CYIL vol. 11 (2020)

CYIL 11 (2020) METHODS OF APPLICATION OF THE AARHUS CONVENTION IN THE CASE-LAW… to point out that the Conseil d’État (Supreme Administrative Court, France) 17 has awarded direct effect to certain provisions of that convention, in particular to Art. 6(2), which provides that ‘the public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia , of ’ the facts enumerated in that provision, such as the proposed activity and the application on which a decision will be taken; the nature of possible decisions or the draft decision, and the public authority responsible for making the decision; Art. 6(3), which stipulates that ‘the public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with [Art. 6(2)] and for the public to prepare and participate effectively during the environmental decision-making’ and Art. 6(7), which provides that ‘procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity’. The direct applicability of those provisions may be justified by the fact that they establish a subjective right to information in favour of the public concerned and lay down certain requirements that the public participation procedures must satisfy, in particular with respect to reasonableness of time limits and submission of relevant information by the public concerned. Unlike Article 9(3), they seem to be unconditional and sufficiently precise, which means that the criteria of direct effect could be fulfilled. Therefore, the members of the public concerned might invoke their rights resulting from those provisions directly before national courts. However, the direct applicability of those provisions, considered in their context, is not absolutely clear. In fact, Article 3(1) of the Aarhus Convention provides that ‘[e]ach Party shall take the necessary legislative, regulatory and other measures, including measures to achieve compatibility between the provisions implementing the information, public participation and access-to-justice provisions in this Convention, as well as proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention’. That article, entitled ‘General provisions’, applies also to public participation regulated by Article 6. It follows that the right to information and the requirements concerning public participation under paragraphs 2, 3 and 7 of the latter article must be implemented by measures to be adopted by the Parties to that convention. Moreover, the direct effect of international agreements concluded by the Union as a matter of EU law does not depend on the constitutional situation in the individual Member States, be they monistic or dualistic. 18 Accordingly, apart from any criteria applied by national courts with respect to direct effect, at the level of EU law, the criteria recalled by the Court in Lesoochranárske zoskupenie VLK must be applied. follows that a provision of the Aarhus Convention cannot have direct effect unless, regard being had to its wording and to the purpose and nature of that convention, it contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure. In other words, there must be a clear, precise and unconditional obligation, which must, moreover, be capable of directly regulating the legal position of individuals. In her Opinion delivered 17 See BÉTAILLE, J. The direct effect of the Aarhus Convention as seen by the French ‘Conseil d’État’. In: Environmental Law Network International , 2009 (2), pp. 63-73, in particular p. 69. 18 See ZIPPERLE, N. EU International Agreements. An Analysis of Direct Effect and Judicial Review Pre- and Post- Lisbon . Cham: Springer International Publishing, 2017, p. 10.

213