 296(2) TFEU and Article 41(2)(c) Charter of Fundamental Rights.
In addition, the RSB has clearly failed to demonstrate that disclosure would specifically and actually undermine the ongoing decision-making process and that this risk is reasonably foreseeable and not purely hypothetical. As a result, the RSB has misapplied Article 4(3), first subparagraph of Regulation 1040/2001.

Overriding public interest in full disclosure
Without prejudice to the foregoing, the requested documents should also be fully disclosed based on an overriding public interest in disclosure. Contrary to what is stated in the Decision, an overriding public interest in full disclosure exists.

It follows from the case law of the Court of Justice that the overriding public interest capable of justifying the disclosure of a document must not necessarily be distinct from the principles which underlie Regulation 1049/2001.15 The Court of Justice has confirmed the General Court’s approach in the case Sweden v API and Commission, according to which the invocation of the principle of transparency “may, in the light of the particular circumstances of the case, be so pressing that it overrides the need to protect the documents in question”.16 In addition, the Court of Justice has also held that the specific circumstances justifying the disclosure of documents must be set out, and that purely general considerations are not an appropriate basis for establishing that an overriding public interest prevails.17

The specific circumstances of this case are such that the need for the public to have full access to the requested documents at the current moment is so pressing as to justify their disclosure.
There is no doubt that this initiative is of public interest. Mercury and its compounds are highly toxic to humans, especially to the developing nervous system. They are also harmful to ecosystems and wildlife populations.

Despite significant progress in curbing the use and ultimately emissions of mercury, a number of mercury-added products, including dental amalgam are still allowed on the EU internal market and are being exported by the EU. Mercury-added products, where mercury or mercury compounds are used, represent the last remaining intentional uses of mercury in the EU. The upcoming revision of the Mercury Regulation aims to further restrict these intentional uses of mercury, specifically in dental amalgam and certain mercury-added products in order to contribute to the European Green Deal Zero Pollution ambition for a toxic-free environment.18

It is extremely urgent to assess the full content of the requested documents in order to participate in the Commission’s decision-making process in relation to the legislative proposal, to be able to scrutinise the ongoing decision-making process and assess whether all the appropriate options and their consequences are taken into account in the Commission’s development of this upcoming legislation, and to inform the wider public accordingly so that they can also make their voices heard.

In conclusion, I submit that there is also an overriding public interest, which requires that the requested documents be fully disclosed by the RSB.

I look forward to hearing from you and hope to receive the requested documents, in full, as soon as possible.

Yours faithfully,

Vicky Cann

1. Case C-57/16P, ClientEarth v. EU Commission, ECLI:EU:C:2018:660, paras 84-95.
2. Ibid, para. 93.
3. Ibid, para. 92.
4. Ibid, para. 10. Specifically, the documents at issue were a draft impact assessment report relating to access to justice in environmental matters at Member State level in the field of EU environmental policy and an opinion of the Impact Assessment Board regarding that draft and an impact assessment report regarding a proposed binding instrument setting a strategic framework for risk-based inspection and surveillance in relation to EU environmental legislation and an opinion of the Impact Assessment Board regarding that report
5. Ibid, para. 101.
6. C 280/11 P Council v Access Info Europe, para. 27 and the case law cited.
7. C 213/15 P Commission v Breyer, para. 52.
8. See inter alia, C‑64/05 P Sweden v Commission, para. 66, C‑506/08 P Sweden v MyTravel and Commission, para. 75 and C-60/15 P Saint-Gobain Glass v Commission, para. 63.
9. Case T-51/15 PAN Europe v Commission, para. 22.
10. C 280/11 P Council v Access Info Europe, paras 30 and 31 and the case-law cited.
11. C-57/16 P ClientEarth v Commission, para. 101. As regards environmental information, see also C-60/15 P Saint-Gobain Glass v Commission, para. 78.
12. C-57/16 P ClientEarth v Commission, paras 75 and 84.
13. ibid, para. 92.
14. Ibid, para. 94.
15. Joined cases C-514/11 and C-605/11, LPN and Finland v Commission, ECLI:EU:C:2013:738, paragraph 92; Joined cases C-39/05 P and C-52/05 P, Sweden and Turco v Council, ECLI:EU:C:2008:374, paragraphs 74-75.
16. Joined cases C-514/07 P, Sweden and others v API and Commission, ECLI:EU:C:2010:541, paragraphs 152-153.
17. Joined cases C-514/11 and C-605/11, LPN and Finland v Commission, ECLI:EU:C:2013:738, paragraphs 93 and 94.
18. https://eeb.org/library/revision-of-regu...

Dear Secretariat General of the European Commission,

The confirmatory application to 2023/0325 was submitted on 1 March. It is now over 2 months later. Please can you indicate when I will receive the substantive reply? I hope it will be very imminently.

Yours faithfully,

Vicky Cann

Dear SG ACCES DOCUMENTS,

Thank you for your reply of 16 May on 2023/0325 but it is not acceptable to have no deadline set at all. I consider the Commission is in complete violation of Regulation 1049 which only allows for one extension of 15 days in “exceptional circumstances” with “detailed reasons”.

If I don’t receive a substantive reply by Friday 26 May I will take a complaint to the Ombudsman. Afterall having access to these documents, in real time, is required so that the public can meaningfully participate and engage. The delays in this case are currently thwarting this objective.

Yours sincerely,

Vicky Cann

Dear [email address],

Thank you for the documents and reply to my confirmatory request.

Yours sincerely,

Vicky Cann