I. INTRODUCTION
The incorporation of treaties into the EU legal system,Footnote 1 a part of what has popularly become known as the ‘Europeanisation of international law’,Footnote 2 is rather different to incorporation within the domestic legal order. As such, the meaning of article 3(5) of the Treaty on European Union (TEU) which states that ‘In its relations with the wider world the Union shall … contribute to … the strict observance and the development of international law…’ is of interest. What does this now mean in relation to EU law? Has anything changed as a result? While national constitutional law will determine whether international treaties are directly applied in the (monist) municipal legal systems of some Member States, treaty obligations must still be complied with regardless of the absence of direct application in others; any breach by a (dualist) State lacking the required implementing legislation may therefore be a matter for an international tribunal. With respect to the (monist) EU legal system this is also true, and the constitutional law of the TEU and Treaty on the Functioning of the European Union (TFEU) is decisive in relation to the direct application of international law. This EU primary law however not only governs direct application but also trumps international law, subjecting its interpretation to constitutional principles that prioritize the TEU and TFEU above public international law. This does not happen in the Member States whether they are monist or dualist in character; where international law is binding in these States it takes precedence over conflicting domestic law, including constitutional provisions.
This article focuses upon the role of direct application and effect of international treaties in the EU legal system, which it is argued may contribute to the effective implementation of international environmental law in the EU by enabling the European Court of Justice (ECJ) to remediate implementation failings by the EU institutions and the Member States. These techniques of interpretation are important because sometimes secondary law (directives and regulations) fails to transpose international law correctly or at all, and the municipal law of the Member States (in the case of mixed agreements) may also fail to transpose treaties appropriately. Non-compliance with article 9(3) of the Aarhus ConventionFootnote 3 is a notable example, both in relation to the EU institutionsFootnote 4 and those of the Member States.Footnote 5 The techniques add to procedures in international treaties concerning dispute avoidance and settlement, notably non-compliance procedures,Footnote 6 in ensuring international law is applied in the EU and its Member States. Given weaknesses in enforcing rulings of non-compliance procedures and strengths in enforcing ECJ rulings, successful invocation of direct application or effect of an international treaty may be advantageous.
‘Direct application’ concerns the incorporation of treaties into States and international organizations such as the EU, which do not require implementing legislation. These are termed ‘monist’ as distinct from ‘dualist’ jurisdictions, the latter which require transposition. The controversy between monism and dualism relates to whether municipal and international law are separate legal orders (the view of the dualists), and if so whether one is supreme over the other; alternatively if they are part of the same order (the view of the monists), whether one is supreme within that order. The distinction is however irrelevant in the sense that any conflict between international and municipal law would be decided by public international law, its supremacy deriving not from the content of the domestic law but from the field of operation of international law.Footnote 7 It is also clear that the vagueness of many treaty provisions means that national transposition will nonetheless be needed,Footnote 8 and some treaty bodies, such as the Espoo ConventionFootnote 9 Implementation Committee, recommend national transposition even where a state is monist.Footnote 10
The EU has both types of Member State, and arguments furthermore continue as to whether the EU itself may be considered monist.Footnote 11 In connection with the EU institutions, some authors have noted that international treaties ratified by the EU may have direct application, provided their provisions are self-executing, which is in part reliant upon a receptive judiciary.Footnote 12 However ‘direct effect’ of treaties may also arise if the EU has competence to ratify the treaty in question, is bound by it, its nature and broad logic do not preclude judicial review and its provisions are ‘clear, precise and unconditional.’Footnote 13 If so, they bind the EU and its Member States regardless of implementing EU secondary law (or national legislation), so the question of monism or dualism in the Member State becomes irrelevant. As a result of direct effect, individuals may be able to rely on the measure against Member State institutions across the EU and against the EU institutions itself, under the principle of non-discrimination in article 2 TEU and article 18 TFEU. Given the need to consider direct application and effect in respect of individual treaty provisions and for them to comply with specific conditions, it has been acknowledged that ‘there are few international environmental obligations that are capable of such execution.’Footnote 14 Similarly, WTO law is identified by Bronckers as an area where the ECJ has not been prepared to invoke the doctrine, although Rosas distinguishes between WTO agreements being devoid of direct effect, while arguing that they still have direct application.Footnote 15 This suggests caution in invocation and the need for clarity in definition and interpretation.
The terminology continues to be a source of confusion.Footnote 16 This is due to words being used in different contexts in public international law and EU law. Hinarejos has examined what she calls ‘legal effect labels’ in relation to framework decisions and decisions in EU law, which under article 34(2) TEU specifically preclude direct effect.Footnote 17 Drawing on a classical account of the distinction between direct application and effect in European law,Footnote 18 she examines the use of these ‘labels’ in international and European law, providing clarity where frequently there is none. Four questions are asked to assist with distinguishing between direct application and direct effect: first, whether the international measure is, and how it becomes, the ‘law of the land’; second, whether the national courts can as a result recognize the rule; third, whether the norm can be invoked by an individual as a standard of review of a national measure (termed ‘exclusionary’ since it precludes conflicting law); and fourth, whether the individual can invoke it so that the court applies it as a standard which governs the substance of the matter under consideration (termed ‘substitutionary’ since it replaces the substantive provision). The first two questions deal with form and are concerned with the national legal order being of monist or dualist creation, and the last two deal with substance and are dependent upon the measure being ‘self-executing’ and whether the criteria for direct effect are met. In distinguishing between the direct application and direct effect of international treaties within the EU legal system this approach is therefore applied.
Part II of this article examines the differences of approach taken to the application of international law in the international and European legal systems, notably the conflict between the binding nature of international treaties in domestic orders and their subjection to the constitutional law of the EU. The doctrines of direct application and direct effect of international treaties are analysed in accordance with the typology of Hinarejos, and distinguished from the EU doctrines with the same labels. The relationship between direct effect and the primacy of EU law is also examined. The focus of Part III is upon the case law of the ECJ in relation to direct application and effect and the implications of this for the development of the doctrines. Conclusions follow in Part IV.
II. DOCTRINES, DEFINITIONS AND CONFLICTS
A. ‘Pacta sunt servanda’ vs Primacy
The application of international law into a domestic legal system is governed by what has been called the ‘fundamental rule of treaty law’,Footnote 19pacta sunt servanda, whereby: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’ (article 26 VCLT). A related rule provides that: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’ (article 27 VCLT). Belgium is an example of a State found in non-compliance with its obligations under the Aarhus Convention as a result of the application of article 27; thereafter the Belgium court, the Conseil d'Etat, modified its jurisprudence and granted access to NGOs. Applying the procedures of the Compliance Committee of the Aarhus Convention are therefore one way in which non-compliance of states can be rectified in relation to this treaty;Footnote 20 recourse to international courts and tribunals are others, depending on the provisions of the individual treaty.Footnote 21 Various techniques of interpretation and incorporation are also used by courts and tribunals generally to ensure implementation and compliance with the fundamental rule of treaty law, and include the invocation of the doctrines of direct application and effect, the focus here.
There have been difficulties for federal States where competence to conclude treaties may not be matched by competence to legislate, which has in some instances resulted in ‘federalism clauses’ being inserted into instruments of ratification. Canada's ratification of the Espoo Convention is an excellent example,Footnote 22 although this also reflected the failure to insert such a clause in the treaty during negotiations. Canada's action met with stiff criticism from other State Parties, several of whom cited the article 19(c) VCLT stipulation that a State may not formulate a reservation that is ‘incompatible with the object and purpose of the treaty.’ This has resonance in relation to EU Member States, as competence for law-making may be shared between the EU and its Member States or may be exclusive to one of them; because of the primacy of European law however, if the EU is not a party to the treaty there is also the consequence that it can require Member States to assume EU obligations which may be contrary to their international treaty obligations.Footnote 23
General EU competence to enter into international agreements is derived from article 216(1) TFEU, with the implication that: ‘Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States’ (article 216(2) TFEU). The procedure to be followed is stipulated in article 218 TFEU, which allows the ECJ to provide an opinion on whether it is compatible with the TEU or TFEU (article 218(11)). Specific EU competence to enter into treaties depends on competence being granted to the EU from the Member States to legislate in the area covered by the international treaty (Art 4 TEU), which as stated may be exclusive to the EU (such as common commercial policy, article 3 TFEU) or shared with the Member States (such as the environment, article 4 TFEU). If shared, while both the EU and Member State may decide to ratify the treaty, opportunities for the Member State to determine their own compliance will be limited to activities concerning so-called ‘third States.’Footnote 24 However, even in these instances, freedom for the Member State has its limitations, with the possibility that the conflicting treaty rule will need to be addressed.Footnote 25
In EU law, international agreements concluded by the Union have primacy over secondary law in particular directives and regulations.Footnote 26 Yet in Haegeman Footnote 27 the ECJ held that provisions of an international treaty are an integral part of European law from its entry into force and in Costa v ENEL,Footnote 28 the supremacy of European law was emphasized. Reflective of the autonomy of the EU legal system, international law therefore ranks in between the primary constitutional law of the TEU and TFEU on one hand and all secondary law on the other, with the only exception being the UN Charter if the EU has taken over the functions of the Member States.Footnote 29 Hence if secondary law is argued to be incompatible with international law before a national court, when the matter is referred to the ECJ it will review the validity of the measure pursuant to article 267 TFEU. As stated in Intertanko,Footnote 30 this is subject to the condition that the EU is bound by the international law in question,Footnote 31 that the nature and broad logic of the international treaty does not preclude the examination, and that the content is unconditional and sufficiently precise.Footnote 32 In public international law, the perspective taken to the reception of international law is therefore different and is focused upon pacta sunt servanda; international law is hence not concerned with the status of the treaty within the legal system of the contracting Party, only that it is binding.Footnote 33
This difference of approach has the significant consequence that EU compliance with international agreements may fall short, especially if other techniques such as indirect application (systemic integration),Footnote 34 indirect effect (consistent interpretation),Footnote 35 and customary norms are not applied in European jurisprudence. Within the context of the principle of effective judicial protection, whereby the ECJ is keen to promote the effectiveness of EU law in order to secure individual rights, (in particular the duty of national courts to ‘guarantee real and effective judicial protection’ for EU law rights),Footnote 36 the EU was challenged before the Aarhus Convention Compliance Committee for failing to provide direct access to the ECJ for individuals and NGOs. Footnote 37 The European Commission, representing the EU, argued that this is a valid consequence of the EU legal order, and that effective judicial protection is ensured by national courts being able to request a preliminary ruling from the ECJ. While the Committee was not convinced that the EU had failed to comply with the Convention given the evidence before it, it considered ‘that a new direction of the jurisprudence of the EU Courts should be established in order to ensure compliance with the Convention.’Footnote 38 The access to justice obligations of the EU institutions and the Member States have also been challenged before the General CourtFootnote 39 and the ECJFootnote 40. The former case has yet to be determined; the latter case, which considers direct effect, is examined in Part III of this article.
