Case T-338/08

Stichting Natuur en Milieu and

Pesticide Action Network Europe

v

European Commission

‛Environment — Regulation (EC) No 1367/2006 — Maximum residue levels for pesticides — Request for internal review — Refusal — Measure of individual scope — Validity — Aarhus Convention’

Summary of the Judgment

International agreements — European Union agreements — Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) — Limitation by a provision of Regulation No 1367/2006 of the possibility to review exclusively to measures of individual scope — Invalidity in the light of the convention

International agreements — European Union agreements — Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) — Concept of body or institution acting in the exercise of its legislative powers

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 — Assessment, in the light of that Convention, of the validity of a provision of Regulation No 1367/2006 — Conditions

Acts of the institutions — Commission Regulation laying down the maximum limits applicable to pesticide residues — Measure of general scope — No administrative act capable of forming the subject-matter of a request for an internal review under Regulation No 1367/2006

See the text of the decision. (see para. 14)

The European Community is a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the EC Treaty, the procedural rules governing actions brought before the Community courts must be interpreted in such a way as to ensure, wherever possible, that those rules are implemented in such a way as to contribute to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under Community law. Accordingly, the mere fact that neither under the Statute of the Court of Justice nor under the Rules of Procedure is express provision made that submissions supplementing the application initiating proceedings may be submitted once the application has been lodged cannot be construed as excluding such a possibility where the submissions supplementing the application are lodged before the deadline for bringing proceedings. (see paras 20, 21)

In order to determine the scope of a measure, the Courts of the European Union should not look merely at the official name of the measure but should first take account of its purpose and its content. A measure is regarded as being of general application if it applies to objectively determined situations and entails legal effects for categories of persons envisaged generally and in the abstract. In view of its purpose and content, Regulation No 149/2008, amending Regulation No 396/2005 by adding to it Annexes II, III and IV setting maximum residue levels for products covered by Annex I thereto, applies to objectively determined situations and entails legal effects for categories of persons envisaged generally and in the abstract, that is to say, economic operators who are manufacturers, growers, importers or producers of products covered by the annexes to Regulation No 396/2005 and holders of marketing authorisations for plant protection products containing substances covered by those annexes. Consequently, it must be concluded that Regulation No 149/2008 constitutes a measure of general application and cannot therefore be regarded as an administrative act for the purposes of Article 2(1)(g) 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, which can form the subject of a request for internal review under Article 10(1) of Regulation No 1367/2006. (see paras 29, 30, 38, 39, 48)

The institutions of the European Union are bound by the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, which prevails over secondary Community legislation. It follows that the validity of Regulation No 1367/2006 may be affected by the fact that it is incompatible with the Aarhus Convention. Where the Community has intended to implement a particular obligation assumed under an international agreement, or where the measure makes an express renvoi to particular provisions of that agreement, it is for the Court to review the legality of the measure in question in the light of the rules laid down in that agreement. Accordingly, the EU judicature must be able to review the legality of a regulation in the light of an international treaty, without first having to determine whether the nature and broad logic of that treaty so allow and whether the contents of that treaty appear to be unconditional and sufficiently precise, where that regulation is intended to implement an obligation imposed by that international treaty on the EU institutions. (see paras 52-54)

The acts of the institutions of the European Union which are adopted by those institutions in their legislative capacity fall outside the scope of Article 9(3) of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters and Article 10 of Regulation No 1367/2006 on the application of the provisions of the Aarhus Convention to Community institutions and bodies. However, in the present case, the Commission did not, in adopting Regulation No 149/2008, act in a legislative capacity. It is clear from the provisions on the basis of which that regulation was adopted that the Commission acted in the exercise of its implementing powers. (see paras 62, 65)