Language of document : ECLI:EU:T:2021:892

Provisional text

JUDGMENT OF THE GENERAL COURT (Second Chamber)

15 December 2021 (*)

(Environment – Regulation (EC) No 1367/2006 – Obligation of the Member States to protect and improve ambient air quality – Request for internal review – Refusal of the request as inadmissible)

In Case T‑569/20,

Stichting Comité N 65 Ondergronds Helvoirt, established in Helvoirt (Netherlands), represented by T. Malfait and A. Croes, lawyers,

applicant,

v

European Commission, represented by L. Haasbeek, G. Gattinara and M. Noll-Ehlers, acting as Agents,

defendant,

supported by

Kingdom of the Netherlands, represented by M. Bulterman, M. de Ree, J. Langer and J. Hoogveld, acting as Agents,

by

European Parliament, represented by W. Kuzmienko and C. Ionescu Dima, acting as Agents,

and by

Council of the European Union, represented by K. Michoel and A. Maceroni, acting as Agents,

interveners,

APPLICATION under Article 263 TFEU for annulment of the Commission’s decision of 6 July 2020 refusing as inadmissible a request for internal review of the decision to close complaint procedure CHAP (2019) 2512,

THE GENERAL COURT (Second Chamber),

composed of V. Tomljenović, President, F. Schalin and I. Nõmm (Rapporteur), Judges,

Registrar: E. Coulon,

gives the following

Judgment

 Background to the dispute

1        The applicant, Stichting Comité N 65 Ondergronds Helvoirt, is an action committee that was founded on 2 March 2011, at a time when the municipalities of Vught, Haaren, Oisterwijk, Tilburg and ’s-Hertogenbosch (Netherlands) were presenting their visions for the N 65 regional road and its environs.

2        After initiating various national administrative and judicial procedures, on 29 August 2019, the applicant lodged a complaint with the European Commission against the Kingdom of the Netherlands. It claimed that the Netherlands authorities’ monitoring and assessment of air quality around the N 65 regional road was contrary to Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1). The applicant submitted that the Commission had misinterpreted the provision which provides that measures to assess the quality of ambient air must be carried out no more than 10 metres from the kerbside.

3        By letter of 30 January 2020, the Commission informed the applicant that it had decided to close the file on the complaint, bearing the reference CHAP (2019) 2512, without taking further action, for the reason that, in its communications of 6 and 21 September 2019 and 8 January 2020, the applicant had provided no relevant new evidence such as to warrant the initiation of proceedings against the Kingdom of the Netherlands for failure to fulfil obligations.

4        On 12 March 2020, the applicant lodged a request for internal review under Article 10 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; ‘the Aarhus Regulation’).

5        By letter of 6 July 2020, the Commission refused as inadmissible the request for internal review of the decision to close complaint procedure CHAP (2019) 2512 (‘the contested decision’). It took the view that the letter of 30 January 2020 was neither an ‘administrative act’ within the meaning of Article 2(1)(g) of the Aarhus Regulation nor an ‘administrative omission’ within the meaning of Article 2(1)(h) of that regulation. It stated that it had adopted the decision, in its letter of 30 January 2020, to close the file on the complaint without taking further action, in its capacity as an administrative review body acting under Article 258 TFEU. It expressed the opinion that, in accordance with Article 2(2)(b) of the Aarhus Regulation, such an act did not constitute an administrative act within the meaning of Article 2(1)(g) of that regulation.

 Procedure and forms of order sought

6        By application lodged at the Registry of the General Court on 7 September 2020, the applicant requested the Court to annul the contested decision.

7        On 25 November 2020, the Commission lodged its defence at the Court Registry.

8        By documents lodged at the Court Registry on 3, 9 and 10 December 2020 respectively, the Council of the European Union, the Kingdom of the Netherlands and the European Parliament sought leave to intervene in support of the form of order sought by the Commission.

9        On 12 January 2021, the applicant lodged its reply at the Court Registry.

10      By decisions of 20 January 2021, the President of the Second Chamber of the General Court granted, respectively, the Council, the Kingdom of the Netherlands and the Parliament leave to intervene.

