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Limits of NGO Rights to Invoke Access to Justice under the Aarhus Convention

Published online by Cambridge University Press:  20 January 2017

Gérardine Garçon
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Abstract

Joined Cases C-404/12P and C-405/12P

The Aarhus Convention was concluded in order to strengthen the rights of the public on access to information, public participation in decision-making and access to justice in environmental matters. The Convention provides that members of the public shall have access to administrative or judicial procedures to challenge measures by private persons and public authorities that contravene provisions of national law relating to the environment. At EU level, a regulation made the Aarhus Convention applicable to EU institutions. Pursuant to that regulation, review of measures adopted by EU institutions is limited to administrative acts. Two NGOs challenged the legality of that limitation and filed legal action. The case was related to the establishment of EU maximum residue levels for active substances contained in crop protection products. The Commission refused to review this measure which it considered to be no administrative act. The Court of Justice of the European Union has recently given its judgment in that case. The impact of the judgment goes beyond the crop protection sector as it concerns the scope of the internal review concept in general. Further, but not less important, the Court has clarified to which extent international treaties concluded by the EU can be relied upon by individuals.

Type
Case Notes
Information
European Journal of Risk Regulation , Volume 6 , Issue 3 , September 2015 , pp. 458 - 469
Copyright
Copyright © Cambridge University Press 2015

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References

1 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, done at Aarhus, Denmark on 25 June 1998. It can be found under <http://www.unece.org/env/pp/contentaj.html> (last accessed 23 March 2015).

2 The Aarhus Convention was approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, OJ L 124, 17.5.2005, p. 1.

3 See Case C-61/94, Commission v Germany, judgment of 10 September 1996, ECR I-3989, paragraph 52; Case C-334/04, IATA and ELFAA v Department for Transport, judgment of 10 January 2006, ECR I-403, paragraph 34; Case C-311/04, Algemene Scheeps Agentuur Dordrecht v Inspecteur der Belastingdienst – Douanedistrict Rotterdam, judgment of 12 January 2006, ECR I-609, paragraph 25.

4 See Epiney, in: Fluck/Theuer (eds), Informationsfreiheitsrecht, F II.1, Aarhus–Konvention Kommentierung, Art. 9 at para. 21; Epiney, Zur Rechtsprechung des EuGH im Umweltrecht im Jahr 2011, EurUP 2012, p. 88 (89).

5 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, OJ L 264, 25.9.2006, p. 13. As regards the Member State level, the Community adopted in 2003 the Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, OJ L 41, 14.2.2003, p. 26. This directive implemented the first pillar of the Aarhus Convention (i.e. the rights of access to information). As regards the review procedures according to Art. 9(3) of the Aarhus Convention in the Member States, the Commission came up in 2003 with a Proposal for a directive of the European Parliament and of the Council on access to justice in environmental matters (COM(2003)624 final of 24 October 2003). Following the strong opposition from a number of EU Member States, the Commission eventually withdrew that proposal again. To date, it is unclear whether the Commission will revitalize its suggestion for such a legislative act or whether alternative solutions to improve access to justice in environmental matters may be fostered, if any.

6 See recital (18), third sentence, of the preamble to the Aarhus Regulation.

7 In contrast, the so–called “Transparency Regulation” (Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p. 43) only applies to access to information held by the European Parliament, the Council and the Commission. A recast of the Transparency Regulation has been proposed which shall, inter alia, extend the scope of the Transparency Regulation to all Union institutions and bodies, as required according to Art. 15(2) of the TFEU. However, such recast is not on the top priority list of EU legislative projects.

8 See Joined Cases 16/62 and 17/62, Confédération nationale des producteurs de fruits et légumes and others v Council, judgment of 14 December 1962, ECR 471 (478).

9 See Case C-244/88, Usines cooperatives de déshydratation du Vexin and Others v Commission, judgment of 21 November 1989, ECR 3811, paragraph 13; Case C-171/00 P, Alain Libéros v Commission, judgment of 15 January 2002, ECR I-451, paragraph 28; Case T-37/04, Região autónoma dos Açores v Council, judgment of 1 July 2008, ECR II-103, paragraph 33.

10 See also Case C-503/07 P, Saint-Gobain Glass Deutschland v Commission, order of 8 April 2008, ECR I-2217, paragraph 71.

11 See for example Case T-232/11, Stichting Greenpeace Nederland and PAN Europe v Commission, OJ C 194, 2.7.2011, p. 19; Case T-192/12, PAN Europe v Commission, OJ C 194, 30.6.2012, p. 26; Case T-485/12, Générations futures v Commission, OJ C 389, 15.12.2012, p. 7; Case T-8/13, Client Earth and others v Commission, OJ C 71, 9.3.2013, p. 25.

12 See Case T-338/08, Stichting Natuur en Milieu and PAN Europe v European Commission, judgment of 14 June 2012. 13 Case T-396/09, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, judgment of 14 June 2012.

