Council of the European Union and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2014:310
• Court: Court of Justice (European Union)
• Docket Number: C-403/12,C-401/12
• Date: 08 May 2014
• Celex Number: 62012CC0401
• Procedure Type: Recurso de anulación - infundado

OPINION OF ADVOCATE GENERAL

JÄÄSKINEN

delivered on 8 May 2014 ( 1 )

Joined Cases C‑401/12 P to C‑403/12 P

Council of the European Union

European Parliament

European Commission

v

Vereniging Milieudefensie and

Stichting Stop Luchtverontreiniging Utrecht

‛Appeals — Article 9(3) of the Aarhus Convention — Article 2(1)(g) and Article 10 of Regulation (EC) No 1367/2006 — Request for internal review — Inadmissibility — Plea of illegality — Review of the validity of secondary EU law with regard to an international agreement — Case-law resulting from Fediol v Commission and Nakajima v Council — Conditions governing the possibility of relying directly on the provisions of conventions’

Table of contents

I – Introduction

II – Background to the dispute and the judgment under appeal

III – Forms of order sought by the parties and procedure before the Court

IV – The basis of the review of legality of provisions of secondary law in the light of international treaty law (first ground of the appeals)

A – Arguments of the parties

B – The effects of international law in EU law

C – The judgment under appeal

V – The alternative solution vis-à-vis the review of legality — justification of the referral of the case back to the General Court

A – The possibility of relying directly on provisions under conventions for the purposes of the review of the legality of secondary EU law

1. ‘Direct effect’ as a condition for the review of legality

2. Modification of the conditions required for the purposes of the possibility of direct reliance

B – Article 9(3) of the Aarhus Convention as a rule which must be referred to for the purposes of the review of legality

VI – Analysis in the alternative in relation to the review of legality

A – Preliminary remarks

B – Arguments advanced by the Commission in the context of the second ground of appeal

C – The existence of a review of infringements of environmental law within the framework of the Aarhus Convention

D – The scope of the review of violations of environmental law under the Aarhus Regulation

E – Additional remarks

VII – The cross-appeal

VIII – Conclusion

I – Introduction

1. This series of appeals raises fundamental questions for the European Union legal order. Addressing as they do issues of a constitutional nature, these appeals reflect the tension between, on the one hand, the need to preserve the autonomy of EU law and, on the other hand, the will to comply with international commitments under agreements to which the European Union is party.

2. The present cases relate more specifically to the fact that the international convention in question, namely the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘the Aarhus Convention’), approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, ( 2 ) seeks, inter alia, to create special procedural rights for the benefit of environmental protection organisations with a view to protecting, as a matter of public interest, the environment, which is regarded as a common asset. The situation at issue here thus goes beyond the dichotomy between public persons and private individuals, the prism traditionally used in the analysis of the internal effects of obligations under conventions. ( 3 )

3. In the specific context of the Aarhus Convention, the Court is thus asked to rethink the conditions governing the possibility of relying on ( 4 ) provisions of international treaty law before the courts of the European Union in the context of proceedings for annulment for the purposes of a review of the legality of secondary EU law.

4. This series of cases has its origin in the juxtaposition of two provisions: one of international treaty law and the other of secondary EU law, the purpose of which is to implement the convention in question.

5. Article 9(3) of the Aarhus Convention on ‘access to justice’ provides that ‘without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’. The scope of that provision is made clear in paragraph 4 of that same article, which requires, inter alia, that the procedures referred to in paragraph 3 must provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable and timely and not prohibitively expensive.

6. The application of the provisions of the Aarhus Convention to the institutions and bodies of the European Union is governed by Regulation (EC) No 1367/2006 ( 5 ) (‘the Aarhus Regulation’). Under Article 10(1) of the regulation, which relates to the procedure for the ‘internal review of administrative acts’, ‘[a]ny non-governmental organisation which meets the criteria set out in Article 11 ( 6 ) is entitled to make a request for internal review to the Community institution or body that has adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act’. However, the concept of an ‘administrative act’ within the meaning of that regulation is defined in Article 2(1)(g) of the Aarhus Regulation as ‘any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects’. The EU legislature thus excluded acts of general scope from the scope of the review which may be initiated by environmental protection organisations.

7. In the judgment in Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging (T‑396/09, EU:T:2012:301, ‘the judgment under appeal’), the General Court reviewed the legality of the Aarhus Regulation in the light of the Aarhus Convention, taking as a basis the case-law resulting from Fediol v Commission and Nakajima v Council relating to provisions of the General Agreement on Tariffs and Trade (‘the GATT’) and the Agreement establishing the World Trade Organisation (‘the WTO Agreement’). ( 7 )

8. Even though, for that reason, the judgment of the General Court appears to me to be vitiated by an error of law which must result in it being set aside, the fact remains that the key aspect of that error relates to the conditions governing the possibility of relying on the provisions of conventions formulated by the Court in its case-law, conditions which do not seem to constitute a totally coherent whole. In accordance with that case-law, in order for it to be a criterion governing the validity of an act of EU law, a provision of a convention must be, inter alia, unconditional and sufficiently precise, that is to say it must have direct effect. ( 8 ) However, whilst quite rightly seeking a solution which would make it possible to examine the conformity of the Aarhus Regulation with the Aarhus Convention, the General Court manifestly attempted to sidestep that condition. ( 9 ) For my part, I am of the view that the message thus conveyed by the General Court must be examined carefully.

9. Accordingly, if it were to agree with my analysis of the error committed by the General Court, the Court of Justice would be presented with the following choice. On the one hand, if the Court of Justice were to have no doubt about that error, it could follow the case-law laid down in Intertanko, ( 10 ) which makes the possibility of a review of validity subject to the criterion of direct effect, and thus close definitively the means of conducting a review of the legality of the internal law implementing Article 9(3) of the Aarhus Convention at both EU and Member State level.

10. However, for the reasons which I will set out, it appears to me to be preferable to opt for a modification by the Court of the conditions governing the possibility of such reliance, in particular in the same way as the approach adopted in ‘Biotech’, ( 11 ) in which the Court expressly ruled out direct effect being a universal condition governing the possibility of reliance on provisions in the context of a review of legality.

11. Accordingly, even in the event of the case being referred back to the General Court, a relaxation of the conditions governing the possibility of reliance on provisions would enable the General Court to ascertain, on an appropriate basis, whether by adopting the Aarhus Regulation the Community legislature afforded individuals a sufficient degree of judicial protection in the light of the Aarhus Convention.

II – Background to the dispute and the judgment under appeal

12. The cases have their origin in a Commission decision of 7 April 2009, ( 12 ) by which the Commission granted the Kingdom of the Netherlands a temporary derogation from the obligations laid down in Directive 2008/50/EC on ambient air quality and cleaner air for Europe ( 13 ) (‘the derogation decision’).

13. By letter of 18 May 2009, the Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (‘the environmental protection organisations’) submitted a request to the Commission for internal review of the derogation decision in accordance with Article 10(1) of the Aarhus Regulation. By its decision, Decision C(2009) 6121 of 28 July 2009 (‘the...