Order;Information — ECLI:EU:T:2021:687
Date: 2021-10-08
Language of the case: English
Court formation: President of the Chamber
Subject matter: Environment
Procedure: Action for annulment;Application for interim measures - unfounded
Origin: Germany;United Kingdom;Italy;Portugal

summary of the seven pleas in law relied on by the applicants in support of their action were also made public. 5 By document lodged at the Court Registry on 12 July 2021, ClientEarth LBG and ClientEarth AISBL applied for leave to intervene in support of the form of order sought by the Commission. 6 The applicants and the Commission were notified of that application in accordance with Article 144(1) of the Rules of Procedure. 7 By document lodged at the Court Registry on 27 August 2021, the applicants submitted, in essence, that ClientEarth LBG and ClientEarth AISBL had failed to demonstrate a direct interest in the result of the present case. The Commission did not lodge any observations in relation to the application to intervene. 8 By separate document lodged at the Court Registry on 8 September 2021, the applicants applied for the confidential treatment of certain information contained in the reply and in its annexes with regard, notably, to ClientEarth LBG and ClientEarth AISBL. Law 9 Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof, any person establishing an interest in the result of a case, other than a dispute between Member States, between institutions of the Union or between Member States and institutions of the Union, may intervene in that case (order of the President of the Court of 12 March 2019, Germany v Esso Raffinage, C‑471/18 P, not published, EU:C:2019:198, paragraph 12). 10 It is settled case-law that the concept of ‘an interest in the result of a case’, within the meaning of that provision, must be defined in the light of the subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law put forward or the arguments raised. The term ‘the result of the case’ refers to the final decision sought, as set out in the operative part of the future judgment (order of the President of the Court of 12 March 2019, Germany v Esso Raffinage, C‑471/18 P, not published, EU:C:2019:198, paragraph 13 and the case-law cited). 11 Thus, when ruling on an application for leave to intervene opposed by one of the main parties, the Court is required, in particular, to ascertain whether the party applying for leave to intervene is directly affected by the contested act and whether his or her interest in the result of the case is established (see, to that effect, order of 15 June 2020, Chemours Netherlands v ECHA, T‑636/19, not published, EU:T:2020:276, paragraph 12 and the case-law cited). 12 As regards specifically environmental protection organisations, the condition that there must be an ‘interest in the result of the case’ within the meaning of Article 40 of the Statute of the Court of Justice thus assumes, first, that the remit of those organisations, as derived from their objective laid down, as the case may be, in their articles of association, has a sufficiently direct link with the subject matter of that case and, second, that that case raises questions of principle which are liable to affect the interests defended by the organisations in question (see orders of 7 February 2019, Bayer CropScience and Bayer v Commission, C‑499/18 P, not published, EU:C:2019:107, paragraph 6 and the case-law cited, and of 12 March 2019, Germany v Esso Raffinage, C‑471/18 P, not published, EU:C:2019:198, paragraph 25). 13 According to case-law, as regards an application for leave to intervene submitted by organisations for the protection of the environment, their direct, existing interest in the result of the case may be based, inter alia, on the fact that the remit of those environmental protection organisations coincides with that of the region and sector concerned by the proceedings before the Court or, where their remit is wider, on the fact that they are actively involved in protection programmes or studies relating to the region and sector concerned, the subject matter or objective of which may be affected, as the case may be, by the adoption or, conversely, the annulment of the contested act (see, to that effect, order of 15 June 2020, Chemours Netherlands v ECHA, T‑636/19, not published, EU:T:2020:276, paragraph 15 and the case-law cited). 14 The application for leave to intervene submitted by ClientEarth LBG and ClientEarth AISBL is to be examined in the light of that case-law. 15 Thus, in the first place, it must be ascertained whether the remit of ClientEarth LBG and of ClientEarth AISBL has a sufficiently direct link with the subject matter of the present case. This will be so where their remit coincides with that of the region and sector concerned by the proceedings before the Court or, if their remit is wider, where they are actively involved in protection programmes or studies relating to the region and sector concerned, the subject matter or objective of which may be affected by the annulment of the contested regulation. 