CYIL vol. 11 (2020)

MICHAEL SIMAN CYIL 11 (2020) relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of the Aarhus Convention and the objective of effective judicial protection of the rights conferred by EU law. In particular, it pointed out that the provision in question was intended to ensure effective environmental protection. Despite the absence of EU rules governing the matter, the Member States were bound by the principles of equivalence and effectiveness. Accordingly, national courts were obliged to interpret their national legislation in a way which, to the fullest extent possible, was consistent with the objectives laid down in the provision in question. It may even be argued that the Court, by its extensive application of the principle of consistent interpretation, came to a conclusion supporting the effectiveness of Article 9(3) throughout the EU in a way that blurs the distinction between direct and indirect effect. 61 Indeed, the indirect effect mechanism is no longer regarded as a mere alternative to direct effect and may serve as a useful instrument for ensuring the effectiveness of EU law, including the international agreements that are part of the EU legal order. 62 Moreover, the indirect effect allows the Court to provide an interpretation that avoids inconsistencies between the EU law and national law, on the one hand, and international law, on the other hand, without jeopardising the balance of powers between the Union institutions. 63 However, the most significant disadvantage of consistent interpretation is that, unlike in the case of a directly applicable and self-executing provision of international law, such interpretation is possible only if there is relevant EU and/or national legislation, which may be construed in compliance with international law. Accordingly, for instance in the case of the WTO agreements, indirect effect does not seem to be an adequate solution for ensuring the protection of rights possibly resulting from those agreements. 64 However, as illustrated by Lesoochranárske zoskupenie VLK , in the context the Aarhus Convention, indirect effect may prove to be a relatively efficient tool for achieving effectiveness of its provisions. As mentioned above, in Lesoochranárske zoskupenie VLK II, the Court, contrary to the Opinion of Advocate General Kokott, did not grant direct effect to Articles 6(1)(b) and 9(2) of the Aarhus Convention but interpreted relevant EU law in the light of those provisions and came to the conclusion that, inasmuch as Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 9(2) and (4) the Aarhus Convention, enshrines the right to effective judicial protection, in conditions ensuring wide access to justice, of the rights which an environmental organisation meeting the conditions laid down in Article 2(5) of that convention derives from EU law, in this instance from Article 6(3) of Directive 92/43, read in conjunction with Article 6(1)(b) of that convention, it must be interpreted as precluding an interpretation of rules of national procedural law to the effect that an action against a decision refusing such an organisation the status of party to an administrative procedure for authorisation of a project that is to be carried out on a site 61 See MENDEZ, M. The Legal Effects of EU Agreements , p. 255. 62 Cf. CRAIG, P, DE BÚRCA, G.: EU Law. Text, Cases, and Materials , Sixth edition. Oxford: Oxford University Press, 2015, p. 210. 63 See KUIJPER, P. J. The Case Law of the Court of Justice of the EU and the Allocation of External Relations Powers: Whither the Traditional Role of the Executive in EU Foreign Relations. In: CREMONA, M., THIES, A. (eds.). The European Court of Justice and External Relations Law: Constitutional Challenges . Oxford: Hart Publishing, 2014, pp. 95-114, at p. 105. 64 Cf. ŽIVIČNJAK, I. Effect of WTO Law in the EU and the Individual’s Right to Damages Caused by a Breach of WTO Law. In: Croatian Yearbook of European Law and Policy , 8, pp. 531-560, at p. 553.

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