Council v Stichting Natuur en Milieu and Pesticide Action Network Europe (Opinion) [2014] EUECJ C-404/12

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(Appeals — Environment — Aarhus Convention — Article 10 of Regulation (EC) No 1367/2006 — Request for internal review — Article 2, paragraph 2, second subparagraph, of the Aarhus Convention — Notion of acting in a legislative capacity for the purposes of the Aarhus Convention — Act adopted in accordance with the ‘regulatory’ procedure, within the meaning of Decision 1999/468/EC — Regulation (EC) No 149/2008 setting maximum residue levels for pesticides)

1. The appeals brought by the Council of the European Union (C‑404/12 P) and the European Commission (C‑405/12 P) concern the interpretation of the notion of ‘acting in a legislative capacity’ for the purposes of Article 9(3), read together with the second subparagraph of Article 2(2), of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (2) (‘the Aarhus Convention’). It is clear from those provisions that members of the public may have recourse to administrative or judicial procedures to challenge acts and omissions which contravene provisions of national law relating to the environment, albeit that they specify that acts adopted by public authorities in the exercise of their legislative capacity fall outside the scope of Article 9(3) of the convention. (3) Those provisions were implemented in EU law by Article 10(1) of Regulation (EC) No 1367/2006 (4) (‘the Aarhus regulation’).

2. Regulation (EC) No 396/2005 concerns maximum residue levels of pesticides in or on food and feed of plant and animal origins. (5) It was amended by Commission Regulation (EC) No 149/2008 of 29 January 2008 (6) establishing Annexes II, III and IV setting maximum residue levels for products covered by Annex I to Regulation No 396/2005. Regulation No 149/2008 was adopted in accordance with the ‘regulatory’ procedure, within the meaning of Decision 1999/468/EC on comitology. (7)

3. By letters of 7 and 10 April 2008, Stichting Natuur en Milieu and Pesticide Action Network Europe, foundations governed by Netherlands law (‘the environmental protection organisations’), made requests to the Commission for an internal review of Regulation No 149/2008 under Article 10 of the Aarhus regulation. By two decisions of 1 July 2008 (‘the inadmissibility decisions’), the Commission rejected those requests as inadmissible on the ground that Regulation No 149/2008 was not a measure of individual scope within the meaning of the Aarhus regulation and that it could not, therefore, form the subject of an internal review procedure as provided for by that regulation.

4. In the actions brought by the environmental protection agencies, the General Court annulled the inadmissibility decisions by judgment in Stichting Natuur en Milieu and Pesticide Action Network Europe (T‑338/08, EU:T:2012:300, ‘the judgment under appeal’). The Court held, in particular, that the adoption of Regulation No 149/2008 fell within the scope of the Commission’s regulatory activities and that it was, therefore, amenable to a request for review as provided for by Article 10 of the Aarhus regulation.

5. By the present appeals, the Council and the Commission ask the Court to set aside the judgment under appeal.

6. Inasmuch as the plea advanced by the Council and the first plea advanced by the Commission in the present cases are similar to the pleas put forward by those same institutions and by the European Parliament in Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12 P to C‑403/12 P), in which I also deliver my Opinion today, the present disputes are closely connected with the question of whether Article 9(3) of the Aarhus Convention may be relied upon directly in annulment proceedings for the purposes of a review of legality as provided for in Article 10 of the Aarhus regulation, that being the question underlying the second series of cases.

7. However, in the present case a preliminary question — following on from the Commission’s second ground of appeal in Case C‑405/12 P — arises as to the applicability of the Aarhus Convention to the present case. Consequently, this Opinion will focus on the question whether the Commission acted in its legislative capacity, within the meaning of the second subparagraph of Article 2(2) of the Aarhus Convention, when it adopted Regulation No 149/2008, for if it did so that would remove that regulation from the scope of Article 9(3) of the convention and thus also from the scope of Article 10(1) of the Aarhus regulation.

II – The background to the dispute, the procedure before the General Court and the judgment under appeal

8. As regards the legal framework, the facts which gave rise to the dispute, the procedure before the General Court and the judgment under appeal, it is sufficient to refer to the information given in that judgment.

III – The forms of order sought and the procedure before the Court of Justice

9. By its appeal, brought on 3 September 2012 (Case C‑404/12 P), the Council asks the Court to set aside the judgment under appeal, to dismiss the action of the applicants at first instance in its entirety and to order the applicants at first instance jointly and severally to pay the costs.

10. By its appeal, brought on 27 August 2012 (Case C‑405/12 P), the Commission asks the Court to set aside the judgment under appeal, to rule on the substance of the case and dismiss the actions for annulment of the inadmissibility decisions and order the applicants at first instance to pay the costs incurred by the Commission at first instance and in this appeal.

11. Cases C‑404/12 P and C‑405/12 P were joined for the purposes of the written and oral procedures and judgment by order of the President of the Court of 21 November 2012.

12. On 25 February 2013, the environmental protection organisations lodged a response to the appeals. Further to a request to put their response in order, on 1 March 2013, those same parties submitted a cross-appeal, which they described as conditional and which contained a reference to Article 176(2) of the Rules of Procedure.

13. The Council, the Parliament, the Commission, the environmental protection organisations and the Czech Government (8) submitted oral argument at the hearing on 10 December 2013.

14. Since the answer to the question whether the adoption of Regulation No 149/2008 falls within the scope of the Aarhus Convention will be decisive in the Court’s assessment of the merits of the present dispute, it is appropriate to commence the analysis of these appeals by addressing the second ground of appeal in Case C‑405/12 P. Indeed, the debate aroused by the first ground of appeal in Case C‑405/12 P and by the appeal in Case C‑404/12 P concerning the review of the legality of the Aarhus regulation with regard to the Aarhus Convention will serve no purpose unless it transpires that the act in relation to which the request for review was made is amenable to such a review.

B – The plea concerning the capacity in which the Commission adopted Regulation No 149/2008 (second ground of appeal in Case C‑405/12 P)

15. By its second ground of appeal, the Commission claims that the General Court erred in law by holding, in paragraphs 65 to 67 of the judgment under appeal, that, in adopting Regulation No 149/2008, the Commission acted in the exercise of its implementing powers. Indeed, according to the Commission, the General Court gave an interpretation that was based on a purely institutional approach to the notion of acting in a legislative capacity, for the purposes of the second subparagraph of Article 2(2) of the Aarhus Convention.

16. In support of its claims, the Commission argues that the interpretation given to the notion of acting in a legislative capacity for the purposes of the convention cannot be determined by notions which are specific to the treaties of the Union. On the contrary, it must be based on a teleological method, taking into account the fact that the Aarhus Convention excluded legislative acts from its scope of application for the reason that the provision of information to the public is, in this respect, ensured by the legislative process itself. (9) The Commission submits that, since the Court has already held, in its judgment in Flachglas Torgau, that a functional interpretation should be given to the phrase ‘bodies or institutions acting in a legislative capacity’, (10) that functional approach is similarly the best suited to interpreting the notion of ‘acting in a legislative capacity’ within the meaning of the second subparagraph of Article 2(2) of the Aarhus Convention. The Commission adds that the Court even referred to that provision when interpreting Article 2(2) of Directive 2003/4 (11) (‘the access to information directive’).

17. First of all, according to well-established case-law, an international treaty must be construed by reference to the terms in which it is framed and in the light of its objectives. Article 31 of the Vienna Convention of 23 May 1969 on the Law of Treaties and Article 31 of 21 March 1986 on the Law on Treaties between States and International Organisations or between International Organisations, which express general customary international law, state that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. (12)

18. It is clear from the preamble to the Aarhus Convention that the contracting parties recognised the importance of protecting, preserving and improving the state of the environment as well as the importance of ‘transparency in all branches of government’, while inviting legislative bodies to implement the principles of the convention in their proceedings. (13) It is, therefore, in the light of those objectives that the meaning which the authors of the Aarhus Convention intended to give to the provisions of the second subparagraph of Article 2(2), read together with those of Article 9(3) thereof, should be assessed.

19. It is clear that the Aarhus Convention does not define the notion of act or body acting in its legislative capacity. In the second subparagraph of Article 2(2), the convention merely excludes from its scope of application ‘public authorities’ acting ‘in a judicial or legislative capacity’. That provision is necessary in order to determine the scope of Article 9(3) of the convention, inasmuch as acts adopted by public authorities acting in their legislative capacity are not amenable to challenge under the procedures which may, in accordance with Article 9, be initiated by members of the public on the ground of infringement of provisions of national law relating to the environment.

20. Secondly, in so far as concerns the origin of the expression at issue, the preparatory work leading to the adoption of the Aarhus Convention offers only limited guidance incapable of supporting an unequivocal conclusion.

21. I note that during the third session of the working group for the preparation of a draft of the Aarhus Convention discussion focused on the expression ‘environmental decision-making’, which, it was felt, should not include legislative decisions or judicial decisions. (14) At the fourth session, the expression ‘environmental decision-making’ was regarded as designating ‘any procedure, as defined by the legislation of the Party, which is used by a public authority for taking decisions applying the law in matters relating to the environment. This term does not include judicial and legislative or other normative acts of a general character.’

