In case T-560/17 Fortischem v Parliament and Council, the General Court dismissed an action brought by a Slovak chemicals company against an EU Regulation prohibiting the use of mercury and mercury compounds in certain manufacturing processes, implementing the Minamata Convention on Mercury, on the grounds of lack of individual concern.
The Court then addressed the applicant’s argument that lack of standing under Article 263 TFEU breached its right to an effective remedy under Article 47 of the Charter of Fundamental Rights. It recalled its consistent case law that the validity of EU acts are challengeable in national courts through the preliminary reference procedure as an alternative to direct actions before the CJEU. The Court found that the applicant’s argument that it must first exhaust all administrative remedies before a preliminary reference can be made by a Slovak Court was insufficient to render its available remedies ineffective.
The applicant attempted to raise the argument that the requirement to exhaust all administrative remedies meant that, in effect, judicial review would only be possible once the deadline for phasing out the use of mercury and mercury compounds had expired. In other words, the applicant would already have suffered irreversible harm before judicial review was possible. The Court found that the argument lacked the precision needed to render it comprehensible and, as such, dismissed it. The lack of guidance from the Court on this issue is unfortunate, particularly given its importance in the context of environmental matters. The timeframes involved in challenging acts of EU institutions using the preliminary reference procedure often mean that irreversible environmental harm will have been incurred before the applicant can even get to court. In these circumstances, the right to an effective remedy cannot be assured through national courts in all cases.
This judgment raises two questions for future cases under Article 263:
- What is needed to demonstrate to the Court that an applicant’s legal remedies before the national court in question are ineffective?
- If a future applicant were to meet this standard, would this render the direct action under Article 263 TFEU admissible?