Dear << Adresse entfernt >>, Nico Schmidt and Vera Deleja-Hotko,
We are contacting you regarding your access to documents request registered under reference ATD/005/2023.
Your request concerns “all export notifications according to EU Directive No. 649/2012 the ECHA received concerning the export of plant protection products (Art. 3) for crop protection for the year 2021”.
Scope of your request
Your application is extremely broad and concerns a very high number of documents. Indeed, it covers over 1 000 export notifications originating from around 50 third parties, which need to be assessed individually.
Invitation to agree on a fair solution
ECHA is committed to treat requests under the ATD Regulation within the shortest timeframe possible. However, the detailed assessment of all the identified documents, together with the need to consult the third parties authors of these documents in accordance with Article 4(4) of the ATD Regulation, cannot be carried out within the normal time limits set out in Article 7 of the ATD Regulation.
Article 6(3) of the ATD Regulation provides that in the event of an application relating to a very long document or to very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution.
Based on this provision, we would kindly ask you whether you could narrow down the scope of your request, so as to reduce it to a more manageable number of documents.
Below, you will find a list of possible criteria that could help you to narrow down the scope of your request:
* Selection of specific chemicals of interest to you;
* The indication of the specific sections of the export notifications of interest to you (please see attached a redacted sample of an export notification);
* Selection of exporting companies of interest to you;
* Selection of exporting and/or importing countries of interest to you.
Documents already disclosed under previous access to documents requests
In addition, we would like to inform you that documents containing certain elements of 253 export notifications falling within the scope of your request have already been partially or fully disclosed following previous requests for access to documents addressed to ECHA.
However, as these requests were limited to a single document containing certain information from the export notifications directly extracted from the ePIC database, they do not cover the concerned export notifications in their entirety.
You will find enclosed to this email the non-confidential version of the above-mentioned documents.
You are reminded that pursuant to Article 16 of the ATD Regulation the disclosure of the enclosed documents is without prejudice to any existing rules on copyright which may limit a third party's right to reproduce or exploit the documents released.
Article 20(3) of the PIC Regulation
In your request you argue that a third-party consultation would not be necessary in order to process the request, as the export notifications "shall not be regarded as confidential" according to Article 20(3) of Regulation (EU) 649/2012 (‘the PIC Regulation’).
ECHA does not share your interpretation of Article 20(3) of the PIC Regulation.
Article 20 of the PIC Regulation is entitled ‘Exchange of Information’.
The concept of ‘exchange of information’ is referred to in Article 1 of the PIC Regulation as one of the instruments for the achievement of the objectives settled by that Regulation.
This is also reflected in Recital 20 of the PIC Regulation, according to which “Exchange of information, shared responsibility and cooperative efforts between the Union and the Member States and third countries should be promoted with a view to ensuring sound management of chemicals, whether or not those third countries are Parties to the Convention”.
Article 20(1) refers, inter alia, to “the provision of information for Parties and other countries[…]”. Article 20(2) imposes an obligation on the Commission, Member States and ECHA to protect any confidential information received from a Party or other country as mutually agreed.
In this context, it is clear that ‘exchange of information’ is to be intended as the exchange between the Commission, Member States, ECHA, other Parties of the Rotterdam Convention and other countries, i.e. the actors involved in the implementation of the PIC Regulation.
Accordingly, the ‘non-confidentiality clause’ established by Article 20(3) of the PIC Regulation, applies in relation to ‘the transmission of information under this Regulation’, and it is ‘without prejudice to Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information”.
Indeed, as regards requests for public access to documents and/or environmental information, ECHA and the Commission, on one side, and the Member States, on the other side, are bound by the respective applicable legal framework governing public access to documents and environmental information in their possession.
Such requests should be assessed in light of the principles and criteria established by Directive 2003/4/EC – when they are addressed to Member States – and by Regulation (EC) No 1367/2006 (“the Aarhus Regulation”), in conjunction with the ATD Regulation - when addressed to ECHA or the Commission - on a case-by-case basis.
In particular, the Member States and the Agency may refuse access to the requested information if its disclosure would adversely affect the protection of commercial interests of a natural or legal person, and in the absence of an overriding public interest (See Article 4(2)(d) of Directive 2003/4/EC and Article 3 of the Aarhus Regulation).
We would appreciate receiving your feedback regarding the possibility to narrow down the scope of your request as described above as soon as feasible and in any event by Friday 24 February 2023. Please note that until a fair solution is agreed, we are unable to process your request. ECHA will consider your request closed if we do not hear from you by the set deadline. This would be however without prejudice to the possibility of submitting similar requests in the future.
Should it be more convenient for you, we are also available to organise a phone call with you.
We thank you in advance for your understanding and cooperation,
Best regards,
Access to documents team
European Chemicals Agency
This e-mail, including any files, is intended for the use of the individual to whom it is addressed. If you have received this message in error, please notify the author as soon as possible and delete the message.
From: ECHA ATD <<Name und E-Mail-Adresse>>
Sent: Friday, February 3, 2023 3:46 PM
To: << Adresse entfernt >> [#269236] <<Name und E-Mail-Adresse>>
Cc: ECHA PIC <<Name und E-Mail-Adresse>>; ECHA ATD <<Name und E-Mail-Adresse>>
Subject: Acknowledgement of receipt - ATD/005/2023
Dear << Adresse entfernt >>, Nico Schmidt and Vera Deleja-Hotko,
Thank you for your below message dated 01 February 2023.
We hereby acknowledge receipt of your application for access to documents under Regulation (EC) No 1049/2001, which has been registered on 02 February 2023 under reference ATD/005/2023.
Best regards,
Access to documents team
European Chemicals Agency
This e-mail, including any files, is intended for the use of the individual to whom it is addressed. If you have received this message in error, please notify the author as soon as possible and delete the message.
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