22. As for the expression ‘public authority’, it was proposed, during the fourth session, to define it as meaning ‘any public authority or official having competence under national legislation to take decisions applying the law in matters relating to the environment or to collect, compile or disseminate information on environmental matters. This term does not include legislative and judicial bodies’ (my emphasis). The meaning of the expression ‘public authority’ was finally settled during the sixth session as excluding ‘bodies acting in a judicial or legislative capacity’.

23. Furthermore, in expressing its position on the acts adopted by the institutions of the Union acting in their legislative capacity, the Aarhus Convention Compliance Committee emphasised that, in order to establish a possible infringement of environmental law, it would be necessary to consider the form of decision-making at issue. (15) Thus, when classifying a decision, act or omission for the purposes of the Aarhus Convention, its name in the domestic law of the contracting party is not decisive. (16)

24. Thirdly, it may be useful to bear in mind that the Court has already had occasion to refer to the second subparagraph of Article 2(2) of the Aarhus Convention, in particular, in the cases relating to the access to information directive and to Directive 85/337 (17) (‘the environmental impact directive’).

25. In the case-law addressing the interpretation of the environmental impact directive, the Court has held that, in accordance with Article 1(5) of that directive, the exclusion of a project from the scope of the directive is subject to two conditions. The first requires the details of the project to be adopted by a specific legislative act. Under the second, the objectives of the directive, including that of supplying information, must be achieved through the legislative process. (18)

26. In its judgment in Solvay and Others, which concerned the status of a national decree which gave legislative status to certain types of town-planning consents for the purposes of the scope of the environmental impact directive and the Aarhus Convention, the Court, whilst emphasising the procedural autonomy of the Member States, held, in particular, that Article 9 of the Aarhus Convention and Article 10a of the environmental impact directive would lose all effectiveness if the mere fact that a project is adopted by a legislative act were to make it immune to any review procedure, within the meaning of those provisions, for challenging its substantive or procedural legality. (19) The Court also held that the question whether a legislative act satisfies the conditions laid down in the environmental impact directive must be amenable to review, under the national procedural rules, by a court of law or an independent and impartial body established by law. (20)

27. In so far as concerns the access to information directive, in its judgment in Flachglas Torgau, cited above, the Court endorsed a functional interpretation of the phrase ‘bodies or institutions acting in a … legislative capacity’, according to which ministries which, pursuant to national law, are responsible for tabling draft laws, presenting them to Parliament and participating in the legislative process, in particular by formulating opinions, can be considered to fall within that definition. (21) In this connection, the Court emphasised the diversity of the procedures that are regarded as legislative procedures in the various Member States.

28. However, I would note that, in those cases, the Court was ruling on the interpretation of specific provisions of the directives in question in the light of the Aarhus Convention, and consequently that case-law cannot be transposed unreservedly to the present case.

(b) The criteria for defining the notion of ‘acting within a legislative capacity’ within the meaning of the Aarhus Convention

29. In my view, a number of points of principle must be taken into account in interpreting the exclusion of acts of a legislative nature within the meaning of the Aarhus Convention.

30. First, as the Commission points out, the interpretation of the term ‘legislation’ for the purposes of an instrument of public international law must remain independent from the domestic law of the contracting parties. Thus, the interpretation of the second subparagraph of Article 2(2) of the Aarhus Convention cannot be based purely on references within any given legal system, but must instead arise from an overall assessment in which due consideration is given to the primary objectives of the convention, namely the protection of the environment and the establishment of a democratic mechanism which enables members of the public to take an active part in the process.

31. Indeed, the exclusion of legislative acts from the scope of the Aarhus Convention cannot be ascribed the same meaning as that which would arise from an analysis of national law. In the first place, public international law does not govern the division of legislative powers within the legal systems of the contracting parties. On the other hand, it does require that the objective of the convention, taken as a whole, is safeguarded.

32. Secondly, it is clear from a reading of the second subparagraph of Article 2(2) in conjunction with Article 9(3) of the Aarhus Convention that the objective of the regime which the convention establishes is to enable members of the public to challenge and obtain the review of decisions implementing rules of environmental law or, in other words, to take action to ensure that the rules of domestic environmental law are correctly applied in specific cases. It follows that members of the public have not been given any right to review, or demand the adoption of a given level of environmental protection.

