Advocate General’s Opinion in Grupa Azoty again lays bare a serious gap in EU judicial protection, yet does nothing to plug the hole

 

Professor Geert van Calster, University of Leuven

Photo credit: Wojciech Antosz, via Wikimedia Commons

 

Executive summary: Early March Pikamäe AG opined in Joined Cases C 73/22P and C 77/22 P Grupa Azoty S.A. et al v European Commission, an Appeal procedure regarding the admissibility of an application for partial annulment of the Commission September 2020 ‘Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading post-2021’. Pikamäe AG considers that the Applicants do not have standing to challenge the Guidelines at EU level. I challenge that position, in the light of the right to judicial review before the European Courts and of the Courts' case law on the matter. I conclude that the Opinion mistakenly identifies national judicial review of entirely speculative national measures as a guarantee to access to justice, and that in doing so it compounds the challenging limitation of access to the courts in a wider context (including the environmental context), too.

 

Introduction to the case at issue

In early March Pikamäe AG opined in Joined Cases C‑73/22P and C‑77/22P Grupa Azoty S.A. et al v European Commission. At first glimpse the case undoubtedly looks pretty dull to most observers, seeing as it engages an application for partial annulment of the Communication from the Commission of 25 September 2020 entitled ‘Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading post-2021’. Hardly rock and roll. Such aid is generally granted to address potential ‘carbon leakage’, i.e. relocation of industry away from the EU and its stricter climate rules. The applicants manufacture fertilisers, nitrogen compounds, and man-made fibres, a sector not listed in Annex I to the guidelines at issue. This means they are no longer (for the sector was included in the previously applicable Annex II of the 2012 Guidelines) considered to be at risk from carbon leakage.

The General Court having declared the applications inadmissible due to lack of standing, the case has now come before the Court of Justice upon appeal.

A core element in the General Court’s reasoning was [40-42] that the undertakings’ right to challenge the removal from the Annex and their consequential loss of potential State Aid, continued to be guaranteed seeing as Member States may still grant them such aid outside of the Guidelines’ framework, subject to notification to the European Commission. The likely refusal by the Commission to declare the aid compatible with the Internal Market, may then, the General Court suggested, be challenged before the European Courts.

It is this speculative reasoning which raises general concerns with respect to access to justice before the European Courts.

 

General framework for access to judicial review before the European Courts

Access to judicial review proceedings at the Court of Justice of the European Union (CJEU) is a long contested issue. Article 263 TFEU grants EU Institutions ‘privileged access’ to the European Courts. These are included in paragraphs 2 and 3 of the Article and they are the Member States, the Council, the Commission, the European Parliament, the Court of Auditors, the European Central Bank and the Committee of the Regions. The latter 3 Institutions may only bring an action "for the purpose of protecting their prerogatives".

The fourth paragraph of Article 263 TFEU deals with the so-called "non-privileged" applicants. In the General Court’s Order in the case under discussion, standing requirements for the non-privileged applicants are summarised as follows [26]:

“The admissibility of an action brought by natural or legal persons against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to those persons. Secondly, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them..” (references to case-law omitted).

 

Direct concern. The condition of "direct concern", while a hurdle, is not their main stumble block for standing. Indeed for a person to be directly concerned by a Union act, the measure must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being pure, automatic and resulting from Union rules without the application of other intermediate rules. This is recurrent case law, going back in particular to the 1978 Simmenthal judgment.

Individual concern.  The condition of "individual concern", turned out to be much more of roadblock. The approach of the Court is known as the "Plaumann" test, after a 1963 case involving a German importer of clementines. The CJEU held in Plaumann that

"(p)ersons other than those to whom a decision is addressed, may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them, or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed."

