Who Owns the Information held by EU Agencies? Weed Killers, Commercially Sensitive Information and Transparent and Participatory Governance

EU agencies have become key actors in the operationalization of the EU regime on public access to documents. A tension between confidentiality and transparency is particularly evident in the framework of regulatory procedures concerning chemical substances, food, and medicinal products. In these procedures, applicants must provide EU agencies with commercially sensitive information to trigger the scientific and technical evaluation needed for marketing authorization or approval. We analyze three key EU agencies: European Chemicals Agency (ECHA), European Food Safety Agency (EFSA), and European Medicines Agency (EMA). They hold information which is potentially commercially sensitive but which is at the same time highly relevant for EU regulators and the public at large. Providing a comprehensive overview of the decisions of the EU courts and the European Ombudsman, this Article shows how in recent Agency practice, a new “ownership” paradigm seems to have evolved. This has the capacity to develop into a novel kind of originator control, which EU public access legislation does not recognize. The new rulings on the core concepts of the Aarhus regime suggest that more information will become in the future disclosable, putting the agencies under increased pressure by companies trying to protect industry know-how. Since EU legislation provides little guidance in the matter, the balancing is largely left to EU agencies. In striking this balance EU agencies are constantly arbitrating between conflicting public interests. As the exercise of political discretion is exactly what EU agencies are not expected to do, the situation calls for legislative intervention.