The Grand Chamber of the Court of Justice of the European Union (CJEU) has overturned two decisions on appeal, with the result of dismissing environmental NGOs' requests for internal reviews from the Commission, under the Aarhus Convention. The Grand Chamber also asserted that the right to a review procedure under Aarhus is not directly applicable in relation to EU institutions, relying on EU transposition.
The EU has signed up to the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters (1998). Under Article 9(3), individuals or groups can request a review, judicial or otherwise, of acts or omissions of public bodies relating to environmental matters. Regulation 1367/2006 intends to implement provisions of Aarhus into EU law, and Article 10(1) of that regulation, entitled ‘Request for internal review of administrative act’, transposes 9(3), providing that NGOs can make a request for a review of an administrative act or omission under environmental law.
In both cases, environmental NGOs made requests to the Commission for internal reviews of decisions it had made in relation to pesticides and to air quality. The Commission declared both requests inadmissible on the grounds that the subject matter did not constitute ‘administrative acts’ as defined by 2(1)(g) because the decisions did not have individual application and were of a ‘general scope’. The applicants in both cases appealed the decisions to the CJEU and succeeded in the General Court; however the present judgments from the Grand Chamber overturn these decisions and dismiss the appeals.
The General Court found that the Commission was correct in their application of Article 10(1). However the applicants argued that Article 10(1) is incompatible with article 9(3) of the Aarhus Convention, and the General Court agreed with this.
On appeal, the Grand Chamber agreed that provisions of an international agreement can be relied on to strike down secondary EU legislation “where 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.”
However, according to the Grand Chamber, Article 9(3) did not meet those conditions because full implementation requires the adoption of national legislation which means that it “lacks the clarity and precision required” for the CJEU to rely upon it for the purpose of assessing the legality of Article 10(1) of the Regulation no 1367/2006.