Environmental activists access EU court by breaking the law

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Case C-616/17 Blaise and Others, ECLI:EU:C:2019:800

In this case, the Court of Justice had the opportunity to confirm the basic principles of its jurisdiction in preliminary references dealing with the validity of EU legislation. The case also serves as a stark reminder that, in the field of environmental protection, it is still easier to access to the EU Courts by breaking the law than by lodging a direct action under Article 263 TFEU.

The case concerned a preliminary reference from the criminal court of Foix, France, regarding the validity of the EU Pesticides Regulation. It is noteworthy because it arose in the context of criminal proceedings against environmental activists who had damaged containers of the well-known herbicide, Roundup, which contains the active substance, glyphosate. In their defence, the activists invoked the precautionary principle, arguing that their actions were intended to protect public health by alerting the stores concerned and their customers to the dangers associated with marketing herbicides containing glyphosate without sufficient warnings. This led the court in Foix to refer a number of questions to the Court of Justice on the compatibility of the Pesticides Regulation, which regulates the placing on the market of plant protection products, with the precautionary principle.

First, the Court addressed whether the preliminary reference was admissible. The European Parliament and the Commission argued that the national court had not established that the invalidity of the Pesticides Regulation would affect the criminal proceedings at hand. In the Parliament’s view, the preliminary reference focussing on validity of the approval of glyphosate as an active substance would have had more relevance to the case. The Court, however, insisted that it is for the national court to assess the need for a preliminary decision to be able to render its judgment and the relevance of the questions it poses to the CJEU. Accordingly, questions relating to EU law enjoy a presumption of relevance and the CJEU may only refuse to rule on a question in three situations. First, if it is obvious that the interpretation or determination of validity of an EU rule bears no relation to the actual facts of the main action or its purpose. Second, where the problem is hypothetical in nature. Finally, when the Court does not have before it the factual or legal material necessary to give a useful answer. The CJEU found that that none of these situations arose in the present case.

The Court also took this opportunity to confirm two other principles that apply to all preliminary references dealing with the validity of EU legislative acts. First, the validity of a provision of EU law is to be assessed according to the characteristics of that provision and not on its application in a particular case. In the context of this case, this meant that the national court’s criticism of the specific procedure leading to the approval of glyphosate was not decisive as to the validity of the general rules governing that procedure. Second, the Court confirmed that its review was limited to the question of whether the EU legislature, in adopting the Pesticides Regulation, committed a manifest error of assessment.

Regarding the questions referred by the national court, the CJEU observed that, in essence, they concern the validity of the Pesticides Regulation in light of the precautionary principle. The principle entails that, where there is uncertainty as to the existence or extent of risks to human health, protective measures may be taken without having to wait until the reality and seriousness of those risks become fully apparent.  The Court confirmed that the correct application of the precautionary principle in the area covered by the Pesticides Regulation presupposes, first, the identification of the potentially negative consequences for health of the use of the active substances and products falling within its scope and, second, a comprehensive assessment of the risk to health based on the most reliable scientific data available and the most recent international research. This requires the EU legislature to establish a normative framework that ensures that the competent authorities have access to sufficient information to adequately assess the health risks of using the plant protection products/active substances that fall within its scope.

The Court ultimately found that the EU legislature had not committed a manifest error of assessment in discharging this obligation when it adopted the Pesticides Regulation. Nevertheless, the judgment includes a number of important clarifications regarding the obligations imposed by the Pesticides Regulation on competent authorities assessing applications for the authorisation of plant protection products or for the approval of active substances.

The Court underlined that competent authorities must undertake an independent, objective and transparent assessment of applications for the authorisation of plant protection products in light of the current scientific and technical knowledge. The rules laid down in the Pesticides Regulation regarding this assessment therefore require competent authorities to:

    • Take account of the most reliable scientific data available and the most recent results of international research, even if they contradict the material submitted by the applicant;
    • Not rely on tests, analyses or studies for which the applicant has not submitted evidence to demonstrate that they were carried out by a reliable institution on the basis of methods that comply with accepted scientific principles. If competent authorities consider that the evidence is insufficient, it must request additional information;
    • Verify that material submitted by the applicant, particularly the tests, analyses and studies of the product, is sufficient to exclude the risk that that product exhibits long-term carcinogenicity and toxicity;
    • Ensure that applicants have correctly identified the active substance(s) in a plant protection product according to the criteria laid down in the Pesticides Regulation and Regulation 283/2011.
    • Take into consideration not only the specific effects of the active substances contained in the product in question, but also the interactions with the other constituents, including their cumulative effects and their combined effects, for example, their synergistic effects (this requirement also binds the EFSA in the context of applications for approval of active substances, which, according to the Court, must assess the cumulative and combined effects of the active substances(s) and other constituents in one or more representative formulation(s));
    • Reject applications that have not established to the required standard that the conditions governing the approval of the authorisation or approval are satisfied, the burden of proof being on the applicant. The Court confirmed that it is not necessary for the competent authority to undertake a second assessment in order to reach that conclusion.

Comment

It is not evident from this case that the applicants infringed the law with the intention of challenging the validity of the Pesticides Regulation in the EU courts. Nevertheless, this case calls to mind the opinion of Advocate-General Jacobs in case C-50/00 P UPA v Council, in which he advocated for a less restrictive interpretation of the standing criteria that to individuals when they challenge EU measures directly in the General Court under Article 263 TFEU. Famously, he deplored the situation in which a natural or legal person affected by an EU measure would only have the opportunity to challenge its validity in the course of national civil or criminal proceedings arising from having breached the measure in question. This is because, when the standing requirements under Article 263 TFEU are not met (as they never are in the situation of environmental organisations that litigate in the public interest), EU measures can only be challenged by way of the preliminary reference procedure, which presupposes access to a national court. The advocate-general rightly acknowledged that for EU measures that do not imply national implementing measures (such as the Commission Implementing Regulation authorising glyphosate as an active substance), access to a national court can often only be achieved by infringing the EU measure in question.

This consideration influenced the drafting of the Lisbon Treaty, leading to an amendment to the standing criteria in Article 263 TFEU which was intended to prevent just the situation described by Advocate-General Jacobs. However, it has been widely acknowledged that the amendment did not improve the barriers faced by individuals and NGOs litigating in the public interest.  Indeed, the recently published Commission Staff Working Document, commented in full here, notes that the amendment to Article 263 TFEU still does not allow environmental organisations and individuals to directly challenge EU acts that breach environmental law. It also acknowledges failings regarding access to justice in many Member States, which prevent effective use of the preliminary reference procedure.

Ultimately, this is a strong judgment that clarifies many of the obligations that the Pesticides Regulation imposes on Member States, the EFSA and the Commission, in assessing plant protection products and the active substances they contain. It is disappointing that NGOs and individuals will face significant problems enforcing it in national and EU courts.

 

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