Access to Justice in Environmental Matters and the Aarhus Convention's Effects in the EU Legal Order: No Room for Nuanced Self‐executing Effect?

Published date01 April 2016
Date01 April 2016
Access to Justice in Environmental Matters and the
Aarhus Convention’s Effects in the EU Legal Order:
No Room for Nuanced Self-executing Effect?
Benedikt Pirker*
This article examines two recent decisions by the Court
of Justice of the European Union on the effect of
the Aarhus Convention in the European Union) legal
order. Compared to earlier case law, the Court missed
an opportunity to nuance its approach towards the
self-executing character of the Convention’s provi-
sions. As a consequence of the Court’s overly rigid
jurisprudence, a provision of the Convention cannot
serve as a benchmark to review the very same Conven-
tion’s implementing measure at the EU level, the
Aarhus Regulation. Sceptical of this outcome, the
article suggests a more nuanced approach and pro-
vides arguments in support of this approach.
Recent case law of the Court of Justice of the European
Union (CJEU) addresses the question of access to
justice in environmental matters with regard to Euro-
pean Union (EU) acts implementing the Aarhus Con-
vention. In the discussion on the general relationship
between international law and the EU legal order, the
conditions under which provisions of international
treaties will be granted effect in proceedings concerning
the review of EU secondary law continue to be debated.
Two recent decisions of the CJEU provide an opportu-
nity to assess more specifically how the Court deals with
the provisions on access to justice of the Aarhus Con-
vention.1Not without reason it has often been said that
the ‘environment has no voice of its own’,2making
effective mechanisms for access to justice, the availabil-
ity of judicial review and effective standards to be
applied under such review a matter of primary concern.
Vereniging Milieudefensie and Stichting Natuur en
Milieu demonstrate that there is a need for a more
nuanced approach to the case of the Aarhus Convention
where the latter’s Article 9.3 may require the adoption
of subsequent measures for its implementation, but
nonetheless contains a clear legal core standard capable
of serving as a benchmark for judicial review. While the
Court insisted on not reviewing the relevant EU second-
ary law in the light of Article 9.3, this article suggests
that a more nuanced approach such as the one sug-
gested by Advocate General Jääskinen would enhance
the effectiveness of the Convention’s provisions.
For this purpose, this article first addresses the basic
elements of the relationship between the EU legal order
and international treaty law, before engaging in more
detail with the case law of the Court of Justice concern-
ing the self-executing character of treaty provisions and
the criterion of subsequent measures. It then assesses
the Court’s decisions in Vereniging Milieudefensie and
Stichting Natuur en Milieu, two cases that offered an
opportunity for the Court to reconsider its approach to
self-executing effect – to no avail. Lastly, the article sets
out the reasons that militate in favour of a more nuanced
approach to the self-executing character of Article 9.3 of
the Aarhus Convention, before drawing conclusions.
The relationship between EU law and international law,
in the present case treaties binding for the EU, is quite
clear at first view: Article 3.5 of the Treaty on European
Union (TEU) lays down as one of the official aims of the
EU to contribute to ‘the strict observance and the devel-
opment of international law’,3which seems unthinkable
without such observance also being applicable to the
EU institutions and Member States when they imple-
ment such international obligations. In addition, the
Court tirelessly emphasizes that based on Article 216.2
of the Treaty on the Functioning of the European Union
(TFEU),4international agreements concluded by the
* Corresponding author.
1Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters
(Aarhus, 25 June 1998; in force 30 October 2001) (‘Aarhus
2L. Krämer, ‘The Environmental Complaint in the EU’, 6:1 Journal of
European Environmental and Planning Law (2009), 13, at 25.
3Consolidated Version of the Treaty on European Union, [2012] OJ
C326/13 (‘TEU’), Article 3.5.
4Consolidated Version of the Treaty on the Functioning of the Euro-
pean Union, [2012] OJ C326/47 (‘TFEU’), Article 216.2.
DOI: 10.1111/reel.12124
© 2015 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
RECIEL 25 (1) 2016. ISSN 2050-0386
Review of European Community & International Environmental Law

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