33. The principal objective of the Aarhus Convention is, therefore, to introduce a mechanism for reviewing legality that enables members of the public to initiate an administrative or judicial review in the event that a rule of environmental law is infringed when it is applied. (22)

34. In that context, the relevant criterion for determining whether or not an act falls within the category of legislative acts, for the purposes of the convention, might be the existence or otherwise of a higher-ranking rule of environmental law. Indeed, for the purposes of Article 9(3) of the Aarhus Convention, any such review must be carried out in the light of ‘provisions of … national (23) law relating to the environment’. Individuals may, therefore, complain of the infringement, by the act at issue, of such a law. Consequently, the public authority act that is challenged must necessarily rank lower in the hierarchy of rules than the said provisions of national environmental law, since the convention proceeds from the premiss that the act is incompatible with such provisions.

35. It follows that rules of EU law whose substantive conformity cannot be assessed in the light of provisions of EU law relating to the environment are, in principle, acts of a legislative nature within the meaning of the Aarhus Convention. Nevertheless, given the independent nature of the concept of legislation within the convention, it is important that the distinction which is made specifically in EU law between legislative acts and implementing acts is not drawn in that case. Moreover, the Court has recently confirmed that the situations circumscribed by Articles 290 TFEU and 291 TFEU and relating, respectively, to delegated acts and implementing acts under EU law do not constitute a complete system. (24)

36. Thirdly, it seems to me that the Aarhus Convention aims, quite logically, to exclude any review of constitutionality, in the broad sense, of acts adopted in the field of environmental law.

37. It is in the light of those considerations that the question whether the adoption of Regulation No 149/2008 involved the exercise of the legislative prerogative, within the meaning of the Aarhus Convention, must be examined.

2. The nature of the powers exercised by the Commission in adopting Regulation No 149/2008

38. In paragraphs 64 to 70 of the judgment under appeal, the General Court based its finding that the Commission had not acted in the exercise of its legislative powers when adopting Regulation No 149/2008 on two factors. First, it observed that the annexes to Regulation No 396/2005 had to be adopted in accordance with Articles 5 and 7 of Decision 1999/468 on comitology. Secondly, it referred to the Aarhus Convention Implementation Guide, (25) from which it appears that the Commission is to be considered as an authority within the meaning of Article 9(3) of the Aarhus Convention.

39. It is therefore necessary to verify whether those reasons are well founded, assuming that they may be regarded as sufficient, a point on which the Commission has not, however, taken issue.

40. I would observe, at the outset, that, in its pursuit of the objectives set out in Article 191 TFEU, EU environmental law draws upon an exceptionally broad variety of rules, including rules on combating climate change and countering atmospheric pollution, rules addressing the issue of sustainable development, rules on waste management, the protection of land and water resources and the preservation of biodiversity, rules on public participation in environmental decision-making and rules on civil protection, including disaster management and noise management. In that context, the Commission carries out both function of a purely administrative nature, for example, when it authorises the placing on the market of a genetically modified organism (GMO), and legislative functions, when it adopts more detailed rules — often under the comitology procedure — such as when it establishes or supplements the annexes to a basic instrument. That latter situation, however, does not lend itself to an unequivocal interpretation as regards the notion of what constitutes legislative action under the Aarhus Convention, as indeed is the case with the Commission’s adoption of Regulation No 149/2008.

41. It is important to bear in mind that the adoption of the regulation here in issue has its origins in Regulation No 396/2005, which specifies maximum authorised quantities of pesticide residues present in products of animal or plant origin destined for human or animal consumption. Those maximum residue limits (‘MRLs’) include both specific MRLs for certain foodstuffs and feed and a general limit which applies where no specific MRL has been set, and Regulation No 396/2005 thus called for the subsequent drafting of a number of annexes the adoption of which is a condition for the application of certain chapters of Regulation No 396/2005. (26)

42. Consequently, the Commission began by adopting Regulation (EC) No 178/2006 (27) establishing Annex I to Regulation No 396/2005, which lists the food and feed products to which maximum levels for pesticide residues apply.

43. Next, the Commission adopted Regulation No 149/2008, which added three other annexes (II, III and IV) setting MRLs for the products listed in Annex I to Regulation No 396/2005.

44. Annex II was adopted in accordance with Article 21 of Regulation No 396/2005. It incorporates MRLs set previously in directives relating specifically to cereals, foodstuffs of animal origin and certain products of plant origin, including fruit and vegetables. (28)

45. Annex III was adopted in accordance with Article 22 of Regulation No 396/2005 and contains, inter alia, (29) temporary MRLs for active substances for which a decision on inclusion or non-inclusion in Annex I to Directive 91/414/EC (30) on plant protection product had not yet been taken.

46. Lastly, certain active substances are not subject to any residue limits. These are active substances present in plant protection products evaluated under Directive 91/414/EEC for which no MRLs was deemed to be necessary. In accordance with Article 5(1) of Regulation No 396/2005 they are listed in Annex IV to that regulation.

