United Kingdom Journals

		[2000] 1 Web JCLI

Judicial Review and the Protection of Non-commercial Interests in the European Community

Emily Reid*

Research Student,
Faculty of Law, University of Southampton,

<esr@soton.ac.uk>

*I would like to thank Takis Tridimas and Nicholas Hopkins for their comments on earlier drafts of this paper.

Copyright © 2000 Emily Reid.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

Recent years have witnessed the development of new Community objectives and concerns such as the protection of the environment and human rights. These new objectives represent a very different type of interest to those governing the original, primarily economic, focus which shaped the development of the Community and its law. One question which has arisen with this development concerns the protection and enforcement of rights resulting from these new interests, in particular the requirements for locus standi of individuals to bring an action for judicial review. The issues surrounding this question came to a head in the Greenpeace case. This case was ultimately resolved without the Court addressing the special nature of environmental interests, which it dismissed as only indirectly affected. It is possible to conclude, from comparison with cases in other areas, that Greenpeace represents a move by the Court to prevent the abuse of Community law provisions (by their exploitation for purposes other than those for which they were intended) rather than providing a response to the new interest before it. This notwithstanding, the scope of the Community's new interests demands that this question is resolved in the interest of the credibility of such new policies.

Contents

Introduction

Part I: Environmental Protection in the European Community

Part II - The Greenpeace Case

• The Order of the Court of First Instance
• The Judgment of the Court of Justice
• The Opinion of the Advocate General
• Analysis of the Court's approach

Part III: Greenpeace and the general development of non-commercial concerns in the Community

Conclusions

Bibliography

Introduction

The European Community has consistently developed, since its creation, from being primarily focused upon economic objectives and their realisation, to now recognising, and protecting, certain non-commercial concerns not considered during the early period of integration. The economic focus is reflected throughout the jurisprudence of the Court of Justice, notably in the context of Article 230 (ex 173) EC. This may be explained by the fact that the Court may only rule on the basis of the cases that come before it: thus it cannot speculate as to outcomes in other contexts, particularly those not envisaged as being within the ambit of Community concern.

The cases brought by natural and legal persons in relation to judicial review concerned exclusively economic interests until 1995 (Case T117/94, Associazione Agricoltori Della Provincia di Rovigo and Others v Commission, [1995] ECR II-455 and Case T-585/93, Stichting Greenpeace Council (Greenpeace International) and Others v Commission, [1995] ECR II-2205). As such, the interpretation of "direct and individual concern", essential to the determination of locus standi, could develop in a highly specific direction, which was entirely legitimate in the context. (See inter alia Case 25/62 Plaumann v Commission [1963] ECR 95.) The development, however, within the Community of other, non-commercial, concerns, raises the question as to whether this interpretation can continue to be that used by the Court to determine whether a natural or legal person has locus standi under Article 230(4) EC.

This problem was clearly demonstrated in Case C321/95, Stichting Greenpeace Council (Greenpeace International) and Others v Commission, [1998] ECR I-165. (Hereafter Greenpeace, for comment on this case see Gérard 1998, Jack 1998, Reid 1998 and Schikhof 1998). In this case the Court (on appeal from the CFI) held that neither Greenpeace, nor the individual local residents seeking judicial review, had standing under Article 173(4) (now 230(4)) EC in relation to the breach of a universal interest: the protection of the environment.

This paper approaches this question, which is of fundamental importance to the future development of the Community, in three parts. Part I examines the broadening interests and concerns of the Community, as exemplified by the developing concern for the protection of the environment both in primary and secondary legislation and in the jurisprudence of the Court. Part II examines the issue of locus standi for judicial review, as considered by the Court in Greenpeace. The approach of the Court and the options open to it are considered, together with the impact upon EC law of the approach taken and the potential impact of any alternative approach that may have been adopted. Part III then assesses Greenpeace in view of the Community's broadening concerns. In this part some comparison is drawn with the development of Community concern for human rights.

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Part I: Environmental Protection in the European Community

The Environment was not a consideration in the Treaty of Rome⁽¹⁾, however, by the negotiation of the Treaty of European Union (TEU), it was perceived as being sufficiently important to merit the inclusion of a new title (Title VI). Article 130r(2) EC provided that "Community policy on the environment shall aim at a high level of protection" and that "Environmental protection requirements must be integrated into the definition and implementation of other Community policies" (emphasis added). Article 100a(4) EC provided that a Member State may rely on national environmental legislation, provided this had been notified to the Commission, on the grounds of major needs as referred to in Article 36 EC.