14 Case C-401/12 P, appeal brought on 3 September 2012 by the Council against the judgment of the General Court delivered on 14 June 2012 in Case T-396/09, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, OJ C 9, 12.1.2013, P. 25; Case C-402 /12 P, appeal brought on 24 August 2012 by the European Parliament against the judgment of the General Court delivered on 14 June 2012 in Case T-396/09, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, OJ C 9, 12.1.2013, p. 26; Case C-403/12 P, appeal brought on 27 August 2012 by the Commission against the judgment of the General Court delivered on 14 June 2012 in Case T-396/09, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, OJ C 9, 12.1.2013, p. 26; Case 404/12 P, appeal brought on 3 September 2012 by the Council against the judgment of the General Court delivered on 14 June 2012 in Case T-338/08 Stichting Natuur en Milieu and Pesticide Action Network Europe v Commission, OJ C 9, 12.1.2013, p. 27; Case C-405/12 P, appeal brought on 27 August 2012 by the Commission against the judgment of the General Court delivered on 14 June 2012 in Case T-338/08 Stichting Natuur en Milieu and Pesticide Action Network Europe v Commission, OJ C 9, 12.1.2013, p. 28; see also the analysis of Garçon, The Aarhus Rights in the EU: Internal Review and Access to Justice, Analysis of the General Court's Findings of 14 June 2012 in Cases T-338/08 and T-396/09, StoffR 2012, p. 34 ff.

15 The judgment of the CJEU in the MRL Case can be found under <http://curia.europa.eu/juris/document/document.jsf?text=&docid=161323&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=209859> and the judgment of the CJEU in the air quality case under http://curia.europa.eu/juris/document/document.jsf?text=&docid=161324&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=178340 (last accessed 23 March 2015).

16 Commission Regulation (EC) No 149/2008 of 29 January 2008 amending Regulation (EC) No 396/2005 of the European Parliament and of the Council by establishing Annexes II, III and IV setting maximum residue levels for products covered by Annex I thereto, OJ L 58, 1.3.2008, p. 1. 17 Regulation (EC) No 396/2005 of the European Parliament and of the Council of 23 February 2005 on maximum residue levels of crop protection products in or on food and feed of plant and animal origin and amending Council Directive 91/414/EEC, OJ L 70, 16.3.2005, p. 1. 18 Commission Decision D/530585 and D/530686 of 1 July 2008. 19 See the reference in note 8 above.

20 This is also established case-law. See the references in note 9 above.

21 Council Directive 91/414/EEC of 15 July 1991 concerning the placing plant protection products on the market, OJ L 230, 19.8.1991, p. 1.

22 See the case-law referred to in note 3 above 23 The General Court referred to certain judgments where the CJEU defined such requirements. See Case C-308/06, Intertanko and Others, judgment of 3 June 2008, ECR I-4057, paragraph 45; Joined Cases C-120/06 P and C-121/06 P, FIAMM and Others v Council and Commission, judgment of 9 September 2008, ECR I-6513, paragraph 110.

24 Case C-70/87, Fediol v Commission, judgment of 22 June 1989, ECR 1825, paragraphs 19 to 22; Case C-69/89, Nakajima v Council, judgment of 7 May 1991, ECR I-2169, paragraph 31; Case C-149/96, Portugal v Council, judgment of 23 November 1999, ECR I-8395, paragraph 49; Case C-93/02 P, Biret International v Council, judgment of 30 September 2003, ECR I-10497, paragraph 53; Case C-377/02, Van Parys, judgment of 1 March 2005, ECR I-1465, paragraph 40.

25 See paragraph 58 of the judgment in the MRL-Case: the General Court referred to Art. 1(1) of the Aarhus Regulation which states that the objective of the Aarhus Regulation is to contribute to the implementation of the obligations arising under the Aarhus Convention by granting, inter alia “access to justice in environmental matters at European Union level under the conditions laid down” by the Aarhus Regulation. In addition, the General Court referred to recital (18) of the preamble to the Aarhus Regulation where Art. 9(3) of the Aarhus Convention is expressly mentioned. As regards the case-law, see Case C 240/09, Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky, judgment of 8 March 2011, ECR I-1255, paragraphs 39 and 41.

26 Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ L 184, 17.7.1999, p. 23.

27 See the findings of the General Court in the MRL Case, note 12 above, paragraph 68, where reference is made to page 34 of the Implementation Guide for the Aarhus Convention. The Guide can be found under http://www.unece.org/env/pp/acig.pdf (last accessed 23 March 2015).. 28 See Case C-344/04, IATA and ELFAA v Department for Transport, note 3, paragraph 40 and the case-law cited.

29 See note 14 above.

30 See the reference in note 15 above.

31 See Case C-308/06, Intertanko and Others, note 23 above, paragraph 42, and the case-law cited. 32 See the CJEU's judgment in the MRL Case, note 15 above, paragraph 45, and the case-law cited.

