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13 Stichting Greenpeace and Environmental Public Interest Standing before the Community Judicature: Some lessons from the Federal Court of Canada
Published online by Cambridge University Press: 27 October 2017
Extract
On April 2,1998, three years after the ruling of the Court of First Instance, the European Court of Justice issued its appeal decision in the Stichting Greenpeace case. The Court of First Instance had denied locus standi under Article 230(4) (Article 173(4)) of the EC Treaty to Greenpeace, two local environmental groups and a series of individual applicants to challenge the decision of the European Commission to continue providing Community structural funds under the European Regional Development Fund (ERDF) to Spain to build two power stations in the Canary Islands.
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References
1 Case T-585/93 Stichting Greenpeace Council (Greenpeace International) and Others v. Commission [1995] ECR II-2205. See also Gérard, N. “Access to Justice on Environmental Matters – a case of Double Standards?” 8 (1996) Journal of Environmental Law 149 Google Scholar.
2 The two groups were Tagoror Ecologista Alternativo (TEA), a local environmental protection association based on Tenerife, and Comisión Canaria contra la Contaminación (CIC), a similar association based on Gran Canaria. The sixteen individual applicants were residents, farmers and fishermen who live, work and/or pursue activities in the Canary Islands.
3 Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, OJ 1985 L 175/40 (hereafter referred to as the Environmental Assessment Directive).
4 Case C-321/95P Stichting Greenpeace Council (Greenpeace International) and Others v. Commission [1998] ECR I-1651. For a detailed discussion of the case see Albors-Llorens, A. “ Locus standi of Private Parties in Environmental Cases” 56 [1999] CLJ 33 Google Scholar; Ward, A. “Judicial Review of Environmental Misconduct: problems, prospects and strategies” (forthcoming) 1 1999 Yearbook of European Environmental Law; Gérard, N. “Access to the European Court of Justice: A Lost Opportunity” 10 (1998) Journal of Environmental Law 331 Google Scholar.
5 See e.g. Centrale Bewerkingseenheid v Commission, withdrawn 3 November 1977. For a discussion see Krämer, L. “Public Interest Litigation in Environmental Matters before European Courts” 8 (1996) Journal of Environmental Law 1 CrossRefGoogle Scholar at 4-6.
6 Case T-150/95 UK Steel Association v. Commission [1997] ECR II-1433; Case T-105/95 World Wildlife Fund UK v. Commission [1997] ECR II-313; Case T-331/94 IPK v. Commission [1997] ECR II-1665 (appeal lodged 22 December 1997, Case C-433/97P but not yet decided. See Opinion of Advocate General Mischo dated 11 March 1999).
7 Krämer above n 5 at 5.
8 Feldman, D. “Public Interest Litigation and Constitutional Theory in Comparative Perspective” 55 (1992) MLR 44 CrossRefGoogle Scholar.
9 Case 25/62 Plaumann & Co. v. Commission [1963] ECR 95.
10 See Article 230(2) (Article 173(2)) and the special position of the ECB and European Parliament under Article 230(3) (Article 173(3)).
11 Above n 9. See paragraph 48 of the decision of the Court of First Instance, above n 1, para. 28 and paras. 7 and 34 of the decision of the Court of Justice, above n 4. See also Joined cases 106-107/63 Toepfer v. Commission [1965] ECR 405; Case 11/82 Piraiki-Patraiki [1985] ECR 207; Joined cases T-480/93 and T-483/93 Antillean Rice Mills v. Commission [1995] ECR II-2305.
12 See, among others, Rasmussen, H. “Why is Article 173 Interpreted Against Private Plaintiffs?” 5 (1980) ELRev 112 Google Scholar; Harding, C. “The Private Interest in Challenging Community Action” 5 (1980) ELRev 354 Google Scholar, 355 and 361; Mancini, G. F. and Keeling, D. “Democracy and the European Court of Justice” 57 (1994) MLR 175 CrossRefGoogle Scholar, 188; Craig, P.P. and de Burca, G. EU Law: Texts, Cases and Materials (2d ed.) (Clarendon Press, 1998) 461 to 490Google Scholar. For a detailed analysis, see Albors-Llorens, A. Private Parties in European Community Law – Challenging Community Measures (Clarendon Press, 1996)Google Scholar. For a more flexible interpretation of the Plaumann test see Case C-309/89 Codorniu SA v Council [1994] ECR I-1853.
