Jack, 'A Birthday Suit for the Environment?'

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A Birthday Suit for the Environment?

Brian Jack

PhD Research Student/Tutor in Law
University College of Wales, Aberystwyth
<[email protected]>

Copyright © 1998 Brian Jack.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The Community legal system applies a restrictive approach to the standing of individuals or associations to challenge acts of the Community institutions. Under Article 173(4) of the EC Treaty such standing will only be provided to individuals or associations to challenge one type of legal act, a decision (or a regulation in the form of a decision). Even then the decision must be of direct and individual concern to the applicants. But what of the environment? Often environmental damage does not affect any one individual's legal interests. Instead, environmental damage may adversely affect the general interests of a wide range of people. However, under Article 130(r)(2) of the EC Treaty, Community institutions are required to integrate environmental protection requirements into all their policies. Should individuals and environmental associations have any legal interest in protecting the quality of the environment? Additionally, should different rules of standing apply to enable such individuals or associations to challenge Community decisions which fail to respect environmental obligations? In Case C- 321/95P Stichting Greenpeace Council (Greenpeace International) and Others v Commission of the European Communities, the European Court of Justice answered these questions negatively. This article examines the case and discusses the wider implications of the Court's judgment.

The Facts

In this action, the applicants were Stichting Greenpeace Council (Greenpeace International), two Canary Islands based environmental associations (Tagoror Ecologista Alternativo (TEA) and Comisión Canaria contra la Contaminación (CIC)) and sixteen Canary Islands' residents. The case evolved from Commission Decision C(91)440 whereby the Commission granted financial assistance to Spain from the European Regional Development Fund (established pursuant to Council Regulation 1787/84, O.J. L169/1 19.6.1984). The money was provided to part finance the construction of two power stations on the Canary Islands. Under the decision, twenty nine million ECU was to be paid immediately, whilst further funds were to be paid annually, subject to progress, in accordance with a financial plan. The Commission was also empowered to reduce or suspend aid if an examination revealed an irregularity.

Article 130(r)(2) of the EC Treaty requires the integration of environmental protection requirements into all Community policies. In respect of Community structural funds, this requirement is enforced by Article 7 of Council Regulation 2052/88 (O.J. L185/9 24.6.1988 ). This provides that, inter alia, projects which are financed by the Community structural funds should be in keeping with the provisions of the Community Treaties, the instruments adopted pursuant to those Treaties and with Community policies, including the rules on environmental protection.

Directive 85/337 (O.J. L175/40 27.6.1985) on the effects of certain public and private projects upon the environment requires Member States to conduct an assessment of the potential environmental impact of specific works. The directive requires this assessment to be conducted before such works are granted development consent. Under the directive, the construction of a power station is a development for which it is compulsory to conduct such an assessment. Additionally, the directive gives members of the public rights to participate in the assessment. Within the terms of Article 7 of Regulation 2052/88, the directive is an instrument adopted pursuant to the Community treaties. Accordingly therefore, continued Commission funding of the construction of the power stations would infringe Article 7 if that construction had not respected the requirements of the Directive 85/337.

Three of the applicants, in this case, were Canary Islands residents who had written to the Commission, to inform it that construction work on the power stations had commenced even though environmental impact statements had not been conducted. These statements were then subsequently published by the Spanish authorities. The environmental associations TEA and CIC instituted national proceedings, in Tenerife and Gran Canaria respectively, to challenge the validity of these environmental impact statements. Whilst Greenpeace Spain also initiated proceedings in the Canary Islands to challenge the validity of local government authorisations for the construction work.

