Ruling on glyphosate renewal: the General Court divided over public authorities’ right of standing

Anaïs Berthier is a ClientEarth lawyer

In this case (T-178/18), the Brussels Region, which had banned the use of plant protection products containing glyphosate, challenged the Commission’s regulation renewing the authorisation of the said substance. The General Court of the EU rejected the case as inadmissible, finding the Region not directly concerned by the Commission’s regulation for the purpose of Article 263(4) TFEU.

This comes as a surprise as last December, in case T-339/16, the General Court held that Brussels City (which is a distinct administration from Brussels Region) and the cities of Paris and Madrid had standing to challenge acts of the Commission that affect their regulatory powers. As a result, they were allowed to challenge the Commission’s regulation on the Euro 6 emissions standard. See our analysis of the so-called cities case here.

In the cities case, the General Court relied on settled case law according to which an EU act that prevents a public authority from exercising its competences and powers as it sees fit affects its legal situation and therefore makes it directly concerned for the purpose of Article 263(4) of the Treaty (TFEU). The Court considered that Article 4(3) of Directive 2007/46, which states that Member States shall not restrict or impede the circulation on the road of vehicles that comply with the Euro 6 Standard, prevented the cities from banning cars that met the ‘relaxed’ Euro 6 standard under the contested regulation. It also held that the provision is “directly effective”, meaning that car owners could have challenged such a ban in national courts. Therefore, they had to be granted standing to seek the annulment of the contested regulation.

Contradictions between the two rulings

The General Court is divided on the impact that the Commission’s regulations have on the competences and regulatory powers of national public authorities. It disagrees on whether the legal situation of cities and regions is directly affected by these types of regulations, and consequently whether they should have standing.

Just as in case T-339/16, the Brussels Region has specific regulatory competences, one of which is to regulate the use of plant protection products. It exercised this competence by banning the use of any pesticide containing glyphosate in the Brussels Region via the adoption of an order. The Region was therefore arguing that the Commission regulation renewing the glyphosate authorisation undermined its banning order and prevented it from adopting a general ban.

Yet the General Court found that the renewal of the authorisation of glyphosate does not affect the legal situation of the Region.

The General Court found that, contrary to what the Region argued, a Commission regulation renewing the authorisation of an active substance did not lead to the “confirmation, prolongation or renewal” of national authorisations to place on the market products containing that substance. This argument is not convincing. Indeed, despite the fact that the Member States have to decide on the renewal of these authorisations, the renewal of the authorisation of a substance by the Commission effectively sustains the national authorisations of the products containing the substance and allows them to continue to produce their effects. It is helpful to look at the situation a contrario to demonstrate the impact of the Commission regulation: the refusal to renew glyphosate would have resulted in the withdrawal of the national authorisations and in the recalling of the products.

The General Court also found that the Commission regulation did not prevent the Region from exercising its powers to regulate pesticides provided by the Belgian constitution.

First, the Commission regulation did not mention the Region order banning glyphosate. We fail to understand the relevance of that argument as an act may have impacts on authorities and other acts without specifically mentioning them.

Second, the Court found that the adoption of an authorisation of a substance by the Commission and the existence of authorisations of products containing that substance at national level “raise the question” of whether a Member State or a regional authority which has some responsibilities in this area is nevertheless competent to ban the use of these products. However, the Court ruled that the fact that the Commission regulation may give rise to an “objective uncertainty” as to the legality of the decision of the Region is not enough to establish that it prevents the Region from exercising its regulatory powers as it wishes. This is in contrast to the cities case, in which the Court relied on the principle of loyal cooperation in Article 4(3) TUE, the effet utile of the directives on approvals of motor vehicles and the fact that some of their provisions produce direct effect, meaning that there was a risk that cities adopting such bans contravening EU acts could be the subject of infringement proceedings, to find that they were directly concerned.

Additionally, in this case, the Region’s glyphosate ban was being challenged in two cases before the Belgian Council of State, including for breaching some of the provisions of the said Commission regulation. This was only a hypothetical situation raised by the cities in the other case. Yet, the mere possibility of a challenge against their decision to ban circulation of cars sufficed to convince the judges in the cities case that their legal situation was affected. However, in the Region case, the already pending challenges against the glyphosate ban was not enough to show direct concern. The Region was in an even weaker position with the Belgian Constitutional Court, which has found the glyphosate ban to be unconstitutional due to a conflict with authorisations of products containing glyphosate which are adopted at federal level.

The General Court also rejected the argument made by the Region according to which the Commission regulation affected its legal situation because it was forced to decide on the renewal of national authorisations of products containing glyphosate, according to the procedure imposed on national authorities by the EU Regulation on the placing of the market of plant protection products in case of a renewal authorisation by the Commission. The court relied on the fact that the region only had an advisory role in the procedure.

The General Court refused to assess the right of standing of the Region in light of Article 9(3) of the Aarhus Convention. The fact that Article 9(3) of the Convention allows members of the public to challenge decisions of public authorities was interpreted by the Court as excluding the latter from the definition of the “public” in the convention.

Given the fact that NGOs still do not have legal standing to challenge EU decisions before the EU courts or only in a very limited way, allowing cities and regions to represent public interests before the EU courts constituted a very positive signal sent by the General Court in the cities case. Let’s hope that the Court of Justice will overturn this ruling and ensure there is consistency in the interpretation of the direct concern criterion. Public authorities should more than ever be allowed to exercise their discretion, responsibilities and powers in protecting the environment and public health thoroughly, including in making EU institutions face their inconsistent choices in environmental matters before the CJEU.

Reference : ECLI:EU:T:2019:130