Commission Seeking to Overturn Ruling Granting NGOs Improved Legal Rights
18 September 2012
The European Commission is to appeal against two General
Court decisions granting NGOs and public interest groups the right
to request internal reviews of regulatory decisions made by
European institutions.
Background
The contested rulings, adopted by the General Court on 14 June
2012, concluded that the EU legislation, specifically Regulation
1367/2006 (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), does not provide the
public with adequate opportunity to challenge EU decisions.
The first case (T-338/08) was brought by two NGOs, on the basis
of Regulation 1367/2006 and concerned a review request of a
regulation setting maximum pesticide residue levels in food and the
second case (T-396/09) concerned a decision granting the
Netherlands a temporary exemption from European obligations on air
quality.
Both cases were initiated after NGO requests
for internal reviews of these environmental decisions were deemed
inadmissible by the Commission under Regulation 1367/2006, which
limits acts that can be challenged by NGOs to 'administrative
acts', defined as 'measures of individual scope'. In each
case, the Commission declined to carry out the review on the
grounds that the measure was not of individual scope. In both
cases, the General Court ruled that the restrictive conception of
challengeable acts under Regulation 1367/2006 is not compatible
with Article 9(3) of the Aarhus Convention, which requires
signatories to grant 'members of the public access to
administrative or judicial procedures to challenge acts and
omissions by private persons and public authorities'. The
Commission decisions to deny the NGOs' review requests were
therefore annulled, opening a definite legal precedent for NGOs
seeking reviews of EU decisions.
Appeal
The Commission has appealed the rulings on the
grounds that the Regulation 1367/2006 is entirely compatible with
the Aarhus Convention, and that a revision of the review procedure
would leave the EU and its international agreements vulnerable to
arbitrary challenges from NGOs and public interest groups.
Environmental NGOs have criticised the Commission's
counter-action, arguing that the current situation, in which
businesses have access to the courts because they are able to prove
a direct interest, whereas NGOs do not, is unbalanced. The
environmental organisations are particularly concerned as they fear
a reversal of the decision could limit the ability of NGOs to
request reviews of decisions taken under the REACH Regulation.
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