13 Case C-131/92 Arnaud and Others v. Council [1993] ECR I-2573. This case was decided prior to the establishment of the Court of First Instance.
14 Ibid at para. 16.
15 Ibid at para. 17.
16 Case C-209/94 Buralux SA and Others v. Council [1996] ECR I-615 (appeal from Case T-475/93 Buralux, Satrod and Ourry v. Council 17 May 1994).
17 OJ 1993 L30/1.
18 Decision of Court of First Instance above n 16 at paras. 23 and 24.
19 Ibid at paras. 31 and 32.
20 Case C-358/89 Extramet Industrie [1991] ECR I-2501.
21 Opinion of the Advocate General above n 16 at paras. 32, 33 and 37.
22 Ibid at paras. 42 to 45.
23 Ibid at para. 36.
24 Decision of the Court of Justice above n 16 at para. 36.
25 Case T-117/94 Rovigo and others v. Commission [1995] ECR II-455.
26 Established by Regulation (EEC) No. 1973/92, OJ 1992 L 206/1.
27 Above n 25 at paras. 24 and 25.
28 Ibid at para. 27.
29 ibid at paras. 30 and 31.
30 Case C-142/95 [1996] ECR I-6669.
31 Ibid at para. 24.
32 Ibid at paras. 40-41 of the opinion of the Advocate General.
33 Ibid at paras. 42-3.
34 Case T-460/93 [1993] ECR II-1257.
35 Case 294/83 [1986] ECR 1339, para. 25.
36 Above n 34 at para. 12.
37 Ibid at para. 18.
38 Ibid at para. 20.
39 Ibid at para. 22.
40 Ibid at para. 18.
41 Ibid at para. 21.
42 Ibid at para. 22.
43 Case T-461/93 An Taisce and WWF UK v. Commission [1994] ECR II-733; appealed in Case C-325/94P [1996] ECR I-3727.
44 Article 7(1) of Regulation No. 2052/88, OJ 1988 L 185/9, provides that measures financed by the Structural Funds or receiving assistance from the EIB or from another existing financial instrument must be in keeping with Community Treaties, laws and policies, including those on environmental protection (which would include the Environmental Assessment Directive). Under Article 24 of Council Regulation No. 4253/88, OJ 1988 L 374/1, the Commission may suspend or reduce assistance in respect of an operation if it finds that there has been an irregularity. This is independent of the Article 226 powers of the Commission relating to infringements by Member States.
45 Above n 43 at paras. 37 to 39 of the decision of the Court of First Instance.
46 Above n 43 at paras. 28 to 31 of the decision of the Court of Justice.
47 Council Regulation (EEC) No. 1787/84 OJ 1984 L 169/1, as amended by Council Regulation (EEC) No. 3641/85 OJ 1985 L 350/40.
48 Article 5 and paragraphs A20, A21 and C2 of Annex III thereof.
49 Above n 47. See also Regulations listed above n 44.
50 It is interesting to note that the Commission refused Greenpeace’s repeated requests for full disclosure of the decision-making procedure involved in the funding. While some argue that expanded standing is not necessary where public interest applicants have access to participate in decision-making procedures and provide their input in other ways, in this case even access of this kind was limited. This is further evidence that urgent action is required in the EU to protect the environment and citizens’ rights and interests. See Kunzlik, P. “Access to the Commission’s Documents in Environmental Cases – Confidentiality and Public Confidence” 9 (1997) Journal of Environmental Law 321 CrossRefGoogle Scholar.