B. Direct Application
Implementation of international treaties may be achieved by legislative, administrative or judicial means, which in relation to legislation in federal states and the EU, is dependent upon the national constitutional situation. Whether a state is of a monist or dualist nature only partly determines whether there is a need for national implementing measures, since as noted many treaty obligations are vague, subject to discretionary language, and contain objectives which may not be achieved without domestic implementation. For the purposes of this contribution, direct application is examined with respect to the obligation of pacta sunt servanda regardless of whether domestic legislative or administrative measures are required by the municipal constitution, and whether laws have actually been introduced to implement the treaty. In order to take this approach, aside from the general requirement not to defeat the object and purpose of adopted treaties prior to their ratification or entry into force (article 18 VCLT), the establishment of (disputed) notions of legitimate expectation in administrative law relating to international law, and whether the EU is constitutionally of monist creation,Footnote 41 it is above all necessary to consider whether the measure in question is self-executing, meaning that it is legally perfect enough to be applied by the domestic court without the need for further transposition.
Following the approach of Hinarejos, the direct applicability of a provision in an international treaty is therefore dependent upon whether it can be applied directly by a court as a result of its clarity and precision. This is an answer to question three, whether the norm can be invoked by an individual as a standard of review of a national measure (exclusionary); and question four, whether the court can invoke it so it is applied as a standard which governs the substance of the matter (substitutionary). In contrast to direct application depending on the substance of the international treaty measure, the direct applicability of EU law depends only on its form, and is related to the first (and second) question posed by Hinarejos as to whether it is part of the law of the land, with regulations in the EU being ‘directly applicable’ as they do not require any further implementing measures by Member States, and this has been predetermined by EU law (article 288 TFEU). With regard to the relationship between direct application and effect of EU law, it is possible for regulations to also have direct effect, but they must satisfy the criteria laid down for this.
EU regulations may also be used to implement international environmental treaties, and the fact that they are directly applicable suggests similarities with treaties being held to be directly applicable by the ECJ, where there is no implementing secondary law or it is inadequate. For example, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)Footnote 42 has been implemented in this way. While the EU is not a Party, it has implemented this treaty since 1984, albeit that the reasons for doing so are as much related to EU exclusive competence for external trade and the absence of internal borders, as environmental protection. That said, EU-wide compliance has been advantageous for the implementation of this international environmental agreement as it has enabled the adoption of action plans in legislation applying across the Union rather than at the Member State level. The EU Wildlife Trade Regulations also go beyond CITES in a number of respects.Footnote 43 The difference between treaties being directly applied by regulation and their being directly applied by the ECJ, however, is that the former depends on the willingness of the EU to legislate. The advantage of the ECJ invoking direct application is that it is able to overcome such implementation deficiencies.
What is directly applicable in EU law is therefore completely different to what is directly applicable in public international law, and confusion has been further enhanced by some commentators on EU law using the term direct effect interchangeably with direct application;Footnote 44 this is by no means only a problem in respect of secondary reference sources, as the ECJ itself in Syndicat v EDF,Footnote 45 does exactly the same thing. With regard to the relationship between the direct application and effect of international agreements in EU law, the Intertanko case consolidates the tests for both and these are merely expanded on in relation to individual rights to ensure that the provisions under consideration are unconditional and sufficiently precise to provide rights to the individuals specifically.
Finally, it should be noted that there are differences of meaning with regard to ‘self-executing’ treaties which need to be understood in order to examine the relationship between it and direct effect. The notion of self-executing treaties as used in public international law was developed in the United States,Footnote 46 and unlike in the EU legal system, does not emphasize the creation of rights and obligations for individuals although they may give rise to them in practice. In the USA provisions in treaties and other international agreements are given effect as law in domestic courts only if they are self-executing or, as with other dualist States, if they have been implemented by an act (such as an act of Congress) having the effect of federal law.Footnote 47 For it to be self-executing, adequate rules must be provided which give rights to be enjoyed or impose duties to be enforced; these must be distinguished from principles which are not enforceable rules and would therefore not allow such a treaty to be self-executing. If provisions in a treaty are held to be self-executing, they are therefore commonly termed as having direct effect.
