Hamoudi v Frontex: Advocate General Norkus’ Opinion - Reversing the Burden of Proof and the Presumption of Frontex’s Privileged Access to Evidence

 

Antje Kunst*

*Antje Kunst is an international lawyer and barrister of Garden Court North Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to fundamental rights within the CFSP and other fields. She has appeared in numerous cases before both the Court of Justice and the General Court, within the Court of Justice of the European Union.  

Photo credit: Francesco Placco, via Wikimedia Commons

 

Introduction

Following the hearing  on 4 February 2025 by the Grand Chamber on the appeal of Hamoudi v Frontex in Case C-136/24 against the General Court (GC)’s Order of 13 December 2023 the Advocate-General rendered his opinion on 10 April 2025 (‘Opinion’).  

As outlined  here, the case of Hamoudi v. Frontex involves a Syrian asylum seeker, Mr. Alaa Hamoudi, who, claims that on 28 and 29 April 2020 he was a victim of collective expulsion in the Aegean Sea. In this context, Mr. Hamoudi asserts that while a group of 22 individuals including himself were at sea, a private surveillance aircraft, equipped with a camera and operated by the European Border and Coast Guard Agency (Frontex), flew over the scene twice. A highly damaging report by the EU Anti-Fraud Office (‘OLAF report’) on Frontex was made public through an NGO in October 2022 and covered precisely the period in question — including April 2020 — and confirmed that incidents of pushbacks occurred under Frontex's watch, involving Frontex surveillance aircraft in the Aegean Sea.

In an action for damages before the EU General Court, Mr. Hamoudi requested that he be compensated by Frontex for the non-material damage suffered due to the collective expulsion. In his arguments before the General Court Mr. Hamoudi inter alia asserted that because Frontex surveillance aircraft flew over the collective expulsion it had specific knowledge of that incident but failed to report it and take appropriate action as per its mandate (see para. 11 of the Opinion)

The General Court dismissed the action as manifestly lacking any foundation in law. It found that Mr. Hamoudi had failed to prove the actual damage he claimed to have suffered. The evidence adduced by the appellant ‘was manifestly insufficient to demonstrate conclusively that he was present at and involved in the alleged incident of 28 and 29 April 2020’ (see paras. 39 and 62 of the Court Order).  

Advocate General's limited Analysis: Reversal of the Burden of Proof

As requested by the Court of Justice of the European Union (‘Court of Justice’ or ‘CJEU’) the Advocate General centred his analysis on a possible reversal of the burden of proof in relation to the existence of damage in collective expulsion cases. (para.22 of the Opinion).  In doing so, he looked in detail at the case-law of the Court of Justice in various areas including discrimination (paras. 30 to 37 of the Opinion) and the case law of the European Court of Human Rights (ECHR) in expulsion cases (paras. 40 to 50).

In his analysis of the case-law of the ECHR in expulsion cases he considered the recent successful collective expulsion case of A.R.E. v Greece in particular ‘instructive’.

Importantly, the Advocate General referred to the fact that in A.R.E., the ECtHR applied its case law on the burden of proof related to secret detention cases. Once the applicant presents prima facie evidence, the Court may draw strong adverse inferences from the respondent government’s failure to disclose essential documents to establish the facts, or failure to offer a satisfactory and convincing explanation of the alleged events. (paras. 41 to 44 of the Opinion)

In line with the jurisprudence of the CJEU and ECtHR, the Advocate General rightly emphasizes that the burden of proof cannot be placed on the claimant to establish facts or produce evidence that is likely to be exclusively in the possession or control of the respondent, here Frontex. If any concrete evidence of collective expulsions exists, it is far more likely to be held by the alleged perpetrator rather than the victim. (para. 51 of the Opinion)

The Advocate General’s three conditions

In the Advocate General’s view, based on the CJEU’s and ECtHR’s case law, the burden of proof may be reversed in cases like Mr. Hamoudi’s case when three conditions are met.

The FIRST CONDITION: (see para. 57 of the Opinion) is that the claimant must present prima facie evidence in support of his or her claim. If the claimant’s account is inconsistent, incoherent, or if the claimant lacks credibility, this initial burden is not met, and the case should be dismissed. Consequently, the reversal of the burden of proof becomes relevant only once a prima facie case has been established. In this context, the Advocate General relies in particular on the case law of the ECtHR, for example as set out in the recent case of G.R.J. v Greece (see § 179).

As stated here, from the questions of the judges at the hearing it appears that the Court of Justice is considering to hold that prima facie evidence had been presented by Mr. Hamoudi. In any event, the Advocate General correctly opines that the General Court may have placed the ‘evidentiary bar’ too high in the first place (para. 64 of the Opinion). In this context, though, the Advocate General omits that the General Court in its assessment of the evidence failed to consider the various contradictory public statements about the events by Frontex outside the proceedings, in particular when the OLAF report was made public and crucial general contextual evidence. Such general contextual evidence was considered in the recent G.R.J. and A.R.E. cases by the ECtHR. This evidence led the ECtHR to conclude that there is a systemic practice of pushbacks in the Aegean See and that the Greek Government failed to refute the evidence by providing a satisfactory and convincing alternative explanation (see § 190 in G.R.J. and § 229 in A.R.E. and footnote 80 of the Opinion).

The SECOND CONDITION: (para. 59 of the Opinion) for the burden of proof to shift is the existence of a clear or structural imbalance in access to evidence—specifically, where the claimant faces significant obstacles in presenting evidence, while the respondent, in this case Frontex, is in a better or more privileged position to refute the allegations. Mr. Hamoudi, a vulnerable asylum seeker with his mobile phone confiscated, lacks the evidence to prove Frontex’s involvement in the events, whereas the respondent is best placed, in a privileged position to prove or disprove the allegations (see in more detail under: ‘Presumption of privileged access must be applicable to Frontex’). There can be no doubt that the second condition is met.

