EU and International Law: Complementary Approaches or Irreconcilable Legal Systems?
An analysis of the EU’s obligation to abide by the Aarhus Convention
by
Femke van der Eijk
12799467
femkevandereijk@hotmail.com
THESIS SUBMITTED TO
Dr Laurens Ankersmit
In partial fulfilment of the requirements for an LLM degree in
EUROPEAN UNION LAW
UNIVERSITY OF AMSTERDAM
July 2020
i
Abstract
The complex relationship between EU and international law has puzzled scholars and experts for decades. The ever-developing and changing nature of the influence of international law into the EU legal order has been impacted both by the implementation of the Lisbon Treaty in 2009 and the many judgments of the Court of Justice of the European Union that cover this topic. A highly topical example that showcases the issues surrounding the EU’s approach to international law and agreements is the implementation of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters by the EU. This thesis addresses this complex relationship between international and EU law in the context of the EU’s implementation of the Aarhus Convention, more specifically this paper addresses the following research question: is the way by which the EU seeks to abide by its international obligations under Article 9(3) of the Aarhus Convention fully in line with the EU Treaties, in particular Article 216 TFEU?
This thesis addresses this question through a constitutional analysis of the Lisbon Treaty at the hand of the legal theories of monism and dualism in order to ascertain what the EU’s exact obligations are when implementing international law, and through an analysis of the European Court of Justice’s case law on this topic, which includes the case law on the Aarhus Convention, in order to ascertain how the Court interprets this obligation to abide by international law as found in the Treaties. The conclusions reached in these analyses are then applied to the Aarhus Convention in order to see whether the EU’s efforts made in light of this Convention are sufficient to fulfil its obligation under Article 216 TFEU.
The conclusion reached is that the Treaties, more specifically Article 216 TFEU, represent a more monistic legal system that calls for the direct applicability of international agreements in the Union legal order, however, it is also concluded that the Court takes a stricter approach to the effects of these agreements. It is this dichotomy, the ECJ’s strict approach to the effects of Article 9(3) in the EU legal order and the EU’s choice to limit the scope of Article 9(3) of the Aarhus Convention in its implementing legislation, that is hampering the Union in fully abiding by the Aarhus Convention’s Article 9(3).
Key words: Aarhus Convention, EU compliance with international law, Monism, Dualism,
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Table of Contents
Abstract ... i
Table of Contents ... ii
Introduction ... 1
Part I – The Lisbon Treaties’ Approach to International Law ... 5
Section 1 – Monism vs Dualism ... 5
Section 2 – How do Scholars Interpret the Monism vs Dualism Debate in EU Law? ... 7
Section 3 – The Lisbon Treaties’ Approach to International Law ... 9
Section 4 – Aarhus Convention ... 11
Concluding Remarks – How Do the EU’s Constitutional Treaties Observe International Law? ... 12
Part II – The ECJ’s Approach to International Law ... 13
Section 1 – Highlights from ECJ Case Law on the Effects of International Agreements in the EU’s Internal Legal Order ... 13
Section 2 – Comparison Between the ECJ’s and the Treaties’ Approach to the Effects of International Agreements in the EU’s internal Legal Order ... 18
Concluding Remarks – How does the ECJ Interpret the effects of international Agreements in the EU Legal Order? ... 19
Part III – The Aarhus Convention ... 21
Section 1 – The EU’s Legislative Efforts to Implement the Aarhus Convention ... 21
Section 2 – The ECJ’s Case Law on the Aarhus Convention ... 23
Section 3 – The ACCC’s Reports on EU Compliance with the Aarhus Convention ... 25
Concluding Remarks – Are the EU’s Efforts Enough to Fully Comply with the Aarhus Convention? ... 28
Conclusion ... 30
1
Introduction
Ever since the landmark case of Costa v ENEL the Court of Justice of the European Union (hereafter the ECJ or the Court) has declared the European Union (hereafter the EU or the Union) to be a sui generis legal order. This declaration of autonomy by the Court then raises the essential question on what exactly the EU’s relationship is with international law and how it is implemented into the internal EU legal order. The constitutional foundation of the EU, namely the Treaty on the European Union (‘TEU’) and the Treaty on the Functioning of the European Union (‘TFEU’), does aim to clarify these issues by making reference to the vital importance of international law and international agreements. In Article 3(5) of the TEU it is stated that the Union shall contribute ‘to the strict observance and the development of international law’ and in Article 216(2) of the TFEU it is stated that the Union may conclude agreements with third countries or international organisations and that those agreements are ‘binding upon the institutions of the Union and on its Member States.’ However, neither of these Articles answer what the exact effects of international law are in the internal EU legal order.
It is this complex relationship between EU and international law that has puzzled scholars and experts for decades.1 The ever-developing and changing nature of the influence of international law into the EU legal order has been impacted both by the implementation of the Lisbon Treaty in 2009 and the many judgments of the Court that cover this topic or elements of it.2 Many scholars discuss how either one the traditional legal theories of monism and dualism do not wholly address the functioning of international law within the EU. What these scholars usually encounter is a possible dichotomy between a more monist Treaty basis of the EU versus a more dualistic approach taken by the Court in its case law.3 This possible division between the EU institution’s approach to international law could be the basis for the various issues related to the implementation and effects of international agreements into the EU legal order.
1 De Witte, B. ‘EU law : is it international law?’ in Barnard, C and Peers, S. (eds) European Union Law 2nd
Edition (Oxford University Press 2017), 177
2 Wouters, J., et al. ‘Worlds Apart? Comparing the Approaches of the European Court of Justice and the EU legislature to International Law’ in Cremona, M. and Thies, A. (eds) The European Court of Justice and
External Relations Law (Hart Publishing 2014) 250.
3 See scholars such as: Wessel, R.A. ‘Reconsidering the Relationship Between International and EU Law: Towards a Content-Based Approach?’ and Cannizzaro, E. ‘The Neo-Monism of the European Legal Order’ both found in Cannizzaro, E., Palchetti, P., and Wessel, R.A. International Law as Law of the European Union (Martinus Nijhoff Publishing 2011); Besson, S. ‘European Legal Pluralism after Kadi’ 5 European Constitutional Law Review (2009).
