Case T-108/17 ClientEarth v Commission of 4 April 2019 ECLI:EU:T:2019:215
In an appeal against a Commission internal review decision brought under Article 12 of the Aarhus Regulation, the General Court has set restrictive criteria regarding the arguments that can be raised before it to challenge the act subject to internal review. This undermines the already narrow opportunities for access to justice that internal review affords, demonstrating the urgent need to ament the internal review procedure.
Article 10 of the Aarhus Regulation allows certain NGOs to submit a request for internal review to the EU institution or body that has adopted “an administrative act under environmental law” (a term defined so narrowly that only 10 of 41 requests have been found admissible). Article 12 provides that the NGO can then institute proceedings before the CJEU against the Commission’s decision on the request for internal review.
In 2017 ClientEarth requested internal review of the Commission’s decision to authorise the presence of DEHP in PVC, a substance recognised as being of very high concern in accordance with REACH, the main EU law regulating chemicals, due to its potential to reduce the ability of humans and animals to produce semen and provoke the malformation of reproductive systems. The request for internal review raised a number of concerns regarding the substance of the authorisation decision. Following the Commission’s refusal to review the authorisation, ClientEarth brought the matter before the General Court, asking for the annulment of both the Commission’s decision not to review the authorisation (the review decision), as well as the authorisation itself.
First, the General Court held that the procedure provided for in Article 12 of the Aarhus Regulation cannot result in annulment of the underlying act that was the subject of the request for internal review, i.e. the authorisation. This confirms that EU law does not provide NGOs and members of the public with access to a procedure that can result in the annulment of an EU act that violates environmental law and that does not require implementing measures. NGOs and the public cannot access the General Court under Article 263 TFEU to challenge such acts directly; internal review does not allow it; and, in the absence of implementing measures, there is no access to the preliminary reference procedure provided in Article 267 TFEU through national courts. In other words, NGOs and the public do not have access to an effective remedy as concerns certain illegal EU acts. This is a clear violation of Articles 9(3) and (4) of the Aarhus Convention.
Therefore, bringing the matter before the Court can only lead to the annulment of the Commission’s decision on the request for internal review. But to what extent can that decision be annulled on the basis that it confirms the unlawful authorisation decision? This issue had already received attention from the General Court in case T-177/13 – TestBioTech and Others v Commission, currently under appeal to the Court of Justice (case C-82/17 P). In that case, the Court found that, while the purpose of an internal review request is to obtain a finding that the authorization decision is unlawful or unfounded, the action before the court can only be against the decision rejecting the request for internal review as unfounded. It cannot directly challenge the lawfulness or merits of the authorisation decision. In that case the 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.
The Court essentially confirmed this approach in the present case and added more clarity to its application in practice. Unfortunately, the restrictive application of the approach further undermines the internal review procedure. First, the Court found that arguments raised relating to the deficiencies in the authorisation, “could have a bearing on the present action only if the Commission had, in the decision on the request for internal review, endorsed the elements contained in the application for authorisation”. The Court took a literal approach to this question, which in practice allows the Commission to simply avoid the scrutiny of the General Court by remaining silent on the errors in the authorisation identified in the request for internal review.
Second, the Court found that the pleas and arguments raised before it are admissible “only in so far as those pleas and arguments have already been presented by the applicant in the Request, and in such a way that the Commission has been able to respond”. The arguments that the court rejected on this basis show that NGOs cannot even amplify or adapt the arguments in the request for internal review to take account of the Commission’s position as stated in the review decision.
Finally, as regards the standard of evidence on NGOs in the internal review procedure, the Court confirmed that an NGO “is required to put forward any facts and evidence or any legal arguments raising serious doubts about the assessment made in that act by the EU institution or body.” Yet, at some points in the judgment, the Court expected the NGO to provide definitive proof that the Commission had not met the legal standard to grant the authorisation.
Some of the issues raised in this case may be answered shortly by the Court of Justice’s judgment in Testbiotech’s appeal in case C-82/17 P. ClientEarth has also appealed this judgment.
In the meantime, it should be remembered that in 2017, the Aarhus Convention Compliance Committee held that the internal review procedure would only compensate for the lack of standing for environmental NGO to challenge the acts of the EU institutions directly before the CJEU if the EU courts interpret Article 12 AC “in a way that would allow them both to consider failure to comply with article 10, paragraphs 2 and 3, and also the substance of an act falling within article 10, paragraph 1.” Taking into account the fact that the procedure cannot result in the annulment of the authorisation, as well as the restrictive admissibility criteria applied to arguments relating to the substance of the authorisation, we can say with some certainty that the internal review procedure as it stands does not comply with Articles 9(3) or (4) of the Aarhus Convention.