Case T‑600/15

Pesticide Action Network Europe (PAN Europe) and Others

v

European Commission

‛Actions for annulment — Plant-protection products — Active substance sulfoxaflor — Inclusion in the Annex to Implementing Regulation (EU) No 540/2011 — Lack of direct concern — Inadmissibility’

Summary — Order of the General Court (First Chamber), 28 September 2016

1. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — Commission Regulation approving a plant protection product containing the active substance sulfoxaflor — Action brought by an association of beekeepers and environmental protection organisations — Not directly concerned — Inadmissibility

   (Art. 263, fourth para., TFEU; European Parliament and Council Regulation No 1107/2009; Commission Regulations No 540/2011 and 2015/1295)

2. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Criteria — Participation in the decision-making process — Not sufficient for a finding directly affected

   (Art. 263, fourth para., TFEU; European Parliament and Council Regulation No 1107/2009; Commission Regulations No 540/2011 and 2015/1295)

3. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — No possibility of calling the conditions for admissibility into question by invoking the principle of protection of the environment and the right to effective judicial protection

   (Art. 263, fourth para., TFEU; Charter of Fundamental Rights of the European Union, Arts 37 and 47)

4. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — No possibility of calling the conditions for admissibility into question by invoking the convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention)

   (Arts 216(2) TFEU and 263, fourth para., TFEU; Aarhus Convention, Art. 9(3))

1.  An association of beekeepers and environmental protection organisations are not directly affected, within the meaning of the fourth paragraph of Article 263 TFEU, and therefore do not have standing to bring an action for annulment of Implementing Regulation No 2015/1295, approving the active substance sulfoxaflor, in accordance with Regulation No 1107/2009 concerning the placing of plant protection products on the market, and amending the Annex to Implementing Regulation No 540/2011.

   Implementing Regulation No 2015/1295, the purpose of which is to approve, subject to certain conditions, the active substance sulfoxaflor as an ingredient of plant protection products under Regulation No 1107/2009 and the inclusion of that substance in the Annex to Regulation No 540/2011 as regards the list of approved active substances, has a direct effect on the legal situation of the Member States, which have the possibility of authorising the placing on the market of plant protection products containing sulfoxaflor, if a request to that effect is made, and on the legal situation of applicants for marketing authorisations for such products, but not on the legal situation of that association and those organisation.

   As regards the legal effects of that regulation on the rights of members of the said beekeepers’ association to property and to conduct a business, even if the use of plant protection products containing sulfoxaflor were actually likely to endanger the business activities of those members, those economic consequences concern not their legal situation, but only their factual situation. Second, that alleged danger also presupposes the authorisation by a Member State of a plant protection product containing sulfoxaflor. The grant of such an authorisation is not an automatic consequence of the approval of sulfoxaflor but is subject to the exercise, by the Member States, of a considerable discretion and room for manoeuvre.

   Similarly, as regards the campaign objectives of environmental protection organisations, in so far as the contested act has an impact on such objectives, it would, in any event, only be a factual and not a legal impact.

   (see paras 24-26, 31-33, 40-42, operative part 1)

2.  When assessing the capacity of an applicant to bring an action for annulment of an EU act, whilst, in certain cases, the fact that an applicant has participated in the administrative procedure leading to the adoption of the contested act makes it possible, together with other circumstances, to define that applicant as being individually concerned by that act, within the meaning of the fourth paragraph of Article 263 TFEU, such participation does not support the conclusion that the act in question directly affects an applicant.

   (see para. 44)

3.  Articles 37 and 47 of the Charter of Fundamental Rights do not call into question the interpretation of the fourth paragraph of Article 263 TFEU and, in particular, the criterion of direct concern, resulting from the established case-law of the Courts of the European Union.

   Article 37 only contains a principle providing for a general obligation on the European Union in respect of the objectives to be pursued in the framework of its policies, and not a right to bring actions in environmental matters before the Courts of the European Union. Article 47 is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union.

   (see paras 47, 49, 52)

4.  International agreements concluded by the European Union, including the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, do not have primacy over EU primary law, with the result that derogation from the fourth paragraph of Article 263 TFEU cannot be accepted on the basis of that convention.

   Moreover, Article 9(3) of the Aarhus Convention does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals. Consequently, individuals cannot rely directly on Article 9(3) of the Aarhus Convention before the Courts of the European Union.

   Finally, the fourth paragraph of Article 263 TFEU, as interpreted by the Courts of the European Union, is not incompatible with Article 9(3) of the Aarhus Convention. It is, in fact, the Aarhus Convention itself, when it refers to members of the public who ‘meet the criteria, if any, laid down [in] national law’, which makes the rights that Article 9(3) is supposed to give to members of the public conditional upon meeting the eligibility criteria arising under the fourth paragraph of Article 263 TFEU.

   (see paras 56, 58-60)