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Andrés Delgado Casteleiro – Four EU External Relations cases for 2015: (I) The direct effect of the Aarhus Convention and the implementation exception

Introduction

Last year was a very busy year for the Law of EU External Relations. In light of the reforms introduced by the Lisbon Treaty, the Court of Justice revisited some of its fundamental case-law on EU External Relations. Questions concerning the scope and functioning of the powers of the EU in the external sphere were among the topics that the CJEU adjudicated in 2014. Also, the Court continued to develop its views on the engagement between EU law and international law, more notably in Opinion 2/13. While the outcome of these cases might not be that surprising, the number of cases on the topic compared to previous years show how EU External Relations Law is becoming a fundamental subject in the Court’s diary.

It appears that this trend will continue in 2015 with more cases where fundamental questions concerning the legal articulation of the EU’s external policies will have to be revisited or adjudicated for the first time by the Court. This series of posts will select four cases that are likely to be dealt by the Court in 2015. While the selection aims to provide a general overview of cases in which the Court will revisit the classical topics of EU External Relations Law with a twist (direct effect of international agreements, the scope of the Common Commercial Policy, the relationship between the CFSP and the rest of the EU’s external policies and the autonomy of the EU legal order vis-à-vis international law), it is nevertheless a subjective selection.

(I). The direct effect of the Aarhus Convention and the implementation exception

In Joined Cases C-401/12 P, C-402/12 P, C-403/12 P, Council, Commission and European Parliament v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, the Court’s Grand Chamber will decide on the 13 of January whether the “Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters” is among the set of rules against which to assess the validity of EU secondary legislation in the framework of an annulment action. The appeal brought by three of the EU institutions aims to reverse the previous judgment of the General Court (Case T-396/09, Vereniging Milieudefensie y Stichting Stop Luchtverontreiniging Utrecht/Comission). In that judgment the General Court understood that inasmuch as “Regulation No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13)” implemented article 9(3) of the Aarhus Convention, the latter provision was among the set of rules which could be used to assess the validity of the former regardless of whether the Aarhus Convention has direct effect. In other words, the General Court extended the implementation exception (also know as the Nakajima exception) to the lack of direct effect of WTO agreement to the Aarhus Convention. So far the Nakajima exception only applied to the WTO Agreements. As it is well known, the CJEU has consistently denied the direct effect of the WTO Agreements and any decision taken within its institutional framework. In fact, the Court reminded us in the recent LPV case that given their nature and purpose, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the European Union institutions. Only if EU legislation has been adopted specifically to ensure the implementation of WTO provisions or if it refers expressly to specific provisions of the WTO agreements, it is possible for the CJEU to review the legality of EU legislation in the light of WTO agreements.

Moreover, in case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo zivotného prostredia Slovenskej republiky, the Court gave some contradictory views as regards the effects of article 9(3) of the Aarhus Convention in the EU legal order. On one hand, the Court understood that this provision did not meet the criteria to have direct effect. But on the other hand, it recognized that Regulation 1367/2006 intended to implement the provisions of Article 9(3) of the Aarhus Convention leaving the door open to the possibility to apply a Nakajima exception to that provision. Therefore, the Court will have to solve this conundrum. So far only the General Court has recognised that insofar as Regulation 1367/2006 implements article 9(3) of the Arhuus Convention, this provision can be used as a benchmark to assess the validity of the Regulation.

On the contrary, AG Jaaskinen understands (the conclusion has yet to be translated into English) that the specificity of the exceptions to the lack of direct effect of the WTO Agreements is inextricably linked to their context and nature. Therefore, according to the AG, the Nakajima exception cannot be extended to other international agreements besides the WTO context. Although the AG understands that the General Court erred in law by extending the Nakajima exception to the Aarhus Convention, he nevertheless argues that the Aarhus Conventions should apply when reviewing the legality of Regulation 1367/2006. In this regard, the AG draws a distinction between the possibility for individuals to invoke a international rule, in which the stringent rules on direct effect of international agreements (nature and broad logic of the agreement, provision being invoked is clear, unconditional and confers rights on individuals), should apply; and the possibility to control the EU institutions’ discretion when adjusting an EU act with an international one, in which only the requisites of clarity and unconditionality of that international rule would be needed. Therefore, if Article 9(3) of the Aarhus Convention meets those two criteria (which, according to the AG, it does), it could be applied by the Court to review the validity of Regulation 1367/2006.

Given recent pronouncements of the Court, it seems rather unlikely that the Court will side either with the General Court or with the AG. The current Court has been quite reluctant to extend the application of direct effect to multilateral agreements, being the United Nations Convention on the Law of the Sea, the Kyoto Protocol, or, as it might be confirmed in the present case, the Aarhus Convention. Therefore, it seems rather unlikely that the Court will assess the validity of Regulation 1367/2006 in light of article 9(3) of the Aarhus Convention. Yet, the case could nonetheless shed light as to the direct effect of the Aarhus Convention, the scope of the Nakajima exception, and more generally the relations between EU Law and International Environmental Law.

Dr. Andrés Delgado Casteleiro

Lecturer, Durham Law School

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