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Sebastian Bechtel

30th October 2020

EU

Digging a moat to protect the castle walls: CJEU solidifies barriers to NGO standing

C-784/18 P Mellifera v Commission, ECLI:EU:C:2020:630

On 2 September 2020, the Court of Justice confirmed that the NGO Mellifera had no standing to challenge the European Commission’s authorization of the herbicide glyphosate. Mellifera had sought to overturn the General Court’s judgement in case T-102/17, previously analysed in this newsletter (see here). The Court of Justice judgement does not only confirm the limited standing of NGOs to challenge EU acts by way of internal review, the Court also ordered the applicant to pay the costs of the intervening party (Bayer), thus adding yet another access to justice barrier.

Background

In 2016, Mellifera, a small NGO working on the protection of bees, submitted a request for internal review to the EU Commission. It asked the Commission to reconsider its Implementing Regulation by which it extended the approval period for the herbicide glyphosate, which has been labelled as „probably carcinogenic“ by the International Agency for Research on Cancer (IARC). The Commission rejected the request for internal review on the basis that the contested Implementing Regulation was of general scope and, thus, not an “administrative act” for the purposes of the Aarhus Regulation (Regulation 1367/2006). Mellifera contested this refusal unsuccessfully before the General Court (case T-102/17, mentioned above) and then appealed to the Court of Justice.

The judgement

The Court then rejected the applicant’s first argument that the decision to extend the approval of glyphosate is in fact a decision of individual scope. The applicant had argued that the Regulation confirmed the approval for a specific applicant and substance, comparable to a marketing authorisation for GMOs. The Court held that the decision was of general scope because it regulated the approval processes of plant protection products containing glyphosate by Member State authorities. It is therefore different to a marketing authorization, which allows the placing of a substance on the market by the applicant without a further intervening act (paras 59-63 and following).

The Court also rejects the applicant’s second argument that an interpretation of the Aarhus Regulation that is consistent with Art. 9(3) Aarhus Convention would require that its request be declared admissible. The Court confirms the General Court’s finding that it is not possible to interpret the term “individual scope“ in a manner that would encompass the contested Implementing Regulation, stating that this would amount to a contra legem interpretation (paras 78-79 and following).

The Court therefore rejected the appeal. It further ordered Mellifera to carry the costs of not only the European Commission but also of the intervening party, Bayer Agriculture BVBA.

Comment

First, the judgement confirms the extremely limited standing for NGOs to challenge EU acts by way of internal review. Recently, Advocate General Bobek himself compelled in his Opinion on Case C-352/19 Bruxelles v Commission (see our analysis of the associated General Court judgement here) to include an intermezzo with a discussion of “direct and individual concern and the art of traffic control”. Though these statements were made in relation to a claim brought by a federal entity to the General Court under Art. 263 TFEU, both the content and the indignant tone of much of this section, and the Opinion as a whole, appear equally applicable here. Not least because the case also concerned the authorization of glyphosate by the EU Commission.

The Advocate General asked three particularly pertinent questions that we would leave to the reader to ponder:

  1. Given the expansion of the EU Courts in recent years, while national courts do often have limited capacity, is it still reasonable to defer to preliminary references as a viable alternative to direct General Court access (para. 142)?
  2. In cases that concern complex regulatory and technical issues and require extensive collection of evidence, expert opinion and/or scientific data, would it not be more reasonable to allow for access to the General Court, instead of relying on a validity challenge by way of a preliminary ruling? It should be considered that in preliminary reference procedures, the CJEU does not collect any evidence and virtually never hears expert witnesses (paras. 143-145).
  3. Would the applicant have been better served if, instead of making a request for internal review, “it (naturally, entirely hypothetically) instructed some of its employees to go out and vandalise a few shops” (para. 146)? This question refers to the recent Blaise case, in which certain applicants obtained access to the EU Courts by doing exactly that and obtaining a preliminary reference as part of the ensuing criminal proceedings (see our analysis, here).

Second, by ordering the NGO to pay the costs of the intervening party, effectively punishes for an organization that seeks to defend the public from a potentially carcinogenic substance. Mellifera is a small NGO from Rosenfeld, a small town in the south of Germany counting currently 6347 inhabitants. An unreasonable cost demand from Bayer could easily end the existence of such an NGO.

Article 9(4) Aarhus Convention establishes that costs may not be prohibitively expensive and the CJEU has rendered a number of judgements upholding this principle in relation to national litigation. However, in its jurisprudence regarding its own costs, such a reference is for now missing. While many Member States regulate the amount of lawyer fees to be paid (Germany, Austria) or impose specific limits based on the case at hand (Poland, Slovakia), there is currently no such regulation on EU level.

In conclusion, the Court not only solidified the existing wall preventing standing for environmental NGOs, the cost order added a moat for those applicants attempting to scale the walls. The Court has again demonstrated a disappointing lack of understanding of public interest litigation.

The project

Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.

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