In recent decades it has become a matter of common sense that protection of the environment and of natural resources represents a fundamental societal need. Environmental protection is a diffuse interest on behalf of which individuals are not always in a position to act. Non-governmental organisations (hereinafter NGOs[1] ) promoting environmental protection should therefore also be given the opportunity to ask the competent authority to take action. NGOs can thus, for instance, also pursue the objective of protecting against impairment of natural resources not owned by any particular person. Moreover, NGOs acting in the public interest, such as in relation to the environment, contribute to increasing public awareness and improving participation by stakeholders. Agenda 21 stated that 'one of the fundamental prerequisites for the achievement of sustainable development is broad public participation in decision-making'.[2]
The environmental provisions of the EC Treaty do not mention European environmental NGOs, though they are essential to co-ordinate and channel to the Community institutions information and views on the new and emerging perspectives, such as on nature protection and transboundary environmental problems, which cannot be, or are not being, fully dealt with at the Member State or subordinate level.[3 ]NGOs participate in expert groups, in preparatory and implementation committees of the Community institutions, providing important input to Community policies, programmes and initiatives.
Environmental groups were slow to appreciate the implications of the evolving Community environmental policy because the European integration has been viewed with scepticism by many within the environmental movement.[4] Partnership between the European Commission and the NGOs has expanded since 1974, when the European Environmental Bureau (EEB) was founded. This Bureau is a federation of environmental citizens' organisations which aims to involve its membership in relevant EU decision-making. From 1985 it was gradually accompanied in Brussels by offices set up by European and international organisations (whose members were partially involved in the EEB directly as well).[5] In combination with the EEB these organisations initially became known as the 'gang of four'. Greater coordination of the environmental lobby was gradually expanded with the participation of six further specialist networks. At the moment, the Green 10 consists of the ten leading environmental NGOs active at EU level. These organisations are significantly understaffed and under-resourced, and face a number of structural and logistical problems in Brussels.[6]
In the early period of Community policy making their scientific expertise was vital both in providing the Commission with critical scientific views and the public with the necessary information to understand environmental problems.[7] Now the common perception both inside and outside the Commission is that the technical expertise of NGOs does not measure up to that of industrial groups, and that they lack the ability to discuss the costs and benefits of policy options in real terms. They are good at offering criticism, but not so good at offering constructive alternative suggestions.[8]
The environmental groups have established formal and informal relations within the national arena and also at the EU level, although the informal connections at the EU level are probably more important in terms of influencing EU environmental policy outcomes.[9] Much of the contact by the environmentalists with the European Commission and the European Parliament was designed to influence policy and give valuable political support to the EU-level policy-makers. Subsequently, during the implementation phase, environmental NGOs have supplied information about implementation deficits at the national level to the Commission that has equipped it with necessary evidence with which to take legal action in the ECJ against those Member States that had failed to implement fully or properly the Community legislation.
Environmental NGOs are considered to play the role of an effective "watchdog", but they often lack the means to truly fulfil the function of the protectors of collective interest in environmental protection.[10 ]There are strong arguments in favour of their possibility for direct legal action against polluters, and against also certain illegal acts of the Community institutions risk being left unremedied if associations are not accorded locus standi in order to seek their judicial review. This is the case, in particular, with respect to violations which concern large and diffuse
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interest, and/or in systems where the admissibility of the action is made conditional upon a demonstration that the interest is sufficiently 'individualized', i.e. specific to the individual applicant rather than common to an open category of persons of which the litigant is a member.[11] However, the Sixth Community Environment Action Programme[12] encourages more effective implementation and application of Community legislation on environmental protection, including the enforcement of Community rules and taking of action against breaching of Community environmental legislation. This solution could enhance respect for environmental law and could reduce the enforcement deficit also with regard to environmental law.
Private parties may seek judicial review under Article 230(4) EC (ex Article 177 EC), i.e. the annulment of a decision taken by a Community decision.[14] Under this Article of the EC Treaty 'any natural or legal person may ... institute proceedings against a decision addressed to that person or against a decision which, although in the form of regulation or a decision addressed to another person, is of direct and individual concern to the former'.[15]
The meaning of 'direct and individual concern' was clarified by the European Court of Justice (hereinafter ECJ) in the case of Plaumann & Co. v Commission,[16 ]and has been settled in the subsequent case-law. The Court concluded that individual applicants are concerned by a decision, if that decisions affects them 'by reason of certain attributes which are peculiar to them, or by reason of factual circumstances, which differentiate them form all other persons and thereby distinguishes them individually just as in the case of the person addressed'.[17] This narrow approach taken by the ECJ to the interpretation of Article 230(4) has been widely criticised for being too restrictive, and the issue of the relaxation in the definition of 'direct and individual concern' for non-privileged applicants has been subject of much academic debate for many years.[18] Among others, the Court's own Advocates-General have argued in favour of a broader definition of the citizen's access to judicial review under Article 230(4).[19] Although the EU judicial system has been substantially reformed several times, Article 230(4) had been left untouched, which is likely to reflect a lack of consensus among the Member States on the standing issue.[20]
'Direct concern' requires that the Community measure directly affects the legal situation of the litigant, and leaves no discretion to those who have the task implementing it. The requirement of 'individual concern' constitutes the largest obstacle for private parties, and the 'individual concern test' is especially hard to pass for environmental NGOs. Protection of the environment is not of individual concern, but concerns all of us. The question of standing, especially in the field of the environment where private interests in the conventional sense may not be at risk, has long proved a problem.
