University of Amsterdam – LLM Thesis
Individual access to justice in climate change litigation under Article
263(4) TFEU
Magdalena Maria Zaczynska
Supervisor: Professor Maria Weimer
24-07-2020
e-mail: zaczynska.magdalena@gmail.com
Student number: 12787450
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TABLE OF CONTENTS
ABSTRACT ... 2
INTRODUCTION ... 3
Methodology ... 6
Chapter I – Individual access to justice at the CJEU ... 7
General framework ... 7
Article 263(4) TFEU – standing requirements and their narrow interpretation ... 8
Individual concern ... 8
Direct concern ... 9
Regulatory act ... 10
Direct concern and no implementing measures ... 11
Reasons of the CJEU – interpretation of individual concern ... 12
Chapter II – Article 263(4) TFEU and environmental litigation ... 16
Direct concern, environment and fundamental rights ... 16
Aarhus Convention and its role on the Member States level ... 20
Aarhus Convention and its role on the EU level ... 21
The Aarhus Compliance Committee – two warnings ... 23
Answer of the Commission ... 24
Chapter IV – Collective action ... 26
CONCLUSION ... 28
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ABSTRACT
This work delves into the issue of individual access to justice in climate change litigation under Article 263(4) TFEU. It focuses particularly on European Union and international standards regarding access to justice in climate cases, as well as possible alternatives to action under Article 263(4) TFEU. The introduction sets climate litigation in the context of some important societal and legal developments. It refers to examples of environmental lawsuits on both national and EU level, presenting different approaches to climate actions. The first chapter sets out the general framework of individual access to justice at the CJEU. It then analyses the standing requirements under Article 263(4) TFEU and their interpretation by the Court, in order to prove their narrow application. The last part of the chapter involves a discussion of reasons behind the stringent reading of individual concern, as the requirement that often constitutes the main obstacle for individual applicants. It also engages in a critical analysis of the Court’s arguments to eventually prove that they are not fully convincing. The objective of the second chapter is to place the problematic issue of standing in the context of environmental litigation. The discussion shows that the standing criteria, when applied in environmental cases, result in particularly harsh outcomes for individual applicants. Further, Article 263(4) TFEU is analysed in the light of EU environmental standards and international standards and obligations. That investigation demonstrates the need for, or in some cases a duty to, revise the approach to standing criteria in the context of climate change litigation. The last chapter focuses on collective action as a potential alternative to Article 263(4) TFEU, tailored to the specific nature of climate litigation.
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INTRODUCTION Research question
Climate change is currently one of the biggest challenges for the modern world. High temperatures, rapidly changing weather conditions and rising sea levels have become a real and imminent threat. The effects of this global crisis are becoming increasingly visible in all parts of the world and directly influence lives of individuals. This further leads to new cases dealing with the impact of climate crisis. Although climate litigation is not a new trend, some European courts now recognise its increasing significance and the need for change in approach. Amongst many cases, one received particular attention and later served as an inspiration for applicants across Europe, in multiple cases brought against governments.1 In Urgenda
Foundation v The State of the Netherlands2 (the Urgenda case), a non-governmental
organisation (NGO), representing almost one thousand Dutch citizens, brought a case against the Government, alleging that it had set too low standards for reducing greenhouse gas emissions. The case reached the Supreme Court, which upheld previous decisions in favour of the applicants.3 However, the reasoning of the Supreme Court was based on arguments that shed a new light on environmental litigation in the Netherlands and the fact that the final judgment has been translated to English may suggest that it intended to reach out to international audience.4 The Court relied on the right to life and the right to private and family
life (Articles 2 and 8 of the European Convention of Human Rights (ECHR)). With the rapidly advancing climate changes and their impact, it is unsurprising that claimants begin to raise questions regarding human rights. The European Court of Human Rights (ECtHR) recognises that environmental pollution can interfere with, for instance, the right to private and family life.5 The United Nations Commission on Human Rights (UNCHR) recently went as far as to say that climate crisis will impact upon ‘the ability of present and future generations to enjoy the right to life’.6 In Urgenda, the Supreme Court not only aligned to the opinion that human
1 Examples of cases pending before national courts include: VZW Klimaatzaak v Kingdom of Belgium
& Others (2015) and Friends of the Irish Environment v Ireland (2017).
2 Urgenda Foundation v The State of the Netherlands, District Court of The Hague (24 June 2015).
3 The State of the Netherlands v Urgenda Foundation, The Supreme Court of the Netherlands (20 December 2019).
4 Suryapratim Roy and Edwin Woerdman, ‘Situating Urgenda v the Netherlands within comparative climate change litigation’ (2016) 34 Journal of Energy & Natural Resources Law 165, 166.
5 López Ostra v Spain, no. 16798/90, 9 December 1994.
6 General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights on the right to life adopted by the UN Human Rights Committee on 30 October 2018, para 62.
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rights issues play a role in the context of climate litigation, but also that the Netherlands is legally obliged to make sure that the negative effects of climate change are appropriately reduced to avoid interference with human rights. The fact that the threat was not imminent, and would only materialise in the future, was not relevant. The Urgenda case is an example of how a national court may appreciate the increased impact of climate change upon individual lives and the high probability of future interference with human rights.
The imminence of the climate crisis directs also the actions of the European Union (EU). The recently published Green Deal for Europe7 presents the Community’s ambition to achieve ‘climate neutrality by 2050’.8 This goal is to be reached, to a great extent, by lowering
greenhouse gas emissions. EU acts set precise aims so the Community’s progress can later be verified. However, the goals proposed by the EU are not always considered to be ambitious enough. In 2018, the European Parliament and the Council enacted two Regulations9 and a Directive10 dealing with reduction of greenhouse gas emissions. A group of families from various European and other states, brought a case for annulment of those acts under Article 263 of the Treaty on the Functioning of the European Union (TFEU) in the case of Carvalho
and Others v Parliament and Council11 (The People’s Climate Case; Carvalho case). Article
263 TFEU, which shall later be discussed in more detail, enables certain actors to challenge acts of EU institutions. The applicants in The People’s Climate Case were concerned mainly by the EU’s goal to ‘reduce greenhouse gas emissions by 2030 by 40% compared to 1990 levels’.12 They argued that the target was too low and it infringed their human rights, such as
the right to life (Article 2 of the Charter of Fundamental Rights of the European Union (the Charter)) or the right to the integrity of the person (Article 3 of the Charter). They also provided
7 Communication From the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions – The European Green Deal, Brussels 11 December 2019 COM(2019) 640 final.
8 ibid 4.
9 Regulation (EU) 2018/841 of the European Parliament and of the Council of 30 May 2018 on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework, and amending Regulation (EU) No 525/2013 and Decision No 529/2013/EU [2018] OJ L156/1 and Regulation (EU) 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013 [2018] OJ L156/26.
