Court of Justice dismisses Vereniging Milieudefensie in air quality appeal. Aarhus not always the jawbreaker in judicial review.

In Joined Cases C‑401/12 P to C‑403/12 P, the issues at stake are the scope of judicial review (in the specific context of information requests), the EU’s long and difficult relationship with locus standi in environmental matters (again though within the perhaps more narrow context of access to information), the correct implementation of the Aarhus Convention, and the direct effect of said Convention. The judgment which the ECJ issued yesterday, underlines the need to review the direct effect of international law on a case-by-case and indeed article-by-article basis. While it is clear that the European Court of Justice overall has great sympathy for the binding impact of the Aarhus Convention (see i.a. my postings on the ECJ’s judgments in cases related to the cost of environmental litigation), in this case the relevant environmental organisations failed to convince the ECJ that Article 9 of the Convention has direct effect.

Article 9 Aarhus provides a review procedure in the event requests for information have been refused. (Readers may wish to consult Article 9 themselves to judge direct effect or lack of it themselves).

Regulation 1367/2006 implements the Aarhus Convention is-a-vis the EU Institutions. The case concerns Article 10 of that regulation, entitled ‘Request for internal review of administrative acts’, which provides in paragraph 1 thereof: ‘Any non-governmental organisation which meets the criteria set out in Article 11 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.

Article 2(1)(g) of that Regulation defines ‘administrative act’ as meaning: ‘any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects’.

The Netherlands, in accordance with Article 22 of the ambient air quality Directive, Directive 2008/50, had notified the Commission that it had postponed the deadline for attaining the annual limit values for nitrogen dioxide in nine zones and that it was availing itself of a specific exemption from the obligation to apply the daily and annual limit values for particulate matter. The Commission accepted that postponement. Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht submitted a request to the Commission for internal review of that decision pursuant to aforementioned Article 10(1). The EC refused internal review.  The Commission considered the request inadmissible as the concerned acts in their view were not “administrative acts” as defined in Article 2(1)(g), not being, the EC argued , of ‘individual scope’ but rather of general application.

The General Court sided with applicants: because Article 10(1) of Regulation 1367/2006 limits the concept of “acts” that can be challenged by NGOs to “administrative acts” defined in Article 2(1)(g) of the Regulation as “measures of individual scope”, it argued that the Regulation is not compatible with Article 9(3) Aarhus. That judgment was appealed by many. The AG in current case also sided with the applicants. (Albeit following a different reasoning than the General court).

The ECJ itself disagreed. The provisions of an international agreement to which the European Union 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, first, the nature and the broad logic of that agreement do not preclude it and, secondly, those provisions appear, as regards their content, to be unconditional and sufficiently precise. (Ex multi, the ECJ quoted its judgment in the Emissions Trading Scheme case, C-366/10).

Article 9(3) Aarhus, the Court held, 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: since only members of the public who ‘meet the criteria, if any, laid down in … national law’ are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure at the national level. The Aarhus Contracting Parties enjoy have a broad margin of discretion when defining the rules for the implementation of the ‘administrative or judicial procedures’ (at 59 in fine).

We were quite getting used to Aarhus being employed as a jawbreaker by the ECJ and national courts alike. I am not saying those days are over. However Vereniging Milieudefensie does show both that we cannot assume the Convention’s empowering effect for all of its provisions, and secondly, that at the level of the Convention itself, beefing up one or two articles would certainly assist its implementation. (That in itself, of course, may become more difficult the more frequent the ECJ and national courts both in the EU and elsewhere, employ Aarhus against unwilling State authorities).

Geert.

PS note that in Joined Cases C‑404/12 P and C‑405/12 P, Stichting Natuur en Milieu, the ECJ mirrors this judgment with respect to an internal review of a Regulation setting maximum residue levels for pesticides.

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