Access to Justice for Natural and Legal Persons

The question of natural or legal persons’ access to justice can be set in a broader context of a human right to a decent environment.^{[1] [2]} Various versions of the latter are expressed in the constitutions of some countries. Within the EU a proposal to include ‘the right to a clean and healthy environment’ in the EU Treaty was made by the Commissioner for the Environment during the negotiations for the adoption of the Treaty of Amsterdam in 1996, but was not accepted by the Member States.69 Even today the TEU and the TFEU lack a general provision on such a right. However, the European Charter of Fundamental Rights, which is a basic EU document and according to Article 6 (1) TEU has the same legal value as the Treaties, contains one provision relating to environmental protection.

Its Article 37 states: ‘A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.’ Clearly, this provision does not speak of a right to a decent environment but sets out an obligation or at least a policy requirement for the EU. This should be compared with Article 31 of the Charter, which unequivocally declares: ‘Every worker has the right to working conditions which respect his or her health, safety and dignity.’

Lack of any individually justiciable right to a decent environment in the EU basic documents is not surprising since the mere inclusion of such a right, which is obviously imprecise and vague, may be of limited value if beneficiaries cannot effectively invoke it before courts.^{[3] [4]} Such inclusion does not necessarily improve an individual’s possibility to properly enjoy that right.

Despite the lack of a substantive general right to a good environment, the possibilities of natural or legal persons to claim their rights to a good environment through relevant legal procedural rules have developed considerably. Particularly relevant is the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters (Aarhus Convention)/¹ to which EU Member States and the EU itself are all parties. This convention contains procedural rights in the environmental field that can be invoked by individuals. The Court of Justice has held that provisions of the Convention are an integral part of the legal order of the EU/2 Its implementation has improved the standing of both individuals and environmental NGOs in EU Member States. However, following the principle of procedural autonomy, Member States still retain considerable power to shape the standing requirements. (See further section 7.5.)

As regards the right of natural and legal persons to bring an action before the Court of Justice, a general right exists with respect to an EU act that is addressed to them (usually a decision), or directly and individually concerns them (Art 263 (4) TFEU).⁷³ The origin of this right was Article 173 of the EEC Treaty (later Art 230 of the EC Treaty and presently Art 263 TFEU), which stipulates ‘Any natural or legal person may ... institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former’ (emphasis added).

The criterion of ‘individual concern’ was interpreted for the first time in Plaumann v Commission^7A- from 1963. In this case, the Court laid down what has become known as the Plaumann formula: for natural or legal persons other than those to whom an act (in this case a decision) is addressed to be individually concerned by that act, it has to affect 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’/5 This very restrictive interpretation of ‘direct and individual concern’ has made it almost impossible for individuals who are not addressees of an EU measure of general application to challenge it. The Plaumann formula has regularly been relied on in EU court practice to establish whether natural or legal persons other than those to whom an EU act is addressed have standing/⁶

The Treaty of Lisbon also introduced the possibility for natural and legal persons to bring proceedings against a regulatory act which is of direct, but not necessarily individual, concern to them and does not entail implementing measures (Art 263 (4) TFEU).77 In the Greenpeace case in 1998 the possibility for individuals to turn to the Court of Justice in a case with a clear environmental dimension was ^[5]

judged by the Court.^{[6] [7] [8]} The Commission had decided to grant Spain financial assistance for the construction of two power stations in the Canary Islands. The grant would be allocated over four years and could be reduced or suspended if it turned out that there had been irregularities. Local residents and environmental organisations informed the Commission that the Union Electrica de Canarias SA (Unelco) had embarked on the project without conducting an environmental impact assessment (EIA) under Directive 85/337/EEC. When Greenpeace Spain contacted the Commission it was informed that the Commission, although aware that Unelco had made no EIA, had continued to pay the financial assistance.

Greenpeace and sixteen individuals and environmental organisations brought an action against the Commission under the current Article 263 TFEU before the Court of First Instance (now General Court)/⁹ The Court held that

the existence of harm suffered or to be suffered, cannot alone suffice to confer locus standi on an applicant, since such harm may affect, generally and in the abstract, a large number of persons who cannot be determined in advance in a way which distinguishes them in the same way as the addressee of a decision/⁰

The applicants’ status as local residents, fishermen, or farmers did not distinguish them from all the people who live or practise some business in the concerned areas.8¹ The Court also dismissed the argument that an organisation could have locus standi when the people it represents are not personally affected/2

The judgment was appealed against before the Court of Justice, which agreed that the appellants were not individually affected by the legal act. Furthermore, the Court noted, among other things, that Greenpeace had brought proceedings against the administrative authorisations granted to Unelco by national courts and that individuals’ rights under Directive 85/337/EEC were fully protected by these courts, which may request a preliminary ruling from the Court of Justice/³ The Court of Justice has subsequently made it clear that the fact that an individual is debarred due to national procedural rules from bringing an action before national courts regarding a review of the contentious measures of general application does not in itself confer a right to sue for annulment directly before the Court of Justice/⁴