Additionally, Greenpeace International twice wrote to the Director-General of the Commission Directorate General for Regional Policies (DGXVI). Initially, they sought confirmation as to whether Community funds had already been paid to the Canary Islands Regional Government in connection with the construction of the power stations and also the timetable for further payments. Subsequently, they sought disclosure of all information related to the measures which the Commission had taken to ensure that construction work complied with Article 7 of Regulation 2052/88. The Commission replied to the former letter by referring Greenpeace to the text of Decision C(91)440 and to the latter by refusing to provide the information as it "concerns the internal decision making procedures of the Commission." In October 1993 a meeting occurred between Greenpeace International and DG XVI officials. At this meeting Greenpeace learned that forty million ECU had been paid to the Regional Government in connection with the construction of the power stations. This alerted Greenpeace to the fact that eleven million ECU had been paid in addition to the initial payment. On the basis of this deduction Greenpeace International, TEA, CIC and the sixteen local residents instituted proceeding against the Commission before the Court of First Instance under Article 173 of the EC Treaty. They alleged that on a date unknown between 7^th March 1991, when the Commission adopted Decision C(91)440, and 29^th October 1993, when the meeting with DGXVI officials occurred, the Commission had taken a decision to pay eleven million ECU to the regional government pursuant to Decision C(91)440. They asked the Court to annul this decision since it contravened Article 7 of Regulation 2052/88. The individual applicants alleged that environmental damage caused by the power stations would damage, inter alia, their health and livelihoods. The Commission however denied that any such decision had been made and alleged that the payment was merely an administrative consequence of Decision C(91)440. More fundamentally, they alleged that the applicants did not have standing under EC Treaty Article 173(4).

The Treaty Provision

Article 173 provides the Court of Justice with judicial capacity to review acts of Community institutions which have legal effect. Member States and other Community institutions have unlimited standing to challenge such acts, under Article 173(2). However, under Article 173(4) natural or legal persons will only enjoy limited standing. In the circumstances of the present case, such persons may only challenge a decision addressed to another person if that decision is also of direct and individual concern to the applicants. In the present case therefore, the applicants had to show that although the decision concerned had been addressed to Spain, it was also of direct and individual concern to them.

Previous Case-Law Concerning Article 173(4)

There has been substantial litigation concerning situations in which decisions can be said to be of direct and individual concern to applicants. In relation to direct concern, the Court has found decisions to be of direct concern to applicants where they confer no discretion upon the person to whom they are addressed. If the addressee has a discretion as to whether to implement the decision, then applicants affected by the decision will not be held to be directly concerned (Case 69/69 Alcan v Commission [1970] ECR 385). The Court has also expanded upon this criterion. An applicant may be found to be directly concerned by a decision where, although that decision conferred a discretion, the possibility of the addressee not implementing it was merely theoretical (Case 11/82 Piraiki-Patriaki v Commission [1985] ECR 207). In the present case, since Spain had no discretion as to the implementation of the alleged decision, it could be deemed to be of direct concern to the applicants.

With respect to individual concern, the Court has held that `persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed'(Case 25/62 Plaumann v Commission [1963] ECR 95). In applying this provision the Court has held that applicants must belong to a closed and individually identifiable class of persons who, like the addressee, are more substantially affected by the decision than others (Cases 106-107/63 Toepfer v Commission [1965] ECR 405).

The Court has adopted a similar approach in respect of applications brought under Article 173 by associations formed to represent the interests of individual members. Such associations will not be accorded standing to challenge measures which affect the general interests of their members (Joined Cases 19-22/62 Fédération Nationale de la Boucherie v Council [1962] ECR 491). However, an association which does not comply with these criteria may still be awarded standing where that association was actively involved in the procedures which culminated in Community institution concerned adopting the disputed decision.(Joined Cases 38,67 and 70/85 Van der Kooy & Others v Commission [1988] ECR 219 and Case C-313/90 CIRFS & Others v Commission [1993] ECR I-1125). Similarly, individuals who would otherwise be unable to assert that a decision was of direct and individual concern to them, may also acquire standing on this basis (Case 264/82 Timex v Council and Commission [1985] ECR 849).

The Decision of the Court of First Instance (Case T-585/93, [1995] ECR II -205)

The Court of First Instance applied the previous case-law and concluded that the individual applicants were affected by the alleged decision in the same way as all other Canary Islands residents and visitors. Therefore, the Court concluded that the alleged decision was not of individual concern to the applicants. In respect of the environmental associations, the Court held that since their members were not individually concerned by the alleged decision then the associations themselves could not be found to be individually concerned.