51 Above n 1 at para. 26.
52 Ibid.
53 Ibid at para. 27.
54 Ibid at para. 28.
55 Case 62/70 [1971] ECR 897.
56 Case 11/82 [1985] ECR 207.
57 Above n 1 at para. 29.
58 Ibid at para. 32.
59 Ibid at para. 31, citing Case C-198/91 Cook v. Commission [1993] ECR I-2487. See also Case 169/84 COFAZ [1986] ECR 391. Participation in procedures can also result in the grant of standing to sue in the fields of competition and anti-dumping law. See eg Case 26/76 Metro v. Commission [1977] ECR 1875 and Case T-3/93 Air France [1994] ECR II-121 (competition); Case 246/82 Timex v. Council and Commission [1985] ECR 849 (anti-dumping).
60 Above n 1 at para. 30.
61 Ibid at para. 33.
62 Ibid at para. 39, citing the Opinion of Advocate General Lenz in Case 297/86 CIDA and Others v. Council [1988] ECR 3531 at para. 15.
63 Above n 43.
64 Above n 1 at para. 46.
65 Ibid at paras. 46 and 65.
66 Ibid at para. 48.
67 Ibid at para. 49.
68 Ibid at para. 50.
69 Ibid at para. 51.
70 Ibid.
71 Ibid at para. 56. See also Case 246/81 Lord Bethell v. Commission [1982] ECR 2277.
72 Ibid.
73 Ibid paras. 59 and 60. See also e.g. Joined Cases 19 to 22/62 Fédération Nationale de la Boucherie en Gros et du Commerce en Gros des Viandes and others v. Council [1962] ECR 491; Joined Cases T-447 /93, T-448/93 and T-449/93 AITEC and others v. Commission [1995] ECR II-1971.
74 Above n 1 at paras. 61 and 62.
75 Ibid at para. 63.
76 Ibid at para. 40.
77 Above n 3.
78 Case C-431/92 Commission v. Germany [1995] ECR I-2189, paras. 37 to 40.
79 See paras. 19 to 32 of the Opinion of the Advocate General above n 4.
80 Ibid at para. 22.
81 Decision of Court of Justice above n 4 at para. 21.
82 Opinion of the Advocate General above n 4 at para. 24.
83 Ibid at para. 24.
84 Ibid at para. 25.
85 Ibid at para. 29.
86 Ibid at para. 31.
87 Decision of Court of Justice above n 4 at para. 26.
88 Opinion of the Advocate General above n 4 at para. 33.
89 Ibid at para. 34.
90 Ibid at para. 35.
91 Ibid at para. 37.
92 Above n 3.
93 Opinion of the Advocate General above n 4 at para. 38. The arguments of the intervenor Spain in all of these proceedings were broadly similar to those of the Commission.
94 Ibid at para. 63.
95 Ibid at paras. 71 to 75.
96 Ibid at para. 104.
97 Ibid at footnote 115 of the Opinion.
98 Ibid at para. 53.
99 Ibid at para. 99.
100 Ibid at para. 104.
101 Ibid at paras. 104 and 105.
102 Ibid at paras. 104 to 113
103 Ibid at paras. 110 to 113.
104 Ibid at paras. 114 to 118.
105 Decision of Court of Justice above n 4 at para. 27.
106 Ibid at para. 28.
107 Ibid at para. 29.
108 Ibid at paras. 30 to 31.
109 Ibid at para. 33.
110 In An Taisce above n 43; Krämer, above n 5, notes that many of the environmental cases brought under Article 230 involve Community funding of projects. See also Scott, J. “Environmental Compatibility and the Community’s Structural Funds: A Legal Analysis” 8 (1996) Journal of Environmental Law 99 CrossRefGoogle Scholar.
