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General Court challenge to Commission GM soybean decision is a first for application of access to justice rules

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The General Court  has been asked to annul a decision of the European Commission  concerning genetically modified soybean.

The case was long-awaited by environmental campaigners because it was the first time the General Court applied the access to justice provisions in the Aarhus Regulation. This regulation implements the Aarhus Convention, which establishes citizens’ rights to  access to justice in environmental matters.

Senior lawyer Anais Berthier provides analysis, welcoming the right to challenge the Commission’s refusal to review one of its decisions while maintaining that NGOs must be afforded the right to challenge the actual authorization directly.

Case T-177/13, TestBioTech eV v Commission, 15 December 2016

Responding to an application from Monsanto, the Commission authorized the placing on the market of foods, food ingredients and feed containing, consisting of, or produced from modified soybean.

According to the procedure, the European Food Safety Authority (EFSA) issued a general opinion containing a scientific opinion on Monsanto’s application, finding that it was as safe as its non-genetically modified comparator with respect to potential effects on human or animal health or on the environment. EFSA’s overall opinion concluded that it therefore fulfilled the requirements of Articles 6 and 18 of Regulation 1829/2003 for the placing on the market of the modified soybean.

The NGOs asked the Commission to review its decision pursuant to Article 10 of Regulation 1367/2006 (the Aarhus Regulation). They considered that the assessment that the modified soybean was substantially equivalent to its counterpart was flawed, that the synergistic or combinatorial effects had not been taken into consideration, that immunological risks had not been adequately assessed and that no monitoring of the effects on health had been required.

This case was much awaited as it is the first one in which the General Court interprets the access to justice provisions of the Aarhus Regulation. The regulation enables NGOs to request EU institutions to review some of their decisions and to go to court in case of refusal.

The General Court started by explaining that the institution may reject the request for internal review as unfounded or on the ground that the review did not lead to a different result than the one obtained by the authorisation decision. In the alternative, it may take any other measure it deems appropriate to amend the authorisation decision, including amendment, suspension or repeal of an authorisation.

In case the EU institution does not consider it necessary to amend its decision, the NGO may go to court. More importantly, the General Court made clear that the purpose of the internal review request is to obtain a finding that the authorization decision is unlawful or unfounded. The action before the court can however only be against the decision rejecting the request for internal review as unfounded and cannot directly challenge the lawfulness or merits of the authorisation decision.

The General Court rejected all the pleas of the NGOs as being inadmissible because they were relying on arguments that had not been raised in the initial internal review request or they were directly challenging the authorisation; or as unfounded because they did not provide enough evidence to substantiate their allegations as to the flawed assessment carried out by EFSA and the Commission.

As a result, we can only guess what the Court would have decided if some of the applicants’ pleas had been upheld. It is likely that the Court would have annulled part or whole of the decision of the Commission not to amend, suspend or repeal its decision. Then it would have been to the Commission to decide how to deal with the annulment of its decision and the extent of the review of the authorization to be carried out. It would then be left to the NGO to decide whether to challenge the new decision from the Commission. Only in some very clear cut cases, the Commission should have no other choice than to repeal its authorisation. In any case, what is clear from the ruling is that the Court will not review the actual authorisation adopted by the Commission. This falls short from the requirements of Article 9(3) of the Aarhus Convention which requires that access to justice is provided to members of the public against acts which contravene the law relating to the environment. This case confirms ClientEarth’s allegations in their complaint lodged before the Aarhus Convention Compliance Committee against the EU for not providing legal standing to NGOs before the CJEU. The Committee stated in its recent draft findings that it is possible for the European Courts to interpret Article 12 of the Aarhus Regulation in a way that would allow them to consider the substance of an act subject to an internal review request. It concluded that another interpretation by the European Courts will not be in compliance with the Convention.

An NGO cannot either challenge such a decision relying on Article 263(4) TFEU. The General Court in the PAN case, case T-600/15, recently found that environmental NGOs are not directly concerned by a decision approving an active substance used in a pesticide and are therefore inadmissible to challenge it. With the right to directly challenge such an authorization, the industry still enjoys broader rights of access to justice than NGOs representing public interests.
Future cases will tell us whether the Aarhus Regulation will lead to annulment of EU institutions’ decisions in breach of EU law relating to the environment.
Anaïs Berthier

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