The Treaty of Amsterdam (ToA) consolidates the approach of the TEU and again includes the promotion of a high level of environmental protection as a Community task (Art. 2 EC). The ToA introduces the concept of sustainable development both into its Preamble and as an objective of the Community in Article 2. Article 6 provides unambiguously that:

"environmental protection requirements must be integrated into the definition and implementation of Community policies and activities referred to in Article 3, in particular with a view to promoting sustainable development."

The ToA also makes it easier for Member States to derogate from harmonised EC standards, to introduce more stringent provisions on the basis of scientific evidence (Art. 95(5) EC).⁽²⁾

Although the provisions relating to the integration of environmental policy into the pursuit of the Community's other objectives have been strengthened, there remains no guidance as to which should have precedence in the event of a conflict. One possible interpretation of the requirement that pursuit of the objectives of the single market must now respect the Community's environmental policy, is that economic objectives cannot take precedence. How this would work in practice is, however, difficult to assess. It is disappointing that this issue was not addressed in the negotiation of the ToA, particularly as it is a question which has been raised before the ECJ. (See, inter alia, Case C302/86, Commission . Denmark [1988] ECR 4067 (hereafter the Danish Bottles Case), Case C-2/90, Commission v Belgium [1992] ECR I-4431 (hereafter the Belgian Waste Case). See also Art. 95(5) TEU re Art. 30 EC).

The objectives of Community environmental policy are wide-ranging, including: preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilisation of natural resources as well as the promotion of measures at an international level to deal with regional or worldwide environmental problems. The integration of the environment into other EU policies was recently strengthened by the publication by the Commission of a strategy for integrating Environment into EU policies (COM (1998) 333 final). In addition, the Commission has published an amended proposal for a Council directive on the effect of certain plans and programmes on the environment (OJ [1999] C83/13).

The Community has been active internationally in environmental protection since the 1970s, through its involvement in UN and other environmental agencies and programmes (for example the UN Environment Programme and Conference on Environment and Development and the OECD and Council of Europe). In addition it has been a party to several international environmental conventions (inter alia the Vienna Convention for the Protection of the Ozone Layer, 1985; the Convention on Biodiversity, 1992; the UN Framework Convention on Climate Change and the Kyoto Protocol, 1997). The environment has also been of fundamental importance in the accession process for Eastern European countries and its protection has been included as an objective in certain international trade and development agreements concluded by the Community in recent years, for example Lomé IV OJ [1991] L229/1 (see Part II Title 1). There is, furthermore, a current proposal for a Council Regulation on measures to promote the full integration of the environmental dimension in the development process of developing countries (OJ [1999] C 47/10).

The first occasion on which the Court ruled on what was an explicitly environmental issue was in Case 21/76, Handelswerkerij Bier v Mines de Potasse d'Alsace [1976] ECR 1735. Since then it has had the opportunity to rule on environmental issues on more than 100 occasions. In 1985 (in Case 240/83, Procureur de la République v Association de Défence des Bruleurs de l'Huiles Usagées [1985] ECR 531 at paragraph 13) the Court recognised environmental protection as being "one of the Community's essential objectives", even before it had been included in the Single European Act (SEA). The Court ruled, in Case C-300/89, EC Commission v EC Council [1991] ECR I-2867, that measures pursuing mixed aims, one of which is the environment, may be based upon Article 100a rather than 130s EC, thus permitting the adoption of legislation by qualified majority voting rather than by unanimity. It held, however, that where "the harmonisation of conditions of the market is only ancillary to the act to be adopted" Article 130s EC will be appropriate.

In the Danish Bottles case the Court held that "the protection of the environment is a mandatory requirement which may limit the application of Article 30 of the Treaty". This was a significant step in that the Court recognised that, in certain circumstances, the environment would take precedence over economic objectives. In the Belgian Waste case, which also concerned Article 30 EC, the Court declared that the principle in Article 130r EC that "environmental damage should as a priority be rectified at source" could be invoked to limit the free movement of waste for its disposal (at paragraph 34). Most recently, in Case C-67/97, Criminal proceedings against Ditlev Bluhme [1999] 1 CMLR 612 (hereafter the Danish Bees case), the Court ruled that a prohibition on keeping certain species of bee within a given territory constituted a measure equivalent to a quantitative restriction within the scope of Article 30 EC. This measure, however, was held to be justified under Article 36 EC, on grounds of the protection of the health and life of animals, particularly in view of the importance of the maintenance of bio-diversity.