111 For detailed discussion of the rationale for rules of standing, see Cromwell, T.A. Locus Standi – A Commentary on the Law of Standing in Canada (Carswell, 1986)Google Scholar; Thio, S.M. Locus Standi and Judicial Review (Singapore University Press, 1971)Google Scholar; Vining, G.J. Legal Identity – The Coming of Age of Public Law (Yale University Press, 1978)Google Scholar; Stein, L.A. “The Theoretical Bases of Locus Standi” in Stein, L.A. Locus Standi (The Law Book Company Limited, 1979) 3 Google Scholar. See also Feldman above n 8; Cane, P. “The Function of Standing Rules in Administrative Law”, [1980] Public Law 303 Google Scholar; Schiemann, K. “Locus Standi”, [1990] Public Law 342 Google Scholar; Evans, J.M., Janisch, H.N., Mullan, D.J., and Risk, Administrative Law (4th ed., Emond Montgomery Publications Limited, 1995) at 1265 Google Scholar; Chayes, A. “The Role of the Judge in Public Law Litigation” 89 (1976) Harvard Law Review 1281 CrossRefGoogle Scholar; Stein, E. and Vining, G.J. “Citizen Access to Judicial Review of Administrative Action in a Transnational and Federal Context” 70 (1976) AJIL 219 CrossRefGoogle Scholar; Harding, A. “Do Public Interest Environmental Law and the Common Law Have a Future Together?” in Robinson, D. and Dunkley, J. (eds.) Public Interest Perspectives in Environmental Law (Wiley Chancery, 1995) 217 Google Scholar; Bogart, W. “The Lessons of Liberalized Standing” 27 (1989) Osgoode Hall Law Journal 195 Google Scholar, 202; and reports such as Administrative Law: Judicial Review and Statutory Appeals (Law Commission of England Final Report No. 226, HMSO 1994) paragraph 2.1; Executive Summary of the Ontario Law Reform Commission Report on the Law of Standing (Toronto, Ministry of the Attorney General, 1989).
112 Evans, Janisch, Mullan and Risk, above n 111 at 29-31.
113 Thornton, J. and Beckwith, S. Environmental Law (Sweet and Maxwell, 1997) at 14 Google Scholar.
114 Stone, C.D. Should Tress Have Standing? (Oceana Publications, 1996, 25th anniversary edition)Google Scholar.
115 Linenger, A.M. “Liberalizing Standing for Environmental Plaintiffs in the European Union” 4 (1995) New York University Environmental Law Journal 9, 128 Google Scholar. See also Cameron, J. “Environmental Public Interest Litigation” in Vaughan, D. (ed.) EC Environment and Planning Law (Butterworths, 1991) 281 Google Scholar.
116 By contrast, many Member States have adopted more liberal standing rules and some have enacted specific legislation permitting environmental groups such as Greenpeace to litigate: see Fuhr, M., Gebers, B., Ormond, T. and Roller, G. “Access to Justice: Legal Standing for Environmental Associations in the European Union” in Robinson, D. and Dunkley, J. (eds.) Public Interest Perspectives in Environmental Law (Wiley Chancery, 1995) 71 Google Scholar. See also English cases; e.g. R v. HM Inspectorate of Pollution, [1994] 4 All ER 532; cf R v. Secretary of State for Trade and Industry ex p. Greenpeace Limited [1998] Env. LR 415. Linenger, above n 115 at 116 footnote 145 argues that although public interest environmental standing in the Member States courts does not assume support for expanded standing before the Court of Justice itself, “to the extent that political concerns have prompted the ECJ to interpret Article 173, para.4 narrowly, this Member State level acceptance of private plaintiff standing may be persuasive. “
117 Linenger, above n 115 and Stein and Vining above n 111. For some examples of seminal US cases see Association of Data Processing Service Organizations v. Camp 397 U.S. 150 (1970); Sierra v. Morton, 405 US 727 (1992).
118 R.S.C. 1970 (2nd Supp.) c. 10 [now R.S.C. 1985, c. F-7].
119 An Act to Amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in consequence thereof, S.C. 1990, c. 8.
120 Ibid. s. 2. See generally Sgayias, D., Kinnear, M., Rennie, D.J., Saunders, B.J. Federal Court Practice 1998 (Toronto: Carswell, 1997)Google Scholar Part I.
121 Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138. See also Johnson, J.M. “ Locus Standi in Constitutional Cases after Thorson ”, [1975] Public Law 137 Google Scholar.
122 Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265. See also Mullan, D. “Standing after McNeil ” 8 (1976) Ottawa Law Review 32 Google Scholar.
123 Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575. See case comment by Kushner, H. 17 (1983) University of British Columbia Law Review 143 Google Scholar.