In Sticthing Greeanpeace Council (Greenpeace International) v Commission,[21] the ECJ applied the direct and individual concern test to an environmental NGO. Greenpeace, together with two other environmental NGOs and several individuals, lodged a complaint under Article 230(4) for the annulment of the decision of the Commission to grant Spain financial assistance concerning the construction of two power stations in the Canary Islands by Unión Eléctrica de Canarias SA ("Unelco"). Two of the applicants in the case informed the Commission by letter in December 1991 that the building of the power stations was started without undertaking an environmental impact study, as required by Council Directive 85/337/ EEC.[22] Subsequently, several NGOs and other applicants contacted the Commission and instituted domestic proceedings against the project. The applicants further requested that the Court order the Commission to release the documents relating to the funding. The request was rejected. The applicants brought an action before the Court of First Instance (hereinafter CFI) seeking annulment of the decision of the Commission to disburse funds to the Spanish Government in reimbursement of expenses incurred in the construction of the power stations.[23] Several arguments were put forth, but the matter centred on the plea of inadmissibility raised by the Commission and whether the applicants were directly and individually concerned by the challenged decision.[24 ]The CFI, citing the ECJ's Plaumann-jurisprudence, held the action inadmissible on the ground that even if the individual applicants were to suffer the damage to their health they alleged, they had failed to demonstrate being individually and directly concerned by the Commission decision. The applicants were affected only in their objective status as residents on the islands. Since any other resident of the Canary Islands would suffer similar or identical damage, the applicants had failed to show that the challenged decision affected them by reason of certain attributes which are peculiar to them, or by reason of factual
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circumstances, which were capable of differentiating them from all other persons. As for Greenpeace and other NGOs, according to case-law, an association was not entitled to bring an action for annulment where its members could not do so individually)[5] The role played by Greenpeace in the procedure which led to the adoption of the contested act did not constitute special circumstances since the Commission had not initiated any procedure in which Greenpeace participated prior to the adoption of the contested action.
The question whether the Commission decision was in fact a reviewable decision in the sense of Article 230 was left unanswered. The substantive issue remained also unresolved - there was a failure to conduct an environmental impact assessment before the Commission funding was paid and this procedural impropriety was not judicially reviewed.[26 ]Moreover, the Court's decision seems to endorse the paradoxical situation by which the more people adversely effect by breaches of Community law by Community institutions, the less chance they have of being heard.[27]
Greenpeace and the other applicants appealed from the CFI's order alleging that the approach adopted by the CFI created a legal vacuum in ensuring compliance with Community environmental legislation, since in this area the interests were common and shared by their very nature. The rights relating to those interests were also liable to be held by a potentially large number of individuals so that there could never be a closed class of applicants satisfying the criteria adopted by the CFI.[28] The appellants further argued that environmental protection was one of the Community's essential objectives in accordance with earlier judgments and submitted that Community environmental legislation could create rights and obligations for individuals. According to the appellants, environmental associations should be recognised as having locus standi where their objectives concerned chiefly environmental protection and one or more of their members were individually concerned by the contested Community decision, but also where their primary objective was environmental protection and they could demonstrate a specific interest in the question at issue.
The ECJ held first that the interpretation of Article 230(4) EC that the CFI had applied in concluding that the appellants did not have locus standi was in accordance with the settled case-law of the ECJ.[29] As regards the appellants' argument that application of the Court's case-law would mean that the rights which they derive from Directive 85/337 would have no effective judicial protection at all, the ECJ noted that:
"Greenpeace brought proceedings before the national courts ... Although the subject-matter of those proceedings and of the action before the Court of First Instance is different, both actions are based on the same rights afforded to individuals by Directive 85/337, so that in the circumstances of the present case those rights are fully protected by the national courts which may, if need be, refer a question to this Court for a preliminary ruling under Article 234 EC" .[30]
The ECJ's judgment was based on the view that Community measures of general application should have in principle been challenged by individuals through proceedings before national courts, and that individual applicants are granted effective judicial protection against unlawful measures because the national court may request a preliminary ruling on the validity of Community measures from the ECJ. The fact that the subject-matter of proceedings before a national court and that of an action before the CFI are different does not change matters in so far as both proceedings are based on rights derived by individuals from a superior rule of Community law.[31] Indeed, it does not seem unreasonable to ask individuals who argue that they suffered damage as a consequence of EC legislation, first to go before a national court, but this division between national and European courts presupposes that the procedure under Article 234 (ex Article 177) EC Treaty works effectively.[32]
In summary, as far as the locus standi of Greenpeace was concerned, the ECJ upheld the view of the CFI that an association formed for the protection of collective interests of a category of persons could not be considered to be individually concerned, for the purposes of Article 230(4). The attempt of Greenpeace to have the requirements of the EC Treaty less strictly interpreted in environmental cases was rejected. The European Courts heard none of the environmental evidence and instead threw out the case on the basis that the applicants had no standing. By not granting standing to Greenpeace to challenge a Commission decision to disburse funding despite an infringement of Directive 85/337, the ECJ lost a valuable opportunity to bring EC law up to date and into line with practice in the Member States.[33] It has been suggested that the reluctance on the part of the European Courts to revise criteria for locus standi under Article 230(4), as determined in the Plaumann and subsequent cases, was partly due to a fear of being flooded with appeals?[4]
It should also be said that the ECJ itself has not been consistent in its approach towards standing, at least, in the non-environmental field. A slightly less restrictive approach is apparent in the fields of competition law and anti-dumping,[35] and a rather more liberal approach has been adopted in the field
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of the Common Agricultural Policy.[36]
Adoption of the Aarhus Convention in 1998 marked a milestone in the development of environmental rights of the public.[37] The Convention establishes a number of procedural rights of individuals and their associations with regard to the environment. The European Commission signed the Convention on behalf of the Community with a view to its ratification. This, however, required changes to Community legislation. In 2003 two Aarhus-related directives addressed the first[38] and second[39] 'pillar' of the Convention. At the end of 2003, a special "Aarhus package" was adopted, consisting of a draft regulation on the application of the Convention to Community institutions,[40] a draft decision to ratify the Convention,[41 ]and a draft directive on access to justice.[42]
The Aarhus Convention allows for specific requirements that NGOs have to meet in order to obtain the right of access to be retained or introduced by providing that the "public concerned" is to be understood as including "non-governmental organisations promoting environmental protection and meeting any requirements under national law" (Article 2 (5)).[43 ]However, the Convention also requires that the procedures created provide adequate and effective remedies, and be fair, equitable and timely (Article 9(4)).
