CYIL vol. 11 (2020)

CYIL 11 (2020) METHODS OF APPLICATION OF THE AARHUS CONVENTION IN THE CASE-LAW… makes an explicit reference to particular provisions of that agreement. Therefore, the General Court reviewed the legality of that regulation in the light of the Aarhus Convention, because that regulation was intended to implement an obligation imposed on the EU institutions under that convention, and came to the conclusion that Article 10(1) of Regulation No 1367/2006, in so far as it provided an internal review procedure only in respect of an ‘administrative act’, which was defined in Article 2(1)(g) as ‘any measure of individual scope’, was incompatible with Article 9(3) of the Aarhus Convention. As pointed out by Advocate General Jääskinen in his Opinion delivered in Council v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht  44 , the Court could, if it disagreed with the General Court’s analysis based on Fediol and Nakajima , in essence, choose between two options. It could either follow the case-law laid down in Intertanko 45 , which makes the possibility of a review of validity subject to the criterion of direct effect, or opt for the approach adopted in Biotech 46 in which the Court expressly ruled out direct effect being a universal condition governing the possibility of reliance on provisions in the context of a review of legality. He suggested that the Court should adopt the latter approach, which would involve a relaxation of the conditions governing the possibility of reliance on international agreements, such as the Aarhus Convention, and allow the General Court to examine, on an appropriate basis, the compatibility of the EU legislation with that convention. The conclusion that, in the context of the review of the conformity of an act of EU law with international law, the lack of direct effect of an international agreement should not preclude an examination of legality, was justified, in particular, by an effort to avoid creating an area free from any judicial review. However, if such an agreement were to serve as a reference criterion for the purposes of the review of legality of EU measures, it would still have to be sufficiently clear, intelligible and precise. With respect to Article 9(3) of the Aarhus Convention, the Advocate General stated that it was a ‘mixed provision’, because it was, on the one hand, subject to the adoption of a subsequent act and, consequently, could not be relied upon by individuals, but, on the other hand, it also contained an obligation on the part of the contracting parties to ensure effective access to justice in environmental matters. Therefore, in his view, despite the discretion afforded by the provision in question to national legislatures, as to the definition of certain criteria, the obligation to guarantee access to justice was sufficiently clear to preclude a rule which would have the object or the effect of removing certain categories of non-legislative decisions taken by public authorities from the scope of the review to be conducted by the national courts and, in that part, Article 9(3) of the Aarhus Convention constituted a sufficiently clear rule and could serve as a reference criterion for the purposes of assessing the legality of EU measures. However, the Court 47 did not agree with the view expressed by the Advocate General. It recalled its settled case-law, according to which the provisions of an international agreement to which the EU is a party can be relied on in support of an action for annulment of an act of secondary EU legislation or an exception based on the illegality of such an act only where, first, the nature and the broad logic of that agreement do not preclude it and, secondly, those provisions appear, as regards their content, to be unconditional and sufficiently precise. The Court confirmed its finding expressed in Lesoochranárske zoskupenie VLK , according to which 44 Opinion of 8 May 2014 (C401/12 P to C403/12 P, EU:C:2014:310, points 9-11, 78-79 and 91-95). 45 Judgment of 3 June 2008 (C308/06, EU:C:2008:312, paragraphs 64-65). 46 Judgment of 9 October 2001, Netherlands v Parliament and Council (C377/98, EU:C:2001:523, paragraph 54). 47 Judgment of 13 January 2015 (C-401/12 P to C-403/12 P, EU:C:2015:4, paragraphs 51-62).

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