Aarhus Convention: Maximum residue levels
On 13 January 2015, the Court of Justice of the EU (CJEU) delivered a ruling concerning the direct applicability of the Aarhus Convention into the EU legal order (joined cases C-404/12 P and 405/12 P Council and Commssion v Stichting Natuur en Milieu and Pesticide Action Network Europe). The Judgment is an appeal brought by the Council and the European Commission against a General Court ruling which annulled two Commission decisions from 2008 with regards to the Aarhus Convention and Regulations (EC) No 149/2008 and No 396/2005 on maximum residue levels of pesticides in or on food and feed.
By way of background, Article 9 (3) of the Aarhus Convention provides for access to judicial or other review procedures for challenging acts and omissions by private persons and public authorities which contravene provisions of law relating to the environment. Moreover, the obligations for the EU institutions arising under this convention are implemented by Regulation (EC) No 1367/2006.
In 2008, the two Dutch NGOs, Stichting Nature en Milieu and the Pesticide Action Network Europe, active campaigners against the use of chemical pesticides, requested the Commission to internally review Regulation (EC) No 149/2008 as provided by the Aarhus Convention and implementing Regulation 1367/2006. The Commission rejected those requests arguing that Regulation No 149/2008 was not a measure of individual scope and that it could therefore not be considered an ''administrative act'', capable of forming the subject of the internal review procedure provided for under Article 10 of Regulation 1367/2006. As a result, the two foundations brought a case before the General Court seeking the annulment of the Commission decisions.
The General Court ruled in favor of the applicants stating that the EU Courts may examine the validity of a provision of a regulation in the light of an international treaty provided that the nature and the broad logic of the latter do not preclude this and where, in addition, the provisions of the treaty appear, in terms of their content, to be unconditional and sufficiently precise. The Court concluded that the these conditions were satisfied, since on the one hand the NGOs were indirectly questioning the validity of a provision of Regulation No 1367/2006 in the light of the Aarhus Convention and that, on the other hand, that regulation had been adopted to meet the EU’s international obligations under Article 9(3) of the Convention.
By way of a background in setting aside the judgment at first instance, the CJEU made the following important conclusions, which have far-reaching consequences not only for EU plant protection legislation, but also for the general EU procedural law.
First, the Court of Justice said that in conformity with the principles of international law, the 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.
Second and most importantly, in light of the relevant case-law (judgments in Intertanko and Others, EU: C: 2008:312; FIAMM and Others v Council and Commission, EU: C: 2008:476), the Court rebutted the main argument of the General Court by saying that the criteria for an international treaty being ''unconditional and sufficiently precise'' is not met in the current case. In particular, the CJEU concluded that Article 9(3) of the Aarhus Convention does not contain any unconditional and sufficiently precise obligations capable of directly regulating the legal position of individuals.
Finally, it stated that it cannot be considered that, by adopting Regulation No 1367/2006, which concerns only EU institutions, the EU intended to implement the obligations, which derive from Article 9(3) of the Aarhus Convention with respect to national administrative or judicial procedures. For all these reasons, the Court of Justice ruled that the General Court made an error of law in deciding that Article 9(3) of the Aarhus Convention could be relied on directly by private parties in order to assess the legality of an EU secondary legislative act - Regulation No 1367/2006.
The impact of this Judgment goes beyond Article 9(3) of the Aarhus Convention as it concerns more generally the direct applicability of international agreements into the EU legal order. In this respect, other international agreements such as the Stockholm Convention on POP will have to be assessed on the basis of this Judgment.
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