Under Article 9(3) of the Convention NGOs have the right not only to challenge acts and omissions by public authorities which contravene environmental law, but also acts or omissions of private persons that do so. According to the Implementation Guide to the Convention, Article 9(3) has been introduced to give citizens standing to go to court or another review body to enforce environmental law.[44] Such access is to be provided to members of the public "where they meet the criteria, if any, laid down in ... national law." In other words, the issue of standing is primarily determined at national level, as is the question of whether the procedures are judicial or administrative.[45]
The Aarhus Convention makes Community institutions subject to obligations concerning its three pillars. On 6 September 2006 the European Parliament and the Council adopted Regulation 1367/2006 on the applications of the provisions of the Aarhus Convention to Community institutions and bodies.[46 ]As the provisions of the Aarhus Regulation have to be in consistent with the EC Treaty, the Regulation addresses only acts and omissions by public authori-ties.[47] Administrative act is defined in Article 2(1)(g) of the Regulation as any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects. The definition of administrative omission encompasses any failure of a Community institution or body to adopt an administrative act as defined in Article 2(1)(g).
The Regulation introduces a preliminary procedure in Article 10, which allows any NGO meeting the criteria set out in Article 11 to make a request for internal review to the Community institution or body that has adopted an administrative act under environmental law. Internal review is a necessary step for the NGO to be entitled to access to justice. The criteria for entitlement at Community level are the following:
1) it is an independent non-profit-making legal person in accordance with a Member State's national law and practice;
2) it has the primary stated objective of promoting environmental protection in the context of environmental law;
3) it has existed for more than two years and is actively pursuing its objective;
4) the subject matter in respect of which the request for internal review is made is covered by its objective and activities.[48]
The new Aarhus Regulation do not represent a major improvement with regard to public interest rights in environmental matters. Environmental protection organisations which meet those objective criteria have no standing for the purposes of the fourth paragraph of Article 230 EC, because the principles governing the hierarchy of norms[49] preclude secondary legislation from conferring standing on individuals who do not meet the requirements of that Article. NGOS may institute proceeding before the ECJ only in accordance with the relevant provisions of the EC Treaty.[50] This provision still requires that the applicant must be "directly and individually concerned" by the decision.
Paraquat is an active ingredient which is a component of one of the three most widely used crop protection products in the world. Its herbicidal properties were discovered by ICI (a legacy company of Syngenta) in 1955 and it was introduced to world markets in 1962 under the brand name GRAMOXONE®. It is used to control annual and perennial weeds in a wide variety of crops. The key characteristics that distinguish paraquat from other active ingredients used in plant protection products are:
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- it is non-selective, which means it kills a wide range of annual grass and broad-leaved weeds and the tops of established perennial weeds;
- it is very fast-acting;
- it is rain-fast within minutes of application;
- it becomes biologically inactive upon contact with soil.[51]
Interfering in photosynthesis, paraquat desiccates the green parts of all plants with which it comes into contact. However it was the realization that paraquat could replace time- and labour-intensive ploughing methods, which led in the 1960s and 1970s to an extension of research around the world on a scale unprecedented for a single agricultural chemical and to a "revolution" in the preparation of land for crops. It has been used on more than 50 varieties of crops in more than 120 countries and marketed in the form of a herbicide for some 60 years.
This active substance has been criticised for its adverse impacts on workers and farmers since the 1960s. It has already been banned in 13 countries, including Austria, Denmark, Finland and Sweden.
Article 4 of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market[52] lays down the conditions and general procedure applicable to the granting, review and withdrawal of authorisations of plant protection products by the Member States. Annex I to this Directive contains the list of substances that can be authorised for use in plant protection products in the Community. The conditions required for the purposes of including active substances in Annex I are laid down in Article 5. Inclusion is possible only if, in the light of current scientific and technical knowledge, it may be expected that plant protection products containing the active substance in question will fulfil certain conditions relating to lack of harmful effects for human and animal health and for the environment.
Article 8(2) of Directive 91/414 provides Member States may, for a provisional period, authorise the placing on the market in their territory of plant protection products containing active substances not listed in Annex I. These substances, which were already on the market on 25 July 1993, are examined gradually as part of a programme of work by the Commission. In 1993, a number of paraquat producers, including Zeneca Agrochemicals (now: Syngenta Ltd) as the notifier, notified the European Commission of their wish to have paraquat included in Annex I. Point 83 of Annex I to Regulation No 3600/92[53] refers paraquat as one of the substances coming under the first phase of the Commission's work programme to in Article 8(2) of Directive 94/414.
Commission Regulation (EC) No 933/94[54] laying down the active substances of plant protection products and designating the rapporteur Member States for the implementation of Regulation No 3600/92 designated the United Kingdom of Great Britain and Northern Ireland as the rapporteur Member State that must assess the active substance and send the Commission a report of its assessment of the dossier, including a recommendation to include the active substance in Annex I or to take negative measures against it (i.e. the removal of the substance from the market).[55] The Commission specified furthermore the deadline for the notifiers with regard to the submission to the rapporteur Member State of the dossier required under Article 6(2) of Regulation No 3600/92, as well as for other parties with regard to further technical and scientific information. This deadline was 31 October 1995.
The UK submitted the relevant assessment report and recommendations to the Commission on 31 October 1996 in accordance with Article 7(1)(c) of Regulation No 3600/92, including a recommendation concerning the possible inclusion of paraquat in Annex I of the Directive. The Commission organised an intensive consultation of technical experts from a certain number of Member States, and circulated the full report, for comments and further clarification, to Member States and Syngenta (the main data submitter) on 30 July 1997. The report and further information were reviewed by the Member States and the Commission within the Standing Committee on the Food Chain and Animal Health,'[56] and were also submitted to the Scientific Committee for Plants. The final discussion in the Standing Committee's working group took place at meetings between June 2000 and July 2003.
