NGO’S AND EU LITIGATION: WHAT CAN BE CHALLENGED?

Kate Cook, Matrix

Burying Plaumann?

• Plaumann handed down 50 years ago when the Community had 6 members and very limited jurisdiction!

• Greenpeace was a missed opportunity by Court, repeated again and again..too strict to meet criteria of AC and an obstacle to legal scrutiny of EU decision-making

• Aarhus Convention (AC) sets opportunity for real post cold war leadership on standards of access to justice

• Community of 27 facing greatest crisis since 1957 and issues of democratic accountability even more pressing...

• Time to meet Aarhus standards and extend them but...

What acts/omissions can be challenged?

Catch 22: even if you have standing, the act in dispute may be outside scope of

review procedures!

Standing not the only hurdle...

Article 9(3) Aarhus

Each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by ...public authorities which contravene provisions of its national law relating to the environment

Administrative/judicial procedures?-

Parties can choose to apply either or both but must meet requirements of Art 9(4):

The procedures shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive

Art 2(2) exception

Public authorities do not include ‘bodies or institutions acting in a judicial or legislative capacity’, art 2(2) Convention

Exception for legislative measures based on fact that ‘elected representatives are more directly accountable to the public through the election process...’, see AC Implementation Guide p.34;

Legislative capacity?

Label in domestic law not decisive, para 71 Aarhus Compliance Committee report 14/4/11 (ACCC). ACCC did not rule out that EU ‘regulation’ might fall within A’s 6-8 AC and found that some decisions acts/omissions of EU institutions are covered by A9(3):

“This is the case if an act/omission by EU institution/body can (1) be attributed to it in its capacity as a public authority and (2) is linked to provisions of EU law relating to the environment

Aarhus Regulation

EU has implemented these obligations in Title IV of Regulation 1367/2006 (Aarhus Regulation, ‘AR’) by providing for an administrative ‘internal review’ procedure, on completion of which an NGO may bring an action for annulment before EU courts under what is now Article 263 (ex 230) of the Treaty: Arts 10-12 AR

Good news…

Scope of “environmental law”?

Art 2(1)(f) AR refers to Community legislation which contributes to objectives of EU environmental policy but irrespective of legal base: includes protection of human health and prudent/rational utilisation of natural resources, so broad approach…

Bad news…

‘Administrative act’ is limited to any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects” Art 2(1)(g) AR

• Omission is failure to adopt administrative act

Individual/general scope?

So issue is what is ‘individual scope”?

Earlier case-law not helpful:

“an act is of general application if it applies to objectively determined situations and entails legal effects for persons regarded generally and in the abstract” T37/04 Azores case

• Aarhus Compliance Committee indicated that the decision at issue in Greenpeace (to fund a power plant project from EU funds) was of a type to fall within A9(3), without ruling out that other acts/omissions also relevant;

• Given pending case T338/08 ACCC did not take a view on internal review under EU AR

Story so far...

So far, internal review sought by NGOs of:

• authorisation of GM products containing antibiotic resistence markers;

• decisions to extend authorisation of certain active substances used in pesticides, including glyphosate;

Commission response

Commission adopting very restrictive approach to scope of internal review:

in response to a number of requests concerning the placing on the market of certain pesticides, Commission has rejected requests on the basis that measure was not an administrative act as it was an act of ‘general scope’

Pending cases

• T-338/08, Stichting Milieu & PAN application 11/08/08

• T-405/10, Justice & Environment v Commission, application 10/9/10

• T-232/11, Greenpeace NL & PAN application 4/5/11

T338/08 Stichting Milieu Concerns request to review regulation setting maximum residue levels for certain pesticides on food/feed products.

Applicants argued that although regulation might have form of general measure, should be seen as compilation of individual decisions concerning residues of individual products/substances and was therefore admin act for purposes of A2(1)(g)AR/ A9(3) AC

Case T232/11

• Request made by Greenpeace NL and PAN Europe for review of Dir 2010/77 extending authorisation for 39 active substances used in pesticide (glyphosate) beyond expiry period and without review of recent evidence of harm to human health and environment;

• Commission rejected request on grounds Dir not an administrative measure as of ‘general scope’

Issues in T232/11

• Is the ‘directive’ a bundle of individual decisions in response to applications by operators (reviewable) or a measure of general scope (not reviewable)?

• Case 240/09: Court held AR should be interpreted in light of provisions of AC;

• Exceptions should be narrowly construed!• Rationale for Art 2(2) exception-accountability• Impact of Lisbon changes?

Lisbon changes

• Article 263(4) no need for individual concern in relation to regulatory measures of direct concern and not entailing implementing measures-how does this fit with Article 9(3) implementation? See Microban (non AC case)

• Article 290: A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.

ACCC noted what while Parties under no obligation to establish actio popularis under AC, nor could they apply standing criteria under A9(3) so as to effectively bar all/almost all NGOs from challenging acts/omissions

Scope of act/omission not subject to same flexibility but in any event should not be interpreted so narrowly as to render provision ineffective

ACCC View

Alternative national challenges ?

• ACCC found that system of preliminary ruling does not in itself meet requirements of access to justice in Art 9 AC nor compensate for strict jurisprudence of EU courts;

• This is relevant to interpretation of scope of decision as well as standing ie not enough to say challenge national implementing measures instead/let alone accountable through national parliaments!

However…Even where there is no possibility of any action before the national courts and the Community institutions and the Member States are not prepared to challenge the contested regulation:

“it must be recalled that, in accordance with settled case-law, the conditions governing the admissibility of an action for annulment cannot be set aside on the basis of the applicant’s interpretation of the right to effective judicial protection (see Case C‑260/05 P Sniace v Commission [2007] ECR I‑0000, paragraph 64..). [cited p 87 of T91/07 WWF ]

By contrast ...But in the light of the specific framework of the Convention and the underlying rationale of the legislative decision exception, right to effective judicial protection/AC equivalent is relevant…

“If the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law…” C 240/09

Judge Lenaerts has referred to the ‘mutually reinforcing relationship’ between the principle of effective judicial protection and Article 9(3) AC YEL 2011 “General System of EU Environmental Law Enforcement” page 34, in context of national proceedings C 240/09

Lisbon changes

• ACCC noted debate on whether change in wording provides basis for possible change of jurisprudence and considered this possible but refrained from speculating on whether and how EU courts will consider the jurisprudence in the light of TFEU and earlier noted that former Article 230 had been worded in a way that could comply with A9 AC

• ACCC consider that a new direction in jurisprudence should be established in order to ensure compliance with the Convention

What are the Aarhus criteria?

• Not legislative decision: resolve in T338/08 and T232/11?

• Issue of ‘general scope’ not a Convention criterion?

• Relating to the environment-broad approach-not in contention so far?

• Clues from compliance committee decision? This is all policy not law

Other potential reviewable areas

• Fishing agreements with third countries?

• Logging: decisions on eligible bodies?

• Biofuels?

• Climate change projects?

• Extractives?

• Funding of development programmes?

Solutions/options

Role of European Parliament: petition to take action against institution if caselaw bars NGOs from doing so?;

Article 225a? IEEP report suggestion-EU institutions could establish Judicial Panel for Environmental Disputes;

Press for right to submit amicus briefs before European courts

If EU going to rely on right to bring national challenges to demonstrate EU implementation of Article 9 obligations, must proceed with adoption of proposed directive on access to justice in MS-put forward in 2003 to ensure minimised compliant standards in the Member States, COM (2003) 624 final?!

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