The Court also determined that the fact that three local residents had made complaints to the Commission and that Greenpeace International had exchanged correspondence and had held a meeting with the Commission, did not confer any rights to standing. As regards the residents, the Court held that no procedure had been provided to enable such people to be associated with the adoption, implementation and monitoring of decisions taken on structural funding. As regards Greenpeace International, the Court found that they had not participated in any procedures concerning the alleged decision, prior to its adoption.

Accordingly, the Court of First Instance found the application to be inadmissible. The applicants appealed to the Court of Justice.

The Applicant's Case Before the Court of Justice

The applicants pointed out that, since Spain had no discretion in its implementation of the alleged decision, it was therefore of direct concern to the applicants. This had not been disputed by the Court of First Instance. However, in respect to the requirement of individual concern, the applicants sought to distinguish their case from the Court's previous case-law. They pointed out that the Court's jurisprudence on Article 173(4) had developed solely in the context of economic issues where recognised legal rights were at issue. In contrast, environmental damage often did not infringe any individual legal rights. They sought to persuade the Court that this required a recognition of an `environmental legal interest' under which wider rules of standing should apply. All Community citizens shared an interest in the protection of the environment. As such therefore, under existing law, no closed class could exist for the purpose of obtaining standing. Due to political considerations, other Community institutions or Member States, who would have standing to bring a case under Article 173(2), would be unlikely to do so. As a result a legal vacuum would be created within which no-one policed the Community institutions in regard to their obligation to protect the environment.

The applicants asserted that this vacuum could not be filled by proceedings before national courts. For example in the present case the national proceedings merely concerned non-compliance by the Canary Islands' Planning Authority with Directive 85/337. The Spanish courts had no interest in reviewing the legality of the alleged Commission decision which was being challenged in the present case.

Attention was drawn to the fact that in the national legal systems of the Member States, individuals and organisations had generally gained broader rights to litigate in protection of the environment. Similarly, in international environmental law access to justice by individuals and organisations was being increasingly promoted.

The applicants examined developments in Community law. They pointed out that the Court had recognised that environmental protection was one of the Community's essential objectives (Case C-240/83 Procurer de la Republique v Association de Defence des Bruhleurs d'Huiles Usagees [1985] ECR 532). Furthermore the Court had recognised that Community environmental law could create rights and obligations for individuals (Case C-131/88 Commission v Germany [1991] ECR I-825, and Case C-361/88 Commission v Germany [1991] ECR I-2567). Additionally, the Council's Fifth Environmental Action Plan (O.J. C138/1 17.5.93) promoted increased judicial access for individuals and environmental associations in order to protect the environment. In the present case they argued that this aspiration could only be achieved would be through granting wider rights of standing under Article 173.

For these reasons the applicants asked the Court to reinterpret Article 173(4) in environmental cases. They argued that, in environmental cases, an applicant should be required to show that:

Additionally, they submitted that environmental associations should be granted standing to protect general environmental interests. Although their members had no such standing, they asked the Court to grant associations this right in recognition of their role in representing and co-ordinating members general interests.

The Advocate General's Opinion

Advocate General Comas began by examining whether the applicants could derive any judicially protected legal interest from the alleged Commission decision. He accepted that a `Community public interest' existed in the protection of the environment. This derived from the Court of Justice's finding that environmental protection was one of the Community's fundamental objectives and from the insertion of the environmental title into the EC Treaty. However, he asserted that these developments had placed the obligation to protect the environment upon Community institutions and national authorities. He noted that there existed no general right, in Community law, to litigate to protect the environment. Instead, legal rights were conferred upon individuals by Community legislation which gave effect to the Community's environmental objectives. In this regard, Directive 85/337 created public rights of participation in the conduct of environmental impact assessments. The Advocate General considered that this could potentially form the basis for an annulment action against the Commission, on the basis that their alleged decision infringed these rights. However, he acknowledged that the principal difficulty with such an action would be the fact that the main breach of the applicants' rights under the directive was committed by the Canary Islands Planning Authority and not the Commission. Alternatively, the Advocate General also stated that he regarded Article 130(r)(2) of the EC Treaty, which states that `environmental protection requirements must be integrated into the definition and implementation of other Community policies', as having direct effect within the Community legal order. Individuals affected by a Commission decision thus had a legal interest in ensuring that the decision complied with this obligation.