On 12 June 2003, the European Environmental Bureau (EEB),[57] Pesticides Action Network Europe (PAN-Europe)[58] and Svenska Naturskyddsfôren-ingen (Swedish Society for Nature Conservation)[59 ]called on the European Ministers for the Environment and the Commission not to include paraquat in Annex I to Directive 91/414. Moreover, on 25 September 2003 the European Federation of Trade Unions in the Food Agricultural and Tourism Sectors and Allied Branches (EFFAT)[60] made the same request to the members of the Community institutions. The Commission's Standing Committee on the Food Chain and Animal Health voted in October 2003 to include paraquat in the list of authorised pesticides, despite a fierce lobbying campaign by NGOs to ban it. On 1 December 2003 the Commission adopted Directive 2003/112/EC[61] including paraquat in Annex I as an authorised substance, subject to certain conditions.
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Shortly after the approval of paraquat for use throughout the European Community, an action against the European Commission was brought before the CFI on 27 February 2004 by the European Environmental Bureau (EEB), Pesticides Action Network Europe (PAN-Europe), the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers's Association (IUF),[63 ]the European Federation of Trade Unions in the Food Agricultural and Tourism Sectors and Allied Branches (EFFAT), Stichting Nattuur en Milieu,[64] and Svenska Naturskyddsforeningen (Swedish Society for Nature Conservation). The applicants requested the Court to annul Directive 2003/112 and order the Commission to pay the costs of the proceedings.
The Commission, supported by Syngenta Ltd, denied that the applicants were directly and individually concerned by the contested act, and held the application to be manifestly inadmissible because of the legislative nature of the directive in question.[65 ]The CFI noted that the Commission was incorrect in maintaining that a legislative act cannot be challenged through an action for annulment brought by individuals. In principle, it is possible that an applicant may be directly and individually concerned by a directive if it can prove that it has a right which the Community institutions should have taken into account when they adopted the directive. This is because the mere existence of such a right means that its holder should be afforded legal protection.[66]
As to the requirement of being individually affected, the applicants claimed first that they were particularly affected by the directive because the activities consisted in defending the higher interests (i.e. environmental protection and public health) which were at stake in the case. Second, they claimed that the EEB and EFFAT had special advisory status with Community institutions, and the others had identical status with national and supranational authorities. Some of them had requested the Commission not to include paraquat in Annex I to Directive 91/414. Third, they pointed out that Natuur en Millieu and Svenska Naturskyddsforeningen were regarded as being directly and individually concerned by breaches of legal rules protecting environmental and wildlife interest under national laws. Fourth, they referred to the principle of effective judicial protection, the principle of equality of arms and the Aarhus Regulation Proposal[67] as well. They stated that the annulment of Directive 2003/112 would have prevented triggering a myriad of complex, lengthy and costly authorisation procedures in various Member States. They would have had to monitor possible submissions of applications for authorisation, intervene in all national procedures, study the legal system of the Member States and bring proceedings before the competent national courts.
The CFI examined whether the applicants who, as in the present case, were not the addressees of an act could be individually concerned by a legislative act. In case C-50/00 P, the ECJ explicitly argued that "according to the system of judicial review of legality established by the Treaty, a natural or legal person can bring an action challenging a regulation only if it is concerned both directly and individually" and that a broader "interpretation cannot have the effect of setting aside the condition in question, expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty on the Community Courts." To be individually concerned, the applicants had to be affected by the legislative act by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiated them from all other persons in relation to the contested act.[68]
The CFI first stated that the applicants did not specify how the directive entailed a setback for protection of the environment and workers' health, nor did they provide any concrete evidence the allegation of serious adverse effect on the property rights of one of them. The contested act affected them only in their objective capacity as entities active in the protection of the environment or public health, or even as holders of property rights, in the same manner as any other person in the same situation.[69] The alleged serious effects the contested act had on the applicants' interests and property right did not establish that they were individually concerned.
Second, the fact that a person participated, in one way or another, in the process leading to the adoption of a Community act did not distinguish him individually in relation to the act in question unless the relevant Community legislation had laid down specific procedural guarantees for such a person.[70 ]Therefore an advisory status, for example, did not support the finding that an NGO was individually concerned by a Community act.
Third, the Court repeated that the standing conferred on NGOs in some of the legal systems of the Member States was irrelevant for the purposes of determining whether they had standing to bring an action for annulment of a Community act pursuant to the fourth paragraph of Article 230 EC.[71]
Fourth, the Court emphasized that "the right to effective judicial protection is one of the general principles of law stemming from the constitutional traditions
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common to the Member States and that right has also benne enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms".[72] By Article 230 and Article 241, on the one hand, and Article 234, on the other, the EC Treaty has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the Community courts. Under that system natural or legal persons cannot directly challenge Community measures of general application, but they are able, depending on the case, either indirectly to plead the invalidity of such acts before the Community courts under Article 241 or to do so before the national courts and ask them to make a reference to the ECJ for a preliminary ruling on validity.[73]
The CFI rejected the further arguments of the applicants as well, and founded that the applicants were not individually concerned by the contested act. The Court declared the action inadmissible without considering whether the applicants were directly concerned by Directive 2003/112. It appears that, in the light of the case law, private persons cannot institute proceedings against Community directives. As most Community environmental legislation takes the form of directives, which are addressed to Member States and not individuals, it is not possible individuals or environmental groups to bring a direct legal challenge in Luxemburg. Nevertheless, the quality of transposition into national legislation and their application at national level are key aspects for successful environmental protection, but there is no EU inspectorate for the environment to check what is happening in practice, so the Commission has only limited possibilities of ensuring proper enforcement.[74]
On 27 February 2004 also the Kingdom of Sweden brought an action against the Commission. The claims of Sweden were basically the same that of EEB and others in Case T-94/04: annulment of Commission Directive 2003/112 and order of the Commission to pay the costs of the proceedings.
