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Request for access to impact assessment documentation on the legislative initiative to reform REACH and on the opinion(s) issued by the RSB

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19 October 2022
ClientEarth
60 Rue du Trône (3ème étage),
Box 11 Ixelles, 1050 Bruxelles, Belgique

Dear Sir/Madam,

In accordance with Articles 2 and 6(1) of Regulation 1049/2001, Article 3 of Regulation 1367/2006, and Article 42 of the Charter of Fundamental Rights ClientEarth AISBL requests access to documents prepared in the context of the legislative initiative regarding REACH (This initiative is mentioned and described at: https://ec.europa.eu/environment/chemica...) .

The documents requested consist of:
a) any impact assessment report(s) whether in draft form or already finalized; and
b) any opinion(s) by the Regulatory Scrutiny Board (RSB) on the impact assessment report(s), as soon as issued

We urge you to take due account of the judgment of the Court of Justice of the European Union of 4 September 2018 in Case C-57/16 P (https://eur-lex.europa.eu/legal-content/...) , 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 and that access should not be denied on request (see paragraphs 84-95).

We note that the Commission’s Better Regulation Guidelines state that “[t]he purpose of evaluations, namely to promote inputs to decision-making, organisational learning, accountability/transparency and efficient resource allocation, can only be achieved if the resultant information reaches all interested parties.” (Tool #50 on Disseminating the evaluation findings). It is in the spirit of these objectives that we make this request to the Commission.

Finally, we request that the document/information falling within the scope of this request to be made publicly available on the Commission’s documents register, in accordance with Articles 11 and 12 of Regulation 1049/2001 and Article 4 of Regulation 1367/2001.

Yours sincerely,

Apolline Roger
Law and Policy Advisor
Chemical Programme
ClientEarth

Throughout the process of handling this request please copy:
Madalina Popirtaru
Lawyer, Environmental Democracy
ClientEarth

Sg-Acc-Doc@ec.europa.eu, Secretariat General of the European Commission

Your message has been received by the Transparency Unit of the
Secretariat-General of the European Commission.
Requests for public access to documents are treated on the basis of
[1]Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents.
The Secretariat-General will reply to your request within 15 working days
upon registration of your request and will duly inform you of the
registration of the request (or of any additional information to be
provided in view of its registration and/or treatment).
 
 
L’unité «Transparence» du secrétariat général de la Commission européenne
a bien reçu votre message.
Les demandes d’accès du public aux documents sont traitées sur la base du
[2]règlement (CE) n° 1049/2001 du 30 mai 2001 relatif à l’accès du public
aux documents du Parlement européen, du Conseil et de la Commission.
Le secrétariat général répondra à votre demande dans un délai de 15 jours
ouvrables à compter de la date d’enregistrement de votre demande, et vous
informera de cet enregistrement (ou vous indiquera toute information
supplémentaire à fournir en vue de l'enregistrement et/ou du traitement de
votre demande).
 
 
Ihre Nachricht ist beim Referat „Transparenz“ des Generalsekretariats der
Europäischen Kommission eingegangen.
Anträge auf Zugang zu Dokumenten werden auf der Grundlage der
[3]Verordnung (EG) Nr. 1049/2001 vom 30. Mai 2001 über den Zugang der
Öffentlichkeit zu Dokumenten des Europäischen Parlaments, des Rates und
der Kommission behandelt.
Das Generalsekretariat beantwortet Ihre Anfrage innerhalb von
15 Arbeitstagen nach deren Registrierung und wird Sie über die
Registrierung Ihres Antrags (oder die Notwendigkeit weiterer Informationen
im Hinblick auf dessen Registrierung und/oder Bearbeitung) unterrichten.
 
 

References

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

SG-DOSSIERS-ACCES@ec.europa.eu,

Dear Sir or Madam,

We hereby acknowledge the receipt of your request for access to documents
sent on 19/10/2022 and registered on 19/10/2022 under the case number
2022/5960.