10 Directive (EU) 2018/410 of the European Parliament and of the Council of 14 March 2018 amending Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, and Decision (EU) 2015/1814 [2018] OJ L76/3.
11 Case T-330/18 Carvalho and Others v Parliament and Council ECLI:EU:T:2019:324. 12 Carvalho (n 11) [18].
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evidence of damage that climate change had caused them so far. The General Court, in its relatively short judgement, began with the issue of the applicants’ standing. Article 263(4) TFEU sets out rules applicable to individuals who wish to bring an action for annulment. Those who are not addressees of the acts they wish to challenge, need to meet a set of cumulative requirements. In The People’s Climate Case, the Court looked at whether the challenged acts could be of direct and individual concern to the applicants. The General Court referred to its well-established case law and interpretation of Article 263(4) TFEU. It recalled the case of
Plaumann v Commission13 and reminded that a person can be individually concerned by the challenged act only if the act affects him in a peculiar way, different to any other person. Because climate change has widespread effects and can impact anyone’s life and rights, the Court did not agree that the applicants were individually concerned. Therefore, there was no need to look at direct concern. The General Court also expressed its main concern, namely that allowing standing in such cases would open access to anyone and undermine the meaning of Article 263(4) TFEU and the action for annulment. This case exemplifies how difficult it can be for applicants to satisfy standing requirements under Article 263(4) TFEU in cases concerning environment and human rights. The applicants in Carvalho noted that the
Plaumann approach weakens judicial protection guaranteed by Article 47 of the Charter.
However, the General Court rejected this opinion and referred to other means of redress that guarantee complete judicial protection, such as Article 276 TFEU (the preliminary reference procedure) and Article 277 TFEU (the plea of illegality).14 The argumentation of the Court
raises questions as to whether these legal remedies are in fact practical alternatives for an action for annulment and contribute to an effective judicial protection. The claimants also referred to the obligations flowing from the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters15 (the Aarhus Convention). They claimed that the Convention requires the EU to enable easy access to justice for individuals in cases involving environmental matters, which is not guaranteed by Article 263(4) TFEU. Nonetheless, the Court did not refer to that argument. Therefore, the question of what is the meaning of those international obligations for Article 263(4) TFEU and environmental litigation, remains unanswered. Carvalho is a case parallel to the case of
13 Case 25/62 Plaumann & Co. v Commission ECLI:EU:C:1963:17. 14 Carvalho (n 11) [32].
15 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998.
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Urgenda. Both concerned greenhouse gas emissions and goals that were considered not
ambitious enough by the applicants. However, they were adjudicated on two different levels and resulted in very different outcomes. While the Netherlands allows for collective action, it is not common at the EU level. Therefore, applicants have to rely on Article 263(4) TFEU and individual interest if they want to challenge acts of European institutions. In Urgenda, the Supreme Court aligned to the opinion that widespread environmental damage can give rise to human rights infringements. It agreed that predictable future interference with those rights of a collective is enough to win the case. At the same time, in Carvalho, the fact that anyone’s rights can be affected by climate change, meant that the applicants could not be distinguished as individually concerned, although they had evidence of such impact. The outcome of
Carvalho raises one crucial question: Does the Court of Justice of the European Union (CJEU)
interpret Article 263(4) TFEU in a way that is compatible with the European Union’s (EU) internal standards and international obligations regarding individual access to justice in climate change litigation and are there any alternatives to individual action?
Methodology
In order to answer the main research question, as set in the introduction, this thesis is going to first provide a general framework of individual access to justice at the CJEU. Further, it is going to focus specifically on Article 263(4) TFEU. Standing requirements, as embedded in this provision, will be analysed in turn. The analysis is going to focus on the interpretation of the standing criteria by the CJEU, in order to show their narrow application. Next, the reasons behind the Court’s approach to individual concern, the criterium that proved to be the main obstacle for the applicants in Carvalho, will be explained and evaluated. The second chapter will place the discussion in the context of environmental litigation. It will analyse the implications of applying the well-established interpretation of direct and individual concern to environmental litigation. Third chapter is going to look at relevant EU standards and international standards that constitute convincing arguments in favour of revising Plaumann. This part will also aim to analyse international obligations flowing from the Aarhus Convention and their implementation on both Member States and EU level. It will look at problems with non-compliance and the dialogue between the Aarhus Compliance Committee and the Commission. The last chapter will discuss collective action as a solution tailored specifically to the needs of climate change litigation.
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Chapter I – Individual access to justice at the CJEU General framework
The EU legal system enables individuals to gain access to justice at the CJEU through various mechanisms. The applicants in Carvalho tried to argue that the current interpretation of the standing requirements under Article 263(4) TFEU diminishes access to an effective remedy (Article 47 of the Charter). However, the Court rejected that opinion and reminded that the EU offers a ‘complete system of legal remedies’.16 This system consists of Article 267 TFEU and Article 263 TFEU, in conjunction with Article 277 TFEU.17 According to Article 267 TFEU, the Court of Justice may give preliminary rulings regarding ‘the interpretation of the Treaties’ and ‘the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union’. The Article also specifies that lower national courts ‘may’ refer their questions in case of doubt and higher courts, whose decisions cannot be appealed, ‘shall’ ask the CJEU for its opinion. Therefore, there is an expectation that higher courts, whose decisions are final, will make use of the procedure. If the question of validity of an EU measure arises in national proceedings and the national court refers it to the CJEU, the applicant can indirectly accesses judicial review of the EU act. Nonetheless, the details of this procedure shall later be discussed in order to see whether it really is an alternative to an action for annulment, as the Court seems to suggest in Carvalho. Another element of the ‘complete system of legal remedies’, that is also the main focus of this thesis, is Article 263 TFEU. Pursuant to Article 263(1) TFEU, the CJEU ‘shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank’. Reviewable acts also involve ‘acts of the European Parliament and the European Council’ and ‘of bodies, offices or agencies of the Union’. All acts must be ‘intended to produce legal effects vis-à-vis third parties’, meaning that they need to be ‘intended to have legal effects’.18 According to Article 263(2) TFEU, the grounds for challenge involve ‘lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers’. The applicants listed in Article 263(2) TFEU can challenge any acts, without having to satisfy additional requirements. On the other hand, in line with Article 263(4) TFEU, ‘natural or legal person’ can bring an action for annulment against an act of which he is an addressee
16 Carvalho (n 11) [53]. 17 ibid [53].
18 Case C-22/70 Commission of the European Communities v Council of the European Communities ECLI:EU:C:1971:32 [42].
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or of an act that is ‘of direct and individual concern to them’. Additionally, an individual challenge ‘a regulatory act which is of direct concern to them and does not entail implementing measures’ and that option was added by the Treaty of Lisbon.19 The last element of the ‘complete system of legal remedies’ is Article 277 TFEU. It can be used only in connection with Article 263 TFEU and allows party to the proceedings to claim illegality of a generally applicable act that was enforced by the act challenged in the action for annulment.20 In essence, the provision ensures that, if the original act is illegal, any acts that are used to enforce it are also illegal. It is direct but not independent means of challenging EU acts. Similarly to the preliminary reference procedure, it is going to be discussed later as an alternative to the action for annulment. Article 263(4) TFEU is crucial for individuals seeking redress at the CJEU and, in cases such as Carvalho, it is the interpretation of Article 263(4) TFEU that precludes a successful action for annulment.