This test is difficult enough on paper itself. However in practice it has become even more stringent in that for economic operators, the Court typically holds that these are affected by reason of a commercial activity which may at any time be practised by any person and is not therefore such as to distinguish the applicant in relation to the contested measure as in the case of the addressee. The Plaumann test essentially amounts to a "closed shop" test: to be individually concerned by a decision addressed to another person (including Regulations and Directives addressed to Member States), an applicant needs to show that it is part of a "closed circle of persons who were known at the time of its adoption"  (a much repeated formula, e.g. in Federcoopesca).

 

The second alternative for standing in the case of non-privileged applicants (actions viz regulatory acts not entailing implementing measures if that act is of direct concern to them) obviously drops the strict ‘individual concern’ requirement and was introduced with the Treaty of Lisbon. In PGNiG Supply, the General Court held [54] that the condition

“is to be interpreted in the light of that provision’s objective, which, as is clear from its origin, consists in preventing an individual whose legal situation is nevertheless directly altered by an act from being denied effective judicial protection with regard to that act. In the light of that objective, it appears that the third limb of the fourth paragraph of Article 263 TFEU is designed to apply only when the disputed act, in itself, in other words irrespective of any implementing measures, alters the legal situation of the applicant.”

The core to this argument of the General Court’s order, is quite clearly and as it emphasises itself, the rule of law’s core contention of ensuring effective judicial protection.

It is on this point that I should like to take issue with Pikamäe’s Opinion in Grupa Azoty.

 

The challenge with the AG Opinion

—The AG’s suggestion (32) that the Court for the first time needs to hold on the potential to challenge Commission State Aid guidelines is, with respect, neither here nor there. The standing requirements for judicial review necessarily focus on the content of the measure, regardless of their nomenclature. The Guidelines at issue are developed in such detail and, importantly, with the specific instruction not to grant aid to non-Annex sectors, that one fails to see where the Member States’ discretion may at all lie. The AG’s reference (35) ff to the legal nature of guidelines, circumscribed only by general principles of EU law such as proportionality, are sophistic at best, and his continued use of the word ‘soft-law’ for Guidelines of this kind obfuscates their true impact.

—The AG’s justification of the General Court’s abstract reasoning as fitting perfectly within the Court’s existing case-law, may be arguable at a theoretical level in the light of the CJEU authorities. Yet it fails to consider the practical impact of the Guidelines. At this point, it is useful to remind ourselves of the consequences of the standing rules in the perhaps more rock and roll area of environmental law.

The impact of the restrictive approach to standing in the area of environmental law, paved the way for Advocate General Jacob’s Opinion in Union de Pequenos Agricultores (UPA) – not followed by the Court, and to what was then the Court of First Instance’s judgment in Jégo-Quéré. The Court of Justice however rejected the AG’s and CFI’s attempts to broaden access in Greenpeace.

Regardless of whether the CJEU was correct in Greenpeace (I would submit it was not), at least its optimistic presumption in that case that access to effective judicial protection is guaranteed via the preliminary reference procedure, somewhat cynically bears out in practice. The route via national courts presupposes that the Union measure at issue requires acts of implementation by the national authorities. This often then obliges the individual concerned to engineer a violation of the rules laid down by the measures, and subsequently use invalidity as a defence in any criminal or civil action directed against it. As Advocate General Jacobs argued, it would seem unacceptable that individuals be required to break the law, in order to gain access to justice. Yet, at least this engineered route is often available.

In the scenario at issue in Grupa Azoty, that prospect is fanciful. One cannot engineer a breach of State Aid rules in the entirely speculative case that a Member State does, despite the clear instructions in the guidelines, grant aid outside of it.