The majority of cases concerning the environment, including the Danish Bottles and Belgian Waste cases, have been brought by the Commission under Article 169 (now 226) EC. In principle each of the remedies of the Community should be available. However there seems in practice to be limited access to the Court in this context. Article 170 (now 227) EC has been very little used. Cases have arisen under Article 177 (now 234) EC, but again these have been infrequent, although it may be significant that the Danish Bees case arrived before the ECJ by this means. Despite having been used by Member States to challenge the basis of EC and EURATOM environmental legislation (see inter alia Case C-62/88, Greece v Council [1990] ECR 1527), the provisions for judicial review under Article 230 (ex 173) EC have also had little impact upon Community conduct in relation to substantive environmental law, although Parliament has used it to protect its prerogatives in relation to environmental legislation (see Joined Cases C-164/97 and C-165/97, Parliament v Council, Judgment of 25 February 1999 nyr). It has rarely been used, however, by a natural or legal person; where such judicial review has been sought it has failed, due to the failure of the applicants to establish locus standi, most recently in the Greenpeace case.

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Part II - The Greenpeace Case

The Greenpeace case concerned an appeal against an order of the Court of First Instance (CFI) that Greenpeace International and Others (local residents) had no locus standi to bring an action for judicial review of a Commission decision granting funding to two power stations in the Canary Islands. The grant was made from the European Regional Development Fund, whose allocation is governed by the provisions of Council Regulation 2052/88, inter alia that:

"measures financed by the funds .... shall be in keeping with the provisions of the Treaties, with the instruments adopted thereto and with Community policies, including those concerning ... environmental protection." (Article 7, emphasis added)

The Commission was informed that the works were unlawful as the environmental impact assessment study (Gran Canaria) and declaration (Tenerife), required under Community and national law respectively, had not been carried out. The applicants' contention was that this rendered the project itself in breach of Community environmental law, and thus the allocation of funding in breach of Regulation 2052/88. Therefore the Decision allocating the funding was unlawful and should be annulled.

The Order of the Court of First Instance

The Order of the Court of First Instance (CFI) dealt very briefly with the question of locus standi of both the "private individual" applicants and the applicant associations. In respect of private individuals (at paragraph 48) it dismissed the fact that the jurisprudence in relation to Article 173(4) had arisen in the context of economic issues as being irrelevant to the essential criteria to be applied. It stated that these should always remain the same: direct and individual concern, differentiating the applicant from all other persons. (See Case 25/62, Plaumann v Commission [1963] ECR 95, Case 231/82, Spijker v. Commission [1983] ECR 2559, Case 97/85, Deutsche Lebensmittelwerke and Others v Commission [1987] ECR 2265, Case 198/91, Cook [1993] 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.) The CFI ruled, therefore, that the applicants were not individually concerned in the manner required to confer locus standi. The CFI did not, however, explain why the criteria developed for a quite specific set of interests, namely economic, are those which should be applied for all interests, however inappropriate that may appear to be.

The applicants appealed the decision of the CFI, referring in their submissions to the specific characteristics of environmental interests: that they are intrinsically common and shared, and that the rights relating to these interests are liable to be held by a potentially large number of individuals, thus they would never give rise to the kind of closed class necessary to satisfy the criteria arising from the earlier case-law. This then creates what is, effectively, a legal vacuum, as the privileged parties are unlikely to challenge such an act.

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The Judgment of the Court of Justice

In its judgment, the ECJ simply stated that the CFI had not erred in law in ruling that the parties' action was inadmissible on the grounds of lack of locus standi. The Court's approach differed slightly however in that it explicitly avoided consideration of the merits of the environmental argument ruling that:

"it is the decision to build the power stations which may affect the environmental rights arising under Directive 85/337 .... In those circumstances, the contested decision, which concerns Community financing of those power stations, can affect those rights only indirectly." (emphasis added)

The ECJ proceeded to rule purely on the locus standi of the parties following its earlier case law on the interpretation of Article 173(4) EC (see, inter alia, Plaumann as above). Thus the Court did not explicitly rule out the possibility that different criteria may be applicable where an interest other than economic in nature is at issue. It refused to be drawn into consideration of the merits of the argument concerning the special characteristics of the environment, or easing the requirements for locus standi under Article 173(4) EC.

