Locus Standi in European Environmental Law. A case study on Greenpeace v. Commission*

Carlos Laguado Giraldo
Corporate Law Lecturer at the Law Faculty of Pontificia Universidad Javeriana (Colombia), and of Corporate Governance in the Faculty of Economics and Accounting Sciences in the Specialization on Supervision and Internal Control. Specialist in Commercial Law and in Insurance Law, LL.M. candidate Erasmus University Rotterdam, The Netherlands.

 

I. INTRODUCTION

The applicants requested the annulment of a Decision of the Commission by which the European Regional Development Fund conceded funds for the construction of two power stations in the Islas Canarias (Spain).  The Decision  under study constitutes one of  the seminal cases related to Article 230 (ex Article 173) of the EC Treaty, specifically in what regards to Paragraph four[1] that regulates the standing rules for non privileged applicants in actions before the European Judicature [Court of First Instance (CFI) and European Court of Justice (ECJ)].  Greenpeace V Commission reaffirmed the construction of Article 230-4 in respect of the meaning of the expression ‘direct and individual concern’, issue that has been considered problematic[2].  In the present case, even though the claimants considered appropriate to embrace a liberal approach to the situation, specially considering the environmental effects of the decision, the ECJ (following the Court of First Instance’s argumentation) confirmed that the right for standing, according to Article 230-4 (ex Article 173) of the EC Treaty, both in environmental and non environmental matters, must be interpreted strictly, following the ‘pure Plaumman test’. As will be seen along this report, the interpretation given by the Judicature to Paragraph 4 Article 230 will answer ‘whether Community law sets any minimum standards on individuals’ remedies and rights to access to justice in cases concerning environmental protection[3]

II. FACTS AND PROCEDURES

a.   Facts

1.In march 1991 the Commission of the European Union adopted Decision C (91) 440 granting the Kingdom of Spain financial assistance from the European Regional Development Fund ("the ERDF"), for infrastructure investment, specifically for the construction of two power stations in the Canary Islands by Union Electrica de Canarias (Unelco).

2. Two months later, Citizens of Canary Islands, and also applicants of the action, submitted to the Commission a letter informing that the works carried out on Gran Canaria were unlawful because Unelco had failed to undertake an environmental impact assessment study in accordance with Council Directive 85/337/EEC of 27 June 1985.  By letter dated 23 November 1992 another citizen of the Islands, and subsequently an applicant of the action, claimed for the  Commission’s assistance on the ground that Unelco had already proceeded with the project without the mandatory declaration of environmental impact that national authorities (Canary Islands Commission for Planning and the Environment, "Cumac") had to issue.  Cumac issued it within a month of the complaint (December 1992).

3. On March 1993 two ecologist organizations (included among the claimants) Tagoror Ecologista Alternativo ("TEA") and Canary Islands Commission against Pollution ("CIC"), brought administrative proceedings against the resolution subscribed by Cumac. The same did Greenpeace Spain on December 1993.

4. By the means of letters, Greenpeace asked the Commission to disclose all the details surrounding the payments of the funds granted to Unelco and all the information relating to measures it had taken with regard to the construction of the power stations. On December 1993, Greenpeace and the Commission met in Brussels, concerning the finance of the project.

5.On 21 December 1993, the applicants brought an action, registered at the Court of First Instance as Case T-585/93, seeking annulment of Decision C (91) 440 on the grounds of lack of fully disclosing  to Greenpeace information related to the decision process within the adoption of the mentioned instrument. The Commission raised an objection to the action, which was supported by the Kingdom of Spain who joined the procedure as intervener.

b. Procedures

The application

The actors request for the annulment of the Decision C (91)440 by which it will be disbursed to Unelco the sum of ECU 12000 or such other sums pursuant to it, in reimbursement of the investment in the power plants built in Canarias and Tenerife.

