CYIL vol. 11 (2020)

MICHAEL SIMAN CYIL 11 (2020) Article 9(3) of the Aarhus Convention does not meet those conditions. With respect to the Fediol and Nakajima exceptions to the rule that the WTO agreements may not be used for the purposes of reviewing the legality of EU measures, the Court pointed out that those exceptions were justified solely by the particularities of the agreements that led to their application. 48 Unlike in Fediol , Article 10(1) of Regulation No 1367/2006 neither made direct reference to specific provisions of the Aarhus Convention nor conferred a right on individuals. Consequently, in the absence of such an explicit reference to provisions of an international agreement, the Fediol judgment was not relevant. As far as the Nakajima ruling is concerned, the Court observed that, unlike in that case, Article 10(1) of Regulation No 1367/2006 did not implement any specific obligations within the meaning of that judgment and, in particular, it could not be considered that, by adopting that regulation, the EU intended to implement the obligations which derived from Article 9(3) of the Aarhus Convention with respect to national administrative or judicial procedures, which, as EU law then stood, fell primarily within the scope of national law. Since the General Court, in holding that Article 9(3) of the Aarhus Convention could be relied on in order to assess the legality of Article 10(1) of Regulation No 1367/2006, had vitiated the judgment under appeal by an error of law, the Court set that judgment aside. Similarly, in ClientEarth 49 , the Court excluded the possibility of relying on Article 4(1) and (4) of the Aarhus Convention in order to assess the legality of the third indent of Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents 50 . On the one hand, the latter provision neither made an express reference to the Aarhus Convention nor implemented a particular obligation stemming from that convention, and therefore the Fediol and Nakajima rulings were irrelevant to the case at issue. On the other hand, with respect to the question whether the provisions of that convention cited above were unconditional and sufficiently precise, the Court observed that the reference, in Article 4(1) of the Aarhus Convention, to national legislation indicated that that convention was manifestly designed with the national legal orders in mind and that Article 4(4) did not impose a precise obligation on the EU legislature. In Ordre des barreaux francophones et germanophone 51 , which concerned the possibility of reviewing the legality of Council Directive 2006/112/ECof 28November 2006 on the common system of value added tax 52 in the light of Article 9(4) and (5) of the Aarhus Convention in so far as those provisions establish a right of access to justice without the cost of those procedures being prohibitively expensive through ‘the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice’, the Court held that those provisions, as well as Article 9(1), (2) and (3) of that convention, to which Art. 9(4) refers, did not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals and therefore could not be relied on in order to challenge the 48 See, in this respect, Opinion of Advocate General Jääskinen delivered on 8 May 2014 in Council v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (C401/12 P to C403/12 P, EU:C:2014:310, point 29), where the Advocate General has stated that the Fediol and Nakajima judgments should not represent a general approach to reviewing the legality of EU law. 49 Judgment 16 July 2015 (C-612/13 P, EU:C:2015:486, paragraphs 37-43). 50 OJ 2001L 145, p. 43. 51 Judgment of 28 July 2016 (C-543/14, EU:C:2016:605, paragraphs 48-57). 52 OJ 2006L 347, p. 1.

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