16 It is apparent from the application to intervene, in particular, that ClientEarth LBG is a charitable organisation registered in the United Kingdom (Registered UK Charity and Private Company Limited by Guarantee). It also had a registered branch in Belgium. During the course of 2018, ClientEarth AISBL, an international non-profit association, was established in Brussels (Belgium). From 29 November 2018, it took over the activities of the Brussels branch of ClientEarth LBG. Both organisations are very closely linked and they operate under the same name, as part of the ClientEarth group (hereafter, references to ‘ClientEarth’ encompass both ClientEarth LBG and ClientEarth AISBL). Pursuant to the bylaws of each organisation, their objectives cover essentially: promoting, assisting, undertaking, and commissioning research into law, practice, and the administration of justice, in connection with the environment and matters relating thereto, including the impact, direct or indirect, of any human activity on the environment. The objectives of ClientEarth LBG and ClientEarth AISBL include educating and informing the public in matters connected to the environment. 17 In their observations on the application to intervene, the applicants state that ‘the fight against plastic pollution in the marine environment, and notably the need in that respect for markings … on single use beverage cups … is not at all part of ClientEarth’s objectives or activities as stipulated in its articles of association’. However, the bylaws of both ClientEarth LBG and ClientEarth AISBL are drafted in wide terms, encompassing activities that necessarily tackle environmental protection caused by plastic waste. 18 Admittedly, therefore, the remit of ClientEarth LBG and ClientEarth AISBL, while covering environmental pollution caused by plastic waste, is wider than the sector concerned by the proceedings before the Court. 19 Hence, it must be examined whether ClientEarth LBG and ClientEarth AISBL are actively involved in protection programmes or studies relating to the sector concerned, the subject matter or objective of which may be affected by the annulment of the contested regulation. 20 First, the report ‘Risk unwrapped: plastic pollution as a material business risk’ dated July 2018, written by ClientEarth (Annex L.7 to the application to intervene), states that the organisation’s activities include tackling plastic pollution as a threat to human health and the marine environment. 21 Second, under their respective bylaws, ClientEarth LBG and ClientEarth AISBL enjoy a power to promote their objectives by, notably, ‘working together with other organisations to seek to influence public opinion and make representation to and seek to influence governmental and other bodies and institutions regarding the reform, development and implementation of appropriate policies’. In their application to intervene the two organisations claim, without being contradicted on this point by the applicants, in the context of their closely linked activities within the ClientEarth group, that they are part of the Rethink Plastic alliance, a coalition working towards a future free of plastic pollution. 22 Third, the study ‘Moving away from single-use – Guide for national decision makers to implement the single-use plastics directive’ (attached to the application to intervene as Annex L.5) demonstrates that ClientEarth LBG and ClientEarth AISBL’s activities as part of the Rethink Plastic alliance focus on the reduction of plastic consumption, labelling and marking obligations to inform consumers of more appropriate use and disposal and to work with waste management authorities on dealing with the collection of plastic waste. The study proposes a programme of activities with regard to the design requirements and marking specifications for single-use plastic cups and Article 7 of that directive on improving consumer information and raising awareness. In this regard, the study includes statements to the effect that certain text should no longer be used for the purposes of labelling, because of the potential to mislead consumers. The authors also state that ‘marking should be clear and legible, with a specific label to note the presence of plastic. Consumer information should be easy to digest (e.g. through colour coding) and harmonised at EU level. Symbols should be a different colour to any background colour or artwork so that it contrasts strongly, and any text or symbol should be a solid colour (not an outline) to maximise visibility. A minimum size for the text or symbol should be set’. They go on to stipulate that symbols or artwork should contrast with any background and that marking should be on both the item itself and the packaging, and should contribute to promoting relevant alternatives. 23 Fourth, the study ‘Local guidance for implementing the single-use plastics directive’ (Annex L.6 to the application to intervene), commissioned inter alia by the Rethink Plastic alliance on behalf of the members of the coalition including ClientEarth, indicates that the objective of informing consumers of appropriate waste disposal measures could be achieved by marking such items in an accessible, consistent and clear manner. 24 Fifth, in the study ‘Risk unwrapped: plastic pollution as a material business risk’ dated July 2018, written by ClientEarth (Annex L.7 to the application to intervene), the organisation highlights that informing consumers about biodegradable packaging and reusing ‘coffee cups’ is part of its strategy for tackling plastic waste. In that respect, the programme, which ClientEarth suggests that businesses should adopt, emphasises the need to label single-use plastic items in order to ensure consumers are informed of appropriate waste disposal measures and the environmental impact. 25 Furthermore, it follows from paragraph 2 of the letter of 27 May 2021 from ClientEarth and Rethink Plastic to the Commission (set out in Annex L.3 to the application to intervene) that ClientEarth continues to be engaged in the implementation of Directive 2019/904 at both EU and national levels. 