C. Direct Effect
Direct effect has been called ‘a very powerful tool allowing individuals to enforce rights which are solely granted by EU law’ and ‘a potent additional tool in the implementation of international environmental law.’Footnote 48 There have been no awards of compensation to individuals as a result of the breach of treaties or other international law, which would add greatly to the potency of the tool.Footnote 49 The ECJ summarized the position in Syndicat v EDF, which ironically as noted above adds to the confusion in that the ECJ itself uses the words directly applicable and directly effective interchangeably. In accord with settled case law in Demeril Footnote 50 and Wählergruppe Gemeinsam,Footnote 51 it therefore held that ‘a provision in an agreement concluded by the [EU] with a non-Member country must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.’Footnote 52 The use of the words directly applicable clearly refers to direct effect in this particular instance since the intention is to confer rights upon the individuals in that case. This is confirmed by the use of the words direct effect in related paragraphs and indeed in the subheading.Footnote 53
Hinarejos indicates a need for greater clarity with respect to the meaning of the term direct effect, pointing to a ‘loose use of the concept’ and an ‘ongoing disagreement on the exact definition of direct effect’.Footnote 54 Two interpretations have been given, one wider than the other.Footnote 55 The wider interpretation concerns the ability of a norm to be invoked by an individual to its advantage before a national court (‘exclusionary’),Footnote 56 and the narrower concerns the capacity of the norm to confer rights specifically on the individual through their enforcement by the national court (‘substitutionary’).Footnote 57 The difference can be seen with respect to the questions Hinarejos poses at the outset; hence the wider interpretation of direct effect concerns both the third and fourth questions, and the narrower interpretation concerns only the fourth question. As a result of the more limited nature of the latter interpretation, some have come to the conclusion that the narrower interpretation is not strictly speaking based upon direct effect as such, but rather the supremacy/primacy of the EU legal system.Footnote 58 In many instances concerning the relationship between the EU and the Member States the outcome will however be the same regardless of the doctrine applied, so that the individual will be able to invoke a directive so as to preclude a conflicting national measure applying.Footnote 59
Although the narrower definition is closely related to primacy, this may lead to different conclusions with respect to implications: either that the duty to disapply a conflicting national measure must always be coupled with direct effect, or that it is simply not possible to draw adequate conclusions from the case law. The application of the principle of supremacy to the external relations of the EU has now changed following the coming into force of the Lisbon Treaty, and reflects the arguments put by Lenaerts and Corthaut, that in the first place the fact that international law is intergovernmental in nature has never been a good reason to deny the consequences upon the EU, its Member States and individuals within; and in the second place that a liberal approach towards invoking EU law ‘can be grounded in a vision about the rule of law’.Footnote 60 In relation to the environment, this may have significant advantages for the implementation of international law in the EU provided the emphasis in article 3(5) TEU is placed both on the development of international law as well as the strict observance with it. If there is political will to not only enact EU environmental law in compliance with international treaty obligations but to also go further than this, then there is significant potential for the development of international environmental law in the EU.
III. LESSONS FROM THE JURISPRUDENCE
A. Introduction
Analysis of the ECJ case law is required to determine the Courts willingness to invoke the doctrines of direct application and effect and to discover how they contribute to the implementation of international environmental law in the EU. The case law shows that the Court clearly recognizes the significance of international law in the EU legal system and acknowledges for the most part that it must uphold and advance international treaty obligations in accordance with the constitutional requirements for its ‘strict observance’ and ‘development’ established in article 3(5) TEU. Through the jurisprudence the Court also recognizes the role of mixed agreements and the approach to be taken to these, including consideration of related questions of jurisdiction. In four of the five cases evaluated the ECJ considers the application of direct application or effect, and in another there was potential to do this on the facts. Of the four cases where the doctrines were considered, three were references for preliminary rulings, and the fourth was an action by the Commission against a Member State.
B. Syndicat v EDF
In Syndicat v EDF,Footnote 61 a reference for a preliminary ruling was made by the French Court of Cassation (Supreme Court) to the ECJ under article 267 TFEU (ex article 234 TEC) in connection with proceedings between the Syndicate and EDF, the latter which operated a hydroelectric power station. The disputed law was article 6(3) of the Athens Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources, approved by Council Decision 83/101/EEC,Footnote 62 and article 6(1) of the Protocol as amended and approved by Council Decision 1999/801/EC.Footnote 63 The two questions to be decided by the ECJ were first whether article 6(3) of the Athens Protocol, which had become article 6(1) in the amended Protocol, was to have direct effect so that any interested party could rely upon it before the national courts; and second, whether the same provision was to be interpreted to prohibit discharges without an authorization even though they were not in themselves toxic in nature, taking into account article 6(3) and article 6(1) and the respective related Annexes. While implementing European law by way of binding decisions, it still had to be decided whether individuals such as the fishermen represented by the Syndicate could rely upon the law before national public authorities such as the EDF, and which were required to be implemented by the French courts.
The ECJ handed down its judgment on 15 July 2004. It found in favour of the Syndicate and held that ‘the fact that the national authorities have discretion in issuing authorizations under the criteria set out in Annex III in no way diminishes the clear, precise and unconditional nature of the prohibition on discharges without prior authorization that results from article 6(3) of the Protocol.’Footnote 64 This was supported by the purpose and nature of the Protocol, so that ‘Recognition of the direct effect of the provision in question can only serve the purpose of the Protocol … which is intended, inter alia, to prevent pollution resulting from the failure of public authorities to act.’Footnote 65 In relation to the amendment of the Protocol, it was held that the same considerations apply, notwithstanding any reference to relevant decisions or recommendations of the meetings of the Contracting Parties which national authorities were obliged to take into account. Hence this had no bearing on the clear, precise and unconditional nature of the obligation, and the answer to the first question was that both article 6(3) and 6(1) had direct effect, the latter following its entry into force. In relation to the second question, it was held that the wording in the respective Annexes to the Protocol and its amendment did not make the requirement for an authorization conditional upon on the toxicity of the discharges, and hence the discharges in question, having an adverse effect on the oxygen content of the marine environment, had to be authorized.
