Apportioning the Obligations Arising Under the UNECE Aarhus Convention Between the EU and its MSs: The Real Scope of the 'Community Law in Force'

The article engages with the long-standing debate as to the relationship between the European Union (EU) and the international legal order by testing this relationship in the context of the participation of the EU, together with its Member States (MSs), in the UNECE Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters (the Aarhus Convention). Through the analysis of three cases submitted to the Compliance Committee established under the Convention, dealing with national transport plans, national renewable energy and transnational electricity plans, the article highlights the practical and legal difficulties to identify the rightful subject of a communication on the basis of the so-called ‘declaration of competence’ made by the EU upon approval of the Aarhus Convention. In search for practical solutions, the article suggests that it could be relied on the atypical and less formal nature of the Compliance Committee in order to envisage the possibility that individuals, NGOs or a non-EU Party to the Aarhus Convention consult the EU and its MSs as to whom should be considered the rightful subject of a communication, in the light of the ‘scope of the EU law in force’.