11      On 25 February 2021, the Commission lodged its rejoinder at the Court Registry.

12      On 1, 2 and 4 March 2021 respectively, the Parliament, the Kingdom of the Netherlands and the Council lodged their statements in intervention at the Court Registry.

13      The General Court (Second Chamber) decided, pursuant to Article 106(3) of its Rules of Procedure, to rule on the action without an oral part of the procedure.

14      The applicant claims that the Court should:

–        annul the contested decision;

–        refer the file back to the Commission in order for it to declare it admissible and give its decision on the substance;

–        order the Commission to pay the costs.

15      The Commission and the Kingdom of the Netherlands contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

16      The Parliament contends, in essence, that the Court should uphold the Commission’s submissions and dismiss the action.

17      The Council contends that the Court should:

–        uphold the Commission’s submissions and dismiss the action;

–        order the applicant to pay the costs.

 Law

18      In support of its action for annulment, the applicant puts forward two pleas in law, both of which are divided into several parts.

 The first plea in law, alleging infringement of (i) Article 1 and Article 9(2) and (3) of the Aarhus Convention, (ii) Article 216 TFEU, and (iii) Article 1(1)(d), Article 2(1)(g) and (2), and Article 10 of the Aarhus Regulation

19      By its first plea, which is divided into two parts, the applicant submits that the Commission has infringed (i) Article 1 and Article 9(2) and (3) of 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 and approved on behalf of the European [Union] by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1; ‘the Aarhus Convention’), (ii) Article 216 TFEU, and (iii) Article 1(1)(d), Article 2(1)(g) and (2), and Article 10 of the Aarhus Regulation.

 The first part of the plea, the principal submission, alleging infringement of Article 1(1)(d), Article 2(1)(g) and (2), and Article 10 of the Aarhus Regulation

20      By the first part of the plea, put forward as its principal submission, the applicant argues that the review procedure provided for by Article 10(1) of the Aarhus Regulation is distinct from infringement proceedings under Articles 258 and 260 TFEU, that, on 30 January 2020, the Commission adopted a decision of individual scope in an environmental matter that has legally binding effects, that that decision comes within the definition of an administrative act under Article 2(1)(g) of the Aarhus Regulation and that it may therefore be the subject of review, such that a challenge to that decision cannot be declared inadmissible.

21      The Commission, supported on that point by the Kingdom of the Netherlands, disputes those arguments.

22      It must be borne in mind that, pursuant to Article 10(1) of the Aarhus Regulation, any non-governmental organisation which meets the criteria set out in Article 11 of the regulation is entitled to make a request for internal review to the EU institution that has adopted an administrative act under environmental law.

23      The concept of ‘administrative act’ referred to in Article 10(1) of the Aarhus Regulation is defined in Article 2(1)(g) of that regulation as a measure of individual scope taken by an EU institution under environmental law and having legally binding and external effects.

24      Article 2(2)(b) of the Aarhus Regulation also circumscribes that concept of administrative act, providing that it may not include measures taken by, or omissions on the part of, an EU institution or body in its capacity as an administrative review body, such as under Articles 258 and 260 TFEU, which concern infringement proceedings.

25      In the present case, the Commission refused as inadmissible the applicant’s request for review of the letter of 30 January 2020, namely the letter informing that applicant of the institution’s decision to close the file on the complaint without taking further action because it considered that it was in not in possession of any relevant new evidence such as to warrant the initiation of proceedings against the Kingdom of the Netherlands for failure to fulfil obligations.

26      First of all, the Commission considered that, in accordance with Article 2(2) of the Aarhus Regulation, internal review was not possible in the case of measures taken by, or omissions on the part of, an EU institution or body acting in its capacity as an administrative review body.

27      Next, the Commission expressed the view that the complaint procedure initiated by the applicant using the complaint handling tool (‘the CHAP procedure’) could constitute a first stage toward the initiation of infringement proceedings, in that it enabled the Commission to assess potential cases of infringement of EU legislation by the Member States and to take the measures it considered appropriate.

