Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
Order of the General Court (Grand Chamber), 4 June 2024, Cases T-530/22 to T-533/22, Magistrats européens pour la démocratie et les libertés (Medel), International Association of Judges, Association of European Administrative Judges e Stichting Rechters voor Rechters v Council of the European Union, Actions for annulment – Regulation (EU) 2021/241 of the European Parliament and of the Council – Council Implementing Decision of 17 June 2022 on the approval of the assessment of the recovery and resilience plan for Poland – Lack of direct concern – Inadmissibility)
Facts
The General Court, sitting in Grand Chamber, dismissed as inadmissible the actions brought by four international judges associations[1], whose members consist, in general, of national professional associations, including those of Polish judges, seeking the annulment of the Council’ implementing decision that approved the assessment of Poland’s recovery and resilience plan.
The Recovery and Resilience Facility, established by Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021, allows the European Union (“EU”) to grant funds to Member States, in the form of a financial contribution.
On 17 June 2022, the Council adopted a decision, subsequently amended by a decision on 8 December 2023, (hereinafter the “contested decision”), approving the assessment of the Recovery and Resilience Plan proposed by Poland – which specifies, the milestones that Poland must achieve for the financial contribution to be granted. These milestones include, in particular, the reform of Poland’s judicial system, detailed in milestones F1G, F2G, and F3G. In accordance with milestone F1G, legislative measures must be adopted to strengthen the independence and impartiality of the judiciary. Furthermore, milestone F2G requires measures to ensure that the judges affected by decisions of the Disciplinary Chamber of the Polish Supreme Court have access to proceedings allowing a review of the decisions of that Chamber. Lastly, milestone F3G enshrines that any proceedings initiated under milestone F2G must be concluded during the fourth quarter of 2023.
The applicants brought an action for annulment based on Article 263 of the Treaty on the Functioning of the European Union (“TFEU”) against the contested decision on the grounds that it was contrary to EU law. However, considering the nature of the case, the General Court (“GC”) decided to rule by order on the admissibility of the action without first examining its merits. In this regard, the applicants maintained the admissibility of the appeal arguing that they have legal standing both on their own name and on behalf of the judges whose interests they are defending. Finally, they also suggest that the GC should ease the admissibility requirements as they result from its existing case law.
Decision
Firstly, the GC analysed, the admissibility of the appeals lodged by the professional associations of judges acting in their own name. The applicants argued that as organizations whose mission is to defend the rule of law, and the independence of the judiciary, they have a special procedural interest in bringing an action different from other associations. The General Court found that the applicants did not invoke the existence of legal provisions that expressly confer powers of a procedural nature to them and nothing existed in the files to support that assertion, meaning that the applicants cannot benefit from procedural treatment different from any other association. Additionally, the fact that they intervened, as “interlocutors” of EU Institutions on the issue of judicial independence does not give them procedural standing.
Secondly, the GC examined the admissibility of the appeals brought by the applicants, who invoked the direct concern of the individual judges, whose interests they defend, since, according to the General Court’s case law, associations have legal standing when they represent the interests of their members who themselves are entitled to bring proceedings[2]. In this regard, the applicants distinguished three distinct groups of judges. The first group consisted of Polish judges affected by decisions of the Disciplinary Chamber, who would be directly affected by the review process provided for in milestones F2G and F3G. The second group was composed of all Polish judges, who are directly affected by this review process and the legislative reforms foreseen in the F1G milestone and lastly, the third group corresponds to all other European judges who, according to the applicants, would also be directly affected by these milestones.
With regard to the judges of the first group, the GC highlighted that, according to its case law, in order for a contested measure to be of direct concern two cumulative criteria must be met: first, it must directly affect the legal situation of that person and, second, it must leave no discretion to its addressees who are entrusted with implementing it, in this case, Poland. Furthermore, to verify that these requirements are fulfilled the contested decision must be assessed in the light of its content and context. In this sense, the GC emphasized that the milestones in question amount to a conditional budgetary mechanism reflecting the relationship between respect for the rule of law, and the efficient execution of the budget and protection of the Union’s financial interests.
The GC concluded that the contested decision is limited to approving a series of milestones that condition Poland’s financing without directly altering the situation of the judges affected by decisions of the Disciplinary Chamber, that situation being altered only by the national measure subsequently adopted by Poland in order to achieve that milestone. The GC thus ruled that the contested decision does not directly affect the legal situation of the judges affected by decisions of the Disciplinary Chamber, and consequently they are not directly concerned.
Concerning the judges of the second group, the General Court considered that, on the one hand, since it was demonstrated that the F2G and F3G milestones do not directly affect the situation of Polish judges affected by decisions of the Disciplinary Chamber, the same also applies, a fortiori, to Polish judges not affected by such decisions. On the other hand, the GC reasons that the applicants have not demonstrated the existence of a sufficiently close link between the situation of all Polish judges and the reforms provided for in the F1G milestone. Finally, regarding the judges of the third group, the GC also rejected the applicants’ argument that the F1G, F2G and F3G milestones could have direct repercussions on the legal situation of judges from other legal orders of the European Economic Area.
Finally, the General Court rejected the applicant’s argument that the conditions of admissibility should be eased, in particular, because of the requirements relating to effective judicial protection and the rule of law as provided for in Article 47 of the Charter of Fundamental Rights of the EU. The GC underlines that although the admissibility requirements set out in Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, such an interpretation cannot set aside the procedural conditions applicable to actions brought by natural and legal persons expressly provided for in the Treaty. The Court emphasized, however, that these findings do not prejudice Poland’s obligation, under the terms of the Treaties, to remedy promptly non-compliances found by the Court of Justice of the European Union in relation to the rule of law crisis.
In light of these findings, the General Court therefore concluded that the actions are inadmissible, without the need to rule on the merits, as the contested decision does not directly concern the applicants within the meaning of Article 263 TFEU.
Judgment of the General Court (First Chamber, Extended Composition), 31 January 2024, Case T-745/20, Symphony Environmental Technologies and Symphony Environmental v European Parliament and Others, Non-contractual liability – Environment – Directive (EU) 2019/904 – Prohibition on the placing on the market of products made from oxo-degradable plastic – Sufficiently serious breach of a rule of law intended to confer rights on individuals – No distinction between products made from oxo-degradable plastic and products made from oxo-biodegradable plastic – Impact assessment – Equal treatment – Proportionality
Facts
On 5 June 2019, the European Parliament and the Council of the European Union adopted the Directive (EU) 2019/904 on the reduction of the impact of certain plastic products on the environment[3], prohibiting, inter alia, the placing on the market of products made from oxo-degradable plastic.
Symphony Environmental Technologies and Symphony Environmental, the applicants, are companies established in the United Kingdom, which develop, produce and market certain specialised plastic products together with the additives and masterbatches used for making such products. The applicants produce a pro-oxidant additive which, in their view, enables plastic to biodegrade more quickly than oxodegradable plastic.
The applicants brought an action under Article 268 TFEU seeking compensation for the damage which they claim to have suffered, in so far as the prohibition on the placing on the market of products made from oxo-degradable plastic which they qualify “oxo-biodegradable”. In this regard, the applicants ask the General Court (GC) to find the European Parliament, the Council of the European Union and the European Commission to be non-contractually liable, by adopting Article 5 and recital 15 of Directive 2019/904, and seek compensation for the alleged damage caused by the adoption of such provisions. In that regard, the applicants raise several pleas, namely the breach of the obligations of the Interinstitutional Agreement between the Parliament, the Council and the Commission[4], the breach of the general principle of proportionality, and the breach of the general principle of equal treatment.
Decision
Firstly, the applicants allege that by not carrying out an impact assessment in relation to the prohibition on the placing on the market of products made from oxo-degradable plastic as per Article 5 od the Directive 2019/904[5], the three institutions breached paragraphs 12 and 14 to 16 of the Interinstitutional Agreement.
The GC notes that it is clear from the wording of paragraph 16 that it does not contain any legal obligation for the Commission to carry out an update of the impact assessment. Therefore, the Court concludes that the three institutions have not infringed the Interinstitutional Agreement and that there is no need to examine whether such infringement is sufficiently serious, according to the case-law relating to the first condition for the liability of the European Union. The GC adds that in any event, paragraphs 12 and 14 to 16 of the Interinstitutional Agreement cannot be regarded as being intended to confer rights on individuals, since, as stated in paragraph 12, impact assessments are a tool to help the three institutions concerned reach well-informed decisions. Hence, the GC dismisses the present plea.
Secondly, the applicants allege that the prohibition enshrined in Article 5 of the Directive 2019/904 is contrary to the general principle of proportionality, as well as manifest errors of assessment. As such, the applicants allege that the three institutions concerned did not have at their disposal a thorough scientific assessment of the risks posed by oxo-degradable plastic, and that they failed to establish that there is a rational connection between the prohibition on the placing on the market of products made from oxo-degradable plastic. Furthermore, the applicants submit, in essence, that the total prohibition on placing on the market goes beyond what is necessary in order to achieve the objective pursued by Directive 2019/904 and that less restrictive alternative measures exist.
The GC starts by recalling that the EU legislature enjoys a broad discretion when exercising its powers in environmental matters under Articles 191 and 192 TFEU. Therefore, the review by the EU Courts has to be limited to verifying whether the exercise of such powers has been vitiated by a manifest error of assessment or a misuse of powers, or whether the EU legislature has manifestly exceeded the limits of its discretion. Then, the Court concludes that the three institutions concerned had at their disposal a scientific assessment of the risks referred to in recital 15 of Directive 2019/904 which was as thorough as possible, namely that plastic containing a pro-oxidant additive does not properly biodegrade, negatively affects the recycling of conventional plastic and fails to deliver a proven environmental benefit. Hence, the GC finds that the concerned institutions did not make a manifest error of assessment in finding that such a risk existed, and rejects the second the present plea in its entirety.
Thirdly, the applicants submit that the three institutions concerned breached the general principle of equal treatment, first, by prohibiting the placing on the market of products made from oxo-biodegradable plastic, but not products made from conventional plastic, with the exception of nine single-use products, and, second, by prohibiting the placing on the market of products made from oxo-biodegradable plastic, but not products made from plastics marketed as ‘compostable’. In the alternative, the applicants maintain that the prohibition laid down in Article 5 of Directive 2019/904 results in a distortion of competition between different types of biodegradable plastic.
The GC dismissed the present plea. The GC concludes that the products with a pro-oxidant additive were comparable to conventional plastic or compostable plastic. Despite the fact that the plastic containing a pro-oxidant additive fragments faster than conventional plastic, that it cannot be ruled out that the first product could have a negative impact on the environment, both in an open environment and in the marine environment, by being concentrated over a shorter period.
Since the conditions for the non-contractual liability of the European Union are cumulative and the Court rejects all pleas of illegality, the applicants have failed to demonstrate that there is a sufficiently serious breach of a rule of law intended to confer rights on individuals and it is not necessary to examine the conditions for there to be actual and certain damage or a causal link.
Consequently, the GC dismisses the action in its entirety.
[1] Magistrats européens pour la démocratie et les libertés (Medel) in case T-530/22, International Association of Judges in caseT-531/22, Association of European Administrative Judges in caso T-532/22 and Stichting Rechters voor Rechters in case T-533/22.
[2] (see, to that effect, order of 8 May 2019, Carvalho and Others v Parliament and Council, T‑330/18, not published, EU:T:2019:324, paragraph 51)
[3] Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment (OJ 2019 L 155, p. 1).
[4] Interinstitutional Agreement between the Parliament, the Council and the Commission on Better Law Making of 13 April 2016 (OJ 2016 L 123, p. 1).
[5] Article 5 – Restrictions on placing on the market. “Member States shall prohibit the placing on the market of the single-use plastic products listed in Part B of the Annex and of products made from oxo-degradable plastic.”
