Op-Ed: “A Missed Opportunity? The Judgment of the Court of Justice in Région de Bruxelles-Capitale v Commission” by Araceli Turmo
On 3 December 2020 the Court of Justice relinquished the opportunity presented in Région de Bruxelles-Capitale v Commission (C-352/19) to take a step towards a broader interpretation of the admissibility requirements applied to regional and federated entities within annulment procedures. The region had lodged an appeal against the order (T-178/18) in which the General Court found that its action for annulment against Commission Implementing Regulation 2017/2324 was inadmissible on the grounds that it was not directly concerned by this act. This Implementing Regulation renewed the approval of the active substance glyphosate in accordance with Regulation 1107/2009. As Dolores Utrilla noted in an earlier Analysis of the case published on EU Law Live, Advocate General Bobek had correctly identified this case as an opportunity to reform the locus standi of regional and federated entities under Article 263 TFEU. Indeed, this case illustrates the specific challenge of ensuring that the EU judicial system reflects the complexities of multilevel decision-making and implementation. Here, the effects of the regulatory system are skewed against the region: although the Implementing Regulation significantly reduces its ability to make a political decision, the General Court was able to quickly dismiss its claim under the existing admissibility requirements. AG Bobek suggested that, due to their specific constitutional status and role in implementing EU law, such federated entities and regions cannot be treated like ordinary litigants but should constitute a special category of semi-privileged applicants, with standing to challenge acts which affect their specific autonomous powers. In complete disagreement with its Advocate General, however, the Court confirmed the order of the General Court seemingly without any hesitation at all.
The Région de Bruxelles-Capitale had put forward two grounds of appeal. The first alleged that the General Court had failed to take into account Article 9 of the Aarhus Convention when interpreting Article 263 TFEU. Although AG Bobek had rightly noted that it seemed bizarre for a public authority to rely on this Convention, he had agreed that the claim had some merit, suggesting that the CJEU had previously interpreted the EU Treaties in light of international law (point 116 of the Opinion). This position was not entirely convincing as these previous references were to general principles such as those on the interpretation of treaties rather than to international agreements ratified by the EU itself – although more clarity on the nature and persuasive power of references to international law made by the CJEU would indeed be welcome (point 117). The Court however ruled that agreements ratified by the EU cannot prevail over primary law, therefore the Aarhus Convention can have no effect on the conditions of admissibility set out in Article 263 TFEU (paragraph 26 of the judgment).
The second ground of appeal challenged the General Court’s interpretation and application of the direct concern requirement for admissibility. First, the Court restates its interpretation of this requirement as requiring that the measure directly affect the legal situation of the individual and leave no discretion to its addressees entrusted with the task of implementing it (paragraph 30). Instead of engaging in a broad examination of the effects of the act at issue on the exercise of its powers by the region, the Court follows a strict, formal reasoning answering the specific arguments raised by the appellant. A number of the points made by the Court are based on the distinction between approvals of active substances and authorisations to place plant protection products on the market. Although the appellant and the AG rightly pointed out that renewing the approval of glyphosate made it substantially more difficult for a regional authority to regulate or ban the use of products containing this substance, both from a legal and political standpoint, the Court relies on the fact that these issues are formally separate. In response to the first part of this ground of appeal, the Court finds that the General Court was right to hold that the act at issue did not have the effect of confirming the validity of authorisations to place on the market plant protection products containing glyphosate (paragraph 36).
The appellant also contended that it was directly concerned by the act since it was required to participate in the federal procedure set up in Belgium to renew authorisations for plant protection products under Regulation 1107/2009. The Court does not explicitly engage with the Vlaams Gewest ‘test’ (from case Vlaams Gewest v Commission, T‑214/95) identified by AG Bobek (point 60 of the Opinion). Instead, it notes that the Member States’ obligation to decide on such renewals is a matter for the federal authority in Belgium. Because the region is only involved in an advisory committee and is not itself competent to establish product standards, its role ‘does not constitute a direct effect’ of the Regulation (paragraph 42 of the judgment). Hence, the appellant could not rely on the obligations which the Regulation creates for Member States in order to establish direct concern. The appellant further claimed that the General Court had not adequately assessed the impact of the act at issue on its competences due to the mutual recognition procedure provided for in Articles 40-42 of Regulation 1107/2009. The Court replies that the act at issue does leave some discretion to its addressees since the mutual recognition procedure does not automatically require national authorities to authorise plant protection products authorised in other Member States and, in any event, such a procedure is not the direct consequence of the approval of an active substance, which is only one of the requirements to which such an authorisation is subject (paragraphs 51-53). Here, too, the lack of automaticity, the existence of formal mechanisms in which national authorities have some discretion, however limited in practice, appears to be enough for the Court to reject direct concern.
The last part of the Court’s judgment is perhaps the most opaque. It deals with the appellant’s criticisms of paragraphs 66 to 77 of the order under appeal, which rejected the region’s argument based on the effects of the act at issue on the ongoing national proceedings concerning its 2016 Decree banning the use of glyphosate on its territory and, more broadly, on its competences under the Belgian Constitution. Once more, unlike AG Bobek, the Court sticks to a very strict reading of the claims put forward by the appellant. It maintains that the appellant did not make clear how the act at issue might affect the legality of the Decree, insisting that any political effects have no bearing on this assessment (paragraph 64). The Court’s reasoning here contains particularly terse statements to the effect that the legality of the Decree could not possibly be affected by a posterior act adopted by the EU (paragraph 63), that a misinterpretation of its own case law by the General Court would not in itself constitute an error in law (paragraph 62), and that even if the order was found to contradict a previous judgment of the General Court the appellant did not prove how this rendered the order unlawful (paragraph 65). Some of these statements seem surprising and would have deserved elaboration, although this does not necessarily affect the core of the Court’s reasoning focused on answering the precise claims presented in the appeal.
Where AG Bobek sought to illustrate the problems caused by the excessively formalistic approach to admissibility requirements, the Court rejected this approach and, by focusing on such formalistic criteria, was able to dismiss the appeal in a relatively short decision. The Court insists that direct concern can only be established under the conditions set out in previous case law and maintains a strict reading of the locus standi of regional authorities. AG Bobek’s analysis nevertheless remains pertinent. From a broader perspective, it is clear that the act at issue does have an impact on the region’s powers in a case such as this one and that the alternatives for litigation, such as a preliminary reference on validity, present significant disadvantages. As with the individual concern criterion, the Court’s strict interpretation of admissibility rules seems increasingly difficult to justify and ill-adapted to claimants such as the Région de Bruxelles-Capitale, whose constitutional status and role in implementing EU law is not currently recognised by the judicial system of the European Union.
Araceli Turmo is Senior Lecturer in EU Law at the University of Nantes. Her recent publications include ‘Immutabilité des actes juridictionnels et droit de l’Union européenne: poursuite de l’exploration des mécanismes nationaux de révision et de réexamen par la Cour de justice’, RAE (2019) 3, and ‘A Dialogue of Unequals – The European Court of Justice Reasserts National Courts’ Obligations under Article 267(3) TFEU’, EuConst (2019) 340.
Araceli is also a member of EU Law Live’s Editorial Board, and her bio can be accessed here.