CYIL vol. 11 (2020)

CYIL 11 (2020) METHODS OF APPLICATION OF THE AARHUS CONVENTION IN THE CASE-LAW… validity of that directive. In her Opinion 53 delivered in that case, Advocate General Sharpston came to the same conclusion. 4. A Tool for Harmonious Interpretation of EU Law and National Law It follows from the case-law that the primacy of international agreements concluded by the Union over provisions of secondary EU legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements . 54 Since the Aarhus Convention is such an agreement that prevails over secondary EU law, the principle of consistent interpretation applies also to that convention both with respect to EU law and national legislation of the Member States as a matter of EU law. The Court’s case-law provides a wide array of cases in which the Court interpreted EU legislation in the light of the Aarhus Convention. That is quite logical since many EU measures implementing that convention explicitly require such consistent interpretation. Recital 5 in the preamble to Directive 2003/4 states that ‘[p]rovisions of Community law must be consistent with that Convention with a view to its conclusion by the European Community’. Similarly, recital 5 in the preamble to Directive 2003/35 provides that ‘Community law should be properly aligned with that Convention with a view to its ratification by the Community’. Recital 3 in the preamble to Regulation No 1367/2006 also confirms that ‘[p]rovisions of Community law should be consistent with that Convention’. Accordingly, the Court has confirmed that, for the purposes of interpreting Directive 2003/4, account is to be taken of the wording and aim of the Aarhus Convention, which that directive is designed to implement in EU law. 55 It has also held that Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment 56 , as amended by Directive 2003/35, must be interpreted in the light of, and having regard to, the objectives of the Aarhus Convention, with which – as is stated in recital 5 to the latter directive – EU law should be ‘properly aligned’. 57 In this respect, the Court has also stated that it is permissible to take the Implementation Guide for the Aarhus Convention into consideration, but that guide has no binding force and does not have the normative effect of the provisions of that convention. 58 Moreover, in Lesoochranárske zoskupenie VLK , the Court, having denied direct effect to Article 9(3) of that convention, dealt with the question of indirect effect of that provision with respect to national legislation. In her Opinion 59 delivered in that case, Advocate General Sharpston pointed out that the fact that a particular provision in an international agreement is not directly effective does not mean that the national courts of a Contracting Party have no obligation to take it into account. The Court 60 agreed and went even further; it imposed a duty on the referring court to interpret, to the fullest extent possible, the procedural rules 53 Opinion of 10 March 2016 (C543/14, EU:C:2016:157, points 92-93). 54 Judgment of 10 September 1996, Commission v Germany (C-61/94, EU:C:1996:313, paragraph 52). 55 See judgment 19 December 2013, Fish Legal (C279/12, EU:C:2013:853, paragraph 37). 56 OJ 1985L 175, p. 40. 57 See judgment of 12 May 2011, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein- Westfalen (C-115/09, EU:C:2011:289, paragraph 41). 58 Judgment of 16 February 2012, Solvay (C182/10, EU:C:2012:82, paragraph 28).

59 Opinion of 15 July 2010 (C-240/09, EU:C:2010:436, points 83-93). 60 Judgment of 8 March 2011 (C-240/09, EU:C:2011:125, paragraphs 46-52).

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