124 Minister of Finance of Canada v. Finlay, [1986] 2 S.C.R. 607.
125 See e.g. Smith v. A.G. Ontario, [1924] S.C.R. 331.
126 R.S.C. 1970, c. O-2.
127 Thorson, above n 121 at 145.
128 Ibid. at 163.
129 Strayer, B. The Canadian Constitution and The Courts: The Function and Scope of Judicial Review (2d ed.) (Butterworths, 1983) 173 Google Scholar. See the dissenting opinion of Wilson, J. in Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441 for a full discussion of justiciability in Canada.
130 Above n 122.
131 Above n 123.
132 Ibid at 578.
133 Above n 124.
134 Ibid at 632.
135 [1992] 1 S.C.R. 236.
136 Ibid at 252. However, Mr. Justice Cory went on to say at 252 that “The granting of public interest standing is not required when, on a balance of probability, it can be shown that the measure will be subject to attack by a private litigant.” Therefore, in that case the Court held that the Council should not be granted standing to challenge the constitutional validity of the Immigration Act 1976, S.C. 1976-77 since refugees themselves who were directly affected could challenge the Act. The Court was clearly not persuaded by the difficulties involved for the refugees and the benefit of the litigation resources of the Council, nor by the saving of scarce judicial resources by addressing the issues in one proceeding. See also Hy and Zel’s Inc. v. Ontario (A.G.) (1993), 107 D.L.R. (4th) 634 (S.C.C.), in which commercial undertakings challenged the provincial Retail Business Holidays Act, R.S.O. 1980, c. 453, which they alleged was contrary to the Charter right to freedom of religion (although it did not in fact contravene their own religion). The majority of the Supreme Court held that there was another reasonable and effective way to bring the matter to court, namely the bringing of a challenge by persons whose religious rights were in fact alleged to be violated by the Act. The minority held that the applicants did suffer exceptional prejudice because of the special effect of the legislation on their interests and that individual employees have no other reasonable and effective way to argue their case except by taking advantage of the action of their employer who has the resources for such proceedings.
137 Until 1992, section 18 set out the jurisdiction of the Trial Division, but retained the old prerogative writ procedures. See Mullan, D.J. “ The Federal Court Act: A Misguided Attempt at Administrative Law Reform?” 23 (1973) University of Toronto Law journal 14 CrossRefGoogle Scholar at 34.
138 The revised subsection 28(2) provides that for judicial review proceedings in the Court of Appeal, sections 18 to 18.5 (i.e. including the standing rules in s. 18.1(1)) apply.
139 [1993] 2 F.C. 229 (T.D.), reversed only as to costs (1995), 131 D.L.R. (4th) 285 (F.C.A.), appeal to S.C.C, refused (1996), 138 D.L.R. (4th) vii (note)(S.C.C).
140 Decision of the Trial Division ibid at 281.
141 (1995), 131 D.L.R. (4th) 285 (F.C.A.).
142 Elgie, S. “Environmental Groups and the Courts: 1970-1992” in Thompson, G., McConnell, M. and Huestis, L. (eds.) Environmental Law and Business in Canada (Canada Law Book Inc., 1993) 185 Google Scholar at 202.
143 SOR/84-467.
144 S.C. 1992, c. 37.
145 Decision of the Trial Division above n 139 at 281.
146 (1996), 202 N.R. 132 (F.C.A.); application for leave to appeal to the S.C.C. dismissed, [1996] S.C.C.A. No. 498. The Court of Appeal had upheld the Trial Division decision in Sunshine Village Corp. v. Banff National Park, [1995] 1 F.C. 420.
147 Court of Appeal decision ibid at para. 69.
148 Ibid at para. 70.
149 T-2201-90 Lifeforce Foundation v. Canada (Minister of Oceans and Fisheries), [1990] 3 F.C. D-31 (F.C.T.D.) [full decision unreported] and T-2181-90 International Wildlife Coalition v. Canada (Minister of Oceans and Fisheries), [1990] 3 F.C. D-30 (F.C.T.D.), heard together 10 August 1990 [full decision unreported].
