In order to properly identify possible deficits of the EIA Directive, one has to take into account the Case Law of the Aarhus Convention Compliance Committee (ACCC). The case law of the ACCC has the same legal status in the EU legal order as the Convention itself and thus must be observed when implementing the Aarhus Convention:17
According to the case law of the ECJ, a provision of an international treaty is 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“18. The same test applies to decisions of an institution established by an international treaty,19 such as the ACCC.20 The “findings and recommendations” of the ACCC, however, very often contain clear and precise obligations and/or criteria to be met by the Parties. Provisions of EU law thus can be directly tested on their consistency with the case-law of the ACCC and, if they contravene the obligations set out by the ACCC, they can be annulled by the ECJ (or are, at least, not applicable, since the principle of supremacy of EU law also applies to the – in relation to the EIAD higher-ranking – Aarhus Convention).
footnotes number 17, which states “The case law of the ACCC has the same legal status in the EU legal order as the Convention itself and thus must be observed when implementing the Aarhus Convention”. It is in a German legal magazine, Recht Der Umwelt (Law of the Environment), for which I have translated some of the relevant text in his Article, see here. You can also see the full text in German in following link: