The European Commission is to appeal against two General Court decisions granting NGOs and public interest groups the right to request internal reviews of regulatory decisions made by European institutions.
The contested rulings, adopted by the General Court on 14 June 2012, concluded that the EU legislation, specifically Regulation 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), does not provide the public with adequate opportunity to challenge EU decisions.
The first case (T-338/08) was brought by two NGOs, on the basis of Regulation 1367/2006 and concerned a review request of a regulation setting maximum pesticide residue levels in food and the second case (T-396/09) concerned a decision granting the Netherlands a temporary exemption from European obligations on air quality.
Both cases were initiated after NGO requests for internal reviews of these environmental decisions were deemed inadmissible by the Commission under Regulation 1367/2006, which limits acts that can be challenged by NGOs to 'administrative acts', defined as 'measures of individual scope'. In each case, the Commission declined to carry out the review on the grounds that the measure was not of individual scope. In both cases, the General Court ruled that the restrictive conception of challengeable acts under Regulation 1367/2006 is not compatible with Article 9(3) of the Aarhus Convention, which requires signatories to grant 'members of the public access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities'. The Commission decisions to deny the NGOs' review requests were therefore annulled, opening a definite legal precedent for NGOs seeking reviews of EU decisions.
The Commission has appealed the rulings on the grounds that the Regulation 1367/2006 is entirely compatible with the Aarhus Convention, and that a revision of the review procedure would leave the EU and its international agreements vulnerable to arbitrary challenges from NGOs and public interest groups.
Environmental NGOs have criticised the Commission's counter-action, arguing that the current situation, in which businesses have access to the courts because they are able to prove a direct interest, whereas NGOs do not, is unbalanced. The environmental organisations are particularly concerned as they fear a reversal of the decision could limit the ability of NGOs to request reviews of decisions taken under the REACH Regulation.