Paraquat has been banned in Sweden since 1983. Like several other Member States, Sweden has in the course of proceedings highlighted the risks of paraquat in communications to the Commission. It submitted a declaration in connection with the vote in the Standing Committee on the Food Chain and Animal Health, spelling out its view that a decision to authorise paraquat was not in accordance with the precautionary principle and that such a decision would result in an unacceptably low level of protection.[76]
Sweden, supported by Austria, Denmark and Finland, stated that by adopting the Directive the Commission has disregarded Articles 6 (the principle of integration)[77] and Article 174[78] of the EC Treaty, Article 5 of Council Directive 91/414[79] and Article 7(1) of Commission Regulation No 3600/92.[80] Moreover, in adopting the Directive the Commission has clearly gone beyond the limits of its discretionary powers in that it has failed to apply the principle of caution when assessing and dealing with the risk posed by paraquat both to human and animal health. Its failure to apply the principle of caution has in turn made it impossible to ensure the high level of protection required by the EC Treaty and in the Directive. In disregarding the need for a high level of protection, the Commission must also be considered not to have fulfilled the requirements of environmental protection and the principle of integration laid down in the EC Treaty. The Commission has thus breached Article 6 and 174(2) EC and Article 5 of Directive 91/414. The Commission has also mishandled this matter by failing to have regard for available published data on paraquat and the risks associated with that substance. In so doing it has breached Articles 174(3) EC and Article 5(1) of Directive 91/414 and Article 7(1) of Commission Regulation No 3600/92.
On 11 July 2007 the CFI accepted in part in the applicants' pleas and annulled Directive 2003/112 authorising paraquat as an active plant protection substance. First, the CFI noted that although there were studies on the link between paraquat and Parkinson's disease, that issue had never been referred to by the notifier. Moreover, the Commission's reports had not contained any assessments of the literature relating to possible links between paraquat and Parkinson's disease. The statement contained in the Commission's assessment report to the effect that there were no indications of neurotoxicity associated with paraquat therefore followed from a handling of the file which does not satisfy the procedural requirements laid down by the Community rules.
Second, the CFI found that a French study on paraquat operators' level of exposure, which had been of some importance in the assessment of the substance, had not been put through an assessment procedure and that that omission constituted a disregard of the applicable procedural provisions.
Third, the CFI noted that in a Guatemalan study one of the participating operators had undergone exposure to paraquat equivalent to 118% of the acceptable operator exposure level fixed for that sub-
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stance, despite use under the proposed conditions. Accordingly, the Community requirements, which prohibited any exposure higher than the acceptable operator exposure level, had not been satisfied. Consequently, Directive 2003/112 failed to satisfy the requirement of protection of human health.
Moreover, given that the abovementioned French study had played an important role in the Commission's decision to include paraquat in Annex I to Directive 91/414, that study's conclusion advising against uses requiring the use of treatment with a knapsack drop duster was a serious indication which reasonably supported doubts as to the innocuousness of paraquat during such use.
The CFI further noted that the Commission alleged that it had based its assessment that paraquat had not had harmful effects on animal health on the assessment of 14 types of use envisaged by the notifier. However, in order to assess the effects of paraquat on the health of hares and birds embryos, only two areas of use had been assessed, namely the use of paraquat in stubble fields in respect of hares and the use of paraquat in alfalfa fields in the autumn and winter in respect of birds. The Commission had not stated any reason why it had not been necessary to assess the 12 other types of use. The CFI accordingly found that the Commission had not conducted a sufficient assessment of the file on this point.
Finally, the CFI found that the Commission had relied on a file which had not made it possible to establish to the requisite legal standard that the measures identified by it as likely to reduce the risks for hares had been effective or appropriate for reducing those risks.[81]
Since Directive 2003/112 is annulled, paraquat does not figure in Annex I to Directive 91/414 anymore and thus cannot be placed on the market based on national authorisations. The consequence is that Member States must urgently - if not immediately - revoke their authorisations, since these have no longer any legal basis in Directive 2003/112.[82] The Commission has asked the Member States to cancel all authorisations for paraquat and to apply a termination period for existing stocks of one year maximum.
Environmental protection is consistently rated by citizens as an area in which the European Union should be active, and widely considered to be one of the EU's most successful policies. The EU's growth of significant competence in this policy area since the 1970s should be of help in addressing its legitimacy problem. Environment policy focuses on participation, helping present the EU as 'more than a market' and building participatory in the NGO sector.[83]
Over the past 30 years, the EU has made great strides in reducing many forms of pollution. The successful environmental policies have largely concentrated on easily visible point sources. Therefore major challenges remain for the future. Significant progress is likely to take several decades of coherent, long-term yet flexible policy-making that has the broad support of citizens. Effective policies will also need to encourage behavioural changes amongst Europe's consumers as well as to focus, in particular, the transport, energy and agricultural sectors on less environmentally damaging activities.[84] Strong evidence is lacking, but less use of hazardous of pesticides can help preserve the land as a productive resource and as a reservoir for biodiversity, and reduce our exposure to pollutants.
In the recent case a Member State was not inhibited by the standing rules and could make a challenge. The environment protection organisations' actions in the public interest were not admissible. Without the existing political will of the Kingdom of Sweden the environment, human and animal health would not have been protected by the judicial system set up under the EC Treaty.