The Opinion of the Advocate General

Advocate-General Cosmas' approach contrasted sharply with that of both the CFI and ECJ. He did not suggest that the criteria for locus standi under Article 173(4) EC should always be identical, regardless of the interest at issue. After considerable analysis of the existing case law and arguments he stated that easing the requirements in certain circumstances would be neither impossible nor inappropriate. Nor did he dismiss the effect upon environmental interests as being only indirect.

Cosmas observed that environmental protection constituted an essential Community interest, of which the responsibility to ensure lay with the Member States and Institutions. Although this alone does not necessarily confer upon an individual a right to ensure it, Cosmas referred to Case T-105/95, World Wide Fund for Nature (UK) v Commission [1997] ECR II 313 to demonstrate that a general objective such as environmental protection may in some cases be enforceable by individuals. Having observed that secondary legislation clearly creates legally enforceable rights, Cosmas qualified this by stating that:

"if the rights to be vindicated, or the legal interests of the citizen in connection with the environment, go no further than this, then the protection provided by the Community legal order remains incomplete and fragmentary." (at paragraph 60)

Cosmas had no doubt that the Commission, under the terms of Decision C(91) 440, was obliged to ensure that the works complied with Community environmental legislation and considered the fact that the Commission funded the works which affected the environment, rather than carrying them out, did not negate the effect upon individuals. Thus he concluded that Directive 85/337 gave rise to rights whose infringement, and the resultant damage, the appellants were entitled to bring before the CFI, subject to the satisfaction of the procedural requirements of Article 173(4) EC.

With regard to locus standi, Cosmas, accepting the practical reality that a decision having an impact on the environment inherently affects a large number of people, suggested that within that wide number of people it is possible to identify a "closed class" who are particularly affected, by virtue of their geographical proximity to the intervention in the environment, or some other criteria which it would be for the courts to determine. This closed class should not be denied the opportunity to challenge the decision. Thus he advocated a purposive approach to the notion of individual concern, and in particular the closed class, which would not be inconsistent with the existing case-law on Article 173(4) EC. He concluded, however, that on the facts of this case the individual appellants in Greenpeace would not satisfy the necessary conditions. He did not advocate an extension of the Court's case law with respect to associations, which he felt may be open to abuse.

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Analysis of the Court's approach

The approach of the Court appears disappointing: by dismissing the effect upon the environment as being only indirect, and thereby avoiding consideration of the special characteristics of the environment, the Court leaves unresolved serious questions concerning the future place of the environment and its regulation within the Community. In its earlier case law it had actively promoted and protected environmental interests. Here the Court failed to take the opportunity to consolidate this earlier approach.

One consideration of the Court in deciding this case was certainly the fear that easing the requirements of Article 173(4) would open the floodgates to a new class of applicants, which would not necessarily be limited to environmental interests. It should, however, be possible to frame the necessary criteria giving rise to standing in such a way as to prevent this being exploited. Significantly, this fear has not been realised in other jurisdictions. On the facts, it is significant that Greenpeace had been involved, of its own motion, from early on in the decision-making process. In cases where an association has been granted locus standi it has used a given third party right to initiate proceedings, and has therefore been able to demonstrate direct and individual concern. (For example, Case T-37/92 Bureau Européen des Unions des Consommateurs and National Consumer Council v. Commission [1994] ECR II-285.) In the absence of an equivalent right, could Greenpeace's enquiries and meetings have been deemed sufficient to demonstrate direct and individual concern?

The ECJ relied upon the possibility to bring an action before the national courts to counter the argument that a refusal to allow locus standi would give rise to an effective legal vacuum in the protection of rights deriving from Directive 85/337. The appellants, however, had argued that the action brought before the national courts concerned the failure by the Spanish authorities to comply with their obligations rather than the lawfulness of the Commission's decision. This argument was not disputed, which leaves something of a lacuna, as direct action to review the legality of the Commission's decision is precluded. The pragmatic question is whether, in view of the possibility to bring an alternative action before the national courts, environmental interests remain unprotected. In this case the answer to this question would be no. In Case 294/83 Parti Ecologiste les Verts v. European Parliament [1986] ECR I-1368, however, it was held that:

"the spirit of the Treaty, as expressed in Article 164 .... is to make a direct action available against all measures adopted by the institutions which are intended to have legal effects."

