Access to Justice Against European Community Institutions - Using Environmental Litigation as a Focal Point
Conference on Environmental Rghts in Europe after the UN/ECE Aarhus Convention, IMER, K.U. Leuven, August 30, 2003
8 Pages Posted: 24 Nov 2012
Date Written: August 30, 2003
Rules on access to justice against EC Institutions, are currently included in Article 230 of the EC Treaty. This Article, previously Article 173 EC, distinguishes - as readers may be aware - between two groups of applicants. Firstly, so-called "privileged applicants", are included in paragraphs 2 and 3 of the Article. These include the Member States, the Council, and the Commission; as well as the European Parliament, the Court of Auditors, and the European Central Bank. The latter 3 Institutions may only bring an action "for the purpose of protecting their prerogatives". Secondly, what is now the fourth - but used to be the second - paragraph of Article 230 EC, deals with the so-called "non-privileged" applicants. And this is the group of applicants with whom this contribution is most concerned.
One jurisprudential development with respect to privileged applicants however is worth noting from the start. This is significant vis-à-vis the environmental litigation which is the subject of most contributions in this volume, in that it shows a pro-active, innovative law-making European Court of Justice (ECJ), in stark contrast - arguably - with the Court's approach vis-à-vis non-privileged applicants. The development the author wishes to refer to, is a Case held in 1990, Parliament v Council. The European Parliament was at that time not included in the list of privileged applicants of Article 230 EC. Yet this did not stop the Court to intervene in a teleological manner. The author should like to refer in particular to par. 26 of that judgment: "The absence in the Treaties of any provision giving the Parliament the right to bring an action for annulment may constitute a procedural gap, but it cannot prevail over the fundamental interest in the maintenance and observance of the institutional balance laid down in the Treaties establishing the European Communities."
This par. shows the stark contrast between the judicial activism employed by the Court vis-à-vis privileged applicants, and the absence of such activism vis-à-vis non-privileged applicants.
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