2 A highly topical example that showcases these issues is the implementation of the Aarhus Convention by the EU and the line of case law by the Court that follows this implementation. The EU signed onto the Aarhus Convention in 1998 and implemented several directives and a regulation to secure EU compliance with the measure found in the Convention.4 However, there have been some issues, according to academics and experts alike, related mainly to the implementation of the third pillar of the Aarhus Convention, which encompasses the measure related to the access to justice in environmental matters. Specifically, the implementation of the EU of Article 9(3) of the Aarhus Convention into EU law has been argued by many to be lacking5 since the EU has not allowed for sufficient access to judicial review in environmental decision-making, as found in this Convention article, by private and legal persons in its own legislation. The approach the Union has taken in the implementation of this Convention has also been criticised by the Aarhus Convention Compliance Committee (hereafter ACCC or Compliance Committee). In the two reports published, the Committee has voiced its concerns that the Union was not in compliance with its obligations under the Convention, mainly those related to Article 9, and at the lack of speed with which the Union is addressing the deficiencies that the ACCC has brought to the attention of the EU in the first report.6
The implementation of the Aarhus Convention into the EU legal order will therefore serve as an example to address the Union’s obligations under national law. More specifically this paper aims to address the following research question: is the way by which the EU seeks to abide by its international obligations under Article 9(3) of the Aarhus Convention fully in line with the EU Treaties, in particular Article 216 TFEU?
In order to fully address the question posed above, a chapter will first need to be dedicated to an analysis of the exact obligation the Union has under international law and international agreements that it has signed. In the first chapter of this paper a constitutional review of the TEU and the TFEU will be conducted in order to clarify and depict exactly what the relationship is between international and Union law according to the constitutional basis of the EU. Articles 3(5) TEU and 216(2) TFEU will be the focal point of this analysis as these articles refer to the
4 Marsden, S. ‘Direct Public Access to EU Courts: Upholding Public International Law via the Aarhus Convention Compliance Committee’ 81 Nordic Journal of International Law (2012), 188-189.
5 See for example: Schoukens, H. ‘Balancing On or Over the Edge of Non-Compliance?’ European Energy and Environmental Law Review (2016); Oliver, P. ‘Access to Information and to Justice in EU Environmental Law: The Aarhus Convention’ 36 Fordham International Law Journal (2013).
6 ‘Findings And Recommendations Of The Compliance Committee With Regard To Communication ACCC/C/2008/32 (Part II) Concerning Compliance By The European Union’ Report of the Compliance Committee, ACCC/C/2008/32 (EU), (17 March 2017).
3 possible effects of international law within the EU legal order. Throughout this chapter the legal theories of monism and dualism will be used and analysed in order to be able to conclude whether either, or neither, of these theories adequately fit the relationship between Treaties and international law. The chapter will furthermore include a review of (legal) literature and scholarly opinions on this matter, this section will also look at other, more modern, legal theories proposed by these scholars too analyse whether they are a better fit for the EU legal framework.
The second chapter will then include a review of the Court’s case law on this matter. It will look at several lines of case law that showcase the Court’s interpretation towards the use of international law within the EU. The cases chosen in this review include Haegeman,7 Kupferberg,8 and Demirel 9 as they showcase the Court’s initial more monistic approach to international law. Then the WTO and GATT (including International Fruit Company10) lines of case law will be addressed as they showcase the Court’s stricter and arguably more dualistic approach to international law and agreements. Next to this the Intertanko11 case will highlight
the arguments made by the Court for a lack of direct effect of agreements outside of the WTO or GATT framework. As a last point in this review the case law related to the Aarhus Convention (Slovak Brown Bear Case,12 Vereniging Milieudefensie,13 and Stichting Natuur en Milieu14) will be introduced so as to see how the Court addressed its obligations under the Convention. Within this chapter a comparative view will also be taken in relation to the conclusions of the first chapter; it is important to see whether there are differences in the approach that the Court takes towards international law and the approach that the Member States envisioned when they adopted the Treaties.
7 Case 181-73 R. & V. Haegeman v Belgian State [1974] ECLI:EU:C:1974:41.
8 Case 104/81 Hauptzollamt Mainz v C.A. Kupferberg & Cie KG a.A. [1982] ECLI:EU:C:1982:362. 9 Case 12/86 Meryem Demirel v Stadt Schwäbisch Gmünd [1987] ECLI:EU:C:1987:400.
10 Cases 41 to 44-70 NV International Fruit Company and others v Commission of the European Communities [1971] ECLI:EU:C:1971:53.
11 Case C-308/06 The Queen, on the application of International Association of Independent Tanker Owners
(Intertanko) and Others v Secretary of State for Transport [2008] ECLI:EU:C:2008:312.
12 Case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky [2011] ECLI:EU:C:2011:125.
13 Case T-396/09 Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v European
Commission [2012] ECLI:EU:T:2012:301.
14 Joined Cases C-165/09 to C-167/09 Stichting Natuur en Milieu v College van Gedeputeerde Staten [2011] ECLI:EU:2015:5.
4 The last chapter will focus on the Aarhus Convention, the Court’s case law on the implementation of this Convention, and the Compliance Committee’s concerns related to the EU’s implementation measures. The case law as introduced in part two of this thesis will be expanded on in order to ascertain how the Court has interpreted the Aarhus Convention and the EU’s implementation of it. Next to this, the EU’s legislative implementation measures (mainly Regulation 1367/2006 on the application of the Aarhus Convention) and the reports by both the EU and the ACCC on the EU’s compliance in regard to the Convention will serve as sources to analyse and give a normative conclusion on if the EU’s efforts made in light of the Convention are sufficient.
Through this methodology that includes a constitutional analysis of the EU Treaties at the hand of the legal theories of monism and dualism, a review of the relevant case law, and a normative approach to the EU’s compliance issues with the Aarhus Convention’s Article 9(3), this thesis comes to the conclusion that unfortunately the Union has had difficulties in sufficiently abiding by Article 9(3) of the Aarhus Convention and it is therefore not completely fulfilling its obligation to abide by international law in this context.
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Part I – The Lisbon Treaties’ Approach to International Law
This first chapter will address and analyse the constitutional legal framework of the EU and the influence that international law, and also the Aarhus Convention specifically, has in the internal EU legal order. The most relevant Articles of the founding Treaties for this analysis are Article 3(5) of the TEU and Article 216(2) of the TFEU, it is therefore these two Articles that will be addressed in the following section. What is important to explain before this analysis is the two legal theories of monism and dualism, these theories could give some insight into how the EU legal system is oriented towards international law. Next to this, the academic debate on these theories and some more modern interpretations of them will be presented to give some further insights on this topic and allow for conclusions to be drawn on how the EU Treaties interact with international law and agreements. The last section will then address the Aarhus Convention and how the EU implemented it into the EU legal order.
Section 1 – Monism vs Dualism
The theories of monism and dualism have guided and aimed to clarify the relationship between international law and national law ever since a strict division between national and international law came into existence. Traditionally international law only guided states on the international plane. The rules and guidelines that international law put forth guided the states in their behaviour towards one another and it rarely impacted the internal legal order of those states. However, more recently, in the past centuries, the international legal order has started influencing the internal legal systems of states to a greater extent that before.15 This internal interference is nevertheless still guided by the states themselves; they are the ones that decide how international law is implemented and applied within their own institutions in accordance with the principle of state sovereignty. Throughout the many slight variations on how states have managed this implementation of international law, monism and dualism are the two main trends that can be identified.16
The concept of monism, which was most prominently developed by Hans Kelsen, Alfred Verdross, and Georges Scelle in the last century,17 describes how international law is directly applicable within a state’s internal legal system. This theory is based on the line of reasoning
15 Slaughter, A.M. and Burke-White, W. ‘The Future of International Law is Domestic (or, The European Way of Law)’ 47(2) Harvard International Law Journal (2006), 327.
16 Marian, B. ‘The Dualist and Monist Theories. International Law’s Comprehension of these Theories’ 1 Curentul Juridic, The Juridical Current, Le Courant Juridique (2007), 16.
6 that sees state sovereignty “as an absolute dogma”18 and that international law is only binding
on that state because it has willingly bound itself by that specific law, treaty, or agreement and thus (partly) limited its sovereignty. States that make use of this system for the implementation of international law in their legal orders are thus directly bound by these international laws and agreements as soon as they are signed and ratified. Another element of this theory is that within the internal legal orders of the various states that make use of this approach, international law is placed above the national laws. This enables states to ensure compliance of the international agreements by making all national laws subordinate to it.
On the opposing side of the monist theory, is the theory of dualism. This concept of dualism is mostly based on the fact that the international system of law differs from that of national law. This reasoning follows from the view that international and national law have different recipients; international law applies to states and national law applies to (legal) persons. This difference prevents the two different legal systems from directly influencing one another. This therefore leads to necessity that the national legal system ‘adopts’ the international rules into their own legal system in order for them to be effective.19 This theory also finds it support in
the principle of state sovereignty, even if it is for a different reason than the monist theory. State sovereignty in this theory provides the argument that states cannot be coerced by an outside (legal) order and it is therefore necessary for those states to first implement the international agreements into their national laws before they can be bound by it.20
Applying these theories to the Union’s legal order is however not as easy as applying it to the international versus national legal system context. The EU is not equivalent to a nation state nor can it be categorised as a ‘mere’ international organisation or institution. The lack of similarities between the EU and the classical actors in the international legal order therefore do not always allow these ‘ready-made’ theories to be applied completely and be used to explain the intricacies of the application of international law in the EU legal order. This not only makes it unclear what effects international law exactly has on and within the Union, it also leaves the EU and its institutions without a set of guidelines to which it can act in a coherent manner. This oftentimes results in an incomprehensible system of application which will be addressed in a
18 Marian, B. ‘The Dualist’, 18. 19 Ibid., 17.
20 Waters, M.A. ‘Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties’ 107 Columbia Law Review (2007), 637-638.
7 more in-depth manner when looking at the ECJ’s approach to the application of international law in the second chapter of this research paper.
Section 2 – How do Scholars Interpret the Monism vs Dualism Debate in EU Law?
It is a common viewpoint of scholars and experts that one the classical theories of monism and dualism do not fit the sui generis EU constitutional legal order completely. While some elements of both theories can be traced through EU law, they argue that neither of the theories fit the EU system in a comprehensive manner. The reason for the ill-fit between these theories and the EU, as is discussed by for example Kirchmair in their article, is because these theories were established in a time before the existence of the international institutions we know today.21 It is therefore that this scholar, and several others, promote the idea of developing different and new legal theories to attempt to define the relationship between EU and international law and to move forward from these somewhat dated theories. These ‘new’ theories tend to take the form of a neo-monist theory, or a legal pluralist approach. Before these two new trends are discussed, it might be important to mention why there is a necessity for a theoretical legal basis to the Union’s relationship with international law instead of leaving the discussion behind as no theory to date has been able to fully explain the EU’s approach to international law. The reason behind all these discussions surrounding which theory fits the EU the best is that a sound theoretical basis not only allows for a clarification of the legal system itself but it also creates guidelines for future actions that are to be undertaken within that system.22 A comprehensive legal theory could thus aid in creating a more cohesive approach to international law by the Union. The following paragraphs are therefore dedicated to briefly outline the two main legal theories that scholars have created or modernised in order to attempt to systemise the EU’s approach to international law.
To discuss the neo-monist approach first, this approach has the characteristics of a more flexible version of the traditional monist theory. It attempts to form a more realistic approach to international law and accepts that these laws may be more normative and up to the interpretation of the observer than the traditional theory accounts for. It therefore follows that the contextualisation of these international laws might be necessary to make them less abstract and
21 Kirchmair, L. ‘The Janus Face of the Court of Justice of the European Union: A Theoretical Appraisal of the EU Legal Order’s Relationship with International and Member State Law’ 4(3) Goettingen Journal of
International Law (2012), 687-688.
22 Moreno-Lax, V., and Gragl, P. ‘The Quest for a (Fully-Fledged) Theoretical Framework: Co-Implications, Embeddedness and Interdependency between Public International Law and EU Law’ 35(1) Yearbook of European Law (2016), 465.
8 more appropriate to the legal order that they are being implemented into.23 This contextualisation of international laws in order to adapt them to the national, or in this case EU, legal order can best be explained as the process of interpreting the relevant law in its (international) context and thereby also including international interpretations of these laws in order to avoid losing the original meaning and purpose of these international laws (which could take place if national implementation measures were used).24 This adapted monist theory could possibly fit the Union’s legal system better that its traditional counterpart, however, some issues still exist in the form of taking this theory further than it is meant to. What is meant with this statement is that through the contextualisation of the international laws the national, or EU, legal order could make way for interpretations that favour their own interests more than the original purpose of those provisions, which is also one of the flaws of the dualist theory. This, thus, leads to a discrepancy between the two legal orders.25
To move on to the other prominent modern legal theory; legal pluralism, what can be seen is that pluralism leans more towards the traditional concept of dualism as opposed to the previously discussed theory which leans more towards monism. Unlike traditional dualism, which focussed on national and international legal orders as being the two main actors, pluralism focusses more on the acknowledgement that all legal orders are different and separated.26 Its reasoning is based on the fact that each legal order has its own constitutional framework which also defines the relationship with and influence of outside legal orders.27 For the norms of one order to be applicable and valid in the other, implementation or transposition is not the dependant factor, contrary to the concept of dualism. The validity of these norms “can be established together and at the same time in their respective legal orders, and this is best captured by the concept of inter-validity.”28 Applying this to the EU would mean that the Union and international law are two separate and non-hierarchical legal orders and the norms and laws from both systems would permeate through the boundaries between the two orders.29 This theory, however, faces quite some difficulties in its application. Having a non-hierarchical system present with these two distinct legal orders does not resolve any issues were two norms
23 Cannizzaro, E. ‘The Neo-Monism’, 52. 24 Ibid, 52-53.
25 Kirchmair, L. ‘The ‘Janus Face’’, 689-690. 26 Wessel, R.A. ‘Reconsidering the Relationship’, 15.
27 D’Aspremont, J., and Dopagne, F. ‘Kadi: The ECJ’s Reminder of the Elementary Divide Between Legal Orders’ 5 International Organisations Law Review (2008), 373.
