Direct effect of EU Directives
The CJEU interprets the concept of the direct effect of EU directives in the field of environmental protection to ensure not only the protection of the individuals concerned but also to enable effective enforcement of EU law.
The prerequisite for direct effect is the fulfilment of all the conditions which the CJEU case law associates with the possibility (or obligation) of direct application of EU law. In any event, the courts of the Member States are obliged to interpret national law in accordance with the requirements of the Aarhus Convention. They can only consider the direct effect of directives if a consistent interpretation of national law is not possible.
In the case of activities covered by Art. 9(2) of the Aarhus Convention, the situation is relatively simple. The CJEU had already concluded in 1996 that specific provisions of the EIA Directive could have a direct effect, and in 2011 extended the set of provisions to include Art. 11, which sets out specific conditions for public participation in decision-making and access to judicial protection (Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen, C-115/09). The CJEU has not directly addressed the direct effect of the Industrial Emissions Directive. Still, the conclusions regarding the EIA Directive can be used per analogiam, given that the provisions of both Directives are very similar.
In 2016, as mentioned, the CJEU concluded in C-243/15 (Lesoochranárske zoskupenie II) that also the requirements of Art. 6(3) of the Habitats Directive on the assessment of projects falls under the regime of Art. 6 and Art. 9(2) of the Aarhus Convention and can be directly applicable. It was already noted that Art. 6(3) of the Habitats Directive contains no provisions on participation in decision-making. The same applies to access to justice. The assessment of plans and programmes according to the same requirement logically falls under Art. 9(3) of the Aarhus Convention as the act adopted will not be a decision under Art. 6 of the Convention.
The CJEU has confirmed that many other EU directives can be directly applicable, this time in the regime of Art. 9(3) of the Aarhus Convention. Provisions that do not provide for public participation may, therefore, have a direct effect. The CJEU adopted the formulation that it would be “incompatible with the binding effect attributed to a directive by Article 288 TFEU to exclude, in principle, the possibility that the obligations which it imposes may be relied on by those concerned” (Case C-664/15, Protect Natur-, Arten- und Landschaftschutz Umweltorganisation).
The CJEU initially mentioned directives on air quality and drinking water to protect health, but this rationale goes beyond this and covers other rights. In C-361/88 (Commission v. Germany), the CJEU found a link between air protection and the rights of individuals – even though the air quality legislation (other than the EIA and Industrial Emissions Directive) does not contain comprehensive rules as regards access to justice. The Court concluded that the quality (concentration) limit values aim at the protection of human health. Thus, they have the objective to protect the individual right to health. They are sufficiently precise and unconditional to be of direct application. This means that the individual person has the right to trace back the limit values in his national legislation; it follows from this that Member States are obliged to transpose the limit values of the air pollution directive into their national law.