The THIRD CONDITION: (para. 60 of the Opinion) is that the failure to shift the burden of proof would render ineffective the claimant's (fundamental) rights protected under EU law while a shift would not undermine the respondent’s (fundamental) rights under EU law. In Mr. Hamoudi’s case the failure to shift the burden of proof would render ineffective his fundamental rights inter alia under Article 19 of the EU Charter of Fundamental Rights and undermine his right to an effective remedy under Article 47 of the Charter. The shift would not undermine any (fundamental) right of Frontex under EU law. On the contrary, by providing evidence to prove or disprove the allegation, Frontex assists the Court in reaching an accurate outcome (regarding a public authority’s duty pursuant to Article 24 of the Court’s Statute to assist the Court in reaching the correct result see more here).

Presumption of privileged access to evidence not applicable?

Somewhat surprisingly towards the end of the Advocate General’s Opinion, he expresses the view that the presumption established in the jurisprudence of the ECtHR on expulsion cases—namely, that the claimant is at a disadvantage in presenting evidence while the respondent is in a stronger or more privileged position to rebut the allegations – may not be applicable to Frontex. The ‘automatic’ shift of the burden of proof, once prima facie evidence has been presented, allegedly could only be applied when the authorities of a Member State are involved (paras. 61 and 62 of the Opinion). This despite the fact that the AG opined earlier in his Opinion (para. 29) that the differences in the procedures before Strasbourg and the CJEU are more apparent than they are real.

According to the Advocate General, actors like Frontex possess more limited powers compared to the authorities of a Member State, and it was unclear whether—and to what extent—their actions contribute to the difficulties claimants face in adducing evidence of their involvement in the events at issue. Due to these limited powers, it was not clear that they would be in a better or more privileged position to rebut the claimant’s allegations (para. 62 of the Opinion).

The Advocate General’s suggestion that Frontex’s actions must have contributed to the difficulties experienced by the claimants in adducing evidence of their involvement in the events at issue is misplaced. This is not a requirement under the case law of the Court of Justice, nor under that of the ECtHR. According to this case law, it is sufficient to establish the evidentiary difficulties faced by the applicant and the respondent’s capacity to provide evidence in rebuttal.

It is wholly irrelevant whether a Member State may have more authority over certain types of evidence.  The issue is not whether Frontex differs from a Member State in terms of powers over evidence but rather who holds relevant evidence, and who does not. This must be assessed in casu,  e.g. here in relation to Hamoudi and Frontex. The Agency is not being asked to produce evidence concerning Member States’ actions, but rather evidence regarding its own actions or inactions, and knowledge, particularly in light of its established presence and two active joint operations in the region.

At the hearing, Frontex claimed its hands were tied because it did not have access to evidence held by the Member State. This is irrelevant, what matters is that it has evidence in its possession and control that may reveal what the agency did, failed to do, or knew regarding the alleged collective pushback action on 28 and 29 April 2020 in the Aegean Sea.

Undesirable Consequences of having to demonstrate Privileged Access to Evidence

If, as the Advocate General proposes, the burden of proof only shifts when it is first shown that Frontex is better placed to refute the allegations than a claimant, then in practice, the burden might never shift. The Court of Justice should firmly reject this approach.

Accepting that Frontex is - unlike a Member State - not presumed to have privileged access to evidence would undermine its positive obligations to protect fundamental rights of individuals in distress at sea and enable Frontex’s impunity and outright ignores a textual reading of article 7(4) in line with article 80(2) and 80(3) of the Frontex Regulation, which outlines the exclusive positive human rights responsibilities that Frontex has within the context of joint operations. It would risk making Frontex’s legal obligations unenforceable. This would also contradict the Advocate General’s THIRD CONDITION outlined in paragraph 60 of the Opinion.

Presumption of privileged access must be applicable to Frontex

Related to Frontex’s own actions, its own responsibility to comply with its own fundamental rights obligations as per the Frontex Regulation, and the harm resulting for claimants, Frontex must be presumed of being in a better or more privileged position in collective expulsion cases such as the present one.

The appellant is a Syrian refugee, pushed back at night, with his mobile phone confiscated and lacks access to the evidence which shows Frontex’s involvement. Frontex, on the other hand, operates its own aerial surveillance systems and joint operations logs and collects video and radar data from its flights. The likelihood that it possesses or has under its control relevant video surveillance footage and/or incidents reports, relevant logbooks on surveillance operations is extremely high which places Frontex in a particularly privileged position with regard to access to evidence in these types of cases. Moreover, it was established in the OLAF report and during the hearing that Frontex was fully aware of the practice of so-called ghost landings pursued by the Hellenic coast guard and from that flows the duty within the context of its joint operations to collaborate with Member State authorities to prevent human rights abuses.

While it is true, as the Advocate General points out, that the General Court did not examine Frontex’s involvement in or knowledge of the alleged events of 28 and 29 April 2020, this omission stems from the General Court’s erroneous exclusive focus on the question of damage to the appellant and whether he was present and affected by those events. However, this cannot mean that Frontex cannot be regarded as possessing or having under control the evidence needed to rebut Mr. Hamoudi’s allegations. (c.f. para. 63 of the Opinion). The very nature of ghost landings entails that the Hellenic Coastguard is no longer present at sea.

Accordingly, Frontex is in the exclusive position and best placed to confirm or deny the prima facie evidence provided by Mr. Hamoudi regarding the events that took place at sea, including whether it had a surveillance aircraft with a camera operating over the area during the collective expulsion of 28 and 29 April 2020 but failed to report it.

