“The PRESIDENT [Barroso] said that the potential consequences of these judgments were very far-reaching; leaving aside the damage done to the Commission’s reputation by the finding that the European Union had failed to meet its international obligations, they could give rise […] to a considerable increase in requests for internal review of measures of general application in many areas, and to an increase in the number of appeals against review decisions taken by the Commission”
How can it be that Commission President Barroso freaks out** like this because of two EU Court cases, pushing for an appeal against the Court’s rulings? The actual story, if I understood everything correctly, goes as follows:
( a ) There is an international convention – the Aarhus Convention – that gives NGOs the right to ask for a review of administrative decisions made by public authorities in environmental matters.
( b ) The EU has ratified this convention and made it an EU law, called the Aarhus Regulation.
( c ) In July 2008 and July 2009, the EU Commission refused to review two of its decisions – one of them being a Commission Regulation derived from its implementing powers – concerning environmental matters in the Netherlands as requested by two different NGOs. One of the cases concerns pesticides, the other the EU’s air quality rules. For both refusals, the Commission used the Aarhus Regulation to justify its decisions.
( d ) In June this year, the EU Court ruled that in both cases the Commission decisions were wrong because the EU’s Aarhus Regulation did not properly implement the international Aarhus Convention. Because of that,the Court used the Aarhus Convention rules as overriding the EU regulation’s rules, saying that the Commission should have reviewed its decisions on the environmental matters as requested by the NGOs.
What this basically means is that, according to the EU Court, (1) the EU has not properly implemented an international convention, (2) the EU Court then uses the international convention instead of the EU law, (3) Commission Regulations based on implementing powers are considered administrative decisions by the Court, (4) NGOs can request to review many, many environmental decisions that the EU Commission takes and (5) can challenge more easily when the Commission refuses to make such a review.
No wonder that the Commission President freaked out and demanded an appeal to go the Court of Justice. According to the meeting summary, he would not even listen to his Commission colleagues who asked that it might be more reasonable to better review the Aarhus Regulation if it doesn’t comply with international law, instead of doing an appeal at the Court.
Barroso however seemed fear the rising power of NGOs and the vanishing powers of the Commission so much that he more or less dismissed his colleagues’ requests and, as far as I interpret the summary, pushed for an appeal. More public scrutiny of environmental decisions taken by the Commission will be postponed to the future then…
* link via “The Week in Luxembourg” by Martinned on 14 June 2012
** I use “freak out” knowing that this may be an exaggeration. Yet, reading the Commission meeting summary’s display of the discussion on this subject, Barroso seems more engaged than the usual talk that gets reported in these documents. So I use “freak out” in comparison to other types of discussions.