Analysis: “An opportunity to revisit the locus standi of regions before the CJEU: Région de Bruxelles-Capitale v Commission” by Dolores Utrilla
The meaning of the requirement of ‘direct concern’ under the fourth paragraph of Article 263 TFEU is one of the central issues framing the action for annulment, and thereby the EU’s system of judicial review. The very limited standing granted to natural and legal persons, among which are sub-national public authorities, is one of the most complex and debated issues under Article 263 TFEU – even more so after the changes made by the Lisbon Treaty – , and has thus led to the development of an extensive and rather complex body of case law.
A further chapter of this story was drafted last week by Advocate General Bobek in his Opinion in Région de Bruxelles-Capitale v Commission (C-352/19 P), in which he proposed that the Court of Justice broaden the interpretation of the direct concern requirement when applied to regions or other federated entities of the Member States.
The case concerns an appeal against the order of the General Court of 28 February 2019 in Région de Bruxelles-Capitale v Commission (T-178/18), which declared inadmissible the action for annulment brought by the Brussels Capital Region (BCR) against Commission Implementing Regulation 2017/2324 renewing the approval of the active substance glyphosate. The General Court considered that the BCR lacked standing to bring proceedings against the contested Regulation because it was not directly concerned by it. In its appeal before the Court of Justice, the BCR claimed that the General Court erred in law when interpreting and applying the fourth paragraph of Article 263 TFEU.
This case is of the utmost relevance from a general EU constitutional law perspective because it reopens the debate on the role of the regions in European integration and, more specifically, in the EU’s judicial architecture. On a more concrete note, the case offers the Court of Justice an optimal opportunity to refine its case law on the post-Lisbon version of Article 263 TFEU for the particularly important and hard cases featured by, firstly, the regional character of the applicant and, secondly, the regulatory character of the contested EU act (as defined in Inuit, C-583/11 P).
1. State of the art: direct concern in the CJEU’s case law
According to the fourth paragraph of Article 263 TFEU, an action by a natural or legal person against an act which is not addressed to him or her is admissible only in two situations, both of which presuppose the existence of direct concern to the applicant: (i) if the act is of individual concern to that person, or (ii) if the measure is a regulatory act not entailing implementing measures (Mory and Others v Commission, C-33/14 P).
In turn, it follows from settled case law that direct concern exists when two cumulative conditions are met (Dreyfus v Commission, C-386/96 P; Scuola Elementare, C-622/16 P to C-624/16 P). Firstly, the measure must have a direct causal link with the alteration of the applicant’s legal situation, which does not happen whenever there is any additional intervention breaking that link, either by the EU institutions or by the national authorities. Secondly, the contested measure must not leave any discretion to the addressees of the measure who are responsible for its implementation. That means that the legal effects of the act challenged must be produced automatically by the act itself (Front national v Parliament, C-486/01 P).
Occasionally, the CJEU has taken a flexible approach to these two requirements, going beyond formal appearances and assessing in substance the concrete way in which the challenged EU act affected the applicant’s legal position. In this vein, EU courts have sometimes accepted that direct concern still exists, for example, if the authorities in charge of implementation measures exercised very limited discretion or discretion that was not genuine in their adoption (International Fruit Company and Others v Commission, 41/70 to 44/70; Commission v Koninklijke FrieslandCampina, C-519/07 P).
At the same time, the case law has developed a particular way of application of the direct concern requirement when it comes to regional and local authorities. In Vlaams Gewest v Commission (T-214/95), the General Court held that a regional authority may be directly and individually concerned by an act of the Commission when such act prevents that authority from exercising as it sees fit the autonomous powers conferred on it by the national constitutional order. The mere fact that a region has some competence with regard to the matter regulated by an EU measure does not suffice for that region to be regarded as ‘concerned’ within the meaning of the fourth paragraph of Article 263 TFEU. This interpretation, which suggests that both direct and individual concern exist in these situations, has been later confirmed in many other cases, such as Regione Friuli-Venezia Giulia v Commission (T-288/97) and Land Oberösterreich and Austria v Commission (joined cases T-366/03 and T-235/04).