28      It also stated that, in accordance with Article 2(2)(b) of the Aarhus Regulation, infringement proceedings did not come within the concept of administrative act within the meaning of Article 2(1)(g) of the Aarhus Regulation or within that of administrative omission within the meaning of Article 2(1)(h) of that regulation, and that complaint handling procedures existed solely to enable it to perform its role as guardian of the Treaties, pursuant to Article 17 TEU and Article 258 et seq.  TFEU. The Commission thus considered that such complaint handling procedures could not, under the Aarhus Regulation, be treated differently from infringement proceedings themselves.

29      In addition, the Commission pointed out that, in accordance with Section 10 of the document entitled ‘Administrative procedures for the handling of relations with the complainant regarding the application of European Union law’, annexed to the Communication from the Commission entitled ‘EU law: Better results through better application’ (OJ 2017 C 18, p. 10), it had informed the applicant of the grounds on which it proposed to close the file and had invited it to submit comments.

30      Lastly, the Commission observed that the applicant’s communications of 6 and 21 September 2019 and 8 January 2020 contained no relevant new evidence and it had therefore decided to close the complaint file.

31      On those grounds, the Commission refused the applicant’s request for internal review as inadmissible.

32      It is therefore necessary the determine whether the Commission was right to take the view that the request for internal review which the applicant made pursuant to Article 10(1) of the Aarhus Regulation was inadmissible.

33      In the first place, it is necessary to consider whether the Commission was acting in its capacity as an administrative review body under the procedure for failure to fulfil obligations provided for by Article 258 TFEU when, by its letter of 30 January 2020, it closed the applicant’s complaint file without taking further action, and consequently whether, in accordance with Article 2(2)(b) of the Aarhus Regulation, that letter did not constitute an administrative act within the meaning of Article 2(1)(g) of the Aarhus Regulation.

34      In its complaint, the applicant claimed that the Kingdom of the Netherlands had infringed Directive 2008/50 and, in particular, Annex III to that directive (which concerns the assessment of air quality and the location of sampling points for measuring it), inasmuch as the manner in which the limit values laid down by the directive had been measured was not consistent with the directive’s provisions.

35      By letter of 30 January 2020, the Commission informed the applicant that it had decided to close the complaint file without taking further action, for the reason that, in its communications of 6 and 21 September 2019 and 8 January 2020, the applicant had produced no relevant new evidence to warrant the initiation of proceedings against the Kingdom of the Netherlands for failure to fulfil obligations.

36      The circumstances just referred to point to the conclusion that the Commission’s decision to close the file on the applicant’s complaint without taking further action must clearly be understood as expressing the institution’s refusal to initiate proceedings under Article 258 TFEU against the Kingdom of the Netherlands in connection with the alleged failure of that Member State to fulfil its obligations under EU law.

37      That interpretation is confirmed, moreover, by the fact that the decision to close the file on the complaint was taken to terminate the complaint procedure CHAP (2019) 2512, namely, a procedure for handling investigation requests and complaints received by the Commission concerning infringements of EU law by Member States, as well as by various express statements to that effect by the Commission in its letter of 30 January 2020.

38      After stating that it was not a court before which appeals against decisions of the Netherlands courts could be brought, the Commission very clearly emphasised that it considered bringing an action against a Member State only when the decisions of its institutions appeared to be contrary to EU law. On that point, it clearly stated that, in the present case, there was insufficient evidence to warrant the initiation of infringement proceedings.

39      In that context, the applicant endeavours to draw a distinction between the EU Pilot procedure and the CHAP procedure, maintaining that the consideration that the EU Pilot procedure is inextricably linked to a procedure for failure to fulfil obligations does not apply to the CHAP procedure.

40      It must be borne in mind, as a preliminary point, that, according to the case-law, the EU Pilot procedure is a ‘precursor’ of sorts of the procedure under Article 258 TFEU and is therefore inextricably linked with an infringement procedure. The EU judicature has held that, even though its basis does not lie in that provision, the EU Pilot procedure provided a structure for the steps which the Commission had traditionally taken on receiving a complaint or when acting on its own initiative (judgment of 25 September 2014, Spirlea v Commission, T‑306/12, EU:T:2014:816, paragraph 66) and therefore merely formalised or structured the exchanges of information which had traditionally occurred between the Commission and the Member States during the informal stage of an inquiry into possible infringements of EU law (judgment of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356, paragraph 43).

