CYIL vol. 11 (2020)

CYIL 11 (2020) METHODS OF APPLICATION OF THE AARHUS CONVENTION IN THE CASE-LAW… of that convention form an integral part of the legal order of the European Union. 7 In particular, by becoming a party to the Aarhus Convention, the European Union undertook to ensure, within the scope of EU law, a general principle of access to environmental information held by or for public authorities. 8 Article 216(2) TFEU provides that agreements concluded by the Union are binding upon the institutions of the Union and on its Member States. According to the Court’s case-law, it follows from that provision that international agreements concluded by the EU bind its institutions and consequently prevail over the acts laid down by those institutions. However, the effects, within the EU legal order, of provisions of an agreement concluded by the EU with non-member States may not be determined without taking account of the international origin of the provisions in question. 9 In particular, such an agreement cannot prevail over primary law 10 , but, as mentioned above, has primacy over secondary EU law. Nonetheless, the mechanisms of application of the Aarhus Convention in EU law and in national law, as a matter of EU law, are far from straightforward. In fact, as an instrument of international law, that convention does not apply automatically in the EU legal order, but, in order to produce direct or indirect effect, the provisions of that convention to be applied must meet a series of conditions laid down by the Court in its case-law. 2. A Source of Directly Applicable Rights Unlike in the case of EU law, direct effect in the sense of conferring rights that may be invoked directly by private persons in the traditional narrower sense, as used in EU law, is, by nature, not one of the ontological features of international agreements. However, direct effect of such agreements is not excluded per se . 11 Therefore, the question arises whether certain provisions of the Aarhus Convention may serve as a source of directly applicable rights and as such be relied upon directly by private persons. In Lesoochranárske zoskupenie VLK, 12 the Court dealt with the question whether Article 9(3) of the Aarhus Convention has direct effect. That provision stipulates that ‘[e]ach 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’. The Court pointed out that a provision in an agreement concluded by the European Union with a non-member country had to be regarded as being directly applicable 7 Judgment of 8 March 2011, Lesoochranárske zoskupenie VLK (C-240/09, EU:C:2011:125, paragraph 30). On recent developments and trends in the field of implementation of the Aarhus Convention in the EU legal order, see NAGY, A.D. The Aarhus-Acquis in the EU. Developments in the Dynamics of Implementing the Three Pillars structure. In: CARANTA, R., GERBRANDY, A., MÜLLER, B. (eds.). The Making of a New European Legal Culture: the Aarhus Convention . Groningen: Europa Law Publishing, 2018, pp. 19-69. 8 Judgment of 19 December 2013, Fish Legal (C279/12, EU:C:2013:853, paragraph 35). 9 Judgment of 13 January 2015, Council v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C-401/12 P to C-403/12 P, EU:C:2015:4, paragraphs 52-53). 10 See, by analogy, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council (C- 402/05 P and C-415/05 P, EU:C:2008:461, paragraphs 285 and 308), where the Court has ruled that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the Treaty and that primacy of international agreements concluded by the Union at the level of EU law does not extend to primary law. 11 Cf. MARTINES, F. Direct Effect of International Agreements of the European Union. In: European Journal of International Law , 25, No. 1, pp. 129-147, at pp. 136-137 and 144. 12 Judgment of 8 March 2011 (C-240/09, EU:C:2011:125, paragraphs 43-45).

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