The mere existence of the lacuna conflicts with this dictum, which suggests that the pragmatic question alone is not sufficient to uphold Community law.

In the interim it is possible, as the Court observed, to protect these interests by alternative means, before the national courts. A reference may then come through that process, as happened in the Danish Bees case (as above). It is curious, however, that the Court advocated this approach after having made it clear, in Case C-188/92, TWD Textilwerke Deggendorf GmbH v Germany [1994] ECR I-833, that an indirect action via the national courts and the preliminary ruling procedure (Article 177 (now 234) EC) is not admissible where the claimant had a right of action under Article 173 (now 230) EC. In Greenpeace the Court relied upon a right of action in the national courts in its denial of locus standi under Article 173 (now 230) EC. These two positions are not contradictory. However they do leave a potential applicant to make a careful, and difficult, decision as to how to proceed.

The Court's dismissal of the environmental interest as being affected only indirectly is, it is submitted, a significant argument, albeit a fairly tenuous one. The ECJ was not to be drawn into making a "concession" for environmental interest where it was not convinced it was essential (or appropriate). It is possible that the Court was seeking to give a message concerning the abuse of Community law provisions, that is, their exploitation where they are not genuinely at issue. Significantly, the Court gave no indication as to what the position may be if the environmental interest could not be dismissed as only being indirectly affected.

Could the Court realistically have adopted any other approach? It may have been helpful had it considered the argument relating to the special nature of environmental interests, or at least commented on the approach of the Advocate-General. The fact that it did not is not entirely negative as it leaves the door open for future cases. To have recognised the potential for a wider interpretation of direct and individual concern in a case concerning non-economic interests should not have been impossible, although the Court would have to have been careful in taking such an approach. It would have been free to rule, as the Advocate-General did, that such criteria as may be applied were not met in the present case. Such an approach would have been consistent with the Court's own dicta; for example in Plaumann itself (as above) that "the provisions of the Treaty regarding the rights of action of interested parties must not be interpreted restrictively". In Case 98/79, Pecastaing (Josette) v Belgian State [1980] ECR 691, Advocate-General Capotorti described the role of the national courts as being:

"to interpret the provisions in force whilst endeavouring to adapt them to developments in the system and the changing requirements of the Community."

Both these dicta are consistent with the general duty of sympathetic interpretation imposed by the ECJ on national courts (see, for example, Case 165/91, Van Munster v Rijkdienst voor Pensionen [1994] ECR I-4661) as well as with the dictum in Les Verts (above). There were two questions at issue in Les Verts, the first being whether acts of the Parliament were subject to review, and the second being whether "Les Verts" had locus standi. The Treaty at that time stated only that acts of the Council and Commission were reviewable. However the Court held that, since the role of Parliament had not initially included the power to make acts having legal effect, it would be contrary to the intention of the Treaty were they not held to be subject to review.

It may be a matter of interpretation whether the Court was activist in Les Verts, or merely adopted a teleological approach. The concept of judicial activism often has negative connotations. However, on a literal interpretation, it can be taken as referring only to vigorous action by the Court, in pursuit of a cause. The Court, in Les Verts, interpreted a provision to include a power which was not previously there, in a list which did not appear to be non-exhaustive. This could be described as fairly vigorous action, and thus potentially activist. The cause of which it was in pursuit was that of facilitating the function of Article 173 EC; to make the acts of Community institutions which have legal effects subject to review, thus upholding the intention of the Treaty. On this interpretation Les Verts demonstrates that "judicially activist" need not always be a negative characterisation. Alternatively, the Court's approach may be described as teleological: interpretation according to the objective of the provision. However it is submitted that in Les Verts, the Court was doing more than interpreting what was there, by interpreting into the provision an element which was not there.

