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

Background

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.

The judgment

Background

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.

EU General Court ruling

The GC disagreed with the arguments put forward by Mellifera and, in its ruling issued on the 27^th 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 17^th 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.

Comment

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.

Barnard & Peers: chapter 10, chapter 22

Photo credit: Telegraph

EU Closed Evidence by Stealth: Testing the Limits of Access to Justice and European Judicial Cooperation

Vigjilenca Abazi & Christina Eckes*

*Assistant professor of European law, Maastricht University and professor of European law, University of Amsterdam, respectively.

More than a ‘Procedural’ Revision

The European Union for the past few years has faced significant crises of political and economic nature. It has to deal for the first time in its 60-year history with a Member State wanting to exit from the Union; with hostility by and even trade wars with what used to be a solid transatlantic ally; and growing populist movements across Europe undermining the fundamentals of the EU construction, such as the rule of law. It is understandable that in the midst of these waves of uncertainties and challenging pressures, less attention is paid to the EU courts and the changes in how they deal with secrets, such as classified documents protecting national security.   

What prima facie may seem merely as a procedural change, introduced by a revision of the Rules of Procedure in 2015, in how EU courts should handle confidential information, has a severe impact on the right of access to justice, European judicial cooperation, and EU counter-terrorist measures – all of which have been largely out of public focus and debate.

For the first time in the history of the EU courts, the reliance on closed evidence, i.e. evidence that is not disclosed to the applicant, is allowed. This restricts the ability of the individual to defend herself to an extent that is contrary to established guarantees of the right of access to justice both under EU law and under the European Convention on Human Rights (ECHR).

This revision of procedural rules took place mostly behind closed doors. When attempts were made by human rights groups to express concerns for the revisions, they were met with a rejection letter by at the time President of the General Court for any ‘interference’.

Drawing from a recent publication on closed evidence, below we explain the implications of closed evidence for the right of access to justice and European judicial cooperation.

An Unlawful Limit of Access to Justice

The right of access to justice is protected under all constitutional orders of the Member States, the EU Charter of Fundamental Rights and the ECHR. Under all these legal orders, limitations to access to justice must be justified and can only be justified if they meet certain requirements. One essential requirement is that the gist of the secret information that is used against the individual must be disclosed to her, in order to allow the individual to defend herself and rebut the accusations brought by the other party. However, Article 105(8) of the Rules of Procedure of the General Court allows under certain circumstances full secrecy and complete lack of disclosure of the confidential material to the applicant. For example, if the Council relies on confidential information in its arguments and the Court is convinced about the sensitive nature of these files, the Court will base its assessment on these arguments without disclosing the information to the applicant. Not even a summary is disclosed to the applicant and this marks a clear departure from the Court’s previous case law.

Some constraints however apply to the Court when considering closed evidence: first, the Court may take into account the confidential information only if it is essential for the decision in the case; second, the Court must confine itself to information that is strictly necessary; and third, in its final judgment the Court must take into account that the applicant has not been able to make their views known on the closed evidence against them. Although these constraints are necessary they do not compensate for the fact that not even the gist of closed evidence was disclosed to the applicant, which is a requirement in the case law of the ECtHR.  

The fact that the EU procedure for closed evidence does not comply with the case law of the ECtHR may leave the Member States in a difficult legal position. Member States are bound by the ECHR under international law. If they followed the EU closed evidence procedure they would infringe their duty under ECtHR to disclose in all cases at least the gist of the incriminatory information. This would in turn negatively affect the relations and trust between the Strasbourg and Luxembourg courts. 

Trust and Judicial Cooperation

The EU closed evidence procedure may add to the tensions in European judicial cooperation, both in the relation between national courts and EU courts as well as between EU courts and the ECtHR.

Sharing official secrets requires a high level of trust. Especially in issues of national security, sharing secrets among Member States or between them and the EU institutions has been a challenge, to say the least. In fact, this lack of trust and lack of sharing of information by national authorities with the Court, was what led to the revision of the procedural rules in the first place. The Court was continuously annulling EU restrictive measures against terrorist suspects (EU counter-terrorist sanctions) by the Council when it was not receiving access to the confidential or even classified information on the basis of which the sanctions were (presumably) adopted.

Whilst the General Court may gain (a bit of) Member States’ trust by having security procedures in place, the EU closed evidence procedure could strain trust relations between national courts and EU courts. The use of closed evidence is not permitted in most Member States. If the EU courts use the closed evidence procedure in a manner that does not comply with the ECtHR, it would not be a surprise if national constitutional courts stepped in to ensure fundamental rights, resulting in even greater tensions and power struggles.  

Furthermore, whereas the ECtHR would not be able to rule directly on an EU’s act as the EU is not a party to the ECHR, it could still send a strong message to the EU courts to reconsider the EU closed evidence procedure by ordering Member States to comply with the gist requirement. How the EU courts would respond to such a message could be a new test to the limits of judicial cooperation in Europe, but also the legitimacy of the EU closed evidence procedure, as well as ultimately the EU itself.     