41      That said, the question arises as to whether the reasoning concerning the EU Pilot procedure may also be extended to the CHAP procedure, which the applicant initiated in the present case.

42      It must be noted that the CHAP complaint procedure which the applicant initiated constituted a first stage which could lead to the commencement of infringement proceedings under Article 258 TFEU and that its only purpose was to enable the Commission to perform its role as guardian of the Treaties in accordance with Article 17 TEU and Article 258 TFEU.

43      The position that the complaint which the applicant lodged with the Commission could only be considered in the context of an action for a declaration of failure to fulfil obligations under Article 258 TFEU is corroborated by the fact that the only way in which the Commission could have reacted favourably to the complaint would have been precisely to commence such an action against the Kingdom of the Netherlands (see, to that effect, orders of 15 January 2007, Sellier v Commission, T‑276/06, not published, EU:T:2007:6, paragraph 9; of 16 April 2012, F91 Diddeléng and Others v Commission, T‑341/10, not published, EU:T:2012:183, paragraphs 24 and 25; and of 2 October 2014, Bharat Heavy Electricals v Commission, T‑374/14, not published, EU:T:2014:931, paragraph 8).

44      It is true that, as the applicant has submitted, beside the initiation of an EU Pilot procedure, the commencement of infringement proceedings and the closure of the complaint file with no further action, the CHAP procedure could also result in other problem-solving mechanisms, and that that procedure would thus enable the initiation of infringement proceedings against the Member State concerned to be avoided.

45      However, first, it must be emphasised that those possible problem-solving mechanisms, effective as they may be, are informal and recourse to them remains at the Commission’s discretion. If the Commission is not satisfied with how discussions progress within this framework, it may always resume the official procedure. If that official procedure is followed, it will inevitably result in the closure of the complaint file with no further action, the opening of an EU Pilot file or the commencement of an action for a declaration of failure to fulfil obligations under Article 258 TFEU.

46      Second, the strong similarity between the CHAP procedure and the EU Pilot procedure lies also in the fact that both of them can lead, in addition to infringement proceedings being commenced against a Member State, to the commencement of such proceedings being avoided.

47      Consequently, the view must be taken that, like the EU Pilot procedure, the CHAP procedure initiated by the applicant was inextricably linked to a procedure for failure to fulfil obligations.

48      In the second place, given that the complaint procedure initiated by the applicant constituted the first stage of a procedure that can lead the Commission to commence infringement proceedings under Article 258 TFEU, and that the Commission was therefore acting in its capacity as an administrative review body in infringement proceedings, the letter of 30 January 2020 – informing the applicant of the institution’s decision to close the file on the complaint without taking further action – could not constitute an administrative act amenable to review pursuant to Article 10 of the Aarhus Regulation. Article 2(2)(b) of that regulation clearly excludes that act from the concept of administrative act defined in Article 2(1)(g) of that regulation.

49      Accordingly, contrary to the applicant’s submission, its request for review did not come within the scope ratione materiae of Article 10 of the Aarhus Regulation, that scope being limited by Article 2(2) of that regulation.

50      The Commission was therefore right to refuse as inadmissible the request, under Article 10 of the Aarhus Regulation, for internal review of the decision to close complaint procedure CHAP (2019) 2512.

51      The applicant seeks, unsuccessfully, to call that conclusion into question.

52      First, the applicant argues that, by declaring its request for review inadmissible, the Commission is preventing the Court from giving a ruling on environmental issues – in the present case, the correct interpretation of Section C of Annex III to Directive 2008/50 – and that it is arrogating to itself jurisdiction which does not belong to it.

