The General Court’s decision on 14 June called into question the narrow wording of the regulation that obliges the EU’s institutions to protect the rights of civil society to participate in environmental decision-making.
The plaintiffs in the case - Stichting Natuur en Milieu, a Dutch environmental foundation, and Pesticide Action Network Europe, a group that campaigns against the use of chemical pesticides - welcomed the outcome. François Veillerette, who heads the Pesticide Action Network, urged the commission to accept the decision and not appeal it to the European Court of Justice.
Jeremy Wates of the European Environmental Bureau (EEB), a Brussels campaign group, said the ruling “vindicates longstanding concerns in the NGO community that the EU has failed to provide sufficient opportunities for NGOs to hold EU institutions to account.”
The pesticide regulation at the centre of the case specifies maximum residue levels of pesticides for certain food and feed products.
When the two environmental groups asked the Commission to review the pesticide regulation, they based that request on the Aarhus Regulation. The latter applies to EU institutions the protections provided by the United Nations’ Aarhus Convention on access to information.
That convention was introduced to supplement substantive environmental protections with procedural rights to enforce violations of those standards. It was approved on behalf of the European Union by a Council decision in February of 2005.
The UN convention obliges parties to ensure that members of the public have access to administrative or judicial procedures to challenge “acts and omissions” by public authorities for violating environmental laws.
The EU’s Aarhus Regulation is more narrowly phrased. It gives certain non-governmental groups the right to request an EU institution to internally review adopted measures, but limits that right to so-called administrative acts, which are defined as binding measures of individual scope.
EU law deemed too narrow
The court found that the Aarhus Regulation insufficiently implements the convention, because it too strictly defines the acts of public authorities to which the right of review applies.
The convention does not specify what “acts” are covered. However, the court found that, while the convention does give parties considerable discretion to decide who has the right of recourse, it provides less discretion regarding the acts that are open to challenge.
It concluded that a good faith interpretation of the term in light of the convention’s purpose precluded a finding that it referred only to measures of individual scope, because such an interpretation would exclude most acts adopted in the field of the environment.
The court did not hold that "acts" should be interpreted to include all acts by public authorities, rejecting the possibility of covering measures adopted in a legislative capacity.
The ruling is potentially relevant for challenges to a limited category of acts- those that are neither individual decisions nor legislative acts. These include regulations enacted based on the Commission’s implementing powers, such as the pesticide regulation at issue in the case. They permit the Commission, in certain circumstances, to circumvent the ordinary legislative procedure and are hence sometimes viewed sceptically as the results of technocratic lawmaking.
Wates, who heads the EEU and formerly ran the Aarhus Convention secretariat in Geneva, urged the EU to correct the regulation “and at the same time address problems with access to justice at the member-state level by reviving discussions on the stalled Access to Justice Directive.”