Judgment of the General Court (Fifth Chamber) of 15 December 2016 — TestBioTech and Others v Commission

(Case T‑177/13)

(Environment — Genetically modified products — Genetically modified soybean MON 87701 x MON 89788 — Request for internal review of the decision on marketing authorisation dismissed as unfounded — Obligation to state reasons — Manifest error of assessment)

1. Actions for annulment—Actionable measures—Concept—Measure not yet final in relation to the applicant—Inclusion—Limits (Art. 263, fourth para., TFEU) (see paras 44, 46)

2. International agreements—European Union Agreements—Convention on access to information, public participation in decision-making and access to justice in environmental issues (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—Precluded (Aarhus Convention, Art. 9(3); European Parliament and Council Regulation No 1367/2006, Art. 10(1)) (see para. 50)

3. Environment—Aarhus Convention—Application to EU institutions—Ability of non-governmental organisations to request internal re-examination of administrative measures in environmental matters—Subject-matter of the re-examination (European Parliament and Council Regulation No 1367/2006, Arts 10(1), and 11) (see para. 51)

4. Environment—Aarhus Convention—Application to EU institutions—Ability of non-governmental organisations to request internal re-examination of administrative measures in environmental matters—No possibility of demanding the adoption of a specific measure (European Parliament and Council Regulation No 1367/2006, Art. 10) (see para. 55)

5. Environment—Aarhus Convention—Application to EU institutions—Ability of non-governmental organisations to request internal re-examination of administrative measures in environmental matters—Statement of the grounds for re-examination—Need to indicate factors likely to raise doubts as to whether the measure in question well-founded—Obligation on the Commission to examine where such factors present—Scope (European Parliament and Council Regulation No 1367/2006) (see paras 67, 83, 85-87, 109)

6. Environment—Aarhus Convention—Application to EU institutions—Ability of non-governmental organisations to request internal re-examination of administrative measures in environmental matters—Request dismissed as unfounded—Judicial review—Limits (European Parliament and Council Regulation No 1367/2006, Art. 10) (see paras 76-80)

7. Approximation of laws—Genetically modified foodstuffs and animal feed—Regulation No 1829/2003—Authorisation to market—Discretion of the Commission—Binding force of the opinion of the European Food Safety Authority—None (European Parliament and Council Regulation No 1829/2003, Arts 4 and 16) (see para. 103)

8. Protection of public health—Assessment of risks—Application of the precautionary principle—Scope—Concepts of risk and hazard—Determination of the level of risk judged unacceptable for society—Competence of the EU institution designated by the relevant legislation (Art. 168(1) TFEU; European Parliament and Council Regulation No 1829/2003, thirty-second and forty-third recitals) (see paras 104-109)

9. EU law—Principles—Protection of legitimate expectations—Conditions—Specific assurances given by the authorities (see para. 115)

10. Actions for annulment—Grounds—Lack of or inadequate statement of reasons—Separate ground from the one concerning substantive legality (Arts 263 TFEU and 296, second para., TFEU) (see para. 129)

11. Acts of the institutions—Statement of reasons—Obligation—Scope—Assessment of the duty to state reasons by reference to the circumstances of the case (Art. 296, second para., TFEU) (see para. 130)

12. Judicial proceedings—Application initiating proceedings—Formal requirements—Identification of the subject-matter of the dispute—Brief summary of the pleas in law on which the application is based—General reference to documents annexed to the application—Inadmissibility (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 141)

13. Judicial proceedings—Application initiating proceedings—Formal requirements—Identification of the subject-matter of the dispute—Brief summary of the pleas in law on which the application is based—General reference in support of a second plea to matters set out in the context of the first—Inadmissibility (Rules of Procedure of the General Court, Art. 44(1)(c)) (see paras 145, 146)

14. Judicial proceedings—Production of evidence—Time-limit—Evidence lodged out of time—Conditions (Rules of Procedure of the General Court, Art. 85(3)) (see paras 250, 251)

15. Environment—Aarhus Convention—Application to EU institutions—Access to justice—Reasonableness of the cost of the proceedings—Criteria for assessment (Aarhus Convention, Art. 9(4)) (see para. 302)

16. Judicial proceedings—Treatment of cases before the General Court—Protection given to parties against misuse of pleadings and other procedural documents—Scope—Publication of the opposing party’s defence on the internet—Abuse of procedure—Account to be taken when allocating costs (Rules of Procedure of the General Court, Art. 135(2)) (see para. 307)

Re:

APPLICATION pursuant to Article 263 TFEU for annulment of the decision of the European Commission of 8 January 2013, concerning the review of Commission Implementing Decision 2012/347/EU of 28 June 2012 authorising the placing on the market of products containing, consisting of, or produced from genetically modified soybean MON 87701 x MON 89788 (MON-877Ø1-2 x MON-89788-1), pursuant to Regulation (EC) No 1829/2003 of the European Parliament and of the Council (OJ 2012 L 171, p. 13).

Operative part

The Court:

1. Dismisses the action;

2. Orders TestBioTech eV, European Network of Scientists for Social and Environmental Responsibility eV and Sambucus eV to bear their own costs and to pay those incurred by the European Commission;