CYIL vol. 11 (2020)

MICHAEL SIMAN CYIL 11 (2020) Apart from those two extremes, there appears to be a mainstream body of case-law, which is based on a broader conception of direct effect. Accordingly, in Pêcheurs de l’étang de Berre 35 , the Court held that Article 6(3) of the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources, signed in Athens on 17 May 1980, and Article 6(1) of the Protocol as amended had direct effect, so that any interested party was entitled to rely on those provisions before the national courts, on the basis of the clear, precise and unconditional nature of the prohibition resulting from those provisions, without examining the question whether they conferred any subjective rights on individuals. Similarly, in IATA and ELFAA 36 , the Court based its finding that Articles 19, 22 and 29 of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air are among the rules in the light of which the Court reviews the legality of acts of the Community institutions on the fact that, first, neither the nature nor the broad logic of the Convention precluded this and, second, those three articles appeared, as regarded their content, to be unconditional and sufficiently precise. Finally, in ATAA  37 , the Court held that Article 2(2) of the Kyoto Protocol to the United Nations Framework Convention on Climate Change could not serve as a reference criterion for the purposes of reviewing the legality of EU legislation, because it was not unconditional and sufficiently precise so as to confer on individuals the right to rely on it in legal proceedings in order to contest the validity of such legislation. However, on the basis of the same criteria, the Court ruled that certain provisions of the Open Skies Agreement 38 could be relied upon by private persons in the legal proceedings for the purpose of assessing the validity of EU legislation, because they laid down unconditional and sufficiently precise obligations. Again, no conferral of subjective rights liable to be invoked directly by individuals (as opposed to the right to rely on such provisions), which corresponds to the direct effect in the narrower sense, was required. In Council v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht 39 , the Court had to deal with the question whether the Aarhus Convention, in particular Article 9(3) of that convention, could serve as a criterion for the assessing of validity 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 to Community institutions and bodies 40 . In that case, the General Court, in the judgment under appeal 41 , relying on the Court’s case-law established in Fediol 42 and Nakajima  43 , had held that it had to exercise its review of the legality of the EU act in question in the light of rules laid down in an international agreement that are not capable of conferring on the individual concerned the right to invoke it before the courts in a situation where the EU has sought to implement a particular obligation entered into within the framework of that agreement or where the secondary legislative act 35 Judgment of 15 July 2004 (C-213/03, EU:C:2004:464, paragraphs 39-47). 36 Judgment of 10 January 2006 (C344/04, EU:C:2006:10, paragraph 39). 37 Judgment of 21 December 2011 (C-366/10, EU:C:2011:864, paragraphs 77-78, 86-100). 38 Air Transport Agreement concluded on 25 and 30 April 2007 between the United States of America, of the one part, and the European Community and its Member States, of the other part, as amended. 39 Judgment of 13 January 2015 (C-401/12 P to C-403/12 P, EU:C:2015:4). 40 OJ 2006L 264, p. 13. 41 Judgment of 14 June 2012 , Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission (T396/09, EU:T:2012:301).

42 70/87, EU:C:1989:254. 43 C69/89, EU:C:1991:186.

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