The teleological and, particularly, the activist approaches by the Court may be interpreted as encroaching on the legislative function. The Community, however, unlike national systems, explicitly left certain matters to judicial interpretation rather than settle for legislative compromise (see Tridimas 1996). A question which may be raised therefore is whether a failure to interpret a provision in accordance with its objective (that is teleologically) errs towards a failure in the Court's duty. This, however, would be a fairly extreme stance. To have taken an approach such as Cosmas advocated, interpreting Article 173(4) EC in a broader manner than hitherto, would have recognised the development of non-commercial concerns as giving rise to a distinct direct and individual concern, not comparable with that arising from the infringement of economic interests, but for which individuals require protection. In terms of interpretative stance the Court has, in the past, proved willing to go further than this (Les Verts). It may even be possible to argue that the Court is bound to interpret a provision in accordance with its objective. Certainly it would be possible to describe such an approach in Greenpeace as teleological, rather than activist. In short, it would have been neither unprecedented, nor inappropriate, for the Court to have recognised the potential for such an approach.

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Part III: Greenpeace and the general development of non-commercial concerns in the Community

In view of the systematic development of environmental protection as a Community objective, Greenpeace demonstrates that urgent attention may be required to facilitate its enforcement. The protection of the environment is not the sole non-commercial concern which is having an impact upon many spheres of Community action: both internal and external. It is interesting, therefore, to compare this field with the development of Community concern for the protection of human rights, to see if there is any pattern which may assist in the understanding of the Court's approach to Greenpeace.

The role of the ECJ in the development of the protection of fundamental rights in the Community has already been the subject of considerable academic comment. The Court adopted an activist approach to the protection of diverse rights, under the collective heading of fundamental rights, drawing on an increasing range of sources upon which to rely. The Court initially recognised fundamental rights in the context of the threat of rebellion, particularly from Germany and Italy, by national constitutional courts wary of infringements of their constitutional principles. (See, for example Internationale Handelsgesellschaft [1974] 2 CMLR 540, Frontini v. Ministero delle Finanze Giurisprudenza Constituzionale [1974] CMLR 372.) Thus, as with the environment, it was national concerns which initially directed the development of the these rights. (Human rights were also, subsequently, recognised by the joint declaration of the institutions OJ [1977] C103/1). The activist approach of the Court was followed by reference to the protection of fundamental (and human) rights within the Treaty and secondary legislation. The SEA gave the first explicit reference to human rights in the Treaties, including reference to social rights. The preamble to the TEU contained a general statement concerning inter alia human rights and Article F2 provided that:

"The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms ... and as they result from the constitutional traditions common to the Member States, as general principles of Community Law."

This is interesting in that while the TEU introduced a general provision on human rights it moved away from the wider recognition of social rights which had been seen in the SEA, reverting to something more closely allied to the economic requirement of the development of certain fundamental rights.

Article J.1 included the development of human rights and democracy as objectives of the Union including in its relations with third states. The ToA adds a particularly interesting development in Article 7 providing for the determination of a "serious and persistent breach by a Member State of principles mentioned in Article 6(1)" by the Council and for the suspension of rights deriving from the application of the Treaty (Art. 7(2)). Thus it can be seen that the protection of human rights, like the protection of the environment, is a matter of growing importance and concern within the Community. This is reflected in the development of the human rights and democracy clause as an essential element of the Community's agreements with third states. The protection of human rights, again like that of the environment, was not initially envisaged as being a matter of Community concern. Indeed it was originally expressly excluded from the Treaty of Rome.

The Court has been explicit that it considers its responsibility to extend beyond ensuring its own respect of the principles and rights arising from the ECHR, to ensuring also the respect of these rights by the Member States (Case 5/88, Wachauf v Germany [1989] ECR 2609). The Court has also been explicit that, in relation to fundamental rights, it is acting in pursuit of the enforcement of Community law: where the enforcement of Community law impinges also on matters relating to the ECHR, this must be respected as part of the Community legal order. (Case 260/89, Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis [1991] ECR I-2925, at paragraph 42.) It has been equally careful, however, to reassure the Member States, where dealing with national legislation, that it will not interfere in fields in which it has not been given competence. In Case C-299/95 Kremzow v Austria, [1997] ECR I-2629, [1997] 3 CMLR 1289, the Court clearly made an attempt to draw a line as to how far the interpretation of "scope of community law" would go: refusing to interpret the ECHR as the matter was not genuinely within the scope of Community law. The approach of the Court here was similar to that subsequently applied in Greenpeace, when it dismissed the environmental interests as being only indirectly affected, and therefore not a matter for consideration. There are, however, significant differences: notably that in Kremzow, the purported link to Community fundamental rights was entirely hypothetical.

