1

On 1 September 2011, Ireland received, in accordance with Article 7(1) of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1), an application for approval of the active substance sulfoxaflor.

2

On 23 November 2012, Ireland submitted a draft assessment report to the European Commission assessing whether the active substance at issue could be expected to meet the approval criteria provided for in Article 4 of Regulation No 1107/2009.

3

Under Article 12(3) of Regulation No 1107/2009, the European Food Safety Authority (EFSA) requested that the applicant for approval supply additional information. The evaluation of the additional data by Ireland was submitted to EFSA in the format of an updated draft assessment report in January 2014.

4

On 12 May 2014, EFSA published its conclusions on the peer review of the pesticide risk assessment of the substance sulfoxaflor, in Regulation No 1107/2009. A new version of those conclusions was published by EFSA on 11 March 2015.

5

On 11 December 2014 the Commission presented to the Standing Committee on Plants, Animals, Food and Feed the review report for sulfoxaflor and a draft Regulation approving sulfoxaflor.

6

On 27 July 2015, the Commission adopted Implementing Regulation (EU) 2015/1295 approving the active substance sulfoxaflor, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 (OJ 2015 L 199, p. 8) (‘the contested act’).

7

By application lodged at the Registry of the General Court on 22 October 2015, the applicants, Pesticide Action Network Europe (PAN Europe), Bee Life European Beekeeping Coordination (Bee Life) and l’Unione nazionale associazioni apicoltori italiani (Unaapi), brought the present action.

8

By a separate document lodged at the Court Registry on 25 January 2016, the Commission raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court. The applicants lodged their observations on that plea on 11 March 2016.

9

By documents lodged at the Court Registry, on 31 March and 5 April 2016, respectively, the European Crop Protection Association (ECPA), and Dow AgroSciences Ltd and Dow AgroSciences Iberica SA sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.

10

The Commission contends that the Court should:

11

The applicants claim that the Court should:

12

Under Article 130(1) of the Rules of Procedure of the General Court, the Court may, if the defendant so requests, rule on inadmissibility or lack of competence without going to the substance of the case.

13

In that event, under Article 130(7) of the Rules of Procedure, the General Court is to decide on the application as soon as possible or, where special circumstances so justify, reserve its decision until it rules on the substance of the case.

14

In the present case, the Court considers that it has sufficient information from the documents before it and decides to give its decision without taking further steps in the proceedings.

15

The Commission disputes that the applicants have standing, in a number of respects. It contends, first, that the contested act does not concern the applicants directly and, secondly, that it does not concern them individually and that it entails implementing measures.

16

Under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

17

It is common ground that the applicants are not addressees of the contested act. Therefore, they can only have standing in the second or third situation contemplated in the fourth paragraph of Article 263 TFEU. As those two situations require that the contested act be of direct concern to the applicants, that condition should be examined first.

18

With regard to the condition of direct concern, it is settled case-law that that condition requires, first, that the contested measure affect the individual’s legal situation directly and, secondly, that the addressees of that measure who are entrusted with the task of implementing it be left with no discretion, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules (judgments of 5 May 1998, Dreyfus v Commission, C‑386/96 P, EU:C:1998:193, paragraph 43; of 29 June 2004, Front national v Parliament, C‑486/01 P, EU:C:2004:394, paragraph 34; and of 10 September 2009, Commission v Ente per le Ville vesuviane and Ente per le Ville vesuviane v Commission, C‑445/07 P and C‑455/07 P, EU:C:2009:529, paragraph 45).

19

Furthermore, whilst it is true, as the applicants observe, that the fourth paragraph of Article 263 TFEU is not a copy of the former Article 230 EC, the fact remains that, since the condition of direct concern in the fourth paragraph of Article 263 TFEU was not altered, the case-law referred to in paragraph 18 above also applies in the present case (see, to that effect, orders of 9 July 2013, Regione Puglia v Commission, C‑586/11 P, not published, EU:C:2013:459, paragraph 31; of 15 June 2011, Ax v Council, T‑259/10, not published, EU:T:2011:274, paragraph 21; and of 12 October 2011, GS v Parliament and Council, T‑149/11, not published, EU:T:2011:590, paragraph 19).

20

In that regard, in the first place, the Commission contends that the mechanism established by the applicable regulatory framework in the present case precludes the applicants from being directly concerned by the contested act. In particular, the Member States do not, it is contended, act automatically in the authorisation procedure; on the contrary, they enjoy a considerable discretion and margin for manoeuvre, in particular in terms of the complex technical assessment and the determination of the conditions of authorisations specific to the situation in their territory and the zone they belong to.

21

In the second place, the Commission states that, even on the assumption that in future a Member State would grant an authorisation for a plant protection product containing sulfoxaflor, the possible effects of such an authorisation on the situation of the applicants would be factual in nature only and their rights and obligations, and therefore their legal position, would not be affected in any way.

