ClientEarth v Commission (Action for annulment - Internal market - Environment - Order) [2019] EUECJ T-677/17

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(Action for annulment — Internal market — Environment — Regulation (EU) 2017/1154 — Action which has become devoid of purpose — No need to adjudicate)

ClientEarth, established in London (United Kingdom), represented by A. Jones, Barrister,

European Commission, represented by A. Becker, G. Gattinara and M. Huttunen, acting as Agents,

APPLICATION under Article 263 TFEU seeking annulment in part of Commission Regulation (EU) 2017/1154 of 7 June 2017 amending Regulation (EU) 2017/1151 supplementing Regulation (EC) No 715/2007 of the European Parliament and of the Council on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information, amending Directive 2007/46/EC of the European Parliament and of the Council, Commission Regulation (EC) No 692/2008 and Commission Regulation (EU) No 1230/2012 and repealing Regulation (EC) No 692/2008 and Directive 2007/46/EC of the European Parliament and of the Council as regards real-driving emissions from light passenger and commercial vehicles (Euro 6) (OJ 2017 L 175, p. 708)

composed of M. Prek, President, F. Schalin (Rapporteur) and M.J. Costeira, Judges,

1 The present case concerns the arrangements established by the Commission to govern emissions tests and approval of light passenger and commercial vehicles in the European Union, in light of recent revelations regarding deceptive practices carried out by manufacturers and the failure of Member State authorities to enforce the emission limits set for the protection of human health. The legislative framework establishes emissions standards and imposes a series of reporting requirements upon manufacturers when they seek vehicle type-approval before placing a product on the market. As part of this approval process, vehicle manufacturers are obliged to provide national type-approval authorities with a package of specific documentation detailing the technical workings of emissions control systems used in vehicles, including information on how emissions control systems work and the impact on emissions into the environment of any system which alters emissions from their baseline.

2 The second sub-paragraph of Article 1(3)(a) of Commission Regulation (EU) 2017/1154 of 7 June 2017 amending Regulation (EU) 2017/1151 supplementing Regulation (EC) No 715/2007 of the European Parliament and of the Council on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information, amending Directive 2007/46/EC of the European Parliament and of the Council, Commission Regulation (EC) No 692/2008 and Commission Regulation (EU) No 1230/2012 and repealing Regulation (EC) No 692/2008 and Directive 2007/46/EC of the European Parliament and of the Council as regards real-driving emissions from light passenger and commercial vehicles (OJ 2017 L 175, p. 708) (‘the contested provision’) requires that the extended documentation package provided by vehicle manufacturers to type approval authorities ‘shall remain strictly confidential’.

3 According to the applicant, the contested provision is unlawful, as it infringes rights of access to environmental information, including information on emissions into the environment, which are protected by Articles 3 and 4 of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26), Article 6 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) and Article 2 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). The applicant also submits that the contested provision goes beyond the scope of the Commission’s powers laid down in Articles 5(3) and 14(3) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ 2007 L 171, p. 1) and infringes the general principle of proportionality under EU law.

4 By application lodged at the Court Registry on 2 October 2017, the applicant brought the present action.

5 By separate document lodged at the Court Registry on 19 December 2017, the Commission raised an objection of inadmissibility regarding the action against the contested provision, pursuant to Article 130(1) of the Rules of Procedure of the General Court. In particular, the Commission questioned whether the applicant fulfils the criterion of direct concern.

6 By documents lodged at the Court Registry on 30 January 2018, the applicant submitted its observations on the objection of inadmissibility.

7 By order of 11 July 2018, the Court decided to continue the proceedings on the substance of the case before ruling on the Commission’s plea of inadmissibility and requested the Commission to lodge a defence.

8 The defence, reply and rejoinder were lodged at the Court Registry on 14 September, 29 October and 18 December 2018, respectively.

9 By way of measure of organisation of procedure of 26 June 2019, the Court asked the applicant to submit its observation on the argument put forward by the Commission in the rejoinder that the applicant no longer has an interest in pursuing the action following a recent amendment deleting the contested provision. The applicant complied with that request on 12 July 2019.

10 In accordance with Article 131 of the Rules of Procedure of the General Court, the parties were requested, on 24 July 2019, to state their views on whether the action still had a purpose following the adoption of Regulation 2018/1832 of 5 November 2018 amending Directive 2007/46/EC of the European Parliament and of the Council, Commission Regulation (EC) No 692/2008 and Commission Regulation (EU) 2017/1151 for the purpose of improving the emission type-approval tests and procedures for light passenger and commercial vehicles, including those for in-service conformity and real-driving emissions and introducing devices for monitoring the consumption of fuel and electric energy (OJ 2018 L 301, p. 1). By letters lodged on 6 and 8 August 2019, the parties submitted their observations on that issue.

– annul the second sub-paragraph of Article 1(3)(a) of Regulation No 2017/1154 amending Article 5(11) of Regulation No 2017/1151;

– declare the application inadmissible and, in any event, dismiss it as unfounded;

13 Under Article 131(1) of its Rules of Procedure, the Court may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties, declare that the action has become devoid of purpose and that there is no need to adjudicate on it.

