Article 9(3) of the Aarhus Convention remains a dead letter in the European Union legal order

Case T-102/107, Mellifera Ev, Vereinigung für wesensgemaäbe Bienenhaltung v Commission, 27 September 2018

The Court of Justice of the EU has ruled that the Commission was right to reject a request for internal review from the NGO Mellifera regarding the authorisation of glyphosate.
This decision ignores the findings of the Aarhus Convention Compliance Committee, which explicitly state that limiting the right of challenge of NGOs to acts of individual scope is in breach of the Convention. In this case, the NGO applicant contested the Commission Regulation prolonging the approval of glyphosate. A request for internal review was made in accordance with the Aarhus Regulation, which implements the provisions of the Aarhus Convention to EU institutions.

The Commission rejected it on the ground that the contested decision was not of “individual scope”. Mellifera appealed to the General Court in accordance with Article 12 of the Aarhus Regulation.
The arguments of the NGO were twofold. The Commission’s decision was in breach of the Aarhus Regulation for not considering the decision as being of individual scope. It was also in breach of Article 9(3) of the Aarhus Convention, which does not specify that only acts of individual scope can be challenged. Indeed, Article 9(3) provides that members of the public have the right to challenge acts and omissions adopted by private persons and public authorities which contravene provisions of national law relating to the environment.

Nevertheless, the General Court reasserted the case-law of the CJEU (Cases C-404/12 and C-405/12) according to which article 9(3) was not directly applicable “in the legal order of the Union” and could not, therefore, be relied on to assess the legality of the Union’s acts. It also reasserted that the Parties to the Convention benefit from a wide margin of discretion regarding the modalities of implementation of the administrative and judicial procedures referred to in Article 9(3) of the Convention.
The new element brought by this ruling is that the applicant relied on the recommendations of the Aarhus Convention Compliance Committee in case C-32 against the EU. The Aarhus Committee found the Aarhus Regulation not to be in compliance with Article 9(3) of the Convention, notably for limiting the categories of acts that can be challenged to those of individual scope.

The General Court, however, refused to take the findings into account as it is “a simple draft” (not formally adopted yet by the Meeting of the Parties to the Convention) and were adopted only after the contested decision on glyphosate. The Court, therefore, considered that it is not necessary to respond to the question whether the recommendations of the committee should be adopted by the parties to the convention or whether this is not necessary for them to have any force. A positive reading of this part of the ruling is that had the findings been adopted before the contested decision, the Court may have considered them.

The Court also rejected the possibility to interpret the Aarhus Regulation in a way that would be conforming with Article 9(3) of the Convention since, according to the Regulation. only acts of individual scope can be the subject of an internal review request. The Court found that it was, therefore, impossible to interpret it as including acts of a general scope as such an interpretation would be “contra legem”.

This understanding of the conform interpretation practice seems to contradict its very purpose, which is to ensure that EU law applies in conformity with international law and, if this is not possible, to set the provision in question aside. This is what the CJEU requires in relation to provisions of national law that contravene EU law. There is no reason not to proceed with the same assessment in relation to international law. This ruling confirms that Article 9(3) of the Aarhus Convention, a provision of a legally binding international convention, remains a dead letter in the Union legal order.

The General Court also relied on the TestBiotech ruling in arguing that the act that can be challenged before the Court in accordance with Article 12 of the Aarhus Regulation is the decision that the Commission has adopted in response to the request for internal review and not the initial authorisation, in the present case to prolong the authorisation of glyphosate. This is in contradiction with what the Aarhus Convention Compliance Committee found. It stated that it is possible for the European Courts to interpret article 12 of the Aarhus Regulation in a way that would allow them both to consider failure to comply with procedural requirements and also the substance of the contested act. Preventing NGOs from challenging the authorisation would be inconsistent with the requirements of the Convention. The TestBiotech ruling is being appealed and will hopefully clarify the scope of the proceeding before the Court taking into account the findings of the Aarhus Committee.