CYIL vol. 11 (2020)

MICHAEL SIMAN CYIL 11 (2020) when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure. However, in the Court’s view, the provision in question did not contain any clear and precise obligation capable of directly regulating the legal position of individuals and was subject, in its implementation or effects, to the adoption of a subsequent measure, since the rights resulting from that provision could be exercised only by the members of the public meeting the criteria laid down by national law. The Court’s refusal to grant direct effect to Article 9(3) may be regarded as predictable given the very wording of that provision, which contains a cross-reference to national implementing criteria. 13 However, it has also been criticised and qualified as ‘somewhat paradoxical’ due to the fact that the denial of direct effect of Article 9(3), which is, indeed, aimed at granting rights of access to justice upon individuals, amounts to ‘undermining its object and purpose’ and, in the end, appears to be inconsistent with the requirement of effective judicial protection. 14 In her Opinion 15 delivered in that case, Advocate General Sharpston also came to the conclusion that the provision in question did not have direct effect. In fact, in her view, in the absence of express limitations as to the criteria to be met by the members of the public in order to have access to administrative or judicial procedures, which were to be defined by the Contracting States themselves in their national legislation, the potential scope of Article 9(3) would be very wide and giving that provision would be tantamount to establishing an actio popularis ‘by judicial fiat rather than legislative action’. Moreover, such a direct effect would create considerable legal uncertainty for those bodies whose acts or omissions may be the subject of administrative or judicial procedures, including both private persons and public authorities. It is also interesting to note that Advocate General Sharpston, in the first place, suggested that it should be left to the national courts to determine whether the provision in question had direct effect and, only in the alternative, suggested that the Court should rule that Article 9(3) of the Aarhus Convention does not have direct effect as a matter of EU law. The reason was that the EU had acceded to that international treaty on 17 February 2005 but, at that time, had not adopted legislation in order to incorporate that specific provision of the treaty concerned into European Union law in respect of the obligations that it imposed on the Member States. By contrast, the Court held that it had jurisdiction to interpret the provisions in question and, in particular, to give a ruling on whether or not they have direct effect. In spite of the clear finding, shared both by the Court and the Advocate General, that Article 9(3) of the Aarhus Convention is not unconditional and therefore cannot be a source of directly applicable rights for private persons, it cannot be excluded that other provisions of that convention might have, under certain circumstances, direct effect. 16 It is interesting 13 See MENDEZ, M. The Legal Effects of EU Agreements . Oxford: Oxford University Press, 2013, p. 254. 14 PAVONI, R. Controversial aspects of the interaction between international and EU law in environmental matters: direct effect and Member States’ unilateral measures. In: MORGERA, E. (ed.). The External Environmental Policy of the European Union: EU and International Law Perspectives . Cambridge: Cambridge University Press, 2012, pp. 347-377, at pp. 357, 358 and 360. 15 Opinion of 15 July 2010 (C-240/09, EU:C:2010:436, points 81-93). 16 Cf. Report of the Twelfth Meeting of the Aarhus Convention Compliance Committee held in Geneva on 14–16 June 2006, which states in paragraph 16: ‘It is quite likely that some provisions of the Aarhus Convention, to which the European Community is a Party, have such properties as to be directly applicable in the EU member States.’ (https://www.unece.org/fileadmin/DAM/env/documents/2006/pp/ECE_ MP.PP_C.1_2006_4_Add.2_e.pdf).

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