We will handle your request within 15 working days as of the date of
registration. The time-limit expires on 11/11/2022. 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,

Secretariat-General - Access to Documents
European Commission

References

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

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

1 Attachment

Hello,

Please find attached a message concerning your request for access to
Commission documents registered under the above case number 2022/5960.

Kind regards,

ENV-B02-ARES@ec.europa.eu, Secretariat General of the European Commission

Dear Ms Roger,

 

Please accept our apologies for the delay in the handling of your
applications, registered under reference numbers EASE 2022- 5960, 6085.

 

We are not able to respond within the extended time-limit, as the work and
the consultations necessary for the disclosure of the documents have not
been finalised yet.

 

Please be assured that we are handling your applications with priority and
we will do our utmost to provide you with the final reply in the coming
days.

 

Please accept our sincerest apologies for any inconvenience caused by this
delay.

 

Yours sincerely,

Safe and Sustainable Chemicals unit

DG-Environment

 

Confirmatory Application in respect of the Commission’s implied refusal to provide access to documents GestDem No. 2022/5960 / EASE No. 2022- 5960, 6085

Dear Sir/Madam,

In accordance with Article 7(4) of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents, ClientEarth AISBL (the “Applicant”) hereby submits this confirmatory application in respect of the Commission’s implied refusal of 19 October 2022 regarding the request for access to documents GestDem No. 2022/5960 / EASE No. 2022- 5960, 6085 (the “Request”) submitted through www.AsktheEU.org platform (the present platform).

On 19 October 2022 the Commission acknowledged receipt of the Request and informed the Applicant that the 15 working days’ time limit for responding would expire on 11 November 2022. The Commission sent a second communication on 10 November 2022, informing the Applicants that the deadline would be extended by a further 15 working days to 02 December 2022, because “an extended time limit is needed for the purpose of internal consultations”.

On 6 December 2022, the Commission sent yet another email, mentioning that “we are not able to respond within the extended time-limit, as the work and the consultations necessary for the disclosure of the documents have not been finalised yet”.

Given that the Commission still has not provided a response to the Request upon this date, the Applicant is thus entitled to make a confirmatory application in accordance with Article 7(4) of Regulation 1049/2001.
In the event that the Commission provides us with its initial decision on the Request while the confirmatory decision connected to the present confirmatory application is pending, the Applicant requests that, in the interests of sound administration and access to justice, we are permitted by the Commission’s Secretariat- General to amend the confirmatory application as necessary, taking into account the express initial decision.

We look forward to receiving your response promptly and in any event within 15 working days, in accordance with Article 8 of Regulation 1049/2001.

Best,
Apolline Roger
Lawyer / Juriste, Chemicals Project Lead

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

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/5960, sent on 23/12/2022 and registered on 04/01/2023.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 25/01/2023. 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

ENV-B02-ARES@ec.europa.eu, Secretariat General of the European Commission

3 Attachments

Dear Ms Roger,

 

Please find attached the reply to your above-mentioned access to documents
request.

 

We would like to apologise for the delay and the inconvenience this may
have caused.

 

Kind regards,

Safe and Sustainable Chemicals Unit

 

DG-Environment

European Commission

 

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

1 Attachment

Hello,

Please find attached a message concerning your request for access to
Commission documents registered under the above case number 2022/5960.

Kind regards,

Dear Sir/Madam,

Confirmatory application in respect of the Commission’s partial refusal to provide access to the documents requested through request EASE no. 2022/5960

In conformity with Article 7(2) of Regulation 1049/2001, ClientEarth AISBL, (the “Applicant”) hereby submits a confirmatory application regarding the Commission's decision of 18 January (the “Decision").

Background of the Request:
In the Request, which was submitted on 19 October 2022 through the AsktheEU.org platform, the Applicant requested access to the documents prepared in the context of the legislative initiative regarding REACH, specifically to a) any impact assessment report(s) whether in draft form or already finalized (“Requested Impact Assessment”) and b) any opinion(s) by the Regulatory Scrutiny Board (RSB) on the impact assessment report(s) (“Requested RSB Opinion”) (collectively, the “Requested Documents”).

