EU internal review mechanism: CJEU confirms broad principles on scope and standard of review

C-82/17 P TestBio Tech eV v Commission of 12 September 2019

The Court of Justice of the EU has confirmed the broad principles defined by the General Court on the scope and standard of its review in the context of the internal review procedure under Articles 10 and 12 of the Aarhus Regulation. It is clear that the mechanism allows the Court to review the substantive legality of EU acts that breach environmental law. Nevertheless, the narrow definition of EU acts that are subject to the Aarhus Regulation, the Court’s formalistic approach to the admissibility of specific pleas and arguments and the lack of effective remedies means that NGOs continue to face an uphill struggle in accessing EU courts to challenge unlawful acts of EU institutions and bodies.

On 12 September, the Court handed down its judgment in Testbio Tech’s appeal against the General Court’s decision of November 2016. The case concerned an authorisation granted by the Commission to Monsanto to place foods, food ingredients and feed containing, consisting of, or produced from modified soybean on the market. Testbio Tech and two other environmental NGOs applied to the Commission for internal review of the authorisation, under Article 10 of Regulation 1367/2006 (the Aarhus Regulation). When the Commission rejected the request for internal review, the NGOs brought the matter before the General Court in accordance with Article 12 of the Aarhus Regulation. The General Court dismissed the case. It found part of the NGOs’ pleas to be 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. The remaining pleas were rejected as unfounded because they did not provide enough evidence to substantiate the allegations.

The NGOs appealed the judgment on the grounds that the General Court was wrong to dismiss a number of its arguments and items of evidence because they were inadmissible. They also complained that the General Court had applied an impossible burden of proof on NGOs requesting internal review.

Regarding the admissibility of specific arguments, the NGOs argued that when bringing judicial proceedings against a decision relating to a request for internal review, they must be entitled to develop or add additional detail and evidence in support of the grounds put forward in the request for review. An overly restrictive approach by the Court, they argued, would be contrary to the object and purpose of the Aarhus Regulation, which is to enable access to justice in environmental matters.

The Court stated that the proceedings before the General Court cannot be founded on new grounds or on evidence not appearing in the request for review. Otherwise, the requirement in Article 10 of the Aarhus Regulation that applications for internal review must state the grounds would be redundant and the object of the procedure would be altered. Therefore, the Court found that the General Court had not erred in law when it held that the Commission was not required to examine grounds other than those put forward in the request for review.

The Court then considered a number of alternative arguments put forward by the NGOs for why the General Court should have found their arguments to be admissible, but rejected them all on the basis that they were insufficiently clear and precise to enable the Court to exercise its power of judicial review.

Regarding the burden of proof faced by NGOs when requesting internal review, the Court confirmed that a party requesting internal review is required to put forward facts or legal arguments of sufficient substance to give rise to serious doubts as to the assessment made by the EU institution or body concerned. The NGOs also challenged specific paragraphs in which they perceived that the General Court applied this burden of proof in a way that required them to not only raise serious doubts, but to prove that the modified soybean was unsafe. The Court found these arguments to be unfounded on the basis that, in the paragraphs identified, it was not apparent that the General Court had held that the evidence put forward by the appellants did not show that the modified soybean was unsafe. It hard to come to any other conclusion but that the Court ducked this important question by relying on a formalistic reading of the arguments advanced.

The NGOs also put forward three substantive pleas challenging the General Court’s assessment of the Commission’s decision to refuse the request for internal review. The first concerned the General Court’s finding that guidance published by EFSA in accordance with Regulation 1829/2003 on genetically modified food or feed, does not give rise to legitimate expectation on the part of a third party that it would be complied with. The Court dismissed the plea on the grounds that the NGOs had challenged the wrong paragraphs in the judgment and therefore their arguments were in part unfounded and in part ineffective. The second and third claims concerned faults in the safety assessment conducted by the Commission in granting the authorisation and the Commission’s obligations to investigate the potential toxicity of the soybean. The Court dismissed them, upholding the General Court’s finding that the NGOs had not demonstrated manifest errors of assessment on the Commission’s part.

Comment

There are at least two clear takeaways regarding exactly what is required of NGOs when they request internal review:

1. Judicial proceedings in accordance with Article 12 of the Aarhus Regulation cannot be founded on new grounds or on evidence not appearing in the request for review.
2. NGOs are required to put forward the facts or legal arguments of sufficient substance to give rise to serious doubts as to the assessment made by the EU institution or body.

However, despite these clear conclusions, one is left with the feeling that this case has raised more questions that it has answered. This is partly because the facts and written pleadings meant that the Court did not have to apply these principles to the facts of the case, which would have provided much needed guidance on the Court’s approach. Therefore, the practical implications for NGOs are still very unclear. For example, while it is clear that the grounds of review cannot be altered at the judicial stage, we do not know if there is room for amplifications of the arguments that support such grounds, in order to take account of the Commission’s position as stated in the review decision. In addition to this, we are still none the wiser as to how the Court will interpret the terms “sufficient substance” and “serious doubts” when it comes to the burden of proof. Indeed, it neatly sidestepped Testbio Tech’s contention that this principle was applied by the General Court in a way that effectively required the NGO to put forward proof.

Finally, it is clear that if an NGO overcomes the many challenges on the way, the Court is willing to review the substantive legality of the original act that was the subject of the request. However, this continues to raises questions on the remedies available, since the General Court has already confirmed that it cannot lead to the annulment of that act, but only to the annulment of the institution’s review decision. We hope that the Commission’s forthcoming study on access to justice in the EU, requested by the Council last autumn, will provide some answers on these and other related questions.