CYIL vol. 11 (2020)

CYIL 11 (2020) METHODS OF APPLICATION OF THE AARHUS CONVENTION IN THE CASE-LAW… protected pursuant to Directive 92/43 as amended does not necessarily have to be examined during the course of that procedure, which may be definitively concluded before a definitive judicial decision on possession of the status of party is adopted, and is automatically dismissed as soon as that project is authorised, thereby requiring that organisation to bring an action of another type in order to obtain that status and to secure judicial review of compliance by the competent national authorities with their obligations stemming from Article 6(3) of that directive. In Boxus 65 , the Court interpreted Article 9(2) of the Aarhus Convention in conjunction with Article 10a of Directive 85/337, as amended by Directive 2003/35, as meaning that when a project falling within the ambit of those provisions is adopted by a legislative act, it must be possible for the question whether that legislative act satisfies the conditions laid down in Article 1(5) of that directive to be submitted, under the national procedural rules, to a court of law or an independent and impartial body established by law and, if no review procedure of the nature and scope set out above were available in respect of such an act, any national court before which an action falling within its jurisdiction is brought would have the task of carrying out the review described above and, as the case may be, drawing the necessary conclusions by disapplying that legislative act. The Court observed that, by virtue of their procedural autonomy, the Member States had discretion in implementing Article 9(2) of the Aarhus Convention and Article 10a of Directive 85/337, subject to observance of the principles of equivalence and effectiveness, but emphasised that Article 9 of the Aarhus Convention and Article 10a of Directive 85/337 would lose all effectiveness if the mere fact that a project is adopted by a legislative act which does not fulfil the conditions for the exclusion of a project from the ambit of that directive were to make it immune to any review procedure for challenging its substantive or procedural legality within the meaning of those provisions. In Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation , 66 the Court interpreted Article 9(3) of the Aarhus Convention, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, as meaning that a duly constituted environmental organisation operating in accordance with the requirements of national law must be able to contest before a court a decision granting a permit for a project that may be contrary to the obligation to prevent the deterioration of the status of bodies of water as set out in Article 4 of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy 67 . As explained by Advocate General Sharpston in her Opinion in that case 68 , recognising the standing of environmental organisations in accordance with Article 9(3) of the Aarhus Convention does not mean granting that provision direct effect by the back door, but it is, rather, the logical consequence of the need to safeguard the effet utile of Article 4 of Directive 2000/60, seen from the viewpoint of the fundamental right to an effective judicial remedy. In North East Pylon Pressure Campaign and Sheehy 69 , the Court has held that, although Article 9(3) and (4) of the Aarhus Convention do not have direct effect, it is for the national 65 Judgment of 18 October 2011 (C128/09 to C131/09, C134/09 and C135/09, EU:C:2011:667, paragraphs 52-57). 66 Judgment of 20 December 2017 (C664/15, EU:C:2017:987, paragraph 58). 67 OJ 2000L 327, p. 1.

68 Opinion of 12 October 2017 (C664/15, EU:C:2017:760, point 91). 69 Judgment of 15 March 2018 (C-470/16, EU:C:2018:185, paragraph 58).

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