CYIL vol. 11 (2020)

MICHAEL SIMAN CYIL 11 (2020) in Lesoochranárske zoskupenie VLK II  19 , Advocate General Kokott came to the conclusion that Article 6(1)(b) of the Aarhus Convention, which provides that the Contracting Parties must, in accordance with their national law, apply the provisions of that article concerning public participation to decisions on proposed activities not listed in Annex I which may have a significant effect on the environment, was directly applicable. Therefore, in her view, it conferred on recognised environmental associations a right to require the authorities competent under national law to examine on a case-by-case basis whether proposed activities may have significant effects on the environment and whether they are therefore to be subject to Article 6. However, the Court in its judgment delivered in that case 20 did not grant direct effect to Article 6(1)(b) of the Aarhus Convention but, instead, interpreted Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora 21 as amended in the light of the former provision and came to the conclusion that an environmental organisation meeting the relevant conditions derived a right of participation from the latter provision, read in conjunction with the former provision. The Advocate General 22 also pointed out that, since the Court had held that Article 11 of the Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment  23 was directly applicable in relation to the rights of environmental associations, the same had to be true of Article 9(2) of the Convention, since that provision was the same in all significant respects as Article 11 of that directive. Again, the Court  24 did not grant direct effect to Article 9(2) of the Aarhus Convention but instead interpreted Article 6(3) of Directive 92/43, inter alia , in the light of that provision. Moreover, in Ordre des barreaux francophones et germanophone  25 , the Court had observed that Article 9(2) did not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals and therefore could not be relied upon by them. 3. A Reference Criterion for Reviewing the Legality of Secondary EU Law The question whether international agreements may serve as a reference criterion for the purposes of reviewing the legality of EU legislation is closely connected with their direct effect in the broader sense, understood as the unconditional and sufficiently precise character of the provisions in question allowing them to be invoked before courts and taken into consideration by them in the proceedings, which corresponds to the self-executing effect of international agreements 26 , or, more generally, to the justiciability  27 or invocability of such agreements. In fact, in International Fruit Company  28 , the Court has held that invalidity of Community legislation due to incompatibility with a provision of international law may be invoked only

19 Opinion of 30 June 2016 (C-243/15, EU:C:2016:491, points 64-80). 20 Judgment of 8 November 2016 (C-243/15, EU:C:2016:838, paragraph 49). 21 OJ 1992L 206, p. 7. 22 Opinion of 30 June 2016 (C-243/15, EU:C:2016:491, paragraph 62). 23 OJ 2012L 26, p. 1.

24 Judgment of 8 November 2016 (C-243/15, EU:C:2016:838, paragraph 73). 25 Judgment of 28 July 2016 (C-543/14, EU:C:2016:605, paragraphs 50 and 53). 26 Cf. MARTINES, F. Direct Effect of International Agreements of the European Union. In: European Journal of International Law , 25, No. 1, pp. 129-147, at p. 131. 27 See Opinion of Advocate General Bobek delivered on 5 June 2018 in Klohn (C167/17, EU:C:2018:387, point 46). 28 Judgment of 12 December 1972 (21 to 24-72, EU:C:1972:115, paragraphs 7-8 and 20).

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