Article 263(4) TFEU – standing requirements and their narrow interpretation
• Individual concern
A person who is not an addressee of a certain decision, needs to be individually concerned. The first, and still relevant, interpretation of individual concern can be found in the case of
Plaumann & Co. v Commission. The Court of Justice stated that non-addressees are
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 all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed.’21
Moreover, a person cannot be individually concerned if there is a chance that, at some point in the future, someone else will be similarly affected because of being in the same circumstances or having the same attributes.22 In Plaumann, the importer of clementines, was not individually concerned by the Commission’s decision maintaining custom duties on imports. That was because, according to the Court, anyone could join the same business at any time in the future.23
19 Koen Lenaerts, ‘The Contribution of the European Court of Justice to the Area of Freedom, Security and Justice’ (2010) 59 International and Comparative Law Quarterly 255, 265.
20 René Barents, Remedies and Procedures Before the EU Courts (2nd edn, Wolters Kluwer 2020), chapter 7(3).
21 Plaumann (n 13) 107.
22 Plaumann (n 13) 107.
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Once the test was applied in The People’s Climate Case, the applicants were also not granted standing. The Court concluded that anyone could be similarly affected by climate change, either now or later. This case proves that human rights issues are not relevant when it comes to standing, even if applicants can provide evidence of concrete infringements. It therefore depicts the formalistic nature of the test, widely criticised by academics.24 Despite all critical opinions, the CJEU has consistently applied Plaumann for almost sixty years. Justifications for the Court’s approach and their evaluation shall be provided later in the thesis.
• Direct concern
Another requirement is direct concern. For this condition to be satisfied, there must be a change in the legal situation of the applicant.25 Furthermore, the act that is being challenged needs to ‘leave no discretion to the addressees […] who are entrusted with the task of implementing it’26 and the process needs to be ‘purely automatic’.27 The meaning of direct concern and its
two sub-requirements is rarely discussed by academics who consider it to be ‘relatively straightforward’.28 Moreover, the CJEU is also unlikely to engage in a discussion about it
because individual concern usually receives all attention.29 That was also the case in Carvalho.
Since the applicants were not individually concerned, there was no need to look at direct concern. However, this requirement also has quite narrow interpretation. First of all, under the current test, directives might be difficult to challenge since it is only possible ‘where the effects of the directive are automatic or where the member states are expressly authorised to act in a particular manner’.30 Accordingly, not all directives can be subject to the action for annulment.
When a Member State has some, even very little, discretion and actually uses it, the original directive can no longer be challenged. Also, it is for the court to decide whether the change of
24 Albertina Albors-Llorens, ‘The Standing of Private Parties to Challenge Community Measures: Has the European Court Missed the Boat?’ (2003) 62 The Cambridge Law Journal 72, 77.
25 Joined cases T-172/98, T-175/98 to T-177/98 Salamander AG, Una Film "City Revue" GmbH,
Alma Media Group Advertising SA & Co. Partnership, Panel Two and Four Advertising SA, Rythmos Outdoor Advertising SA, Media Center Advertising SA, Zino Davidoff SA and Davidoff & Cie SA v European Parliament and Council of the European Union ECLI:EU:T:2000:168, [52].
26 ibid. 27 ibid.
28 Mariolina Eliantonio, ‘Towards An Ever Dirtier Europe? The Restrictive Standing Of
Environmental NGOs Before the European Courts And the Aarhus Convention’ (2011) 7 Croatian Yearbook of European Law and Policy 69, 72.
29 Albors-Llorens (n 24) 75.
30 Steve Peers and Mario Costa, ‘Court of Justice of the European Union (General Chamber), Judicial Review of EU Acts after the Treaty of Lisbon; Order of 6 September 2011, Case T-18/10 Inuit Tapiriit Kanatami and Others v. Commission & Judgment of 25 October 2011, Case T-262/10 Microban v. Commission’ (2012) 8 European Constitutional Law Review 82, 85.
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the applicant’s situation constitutes an infringement of his or her ‘legal interest’.31 And the
concept of ‘infringement of legal interest’, has never been analysed in-depth by the CJEU.32
The Court has also never explained why the legal situation of an applicant needs to be altered.33 One of very few explanations states that there must be impact on ‘the rights or obligations’34 or ‘the exercise of those rights’.35 Therefore, direct concern, although often overlooked, also
has narrow application.
• Regulatory act
Following the Treaty of Lisbon, Article 263(4) TFEU was extended and now enables an individual to bring an action:
‘against a regulatory act which is of direct concern to them and does not entail implementing measures’.
This change was an attempt to answer the criticism and refine the ‘unsatisfactory’ scope of the Article.36 An applicant who wants to challenge a regulatory act does not need to show
individual concern. Therefore, it would seem that the new criteria is easier to meet and the access to justice has been improved. Nonetheless, the judicial interpretation of the new limb of Article 263(4) TFEU proves to be rather narrow. When the Treaty of Lisbon was coming into force, the notion of a ‘regulatory act’ was new and could not automatically be read as synonymous with either a ‘legislative act’ or a ‘non-legislative act’.37 However, the General
Court in Inuit Tapiriit Kanatami and Others v European Parliament and Council of the
European Union38, established that regulatory acts are ‘all acts of general application apart
from legislative acts’.39 The reasoning was based on various arguments. First of all, Article
31 Giorgio Monti, Damian Chalmers and Gareth Davies, European Union Law (2nd edn, Cambridge University Press 2010) 417.
32 Ludwig Krämer, ‘Access to Environmental Justice: the Double Standards of the ECJ’ (2017) 14 Journal for European Environmental & Planning Law 159, 166.
33 Ludwig Krämer, ‘Climate Change, Human Rights and Access to Justice’ (2019) 16 Journal for European Environmental & Planning Law 21, 29.
34 Case C-362/06 P Sahlstedt and Others v Commission ECLI:EU:C:2009:243 [54]. 35 ibid.
36 Christoph Werkmeister, Stephan Potters and Johannes Traut, ‘Regulatory Acts within Article 263(4) TFEU–A Dissonant Extension of Locus Standi for Private Applicants’ (2011) 13 Cambridge Yearbook of European Legal Studies 311, 313.
37 Haakon Roer-Eide and Mariolina Eliantonio, 'The Meaning of Regulatory Act Explained: Are There Any Significant Improvements for the Standing of Non-Privileged Applicants in Annulment Actions' (2013) 14 German Law Journal 1851, 1856.