If there is an shift of the burden of proof based on the available contextual and personal prima facie evidence, Frontex would not face a probatio diabolica (an impossible proof). It is also not an unreasonable proof for Frontex to provide: recall that its access  led to the damning  report by OLAF which affirmed its presence on the night of 28-29 April. Frontex is not asked to prove facts that lie completely outside its sphere of influence and knowledge (see the case law of the CJEU cited at para. 53 of the Opinion). To the contrary: its being asked to provide evidence regarding events taking place within the very area of the joint operations in the region, falling entirely and exclusively within its mandate.

Conclusion

The Court of Justice in the present case should accept that the three conditions proposed by the Advocate General must be met in expulsion cases like this one for the burden of proof to shift. It should hold that this entails a reversal of the burden of proof for Frontex when the case concerns its own actions or inactions.

Contrary to the Advocate General’s assertion in his Conclusion, the state of the proceedings before the General Court permits the Court of Justice to assess that the appellant adduced prima facie evidence (FIRST CONDITION) which does allow for the burden of proof to shift, as Frontex is in a better and more privileged position than the applicant to prove or disprove its involvement in, and knowledge of, the alleged events (see Footnote 96 of the Opinion). This is not a question for the General Court to determine in proceedings following a referral back to it (contrary to what the Advocate General proposed in his Conclusion of his Opinion).

It is well established that Frontex possesses evidence directly linked to its core (and exclusive) responsibilities, including the gathering of surveillance data, the production of incident and operational reports, and the monitoring of compliance with fundamental rights as per Article 7(4) and 80(3) and 80(4) of the Frontex Regulation. This places the agency in a similarly ‘privileged’ evidentiary position as Member States are in relation to their own responsibilities in this case.

The Court of Justice should therefore set aside the order under appeal, hold that the three conditions for shifting the burden of proof as outlined by the Advocate General are met in Hamoudi’s case as it would have been the case if the respondent had been a Member State (see footnote 96 of the Advocate General’s Opinion). It should refer the case back to the General Court to reassess the matter, taking into account that the burden of proof has shifted to Frontex.

Hamoudi v Frontex, an EU Courts pushback case: Shifting the burden of proof and a duty to assist the Court (a duty of candour?)

 

Antje Kunst*

* Antje Kunst is an international lawyer and barrister of Garden Court North Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to fundamental rights within the CFSP and other fields. She has appeared in numerous cases before both the Court of Justice and the General Court, within the Court of Justice of the European Union.  

Photo credit: Rock Cohen, via Wikimedia Commons

 

Introduction

On 4 February 2025 the Grand Chamber held a hearing on the appeal of Hamoudi v Frontex in Case C-136/24 against the General Court (GC)’s Order of 13 December 2023. This appeal is taking place alongside the separate challenge in WS v Frontex (see analysis of that case and summary of the hearing).  

The case of Hamoudi v. Frontex concerns Syrian asylum seeker Alaa Hamoudi, who alleges that on 28 April 2020, he and 21 other individuals were subjected to a pushback operation in the Aegean Sea. He claims that upon arriving from Turkey by boat, he entered Greek territory on the island of Samos to seek asylum. Local police intercepted him, confiscated his mobile phone, and later that day, Greek authorities forced him and the others back out to sea. The following day, a vessel from the Turkish coast guard took them aboard. Hamoudi also alleges that on 29 April 2020, while at sea, a private surveillance aircraft operated by Frontex, equipped with a camera, flew over the scene twice.

In February 2022 OLAF issued a highly damaging report on Frontex which addresses incidents of illegal pushbacks involving Frontex assets like Frontex Surveillance Aircraft, in particular in the Aegean Sea, in late April 2020. This report was not made publicly available (see here more on this fact).

In March 2022, Mr. Hamoudi brought an action pursuant to Article 340.2 TFEU  against Frontex, seeking €500,000 compensation for non-material in damage in respect of violations of his fundamental rights, including the prohibition of collective expulsion and the principle of non-refoulement under the EU Charter of Fundamental Rights.

The GC dismissed the action by Court Order stating it "manifestly lacked any foundation in law." (para. 62 of the Court Order). The GC found that the appellant’s own written statement taken by an NGO more than a year and a half after the events, a Bellingcat article, and four screenshots from third-party video recordings of the pushback were “manifestly insufficient” to conclusively prove Hamoudi’s presence or involvement in the incident.  It further noted that the claimant could not be identified in the images. Further his own written statement lacked credibility (paras. 40 and 41 of the Court Order).

Hamoudi appealed this decision on 19 February 2024, contending that the General Court erred in its legal assessment and mischaracterized the facts.

Relevance of two ECtHR expulsion cases

In January 2025, in two groundbreaking judgments A.R.E. and G.R.J. v. Greece the European Court of Human Rights (ECtHR) unanimously confirmed Greece's “systematic practice” of pushbacks of third-country nationals from Greece back to Turkey. Both ECtHR cases are very similar in terms of facts to the Hamoudi case.  The G.R.J.  case which was referred to by the judges during the hearing concerns like in the Hamoudi case a pushback from the island of Samos to Turkey in 2020.

Significantly the parties were asked to comment on the relevance of these two judgments seemingly with a view to consider the ECtHR’s finding on the existence of a “systematic practice” of pushbacks by Greece. The Court might likely to be inspired by the ECtHR approach in these types of cases, if not align its case law with the Strasbourg Court’s large case law on expulsion. Both Courts have engaged in the past in a judicial dialogue, referring to each other’s case law, aiming for consistency in protecting human rights of individuals.

Assisting the court in reaching the correct result

Pushbacks are difficult to prove, in particular when they happen at night and mobile phones are confiscated or destroyed (as happened to the appellant and applicants in ECtHR cases (e.g., in  A.R.E.  para. 266).

In proceedings before the ECtHR, respondent states often deny the facts rather than disclosing relevant records, surveillance footage, or photos and videos documenting the events, as elaborated here. In Hamoudi, Frontex representatives, during the hearing before the Grand Chamber, claimed it was unclear whether Frontex had been present at the scene of the events, noting that "they had not been monitoring the situation from afar through their binoculars" (see here).

