CJEU rules against the Commission: the health impacts of GMOs can be challenged under the Aarhus Regulation

T-33/16 TestBiotech Ev V European Commission, 14 March 2018

In a ground-breaking judgement, the Court of Justice of the EU ruled that the health impacts of GMOs could be challenged under the Aarhus Regulation, annulling the decision of the Commission to separate health issues from environmental issues.

In this recent ruling, the General Court had to decide whether the Commission could reject as inadmissible a request for internal review of authorisations of GMOs on the ground that public health concerns do not fall within the scope of environmental law as defined by the Aarhus Regulation.

The NGO TestBioTech Ev asked the European Commission to review three decisions, taken pursuant to Regulation 1829/2003 on genetically modified food and feed, authorising the placing on the market of products containing, consisting of or produced from three different types of genetically modified soybeans. The request was made pursuant to Article 10 of Regulation 1367/2006 applying the provisions of the Aarhus Convention to the EU institutions (the Aarhus Regulation).

The Commission rejected their request as inadmissible as it did not fall within the scope of the definition of acts that can be challenged under Article 10 of the Aarhus Regulation that need to be adopted ‘under environmental law’. The Commission, supported by Monsanto, contended that environmental concerns and public health concerns were conceptually and legally distinct, therefore the aspects of the request at stake that related to public health did not fall within the scope of Article 10 of the Aarhus Regulation.

The General Court started by recalling that acts that can be subject of a review under the Aarhus Regulation are defined as “any measure of individual scope under environmental law, taken by an EU institutions or body, and having legally binding and external effects.” Article 2(1)(f) of the Regulation states that “environmental law” means “EU legislation which, irrespective of its legal basis, contributes to the pursuit of the objectives of EU policy on the environment as set out in the FEU Treaty: preserving, protecting and improving the quality of the environment, protecting human health, the prudent and rational utilisation of natural resources, and promoting measures at international level to deal with regional or worldwide environmental problems.”

The General Court found that the EU legislature, in referring to the objectives listed in Article 191(1) TFEU, intended to give to the concept of “environmental law” a broad meaning not limited to matters relating to the protection of the natural environment in “the strict sense”.

Further, according to Article 192(2) TFEU, environmental law includes, “in so far as it is the subject of Title XX of the TFEU”, provisions and measures of a fiscal nature or that affect town planning, quantitative management of water resources and land use and measures affecting Member State’s choice between different energy resources and the general structure of its energy supply. A restrictive definition such as that supported by the Commission would exclude these areas from its scope.

Finally, the exceptions provided for by the Aarhus Regulation with regard to acts adopted in competition law, infringement proceedings, Ombudsman proceedings and anti-fraud proceedings indicated that the concept of environmental law must be interpreted “very broadly”.

On whether the request at stake fell within the scope of the Regulation, the General Court rejected all the arguments of the Commission. It very bluntly affirmed that an authorisation decision to place a GMO on the market is an act which falls within the scope of the area of environmental protection. It relied on the fact that the protection of health of individuals is one of the objectives of EU policy in the area of the environment. And found that the objectives of Regulation 1829/2003 is to regulate human interventions that affect the environment by reason of the presence of GMOs liable to have effects on human and animal health, the authorisation decisions constitute acts adopted under environmental law within the meaning of Article 2(1)(f) of the Aarhus Regulation.

The fact that Regulation 1829/2003 makes a distinction between the safety assessment of the food and feed concerned and the environmental risk assessment is qualified by the General Court as being of no relevance to the question of whether the request for review falls within the scope of Regulation 1367/2003.

It further observed that the feed is liable to be consumed by animals that will interact with the environment or will be part of the environment. It stated that those animals themselves constitute elements of the environment and the effects of their nutritional value as a result of the feed concerned or the fact that they may contravene food safety requirements are therefore matters that fall within the scope of environmental law within the meaning of Regulation 1367/2006.

Finally, the General Court specified that the state of the environment within the meaning of Regulation 1367/2006 is not confined to the state of the natural environment within the EU. Therefore, the fact that the food and feed have undergone biological or technical processing in their country of origin outside the EU is of no relevance.

The rejection by the General Court of the attempt by the Commission to establish a distinction between environmental concerns and public health is very welcome. Both are so intrinsically linked that addressing them separately would not ensure the protection of either of these concerns. It is also very alarming to see that the Commission has adopted a more restrictive interpretation of the definition of the acts that can be challenged under the Regulation since internal review requests against decisions to authorise GMOs used to be the only ones the Commission deemed admissible. It is also alarming that, in addition to relying on the “individual scope” criterion to reject requests, the Commission also strives to restrict the meaning of “environmental law”, both interpretations having been found in violation of Article 9(3) of the Aarhus Convention by the Aarhus Convention Compliance Committee.