By Laurens Ankersmit and Benedikt Pirker
Challenging EU rules on the basis of EU agreements is very difficult. Challenging EU rules on the basis of the Aarhus Convention is pretty much impossible. In ClientEarth v Commission the Court reasoned once again that the Aarhus Convention could not be relied upon to invalidate EU secondary legislation. In this case, the Court found that ClientEarth could not rely on the Aarhus Convention to challenge the Public Access to Documents Regulation (Regulation 1049/2001) in order to obtain commissioned studies on compliance by Member States with EU environmental law in the context of infringement procedures. One of the arguments put forward by the Court was that the Aarhus Convention could not be relied upon because it ‘was manifestly designed with the national legal orders in mind’. This is an extraordinary statement, since the EU is party to the Convention and thus bound by it. It was no doubt inspired by the concern to protect the infringement procedure contained in article 258 TFEU, raising a number of questions on the relationship between EU primary, secondary and international law.
Background: the relationship between international law, the EU Treaties and EU secondary law
The relationship between international law, the EU Treaties and EU secondary law is in principle a simple three level matryoshka: international law trumps EU secondary law and EU primary law trumps international law. The Court has held that under Article 216(2) TFEU, international agreements concluded by the Union are binding upon the institutions of the Union and consequently prevail over the acts laid down by those institutions. As a result, the validity of an act of the Union may be affected by the incompatibility of that act with such rules of international law. Similarly, agreements concluded by the EU must be compatible with the EU’s basic constitutional framework (article 218 (11) TFEU).
The conditions under which EU acts can be challenged bear a similarity to those of direct effect. Validity may be questioned only where (i) the nature and the broad logic of the international agreement to which the EU is party do not preclude it and (ii) the provisions of the agreement appear, as regards their content, to be unconditional and sufficiently precise.
The facts of the case
This case concerned the request by ClientEarth to have access to 41 studies relating to the conformity of legislation in several Member States with the EU environmental acquis. The Commission had only granted partial access to these studies and withheld the crucial information relating to the conformity of national legislation with the acquis. Needless to say, such information can be highly useful for citizens and environmental organisations seeking to ensure that public authorities comply with EU environmental law.
The Commission, however, stated that it had to withhold the requested information as it would undermine its ability to monitor and enforce the EU environmental acquis through infringement proceedings. The Commission therefore argued that this information fell within the exception of article 4 (2) third indent of Regulation 1049/2001 (the Public Access to Documents Regulation). That provision requires the Commission to refuse access to a document ‘where disclosure would undermine the protection of the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure.’
ClientEarth argued that the Commission could not rely on that exception because it was incompatible with article 4 (4) (c) of the Aarhus Convention. The Aarhus Convention through that provision only permitted refusal to access to documents if it would adversely affect ‘the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature’.
The crucial point here was therefore whether the Public Access to Documents Regulation was incompatible with the Aarhus Convention because infringement proceedings did not fall under the exception of article 4 (4) (c) of the Aarhus Convention. Infringement proceedings are aimed at simultaneously policing compliance with EU law by Member States and more generally as an instrument for securing performance of EU policies. As these proceedings take place between the Commission and a Member State it would have been a bit of a stretch to argue that they fell within the scope of article 4 (4) (c) of the Aarhus Convention.
The Court’s reasoning
After reciting the case law on the conditions for challenging the validity of EU acts under EU international agreements, the Court applied the conditions to the case, and article 4 (4) (c) of the Aarhus Convention in particular. The Court found that provision not sufficiently precise and unconditional. It started with two arguments of a more general nature relating to the context and aim of the Aarhus Convention.
The Court reasoned that Aarhus could not be relied upon, firstly, because
the reference, in Article 4(1) of the Aarhus Convention, to national legislation indicates that that convention was manifestly designed with the national legal orders in mind, and not the specific legal features of institutions of regional economic integration, such as the European Union, even where those institutions can sign and accede to the Aarhus Convention, under Articles 17 and 19 thereof.
The Court then pointed out the context in which Aarhus was concluded by the EU. It referred to the EU’s declaration made upon signing of the Aarhus convention which stated that ‘the Community institutions will apply the Convention within the framework of their existing and future rules on access to documents and other relevant rules of Community law in the field covered by the Convention’. The Court thus interprets that declaration as an argument that the Convention’s provisions, for the EU at least, are not unconditional, because they need to be transposed to the EU context.