53      That argument must be rejected. As the Commission correctly states, it has appropriated no jurisdiction, but has merely exercised a discretionary power conferred on it by the FEU Treaty and recognised consistently in the case-law. The EU judicature has emphasised that the institution has a discretion in deciding whether or not to institute infringement proceedings. Individuals therefore have no right to require it to adopt a specific position. The Commission is therefore not bound to initiate a procedure under Article 258 TFEU. In the absence of procedural rights laid down in provisions of EU law enabling it to require the Commission to inform it and to grant it a hearing, it was not open to the applicant who had lodged a complaint to bring an action before the EU judicature against a decision to take no further action on its complaint (orders of 14 January 2004, Makedoniko Metro and Michaniki v Commission, T‑202/02, EU:T:2004:5, paragraph 46, and of 19 November 2014, Mirelta Ingatlanhasznosító v Commission and Ombudsman, T‑430/14, not published, EU:T:2014:996, paragraph 6; see also, to that effect, order of 17 July 1998, Sateba v Commission, C‑422/97 P, EU:C:1998:395, paragraph 42).

54      Article 2(2)(b) of the Aarhus Regulation follows the logic of the FEU Treaty – and of Article 258 TFEU in particular in the present case – and the logic followed in the settled case-law cited in the preceding paragraph, inasmuch as it provides that measures taken or omissions under Articles 258 and 260 TFEU are excluded from the range of administrative acts or omissions that are amenable to review pursuant to Article 10 of that regulation.

55      Second, the applicant argues, incorrectly, that, in taking the view that it is not possible to request the review of a position it has taken in response to a complaint, the Commission is assuming exclusive competence over issues relating to the environment. The request for internal review in the present case is inadmissible for a reason that is clearly specified in Article 2(2)(b) of the Aarhus Regulation, namely that it is directed against a decision not to institute infringement proceedings against a Member State.

56      Moreover, the applicant has in no way demonstrated that, leaving aside the cases provided for in Article 2(2) of the Aarhus Regulation, complaints relating to environmental issues lodged with the Commission would suffer the same fate and would thus all be declared inadmissible.

57      Third and lastly, the applicant argues, unsuccessfully, that the Commission has made it impossible or excessively difficult in practice for environmental protection organisations to exercise the rights which they derive both from EU law and from international treaties, that it has thus acted contrary to the ratio legis of the Aarhus Regulation and that it has hindered effective access to justice in environmental matters.

58      First of all, the Commission observed the restriction which the legislature itself laid down in the Aarhus Regulation, namely that of not including in the range of administrative acts or omissions amenable to review pursuant to Article 10 of that regulation certain acts or omissions, such as those adopted under Article 258 TFEU.

59      Next, it is important to bear in mind that the internal review procedure under Article 10 of the Aarhus Regulation is intended to facilitate access to justice for non-governmental organisations – since such organisations do not have to have a sufficient interest or to maintain the impairment of a right in order to exercise that right in accordance with the fourth paragraph of Article 263 TFEU – and that that regulation therefore effectively affords such groups the status of addressees (see, to that effect, Opinion of Advocate General Jääskinen in Joined Cases Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2014:310, point 124, and Opinion of Advocate General Szpunar in TestBioTech and Others v Commission, C‑82/17 P, EU:C:2018:837, point 36).

60      Therefore, the internal review procedure established by Article 10 of the Aarhus Regulation is not intended to enable actions to be brought against measures which, for reasons unrelated to the lack of standing  of non-governmental organisations, could not be challenged pursuant to Article 263 TFEU.

61      In the light of the foregoing, the first part of the first plea in law must be rejected.

 The second part of the plea, put forward in the alternative, alleging, (i) by means of a plea of illegality, the failure of Article 2(2)(b) and Article 10 of the Aarhus Regulation fully to implement the obligations arising under Article 9(3) of the Aarhus Convention, read in conjunction with Article 1 thereof, and (ii) infringement of Article 216 TFEU

62      In the second part of the plea, put forward in the alternative, the applicant objects that Article 2(2)(b) and Article 10 of the Aarhus Regulation are unlawful inasmuch as they do not fully implement the obligations arising under Article 9(3) of the Aarhus Convention, read in conjunction with Article 1 thereof. It also alleges infringement of Article 216 TFEU.

63      The Commission – supported by the Kingdom of the Netherlands, the Parliament and the Council – disputes the applicant’s arguments.

64      It is clear that the applicant’s reasoning is based solely on the solution adopted by the Court in its judgment of 14 June 2012, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission (T‑396/09, EU:T:2012:301), and on the reasoning followed by Advocate General Jääskinen in his Opinion in Joined Cases Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12 P to C‑403/12 P, EU:C:2014:310).

