In a case brought by a Slovakian environmental organisation concerning protection of the brown bear, the ECJ has ruled that it is competent to decide whether a provision of the Aarhus Convention has direct effect.
The Aarhus Convention was concluded by the EU and all of the Member States on the basis of joint competence. The provision of the Convention at issue in this case, Article 9(3), concerns the right to be heard in environmental proceedings. Article 9(3) has not yet been implemented into EU law by means of secondary legislation. Nevertheless, the ECJ held that even though the specific issue has not yet been subject to EU legislation, since it relates to a field in large measure covered by EU law, it falls within the scope of EU law.
The ECJ went on to rule that Article 9(3) is not sufficiently clear and precise to have direct effect. Nonetheless, the principle of effectiveness requires national courts to interpret their national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention.
The judgment is here.
Jemima Stratford QC appeared for the United Kingdom.