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EU Risk Regulators and EU Procedural Law

  • Merijn Chamon (a1)

Before the Treaty of Lisbon, EU agencies were unknown in the EU's primary law defined procedural law. Today, following (i) the Treaty's entry into force, (ii) the Common Approach on Decentralised Agencies and (iii) the European Court of Justice's ruling in Short–selling it is interesting to take a look at the peculiar position of EU agencies under the EU's primary and secondary law defined procedural law.

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1 Alemanno Alberto and Mahieu Stéphanie, “The European Food Safety Authority before European Courts”, 3 EFFL (2008), pp. 320 et seqq.

2 The EU agencies meant here may be defined as follows: permanent bodies under EU public law established by the EU legislator and endowed with legal personality. As a result, bodies such as the European Stability Mechanism and the European Financial Stability Facility fall outside the scope of this contribution. The legal issues raised by these bodies are even more problematic than those posed by the EU agencies. While the latter are part of and may be controlled within the EU legal order, this is not the case for the intergovernmental experiments of the ESM and EFSF. Their effects on the EU's constitutional law is part of another debate.

3 Risk regulation is then not simply defined as regulating the adverse effects on (human) health and the environment which may be posed by technology as proposed by Anderson (see Anderson Christopher, “Contrasting models of EU administration in judicial review of risk regulation”, 51 CMLRev. (2014), pp. 425 et seqq., at p. 429) but would also include the regulation of adverse effects of technology and market operators’ behaviour on the stability and orderly functioning of essential economic sectors.

4 This qualitative agencification is what Bach and Jann have also termed ‘procedural agencification’, see Bach Tobias and Jann Werner, “Des animaux dans un zoo administratif: le changement organisationnel et l'autonomie des agences en Allemagne”, 76 RISA (2010), pp. 469 et sqq., at pp. 470-1.

5 Generally, see Merijn Chamon, “Le recours à la soft law comme moyen d’éluder les obstacles constitutionnels au développement des agences de l’UE”, RUE (2014), pp. 152 et seqq. This was also remarked in previous issues of the Journal, see Simoncini Marta and Contissa Giuseppe, “Against the Failures of Risk Regulation Liability and Safety Air Traffic Management (ATM) Transnational Risks and Multilevel Regulation: A Cross–Comparative Perspective”, 4 EJRR (2013), pp. 175 et seqq., at p. 186; Gabbi Simone, “The Principle of Institutional (Un)Balance after Lisbon”, 5 EJRR(2014), pp. 259 et seqq.

6 Lenaerts Koen, “Regulating the regulatory process: “delegation of powers” in the European Community”, 18 ELRev. (1993), pp. 23 et seqq., at pp. 45-6.

7 See Case 294/83, Parti écologiste “Les Verts” v. Parliament, [1986] ECR 1339.

8 Case T-411/06, Sogelma v. EAR, [2008] ECR II-2771.

9 Case C-15/00, Commission v. EIB, [2003] ECR I-7281.

10 See also Remmert Barbara, “Die Gründung von Einrichtungen der mittelbaren Gemeinschaftsverwaltung”, 37 Europarecht (2003), pp. 134 et seqq., at p. 140.v

11 See Joined Cases 32/58 & 33/58, SNUPAT v. High Authority, [1959] ECR 127; Joined Cases T-369/94 & T-85/95, DIR International Film e.a. v. Commission, [1998] ECR II-357.

12 Case T-123/00, Dr Karl Thomae GmbH v. Commission, [2002] ECR II-5193.

13 Case T-133/03, Schering–Plough Ltd v. Commission and EMEA, nyr.

14 See supra note 11.

15 Shering–Plough, at para. 22 (own emphasis).

16 Article 1 of the EAR's founding regulation (2667/200) also explicitly provided its powers to implement the CARDS programme would be delegated to it by the Commission.

17 For a case involving a genuine delegation from the Council to the Commission where the latter's decision was imputed to the former, see Case T-49/04, Hassan v. Council and Commission, [2006] ECR II-52. Further, should damages be claimed, imputing a decision to the Commission would result in the non–contractual liability of the Union rather than that of the agency itself.

18 Furthermore, in case of an annulment, it is unclear how under Article 266 TFEU the Commission could “take the necessary measures to comply with the judgment of the Court” without violating an agency's statutory independence.

19 See Article 18 of the Cedefop Regulation (No 337/75, OJ 1975 L 39/1); Article 22 of the Eurofound Regulation (No 1365/75, OJ 1975 L 139/1); Article 22 of the EU-OSHA Regulation (No 2062/94, OJ 1994 L 216/1); see Article 44 of the CPVO Regulation (No 2100/94, OJ 1994 L 227/1); Article 122 of the OHIM Regulation (No 207/2009, OJ 2009 L 78/1); Article 28 of the ECDC Regulation (No 851/2004, OJ 2004 L 142/1); for the EFSA the procedure is not provided for in its establishing regulation but in Article 36 of the GMO Regulation (No 1829/2003, OJ 2003 L 268/1) and Article 14 of the Food Contact Materials Regulation (No 1935/2004, OJ 2004 L 338/4).

20 The procedure was used once in relation to a decision of the EUOSHA, but the Commission sided with the agency and its decision was not appealed before the General Court.

21 For a different assessment, see Fischer–Appelt Dorothee, Agenturen der Europäischen Gemeinschaft, (Berlin: Duncker & Humblot, 1999), at p. 312.

22 The Commission's Legal Service also suggested this during the negotiations on the European Environment Agency. Advancing a conservative reading of Meroni, it noted that the Commission should remain responsible for the agency's functioning. See Commission Legal Service, 2 juin 1989, ‘Note à l'attention de M. Brinkhorst concernant l'Agence Européenne pour l'Environment', JUR (89) D/3370, pp. 1-2.

23 Ellen Vos , “Agencies and the European Union”, in Tom Zwart & Luc Verhey (eds.), Agencies in European and comparative perspective, (Antwerpen: Intersentia, 2003), pp. 113 et seqq., at pp. 140-1.

24 See Saurer Johannes, “Transition to a New Regime of Judicial Review of EU Agencies”, 1 EJRR (2010), pp. 325 et seqq., at p. 327.

25 See Article 86 of the SRB Regulation (No 806/2014, OJ 2014 L 225/1).

26 Secretariat of the European Convention, Right of appeal against agencies created by secondary legislation, 10 March 2003, Working Document 9 of the Discussion Circle on the Court of Justice, para. 6.

27 This Article would prevent the legislator from providing those conditions and arrangements in such a way that access to the courts is effectively frustrated.

28 See supra note 19.

29 See supra note 19.

30 See Regulation No 216/2008, OJ 2008 L 79/1 (EASA Regulation).

31 See Regulation No 1907/2006, OJ 2006 L 396/1 (ECHA/REACH Regulation).

32 See Regulation No 713/2009, OJ 2009 L 211/1 (ACER Regulation).

33 See Regulation No 1093/2010, OJ 2010 L 331/12 (EBA Regulation), Regulation No 1094/2010, OJ 2010 L 331/48 (EIOPA Regulation) and Regulation No 1095/2010, OJ 2010 L 331/84 (ESMA Regulation).

34 See supra note 25.

35 See Article 51 in COM (2013) 27 final.

36 See Opinion of AG Sharpston in Case C-29/05 P, OHIM v. Kaul GmbH, [2007] ECR I-2213, at para. 29.

37 Fischer–Appelt, Agenturen der Europäischen Gemeinschaft, supra note 21, at p. 314.

38 René Barents, Procedures en procesvoering voor het Hof van Justitie en het Gerecht van eerste aanleg van de EG, (Deventer: Kluwer, 2005), at p. 45.

39 Case T-273/02, Krüger GmbH & Co. KG v. OHIM, [2005] ECR II-1271, at para. 62. See also Case T-63/01, The Procter & Gamble Company v. OHIM, [2002] ECR II-5255, at paras 22-3.

40 This is also confirmed by the Ombudsman's decision on complaint 181/2012/VL, closing an enquiry on the EASA because proceedings were instituted before the EASA Board of Appeal. However, the Ombudsman noted that following the decision of the Board of Appeal, the complainant could file a new complaint with the Ombudsman.

41 In the US as well there is a discussion on the precise difference between these judges and the ordinary ‘Article III’ (of the US Constitution) judges. See e.g. Moliterno James, “The Administrative Judiciary's Independence Myth”, 27 Journal of the National Association of Administrative Law Judiciary (2007), pp. 53 et seqq.

42 See 5 U.S. Code § 557 (b).

43 The system of administrative judges is also under continuous discussion in the US. For a proposal which would align the US system more with that of the EU's Boards of Appeal, see Weaver Russel and Jellum Linda, “Neither Fish Nor Fowl: Administrative Judges in the Modern Administrative State”, 28 Windsor Yearbook of Access to Justice (2010), pp. 243 et seqq., at pp. 257-8.