22

First, the applicants claim that the approval of the active substance sulfoxaflor by the contested regulation has direct legal effects.

23

Secondly, the applicants claim that it follows from the case-law of the Courts of the European Union that individuals must be regarded as directly concerned by an act not only if that act directly affects their legal situation, but also where it affects their factual situation.

24

The purpose of the contested act is to approve, subject to certain conditions, the active substance sulfoxaflor as an ingredient of plant protection products under Regulation 1107/2009 and the inclusion of that substance in the Annex to Commission Implementing Regulation (EU) No 540/2011 of 25 May 2011 implementing Regulation (EC) No 1107/2009 of the European Parliament and of the Council as regards the list of approved active substances (OJ 2011 L 153, p. 1).

25

The approval of sulfoxaflor and its inclusion on the list of approved active substances have the legal consequence of enabling Member States, subject to a series of additional conditions set out in Article 29 of Regulation No 1107/2009, to authorise the placing on the market of plant protection products containing sulfoxaflor, if a request to that effect is made.

26

It is therefore on the legal situation of the Member States, and on that of potential applicants for authorisations to place plant protection products containing sulfoxaflor on the market, that the contested act has a direct effect, within the meaning of the case-law referred to in paragraph 18 above.

27

None of the arguments submitted by the applicants, moreover, can call into question the finding that the contested act has neither the purpose nor the consequence of granting rights or imposing obligations on subjects other than the Member States and the potential applicants for authorisations to place products on the market.

28

The applicants claim that the approval of the active substance sulfoxaflor by the contested regulation has direct legal effects on the members of Unaapi, by definitively determining, for example, acceptable exposure levels and conditions for the mitigation of risks. Thus, given the harmful effect of sulfoxaflor on bees, its approval would represent a threat to beekeepers’ producing activities and therefore have legal effects on the right to property and their right to conduct a business.

29

In that regard, it is apparent from the case-file that Unaapi is an Italian beekeepers association that aims to promote, protect and enhance from every point of view, Italian beekeeping, with assistance, coordination and representation of beekeepers and beekeeping associations. Specifically, Unaapi seeks to represent the interests of beekeepers in relation to institutions and administrations at national and international level.

30

It should be noted, in this connection, that the actions brought by representative associations such as Unaapi are admissible, inter alia, according to the case-law, where they represent the interests of their members who have standing (see, to that effect, orders of 30 September 1997, Federolio v Commission, T‑122/96, EU:T:1997:142, paragraph 61; of 28 June 2005, FederDoc and Others v Commission, T‑170/04, EU:T:2005:257, paragraph 49; and judgment of 18 March 2010, Forum 187 v Commission, T‑189/08, EU:T:2010:99, paragraph 58). In the present case, it is therefore necessary to ascertain whether the members of Unaapi are directly concerned by the contested act.

31

In addition, as regards the alleged legal effects on the rights of members of Unaapi to property and to conduct a business, the applicants claim that the approval of sulfoxaflor would represent a threat to their production activity.

32

First, in that regard, it suffices to note that, assuming that the use of plant protection products containing sulfoxaflor is actually likely to endanger the business activities of Unaapi members, those economic consequences do not concern their legal situation, but only their factual situation (see, to that effect, judgment of 27 June 2000, Salamander and Others v Parliament and Council, T‑172/98 and T‑175/98 to T‑177/98, EU:T:2000:168, paragraph 62, and order of 11 July 2005, Bonino and Others v Parliament and Council, T‑40/04, EU:T:2005:279, paragraph 56).

33

Second, it should be noted that that alleged danger also presupposes the authorisation by a Member State of a plant protection product containing sulfoxaflor. As the Commission has correctly pointed out, the grant of such an authorisation is not an automatic consequence of the approval of sulfoxaflor. The Member States have considerable discretion and room for manoeuvre when examining the authorisation conditions set out in Article 29 of Regulation No 1107/2009. Furthermore, the heading ‘Specific provisions’ in Annex I to Implementing Regulation No 540/2011, as amended by the contested act, contains additional and specific criteria to be assessed by the Member State when considering an application for authorisation. As the Commission observed, the risk to bees will depend on the conditions of use of a particular product laid down in the authorisations granted by the Member States. Consequently, the effect of the contested act on the right to property and on the business activities of Unaapi members, even if it can be described as being legal, cannot, in any event, be defined as direct.

34

For the same reason, the applicants’ arguments based on the alleged inclusion, in particular in the case-law concerning state aid, of a purely factual effect within the category of direct concern, must also be rejected.

35

The same considerations apply as regards acceptable exposure levels and conditions for the mitigation of risks, which the applicants claim are definitively determined by the contested act. If those levels and those conditions are in fact liable to endanger the business activities and hives belonging to members of Unaapi, they can have such specific effects only in the uncertain event that Member States authorise plant protection products containing sulfoxaflor.