2. Background of the case
Under Belgian (constitutional) law, the BCR has the power to protect the environment. To that end, it is competent to regulate the use of plant protection products on its territory. In turn, the Belgian federal authority is competent to adopt decisions on the grant and renewal of authorisations to place a plant protection product on the market under Regulation 1107/2009. According to Belgian law, the regions are associated with the exercise of that competence. Because of this, the Belgian Approval Committee, in charge of issuing non-binding opinions before authorisation decisions are made, is composed of 12 members appointed by the Minister, including an expert from the BCR, presented by the Minister-President of the Government of the BCR.
In November 2016, the BCR issued an order banning the use of glyphosate on its territory on the consideration that the active substance is dangerous. This order is currently the subject of a pending action for annulment before Belgian courts, in which it is to be determined whether the total prohibition on the use of those products in the territory of the BCR is compatible with the approval of glyphosate at EU level and the authorisation of certain plant protection products containing that substance by the Belgian federal authority.
The contested EU measure, Commission Implementing Regulation 2017/2324 renewing the approval of glyphosate, was adopted on the basis of Regulation 1107/2009, and it had the effect of confirming that such active substance is safe, thereby contradicting the regulatory measure put in place by the BCR in 2016.
According to the BCR, its standing to challenge the Implementing Regulation before the General Court derives from two circumstances, namely that such Regulation (i) compromises the exercise of its powers in environmental matters under Belgian law, and (ii) conditions the result of the procedures at the federal level concerning the renewal of authorisations for the marketing of pesticides, in which the BCR has the power to participate.
The Commission submitted, on the contrary, that the contested measure has no impact on the applicant’s legal position for two main reasons. Firstly, because the Belgian federal authority had not yet issued the national marketing authorisation for the placing of products containing glyphosate in the Belgian market. Secondly, because the mutual recognition procedure provided for in Articles 40 to 42 of Regulation 1107/2009 requires the issue of a marketing authorisation by an authority of another Member State and a decision taken by the Belgian federal authority before the contested measure has any effect in respect of the applicant.
3. The General Court’s interpretation
In T-178/18, the General Court dismissed as inadmissible the action brought by the BCR against Commission Implementing Regulation 2017/2324 on the ground of lack of standing to bring proceedings, considering that the BCR was not directly concerned by the contested regulation.
This conclusion is based, firstly, on the consideration that under Article 32 of Regulation 1107/2009 the Commission’s renewal of the authorisation of an active substance does not entail the confirmation, extension or renewal of a marketing authorisation for plant protection products containing that substance, which is for the competent national authority to decide. From this perspective, the concern for the BCR would result from an intervention attributable to the Belgian State, which in turn may be challenged before national courts.
Secondly, the General Court found that no direct concern for the BCR results from the mutual recognition procedure provided for in Articles 40 to 42 of Regulation 1107/2009, because that mechanism does not create any automaticity and leaves a margin of discretion to the Member State to which a request for mutual recognition is addressed. The Belgian State could therefore refuse authorisation of a plan protection product containing glyphosate in its territory, if it considers that the establishment of national risk mitigation measures does not adequately address problems related to human or animal health or the environment. Also from this perspective, the concern for the BCR would not stem from the contested Commission Implementing Regulation, but from a decision attributable to the Belgian State in the exercise of its discretion.
Lastly, the General Court considered that the criterion of restriction of the exercise of autonomous competences under the Vlaams Gewest test was not fulfilled in the case at hand. According to the General Court, the fact that the contested regulation could raise the question whether a Member State or a regional authority is competent to prohibit the use of glyphosate, thereby creating objective uncertainty as to the legality of the BCR order 2016, is not sufficient to establish that it prevents the applicant from exercising the powers conferred on it by the Belgian constitutional order as it deems fit. In support of this finding, the General Court recalled inter alia that the BCR adopted its 2016 order in spite of the fact that, at the time, a previous Commission Implementing Regulation (2016/1056) with the same legal effects as Implementing Regulation 2017/2324 was in place.