On 19 October 2022, the Commission confirmed the registration of the Request and established the initial deadline to respond on 11 November 2022. On 10 November 2022, the Commission informed the Applicant that “[a]n extended time limit is needed for the purpose of internal consultations”, setting the new deadline to respond on 2 December 2022. In line with Article 7(3) Regulation 1049/2001, this deadline constituted the longest legally possible extension of the time-limit to reply (i.e. 30 working days after the initial request).
On 6 December 2022, i.e. after the deadline had passed, the Commission informed the Applicant that “[w]e are not able to respond within the extended time-limit, as the work and the consultations necessary for the disclosure of the documents have not been finalised yet”.

On 23 December 2022, as there was no response provided by the Commission to the Request, which amounts to an implied negative refusal in the sense of Article 7(4) of Regulation 1049/2001, the Applicant submitted a brief confirmatory application. In this application, the Applicant indicated that, in the interest of good administration and access to justice, it should be allowed to submit also a confirmatory application after the Commission provides its initial response.

On 20 January 2023, after the Commission sent the Decision to the Applicant, the Commission also communicated that the confirmatory application submitted on 23 December is closed, confirming that the Applicant is entitled to a confirmatory application to respond to the express reply provided in the Decision.

The Decision provided by the Commission:
The Decision was submitted on 18 January 2022 and it allowed partial access to only one of the Requested Documents, namely to the Requested Impact Assessment (and to its Annexes, which we refer to below as being comprised under the “Requested Impact Assessment” definition), but did not refer at all to the Requested RSB Opinion.

In relation to the Requested Impact Assessment, the Decision states that the disclosure of the redacted parts of the documents is protected by the exception provided under Article 4(3) first indent of Regulation 1049/2001.

According to the Decision, the redacted parts of the Requested Impact Assessment contain:
“-analyses of the economic, social, including human health and environmental impacts of the various policy options envisaged for the proposal for the revision of the REACH Regulation, including an overview of the benefits and costs
- a detailed comparison between the identified policy options on this basis
- analyses of the preferred options/sub-options to be included in the proposal for the revision of the REACH Regulation, on the basis of the preceding discussion of the impacts and of their comparison”.

The reasoning submitted by the Commission to justify the non-disclosure of the redacted parts of the Requested Impact Assessment is that:
“[t]he discussion of the impacts of the policy options, of their comparison, as well as of the preferred options, which is made in the requested documents, is still in a draft form. At the present stage, some elements of the impact assessment and its annexes are still under consideration. The requirements under Better Regulation as well as internal considerations and discussions with other services could still lead to various substantial amendments. If released now, the content of the redacted parts could give rise to unnecessary misunderstandings”.

Moreover, the Commission continues stating that: “[a]chieving such objectives requires strong evidence, clarity of solutions and political determination. Most of the issues covered by this revision are of a wide-ranging nature and require further analysis by Commission services. The content of the impact assessment is intrinsically linked to such issues that the College of Commissioners must still decide upon.”
In the overall justification, the Commission is also relying on the CJEU case C-57/16, ClientEarth v. Commission. This is particularly remarkable as in that case, the Court actually ruled the contrary to the conclusions of the Commission in the Decision. The Court concluded 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. In this context, the Commission is obliged to make them directly accessible to the public pursuant to Article 12(2) of Regulation No 1049/2001 and that access should not be denied when such are requested. Against this background, denying access to the Requested Documents stands in clear conflict with this judgment and, as a result, has misapplied the exception, as will be shown in the following.

The Applicant considers that, despite the references in the Decision to an individual assessment having been made on the necessity to protect the redacted parts of the Impact Assessment, the Decision is actually not based on a specific and individual examination and fails to identify a serious risk of undermining the ongoing decision-making process to the applicable legal standard.

The Applicant hereby requests a reconsideration of the Decision for the reasons below.

I. Preliminary remarks on the nature of the Requested Documents
1. The Requested Documents are legislative documents
The Requested Documents constitute legislative documents within the meaning of Regulation 1049/2001. This is because they were created in the context of the REACH revision legislative procedure as the Commission confirms in the Decision.

