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1 1 1 1 12 22 22 2 (2008) 20 ELM : ENVIRONMENTAL RIGHTS – CLIMATE CHANGE, CONSERVATION AND THE ECJ – SANDS
public interest groups should have ‘practicable access to was proposing to disburse funds in circumstances in which
the courts in order to ensure that their legitimate interests EIA requirements had not been met? Putting it another
are protected and that proscribed environmental measures way, to what extent had the European Community, in the
are effectively enforced and illegal practices stopped’. So form of the European Commission, violated its obligations
there’s a policy direction by the European Commission to protect the environment by funding a project on the
itself to recognise that, when it comes to the national Canary Islands which, it was argued, did not meet the
level, effective judicial access is needed in order to protect Community’s own environmental impact assessment laws
environmental rights. and requirements?
Despite this political support, in the mid-1990s – In preparing the case the objectors were restricted
the period after I had written the article in the Harvard by the language of the Treaty of Rome adopted in 1957
International Law Journal and before the subject was really and which had a very narrow approach to the question of
on the agenda – the European Court of Justice began for locus standi. Any treaty drafted in 1957 would not have
the first time to receive cases which raised the question envisaged the environment as comprising rights and
of whether or not it would move from its traditional and obligations which may be qualitatively different from other
narrow approach to locus standi and recognise access to rights and obligations. Many of you here this evening may
the European Court of Justice to protect environmental not be lawyers, and understandably you won’t want to
rights. get involved in the minutiae of particular rules. In short,
The leading case before the ECJ is Greenpeace and the key legal provision is that part of the Treaty of Rome
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Others v the European Commission. It is a case in which which deals with cases brought by ‘non-privileged actors’,
I was involved as counsel, one among several, and it is a that is to say legal and natural persons other than the
case about which today I still feel a considerable degree Member States themselves or Community legal
of unhappiness. Coming to this lecture as one who has institutions.
been always rather supportive of the European Community Old Article 173 of the EC Treaty provided that such
legal order, I recognise that my scepticism about the applicants had to show that they were ‘individually and
Community legal order coincided with the outcome of directly concerned’ by the measure. The Court of First
this case, and the judgment of the Court of First Instance Instance threw the case out. It ruled that none of the
1995. That went on appeal to the European Court of objectors – the elderly ladies who lived right by the site
Justice, which handed down a final judgment in 1998. where the power plants were going to be, the tomato
What was the case about? I will paraphrase, as the growers who complained that their tomatoes would be
facts are somewhat complicated. The Spanish authorities subject to sulphur pollution, the local NGOs – nor
wanted to support the construction of two coal-fired Greenpeace had locus standi. They were not directly and
power plants on the Canary Islands. Greenpeace and a individually concerned by the measure. The case went on
couple of local NGOs, together with a larger number of to appeal.
local citizens, objected to the power plants on the grounds The ECJ ruled that adoption of the act which
that at that point, 1993/1994, it was not a sensible use concerned them touched them only in a ‘general and
of public resources to be investing in new coal-fired power abstract fashion’. They were like any other person in the
plants. Some of the individual applicants lived just metres same situation, part of a general class, so not individually
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away from the site. The objection was based on the concerned by the act. Let us pause here. This category
existence of alternative technologies available, which would of applicants is no different from any other individuals or
enable the challenge of climate change to be addressed associations, said the ECJ. They are not able to show that
through less environmentally harmful means, including in they are different in any way such as to be individually
respect of the climate. concerned by the measure. It is readily apparent that this
The Spanish Government made an application to the approach effectively excludes all environmental challenges
European Commission for funds and was successful in to the European Court of Justice by non-privileged
obtaining a disbursement of €128 million, (or the applicants, because where the environment is concerned
equivalent in ecus as they then were), under the EC there will not be circumstances in which one group of
Structural Funds programme. The money was to be individuals or NGOs could be said to be more individually
transferred from the Community to Spain, and Spain would affected by the construction of a power plant than another
then pass it on to the developers. Against this background, group.
it was alleged that there were problems with the The ECJ also ruled that there was no ‘direct concern’.
environmental impact assessment, a process undertaken The court ruled:
by the developer which was being challenged separately
in the Spanish courts. The issue arose: could the objectors In appraising the appellants’ arguments purporting
bring proceedings not just against the developer (or to demonstrate that the case-law of the Court of
Spain) in the Spanish courts, but also against the Justice, as applied by the Court of First Instance, takes
European Community on the grounds that the Community no account of the nature and specific characteristics
of the environmental interests underpinning their

8 Case C–321/95 P Greenpeace and others v EC Commission 1998
ECR I 6151 (first instance judgment is at 1995 ECR II-2205). 9 ibid.

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