Opinion of the Advocate General — ECLI:EU:C:2010:436
Date: 2010-07-15
Language of the case: Slovak
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Slovakia

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Interpretation of an international agreement concluded by the Community and the Member States on the basis of joint competence – Convention on access to information, public participation in decision-making and access to justice on environmental matters (Aarhus Convention) – Jurisdiction to determine the distribution of competences between the Community and the Member States (Art. 234 EC; Aarhus Convention, Art. 9(3); Council Decision 2005/370) 2. Preliminary rulings – Jurisdiction of the Court – Limits – Interpretation requested on account of the applicability of a provision both to situations falling within the scope of national law and to situations falling within the scope of EU law – Jurisdiction to provide that interpretation (Aarhus Convention, Art. 9(3); Council Decision 2005/370) 3. International agreements – Agreements concluded by the Community – Convention on access to information, public participation in decision-making and public access to justice on environmental matters (Aarhus Convention) – Article 9(3) – Direct effect – None (Art. 10 EC; Aarhus Convention, Art. 9(3); Council Decision 2005/370) 1. Since the Convention on access to information, public participation in decision-making and public access to justice on environmental matters (Aarhus Convention) was concluded by the Community and all the Member States on the basis of joint competence, it follows that where a case is brought before the Court in accordance with the provisions of the Treaty, in particular Article 234 EC thereof, the Court has jurisdiction to draw the line dividing the obligations the Community has assumed from those remaining the sole responsibility of the Member States and to interpret that convention. Next, it must be determined whether, in the field covered by Article 9(3) of the Aarhus Convention, the Union has exercised its powers and adopted provisions to implement the obligations which derive from it. If that should not be the case, the obligations deriving from Article 9(3) of the Aarhus Convention would continue to be covered by the national law of the Member States. In those circumstances, it would be for the courts of those Member States to determine, on the basis of national law, whether individuals could rely directly on the rules of that international agreement relevant to that field or whether the courts must apply those rules of their own motion. In that case, Union law neither requires nor forbids the legal order of a Member State to accord to individuals the right to rely directly on a rule laid down in the Aarhus Convention or to oblige the courts to apply that rule of their own motion. However, if it were to be held that the Union has exercised its powers and adopted provisions in the field covered by Article 9(3) of the Aarhus Convention, Union law would apply and it would be for the Court of Justice to determine whether the provision of the international agreement in question has direct effect. In that connection, it must be observed first of all, that, in the field of environmental protection, the Union has explicit external competence pursuant to Article 175 EC, read in conjunction with Article 174(2) EC. Furthermore, the Court has held that a specific issue which has not yet been the subject of Union legislation is part of Union law, when that issue is regulated in agreements concluded by the Union and the Member State and concerns a field in large measure covered by Union law. (see paras 31-33, 35-36) 2. The Court has jurisdiction to interpret the provisions of Article 9(3) of the Convention on access to information, public participation in decision-making and public access to justice on environmental matters (Aarhus Convention) and, in particular, to give a ruling on whether or not they have direct effect. When a provision can apply both to situations falling within the scope of national law and to situations falling within the scope of Union law, there is a certain interest in that provision’s being interpreted uniformly, whatever the circumstances in which it is to apply, in order to forestall future differences of interpretation. (see paras 42-43) 3. Article 9(3) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) does not have direct effect in Union law. It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by European Union law, so as to enable an environmental protection organisation to challenge before a court a decision taken following administrative proceedings liable to be contrary to European Union environmental law. Failing EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding the rights that individuals derive from Union law, in this case the Habitats Directive, the Member States being responsible for ensuring that those rights are effectively protected in every case. On that basis, as is apparent from well-established case-law, the detailed procedural rules governing actions for safeguarding an individual’s rights under Union law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by Union law (principle of effectiveness). (see paras 47-48, 51-52, operative part)