14 In the present case, the Court considers that it has sufficient information available to it from the material in the file and has decided, pursuant to that article, to give a decision without taking further steps in the proceedings.

15 It should be noted that, according to case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That interest in bringing proceedings and the purpose of the action must continue until the final decision, failing which there will be no need to adjudicate. This presupposes that the action must be likely, if successful, to procure an advantage for the party bringing it (judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, ECR, EU:C:2007:322, paragraph 42, and order of 16 July 2015, PAN Europe and Stichting Natuur en Milieu v Commission, T‑574/12, EU:T:2015:541, paragraph 23).

16 It is settled case-law that there is no longer any need to adjudicate on an application for annulment where an applicant has, by reason of an event occurring since the action was brought, lost all legal interest in having the contested measure annulled, which means that the annulment of that measure is, of itself, no longer capable of having legal consequences (see judgment of 23 October 2012, Vanhecke v Parliament, T‑14/09, EU:T:2012:560, paragraph 25 and the case-law cited).

17 The present application, lodged under the fourth paragraph of Article 263 TFEU, seeks the annulment of the contested provision.

18 However, the requirement under the contested provision that the manufacturer’s extended documentation package remain strictly confidential has been removed from the legal framework governing emissions control at EU level by Commission Regulation 2018/1832. Thus, following the entry into force of that regulation, the Real-Driving Emissions test regime no longer imposes the confidentiality clause contested by the applicant.

19 Consequently, the annulment of the contested provision at issue by the EU Courts could no longer procure an advantage for the applicant capable of justifying its claim that it retains an interest in bringing proceedings.

20 That conclusion cannot be called into question by the applicant’s argument that its continuing interest in bringing proceedings may be based on the principle laid down by the Court in its judgment of 7 June 2007, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322).

21 In that regard, it follows from the Court’s case-law that, in certain circumstances, an applicant may retain an interest in seeking the annulment of an act repealed in the course of proceedings, in order to induce the author of the contested act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated.

22 However, the principle thus enshrined in case-law must be limited to situations in which the applicant demonstrates precisely and specifically the existence of a risk of repetition of the alleged unlawfulness (judgment of 6 September 2018, Bank Mellat v Council, C‑430/16 P, EU:C:2018:668, paragraph 65).

23 Even if the applicant considers it likely that the Commission would implement the contested provision, as amended, in an unlawful manner in the future and that national authorities would infringe the applicant’s right of access to information on the basis of unlawful guidance from the Commission in the future, it should be noted that this argument is mere speculation.

24 Although it cannot be ruled out that, in the future, there will be disputes as to which information contained in the extended documentation package relates to emissions into the environment and must therefore be disclosed and which (environmental) information might, in a specific case, be covered by one of the exceptions provided for in Directive 2003/4/EC, Regulation 1367/2006 and Regulation 1049/2001 (for example, the exception relating to confidentiality of commercial or industrial information), any clarification that may be provided in the present proceedings regarding all the issues raised with a view to avoiding future litigation is not sufficient for it to be concluded that the applicant retains an interest in pursuing the action.

25 That conclusion is not altered by the judgment in case C‑57/16, Client Earth v Commission (C‑57/16 P, EU:C:2018:669), relied upon by the applicant in support of its argument that it still has an interest in pursuing the action. In that case, the applicant complained that the General Court took the view that the Commission was entitled to refuse to grant access to the documents at issue by relying on a general presumption. Since the General Court accepted the application of that presumption, it was likely that the Commission would implement it again in the future in response to new requests for access to documents drawn up in connection with the preparation of an ongoing impact assessment. That is the main reason why the Court, on appeal, ruled that the applicant retained an interest in bringing proceedings, despite the fact that the applicant, in the course of the appeal proceedings, had gained access to the documents. In addition, in that case, the Commission had not withdrawn the contested decision.

26 That is not the situation in the present case. In the first place, the contested provision has been removed from the EU legal framework. In the second place, while it is true that, during the written procedure, the Commission argued that the extended documentation package does not contain information on emissions into the environment, it also maintained that the contested provision could not, due to its ranking in the hierarchy of norms under EU law, alter the rights of access to environmental information laid down in the Directive 2003/4/EC and Regulation 1367/2006. Therefore, no conclusion can be drawn in the present case as regards future decisions by the Commission or the national authorities when considering requests for access to extended documentation packages.

27 As a result, without it being necessary to examine the admissibility of the action, according to the applicant another unresolved issue, the Court finds that the action has become in any event devoid of purpose and there is no longer any need to adjudicate on it.

28 Article 137 of the Rules of Procedure provides that, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.

29 Having regard to the circumstances of the present case and in the light of the order sought by the applicant and the Commission, pursuant to Article 137 of the Rules of procedure, the Court orders that each party is to bear its own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> ClientEarth v Commission (Action for annulment - Internal market - Environment - Order) [2019] EUECJ T-677/17_CO (18 September 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/T67717_CO.html Cite as: ECLI:EU:T:2019:656, [2019] EUECJ T-677/17_CO, EU:T:2019:656

Court of Justice of the European Communities (including Court of First Instance Decisions)