International -- 2018

European Comm'n v. Stichting Greenpeace Nederland   (European Court of Justice)

Intellectual Property

The NAM, CropLife America and the American Chemistry Council filed a motion on April 18, 2014 to intervene in an international appeal before the European Court of Justice (ECJ) that could have set a dangerous precedent for intellectual property protection. In this case, the plaintiffs requested the public disclosure of a massive amount of confidential business information relating to certain pesticides used both in the U.S. and Europe, including how products were manufactured, their final composition and information on impurities, in order to assess potential environmental impacts. This case has broad implications, not only for the crop protection industry, but for many, if not all of the U .S. chemical manufacturers operating both in the U.S. and in Europe.

On March 6, 2015 the ECJ granted the NAM intervener status, which was a significant development because intervener status is more difficult to obtain in the European system. Further, by allowing our intervention, the Court recognized the interest of U.S. industry in this case. It is very unusual that U.S. trade associations appear before EU courts, and it was far from certain that we would succeed in being admitted.

On April 14, 2015, the NAM filed with the ECJ a Statement of Intervention on behalf of NAM, ACC and CLA. The Statement detailed NAM’s full support for the Appellant’s single plea in law, according to which the General Court misconstrued the concept of information which ‘relates to emissions into the environment’ in the first sentence of Article 6(1) of the Aarhus Regulation. In sum, the Interveners consider that this concept (i) ‘…must be read narrowly…’; 3 (ii) ‘…refers to information about emissions which…emanate from installations such as factories and power stations’; 4 and (iii) ‘…concern[s] actual, not hypothetical emission[s]…’.

On February 4, 2016, the NAM was allowed to make a statement before the court, and our statement was the only one to focus on TRIPS and the international dimension, which is an important aspect of the case. On November 23, 2016, the ECJ agreed with the NAM that the lower court erred by broadly interpreting EU disclosure for emissions rule, and it set aside the lower court's judgment.

On February 2, 2017, the NAM filed an additional set of written observations to further explain the importance of the confidential business information to trade and competition. In March 2018, the NAM provided an additional oral statement on the global importance of the case and the EU's international law obligations.

On November 21, 2018, we won the case on the point that it is only at the level of Member State authorization that information relates to actual/foreseeable emissions because glyphosate will only be released into the environment as part of a plant protection product – not the active substance approval at EU level. This was the Commission’s main argument that we were able to support with additional legal and technical information.

Related Documents:
NAM Oral Statement  (March 23, 2018)
NAM Observations  (February 2, 2017)
NAM Oral Statement  (February 4, 2016)
NAM Statement in Intervention  (April 14, 2015)
NAM Annexes  (April 13, 2015)
NAM Application for Leave to Intervene  (April 18, 2014)


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