The Court had earlier made a clear stand against the abuse of Community law provisions in Cases 267-268/91, Criminal Proceedings against Keck and Mithouard [1993] ECR I-6097. This comparison must be treated with caution, however, since Keck arose with a particular background which was crucial to the manner in which it was resolved. The Court was justified in its restraint with respect to infringements having an "indirect effect upon the environment", as the nature of environmental interests is such that almost everything may be argued to have an incidental effect upon them. Kremzow and Keck together suggest that the Court has decided to take a firm line against the exploitation of provisions of Community law in contexts for which they were not intended. If this is correct Greenpeace should perhaps be seen as part of this development rather than as a blow to environmental protection per se. The Court's refusal to consider the merits of the argument relating to environmental interest, on grounds of the only indirect effect of the contested decision upon the environment, certainly supports such a reading of the jurisprudence. It may, however, be a long time before a case with a more direct link to the environment is brought before the Court. The question in relation to Greenpeace is whether there was genuinely not a sufficiently direct link, and therefore was the Court justified in dismissing it in this manner?

Clearly the protection of each of these developing concerns is a matter which the Community must ensure, if such policies are to have any credibility. It will, prima facie, be easier for an individual to demonstrate direct and individual concern, in conformity with Article 230(4), in relation to an infringement of their human rights than of environmental interests. The external dimension in both fields does give some urgency, however, to the requirement that the Community consider how it is going to address the enforcement of these international obligations, or how these may be enforced against it should the need arise. The Court, having taken an early, activist, role in each of these spheres, is clearly now drawing lines around its competence.

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Conclusions

It is necessary to await a case relating to locus standi and the protection of the environment in which there is no possibility to dismiss the environmental interest as only indirectly affected before jumping to conclusions about the enforcement of environmental protection. What Greenpeace does do is highlight a potential problem in the development of new objectives of the Community, whose enforcement requires careful consideration.

The Community is a dynamic organisation and the Court has, in the past, asserted its need to be able to reflect this. When developing new fields the Court always, however, acts with an eye to Member State reaction and, fundamentally, to the political climate operating within Europe. Thus developments may only be gradual. It would have been possible, however, to use the dynamism of the Community and a degree of judicial initiative with which the Community is not unfamiliar to address the matter in Greenpeace. That the Court did not rule out an appropriate interpretation of Article 173(4) EC in relation to environmental interests is perhaps, ultimately, more significant than its ruling on the specific facts of the case. Greenpeace appears to be more about the Court delimiting its jurisdiction, than about its approach to the protection of environmental interests.

Given the broad extent of the development of Community action relating to non-commercial interests, this is however a matter which requires to be resolved, particularly given the Community's international imposition of standards. The Community must be seen to be taking its own commitments seriously and implementing them effectively, if it is to have any credibility in the international context. As yet the possibility for judicial review has not kept pace with the dynamism of the Community in this context. Since the Member States, however, showed no inclination to address the issue at the last Inter Governmental Conference, it is unlikely that there will be a dramatic development in the near future.

Bibliography

Gérard, N (1998) `Greenpeace and Others v. The Commission' C-321/95P, (1998) 7 RECIEL 209.

Jack, B (1998) `A Birthday Suit for the Environment' [1998] 4 Web Journal of Current Legal Issues.

Reid, E (1998) `European Law case note' 5 Irish Planning and Environmental Law Journal 125

Schikhof, Silvia `Direct and Individual Concern in Environmental Cases' [1998] European Environmental Law Review. 276.

Tridimas, Takis `The Court of Justice and Judicial Activism' (1996) 21 European Law Review 199.

Council Regulation 2052/88 EEC on the tasks of the Structural Funds and their effectiveness and on co-ordination of their activities between themselves and with the operations of the European Investment Bank and other existing financial instruments OJ [1988] L185/9

Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment OJ [1985] L175/40

Footnotes

(1) The Commission however acknowledged in 1980 that environmental protection was a potential limitation on Article 30, [1980] OJ L256/2; furthermore, environmental protection was referred to in the SEA. Note also that the derogation in Article 36 relating to the health and life of animals has subsequently been interpreted as an environmental provision.

(2) This evidence should be specific to the Member State concerned. The derogation must be approved by the Commission, who must assess the existing harmonisation measure (Art. 95(8)) EC.