Case T‑33/16

TestBioTech eV

v

European Commission

(Environment — Genetically modified products — Regulation (EC) No 1367/2006 — Regulation (EC) No 1829/2003 — Genetically modified soybeans MON 87769, MON 87705 and 305423 — Rejection of an application for internal review of market authorisation decisions — Concept of ‘environmental law’ — Article 10 of Regulation No 1367/2006)

Summary — Judgment of the General Court (Seventh Chamber), 14 March 2018

International agreements — European Union Agreements — Convention on access to information, participation of the public in the decision-making process 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

As regards the possibility of making a request for internal review, under Article 10(1) of Regulation No 1367/2006 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, to the European Union institution or body which has adopted an administrative act under environmental law, Article 2(1)(f) of that regulation states that the concept of ‘environmental law’, for the purpose of that regulation, covers any EU legislation which contributes to the pursuit of the objectives of EU policy on the environment. In that context, that provision lists, in essence, the EU objectives with respect to the environment as they are set out in Article 191(1) TFEU. It follows from the wording of that provision that, by referring to those objectives, the EU legislature intended to give to the concept of ‘environmental law’, covered by Regulation No 1367/2006, a broad meaning, not limited to matters relating to the protection of the natural environment in the strict sense. In that regard, a Commission decision authorising the placing on the market of a product containing genetically modified soybean, in accordance with Regulation No 1829/2003 on genetically modified food and feed, is an act which falls within the scope of, inter alia, the area of environmental protection. The objective of Articles 4, 7, 16 and 19 of Regulation No 1829/2003 is to regulate human interventions that affect the environment by reason of the presence of genetically modified organisms liable to have effects on human and animal health. It is therefore clear that such authorisation decisions constitute, without any possible doubt, acts adopted under environmental law within the meaning of Article 2(1)(f) of Regulation No 1367/2006. (see paras 38, 43, 44, 61)

The extent of the obligation to carry out an internal review, pursuant to Article 10 of Regulation No 1367/2006 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, must be interpreted in such a way that the Commission is required to examine a request for internal review only in so far as the applicant for review has claimed that the administrative act in question contravened environmental law within the meaning of Regulation No 1367/2006. In that regard, there is no need for a matter within the scope of environmental law to constitute the principal legal objective of the argument to be examined. Further, environmental law, within the meaning of Regulation No 1367/2006, covers any provision of EU legislation, concerning the regulation of genetically modified organisms, that has the objective of dealing with a risk, to human or animal health, that originates in those genetically modified organisms or in environmental factors that may have effects on those organisms when they are cultivated or bred in the natural environment. That finding is no less applicable in situations where the genetically modified organisms have not been cultivated within the European Union. Accordingly, as regards a request for review of a Commission decision authorising the placing on the market of a product containing of genetically modified soybean, in accordance with Regulation No 1829/2003 on genetically modified food and feed, complaints that allege an infringement of the provisions of that regulation, the objective of which is the protection of human and animal health within the European Union against risks that originate in the genetically modified organisms concerned, fall within the area of environmental law within the meaning of Regulation No 1367/2006. (see paras 49, 69, 72, 78)

In order to authorise the placing on the market of products containing genetically modified organisms or consisting of such organisms, it is necessary that the conditions laid down in Article 4(1) of Regulation No 1829/2003 on genetically modified food and feed, and in Article 16(1) of that regulation, are satisfied. In that regard, it is apparent from the wording of Articles 5 and 17 of that regulation that those provisions concern only the procedure for the submission of an application for authorisation and the formal requirements to do so. Those articles therefore do not concern either the conditions for or the extent of the examination of the substance of an application for authorisation. (see para. 81)