CYIL vol. 15 (2024)

DOMINIKA MORAVCOVÁ The Court of Justice concluded similarly in the case concerning the Paris Convention provision, determining that mere identity of the provision does not confer direct effect. This decision stemmed from the Regulation’s intention to establish a specific EU legal framework in the relevant area. 58 The issue of direct effect and exceptions was also addressed by the Court in the context of the Aarhus Convention. 59 The secondary legislation, Directive on public access to environmental information, 60 states in its preamble that it is not intended to contradict the Convention. 61 The Court examined whether Article 9(3) of the Aarhus Convention 62 could be directly effective under Union law. From our perspective, it could be argued that the provisions of the Aarhus Convention could have direct effect, given the adoption of a specific Regulation under EU law to implement its provisions. 63 As an act of secondary law, the Regulation is directly effective, so it could be considered that the same effects are de facto granted to the affected articles of the Convention through the provisions of the Regulation. However, the Court clarified that objective criteria must be met for direct effect to apply universally. In the case of the Article of the Aarhus Convention under review, the Court ruled against direct effect due to the conditional nature of the provision, which states: “...where they meet the criteria, if any, laid down in its national law…” 64 Considering objective and subjective criteria, the Court’s conclusions are unsurprising. Even founding treaties are generally presumed to have direct effect, but certain provisions lack enforceability as they fail to create specific obligations or rights. The Court’s findings regarding the selected provision of the Aarhus Convention do not imply that the relevant Regulation lacks direct effect; the Regulation applies directly across all member states. Once again, it is evident that a comprehensive Union regulation aimed at fulfilling treaty obligations is not by itself adequate to activate the aforementioned exceptions, as the provision in question must always meet specific criteria and a mere reference in the regulation is insufficient. The Union has exercised its authority by adopting Union regulation to fulfill obligations, which, although not precluding direct effect, does not automatically grant it to treaty provisions. Subsequently, the Court of Justice addressed this Article of the Aarhus Convention in an appeal against the General Court’s decision. The Court examined whether Article 9(3) of the Convention precluded the application of Article 10(1) of the Aarhus Convention 58 Ibid., para. 67. 59 Convention on access to information, public participation in decision‐making and access to justice in environmental matters (OJ L 124, 17.5.2005, pp. 4–20) (the Aarhus Convention). 60 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ L 41, 14.2.2003, pp. 26–32). 61 Ibid., recital 5 of the preamble. 62 Art. 9(3) of the Aarhus Convention “In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each 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.”. 63 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 on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ L 264, 25.9.2006, pp. 13–19). 64 Judgment of the Court of 8 March 2011, Lesoochranárske zoskupenie , C-240/09, EU:C:2011:125, paras. 45 and 52.

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