The decision means that it is possible for individuals and NGOs to enforce the Athens Protocol against national public bodies who fail to obtain permission for discharges even if they are non-toxic. It was acknowledged in the case that pollution was still caused as a result of the change in the temperature of the water and the impact this causes upon the surrounding environment. The discretion available to the public body to decide whether to issue the authorization was held to be subject to the nature and purpose of the legal instrument, which was the avoidance of environmental harm. The authority could not simply decide the permit was not needed because it believed it was dealing with a non-toxic discharge. As a contribution to the effective implementation of international environmental law in the EU, the decision therefore provides not only for improved access to justice for the individuals concerned under the Protocol, but also recognizes that environmental harm can be caused by thermal pollution.
C. Commission v France
In related proceedings, the European Commission commenced action against France on 4 June 2003 under article 258 TFEU (ex article 226 TEC) for failure to fulfil its obligations under the same Protocols and the parent Convention.Footnote 66 The Commission took the view that article 218 TFEU (ex article 300(7) TEC), which provides that agreements concluded by the [Union] ‘shall be binding on the institutions of the [Union] and on Member States’ required France to comply with the obligations under articles 4(1) and 8 of the Convention for the Protection of the Mediterranean Sea against Pollution, approved on behalf of the [EU] by Council Decision 77/585/EEC,Footnote 67 and articles 6(3) and (1) of the aforementioned Protocol and its amendment.
Putting aside the substantive matters of the case brought by the Commission against France, which also featured in Syndicat v EDF, the present case also dealt with questions of jurisdiction in relation to mixed agreements. The French Government argued that the ECJ lacked jurisdiction in the matter because there was no European secondary law regulating the matter, so the provisions of the Convention and Protocol did not fall within [EU] competence. The ECJ roundly denied this, and given that the agreements were mixed, concluded under shared competence that Member States assumed the same responsibility as the European institutions for their implementation. Without saying so explicitly, the international agreements were directly applicable as a result, so that if the EU only had relevant framework legislation in relation to water, this made no difference to the obligations on the Member State institutions. The Court held that in mixed agreements which ‘create rights and obligations in a field covered in large measure by [Union] legislation, there is a [Union] interest in compliance by both the [Union] and its Member States with the commitments entered into under those instruments.’Footnote 68
Kuijper believes the judgment in relation to [EU] competence is particularly interesting ‘because it pushes the responsibility of member States for violation of mixed agreements in the internal legal order of the [Union] one step further.’Footnote 69 Kuijper also highlights that it does not matter that the specific subject matter of the Convention and Protocol has not been transposed.Footnote 70 This last point has significant implications for Member State Parties to the relevant international treaty that may not have themselves transposed the mixed agreement fully or at all. Despite the decision of the Court in Merck Genéricos in 2007Footnote 71 that ‘sufficiently comprehensive’ EU secondary legislation may be needed to provide for direct application or effect unless the Member State has implementing legislation of its own, the Court in LZ in 2011 reaffirmed that framework legislation may in fact be enough provided the criteria for direct effect are also satisfied. Where a specific issue has yet to be implemented by secondary law therefore, but is regulated by a mixed agreement and ‘is in large measure’ covered by a directive for example, the proceedings will fall within the scope of EU law. This is discussed further in relation to the LZ decision below.
D. MOX Plant
The facts leading up to the ECJ hearing this case were complex and have been outlined elsewhere in this journal.Footnote 72 In 2003 the European Commission commenced proceedings against Ireland alleging breaches of what are now article 4 TEU (ex article 10 TEC), which required ‘loyal cooperation’, and article 344 TFEU (ex article 292 TEC) on the exclusive jurisdiction of the ECJ over Treaty matters.Footnote 73 As a result, the United Nations Convention on the Law of the Sea (UNCLOS) Annex VII proceedings were suspended.Footnote 74 The Commission took the view that even if only part of a dispute falls within EU law, then the ECJ is competent to determine it. The ECJ agreed, supporting the Opinion of the Advocate-General,Footnote 75 and followed the earlier Commission v Ireland decision, where it had held that jurisdiction extends to all mixed agreements and does not depend on whether it has competence for each provision.Footnote 76 As a result of this and the primacy of the European Treaties, Ireland should have consulted the Commission regardless of whether it believed it had competence. The international treaty was part of the European legal order because the [EU] was a party and thus Ireland should have referred the matter to the ECJ.