44 See Articles 47 (3) CPVO, 136 (4) OHIM, 42 (2) EASA, 90 (2) ECHA, 18 (3) ACER, 59 (1) ESAs, 85 (2) & (5) SRB.

45 Thomas David, “European Chemical Agency Board of Appeal decisions in Honeywell and Dow Chemicals”, 20 MJECL (2013), pp. 609 et seqq., at p. 612.

46 This is not the case for the SRB.

47 See Articles 47 (5) CPVO, 136 (3) OHIM, 42 (4) EASA and 90 (4) ECHA.

48 See Articles 18 (3) ACER and 58 (5) ESAs.

49 See Articles 47 (5) CPVO and 136 (3) OHIM.

50 See Articles 18 (3) ACER and 58 (5) ESAs.

51 See Articles 42 (4) EASA and 90 (4) ECHA.

52 Again here the exception is the SRB.

53 See Articles 47 (4) CPVO, 136 (5) OHIM, 42 (3) EASA, 90 (3) ECHA, 18 (3) ACER and 59 (1) ESAs.

54 See Articles 48 (1) CPVO, 137 (1) OHIM, 43 (1) EASA, 90 (5) ECHA, 18 (4) ACER and 59 (2) ESAs.

55 See Articles 18 (7) ACER, 59 (6) ESAs and 85 (5) SRB.

56 See for instance heading 4 and Article 4 of the code of conduct of the Boards of Appeal of EASA and ECHA respectively.

57 Since most normal members of the Boards of Appeal are staff of the agency, this issue is partially horizontally covered through the EU's Staff Regulations.

58 OHIM, Annual Report 2010, p. 8.

59 Still it may be noted that the Commission originally forecasted a much greater number of appeals before the ECHA Board of Appeal: for the year 2010 the Commission predicted 549 cases while in reality only one appeal was lodged. See European Commission, REACH Operational Staff Model Summary – Agency, on file with the author.

60 The Common Approach has indeed been received rather critically, see Comte Françoise, “Agences décentralisées: vers un statut unifié? Approche commune du Parlement européen, du Conseil de l'Union européenne et de la Commission européenne sur les agences décentralisées”, in Inge Govaere & Dominik Hanf (eds.), Scrutinizing Internal and External Dimensions of European Law – Les dimensions internes et externes du droit européen à l'épreuve, (Bruxelles: Peter Lang, 2013), Vol. I, pp. 143 et seqq.; Bernard Elsa, “Accord sur les agences européennes: la montagne accouche d'une souris”, RDUE (2012), pp. 399 et seqq.

61 See paragraph 21 of the Common Approach.

62 The exception here is the OHIM, the jurisdiction of the Board of Appeal being defined ratione personae, i.e. the regulation sets out a list of bodies, the decisions of which are challengeable before the Board of Appeal.

63 This is not the case for appeals against decisions of the ACER or ESAs.

64 For the ECHA and EASA the fees depend on the size of the company appealing the decisions. For the OHIM and CPVO they are fixed. Normally when an appeal is upheld, the fee is reimbursed. For the OHIM however, the appellant also needs to show a substantial procedural violation.

65 Generally a two month period applies. Under the ECHA Regulation it is three months. For appeals against the OHIM and CPVO parties have two months two file the appeal and another two months to complete their written statement.

66 The Boards of Appeal of the ACER and the ESAs must decide on an appeal two months after it is lodged. That of the SRB must decide within one month.

67 These are the OHIM, CPVO and ECHA. In the case of the CPVO however, the agency may order the decision not to be suspended. The OHIM and ECHA do not have this power.

68 The EASA may decide to suspend a challenged decision. For the ACER, the ESAs and the SRB, the Boards of Appeal take the decision on suspension.

69 See Articles 63 OHIM, 71 CPVO, 48 EASA, 13 (1) ECHA Implementing Regulation (IR) (No 771/2008, OJ 2008 L 206/5), 19 (4) ACER, 60 (4) ESAs and 85 (7) SRB.

70 Under the following provisions decisions are made public: Articles 60 (7) ESAs, 19 (7) ACER, 21 (5) ECHA IR and Article 14 of the EASA Board of Appeal Rules of Procedure. Whether such an obligation may be derived from the Charter is doubtful. Still, paragraph 2 of Article 41 on the right to good administration sets out a non–exhaustive list of rights coming under the general right to good administration. See Jacqué Jean–Paul, “Le droit à une bonne administration dans la Charte des droits fondamentaux de l’Union européenne”, RFAP (2011), pp. 79 et seqq., at pp. 81–2. Here it may be noted that decisions of the Boards of Appeal are special in the sense that they amount to authoritative soft law informing the future behaviour of the agency and the Board itself. For this reason, it makes sense to make the decisions public.

