CYIL vol. 11 (2020)

CYIL 11 (2020) METHODS OF APPLICATION OF THE AARHUS CONVENTION IN THE CASE-LAW… if that provision satisfies two conditions: (i) it must be binding on the Community and (ii) it must be capable of conferring rights on citizens of the Community which they can invoke before the courts. In the context of General Agreement on Tariffs and Trade (GATT) and the agreements concluded within the framework of the World Trade Organisation (WTO agreements), which are not capable of direct effect and therefore, given their nature and structure, are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Union institutions, the Court developed, in Fediol  29 and Nakajima  30 , two exceptions allowing it to review the legality of EUmeasures from the point of view of the WTO agreements: (i) if the Union intended to implement a particular obligation assumed in the context of the WTO, or (ii) if the Union act refers expressly to the precise provisions of those agreements. 31 Outside the scope of the WTO agreements, it is settled case- law that, besides the condition relating to the binding character of the international agreement in question with respect to the Union, the examination of the validity of EU legislation in the light of that agreement may not be precluded by the nature and the broad logic of the latter and its provisions must appear, as regards their content, to be unconditional and sufficiently precise, i.e. they must have direct effect. However, that case-law is not consistent as to whether the condition relating to direct effect must be construed in the broader or in the narrower sense. Thus, on the one hand, in Intertanko 32 , the Court has held that, since the United Nations Convention on the Law of the Sea, signed in Montego Bay on 10 December 1982 (UNCLOS), does not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States, the nature and the broad logic of UNCLOS prevent the Court from being able to assess the validity of a Community measure in the light of that convention. By contrast, in Biotech  33 , the Court has ruled that, even if the Convention on Biological Diversity, signed on 5 June 1992 in Rio de Janeiro (CBD), contains provisions which do not have direct effect, in the sense that they do not create rights which individuals can rely on directly before the courts, that fact does not preclude review by the courts of compliance with the obligations incumbent on the Community as a party to that agreement. Whereas the former ruling was based on a narrow understanding of direct effect in the sense of conferral of individual rights, in the latter ruling, the (presumed) lack of direct effect of the international agreement concerned did not prevent the Court from reviewing the legality of EU legislation in the light of that agreement. The latter ruling may be understood as a decision based on primacy of international law rather than on the protection of subjective rights derived from that law, since the narrower and the broader conceptions of direct effect are clearly distinguished. 34

29 70/87, EU:C:1989:254. 30 C69/89, EU:C:1991:186.

31 See judgments of 5 October 1994, Commission v Germany (C-280/93, EU:C:1994:367, paragraphs 109-111), and of 9 September 2008, FIAMM (C-120/06 P and C-121/06 P, EU:C:2008:476, paragraphs 111-112). 32 Judgment of 3 June 2008 (C308/06, EU:C:2008:312, paragraphs 64-65). In this respect, it must be pointed out that Advocate General Kokott, in her Opinion delivered in that case on 20 November 2007 (C-308/06, EU:C:2007:689, point 59), expressed the view that UNCLOS as such might be used as a criterion for the legality of EU measures, but the degree to which individuals can rely on it can be determined solely on the basis of the provision in question. 33 Judgment of 9 October 2001, Netherlands v Parliament and Council (C377/98, EU:C:2001:523, paragraph 54). 34 See MENDEZ, M. The Legal Effects of EU Agreements , p. 266.

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