28 Besson, S. ‘European Legal Pluralism’, 259. 29 Ibid, 260-261.
9 from the different systems are contradictory to each other, neither does it alleviate the ‘accusation’ of the Union sticking to their own rules and leaving the international norms aside.30
While scholars have attempted to amend old and create new theories to systemise the Union’s relationship with international law, an all-encompassing legal theory has not yet been constructed. In order to fully understand the EU’s legal framework in relation to international law the following section will analyse the constitutional structure of the Union, i.e. the Treaties, in order to determine how it is oriented towards international law and agreements that are binding on the Union.
Section 3 – The Lisbon Treaties’ Approach to International Law
While in the past the Treaties of the EU did not make reference to international law or agreements as much,31 the Treaty of Lisbon does make several references to international law, international agreements, and the importance of abiding by them. However, it is still often found that these Treaties do not offer a great amount of guidance on how these international laws influence the internal EU legal order.32 Within this section articles from the EU constitutional Treaties (the TEU and TFEU) will be analysed to see if it is indeed true that the Treaties themselves do not offer sufficient guidance for the implementation and effects of international law within the EU legal order.
The first article that comes up in when looking at the TEU is Article 3(5). This Article is quite prominent in relation to the topic of this paper as it states that the Union ‘shall contribute to […] the strict observance and the development of international law, including respect for the principles of the United Nations Charter.’ This Article makes explicit reference to the importance of international law for the EU. Furthermore, this Article in combination with case law of the Court (which will be addressed more comprehensively in the next chapter) has been interpreted to place an obligation on the Union to respect international law when it is exercising its powers.33
Another Treaty article that is important to mention in this discussion is Article 216 TFEU, paragraph two of this article being the most important. In this Article the TFEU makes a clear reference to how international agreements impact the EU, namely by stating that ‘agreements 30 Wessel, R.A. ‘Reconsidering the Relationship’, 15.
31 Czuczai, J. ‘The Rosneft Case as a Good Example of Smooth Interaction Between EU Law and International Law in the Most Recent Post-Lisbon Jurisprudence of the Court of Justice’ in Govaere, I. and Garben, S. (eds)
The Interface between EU and International Law (Bloomsbury Publishing 2019), 308.
32 Wouters, J., et al. ‘Worlds Apart’, 6.
10 concluded by the Union are binding upon the institutions of the Union and on its Member States.’ This Article is the only part of both the Treaties that explicitly makes reference to the internal effects of international law or agreements in the Union. Again the Court has made reference obligation and concluded that such international agreements that are binding on the EU “form an integral part of”34 Union law as soon as they enter into force.35 Furthermore, the
Court also concluded that these international agreements do not need to be implemented in the Union legal order through particular implementation measures or implementing acts, they are directly applicable on both the Union institutions and the Member States.36 What is noteworthy, both in the text of the Treaty Article and in the Court’s interpretation of this obligation, is that this follows the monist theory of the effects of international law quite closely. While the Treaties do not explicitly make mention of one of the theories discussed above, the manner in which they address the impact of international agreements on the Union institutions is quite similar to how monist theory illustrates that international laws are directly applicable in national legal orders. This can be seen in the fact that nowhere in the Treaties mention is made to the need for international agreements to be implemented in the EU legal order. Next to this, Article 3(5) TEU and 216(2) TFEU do showcase the importance of international law and that those agreements that the Union concludes are most definitely fully binding on the EU legal order. While the use of an implementation measure would not necessarily go against this monistic theory, as international agreements are not always formulated in such a detailed or specific manner that would allow for direct applicability,37 the implementation measure used would have to follow the wording and/or purpose of the provisions very closely as otherwise the agreement would not be abided by in its entirety.
The Treaty articles mentioned in this section are not the only sections of the Treaties that make reference to international law or agreements, however these other Articles, such as Article 21(1) TEU on the Union’s actions externally, Article 214(2) TFEU on the importance of abiding by international law in humanitarian aid operations, or Article 351 TFEU stating the principle of pacta sunt servanda, all influence the Union’s or the Member States’ external actions which is contrasting to the impact of international law within the EU’s legal order, which is what this thesis aims to analyse.
34 Haegeman, para 5.
35 Wouters, J., et al. ‘Worlds Apart’, 7.
36 Case C-533/08 TNT Express Nederland BV v AXA Versicherung AG [2010] ECLI:EU:C:2010:243, para 60; also see Wouters, J., et al. ‘Worlds Apart’, 7.
37 Marsden, S. ‘Invoking Direct Application and Effect of International Treaties by the European Court of Justice: Implications for International Environmental Law in the European Union’ 60 ICLQ (2011), 739.
11 Thus, while the interpretation of some scholars and experts find that the TEU and the TFEU are silent on the effects of international law on the Union and its institutions, this paper comes to a different conclusion. Article 216(2) makes quite a clear reference to the binding nature of international agreements on the EU’s institutions without the need for implementation measures. Thus, even though the Treaties themselves might not make an explicit reference to one of the legal theories addressed in this section, this thesis does argue that the Treaties showcase monistic tendencies through the formulation of Article 3(5) TEU and 216(2) TFEU.
Section 4 – Aarhus Convention
To move on to the specifics of the implementation of the Aarhus Convention, what can be seen is that a slightly different approach to monism was taken by the Union as it chose to make use of implementation measures. In the early 2000’s the Union adopted two Directives that implemented the provisions of the first and second pillars of the Aarhus Convention. These Directives concerned mostly provisions on public access to environmental information and public participation in plans and programmes relating to the environment.38 Two years after the adoption of these Directives the Council adopted a Decision39 on the conclusion of the Aarhus Convention by the EU, making the Union an official party to the international Convention. After officially joining the Aarhus Convention the European Parliament and Council also adopted Regulation 1367/200640 (hereafter the Aarhus Regulation) which covers all three of the Aarhus Convention pillars as opposed to only the first and second one that were addressed in the previous Directives. As addressed earlier in this chapter the use of implementation measures does not necessarily go against monistic theory if the complete agreement and/or the purpose of the agreement is implemented, however some issues with the EU’s implementation of Article 9(3) of the Convention specifically have been raised by both scholars and the ACCC and these will be addressed in the last chapter of this thesis.
38 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC [2003] OJ L 41; Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC - Statement by the Commission [2003] OJ L 156.