47. It follows that, in adopting Regulation No 149/2008, the Commission supplemented a basic instrument of legislative nature. That fact does not, however, predetermine the nature of the powers exercised by the Commission on that occasion from the point of view of the application of the Aarhus Convention. It is therefore necessary to examine the procedure under which Regulation No 149/2008 was adopted.

48. It should be borne in mind that, in the light of the judgment in Meroni v High Authority, (31) the consequences resulting from a delegation of powers are very different depending on whether it involves clearly defined executive powers the exercise of which can, therefore, be subject to strict review in the light of objective criteria determined by the delegating authority, or whether it involves a ‘discretionary power, implying a wide margin of discretion which may, according to the use which is made of it, make possible the execution of actual economic policy’. In that judgment, the Court also stated that a delegation of the first kind cannot appreciably alter the consequences involved in the exercise of the powers concerned, whereas a delegation of the second kind, since it replaces the choices of the delegator by the choices of the delegate, brings about an ‘actual transfer of responsibility’. (32)

49. Before the Lisbon Treaty two types of power were combined under the expression ‘implementing powers’. They were the power to adopt a normative act which amended or supplemented a basic legislative act, and the power to implement or execute at the EU level an EU legislative act or some of its provisions. (33)

50. However, it must be observed that, in EU law, the distinction between legislation and implementation is still, even after the Lisbon Treaty, often unclear. Indeed, as Advocate-General Cruz Villalón has pointed out, the distinction between delegated acts and implementing acts does not depend only on the difference between legislation (even if it is delegated) and implementation, but also on the fact that delegated acts are the product of the exercise of a normative competence belonging to the European Union itself, whereas implementing acts are the result of the (subsidiary) exercise by the Commission (or the Council) of a competence that belongs predominantly to the Member States. (34)

51. I would observe in this connection that, in accordance with Articles 5, 21 and 22 of Regulation No 396/2005, in the version in force at the time when Regulation No 149/2008 was adopted, (35) the latter regulation was adopted under the ‘regulatory’ procedure laid down in Article 5 of Decision 1999/468/EC on comitology.

52. In accordance with that procedure, after the submission of a draft of the measure to the Standing Committee on the Food Chain and Animal Health (36) (‘the committee’), in order for the measure to be adopted it was necessary for the Commission to obtain a favourable qualified majority vote. If the committee was unable to give a qualified majority vote in favour of the Commission’s draft, or if it returned a qualified majority vote against the draft, the measure had to be referred to the Council. The Council could then either accept the measure or refer it back to the Commission. If, within three months, the Council had not taken a decision, the Commission could then adopt its initial proposal. The Parliament had a right to be involved, in the sense that, in the case of measures based on a basic instrument adopted under the codecision procedure, it could adopt a non-binding resolution if it considered that the Commission had exceeded its implementing powers.

53. It thus appears that, prima facie, the procedure followed had a certain connection with legislative activity: it involved the three institutions of the European Union which may exercise legislative powers and led to the adoption of a measure of general application that includes provisions, at least in large measure, of environmental law.

54. The fact remains that the adoption of amendments to the annexes of a basic instrument to take account of developments in scientific and technical knowledge may also be regarded purely as an implementing measure under EU law. Indeed, it was that finding that justified the amendment of the procedure for adopting the annexes to Directives 86/362, 86/363 and 90/642. (37) I would emphasise that those annexed were subsequently incorporated into Annex II to Regulation No 396/2005.

55. The procedure under which Regulation No 149/2008 was adopted is therefore not in itself decisive in identifying the nature of the powers that were exercised by the Commission for the purpose of defining the scope of application of the Aarhus Convention. Consequently, it is necessary to examine the content of those powers.

56. I would observe that Regulation No 396/2005 is a special, innovative instrument inasmuch as it established for the first time a general European limit of 0.01 mg/kg for all types of pesticide, without distinguishing between the various categories of foodstuffs. That general limit applies by ‘default’, that is to say, in all cases where no MRL has been specifically set for a product or type of product. The choice of the form of a regulation for the instrument by which to repeal a number of individual directives was justified by the fact that that type of instrument ensures that its precise provisions will be applied at the same time and in the same manner throughout the Community. It follows that one of the principal objectives pursued, in the name of public health protection, was the uniform application of the rules relating to MRLs.

