62020TJ0569_RES
Case T‑569/20
Stichting Comité N 65 Ondergronds Helvoirt
v
European Commission
Judgment of the General Court (Second Chamber), 15 December 2021
(Environment – Regulation (EC) No 1367/2006 – Obligation of the Member States to protect and improve ambient air quality – Request for internal review – Refusal of the request as inadmissible)
Environment – Aarhus Convention – Application to EU institutions – Ability of non-governmental organisations to request internal review of administrative acts in environmental matters – Subject matter of the review – Administrative acts adopted under environmental law – Concept of administrative act – Decision of the Commission, acting in its capacity as an administrative review body in infringement proceedings, to close the file on the complaint without taking further action – Not included
(Arts 258 and 260 TFEU; European Parliament and Council Regulation No 1367/2006, Arts 2(1)(g) and (2)(b) and 10)
(see paragraphs 22 to 24, 33 to 36, 48)
Actions for failure to fulfil obligations – Right of the Commission to bring judicial proceedings – Establishment of the CHAP complaint procedure to detect possible failures to fulfil obligations under EU law – Purpose
(Art. 17 TEU; Art. 258 TFEU)
(see paragraphs 42 to 47)
Environment – Aarhus Convention – Application to EU institutions – Ability of non-governmental organisations to request internal review of administrative acts in environmental matters – Subject matter of the review – Measures which cannot be challenged in an action for annulment for reasons unrelated to lack of locus standi – Not included
(Art. 258 and 263, fourth paragraph, TFEU; European Parliament and Council Regulation No 1367/2006, Arts 2(2)(b) and 10)
(see paragraphs 57 to 60)
International agreements – European Union agreements – Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) – Effects – Primacy over secondary legislation of the European Union – Examination of the legality of an act of secondary EU law having regard to the provisions of that convention – Conditions – Provisions not unconditional and sufficiently precise – Not included
(Art. 216(2) TFEU; Aarhus Convention, Art. 9(3); European Parliament and Council Regulation No 1367/2006, Arts 2(2)(b) and 10)
(see paragraphs 70 to 72, 74)
Résumé
Stichting Comité N 65 Ondergronds Helvoirt is an action committee that was founded in 2011 when certain Netherlands municipalities presented their vision for the N 65 regional road and its environs.
On 29 August 2019, that committee lodged a complaint with the European Commission against the Kingdom of the Netherlands, seeking a declaration establishing an infringement of Directive 2008/50 on ambient air quality (
1
) in connection with the Netherlands’ authorities quality control as regards the air around the regional road in question. The Commission, however, taking the view that it was not in possession of any relevant new evidence such as to warrant the initiation of proceedings against the Kingdom of the Netherlands for failure to fulfil obligations, informed the committee, by letter of 30 January 2020, of its decision to close the file on the complaint without taking further action.
The action committee consequently submitted a request to the Commission under Article 10 of the Aarhus Regulation (
2
) for internal review of the decision to close the file on the complaint. The Commission rejected that request as inadmissible (‘the contested decision’) on the ground that the decision in question was neither an ‘administrative act’ (
3
) nor an ‘administrative omission’ (
4
) capable of forming the subject matter of an internal review pursuant to the Aarhus Regulation, having been adopted within the framework of the procedure for failure to fulfil obligations provided for in Article 258 TFEU.
An action for annulment of the contested decision was brought before the General Court, which dismissed it after considering, in particular, the novel question of whether or not a review procedure, initiated with regard to a decision to close the file as regards a complaint made against a Member State, may be distinct from the procedure for failure to fulfil obligations under Articles 258 et 260 TFEU.
Findings of the Court
In the first place, the General Court points out that Article 10(1) of the Aarhus Regulation confers on non-governmental organisations the right to make a request for internal review to the EU institution that has adopted an ‘administrative act’ under environmental law. However, Article 2(2)(b) of that regulation excludes from the concept of administrative act measures or omissions on the part of an EU institution or body acting in its capacity as an administrative review body in infringement proceedings under Articles 258 and 260 TFEU.
The General Court takes the view that, in this case, the Commission’s decision to close the file on the committee’s complaint without taking further action expresses its refusal to bring infringement proceedings under Article 258 TFEU against the Kingdom of the Netherlands, for want of sufficient evidence of the alleged infringement of EU law. That decision closed a ‘CHAP’ procedure, designed to handle investigation requests and complaints received by the Commission concerning infringements of EU law by Member States.
In the second place, the General Court states that, contrary to the arguments put forward by the committee, a CHAP procedure, like the EU Pilot procedure which is regarded as its precursor, is inextricably linked to infringement proceedings. It points out in that regard that the CHAP complaint submitted by the committee constituted a first stage of a procedure which could have led to the initiation of infringement proceedings. The only favourable outcome to that complaint would have been precisely the commencement of proceedings against the Kingdom of the Netherlands for failure to fulfil its obligations. In addition, while the CHAP procedure can result in other informal problem-solving mechanisms which, like the EU Pilot procedure, enable the initiation of infringement proceedings to be avoided, recourse to such mechanisms remains at the discretion of the Commission, which may always resume the official procedure.
The General Court thus concludes that the decision to close the file on the complaint in question without taking further action was adopted by the Commission in its capacity as administrative review body in infringement proceedings under Article 258 TFEU, and could not therefore constitute an administrative act amenable to internal review pursuant to Article 10 of the Aarhus Regulation.
With regard to the committee’s argument that, by rejecting its request for internal review, the Commission hindered the effective access to justice of environmental protection organisations, the General Court points out that the aim of the internal review procedure is to facilitate for such organisations access to justice which they would not have under Article 263 TFEU, relating to actions for annulment, for lack of standing. Nevertheless, in this instance, the Commission adhered to the restriction laid down by the Aarhus Regulation itself, which in particular excludes from the concept of administrative act acts adopted pursuant to Article 258 TFEU. The General Court infers from that that the internal review procedure is not intended to enable actions to be brought against measures, like the Commission’s refusal to bring infringement proceedings, which, for reasons unrelated to the lack of standing of the organisations in question, cannot be challenged pursuant to Article 263 TFEU.
Lastly, the General Court dismisses the plea of illegality directed against Article 2(2)(b) and Article 10 of the Aarhus Regulation, in the light of Article 9(3) of the Aarhus Convention. (
5
) In that regard, the General Court recalls the case-law of the Court of Justice according to which the provisions of an international agreement to which the European Union is a party can be relied upon in support of an action for the annulment of an act of secondary EU legislation or a plea based on the illegality of such an act only where, first, the nature and the broad logic of the agreement do not preclude that and, second, those provisions appear, as regards their content, to be unconditional and sufficiently precise. The Court of Justice has previously held that Article 9(3) of the Aarhus Convention, on which Article 10 of the Aarhus Regulation is based, does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals, with the result that it cannot be relied on for the purposes of assessing the legality of Article 10(1) of the Aarhus Regulation.
In the light of those findings, the General Court confirms the Commission’s decision rejecting the committee’s request for internal review as inadmissible.
(
1
)	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 (OJ 2008 L 152, p. 1).
(
2
)	Regulation (EC) 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 (OJ 2006 L 264, p. 13, ‘the Aarhus Regulation’).
(
3
)	Article 2(1)(g) of the Aarhus Regulation.
(
4
)	Article 2(1)(h) of the Aarhus Regulation.
(
5
)	Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed at Aarhus 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).