By the way, the judgment in case C-229/04 is thought to be the first time when ECJ has annulled a pesticide approval decision under Directive 91/414. Contrary to its common practice, the Court on this occasion has not allowed the 2003 Directive to continue in effect to give the Commission the opportunity to address the issues raised by the Court. The unprecedented action of Sweden in regard to paraquat may start to undermine the whole permitting system of pesticides.[85] As a consequence, competent national authorities suspended the sale and use of pesticides containing paraquat or initiated the revocation of existing authorisations with a limited wind-down period.[86]
Environmental concerns are traditionally viewed as an area appropriate for intervention by governments and/or international organisations, but cannot readily be conceived of as a right directly enforceable before the courts in the same way as, for example, the freedom to trade. The EC Treaty rather was constructed under the assumption that the defense of individual interests of producers, traders and competitors would promote the general interest of the Community. Since a very considerable part of environmental legislation in Europe is produced by the EC, and many economical financial and administrative decisions affecting the environment emanate from the EC institutions, there should be
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the possibility of a judicial control of whether the environmental requirements, laid down so beautifully in the EC Treaty, are really safeguarded in the individual case.[87] The scope for natural or legal persons to bring judicial review proceedings under the 'direct and individual concern' test has not kept pace with the ever-expanding scope of EC law which affects individuals.[88]
There is no reason to believe that the Court should scrap its judicial policy and make a volta-face favouring a substantially enlarged access to judicial review under paragraph 4 of Article Article 230.[89] Although the CFI, in the first Jégo-Quéré Case,[90 ]tried to change the restrictive attitude of the ECJ, the Court itself made it clear, in its judgment in case Unión de Pequeños Agricultores v Council,[91] that any changes should be the result of amending the EC Treaty. There is nevertheless a certain hypocrisy in favouring greater involvement of the citizens in the enforcement of EC environmental law and at the same time refusing a wider access to the Community courts to protect judicially the improvements achieved in this manner.[92]
Irrespective of the ECJ's willingness to change the direct and individual concern test in general, the Aarhus Convention seems to point to the necessity of a more relaxed approach in environmental matters at least. The Aarhus Regulation could not successfully combine requirements of Article 9(3) of the Convention with Article 230(4) EC, in particular, how to assure that environmental organisations can file lawsuits in the public interest, while not being 'directly and individually concerned'.[93] If the ECJ continues to interpret the law in a restrictive manner, revision of the EC Treaty is probably necessary to comply with the Convention.[94] Such an alteration would certainly be appropriate in order to strengthen environmental protection and enforcement of environmental law Community-wide. ■
NOTES
[1] Civil society plays an important role in giving voice to the concerns of citizens and delivering services that meet people's needs. Civil society or "Third Sector" also includes trade unions and employers' organisations ("social partners"), grass-roots organisations, charities, churches, religious communities, and organisations that lobby on behalf of commercial interests, such as trade or industry associations, but NGOs are generally considered part of civil society.
[2] James Cameron & Ruth MacKenzie: Access to Environmental Justice and Procedural Rights in International Institutions, In: Alan E. Boyle and Michael R. Anderson (eds.): Human Rights Approaches to Environmental Protection, Oxford University Press, 1996, p. 151.
[3] Despite a rapidly expanding literature on the role of NGOs in world politics, relatively little has been written on the engagement of international NGOs in the European environmental policy-making process. See Peter Newell & Wyn Grant: Environmental NGOs and EU Environmental Law, In: Han Somsen (ed.): Yearbook of European Environmental Law, Oxford University Press, Vol. 1. (2000), p. 229.
[4] Jon Burchell & Simon Lightfoot: Examining the EU's Environmental Credentials, Sheffield Academic Press, 2001, p. 60.
[5] John Hontelez: EU Sustainable Development: A Critical Perspective from Environmental Organisations, In: Marc Pallemaerts & Albena Azmanova (eds.): The European Union and Sustainable Development: Internal and External Dimensions, VUBPRESS Brussels University Press, 2006, p. 158.
[6] BirdLife International (European Community Office), Climate Action Network Europe (CAN Europe), CEE Bankwatch Network, European Environmental Bureau (EEB), European Federation of Transport and Environment (T&E), Health and Environment Alliance, Friend of the Earth Europe (FoEE), Greenpeace Europe, International Friends of Nature (IFN), World Wide Fund (WWF) European Policy Office.
[7] Annica Kronsell: Greening the EU - Power practices, resistances and agenda setting, Lund University Press, 1997, p. 161.
[8] John McCormick: Environmental Policy in the European Union, Palgrave Macmillan, 2001, pp. 116-117.
[9] See: Jenny Fairbrass and Andrew Jordan: The informal governance of EU environmental policy: the case of biodiversity protection, In: Thomas Christiansen - Simona Piattoni (eds.): Informal Governance in the European Union, Edward Elgar Publishing Limited, 2003, pp. 94-113.
[10] The most important change which is necessary is the financing of environmental groups. See Ludwig Krämer: Participation of environmental organisations in the activities of the EEC, In: Martin Führ & Gerhard Roller: Participation and Litigation Rights of Environmental Associations in Europe - current legal situation and practical experience, Peter Lang Verlag, Frankfurt am Main, 1991, p. 137.
[11] Olivier de Schutter: Public Interest Litigation before the European Court of Justice, Maastricht Journal of European and Comparative Law, Vol. 13. No. 1. (2006), p. 10.
[12] OJ 2002 L 242, p. 1. The sixth EAP sets out the EU's environmental roadmap for the 10 years to 2012. It is the main vehicle by which to achieve the environmental goals of the sustainable development strategy.
[13] The question of locus standi under Article 230 EC is a complicated subject, and I am attempting merely to describe some of the issues which may arise for environmental NGOs.
[14] The most extensive approach to permitting public interest actions to be brought, namely that in the form of an actio popularis, meets with strong resistance in most Member States.
[15] Article III-365(4) of the Treaty establishing a Constitution for Europe changed the wording of Article 230(4) of the EC Treaty. Article III-365(4) provides that: "Any natural or legal person may ... institute proceedings against an act addressed to that person of which is of direct and individual concern to him or her, and against a regulatory act which is of direct concern to him or her and does not entail implementing measures."
Unfortunately, the term 'regulatory' act has not been defined in the Constitution. See Cornelia Koch: Locus standi of private applicants under the EU Constitution: preserving gaps in the protection of individuals' right to an effective remedy,
European Law Review, Vol. 30 (2005), p. 520.
[16] Case C-25/62, Plaumann & Co. v Commission of the European Economic Community [1963], ECR 95
[17] This notion is based on a traditional idea of distinguishing between subjective legal interest and objective legal situations; between, on one hand, a narrow conception of private right and, on the other hand, a public interest. See Jonas Ebbesson (ed.): Access to Justice in Environmental Matters in
the EU, Kluwer Law International, 2002, p. 78.
[18] See for example Harding: The Private Interest in Challenging Community Action, European Law Review,
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Vol. 5., p. 354.; Usher, J.: Judicial review of Community acts and the private litigant, In: Angus I. L. Campbell and Meropi Voyatzi (eds.): Legal Reasoning and Judicial Interpretation of Community Law, Trenton Publishing, 1996, p. 121; Anthony Arnull: Private Applicants and the Action for Annulment under Article 173 of the EC Treaty, Common Market Law Review, Vol. 32. (1995), p. 7.; Nanette Neuwahl: Article 173 Paragraph 4 EC: Past, Present and Possible Future, European
Law Review, Vol. 21. (1996), p. 17.; Anthony Arnull: Private
Applicants and the Action for Annulment since Codorniu, Common Market Law Review, Vol. 38. (2001), p. 7.; Albertina Albors-Llorens: The Standing of Private Parties to Challenge Community Measures: Has the European Court Missed the Boat?, Cambridge Law Journal, Vol. 62. (2003), p. 72.
[19] For example, the opinion of AG Jacobs (not followed by the ECJ) in Case C-50/00 P (Unión de Pequeños Agricultores v Council [2002] ECR I-6677) suggests that an individual should have standing to challenge the validity of a Community act, whether legislative or administrative, provided that he can show that "by reason of the particular circumstances, the measure has, or is liable to have, a substantial adverse effect on his interests."
[20] Marie-Pierre Granger: Towards a Liberalisation of Standing Conditions for Individuals Seeking Judicial Review of Community Acts: Jégo-Quéré et Cie SA v Commission and Unión de Pequeños Agricultores v Council, The Modern Law Review, Vol. 66. (2003), p. 137.
[21] Case C-321/95 P Stichting Greenpeace and others v Commission [1963], ECR I-1651
[22] OJ 1995 L175, p. 40.
[23] Case T-585/93 Greenpeace and Others v Commission [1995] ECR-II 2205
[24] Commission Decision C (91) 440 concerning financial assistance provided by the European Regional Development Fund for the construction of two power stations in the Canary Islands.
[25] Ibid at paras 59 et seq.
[26] Adam Cygan: Recent Developments in Judicial Review and Article 230 EC, In: ERA Forum, Vol. 4. No. 3. (2003), p. 78.
[27] Nicole Gérard: Access to Justice on Environmental Matters - a case of Double Standards?, Journal of Environmental Law, Vol. 8. No. 1. (1996), p. 152.
[28] Case C-321/95 P Stichting Greenpeace and others v Commission, supra n. 21. at para. 18.
[29] Ibid. at paras 27 et seq.
[30] Ibid. at paras 32 et seq.
[31] Ibid. at paras 33-34.
[32] Ludwig Krämer: Public Interest Litigation in Environmental Matters before European Courts, Journal of Environmental Law, Vol. 8. No. 1. (1996), Oxford University Press, pp. 6-7.
[33] Diana L. Torrens: Locus Standi and Access to Justice under EC Law - Where to go after Greenpeace, elni Review, Environmental Law Network International, 1/99, p. 15.
[34] Paul Joan George Kapteyn & Pieter VerLoren van Themaat: Introduction to the Law of the European Communities, 3rd. ed., Kluwer Law International, 1998, pp. 487-488.
[35] Richard Macrory: Environmental Citizenship and the Law: Repairing the European Road, Journal of Environmental Law, Vol. 8. No. 2 (1996), Oxford University Press, p. 228.
[36] See Case C-309/89 Codorniu v Council [1994] ECR I-1853
[37] The text of the Convention is available at <http:// www.unece.org/env/pp>. For an overview of EC activities taking place to allow ratification of the Convention by the EC, see <http://ec.europa.eu/environment/aarhus>. By Council Decision of 17 February 2005 the EC approved the Convention, see Council Decision 2005/370/EC (OJ 2005 L 124, p. 1.) and <http://www.unece.org/env/pp/ratification.htm>.
[38] Directive 2003/4/EC of the European Parliament and the Council of 28 January 2003 on public access to environmental information and repealing Directive 90/313/EEC, OJ L 2003 L 41, p. 26.
[39] Directive 2003/35/EC of the European Parliament and the Council of 26 May 2003 providing for public participation in respect of drawing up certain plans and programs relating to the environment and amending with regard to public participation and access to justice Directives 85/337/EEC and 96/61/EC, OJ 2003 L 156, p. 17.
[40] COM (2003) 622
[41] COM (2003) 625
[42] COM (2003) 624; the chance for the directive to be adopted is rather limited.
[43] The distinct role for NGOs is perhaps the most significant innovation of the Convention. See Maria Lee & Carolyn Abbot: The Usual Suspects? Public Participation Under the Aarhus Convention, The Modern Law Review, Vol. 66. (2003), p. 86.
[44] ECE, The Aarhus Convention. An Implementation Guide, United Nations, New York and Geneva 2000, p. 130.
[45] Jeremy Wates: The Aarhus Convention: A New Instrument Promoting Environmental Democracy, In: Marie-Claire Cordonier Segger & Judge C. C. Weeramantry (eds.): Reconciling Economic, Social and Environmental Law, Martinus Nijhoff Publishers, 2005, pp. 401-402.
[46] OJ 2006 L 264, p. 13; it shall apply from 28 June 2007.
[47] The Aarhus Convention defines public authorities in a broad and functional way. For the purpose of the Regulation, 'Community institution or body' means any public institution, body, office or agency, established by, or on the basis of the EC Treaty, except when acting in a judicial or a legislative capacity.
[48] The Commission is entrusted to adopt the necessary provisions to ensure transparent and consistent application of these criteria.
[49] See, inter alia, Case C-240/90 Germany v Commission [1992] ECR I-5383, para. 42.
[50] Article 12(1) of the Regulation.
[51] <http://www.paraquat.com/AboutParaquat/WhatisParaquat/tabid/212/Default.aspx>
[52] OJ 1991 L 230, p. 1.
[53] Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8(2) of Council Directive 91 /414/EEC concerning the placing of plant protection products on the market, OJ 1992 L 366, p. 10.
[54] OJ 1994 L 107, p. 8.
[55] See Articles 6 and 7 of Regulation No 3600/92.
[56] The Regulatory Committee was established following the adoption of Regulation (EC) 178/2002 of the European Parliament and of the Council (OJ 2002 L 31, p. 1.) which set out general principles and requirements of food law. It has eight sections and its members are representatives of the Member States. The Commission may consult the Committee on a proposal, and the Committee can then deliver an opinion which may allow the measure to be formally adopted by the Commission in accordance with the appropriate procedure.
[57] EEB is an association under Belgian law, the formal goal of which, according to its statutes, is inter alia to promote the protection and the conservation of the environment within the context of the countries of the EU.