Article 12(2) of Regulation 1049/2001 provides a clear definition of "legislative documents", that is "documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States". It is clear from the Commission’s Inception Impact Assessment (https://ec.europa.eu/info/law/better-reg...) that the Commission considers a legislative proposal as the likely outcome of the impact assessment process. The Decision confirms that this is the case. Therefore, the Requested Documents are part of the procedures for the adoption of an act that will be legally binding for the Member States.

This is supported by case C-57/16 P in which 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” (para. 92). 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 (para. 93)

2. The Requested Documents contain environmental information
The Requested Documents also contain environmental information within the meaning of Article 2(1)(d) of Regulation 1367/2006.
Essentially, the Requested Documents outline various policy options that the Commission has identified in the context of the REACH revision. Specifically, the Decision mentions that the redacted parts contain an “analysis of the preferred options/sub-options to be included in the proposal for the revision of the REACH Regulation, on the basis of the preceding discussion of the impacts and of their comparison.”
These are options/sub-options to implement the European Commission’s commitment to “to deliver on the ambitious objectives set under the European Green Deal, which aims to transform the EU into a fair, clean and climate neutral, resource-efficient and competitive economy”, as the Decision itself mentions.

Since one of the central objectives of the REACH revision is the implementation of the Green Deal in general and the Chemical Strategy in particular and, thus, environmental protection, the information included in the Requested Documents falls within several categories of the definition the “environmental information” laid down in Article 2(1)(d) of Regulation 1367/2006, as they contain information on:
(i) measures, such as policies and legislation, affecting or likely to affect the elements and factors of the environment, as well as measures designed to protect these elements. The elements of the environment are defined in Article 2(1)(d)(i) of Regulation 1367/2006 and include air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, as well as the interaction among them. The factors of the environment are defined in Article 2(1)(d)(ii) and include substances, energy, noise, radiation or waste, including emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment;
(ii) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in point (i) above;
(iii) the state of human health and safety, including conditions of human life in as much as they are or may be affected by any of the matters referred to in points (i).

The Requested Documents are 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 (para. 10). The Court held that these documents contain environmental information (para. 101).

As will be shown below, the status of the Requested Documents as legislative documents containing environmental information is of significance when applying the exceptions from disclosure provided by Regulation 1049/2001.

II. Scope of the present Confirmatory Application
Through the present Confirmatory Application, the Applicant is requesting the Commission to reconsider its Decision. Specifically, the Applicant requests the Commission to:
(i) verify the existence of the Requested RSB Opinion and grant full access to it, should the document exist– as the lack of any information on this document in the Decision amounts to failure to state reasons under Article 289 TFEU and
(ii) grant full access to the Requested Impact Assessment – as the Commission has misapplied the exception provided in Article 4(3) first indent of Regulation 1049/2001 to protect the redacted parts of the Requested Impact Assessment.
In the alternative, the Applicant considers that the Commission has failed to recognise an overriding public interest in disclosure of the Requested Documents and requests the Commission the above-mentioned, withheld Requested Documents on that basis.

1. Reconsideration of the Decision in respect of the Requested RSB Opinion
In the Decision, the Commission does not give any information in relation to the Requested RSB Opinion, as it lacks any mention of it despite the Applicant’s express request for disclosure in the Request.
In this context, the Applicant 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 identified. As confirmed by the CJEU (Case T-653/16 Malta v Commission, para. 63), it is well-established practice for the institutions to verify as part of the assessment of a confirmatory application whether all documents falling under the scope of the request have been identified at the initial stage. Following this verification, “an institution may, at any moment, including for the first time during the examination of the confirmatory application to the application for access, identify further documents potentially related to the application” (para. 84).

Furthermore, 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 Applicant’s expectation that the Commission holds the Requested RSB Opinion is supported by two reasons:
Firstly, the procedure of having the Regulatory Scrutiny Board issuing an opinion is mandatory for any legislative initiative in relation to which an Impact Assessment is elaborated. In this context, considering that for the REACH revision an Impact Assessment was elaborated, there is no doubt that a RSB Opinion should have also been prepared. The fact that the Regulatory Scrutiny Board was consulted in this present legislative process is also confirmed by the disclosed parts of the Impact Assessment, as Annex I, section 3 is expressly mentioning this aspect.