As noted previously, the Court of Justice considers national courts’ possibility to request a preliminary ruling on the validity of a Community act as a mechanism for reviewing the legality of such acts in the same way as an action for annulment/5 As conditions for the individual to initiate an annulment action under Article 263 TFEU are strict, a preliminary ruling is often the only real possibility to bring about a judicial review of an act’s validity. At the same time, the ability to bring a judicial review by a preliminary ruling depends on individuals’ access to justice and other procedural requirements in each Member State. The assumption is that in enforcing EU law, Member States apply their own procedural rules, including principles relating to the right of individuals to bring an action. This accords with the principle of procedural autonomy of Member States. However, since 2009 there has been an explicit requirement for Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law (Article 19 (1) TEU). This reflects the practice of legal protection that the Court had previously developed. The Court has, inter alia, ruled that the national procedures relating to the application of EU law should not be less favourable than those governing similar domestic situations (principle of equivalence) or render virtually impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness).⁸⁶

As mentioned in Chapter 1, a Member State can be liable to indemnify an individual suffering damage caused by incorrect application of EU law, according to the Francovich principle^⁷ According to the Court ofJustice, a right to reparation exists if three conditions are met, namely that the rule infringed is intended to confer rights on individuals, that the breach is sufficiently serious, and, finally, that there is a direct causal link between the breach of the Member State’s obligation and the damage sustained by the injured parties.88

Provisions in secondary EU law on access to justice in the Member States and access to justice regarding EU institutions and bodies are discussed in section 7.5.

Further Reading

GJ Harryvan and JH Jans ‘Internal Review of EU Environmental Measures’ (2010) 2 Review of European Administrative Law 53—65

M Hedemann-Robinson Enforcement of European Union Environmental Law (Routledge, 2015)

P Lasok, T Millett, and A Howard Judicial Control in the EU, Procedures and Principles (Oxford University Press, 2008)

K Lenaerts and JA Gutierrez-Fons ‘The General System of EU Environmental Law Enforcement’ (2011) 30 Yearbook of European Law 3—41

R O’Gorman ‘The Case for Enshrining a Right to Environment in EU Law’ (2013) 19 European Public Law 583—604

P Wenneras The Enforcement of EC Environmental Law (Oxford University Press, 2007) ^[9]

• [1] For comprehensive analysis of a general right to environmental protection in the EU, see N deSadeleer EU Environmental Law and the Internal Market (Oxford University Press, 2014) 94—125; seealso P Z Eleftheriadis ‘The Future of Environmental Rights in the European Union’ in P Alston et al(eds) The EU and Human Rights (Oxford University Press, 1999) 529—49.
• [2] G Van Calster and K Deketelaere Amsterdam, the Intergovernmental Conference and Greeningthe EU Treaty’ (1998) 7 European Environmental Law Review 12—25, 25.
• [3] de Sadeleer EU Environmental Law and the Internal Market (n 68) 101.
• [4] (Aarhus, 25 June 1998) 2161 UNTS 447.
• [5] 2 Case C-240/09 Lesoochrandrske zoskupenie ECLI:EU:C:2011:125, para 30. 73 Decisions addressing one or more individuals are rare in the environmental field. Where decisionsare used at all, they are normally directed to the Member States. An exception is a decision adoptedaccording to Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents [2001] OJ L 145/43. 74 Case 25/62 Plaumann ECLI:EU:C:1962:32. 75 Ibid, p 107. 76 See, eg, Case C-298/00 P Italy v Commission ECLI:EU:C:2004:234, para 36; Case C-167/02P Rothley and Others ECLI:EU:C:2004:193, para 25; Case C-50/00 P Union de Pequenos AgricultoresECLI:EU:C:2002:462, para 36; Joined Cases C-71/09 P, C-73/09 P, and C-76/09 P Comitato «Veneziavuole vivere» ECLI:EU:C:2011:368, para 52. 77 The Court of Justice interpreted the concept of ‘regulatory act’ in Case 583/11 P Inuit TapiriitKanatami and Others ECLI:EU:C:2013:625. The case was about the application of a number of sealhunters for annulment of Regulation (EC) No 1007/2009 on trade in seal products. The Court concluded that ‘regulatory act’ does not encompass legislative acts (para 61).
• [6] Case C-321/95 P Stichting Greenpeace Council and Others ECLI:EU:C:1998:153.
• [7] Case T-58 5/93 Greenpeace International and Others ECLI:EU:T:1995:147.
• [8] Ibid, para 51. 81 Ibid, para 54. 82 Ibid, para 60. 83 Case C-321/95 P Stichting Greenpeace (n 78), paras 28—32. 84 Case C-50/00 P Union de Pequenos Agricultores (n 76), para 43. 85 Joined cases C-143/88 and C-92/89 Zuckerfabrik (n 65), para 18.
• [9] 6 CaseC-201/02 Wells ECLI:EU:C:2004:12, para 67. 87 Named after Joined cases C-6/90 and C-9/90 Francovich and Others ECLI:EU:C:1991:428,para 11. 88 On the significance of the Francovich principle in the environmental field, see Wenneras TheEnforcement of EC Environmental Law (n 26) 150.