       The objection to admissibility

Both, the Commission and the Kingdom of Spain, requested the inadmissibility of the action. They sustained it should be denied because of the (1) nature of the challenged Decision within the scope of the Article 173 of the EC Treaty, and (2) because the applicants failed to have locus standi (See infra III-a)

The Decisions of the Court of First Instance and of the European Court of Justice

The Court of First Instance found no reasons to concede the application. (Infra III-d). The applicants appealed the judgment before the European Court of Justice, who confirmed the First Instance Court verdict[4]. (Infra III-e)

 III. POINTS OF LAW. ARGUMENTS IN THE CONTEXT OF PROCEDURES.

In the order presented in the Judgment, the arguments of the parties can be abstracted as follows:

a. Legal Position Of The Defendant[5] (Objection to admissibility)

(1) Nature of the  challenged  Decision: It was sustained the procedure laid down for the implementation of the contested decision couldn’t  involve the adoption of a decision capable of being challenged in annulment proceedings under Article 173 of the EC Treaty.

(2) Lack of locus standi: Applicants, lack of locus standi because they are not directly and individually concerned by the contested decision[6]. They cannot argue to be affected in the same way as the addressee of the Decision (Spain) for the reason that their interest relates solely to environmental protection.  Nor can be said that submitting complaints to the Commission turns some of the applicants into directly affected individuals.

b. Legal Position Of The Applicant (The observations on the objection to admissibility)

The claimants requested for full disclosure of all the documents that based the adoption of the disputed Decision, a relation of the manner the funds were transferred to the beneficiary and to dismiss the objection to admissibility.  The main points exposed by the actors, as shown in the response of the objection to admissibility are[7]:

-         (2) Locus standi: The applicants recommended for the Court not to be self constrained by the current case law which only grants locus standi to applicants under special circumstances that differentiate them from all other persons, and focus, instead on the fact that they were or will suffer damages after the adoption of the Decision[8].

They argue that, anyhow, the applicants satisfy the criterion established by the court because such harm might affect, in a general abstract way, a large number of persons who could not be determined in advance in such a way as to distinguish them individually just like the addressee of a decision[9].

They add that submitting complaints (Supra II-a-5) to the Commission granted them an indirect interest in the claim.  Other applicants, in their conditions of farmers, fisherman or merely inhabitants of the island will suffer direct and personal detriment as residents, which is enough to evidence interest in the claim.

Regarding the environmental organizations (Greenpeace, TEA and CIC), applicants indicate that their members, as shown, are directly affected by the decision, and, in the alternative, that the organizations should be considered to be individually concerned by reason of the particularly important role they have to play in the process of legal control by representing the general interests shared by a number of individuals in a focused and coordinated manner.[10]

Thus, the applicants insist they meet the criteria established in Art. 173 Par. 4 of the EC Treaty.

c. Legal Position Of The Intervener

The Kingdom of Spain drew a distinction between the locus standi of the applicant associations Greenpeace, TEA and CIC and that of the applicants act as natural individuals.[11] As regards the locus standi of the   associations, it argues that, none of them possesses the characteristics which would enable them to be assimilated to the addressee of the disputed Decision holding that in the settled case-law of the Court, organizations set up to defend the collective interests of a category of persons, cannot be considered to be directly and individually concerned by a measure affecting the general interests of that category.[12] Relating to applicants as natural persons, the intervener remained on the side and on the grounds presented by the defendant.

d. The Decision Of The Court Of First Instance

Regarding the two issues under discussion [(1) nature of the challenged Decision and (2) locus standi], the Court of First Instance only considered necessary to review the arguments upon the second one (2), sustaining that[13]:

- Locus standi of individuals acting as third parties: The facts under study fell into the situations embraced by the settled case-law provided that in all cases involved economic or non economic interests third parties must prove the existence of a combination of circumstances that enables them to claim to be affected by the contested decision in a manner which differentiated them from all other persons. In consequence there was no reason to disregard the judicial precedent[14] (especially Plaumann).  The Court noted that the situation of the claimants, acting as fisherman, farmer or inhabitants of the islands, concerned with the damaged caused by the structures under construction was not different from the one of any inhabitant of the island[15].

