EU Law Analysis: The “Mellifera” case and access to environmental justice under the Aarhus Regulation: new findings, old story


Mario Pagano, PhD candidate in EU environmental law, European
University Institute
The Aarhus Convention
is probably the most important piece of international law relating to
environmental democracy rights. Indeed, this UN Convention – adopted in 1998 –
enshrines three individual procedural rights having a direct link to
environmental protection. These rights (also known as the three Aarhus
“pillars”) are the right to environmental information, the right to participate
in the environmental decision-making, and the right to access to justice in
environmental matters.
The Aarhus Convention Compliance
Committee
(ACCC) is the non-confrontational, non-judicial and consultative
body established in Geneva since 2002, called upon to check the conformity of the
legislation of the Parties to the Convention with the Convention itself. Surprisingly,
even associations and non-governmental organisations (NGOs) active in the
environmental domain may submit communications to the committee with regard to
the compliance of one of the Parties with the Convention. The latter counts 47
Parties, including the EU, which adhered to the Aarhus Convention in 2005.
In 2008, the NGO Clientearth
submitted a communication to the Committee concerning compliance of the EU with
the Aarhus Convention. In particular, the NGO complained about the restrictive
interpretation given by the Court of Justice of the EU (CJEU) of Article 263
paragraph 4 TFEU, the so-called Plaumann
test
, which has never allowed any private applicant to actually challenge
in a direct action any EU environmental measure.
In addition, Clientearth raised
the question of whether certain provisions of Regulation
1367/2006
(hereinafter the “Aarhus Regulation”), which binds the EU
institutions to respecting the norms enshrined by the Aarhus Convention, were
in compliance with the Convention’s provisions on access to justice, namely
Article 9 paragraphs 3 and 4, which concern access to justice and effective
remedies.
After nine years and a first
part
of its findings released in 2011, the ACCC released the second
part
of the findings in 2017. In this document, the ACCC endorsed the NGO’s
arguments and found that the EU was in breach of the Aarhus Convention
provisions on access to justice. Moreover, the Committee recommended the EU to
amend the Aarhus Regulation and invited in particular the CJEU to “update” its
jurisprudence on Article 263 paragraph 4 TFEU.
Article 10 paragraph 1 of the Aarhus
Regulation provides for a procedure of internal review of EU administrative
acts. In other words, NGOs may ask an EU institution to review its own act
adopted under EU environmental law, in a procedure which is very similar to a ‘recours administratif’ under French law.
The necessity to amend the Aarhus
Regulation, according to the Committee, is mainly due to the restrictive
definition of a challengeable “administrative act” provided by Article 2 paragraph
1 g) of the Aarhus Regulation. Such a provision defines an administrative act
as “any measure of individual scope under
environmental law, taken by a Community institution or body, and having legally
binding and external effects”
. Most of the problems with regard to this
provision are raised by the word “individual”, which makes extremely difficult
for civil society organisations to challenge EU measures in the field of
environmental protection. This because such measures usually have a very broad
scope, given that they aim at protecting common goods such as the natural
heritage or public health.
In August 2016, the German
association Mellifera eV (hereinafter
“Mellifera”) – which aims at preserving bees’ health – asked the European
Commission to review, under Article 10 paragraph
1 of the Aarhus Regulation,
its implementing
regulation 2016/1056
extending the approval period of the
active substance glyphosate (a controversial weed-killer). The European
executive rejected Mellifera’s request on the ground that this did not
constitute a challengeable EU administrative act as outlined in Article 2
paragraph 1 g) of the Aarhus Regulation. As a consequence, in January 2017 the
association decided to challenge the Commission’s decision rejecting its
request before the General Court (GC) of the EU (
case T-17/12).
According to Mellifera, the contested regulation had to be qualified
as an administrative act of individual scope for the main reason that the
extension accorded by the Commission for glyphosate was framed within a
specific administrative procedure of approval. On this point, the association
held that Commission implementing regulation 2016/1056 was adopted only once an
individual request of renewal was submitted by the applicant, as provided by
Article 15 of
Regulation 1107/2009 concerning the placing of plant
protection products on the market. This implied that the regulation was able to
affect the legal position of the applicant, authorizing the latter to continue
to put the product on the market.
The association recognized that a measure authorising the place on
the market of a certain product also has positive effects on other economic
operators producing or trading the same product. However, such effects are only
‘indirect’, since all direct effects produced are limited to the legal sphere
of the single applicant. Therefore, the authorization could not be considered
as an act of general scope, since it did not lay down any abstract requirement
that the substance had to meet, but it rather authorized the single applicant to
place that specific substance on the market.
