How to reconcile the two values mentioned in the title above? Does the decision to participate in EMAS mean the waiver of the company’s right to protect confidentiality of the environmental commercial or industrial information? Nothing of the kind. The EMAS Regulation contains a clause on this occasion, proposing indexing information against a baseline year.
EMAS - the environmental disclosure regime in return for competitive gains
As follows from the very title of the Regulation No 1221/2009 of the European Parliament and of the Council of 25 November 2009 on the voluntary participation by organisations in a Community eco-management and audit scheme (EMAS), repealing Regulation (EC) No 761/2001 and Commission Decisions 2001/681/EC and 2006/193/EC (OJ L 342, 22.12.2009, p. 1 – for ease of reference in the rest of these remarks referred to as “Regulation”) the participation in the EMAS is voluntary.
The recital 8 in the preamble to the Regulation however encourages organisations to participate in EMAS because of potential competitive advantages, in particular, added value in terms of regulatory control, cost savings and public image. The precondition for the participation at issue is that an organisation is able to demonstrate an improvement of its environmental performance.
Under Article 6(3) of the Regulation organisations registered with EMAS are furthermore obliged to make their environmental statement and updated environmental statement accessible to the public within one month of registration and one month after the renewal of the registration is completed (that requirement may be satisfied by providing access to the environmental statement and the updated environmental statement upon request or by creating links to Internet sites where those statements can be accessed).
The organisation must additionally be able to demonstrate to the environmental verifier that anybody interested in the organisation’s environmental performance can easily and freely be given access to the information specifically detailed (as a minimum scope) in Annex IV to the Regulation.
Some sensitive information revealed to the public?
According to the said Annex IV the environmental statement shall contain at least the elements and shall meet the minimum requirements as set out below (the specification below is incomplete, for exhaustive list cf. the full text of the Annex IV):
(a) a clear and unambiguous description of the organisation registering under EMAS and a summary of its activities, products and services and its relationship to any parent organisations as appropriate;
(b) the environmental policy and a brief description of the environmental management system of the organisation;
(c) a description of all the significant direct and indirect environmental aspects which result in significant environmental impacts of the organisation and an explanation of the nature of the impacts as related to these aspects;
(d) a description of the environmental objectives and targets in relation to the significant environmental aspects and impacts;
(e) a summary of the data available on the performance of the organisation against its environmental objectives and targets with respect to its significant environmental impacts. Reporting shall be on the core indicators and on other relevant existing environmental performance indicators;
(f) other factors regarding environmental performance including performance against legal provisions with respect to their significant environmental impacts.
The separate case relates to environmental performance indicators. According to the Annex IV the indicators published in the environmental statement of the entity registered with EMAS shall:
(a) give an accurate appraisal of the organisation’s environmental performance;
(b) be understandable and unambiguous;
(c) allow for a year on year comparison to assess the development of the environmental performance of the organisation;
(d) allow for comparison with sector, national or regional benchmarks as appropriate;
(e) allow for comparison with regulatory requirements as appropriate.
The scope for environmental reporting under EMAS also mentions core indicators which apply to all types of organisations. They focus on performance in the following key environmental areas:
(i) energy efficiency;
(ii) material efficiency;
(v) biodiversity; and
After careful consideration of content of the Annex IV to the regulation It seems, however, that there can’t be excluded that certain information on the list above may in certain enterprises be considered commercially sensitive and sometimes fall under the scope of legitimately protected know-how of the entity. Even the general strategy of the enterprise to adapt to the more and more stringent environmental policies of the EU may sometimes contain analysis regarding some of the abovementioned parameters and be strictly confidential.
Indexing – worthwhile method for EMAS disclosure without losing commercial and industrial secrets
The regulation requires that the reporting provide data on actual input/impact of the entity with regard to the environment. The Annex IV to the Regulation contains however explicit provision that, ‘If disclosure would adversely affect the confidentiality of commercial or industrial information of the organisation where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, the organisation may be permitted to index this information in its reporting, e.g. by establishing a base line year (with the index number 100) from which the development of the actual input/impact would appear.’
This clause is worth to be noticed because it may be exploited as a useful instrument to achieve reputation and regulatory gains under EMAS without loosing trade and industrial secrets.