Appeal brought on 27 August 2012 by the European Commission against the judgment of the General Court (Seventh Chamber) delivered on 14 June 2012 in Case T-396/09 Vereniging Milieudefensie, Stichting Stop Luchtverontreiniging Utrecht v Commission

(Case C-403/12 P)

2013/C 9/44

Language of the case: Dutch

Parties

Appellant: European Commission (represented by: P. Oliver, J.-P. Keppenne, G. Valero Jordana, P. van Nuffel, Agents)

Other parties to the proceedings:

Form of order sought

The appellant claims that the Court should:

Pleas in law and main arguments

The appeal essentially relates to whether the General Court was permitted, having regard particularly to the judgment of 8 March 2011 in Case C-240/09, to assess the validity of Article 10(1), in conjunction with Article 2(1)(g) of Regulation (EC) No 1367/2006, (1) in the light of Article 9(3) of the Aarhus Convention. (2)

The Commission puts forward two grounds of appeal.

By its first ground of appeal, the Commission states that although the General Court did indeed correctly cite the strict conditions under which, according to the case-law of the Court of Justice, individuals may rely on rules of international law laid down by conventions in order to assess the validity of legal acts of the European Union (in particular that an assessment in the light of the provisions of a convention is possible only where the nature and the broad logic of that convention do not preclude this and the provisions relied upon appear, as regards their content, to be unconditional and sufficiently precise), it erred in finding that the exception to these conditions which follows from the Fediol and Nakajima case-law (Case 70/87 and Case C-69/89) applied also to Article 9(3) of the Aarhus Convention.

The Court of Justice already held, in its judgment in Case C-240/09, that Article 9(3) of the Aarhus Convention does not have direct effect. Furthermore, since the Fediol and Nakajima case-law is an exception, it must be interpreted strictly; that case-law has until now been applied only to the area of commercial policy, and can only be applied to other policy areas if the conditions for doing so are clearly fulfilled, which is not the case here. Indeed, Article 10(1) of Regulation No 1367/2006 makes no reference to the legal rules of the Aarhus Convention and, moreover, this provision does not provide for the implementation of a specific obligation of that convention for the purposes of the Nakajima case-law. Lastly, Article 9(3) of the Aarhus Convention is insufficiently clear and precise to enable the exception provided for in the Nakajima case-law to be applied.

By its second ground of appeal, the Commission submits, in the alternative, that the General Court misinterpreted Article 9(3) of the Aarhus Convention in considering that Article 10(1) of Regulation No 1367/2006 is contrary to that provision for the sole reason that the review procedure provided for in that Article 10 is limited to acts of individual scope, whereas the General Court ought to have carried out a specific examination of whether sufficient implementation was given to Article 9(3) of the Aarhus Convention through all judicial procedures available to individuals at national and Union level.

(1)  Regulation of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).

(2)  Aarhus Convention of 25 June 1998 on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, approved by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).