The question arises: Is it acceptable for an EU agency like Frontex to present such arguments, displaying a stance similar to that of states before the ECtHR? Or does it, instead, have a duty to assist the Court? Article 24 of the Court’s Statute provides that the Court “may require the parties to produce all documents and to supply all information which the Court considers desirable.” This provision establishes not only a procedural obligation for the parties to cooperate fully with the Court but also an implicit duty to assist the Court in reaching an accurate outcome. The Court here relies on the transparency and good faith of the parties to uncover the relevant facts and produce it before the Court.

In UK public law there is a duty of candour vis-à-vis the Court. The duty of candour requires a public authority "not to seek to win [a] litigation at all costs but to assist the court in reaching the correct result and thereby to improve standards in public administration." (see also here)

This principle is not unknown in member states. In Germany for example pursuant to §99 Administrative Court Procedure Code and §138 Code of Civil Procedure , public authorities must act truthfully and fully cooperate with the administrative courts.

Arguably as an EU agency, Frontex, and based on Article 24 of the Court’s Statute it has a duty to assist the Court in reaching the correct result by providing information and disclosing evidence exclusively within its possession, even if that evidence may be unfavourable to its case. In other words, it is not acceptable for Frontex to adopt the same approach as states in these types of cases.

Furthermore, contrary to what the EU Agency presented before the Court, Frontex also “sits on evidence” -not only the member states- related to its activities collecting evidence when it carries out its assistance and surveillance activities acting under a clear mandate to protect the fundamental rights of individuals in distress at sea, in accordance with Articles 80(2) and 80(3) of the Frontex Regulation.

Impossible proof

The burden of proof imposed by the GC amounted to probatio diabolica, an impossible proof for Mr. Hamoudi.

There might be cases in which applicants are able to provide robust evidence related to their individual situation, such as photographs, video recordings, and witness testimonies. The possession of mobile phones with geolocation capabilities gives victims of pushback operations new means to provide proof of their presence in a certain area or to prove the involvement of Frontex.

In most cases, individuals like Hamoudi face serious practical difficulties in gathering evidence. The incident took place at night and under very stressful conditions, with Hamoudi being in the open sea in a boat. Hamoudi was unable, both physically and mentally, to gather any evidence. (see more on this here) Taking away mobile phones as happened to Mr. Hamoudi makes it impossible for the victim to use such evidence.  This is what the General Court failed to consider.

Applying the rules governing the burden of proof in Strasbourg expulsion cases

The appellant argues in his appeal that the General Court (GC) committed an error of law by failing to properly assess and apply the relevant rules governing the burden of proof. Specifically, the appellant contends that the GC did not consider the legal criteria established by the ECtHR in its expulsion case law, which aligns with the EU Court’s own established practice (e.g., in discrimination cases).

When adjudicating such cases, the ECtHR shifts the burden of proof to the state as elaborated here  where there is different access to information which advantages the state and leaves the applicant without evidence or when the defending State possesses information that could  corroborate or refute the applicant’s allegations. Despite what Frontex alleged at the hearing Frontex certainly has access to information regarding the events in question as also the OLAF report shows. This relates to information regarding its own compliance with its own fundamental rights obligations and the existence of the immaterial harm stemming from the events during the night in question.

The ECtHR expulsion case law provides that once an applicant has furnished prima facie evidence in support of his or her version of events, the burden of proof should shift to the respondent when (a) there is an absence of personalized treatment—such as not being interviewed or having personal details taken—which lies at the very core of the applicant’s complaint, as in the present case; and (b) this absence has contributed to the difficulty in adducing evidence of involvement in the event (see Case of N.D. and N.T. v. Spain, para. 85).

As analysed here in its recent rulings the ECtHR has explicitly acknowledged that the state’s complete denial of alleged facts places the applicant in an inherently difficult evidentiary position, in which they may be unable to establish the veracity of their account (A.R.E., para. 218; G.R.J., para. 183).

The consolidated case law of the ECtHR regarding the reversal of the burden of proof might serve as a compelling source of inspiration for the ECJ’s judges in this specific case, which bears significant similarities to the large number of expulsion cases the ECtHR has adjudicated, most recently in G.R.J.

The fact that this is an application for damages under Article 340(2) TFEU against an EU agency, rather than a human rights application before the ECtHR against a state, does not make a difference, as similar objectives are pursued. The judges might consider that the conditions to be met for being successful with claim for damages before the ECJ are significantly higher than a human rights application before the ECtHR. This applies particularly to the more extensive requirements for proving harm under the ECJ’s case law compared to the standards for establishing victim status under Strasbourg case law. In other words, and contrary to what Frontex appeared to imply during the hearing, the bar for establishing liability remains high and substantial.

Meet prima facie threshold

To meet the prima facie threshold under the ECtHR, regularly two key elements are required (a) an individual account which is specific, consistent, generally coherent, and credible and (b) general context evidence concerning the broader context relevant to applicants’ claims.  In G.R.J.  the ECtHR relied on such general context evidence: “[h]aving regard to the large number, diversity, and concordance of the relevant sources …the Court concludes that there is serious evidence to suggest that, at the time of the alleged events, there was a systematic practice of refoulement by the Greek authorities of third-country nationals from the Greek islands to Turkey.” G.R.J. , para. 190, unofficial translation. Contradictions in the respondent’s statements will be considered as well.

It appeared from the judges' questions during the hearing that the Court was indeed considering holding that the General Court had failed to consider shifting the burden of proof to the EU Agency. This is not surprising in view of its own well-established case law on the reversal of the burden of proof in similar cases of asymmetry of access to information, albeit in other areas (e.g., discrimination) and its approach to consider relevant case law of the ECtHR as a source of inspiration. In this regard, the Court has ample reasons to hold that the applicant has provided prima facie evidence of the violation and that the General Court should have considered shifting the burden of proof to Frontex.