38 Case T-18/10 Inuit Tapiriit Kanatami and Others v European Parliament and Council of the
European Union ECLI:EU:T:2011:419.
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263(4) TFEU refers to ‘acts’ and later to ‘regulatory acts’. Therefore, the concept of a ‘regulatory act’ should be read more narrowly than the notion of an ‘act’, as formulated in the first paragraph of Article 263 TFEU and then reinstated in paragraph four.40 The third limb does not add another option to challenge all acts of general application but allows to bring an action against regulatory acts that belong to a ‘more restricted category’.41 Further, the Court
also relied on a historical argument. In the initial version of the Treaty establishing a Constitution for Europe, the drafters of Article III-365 wanted to exclude legislative acts from the concept of regulatory acts.
• Direct concern and no implementing measures
The new limb added by the Lisbon Treaty requires individuals to be directly concerned by the regulatory acts they wish to challenge. Furthermore, these acts must not include implementing measures. As it is clear from the discussion above, the concept of a regulatory act has been interpreted narrowly. The two requirements following it has also not been used to develop a broader scope for Article 263(4) TFEU. Regarding direct concern, the Court established that it should not be applied more strictly than usual.42 At the beginning, the CJEU did not exclude a
possibility of a more lenient interpretation but later kept on applying the traditional test.43 Accordingly, all the problems associated with direct concern, as analysed at the beginning, are still relevant post-Lisbon. For a person to be directly concerned, the challenged act must have automatic effects, must not involve intermediate rules or leave discretion for implementation. The new limb of Article 263(4) TFEU additionally requires the regulatory act to not ‘entail implementing measures’. Although very similar, the two conditions have been considered separately by the CJEU.44 This has produced some confusing results, for instance in Stichting
Woonpunt and Others v Commission45. The Commission requested the Netherlands to introduce some changes to an aid scheme offered to 'Wocos' and it later approved the proposed changes in its Decision that also required the country to finally introduce them. The organisations challenged that Decision and brought the matter in front of the CJEU. The Court first said that the new scheme was going to be introduced by national law, suggesting that it
40 ibid [42]-[43]. 41 ibid [43].
42 Case T-262/10 Microban International and Microban (Europe) v Commission ECLI:EU:T:2011:623 [32].
43 Peers and Costa (n 30) 95.
44 Michael Rhimes, ‘The EU Courts stand their ground : why are the standing rules for direct actions still so restrictive?’ (2016) 9 European Journal of Legal Studies 103, 127.
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involved implementing measures that would in turn produce legal effects.46 At the same time,
the Court decided that the applicants were directly concerned because the Netherlands was bound to introduce the new rules, automatically and without exercising any discretion, from the moment the Decision was taken.47 Therefore, the Court came to an illogical conclusion that the introduction of new rules was automatic and at the same time involved implementing measures.48 Furthermore, even purely ‘mechanical’ actions that are required by EU acts and undertaken by the Member States amount to implementing measures.49 For instance, granting certificates on the basis of a Regulation qualifies as an implementing measure.50 It is not clear what was the intention of the drafters of the Treaty but with two provisions being so similar, it is likely that the new phrase was just a clarification of the concept of direct concern.51
Reasons of the CJEU – interpretation of individual concern
The analysis above proves that standing requirements are defined narrowly. Although the Treaty of Lisbon introduced another way of challenging EU acts, it is available in very limited circumstances. Therefore, it is difficult to see it as a significant improvement, especially for applicants such as those in Carvalho, challenging legislative measures. It is still individual concern that poses the most problems. Therefore, the reasons behind the CJEU’s approach to individual concern shall be analysed in this section.
In Carvalho, the General Court argued that to interpret individual concern less strictly would result in ‘rendering the requirements of the fourth paragraph of Article 263 TFEU meaningless and of creating locus standi for all’.52 That would certainly cause a practical difficulty for the
Court, which would have to deal with a floodgate of cases. Also, it would have impact on the effective functioning of the EU institutions, whose acts could be easily challenged by all individuals. In cases such as Carvalho, applicants would gain access to collective redress, which is not available as a way of challenging acts of the EU institutions. But most importantly, any departure from the well-established interpretation could mean going against the intentions of the Member States. As it has already been mentioned, the addition of regulatory act by the Treaty of Lisbon aimed at answering the criticism regarding access of individuals to an
46 ibid [52]. 47 ibid [73]-[74].
48 Rhimes (n 44) 131-132.
49 Case C-456/13 P T & L Sugars and Sidul Açúcares v Commission ECLI:EU:C:2015:284 [40]-[41]. 50 ibid.
51 Peers and Costa (n 30) 96. 52 Carvalho (n 11) [50].
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effective remedy. Member States did not choose to change the wording of Article 263(4) TFEU and remedy the Plaumann interpretation. Therefore, the Court’s persistence in applying
Plaumann is unsurprising. Member States’ omission can be perceived as an expression of an
intention to keep the well-established interpretation of direct and individual concern. Nonetheless, it is arguable whether any alternative interpretation would render the conditions from Article 263(4) TFEU ‘meaningless’ and would excessively lower the threshold to access the Court. Also, omission of the Member States does not need to be read as a definite signal that the Court cannot attempt alternative interpretation. Before the Treaty of Lisbon, there have been one significant attempt to give individual concern a different meaning. Advocate General Jacobs, in his Opinion53 in Unión de Pequeños Agricultores (UPA) v Council54, suggested that an applicant should be individually concerned if the challenged act produces or can produce ‘substantial adverse effect on his interests’.55 The current approach to individual concern results
in a paradox whereby the more people is affected by an act, the less protected they are.56 The ‘substantial adverse effect’ test is much more flexible but also limited by the word ‘substantial’. Nonetheless, the Court of Justice did not follow the ideas of Advocate General Jacobs and reaffirmed its traditional approach in UPA. However, these developments cannot be ignored. Although the fact that the Lisbon Treaty did not remedy Plaumann is a convincing argument for the Court to still follow it, the CJEU still needs to guard access to justice. Plaumann can stand as longs as there is a ‘complete set of legal remedies’. As early as in 1986, the CJEU, for the first time suggested that the European Union (EU) is ‘based on the rule of law’.57 Access
to justice and effective remedy are undeniably key elements of this concept and receive strong protection from the CJEU.58 Accordingly, the Court would not allow a rigorous approach to Article 263(4) TFEU if it was not convinced that there is a ‘complete system of remedies’. But are the alternative remedies, mentioned in Carvalho, truly alternatives in practice? Article 267 TFEU regulates the operation of the preliminary reference procedure. It involves a dialogue between national Courts and the CJEU, leaving little space for individual applicants. They cannot decide if and what questions will be referred.59 Even the highest national courts, which
53 Case C-50/00 P Unión de Pequeños Agricultores v Council ECLI:EU:C:2002:197, Opinion of AG Jacobs.
54 Case C-50/00 P Unión de Pequeños Agricultores v Council ECLI:EU:C:2002:462. 55 Opinion of AG Jacobs in UPA (n 53) [60].
