In a judgment of 3 December 2020 (C-352/19 P), the Court of Justice of the European Union rejected the appeal filed by the Brussels-Capital Region challenging the Commission Implementing Regulation (EU) 2017/2324 renewing the approval of the active substance “glyphosate” for five years.
In March 2018, the Brussels-Capital Region brought an action for annulment against the Implementing Regulation before the General Court. On 28 February 2019, the General Court declared the action inadmissible for lack of standing. In particular, the Court held that the Brussels-Capital Region was not directly concerned by the contested regulation.
By upholding the General Court’s judgment, the Court of Justice decided not to follow the more open interpretation of the criteria of “direct concern” put forward by Advocate General Bobek.
Firstly, the Court of Justice recalled that an action brought by a natural or legal person against an act which is not addressed to that person is admissible only if that person is directly and individually concerned by the act. Or, in the case of a regulatory act, the applicant has to demonstrate that the contested act is of direct concern to it, and that the act does not include implementing measures. The Court also stated that, contrary to that which was invoked by the Brussels-Capital Region, the provisions of the Aarhus Convention on access to justice in environmental matters do not alter the conditions for admissibility of actions for annulment laid down in the fourth paragraph of Article 263 TFEU. In other words, international agreements do not prevail over the Union’s primary law.
Secondly, the Court noted that the renewal of the approval of an active substance, glyphosate, does not entail the confirmation, extension or renewal of the marketing authorisations for plant protection products containing such substance. The Brussels-Capital Region, which had banned the use of pesticides containing glyphosate in 2016, claimed that the act at issue had the effect of allowing those marketing authorisations to continue to produce their effects, while in the absence of such renewal, they would have ipso facto lapsed. The Court rejected the Brussels-Capital Region’s argument, ruling that holders of the concerned authorisations must apply for renewal within three months of the approval of the active substance, and the Member States have twelve months to decide on the matter. There is thus no automatic reconduction of the marketing authorisations by the act at issue.
Moreover, the Court of Justice rejected the Brussels-Capital Region’s argument according to which it is directly affected by the act at issue since it is required by the latter to decide on the renewal of marketing authorisations pursuant to Regulation 1107/2009 concerning the placing of plant products on the market. The Court noted that where there is no decision on the renewal of the marketing authorisations before its expiry, it is the task of the Federal Authority (and not the Brussels-Capital Region) to extend the marketing authorisations for the necessary period. In addition, while the Brussels-Capital Region enjoys advisory competence as it is involved in “drawing up federal regulations on product standards” and providing opinion on “the marketing and use of a pesticide for agricultural use”, such advisory competence does not constitute a direct effect of Regulation 1107/2009. The Brussels-Capital Region can therefore not rely on Regulation 1107/2009 to establish that it is directly concerned by the act at issue.
Thirdly, as regards the condition of “direct concern”, the Court of Justice recalled once again that this means that the act must have a direct effect on the legal situation of the appellant. The Brussels-Capital Region claimed that the act at issue, renewing the approval of glyphosate for five years, jeopardised the lawfulness of the ban on the use of pesticides containing glyphosate laid down by its Decree of 10 November 2016. The Court however rejected the Brussels-Capital Region’s argument insofar as the doubts as to the validity of the ban in light of the Belgian Constitution are not of such a nature as to establish that the Brussels-Capital Region is directly affected by the act. The Brussels-Capital Region fails to demonstrate the risk that poses the act at issue to the ban.
Lastly, the Court recalled that the criteria of “direct concern” must be assessed solely on the basis of the legal effects of the act at issue. The fact that the 2016 Decree was adopted despite an “adverse legal context” and that it was dictated by public interest concerns of a political (and not only legal) nature has no bearing on the assessment of the criteria of “direct concern”.
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