Secondly, considering the advanced stage of preparations for a Commission proposal on the REACH revision when the request was submitted on 19 October 2022 (according to the website of the EU Commission: https://ec.europa.eu/environment/chemica..., the proposal was originally meant to be published by the end of 2022), the Applicant would therefore find it surprising that the Requested RSB Opinion would not exist already at all.

Should the Requested RSB Opinion in fact have existed on that date, non-disclosure would constitute an implied, unjustified refusal, contrary to Article 7(1) Regulation 1049/2001. In this sense, the Applicant reminds that the EU institutions have the obligation to communicate to the Applicant a full list of all the documents that have been identified as falling under the scope of the request (Case T701/18, Campbell vs. EU Commission, paras. 44-46) and to explain in a specific and actual manner how disclosure of the documents would undermine the interest protected by the exception from disclosure (C57/16 P, ClientEarth vs. Commission, para. 51).

This lack of any mention in the Decision regarding the Requested RSB Opinion also amounts to a failure to state reasons under Article 296 TFEU and breach of Article 41(2)(c) 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”.

In case the Decision is to be understood as meaning that at the time of the request (i.e. on 19 October 2022), the requested RSB Opinion did not exist, and for that reason this document was considered to not fall within the scope of the present Request, we urge the Commission to disclose them now with the confirmatory decision, and note that the Commission is entitled to do so, in line with paragraph 84 of the Court’s judgment in case T-635/16 Malta v Commission and in light of Article 41 of the Charter of Fundamental Rights of the EU. In the alternative, we would kindly request the Commission to treat this confirmatory application as a new request to the RSB Opinion on the Impact Assessment Reports concerning the REACH revision (i.e. the Requested RSB Opinion) that has started to exist since then (I.e. between 19 October 2022 and 8 February 2023).

2. Reconsideration of the Decision in respect of the Requested Impact Assessment
According to the Decision, the redacted parts of the Impact Assessment are protected from disclosure since they relate to a decision that has not yet been taken by the Commission: “[…] the discussion of the impacts of the policy options, of their comparison, as well as of the preferred options, which is made in the requested documents, is still in a draft form. At the present stage, some elements of the impact assessment and its annexes are still under consideration. The requirements under Better Regulation as well as internal considerations and discussions with other services could still lead to various substantial amendments. If released now, the content of the redacted parts could give rise to unnecessary misunderstandings”. In this context, the Commission is applying the exception laid down in the first subparagraph of Article 4(3) first indent of Regulation 1049/2001.

At the outset, the Applicant recalls that the CJEU in case C-57/16, ClientEarth v. Commission, already rejected similar argumentation aimed at protecting from disclosure the same type of documents as the Requested Documents. In para. 92 of that case, 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.”

The Applicant submits that the general, vague and opaque justification provided by the Commission in the Decision cannot support the application of the exception from disclosure provided under Article 4(3), first subparagraph, of Regulation 1049/2001 as it falls far short of the legal test established by the case law of the Court of Justice, Article 296 TFEU and Article 4(3) of Regulation 1049/2001 itself (see, for example, the Court’s judgment in case T-51/15 PAN Europe v Commission, in which the General Court found the Commission’s reasons, which were similar, although slightly more detailed than those put forward in the Decision, to be vague, general and imprecise and thus insufficient to substantiate any risk to the decision-making process at issue in that case (see paras 32 – 35).

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." (See inter alia, Case 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). 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”.( Case T-51/15 PAN Europe v Commission, para. 22.) 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”(Case C 280/11 P Council v Access Info Europe, paras 30 and 31 and the case-law cited).

In addition, in order to be covered by the exception in the first subparagraph of Article 4(3) first indent of Regulation No 1049/2001, the decision-making process must be seriously undermined. Analysing the wording of the Decision in light of this requirement, it is beyond doubt that the Commission gives insufficient reasons to justify withholding the Requested Documents based on Article 4(3) first indent of Regulation 1049/2001. No specific reason (let alone evidence of such) is provided in relation to what is the actual and specific risk that the decision-making process would be undermined by the disclosure of the Requested Documents. Any potential impacts of disclosure on the decision-making procedure therefore remain purely hypothetical.