56 ibid [59].
57 Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament ECLI:EU:C:1986:166 [23]. 58 Pech L, ‘‘A Union Founded on the Rule of Law’: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’ (2010) 6 European Constitutional Law Review 359, 370. 59 Opinion of AG Jacobs in UPA (n 53) [102].
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‘shall’ seek the CJEU’s opinion in case of doubt, can avoid it, by relying on certain exceptions. The obligation to refer ceases to exist if the question is not crucial for the case in hand60, when
the correct interpretation is ‘obvious’61 or when a ‘materially identical’62 question has already been referred. Therefore, individuals can only hope that their doubts regarding validity of EU acts will actually be referred to the CJEU. Furthermore, paradoxical situations arise when there are no national implementing measures that can be challenged by individuals. In such cases, applicants are almost encouraged to break the law in order to access courts.63 As Advocate General Jacobs rightly noted, Article 267 TFEU is ‘not a remedy available to individual applicants as a matter of right’.64 Therefore, it cannot be considered a true alternative to the
action for annulment if applicants cannot choose to refer preliminary questions to the CJEU. Another legal remedy, often invoked by the Court, is the plea of illegality. Article 277 TFEU is not an independent remedy. It can only be accessed in connection with the action for annulment. Therefore, it is not an alternative to the action for annulment but a complementary action. In cases such as Carvalho, the plea of illegality has no application in practice. All measures challenged by the applicants had been based on Treaty provisions and there were no acts of general application that could be challenged on the basis of illegality. The Court’s argument about ‘complete system of remedies’ can, to some extent, be supported by the wording of Article 19(1) TEU. It stipulates that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Therefore, it has been interpreted as meaning that access to an effective remedy is ensured ‘as long as Member States discharge their obligations under Art 19(1) of the TEU’.65 Engagement of Member States in this way certainly is a way to enhance subsidiarity66 and reduce the workload of the CJEU.67 However, it is problematic for various reasons. First of all, it is difficult to ensure that all Member States will facilitate access to courts to the same extent.68 This, in turn, may impact upon the effective access to justice. Secondly, and most importantly, it moves the
60 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health ECLI:EU:C:1982:335 [21].
61 ibid. 62 ibid.
63 Opinion of AG Jacobs in UPA (n 53) [102]. 64 ibid [42].
65 Rhimes (n 44) 153.
66 Liz Heffernan, ‘Effective Judicial Remedies: The Limits of Direct and Indirect Access to the European Community Courts’ (2006) 5 The Law and Practice of International Courts and Tribunals 285, 296.
67 Mariolina Eliantonio and Betul Kas, 'Private Parties and the Annulment Procedure: Can the Gap in the European System of Judicial Protection be Closed' (2010) 3 Journal of Politics & Law 121, 127. 68 ibid.
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responsibility for direct action from the EU to the Member States, instead of solving the problem on the EU level. Strict interpretation of individual concern under Article 263(4) TFEU can be justified only if there is a complete system of remedies. As this paragraph has shown, alternative remedies are rarely available for individuals. Therefore, in practice, it is difficult to perceive them as true alternatives to the action for annulment.In conclusion, the reasons behind the Court’s interpretation of individual concern are not fully convincing as arguments for the strict interpretation of Article 263(4) TFEU.
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Chapter II – Article 263(4) TFEU and environmental litigation Direct concern, environment and fundamental rights
The current scope of Article 263(4) TFEU proves to be particularly harsh for applicants in environmental litigation. As explained before, a person is directly concerned if his legal situation changes or, in other words, the act in question has impact upon his rights or obligations. Therefore, it would seem that, if someone can prove that his human rights had been infringed, he satisfies the condition of direct concern. Environment certainly can have direct influence upon someone’s private life or health and other rights embedded in the Charter.69
This has also been recognised by the General Court in Carvalho. Preservation of the environment is a collective, and not an individual interest. Therefore, environmental law does not protect individual rights.70 However, the CJEU has also refused to give standing to applicants who claimed to be directly and individually concerned because their human rights had been infringed, even if they could prove such impact.71 That is mainly because of the application of the criterium of individual concern, usually analysed by the Court in the first place and leading to the finding of inadmissibility.
Individual concern, environment and fundamental rights
The requirement of individual concern applies unchanged in environmental litigation and leaves individuals with little chance to prove that no one is or will be affected just like them.72
Even if the Court first accepted that applicants can be directly concerned because of the infringement of their human rights, it would still found that there might be other people affected in the same way. That was precisely what happened in the case of Greenpeace and Others v
Commission.73 The Court of First Instance refused to give standing to both Greenpeace and individual applicants who challenged the Commission’s decision granting funds to Spain for the development of power stations in the Canary Islands because they were not individually concerned.74 The fact that other residents could be affected in a similar way, was enough for the applicants to fall out of the Plaumann formula. This approach best illustrates the problem
69 Alan Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23 The European Journal of International Law 613, 613.
70 Alison Peck, 'Standing for Protection of Collective Rights: In the European Communities' (2000) 32 George Washington Journal of International Law and Economics 367, 369.
71 Krämer, ‘Access to Environmental Justice’ (n 32) 167. 72 Albors-Llorens (n 24) 77.
73 Case T-585/93 Greenpeace and Others v Commission ECLI:EU:T:1995:147. 74 ibid [54].
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that the more people are affected by a certain measure, the more difficult it is to stand against it. Advocate General Cosmas, giving his opinion in this case, suggested that, although the act could have impact upon other people in the area, it is possible that those living particularly close to the power plants would be differentiated from others.75 His alternative approach to individual concern was not applied upon the appeal and the Court again relied on Plaumann.76 The Court’s use of individual concern test in environmental cases has caused some commentators to accuse it of committing ‘intellectual error’.77 It is important to note that the
judgement in Plaumann was delivered when human rights were not covered by the Court’s jurisdiction.78 Therefore, application of Plaumann in environmental cases results in particularly harsh outcomes. It may seem that someone ‘is not individually concerned in his human rights, because there are other persons in the same situation’.79 Therefore, the current scope of Article 263(4) TFEU does not facilitate access to justice in climate change litigation. Although the CJEU has its reasons to still apply Plaumann, even in environmental cases, some aspects of EU and international law provide arguments against the Court’s approach.
75 C-321/95 P Greenpeace and Others v Commission ECLI:EU:C:1997:421, Opinion of AG Cosmas, 1694.
76 C-321/95 P Greenpeace and Others v Commission ECLI:EU:C:1998:153 [28]. 77 Krämer, ‘Climate Change, Human Rights and Access to Justice’ (n 33) 33. 78 ibid 32.
