26 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.

The documents requested consist of:
- The final reports of the studies conducted by contractors or the JRC in the run up to the REACH revision, as listed in the Commission's document below.

https://ec.europa.eu/environment/pdf/che...

Please give priority to the disclosure of the reports on:
- information requirements on endocrine disruptors (Contractor RPA/Ricardo/Fobig)
- increased hazard information requirements (JRC)
- information requirements on uses and exposures (contractor RPA)
- revising the authorisation and restriction provisions (contractor RPA)
- Developing the essential use concept (contractor wood)

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 - [email address]
Law and Policy Advisor
Chemical Programme
ClientEarth

Throughout the process of handling this request please copy:
Madalina Popirtaru - [email address]
Lawyer, Environmental Democracy
ClientEarth

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

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 the request for access to documents GestDem No. 2022/6085 (the “Request”) submitted on 26 October 2022 through www.AsktheEU.org platform (the present platform).

On 26 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 18 November 20221 November 2022. The Commission sent a second communication on 180 November 2022, informing the Applicants that the deadline would be extended by a further 15 working days to 092 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.

Distinctly, please note that the Applicant has another access to documents request on the same platform ongoing, namely Request Gestdem No. 2022/5960: https://www.asktheeu.org/en/request/requ... - incoming-40255.
In relation to this request, we mention that when we submitted the confirmatory application on 23 December 2022, we have done an error in identifying the request, namely we have included a wrong registration number, which actually represents the different numbers of the two separate requests we have submitted: the present one, which is Gestdem 2022/6085, and the request sent on 19 October 2022, which was registered under Gestdem 2022/5960. Please note that we acknowledge the error and we apologise for any confusion created. In this context, we clarify that the present confirmatory application regards only the present request, Gestdem 2022/6085, and the confirmatory application sent on 23 December 2023, regards only the request Gestdem 2022/5960.

Dear Sir/Madam,

Confirmatory application in relation to Request for access to documents EASE 2022/6085

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 16 January 2023 to the request for access to documents registered under EASE 2022/6085 (the “Request”) , through which it informs the Applicant that all documents held up to the date of the application (26 November 2022) were disclosed (the “Decision”).

Background and scope of the Request

The Applicant submitted the Request on 26 October 2022 through the platform AsktheEU.org, and addressed it to Secretariat General of the European Commission. In the Request, the Applicant requested access to “[t]he final reports of the studies conducted by contractors or the JRC in the run up to the REACH revision, as listed in the Commission's document below: https://ec.europa.eu/environment/pdf/che... (“Requested Documents”).

In the Request, the Applicant also asked the Commission to give priority to the disclosure of the following reports on: “ (i) information requirements on endocrine disruptors (Contractor RPA/Ricardo/Fobig); (ii) increased hazard information requirements (JRC); (iii) information requirements on uses and exposures (contractor RPA); (iv) revising the authorisation and restriction provisions (contractor RPA); (v) developing the essential use concept (contractor wood)”.

The Decision

In the Decision, the Commission states that it identified as falling under the Request only two studies and it provided direct links for accessing the studies, namely to:
(i) Gather Further Information to be Used in Support of an Impact Assessment of Potential Options, for the Update of REACH Annexes for Inclusion of Data Requirements on Endocrine Disruption; Ricardo Energy and Environment, RPA Europe and FoBiG and
(ii) Study on the establishment of a European audit capacity to ensure compliance and effective national control and enforcement of the REACH regulation and on the extension of that capacity and of those standards to CLP, POPs and PIC regulations.
(together, the “Disclosed Documents”)

Scope of the present Confirmatory Application

By way of the present Confirmatory Application, 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 more documents that fall under the scope of the Request is supported by the fact that the Commission contracted experts to elaborate not only two studies (the Disclosed Documents) but many more studies as part of its impact assessment on the REACH revision (according to the available information published by the Commission and included above in the section “Background and scope of the Request”). Based on the applicant’s count, 11 studies are mentioned in the table referred to in its request and all fall under the scope of the request.

In light of this and considering also the advanced stage of preparations for a Commission proposal on the REACH revision when the request was submitted on 26 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 contracted studies had not yet been finalised on that date.

Should any additional Requested Documents 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).

The Applicant also points out that the Requested Documents represent legislative documents in the sense of Article 12 of Regulation 1049/2001, which benefit from a higher level of transparency and they should be directly made available to the wide public through the documents register of the Commission. This has been also confirmed by the CJEU in its judgement on case C-57/16, ClientEarth vs. EU Commission, 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).

Furthermore, the Requested Document contain environmental information in the sense of Regulation 1367/2007. In this context, should any additional Requested Document exist, the exceptions from disclosure provided in Regulation 1049/2001 should be applied even more restrictively.
In case the Decision is to be understood as meaning that at the time of the request (i.e. on 26 October 2022), the requested reports on these studies were not yet finalised, and for that reason were 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 reports on these same studies (i.e. the Requested Documents) finalised since then (I.e. between 26 October 2022 and 3 February 2023).

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

Yours sincerely,

Apolline Roger, Chemicals Project Lead and

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

**A full history of my request and all correspondence is available on the Internet at this address: http://www.asktheeu.org/en/request/reque...