Finally, and most importantly, Mellifera invited the Court to take
into account the aforementioned findings of the ACCC and modify its
jurisprudence on the “act of individual scope” requirement. In addition, the
association invited the EU judges to provide a consistent interpretation of
Article 10 paragraph 1 of the Aarhus Regulation with the Aarhus Convention, in
order to bring the EU closer to a full compliance with international
environmental law.
The GC disagreed with the arguments put forward by Mellifera and, in
its ruling issued on the 27th of September 2018, confirmed the CJEU
previous jurisprudence on the Aarhus Regulation, namely the
Stichting
natuur
case-law.
Firstly, the EU judges agreed with the Commission and found that the
implementing regulation had a general scope, since it did not limit its effects
to the legal sphere of the applicant. On the contrary, as the applicant
acknowledged itself, the regulation also affected the legal sphere of other
economic operators who find themselves in need of that authorization as they
produce or trade, in the internal market, phytosanitary products containing that
specific substance. As a consequence, in the Court’s reasoning, the individual
scope of the implementing regulation had to be set aside.
Secondly, the GC dealt with the invitation put forward by Mellifera
to align its jurisprudence with the findings of the ACCC and the provisions of
the Aarhus Convention on access to justice. The association recalled that the
Convention is binding on the EU and that Article 9 paragraph 3 of the
Convention guarantees the broadest access to justice possible, not limiting the
possibility to challenge measures having a negative impact on the environment
to acts of “individual scope“. This is a stricter definition introduced by the
EU legislator that is not required by the Aarhus Convention.
In addition, the association highlighted that, in spite of the lack
of direct effect of Article 9 paragraph 3 of the Aarhus Convention affirmed in Stichting natuur and
Slovak
bear
, the Court has
a duty of consistent interpretation of EU secondary law with international
agreements to which the EU is party. This meant that, according to Mellifera,
the Court had to interpret Article 10 paragraph 1 of the Aarhus Regulation in
compliance with Article 9 paragraph 3 of the Aarhus Convention.
Nevertheless, the GC rejected all these arguments. First, it denied
once again that Article 9 paragraph 3 may have direct effect in the EU legal
order. Second, regarding the invitation to follow the ACCC findings, the EU
judges answered that even assuming that such findings had binding force, these
are nothing more than a simple “project”, which has been released on the 17th
of March 2017, therefore once the contested regulation had already been adopted
by the Commission.
Regarding the duty of consistent interpretation with international
law, the Court held that this is possible only where the wording of the concerned
legislation allows for such an interpretation and this does not lead to an
interpretation contra legem.
In this regard, the EU judges noticed that, since the wording of the
relevant legislation (namely the Aarhus Regulation) is very clear in limiting
the types of challengeable measures to administrative acts having an “individual
scope”, a consistent interpretation of such a regulation must be excluded,
especially in the case at stake, since the Court had already qualified the
contested implementing regulation 2016/1056 as a measure of “general scope”.
For these reasons, the Court rejected all the pleas put forward by
the association.
The “Mellifera” case is interesting for a number of reasons, in
particular with regard to the role played by the association which brought the
case before the Court.
In this regard, “Mellifera” can be seen as a very good example of how
civil society organisations can make use of international law in order to bring
changes in the EU legal order. Although it ultimately failed, the association
tried to “enforce” the Aarhus Convention and, at the same time, amend the
relevant EU legislation hindering access to justice in environmental matters.
Furthermore, it is also worth consideration the role the organisation
played in trying to favour a “judicial” dialogue (even if the ACCC acts in a
non-judicial capacity) between European courts and international compliance
bodies, by inviting the GC to take into account the recent findings of the Aarhus
Committee. However, that invitation has been completely disregarded by both the
European Commission and the CJEU’s General Court.
The two EU institutions agreed on defining the findings and
recommendations of the Aarhus Committee as a simple “project” (a term whose
meaning is not really clear in such a context) without any binding force. Plus,
the Court used the chronological argument – according to which the findings
were released only after the Commission implementing regulation – as a
justification for setting aside the fact that EU is (still) not in compliance
with the Aarhus Convention. Given this argument, it will be interesting to see
how the Court will answer to applications challenging EU measures adopted after
the publication of the ACCC findings.
In conclusion, it does not appear that the “Aarhus fight” between EU
institutions and environmental associations and NGOs will finish soon. A fortiori, the findings of the Aarhus
Committee, along with the recent positions on the matter adopted by all the
other EU institutions (in particular the
Council and the European Parliament) seem to have strengthened the civil
society’s beliefs that EU law can be amended, and a new similar application by
Mellifera has already been submitted before the GC in
August 2018.



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