CYIL vol. 11 (2020)

MICHAEL SIMAN CYIL 11 (2020) court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with them. Accordingly, since the Court does not assess the direct applicability of the provisions of an agreement signed by the European Union according to criteria other than those that it uses in order to determine whether the provisions of a directive are directly applicable, in Klohn 70 , it concluded from the judgment mentioned above that the not prohibitively expensive rule in the fifth paragraph of Article 10a of Directive 85/337 as amended did not have direct effect either and imposed an obligation of consistent interpretation on the national courts. As observed by Advocate General Bobek in his Opinion in that case 71 , it may be argued that there is no clear boundary between direct effect and indirect effect, since both concepts may produce similar results. However, those two categories of application of legal rules have different consequences as far as the rights and duties of individuals at the national level are concerned. It must be pointed out that the Advocate General came to the conclusion that the reasoning concerning the lack of direct effect of Article 9(4) of the Aarhus Convention developed in Ordre des barreaux francophones et germanophone 72 , to which the Court referred in North East Pylon Pressure Campaign and Sheehy 73 as a precedent, could not be automatically transposed to Article 10a of Directive 85/337. By contrast, he came to the conclusion that the requirement contained in the fifth subparagraph of the last mentioned provision that procedures be ‘not prohibitively expensive’ was clear, precise and unconditional and therefore had direct effect and, as such, was to be applied directly by national courts in the absence of measures adopted for the purposes of transposing that provision. However, as mentioned above, the Court dismissed that distinction and transposed the finding concerning the lack of direct effect of Article 9(4) of the Aarhus Convention to the corresponding provision of EU law. Conclusion The Aarhus Convention is a significant international agreement designed to promote environmental democracy. As Advocate General Kokott pointed out in her Opinion delivered in Lesoochranárske zoskupenie VLK II  74 , unlike other international agreements of different nature, such as the WTO agreements, that convention is, given its nature and purpose, intended to create rights for individuals. In the context of EU law, the Aarhus Convention is an integral part of the EU legal order and, as a matter of EU law, the EU and its institutions are bound by it and obliged to implement and comply with its provisions. However, it has not lost the quality of international law, which differs, in its origin and characteristics, from the specific and autonomous legal system constituted by EU law. Moreover, the impact of the legal culture embodied by the Aarhus Convention, as an expression of certain values, ideas and mentalities, on the legal cultures of the Member States with respect to its pivotal concepts, such as transparency, public participation and effectiveness through justice in environmental matters, is, in the EUMember States, based on and substantially strengthened by EU legislation. 75

70 Judgment of 17 October 2018 (C-167/17, EU:C:2018:833, paragraphs 32-34). 71 Opinion of 5 June 2018 (EU:C:2018:387, points 34-35 and 76).

72 Judgment of 28 July 2016 (C-543/14, EU:C:2016:605, paragraphs 50 and 53). 73 Judgment of 15 March 2018 (C-470/16, EU:C:2018:185, paragraph 58). 74 Opinion of 30 June 2016 (C-243/15, EU:C:2016:491, points 64-80). 75 See GERBRANDY, A., VAN KREIJ, L. The impact of the Convention of Aarhus on the Emerging European

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