16 March 2017
This is the first case in which the General Court ruled on the right of NGOs to challenge acts of the EU institutions in court since the rules were changed by the Lisbon Treaty. Specifically, the General Court interpreted the “direct concern” criteria under Article 263(4) TFEU with regard to NGOs, finding that they are not directly concerned by decisions of EU institutions and that their applications to the court are therefore inadmissible. This means that NGOs cannot challenge decisions of EU institutions before the EU courts. The only remedy they have is through the Aarhus Regulation which, according to the only ruling that has been handed down on the matter, only provides an indirect right of challenge. The Aarhus Convention Compliance Committee should address this in its final findings in our case against the EU (ACCC/C/2008/32). Anais Berthier comments.
Case T-600/15, Pesticide Action Network Europe v Commission, 28 September 2016, ECLI:EU:T:2016:601
Pesticide Action Network Europe (PAN Europe), Bee Life European Beekeeping Coordination (Bee Life) and Unione Nazionale Associazioni Apicoltori Italiani (Unaapi) sought the annulment of Commission implementing Regulation 2015/1295 approving the active substance sulfoxaflor in accordance with Regulation 1107/2009 concerning the placing of plant protection products on the market.
They relied on Article 263(4) TFEU to argue that they were directly concerned by the contested decision, notably on the grounds that individuals must be regarded as directly concerned by an act not only if that act directly affects their legal situation but also where it affects their factual situation. The contested act had direct legal effects on Unaapi’s members, their rights of property and to conduct a business.
The General Court started by stating that the approval of sulfoxaflor and its inclusion on the list of approved active substances has the legal consequence of enabling Member States to authorise the placing on the market of plant protection products containing sulfoxaflor, if a request to that effect is made.
It concluded that it is therefore on the legal situation of the Member States, and on that of potential applicants for authorisations to place plant protection products containing sulfoxaflor on the market, that the contested act has a direct effect. It does not affect the legal situation of NGOs’.
On the right of property and the right to conduct a business, the General Court found that even if the use of the product containing sulfoxaflor is likely to endanger the business activities of Unaapi’s members, “those economic consequences do not concern their legal situation, but only their factual situation”.
It went on to state that the approval of the substance by the Commission did not make the authorisation by the Member States automatic. The risk to bees therefore depended on the conditions of use of a particular product laid down in the authorisations granted by the Member States.
It concluded in quite a confusing way by stating that even if the effect of the contested act on the business activities of Unaapi’s members could be described as being legal it could not therefore be defined as direct.
On the impact of the contested act on the objectives of the campaign pursued by PAN Europe and Bee Life, these objectives are the protection of bees against harmful insecticides such as sulfoxaflor. The General Court acknowledged that PAN was a Pan-European organisation active in 24 countries of which 21 are members of the EU. Under its articles of association, it has the objective, inter alia, of promoting activities to reduce or eliminate the use of pesticides.
Likewise for Bee Life, its goal is to reveal and solve the environmental problems of pollinating insects, in particular of honey bees, and strive for agriculture compatible with the wellbeing of pollinators and biodiversity. Despite these obvious interests from the NGOs in the contested decision, the General Court found that it did not affect the rights of the NGOs to conduct their campaigns.
The fact that Bee Life had submitted written observations on the draft assessment report on sulfoxaflor did not convince the General Court either.
The General Court added that even if the conditions of admissibility laid down in Article 263(4) TFEU must be interpreted in the light of the fundamental right of effective judicial protection provided in Article 37 and 47 of the Charter of Fundamental Rights, such an interpretation cannot have the effect of setting aside those conditions expressly laid down in the Treaty. It also found that the guarantee provided in Article 47 of the Charter did not go beyond the ones granted under the TFEU.
Finally, with regard to the implementation of the access to justice rights provided by the Aarhus Convention, the General Court first recalled that the Convention did not have primacy over the Treaty and no derogation was therefore allowed.
Secondly, it relied on the findings of the CJEU in case C-240/09 and C-401/12 P to C-403/12 to conclude that individuals could not rely directly on Article 9(3) of the Convention before the Court of the EU as it was unconditional and not sufficiently precise. Thirdly, it held that since Article 9(3) made the rights of access to justice conditional upon meeting eligibility criteria arising under Article 263(4)TFEU, the applicants had therefore not demonstrated how its interpretation of the direct concern criteria was not compatible with the Convention.
This reasoning falls short of what would be required to ensure that Article 9(3) is implemented by the EU to ensure compliance with the Convention.
This ruling needs to be read in conjunction with ruling of the Court in case T-177/13 in which the General Court interpreted for the first time the access to justice provisions of the Aarhus Regulation and confirmed that NGOs could only challenge the institution’s reply to the request for internal review and not the actual contested decision.
The protection of the environment, biodiversity and public health are not interests that can be relied on to be allowed to challenge decisions in breach of the law relating to the environment before the EU courts. That is what our governing EU institutions, including our EU judges, have decided.