57. In accordance with the same logic, the adoption of the annexes to Regulation No 396/2005 by means of Regulation No 149/2008 drew upon other acts of secondary legislation concerning the environment. Annex II to Regulation No 396/2005, in the version established by Regulation No 149/2008, incorporated MRLs set previously in Directives 86/362, 86/363 and 90/642, the annexes to which (which were regularly amended) contained lists of products and maximum authorised levels of pesticide residues. Annex III to Regulation No 396/2005, in the version established by Regulation No 149/2008, contained a list of temporary MRLs and was divided into two parts, Part A setting out temporary MRLs for substances for which no MRL had been set in accordance with Directives 86/362, 86/363 and 90/642 and Part B covering temporary MRLs for products not defined in Annex I to Directives 86/362, 86/363 and 90/642. Annex IV to Regulation No 396/2005 comprised a list of active substances present in plant protection products evaluated under Directive 91/414/EEC for which no MRLs were deemed to be necessary.

58. Admittedly, those annexes to Regulation No 396/2005 have been amended frequently. Under Article 14 of Regulation No 396/2005, in connection with the setting, modification or deletion of an MRL, the Commission could adopt either a regulation or a decision rejecting an application for an MRL made in accordance with Article 7 of Regulation No 396/2005. (38)

59. I think it essential to emphasise in this connection that an MRL is, as such, a rule of environmental law enacted by the Commission under the comitology procedure. The right to apply for an authorisation for the use of a product which will imply the modification of an existing MRL which individuals having a particular interest in the content of such an authorisation enjoy in no way alters that fact. Indeed, the grant of such an authorisation is merely an instance of the application of a pre-existing rule.

61. As I have already stated, the interpretation of the notion of ‘acting in a legislative capacity’, for the purposes of the Aarhus Convention, must be guided by the structure of Article 9(3) thereof, from which it is clear that the convention aims to introduce a mechanism for the review of the application, not the enactment, of rules of environmental law.

62. Furthermore, I consider that the powers which the Commission exercised in adopting Regulation No 149/2008 were in the nature of a codification of pre-existing provisions by means of their incorporation into the annexes of Regulation No 396/2005.

63. Of course, the exercise of powers by the Commission in this case is amenable to judicial review inasmuch as it exercised delegated legislative or implementing powers. Nevertheless, there are, in this case, no rules of environmental law which might restrict the Commission’s competence and by reference to which the review procedure introduced by the Aarhus Convention might be carried out.

64. Lastly, I would point out that the application of Chapter II of Regulation No 396/2005, which includes Article 14, was conditional upon the entry into force of Regulation No 396/2005.

65. In light of all the foregoing considerations, I propose that the Court find that, in adopting Regulation No 149/2008, the Commission acted in a legislative capacity, within the meaning of the Aarhus Convention.

66. Consequently, by holding, in paragraph 70 of the judgment under appeal, that, in adopting Regulation No 149/2008, the Commission acted in the exercise of its implementing powers, the General Court erred in law. The judgment under appeal must therefore be set aside.

67. Given the solution proposed in paragraph 66 of this Opinion, there is no need to examine the other grounds of appeal advanced in Case C‑404/12 P and Case C‑405/12 P. That applies equally to the cross-appeal brought by the environmental protection organisations.

68. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice, the latter may, after quashing the decision of the General Court, itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. In the present case, it seems to me that the conditions are met for the Court of Justice itself to give judgment in the matter. The arguments which the parties set out before the General Court are contained in the pleadings exchanged during the written procedure before that court.

69. By their first plea before the General Court, the environmental protection organisations argue that, in finding that Regulation No 149/2008 could not be considered to be either an act of individual scope or a bundle of decisions, the Commission wrongly held that their requests for internal review of that regulation were inadmissible.

70. Given the reasoning set out in points 16 to 60 of this Opinion, which demonstrates, in substance, that Regulation No 149/2008 was adopted in the exercise of legislative powers, within the meaning of the Aarhus Convention, I propose that that plea be rejected.

71. Admittedly, the parties did not have an opportunity in the proceedings at first instance to express their position on the arguments concerning the nature of the powers exercised by the Commission on adopting Regulation No 149/2008. Indeed, it is clear that the Commission’s inadmissibility decisions were based solely on the fact of Regulation No 149/2008’s general application, which, in my view, is an incomplete statement of reasons for those decisions. Notwithstanding, those decisions appear to be well-founded inasmuch as they rejected the requests for internal review as inadmissible. Since Regulation No 149/2008 is clearly a measure of general application and since that category encompasses legislative activity, within the meaning of the Aarhus Convention, that constitutes sufficient grounds for the said decisions. (39)

72. Since Regulation No 149/2008 does not, in my view, fall within the scope of the Aarhus Convention, there is no need to examine the second plea advanced in the proceedings at first instance.

