Access to the European Court of Justice: is the door unbolted?

Carol Hatton Solicitor WWF-UK

Standing before the European Courts

Requirements for

locus standi

to bring proceedings under Article 230 for natural or legal persons against decisions of the Community institutions or bodies:

First limb

the decision must be directly addressed to the natural or legal person; or

Second limb

the decision is addressed to another person but is of direct and individual concern to the former

Case law of the European Courts (1)

•

The traditional test

• Plaumann v Commission (Case 25/62) “individuals other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of these factors, distinguishes them individually just as in the case of the person addressed.”

Case Law of the European Courts (2)

•

Preserving the status quo for NGOs

• Greenpeace v Council (Case C-321/95 P) •

Hopes dashed

• Jégo-Quéré v Commission (Case T-177/01) • Commission v Jégo-Quéré (Case C-263/02 P)

Case Law of the European Courts (3)

• A new test for individual concern under Article 230 EC Treaty: • “a natural or legal person is to be regarded as individually concerned by a Community measure of general application that concerns him directly if the measure in question affects his legal position, in a manner which is both definite and immediate, by restricting his rights or by imposing obligations on him.”

WWF-UK v Council of the European Union (Case T-91/07)

WWF v European Council (3)

• Quotas set annually in December under the Cod Recovery Plan (“CRP”) • Aim - to increase quantities of mature fish in the sea and provide continuity in the fishing industry • Quotas vary by no more than 15% year on year except in exceptional circumstances • Decisions informed by scientists (ICES) and Regional Advisory Councils (RACs)

WWF v European Council (4)

• Scientists have called for a “zero catch” since 2002 • Previous years quotas reduced by only 14% • WWF lodged case against European Council in European Court in March 2007 • Aim - to review the cod quotas in accordance with the CRP

WWF-UK v European Council (5)

• Council has challenged WWF’s direct and individual concern • Can WWF show that its legal interests are affected?

• Does WWF’s involvement in North Sea RAC distinguish it from other NGOs, provide procedural guarantees and render its legal interests affected by the decision?

“So long, and thanks for all the fish?”

Future Prospects

• EC

Regulation

No 1376/2006 on the application of the provisions of the Aarhus Convention to Community institutions and bodies • From 8 th June 2007 • Article 10 - internal review procedure appears to bring qualifying NGOs within Article 230 EC Treaty

EC Regulation No 1376/2006

Limitations

• • • • • • Qualifying NGOs Article 2 (1)(c) - definition of “Community institution or body” Article 2(1)(g) – “administrative act” Article 2(2) – “acting as an administrative review body” Is a “written reply” a decision?

Importance of judicial interpretation

Summary on Standing

•

Aarhus Regulation

• Qualifying NGOs can pursue internal review under Article 10 in certain circumstances •

Second limb of Article 230 EC Treaty

• Individuals and NGOs continue to attempt to show direct and individual concern, with the challenges that entails

Lisbon Treaty

• Signed in December 2007 • Target date for ratification 1 st January 2009 • Amendment to fourth paragraph of Article 230 EC Treaty “Any natural or legal persons may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them,

and against a regulatory act which is of direct concern to them and does not entail implementing measures.”

Currently in the long grass

• Proposal for a

Directive

of the European Parliament and of the Council on Access to Justice in Environmental Matters • Opposed by 12 Member States including UK, France and Germany (supported by 8) • Commission conference on 2 nd June 2008 may help to determine the future of the draft Directive

And finally….

•

De Sadeleer report (2003)

“

One of the most notable features to come out of [this study] is the important contribution that public interest actions on environmental matters make to the enforcement of environmental law in the Member States”

• Important role of citizens and NGOs in checking the decisions of Community institutions in order to prevent short-term political and economic interests prevailing over the public interest