Stichting Greenpeace and Environmental Public Interest Standing Before the European Community Judicature – Some Lessons from the Federal Court of Canada
(1998), 1 Cambridge Yearbook of European Legal Studies 269-306
20 Pages Posted: 7 Feb 2014
Date Written: 1998
Abstract
On April 2, 1988, three years after the ruling of the Court of First Instance, the European Court of Justice issued its appeal decision in the Stichting Greenpeace case. The court of First Instance had denied locus stand under Article 230(4) (Article 173(4)) of the EC treaty to Greenpeace, two local environmental groups and a series of individual applicants to challenge the decision of the European commission to continue providing Community structural funds under the European Regional Development Fund (ERDF) to Spain to build two power stations in the Canary Islands. The applicants had argued that the Commission had breached its duty to monitor compliance of the project with Community environmental law and policy, including environmental impact assessments required by Council Directive 85/337/EC and its duty to reduce or suspend funding to the project when it became clear that these had not been complied with. The European Council of Justice held, however, that the applicants had no standing to challenge the Commission's allegedly illegal decision.
Calls for liberated interpretation of Article 230(4) of the EC treaty, which sets out the standing requirements for individual applicants challenging decisions of community institutions, have emanated for many quarters. However in Stichting Greenpeace the European Court of Justice rejected any such change in the law. By contrast, the Federal Court has interpreted standing liberally in the context of public interest litigation to protect the environment, and it is submitted that, if the approach of the Federal Court of Canada had been followed by the European Court of Justice in Stichting Greenpeace, it is more likely that the applicants would have been granted standing to sue. It is the authors contention that although the context and role of the two Courts differ in many respects, that is overshadowed by their similarities. The differences that do exist are inadequate to explain the restrictive approach of the European Court of Justice to public interest environmental standing. The author will argue that more liberalized standing rules are justified in the European context for many of the same reasons that underpin the case law of the Federal Court of Canada.
In environmental law, these liberalized rules are not only justified but are also necessary. It is clear that the rules of standing in Article 230(4), as currently interpreted by the European Court of Justice, impede public access to environmental justice. Kramer states that from 1976 to 1996, nineteen environmental cases were submitted under Article 230; of these twelve (including Stichting Greenpeace) were brought by private applicants. Of these twelve, three were not decided at time of writing, three resulted in grant of standing to sue because they concerned Commission decisions addressed to the applicants or in which the applicants were expressly involved as interested parties, while standing was denied in the remaining six. This was so because they concerned measures of general application which private parties are ordinarily excluded from challenging. Kramer has argued that, under Article 230 as it presently stands, "public interest litigation in environmental matters before the European Courts is only available to EC institutions and to Member States". He also doubts whether, at the present time, "the public interest 'protection of the environment' is sufficiently safeguarded by the judicial system set up under the EC treaty". Given the less than perfect record of the Community institutions and Member States in enforcing environmental law, it is vital that this impediment is removed
Social and political culture, and prevailing ideas of democracy and constitutionalism, are determining factors in defining the role of courts and of citizens in a particular society.These roles both shape, and are revealed by, rules of locus standi, particularly in public interest litigation. The differing interpretations and application of the rules of environmental public interest standing in the European Court of Justice and the Federal Court of Canada confirm this. It will be illustrated that the approach of the European Court of Justice, which is based on the problematic Plaumann test, has failed to keep pace with developments in public interest standing and environmental law in other jurisdictions, and carries flawed theoretical justifications. The continued application of outdated and inappropriate standing tests inhibits the protection of European citizens in all areas of Community regulation, and has particularly severe ramifications in the environmental sector.
Keywords: Stichting Greenpeace, EC treaty, standing, public interest litigation, environment, protect, community institutions
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