Although a person who solicits an institution not to take a decision in respect of him, might be considered to have indirect interest, in the case sub-examine the applicant’s communications were not in the precise legal position to turn them into actual or potential addressees of the Decision.[16]

In conclusion, there were no special circumstances that differentiate the applicants from all the individuals and thus distinguished them individually in the same way as the addressee of the decision.[17]

-    Locus standi of associations acting as third parties:  The court stated that:

‘ […] it had consistently been held that an association formed for the protection of the collective interests of a category of persons could not be considered to be directly and individually concerned, for the purposes of the fourth Paragraph of Article 173 of the Treaty, by a measure affecting the general interests of that category, and was therefore not entitled to bring an action for annulment where its members could not do so individually’[18]

Therefore, as corollary of the lack of locus standi of the individuals, the organizations also lacked of it.  But, further, the Court entered into explaining how, even though in other cases the Court had recognized locus standi to associations whose represented individuals did not possess special circumstances[19], as to differentiate them from any other person, such particular circumstances did not appear in this dispute because the exchange of letters and the held meetings between the associations and the Commission did not give enough elements for constituting this special circumstances.

e. The Decision Of The European Court Of Justice[20]

Despite the intents of the applicants to suggest a singular interpretation of Article 173 (now 230), based mainly on the following arguments, the ECJ confirmed the first instance Decision:

-         The nature and special features of the environmental rights that were under dispute. Since in the European Environmental Law, these rights are by essence common and shared, held by large number of indiscriminate individuals, which in practice will make impossible for any of them to challenge a measure of the Community.

-         The case-law of the Court and declarations of  Communitarian Bodies in  matters regarding environmental  issues, which have expressed that ‘environmental protection is “one of the Community's essential objectives”[21]

-         The inaccurate interpretation that has been given to Article 173 as its wording does not imply a closed and strict construction[22]. Fairly, it should be interpreted with the aim of protect environmental conditions and environmental interests that could be under prejudice. 

The Court stressed that the Decision of the Court of First Instance was aligned with the judicial precedent, and there were no different facts to merit a different application[23]. It also appointed that in ‘the circumstances of the present case those rights are fully protected by the national courts which may, if need be, refer a question to this Court for a preliminary ruling under Article 177 of the Treaty.’[24]

CONCLUSION

1. Certainly the Court of First Instance applied the famous (but also criticized) Plaumman test, held in the leading cases Plaumann & Co. v. Commission (Case 25/62)[25] and Marie-Therese Danielssson et al (T-219/95). As originally conceived[26], the mentioned test indicates:

‘Persons other than those to whom the 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 al other persons and by virtue of these factors distinguishes them individually just as in the case o the person addressed. In the present case the applicant is affected by the disputed Decision ’[27]

In Plaumman, the Court set a test in order to determine the locus standi of persons other than the addressees falling under Paragraph 4 or article 230 of the Treaty, that is, requiring them to have such particularities, or being in some way, differentiated from all the other persons, and by reasons of that fact, singled out in the same way as the original addressees.[28] 

2. It is to remark, moreover, that in Greenpeace v. Commission the Court of First Instance ----- obeying the settled case-law,  made clear (1)  that the Plaumman test must be applicable irrespective of the nature of the interest, environmental, economic or otherwise, and (2) that it is applicable whether the applicants are natural persons or organizations (ecologic or similar).

The approach that the CFI gave to the Plaumman test in Greenpeace is the strictest of the three that have being embraced by the court[29]. The first one, named (i) ‘infringement of rights or beach of duty’ granted locus standi to individuals with special concern that, like in Codorniu v. Commission[30], possessed rights that could be violated by the measure[31]. The second, called (ii) ‘degree of factual injury’ will concede standing on the grounds of individual concern determining by a large factual inquiry into the significance of the contested instrument for the applicant.[32] From this point of view, standing was conceded to the largest imported of a good object of a dumping duty (Extramet, C-358/98 ECR I-2501). Finally, the most commonly used approach[33] is the (iii) ‘pure Plaumann’, according to which the existence of factual injury will not be determinant, and, for instance, the circumstance of being the claimant the only producer of certain good, or the largest importer of a product will be immaterial. Greenpeace v. Commission fells into the frame of this third and severe approach[34].

Nevertheless, scholars and practitioners do not completely agree with the rigidity that arises after the Plaumann test and the ‘pure Plaumann approach’.  Scholars such as Craig and De Burca[35], and EU specialists, like Advocate General Jacobs, prefer a less strict policy.  The former puts forward that an ‘applicant is individually concerned by a Community measure where the measure has, or is liable to have, a substantial adverse effect on his interests’[36]; in his opinion, some of the advantages of this appraisal,  are[37]: applicants are granted with a true right of direct access to a court which can grant a remedy; the complex tests for admissibility is replaced for a simpler one that will turn the focus of the analysis towards the substance of the prejudice; it removes the anomaly under the current case-law that the greater the number of persons affected the less likely it is that effective judicial review is available; it will concur with the modern tendency of the case law to broad the scope of the judicial review facing the increase in the power of the Community bodies.