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Chapter III – EU standards and international standards Integration principle
Article 11 TFEU provides that ‘environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities […]’. It expresses the Community’s devotion to work towards more sustainable development. Most importantly, it means that all acts of EU institutions must take into account environmental issues and make sure that the work towards ‘climate neutrality’ in Europe can continue. The inclusion of the word ‘must’ is also not incidental. It means that ‘Article [11] is not merely programmatic; it imposes legal obligations’.80 Therefore, the CJEU is prepared to closely analyse whether EU
acts do enough to take into account environmental aspects and, if necessary, annul them.81 For an act to be considered compatible with Article 11 TFEU, it needs to respect the objectives from Article 191 TFEU and the general aim of ‘sustainable development’.82 However, the CJEU has to appreciate the fact that EU acts ‘need to strike a balance between [other] objectives and principles mentioned in [Article 11 TFEU] and of the complexity of the implementation of those criteria’.83 Therefore, although Article 11 TFEU imposes legal obligations, acts of EU institutions will not be annulled as long as they take into account and balance the impact on environment. Nonetheless, one problem remains unchanged. Due to the strict interpretation of the standing requirements under Article 263(4) TFEU, individuals cannot even attempt to question the validity of EU measures in the context of Article 11 TFEU. Bearing in mind the EU’s devotion towards the inclusion of environmental goals in all policies, it is unfortunate that private persons cannot participate in checking and questioning the validity of EU acts. Even if a measure is clearly missing proper evaluation of environmental impact, individuals cannot bring that matter to the attention of the CJEU. Since EU law shall always be interpreted in line with environmental goals embedded in the Treaties84, Article 11 TFEU could constitute a convincing argument for the CJEU in favour of changing its approach to the interpretation of Article 263(4) TFEU. Nonetheless, in that case, the Court would need to apply the integration principle to itself and critically evaluate whether its understanding of Article 263(4) TFEU is
80 Case C-379/98 PreussenElektra AG v Schleswag AG ECLI:EU:C:2000:585, Opinion of AG Jacobs [231].
81 Case C-341/95 Gianni Bettati v Safety Hi-Tech Srl ECLI:EU:C:1998:353.
82 Julian Nowag, Environmental Integration in Competition and Free-Movement Laws (1st edn, Oxford University Press 2017), 25.
83 ibid [35].
84 Anja Wiesbrock, ‘An Obligation for Sustainable Procurement? Gauging the Potential Impact of Article 11 TFEU on Public Contracting in the EU’ (2013) 40 Legal Issues of Economic Integration 105, 111.
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compatible with the objective of interpreting EU law while taking into account environmental aims. Article 11 TFEU refers to ‘the Union’s policies and activities’, meaning that it relates in large part to secondary legislation. If the Court applied the integration principle to itself, it would effectively need to amend the meaning of Article 263(4) TFEU by declaring that its current understanding undermines the integration of environmental requirements. Having in mind the Court’s reluctance to alter its approach, it is arguable whether such development could take place in the near future. Furthermore, with the scope of Article 11 TFEU being quite vague, the Court might come to a conclusion that the appropriate balance has been struck.
European Court of Human Rights
The notion of ‘direct and individual concern’ finds its equivalent in Article 34 of the European Convention on Human Rights (the Convention) the case law of the European Court of Human Rights (ECtHR). For an action to be admissible before the ECtHR, an individual must prove that he or she is a direct victim. The so-called ‘victim requirement’ means that the applicant needs to be ‘directly affected by the measure complained of’.85 Also, the Court emphasises that
‘this criterion is not to be applied in a rigid, mechanical and inflexible way’.86 The requirement
is an equivalent of ‘direct and individual concern’ in the sense that it is used to decide on admissibility. However, it is clear that the ECtHR, unlike the CJEU, allows for flexibility in the application of the criterion. This is reflected in the Court’s approach to who is a victim. In
Dudgeon v UK87, a case regarding criminalisation of sexual acts between males in the UK, the
Court famously showed its high degree of flexibility. In that case, a man had been questioned by the police regarding his homosexual behaviour but had not been prosecuted. Despite, the ECtHR found him to be a victim because ‘the very existence of this legislation continuously and directly affects his private life’.88 In Zakharov v Russia89, the Court also relaxed the victim
requirement for secret surveillance cases. Applicant needs to prove that he or she ‘can possibly be affected’90 by a certain secret surveillance measure because he or she falls
within its scope. The difference between the CJEU and the ECtHR is paramount. While the latter interprets the victim requirement taking into account the circumstances, the CJEU is not giving up its restrictive approach. The context plays an important role in this comparative
85 Roman Zakharov v Russia [GC], no. 47143/06, 4 December 2015 [164]. 86 ibid.
87 Dudgeon v the United Kingdom, no. 7525/76, 24 February 1983. 88 ibid [41].
89 Roman Zakharov v Russia [GC], no. 47143/06, 4 December 2015. 90 ibid [171].
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approach. The ECtHR serves as the last resort for applicants whose countries, in many cases, commit serious breaches of human rights. Therefore, the Court needs to open access to those individuals. At the same time, the EU enacts legislation that takes careful account of human rights. Nonetheless, it is not to say that EU acts can never be in breach of human rights. The applicants in Carvalho tried to invoke their human rights but the action was considered inadmissible. However, they would certainly satisfy the victim requirement. The flexibility endorsed by the ECtHR could serve as an inspiration for the reform of Plaumann, especially in environmental cases. Although the case law of the ECtHR is not binding, it is often used by the CJEU as a point of reference and constitutes an important international standard. The approach represented by the ECtHR reflects the importance of the right to an effective remedy, as expressed in Article 13 of the Convention. The same right can also be found in Article 47 of the Charter. Nonetheless, the interpretation of Article 263(4) TFEU by the Court of Justice of the European Union does not strengthen access to justice as much as it could, especially compared to the ECtHR.
Aarhus Convention and its role on the Member States level
In 1998, the United Nations Economic Commission for Europe adopted the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention).91 One of its major objectives, stated in Article
1 of the Convention, was to facilitate ‘access to justice in environmental matters’. The Secretary General of the United Nations at the time called the instrument ‘the most ambitious venture in the area of ‘environmental democracy’’.92 The Convention strengthens access to
justice as a human right and ensures that all procedures can be effectively used for the protection of other human rights such as the right to life.93 It is binding upon the EU and its Member States in accordance with Article 216(2) TFEU. Article 9(2) of the Convention provides that Members States shall make sure that, those who have ‘sufficient interest’ or those ‘maintaining impairment of a right’, should have standing to challenge acts on the national
91 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998.
92 Stephen Stec and Susan Casey-Lefkowitz in collaboration with Jerzy Jendroska (Editorial Adviser), UN/ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters – The Aarhus Convention: An Implementation Guide (United Nations New York and Geneva 2000), 5.
