The Court of Justice handed down two interesting judgments back in January 2015 on the rights of environmental NGOs and the compatibility of EU legislation with international agreements. The two judgments – in Joined Cases C-401/12 P to C-403/12 P Council v Vereniging Milieudefensie and others, EU:C:2015:4, and Joined Cases C-404/12 P and C-405/12 P Council v Stichting Natuur en Milieu and Pesticide Action Network Europe, EU:C:2015:5 – clarify when applicants can rely an international agreement which does not have direct effect.

The cases are appeals lodged by the Council, Parliament and Commission against judgments of the  General Court in Case T‐396/09 EU:T:2012:301 and in Case T-338/08 EU:T:2012:300. In those judgments the General Court annulled Commission decisions to reject the requests of environmental NGOs for review of a Commission decision granting the Netherlands a temporary exemption from the obligations laid down by Directive 2008/50/EC on ambient air quality and cleaner air for Europe and of a Commission regulation setting maximum residue levels for pesticides. The cases concern Art. 9(3) of the Aarhus Convention and Regulation 1367/2006 (‘Aarhus Regulation’).

The General Court had examined the compatibility of the Commission’s measures in the light of the Aarhus Convention based on the Court of Justice judgments in Fediol v Commission 70/87 EU:C:1989:254 and Nakajima v Council C-69/89 EU:C:1991:186 which concerned GATT/WTO law. In those cases the Court reviewed the legality of EU secondary legislation in the light of international agreements that do not meet the criteria of direct effect.

In its judgments of 13 January 2015 in Joined Cases C-401/12 P to C-403/12 P and Joined Cases C-404/12 P and C-405/12 P, the Court of Justice distinguishes Fediol v Commission 70/87 EU:C:1989:254 and Nakajima v Council C-69/89 EU:C:1991:186 and recalled its traditional case law.

Traditional caselaw on when international agreements can be relied on

The Court recalls that Article 216(2) TFEU (ex Article 300(7) EC), provides that international agreements concluded by the EU bind its institutions and consequently prevail over the acts laid down by those institutions (judgment in Intertanko and Others, C-308/06, EU:C:2008:312, paragraph 42 and the case-law cited).

The effects, within the EU legal order, of provisions of an agreement concluded by the EU with non-member States may not be determined without taking account of the international origin of the provisions in question. In conformity with the principles of international law, EU institutions which have power to negotiate and conclude such an agreement are free to agree with the non-member States concerned what effects the provisions of the agreement are to have in the internal legal order of the contracting parties. If that question has not been expressly dealt with in the agreement, it is for the courts having jurisdiction in the matter and in particular the Court of Justice, within the framework of its jurisdiction under the FEU Treaty to decide it, in the same manner as any other question of interpretation relating to the application of the agreement in question in the EU on the basis in particular of the agreement’s spirit, general scheme or terms (see judgment in FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 108).

The Court has consistently held that the provisions of an international agreement to which the EU is a party can be relied on in support of an action for annulment of an act of secondary EU legislation or an exception based on the illegality of such an act only where,

1. the nature and the broad logic of that agreement do not preclude it and,
2. those provisions appear, as regards their content, to be unconditional and sufficiently precise (judgments in Intertanko and Others, EU:C:2008:312, paragraph 45; FIAMM and Others v Council and Commission, EU:C:2008:476, paragraphs 110 and 120; and Air Transport Association of America and Others, C-366/10, EU:C:2011:864, paragraph 54).

The Court held that Article 9(3) of the Aarhus Convention does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals and therefore does not meet those conditions. That provision is subject, in its implementation or effects, to the adoption of a subsequent measure (see judgment in Lesoochranárske zoskupenie, C-240/09, EU:C:2011:125, paragraph 45).

Fediol and Nakajima distinguished

The Court distinguished Fediol v Commission 70/87 EU:C:1989:254 and Nakajima v Council C-69/89 EU:C:1991:186 as follows.

With regard, first, to the judgment in Fediol v Commission (EU:C:1989:254), Article 2(1) of Council Regulation (EEC) No 2641/84 of 17 September 1984 on the strengthening of the common commercial policy with regard in particular to protection against illicit commercial practices (OJ 1984 L 252, p. 1), at issue in the case that led to that judgment, referred explicitly to rules of international law based, essentially, on the GATT, and conferred on interested parties the right to invoke provisions of the GATT in the context of a complaint lodged under that regulation (judgment in Fediol v Commission, EU:C:1989:254, paragraph 19), whereas, in the present case, Article 10(1) of Regulation No 1367/2006 neither makes direct reference to specific provisions of the Aarhus Convention nor confers a right on individuals. Consequently, in the absence of such an explicit reference to provisions of an international agreement, the judgment referred to cannot be deemed relevant in the present case.

As regards, second, the judgment in Nakajima v Council (EU:C:1991:186), the acts of EU law at issue in that case were linked to the antidumping system, which is extremely dense in its design and application, in the sense that it provides for measures in respect of undertakings accused of dumping practices. More specifically, the basic regulation at issue in that case had been adopted in accordance with the existing international obligations of the EU in particular those arising out of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, approved, on behalf of the Community, by Council Decision 80/271/EEC of 10 December 1979 concerning the conclusion of the Multilateral Agreements resulting from the 1973 to 1979 trade negotiations (OJ 1980 L 71, p. 1) (judgment in Nakajima v Council, EU:C:1991:186, paragraph 30).

In the present case, on the other hand, there is no question of implementation, by Article 10(1) of Regulation No 1367/2006, the Aarhus Regulation, of specific obligations within the meaning of that judgment, because it is apparent from Article 9(3) of the Aarhus Convention, the Contracting Parties  have a broad margin of discretion when defining the rules for the implementation of the ‘administrative or judicial procedures’.

In that regard, it cannot be considered that, by adopting the Aarhus regulation referred to, which concerns only EU institutions and moreover concerns only one of the remedies available to individuals for ensuring compliance with EU environmental law, the European Union intended to implement the obligations, which derive from Article 9(3) of the Aarhus Convention with respect to national administrative or judicial procedures, which, as EU law now stands, fall primarily within the scope of Member State law (judgment in Lesoochranárske zoskupenie, C-240/09, EU:C:2011:125, paragraphs 41 and 47).

As a consequence, the General Court made an error of law in holding that Article 9(3) of the Aarhus Convention could be relied on in order to assess the legality of Article 10(1) of Regulation No 1367/2006. The Court of Justice thus quashed the judgments of the General Court and dismissed the applications for annulment without referring the cases back to the General Court.