Legal challenge to Union decisions on ‘green’ issues

Date: 03/07/1997

By Michael Mann

GREENPEACE is hoping that a crucial test case currently making its way through the European Court of Justice could succeed where its attempts to persuade EU governments have failed.

Non-governmental organisations (NGOs) had called for the new EU treaty agreed in Amsterdam last month to make the European Courts more open to the public, but their pleas went unheeded.

Now Greenpeace is hoping to win the right for ordinary members of the public to challenge EU decisions which raise environmental concerns in the ECJ.

With the support of 16 Canary Islanders and two local environmental groups, it has brought a case against a decision by the Court of First Instance (CFI) to deny them the right to challenge the European Commission's 1993 decision to award 40 million ecu of EU funding towards the construction of two fossil-fuelled power stations in the Canaries.

Greenpeace's claims the funding decision highlights the hypocrisy of EU environment policy and hopes the case will open up the European legal system to all. But legal experts believe the latest challenge will go the same way as the first. “To me, it does not seem a terribly strong case. It is not so reeking of injustice that the Court will have to review its case-law,” said one expert.

Case-law on access to justice within the Union is largely based on the Plaumann case of 1963, in which the Court ruled that individuals could only challenge an EU decision if it affected them directly.

This formed the basis of the Commission's defence in the original case. Its lawyers claimed successfully that, to have legal standing, anyone bringing claims of environmental damage had to demonstrate they were “individually concerned” by a decision by proving they belonged to a “closed class” of people affected by it.

Greenpeace and its partners are challenging the situation where access to the courts is reserved for those wishing to defend their economic interests rather than environmental concerns.

They argue that “environmental rights form part of the European Community's legal order”, adding: “By their very nature, environmental rights are common and shared and it is therefore inappropriate to apply the 'closed class' criterion.”

Given that EU policy is increasingly geared to greater public participation in environmental issues, Greenpeace believes it is completely inconsistent to deny it the right to ensure that policies are being properly put into practice.

Ralph Hallo, of Dutch environmental group Stichting Natuur en Milieu, said: “Citizens have the right to appeal to their courts in every member state of the EU. What makes the Commission so separate and holy? If its decisions are defensible, it should be willing to defend them in court.”

The plaintiffs claimed the Directorate-General for regional policy (DGXVI) had violated funding regulations, releasing the money before environmental impact assessments had been completed. They also argued it was contradictory to ratify the UN Convention on climate change while spending European taxpayers' money on new sources of carbon dioxide.

Advocate-General Georges Cosmos is unlikely to deliver his opinion before late October.