Also, the objections drawn up against this new perspective lack of fundament. Advocate General Jacobs explains, in that observation, that the wording of Article 230 does not exclude this viewpoint, that administrative and legislative efficiency cannot be a shield to reject judicial scrutiny and that the fear for an overload in the court is improbable due to the time-limits set up in Article 230.  At last, he points out that even though the case-law has stood for many years, ‘is now ripe for change’, it has revealed to be unstable in many cases, increasingly out of line with more liberal developments, the broad frame of the principle of effective judicial protection seems to be contrary to such narrow restriction on standing before the Community Courts.  Further, the Institute for Applied Ecology in ‘The Access to Justice: Final Report’ suggested, according to Greenpeace,  ‘that in every Member State individuals who can establish sufficient interest may bring legal proceedings against administrative decisions alleged to have been taken in breach of environmental rules. Moreover, a majority of Member States also allow environmental associations which are sufficiently representative of the interests of their members or which have been subject to some formal accreditation or registration to bring such actions.’[38] With the same effect, as properly quoted by Greenpeace in its appeal before the ECJ, ‘'Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.’[39]

Especially pertinent is the opinion of Ebbesson regarding the state of the right for standing in Environmental European Law, and the criticism it has observed:

‘The jurisprudence of the Court was outlined already in the 1960s--- before environmental issues were brought in to the EC Treaty--- on the basis of what is now Article 230(4) of the EC Treaty.  The posture of the Court, resulting in limited standing rights for individuals, was criticized already in the mid 70s for being neither in tune with developments  in various national legal systems nor as liberal as some federal-style legal systems. About a decade later, in a comprehensive study on Community environmental law, the authors also concluded that ‘access to individuals to the European Court of Justice is extremely restricted”’[40]

Everything indicates that few justifications remain for the ‘pure Plaumman’ approach, and that, by contrast, a less restrictive rationale for standing should be contemplated. For instance, the criteria of ‘legitimate interest’, proposed by the EC Fifth Environmental Action Programme[41],  that would allow environmental organizations, such as Greenpeace, to bring actions before the judiciary, appears more reasonable.

3. In its unwillingness to reconsider the case-law, the ECJ overestimated the possibility of having the environmental disputes referred to the ECJ through a request of preliminary ruling (supra Note 26) because this prerogative does not belong to individuals but to the National Courts.  This outlook is inconveniently long and complex, to the extent that it becomes insignificant or inexistent,[42] therefore, local remedies do not offer a suitable instrument of access to environmental justice for particulars and environmental associations.

4. In so far the judicial doctrine does not change, as confirmed in Greenpeace v. Commission, it is just about impossible for individuals and environmental organizations to ask, in environmental matters, for judicial review before the European Courts.  

BIBLIOGRAPHY

 CRAIG, Paul and DE BURCA, Grainne. EU Law. Text, cases and materials. Oxford University Press, third edition. 2003

 EBBELSON, Jonas, European Community, Access to Justice in Environmental Maters in the EU, Access a la justice en matiere d’environnement dans l’UE. Kluwer Law International.  The Hague. 2002

 European Court Of Justice

Case 231/82 Spijker v Commission [1983] ECR 2559

Case 246/81 Lord Bethell v Commission [1982] ECR 2277

Joined Cases 16 and 17/62, Confédération Nationale des Producteurs de Fruits and Others v. Council [1962] ECR 471.

Case 25/62 Plaumann v Commission [1963] ECR 95

Case C-313/90 CIRFS and Others v Commission [1993] ECR I-1125

Case 25/62, Plaumann & Co. v. Commission [1963] ECR 1995

C-321/95p, Stichting  Greenpeace v. Commission April  2 1998

Case C-198/91 Cook v Commission  [1993] (ECR I-2487).

 Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others v Commission  ECR 219 [1988]

European Court of First Instance

Case T-585/93 Stichting Greenpeace v Commission (ECR II-2205)