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EU admissibility requirements for NGOs violate Aarhus Convention

Case T-396/09, Stichting Natuur en Milieu & Pesticide Action Network Europe v Commission, 14 June 2012

The General Court handed down judgments in two cases on access to environmental justice for non-governmental organizations. The cases were brought by environmental NGOs which had requested the Commission to review its (1) Regulation (EC) nr. 149/2008 to relax the standards on maximum residue limits for pesticides in food (T-338/08); and (2) decision C(2009)2560 to grant the Netherlands a temporary exemption from the obligations set down by the Air quality directive 2008/50/EC (T-396/09). Both requests were rejected, as the contested regulation and the decision did not constitute measures for which internal review is foreseen in the eyes of the Commission. Under articles 2(1)(g) and 10 of the Aarhus Regulation No 1367/2006, only administrative acts of ’individual scope’ can be subject to review.

The Court annulled the Commission’s decisions rejecting the requests for review. While it agreed that the requests did not meet the above criterion, it also held that the latter is too rigid and therefore in conflict with the wording as well as the object and purpose of the Aarhus Convention. Under Article 300(7) EC Treaty (now 216(2) TFEU), EU institutions are bound by international agreements concluded by the Community (now: EU) and, consequently, that those agreements prevail over secondary Community legislation.

Normally, it would need to be examined (1) whether the nature and the broad logic of the Aarhus Convention do not preclude testing the validity of a provision in an EU regulation or decision, and, in addition, (2) whether the provisions of that treaty appear, as regards their content, to be unconditional and sufficiently precise. However, where the measure makes an express renvoi to particular provisions of an international agreement, the General Court – drawing on a range of ECJ judgments that mostly dealt with WTO/GATT issues - submitted that it can review the legality of the measure in question in the light of the rules laid down in that agreement without first having to determine whether the conditions set out above are satisfied.

For the test itself, the General Court first found that the objective of the European 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 this Regulation’. The Court then sets out to examine whether ‘acts’ in Article 9(3) of the Aarhus Convention can be construed as covering only measures of individual scope. It held that the condition of ‘individual scope’ considerably limits the possibility of internal review, as most acts adopted in the field of the environment are of general scope.

This finding eases up the admissibility requirements for NGOs requesting an internal review of the Commission’s acts based on the Aarhus Convention. The Commission did appeal against both judgments, so it will be up to the ECJ to decide whether it agrees with the General Court on this important issue.

The hurdle that remains is that also under the Aarhus Regulation, an NGO that asked for an internal review can only bring a case to the General Court if that is in line with the relevant provisions of the Treaty, which includes art. 230 EC (now: 263 TFEU) and that thus “the conditions for admissibility laid down in Article 230 EC must always be satisfied if an action is brought before the Courts of the European Union.”

It can be added that in July 2012, the European Environmental Bureau (EEB) has proposed the strengthening of the provisions of the Aarhus Regulation 1367/2006 as one of the priorities of the new Cypriot EU presidency (see under “General”). Such a move would amend the shortcomings signaled in an IEEP report on Compliance by the European Community with its Obligations on Access to Justice under the Aarhus Convention from 2008. This report states that the internal review procedure instituted by the Aarhus Regulation falls far short of what is required to achieve full compliance with the Convention. The report argues that the Regulation in its present form makes little difference to NGO’s ability to challenge acts by EU institutions seeing that dismissed requests for internal review appealed before the ECJ are subject to the same restrictive standing criteria. These findings are similar to the ones of the Compliance Committee of the Aarhus Convention (see report). While this Committee did not conclusively determine that EU law is in conflict with the Convention, it did find that a continuation of the current EU jurisprudence without instituting adequate administrative procedures would amount to a violation of the Convention’s Articles 9(3) and 9(4). The Committee held that the present interpretation by the EU Courts of the condition of individual concern makes it nearly impossible for members of the public to challenge community acts. Their legal situation pursuant to that act must, namely, be altered in a way that differentiates him or her from all other persons which, in turn, excludes the possibility of challenging acts and decisions whose effect is defined as an objective legal or factual situation. It called for that a new direction of the EU Courts’ jurisprudence.

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