36

Consequently, Unaapi members cannot rely on alleged infringements of their property rights and their right to conduct business in order to assert that they are directly concerned by the contested act.

37

The applicants claim that the contested act has a direct impact on the objectives pursued by the European campaign regarding the protection of bees against harmful insecticides such as sulfoxaflor, conducted by PAN Europe and Bee Life, and for that reason it directly affects those two applicants.

38

In that regard, first of all, it is apparent from the application that PAN Europe is a pan-European environmental protection organisation active in 24 countries, of which 21 are members of the European Union. Under its articles of association, it has the objective, inter alia, of promoting activities to reduce or eliminate the use of pesticides. Likewise, it is apparent from the case-file that Bee Life is an environmental protection organisation. Thus, according to its articles of association, it has the goal, inter alia, of revealing and solving the environmental problems of pollinating insects, in particular of honey bees, and striving for a better protection of the environment, particularly for agriculture compatible with the wellbeing of pollinators and biodiversity.

39

In addition, it should be pointed out that, according to settled case-law, environmental protection organisations, such as PAN Europe and Bee Life, are entitled to effective judicial protection of the rights they derive from the EU legal order, but the right to such protection cannot call into question the conditions laid down for all natural or legal persons in the fourth paragraph of Article 263 TFEU (see order of 24 September 2009, Município de Gondomar v Commission, C‑501/08 P, not published, EU:C:2009:580, paragraph 38 and the case-law cited; order of 13 March 2015, European Coalition to End Animal Experiments v ECHA, T‑673/13, EU:T:2015:167, paragraph 63).

40

In the present case, first, it suffices to note that the contested act does not affect the right of PAN Europe and Bee Life to conduct campaigns to pursue any environmental objective they may choose but that, on the other hand, environmental protection organisations have no right, in the legal order of the European Union, that protects the objectives of their campaigns from being influenced by acts of the European Union. Therefore, in so far as the contested act has an impact on the objective of the campaign led by PAN Europe and Bee Life, it would, in any event, only be a factual and not a legal impact.

41

Secondly, as stated above, since actual use of plant protection products containing sulfoxaflor is dependent on the uncertain authorisation of such products by the Member States, the possible effects of the contested act on the objectives of the campaign led by PAN Europe and Bee Life would only be indirect.

42

Consequently, PAN Europe and Bee Life cannot rely on the alleged effects of the contested act on the campaign led by them to claim that they are directly concerned by that act.

43

The applicants claim that Bee Life has standing because of its participation in the decision-making process. In that regard, Bee Life has submitted, under Article 12 of Regulation No 1107/2009, written observations on the draft assessment report on sulfoxaflor.

44

It suffices to observe, in that regard, that in some cases, of course, the fact that an applicant has participated in the administrative procedure leading to the adoption of the contested act made 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 (see, to that effect, judgments of 19 May 1994, Air France v Commission, T‑2/93, EU:T:1994:55, paragraphs 44 and 47, and of 6 July 1995, AITEC and Others v Commission, T‑447/93 to T‑449/93, EU:T:1995:130, paragraph 36). However, such participation does not support the conclusion that the act in question directly affects an applicant.

45

Consequently, Bee Life cannot rely on the fact that it lodged written observations on the draft assessment report on sulfoxaflor in order to assert that it is directly concerned by the contested act.

46

The applicants claim that, for the interpretation of the requirement of direct concern, account should be taken of their rights to environmental protection and to effective judicial protection, as laid down respectively in Article 37 and Article 47 of the Charter of Fundamental Rights of the European Union, which, pursuant to Article 6(1) TEU, has the same legal value as the European Union Treaties, which should lead to an interpretation of the fourth paragraph of Article 263 TFEU that allows them to bring appeal proceedings for annulment in environmental matters before the Courts of the European Union. It follows from the case-law of the General Court, that the application of higher-ranking general principles of European Union law can lead, in certain circumstances, to a broader interpretation of the requirements for admissibility.

47

In that regard, in so far as the applicants rely on Article 37 of the Charter of Fundamental Rights, it suffices to observe that that article 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.

48

The Charter of Fundamental Rights distinguishes between principles and rights, as is apparent, for example, in the second sentence of Article 51(1), and in Article 52(2) and (5) thereof. The Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), which, according to Article 52(7) thereof ‘shall be given due regard by the Courts of the Union’, provide moreover, with regard to Article 52(5) of the Charter of Fundamental Rights, that the principles may be implemented through legislative or executive acts adopted by the European Union in accordance with its powers, and by the Member States only when they implement EU law. Accordingly, those principles become significant for the courts only when such acts are interpreted or reviewed but, on the other hand, do not give rise to direct claims for positive action by the European Union’s institutions or Member States’ authorities. This is consistent both with the case-law of the Court of Justice and with the approach of the Member States’ constitutional systems to ‘principles’. In that regard, those Explanations cite, inter alia, by way of illustration, Article 37 of the Charter of Fundamental Rights.

