Professional Secrecy in the EU ETS: An attempt at defining an important concept

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Abstract

Since its launch in 2005, The EU Emission Trading System (EU ETS) has been a cornerstone of the EU’s efforts to reduce greenhouse gas emissions. Ensuring compliance with the EU ETS is largely based on self-monitoring and reporting by the participating industries and subsequent verification by a private third-party. In addition, the public, including citizens, NGOs and the media may contribute to controlling compliance by identifying and calling out non-compliant actors as well as scrutinising public authorities. The tool that is at the disposal of the public to perform this task is access to environmental information. The main piece of legislation setting out the right to access environmental information at Member State level is Directive 2003/4. However, it is often forgotten that, next to Directive 2003/4, the right to access environmental information is also implemented into EU law through various provisions in other pieces of legislation.

One example is the EU ETS Directive that also contains provisions on access to information. Article 15a provides that decisions and reports relating to the monitoring, reporting and verification of emissions, which are crucial for checking compliance with the EU ETS Directive, have to be disclosed. However, this is subject to one limitation, i.e. information that is covered by professional secrecy. Even though the term ‘professional secrecy’ is crucial for the correct implementation and application of Article 15a, the directive does not provide a definition of this term. This leaves Member States with little guidance on how to implement this article in their national legislation.

Therefore, this presentation explores how the term ‘professional secrecy’ is defined in other areas of EU law, with a focus on financial law and competition law. Although the definition in other areas of EU law are not transferrable to the EU ETS Directive, this will provide valuable insights into what the concept ‘professional secrecy’ entails and ultimately facilitate the correct implementation and application of Article 15a at the national level.
Original languageEnglish
Publication statusPublished - 2019

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