– set aside the judgment of the General Court of 14 June 2012 in Case T‑338/08 Stichting Natuur en Milieu and Pesticide Action Network Europe,

– dismiss the action for the annulment of the two Commission decisions of the Commission of 1 July 2009 rejecting as inadmissible the requests for review of Commission Regulation (EC) No 149/2008 of 29 January 2008 amending Regulation (EC) No 396/2005 of the European Parliament and of the Council by establishing Annexes II, III and IV setting maximum residue levels for products covered by Annex I thereto;

– order Stichting Natuur en Milieu and Pesticide Action Network Europe jointly and severally to pay the costs, including those incurred by the Council and the Commission,

2 – The convention was approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).

3 – On the Court’s jurisdiction to interpret the provisions of the Aarhus Convention, see judgment in Lesoochranárske zoskupenie C‑240/09, EU:C:2011, paragraph 31.

4^– Regulation of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13). Under Article 10(1) of the regulation, any non-governmental organisation may make a request for internal review to the Community institution or body that has adopted an administrative act under environmental law or, in the case of an alleged administrative omission, should have adopted such an act.

5 – Regulation (EC) No 396/2005 of the European Parliament and of the Council of 23 February 2005 concerning maximum residue levels of pesticides in or on food and feed of plant and animal origin and amending Council Directive 91/414/EEC (OJ 2005 L 70, p. 1).

7 – Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, as amended by Decision 2006/512/EC (OJ 2006 L 200, p. 11).

8 – Since the Czech Government’s application for leave to intervene was lodged after the expiry of the prescribed period, leave was granted solely for the purposes of the oral procedure.

9 – See, by analogy, the judgment in Flachglas Torgau (C‑204/09, EU:C:2012:71, paragraph 43).

11 – Directive of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26).

12 – See judgment in IATA and ELFAA (C‑344/04, EU:C:2006, paragraph 40 and the case-law cited).

14 – See the report of the third session of the working group, at www.unece.org/fileadmin/DAM/env/documents/1997/cep/ac.3/cep.ac.3.6.e.pdf. The notion was considered to designate a procedure for a public authority to implement environmental decisions at national, regional or local level as defined by the legislation of a State party.

15 – European Union ACCC/C/2008/32 (Part I), ECE/MP.PP/C.1/2011/4/Add.1, May 2011, para. 61) [in] Case Law of the Aarhus Convention Compliance Committee, 2004-2011, p. 12-13. ‘… set out in article 2, paragraph 2, of the Convention, the EU institutions do not act as public authorities when they perform in their legislative capacity, with the effect that these forms of decision-making are not covered by article 9 of the Convention. Thus, in order to establish noncompliance in a specific case, the Committee will have to consider the form of decision-making challenged before the EU Courts.’

16 – ‘When determining how to categorise a decision, an act or an omission under the Convention, its label in the domestic law of a Party in not decisive’ ACCC/C/2005/11 (Belgium) (ECE/MP.PP/C.1/2006/4/Add.2, para. 29)). (European Union ACCC/C/2008/32 (Part I), ECE/MP.PP/C.1/2011/4/Add.1, May 2011, para. 71).

17 – Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40).

18 – Judgment in WWF and Others (C‑435/97, EU:C:1999:418, paragraph 57); Boxus and Others (C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:66, paragraph 37); Solvay and Others (C‑182/10, EU:C:2012:82, paragraph 31), and Nomarchiaki Aftodioikisi Aitoloakarnanias and Others (C‑43/10, EU:C:2012:560, paragraph 79).

22 – See, in that regard, and subject to the Court’s decision in joined Cases C‑401/12 P to C‑403/12 P, the examples of non-legislative acts that are of general application that may be covered by the internal review procedure for the purposes of Article 10 of the Aarhus Convention: Article 9 of Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ 1998 L 330, p. 32) and Commission Implementing Decision of 30 October 2013 confirming the average specific emissions of CO2 and specific emissions targets for manufacturers of passenger cars for the calendar year 2012 pursuant to Regulation (EC) No 443/2009 of the European Parliament and of the Council (OJ 2013 L 289, p. 71).

23 – It should be noted that EU law is considered as ‘national law’ for the purposes of Article 9(3) of the Aarhus Convention: ‘In this context, when applied to the EU, the reference to ‘national law’ should be interpreted as referring to the domestic law of the EU (see ACCC/C/2006/18 (Denmark) (ECE/MP.PP/2008/5/Add.4, para. 27)). (European Union ACCC/C/2008/32 (Part I), ECE/MP.PP/C.1/2011/4/Add.1, May 2011, para. 76).

24 – See judgment in United Kingdom v Parliament and Council (C‑270/12, EU:C:2014, paragraphs 77 to 86).

