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A Strong Case for Transparency: Public Interest in Disclosure of Risk Data P revails over Business Secrets

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In a dispute between Greenpeace Germany and Monsanto Europe concerning the confidentiality of its controversial rat feeding study the Higher Administrative Court of the federal State North Rhine-Westphalia (OVG Münster) refused to grant Monsanto an injunction to stop the German authorities from releasing the requested data to Greenpeace.' The decision has acknowledged the public's right to know and strengthened the principles of transparency and participation. On the grounds of a modern approach to risk policy and to genetically modified organisms (GMO), which the Court held to be enshrined in Article 25(4) of Directive 2001/18/EC, the Court has attributed the right to information priority over conflicting commercial interests. As far as risk data is concerned the Court stressed that European Law requires a maximum degree of transparency as an indispensable condition for the introduction of GM plants within Community territory. Furthermore, the decision recognised that in the field of genetic engineering law the right of companies to invoke operating or business secrets to justify exceptions to the right of access is narrowly circumscribed. Risk data, in general, will only be protected as 'confidential' on an exceptional basis. The party submitting the risk data has to prove that there is an imminent risk of specific and relevant harm to its commercial interests.

Affiliations: 1: law firm Günther Heidel Wollenteit Hack; 2: German Federal Ministry for the Enviroment, Nature Conservation and Nuclear Safety in Berlin

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