ORDER OF THE GENERAL COURT (Seventh Chamber)
12 March 2014 (*)
(Action for annulment – Environment – Implementing Regulation (EU) No 1143/2011 approving the active substance prochloraz – Request for internal review – Refusal – Conditions to be satisfied by an organisation in order to be entitled to make a request for internal review – Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)
In Case T‑192/12,
Pesticide Action Network Europe (PAN Europe), established in Brussels (Belgium), represented by J. Rutteman, lawyer,
applicant,
v
European Commission, represented initially by P. Oliver and P. Ondrůšek, and subsequently by P. Ondrůšek, J. Tomkin and L. Pignataro-Nolin, acting as Agents,
defendant,
APPLICATION for annulment of the Commission’s Decision of 9 March 2012 rejecting as inadmissible the request made by the applicant for review by the Commission of Commission Implementing Regulation (EU) No 1143/2011 of 10 November 2011 approving the active substance prochloraz, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 and Commission Decision 2008/934/EC (OJ 2011 L 293, p. 26),
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude, President, I. Wiszniewska-Białecka (Rapporteur) and I. Ulloa Rubio, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Pesticide Action Network Europe (PAN Europe), is an association under Belgian law, established on 21 May 2010 in Brussels (Belgium), which campaigns in particular against the use of chemical pesticides.
2 On 10 November 2011, the Commission adopted Implementing Regulation (EU) No 1143/2011 approving the active substance prochloraz, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 and Commission Decision 2008/934/EC (OJ 2011 L 293, p. 26).
3 By letter of 21 December 2011, the applicant submitted to the Commission a request for internal review of Implementing Regulation No 1143/2011 on the basis of Article 10(1) of Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 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 (OJ 2006 L 264, p. 13).
4 By decision of 9 March 2012 (‘the contested decision’), the Commission refused the applicant’s request for internal review. It stated the following:
‘Your request for internal review has been lodged on the basis of Regulation … No 1367/2006 …
Commission Implementing Regulation … No 1143/2011 is based on Regulation (EC) No 1107/2009 and is directly applicable. It provides that the active substance prochloraz is approved subject to the conditions laid down in [Annex I to] that Regulation and it is based on Article 13 of Regulation (EC) No 1107/2009.
The provisions of Commission Implementing Regulation … No 1143/2011 are applicable to all operators manufacturing or placing on the market plant protection products containing prochloraz. The approval of the substance is valid for any operator intending to apply for authorisation for the placing on the market of plant protection products containing the active substance prochloraz. Therefore, Commission Implementing Regulation … No 1143/2011 must be regarded as an act of general application addressed to all operators. Therefore, it cannot be considered an administrative act within the meaning of Art[icle] 2(1)(g) of Regulation … No 1367/2006.
Finally, following the statutes of the ASBL PAN Europe which are attached to the request, PAN Europe was founded on 21 May 2010. Therefore, PAN Europe does not comply with the conditions of eligibility set in Article 11 of Regulation … No 1367/2006. PAN Europe is therefore not entitled to apply for internal review.
For the above reasons, the Commission considers that your request for internal review of … Implementing Regulation … No 1143/2011 cannot be accepted. …’.
Procedure and forms of order sought
5 By application lodged at the Court Registry on 2 May 2012, the applicant brought the present action.
6 By document lodged at the Court Registry on 13 August 2012, the Kingdom of Denmark applied for leave to intervene in the present proceedings in support of the form of order sought by the applicant. By order of 15 October 2012, the President of the Seventh Chamber of the General Court granted that application.
7 By document lodged at the Court Registry on 25 February 2013, the Kingdom of Denmark applied to withdraw its application for leave to intervene. By order of 23 April 2013, the President of the Seventh Chamber of the General Court granted that application.
8 The applicant claims that the Court should:
– declare that the contested decision is contrary to Regulation No 1367/2006 and to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed at Aarhus on 25 June 1998 (‘the Aarhus Convention’);
– annul the contested decision;
– instruct the Commission to assess the substance of the applicant’s request for internal review, within a period determined by the Court;
– order the Commission to pay the costs.