—Importantly, the AG in his final considerations puts the access to justice cart before the horse, where he argues

“whilst I am aware of the prevailing opinion regarding the need to expand the routes by which individuals access justice at EU level, I question whether it would be desirable, in general, for the Court to find that a soft law instrument like the guidelines at issue is a challengeable measure, and that any competitor that is able to show that it satisfies the requirement of direct concern, as identified in the judgment in Montessori, is thus entitled to bring a legal challenge where that measure constitutes a ‘regulatory act’ within the meaning of the last paragraph of Article 263(4) TFEU. I would note in this regard that, because they can be adopted quickly and adapted to contingent economic situations, these soft law instruments have been used, for example, to frame the Member States’ response to the recent crises caused by the collapse of the banking system, the COVID-19 pandemic and the outbreak of the war in Ukraine. In such situations, could the Commission be expected to adopt measures to make the exercise of its discretion more foreseeable and transparent knowing that the lawfulness of certain provisions can be directly challenged before the General Court? Could an increase in the number of those actions, which would then seem easily foreseeable, not paralyse the Commission’s clarificatory action? Is the revision of the problematic provisions of those measures by the Commission itself not sufficient for the economic operators concerned?”

 

With respect, first of all the practical implications of granting in the case at issue a circumscribed group of applicants standing, are exceedingly minimal. Under the current Guidelines only a very small group of operators have lost potential State Aid to which they had access under the previous ones. More fundamentally, practical management of access to courts necessarily must follow that very access being guaranteed — not the other way around: access must not be circumscribed by its practical management.

 

In conclusion, the Opinion mistakenly identifies national judicial review of entirely speculative national measures as a guarantee to access to justice. In doing so it compounds the challenging limitation of access to the courts in a wider context (including the environmental context), too.  

State Immunity, Comity and the Question of Legal Standing of a Third Country before the CJEU: The Opinion of AG Hogan in Case C‑872/19 P Venezuela v Council

 

 

Eva Kassoti, Senior Researcher, CLEER academic co-ordinator, T.M.C. Asser Institute. E-mail: E.Kassoti@asser.nl

 

In his Opinion delivered on 20 February 2021, A.G. Hogan tackled an important procedural question: Does a third State have legal standing to challenge EU acts before the CJEU? The question at bar is significant not only because the Court has never addressed it directly before in the context of sanctions, but also because it involves enquiring into the principles that mediate the relationship between the EU legal system and other subjects of international law.

 

The case is an appeal against the General Court’s judgment of 20 September 2019, in which that Court was asked to rule on whether Venezuela could challenge a series of restrictive measures prohibiting the provision of arms, military as well as surveillance equipment to any natural or legal person, entity or body in, or for use in, Venezuela.

 

Answering this question necessitates examining whether the conditions of Art. 263(4) TFEU (on standing to bring direct actions for annulment of EU law, if the challenger is not a Member State or EU entity) to have been met. In casu, the answer is contingent on examining whether Venezuela is a legal person that is directly and individually concerned by the measures at hand, or, in the case that the measures are considered as regulatory acts, it is sufficient to show that these measures are of direct concern to Venezuela and do not entail implementing measures. The General Court found that Venezuela was not directly concerned by those measures, and thus, that it lacked standing under Art. 263(4) TFEU – without however addressing the question of whether Venezuela is a legal person within the meaning of the same provision.

 

In his Opinion, the AG focused on two main issues in order to answer the question of legal standing: (i) whether Venezuela is a legal person within the meaning of 263(4) TFEU; (ii) whether Venezuela is directly concerned by the measures in question within the meaning of 263(4) TFEU. The A.G. proposed that the CJEU answers both questions to the affirmative. If the Court follows the A.G.’s line, this could reinforce the image of the EU as a global actor committed to the rule of law and to effective judicial protection by recognising in essence that third States have a right to challenge EU law measures them before EU courts, provided that the conditions set out in Art. 263(4) TFEU are satisfied – even in the absence of reciprocity. This blogpost focuses on the AG’s analysis of the question of ‘legal personhood’ as the question of direct concern has been discussed elsewhere.

 

Is Venezuela a legal person within the meaning of Art. 263(4) TFEU?

 

According to the A.G., both international and EU law considerations buttress the finding that Venezuela should be considered as a legal person for the purposes of Art. 263(4) TFEU.