Secondly, the Advocate General considered whether the Court of First Instance had been correct to find that the applicants were not `individually concerned' by the alleged Commission decision. He rejected the view that it was unnecessary to grant standing to the applicants since they could obtain a sufficient remedy from national courts. He observed that the issue of the legality of the alleged Commission decision would not become an issue before national courts. The applicants therefore could not obtain a remedy on this issue from national proceedings. However, the Advocate General refused to accept the applicants' submission that the Court should not apply its established case-law in environmental cases. He pointed out that the Court could accept that there could be a closed class of persons, entitled to bring an action, within an otherwise open class of persons who could not. He therefore asked the Court not to consider all persons who were potentially affected by environmental damage as being an open class. Instead, he invited the Court to distinguish, from within the residents of the Canary Islands, a closed class of persons who were more seriously affected than other residents. He proposed that this could be based upon geographical proximity to the source of the potential environmental damage. He further asserted that the fact that the alleged Commission decision affected the applicants' acquired rights, to an expected quality of life, could further justify such a decision. However, since this point had not been argued before the Court of First Instance, no evidence had been provided upon which such a determination could be made. Accordingly the Advocate General concluded that the Court of First Instance had been correct to reject the applications of the Canary Islands' residents.

Insofar as the environmental associations were concerned, the Advocate General also supported the decision of the Court of First Instance, that the standing of these associations was dependant upon that of their members. He specifically rejected their claims to be granted standing to act to protect the environment in situations where their members, individually, would not have standing. He considered that such a development would be open to abuse, with individuals setting up environmental associations specifically to obtain standing. Additionally, since a large number of environmental associations already existed, this could potentially result in the challenge of every Community measure which potentially affected the environment. More fundamentally, the Advocate General believed that such a right would essentially re-write Article 173(4).

Accordingly, the Advocate General proposed that the Court should dismiss the appeal.

The Judgment of the Court of Justice

The Court dismissed the applicants' appeal. In so doing, the Court adopted a more restrictive approach than the Advocate General in defining the applicants' legal interests. The Court limited those interests to the rights granted to the applicants by Directive 85/337. The Court stated that it was the decision to build the power stations which was liable to effect the applicants' rights under the directive, whilst the Commission's decision on financing only affected those rights indirectly. The Court did not adopt the Advocate General's suggestion that the applicant's be regarded as having a legal interest in the alleged Commission infringement on the basis of the direct effect, in the Community legal order, of EC Treaty Article 130(r)(2). Overall, the Court concluded that the applicants' legal interests were fully protected by the national proceedings in Spain. The Court accepted that the subject matter of these national proceedings was different from that of the present case. However, it declared that the national court could challenge the legality of the alleged Commission infringement through a preliminary reference. On this basis the court denies that its decision will create any legal vacuum. In this regard the Court's judgment directly conflicts with the Advocate General's opinion.

In regard to the interpretation of Article 173(4) of the EC Treaty, the Court merely stated that the decision of the Court of First Instance was fully consistent with settled case law. In so doing, the Court made no reference to the Advocate General's suggestion that residents living near to the power stations could be regarded as a closed class to whom standing might be awarded. Additionally, the Court made no reference to the applicant's pleas for the Court to adopt a different approach to standing in environmental cases.

Comment

There are several features of this case which are disturbing. First, in regard to procedural matters, there is the Commission's response to Greenpeace International's request for disclosure of documentation. The Commission refused to supply documentation concerning its monitoring of the construction of the power stations as this concerned the `internal decision making procedures of the Commission'. This response is inconsistent with the Commission's own pronouncements on transparency within the Community, (Public Access to the Institutions Documents O.J. C156/5 8.6.93 and Openness in the Community O.J. C166/4 17.6.93). Additionally, the Commission response conflicts with the sentiments expressed in the Council's Fifth Action Plan on the Environment, which encourages Community institutions to grant public access to information which they hold, on the basis that this will encourage good environmental performance by these institutions. If outside bodies are unable to gain access to such documentation they will not be able to assess the extent to which the Commission is taking account of environmental criteria before adopting its decisions.