Thirdly, and more specifically, to the text of article 4 (4) (c). It stated that
‘neither the reference, in Article 4(4)(c) of the Aarhus Convention, to enquiries ‘of a criminal or disciplinary nature’, nor the obligation, laid down in the second paragraph of Article 4(4) of that convention, to interpret in a restrictive way the grounds for refusal of access mentioned in Article 4(4)(c), can be understood as imposing a precise obligation on the EU legislature. A fortiori, a prohibition on giving to the concept of ‘enquiry’ [enquête] a meaning which takes account of the specific features of the Union, and in particular the task incumbent on the Commission to investigate [enquêter] any failures of Member States to fulfil their obligations which might adversely affect the correct application of the Treaties and the EU rules adopted pursuant to the Treaties, cannot be inferred from those provisions.
There are a number of points in the reasoning of the Court that are not particularly convincing and show the Court’s unwillingness to reason in terms of international law even if international law such as the Aarhus Convention is at stake.
Firstly, to read the reference to national legislation in Article 4 (1) of the Convention as indicating that the Convention’s terms should not – or not as such – apply to EU legislation is curious, to put it mildly. Of course many international treaties will speak of their member “states” and the latters’ “national” legislation. This treaty language may adapt in the future to the practice of the EU concluding treaties. But it certainly has not done so consistently up to now. Should we assume for the future that the EU is bound by such treaties only as far as the Court’s filter of obligations being specifically designed to the institutional features of a regional economic integration organisation allows it? This would make the EU an extremely difficult partner in international treaty relations. The Court’s somewhat ominous statement could also be understood as a general statement on the object and nature of the Aarhus Convention. But this would make matters even worse. Contrary to its previous case law on the Convention, the Court would then have adopted a reasoning like in Intertanko where the Court held that a treaty (the United Nations Convention on the Law of the Sea in that case) as a whole could not have direct effect. So let us not assume the worst here.
Secondly, the Court’s reading of the EU’s declaration given when signing the Aarhus Convention effectively transforms the declaration into a reservation. It would be interesting to know whether all the other parties to the Convention are comfortable with such a reading that – under international law – changes the EU’s obligations under the treaty. Also, this causes concern because the Aarhus Convention is no treaty of reciprocal exchange, where dissatisfied treaty partners could threaten countermeasures to induce compliance. Rather, it works more like a human rights treaty, since it mainly establishes obligations of one treaty party towards its own citizens, with all the enforcement difficulties this setting entails. A – perhaps naive, but at least existing – hope would be that at least the Compliance Committee of the Convention may take up the issue in the future.
But even if we abstract for the moment from strictly dogmatic problems in the decision, some concerns remain. The rejection of direct effect of Article 4 (4) immediately brings back bad memories from the earlier Aarhus-related decisions of the year in Vereniging Milieudefensie and Stichting Natuur en Milieu (discussed here and somewhat more extensively here). Already there, the Court was unwilling to give direct effect to Article 9 (3) of the Convention on access to justice with regard to Regulation 1367/2006 establishing an internal review mechanism for EU administrative acts. In both cases, the reasoning of the Court pointed in a direction where direct effect was – if at all possible – limited to fields where Member States implemented EU environmental law and not applicable to implementing acts by EU institutions, in particular the Commission. Already then and again in the present case, there is an uneasy feeling of unequal treatment if one considers that the Court does not hesitate to impose strict obligations on the Member States whenever it is asked to interpret the Aarhus Convention to clarify Member State obligations under the Convention (see e.g. here and here).
The conclusion one has to draw at this point is that the Court is to quite some extent dissatisfied with the drafting of the Aarhus Convention, and expresses it through its reticence to give effect to its provisions whenever the EU institutions are potentially at risk. However, such selective binding effect of the Convention is hardly dogmatically tenable. Does the Court – limiting our examination here to the present case – have a legitimate reason to differentiate between the obligations resulting from the Convention for the Member States and those for the EU?
In the case, the Court is only incidentally protecting Regulation 1049/2001 from review under the Aarhus Convention’s Article 4 (4) (c). Rather, its main point is that it must protect the possibility for the Commission to keep secret its documents used for a potential future infringement action, and therefore the mentioned article of the Aarhus Convention is not drafted in a way that truly takes into account the specificities of the system of legal remedies of the EU. In this light, one should not overlook the positive aspects of the outcome of the case: the Commission was indeed required to undertake a specific and individual examination for documents not contained in an infringement file (paras 79-80).
However, we should also be honest about what the Court is protecting effectively in this case: the possibility for the Commission to strategically investigate failures of Member States to fulfil their EU law obligations, and not simply the overall goal of infringement actions to ensure compliance with EU law as such. Naturally, the Commission may be impeded in its actions by private parties requesting sensitive documents. However, if it was all about ensuring the effectiveness of EU environmental law and the Member States’ compliance with it, citizens and environmental organisations could and can play a vital role in challenging Member State behaviour in other ways than the Commission by means of an infringement action. In this context, the Court’s ruling that the Commission should make a specific and individual examination of every document not contained in an infringement file is a positive, but only modest step in ensuring compliance with the EU environmental acquis.