Council of the European Union and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht.
Date: 2015-01-13
19. However, it stated, referring in particular to the judgments of the Court of Justice in Fediol  v Commission  (70/87, EU:C:1989:254) and Nakajima  v Council (C‑69/89, EU:C:1991:186), that that court has held that it had to exercise its review of the legality of the EU act in question in the light of rules laid down in an international agreement that are not capable of conferring on the individual concerned the right to invoke it before the courts in a situation where the European Union has sought to implement a particular obligation entered into within the framework of that agreement or where the secondary legislative act makes an explicit reference to particular provisions of that agreement. The General Court concluded, in paragraph 54 of the judgment under appeal, that the Courts of the EU must be able to review the legality of that regulation in the light of the international agreement where that regulation is intended to implement an obligation imposed on the EU institutions under that agreement.
33. In the present case, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht obtained, before the General Court, the annulment of the decision at issue in accordance with the form of order sought in their action. Their cross-appeal, which in fact merely seeks to substitute the grounds relating to the analysis of whether Article 9(3) of the Aarhus Convention may be relied on, cannot, therefore, be upheld (see, by analogy, in relation to a main appeal, judgment in Al-Aqsa  v Council  and Netherlands  v Al-Aqsa , C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraphs 43 to 45).
34. It follows from the above considerations that the cross-appeal must be dismissed as inadmissible.
The main appeals
38. First, the approach adopted in the judgment in Fediol  v Commission  (EU:C:1989:254) is justified by the specific circumstances of that case, in which the regulation at issue entitled the economic agents concerned to rely on rules of the General Agreement on Tariffs and Trade (‘the GATT’). Moreover, that approach is not to be applied outside of the specific scope of the GATT.
41. With regard to the judgment in Fediol  v Commission  (EU:C:1989:254), the Commission adds that that judgment applies only to the situation where an EU act has made an explicit reference to particular provisions of the GATT.
43. The Parliament argues that the judgment in Fediol  v Commission  (EU:C:1989:254) covers only the case of an explicit renvoi by a secondary legislative act to specific provisions of an international agreement, which is not a mere reference to those provisions, but an incorporation of them. Consequently, the General Court could not rely on recital 18 in the preamble to Regulation No 1367/2006, which merely describes Article 9(3) of the Aarhus Convention, in finding that condition to be met in the present case. In addition, and in any event, it follows from that case-law of the Court that if an EU regulation incorporates provisions of an international agreement, those provisions may be relied on only for reviewing the validity of the acts adopted to implement that regulation and not the validity of the regulation itself.
47. The Commission recalls also that the Court, in its judgments in Intertanko and Others (C‑308/06, EU:C:2008:312) and Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), did not accept that it can review the validity of a directive in relation to an international agreement even though that agreement contained references to it.
48. Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht maintain, first of all, that there is no indication in the judgment in Lesoochranárske zoskupenie (C‑240/09, EU:C:2011:125) as to the direct effect of Article 9(3) of the Aarhus Convention as regards challengeable acts within the meaning of that provision.
49. They submit, first, that, by its nature and purpose, that convention does not preclude review, at the request of environmental protection organisations, of the validity of an act of secondary EU legislation and, secondly, that the conditions of that review, set out in the judgment in Fediol  v Commission  (EU:C:1989:254), are fulfilled given that Regulation No 1367/2006 contains a number of references to the Convention and, in particular, to Article 9(3) thereof.
51. Lastly, they argue that the General Court did observe the audi alteram partem principle since it gave the parties the opportunity to comment on the application, in the present case, of the case-law stemming from the judgments in Fediol  v Commission  (EU:C:1989:254) and Nakajima  v Council (EU:C:1991:186) during the hearing. In any event, the circumstances of the present case are different to those leading to the judgment in Commission  v Ireland and Others  (EU:C:2009:742) relied on by the Parliament.
Findings of the Court
52. Pursuant to Article 300(7) EC (now Article 216(2) TFEU), international agreements concluded by the European Union bind its institutions and consequently prevail over the acts laid down by those institutions (see, to that effect, judgment in Intertanko and Others , EU:C:2008:312, paragraph 42 and the case-law cited).
53. However, the effects, within the EU legal order, of provisions of an agreement concluded by the European Union 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 European Union 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 and the case-law cited).
54. The Court has consistently held that 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 (see 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 , EU:C:2011:864, paragraph 54).
55. With regard to Article 9(3) of the Aarhus Convention, that article 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 (see judgment in Lesoochranárske zoskupenie , EU:C:2011:125, paragraph 45).
56. It is true that the Court has also held that, where the European Union intends to implement a particular obligation assumed in the context of the agreements concluded in the context of the World Trade Organization (‘the WTO agreements’) or where the EU act at issue refers explicitly to specific provisions of those agreements, the Court should review the legality of the act at issue and the acts adopted for its implementation in the light of the rules of those agreements (see judgments in Fediol  v Commission , EU:C:1989:254, paragraphs 19 to 23; Nakajima  v Council , EU:C:1991:186, paragraphs 29 to 32; Germany  v Council , C‑280/93, EU:C:1994:367, paragraph 111; and Italy  v Council , C‑352/96, EU:C:1998:531, paragraph 19).
57. However, those two exceptions were justified solely by the particularities of the agreements that led to their application.
58. With regard, in the first place, to the judgment in Fediol  v Commission  (EU:C:1989:254), it should be recalled that Article 2(1) of Council Regulation (EEC) No 2641/84 of 1 7 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.
59. As regards, in the second place, 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 Community, 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) (see judgment in Nakajima  v Council , EU:C:1991:186, paragraph 30). However, in the present case, there is no question of implementation, by Article 10(1) of Regulation No 1367/2006, of specific obligations within the meaning of that judgment, in so far as, as is apparent from Article 9(3) of the Aarhus Convention, the Contracting Parties thereto have a broad margin of discretion when defining the rules for the implementation of the ‘administrative or judicial procedures’.
60. In that regard, it cannot be considered that, by adopting the 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, within the meaning of the case-law cited in paragraph 56 of this judgment, 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 (see, to that effect, judgment in Lesoochranárske zoskupenie , EU:C:2011:125, paragraphs 41 and 47).
61. It follows from all the foregoing that, 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 General Court vitiated the judgment under appeal by an error of law.
65. By the first plea of their action before the General Court, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht submitted that the Commission had been wrong to consider their request for internal review of the decision of 7 April 2009 inadmissible on the ground that it was an act of general scope.
66. That plea, on the same grounds as those adopted by the General Court, must be rejected as unfounded.