# C_2020378EN.01004001.xml

| 9.11.2020 | EN | Official Journal of the European Union | C 378/40 |
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9.11.2020

EN

Official Journal of the European Union

C 378/40

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Action brought on 7 September 2020 — Stichting Comité N 65 Ondergronds Helvoirt v Commission

(Case T-569/20)

(2020/C 378/51)

Language of the case: Dutch

Parties

Applicant: Stichting Comité N 65 Ondergronds Helvoirt (Helvoirt, Netherlands) (represented by: T. Malfait and A. Croes, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | annul the Commission decision of 6 July 2020 by which the applicant’s request for an internal review of the decision to close complaint file CHAP (2019)2512 pursuant to Article 2(2) of Regulation (EU) No 1367/2006 was declared inadmissible; |
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annul the Commission decision of 6 July 2020 by which the applicant’s request for an internal review of the decision to close complaint file CHAP (2019)2512 pursuant to Article 2(2) of Regulation (EU) No 1367/2006 was declared inadmissible;

| — | return the file to the Commission so that it might declare it admissible and assess its substance; |
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return the file to the Commission so that it might declare it admissible and assess its substance;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

| 1. | First plea in law, alleging infringement of Article 1 and Article 9(2) and (3) of the Aarhus Convention, Article 216 TFEU, Article 1(1)(d), Article 2(1)(g) and (2) and Article 10 of Regulation (EU) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (‘the Aarhus Regulation’).






  — | In the contested decision, the Commission declares the applicant’s request for internal review inadmissible in so far as the request relates to an administrative act taken by the Commission as administrative review body. Such acts are excluded, under Article 2(1)(g) of the Aarhus Regulation, from the scope of the review procedure of Article 10 of the Aarhus Regulation. That decision is unlawful because the request for internal review relates to a Commission decision taken in the context of a complaint procedure, whereby it takes a purely interpretative position and thus does not act as an oversight body (such as in infringement proceedings, for example). The decision therefore does fall within the material scope of the review procedure of Article 10 of the Aarhus Regulation. |
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First plea in law, alleging infringement of Article 1 and Article 9(2) and (3) of the Aarhus Convention, Article 216 TFEU, Article 1(1)(d), Article 2(1)(g) and (2) and Article 10 of Regulation (EU) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (‘the Aarhus Regulation’).

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In the contested decision, the Commission declares the applicant’s request for internal review inadmissible in so far as the request relates to an administrative act taken by the Commission as administrative review body. Such acts are excluded, under Article 2(1)(g) of the Aarhus Regulation, from the scope of the review procedure of Article 10 of the Aarhus Regulation. That decision is unlawful because the request for internal review relates to a Commission decision taken in the context of a complaint procedure, whereby it takes a purely interpretative position and thus does not act as an oversight body (such as in infringement proceedings, for example). The decision therefore does fall within the material scope of the review procedure of Article 10 of the Aarhus Regulation.

| — | By its decision of inadmissibility, the Commission breaches the objectives of the Aarhus Regulation and the Aarhus Convention, in particular ensuring effective access to justice in environmental matters. |
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By its decision of inadmissibility, the Commission breaches the objectives of the Aarhus Regulation and the Aarhus Convention, in particular ensuring effective access to justice in environmental matters.

| — | In the alternative, if it were nevertheless to be held that, pursuant to Article 2(1)(g) of the Aarhus Regulation, a Commission decision following a complaint does not fall within the scope of the review procedure of Article 10 of the Aarhus Regulation (quod non), it must be held that Article 10 of the Aarhus Regulation in conjunction with Article 2(1)(g) thereof is contrary to the Aarhus Convention and accordingly should be disapplied by way of plea of illegality. |
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In the alternative, if it were nevertheless to be held that, pursuant to Article 2(1)(g) of the Aarhus Regulation, a Commission decision following a complaint does not fall within the scope of the review procedure of Article 10 of the Aarhus Regulation (quod non), it must be held that Article 10 of the Aarhus Regulation in conjunction with Article 2(1)(g) thereof is contrary to the Aarhus Convention and accordingly should be disapplied by way of plea of illegality.

| 2. | Second plea in law, alleging infringement of Article 5 of the Aarhus Convention, Articles 2 and 8 ECHR, Articles 2 and 7 of the Charter of Fundamental Rights of the European Union, Article 3(3), Article 9, Article 168(1) and Article 191(1) and (2) TFEU and Articles 6, 7, 23 of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (‘the Air Quality Directive’), as well as of Annex III and Annex XI, point B thereto.






  — | The Commission does not carry out a substantive assessment in the contested decision and accordingly fails to recognise that the Netherlands Government always assesses the air quality along busy roads that traverse build-up areas (such as in Helvoirt) at more than ten metres from the kerbside, as a result of which exceedances of air pollution standards at these locations are not registered, resulting in the known dangers to public health. This practice of the Netherlands is contrary to Annex II, Section C to the Air Quality Directive, which describes the assessment of air quality and the siting of sampling points, specifying in particular that that assessment is to be made at no more than ten metres from the kerbside, in so far as is practicable. |
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Second plea in law, alleging infringement of Article 5 of the Aarhus Convention, Articles 2 and 8 ECHR, Articles 2 and 7 of the Charter of Fundamental Rights of the European Union, Article 3(3), Article 9, Article 168(1) and Article 191(1) and (2) TFEU and Articles 6, 7, 23 of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (‘the Air Quality Directive’), as well as of Annex III and Annex XI, point B thereto.

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The Commission does not carry out a substantive assessment in the contested decision and accordingly fails to recognise that the Netherlands Government always assesses the air quality along busy roads that traverse build-up areas (such as in Helvoirt) at more than ten metres from the kerbside, as a result of which exceedances of air pollution standards at these locations are not registered, resulting in the known dangers to public health. This practice of the Netherlands is contrary to Annex II, Section C to the Air Quality Directive, which describes the assessment of air quality and the siting of sampling points, specifying in particular that that assessment is to be made at no more than ten metres from the kerbside, in so far as is practicable.

| — | The Commission also fails to recognise that the Netherlands Government classifies the area in question of Helvoirt as a rural area, even though it is indeed quite an urban area, and that the wrong modelling techniques are therefore being applied. This also has the consequence that exceedances of air pollution standards are not determined. |
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The Commission also fails to recognise that the Netherlands Government classifies the area in question of Helvoirt as a rural area, even though it is indeed quite an urban area, and that the wrong modelling techniques are therefore being applied. This also has the consequence that exceedances of air pollution standards are not determined.

| — | In addition, the Commission fails to recognise that, by this unlawful practice, not only are exceedances not recorded, but that as a consequence no air quality plan has yet been drawn up for the Helvoirt area, even though the Netherlands Government is obliged to do so pursuant to Article 23(1) of the Air Quality Directive. |
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In addition, the Commission fails to recognise that, by this unlawful practice, not only are exceedances not recorded, but that as a consequence no air quality plan has yet been drawn up for the Helvoirt area, even though the Netherlands Government is obliged to do so pursuant to Article 23(1) of the Air Quality Directive.

| — | Lastly, the Commission fails to recognise that, by this unlawful practice, the Netherlands Government adversely affects not only the right of every European Union citizen to access correct environmental information, but also the right of every European Union citizen to life and good health. |
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Lastly, the Commission fails to recognise that, by this unlawful practice, the Netherlands Government adversely affects not only the right of every European Union citizen to access correct environmental information, but also the right of every European Union citizen to life and good health.

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