Moreover, given that the Requested Documents are legislative documents containing environmental information, the exception in Article 4(3), first indent, must be subject to an even stricter interpretation (Case C-57/16 P ClientEarth v Commission, para. 101); more generally as regards environmental information, see also C-60/15 P Saint-Gobain Glass v Commission, para. 78). Accordingly, the justification for non-disclosure provided by the Commission should have equally been more compelling. It was not.
The fact that the Decision contains no evidence of the Commission having considered whether the Requested Documents contain environmental information amounts to a failure to state reasons under Article 296 TFEU. The Requested Documents clearly contain environmental information, as explained above. As such, the Commission should have justified how the exception from disclosure applies to the Requested Documents 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 (Case T-51/15 PAN Europe v Commission, para. 22).

The future proposal of the Commission in respect of the REACH revision 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 Impact Assessment.

Finally, the judgement also demonstrates that the dissemination of certain information related to the initiative, such as by way of the mentioned “appropriate established channels, as part of its obligatory consultative activities (e.g. inception impact assessment, open public consultations, targeted 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 in Case C-57/16, in para. 94, 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 “public available” information would “correspond, in essence”, to the documents requested by the applicant. The Commission has not established that this is the case with regard to the Requested Documents.

To conclude, the refusal provided in the Decision does not allow the Applicant to understand if the need for protection of the ongoing decision-making process related to Requested 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 Commission 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 Commission has misapplied Article 4(3), first subparagraph of Regulation 1049/2001.

III. There is an overriding public interest in disclosure of the Requested Documents
Without prejudice to the foregoing, the Requested Documents should also be disclosed based on an overriding public interest in disclosure. Contrary to what is stated in the Decision, an overriding public interest in disclosure exists.

This 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 (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). 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” (Joined cases C-514/07 P, Sweden and others v API and Commission, ECLI:EU:C:2010:541, paragraphs 152-153). 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 (Joined cases C-514/11 and C-605/11, LPN and Finland v Commission, ECLI:EU:C:2013:738, paragraphs 93 and 94).

The Applicant submits that 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.

As recalled in the Inception Impact Assessment on the Revision of EU legislation on registration, evaluation, authorisation and restriction of chemicals (https://ec.europa.eu/info/law/better-reg... “The objectives of the Chemicals Strategy for Sustainability are to better protect citizens and the environment against hazardous chemicals and encourage innovation for the development of safe and sustainable alternatives. To this end the Strategy outlined a number of actions intended to increase the knowledge base and control of chemicals. Chemicals are everywhere in our daily lives. They are fundamental for our well-being and high living standard and are important building blocks of key technologies to address future challenges. […] The REACH Regulation was last evaluated in 2018 (referred to as “latest REACH Review” below). It concluded that REACH is effective but that there are opportunities for further improvement, simplification and burden reduction. Following the evaluation, a number of non-legislative actions have been launched (some of them finalised, others still ongoing) to improve the implementation of REACH.

There is no doubt that this initiative is of public interest as it should reduce the risk that products and services put on the EU market and "will increase the protection of human health by reducing the exposure to hazardous chemicals, for citizens in general, and for workers and self-employed, including via the environment" (according to the Inception Impact Assessment). This upcoming legislation will apply across sectors and therefore should have an effect on all businesses operating in the EU. As business activities impact people and the environment, the Applicant consider that the consequences of the choice of the legislative instrument are crucial for the objective of getting a more sustainable and less harmful economy and should therefore be examined at all stages of the decision making process.

This last point also reveals that an overriding public interest in disclosure exists. According to the parts disclosed of the Impact Assessment (section 3.1): “[t]he revision of REACH is harmonising provisions on chemicals at EU level to preserve the good functioning of the internal market and the free movement of goods while ensuring a high level of protection for health and the environment”. Therefore, it is key for the Applicant to understand how the development of national legal frameworks is influencing the current decision making process in relation to the upcoming legislation.

For the Applicant it is extremely urgent to assess the 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 scrutinize 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, the Applicant submits that there is also an overriding public interest, which requires that the Requested Documents to be disclosed by the Commission also on this basis.

Thank you in advance for your continued cooperation on this request.
Sincerely,

Apolline Roger, Chemicals Project Lead and

Madalina Popirtaru, Environmental Democracy Lawyer
ClientEarth AISBL
60 Rue du Trône, Box 11, Ixelles, 1050, Belgium

Sg-Acc-Doc@ec.europa.eu, Secretariat General of the European Commission

Your message has been received by the Transparency Unit of the
Secretariat-General of the European Commission.
Requests for public access to documents are treated on the basis of
[1]Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents.
The Secretariat-General will reply to your request within 15 working days
upon registration of your request and will duly inform you of the
registration of the request (or of any additional information to be
provided in view of its registration and/or treatment).
 
 
L’unité «Transparence» du secrétariat général de la Commission européenne
a bien reçu votre message.
Les demandes d’accès du public aux documents sont traitées sur la base du
[2]règlement (CE) n° 1049/2001 du 30 mai 2001 relatif à l’accès du public
aux documents du Parlement européen, du Conseil et de la Commission.
Le secrétariat général répondra à votre demande dans un délai de 15 jours
ouvrables à compter de la date d’enregistrement de votre demande, et vous
informera de cet enregistrement (ou vous indiquera toute information
supplémentaire à fournir en vue de l'enregistrement et/ou du traitement de
votre demande).
 
 
Ihre Nachricht ist beim Referat „Transparenz“ des Generalsekretariats der
Europäischen Kommission eingegangen.
Anträge auf Zugang zu Dokumenten werden auf der Grundlage der
[3]Verordnung (EG) Nr. 1049/2001 vom 30. Mai 2001 über den Zugang der
Öffentlichkeit zu Dokumenten des Europäischen Parlaments, des Rates und
der Kommission behandelt.
Das Generalsekretariat beantwortet Ihre Anfrage innerhalb von
15 Arbeitstagen nach deren Registrierung und wird Sie über die
Registrierung Ihres Antrags (oder die Notwendigkeit weiterer Informationen
im Hinblick auf dessen Registrierung und/oder Bearbeitung) unterrichten.
 
 

References

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

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

Dear Sir or Madam,

We hereby acknowledge the receipt of your confirmatory request for case
2022/5960, sent on 08/02/2023 and registered on 08/02/2023.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 01/03/2023. 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
2022/5960, sent on 08/02/2023 and registered on 08/02/2023.

We will handle your confirmatory request within 15 working days as of the
date of registration. The time-limit expires on 01/03/2023. 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 Ms Roger,

We refer to your email, registered on 8 February 2023, by which you submit
a confirmatory application in accordance with Article 7(2) of Regulation
(EC) No 1049/2001 regarding public access to European Parliament, Council
and Commission documents ("Regulation (EC) No 1049/2001"), registered
under reference number above.

Your confirmatory application is currently being handled. Unfortunately,
we have not yet been able to finalize the internal consultations needed to
carry out a full analysis of your request and to take a final decision.
Therefore, we are not in a position to reply to your confirmatory request
within the prescribed time limit which expires on 1 March 2023.
Consequently, we have to extend this period by another 15 working days in
accordance with Article 8(2) of Regulation (EC) No1049/2001. The new
deadline expires on 22 March 2023.

We regret this additional delay and sincerely apologise for any
inconvenience this may cause. However, we can assure you that we are doing
our utmost to provide you with a final reply as soon as possible.

Yours sincerely,

SG.C1 ACCESS TO DOCUMENTS TEAM

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

Dear Ms Roger,

We refer to your email of 8 February 2023, registered on the same day, by
which you submit a  confirmatory application in accordance with Article
7(2) of Regulation (EC) No 1049/2001 regarding public access to European
Parliament, Council and Commission documents ("Regulation (EC) No
1049/2001"), registered under the reference number above. 

We also refer to our email of 28 February 2023 by which the deadline for
handling your request was extended. Your confirmatory application is
currently being handled.

We regret to have to inform you that we will not be able to respond within
the extended time-limit which expires on 22 March 2023, as we have still
not been able to finalise the internal consultations needed to carry out a
full analysis of your request and to take a final decision.

 We regret this additional delay and sincerely apologise for any
inconvenience this may cause. However, we can assure you that we are doing
our utmost to provide you with a final reply as soon as possible.

Thank you for your understanding.

Yours sincerely,

SG.C1 ACCESS TO DOCUMENTS TEAM

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

Dear Sir or Madam,

We hereby acknowledge the receipt of your request for access to documents
sent on 14/06/2023 and registered on 14/06/2023 under the case number
2023/3388.

We will handle your request within 15 working days as of the date of
registration. The time-limit expires on 05/07/2023. 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,

Secretariat-General - Access to Documents
European Commission

References

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

SG-GREFFE-CERTIFICATION@ec.europa.eu, Secretariat General of the European Commission

2 Attachments

Dear Ms. Apolline Roger,

 

Please find attached the electronic version of Commission Decision C(2023)
3981 as adopted by the European Commission on 13.06.2023.

 

The formal notification of the decision under Article 297 TFEU is being
made only in electronic form.

 

Could you please confirm receipt of the attached document by return
e-mail?

 

Many thanks in advance.

 

Kind regards,

 

Eduard GRIGORAȘ

 

European Commission

General Secretariat of the Commission – SG – B-2

Written, Empowerment and Delegation procedures

 

BERL 05 / P071

B-1049 Brussels / Belgium

Desk: +32 2 29 87 893

Mobile: +32 485 178 302

[1][correo electrónico]

 

References

Visible links
1. mailto:[correo electrónico]

SG-GREFFE-CERTIFICATION@ec.europa.eu, Secretariat General of the European Commission

1 Attachment

Dear Ms. Apolline Roger,

 

Unless we are mistaken, and after checking our records, we have not
received your confirmation regarding the message below.

 

Could you please check and confirm the receipt of the message as well as
the attached documents?

 

Many thanks in advance for your help.

 

Kind
regards,                                                                                

 

Eduard GRIGORAȘ

 

European Commission

General Secretariat of the Commission – SG – B-2

Written, Empowerment and Delegation procedures

 

BERL 05 / P071

B-1049 Brussels / Belgium

Desk: +32 2 29 87 893

Mobile: +32 485 178 302

[1][email address]

 

 

 

From: SG GREFFE CERTIFICATION
Sent: Wednesday, June 14, 2023 1:50 PM
To: '[FOI #12035 email]'
<[FOI #12035 email]>
Cc: SG GREFFE CERTIFICATION <[email address]>;
GRIGORAS Eduard (SG) <[email address]>
Subject: C(2023) 3981 - ClientEarth - Apolline Roger

 

Dear Ms. Apolline Roger,

 

Please find attached the electronic version of Commission Decision C(2023)
3981 as adopted by the European Commission on 13.06.2023.

 

The formal notification of the decision under Article 297 TFEU is being
made only in electronic form.

 

Could you please confirm receipt of the attached document by return
e-mail?

 

Many thanks in advance.

 

Kind regards,

 

Eduard GRIGORAȘ

 

European Commission

General Secretariat of the Commission – SG – B-2

Written, Empowerment and Delegation procedures

 

BERL 05 / P071

B-1049 Brussels / Belgium

Desk: +32 2 29 87 893

Mobile: +32 485 178 302

[2][email address]

 

References

Visible links
1. mailto:[email address]
2. mailto:[email address]

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

3 Attachments

Dear Ms Roger,

Please find attached DG ENV reply to your acces to docuemtns request EASE
2023/3388.

We would like to apologise for the delay and the inconvenience this may
have caused.

Kind regards,

European Commission

Directorate General for Environment

Unit B.2 – Safe and Sustainable Chemicals

We don't know whether the most recent response to this request contains information or not – if you are Apolline roger please sign in and let everyone know.