33 See the CJEU's judgment in the MRL Case, note 15 above, paragraph 46, and its case-law referred to in note 23 above. See also Case C-366/10, Air Transport Association of America and Others, judgment of 21 December 2011, ECR I-13755, paragraph 54.

34 See the CJEU's judgment in the MRL Case, note 15 above, paragraph 47.

35 Case C-240/09, Lesoochranárske zoskupenic, note 25 above, paragraph 45.

36 Case 70/87, Fediol v Commission, note 24 above, paragraphs 19 to 23; Case C-69/89, Nakajima v Council, note 24 above, paragraphs 29 to 32; Case C-280/93, Germany v Council, judgment of 5 October 1994, ECR I-4973, paragraph 111; Case C-352/96, Italy v Council, judgment of 12 November 1998, ECR I-06937, paragraph 19.

37 Case 70/87, Fediol v Commission, note 24 above. The Fediol Case concerned the legality of specific provisions of Council Regulation (EEC) No 2641/84 of 17 September 1984 on the strengthening of the common commercial policy with regard in particular to protection against illicit commercial practices, OJ L 252, 20.9.1984, p. 1.

38 Case C-69/89, Nakajima v Council, note 24 above. The Nakajima Case concerned anti-dumping duties on imports under the antidumping system protecting against dumped or subsidized imports from countries not members of the EU.

39 See Art. 2(1) of Council Regulation (EEC) No 2641/84, note 37 above.

40 See Case C-69/89, Nakajima v Council, note 24 above, paragraph 30. The Agreement on Implementation of Article VI of the GATT was approved on behalf of the Community by Council Decision 80/271/EEC of 10 December 1079 concerning the conclusion of Multinational Agreements resulting from the 1973 to 1979 trade negotiations, OJ L 71, 17.3.1980, p. 1. 41 See the CJEU's judgment in the MRL Case, note 15 above, paragraph 51.

42 To that end, the Court also referred to the judgment in the so-called “Slovakian Brown Bear Case”, Case C-240/09, Lesoochranárske zoskupenic, note 25 above, paragraphs 41 and 47, where it was confirmed that the obligations with respect to national administrative or judicial procedures in the area of EU environmental law fall primarily within the scope of Member State law.

43 See Case C-308/08, Intertanko and Others, note 23 above, paragraph 45, Joined Cases C-120/06 P and C-121/06 P, FIAMM and Others v Council and Commission, note 23 above, paragraph 110, Case C-366/10, Air Transport Association of America and Others, note 33 above, paragraph 54.

44 See the judgment of the CJEU in the MRL Case, note 15 above, paragraphs 45 and 46, and the judgment of the General Court which was appealed, note 12 above, paragraph 53, as well as the case-law cited in both judgments.

45 This was also stressed by the CJEU in the Slovakian Brown Bear Case. See Case C-240/09, Lesoochranárske zoskupenic, note 25 above, paragraph 45.

46 See the findings of the CJEU in the MRL Case, note 15 above, paragraph 47.

47 See the judgment of the CJEU in the MRL Case, note 15 above, paragraphs 48 to 52, and the judgment of the General Court which was appealed, note 12 above, paragraphs 54 to 58. 48 This in particular refers to the findings in the Nakajima Case. Oliver, Access to Information and to Justice in EU Environmental Law: The Aarhus Convention, Fordham International Law Journal, 2013, Vol. 36, p. 1423 (1465) points out that the concept of a “particular obligation” is “shrouded in mystery” and that the result of that judgment is that Art. 9(3) of the Aarhus Convention may be relied upon before the courts even though that provision is not sufficiently clear or precise to be directly applicable. He argues that this raises an acute problem of legal certainty.

49 See III.2. above.

50 In addition, this excludes, in any case, situations where the institutions act in their judicial or legislative capacity. 51 This aim is expressly recognized in Art. 1 and in the sixth recital of the preamble to the Aarhus Convention.

52 Epiney, EurUP 2012, note 4, p. 88 (89), stresses that under Art. 9(3) of the Aarhus Convention, the Contracting Parties to the Convention retain a broad discretion as to how to implement its provisions in their national laws. In her assessment of the judgment of the CJEU in the Slovakian Brown Bear Case, Epiney points out that the Court did not come to any other conclusion.

53 The legal actions are mentioned under II.2. above.

54 The approval procedure for the active substances used in crop protection products is laid down in Art. 7 et sqq. of Regulation 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC, OJ L 309, 24.11.2009, p. 1. According to Art. 13 of Regulation 1107/2009, the approval of an active substance is granted by adoption of a Commission regulation. As regards the approval of active substances contained in biocidal products, see Art. 9 of Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products, OJ L 167, 27.6.2012, p. 1.

55 Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006, OJ L 353, 31.12.2008, p. 1.

56 Rehbinder, Die Aarhus-Rechtsprechung des europäischen Gerichtshofs und die Verbandsklage gegen Rechtsakte der Europäischen Union, EurUP 2012, p. 23 (25) argues that at least those approval measures which are delegated acts within the meaning of Art. 290 of the TFEU are likely to be measures of general application.