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 date: 01 April 2016
• Date: 01 April 2016
• DOI: http://doi.org/10.1111/reel.12124

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.

INTRODUCTION

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.

EU LAW AND INTERNATIONAL

TREATY LAW: THE RELEVANT

PIECES OF THE PUZZLE

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.

Email: benedikt.pirker@unifr.ch

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

Convention’).

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.

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RECIEL 25 (1) 2016. ISSN 2050-0386

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