39 Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters [2005] OJ L 124.
40 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 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 [2006] OJ L 264.
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Concluding Remarks – How Do the EU’s Constitutional Treaties Observe International Law?
Throughout this chapter multiple legal theories; monism, dualism, neo-monism, and pluralism, have been explained and analysed in order to find out which suits the Union’s approach to international law the best. Since the Lisbon Treaty in its provisions is mostly silent on how exactly international law plays a role in the internal legal order of the EU, it is still helpful to ascertain which theory could aid in interpreting the relationship between international and EU law as this could then provide a set of guidelines on how future actions of the EU should be accomplished. It is for this reason that this thesis is analysing which theory fits the EU system to the furthest extent possible. However, as could be seen in the third section of this chapter, these theories do not always easily allow for an all-encompassing application; each has their own drawbacks that hinder the possibility for consistent action by the EU when implementing or abiding by international laws and agreements. Therefore, this paper will use the two Treaty Articles addressed above as the main guideline on how the EU constitutional framework is oriented towards international law as it is these Treaties that showcase the Member States’ impression on the effects of international agreements. According to Article 216(2) TFEU ‘agreements concluded by the Union are binding upon the institutions of the Union and on its Member States’, this Article therefore does not explicitly mention the need for any implementation measure. As this Article suggests that international agreements are binding in their entirety as soon as they are signed and without the explicit need for implementation, this brings forth the conclusion that this thesis will make use of, which is that the EU constitutional framework fits the monist legal theory the best out of all the theories analysed within this chapter. This conclusion however does not resolve the possible issue of the EU’s compliance with international law. This is especially the case when looking at the EU’s approach to the Aarhus Convention which have raised some concerns related specifically to Article 9(3) of the Convention. Before these concerns can be addressed directly, the Court’s opinions and case law on the effects of international law have to be analysed, therefore the next chapter is dedicated to this analysis. This next chapter can then also bring further insights on how the legislative and judicial branches of the EU possibly differ in their approaches to international law and the Aarhus Convention specifically.
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Part II – The ECJ’s Approach to International Law
This second chapter will focus on the case law of the ECJ that deals with the effects of international law in the EU legal order. It will analyse the various ways that the Court has chosen to address the effects of international agreements that are binding on the Union and draw conclusions related to the quite contrasting approaches that the Court has taken on this matter. Additional to this analysis of the various lines of case law, a comparison will be made between the Court’s and the Treaties’ approach to international law. The concluding remarks at the end of this section will therefore give some more insight both on the different approaches of the ECJ to international agreements and how these approaches also differ from the one taken by the EU Treaties.
Section 1 – Highlights from ECJ Case Law on the Effects of International Agreements in the EU’s Internal Legal Order
The start of the ECJ’s complicated and arguably inconsistent approach to the effects of international agreements in the EU legal order can be identified in the Haegeman case from 1973. In this case the Court was asked the question whether an international agreement between the Union (then the Community) and Greece could be the basis of a preliminary reference procedure as described in Article 267 TFEU (then Article 177 TEC). Before the Court could answer this particular question, it had to determine what the status was of this international agreement in the EU legal order. In order to make this determination the Court followed the reasoning that since one of the EU’s institutions (the Council) concluded the agreement it is to be considered an EU act as referred to in the preliminary reference
procedure. The Court therefore considered the international agreement “from the coming into force thereof, form[s] an integral part of Community law.”41 This conclusion of the Court
therefore places international agreements concluded by the Union’s institutions directly into the EU legal order without any implementing measures. One of the Court’s first cases addressing this issue thus follows the classical monist concept.42 However this seemingly
clear-cut conclusion of the monist implementation of international agreements is short-lived; in the following cases of Kupferberg (1982) and Demirel (1987) the Court takes a more cautious and nuanced approach.43
41 Haegeman, para 5.
42 De Burca, G. ‘The European Court of Justice and the International Legal Order After Kadi’ 51(1) Harvard International Law Journal (2010), 46.
14 In Kupferberg the Court did reiterate that international agreements form a part of the internal EU legal order and added that there is a duty of the EU institutions and the Member States to ensure compliance with those agreements. However, the Court also added and emphasised the importance that “the effects within the Community of provisions of an agreement concluded by the Community with a non-member country may not be determined without taking account of the international origin of the provisions in question”44 (emphasis added). With this
statement the Court meant to limit the effects of international agreements to the extent that under public international law it is up to a state, in this case the EU, to conclude “what effect the provisions of the agreement are to have in the internal legal order”.45 This approach taken
by the Court is adhered to for several years until the Demirel case.46 In this case the ECJ formulated a more general statement on the effects of international agreements; “a provision in an agreement concluded by the community with non-member countries must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure”.47 These two
cases solidify the Court’s movement away from the monist approach towards a more dualist approach where international agreements do not, in principle, have any effect on the EU legal order. Furthermore, the Court’s unwillingness, in most cases, to allow provisions of
international agreements to be the basis of a review procedure of Union legislation further cements the Court’s dualist-like approach to international law. The wording from the Demirel case as quoted above has also been used in many subsequent cases, some of which will be discussed in the following paragraphs.
The above introduced issue of direct applicability and when direct effect of international agreements is possible was addressed more extensively by the Court in its WTO and GATT related case law. In the so-called International Fruit Company and Banana48 cases the Court discussed the direct effect of agreements made under the GATT and WTO umbrella and the approach that was taken, is in stark contrast with the one taken in Kupferberg and
Haegeman.49 Both of these earlier cases emphasised that international agreements are an
44 Kupferberg, para 17. 45 Ibid.
46 Cannizzaro, E. ‘The Neo-Monism’, 38. 47 Demirel, para 14.
48 Case C-149/96 Portuguese Republic v Council of the European Union [1999] ECLI:EU:C:1999:574.
49 Egli, P. and Kokott, J. ‘Portuguese Republic v. Council of the European Union (Judgment). Case C-149/96’ 94 American Journal of International Law (2000), 743.