The judges inquired about OLAF’s 2021 report on Frontex and its findings concerning the events of 28 and 29 April 2020. It mentioned the fact that the report refers to two Frontex officers confirming the credibility of the Bellingcat article admitting that the operation of which Mr. Hamoudi claims to be the victim of took place. In any event, if the case had been considered by the Strasbourg Court, it would have found that the specific and consistent account by Mr. Hamoudi, partially corroborated by OLAF’s findings and the Bellingcat article, constitutes prima facie evidence, thereby triggering a shift in the burden of proof.  The Court of Justice would be justified in following the Strasbourg case law and reaching this conclusion. This is also so because of the widely documented information on the general context and the myriad of contradictory statements about the events by Frontex outside the proceedings.

Refuting the appellant’s claims

Frontex stressed at the hearing that it could not “live up” to substantiating, refuting or corroborating the prima facie evidence of the appellant. It was in a situation of an impossible proof. This is wholly unconvincing. Frontex could simply review its records or surveillance footage to determine whether, at the relevant date and time, its surveillance aircrafts were operating over the area where the unlawful pushback of Mr. Hamoudi occurred. Frontex conducted two active operations in the region and is best placed to substantiate or refute the appellant’s claims. With an explicit to mandate to provide support to Greece in the Aegean Sea fully aware of Greece’s shady practices and under an explicit mandate to safeguard fundamental rights of individuals in distress at sea as per Article 80 (2) and 80 (3) of the Frontex Regulation it was monitoring the situation.

Conclusion

Enabling the EU Courts to focus on the legal assessment of alleged fundamental rights violations in such cases by providing as much factual information as possible serves the interests of all parties involved—including the Court itself.

Frontex has faced significant criticism over alleged pushback practices in the Aegean Sea, raising serious concerns about compliance with its fundamental rights obligations. It is in the Agency’s interest to be as transparent as possible, not to seek to win a litigation such as the Hamoudi case at all costs but to assist the court in reaching the correct result. By doing so, Frontex can contribute to reinforcing trust in the EU Agency’s commitment to human rights and accountability.

Only one bite at the cherry: Appealing a default judgment of the General Court to the Court of Justice, and simultaneously asking the General Court under the specific remedy to set aside its own default judgment is not permitted: Eulex Kosovo v SC (Case C-785/22 P)

 

 

Antje Kunst*

* Antje Kunst is an international lawyer and barrister of Pavocat Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to the CFSP, including employment cases. She has appeared in numerous cases before both the Court of Justice and the General Court, within the Court of Justice of the European Union. She was Counsel for SC in the Eulex Kosovo case.

Photo credit: George Chernilevsky, via Wikimedia Commons

 

Introduction

On 18 January 2024 in Eulex Kosovo v SC (Case C-785/22 P), a case that has been before the EU courts since 2017, the Court of Justice ruled that an appeal against a default judgment of the General Court is inadmissible before the Court of Justice if dual proceedings are brought to both EU courts. In other words, appealing a default judgment of the General Court to the Court of Justice, and simultaneously asking the General Court to set aside its own default judgment, is not permitted.

Until now, there was no case law on this precise type of situation, and hence, the Court of Justice’s judgment is highly significant for EU procedural law as a gap in the case law has now been closed.

Previously in October 2022, the General Court issued a default judgment in Case T-242/17 RENV, in favour of SC – a former member of contract staff of the EU Rule of Law Mission in Kosovo (Eulex Kosovo) – following the failure of Eulex Kosovo to file a defence, in this case.  The failure to file a defence occurred in referral proceedings after a successful appeal before the Court of Justice in Case C-730/18 SC v Eulex Kosovo, at a time the case was already ongoing for four years.

In November and December 2022, Eulex Kosovo filed not only for that default judgment of the General Court under Article 166 of the Rules of Procedure of the General Court (RPGC) to be set aside by the General Court itself,  but also brought appeal proceedings against that default judgment of the General Court to the Court of Justice, with the consequence that not only the General Court but also the Court of Justice became seized of the same subject matter. As a result, SC had to defend against not only an opposition in proceedings before the General Court, but also an appeal in proceedings before the Court of Justice.

Default judgment which is the subject of an application to set it aside is not a final decision

The judgment by the Court of Justice in Case C-785/22 P clarifies that it followed from its own Statute that an appeal is admissible only against a final decision of the General Court, with respect to which no other legal remedies remain open (para. 29 of the judgment). It also clarified that ‘[s]ince the exercise of such a remedy has the effect of re-opening the proceedings before the General Court, a default judgment which has been the subject of an application to set it aside cannot be regarded as a final decision, within the meaning of Article 56 of its Statute’. Consequently, it followed that an appeal brought against a default judgment which is the subject of an application to set it aside is inadmissible (paras. 31 and 32 of the judgment).

To have two bites at the cherry is not permitted

In an entirely other case, Advocate General (AG) Emiliou delivered an Opinion on the same day, i.e. in Case C-766/21 P, Parliament v Axa Assurances Luxembourg and Others stating that ‘[p]ermitting the use of two legal remedies in parallel would be tantamount to allowing a defendant in default to have two bites at the cherry – or, to continue with the metaphor, to ride two trains at the same time’. The AG added to allow this would be against the principle of equality of arms asking the correct question: ‘how could it be permissible for a party, which had failed to participate at first instance, to nonetheless have the possibility to pursue one remedy before the General Court, and another remedy before the Court of Justice, both ultimately seeking the same outcome?’ (Para. 108, Opinion of Advocate General Emiliou, Case C‑766/21 P, European Parliament v Axa Assurances Luxembourg SA, Bâloise Assurances Luxembourg SA, La Luxembourgeoise SA, Nationale-Nederlanden Schadeverzekering Maatschappij NV, ECLI:EU:C:2024:63).

