The Protection of Confidential Commercial or Industrial Information in Environmental Law: Analysis and Call for a Graded Concept of Protection Prof. Dr. Kurt Fassbender EELF CONFERENCE 2016 Procedural Environmental Rights: Principle X of the Rio Declaration in Theory and Practice 14-16 September 2016, Wrocław, Poland

Introduction There are numerous (EU-legal) obligations for Member States (MS) to collect data on the environment and corresponding obligations for companies to provide data Therefore, the quantity and quality of relevant information compiled by authorities is increasing steadily Thus, the problem of the protection of confidential commercial or industrial information in environmental law emerges increasingly

Further Content Legislative background The obligations of the Water Framework Directive (WFD) to compile information as an example Regulation of data collection in the German Federal Water Resources Act Sectoral legislation in EU-law General provisions on access to environmental information The need for protection of confidential information On the definition of confidential commercial or industrial information Typical conflicts in the law on the management of water resources that may lead to a graded concept of data protection Particular management or authorisation decisions Establishment of programmes and plans Third party access to information Conclusion

I. Legislative background The obligations of the Water Framework Directive (WFD) to compile information as an example Art. 5 + Annexes II, III : MS‘s obligations to provide for a review of the impact of human activity on the status of surface waters and on groundwater, and an economic analysis of water use Section 1.4 and 2.1 of Annex II : MS’s obligation to collect and maintain information on the abstraction and discharge of water Main goals: monitoring of compliance with environmental objectives and of cost recovery for water supply services

I. Legislative background Regulation of data collection in the German Federal Water Resources Act (WHG) WHG provides an enabling provision for authorities to collect relevant data since 2002 Comprehensive federal regulation after the reform of federalism Central norm : § 88 WHG Enables authorities to collect Information – including personal data – if compulsory under European, intergovernmental or German law In addition, obligation to provide relevant information to authorities if it’s required for management decisions etc.

I. Legislative background Sectoral legislation in EU-law Broad regulation on access to information and public participation in EU Law by implementing the provisions of the Aarhus Convention E.g. the Industrial Emissions Directive 2010/75/EU and the Environmental Impact Assessment Directive 2011/92/EU require comprehensive participation and public access to environmental inspection reports

I. Legislative background General provisions on access to environmental information Besides that, the Directive on public access to environmental information 2003/4/EC provides for a guaranteed right for both natural and legal persons to access to information held by, or for, public authorities without the person having to state a reason

I. Legislative background The need for protection of confidential commercial or industrial information The information classified as confidential commercial or industrial information is protected by fundamental rights not only in Member States but also on the EU-level Furthermore, most provisions in secondary law and also the Aarhus Convention provide for a right to refuse a request for information because of confidentiality of commercial or industrial information

I. Legislative background The need for protection of confidential commercial or industrial information Nevertheless, in the WFD there is no regulation on the protection of commercial or industrial secrets at all The WFD must therefore be interpreted in a way regarding the principles of EU primary law If necessary, confidential commercial or industrial information must be respected here, too

II. On the definition of confidential commercial or industrial information i in No definition in the Aarhus Convention and in EU-law; both refer to national law or EU-law Definition based on national law Information related to the concerned company accessible to a limited group of people secrecy according to the will of the concerned legitimate interest on secrecy Exemples: sales volumes, costumer lists, supply sources

III. Typical conflicts in the law on the management of water resources Generally: Need of balanced consideration between ecological information demand and commercial interest in data protection Especially in water law a distinction can be made between different types and levels of administrative procedures that lead to a graded concept of data protection: particular project management or permission decisions development of programmes and plans third party access to information

III. Typical conflicts in the law on the management of water resources 1. Particular management or authorisation decisions In certain project management or permission decisions environmental protection legitimates a wide regulatory authorisation on data collection, including commercial or industrial secrets Authorities are entitled to gather all relevant information in permission procedure (cf. e.g. § 88 WHG)

III. Typical conflicts in the law on the management of water resources 1. Particular management or authorisation decisions ECJ: obligation to provide information prevails data protection if information is part of a permission check program and matter of public participation (ECJ, 15.1.2013, C-416/10, mn. 76 ff. – Križan et alt./Slovenská inšpekcia životného prostredia) But: Information must be necessary for an appropriate regulatory decision

III. Typical conflicts in the law on the management of water resources 1. Particular management or authorisation decisions Authorities may order both, publication of economical calculations for the certain project and for alternatives Thus, in general, public access to all relevant information has to be granted

III. Typical conflicts in the law on the management of water resources 2. Establishment of programmes and plans Programmes and plans under WFD do not provide for control in particular cases, but give public information on objectives and necessary measures Publishing confidential information in management plans would lead to far-reaching consequences They would be considered as public information afterwards and then be without protection Authorities have to check if they can publish sufficient information in the management plans without disclosing sensitive data

III. Typical conflicts in the law on the management of water resources 3. Third party access to information Third parties might claim access to different information and in different situations (e.g. in view of permission procedures, monitoring data or management plans) Thereby, protection of confidential information is com- pulsory if there is a legitimate interest of confidentiality Third parties have only a right to information without the agreement of the owner if public interest prevails

III. Typical conflicts in the law on the management of water resources 3. Third party access to information This requires a careful consideration between public interest in disclosure of information and private interest in confidentiality According to German Federal Administrative Court public interest may only prevail if disclosure is not the only aim (BVerwG, 24.9.2009 – 7 C 2/09) Therefore, a differentiation between third parties is possible and indicated (e.g. concerned neighbor vs. competing company)

III. Typical conflicts in the law on the management of water resources 3. Third party access to information This might also lead to a differentiation between the level of protection concerning particular information or data (e.g. between core area and border area of business and industrial information) Further criteria: hazardous potential. Therefore, data on emissions are no protected secrets

IV. Conclusion The protection of commercial or industrial secrets is (still) an important issue There is, in general, no reason to restrict authorities in collecting information and relevant data on the level of management or authorisation decisions Differences must be made in case of the public exposure in programmes and plans and in case of third party access to information This may lead to a graded concept of data protection