 

International Law Considerations

In relation to the international law arguments supporting this finding, the A.G. (correctly) rejected the Council’s assertion that Venezuela is barred from bringing a suit before the CJEU on the basis of the doctrine of State immunity.  The AG argued that the law of immunities cannot limit the legal standing of Venezuela since this action is brought by Venezuela and not against Venezuela. Indeed, State immunity under international law is aimed at facilitating the performance of public functions by the State and its representatives by preventing actions being brought against them before foreign courts. It does not however imply that third States are barred themselves from appearing as claimants before foreign courts – as Art. 8 of the 2004 UN Convention on Jurisdictional Immunities of States and their Property makes abundantly clear.

 

However, the rest of his line of argumentation on the basis of international law seems rather weak and convoluted. The A.G. argued that the international law principle of comity should inform the interpretation of what constitutes a legal person for the purposes of Art. 263(4) TFEU and that, on the basis of comity, the CJEU should be open to challenges brought by States in their sovereign capacity as international legal persons. It is interesting to note at this juncture that if the Court chooses to take up this point it would be the first that it will rule directly on the question of whether international legal personality implies that an entity is a ‘legal person’ also for the purposes of an action of annulment. This argument has been expressly made before by Front Polisario, a national liberation movement with (arguably) a measure of international legal personality, in the context of the Front Polisario v Council case, but the General Court eschewed engagement therewith and ruled on Polisario’s legal personality solely from the standpoint of EU law.

 

However, from an international law point of view, the argument made by the A.G. is rather unconvincing. In fact, there seems to be no rule of customary international law requiring one State to allow another State to bring suit in its courts. Rather, comity is a domestic law doctrine (that has been mainly employed by US courts) under which deference is afforded to foreign states to bring suits before domestic courts as plaintiffs. The practice relied on by the AG (the Banco National de Cuba v Sabbatino judgment by the US Supreme Court) as well as a survey of other relevant case-law (the Sapphire; the Hilton v Guyot; the Santissima Trinidad – all judgments by the US Supreme Court) attest to the domestic law pedigree of the principle of comity. The AG failed to show how this domestic law principle has entered the corpus of international law. Overall, great caution needs to be exercised in using domestic cases in order to make propositions about general international law. The very notion of ‘comity’ in international law is linked to practices of a discretionary character; this runs counter to the modern understanding of customary international law “as evidence of a general practice accepted as law” (Art. 38(1)(b) ICJ Statute).

 

The international law blunder aside, the question arises as to whether there are good reasons to adopt the relevant doctrine as a matter of EU law. While the principle of comity is distinct from international law, it undoubtedly remains an internationally oriented principle that is important in shaping a State’s relations with the outside world. Showing deference to third States as litigants before the CJEU would certainly be within the spirit of Art. 3(5) and 21 TEU and it would consolidate the external projection of the EU as a confident and internationally engaged polity committed to the ethos of the rule of law.

 

EU Law considerations

 

The A.G. also relied on a number of EU law precedents where the CJEU had (en passant) accepted that third States have legal standing to bring an action for annulment under Art. 263(4) TFEU – although, admittedly, the context in which these rulings were made was not that of restrictive measures as is the present one (Cambodia and CRF v Commission, para. 51; Poland v Commission, paras. 51,52; Switzerland v Commission, para. 22). In the context of restrictive measures, the A.G. found the Court’s judgment in PKK and NKK v Council of particular importance since it implies that, even in the absence of legal personality, an entity that is directly and individually affected by restrictive measures must have access to EU courts in order to protect its rights. On the basis of these EU law precedents and taking into account that respect for the rule of law and the principle of effective judicial protection are core EU law principles, the A.G. concluded that Venezuela must be regarded as a legal person within the meaning of Art. 263(4) TFEU – even in the absence of reciprocity since “respect for the rule of law and the principle of effective judicial protection is not based on any notion of reciprocity and they cannot be traded or compromised in diplomatic exchanges or made subject to reciprocal treaty obligations.”

