Mario Pagano, PhD candidate in EU environmental law, European University Institute

Background

The Aarhus Convention is a crucial piece of international law concerning environmental democracy rights. Established in 1998, this UN Convention lays out three procedural rights directly connected to environmental protection: the right to environmental information, the right to participate in environmental decision-making, and the right to legal recourse on environmental issues (the three Aarhus “pillars”).

The Aarhus Convention Compliance Committee (ACCC), formed in Geneva in 2002, ensures that the legislation of the Convention’s Parties aligns with the Convention itself. Importantly, even non-governmental organizations (NGOs) working in the environmental field can submit communications to the committee concerning a Party’s compliance. Currently, there are 47 Parties, including the EU, which joined the Aarhus Convention in 2005.

In 2008, the NGO Clientearth submitted a communication to the Committee regarding the EU’s compliance with the Aarhus Convention. Specifically, the NGO raised concerns about the Court of Justice of the EU’s (CJEU) narrow interpretation of Article 263 paragraph 4 TFEU, known as the Plaumann test, which has prevented private entities from directly challenging any EU environmental measure.

Clientearth also questioned whether certain provisions within Regulation 1367/2006 (the “Aarhus Regulation”), which mandates EU institutions to adhere to the Aarhus Convention’s norms, were in line with the Convention’s provisions on access to justice. This particularly involved Article 9 paragraphs 3 and 4, which address access to justice and effective remedies.

After nine years and an initial set of findings released in 2011, the ACCC issued its second part of findings in 2017. In this document, the ACCC sided with the NGO’s arguments and concluded that the EU was violating the Aarhus Convention’s provisions on access to justice. The Committee recommended that the EU amend the Aarhus Regulation and urged the CJEU to reconsider its stance on Article 263 paragraph 4 TFEU.

Article 10 paragraph 1 of the Aarhus Regulation establishes a process for internal review of EU administrative acts. This means NGOs can request an EU institution to re-examine its own act enacted under EU environmental law, a process akin to a ’ recours administratif ’ under French law.

According to the Committee, the need to amend the Aarhus Regulation stems primarily from the restrictive definition of a contestable “administrative act” outlined in Article 2 paragraph 1 g) of the Aarhus Regulation. This provision characterizes 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 “. The main point of contention with this provision lies in the word “individual,” which makes it very difficult for civil society groups to challenge EU measures related to environmental protection. This is because such measures often have a broad scope, aiming to safeguard common goods like natural heritage or public health.

The judgment

Background

In August 2016, Mellifera eV (referred to as “Mellifera”), a German association dedicated to bee health, petitioned the European Commission under Article 10 paragraph 1 of the Aarhus Regulation to reconsider its implementing regulation 2016/1056. This regulation extended the approval period for the active substance glyphosate, a controversial herbicide. The European executive body denied Mellifera’s request, arguing that it did not meet the criteria of a contestable EU administrative act as defined by Article 2 paragraph 1 g) of the Aarhus Regulation. Subsequently, in January 2017, the association chose to challenge the Commission’s decision to reject its request before the General Court (GC) of the EU (case T-17/12).

Mellifera contended that the disputed regulation should be categorized as an administrative act of individual scope because the Commission’s extension for glyphosate was established within a specific approval process. The association maintained that Commission implementing regulation 2016/1056 was enacted only after an individual renewal request was submitted by the applicant, as stipulated by Article 15 of Regulation 1107/2009, which deals with placing plant protection products on the market. This implied that the regulation had the potential to impact the legal standing of the applicant by granting authorization to continue marketing the product.

The association acknowledged that a measure permitting the marketing of a particular product also positively impacts other economic operators involved in producing or trading the same product. However, such effects are merely ‘indirect,’ as all direct effects are confined to the legal domain of the single applicant. Consequently, the authorization could not be deemed an act of general scope, as it did not establish any abstract criteria for the substance to fulfill but rather authorized the individual applicant to place that specific substance on the market.

Lastly, and crucially, Mellifera urged the Court to consider the ACCC’s aforementioned findings and reassess its stance on the “act of individual scope” requirement. Moreover, the association encouraged the EU judges to provide a consistent interpretation of Article 10 paragraph 1 of the Aarhus Regulation in line with the Aarhus Convention to bring the EU closer to full compliance with international environmental law.