49

As regards Article 47 of the Charter of Fundamental Rights, moreover, it is settled case-law that that provision 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, as is apparent also from the Explanation referring to that article, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the interpretation of the Charter (see, to that effect, judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 42; of 18 July 2013, Alemo-Herron and Others, C‑426/11, EU:C:2013:521, paragraph 32; and of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97).

50

Thus, the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, but such an interpretation cannot have the effect of setting aside those conditions, which are expressly laid down in that Treaty (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 98 and the case-law cited).

51

It is, of course, true, as the applicants submit, that they have not argued that Article 47 of the Charter of Fundamental Rights should replace the fourth paragraph of Article 263 TFEU, but that the latter provision, and in particular the criterion of direct concern, should be interpreted less strictly, in accordance with the former provision. However, it does not appear that the guarantee granted under Article 47 of the Charter of Fundamental Rights goes beyond the guarantees already granted under EU law, as reflected, in particular, in the case-law cited in paragraph 18 above. Moreover, the applicants themselves did not claim that that was the case.

52

It follows that the applicants cannot rely on Article 37 and Article 47 of the Charter of Fundamental Rights in order to challenge 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.

53

The applicants claim that the General Court should interpret the fourth paragraph of Article 263 TFEU in the light of the United Nations Economic Commission for Europe (UNECE) Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed at Aarhus (Denmark) on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1) (‘the Aarhus Convention’).

54

In particular, the applicants rely on Article 9(3) of the Aarhus Convention, which provides that ‘each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’. They infer from that provision that the condition relating to direct concern laid down in the fourth paragraph of Article 263 TFEU should be interpreted in such a way as to ensure effective judicial protection and access to justice in environmental matters, for the benefit of the public and environmental organisations.

55

First, in that regard, it must be noted that, pursuant to Article 216(2) TFEU, international agreements concluded by the European Union bind its institutions and consequently prevail over acts of secondary EU legislation (judgments of 3 June 2008; Intertanko and Others, C‑308/06, EU:C:2008:312, paragraph 42; of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 52; and of 13 January 2015, Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe, C‑404/12 P and C‑405/12 P, EU:C:2015:5, paragraph 44).

56

It follows that the international agreements concluded by the European Union, including the Aarhus Convention, 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 agreement.

57

Secondly, it follows from the settled case-law of the Court of Justice that the provisions of an international agreement to which the European Union is a party can be directly relied on by individuals if, first, the nature and the broad logic of that agreement do not preclude it and, secondly, those provisions appear, as regards their content, to be unconditional and sufficiently precise (see judgments of 14 December 2000, Dior and Others, C‑300/98 and C‑392/98, EU:C:2000:688, paragraph 42, and of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 54 and the case-law cited).

58

The Court has already held that Article 9(3) of the Aarhus Convention did not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals and therefore did not fulfil those conditions. Since only members of the public who ‘meet the criteria, if any, laid down in national law’ are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure (judgments of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 45, and of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 55).

59

Consequently, individuals cannot rely directly on Article 9(3) of the Aarhus Convention before the Courts of the European Union.

60

Thirdly, in any event, it should be pointed out that the applicants have failed to demonstrate that the fourth paragraph of Article 263 TFEU, as interpreted by the Courts of the European Union, was 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.

61

It follows that the applicants’ arguments based on the Aarhus Convention must be dismissed.

62

It follows from the above that no provision of the contested act is directly applicable to the applicants, in the sense that it would confer rights or impose obligations on them. Consequently, the contested act does not affect their legal position, and therefore the condition of direct concern, as referred to in the second and third situation referred to in the fourth paragraph of Article 263 TFEU, is not met.

63

As the contested act is not addressed to the applicants (see paragraph 17 above), the application must therefore be dismissed as inadmissible, without it being necessary to examine the other conditions of admissibility.

64

In accordance with Article 142(2) of the Rules of Procedure, the intervention is ancillary to the main proceedings and becomes devoid of purpose, inter alia, when the application is declared inadmissible.

65

Consequently, there is no need to adjudicate on the applications to intervene from ECPA, Dow AgroSciences and Dow AgroSciences Iberica.

66

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

67

As the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the latter.

68

Under Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before the application for leave to intervene has been decided upon, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene.

69

In the present case, the applicants, the Commission, the ECPA, Dow AgroSciences and Dow AgroSciences Iberica must bear each their own costs, therefore, in relation to the applications to intervene from the ECPA, Dow AgroSciences and Dow AgroSciences Iberica.

On those grounds,

THE GENERAL COURT (First Chamber),

Hereby orders: