C-321/95

IV — Legal framework I - 1659

V — Arguments of the parties I - 1659

A — The appellants' arguments I - 1659

B — The Commission's arguments I - 1664

C — The Spanish Government's arguments I - 1666

VI — My views on the appeal I - 1669 A — As to the possibility of a Community national deriving a judicially pro- tected right or legal interest from the interest, within the Community legal order, in conservation of the environment I - 1670 (a) Public dimension of environmental protection I - 1670 (b) Recognition by secondary Community law of rights in favour of indi- viduals I - 1673 (c) Existence of a specific obligation on the Commission to monitor whether the works financed comply with Community environmental legislation I - 1676

1. In the present case the Court is called II — Facts and procedure upon to adjudicate on the appeal brought under Article 49 of the EEC Statute of the Court of Justice against the order of 9 August 1995 of the Court of First Instance of the European Communities. 1 The order appealed against dismissed the action brought by certain environmental associations and 3. The facts of the case under examination, individuals, pursuant to the fourth as described in the order appealed against, paragraph of Article 173 of the EC Treaty, may be stated as follows: for annulment of the Commission Decision to pay to the Spanish Government, in addi- tion to amounts initially granted, ECU 12 000 000 to cover expenditure incurred in the construction of two electricity-power stations in the Canary Islands. That decision, By Decision C(91) 440 adopted on 7 March according to the applicants, was taken 1991 pursuant to Council Regulation (EEC) between 7 March 1991, the date of adoption N o 1787/84 of 19 June 1984 on the Euro- of Commission Decision C(91)440 granting pean Regional Development Fund, 2 as financial assistance for the works in question, amended by Council Regulation (EEC) N o and 29 October 1993, when the Commission 3641/85 of 20 December 1985, 3 the Com- confirmed that the abovementioned amounts mission agreed to grant the Kingdom of had already been disbursed to the Spanish Spain financial assistance from the European Government. Regional Development Fund ('the ERDF') up to a maximum of E C U 108 578 419 for the construction of two electricity-power stations in the Canary Islands, on Gran Canaria and Tenerife, by Unión Eléctrica de Canarias SA ('UNELCO')· That financing was to be spread over four years, the first instalment being payable on adoption of 2. At the outset, it is worth noting that the aforementioned Decision C(91)440. Subse- Court will be required in this case to form a quent instalments of aid could be reduced or view as to the manner and scope of applica- suspended if examination of progress of the tion of the fourth paragraph of Article 173 of works were to reveal irregularities and, in the E C Treaty in circumstances in which the particular, any significant alteration affecting applicants base the legal interest on which the implementation of the decision for which

the Commission's approval had not been were lodged, on 26 March 1993 and 2 April sought. That condition was laid down in 1993 respectively, by local environmental Article 5 of the aforementioned Commission protection associations which are amongst Decision, and also in paragraphs A.20, A.21 the appellants in the present proceedings. 5 and C.2 of Annex III thereto. O n 18 December 1993 Greenpeace Spain, an environmental protection association respon- sible in Spain for the attainment in that country of the objectives of Stichting Green- peace Council ('Greenpeace'), a nature con- servancy foundation established in the Neth- erlands and the first appellant, brought proceedings before the national courts chal- lenging the validity of the administrative 4. As early as 23 December 1991, two of the authorizations issued to U N E L C O by the appellants had informed the Commission by competent Spanish administrative author- letter that, as regards the works commenced ities. on Gran Canaria, U N E L C O had failed to undertake an environmental impact assess- ment study in accordance with the applicable Community provisions. 4 Furthermore, another of the appellants reported to the Commission, by letter dated 23 November 1992, that U N E L C O had started construc- tion work on Gran Canaria and Tenerife without the Comisión de Urbanismo y 6. At the same time, Greenpeace initiated a Medio Ambiente de Canarias (Canary series of contacts with the Commission. In Islands Commission for Planning and the particular, by letter dated 17 March 1993, Environment, 'CUMAC') having issued its Greenpeace asked the Commission to con- environmental impact statement in accord- firm whether Community structural funds ance with the applicable national legislation. had been disbursed for the construction of the two power stations in the Canary Islands and to inform it of the date of release of those funds. In its reply of 13 April 1993, the Director General of Directorate-General XVI of the Commission recommended Greenpeace to 'read' Decision C(91) 440 which gave details of the conditions of the grant of Community support and of the financing plan. By a further letter of 17 May 5. In fact, on 3 December 1992, C U M A C 1993, Greenpeace asked the Commission for issued two environmental impact statements full disclosure of measures which it had relating to the construction of the power sta- taken in regard to the construction of the tions on Gran Canaria and Tenerife. Admin- two power stations in the Canary Islands, in istrative appeals against those statements accordance with Article 7 of Council Regu-

9. In the order appealed against the Court of First Instance examined whether the appli- cants had standing to bring the action pend- ing before it. In so doing it distinguished between the applicant individuals and appli- 7. O n 21 December 1993, the appellants cant environmental associations. brought an action before the Court of First Instance for annulment of the abovemen- tioned Commission decision to continue financing of the works. The Kingdom of Spain intervened in the proceedings before the Court of First Instance. In its abovemen- 10. (a) As regards the former, it based itself tioned order of 9 August 1995 the Court of on the settled case-law of both the Court First Instance upheld the objection of inad- and the Court of First Instance, according to missibility raised by the Commission and on which: '(...) persons other than the address- that ground dismissed the action. ees may claim that a decision is of direct concern to them only if that decision affects them by reason of certain attributes which are peculiar to them, or by reason of factual 6 — Council Regulation (EEC) N o 2052/88 of 24 June 1988 o n circumstances which differentiate them from the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and all other persons and thereby distinguish with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 185, p. 9). them individually in the same way as the

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GREENPEACE COUNCIL A N D OTHERS v COMMISSION

The Court interests affected by the contested decision of First Instance held that it was not, in light are not economic in nature but arise from of two matters of relevance in its view, the negative environmental impact of the enlarged upon in paragraphs 54 to 56 of the unlawful conduct by the Community insti- order appealed against, which read as fol- tutions. The Court of First Instance held in lows: that connection that the essential criterion applied by the Court of Justice in its settled case-law, namely, 'in substance, a combina- tion of circumstances sufficient for the third- party applicant to be able to claim that he is affected by the contested decision in a man- ner which differentiates him from all other persons — remains applicable whatever the nature, economic or otherwise, of those of the applicants' interests which are affected'. 8 Reliance solely on the harm likely to be suf- fered, generally and in the abstract, by indi- viduals who cannot be determined in advance '(.

Treaty. In its order it expressly states that the residents and on the environment. They d o contested decision must directly and indi- not, therefore, rely on any attribute substan- vidually affect the applicant. That view of the tially distinct from those of all the people matter cannot be affected either by the find- who live or pursue an activity in the areas ing that there has been a tendency in recent concerned and so for them the contested decision, in so far as it grants financial assis- years by the competent national courts to tance for the construction of two power sta- make locus standi solely dependent on the tions on Gran Canaria and Tenerife, is a measure whose effects are likely to impinge on, objectively, generally and in the abstract, 7 — Case 25/62 Plaumann v Commission [1963] ECR 95, Case various categories of person and in fact any 231/82 Spijker v Commission [1983] ECR 2559, Case 97/85 person residing or staying temporarily in the Deutsche Lebensmittelwerke and Others v Commission [1987] ECR 2265, Case C-198/91 Cook v Commission [1993] areas concerned. ECR I-2487, Case C-225/91 Matra v Commission [1993] ECR I-3203, Case T-2/93 Air France v Commission [1994] ECR II-323 and Case T-465/93 Consorzio Gruppo di Azione Locale 'Murgia Messapica' v Commission [1994] ECR II-361. 8 — Paragraph 50 of the order appealed against. 10 — That argument based on comparative law was developed at 9 — Paragraph 51 of the order appealed against. some length by the applicants.

13. N o r can the fact that the second, fifth and sixth applicants have submitted a com- plaint to the Commission constitute a special 15. In that context it is stated in the order circumstance distinguishing them individu- appealed against that the applicant associ- ally from all other persons and thereby giv- ations did not adduce any special circum- ing them locus standi to bring an action stances to demonstrate the individual interest under Article 173 of the Treaty. N o specific of their members as opposed to that of any procedures are provided for whereby indi- other person residing in the areas of Gran viduals may be associated with the adoption, Canaria and Tenerife. 'The possible effect on implementation and monitoring of decisions the legal position of the members of the taken in the field of financial assistance applicant associations cannot, therefore, be granted by the ERDF. Merely submitting a any different from that alleged here by the complaint and subsequently exchanging cor- respondence with the Commission cannot therefore give a complainant locus standi to bring an action under Article 173. As the 11 — The Court of First Instance relied (a) on judgments of the Court of Justice in Joined Cases 19/62 to 22/62 Fédération Court of Justice has held, although a person Nationale de la Boucherie en Gros et du Commerce en Gros des Viandes and Others v Council [1962] ECR 491; Case who asks an institution, not to take a 72/74 Union Syndicale v Council [1975] ECR 401; order of decision in respect of him, but to open an the Court of Justice in Case 60/79 Producteurs de Vins de Table et Vins de Pays v Commission [1979] ECR 2429; inquiry with regard to third parties, may be judgment of the Court of Justice in Case 282/85 DEFI v Commission [1986] ECR 2469; order of the Court of Justice considered to have an indirect interest, he is in Case 117/86 UFADE v Council and Commission [1986] nevertheless not in the precise legal position ECR 3255, paragraph 12, and (b) on the judgment of the Court of First Instance in Joined Cases T-447/93, T-448/93 of the actual or potential addressee of a and T-449/93 AITEC and Others v Commission [1995] ECR II-1971, paragraphs 58 and 59. measure which may be annulled under 12 — Judgments of the Court of Justice in Joined Cases 67/85, Article 173 of the Treaty (Case 246/81 Lord 68/85 and 70/85 Van der Koy and Others v Commission Bethell v Commission [1982] E C R 2277).' [1988] ECR 219 and Case C-313/90 CIRFS and Othersy Commission [1993] ECR I-1125.

16. The Court of First Instance went on to 18. As mentioned above, the legal discussion examine whether the existence of contacts turns on the interpretation of the fourth between one of those associations, Green- paragraph of Article 173 of the EC Treaty, peace, and the Commission was sufficient to which reads as follows: 'Any natural or legal confer locus standi on Greenpeace. The reply person may, under the same conditions, given to that question was in the negative institute proceedings against a decision since it was considered, in the first place, that addressed to that person or against a decision 'the Commission did not, prior to the adop- which, although in the form of a regulation tion of the contested decision, initiate any or a decision addressed to another person, is procedure in which Greenpeace participated; of direct and individual concern to the nor was Greenpeace in any way the inter- former.' locutor of the Commission with regard to the adoption of the basic Decision C(91) 440 and/or of the contested decision' 14 and, sec- ondly, that 'the correspondence which took place between Greenpeace and the Commis- V — Arguments of the parties sion and its subsequent meeting with mem- bers of the Commission's staff were for pur- poses of information only, since the Commission was under no duty either to A — The appellants' arguments consult or to hear the applicants in the con- text of the implementation of Decision C(91) 440.' 15

environmental protection and, in particular, disburse to Spain further funds amounting to with Directive 85/337/EEC, owing to the E C U 12 000 000 is in direct breach of its likely impact of the works on the environ- abovementioned obligations. ment, the Commission was required, if it observed that during the construction works 'Community policy' 16 was not being com- plied with, to withhold payment of Commu- nity funds, to notify the competent national 21. In that regard the appellants see fit to authorities and to determine the measures to recall that, in accordance with their interpre- be taken. Furthermore, Council Regulation tation of Directive 85/337/EEC, the latter (EEC) N o 2052/88, pursuant to which instrument confers a series of rights on abovementioned Decision C(91)440 was 'people who may be concerned' by public adopted, expressly provides that works sub- and private projects likely to have significant ject to financing are to comply with Com- effects on the environment, including a right munity provisions on environmental protec- of access to information relating to the tion. project concerned and the right 'to express an opinion before the project is initiated'. 17 There are, then, certain rights which are con- ferred on individuals in connection with environmental protection on which the per- sons entitled may directly rely, inasmuch as the relevant provisions of Directive 85/337/EEC have been adjudged by the Court of Justice 18 to be of a clear and unconditional nature, thus producing direct effects in the domestic legal order.

24. The appellants consider that the inter- pretative approach followed by the Court of — Consequently, by not 'withholding the First Instance creates a vacuum in the judi- additional financing, even though it had cial protection afforded by the Community been informed in due time of the above- legal order, whenever it is a question of mentioned infringement, the Commis- reviewing compliance by Community insti- sion violated its obligations under Com- tutions with Community environmental leg- munity law which consist, at least in part, islation. Since the interest in environmental in the defence of the appellants' right to protection is common to and is shared by all protection of the environment arising in Community citizens, there cannot, in the general out of Community law and, in event of environmental harm, be a closed particular, out of the abovementioned class of persons affected by harm to the envi- provisions of Directive 85/33 7/EEC. ronment, at least not in the sense attributed to the notion of a closed class by the Court of First Instance. It may be clearly inferred from the order appealed against, the appel- lants assert, that the application, in cases concerning the environment, of the tradi- tional case-law to the effect that an act must be of individual concern to the applicant will 23. (b) The appellants contend that the have the practical effect of never allowing Court of First Instance erred in its interpre- individuals to challenge Community mea- tation and application of Article 173 of the sures which affect their environmental inter- E C Treaty because it did not apply the ests. The legal vacuum becomes more appar- proper criteria for assessing whether the ent from the finding that, in cases such as the applicants before it were individually present dispute, privileged applicants under affected, within the meaning of Article 173 Article 173 (that is to say Member States, of the EC Treaty, by the contested decision Council and Commission) are not interested adopted by the Commission. In particular, in availing themselves of the possibility the Court of First Instance followed the afforded them by the second paragraph of case-law of the Court of Justice developed Article 173. solely in the context of economic issues to the effect that an individual must belong to a 'closed class' in order to be individually con- cerned by a Community act. For that reason, the appellants assert, the Court of First Instance did not take account of the specific nature and character of the 'environmental 25. Nor, moreover, can it be maintained, in legal interest', since indeed the Court of the appellants' view, that that vacuum may

be filled by the possibility afforded to indi- bring proceedings before a court of a Mem- viduals not having locus standi of bringing ber State, actions brought by some or all of proceedings before a national court in order them would have been adjudged admissible. to vindicate their rights, having recourse t o the legal remedies available under national law. In the present case, the proceedings brought before the Spanish courts can only concern the legality of national acts and non- compliance by the Spanish authorities with their obligations under Council Directive

Reliance is mission of certain funds for the financing of placed on case-law of the Court of Justice in works. 19 which environmental protection has been proclaimed as 'one of the Community's essential objectives' 20 and in which E C envi- ronmental legislation has been held to be capable of creating rights and obligations for individuals. 21 Reference is also made to the Fifth Environmental Action Programme approved by the Council and by the repre- 26. The appellants go on to stress that the sentatives of the Member States, 22 to Prin- solution adopted by the Court of First ciple 10 of the Rio Declaration, to Agenda Instance in the order appealed against 21, to the Council of Europe Convention on directly contrasts with that of courts of the Civil Liability for Damage Resulting from Member States, and with recent develop- Activities Dangerous to the Environment, to ments in international law. In that connec- recent judgments of the Court of Human tion the appellants cite a series of compara- Rights in Strasbourg, and to the system of tive studies from which it may be inferred administrative review introduced by the that the legal systems of the Member States World Bank as from 1993 in the case of have all developed in the direction of a wid- activities which pose a threat to the environ- ening of the procedural right of citizens to ment. seek judicial protection in cases in which their legal interests in environmental protec- tion are infringed. Indeed, the appellants observe that, if they had been required to 20 — Judgments in Case 240/83 Procureur de la République v Association de Défense des Brûleurs d'Huiles Usagées [1985] ECR 531, paragraph 13; and in Case 302/86 Commission v Denmark [1988] ECR 4607, paragraph 8. 21 — Judgments in Case C-131/88 Commission v Germany 19 — The appellants cite the judgment of the Court of First [1991] ECR I-825, paragraph 7: and in Case C-361/88 Instance in Case T-3/93 Air France v Commission [1994] Commission v Germany [1991] ECR I-2567, paragraphs 15 ECR II-121, paragraph 69, in which it is expressly stated and 16.

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28. In light of the foregoing, the appellants Instance in which they described the nature propose a different interpretation of the and extent of the detriment suffered as a fourth paragraph of Article 173 of the Treaty. result of the Commission's acts. As to the In order to ascertain whether an individual is second criterion, they point out that the affected individually by a Community act abovementioned harm can be traced to the when that person pleads damage to the envi- Commission's acts because the national ronment caused by an infringement by the (Spanish) authorities have no discretion as t o Community institutions of their obligations the use to which the funds advanced pursu- under Community law, the Community ant to Decision C(91)440 are to be put. I n judicature should, according to the appel- other words, in disbursing the necessary lants' reasoning, require the applicant to funds to Spain to continue the construction demonstrate that: of projects being carried out in a manner contrary to provisions of Community envi- ronmental law and, in particular, to Directive 85/337/EEC, the Commission directly con- tributed to the detriment suffered by the appellants as a result of the harm to the envi- 29. (a) he/she has personally suffered (or is ronment. As to the third criterion, it is sub- likely to suffer) some actual or threatened mitted that the abovementioned detriment detriment as a result of the allegedly illegal would be capable of being redressed if a conduct of the Community institution con- court judgment were to annul the Commis- cerned, such as a violation of his or her envi- sion decision to continue financing the ronmental rights or interference with his or works. For, if the necessary funding for the her environmental interests; continuation of the projects were not avail- able, it is to be expected, the appellants maintain, that work on the power stations 'would be suspended.

being carried out. Specifically concerning the B — The Commission's arguments role of the representative organizations or associations and the need to recognize their procedural right of action before the Com- munity judicature, whenever a Community act affects the interests and objectives for 33. The Commission observes at the outset whose protection and furtherance they were that, even if the interpretative approach to formed, the appellant organizations and Article 173 contended for on behalf of the associations refer to the judgment of the appellants were accepted, the latter do not Court of First Instance in Associazione Ital- satisfy the criteria on which they rely.

32. In conclusion, the appellants consider grounds of the judgments in Cases 11/82 that the solution proposed by them is the Piraiki-Patraiki v Commission [1985] ECR most apposite, and refer to the Court's Platt- 227, C-358/89 Extramet Industrie v Councã mann judgment 25from which they infer that [1991] ECR I-2501 and Joined Cases the procedural criteria of Article 173 are not T-480/93 and T-483/93 Antillean Rice Mills v to be narrowly construed. Commission [1995], relied on by the appel- lants in support of the contra legem interpre- tation which they propose. In that way, the

ests. The question under discussion is the appropriate degree of participation of economic and social categories in 26 — For that reason, according to the Commission's arguments, the Economic and Social Committee, which the Council the elements of comparative law relied on by the appellants must assess under Article 195 of the E E C Treaty. In such a are not relevant O n the one hand, the international texts on situation, nothing could be more natural than to leave t h e which they base their view have no binding effect.

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GREENPEACE C O U N C I L A N D OTHERS y COMMISSION

That contra legem interpretation would result, in the Commis- 35. As to the rights which the appellants sion's view, in every inhabitant of the islands maintain may be inferred from Directive of Tenerife and Gran Canaria being recog- 85/337/EEC, the Commission makes the fol- nized as having a legal interest in challenging lowing observations: even though that direc- the measure at issue adopted by the Com- tive, as regards certain at least of its provi- mission. 27 sions, may produce direct effects, reliance o n it cannot avail the appellants in the context of the present proceedings.

In particular, it tested act. stresses that the appellants are entitled, in so far as the environmental dimension of the works subject to financing is concerned, to bring proceedings before the Spanish courts, and that certain of them had availed them- selves of that right. Nevertheless, neither the financing, as such, of the works nor the role of the Commission in monitoring whether 36. The Commission also rebuts the submis- Spain is observing the relevant Community sion contained in the appeal to the effect that the appellant environmental associations have locus standi because, on the one hand, one or more of their members are individu- 27 — That is to say, the potential applicants would amount to tens, if not hundreds, nay, thousands, of persons. In the ally affected by the contested measure and, Commission's view, that argument is not affected by the vague position adopted by the appellants in their pleadings on the other, as representative organizations to the effect that 'it is clear that, i nthe present case, most of whose object is the protection of the envi- the inhabitants of Tenerife and Gran Canaria would not sat- isfy the conditions actually proposed by the appellants.' ronment in the Canary Islands, they auto-

38. At the hearing, the Commission further pointed out that construction of one of the electricity-power generating plants had already been started in 1990, that is to say before the issue of Community financing of C — The Spanish Government's arguments the works arose. The appellants ought there- fore to have taken steps, as at that moment in time, to oppose the carrying out of the works or, at least, the financing of them, by

40. For its part, Spain proposes that the 28 — The Commission points out that that criterion is unsup- appeal be dismissed on the basis of the argu- ported by authority, save for the Opinion of Advocate ments set out below. It begins by rehearsing General Lenz in Case 297/86 (see footnote 24 above), which was not followed by the Court. the case-law of the Court on the issue of

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42. Consequently, they do not belong to any closed class of persons, ascertained or ascer- tainable at the time of adoption of the act, nor are they in a position analogous to that of the addressee thereof. Again, as regards those appellants who had submitted com- 41. As a logical consequence, the appellants, plaints to the Commission, that fact does not who were not the addressees of the act suffice to distinguish them, because the which they are contesting and cannot be equated with the addressee of that act, namely Spain, do not have locus standi and 30 — In accordance with the reasoning adopted by the Kingdom of Spain, if the interpretative approach advocated by the appellants were accepted, then a legal interest would have t o be recognized in the case of any person invoking the impact 29 — Reference is made to the order of the Court in Case of an interference with the environment in connection with C-257/93 Van Parys v Coanei/ and Commission [1993] fishing, farming, public health, tourism, quality of life, chil- ECR I-3335, and to the order of the Court of First Instance dren's education, damage to the interests of taxi-drivers, in Case T-476/93 FRSEA and FNSEA v Council [1993] local workers, tourists, windsurfers, and those concerned ECR II-1187, and the judgment of the Court in Case with the protection of bird-life. Consequently, the appel- C-209/94P Buralux and Others v Council [1996] ECR lants are affected by the contested act just as much as any I-615. other individual carrying on any kind of activity in the area.

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43. The Kingdom of Spain goes on t o counter the appellants' argument concerning 44. Thus, even if it were accepted that the the creation of a legal vacuum in judicial competent Spanish authorities infringed the protection caused by an inability to review provisions of Community law on environ- infringements by the Commission in matters mental protection which, in so far as they of environmental protection. It stresses that, have been transposed into the national legal in keeping with the system established b y order, constitute provisions of national law, the Treaties, individuals enjoy the legal pro- there would then be an infringement of a tection ensured by national courts which are national rule of law by a national public the ordinary courts under the Community authority, in which case the dispute arising judicial system. Accordingly, only the Mem- would fall within the exclusive competence ber States and Community institutions have of the national courts which, in a proper a legal interest in seeking the annulment of case, would be able to request the Court of measures of a general nature, as is clearly Justice for a preliminary ruling on the inter- indicated by Article 173 of the Treaty and pretation of the relevant provisions of Com- laid down by the relevant case-law of the munity law. 32 Finally, Spain submits, since Court. Moreover, in light of the characteris- the Commission decision at issue merely tics of the present case, the Kingdom of gives effect to Decision C(91)440, it neither Spain considers that, in actual fact, the appel- affects nor can affect the environment or, in lants are attempting to fabricate a dispute any event, the rights 'which the appellants before the Community judicature. Under the might derive from the protection thereof. guise of a challenge to the legality of a Com- For that reason, Spain submits, there can be munity act, they are in fact seeking t o no question of an infringement of the rights prompt the Community judicature to adjudi- of the citizen deriving from the protection of cate on the legality of an act of a national the environment. authority and, indirectly, to annul it. Specifi- cally, the appellants rely on no financial 32 — Spain refers to the judgment in Case C-97/91 Borelli v Commission [1992] ECR I-6313 in which it was held that the Court is not competent to decide on the legality of an act adopted by a national authority even though that act 31 — Judgment in Case 247/87 Star fruit Company v Commis- was adopted in the context of a procedure for the adoption sion [1989] ECR 291. of a Community decision.

46. Finally, the representative of Spain main- tained at the hearing before the Court that the change in case-law advocated by the appellants could not be regarded as expedi- ent since it would result in the enshrinement of an actio popularis for environmental ques- tions. Protection of the environment, more- over, was but one legal concern among so many others within a legal system and there 33 — Order in Case C-325/94 P An Taisce and WWF (UK) v Commission [1996] ECR I-3727, and judgment in Case was no justification whatever for according it C-142/95 P Associazione Agricoltori della Provincia di Rovigo and Others v Commission [1996] ECR I-6669. any different procedural treatment. In the first of these two cases the Court gave judgment o n an appeal brought by two environmental associations against the judgment by the Court of First Instance dis- missing as inadmissible their action for annulment of a Commission decision. In that decision the Commission refused to suspend or revoke the grant of appropriations from the Structural Fund for the construction of a nature observatory in Ireland. The Court of First Instance based its order in that case on the ground that it had not been proven that the Commission had decided not t o make use of its power under the relevant Community provisions in VI — My views on the appeal relation to the suspension or reduction of Community funding for the construction of the abovementioned centre, a power which, according to the Court of First Instance, is always available. That view of the matter was upheld by the Court of Justice, as is apparent from paragraphs 30 and 31 of its judgment. In the second of the two cases the appellants (local occupa- tional associations and individuals) had appealed against an order of the Court of First Instance dismissing as inadmis- sible their action for annulment of a Commission decision approving funding for the protection of the residents and natural environment of the Padua delu zone in Italy under Council Regulation (EEC) N o 1973/92 of 21 May 1992. The Court of Justice upheld the view taken by the Court of 47. I consider it important to stress, at the First Instance that the applicants were not affected indi- outset, the novelty of the present case. For vidually by the contested act because, contrary to their assertions, Community law did not confer on them a right the first time, the Court is being asked to to participate in the procedure for structuring the p r o - gramme of funding actions. form a view on a series of legal issues which It may be observed, then, that in those two cases the Court were not dealt with in the context of the An of First Instance in whole or in part founded its view as t o the inadmissibility of the actions on grounds other than Taisce and Associazione Agricoltori della those adopted in the present case.

49. The fourth paragraph of Article 173 of 51. In the first place, there can be no doubt the Treaty lays down the condition that a that ensuring the quality of the environment natural or legal person bringing an action is directly linked to what might be termed against a decision of a Community institu- tion must be the holder of some right or

35 — Nevertheless, it is not improbable; sec judgment in Case 60/81 IBM v Commission [1981] ECR 2639. 34 — Pursuant to Article 92(2) of the Rules of Procedure of the 36 — As examples of cases in which the Court has accepted the Court. See order in Case 13/86 Charlotte von Bonkewitz- existence of a legal interest, see judgments in Case 77/77 BP Lindner v Parliament [1987] ECR 1417, and judgment v Commission [1978] ECR 1513; Case 207/86 Apesco v in Joined Cases C-305/86 and C-160/87 Neotype Commission [1988] ECR 2151; and order of the Court in Techmaschexport v Commission and Council [1990] Case C-123/92 Leni Pietro v Commission [1993] ECR ECR I-2945, paragraph 18. I-809.

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. .) to promote (. . .) growth respecting the environment (. . .).' For those purposes the activity of the Com- munity is to comprise, pursuant to Article 3(k) of the Treaty, 'a policy in the sphere of the environment'. The general outlines of that policy are elaborated in Title XVI of the Treaty. That policy is to contribute, under 52. From the foregoing illustration it may be Article 130 r o f the Treaty, inter alia, to 'pre- inferred that the environment has a public serving, protecting and improving the quality dimension which constitutes a general Com- of the environment, protecting human munity interest whose protection is the health', and 'prudent and rational utilization responsibility of the Member States and the of natural resources.' Paragraph 2 of Article Community institutions, in accordance with 130r further provides that 'environmental protection requirements must be integrated into the definition and implementation of other Community policies.' 38 Secondary 39 — By means of secondary Community legislation a number of significant obligations have been imposed on the Member States requiring them to ensure protection of the environ- ment- The number of directives concerning the safeguard- ing of the environment is particularly considerable.

Neverthe- (see footnote 20 above) and Case C-195/90 Commission v less, in its allegations in the reasoned opinion it also Germany [1992] ECR I-3141, paragraph 29, and my Opin- referred to Council Directive 76/160/EEC of 8 December ion of 10 December 1996 in Case C-343/95 Diego Caá, 1975 concerning the quality of bathing water (OJ 1975 paragraphs 55 to 64. L 31, p. 1), as regards Payasitikos Bay, and to the following 38 — For example, in Case C-2/90 Commission v Belgium [1992] directives, as regards the particular situation of Lake Veyor- ECR I-4431, paragraph 22 et seq., the Court seeks to rec- itidas and the River Soulos: Council Directive 75/440/EEC oncile the fundamental Community freedom of movement of 16 June 1975 concerning the quality required of surface of goods enshrined in Article 30 of the Treaty with the water intended for the abstraction of drinking water in the requirement of environmental protection, as described in Member States (OJ 1975 L 194, p. 26), Council Directive Article 130r of the Treaty. Thus, although I consider that 79/869/EEC of 9 October 1979 concerning the methods of waste products may be classified as goods within the mean- measurement and frequencies of sampling and analysis of ing o f Article 30 of the Treaty, in the final analysis, the surface water intended for the abstraction of drinking water imposition of restrictions on their circulation is accepted on in the Member Sutes (OJ 1979 L 271, p. 44), Council the following grounds: T h e principle that environmental Directive 80/778/EEC of 15 July 1980 relating to the qual- damage should as a matter of priority be remedied at ity of water intended for human consumption (OJ 1980 source, laid down by Article 130r(2) of the Treaty as a basis L 229, p. 1), Council Directive 78/659/EEC of 18 July 1978 for action by the Community relating to the environment, on the quality of fresh water needing protection or

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the equilibrium established by the Treaty. 4 0 obligations on the part of individuals may Thus, protection of the environment, as arise. 42 enshrined in primary Community law and as a matter of principle affirmed by the case-law of the Court, constitutes a fundamental obli- gation on the part of the 'public' author- ities 41 — if Community institutions and national authorities may be subsumed under one and the same term. And it is in the implementation of that obligation that

The Germany [1995] E C R I-2189. In that case the Commission of the European Communities had brought an action under Community legal order does not recognize Article 169 of the Treaty for a declaration that Germany, b y granting authorization for the construction of a new section an actio popularis 43 in environmental matters of the Grosskrotzenburg power station without a prior either. It is not, therefore, possible to rely, as environmental impact assessment, had failed to fulfil its obligations under Articles 5 and 189 of the E E C Treaty in the sole ground for claiming locus standi, on conjunction with Council Directive 85/337/EEC.

. .in the general interest of the ively to the Member States and the Commu- Community, to ensure that the Member States give effect t o the Treaty and the provisions adopted by the institutions nity institutions, which do not in practice thereunder and to obtain a declaration of any failure to fut- have an interest in that regard. fil the obligations deriving therefrom (. . .).' The Court also clearly distinguished between the need for environmental protection in the public interest and the existence or other- wise of rights conferred by Community law on individuals in connection with such protection. It stated at paragraph 26 that: 'In its application, the Commission complains that Germany has not observed, in a specific case, the obligation 42 — That does not, of course, mean that horizontal direct effect flowing directly from the directive to assess the environ- is conferred on directives with an environmental content mental impact of the project concerned. The question (see footnote 58 below). See for example judgment in Case which arises is thus whether the directive is to be construed C-379/92 Peralta [1994] ECR I-3453, paragraph 59, on pro- as imposing that obligation. That question is quite separate hibition of dumping into the sea of noxious chemical from the question whether individuals may rely as against substances, and the judgment in Joined Cases C-304/94, the State on provisions of an unimplemented directive C-330/94, C-342/94 and C-224/95 Tombesi and Others which are unconditional and sufficiently clear and precise, a [1997] ECR I-3561 concerning the application of Directives right which has been recognized by the Court of Justice.' 41/156/EEC and 91/689/EEC on waste. 43 — Contrary to the situation prevailing, at least to some extent, 41 — O n this point Community law is analogous to the national in Spain and Portugal. The reason why the procedural cri- constitutional systems of Germany, Greece and the Nether- teria are so generous in those countries must be sought in lands.

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national and Community judicial authori- ties. 44 Those rights, as a general rule, flow from the direct effect of directives whose 55. The tendency of the case-law in favour subject-matter is concerned with environ- of conferral on individuals of rights in con- mental protection. For example, the Court nection with environmental protection or, at held in Case C-131/88 Commission v Ger- least, of the possibility of relying before many [1991] ECR I-825 4 5that Council national courts on the obligations imposed Directive 80/68/EEC of 17 December 1979 by secondary Community law on national on the protection of groundwater against authorities, is also confirmed by the recent pollution caused by certain dangerous judgment of the Court in the Associazione substances 46 '(.

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tection. Its objective is, as stated in the sixth recital in the preamble, to establish the prin- ciple of prior assessment of the significant effects which certain interferences with the environment are likely to have. Under Article 3 of the directive Member States are obliged to assess the direct and indirect impact of a project on human beings, fauna and flora, soil, water, air, climate, landscape, material assets and the cultural heritage. The 56. I regard that judgment as constituting a appellants consider that Articles 2, 3, 6 and 8 typical example of the manner in which a of that directive enshrine certain rights in general objective, such as environmental pro- favour of a group of individuals who are tection, when implemented by means of a described in Article 6 of the directive under series of provisions of secondary Commu- the term 'public concerned'. nity legislation, may result in securing for individuals the possibility of seeking judicial assistance in conserving the environment, 51 — Abo of interest is the judgment of the Court in Case C-361/88 Commission v Germany (cited above at footnote 21) concerning the mandatory effect of Council Directive 80/779/EEC of 15 July 1980 on air quality limit values for 50 — Paragraph 19 of the abovementioned judgment in Case sulphur dioxide and suspended particulates.

. .).' It is with the reasoning elaborated hitherto, and do not appear worth observing that it is human health which is taken to to have in direct contemplation the securing of a right in be the ground justifying the conferral of rights on individu- favour of individuals. Moreover, notwithstanding the fact als. Nevertheless, I consider that in that case public health that the relevant directives have been in issue before the constitutes a special objective direcdy related to environ- Court, the Court has not adjudicated on the question mental protecaon. Moreover, the link between environment whether they produce direct effect in the domestic legal and health is highlighted by the formulation of Article 130r orders. of the Treaty.

58. Indeed, the Court has upheld the direct may be concerned by the projected construc- effect of Articles 2, 3 and 8 of Directive tion of the two power stations in the Canary 85/337. 52 As regards the mandatory effect of Islands, 55 then they are entitled to the rights Article 6(2) of the directive, Advocate Gen- conferred by Directive 85/337/EEC. Those eral Elmer, in his Opinion in Case rights are the following: first, the require- C-72/95, 53 observed as follows: 'According ment that the projected interference with the to Article 6(2) of the directive, it is for the environment be submitted for an appraisal of Member States to ensure that any request for its impact before authorization is granted; development consent and any information secondly, projects for works impacting on gathered are made available to the public and the environment, namely those mentioned in that the public concerned is given an oppor- Annex I to the directive or, under certain tunity to express an opinion before the conditions, in Annex II thereto, must be project is initiated. The directive thus drawn up in accordance with the procedure requires the Member States to introduce a described in Articles 5 to 10 of the directive. consultation procedure to give individuals a In particular, that procedure gives the right, right to express their opinion. Where a first, for information gathered to be made Member State's implementation of the direc- available to the public, secondly, to provide tive is such that projects which are likely to the public with the possibility of expressing have significant effects on the environment its opinion before the project is started and, are not made the subject of an environmental thirdly, to require that opinion to be taken impact assessment, the citizen is prevented into account in the context of the procedure from exercising his right to be heard. The for granting authorization. Accordingly, if Member State's own negligent implementa- the Commission's contested decision, under tion of the directive thus deprives the citizen which it was decided to continue financing of a right under the directive. ... In those cir- the works in Spain at issue in these proceed- cumstances my view is that Articles 2(1) and ings, infringes those rights, then that decision 4(2) of the directive, in conjunction with did indeed 'concern' the appellants within Article 6(2), confer rights on individuals'. 54 the meaning of the fourth paragraph of Article 173 of the Treaty and the appellants were entitled, as a matter of principle, to challenge it. 56

attendant rights to environmental protection sition of an obligation on an individual. 58 which may naturally be safeguarded by Secondly, reliance as against Community recourse to the courts. However, if the rights institutions on rights arising as described to be vindicated, or the legal interests of the above, in annulment proceedings against acts citizen in connection with the environment, of those institutions before the Court of go no further than this, then the protection First Instance, is in practice fraught with par- provided by the Community legal order ticularly severe obstacles. 59 remains incomplete and fragmentary. First, judicially protected rights or legal interests exist only where rules of secondary Commu- nity law having direct effect in the domestic legal order have been adopted, 57 and cannot therefore arise when they involve the impo- (c) Existence of a specific obligation on the Commission to monitor whether the works financed comply with Community environ- mental legislation

The Commission has per la Difesa della Cava and Others [1994] ECR I-483. In that case the question arose as to whether rights are con- such an obligation under primary and sec- ferred on individuals by Article 4 of Council Directive ondary legislation whenever it proposes to 75/442/EEC of 15 July 1975 on waste (OT 1975 L 194, p. 39) which is in the following terms: 'Member States shall finance works likely to have an impact on take the necessary measures to ensure that waste is disposed of without endangering human health and without harming the environment and, in particular, without risk to water, air, soil and plants and animals, without causing a nuisance through noise or odours, and without adversely affecting the countryside or places of special interest.' Certain indi- 58 — A characteristic example is afforded by the judgment of the viduals had relied on the provision in question before the Court in Case C-168/95 Arcaro [1996] ECR I-4705 con- national courts, seeking annulment of the decision of a cerning Council Directive 76/464/EEC on pollution caused national authority involved in the application of that provi- by certain dangerous substances discharged into the aquatic sion, on the ground that the domestic rules did not provide environment of the Community. After reiterating its settled for the measures necessary to encourage processing and position on the horizontal and non-horizontal effect of recycling of waste. The Court considered in the end that directives, the Court decided that provisions of directives Article 4 of the directive indicated a programme to be fol- which require a person discharging cadmium to seek and lowed and set out the objectives to be followed by the obtain authorization for that purpose cannot in and by Member States in the performance of the specific obliga- themselves, and without the national legislation applicable tions imposed on them by other articles o f the directive. in connection with the application of those provisions being T h u s , the provision at issue must be regarded as defining taken into account, justify an aggravation or diminution of the framework for the action to be taken by the Member the discharger's criminal liability for infringement of those States regarding the treatment of waste and not as requiring, provisions. in itself, the adoption of specific measures or a particular method of waste disposal.

See also footnote 109 below.

62. I will begin by observing that the Treaty provisions concerning the environment are not mere proclamations of principle. Para- graph 1 of Article 130r may refer in general terms to the pursuit of objectives to which 64. I consider that the above obligations Community policy must contribute in the imposed on the Commission flow from a sector of the environment, and paragraph 2 framework of rules which may in a proper may trace the general principles of that case give rise for a certain category of indi- policy, but the last sentence of the first sub- viduals to the right to seek the assistance of paragraph of paragraph 2 of Article 130r of the courts to secure compliance with those the Treaty appears to impose on the Com- obligations. Moreover, it is not by chance munity institutions a specific and clear obli- that the Community judicature has already gation which could be deemed to produce discerned the need to link the obligations direct effect in the Community legal order. It imposed on national authorities by clear expressly states that: 'Environmental protec- rules of secondary Community law relating tion requirements must be integrated into to environmental protection with the possi- the definition and implementation of other bility for individuals to secure compliance Community policies.' with those obligations through the courts. That is the conclusion to be inferred from the aforementioned case-law of the Court o n

the direct effect of Directives 80/68/EEC, sion's specific and clear obligation to take 79/409/EEC and 80/779/EEC. More specifi- into account the safeguarding of environ- cally, there is a discernible intention in that mental interests at the same time as adhering case-law on the part of the Community judi- to the relevant Community legislation dur- cature not to leave monitoring of observance ing the financing of the relevant works in the of that secondary Community law in the Canary Islands, is not of concern solely to sole care of the privileged parties mentioned the Commission but is also of relevance for in the second paragraph of Article 173 of the certain individuals. The latter may seek judi- Treaty because the legislation in question is cial protection in the event of non- perceived to be closely interrelated with the compliance with that obligation, provided of protection of a certain group of individuals. I am of the view that the same philosophy course that they satisfy the procedural should inform the Court in cases, such as the requirements in that connection. present one, in which the Community rule does not merely impose obligations on Member States but directly concerns the activity of Community bodies. Moreover, the fact that the Commission does not itself intervene in the environment but merely finances an intervention in it does not neces- sarily mean that its decisions in that connec- tion may not be likely to affect certain indi- viduals, and indeed in a direct and individual manner. 61

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B — Whether the contested decision was of international level in the direction of more individual concern to the appellants effective judicial protection of legal interests of an environmental nature and on the dan- ger of the legal vacuum in their legal protec- tion created by the order appealed against. Indeed, they advance a series of criteria which, in their view, the Community judica- 67. As stated above, the Court of First ture must assess when it is called upon to Instance, in the order appealed against, came decide upon the admissibility of an action to the conclusion that the contested decision involving a question of damage to the envi- was not of individual concern to the appli- ronment. cants and, on that ground, adjudged the action to be inadmissible. It is that view of the matter taken by the Court of First Instance that the appellants are contesting in this appeal. 70. I shall next examine the question whether the order of the Court of First Instance appealed against was correct. In so doing, I shall distinguish between (b) the position which it took as against applicant 68. The appellants also challenge the adher- individuals and (c) that which it maintained ence by the Court of First Instance to settled as against the applicant environmental asso- case-law to the effect that a decision of a ciations. However, before embarking o n Community institution can be of individual those issues, I consider it essential to refer to concern to persons other than the addressee a problem discussed by the parties — which thereof only if that decision affects them by of course argued the point from opposing reason of certain attributes peculiar to them, positions — touching on the quality and or by reason of factual circumstances which completeness of judicial protection afforded differentiate them from all other persons and by the national (Spanish) courts (a). thereby distinguish them individually in the same way as the person addressed. That is the major premiss of the legal reasoning fol- lowed by the Court of First Instance.

one of the matters examined when inquiry is their legally protected rights and interests. 63 made into the correct interpretation and The fact that the contested Commission application of the procedural preconditions decision relates to construction works in laid down in the fourth paragraph of Article Spain does not necessarily mean that persons 173 of the Treaty. Even though, from a theo- desirous of contesting it have to proceed retical viewpoint, I am opposed to the con- before the Spanish courts. N o r does it mean, sideration of that factor because the possibil- at least in theory, that that decision may not, ity of seeking redress before the national in and by itself, affect the rights and legal courts does not preclude the possibility of interests of certain persons, irrespective of directly calling in question before the Com- whether any national administrative acts munity judicature the legality of a decision concerning those construction works subsist of a Community institution, where the pro- against which only the means of redress cedural requirements of the fourth paragraph afforded by national law are available to the of Article 173 of the Treaty are satisfied,62 I persons concerned. do consider it necessary to stress the follow- ing further matters:

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in that connection to the Court of Justice for tainly not be as far-reaching and comprehen- a preliminary ruling. They go on to stress sive as that which would have been secured that that solution was the most appropriate if by the appellants, had their action before the it is borne in mind that the national court is Court of First Instance been successful. The the ordinary court having jurisdiction to judgment of the national court could not apply Community law. extend to cover the issue of legality of the financing per se or, a fortiori, lead to the set- ting aside of the Commission decision to continue financing.

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In the first place, it should be emphasized that, notwith- standing the apparent homogeneity of its judgments, at least in their formulation, the Court does not profess to adhere to an entirely immutable point of view. 67 Indeed, it is prepared to ease the procedural 77. N o n e the less, the appellants further obstacles, when the specific nature of a case submit that the Court of First Instance erred so requires, for the sake of affording more in law by misinterpreting the procedural rule comprehensive judicial protection. 68 contained in the fourth paragraph of Article 173 of the Treaty and drawing erroneous conclusions from the case-law of the Court of Justice on that rule. That ground of appeal is formally admissible and I now turn to examine it. 79. In the first place, locus standi in favour of individuals presents no particular difficul- ties in cases where they have participated in the preparation of the contested act, 69 or 65 — In any event I will not dwell on the further element as to where Community law has made provision the manner in which the applicants are distinguished 'in the same way as the person addressed'. That specific require- for a special procedure prior to adoption of ment, which is not expressly laid down in the relevant pro- vision of the fourth paragraph of Article 173 of the Treaty, the contested act, in which those individuals is correctly demanded by the Community judicature in may participate and submit their observa- cases of an economic nature but cannot play the same role in cases such as the present one because, otherwise, it tions. O n the basis of that reasoning, an would deprive that provision of all effect.

allocated. In other respects the 'distinguishing' requirement in regard to applicants remains entirely legitimate and cur- rent, 67 — I refer, for example, to the alteration in the case-law brought about by the Court in its judgment in Case 66 — The procedural restrictions contained in the fourth para- C-152/88 Sofrimport [1990] ECR I-2477 in relation to an graph of Article 173 of the Treaty cannot be called in ques- earlier authority. O n that case, see below at paragraph 86. tion even where the interest at stake is the protection of the

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its competitors, against the Commission consistent line of decisions of the Court that decision exempting that agreement under persons other than those to whom a decision Article 85(3) from the prohibition laid down is addressed may claim to be concerned in Article 85(1), was held to be admissible. 70 within the meaning of the second paragraph Also held to have standing have been per- of Article 173 only if that decision affects sons who complained to the Commission of them by reason of certain attributes which unlawful State aid and submitted observa- are peculiar to them, or by reason of circum- tions in the procedure under Article 93(2) of stances in which they are differentiated from the Treaty. 71 all other persons, and by virtue of these fac- tors distinguishes them individually just as in the case of the person addressed (...). More particularly, as regards the circumstances referred to in that judgment, the Court has repeatedly held that where a regulation accords to applicant undertakings procedural guarantees entiding them to request the Commission to find an infringement of Community rules, those undertakings should be able to institute proceedings in order to protect their legitimate interests (...)' (emphasis added). 73 80. The justification, in the final analysis, for the Court's upholding the admissibility of the actions in the above cases was elucidated in Cofaz 72 as follows: 'It is clear from a

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Court's settled case-law to the effect that a believe that in that regard the Court's case- measure cannot concern applicants individu- law shows evidence of significant develop- ally when it applies to objectively defined ments and fluctuations. situations and produces legal effects on cat- egories of persons determined in a general and abstract manner. It should also be noted that whether a measure challenged is objec- tive in nature must not be confused with the number of persons affected by it. A single person may be affected by a decision, but (1) Initially, as for example in the Toepfer77 that does not mean that such person is 'indi- and Bock 78 cases, the Court deemed it vidually' affected by it for the purposes of decisive, in favour of the admissibility of the fourth paragraph of Article 173 of the an action, that 'the number and identity Treaty. 75 Again, '(...) the possibility of deter- of importers concerned in this way was mining more or less precisely the number or already fixed and ascertainable' before even the identity of the persons to whom a the date of adoption of the decision. It measure applies by no mean implies that it also considered that the Commission was must be regarded as being of individual con- in a position to know that its decision cern to them as long as it is established that would affect the interests and situation of such application takes effect by virtue of an those importers 'alone'. It went on to objective legal or factual situation defined by conclude that 'the factual situation thus the measure in question (...)'. 76 created differentiates the latter from all other persons and distinguishes them individually just as in the case of the per- son addressed'. 79

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83 — Cited above at footnote 67. 81 — Paragraph 19 of the Piraiki-Patraiki judgment cited in the 84 — Opinion of Advocate General Tesauro of 22 November preceding footnote. 1989, Sofrimport [1990] ECR I-2492. 82 — Paragraph 21 of the Piraiki-Patraiki judgment cited above 85 — Paragraph 11 of the Sofrimport judgment, cited above at at footnote 80 (emphasis added). footnote 67.

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85. In reaching that conclusion, the Court importers. 87 None the less, it is essential for had regard, as in Piraiki-Patraiki, to the that closed class to be 'sufficiently well Commission's specific obligations, under the defined'. 88 For the purposes of such defini- applicable Community law, in regard to the tion, the Court attached particular impor- framing of its contested decision. In actual tance to the nature and extent of the Com- fact, a Council regulation had imposed on mission's obligations under the applicable the Commission the requirement to take into legislation. consideration, when adopting protective measures, the specific situation of goods in transit to the Community. It is also notewor- thy that in Sofrimport it is expressly stated that, where a Community rule affords special protection to a specific group of importers, (3) I wish now to draw attention to 'they must therefore be able to enforce two judgments of the Court which observance of that protection and bring legal highlight the importance attached by the proceedings for that purpose'. 86 Community judicature to the effects which the contested decision is likely to have on the applicant. Those effects may give rise to a factual situation which sufficiently 'distinguishes' the applicant.

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the Soviet Union. On the basis of the case- dumping duty is of direct and individual law as it then stood, a distinction was made concern to any undertaking which is able to between producers, exporters and the com- establish (...) that it is identified, explicitly or plainants, on the one hand, and independent implicity, by the measure in question (...). importers, on the other. As regards the latter, The Court should in my view clarify the the issue of admissibility was dealt with by case-law by expressly acknowledging that, at the Court in a particularly succinct man- least in the anti-dumping field, it is not nec- ner. 90 Consequently, Extramet, as an inde- essary for an applicant, in order to establish pendent importer of calcium metal, could standing, to address the additional question not be deemed to be affected by the con- of whether the contested measure constitutes tested regulation having regard to its status, a regulation or a decision. which did not differentiate it from any other undertaking already carrying on the same activities or capable of doing so in the future. 91

This approach accords with the purpose of Article 173, which is designed to enable persons to challenge measures having a particular impact on them, while limiting the right to challenge regulations so that there is no risk of their annulment being sought by an unlimited class of applicants. (...)'. 92

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93 ing a fixed number of persons which could not be enlarged after adoption of the meas ure at issue. The applicant undertaking did in fact come within that clearly defined cat egory. 9 6 However, that factor is not suffi cient because, in accordance with the case- law, there must be a specific connection between the applicant's situation and the contested measure. A particular link of that kind, which also enables the 'class' of poten tial applicants under the fourth paragraph of Article 173 of the Treaty to be determined,

The Council raised an Finally, the Advocate General, having regard objection of inadmissibility, contending that to all the evidence adduced by the applicant that measure was of a purely legislative in connection with the impact on it of the nature and did not concern the applicant, contested measure, concluded that 'the appli except in its capacity as a producer using the cant is also distinguished from the category term 'crémanť, that is to say in the same way of traders affected by the effects which the as it concerned any other producer in the measure has on its undertaking, and the same situation.

ness. Thus, undertakings which participated in the pro cedure under Article 93(2) of the Treaty in order to oppose State aid have standing to bring an action before the Com 93 — Paragraph 17 of the Extramet judgment, cited above at munity judicature '(. . .) provided, however, that their pos footnote 89 (emphasis added). ition on the market is significantly affected by the aid which 94 — Judgment in Case C-309/89 Codorniu v Council [1994] is the subject of the contested decision (.

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on the basis of evidently more elliptical rea- decisive the fact that the legal effects which soning. 99 the contested regulation was likely to pro- duce concerned categories of persons in a general and abstract manner.

92. I do not believe, however, that that judg- ment constitutes a departure from Extramet. 91. The significance and extent of mitigation The Court was seeking to exclude cases in by the Court, in Extramet and Codorniu, of which an increasingly broad interpretation the rigour of the case-law should not, how- and application of the procedural provisions ever, be overstated. At least I infer as much of the fourth paragraph of Article 173 of the from the Buralux judgment mentioned Treaty would lead to recognition of a right above. 100 In that case the Court, on appeal, of action by individuals against rules of upheld as correct an order of the Court of Community law and not against individual First Instance which had dismissed as inad- decisions. In other words, in Buralux, the missible an action for annulment of provi- Court wished to safeguard the legislative sions of a regulation concerning the monitor- nature of the regulation, as it did in Deutz ing and control of shipments of waste within and Geldermann. 102 the Community. The action had been brought by undertakings engaged in the col- lection, shipment and dumping of household waste. The Advocate General proposed that the Court should declare the action brought (ii) The procedural restrictions in the fourth by one of the undertakings to be admissible paragraph of Article 173 of the Treaty and under the Extramet 101 criteria. The Court the particular nature of the present dispute did not follow that proposal, regarding as

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103 — See paragraph 56 of the order appealed against. 104 — For a discussion of an analogous problem see Case C-142/95 P, cited above at footnote 33. 106 — See footnotes 70 and 71 above. 105 — See paragraphs 58 and 59 above. 107 — See footnotes 80 and 67 above.

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ested parties. Finally, it does not follow from the nature of the obligation imposed on the Commission in connection with the adop- 97. Accordingly, no inference may be drawn tion of the contested act that a group of indi- directly, either from the obligations imposed viduals has locus standi to bring proceedings in the event of any infringement of that obli- gation. That obligation consists in the moni- 109 — Moreover, if, finally, a Commission decision, such as the toring of the application of Community leg- one at issue, were deemed individually to affect those per- sons constituting the public to which Directive islation by the national authorities which 85/337/EEC refers, then, whenever an environmental impact assessment is required for infrastructure works implement the funded projects and does not benefiting from financing (most frequently the case), a expressly concern the protection of certain particularly wide category of persons could bring proceed- ings before the Community judicature against decisions of

making procedure. In any event, however, the majority of the 'public concerned' in the drawing up of such proceedings would be inadmissible for lack of any legal interest- We would thus arrive at the paradoxical situ- the environmental impact assessment, that ation in which the procedural conditions laid down in the does not automatically mean that those per- fourth paragraph of Article 173 of the Treaty — that the contested act must individually affect the applicant sons comprising the 'public concerned' are — would be met more readily than the requirement of the existence of a legal interest. individually affected by the contested Com- It might, finally, be objected that relaxation to such an extent of the locus standi conditions is justified in extreme cases, such as the present one, that is to say where the Commission declines to perform its supervisory function in order to bring to an end a substantial irregularity, such 108 — Those differences are not so crucial if it is accepted that, as failure to obtain an environmental impact assessment.

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The Court's case-law. significance of that point may, of course, be doubted. In accordance with existing case- law, if a person is affected by an act, whether of an individual nature or in the nature of a regulation, in a general and abstract manner, that finding suffices to deny that person locus 98. (bb) In light of the foregoing, the Court standi, without the need for further distinc- of First Instance in fact faithfully followed tion as between the legislative or non- the case-law established hitherto. If the sole legislative nature of that act. 111 criterion of correct interpretation of th fourth paragraph of Article 173 of the Treaty is the reiteration of the viewpoint hitherto judicially accepted, then the order appealed against is unimpeachable.

7). Proceedings brought by sellers of margarine against the ife. According to the Court of First Instance, Commission decision in favour of Germany in connection with the promotion of sales of butter in the West Berlin the contested decision 'for them (. . .) is a market were held to be inadmissible. According to the measure whose effects are likely to impinge Court's judgment, 'although the contested decision affects the applicants, that is only because of the effects it pro- on, objectively, generally and in the abstract, duces on their position on the market. In that regard, the decision is of concern to the applicants just as it was to various categories of person (.

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general and objective nature of the results paragraph of Article 173 of the Treaty. It produced by the act are due not to its legisla- would equally be impossible to lay down tive nature but to its subject-matter. In this specifically for cases raising issues of envi- problematical context, I believe the appel- ronmental protection requirements as to lants' submission as to the particular nature locus standi which differ from those con- of the consequences which an intervention in tained in the abovementioned provision. In the environment has, or is likely to have, to the final analysis, the starting-point for be worthy of consideration. appraisal of locus standi cannot but be the same in all cases, irrespective of the subject- matter of the dispute: the applicant must be individually affected by the act which he contests.

of the fourth paragraph of Article 173 of the Treaty. 115 In light of the particular nature of the issue of environmental protection, I con- sider that the Community judicature, in par- 103. That unexceptionable statement cannot ticular in cases where that protection is likely of course lead, on account of the special nature of the environmental legal interest, to the setting aside of the procedural require- 115 — I believe, moreover, that judicial protection within a legal ments laid down in the fourth paragraph of order governed by the rule of law must seek to safeguard the rights and interests conferred by that legal order on

tal dimension. As I stated above, 114 a depar- interpret the written procedural rules-in such a manner as entirely to debar a person entitled to a right or legal inter- ture in the case-law in that direction is est (in the substantive sense of that term) from access to justice to defend his interests under the legal order, first, impossible because, apart from the practical renders nugatory recognition by substantive law of those obstacles which would be encountered, it rights and legal interests and, secondly, must be regarded as wrong in law, inasmuch as the procedural provisions arc would run counter to the letter of the fourth laid down by the legal order in order to provide a struc- tural framework, in so far as practicable, to give effect t o the rights or legal interests conferred on persons subject t o it, and not — absolutely and uniformly — in order entirely to debar them from judicial protection.

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to have been undermined by a non- ingly, persons close to the construction legislative act of a Community body, must works suffer its consequences in a different, not rest content with the self-evident finding more intense manner than persons farther that the likely harm to the environment by away, the latter being at a greater radius from its very nature affects categories of persons the epicentre of the intervention in the envi- in a general, objective and abstract manner, ronment. By way of logical extension, it may and must not, on that ground alone, dismiss be argued that persons near the epicentre the action brought. That is particularly so comprise a particularly closed and defined when the Community body was under a 'class', 'who find themselves in a situation specific and clear obligation to take account, which differentiates them from any other on adoption of the contested decision, of the person. It is then the task of the courts to factor of conservation of the environ- determine, on the basis of the appropriate ment. 116 On this point, then, I would draw criteria, the breadth of that closed class, the the attention of the Court to a possible and, width of its radius. By logical extension, per- in my view, appropriate easing of the sons within that class should be regarded as requirements laid down in the case-law. having locus standi to bring an action against Allow me to explain: the decision occasioning consequences for the environment.

116 — Sec paragraphs 62 to 65 above. 118 — 'Community policy (...) shall be based on the precaution- ary principle and on the principles that preventive action 117 — This phenomenon may be likened to the throwing of a should be taken, that environmental damage should as a stone into a lake which creates on the surface of the water priority be rectified at source (...)' (emphasis added). a series of concentric circles. Etymologically, moreover, the notion of a circle is inherent in the term 'environment'. 119 — For example, construction of a conventional power station For example, in Greek, the word for environment would be dealt with differently from that of a nuclear ('perivallon') comes from 'peri' (around) and 'vallo' power station. (throw); in French or English from the word 'envirum'; 120 — The gravity of the consequences was, moreover, one of the and the German equivalent "Umwelt* is made up of 'urn' basic criteria taken into account in drawing up the annexes (around) and 'Welt' (world). Thus, that term refers to an to Directive 85/33 7/EEC and distinguishing the works for object which encompasses something else, that is to say which a mandatory environmental impact assessment is encloses and embraces it. required from those for which such assessment is optional.

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niu. 123 — English law: in R v Secretary of State for Trade and Industry, ex parte Duddridge and Others [1995] ELR 151 the decision of a public authority not to limit by regulation electromagnetic emissions from electricity cables may be challenged before the courts by parents residing in the area in which new electricity cables are placed, relying solely on the increased danger of leu- kaemia to which their children are exposed as a specific consequence of high electromagnetic levels. — Belgian law:

Bundesverwaltungsgericht (Fed. Admin. particularize the procedural condition that Ct.), 1.12.82, BVerwGE 66, p. 307 (crab-fishermen the contested act must concern the applicant case): proceedings held to be admissible brought by fishermen against decision approving dumping at sea of individually. In my opinion, it cannot be liquid toxic waste on ground of reduction in fish popu- lation as a result of dumping of waste. maintained that this approach no longer

2281/1992: Inhabitant of the centre of a large town held to have locus standi to seek the quashing of deci- continues to be the decisive criterion also sions authorizing clearance of wooded area on edge of under the solution now advanced. Admit- town. Held that the town and threatened woods belonged to same geographical basin which 'consti- tedly, on this view of the matter, the require- tuted an unbroken ekistic whole with very few green spaces in constant diminution. Thus, the unfavourable ment of differentiation is assimilated to that consequences for the ecological balance and for the of the existence of an individual legal interest quality of life of its inhabitants of the decisions leading to clearance of a wooded area in that basin are experi- and is perhaps identical with it, albeit that enced not only by those in its immediate vicinity but also by those in more distant and lower-lying areas, the Community judicature has hitherto not and indeed in some cases more intensely by the latter.' — French law. Vicinity constitutes the principal criterion of locus standi for natural persons i n planning cases (Conseil d'État, 22.10.86, Reynaud, Lebon, p. 652).

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been accustomed to that assimilation. I do judgments in Bock, Piraiki-Patraiki and not believe, however, that, in particular in Sofrimport. 126 I consider therefore that the cases such as the present one, to approximate situation of a natural person who was the Court's reasoning on the individual already enjoying environmental protection nature of the effect on the applicant to the of a certain quality, before the alteration reasoning followed by the majority of likely to be brought about by the contested national courts in determining the legal inter- act of the Community institution, is est of the individual, runs counter to the for- analogous to the situation of the applicants mulation and spirit of the fourth paragraph in the above cases and is equally deserving of of Article 173 of the Treaty or to the under- judicial protection. lying rationale of the Court's existing case- law, even if it does not constitute a linear continuation of that case-law.

125 — That criterion is also to be found in Sofrimport (cited above at footnote 67), Codomiu (cited above at footnote 94), and Extramet (cited above at footnote 89). 126 — See above, footnotes 78, 80 and 67.

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of First Instance in paragraph 54 of the order ations which had brought proceedings before appealed against is correct. 128 it, that is to say Greenpeace, TEA and CIC, are not affected individually by the contested act within the meaning of the fourth para- graph of Article 173 of the Treaty and thus do not have locus standi In particular, according to the reasoning of the Court of First Instance, the environmental associ- (c) Locus standi of the appellant environ- ations did not have that procedural possibility mental associations because, first, its members could not inde- pendently bring annulment proceedings and, secondly, those associations did not play any special role in the procedure which led to the adoption of the contested decision such as to give them locus standi under the Court's 114. As stated above, the Court of First existing case-law. 129 Instance held that the environmental associ-

impact on the environment. The importance attached b y both Community and national law to that assessment should indeed be emphasized. Whether those works can be implemented and under what specific terms and condi- tions will in the end be determined by that assessment. Prior to completion of the assessment, it is not possible 115. The appellant associations do not call in accurately t o determine the impact which the works in question will have on the environment or, a fortiori, question the second limb of the lower whether those works should be carried out and, by logical extension, whether they should be financed by Commu- court's reasoning. 130 I will dwell no longer nity funds.

the works financed. It may then suffice for them to invoke munication which those environmental associations had their s u m s as residents of the wider area in which the with it may be said to amount to participation by them in works in question are being carried out or as persons car- a special Community procedure thus differentiating them rying on occupations in that area. Under that interpreta- in relation to the contested act. tion, the matters relied on by the appellants in the present 131 — See, for example, judgments in Joined Cases 19/62 to case were in principle sufficient for them to be deemed to 22/62 Fédération Nationale de la Boucherie en Gros and be affected individually by the contested act, in which case Others v Council, Case 72/74 Union Syndicale and Others the order of the Court of First Instance is wrong in law v Council, Case 282/85 DEFI v Commission (cited above and should be set aside. at footnote 11) and Case 191/82 FEDIOL v Commission [1983] ECR 2913.

117. The Court is thus invited to embark o n a further extension of its case-law. For m y part, I consider it desirable to set out the fol- lowing observations. First, I believe that a relaxation by the Court, to the extent 116. None the less, the appellant associ- sought, of the criteria of admissibility could ations argue that, in general, legal persons be abused and lead to aberrant consequences. which represent the interests of a group of Natural persons without locus standi under persons should be recognized as having the the fourth paragraph of Article 173 of the right to bring proceedings against a Commu- Treaty could circumvent that procedural nity act where one or more of their members impediment by setting up an environmental would have locus standi to do so or where association. Moreover, whilst the number of that legal person can show the existence of a natural persons, that is to say citizens of the specific right or interest. As regards the sec- European Union, however high it may be, ond alternative basis of locus standi which none the less remains limited, the number of they put forward —which, it is to be noted, environmental associations capable of being finds no support in existing case-law — the appellant associations make the following created is, at least in theory, infinite. But, observations: in their view, the Court ought even if that obstacle could be overcome, for to recognize the existence of a specific inter- example, by conferring locus standi only o n est on the part of environmental associations associations constituted prior to adoption of to bring annulment proceedings against acts the contested measure, account would have which jeopardize environmental protection, to be taken of the fact that, within the Euro- even where their members or other natural pean Union, the number of legal persons persons cannot show themselves to be indi- which have as their object the protection and vidually affected by such an act. In that way, conservation of the environment is today it is contended on behalf of the appellants, it is possible to ensure adequate judicial pro- tection in favour of natural persons who, 132 — The appellant associations also stress that to confer on though affected by a Community act having them locus standi would enable judicial review of Commu- nity measures concerning the environment to be exercised negative consequences on the environment, in a more consistent and coherent manner.

118. For those reasons and notwithstanding the recent developments in national and international law, I continue to have signifi- cant reservations concerning the expediency of the departure from existing case-law sought by the appellant associations. More- 119. From all the foregoing, I conclude that over — and this I think is the decisive argu- the order of the Court of First Instance ment — to give to environmental associ- appealed against is unimpeachable and there ations the possibility of challenging can be no question of its being set aside. Community measures concerning the envi- Moreover, there is no need to examine the ronment would, notwithstanding the posi- remaining objections of inadmissibility tive consequences which might well flow raised by the Commission and Spain, that is from this, run counter to the letter of the to say whether a decision to continue financ- law, in this case of Article 173 of the Treaty. ing infrastructure works can direcdy affect The Community legislature has divided the rights or interests of the appellants or applicants into two categories, namely those whether that measure, by its very nature, can mentioned in the second and those men- constitute the subject-matter of proceedings tioned in the fourth paragraphs of Article under the fourth paragraph of Article 173 of 173. To accept the interpretative approach the Treaty. advocated by the appellant associations would be tantamount to creating a third cat- egory extra legem. In other words, between the privileged parties mentioned in the sec- 133 — Moreover, I do not see why locus standi should be granted in that way as a privilege only to environmental ond paragraph, who are not required t o associations and not to other legal persons of a representative invoke any legal interest, and the parties nature. Invocation of the special nature of environmental protection, extensively canvassed above, cannot, in my mentioned in the fourth paragraph, who view, justify different treatment of environmental associa- tions in relation to associations which have other, analo- must be directly and individually affected b y gous objects.

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