24/02/2015
Two years ago the Court of Justice of the EU (CJEU) held that EU regulation applying the Aarhus Convention to the European Commission was defective because it did not fully reflect the convention’s provisions on access to justice. The decision was considered bold in that it would have potentially opened up many commission decisions to review and scrutiny by environmental NGOs and other third parties
The significance of the decision, made by the General Court of the CJEU (formally the Court of First Instance), was such that the commission, together with the European Council and the European Parliament, appealed to the court’s Grand Chamber.
In January, the court granted the appeal, holding that it was not for the court to review whether the regulation was compatible with the international convention. The decision in joined cases C-401/12P to C-403/12P CJEU, 13 January 2015, though in line with the court’s conventional case law, raises questions about how the rule of law is applied to community institutions.
Article 9 of the Aarhus Convention provides that individuals and environmental NGOs have the right to access independent courts or other bodies to challenge the legality of decisions of private or public bodies that contravene national law relating to the environment. The Aarhus Convention was ratified by all EU member states and the article 9 provisions were transposed into two key EU environmental directives on environmental assessment and industrial emissions control. The CJEU has given important rulings on Aarhus in respect of cases involving member states and in 2011 declared that the convention’s provisions “now form an integral part of the legal order of the European Union”.
The EU also ratified Aarhus in its own right and Regulation 1367/2006 aimed to apply the convention to the European institutions, including the commission. A core provision gives NGOs the right to request an internal review of any administrative act under environmental law adopted by a community institution. The regulation defines an administrative act as a “measure of individual scope under environmental law, taken by a community institution or body, and having legally binding and external effects”.
The court’s decision involved two challenges raising similar issues. In the first, a Dutch environmental group sought a review of the commission’s 2009 decision to allow the Netherlands to postpone meeting air pollution targets for nitrogen oxides (NOx) in a number of zones. The commission refused the request on the grounds the decision was not a measure of ‘individual scope’ under the regulation. In a case decided the same day and on the same grounds, NGOs had sought an internal review by the commission of a regulation setting down pesticide levels for food. Again the commission refused the request because the regulation was not an administrative act within the meaning of Regulation 1367/2006.
The claimants essentially argued that the way that the regulation limited review to administrative acts of individual concern was not consistent with the much broader scope of review provided by article 9(3) of Aarhus. The regulation either had to be interpreted in that light or was invalid.
The core issue for the CJEU was the extent to which an international convention could be invoked in a challenge such as this. Traditional case law accepted it could examine the legal validity of EU regulation in the light of an international treaty to which the EU was party, but only in limited circumstances. Raising these provisions had to be consistent with the logic of the treaty and the treaty’s provisions had to be “unconditional and sufficiently precise”.
The problem facing the claimants here was that the CJEU had already held in 2011 in the ‘Slovak bears’ case that the article 9 provisions in respect of NGOs were not sufficiently precise and unconditional because Aarhus specifically gave countries the discretion to define the conditions of an environmental NGO claiming rights under Aarhus.
Against this, there were a small number of decisions of the CJEU that appeared to suggest that, even if a provision of an international treaty was not precise and unconditional, it could still be invoked. This appeared to be the case where the EU law in question makes specific reference to the treaty in question. The question for the CJEU was whether this case law was a very narrow exception or could in fact be built on to give more general effect to international law within the EU system.
In its 2012 decision, the General Court decided to adopt the more liberal approach. It noted that the 2006 regulation was designed to implement Aarhus, giving the court the remit to consider the convention’s provisions and declare the regulation defective.
But now the Grand Chamber has held that this went too far. It felt that the cases where international law had been invoked, even though not precise and unconditional, “were justified solely by the particularities of the agreements that led to their application”. So the traditional view that raising international law provisions before the CJEU is the exception rather than the rule has prevailed.
One of the reasons that convinced the court was that Aarhus largely requires implementation at national rather than European level. This is undoubtedly the case, but it seems a strange outcome that the commission can bring enforcement actions before the CJEU against member states for non-compliance with EU law implementing Aarhus, but now apparently is largely exempt from court review of its own implementation of Aarhus.
The focus of attention may now have to move to the UN Aarhus Compliance Committee, which has no such limitations in its approach but nor does it have explicit sanctioning powers for non-compliance other than its own authority and peer pressure from other countries.
