Court of Justice of the European Union Rejects Broad Disclosure of Confidential Business Information

WASHINGTON, DC – On Wednesday, November 23, the Court of Justice of the European Union (CJEU) rendered its judgments in two cases[1] in which activist environmental groups had sued to make public certain confidential business information (CBI) related to crop protection products approved for use and sold in the European Union (EU). In a case brought by Greenpeacethe General Court had previously broadly interpreted EU laws regarding disclosure of “information which relates to emissions into the environment.” The CJEU rejected the General Court’s broad interpretation and set aside the judgment under appeal. In both cases, the CJEU found that the so-called emissions rule must be limited to information on actual and foreseeable emissions following the use of pesticides under normal and realistic conditions of use. In the second case, appealed from a Dutch court, the CJEU sent the case back to the Dutch national court to decide whether the CBI at issue falls within this interpretation of “information which relates to emissions into the environment.”

“Like most businesses, the crop protection industry depends on governmental protection of its CBI to justify the considerable time, cost and effort involved in developing and marketing new technology, as well as updating and improving older technologies,” stated Jay Vroom, CropLife America (CLA) president and CEO. “Bringing a new crop protection product to market requires a company to invest on average $286 million and 11 years.” Vroom added, “This just highlights a small piece of the resources companies put into research and development of both older and new technologies that farmers depend on to provide a safe and abundant food supply for the U.S. and the world.”

CLA, along with CropLife International, the European Crop Protection Association, the European Crop Care Association, the American Chemistry Council, the European Chemical Industry Association, and the National Association of Manufacturers, intervened in the Greenpeace case to represent the position of crop protection, chemical and other industries that could be impacted by the CJEU’s decision. CLA is still analyzing the significance of these judgments and will follow closely further developments before the lower courts. A limitation on the protection of CBI would be contradictory to obligations made in international agreements protecting intellectual property. CLA welcomes the CJEU’s recognition of the value of CBI protection and advocates a consistent international recognition of the rights of industry to protect their proprietary information, while providing detailed studies and access to data to regulatory decision-makers to help ensure product safety.

[1] Stichting Greenpeace Nederland and Pesticide Action Network v. the European Commission(“Greenpeace”) and Bayer CropScience SA-NV/Stichting De Bijenstichting v. the Dutch Board for the Authorization of Plant Protection Products and Biocides (“Bayer”).

Michael Leary