Violet flower of passion flower. Passiflora macro with bee

In this article we are returning to two topics that have featured in previous articles:

  1. The fitness check of the Directives on Birds and Habitats carried out by the EU Commission
  2. Recent judgements in the European Court of Justice on the interpretation of the rules relating to public access to information relating to emissions to the environment, and the inter-relationship between that right of access, and the maintenance of commercial confidentiality

Birds and Habitats Directives

As previously reported in ABE, as part of the European Commission’s smart regulation policy (Regulatory Fitness and Performance  or ‘REFIT’), the Commission has been undertaking a ‘fitness check’ in respect of Natura 2000 and both the Birds Directive and the Habitats Directive. In December of last year the Commission published its evaluation of those directives and decided they remain ‘highly relevant and are fit for purpose’.

The Commission believes that for the directives to achieve their objective, significant improvement in their implementation is needed. Consequently, as a result the Commission proposes an action plan to improve the implementation of the directives. It is suggested the action plan will involve the following measures:

  1. Improving communication with national authorities to assist implementation challenges
  2. Designing better implementation guidelines
  3. Reducing unnecessary burdens in litigation
  4. Incentivising national and regional investment in biodiversity

From conversations I have had, I would be surprised if all mineral operators will necessarily agree that the directives are fit for purpose, but no doubt they will follow closely the action plan as it develops. Apparently the action plan is expected to be published in the second quarter of 2017.

Access to Environmental Information

The Aarhus Convention requires that public authorities provide environmental information to the public upon request. This is subject to the proviso that the public authority can decline to release information including where that release will have an adverse effect on the confidentiality of commercial and industrial information. However, the Convention makes it clear that grounds for refusal should be interpreted restrictively bearing in mind the public interest served by disclosure, and whether the information requested relates to emissions into the environment.

Two recent cases heard before the European Court of Justice, the second of which related to a submission by a Dutch bee protection association for the disclosure of documents concerning plant protection and biocide has clarified the interpretation and scope of the concept of ‘emissions to the environment’. In the two cases brought, requested information had not been disclosed on the basis of confidentiality, in that the release would infringe copyright and adversely affect commercial and industrial information confidentiality.

The European Court of Justice took a broad interpretation of ‘emissions to the environment’ and ruled that it includes the release into the environment of products or substances such as plant protection products or biocide to the extent that the release is actual or foreseeable under normal or realistic conditions of use of the product or substance. Therefore the concept of emissions cannot be restricted to emissions coming from industrial installations, e.g., factories, but can also include emissions resulting from the spraying of product such as a biocide into the air.

The result of this interpretation is that the confidentiality of commercial and industrial information could not be invoked to prevent the disclosure of such information.

Simon is a partner in the mining and minerals team at Stephens Scown LLP. The firm has more than 70 years’ experience representing mining and minerals clients and its specialist team has recently been recognised once again by The Independent guides to the law, Legal 500 and Chambers.

Simon can be contacted on 01872 265100 or by emailing


This article was first published in Aggregates Business Europe March/April edition 2017