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level. This Article became part of Directive 2003/35/EC94 even before the approval of the
Aarhus Convention. Article 10(a) copied the requirements from Article 9(2) in their original form and explicitly stated that non-governmental organisations (NGOs) shall be regarded as having sufficient interest. Besides the review procedure in Article 9(2), the Convention stipulates, in Article 9(3), that ‘members of the public [should] have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’. The wording of the Article seems to guarantee standing to a wide group of applicants. The CJEU has made it very clear that, although Article 9(3) of the Convention lacks direct effect, national courts should make sure that national law is interpreted in line with the aims of Article 9(3).95 Accordingly, individuals and representative NGOs can participate in the enforcement of EU environmental law on the national level. It is in the interest of the EU to facilitate such enforcement and encourage as many actors as possible to be the guardians of compliance. However, when it comes to challenging EU acts in front of the CJEU, individuals still have to satisfy stringent standing criteria. Although there has been some improvement in the aspect of standing for NGOs, it is still minor, as the following section shall prove.
Aarhus Convention and its role on the EU level
In 2006, the European Parliament and the Council enacted Regulation (EC) No 1367/200696
(the ‘Aarhus Regulation’) in order to make sure that the Convention’s provisions apply equally to the acts of EU institutions. Article 10 of the Regulation introduced an ‘internal review’ procedure for non-governmental organisations. It was seen as a compromise solution allowing to improve compliance with the Convention without having to change the strict and well-established rules on standing.97 And so Article 10(1) provides that ‘administrative acts’ or omissions can be challenged by non-governmental organisations. However, Article 2(1)(g) of
94 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC - Statement by the Commission [2003] OJ L156/17.
95 Case C-240/09 Lesoochranárske zoskupenie ECLI:EU:C:2011:125 [49]-[51].
96 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L264/13.
97 Hendrik Schoukens, ‘Articles 9(3) and 9(4) of the Aarhus convention and access to justice before EU courts in environmental cases : balancing on or over the edge of non-compliance?’ (2016) European Energy and Environmental Law Review 178, 182.
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the same Regulation defines administrative acts as ‘measures of individual scope’. In effect, the procedure has very limited application and cannot be used for measures of a general scope. In Stichting Natuur en Milieu and PAN Europe v European Commission98, two NGOs tried to challenge the Commission’s decision rejecting their application for internal review. The application concerned the Commission Regulation (EC) No 149/200899, setting maximum residue levels for certain products that were, according to the NGOs, too high. The General Court first agreed with the Commission and confirmed that the Regulation was intended to apply ‘to objectively determined situations’ and produce ‘legal effects for categories of persons envisaged generally and in the abstract’.100 In effect, it was of general application and did not meet the criteria of an administrative act. However, the applicants also argued that Article 10(1) of the Regulation was not compatible with 9(3) of the Aarhus Convention which referred to a wide category of acts.101 The General Court in this case departed from its settled case law and made a significant exception. In order to use an international treaty as a point of reference in the assessment of validity of an EU measure, the treaty provisions must be directly effective and Article 9(3) is not.102 However, the Court bypassed these criteria and found that where the Union ‘has intended to implement a particular obligation assumed under an international agreement’, it can review the measure by looking at the international standard.103 The Court
then referred to the main objectives of the Convention and agreed that the limitation of reviewable acts to administrative acts of individual scope is unjustified.104 The majority of
environmental measures are of general application and, therefore, only a small percentage of acts are reviewable.105 Nonetheless, in 2015, the CJEU disagreed with the General Court and said that, because the Regulation was only enacted to apply to the institutions and Article 10(1) was only one of many other remedies, it was not a realisation of a ‘particular obligation’.106 In
98 Case T-338/08 Stichting Natuur en Milieu and Pesticide Action Network Europe v Commission ECLI:EU:T:2012:300.
99 Commission Regulation (EC) No 149/2008 of 29 January 2008 amending Regulation (EC) No 396/2005 of the European Parliament and of the Council by establishing Annexes II, III and IV setting maximum residue levels for products covered by Annex I thereto (Text with EEA relevance) OJ L58/1. 100 Stichting Natuur (n 95) [38]. 101 ibid [50]. 102 ibid [53]. 103 ibid [54]. 104 ibid [75]-[77]. 105 Stichting Natuur (n 95) [76].
106 Joined Cases C-404/12 P and C-405/12 P Council of the European Union and European
Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe [2015] (CJEU, 13 January 2015) [52].
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effect, still only administrative acts of individual scope can be subject to review. Article 10(1) does not remedy the difficulties of Article 263(4) TFEU as the internal review procedure is available only to NGOs, not individuals. Also, administrative acts of individual scope belong to a very restricted category. However, these problem has been under a close scrutiny of the Aarhus Compliance Committee (the Compliance Committee).
The Aarhus Compliance Committee – two warnings
The Compliance Committee has as its task making sure that parties to the Convention comply with obligations flowing from it. In 2011, following a Communication from an NGO it received in 2008, the Compliance Committee issued some recommendations regarding compliance of the European Union with the Aarhus Convention.107 The Committee admitted that Article 263(4) could be interpreted less restrictively and facilitate access to justice for individuals and organisations.108 It was perceived as having a potential to be in line with the standard of Article 9(3) of the Convention.109 At the time, some cases on the compliance of the review procedure from Article 10(1) of Aarhus Regulation with Article 9(3) of the Convention were still pending.110 Therefore, the Committee left that issue out of its considerations.111 However, it remarked that, if the requirement of direct and individual concern remains to be applied so strictly, it will need to ‘be compensated for by adequate administrative review procedures’.112
In 2017, the Committee stepped in again and this time looked closely at the judgements concerning Article 10(1) of the Aarhus Regulation.113 It agreed with the findings of the General
Court in Stichting Natuur en Milieu and also reflected on the objectives of the Convention.114 It came to the conclusion that Article 10(1) did not ensure proper implementation of Article 9(3) in EU law because only a very limited group of applicants could use the new review procedure.115 Although the Committee respected the fact that CJEU applied EU rules while giving its judgement in Stichting Natuur en Milieu, it remarked that ‘the Court left itself unable
107 Findings and Recommendations of the Compliance Committee with Regard to Communication ACCC/C/2008/32 (Part I) Concerning Compliance by the European Union Adopted on 14 April 2011. 108 ibid [86].
109 ibid.
110 Gérardine Garçon, ‘Limits of NGO Rights to Invoke Access to Justice under the Aarhus Convention’ (2015) 6 European Journal of Risk Regulation 458, 459.
111 Findings of the Compliance Committee (Part I) (n 104) [88]. 112 ibid.
113 Findings and Recommendations of the Compliance Committee with Regard to Communication ACCC/C/2008/32 (Part II) Concerning Compliance by the European Union Adopted on 17 March 2017.
114 ibid [52].