71 See Article 60 (5) ESAs.

72 The registry is normally provided for in the implementing regulations. See Articles 5 OHIM Implementing Regulation (No 216/96, OJ 1996 L 28/11), 5 (1) ECHA IR. Sometimes it is provided the Director will set up a registry, see Article 12 (1) CPVO IR, Article 5 (1) EASA Implementing Regulation (No 104/2004, OJ 2004 L 16/20). The registry for the ACER is established pursuant to Article 7 of the Board of Appeal's Rules of Procedure. For the ESAs, see Article 58 (8) ESAs.

73 See Articles 72 (3) ESAs and 85 (3) SRB.

74 For both agencies the ordinary members are appointed by the Management Boards but in the case of the CPVO this is done following a proposal of the Office itself. The Chairs of the OHIM Boards of Appeal are appointed by the Council following a proposal by the Management Board. For the CPVO the Chair is appointed by the Commission following a proposal by the Management Board.

75 See Articles 90 (1) ECHA, 58 (4) ESAs and 85 (2) SRB.

76 See Article 85 SRB.

77 Case 9/56, Meroni & Co. v. High Authority, [1957-1958] ECR 133, at p. 152.

78 As noted elsewhere, this is not the only rule which may be identified in Meroni, see Chamon Merijn, “The empowerment of agencies under the Meroni doctrine and article 114 TFEU: comment on United Kingdom v Parliament and Council (Short–selling) and the proposed Single Resolution Mechanism”, 39 ELRev. (2014), pp. 380 et seqq., at p. 382.

79 Case 9/56, supra note 77, at p. 153.

80 The CFI also scrutinising a preparatory act, which normally cannot be challenged, was also confirmed in Olivieri where the court noted that the opinion at issue was purely and simply confirmed by the final decision which also referred to the opinion in its recitals. See Case T-326/99, Olivieri v. Commission and EMEA, [2003] ECR II-6053, at para. 55. Ultimately however, the court dismissed the action because the applicant was not individually concerned by the contested (final) decision.

81 Joined cases T-74/00, T-76/00, T-83/00, T-84/00, T-85/00, T-132/00, T-137/00 & T-141/00, Artegodan GmbH e.a. v. Commission, [2002] ECR II-4945, at para. 199.

82 Ibid., at para. 200.

83 According to AG Cosmas for instance, the ECJ, under its standard test, must still be able to “conclude with a reasonable degree of certainty that there has been neither a mistake with regard to the facts which would have an effect on the validity of the [contested measure] […] nor a manifestly incorrect appraisal of those facts.” See Opinion of AG Cosmas in Case C-122/94, Commission v. Council, [1996] ECR, I-881, at para. 78. This would go beyond the test as described by the CFI in Artegodan. See also Opinion of AG Geelhoed in Case C-228/99, Silos e Mangimi Martini, [2001] ECR, I-8401, at para. 35.

84 In risk regulation, Anderson has noted that this model is exemplified in Pfizer (T-13/99) whereby the court generally defers to risk management decisions provided that a thorough and independent risk assessment was undertaken. Whether alternative approaches such as the one in Sweden v. Commission (T-229/04) where the court claimed a more prominent role, could rival the dominant one remains to be seen. See Christopher Anderson, “Contrasting models of EU administration in judicial review of risk regulation”, supra note 3, at pp. 453-4.

85 Case T-263/07, Estonia v. Commission, [2009] ECR, II-3463, at para. 55.

86 Case T-187/06, Schräder v. CPVO, [2008] ECR II-3151, at para. 59; Case T-96/10, Rütgers Germany GmbH e.a. v. ECHA, [2013] ECR nyr, at para. 134.

87 David Thomas, “European Chemical Agency Board of Appeal decisions”, supra note 45, at pp. 620-2.

88 ECHA Board of Appeal, Case A-001-2012, Dow Benelux, at para. 110.

89 Case C-270/12, United Kingdom v. Council and Parliament, [2014] ECR nyr.

90 See Merijn Chamon, “The empowerment of agencies”, supra note 78, at pp. 380-403.

91 Case C-270/12, supra note 89, at para. 53.

92 Ibid., at paras 78-86.

93 Further, the Court has clarified that the lack of intent on the part of the authority adopting a decision does not render the action directed against that decision inadmissible. See Case T-258/06, Germany v. Commission, [2010] ECR II-2027, at para. 29. By reasoned order the CFI has also observed that the Parliament’s Acts intended to produce legal effects should also be understood as acts that could exceed the limits which have been set on the competence of that institution, see Case T-353/00 R, Le Pen v. Parliament, [2001] ECR II-125, at para. 59. However, see also Saurer Johannes, op. cit., (2010) 1 EJRR 3, p. 327.