Although the ECJ was not concerned with the matters of direct application and effect in relation to the proceedings, they were part of the Irish pleadings regarding the international tribunals originally seized of the complaints. Given the implications of this ECJ ruling for dispute avoidance and settlement, and the substantive matters originally raised by Ireland (relating to transboundary environmental impact assessment (EIA)), an argument can be made for the direct application of the Espoo Convention Inquiry Procedure, which has not been incorporated into EU law.Footnote 77 This had potential to decide the initial matters under dispute, notably whether there were significant environmental effects or not. What is not entirely clear is whether this procedure, or indeed the non-compliance procedures themselves under either the Espoo or Aarhus Conventions (neither of which have been transposed by EU law), would fall foul of Article 344 TFEU if used in a dispute between two Member States. In its limited focus on determining significant environmental effects, it is probably unlikely that the Inquiry Procedure would be viewed as a dispute settlement mechanism.
However the relationship between non-compliance procedures and treaty dispute settlement remains as unclear as how the ECJ would view a dispute between two Member States, referred to either the Espoo Convention Implementation Committee or the Aarhus Convention Compliance Committee, neither of which has yet been triggered in this way.Footnote 78 In response to recent questions raised by the chair of the Espoo Convention Implementation Committee, it would appear that the European Commission does indeed have concerns about Member States challenging one another before non-compliance procedures such as the Implementation Committee.Footnote 79
The implications of this particular matter stretch far beyond the benefits that would accrue to the development of transboundary EIA in the EU by attributing direct application to the Espoo Inquiry Procedure, or indeed other unimplemented provisions of this treaty, including the distinct opportunities for public participation in a transboundary context, which have also not been transposed, as indicated recently by the Secretary to the Convention.Footnote 80 The status of non-compliance procedures and their relationship with dispute settlement mechanisms becomes more of an issue as their decisions take on a more judicial nature. The release of the Opinions of the Espoo Convention Implementation Committee in early 2011Footnote 81 raises again this question, and any decisions taken by such a body with negative implications for the EU legal system, (such as the Aarhus Convention Compliance Committee case in relation to article 9(3)),Footnote 82 may well require a rethink about the relationship between international and European law courts and tribunals that featured so prominently in the MOX Plant case.
E. Intertanko
Intertanko Footnote 83 was a reference for a preliminary ruling from the High Court of Justice of England and Wales to the ECJ. It was brought in the course of judicial review proceedings and concerned the implementation of Directive 2005/35 on ship source pollution,Footnote 84 and in particular whether it was compliant with UNCLOS and the Protocol to the International Convention for the Prevention of Pollution from Ships (MARPOL).Footnote 85 The Court was asked to respond to four questions, the first three of which dealt with the relationship between international and European law. The first two related to MARPOL, which the EU was not a party to, and under which no obligations were assumed, hence it did not apply. The third question related to UNCLOS and asked whether article 4 of the Directive breached the treaty right of innocent passage and was invalid to that extent.
In response to the third question, UNCLOS was held to be binding on the EU as a result of its approval by Decision 98/392,Footnote 86 and as such was confirmed to be an integral part of the EU legal order. The Court was thus obliged to examine whether the nature and broad logic of the treaty was such that it did not preclude judicial review, and whether the provisions were unconditional and sufficiently precise so as to provide rights to the litigants. It observed that UNCLOS seeks to strike a balance between the interests of States, and individuals can only enjoy the freedom of navigation if they establish a close connection between their ship and a State which grants its nationality to the ship.Footnote 87 Although certain provisions appear to attach rights to ships, it does not follow that these are conferred on individuals such as ship-owners because a ship's international status is dependent upon the flag State and not because it belongs to a particular owner.Footnote 88 As a result of its nature and logic thus, ‘it must be found that UNCLOS does not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States, irrespective of the attitude of the ships flag State.’Footnote 89
In her Opinion,Footnote 90 AG Kokott cited the Court's previous case law in relation to individuals, notably in Poulsen and Diva Navigation. Footnote 91 The issue there was whether a prohibition on fishing in a European fisheries regulation could be invoked against a Danish master of a Panamanian-registered vessel in relation to criminal proceedings. The Court referred to UNCLOS as an expression of customary international law even before its entry into force to establish that the ship could be attributed solely to the flag State. AG Kokott states: ‘Therefore, the Court already acknowledged in principle that individuals can rely on rules laid down in the Convention on the Law of the Sea [and hence] it would be completely reprehensible if they were to be deprived this opportunity after the Convention … had entered into force.’ Yet she acknowledged that: ‘The degree to which individuals can rely on it can … be determined solely on the basis of each respective relevant provision. Such provisions must, as regards their content, be unconditional and sufficiently precise.’Footnote 92 The previous position of the Court and more generous views expressed by the Advocate General did not however convince the Court to confer direct effect on the individuals in Intertanko. In the light of related jurisprudence, Denza comments that the ECJ's conclusion with respect to direct effect ‘is clearly correct’ and ‘had the Court abandoned its test for direct effect in this context, it would have been accused of judicial activism.’Footnote 93
Wennerås takes a rather different view. He believes the judgment is ‘strict and somewhat surprising’, and contrasts with Poulsen and Diva Navigation where the Court accepted that UNCLOS could be relied on by individuals in criminal proceedings, ‘since many of its provisions constituted an expression of international customary law which the [Union] had to respect in the exercise of its powers.’Footnote 94 It also contrasts with Netherlands v Parliament and Council, where the ECJ held that the fact that an agreement ‘contains provisions which do not have direct effect, in the sense that they do not create rights which individuals can rely on directly before the Court … does not preclude review by the Courts of compliance with obligations incumbent on the [Union] as a party to that agreement.’Footnote 95 Finally, it contrasts with Syndicat v EDF, which did not refer to individual rights being a precondition for judicial review, merely examining the matter of whether the provisions were sufficiently precise and unconditional. This difference of approach is attributed by Wennerås to the ECJ following the approach taken to agreements ‘which are strictly based on reciprocal and mutually advantageous arrangements, such as GATT and WTO.’Footnote 96
The irony in the Intertanko case for this approach lies in the fact that the individuals concerned did not invoke UNCLOS to claim rights for themselves, but rather to review the [EU's] compliance with its international obligations. The decision of the Court in failing to follow Poulsen and Diva Navigation in regard to UNCLOS being an expression of customary international law is of particular concern for the implementation of international environmental law in the EU however, as expressed forcefully by Wennerås. This is particularly so given the obligations of article 3(5) of the TEU in relation to the development of international law, as the opportunity to contribute to this process was effectively halted by the decision not to confer direct effect on the individuals concerned.