[58] PAN-Europe is a company under the law of England and Wales, the goal of which is to promote sustainable alternatives to pesticides.
[59] Swedish Society for Nature Conservation is an association under Swedish law whose goals include mobilising public opinion and influencing decision-making in matters of nature conservation and environmental protection and working towards protection and care of areas of natural interest.
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[60] EFFAT is an association under Belgian law and is one of the regional branches of the IUF.
[61] OJ 2003 L 321, p. 32.
[62] Case T-94/04 European Environmental Burerau (EEB) and Others v Commission, OJ 2006 C 48, p. 32.
[63] IUF is an international federation of national unions and an association according to Swiss law. It belongs to the European Trade Union Confederation and represents workers employed in various fields, including the agricultural and plantation sectors.
[64] Stichting Natuur en Milieu is a foundation under Netherlands Law and a member of the EEB. Its goals, according to its statutes, include 'giving voice to things which are voiceless' and ensuring vital nature and a healthy environment for current and future generations.
[65] As a legislative act, a directive cannot be of individual concern to natural or legal persons. Directives are addressed to the Member States and impose upon them an obligation to achieve a specific result within a certain period of time. However, it is up to the Member States to decide how to achieve this result. They must transpose directives' provisions into domestic legal orders, but it is up to each Member State to decide what kind of legislative act is more appropriate to achieve the imposed result.
[66] Koen Lenaerts & Dirk Arts: Procedural Law of the European Union, Sweet&Maxwell, 1999, p. 163.
[67] Supra n. 46.
[68] See Case C-50/00 P Unión de Pequeños Agricultores v Council, supra n. 19. at para. 36.
[69] Supra n. 62. at para. 53.
[70] See order in Case T-339/ 00 Bactria v Commission [2002] ECR II-2287, para. 51.
[71] See order in Case T-585/93 Greenpeace and Others v Commission [1995] ECR II-2205, para. 51.
[72] See Case C-50/00 P Unión de Pequeños Agricultores v Council, n. 19. above, paras 38 and 39.
[73] Ibid. at para. 40.
[74] Stefan Scheuer (ed.): EU Environmental Policy Handbook, A Critical Analysis of EU Envvironmental Legislation, European Environmental Bureau (EEB), September 2005, pp. 334-335.
[75] Case C-229/04 Kingdom of Sweden v Commission, nyr.
[76] Maybe Sweden was still angered by having to lift some of its strict environmental controls when it joined the EU in 1995 in order to conform with EC trade rules.
[77] Article 6 EC states that "environmental protection requirements must be integrated into the definition and implementation of the Community policies ... in particular with a view to promoting sustainable development."
[78] Article 174 EC contains, inter alia, the objectives and principles of EC environmental policy.
[79] The conditions required for the purposes of including active substances in Annex I to the Directive are laid down in Article 5.
[80] Article 7(1) of the Regulation prescribes that for each active substance for which it has been designated rapporteur, the Member State shall:
(a) examine the dossiers referred to in Article 6 (2) and (3), in the order in which they are received from the notifier or notifiers concerned, as well as any information as referred to in the third indent of Article 5 (4) and any other available information; if several dossiers are presented for one active substance, the dossier presented last will determine the order of its examination;
(b) immediately after examining a dossier, ensure that notifiers submit the updated summary dossier to the other Member States and to the Commission;
(c) send the Commission, as quickly as possible and at the latest 12 months after receipt of a dossier as referred to in Article 6 (2) and (3), a report of its assessment of the dossier, including a recommendation:
- to include the active substance in Annex I to the Directive, stating the conditions for its inclusion, or
- to remove the active substance from the market, or
- to suspend the active substance from the market, with the option of reconsidering the inclusion of the active substance in Annex I after submission of the results of additional trials or of additional information specified in the report, or
- to postpone any decision on possible inclusion pending the submission of the results of additional trials or information specified in the report.
[81] See Press Release No 45/07, 11 July 2007, Court of First Instance of the European Communities.
[82] See the official Summary Report of the meeting of the Standing Committee on the Food Chain and Animal Health, July 2007.
<http://ec.europa.eu/food/committees/regulatory/scfcah/phytopharmaceuticals/sum_1213072007_en.pdf>
[83] Alex Warleigh: Democracy and the European Union (Theory, Practice and Reform), SAGE Publications, 2003, p. 93.
[84] The European Environment (State and Outlook 2005), EEA, Copenhagen 2005, p. 21.
[85] It should be noted that an appeal, limited to points of law only, may be brought before the ECJ against the judgment of the CFI in Case T-229/04, within two months of its notification.
[86] <http://www.pan-europe.info/Paraquat/timeline.html>
[87] Ludwig Krämer: Public Interest Litigation in Environmental Matters before European Courts, In: Hans-W. Micklitz & Norbert Reich (eds.): Interest Litigation before European Courts, Nomos Verlagsgesellschaft, Baden-Baden, 1996, pp. 310-311.
[88] Edite Ligere: Locus Standi and the Public Interest: a Hotchpotch of Legal Principles, Journal of Planning and Environmental Law, 2005, Sweet&Maxwell, 2005, p. 297.
[89] Hjalte Rasmussen: Why is Article 173 Interpreted against Private Plaintiffs? European Law Review, Vol. 5. (1980), p. 127.
[90] Case T-177/01 Jégo-Quéré v Commission [2002] ECR II-2365
[91] Supra n. 19.
[92] Frédérique Berrod's Case Note, Common Market Law Review, Vol. 36. (1999), Kluwer Law International, p. 662.
[93] Jerzy Jendroska: Public Information and Participation in EC Environmental Law, In: Reflections on 30 Years of EU Environmental Law - A High Level of Protection? (Edited by Prof. Richard Macrory) The Avosetta Series (7), Europa Law Publishing, 2006, p. 83.
[94] Femke de Lange: European Court of Justice, Unión de Pequeños Agricultores v. Council (Case Note) RECIEL 12 (1) 2003, p. 118.
Lábjegyzetek:
[1] A szerző senior lecturer.
Visszaugrás