65      In its judgment of 14 June 2012, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission (T‑396/09, EU:T:2012:301), the Court held that, like every other international agreement to which the European Union is a party, the Aarhus Convention prevails over acts of secondary EU legislation, and that the Courts of the European Union may examine the validity of a provision of a regulation in the light of an international treaty only where the nature and the broad logic of the latter do not preclude that and where, in addition, the provisions of the treaty appear, as regards their content, to be unconditional and sufficiently precise.

66      Referring, inter alia, to the judgments of 22 June 1989, Fediol v Commission (70/87, EU:C:1989:254), and of 7 May 1991, Nakajima v Council (C‑69/89, EU:C:1991:186), the General Court went on to clarify that the Court of Justice has held that it is for it to review the legality of an EU law instrument, in the light of the rules laid down in an international agreement that are not capable of conferring on individuals the right to rely on them in legal proceedings, where the European Union has sought to implement a particular obligation assumed under that agreement, or where the secondary law instrument in question makes an express renvoi to particular provisions of that agreement. The General Court inferred from that that the EU judicature must be able to review the legality of a regulation in the light of an international agreement where that regulation is intended to implement an obligation imposed on the EU institutions under that agreement (see, to that effect, judgment of 14 June 2012, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, T‑396/09, EU:T:2012:301, paragraph 54).

67      The Court found that those conditions were met in the case before it, inasmuch as, first, the applicants at first instance, which were not relying on the direct effect of the provisions of the agreement, were questioning indirectly, in accordance with Article 277 TFEU, the validity of a provision of the Aarhus Regulation in the light of the Aarhus Convention and, second, that regulation had been adopted in order to meet international obligations incumbent on the European Union, laid down in Article 9(3) of the Aarhus Convention, as was clear from Article 1(1) and recital 18 of the Aarhus Regulation. The Court accordingly concluded that Article 10(1) of the Aarhus Regulation, in so far as it restricted the internal review procedure to the review of administrative acts defined as ‘measures of individual scope’ – thus excluding ‘measures of general application’ – was not compatible with Article 9(3) of the Aarhus Convention (judgment of 14 June 2012, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, T‑396/09, EU:T:2012:301, paragraphs 57, 58 and 69).

68      In the appeal proceedings, Advocate General Jääskinen took the view that, having regard to its objective and its broad logic, Article 9(3) of the Aarhus Convention was therefore, in part, a sufficiently clear rule which was capable of serving as the basis of a review of legality with regard to the access to justice of organisations which have the standing to bring legal proceedings under national legislation or even under EU legislation, and that, accordingly, that provision could be used as a reference criterion for the purposes of assessing the legality of acts of the EU institutions (Opinion of Advocate General Jääskinen in Joined Cases Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2014:310, point 95).

69      However, the Court of Justice did not, it must be emphasised, pursue the solution adopted by the General Court and favoured by Advocate General Jääskinen.

70      According to the case-law, the rules of an international agreement to which the European Union is a party may be relied on in support of an action for the annulment of an act of secondary EU legislation, or in support of an objection of illegality directed against such an act, on the condition that, first, the nature and the broad logic of that agreement do not preclude this and, second, the treaty’s provisions appear, as regards their content, to be unconditional and sufficiently precise (judgments of 3 June 2008, Intertanko and Others, C‑308/06, EU:C:2008:312, paragraph 45; of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 110; and of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraph 54).

71      The Court of Justice held that Article 9(3) of the Aarhus Convention does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals (judgment of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 45). It concluded that, since only members of the public who ‘[met] the criteria, if any, laid down in … national law’ were entitled to exercise the rights provided for in Article 9(3) of that convention, that provision was subject, in its implementation or effects, to the adoption of a subsequent measure (judgment of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 55).