15 integral part of the Union legal order, however in these cases currently up for discussion the Court concluded that WTO and GATT agreements do not and cannot have that kind of direct applicability or effect in the Union legal order. This in relation to their broad purpose and nature and the unclarity and impreciseness of their provisions. This means that these
agreements, unlike the agreement discussed in the Haegeman case, cannot serve as the basis for any type of legal review.50 These cases have resulted in a new distinction between international agreements on the one hand and WTO or GATT agreements on the other hand. While the former group (or a part of it) can be considered to have direct effect and
applicability, the latter group does not allow for this51 and require the need for implementation measures or other measures that allow for compliance such as the consistent interpretation of EU law in light of these agreements. The Court’s reasoning for not allowing this direct effect to exist has been criticised by many as being insufficient and is found to be based on a limited examination of the content of the agreements and provisions up for discussion.52 Furthermore,
the political argument of not allowing for direct effect as other parties to these agreements also do not allow for it, cannot be seen as reasonable as this exact argument was also rejected by the Court in the Kupferberg case.53
The next noteworthy case is the Intertanko case from 2008. In this case the Court performed a similar analyses of the UN Convention on the Law of the Sea (UNCLOS) that it did in the WTO and GATT cases. The Court used the same test to determine whether this international agreement could have direct applicability and effect within the Union legal order and it came to the conclusion that this agreement’s nature and broad logic precluded it from having any form of direct effect because it did not grant any individual rights and freedoms, and it could therefore not be used as the basis of judicial review of Union acts either.54 This case was criticised especially for its use of one test (that is also used in the WTO and GATT cases) to ascertain both whether an agreement provides rights for individuals and whether it is capable of direct effect. It is argued that these two elements should be kept separate and the direct effect of an agreement should not be conditional on whether an agreement provides for individual rights.55 Furthermore, an issue arises with the reasoning that if an international
50 Desmedt, A. ‘ECJ Restricts Effect of WTO Agreements in the EC Legal Order’ Journal of International Economic Law (2000), 192.
51 Weisberger, M. ‘The Application of Portugal V. Council: The Banana Cases’ 12 Duke Journal of Comparative and International Law (2002), 175.
52 Egli, and Kokott, ‘Portuguese Republic’, 743. 53 Ibid.
54 Intertanko, para 65.
16 agreement has a legal status within the EU (which is not denied by the Court) it can at the same time not hold direct effect. A question raised by Wessel is “whether the criterion of ‘the governance of the legal position of individuals’ – which seems to be relevant for the
acceptance of direct effect – would not virtually rule out the legal effects of most international law within the EU legal order and hence de facto limit the so much applauded monist attitude of the Union.”56 This question clearly and rightly brings up the issue surrounding the
contrasting approaches taken by the ECJ and the EU Treaties on the effects of international agreements in the EU.
The most recent line of case law that addressed this issue is the case law on the implementation of the Aarhus Convention by the EU. This line of case law is especially interesting as it is the first prominent line of case law in the post-Lisbon time frame.
These two of the most recent cases on the Aarhus Convention are the Vereniging
Milieudefensie case and the Stichting Natuur en Milieu case. Both these cases appeared before the General Court (GC) before they appeared before the ECJ. In the initial cases before the GC it seemed as if the judicial institution was finally ready to move away from its extremely restrictive approach towards allowing the direct effect of international agreements in the EU legal order. In both these cases the question was raised whether Article 10(1) of the Aarhus Regulation contravened Article 9(3) of the Aarhus Convention as it places a limitation on which acts can be reviewed. In the GC’s judgment reference was made to Article 300(7) EC (now Article 216 TFEU) which states that international agreements are binding on all EU institutions and to the fact that according to previous case law of the Court international agreements hierarchically stand above EU secondary legislation. The combination of these two elements led the GC to conclude that it could be possible for the Aarhus Regulation to be found incompatible with the Convention.57 It then moved on to reject the need for the
application of the criteria of the possibility of review in-light of an international agreement as found in the Intertanko case (unconditionality and sufficient precision of the relevant
provisions), as it found that the Nakajima58 exception was applicable in the current case. This exception applies to cases where the EU legislation up for discussion (the Aarhus Regulation in this case) was adopted to contribute to implementing the obligations found in an
56 Wessel, R.A. ‘Reconsidering the Relationship’, 6.
57 Garcon, G. ‘The Rights of Access to Justice in Environmental Matters in the EU – The Third Pillar of the Aarhus Convention’ 2 EFFL (2013), 83-84.
58 Case C-69/89 Nakajima All Precision Co. Ltd v Council of the European Communities [1991] ECLI:EU:C:1991:186, para 28.
17 international agreement (the Aarhus Convention). This allowed the GC to directly move on to the analysis of whether the limitation of reviewable acts under Article 10(1) of the Aarhus Regulation was in line with the provisions of the Aarhus Convention. Its conclusion was that the review procedure as found in Article 9(3) of the Aarhus Convention could not be limited to merely measures of individual scope as this would negate the purpose of the Convention to allow wider access to justice on environmental matters.59
Unfortunately, the ECJ decided to overturn the GC’s judgment and revert back to its traditional and restrictive approach to international agreements where the test of direct effect is necessary. It then used the same reasoning as the Slovak Brown Bear case to conclude that Article 9(3) of the Aarhus Convention did not have direct effect and could therefore not be used as a basis of judicial review of an EU secondary legislative act.60 The reason for the lack of direct effect of Article 9(3) is based on the Court’s repeated use of the criteria as also found in Intertanko, which are the criteria that the international provision is unconditional and sufficiently precise and it is capable of “directly regulating the legal position of individuals”.61 The Court then
stated that Article 9(3) does not meet these criteria. The Court thus concluded that the GC had erred in law and overturned the judgment, leaving the progress that had been made by the GC behind.62 What makes this conclusion unfortunate is also the fact that the Court, in this case, decided not to make use of the reasoning found in the Slovak Brown Bear case that stated that Article 9(3) of the Convention “albeit drafted in broad terms, clearly aimed to ensure effective environmental protection at the national level”.63 It is this reasoning that allowed for national judges to interpret national legislation in light of the Convention (in other words making use of the doctrine of consistent interpretation) and it would have been interesting to see this reasoning be applied in the context of EU legislation by the Court in this case as this might have alleviated (some of) the concerns raised surrounding EU compliance with the Convention.64
What could have been a more nuanced approach for the Court to take, is the route that the Advocate General decided to take in this case. The AG’s conclusion was that Article 9(3) is what he calls a ‘mixed provision’ that does have direct effect even though it might not be sufficiently clear or precise in its entirety. The AG finds that this direct effect could also follow from only a section of the relevant provision that meets the criteria mentioned; which Article 59 Garcon, G. ‘The Rights of Access to Justice’, 84-85.
60 Ibid., 86-88.
61 Schoukens, H. ‘Balancing On or Over’, 185. 62 Ibid., 185-186.
63 Ibid., 186. 64 Ibid.
18 9(3) does according to the AG.65 This approach could have been the slight move away from the Court’s doctrine on the effects of international agreements in the EU that was necessary for a new line of case law that follows more closely what the Member States arguably envisioned in Article 216 TFEU and that follows more closely the Union’s obligation under the Aarhus Convention.