F. LZ v Slovak Ministry of the Environment
LZ began as a reference for a preliminary ruling from the Supreme Court of the Slovak Republic concerning the effect of article 9(3) of the Aarhus Convention, which requires that ‘members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’.Footnote 97 This provision is however subject to ‘criteria, if any, laid down in its national law’. The applicant LZ is an unincorporated association concerned with environmental protection, and asserted that the proceedings in question (relating to a decision favouring a hunting association which impacted upon the brown bear) directly affected its rights. The proceedings before the ECJ arose since the Bratislava Regional Court agreed with the Ministry that the applicant had no right to participate in the administrative and judicial procedures. LZ appealed to the Supreme Court, which stayed the proceedings and referred three questions to the ECJ, the first two which concern direct effect. The first asked whether it was possible for the ECJ to recognize article 9(3) in the absence of implementing EU secondary law, and the second whether ECJ case law provides for direct application or effect of article 9(3).
The hearing on the matter was on 4 May 2010, and its significance was attested to by the attendance of the Governments of Germany, France, Poland, Finland, the Slovak Republic and the United Kingdom, and also the European Commission, who each submitted written observations and presented oral argument in addition to LZ.Footnote 98 On 15 July 2010 Advocate General Sharpston delivered her Opinion.Footnote 99 She found that although the referring court expressly or impliedly used both direct effect and application in its first two questions, further to observations made by the United Kingdom, the first two questions should be treated as direct effect only.Footnote 100 This is correct since individual rights are at issue in the case. AG Sharpston also provided the following definitions: ‘The term “direct effect” denotes that an individual can rely on a provision before a national court, whereas “direct applicability” denotes that an agreement is self-executing, without European Union or national legislation being needed to implement it.’Footnote 101 For direct effect to be invoked by the relevant court however, the conditions consolidated by the ECJ in Syndicat v EDF must still be met.Footnote 102 AG Sharpston cited this test and gave examples of slightly different formulations in the jurisprudence.Footnote 103
The first question raised issues of competence and jurisdiction in the interpretation of mixed agreements, which culminated in the Merck Genéricos decision in 2007.Footnote 104 This case developed jurisprudence on jurisdiction including the 2004 Commission v France (Étang de Berre) ruling in relation to EU legislation of a subject area determining this. AG Sharpston found that the Court in the Merck Genéricos decision held that jurisdiction to ascribe direct effect depended on whether the EU has passed ‘sufficiently comprehensive’ legislation in the ‘sphere’ concerned,Footnote 105 and if not, it was up to the national court to decide within its own constitutional situation whether direct effect should be given to the treaty provision (where no implementing national legislation had also been passed).Footnote 106 The absence of an access to justice directive was noted as ‘particularly significant’, given concerns about the separation of powers between the ECJ and European Parliament.Footnote 107 Furthermore the declaration made by the then Community in the annex to the Decision implementing the Aarhus Convention,Footnote 108 was held to be ‘of crucial importance’.Footnote 109 She also approved the Merck Genéricos decision that the ECJ is competent to decide which jurisdiction can determine whether the provision had direct effect.Footnote 110 The answer to the first question whether article 9(3) has direct effect was in her view therefore a matter for the Member State Party to the mixed agreement to decide within its own legal order.
AG Sharpston's Opinion concerning the second question (whether article 9(3) has direct effect under EU law) is that it does not, on the basis that the provision does not contain a clear and precise obligation and because it is subject in its implementation or effects to the adoption of subsequent measures.Footnote 111 The obligation does not satisfy this test because of the likely need to satisfy national standing criteria, a key restriction upon the access to justice entitlements. In her view, the lack of clarity or precision regarding these ‘wide-ranging substantive’Footnote 112 criteria is fatal in the absence of guidance as to those criteria, and she again cautions the Court not to step into the shoes of the legislator.Footnote 113 This is of course correct, and was confirmed by the Court in its judgment handed down on 11 March 2011.
