The case, lodged by NGO Pesticide Action Network (PAN) Europe and environmental activist law firm ClientEarth, overturned a September 2013 ruling by the EU General Court and annulled a December 2011 decision by EFSA to keep the names of expert commentators contributing to its scientific opinions confidential.
The two parties sought the names of commentators for opinions published by EFSA’s panel on Plant Protection Products and their Residues (PPR) and the Pesticide Steering Committee (PSC). Specifically they wanted to know which experts made which changes to draft Word documents of the opinions.
In its July ruling, the ECJ reasoned that if EFSA’s decision were to be upheld it would mean that any EU authority from any sector could enforce the same right to confidentiality without evidence of why that was necessary. It said this would be contrary to the EU requirement that right to access to an institution’s documents must be interpreted strictly based on a risk of an “adverse effect” on the interest protected.
A spokesperson for EFSA told us it fully supported the principle of increased transparency and openness in its work – although in this specific case it believed it had legitimate reasons to protect the identity of data subjects.
The names of EFSA panel members, working group members and hearing experts can all be found in its scientific opinions. Yet with regards to the individual changes made to opinions, EFSA said sometimes scientists needed to debate and discuss issues freely “as is normal in the cut and thrust of scientific discourse”.
It was possible the ruling could be used retrospectively to reveal the names of past experts, but Public Access to Documents (PAD) requests would be assessed on a case-by-case basis.
Ultimately it said everyone would benefit from the legal certainty the decision brought. “The Court's ruling clearly refers to the importance of transparency in the decision-making of public authorities.”
EFSA has received criticism from all sides in recent years, with consumer groups accusing the risk assessment body of being in bed with industry and industry accusing it of lacking transparency, proportionality and accessibility. It will seek to address these criticisms in its document 'Open EFSA', the final draft for which is due at the end of this year.
‘A victory for transparency, people and the planet’
ClientEarth lawyer Vito Buonsante said the outcome confirmed that the protection of health and the environment was more important than confidentiality for the commentators.
“The chemicals used in our food have a huge effect on our health and environment. Before this case, the people making the decisions about whether these chemicals are safe were often closely linked to the companies producing them. This ruling means we know who is declaring these substances fit to use, and where their loyalties might lie. It is a victory for transparency, people and the planet.”
Meanwhile US food and drug law attorney Jonathan Emord told us the case was “a critically needed” check on government actors and measures.
“No government agency that establishes public policy ought to rely upon secret commentators as a predicate for decision-making, thereby authorising inclusion of factors for and opinions concerning regulatory decisions that are not open for comment.”
He said such secrecy meant the process of public comment was a “charade, a faux tableau atop potentially more persuasive but hidden comments”.
He referenced so called ‘Sunshine Acts’ as US attempts to increase transparency.
Looking back
Hans Muilerman, PAN Europe chemicals coordinator, said the case meant an end to what he called “standard ‘whitening' of names” but added it was yet to receive the documents from EFSA.
PAN Europe will be using the case to obtain information it said was withheld or deleted in previous requests.
This was not the first legal run in between PAN Europe and EFSA. In 2014 PAN said it would be taking the authority to the European courts after it was denied access to documents relating to the appointment of EFSA's science director, Dr Juliane Kleiner.
It claimed Kleiner’s position presented a conflict of interest due to her past work with the industry-backed International Life Sciences Institute (ILSI).