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action, it should be emphasised that it is the decision practical way. He rejected in particular the argument that
to build the two power stations in question which is is classically made, namely that the floodgates would open
liable to affect the environmental rights arising under to allow in all sorts of spurious or unmeritorious claims.
Directive 85/337 that the appellants seek to invoke. 10 Another way of looking at this is to proceed on the
basis that you are balancing two objectives. On the one
In other words, as the court put it, it is not the act of hand, if you allow review by individuals and by associations
dispersing €128 million that will give rise to the you open the floodgates. On the other hand, if you close
environmental issue, it is the building of the power plants. the door altogether, you exclude any judicial challenge
Therefore, says the court, the applicants are not directly even where there is a most blatant violation by a
concerned by the act of financial disbursement. There is Community institution of its own environmental standards.
an intervening act between the disbursement of the funds The middle ground is surely what ought to be followed.
and the environmental harm that they may suffer. But the European Court of Justice rejected that approach,
It can immediately be seen that this has the including Advocate General Jacobs’ view that it was not
consequence of excluding the Community from legal right in interpreting the Community treaty to freeze it as
review at the instance of citizens, unless the Community it was in 1957, in out-dated notions of the relationship
is directly involved in the act of construction (which it between the individual or the association and the
rarely, if ever, is). environment. 13
The consequence of the judgment in the Greenpeace In the meantime, there had been other developments.
case is, in effect, to exclude environmental citizens’ suits In 1998 a new international Convention was adopted, the
before the European Court of Justice. That has very serious Aarhus Convention on Access to Information, Public
consequences because it essentially means that, coming Participation in Decision-making and Access to Justice in
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back to Christopher Stone’s view, actions of European Environmental Matters, which is intended to put in place
Community institutions are unlikely ever to be subject to rules on access to environmental justice. It is intended to
review by the European court. Why? Because it is unlikely create new rules giving citizens the right of access to
that one Member State will ever bring proceedings against information on the environment, the right to participate
a European Community institution for disbursing funds in decision-making on the environment, and the right to
to another Member State, since the Member States have access to the courts to protect environmental rights.
essentially have a community of interests in not upsetting Most EU Member States are parties to it, as is the
the apple cart. There is self-interest in non-action. European Community. In short, the Aarhus Convention
Let us come back to Christopher Stone’s analogy. To gives concrete expression to Principle 10 of the Rio
the extent that another Member State in the Greenpeace Convention to which I referred at the beginning of this lecture.
case would have been able to act as an attorney general Article 6 of the Aarhus Convention provides for the
to protect the environment, internally the question would public concerned to have access to information. The
have been asked: what is our interest in seeking to ‘public concerned’ includes individuals, organisations, and
challenge a measure of the European Community which NGOs who are affected by decision-making. Article 9 of
funds two power plants in Spain? What is our legal or the Convention establishes an obligation on each party,
political interest in doing that? On a balancing test it is including the European Community, to ensure that
difficult to see why any state would act. members of the public which have a sufficient interest, or
The approach in Greenpeace has been followed ever which claim an impairment of a right, shall ‘have access to
since. There have been instances in which it has been a review procedure before a court of law and/or another
challenged, for example in 2002 in a case called Unión independent an impartial body established by law, to
de Pequeños Agricultores v the Council. The British challenge the substantive and procedural legality of any
Advocate General at the court, Francis Jacobs, gave an decision, act or omission’ which is subject to the
opinion inviting the court to overturn the Greenpeace Convention’s obligations on access to information. The
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judgment. That was in a sense the high water mark for Aarhus Convention is intended to make sure there is
the argument that there is something in the nature of effective judicial remedy. At the time of its adoption there
environmental rights that requires the court to take a was a broad belief that Aarhus could open the door to a
different approach. different approach in the ECJ.
Advocate General Jacobs said that the approach taken Has the Convention changed the situation? We are
by the court in Greenpeace was ‘incompatible with the still in the early days, and it needs to be noted that
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principle of effective judicial protection’. In other words, although the European Community is a party, its
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the case law on standing – excluding claims by individuals implementing legislation is not yet in force. The effect
or associations – will mean there will be no circumstances
in which the Community can be held to account in any
13 ibid para 77.
14 http://www.unece.org/env/pp/documents/cep43e.pdf.
15 European Parliament and Council Regulation No 1367/2006 on the
10 ibid para 30. application of the provisions of the Aarhus Convention on Access to
11 Case C–50/00P Union de Peguenos Agricultores v Council (25 July Information, Public Participation in Decision-making and Access to
2002) Opinion of A-G Jacobs (21 March 2002) 2002 ECR I-6677. Justice in Environmental Matters to Community Institutions and Bodies
12 ibid para 42. [2006] OJ L264 p 13.

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