Plans for secret GM test sites scuppered by ECJ ruling
2.The right of public access to information applies to releases of genetically modified organisms
NOTE: This relates to a spate of recent articles suggesting the biotech industry was successfully lobbying the British and other governments for GM test sites to be kept secret:
Government to defy critics with secret GM crop trials (The Independent)
GM crop trial locations may be hidden from public (The Guardian)
1.ECJ Ruling Scuppers Plans for Secret GM Test Sites
Immediate release, 18 February 2009
Calls for secrecy on GM crop test sites in the UK  have been scuppered by a ruling by the European Court of Justice (ECJ) published yesterday.
In the ruling  the ECJ said that under EU Directive 2001/18:
"In no case may the following information when submitted according to Articles 6, 7, 8, 13, 17, 20 or 23 be kept confidential:
*general description of the GMO or GMOs, name and address of the notifier, purpose of the release, location of release and intended uses;
*environmental risk assessment."
The ECJ also ruled out public order being used as a justification for keeping GM test site locations secret.
GM Freeze advocates an open and transparent process for the approval of GM test sites and commercial growing sites because of the ability of GM traits to spread to other crops and wild plants through cross-pollination or physical movement of seeds by humans, animals or wind/water.
The group believes openness is essential to protect the environment, the interests of farmers, gardeners and beekeepers and to maintain public trust in the regulatory processes.
Prevention of GM contamination from growing crops is a key issue that the governments of the UK have still to legislate on. Recently incidents of GM contamination of non-GM oilseed rape crops and trials have been recorded in Somerset and Scotland. Recent contamination incidents in the US, involving experimental GM strains of maize and rice, have caused major disruption to supply chains and resulted in protracted legal action. 
Commenting Pete Riley of GM Freeze said:
"There are sound legal, democratic, scientific, economic and social reasons why GM sites need to be made public in advance of planting. Cases of GM contamination around the world are growing every year, and in many cases the cause of the contamination remains a mystery because record keeping about locations and separation distance has been so poor.
"Making GM test sites secret or forcing them onto local communities will only increase suspicion and resentment. Rural communities need to work together to produce food and enhance the environment in a sustainable way Ë† the last thing that's needed is disruption caused by secret GM test sites."
Calls to Pete Riley 0845 217 8992 or 07903 341065.
1. See http://news.bbc.co.uk/1/hi/sci/tech/7529590.stm
2. See http://curia.europa.eu/jurisp/cgi-in/form.pl?lang=EN&Submit=rechercher&numaff=C-552/07
3. For a history of GM contamination incidents around the world see www.gmcontaminationregister.org/
2.The right of public access to information applies to releases of genetically modified organisms
Court of Justice of the European Communities
Press release No. 16/09
17 February 2009
Judgment of the Court of Justice in Case C-552/07
Commune de Sausheim v. Pierre Azelvandre
Member States cannot invoke a public order exception so as to prevent the disclosure of the location of release of genetically modified organisms.
Mr Pierre Azelvandre wishes to know the location of open field tests of genetically modified organisms (GMOs) which have taken place within his commune. On 21 April 2004, he requested the Mayor of Sausheim (Haute-Alsace) to disclose to him, concerning each release having taken place within that commune, the public notice, the planting record showing the parcel of land that has been planted, and the prefectoral covering letter relating to those documents. He also requested the information file on each new release which would take place in 2004.
In the absence of an answer to his request, he applied to the Committee on Access to Administrative Documents (CAAD) for disclosure of those documents. On 24 June 2004, the committee issued a favourable opinion concerning the disclosure of the public notice and the first page of the prefectoral covering letter. By contrast, it decided against the disclosure of the planting record for the parcels of land and of the map showing where the releases had occurred, on the ground that such disclosure would prejudice the privacy and safety of the farmers concerned.
Following that opinion, as the Mayor of Sausheim had not disclosed all of the documents of the file, Mr Azelvandre challenged that refusal before the French administrative court.
The Conseil d'Ã‰tat, hearing the case at first and last instance, refers the question to the Court of Justice of the definition of 'location of release' which may not be kept confidential in accordance with the directive of 12 March 2001 on the deliberate release into the environment of GMOs  and of the interpretation of the relevant public information obligations, arising under Community law. In particular, the Court is asked whether the national authorities can prevent the disclosure of the planting record for the parcels of land and of the map showing where the releases had occurred on the ground that it prejudice public order and other interests protected by law.
The location of release
Because of the precautionary principle and the risks to the environment and human health, the directive created a transparent system for the authorisation procedure of measures relating to the preparation and implementation of releases. It established not only procedures for consultation of the public and, if appropriate, of groups on a proposed deliberate release of GMOs, but also a right of public access to information relating to that operation and the establishment of public registers which must include information on the location of every release of GMOs.
Thus, persons wishing to release GMOs into the environment are, in accordance with the directive, to submit a notification to the competent national authorities, which must include a technical dossier containing the required information, namely: 1) the location and size of the release sites, the description of the release site ecosystem, including climate, flora and fauna and the proximity to officially recognised biotopes or protected areas which may be affected, for genetically modified higher plants; 2) the geographical location and grid reference of the release site(s) and the description of target and non-target ecosystems likely to be affected, for the other GMOs.
It follows from the connection thereby established between the notification procedure and the access to information relating to the deliberate release of GMOs that, save in the case of exemptions under the directive, the relevant public may request the disclosure of all information submitted by the notifier in the context of the authorisation procedure relating to that release.
Therefore, the 'location of release' is determined by all the information relating to the location of the release as submitted by the notifier to the competent authorities of the Member State on whose territory the release is to take place in accordance with the directive.
The right of third party access to information relating to the release
The directive precisely defines the confidentiality which can apply to the various information that is disclosed in the context of the notification procedure and exchange of information provided for by the directive. Therefore, confidential information notified to the Commission and to the competent authority or exchanged in accordance with the directive, and also information liable to harm a competitive position and protecting intellectual property rights, cannot be disclosed. Furthermore, the competent authority decides, after consulting the notifier, what information must be kept confidential in the light of the 'verifiable justification' given by the notifier. Therefore, the information relating to the location of the release can in no case be kept confidential. In those circumstances, considerations relating to the protection of public order and other secrets protected by law, such as specified by the referring court, cannot constitute reasons capable of restricting access to
information listed by the directive, including in particular those relating to the location of release.
That interpretation is substantiated by the requirement, laid down in the directive, that information concerning the environmental risk assessment may not be kept confidential. Furthermore, a Member State cannot invoke an exemption provision provided for by the directives on freedom of access to environmental information in order to refuse access to information which should be in the public domain .
 Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ 2001 L 106, p. 1)
 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 158, p. 56-58).
Unofficial document for media use, not binding on the Court of Justice.
Languages available: CS, DE, EN, ES, EL, HU, IT, PL, PT, SK
The full text of the judgment may be found on the Court's internet site http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-552/07
It can usually be consulted after midday (CET) on the day judgment is delivered.
For further information, please contact Christopher Fretwell Tel: (00352) 4303 3355 Fax: (00352) 4303 2731