72      Accordingly, the Court of Justice concluded that Article 9(3) of the Aarhus Convention, on which Article 10(1) of the Aarhus Regulation was based, could not be relied on for the purposes of assessing the legality of the latter provision (judgment of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 61). That solution has been referred to by the General Court on several occasions (judgments of 15 December 2016, TestBioTech and Others v Commission, T‑177/13, not published, EU:T:2016:736, paragraph 50, and of 14 March 2018, TestBioTech v Commission, T‑33/16, EU:T:2018:135, paragraph 88).

73      It is important to note that, in its pleadings, the applicant has set out verbatim the reasoning followed by Advocate General Jääskinen in his Opinion in Joined Cases Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12 P to C‑403/12 P, EU:C:2014:310) and has merely argued that the Advocate General’s position was not sufficiently taken into account. It has not, however, put forward any argument that might justify the General Court’s departure from the solution ultimately adopted by the Court of Justice in its judgment of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C‑401/12 P to C‑403/12 P, EU:C:2015:4).

74      It follows from the foregoing that Article 9(3) of the Aarhus Convention cannot serve as a provision which may be relied on for the purposes of assessing the legality of Article 10(1) of the Aarhus Regulation.

75      It follows that the objection of illegality directed against Article 2(2)(b) and Article 10 of the Aarhus Regulation, in the light of Article 9(3) of the Aarhus Convention, must be rejected as unfounded.

76      None of the applicant’s arguments is capable of calling that conclusion into question.

77      First, for the reason stated in paragraph 74 above, it is in vain that the applicant refers to the findings in the Aarhus Convention Compliance Committee’s report of 17 March 2017 entitled ‘Findings and Recommendations of the Compliance Committee with regard to Communication ACCC/C/2008/32 (Part II) concerning Compliance by the European Union’, according to which the approach taken by the Commission is contrary to the obligations relating to access to justice in environmental matters arising from the Aarhus Convention.

78      Moreover, the findings in the report contain no express conclusion that the provision which renders inadmissible a request for internal review, pursuant to Article 10 of the Aarhus Regulation, of a decision not to initiate infringement proceedings under Article 258 TFEU is unlawful.

79      In paragraphs 106 to 112 of its report, the Compliance Committee expressed reservations about the consistency with the Aarhus Convention of the concept of administrative review body as referred to in Article 2(2) of the Aarhus Regulation. The Compliance Committee pointed out that the Aarhus Convention excluded from the definition of public authority ‘bodies acting in a judicial or legislative capacity’, but not bodies acting in the capacity of an ‘administrative review body’. The Compliance Committee therefore found the necessary conclusion to be that the Aarhus Convention distinguished between judicial and administrative procedures and excluded public authorities only when they acted in a judicial capacity, but not when they acted by way of administrative review. The Compliance Committee concluded that, while it was not convinced that the acts or omissions of all of the administrative review bodies mentioned in Article 2(2) of the Aarhus Regulation, such as the European Ombudsman, should be subject to review under Article 9(3) of the Aarhus Convention, it doubted that the general exclusion of all administrative acts and omissions by institutions acting in the capacity of administrative review bodies complied with the latter provision. Nevertheless, not having any concrete examples of breaches before it, the committee did not go so far as to find non-compliance in that respect.

80      It cannot therefore be inferred from those findings that the Compliance Committee concluded that the inadmissibility of a request for internal review, pursuant to Article 10 of the Aarhus Regulation, of a decision not to initiate infringement proceedings under Article 258 TFEU conflicted with Article 9(3) of the Aarhus Convention.

81      Second, with regard to the alleged infringement of Article 216 TFEU, the view must be taken that the reasoning set out in the applicant’s pleadings at no point mentions that provision; nor does it specify how it was infringed, as the Commission, the Parliament and the Council have all emphasised. That allegation must therefore be rejected.

82      In any event, if the Court is to understand the alleged infringement of Article 216 TFEU as arising from the fact that the Commission has not complied with Article 9(3) of the Aarhus Convention, which is binding on the institutions of the European Union and on its Member States, that argument must be rejected.

83      Article 9(3) of the Aarhus Convention provides that ‘each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’. It is clear from the wording of that provision that the Contracting Parties have a broad margin of discretion when defining the rules for the implementation of those procedures (see, to that effect, judgment of 3 September 2020, Mellifera v Commission, C‑784/18 P, not published, EU:C:2020:630, paragraph 88).

