Case T-396/09

Vereniging Milieudefensie and

Stichting Stop Luchtverontreiniging Utrecht

v

European Commission

(Environment — Regulation (EC) No 1367/2006 — Obligation of the Member States to protect and improve ambient air quality — Temporary exemption granted to a Member State — Request for internal review — Refusal — Measure of individual scope — Validity — Aarhus Convention)

Summary of the Judgment

1.      Actions for annulment — Jurisdiction of the EU judicature — Claim seeking that directions be issued to an institution — Inadmissibility

(Arts 263 TFEU and 266 TFEU)

2.      Acts of the institutions — Commission Decision granting a Member State a temporary exception — Measure of general scope — No administrative act capable of being the subject-matter of a request for an internal review under Regulation No 1367/2006

(European Parliament and Council Regulation No 1367/2006, Arts 2(1)(g) and 10(1); European Parliament and Council Directive 2008/50, Art. 22(4))

3.      International agreements — European Union agreements — Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) — Effects — Primacy over secondary European Union legislation — Assessment, in the light of the Convention, of the validity of a provision of Regulation No 1367/2006 — Conditions

(Art. 300(7) EC; Aarhus Convention; European Parliament and Council Regulation No 1367/2006)

4.      International agreements — European Union agreements — Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) — Limitation by a provision of Regulation No 1367/2006 of the possibility to review exclusively to measures of individual scope — Invalidity in the light of the Convention

(Aarhus Convention, Art. 9(3); European Parliament and Council Regulation No 1367/2006, Arts 2(1)(g) and 10(1))

1.      See the text of the decision.

(see para. 18)

2.      A Commission decision granting a Member State a temporary exemption from the obligations laid down by Directive 2008/50 on ambient air quality and cleaner air for Europe does not constitute a measure of individual scope, it cannot be categorised as an administrative act for the purposes of Article 2(1)(g) of Regulation No 1367/2006 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. Accordingly, that decision cannot form the subject of a request for internal review under Article 10(1) of that regulation.

In order to determine the scope of a measure, account should first be taken of its purpose and its content. Accordingly, a decision which is addressed to a Member State is regarded as being of general application if it applies to objectively determined situations and entails legal effects for categories of persons envisaged generally and in the abstract.

Moreover, where an instrument lays down limitations, or allows derogations, which are temporary in nature or territorial in scope, they form an integral part of the body of provisions within which they are found and, in the absence of any misuse of powers, they are of the same general nature as those provisions.

Lastly, derogations from the body of general rules which take the form of confirmatory decisions adopted by the Commission under a provision of a directive partake of the general nature of that directive, given that they are addressed in abstract terms to undefined classes of persons and applied to objectively defined situations.

(see paras 26-28, 34, 41)

3.      The European institutions are bound by the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, which prevails over secondary Community legislation. It follows that the validity of Regulation No 1367/2006, on the application of the provisions of the Aarhus Convention to Community institutions and bodies may be affected by the fact that it is incompatible with that convention.

Where the Community has intended to implement a particular obligation assumed under an international agreement, or where the measure makes an express renvoi to particular provisions of that agreement, it is for the Court to review the legality of the measure in question in the light of the rules laid down in that agreement.

Accordingly, the EU judicature must be able to review the legality of a regulation in the light of an international treaty, without first having to determine whether the nature and broad logic of that treaty so allow and whether the contents of that treaty appear to be unconditional and sufficiently precise, where that regulation is intended to implement an obligation imposed by that international treaty on the EU institutions.

(see paras 52-54)

4.      In so far as Article 10(1) of Regulation No 1367/2006, 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 limits the concept of acts in Article 9(3) of the Aarhus Convention to administrative acts defined in Article 2(1)(g) of that regulation as measures of individual scope, it is not compatible with Article 9(3) of the Aarhus Convention.

(see para. 69)