CYIL vol. 11 (2020)

MICHAEL SIMAN CYIL 11 (2020) the Court refused to take into consideration Articles 4(1) and (4) and 9(1) to (5) of the Aarhus Convention as a criterion of legality of EU measures. Indeed, the direct effect of an international agreement or, more specifically, of a provision of that agreement in the broader sense is, having regard to Biotech , where the lacking direct effect in the narrower sense did not preclude the review of legality of EU legislation, on the one hand, and Intertanko , where such a lacking direct effect precluded that review, on the other hand, and the mainstream case-law in between, such as IATA and ELFAA or ATAA, still a necessary prerequisite for assessing the legality of EU measures in the light of that agreement or provision, which, in the Court’s view, is not met in the case of the provisions of the Aarhus Convention that have been subject to its assessment in the context of legality of EU legislation. In view of the Court’s case law-cited above, the application of the Aarhus Convention as a tool for harmonious interpretation of EU law and national law seems, by far, to be the most significant method of application of that convention by the Court. In particular, besides the cases where the Court interpreted relevant EU measures implementing the Aarhus Convention in line with that convention, as required by the wording of those measures itself, such as Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen , in Lesoochranárske zoskupenie VLK I and II, the Court, despite having denied direct effect to Articles 6(1)(b) and 9(2) and (3) of the Aarhus Convention, imposed a duty on the national courts to interpret their national legislation in a manner consistent with that convention so as to ensure the effectiveness of that international agreement. Similarly, in North East Pylon Pressure Campaign and Sheehy , the Court imposed such a duty on the national courts with respect to Article 9(3) and (4) of the Aarhus Convention, which, in the Court’s view, did not have direct effect. In fact, as an instrument binding on the EU institutions that constitutes an integral part of the EU legal order, the Aarhus Convention has primacy over EU legislation, which is, however, due to its lacking direct effect, limited to indirect effect. It follows that EU legislation, but also relevant national legislation must be, as a matter of EU law, so far as possible, interpreted in a manner that is consistent with that convention. Although certain cases, such as Lesoochranárske zoskupenie VLK, show that the duty of consistent interpretation may lead to similar results as direct effect and that the boundaries between the direct and indirect effect are not always clear, indirect effect is obviously a less effective method of enforcing the provisions of the Aarhus Convention. Apparently, no rights possibly resulting from those provisions may be invoked directly without any relevant EU or national legislation and no interpretation contra legem may be provided. However, since that convention is an instrument of international law, albeit integrated in the EU legal order, the method preferred by the Court seems to be justified, in particular, for the reasons stated above, such as legal certainty and discretion of the Member States in implementing that convention. Therefore, indirect effect consisting in interpreting EU and national legislation in a manner that is, as far as possible, consistent with the Aarhus Convention appears to be an adequate and, given its limits, a relatively efficient method of application of that international agreement.


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