International environmental law is often said to be toothless. The Aarhus Convention, too, is typically equated with fluffiness and the type of language (inter alia because of the high degree of deference to national law) typical of soft-law. Yet in Case T-338/08, the General Court at the Court of Justice of the EU (effectively a first instance court in cases such as these), annulled relevant decisions of the European Commission (‘EC’), finding them to be based on an improper implementation of the Aarhus Convention.
Stichting Natuur en Milieu and Pesticide Action Network Europe, had applied for internal EC review of the relevant Regulation which specifies maximum residue levels of pesticides for relevant food and feed products (the maximum levels being too lenient according to these NGOs). The argument upon which the applicants were successful (victory was not universal), concerned the narrow interpretation which EU law gives in relevant part to ‘acts’ which under Article 9 of the Aarhus Convention, must be subject to review by interested parties, to establish whether they infringe the environmental laws of the Aarhus Party concerned. EU law effectively restricts access to justice to those cases where interested parties take issue with measures of an individual scope (‘administrative acts’), as opposed to those of general application (‘acts’ full stop).
The General Court first of all established that the EC in the case at issue did not act in a legislative capacity (which would have made Article 9 Aarhus inoperable) but rather used its executive authority. Furthermore, notwithstanding the absence of definition of ‘act’ in the Aarhus Convention, the Court held that it cannot have limited itself to measures of individual scope only.
The EC may appeal with the Court of Justice; should it not do so, or should the Court confirm the General Court’s view, the EC first of all will have to reconsider the relevant Regulations, setting the maximum levels concerned. Moreover, it must surely take the initiative to amend the underlying Aarhus Regulation, so as to expand the notion of ‘act’ which is subject to internal review.
The judgment is a cautious step, for the access to justice provisions of the EU are generally said to infringe the Aarhus Convention on more than this issue alone.