94 Case T-96/10, supra note 86, at para. 33.

95 Case T-123/03, Pfizer Ltd. v. Commission, [2004] ECR II-1631, at para. 30.

96 It is furthermore interesting to note that the Rütgers case was brought directly before the General Court. This since the secondary law provision defining the ECHA's Board of Appeal’s jurisdiction does not refer to decision adopted pursuant to Article 59 REACH.

97 Alberto Alemanno and Stéphanie Mahieu, “The European Food Safety Authority”, supra note 1, at p. 326.

98 Whether the court could draw on the Charter to further scrutinise soft law decisions and rules in such cases remains to be seen. As Craig notes, Article 41 (1) of the Charter can be interpreted broadly involving much of the Ombudsman's Code of Good Administrative Behaviour. On the other hand Article 41 (2)c might not add much to Article 296 TFEU (in relation to the EU agencies). See Craig Paul, “Article 41”, in Steve Peers, Tamara Hervey, Jeff Kenner & Angela Ward, The EU Charter of Fundamental Rights – A Commentary, (Oxford: Hart Publishing, 2014), pp. 1069 et seqq., at pp. 1072-4. As regards Article 41 (2)c, the GC noted in Aitic Penteo v. OHIM that the secondary law provisions requiring the OHIM to state reasons “has the same scope as that enshrined in Article 296 TFEU and Article 41(2)(c) of the Charter.” See Case T-585/10, Aitic Penteo v. OHIM, [2012] ECR nyr, at para. 37.

99 See e.g. Article 16 (6) of the Nutrition and Health Claims Regulation (No 1924/2006, OJ 2006 L 404/9).

100 See e.g. Article 9 (2) of the EMA Regulation (No 726/2004, OJ 2004 L 136/1).

101 EASA Board of Appeal, Case AP/04/2013, Robinson Helicopter Company, at para. 100. Of course this does not bind the Boards of Appeal of other agencies.

102 ESAs Joint Board of Appeal, Case 2013-14, Global Private Rating Company “Standard Rating” Ltd v. ESMA, at para. 183.

103 Case 302/87, Parliament v. Council, [1988] ECR 5615; Case 70/88, Parliament v. Council, [1990] ECR I-2041.

104 Case 302/87, supra note 103, at para. 21.

105 In two cases the General Court suggests that the OHIM and CPVO indeed come under the institutional balance. See Case T-165/06, Fiorucci v. OHIM, [2009] ECR II-1375, at para. 67; Case T-135/08, Schniga GmbH v. CPVO, [2010] ECR II-5089, at para. 85.

106 While the Treaties do mention EU agencies, they do not provide for them, i.e. there is no explicit clause governing the conditions under which the institutions may establish and empower agencies.

107 Cazet's inclusion of the agencies in the category of parties with active locus standi under Article 265 TFEU seems to be based on a misreading of that Article. See Cazet Safia, Le recours en carence en droit de l'Union européenne, (Bruxelles: Bruylant, 2012), at p. 124.

108 The ACER and ESAs for instance may act as ultimate arbiters between the different national authorities. The EFSA however has not been established as the ultimate scientific body on food safety above the national food safety agencies. See Alberto Alemanno, “Food Safety and the Single European Market”, in Christopher Ansell & David Vogel, What's the Beef? The Contested Governance of European Food Safety, (Cambridge: MIT Press, 2006), pp. 237 et seqq., at p. 250.

109 Joined Cases C-211/03, C-299/03 and C-316/03 to C-318/03, HLH Warenvertriebs GmbH & Orthica BV, [2005] ECR I-5141, at paras 89-94.

110 See Article 4 (2) of the Regulation establishing the Fundamental Rights Agency (168/2007); Article 54 (1) of the EASA Regulation; Recitals 31 to the EBA and ESMA Regulations and Recital 30 to the EIOPA Regulation. Article 11 (1) of the ACER Regulation contains a similar provision related to the Commission's powers as the EU's competition authority.

* I would like to thank the anonymous reviewers for their valuable comments. Any errors or omissions remain mine.

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European Journal of Risk Regulation
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