Grand Chamber of the Court of Justice considers the relationship between the Aarhus Convention and EU law

1. Joined Cases C-401/12P to C-403/12P Council v Vereniging Milieudefensie
2. Joined Cases C-404/12P and C-405/12P Council v Stichting Natuur en Milieu

Giving judgment in the above cases on 13 January 2015, the Grand Chamber of the Court of Justice quashed the judgments of the General Court (T-396/09 (Vereniging Milieudefensie) and T-338/08 (Stichting Natuur en Milieu), 14 June 2012) and shed some light on the circumstances in which reliance could be placed upon the Aarhus Convention to challenge secondary EU legislation.

Vereniging Milieudefensie concerned a 2009 grant by the Commission to the Netherlands of a temporary exemption from the obligations laid down by the Air Quality Directive (Directive 2008/50/EC). Vereniging Milieudefensie, a Dutch environmental association, requested the Commission to undertake an internal review of its decision pursuant to Article 10(1) of Regulation No. (EC) 1367/2006 (on the application of the Aarhus Convention to EU institutions and bodies).

Stichting Natuur en Milieu concerned a request to the Commission by the latter (also a Dutch environmental association) and Pesticide Action Network to carry out an internal review of Regulation No. 149/2008, again pursuant to Article 10(1) of Regulation No. 1367/2006 (“the Regulation”).

The Commission rejected both requests on the ground that the impugned measure (i.e. the Commission decision in Vereniging Milieudefensie and Regulation No. 149/2008 in Stichting Natuur en Milieu) was not a measure of individual scope; it could not therefore be considered an “administrative act” within the meaning of Article 2(1)(g) of the Regulation, capable of forming the subject of the Article 10 internal review procedure.

The General Court granted the applications for annulment of the Commission decisions, holding that the conditions entitling it to examine the validity of an act of secondary EU legislation (the Regulation) in the light of an international treaty (the Aarhus Convention)     were met and that in so far as Article 10(1) of the Regulation provided an internal review procedure only in respect of an “administrative act” (defined in Article 2(1)(g) of the Regulation as “any measure of individual scope”), it was incompatible with Article 9(3) of the Aarhus Convention.

On appeal, the Court of Justice (Grand Chamber) held that the General Court had erred in law 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 the Regulation.

The Grand Chamber noted that the Court had consistently held that the provisions of an international agreement to which the EU was a party could be relied on in a challenge to an act of secondary EU legislation only where (i) the nature and broad logic of the international agreement did not preclude such reliance and (ii) the content of the relevant provisions appeared to be unconditional and sufficiently precise. It held that Article 9(3) of the Aarhus Convention was not “unconditional and sufficiently precise”: since only members of the public who met “the criteria, if any, laid down in … national law” were entitled to exercise the rights provided by Article 9(3), the implementation and/or effects of the provision were subject to the adoption of a subsequent measure.

The Grand Chamber went on to note that the Court had also held that where (i) the EU intended to implement a particular obligation assumed in the context of the WTO agreements or (ii) the EU act of secondary legislation at issue referred explicitly to specific provisions of those agreements, the Court should review the legality of the EU act in the light of the agreements (citing Case 70/87 Fediol v Commission and Case C-69/89 Nakajima v Council). The Grand Chamber concluded, however, that those two exceptions were justified solely by the particularities of the WTO agreements. Fediol was not relevant in the absence of a direct reference in Article 10(1) of the Regulation to specific provisions of the Aarhus Convention. As to Nakajima, there was no question of Article 10(1) of the Regulation implementing specific obligations within the meaning of the Nakajimajudgment, since under Article 9(3) of the Aarhus Convention the Contracting Parties enjoyed a broad margin of discretion when defining the rules for the implementation of “administrative or judicial procedures”.