Council of the European Union and European Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe.
Date: 2015-01-13
31. In the present case, Stichting Natuur en Milieu and Pesticide Action Network Europe obtained, before the General Court, the annulment of the decisions at issue in accordance with the forms 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).
44. 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).
45. 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 those provisions. 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).
46. 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 , C‑366/10, EU:C:2011:864, paragraph 54).
47. 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).
48. 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)
51. 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’.
52. In that regard, it cannot be considered that, by adopting Regulation No 1367/2006, 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 was intended to implement the obligations, within the meaning of the case-law cited in paragraph 48 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).
57. By the first plea of their action before the General Court, Stichting Natuur en Milieu and Pesticide Action Network Europe submitted that the Commission had been wrong to consider their requests for internal review of Regulation No 146/2008 inadmissible on the ground that it was an act of general scope.
58. That plea, on the same grounds as those adopted by the General Court, must be rejected as unfounded.