84      Third, the alleged infringements of Article 1 and Article 9(2) of the Aarhus Convention are not explained in the description of the plea or in the arguments supporting it. Those allegations must therefore be rejected.

85      The second part of the first plea in law must therefore be rejected.

86      In the light of the Court’s examination of the first plea in law, the view must be taken that the applicant’s argument that the Commission has given the Kingdom of the Netherlands formal notice to correct its internal rules on sampling and that that notice is evidence that the Kingdom of the Netherlands has not fulfilled its obligations under Directive 2008/50 is ineffective.

87      Even supposing that the Kingdom of the Netherlands had infringed Directive 2008/50, that possible infringement would have no bearing on the legality of the contested decision, inasmuch as the request for review was refused because it was inadmissible, not because the Kingdom of the Netherlands had committed no infringement of that directive.

88      It follows from all the foregoing that both the first and the second parts of the first plea in law must be dismissed as unfounded.

 The second plea in law, alleging infringement of (i) Article 5 of the Aarhus Convention, (ii) Articles 2 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, (iii) Articles 2 and 7 of the Charter of Fundamental Rights, (iv) Article 3(3), Article 9, Article 168(1) and Article 191(1) and (2) TFEU, and (v) Articles 6, 7 and 23 of, and Annexes III and XI, Section B, to Directive 2008/50

89      In the context of its second plea in law, which is divided into four parts, the applicant argues that the Commission has infringed (i) Article 5 of the Aarhus Convention, (ii) Articles 2 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, (iii) Articles 2 and 7 of the Charter of Fundamental Rights of the European Union, (iv) Article 3(3), Article 9, Article 168(1), and Article 191(1) and (2) TFEU, and (v) Articles 6, 7 and 23 of, and Annexes III and XI, Section B, to Directive 2008/50.

90      The Commission, supported on that point by the Kingdom of the Netherlands, argues that the plea is ineffective.

91      It is important to recall that, by the contested decision, the Commission declared inadmissible the request for review of the decision to close complaint procedure CHAP (2019) 2512. The ground of inadmissibility mentioned in the contested decision is the fact that, when it adopted that decision, the Commission was acting in its capacity as an administrative review body, as referred to in Article 2(2) of the Aarhus Regulation, and that its decision was therefore not an administrative act within the meaning of Article 2(1)(g) of that regulation.

92      The decision to close the complaint procedure therefore entailed no final conclusions as to whether or not the Kingdom of the Netherlands had infringed Directive 2008/50. That decision contained no more than the Commission’s assessment of whether or not to initiate infringement proceedings under Article 258 TFEU.

93      The points which the applicant develops in support of its second plea, however, rest exclusively on substantive arguments alleging the infringement by the Kingdom of the Netherlands, and consequently, by the Commission, respectively, of the air quality assessment criteria, the exposure criterion and the obligation to draw up an air quality plan laid down by Directive 2008/50, and violation of the right to life, enshrined in Articles 2 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and in Articles 2 and 7 of the Charter of Fundamental Rights, and the right to a high level of human health protection, enshrined in Article 9 and Article 168(1) and Article 191(1) TFEU.

94      It follows that the plea which the applicant puts forward is ineffective.

95      Accordingly, the second plea in law must be rejected.

96      Without it being necessary to rule on the admissibility of the applicant’s claim that the file should be referred back to the Commission in order for it to declare it admissible and give its decision on the substance, the action must be dismissed in its entirety.

 Costs

97      Under Article 134(1) 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 applicant has been unsuccessful, it must be ordered to bear its own costs and to pay the costs incurred by the Commission, in accordance with the form of order sought by it.

98      In accordance with Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Kingdom of the Netherlands, the Parliament and the Council are therefore to bear their own costs.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Stichting Comité N 65 Ondergronds Helvoirt to bear its own costs and to pay the costs incurred by the European Commission;

3.      Orders the Kingdom of the Netherlands, the European Parliament and the Council of the European Union to bear their own costs.

Tomljenović

Schalin

Nõmm

Delivered in open court in Luxembourg on 15 December 2021.

[Signatures]


*      Language of the case: Dutch.