Business secrecy and professional customs secrecy do not prevent the communication of the names of companies subject to the regulation of 17 May 2017 on the obligations related to the duty of care of importers of conflict minerals.
This is what emerges from the judgment of the Paris Administrative Court of November 15, 2022. The Sherpa association, at the origin of this case, had asked the General Directorate for Planning, Housing and Nature (DGALN ) from the Ministry of Ecological Transition the list of French companies concerned by Community regulations on the import of conflict minerals. Despite a favorable opinion from the Commission for access to administrative documents (Cada), the ministry had refused to communicate the requested information, due to business secrecy and professional customs secrecy.
Following this refusal, the Sherpa association lodged an appeal before the administrative court of Paris with a view to having the ministerial decision annulled.
According to the departments involvedthe mere choice of the companies concerned to import such volumes of minerals would reveal their commercial and industrial strategy, and the publication of a list identifying them would infringe business secrecy, protected by Article L. 311-1 of the Code of relations between the public and the administration.
However, recalls the court, these companies are subject to an obligation of transparency, in accordance with Community legislation., which obliges them to publish an annual report on their policies and practices to ensure responsible sourcing. According to the judge, this report allows a generally known and easily accessible identification, in particular on the Internet, and the conditions of protection under business secrecy, set out in Article L. 151-1 of the Commercial Code, are not therefore not combined.
Secondly, the ministries concerned maintained that the communication of the information requested by the Sherpa association went against the professional secrecy to which the agents of the customs services are bound, who communicate information about these companies. According to the administrative court, the information transmitted by the customs officers is not covered by professional secrecy since it makes it possible to satisfy the obligations of publicity and transparency provided for by the aforementioned regulation, and that the latter provides for the protection of information actually confidential.
Regulation of 05/17/2017 (2017/821) Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down supply chain due diligence obligations for importers in the Union who import tin, tantalum and tungsten, their ores and gold from conflict-affected or high-risk areas Subscribe to EnviroveilleFind out more
Regulation of 05/17/2017 (2017/821) Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down supply chain due diligence obligations for importers in the Union who import tin, tantalum and tungsten, their ores and gold from conflict-affected or high-risk areas Subscribe to EnviroveilleFind out more
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Note Ministry of Ecological Transition and Ministry of Economy, Finance and Recovery.
Article published on November 22, 2022