The AG in that case made another important point, in that allowing parallel proceedings could cause confusion as to the suitable remedy in a particular case and contribute to the escalation of costs for any party involved in parallel procedures (para. 109 of his Opinion).

Appeal may be admissible against a default judgment if the opposition is late

The Court of Justice in Case C-785/22 P, Eulex Kosovo v SC nonetheless stated that an appeal against a default judgment may be admissible before it if the party has not asked for the General Court to set aside its own judgment within the prescribed time limit of one month pursuant to Article 166 RPGC.

Whilst this was not the situation in Eulex Kosovo v SC, given that a request was made in time by the defendant to the General Court for itself to set aside its default judgment, the Court of Justice did state that if such a situation were to arise, such an appeal would be inadmissible during the time the default judgment is not yet final, but could be regularised, i.e. upon expiry of that time limit (para. 33 of the judgment) ‘if that legal remedy has not be exercised’. Thus, according to the Court of Justice, there is an exception to the rule if the party does not comply with the time limit to file an opposition or does not file an opposition at all, it can appeal the default judgment, once it is final, before the Court of Justice.

Unhealthy choice of legal remedies

To leave a choice of remedies to the defendant, i.e. either to pursue an application to set aside a default judgment based on Article 166 RPGC before the General Court, or an appeal against such a judgment before the Court of Justice, is problematic. It is even more problematic to allow an appeal, when the defendant does not manage to file an opposition within the stipulated time limit of the specific legal remedy under Article 166 RPGC, i.e. one month.

Specific remedy in Article 166 RPGC

In view of the considerations, AG Emiliou, fully aware of the Court’s reasoning in Case C-785/22 P, Eulex Kosovo v SC (see para. 102 of his Opinion), in his Opinion in Case  C‑766/21 P, Parliament v Axa Assurances Luxembourg and Others is entirely correct in stating that a defendant in default cannot lodge an appeal against a first-instance decision because of the requirement to make use of the specific remedy set out in Article 166 RPGC. ‘The two procedural avenues are […] not only alternatives and mutually exclusive, but also not interchangeable. […] to lodge an appeal, a party must fulfil the formal requirements outlined in Article 56 of the Statute, in essence, mandating participation at first instance. […] a defendant in default does not fulfil that criterion. Any attempt to bring a successful appeal would seem futile.’ (See paras. 101, 103 and 104 of the Opinion of AG Emiliou).

An appeal against a default judgment before the Court of Justice will regularly unduly prolong proceedings before the EU courts, with a possible referral back to the General Court due to the incomplete provisional appraisal of the facts, within the procedure for default judgments inaudita altera parte. The consequences for applicants will be an unreasonable length of adjudication of their cases before the CJEU, and of course, escalating their costs.

In order to avoid that defendants more often fail to file a defence in the initial proceedings, despite being requested to do so, the tight time limit of one month of the specific remedy set out in Article 166 RPGC must be adhered to by defendants. There should not be available another train which can be taken later, i.e. an appeal of the default judgment after two months, if the train to the General Court is missed to use the metaphor of AG Emiliou. The Court of Justice is not the correct forum to set aside a default judgment as it is bound to address points of law only. It must be left to the General Court to conduct the adversarial procedure in which the principle audi alteram partem is respected with a complete appraisal of the facts after it has not in the default procedure. (see also paras. 106 and 107 of the Opinion of AG Emiliou).

In the end, the view of Advocate General Emiliou can only be agreed with, in that ‘the procedural avenue permitting a defendant in default to submit an application to have set aside a judgment by default before the General Court is the most appropriate (rectius, the only) course of action that such a party may use in such circumstances.’

There is only one train and if missed, there is no other train.

The European Citizens’ Initiative & Greek debt: An unlikely combination

Anastasia Karatzia, Lecturer in Law, University of Essex

Introduction

It is not every day that we see CJEU judgments on the European and Monetary Union (EMU). A simple search on Curia with the words ‘Economic and Monetary Policy’ results in relatively few cases including a couple of seminal judgments published in the past five years, such as Pringle and Gauweiler (discussed here), which relate to measures taken for the management of the Eurozone crisis. One of the results of this search is the case of Anagnostakis v Commission, which challenges the refusal of the Commission to register Mr. Anagnostakis’ proposed European Citizens’ Initiative (ECI) ‘One million signatures for solidarity’.

Mr. Anagnostakis submitted his proposed Initiative to the Commission in July 2012. According to the text of the proposal, the objective of the Initiative was the establishment, in EU law, of a principle of ‘the state of necessity, in accordance with which, when the financial and political existence of a Member State is threatened by the servicing of abhorrent debt, the refusal to repay that debt is necessary and justifiable.’ The proposed ECI mentioned Articles 119 - 144 TFEU (the Treaty provisions on EMU) as the legal basis for its adoption. In September 2012, the Commission refused to register Mr. Anagnostakis’ proposal on the ground that the proposal did not fulfil the conditions of Article 4(2)(b) of the ECI Regulation, as it ‘fell manifestly outside the scope of the Commission’s powers to submit a proposal for the adoption of a legal act of the Union for the purpose of implementing the Treaty’.

The letter of refusal sent to the organiser stated that the Commission had examined the Treaty provisions referred to in the proposed ECI, in particular Article 136(1) TFEU ‘and all other possible legal bases’, before concluding that the proposed Initiative should be refused registration. On 11 October 2012, Mr. Anagnostakis challenged the refusal of his Initiative, claiming that the Commission could have registered the ECI on the basis of Article 122(1), Article 122(2), Article 136(1)(b) TFEU, and rules of international law. The General Court found that the Commission had not committed an error in law by refusing to register the proposal and thus dismissed the case. It also ruled that the Commission had complied with its obligation to state reasons, after examining this procedural ground on its own motion.

