CYIL vol. 11 (2020)

223 CYIL 11 (2020) METHODS OF APPLICATION OF THE AARHUS CONVENTION IN THE CASE-LAW… As far as its application in the case-law of the EU Court of Justice is concerned, three specific methods of application of that convention have been identified and analysed in this paper: (i) as a source of directly applicable rights; (ii) as a reference criterion for reviewing the legality of secondary EU law, and (iii) as a tool for harmonious interpretation of EU law and national law. The first method consists in awarding direct effect to the provisions of an international agreement in the narrower sense, i.e. in the sense of conferring subjective rights on private persons that they may invoke directly before the courts. It has been shown that such direct effect of the Aarhus Convention is not excluded per se and, indeed, may be applied by national courts on the basis of various criteria. However, in the context of EU law, the criteria laid down by the Court must be satisfied: the provision in question must contain a clear, precise and unconditional obligation capable of directly regulating the legal position of individuals. With respect to Articles 6(1)(b) and 9(2) of that convention, Advocate General Kokott, in her Opinion delivered in Lesoochranárske zoskupenie VLK II , suggested that they should be directly applicable. However, it follows from the Court’s rulings in that case and in Lesoochranárske zoskupenie VLK I and Ordre des barreaux francophones et germanophone that neither Article 6(1)(b) nor Article 9(1) to (5) of the Aarhus Convention meet the specified criteria and therefore do not have direct effect. The reluctance of the Court to recognise the rights enshrined in that convention as directly applicable subjective rights may be explained, in particular, by the different legal nature of the Aarhus Convention as a source of international law, on the one hand, and the EU law as an autonomous legal order, on the other hand, as well by the legal uncertainty possibly resulting from such a direct effect and the limitation of the discretion enjoyed by the Parties to that convention in implementing its provisions. As to the second method, the fact that the Court has refused to review the legality of EU measures in the light of the Aarhus Convention has attracted criticism and may be regarded as a ‘significant step backwards’ for judicial protection in environmental cases in the EU, justified on the pretence of the lacking direct effect. 76 However, even the critics of that refusal recognise that the reasoning based on the Fediol and Nakajima exceptions, used by the General Court in Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission , was untenable. 77 Advocate General Jääskinnen acknowledged this in his Opinion delivered in Council v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht , but proposed an alternative solution that was not based on the direct effect requirement, at least not in the narrower sense of that concept. In his view, Article 9(3) of the Aarhus Convention was, having regard to its objective and its broad logic, in part, a sufficiently clear rule that could serve as a reference criterion for the purposes of assessing the legality of EU legislation. However, the Court did not embrace that flexible approach in the context of the review of legality of EU measures in the light of international agreements and refused to use Article 9(3) of the Aarhus Convention as a reference criterion because it did not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals. For the same reason, in ClientEarth and Ordre des barreaux francophones et germanophone, Legal Culture. 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. 443-455, in particular at p. 455. 76 See SCHOUKENS, H. Access to Justice in Environmental Cases after the Rulings of the Court of Justice of 13 January 2015: Kafka Revisited? In: Utrecht Journal of International and European Law (2015) 31, pp. 46-67, at p. 62. 77 See JANS, J. Who is Afraid of the Aarhus Convention? In: Review of European Administrative Law , vol. 8 (2015), No. 1, pp. 1-3.