25 – See p. 34 of the guide, which is available at the following address: www.unece.org/fileadmin/DAM/env/pp/acig.pdf.

26 – Under Article 50 of Regulation No 396/2005, Chapters II, III and V apply as from six months from the date of publication of the last of the regulations establishing Annexes I, II, III and IV.

27 – Commission Regulation of 1 February 2006 amending Regulation No 396/2005 to establish Annex I listing the food and feed products to which maximum levels for pesticide residues apply (OJ 2006 L 29, p. 3).

28 – Council Directive 86/362/EEC of 24 July 1986 on the fixing of maximum levels for pesticide residues in and on cereals (OJ 1986 L 221, p. 37), Council Directive 86/363/EEC of 24 July 1986 on the fixing of maximum levels for pesticide residues in and on foodstuffs of animal origin (OJ 1986 L 221, p. 43) and Council Directive 90/642/EEC of 27 November 1990 on the fixing of maximum levels for pesticide residues in and on certain products of plant origin, including fruit and vegetables (OJ 1990 L 350, p. 71).

29 – Unless they are already listed in Annex II, in accordance with the procedure referred to in Article 45(2), taking into account the information provided by the Member States, where relevant the reasoned opinion mentioned in Article 24, the factors referred to in Article 14(2) and certain MRLs. Annex III may also include other products, such as new agricultural products included in Annex I to Regulation No 396/2005 (see recital 4 of Regulation No 149/2008).

30 – Council Directive of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1).

32 – See judgment in United Kingdom v Parliament and Council (EU:C:2014:18, paragraphs 41 and 42).

33 – A clear demarcation between these two phenomena was proposed by the European Convention and enshrined in the Treaty establishing a Constitution for Europe. This change ultimately made its way into the Lisbon Treaty, in Articles 290 TFEU and 291 TFEU. See my Opinion in United Kingdom v Parliament and Council (EU:C:2013:562).

34 – See point 57 of the Opinion of Advocate-General Cruz Villalón in Commission v Parliament and Council (C‑427/12, EU:C:2013:871).

35 – Regulation No 149/2008 entered into force, in accordance with Article 2 thereof, six months after the date of its publication in the Official Journal, that is to say, on 1 September 2008. In the interim, Regulation No 396/2005 was amended by Regulation (EC) No 299/2008 of the European Parliament and of the Council, which was adopted on 11 March 2008 and entered into force on 10 April 2008 (OJ 2008 L 97, p. 67). The adoption of Regulation No 299/2008 was rendered necessary, inter alia, by Council Decision 2006/512/EC of 17 July 2006 amending Decision 1999/468 (OJ 2006 L 200, p. 11). Decision 2006/512/EC introduced the ‘regulatory procedure with scrutiny’ applicable to the adoption of measures of general scope designed to amend non-essential elements of a basic instrument. Under Article 1 of Regulation No 299/2008, Article 45 of Regulation No 396/2005 was amended so as to provide for two different comitology procedures, namely the regulatory procedure and the new regulatory procedure with scrutiny. Article 5(1) of Regulation No 396/2005 was replaced by a provision requiring Annex IV to that regulation to be established in accordance with the regulatory procedure with scrutiny.

36 – Referred to in Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1).

37 – See Council Directive 97/41/EC of 25 June 1997 amending Directives 76/895/EEC, 86/362/EEC, 86/363/EEC and 90/642/EEC relating to the fixing of maximum levels for pesticide residues in and on, respectively, fruit and vegetables, cereals, foodstuffs of animal origin, and certain products of plant origin, including fruit and vegetables (JO L 184, p. 33) and, in particular, the draft of that directive, which contains a statement of reasons, COM(95) 272 final, p. 8.

38 – Article 6 of Regulation No 396/2005 provides that where a Member State envisages granting an authorisation or a provisional authorisation for the use of a plant protection product in accordance with Directive 91/414/EEC, that Member State shall consider whether, as a result of such use, an existing MRL set out in Annex II or III to this Regulation needs to be modified, whether it is necessary to set a new MRL, or whether the active substance should be included in Annex IV. If necessary it shall require the party requesting the authorisation to submit an application in accordance with Article 7. Article 7 lays down the detailed requirements for making such an application.

39 – See, mutatis mutandis, the judgment in Greece v Commission (C‑321/09 P, EU:C:2011:21, paragraph 61).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Council v Stichting Natuur en Milieu and Pesticide Action Network Europe (Opinion) [2014] EUECJ C-404/12_O (08 May 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/C40412_O.html Cite as: EU:C:2014:309, ECLI:EU:C:2014:309, [2014] EUECJ C-404/12_O

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