21 - Reviews under the Aarhus Regulation

Reg (EC) 1367/2006 was promulgated by the EU to further the provisions of the Aarhus Convention. Reg. 10 allows any NGO or other member of the public meeting certain criteria to ask for any EU institution or body to undertake an internal review of an administrative act or omission. By Article 12, appeals are made to the CJEU on the basis of “lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers”.

Pursuant to this provision in T-605/21 TestBioTech eV v European Commission ECLU:EU:T:2023:648, a not for profit asked the CJEU to annul a decision of the European Commission by which – at TestBioTech’s request – it had reviewed its own decision to authorise food, feed and products containing or produced from certain GMO maize. The single ground alleged was that the Commission has made a “manifest error of assessment,” though this had three subparts: exposure to drought conditions, exposure to the application of herbicides, and exposure to a combination of drought and herbicide application conditions. Within each of those parts, the errors alleged will be of the type familiar to many who practice in this area: they include specific issues such as errors in concluding what field trials were required, the relevance of certain scientific studies, and the disregard of other scientific publications.

The case contains a helpful summary of the legal principles at [14]-[22]. In particular, in these situations where an EU institution is called upon to make a complex assessment, it enjoys a wide measure of discretion subject to judicial review on the basis of manifest error, misuse of powers, and not exceeding the bounds of that discretion ([19]). To show manifest error, the evidence adduced by an applicant must be such as to show the factual assessments by the EU institution were “implausible” ([20]). It is not the court’s role to substitute its own assessment for that of the institution ([20]). In those circumstances, each of the applicant’s substantive arguments were rejected. Moreover, in relation to the third head (exposure to the combination of drought and herbicides) the challenges were rejected for a freestanding reason – they were all articulated as challenges to the initial Commission decision to permit the GMO organisms to be sold, not its review decision ([90]-[92]).

So why do a blog post on this? Firstly, it is a helpful reminder of the key principles for anyone still operating in the EU. Second, as the Government begins to take our environmental legislation in a new direction and various parties begin to talk about regression, it is a helpful reminder of what can and cannot be achieved under the EU’s “manifest error of assessment” requirements.

Authors

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.