Public Debate about Security & Secrecy 

With the increased EU involvement with security issues, including the military, classic tensions between the rule-of-law demands for transparency and accountability on the one hand and the need for confidentiality on the other will only grow in the EU. How should the EU resolve this tension?    

EU courts carry out important checks on (national) executive power. The case law on the sanctions regime illustrates that EU courts can – to some extent – constrain executive power, including in an area in which judicial review traditionally allows for great discretion of executive actors. It is hence of outmost importance that the EU courts continue to conduct a rigorous review of the exercise of executive powers in matters of security. The EU closed evidence procedure is not a step in that direction and should be reconsidered. Whatever precise way is chosen to resolve the tension between confidentiality and transparency, it must comply with the ECHR as interpreted by the ECtHR.

Moreover, the EU should not continue to treat these salient discussions on security and secrecy as a mere matter of ‘procedure’. Rather, the EU must establish an open debate and have public deliberations on how to reconcile openness and secrecy, especially when EU fundamental rights are directly affected in order to accommodate security rationales. Ultimately, the most important legitimating factor for the EU as a security and human rights actor is the trust of EU citizens in how the EU defends human rights and their security interests. Procedural talks behind closed doors are hardly the way to gain public trust.   

Barnard & Peers: chapter 10

Photo credit: canestrinilex

A lost opportunity for improving access to justice in environmental matters: the CJEU on the invocability of the Aarhus Convention

 

 

Dr. Apolline J. C. Roger, Senior Teaching Fellow in EU environmental law, University of Edinburgh Law School.

 

The right of access to justice provides environmental NGOs and citizens with a safeguard: the capacity to challenge the final decisions of public authorities when they have an impact on the environment and environmental health. By becoming Party to the Aarhus Convention on access to justice, public participation, and access to information in environmental matters in February 2005, the EU recognised that access to justice is an essential guarantee of good governance and a crucial component of the human right to a healthy environment.

 

However, the EU has always been reluctant when it comes to the direct challenge of its acts by citizens and NGOs. It is therefore not surprising that NGOs tried to challenge the adequacy of the EU’s system of legal remedies in light of the Convention’s provision on access to justice (Article 9(3)). In a judicial saga where the General Court was ultimately overruled, the Court of Justice avoided assessing whether the EU effectively ensures the right of access to justice in environmental matters by refusing to recognise the direct effect of Article 9(3) of the Aarhus Convention.

 

The complexity of the EU’s system of legal remedies: the genesis of the saga

 

The EU’s system of legal remedies gives Environmental NGOs (ENGOs) a specific procedure for reviewing each type of EU act in environmental matters. However, the procedures available are not of equal quality.

 

EU legislative acts and EU administrative acts of general scope which entail implementing measures can be challenged indirectly. It means that the CJEU can be asked to review their legality, but only by a national court in front of which this question was raised (according to the preliminary ruling procedure, Article 267 TFEU). However, an ENGO intending to use this procedure to challenge an EU act will be facing several obstacles. First, they must wait for a national measure to be taken (which can take a long time). Then, they may only access national courts if national law grants them standing rights (which is not a given). Finally, if these two obstacles are overcome, ENGOs must convince the national courts that a reference to the CJEU is necessary (which is far from automatic). For all of these reasons, the indirect challenge of EU acts does not offer the same certainty and efficiency as a direct judicial or administrative review procedure.

 

EU general administrative acts which do not entail implementing measures can be directly challenged by ENGOs before the CJEU. Finally, the last category of EU acts consists of EU individual administrative acts. They can be directly challenged before the CJEU, but only by their recipient (Article 263 TFEU).

 

Therefore, NGOs’ right of access to justice suffered from two severe limitations. First, they do not have any possibility to directly challenge EU administrative acts which entail implementing measures. Second, they cannot challenge EU individual acts unless they are the recipient of those acts (which is rarely the case). Are these limitations breaching Article 9(3) AC? Under Article 9(3), the Parties to the Aarhus Convention do not necessarily have to provide NGOs with a judicial procedure. However, when it is the case, Parties have to create a procedure of “internal review” (also called “administrative review”).

 

In an effort to implement the Aarhus Convention to the EU’s institutions and bodies, the EU did create an internal review procedure in environmental matters, in Article 10 of Regulation n°1367/2006 "Aarhus Regulation" or "AR". However, Article 2(1)(g) AR severely constrains the internal review procedure scope by defining an “administrative act” as “any measure of individual scope”.

 

In order to compensate for the deficiencies of the preliminary ruling procedure identified above, should the internal review set in Article 10 AR be extended to EU general administrative acts which entail implementing measures? Should Article 10 AR be extended even further to all EU general administrative acts, with or without implementing measures? Unsurprisingly, the European Courts were asked to answer these questions and therefore to evaluate the compliance of the EU’s system of legal remedies with Article 9(3) AC.

