This article originally appeared on EUObserver.
The EU and Canada will begin provisionally applying the Comprehensive Economic Trade Agreement (Ceta) on 21 September 2017.
The EU’s obligation for data protection under this agreement is in conflict with EU law on public access to information, particularly in relation to pesticides. Therefore, the EU will soon be forced to choose between honouring its trade commitments and abiding by the law on public access to environmental information.
Before pesticides can be marketed, companies must conduct tests and studies to assess their safety and efficacy, which entails significant financial investment.
On one hand, the information generated from these studies can be considered valuable intellectual property belonging to the company and therefore subject to protection and confidentiality. But, on the other hand, it can also be considered important health and environmental information to which the public should have access.
Providing public access to the studies can help the public to make informed choices related to their health and the environment.
It is also necessary for allowing independent researchers to assess the validity of the results – to ensure that the studies have been conducted independently, objectively and transparently as required by the regulation for the marketing of these products.
At the international level, the Food and Agriculture Organisation (FAO) has oscillated in its position on the importance of protecting the proprietary rights of regulatory data, but has most recently encouraged governments to develop “legislation that permits public access to information about pesticide risks and the regulatory process, while safeguarding intellectual property.”
While not addressing the issue of pesticide test data directly, the Aarhus Convention – to which the EU is a party but Canada is not – guarantees public access to information for environmental matters. In contrast, Ceta protects regulatory data related to pesticides and undermines EU law on public access to information.
The Aarhus Convention is incorporated into EU law through the EU Aarhus Regulation. Under the regulation, the “overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment” and “the grounds for refusal shall be interpreted in a restrictive way.”
When Greenpeace Netherlands requested information from the European Commission about studies submitted in support of an application for the approval of the pesticide active ingredient glyphosate, the Commission refused, stating that the request fell within the intellectual property exception for disclosure.
However, the EU’s Court of Justice overturned this decision, finding that the disclosure of information about glyphosate was an overriding public interest when balanced against the interest of protecting intellectual property. Thus, EU law guarantees the right of access to regulatory data containing environmental information about pesticides.
Contrary to EU law, Ceta does not provide any guarantee of access to environmental information, but instead obliges the parties to protect confidential commercial information without exception.
The joint interpretative instrument, which elaborates on the general intent of the Ceta parties, also emphasises the right of the parties to protect data, but is silent with regard to public access to information.
This is in contrast to the Trips Agreement of the World Trade Organization, which allows the disclosure of test data “where necessary to protect the public,” as well as to Ceta’s provisions regarding pharmaceutical test data, which also allows for disclosure to protect the public, suggesting that the absence of a similar exception for pesticides was done by design.
Under EU law, regulatory data for “classic” pesticides can be protected for ten years, while data related to low risk pesticides can be protected for up to 13 years, and data for minor use pesticides can be protected for up to 15 years. The EU pesticides regulation explicitly prohibits periods of data protection exceeding these limits.
Ceta, however, requires the parties to protect data related to tests and studies on pesticides for “at least 10 years” and provides no upper limit on the number of years data can be protected. Thus, under Ceta, Canada can protect regulatory data indefinitely, while in the EU, data must, in all circumstances, be made public after 15 years.
This threatens the health of European citizens, who will be exposed to pesticide residues on products coming from Canada without any guarantee that the risks of these products will eventually be disclosed.
In addition, as international agricultural association CropLife points out: “Providing an inconsistent period of protection between trading partners creates market distortions and an uncertain regulatory environment for investment.”
Ceta’s regulatory cooperation provisions provide a number of forums where Canada will have the opportunity to challenge the EU’s approach to data protection and to seek the EU’s approval – and perhaps adoption – of Canada’s approach.
Ceta’s failure to recognize the difference between low risk and classic pesticides is also a potential basis for dispute between Canada or a Canadian company and the EU.
For example, if a Canadian company provides data in support of registering a pesticide that it believes is low risk and the EU makes that data public after 10 years because it believes the pesticide is not low risk, the Canadian company could potentially challenge the EU under Ceta’s investment arbitration provisions.
The possibility for disagreement over risks is a real one, as Canada and the EU approach risk analysis in different ways.
Ceta is likely to undermine the right of access to environmental information on pesticides as provided in EU law; provide a commercial advantage to companies registering pesticides in Canada; and threaten the health and environment of European citizens.
While most of these issues will arise as soon as provisional application begins, member states may still decide to reject the agreement altogether, while it passes through national parliament ratification.
By Layla Hughes, Senior Attorney, and Elise Vitali, Trainee.