In regard to the Court judgment, it is to be regretted that it is very short with limited detail. As a result, the Court fails to explore fully the important issues which are raised by this case. Both the Court of Justice and the Court of First Instance refused to consider standing in environmental cases differently from other issues. As a result they evaluated the applicants' positions in accordance with established case-law. Neither court, however, has recognised that this case-law stems from the 1960's when the word `environment' was non-existent within either the EC Treaty or the minds of most policy makers. In contrast today, the EC Treaty has evolved to include a title on environmental protection, whilst policy makers in all areas of Community law are required to integrate environmental considerations into their policies. The Court's case-law on standing under Article 173(4) is the product of a Treaty which sought to protect the legal interests of economic players within the Community. Unlike the Treaty, this case-law has not evolved to embrace more general interests, such as the environment.

This judgment undermines the potential value of Article 130(r)(2) of the EC Treaty, with its requirement that environmental requirements should be integrated into all Community policies. The Court limits the applicant's legal interest in environmental protection to the rights which are conferred upon them by Community secondary legislation, such as Directive 85/337. The Court further asserts that in national proceedings brought to protect such interests a national court would be able to seek a preliminary reference to determine whether a Commission decision complied with Article 130(r)(2). This does not reflect the reality of the situation.

The reality is that if private applicants are deemed to have no legal interest in ensuring that Community institutions take proper account of Article 130(R )(2) then that responsibility falls upon Member States and the Community institutions themselves. In the past these parties have shown no interest in adopting this mantle and for political reasons they are unlikely to do so in future. In contrast several environmental associations have now unsuccessfully brought proceedings on this issue and other proceedings were expected had the Court granted standing in this case.⁽¹⁾

Secondly, if individuals are limited to bringing national proceedings within which they can protect rights granted by Community secondary legislation, there is little chance that this will result in the type of preliminary references which the Court anticipates. For example, in the present case the national proceedings concerned the denial of the right to participate in the preparation of an environmental impact assessment. The proceedings therefore concerned the fact that planning permission had been granted without this participation having occurred. These national proceedings had no remit to consider the Commission's obligations in respect of their funding of the project. Accordingly, the national courts would have had no interest, in seeking a preliminary reference on this issue. This is borne out by the fact that none of the three national courts involved have done so.

The Court is therefore misguided to deny that its decision will create a legal vacuum within which the Commission's environmental obligations will go unregulated.

In relation to the environmental associations, the decision should be contrasted with the reliance of the Community enforcement procedure upon these groups. In enforcement actions, under Article 169 of the EC Treaty, limited resources mean that the Commission is often reliant upon complaints from environmental associations to notify it of instances where, in practice, Member States have failed properly to implement an environmental directive. Similarly, these limited resources, together with the operation of the doctrines of direct and indirect effect, have led the Commission to encourage environmental associations to bring actions directly in national courts. In consequence, the Commission has explored methods by which to further develop national laws of standing.⁽²⁾ It is therefore somewhat ironic that this present decision severely restricts the ability of these same associations to challenge Commission indiscretions before the Community judiciary.

In the light of the Court's decision, another option would be to amend the wording of Article 173(4) of the EC Treaty. To date this has not been considered and consequently it does not form part of the treaty revisions contained in the as yet unratified Amsterdam Treaty. Any such amendment to Article 173(4) is therefore still distant .

Bibliography

Cameron, J (1991) `Environmental Public Interest Litigation' in Vaughan, D. EC Environmental and Planning Law (London: Butterworths).

Faulks, J and Rose, L (1996) `Common Interest Goups and the Enforcement of European Environmental Law' in Somsen, H (ed.) Protecting the European Environment-Enforcing European Environmental Law (London: Blackstone Press).

(2) For example, the Commission set up a working party to consider Community legislation to provide greater harmonisation of standing laws for environmental associations in national courts throughout the Community. (See Cameron 1991, p 292)

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