9 The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
10 By documents lodged at the Court Registry on 25 July 2012 and 25 June 2013, the Commission requested that the proceedings be stayed. By document lodged at the Court Registry on 21 August 2012, the applicant submitted its observations on the request that the proceedings be stayed. It stated that, in its opinion, that request should be refused.
11 By decision of the President of the Seventh Chamber of the General Court of 5 September 2013, the Commission’s request that the proceedings be stayed was refused.
Law
12 Under Article 111 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order, and without taking further steps in the proceedings, give a decision on the action.
13 In the present case, the Court considers that it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings
Admissibility of the first and third heads of claim
14 By its first head of claim, the applicant requests the Court to declare that the contested decision is contrary to Regulation No 1367/2006 and to the Aarhus Convention. In this connection, it should be pointed out that the Court has no jurisdiction, in a review of legality on the basis of Article 263 TFEU, to issue declaratory judgments (see Case T‑145/06 Omya v Commission [2009] ECR II‑145, paragraph 23 and the case-law cited).
15 By its third head of claim, the applicant seeks an order from the Court instructing the Commission to assess the substance of the applicant’s request for internal review within a period to be determined by the Court. By that head of claim, the applicant requests, in essence, that the Court issue a direction to the Commission. However, according to settled case-law, in an action for annulment, the jurisdiction of the Courts of the European Union is limited to reviewing the legality of the contested measure and the Court may not, in the exercise of its jurisdiction, issue directions to institutions of the European Union (Case C‑5/93 P DSM v Commission [1999] ECR I‑4695, paragraph 36, and Case T‑145/98 ADT Projekt v Commission [2000] ECR II‑387, paragraph 83). It is for the institution concerned to adopt, under Article 266 TFEU, the measures necessary to implement a judgment given in proceedings for annulment (Case T‑67/94 Ladbroke Racing v Commission [1998] ECR II‑1, paragraph 200, and judgment of 29 September 2009 in Joined Cases T‑225/07 and T‑364/07 Thomson Sales Europe v Commission, not published in the ECR, paragraph 221).
16 It follows that the first and third heads of claim are manifestly inadmissible.
The application for annulment
17 In support of its application for annulment of the contested decision, the applicant raises two pleas in law. The first plea alleges infringement of Article 11(1)(c) of Regulation No 1367/2006. The second plea alleges infringement of Article 10(1) of Regulation No 1367/2006, read in conjunction with Article 2(1)(g) of that regulation.
18 By its first plea in law, the applicant argues that the Commission was wrong to take the view in the contested decision that, at the time when it made its request for internal review, on 21 December 2011, the applicant had not existed for more than two years, as required by Article 11(1)(c) of Regulation No 1367/2006. It claims that, whilst it is true that PAN Europe was established as an entity under Belgian law on 21 May 2010, PAN Europe had been a duly registered entity in the United Kingdom since 2003. PAN Europe in the United Kingdom and PAN Europe in Belgium are, it submits, one and the same entity, the registered office of which was moved to Brussels in 2010, as is apparent from certain annexes to the application.
19 Under Article 11(1)(c) of Regulation No 1367/2006, a non-governmental organisation is entitled to make a request for internal review in accordance with Article 10 of that regulation, provided that, inter alia, it has existed for more than two years. It follows from this that an organisation making a request for internal review must adduce proof that it has been in existence for the requisite period at the time when it makes its request.
20 In the present case, the applicant provided to the Commission, as an annex to its request for internal review, its instrument of incorporation in Belgium. In view of the fact that, under that instrument, the establishment of the entity was dated 21 May 2010 and the request for internal review was made on 21 December 2011, the Commission was entitled to take the view, in the contested decision, that the applicant did not satisfy the condition set out in Article 11(1)(c) of Regulation No 1367/2006.
21 Moreover, it should be pointed out that, on 13 December 2007, the Commission adopted Decision 2008/50/EC laying down detailed rules for the application of Regulation No 1367/2006 as regards requests for internal review of administrative acts (OJ 2008 L 13, p. 24). It is apparent from the legal bases cited and the recitals in the preamble to that decision that it was adopted in the light of Article 11(2) of Regulation No 1367/2006 and in order to ensure a consistent application of Article 11(1)(c) of Regulation No 1367/2006. Under Article 3(1) of that decision, it is for the non-governmental organisation submitting a request for internal review of an administrative act or omission as referred to in Article 10 of Regulation No 1367/2006 to provide evidence that it meets the criteria set out in Article 11(1) of that regulation.
22 Furthermore, while it follows from Article 4(2) of Decision 2008/50 that the Commission is required to request the organisation which submits a request for internal review to provide additional documents or information where it is unable to determine, on the basis of the documents provided by that organisation, whether the condition laid down in Article 11(1)(c) of Regulation No 1367/2006 is satisfied, the Commission was entitled, in the present case, to take the view, without entertaining any doubts, that it followed from the instrument of incorporation dated 21 May 2010, provided by the applicant, that it had not existed for more than two years on the date on which the request for internal review was made and, therefore, that the condition laid down in Article 11(1)(c) of Regulation No 1367/2006 was not satisfied. Accordingly, the Commission did not have to request additional documents or information from the applicant.
23 Lastly, the applicant’s argument that the Commission should have taken into account the existence of PAN Europe in the United Kingdom in order to form the view that it satisfied the requirements of Article 11(1)(c) of Regulation No 1367/2006 cannot succeed. According to the applicant, the statutes of the PAN Europe organisation in the United Kingdom and its 2009 and 2010 annual reports, annexed to the application, show that PAN Europe in the United Kingdom and in Belgium are one and the same organisation. It is claimed that this is also apparent from the fact that PAN Europe in the United Kingdom brought an action before the General Court in Case T‑338/08. The fact remains, however, that, first, in its request for internal review, the applicant did not argue that it was the same organisation as PAN Europe in the United Kingdom. Nor does it dispute the Commission’s contention that the statutes of the PAN Europe organisation in the United Kingdom and its 2009 and 2010 annual reports had not been annexed to the request for internal review. Secondly, it must be stated that the instrument of incorporation of the PAN Europe association in Belgium makes no reference to PAN Europe in the United Kingdom. Contrary to what the applicant claims, the fact that PAN Europe in the United Kingdom and PAN Europe in Belgium are engaged in the same activities and have the same objects is not sufficient for them to be regarded as being the same organisation.
24 Consequently, the first plea in law is manifestly unfounded.
25 So far as the second plea in law is concerned, it should be observed that, in the contested decision, the Commission refused the applicant’s request for internal review as being inadmissible on two grounds, namely, that the applicant had not existed for more than two years, as required by Article 11(1)(c) of Regulation No 1367/2006, and that Implementing Regulation No 1143/2011 is not an ‘administrative act’ within the meaning of Article 10(1) of Regulation No 1367/2006, as defined in Article 2(1)(g) of that regulation as a ‘measure of individual scope’.
26 In view of the fact that one of those grounds alone is sufficient to refuse the request for internal review and that the Commission was justified in refusing that request on the ground that the applicant had not existed for more than two years, as required by Article 11(1)(c) of Regulation No 1367/2006, the second plea in law, alleging infringement of Article 10(1) of Regulation No 1367/2006, read in conjunction with Article 2(1)(g) of that regulation, is ineffective.
27 It follows from all of the foregoing that the application for annulment is manifestly unfounded.
28 Accordingly, the action must be dismissed in its entirety as, in part, being manifestly inadmissible and, in part, manifestly lacking any foundation in law.
Costs
29 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the applicant has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Commission.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed.
2. Pesticide Action Network Europe (PAN Europe) shall bear its own costs and pay those incurred by the European Commission.
Luxembourg, 12 March 2014.
E. Coulon | | M. van der Woude |