26 The information in paragraphs 15 to 25 above establishes that, contrary to the applicants’ claims, ClientEarth LBG and ClientEarth AISBL have produced sufficient evidence to show that they are involved in activities and programmes concerning tackling pollution caused by plastics, in particular single-use plastic products, such as plastic cups, as well as campaigning for the labelling or marking of such products to encourage consumers to limit their use and to dispose of single-use plastic products in an environmentally responsible manner. 27 In the second place, in accordance with the second condition set out in the case-law mentioned in paragraph 12 above, it must be examined whether the present case raises questions of principle, in that if the application to annul the contested regulation and/or the plea of illegality regarding Article 7 of Directive 2019/904 is successful, the interests defended by the organisations in question, notably informing consumers of the harmful consequences on the environment of litter caused by single-use plastic, will be affected. 28 The contested regulation, as well as Directive 2019/904, are the first legally binding acts of the European Union aimed at tackling the environmental aspects of single-use plastic products. 29 As regards in particular the plea of illegality concerning Article 7 of Directive 2019/904 and Part D of the annex thereto, ClientEarth LBG and ClientEarth AISBL state in the application to intervene that, if the applicants in the present case succeed, ‘a very important instrument to prevent plastic pollution and protect the environment’ would be removed and marking specifications which aim at ensuring appropriate waste disposal of such products would be jeopardised, thus resulting in the negative impact of littering or other inappropriate means of waste disposal of such products on the environment. 30 Thus, the present case raises matters of principle, which the organisations in question have defended through their activities, studies and programmes. 31 Moreover, taking into account the issues in the present case, it is in the interest of the sound administration of justice that both the Court and the main parties not only benefit from the observations submitted by the various industry actors, by their representative associations or by environmental organisations on specific aspects of the assessments concerning the contested acts, but also that the Court and the main parties are in a position to comment on all the observations submitted on those aspects of the case. Such observations, taken both individually and as a whole, allow the Court, as provided for in the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and within the limits of the forms of order sought by the main parties, to be as well informed as possible in order to rule on the case before it (see, to that effect, order of 23 September 2019, Google and Alphabet v Commission, T‑604/18, not published, EU:T:2019:743, paragraph 48). 32 It must therefore be concluded that the conditions spelled out in the case-law cited in paragraphs 12 and 13 above are fulfilled. 33 Consequently, ClientEarth LBG and ClientEarth AISBL’s application to intervene must be granted. The request for confidential treatment 34 The applicants have applied, in accordance with Article 144(2) of the Rules of Procedure, for certain confidential information in the file not to be communicated to ClientEarth LBG and ClientEarth AISBL and has submitted, for the purposes of communication, a non-confidential version of the pleadings and documents in question. 35 At this stage, the communication to ClientEarth LBG and ClientEarth AISBL of procedural documents served and, as the case may be, to be served on the parties must therefore be confined to a non-confidential version. A decision on the merits of the application for confidential treatment will, if necessary, be taken at a later stage in the light of any objections or observations which may be submitted in that regard. Costs 36 Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order closing the proceedings. The present order does not close the proceedings either in respect of ClientEarth LBG and ClientEarth AISBL or in respect of the other parties to the proceedings. The costs must therefore be reserved. On those grounds, THE PRESIDENT OF THE TENTH CHAMBER OF THE GENERAL COURT hereby orders: 1. ClientEarth LBG and ClientEarth AISBL are granted leave to intervene in Case T‑148/21 in support of the form of order sought by the European Commission. 2. The Registrar shall provide ClientEarth LBG and ClientEarth AISBL with a non-confidential version of each procedural document served on the main parties. 3. A period shall be prescribed within which ClientEarth LBG and ClientEarth AISBL may submit a statement in intervention without prejudice to the possibility of supplementing that statement at a later date, should the need arise, following a decision on the merits of the application for confidential treatment. 4. A time-limit shall be fixed by which ClientEarth LBG and ClientEarth AISBL may submit any objections regarding the application for confidential treatment. The decision on the merits of that application is reserved. 5. The costs are reserved. Luxembourg, 29 October 2021. E. Coulon A. Kornezov Registrar President * Language of the case: English. 1 The list of the other applicants is annexed only to the version sent to the parties.