 

This part of the A.G.’s Opinion is particularly convincing – especially in the light of the Court’s relevant case-law. In PKK and NKK v Council, the Court emphasised that the procedural rules governing the admissibility of an action for annulment must be read with a view to “avoiding excessive formalism” – something that would amount to denying to an entity against which restrictive measures have been taken the possibility of applying for annulment. One may add that it would at least raise an eyebrow if the Court denied Venezuela - a sovereign State and as such, the example par excellence of an international legal person - capacity to bring annulment proceedings, while it has recognised such capacity for entities such as the Western Saharan Front Polisario and the Sri Lankan Liberation of Tigers of Tamil Eelan.

 

While one may concede that there are good reasons to adopt the A.G.’s approach to legal personhood, the question arises as to whether there may be far-reaching implications for the conduct of the EU’s foreign relations. Would allowing third States to challenge EU law measures before the CJEU open the floodgates for a number of politically charged questions of recognition of entities (such as Kosovo and Palestine) to be decided by the Court? This fear seems to be exaggerated. As the doctrine of comity has been applied by US courts, exceptions are accepted in case of States not recognised by the US. This would ensure that, while the CJEU shows a great degree of openness to review measures affecting third States, it would not be used to make determinations regarding (often politically charged) issues of recognition.

 

Barnard & Peers: chapter 24

Photo credit: Archilider, via WikiCommons Media

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

The legal challenge to ECB restrictions on Greek bank accounts – and how you can help

Steve Peers

Many EU citizens have watched with sympathy and concern as Greek citizens have been limited to withdrawing €60 a day in the last two weeks. This restriction results from a restriction imposed by the European Central Bank (ECB) on the emergency liquidity assistance which it provides to Greek banks.  

Apart from the human impact, there are grave legal, political and economic doubts about the ECB’s action. One of the central purposes of a central bank is to function as a lender of last resort to banks – and the ECB is signally failing to do that here. Also, the ECB’s actions give the impression that it is trying to influence the Greek political debate on austerity and membership of the Eurozone – a role which is well outside the Bank’s remit. The banking restrictions obviously damage the Greek economy, and so limit its ability to pay back its creditors in future.  They have nothing to do with the Bank’s task of fighting inflation, and they undermine its broader role in supporting the EU’s economic growth. (For a fuller critique, see here (paywalled); on the legal background, see here). Arguably these restrictions – or further restrictions which the ECB might impose – could lead toward a de facto ‘Grexit’ from monetary union, which is ruled out by EU law (see my discussion here).

It’s possible to challenge the ECB’s actions via the national courts, which can refer the issue to the CJEU, such as in the recent Gauweiler case (discussed here). They can also be challenged in the EU courts, such as in the UK’s recent successful challenge (discussed here). The case law takes a broad view of what ECB acts can be challenged, except where it acts as part of the ‘Troika’ which negotiates bailout conditions, when neither the Bank nor the Commission can be challenged in the EU courts. But the ECB’s restriction of assistance to Greek banks did not fall within the scope of its role in the Troika.

National governments such as Greece can go directly to the EU courts to challenge ECB actions. Other challengers besides the EU institutions would have satisfy standing rules: ‘direct and individual concern’, or (if they are challenging a non-legislative act which does not entail implementing measures) ‘direct concern’. Arguably it would be easy for a Greek bank to satisfy those rules.

In the absence of a legal challenge from a Greek bank or the Greek government, an individual depositor has brought a legal challenge to the ECB’s recent actions before the EU General Court. You can find the full text of the claim here. The ECB might restore assistance if there is a deal in the near future, but it is still worth challenging its actions, so it cannot do this (or threaten to do it) in future.

Obviously there is a possible problem with standing, although a parallel challenge could be brought in the Greek courts. The plaintiff welcomes any advice or support – contact info@alcimos.com. Or you can leave comments on this blog post.

Barnard & Peers: chapter 19

Photo credit: www.2oceansvibe.com