EU General Court ruling

The GC disagreed with Mellifera’s arguments and, in its ruling on September 27, 2018, upheld the CJEU’s previous interpretation of the Aarhus Regulation, namely the Stichting natuur case-law.

First, the EU judges concurred with the Commission and determined that the implementing regulation had a general scope, as its effects were not limited to the applicant’s legal sphere. As the applicant itself acknowledged, the regulation also influenced the legal realm of other economic players who require that authorization to produce or trade plant protection products containing that specific substance in the internal market. As a result, in the Court’s view, the individual scope of the implementing regulation was not applicable.

Second, the GC addressed Mellifera’s call to align its jurisprudence with the ACCC’s findings and the Aarhus Convention’s provisions on access to justice. The association pointed out that the Convention is legally binding for the EU and that Article 9 paragraph 3 guarantees the widest possible access to justice, without restricting the ability to challenge measures negatively impacting the environment to only “individual scope” acts. This stricter definition, introduced by the EU legislator, is not stipulated by the Aarhus Convention.

Furthermore, the association emphasized that despite the lack of direct effect of Article 9 paragraph 3 of the Aarhus Convention, as affirmed in Stichting natuur and Slovak bear, the Court has a duty to interpret EU secondary law consistently with international agreements to which the EU is a party. According to Mellifera, this meant the Court had to interpret Article 10 paragraph 1 of the Aarhus Regulation in accordance with Article 9 paragraph 3 of the Aarhus Convention.

However, the GC rejected all these arguments. First, it reiterated that Article 9 paragraph 3 does not have direct effect within the EU legal order. Second, concerning the invitation to follow the ACCC findings, the EU judges responded that even if such findings were binding, they are merely a “project” issued on March 17, 2017, after the Commission had adopted the disputed regulation.

Regarding the obligation for consistent interpretation with international law, the Court maintained that this is only possible when the wording of the relevant legislation permits such interpretation without leading to an interpretation contra legem.

In this respect, the EU judges noted that since the language of the relevant legislation (the Aarhus Regulation) explicitly limits the types of contestable measures to administrative acts with an “individual scope,” a consistent interpretation of such regulation must be ruled out. This is especially true in the case at hand, as the Court had already classified the contested implementing regulation 2016/1056 as a measure of “general scope.”

Consequently, the Court rejected all the pleas put forth by the association.

Comment

The “Mellifera” case is noteworthy for several reasons, particularly regarding the role played by the association that brought the case before the Court.

In this regard, “Mellifera” serves as a prime example of how civil society organizations can leverage international law to effect change within the EU legal framework. Despite its ultimate lack of success, the association endeavored to “enforce” the Aarhus Convention and, simultaneously, sought to amend the pertinent EU legislation hindering access to justice in environmental matters.

Additionally, the organization’s role in attempting to foster a “judicial” dialogue (even though the ACCC operates in a non-judicial capacity) between European courts and international compliance bodies deserves attention, as Mellifera urged the GC to consider the recent findings of the Aarhus Committee. However, both the European Commission and the CJEU’s General Court completely disregarded this request.

The two EU institutions reached a consensus in characterizing the findings and recommendations of the Aarhus Committee as a mere “project” (a term whose meaning in this context remains unclear), devoid of any binding force. Furthermore, the Court employed the chronological argument – citing that the findings were published only after the Commission’s implementing regulation – as justification for dismissing the fact that the EU is not yet compliant with the Aarhus Convention. Given this argument, it will be intriguing to observe how the Court responds to applications challenging EU measures enacted after the publication of the ACCC’s findings.

In conclusion, it seems that the “Aarhus battle” between EU institutions and environmental associations and NGOs is far from over. The ACCC’s findings, coupled with the recent stances on the matter taken by other EU institutions (specifically the Council and the European Parliament), appear to have reinforced civil society’s conviction that EU law can be amended. In fact, Mellifera filed a new, similar application with the GC in August 2018.

Barnard & Peers: chapter 10, chapter 22

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