CLIENT EARTH ET AL. V. EFSA, 16.7.2015 (“CLIENT EARTH”)

Necessity/proportionality: No automatic priority can be conferred on the objective of transparency over the right to protection of personal data.Where obtaining the information was necessary to ascertain the objectivity of the expert scientist access is justified. (¶¶ 51–58)

In that regard, the Court has however held that, in general, no automatic priority can be conferred on the objective of transparency over the right to protection of personal data (judgment in Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 85).

Consequently the General Court was correct to hold, in paragraph 78 of the judgment under appeal, that the appellants had not established, by that first argument, the necessity of the information at issue being disclosed.

The second argument, stated in paragraph 79 of the judgment under appeal, was based on the existence of a climate of suspicion of EFSA, often accused of partiality because of its use of experts with vested interests due to their links with industrial lobbies, and on the necessity of ensuring the transparency of EFSA’s decision-making process.

In that regard, it must, first, be stated that the information at issue concerns persons who took part, as remunerated experts, in the process of EFSA’s producing a guidance document intended for operators who wanted to submit applications for authorisation to place plant protection products on the market.

As argued by ClientEarth and PAN Europe, the disclosure of that information was, in that context, necessary to ensure the transparency of the process of adoption of a measure likely to have an impact on the activities of economic operators, in particular, in order to appreciate how the form of participation by each expert in that process might, through that expert’s own scientific opinion, have influenced the content of that measure.

The transparency of the process followed by a public authority for the adoption of a measure of that nature contributes to that authority acquiring greater legitimacy in the eyes of the persons to whom that measure is addressed and increasing their confidence in that authority (see, to that effect, the judgments in Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 59, and Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 113), and to ensuring that the authority is more accountable to citizens in a democratic system (see, to that effect, the judgments in Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 45; Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 32; and Council v in 't Veld, C‑350/12 P, EU:C:2014:2039, paragraphs 53, 106 and 107).

Second, it must be pointed out that the argument referred to in paragraph 53 of this judgment, far from being limited to considerations of a general and abstract nature, was supported, as stated in paragraph 79 of the judgment under appeal, by a study which identified the links between a majority of the expert members of an EFSA working group and industrial lobbies.

While it is true that ClientEarth and PAN Europe obtained disclosure to them, as stated in paragraph 80 of the judgment under appeal, of the names, biographies and declarations of interests of the experts who submitted comments on the draft guidance document, it remains the case that obtaining the information at issue was necessary so that the impartiality of each of those experts in carrying out their tasks as scientists in the service of EFSA could be specifically ascertained.