Dark Matter-Competence, Jurisdiction and "the Area Largely Covered by EU Law": Comment on Lesoochranárske

The Court of Justice applies two distinct criteria for determining its exclusive jurisdiction over mixed agreements. The first attributes jurisdiction when a provision in a mixed agreement is of a procedural nature. The other criterion links jurisdiction to the application or the sphere of EU law. The recent and speciously argued Lesoochranárske case provides a welcome occasion to reassess both approaches. This paper argues that exclusive jurisdiction under the test whether an area is largely covered by EU law, which the Court applies under the latter criterion, replicates the test for establishing exclusive external competence introduced by Opinion 2/91. Some guidelines are suggested for applying this test, whose obscurity is a source of ambiguity with both competence and jurisdiction. Moreover, the decision in Lesoochranárske on the indirect effect of the Aarhus Convention for the interpretation of national law is shown to avoid the required reasoning in terms of competence.