Thus, what can be seen in the various lines of case law discussed is that the ECJ’s confusing approach to the various international agreements makes for a complicated system of when exactly international agreements directly form a part of the EU legal order and have any direct effect, and when they cannot. While the Court’s methods are not exactly the same in all its cases, a trend can be seen in its use for the criteria found in the Demirel case. This approach then follows a more dualist approach to international agreements as it only allows for the direct effect of international agreements in very exceptional circumstances and instead requires more implementation measures to be taken to ensure compliance with international obligations. Additional to this is that the Court continued this approach through the Aarhus Convention line of case law. This contrasting conclusion compared to that of the first chapter of this thesis will be analysed in the following section.
Section 2 – Comparison Between the ECJ’s and the Treaties’ Approach to the Effects of International Agreements in the EU’s internal Legal Order
Having now analysed the approaches of both the ECJ and the EU Treaties in relation to their stance on the effects of international agreements in the EU legal order, what can be seen is that these two approaches started out in-line with one another. In the early 1980’s the Court’s case law argued for the direct application and direct effect of the provisions of international agreements that bind the EU into the EU legal order. With the Haegeman case and to a lesser extent the Kupferberg case the Court found that international agreements are an inherent part of the EU and are directly applicable as soon as they come into force, which can be seen as an exact match to what is currently stated in Article 216 of the TFEU. However, as the case law progresses with the WTO, GATT, and Intertanko cases the Court moves further and further away from the monist approach that the ECJ initially took and is argued in this thesis to be the one that the EU constitutional framework aims for.
Throughout its case law the Court has become much stricter when discussing international agreements and even more so when considering when these agreements are a part of the EU
19 legal order and when they can have direct effect. This can also clearly be seen in the Aarhus Convention case law, as the Court remained fixed in its stance towards international
agreements. Some find that this movement away from what the Treaties are argued to envisage is a form of judicial activism or, as some formulate it, judicial avoidance.66
Especially the reasoning used in the Intertanko ruling is an example for this argument. The resurrection of the individual rights criteria by the ECJ in relation to the analyses of the direct effect of UNCLOS can be seen as an avoidance of a thorough investigation whether the nature and broad logic of UNCLOS truly makes it impossible for it to have direct effect in the Union legal order.67 As Mendez argues even further in his article, this avoidance technique endows the ECJ “with a safeguard argument which could often be invoked to reject review of Community measures vis-à-vis Community Agreements when politically contentious challenges arise.”68
Thus, throughout the last several decades the Court has slowly moved further away from what can be argued to be a more monistic Treaty basis. Not only has this arguable contrasting approach resulted in confusion amongst experts and scholars it has also made it extremely difficult to ascertain how future international agreements will be welcomed into the Union’s legal order.
Concluding Remarks – How does the ECJ Interpret the effects of international Agreements in the EU Legal Order?
These first two chapters have addressed both the Treaty basis of the effects of international law in the EU legal order and the Court’s interpretation of this basis. In the first chapter an analysis of the Treaties resulted in the conclusion that this constitutional basis of the EU presents a more monistic vision towards international law that does not state a clear
requirement for implementation measures. However, what can be seen in the Court’s case law is that it has interpreted the Treaties as allowing for a more dualistic approach that favours a lack of direct applicability or effect of international law which results in the need for
implementation measures or the use of consistent interpretation to ensure compliance with international agreements. Next to this difference between the two approaches is the fact that the ECJ has oftentimes taken diverging approaches to how international agreements affect the EU legal order as it started out with a more monistic approach but eventually moved away 66 Cannizzaro, E. ‘The Neo-Monism’, 56-57.
67 Mendez, M. ‘The Legal Effects of Community Agreements: Maximalist Treaty Enforcement and Judicial Avoidance Techniques’ 21(1) The European Journal of International Law (2010), 94-97 and 99-104. 68 Ibid, 100-101.
20 from this and more towards a dualistic one. This confusing lines of case law that has so far been presented by the Court has created a somewhat disorganised system that makes it difficult to predict how the EU and more specifically the ECJ will welcome future international agreements into its legal order. One of the most recent examples of this
incoherent and difficult approach is the line of case law surrounding the Aarhus Convention and the cases as presented above, a closer analysis of the effects of these cases on the EU’s compliance with the Aarhus Convention will be conducted in the following chapter.
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Part III – The Aarhus Convention
In this final chapter the Union’s efforts in relation to the Aarhus Convention will be analysed. The efforts of both the EU legislative and judicial institutions will be examined in light of the conclusions drawn in the first two chapters. It will be determined if the efforts taken by these institutions are in-line with what, on the one hand, the Treaties proclaim the effects of
international agreements to be in the Union legal order (a more monist approach) and on the other hand what the Court has dictated these effects to be (a more dualist approach). Not only will the EU’s actions be analysed on these abovementioned points, the commentary and critique of both civil society (through the case law of the ECJ) and the Aarhus Convention Compliance Committee (through its reports) will also be used in order to reach a conclusion on whether the Union is taking enough action to abide by the provisions of the Aarhus Convention.
Section 1 – The EU’s Legislative Efforts to Implement the Aarhus Convention
As was presented in chapter one of this thesis, the Union decided to make use of an
implementation measure to address the provisions of the Aarhus Convention. While this use of an implementation measure does not necessarily go against the monistic nature of the Treaties, as was discussed in the first part of this thesis, this section will address how the manner of the EU’s implementation is not fully in line with what the Convention aims to achieve. The EU initially created two Directives, which implemented the first two pillars of the Convention and then after it became a party to the Convention it adopted the Aarhus Regulation, which was supposed to implement all three of the Aarhus pillars. 69 However, even though this Regulation implements all three pillars of the Convention, it still does not include all the contents of the Convention; Article 9(3) of the Convention is not fully covered. This Article is at the core of the discussion surrounding the Union’s approach to the
Convention70 as it covers access to administrative or judicial procedure, by members of the public (including NGO’s), to “challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”71 The Union had already presented a statement earlier on this matter where it remarked that:
69 Schoukens, H. ‘Balancing On or Over’, 178.
70 Notaro, N. and Pagano, M. ‘The Interplay Between International and EU Environmental Law’ in Govaere, I. and Garben, S. (eds) The Interface Between EU and International Law: Contemporary Reflections (Bloomsbury Publishing 2019), 163.
71 United Nations Treaty Collection, CHAPTER XXVII Environment, 13 ‘Convention On Access To
Information, Public Participation In Decision-Making And Access To Justice In Environmental Matters (Aarhus Convention)’ 25th June 1998, Article 9(3).
22 “In particular, the [EU] also declares that the legal instruments in force do not
cover fully the implementation of the obligations resulting from Article 9 (3) of the Convention as they relate to administrative and judicial procedures to
challenge acts and omissions by private persons and public authorities other than the institutions of the [EU] as covered by Article 2 (2)(d) of the Convention, and that, consequently, its Member States are responsible for the performance of these obligations at the time of approval of the Convention by the [EU] and will remain so unless and until the Community, in the exercise of its powers under the [Treaties], adopts provisions of Community law covering the
implementation of those obligations.”72
However, this statement only concerns the earlier attempts at implementing the Convention through Directives, as with these forms of legislation it is the responsibility of the Member States to enforce the content of the Convention’s provisions found in the Directives. Nonetheless, this statement does not clear-up the situation after the Union became a party to the Convention and exercised its powers through adopting the Aarhus Regulation.
The critique surrounding the Regulation and its approach to the public’s access to administrative or judicial procedures against Union acts is mainly formed on the basis that the scope for these kinds of procedures is more limited than it was in the original Convention. Articles 10 and 11 of the Regulation are written so as to implement the procedure listed in Article 9(3) of the Convention. These Articles however are more limited in their scope than the Convention originally set-out; the types of acts allowed to be reviewed are only those considered to be ‘administrative acts’ (Article 10 Aarhus Regulation), which is much more restrictive that the original text of the Convention which refers to any “acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment”.73 Next to
this limitation there are also several strict criteria in place for those NGO’s who wish to challenge these acts, these criteria are related to their objectives and activities (Article 11 Aarhus Regulation). Since the access to these kinds of procedures can be considered to be the core of the Aarhus Convention (in the preamble multiple
72 Found in: Van Wolferen, M. and Eliantonio, M. ‘Access to Justice in Environmental Matters – The EU’s Difficult Road Towards Non-Compliance With the Aarhus Convention’ University of Groningen Faculty of Law Research Paper Series No. 39 (2019), 12.
23 references are made to the importance of access to judicial procedure by the public to
address environmental legislation and decisions), having the scope of access to review procedures limited is quite damaging to the overall purpose of the Convention and the Regulation that is supposed to implement it.74 Even the Union’s promises of full compliance when the Lisbon Treaty (with its newly created category of ‘regulatory acts’75) went in to force did not lead to a lessening of the critique on the EU’s
approach. This promise mainly failed as the introduction of a new sort of regulatory act did not make it easier for the public to access administrative or judicial review procedures as the Court would still apply the necessary requirements in a very strict manner essentially baring access to the procedures.76
What can be seen in the efforts that the EU has taken to abide by the provisions of the Aarhus Convention is that through making use of an implementation measure that does not include a complete version of the Convention’s Article 9, the Union has failed to sufficiently adhere to its obligations to abide by this international agreement that is has concluded and it has also failed to abide by one of the most vital provisions of the Convention.77 Case law of the ECJ on this matter further addresses these
limitations of the scope of judicial review possibilities under the Regulation and these likewise show the issues surrounding the choice of the Union to implement the Aarhus Convention in the manner that it did.
Section 2 – The ECJ’s Case Law on the Aarhus Convention
Access to the ECJ by the general public and/or NGO’s has been an issue that has been present for the last several decades, even pre-dating the entry into force of the Aarhus Convention, and especially in the field of environmental law these issues of access have been notable and heavily discussed.78 When the EU decided to become a party to the Aarhus Convention some
hope was raised that this difficulty of accessing the Court by these various public entities 74 Pirker, B. ‘Access to Justice in Environmental Matters and the Aarhus Convention’s Effects in the EU Legal Order: No Room for Nuanced Self-executing Effect?’ 25(1) Review of European Community and International Environmental Law (2016), 86.
75 Van Wolferen, M. and Eliantonio, M. ‘Access to Justice’, 15. 76 Ibid. 15-16.
77 Wolf, S. ‘Access to environmental information held by the European Union Institutions. A critical examination of the relationship between the Aarhus Convention, Regulation 1049/2001/EC regarding public access to European Parliament, Council and Commission documents and Regulation 1367/2006/EC on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decisions-making and Access to Justice in Environmental Matters to Community Institutions and bodies’ 14(4) ERA Forum (2013), 15.
78 Schoukens, H. ‘Access to Justice in Environmental Cases after the Rulings of the Court of Justice of 13 January 2015: Kafka Revisited?’ 31(81) Utrecht Journal of International and European Law (2015), 48.
24 would be lessened and that it would be possible for judicial procedures to be initiated against the EU’s legislation in the field of environmental law. However, through its case law linked to the Aarhus Convention and Regulation, the Court has decided to stick to its strict
interpretation on when judicial review procedures can be initiated and it has also, again, restricted the direct effects of this Convention in the EU legal order as it has done previously with the WTO and GATT related case law. Next to this they have not yet made use of the doctrine of consistent interpretation, as was presented in the previous chapter. The most recent case law surrounding this topic, as discussed in the precious chapter, will be reviewed in this section to showcase the continuing struggle that is present between the EU and the effects of international agreements in the EU legal order.
As a first point, not only can the continuing refusal to allow for the direct effect and
applicability of international agreements in the EU internal legal order be seen as a set-back for the Aarhus Convention’s case law before the Court, but also for the application of the exceptions to the direct effect test (Nakajima as discussed in the second chapter, and the Fediol exception79) outside of the WTO or GATT legal framework.80 This refusal of allowing
for direct effect and the linked refusal to perform judicial review of EU legislation in light of the international agreements that it is meant to implement, is hindering the Union in abiding by its obligations under those agreements that is has concluded. This it thus making it more difficult to perform checks and balances on EU secondary legislation in light of international agreements “even if the latter have primacy over the former.”81 As Pirker noted on this
decision to not allow for direct effect; “[t]he Grand Chamber’s point of view [in the Aarhus case law] is in my view rather disappointing. One may give it the credit of being consistent with the Court’s earlier case law, but nonetheless it remains difficult to see where the road the Court is travelling down is supposed to lead.”82
Another troubling aspect that comes forth from the Court’s continuing refusal to allow judicial review to take place, in combination with it not allowing the direct effect of
79 Case 70/87 Fédération de l'industrie de l'huilerie de la CEE (Fediol) v Commission of the European
Communities [1989] ECLI:EU:C:1989:254. This case presented the exception to the test of direct effect of
provisions of an international agreement if the EU act in question directly refers to the specific provisions of the international agreement (a WTO agreement in this case).
80 Schoukens, H. ‘Balancing On or Over’, 187-188.
81 Gáspár-Szilágyi, S. ‘The Relationship between EU law and International Agreements. Restricting the Fediol and Nakajima Exceptions in Vereniging Milieudefensie’ 52(4) Common Market Law Review (2015), 17. 82 Pirker, B. ‘Cases C-401 to 403/12 and C-404 to 405/12: No review of legality in light of the Aarhus Convention’ European Law Blog (29th of January 2015). Accessed at: <
https://europeanlawblog.eu/2015/01/29/cases-c-401-to-40312-and-c-404-to-40512-no-review-of-legality-in-light-of-the-aarhus-convention/>