The applicant appealed the judgment of the General Court, and the European Court of Justice (ECJ) delivered its judgment on 12 September 2017. This commentary, which is the third in a line of posts in ‘EU Law Analysis’ on ECI-cases (see earlier comments on the TTIP/CETA and Minority Safepack cases), will focus on the ECJ’s judgment, which is the first and currently the only ECJ judgment relating to an ECI. Interestingly, the judgment was delivered by the Grand Chamber, possibly because of the novel nature of the subject matter, or (/and) because of the politically sensitive nature of the Initiative.

In addition to this first ECI judgment, the Commission’s Proposal for a new ECI Regulation, was recently published and was presented earlier this week (28 November) by the First Vice President Timmermans to the European Parliament. The commentary will conclude by briefly looking at a specific aspect of the Commission’s Proposal, namely the suggested formalisation of the partial registration of an ECI.

The judgment of the European Court of Justice in Anagnostakis

The appeal consisted of four grounds which were classified into two groups (as suggested by the Advocate-General’s opinion). The first group of arguments concerned the procedure in which the Commission made its Decision. The appellant challenged the finding of the General Court that the contested decision satisfied the Commission’s requirement to give reasons under Article 296 TFEU. The second group concerned the substance of the Decision: the appellant complained that the General Court misinterpreted Article 122 TFEU, Article 136(1) TFEU, and rules of international law in finding that the Commission’s assessment of Article 4(2)(b) of the ECI Regulation was correct.

The Commission’s obligation to give reasons

According to the appellant, the General Court’s assessment of the Commission’s duty to state reasons was faulty. The General Court wrongly held that the Commission’s mere reference to Article 4(2)(b) of the ECI Regulation in its Communication was a sufficient reason for the refusal of the proposed ECI. Simply stating that an ECI proposal was refused on the basis of Article 4(2)(b) of the ECI Regulation did not actually explain why the Commission manifestly lacked the competence to register the proposal.

The ECJ’s assessment of this ground of review is clear and consistent with the case law on Article 296 TFEU, specifically expressed in the context of the ECI in Article 4(3) of the ECI Regulation. The Court started by referring to Article 11(4) TEU (i.e. the legal basis of the ECI together with Article 24 TFEU), characterising the ECI as one of the instruments related to ‘the right of citizens to participate in the democratic life of the Union,’ (para 24) stipulated in Article 10(3) TFEU. The Court referred to well-established case law on Article 296 TFEU, according to which an EU institution’s statement of reasons must be assessed by reference to the circumstances of the specific case, taking into consideration the wording of the statement as well as the context and all the legal rules governing the matter in question (para 29). It stressed that the purpose of the duty to give reasons is to enable the person concerned to understand why the decision was taken, and to enable the competent Court to exercise its powers of review.

The Court then went on to consider the General Court’s finding that the Commission had complied with its obligation to state reasons (paras 31-43).The main message of the Court here was that a more detailed statement of reasons by the Commission would only be required if the ECI proposal itself was more detailed. The brevity of the proposed ECI, as well as the general reference made to Articles 119-144 TFEU and the lack of an explanation of the link between those Articles and the content of the proposal, justified the brevity of the contested Decision.

In light of the format of the proposed Initiative, the Commission was entitled to assess the proposal predominantly on the basis of Article 136(1) TFEU (a general power to adopt legislation relating to EMU), which was the least irrelevant Article on which the proposed ECI could have relied. Moreover, there is no obligation on the Commission to justify its assessment of all 26 proposed legal bases or to explain why any other provision of the TFEU was irrelevant. In its assessment, the Court took into account the fact that the General Court was eventually able to review the substance of the Commission’s decision, which, as mentioned above, is one of the underlying objectives of imposing on the EU Institutions a duty to give reasons in the first place (para 40).

In line with the General Court ruling in Minority Safepack, the ECJ in Anagnostakis supported the view that that the Commission would have to publish a more detailed statement of reasons only if the organisers had given more detailed information on the connection between the recommended legal bases and the content of the proposed ECI (para 37). Future ECI organisers should therefore be mindful of the fact that the format of a proposed ECI itself – including the details in the text of the proposal and the Annexes attached to it – is a determining factor of the extent of the Commission’s obligation to give reasons for rejecting a proposed Initiative. This approach might refuel concerns regarding the ability of grassroots organisers to put together detailed explanations of the suitable legal bases for their proposals, not least when these proposals have to do with matters that are as complicated as the EMU.

On the substance of the case

With regard to the substance of the case, the appellant argued that the Commission should have registered the proposed Initiative on the basis of Articles 122, 136(1) TFEU, and rules of international law. The latter argument, which was examined last, was the one most swiftly rejected by the Court: a principle of international law cannot be a legal basis for an initiative by the Commission. According to Article 5(1) and 5(2) TEU, the Commission can only act within the limits of the competences conferred upon it by the Treaties, and the existence of a principle of international law ‘would not suffice as a basis for a legislative initiative’ (see paras 95-103).

Interestingly, before delving into the substance of the matter, the Court considered the scope of judicial review that it could carry out in the case at hand. It clarified that a review of the merits of the General Court’s decision can only be made on the basis of the information provided at the time of the request for the Initiative’s registration. As such, the Court would not take into account any clarifications made by the appellant in the appeal at hand. After this preliminary observation, the ECJ examined the appellant’s arguments concerning Articles 122 and 136(1) TFEU.

The Court first examined whether Article 122 TFEU could have been an appropriate legal basis for the proposed ECI. It reiterated that Article 122(1) TFEU allows the Council to decide, ‘in a spirit of solidarity between Member States’, upon measures appropriate to the economic situation, especially if the Member State is facing severe difficulties in the supply of certain products in the area of energy. It confirmed the finding of the General Court in first instance, which had cited Pringle, that Article 122(1) TFEU ‘does not constitute an appropriate legal basis for possible financial assistance from the Union to Member States who are experiencing, or are threatened by severe financing issues’ (para 69). According to the Court, it did not matter that Pringle concerned the European Stability Mechanism, which was not the focus of the proposed ECI; the point remained that Article 122(1) TFEU does not apply to measures aiming to ease a Member State of its financial difficulties (para 70).