 

The General Court in T-396/09 and T-338/08: the EU’s system of legal remedies breaches the Aarhus Convention provision on access to justice

 

ENGOs quickly tried to obtain from the Commission a review of its decisions of general scope under Article 10 AR. The Commission rejected their requests, reminding that the Aarhus Regulation Article 2(1)(g) opens the procedure against individual acts only.  The unsuccessful ENGOs challenged these decisions in T-396/09 and T-338/08, claiming that Article 9(3) of the Aarhus Convention requires an extension of Article 10 AR to all EU administrative acts, including those of general scope. The General Court granted their request.

 

To support its position, the Court reminded that Article 9(3) has to be interpreted in light of the Convention’s objectives. The Convention aims at making access to justice a tool to ensure the quality of environmental decision-making process by empowering NGOs and citizens. It also promotes it as a fundamental pillar of the right to a healthy environment. Broad access to justice should therefore be ensured.

 

However, as the Court observed, most of the EU executive acts in environmental matters have a general scope. As a consequence, an internal review which is limited to individual acts has a minor effect on the improvement of access to justice. Finally, the General Court noted that Article 9(3) of the Convention does not leave the Parties free to choose which acts should be easily challengeable by NGOs and citizens. The only acts not covered by Article 9(3) AC are the acts adopted by institutions acting in a judicial or legislative capacity. The general acts adopted by the Commission within its executive powers are covered by the Convention, and thus should be easily challengeable, meaning that they cannot be excluded from the scope of Article 10 AR.

 

In 2008, the Aarhus Convention Compliance Committee humbly reminded the EU that “the system of preliminary review does not amount to an appellate system with regard to decisions, acts, and omissions by the EU institutions and bodies” and does not “in itself meet the requirements of access to justice in Article 9 of the Convention”. The lack of a direct judicial procedure should be “fully compensated for by adequate administrative review procedures”. The General Court took heed of this reminder by complementing the preliminary ruling with a direct procedure: the internal review. However, by not distinguishing between general administrative acts which entail implementing measures and those that do not, the Court submitted the latter to two direct review procedures – one administrative, one judicial.

 

This indistinct broadening of Article 10 AR has advantages and disadvantages. On the plus side, it might have appeared as more respectful of the CJEU’s unshaken support of the preliminary ruling procedure as a sufficient way to access justice. Indeed, if the General Court had extended Article 10AR’s scope only to the EU administrative acts not directly challengeable, it would have explicitly recognised the shortcomings of the preliminary ruling procedure. On the other hand, the decision to broaden Article 10AR scope to all EU administrative acts created a higher risk to be overruled – a risk which materialised in January 2015.

 

The General Court overruled by the CJEU: a missed opportunity for access to justice at the EU and national levels

 

The CJEU overruled the General Court’s decisions in the joint cases C-404/12 P & C-405/12 P and C-401/12 P to C-403/12 P. The CJEU did not assess the adequacy of the EU system of legal remedies. It simply rejected the invocability of Article 9(3) of the Convention by considering that the conditions under which the indirect and the direct effect of an international provision can be recognised were not met. Therefore, the legality of Regulation 1367/2006 Article 10 could not be reviewed against Article 9(3) AC; the internal review remains available against individual acts only.

 

The joint cases C-404/12 P & C-405/12 P and C-401/12 P to C-403/12 P are, as the Jego-Quéré/UPA saga was (see C-50/00 UPA), a missed opportunity to improve access to justice at EU level. One could answer that courts should not go against the legislative will as expressed by the regulation’s wording – here Article 2(1)(g) AR. However, that would not have been the first time that the Court would have engaged in ambitious judicial interpretation. Furthermore, the legislator also expressed the will to commit to the Aarhus Convention and to guarantee the access to justice as a fundamental pillar of the human right to a healthy environment. The judicial path could have been a smooth way to reconcile the conflicting views carried by the Aarhus Convention and the restrictive scope of Article 10 AR.

 

Furthermore, the impact of this missed opportunity on access to justice goes beyond the EU level. Access to justice in environmental matters is indeed far from being equally and efficiently ensured in all Member States. Accepting to review the Aarhus regulation in light of Article 9(3) AC could have been an incentive for the national courts to review the standing rights granted by national law in light of the Convention.

 

Finally, the Court seems to have developed two different standards for access to justice at the EU and national levels. On one hand, the CJEU strongly pushes the national courts to broaden access to justice, as shown by its decision in Case C-240/09 (the ‘Slovakian bears’ case). On the other hand, the Court does not seem ready to follow the guidance it gave to national courts in C-240/09: “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”. The preliminary ruling procedure makes it excessively difficult for ENGOs to exercise their right to access to justice. The internal review procedure offers an adequate alternative, which does not threaten the Courts with an overwhelming wave of cases. Finally, internal review procedures are truly adapted to environmental issues considering their preventive nature.

 

By refusing to broaden the scope of Regulation 1367/2006 Article 10, the CJEU rejected an easy fix for the inadequacy of the EU’s system of legal remedies.

 

Image: www.foe.scotland.org.uk

 

Barnard & Peers: chapter 22