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to mitigate the flaws correctly identified by the General Court’.116 The Committee also looked
at whether there has been any improvement in the interpretation of Article 263(4) and the strict
Plaumann criteria. It focused particularly on the new limb, added by the Treaty of Lisbon. The
question was whether its scope was wide enough to constitute an improvement of the compatibility of EU law with the Convention. First of all, the Committee said that limiting the meaning of regulatory acts to non-legislative acts only meant that many environmental measures enacted by legislative procedure would fall out of this provision.117 Secondly, the interpretation of direct concern would always exclude environmental NGOs from initiating an action for annulment ‘purely for the purposes of promoting environmental protection’.118 In cases where economic interests are at stake, change in the legal situation is easily found by the CJEU, but when it comes to environmental NGOs, only those measures affecting their legal situation could be subject to challenge.119 Therefore, the Committee did not find any advancement in terms of compliance of the EU jurisprudence with Article 9(3).120 In effect, the Committee recommended that the EU either amends current legislation or introduces new measures that would have as their purpose implementation of Article 9(3) of the Convention.121 It also pointed out that the CJEU should then be able to rule on the legality of the new or amended legislation in the context of the international obligation.122 The findings of the Aarhus
Committee not only show the weaknesses of the current system of remedies in the EU but also point out the EU’s failure to comply with its international obligations. The interpretation of Article 263(4) TFEU is not satisfactory in light of Article 9(3) of the Convention. And the addition of the internal review procedure not only involves just NGOs but also offers them a very limited room for bringing claims. Recently, the Commission published its answer to the findings of the Compliance Committee.
Answer of the Commission
In 2019, the Commission published its Report on European Union implementation of the Aarhus Convention in the area of access to justice in environmental matters.123 The Report
116 ibid [56]. 117 ibid [71]. 118 ibid [75]. 119 ibid [75]. 120 ibid [81]. 121 ibid [125]. 122 ibid [126].
123 Commission Staff Working Document - Report on European Union implementation of the Aarhus Convention in the area of access to justice in environmental matters, Brussels 10 October 2019 SWD(2019) 378 final.
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provides a step-by-step analysis of the views of the Compliance Committee. The Commission rejects the idea that individuals, just like NGOs, should be given access to review through the Aarhus Regulation.124 According to the Report, Article 9(3) refers to ‘members of the public’ and not to ‘the members of the public’, which means that not everyone must be given access to review.125 Exclusion of individuals in this interpretation is certainly against the intentions of the Aarhus Convention. The Compliance Committee clearly condemns such exclusion and criticises the interpretation of Article 263(4) TFEU. The Commission concludes that extending the scope of Article 9(3) to individuals would mean that the EU would be obliged to allow for
actio popularis.126 Nonetheless, as it has already been discussed, different interpretation of Article 263(4) TFEU would not necessarily mean allowing for collective action. Further, the Report turns to the issue of what acts can be subject to challenge under the Aarhus Regulation. The Commission recognises the constraints of the notion of ‘individual scope’ for environmental NGOs.127 It suggests that legislative change could extend administrative acts to cover also acts of general application.128 However, without such reform, NGOs cannot challenge acts of general application under the Aarhus Regulation and cannot meet the requirements under Article 263(4) TFEU. The Report points out that the case-law on Article 263(4) TFEU may evolve but the interpretation remains within the powers of the CJEU and any intervention by other institutions is not possible.129 In essence, the Commission is very clear about the scope of Article 9(3) of the Convention within the EU legal system. Although a legislative reform could potentially enable NGOs to challenge not only individual, but also general acts, the interpretation of Article 263(4) TFEU cannot be changed so easily. According to the Commission, it is up to the CJEU to depart from its settled case law. However, as it has already been discussed, the Court has not been willing to alter its approach. Therefore, the Union is left in a difficult position. The Aarhus Convention and findings of the Compliance Committee provide not only convincing arguments for less strict interpretation of standing conditions but also highlight the EU’s duty to change its approach.
124 ibid 19. 125 ibid. 126 ibid. 127 ibid 28-29. 128 ibid 29. 129 ibid 4.
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Chapter IV – Collective action
The term ‘collective action’ has multiple meanings, depending on jurisdiction. In general, it can be defined as a tool ‘improving access to justice where a breach or similar breaches of the law have caused mass harm’.130 While many European countries have set frameworks that allow for class action, the issue has not been regulated by the EU until very recently. Collective action is a concept generally uncommon to EU law where ‘rights and interests are classically connected at an individual, rather than a collective, level’.131 However, environment, as
mentioned before, is a common good and its protection is in the common interest. Individuals who seek to challenge acts of the EU in the environmental sphere, rarely succeed due to the current understanding of direct and individual concern. In Greenpeace, the association did not satisfy the Plaumann criteria and the Court refused to give it a special status as a representative.132 The CJEU maintains that ‘Community law, as it now stands, does not provide for a right to bring a class action before the Community courts’.133 Although the CJEU is persistent in not allowing collective redress against EU actions, the EU itself has begun to introduce collective redress in Member States. In 2018 the Commission brought forward a proposal for a Directive on representative actions for the protection of the collective interests of consumers.134 The draft has been adopted recently, on the 30th of June 2020. The directive enables ‘‘qualified representative entities’ designated by the Member States’ to bring collective claims against traders who are thought to be in breach of EU law.135 That opens opportunities
for those who would not bring a claim individually due to costs or time consuming procedures. The directive expressly states that environmental infringements fall within its scope. Accordingly, those who suffer environmental harm as customers, get an opportunity to seek redress. Although it is certainly a welcome development, the directive does not go beyond the consumer context. The Commissioner for Justice and Consumers, Didier Reynders, recently expressed his expectation that the scope of the directive shall be extended in the future, in order
130 Rebecca Money-Kyrle and Christopher Hodges, 'European Collective Action: Towards Coherence' (2012) 19 Maastricht Journal of European and Comparative Law 477, 479.
131 Catherine Warin, ‘Individual rights and collective interests in EU law: Three approaches to a still volatile relationship’ (2019) 56 Common Market Law Review 463,463.
132 Greenpeace (n 76) [28]-[29].
133 Joined cases T-236/04 and T-241/04 European Environmental Bureau (EEB) and Stichting Natuur
en Milieu v Commission of the European Communities ECLI:EU:T:2005:426 [62]-[63].
134 Proposal for a Directive of the European Parliament and of the Council on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC, Brussels 11 April 2018 COM(2018) 0184 final.
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to enable claims involving, for instance, pollution harm.136 That would be a significant step
towards a uniform policy on environmental collective action in the Member States. It would also possibly be a move towards creating a similarly uniform system of redress on the EU level, by enabling individuals to collectively challenge EU acts.
136 Melissa Heikkila, ‘Europe’s landmark deal on collective redress, explained’ (23 June 2020) <https://www.politico.eu/article/europes-landmark-deal-on-collective-redress-explained/> accessed 23 July 2020.