Subsequently, the ECJ also dismissed the appellant’s argument that, contrary to the General Court’s decision, Article 122(2) TFEU could be an appropriate legal basis for the ECI. The provision allows the Council to authorise financial assistance from the EU to a Member State which is experiencing severe difficulties or a serious threat of severe difficulties caused by natural disasters or exceptional circumstances beyond its control. Once again, the ECJ referred to the case of Pringle where it had ruled that Article 122(2) TFEU cannot be used as the basis for the establishment of a general and permanent mechanism of non-repayment of debt (para 75). Since the ECI proposal suggested the deletion of debts owed by the Member States to both the EU and to public and private, natural or legal persons, it could not fall within the meaning of Article 122(2) TFEU, which concerns only financial assistance provided by the EU and not by the other involved persons (paras 76 and 77).

Finally, the ECJ confirmed the finding of the General Court that Article 136(1) TFEU cannot be used as a legal basis for the establishment of the principle of the state of necessity in EU law. According to the Court, the adoption of a measure such as the one suggested by the proposed Initiative cannot be seen as ‘economic policy guidance’ as envisaged by Article 136(1)(b) TFEU. To the contrary, the mechanism proposed by the ECI would replace the free will of contracting parties by allowing for the unilateral writing-off of sovereign debt (paras 90-91).

Overall, it is notable that the ECJ dismissed a number of the applicant’s arguments under each ground of appeal because of the limited scope of review in the context of the case at hand. On appeal, the ECJ can only review the findings of law on the case put forward by the parties in the case before the General Court. As such, a number of the arguments put forward by the appellant were not assessed on their merits, leaving a number of questions unanswered by the Court in this occasion. The first question is whether a Member State facing severe financing difficulties can invoke the so-called ‘state of necessity’ to receive debt relief not unilaterally, but subject to conditionality laid down by the Commission (paras 71-73). The second question is whether the Initiative could be adopted on the basis of Article 136(3) TFEU in conjunction with Article 352 TFEU (the ‘residual powers’ clause). Besides the procedural point concerning the inability of the ECJ to rule on the above two questions on appeal, one might also wonder whether the ECI-case of Anagnostakis would have been an appropriate occasion for the ECJ to make any bold declarations on the issue of a Member State’s debt relief.

The third question left open was whether the Commission should have partially registered the proposed Initiative only to the extent that the proposal suggested the relief of the debt owed by a Member State to the Union. The ECJ did not examine whether the Commission should have registered this interpretation of the proposal. As a more general observation, we should note that the procedural question of whether partial registration by the Commission is possible has now become redundant. Earlier this year, the Commission partially registered the Minority SafePack ECI while, as we will see below, the Commission’s Proposal for a New ECI Regulation specifically refers to the possibility for the Commission to allow partial registration of a proposed Initiative.

Partial Registration of an ECI under the Commission’s Proposal for a New ECI Regulation

Five days after the ECJ’s decision in Anagnostakis, the Commission published its ‘Proposal for a Regulation of the European Parliament and of the Council on the European Citizens’ Initiative’, which suggests the adoption of a New ECI Regulation to replace Regulation 211/2011. In the proposed ‘New ECI Regulation’, the legal admissibility test has been moved from Article 4 to Article 6. The newly suggested provision retains the essence of the current procedure: organisers may only start collecting signatures supporting their ECI after they have submitted their request through the register (Article 6(2)), and the Commission has checked that the proposal satisfies certain legal and procedural criteria (Article 6(3) and (4)) and has registered the proposal (Article 6(1)).

Under the New ECI Regulation, Articles 6(3)(d) and (e) maintain the two legal criteria of the current ECI Regulation: a proposed Initiative will not be registered if it is manifestly abusive, frivolous or vexatious, or if it is manifestly contrary to the values of the EU (see Article 4(2)(c) and (d) of the current ECI Regulation). Perhaps the most notable changes are included in Articles 6(3)(c) and Article 6(4) of the New ECI Regulation compared with the current Article 4(2)(b) of the ECI Regulation. Article 6(3)(c) states that the Commission shall register a proposed initiative if ‘none of the parts of the initiative manifestly falls outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties’. This Article should be read in conjunction with Article 6(4), which allows for the partial registration of an ECI by the Commission.

To put it simply (or, at least, as simply as possible), if the Commission considers that only parts of a proposal fall within its competence to propose a legal act, it has to send the proposal back to the organisers within one month, together with the reasons behind its assessment. The organisers then have the possibility – and the responsibility – to change and resubmit, to maintain, or to withdraw their initial proposal. It is not very clear why organisers might want to maintain a rejected proposal, which in all likelihood will simply be rejected again by the Commission. In case the organisers decide to change their proposal, however, they would have the responsibility of submitting the necessary amendments to the Commission. After receiving the amendments, the Commission would have one month to assess the new information and to either register, partially register, or reject the ECI (Article 6(4)).

Partial registration of an ECI would thus be formalised in the sense that the Commission would have to check if ‘a substantial part of the initiative including its main objectives’ does not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act. The proposed Regulation does not define what is to be considered ‘a substantial part’ of a proposed Initiative. Not only that, but the proposal shifts the burden on the organisers to re-consider their initiative and re-submit to the Commission, instead of obliging the Commission to specify which parts of the initial ECI proposal it can maintain for the purposes of registration. It will be interesting to see how the European Parliament will react to this, and the rest of the changes to the ECI legal framework proposed by the Commission in the New ECI Regulation, especially since MEPs have been advocating for a more user-friendly ECI in their contributions to the review of the current ECI Regulation.   

Photo credit: CNBC

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