4. The Advocate General’s take
4.1. The case at hand
In its Opinion on the case, released on 16 July 2020, AG Michal Bobek found that the General Court erred in law in declaring the action at first instance inadmissible on the ground that the BCR was not directly concerned. In essence, he considered that the General Court failed to apply the correct legal test to decide on the applicant’s standing, because it shifted the analysis to the examination of whether the contested regulation’s impact on the region’s participation in the authorisation procedures could be deemed sufficient for a finding of direct concern (the general test for any natural or legal person), instead of examining in depth whether the contested regulation prevented the BCR from exercising its autonomous powers in environmental matters (the Vlaams Gewest test).
According to the AG, if the Vlaams Gewest test had been applied, it would have led to the admissibility of the BCR’s action, because the contested implementing regulation produced legal effects altering the legal position of the BCR in at least four regards. First, it prevents the applicant from exercising, in the manner it sees fit, its autonomous powers to regulate the use of plant protection products in its territory. Second, the contested regulation required the Belgian authorities – including the BCR – to preserve the validity of existing authorisations for the entirety of the time required to complete the procedures for the renewal of those authorisations, thereby jeopardising the effectiveness of the 2016 BCR’s order. Third, the contested regulation triggered a procedure in which the BCR was required to participate, and in which it could not de jure or de facto make use of the prerogatives granted to it under the Belgian constitution. Fourth, the contested regulation also required the BCR to recognise, under the mutual recognition system, any authorisation granted by a Member State which belongs to the same zone, in spite of its concerns regarding the general harmful nature of glyphosate.
Moreover, the Opinion considers that the other standing criteria under the fourth paragraph of Article 263 TFEU were also fulfilled. In this regard, he suggests that the Court should find that the BCR was individually and directly concerned by the challenged measure (according to the strict Plaumann test, 25/62) and, additionally, that the challenged act was a regulatory measure not entailing implementing measures.
4.2. The standing of regions under Article 263 TFEU
In what is probably the most interesting part of his Opinion, Advocate General Bobek made a general reflection on the adequacy of the current framework for the access of regions and other federated entities to judicial review before the EU courts. Criticising the case law’s overly restrictive approach to the matter, he argued in favour of an opening in the interpretation of the criteria of direct concern for this category of atypical non-privileged applicants.
On this point, the Opinion stresses that federated entities of the Member States are, by their nature, simply not just any (private) natural or legal person, at least when they purport to challenge EU acts regarding areas which fall within their competence. Without suggesting that regions or other sub-state entities should be automatically equated with Member States as regards locus standi, AG Bobek called for an enhancement of their standing before the CJEU when, under the respective national constitution, they represent their Member State for all practical purposes with regard to the exercise of certain powers.
In this light, Advocate General Bobek suggested that federate entities should be granted standing before the CJEU whenever the contested measure has, at first sight, the consequence of jeopardising the exercise by them of their specific autonomous powers under national constitutional law. Far from spurring a revolution in absolute terms, this proposal consists of the application of the already existing Vlaams Gewest test, but in a more consistent manner and in an open spirit of loyal and sincere cooperation.
The AG’s proposal seems substantively balanced if one wonders whether regions would ever be directly concerned by EU measures if they are not in cases when such measures concern areas that those regions are tasked to implement and to uphold. Moreover, two structural reasons support the AG’s proposal (paragraphs 141-146):, the changes in the architecture of the EU Courts as a result of the Lisbon Treaty and the inadequacy of indirect actions as a means of judicial review in cases with complex, regulatory and technical issues, which require a rather extensive collection of evidence, expert opinion, or (scientific) data that are not available in preliminary reference procedures. Both elements advocate in favour of the admissibility of direct actions before the General Court, before the Court of Justice can address them on appeal. It is to be seen now whether the time for European regions as more active actors of the EU integration in the judicial arena has come.
Dolores Utrilla is Assistant Editor at EU Law Live and Associate Professor at the University of Castilla-La Mancha. She has dealt with the role of the regions in the EU integration in her book ‘Parlamentos regionales y control de subsidiariedad’ (Iustel, 2018), devoted to the participation of regional parliaments with legislative powers in the post-Lisbon subsidiarity Early Warning System.