The Court agreed with the arguments of the Polish and UK Governments that the questions referred related essentially to article 9(3), and decided to answer the first two questions together. In following the AG's Opinion, the ECJ held that it had jurisdiction to define the scope of the obligations in relation to the Convention, including those which are the sole responsibility of the Member States.Footnote 114 While it also cited Decision 2005/370, it however disagreed with the Advocate General that the declaration of competence and absence of fully implementing legislation in relation to access to justice meant that article 9(3) does not fall within a sphere covered by EU law.Footnote 115 Contrary to the approach of the Advocate General to deny the relevance of what she terms ‘downstream legislation,’Footnote 116 the Court took a broader perspective, and followed that of Commission v France. The field of environmental protection, for which the EU has ‘explicit external competence’Footnote 117 and the protection of a species contained in the Habitats Directive, therefore ensured that the dispute fell within the scope of EU law.Footnote 118
What ultimately proved fatal for a finding of direct effect of article 9(3) in EU law was the lack of clarity and precision of the specific provision, which supported the findings of AG Sharpston. In considering this, the Court was however mindful of the need to ensure effective (environmental) judicial protection. It was therefore ‘for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of article 9(3) of the Aarhus Convention and the objective of effective judicial protection of the rights conferred by EU law … ’.Footnote 119 Without saying so explicitly, it was also open to the national court within its own constitutional situation to invoke direct effect itself in relation to the provision, a finding of the Advocate General.Footnote 120
IV. CONCLUSIONS
The invocation of direct application and effect of international treaties is just one of the ways the ECJ can ensure compliance with EU obligations in relation to third States; when either they have not been transposed at all or only in part into secondary law, or in regard to mixed agreements, where the Member States have failed to implement them directly into domestic law. However while public international law leaves the means of implementation and compliance with treaties to the municipal system, invoking direct application and effect may still not satisfy the CoP or MoP to the relevant treaty that obligations have been satisfactorily met, even when the constitutional situation in the State or international organization allows for it. Non-compliance, and potentially also dispute settlement, procedures may further be needed to ensure the effective implementation of international environmental law.
Invoking direct application and effect to meet international obligations while protecting the autonomy of the EU legal system presents considerable challenges, and may call into question EU Treaty rules and ECJ judgments which may be found to be incompatible with article 27 VCLT as a rule of customary application in the EU. The continued stance of the ECJ (as supported by the Commission in its arguments to the Aarhus Convention Compliance Committee), that the TEU and TFEU as constitutional documents and primary law are accorded the highest status in the EU legal system, only then followed by international treaties and secondary law, may be difficult to maintain when the result is to use internal law to prevent effective compliance with international law. Although the recent ECJ decisions in the UN sanctions cases illustrate a willingness to reconsider the relationship between European and international law, this resulted from the objective to give the individuals concerned the protection of EU law rather than ensure compliance by the EU with international law, and was underpinned by the special status accorded to the UN Charter.
Yet as public international law is so closely connected to international relations, the EU may have political room to manoeuvre when its Member States are numerically in the majority in relation to regional treaties, as is the case with the ECE Aarhus and Espoo Conventions. While the composition of the MoP may not be the sole determinant of what decisions are taken in these circumstances, this is likely to hold true owing to the size of the EU block. Therefore whether decision-making is by consensus or by simple/qualified majority, Member States may block any moves to enforce or amend requirements in relation to the EU in the MoP. Furthermore, the deferral by an international tribunal to the ECJ in the MOX Plant litigation, and the stance taken to direct application and effect concerning WTO agreements, points to ECJ supremacy with few dissenting voices.
The other political dynamic to consider is the position of the individual Member State given ratification of many international treaties as mixed agreements. In such situations the tendency has been for the Member States to allow the EU to take the lead in implementation and compliance matters, which again following the MOX Plant case and unsuccessful arguments put by Member States about the EU's lack of competence in other instances (such as in Commission v France) is only likely to continue. This is apparently supported by decisions taken within the EU by Member States and their courts, as illustrated by the lack of political will to accept the proposal for an access to justice directive and a hesitant approach domestically to invoking direct effect (which may or may not be followed by Slovakia in LZ), suggesting the EU and its Member States are on side. The delayed coming into force of the Lisbon Treaty and earlier failure of the Constitutional project also suggest it is unlikely that the Member States will return to the intergovernmental conference table in a hurry to amend the TFEU.
Implementation and compliance with international environmental law is reliant upon a range of tools and the modest but not insignificant success in applying these doctrines by the ECJ in what is an area of potential expansion for the Court, is a welcome complement to other approaches. Together with treaty-based dispute avoidance and settlement processes, these interpretative techniques have an important role to play in the effective implementation of international environmental law in the EU. They may also assist in developing and refining the relationship between international and European law, which will continue to be an area of significant academic and practical interest. The ECJ has shown itself willing in the Syndicat v EDF and Commission v France rulings to invoke direct application and effect of provisions in international treaties for the benefit of individuals and the environment, and in Intertanko was prepared to consider similar arguments in respect of individual claims which, although denied on that occasion, were supported by the Opinion of AG Kokott and independent commentators. The Court has also been willing to take a firm stance on jurisdiction in the case law, including in the recent LZ decision where the lack of specific implementing legislation was not regarded as crucial to the determination that the matter fell within the scope of EU law. With supporting obligations to ensure effective judicial protection in the EU legal system, the Court can therefore validly claim not only a significant contribution to the EU's ‘strict adherence’ with international (environmental) law, but also to its ‘development’.
