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...
Standing not the only hurdle...
What acts/omissions can be
challenged?
Catch 22: even if you have standing, the
act in dispute may be outside scope of
review procedures!
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 1012 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 nonlegislative acts of general application to
supplement or amend certain non-essential
elements of the legislative act.
ACCC View
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
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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