150 Edmonton Friends of the North Environmental Society v. Canada (Minister of Western Economic Diversification) (1990), 69 D.L.R. (4th) 143 (F.C.T.D.); reversed [1991] 1 F.C. 416 (C.A.).
151 Vancouver Island Peace Society v. Canada (Minister of National Defence), [1994] 1 F.C. 102 (T.D.), affirmed (1995), 179 N.R. 106 (F.C.A.), application for leave to appeal to S.C.C. dismissed (1995), 192 N.R. 80 (S.C.C.).
152 Friends of Oak Hammock Marsh v. Canada (Minister of Western Economic Diversification) (1993), 67 F.T.R. 185.
153 Alberta Wilderness Association v. Canada (Minister of Fisheries and Oceans) (1998), 146 F.T.R. 257.
154 Re: Alberta Wilderness Association and Express Pipelines Ltd. (1996), 137 D.L.R. (4th) 177 (F.C.A.)
155 Sierra Club of Canada v. Canada (Minister of Finance) (1997), 131 F.T.R. 298.
156 Friends of the Oldman Kiver Society v. Canada (Minister of Transport), [1990] 1 F.C. 248 (T.D.); reversed [1990] 2 F.C. 18 (C.A.); varied, [1992] 1 S.C.R. 3, among other proceedings in this matter.
157 Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1989] 3 F.C. 309 (T.D.), affirmed [1990] 2 W.W.R. 69 (F.C.A.) among other proceedings in this matter.
158 Above n 151. In Friends of the Oldman River Society v. Minister of Transport, above n 156 the Trial judge, having decided that the application could not succeed on the merits, assumed without deciding that the environmental interest group had standing, and the subsequent proceedings did not revisit the standing issue.
159 [1981] 1 F.C. 733 (T.D.).
160 ibid at 742.
161 Shiell v. Amok (1988), 27 Admin. L. R. 1 (Sask. Q.B.).
162 Shiell v. Canada (Atomic Energy Control Board) (1995), 33 Admin. L. R. (2d) 122 (F.C.T.D.).
163 [1995] 3 F.C. 713 (T.D.).
164 Ibid at 734.
165 Ibid at 735.
166 Ibid at 737. By analogy, the Members State may in some cases be representative of the public interest of its individual citizens, but this should not be assumed, as in cases such as Stichting Greenpeace where both the Member State and the Community institution are alleged to be contravening law and the public interest, this clearly would not be appropriate.
167 Being Part I of the Constitution Act, 1982, Sch. B., R.S.C. 1985, App. II, No 44.
168 Cox, A. The Role of the Supreme Court in American Government (New York: Oxford University Press, 1976) at 116–118 Google Scholar.
169 Mancini and Keeling above n 12 at 181 and Curtin, D. “The Constitutional Structure of the Union: A Europe of Bits and Pieces” 30 (1993) CMLRev 17 Google Scholar at 63.
170 Mancini and Keeling, above n 12.
171 Ibid.
172 Commissioners are chosen collectively by Member State governments (with the participation of the European Parliament since the TEU) but remain independent thereof, whereas each Member State appoints one representative to the Council (generally the domestic Minister responsible for a particular area will attend Council meetings on that subject). For details see Craig and de Burea above n 12 at 49 to 63.
173 Article 249 to 256 (Articles 89-192), EC Treaty.
174 Albors-Llorens above n 12 at 1-6.
175 See e.g. Case 11/70 Internationale Handelsgesellschaft GmbH v. Einfuhr-und-Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125. For a thorough discussion of the case law on fundamental rights, see e.g. Weiler, J.H.H. and Lockhart, N. “‘Taking Rights Seriously’ Seriously: The European Court and its Fundamental Rights Jurisprudence” 32 (1995) CMLRev 51 Google Scholar and 579 (Parts I and II).
176 Article 46 TEU (Article L); Article 309 EC (Article 236).
177 Article 7 TEU (Article F.l). Note also that Article 6 TEU (Article F) has been amended to declare that the Union is founded on respect for human rights, democracy, and the rule of law; respect for these principles has also been made a condition of application for membership of the European Union under Article 49 TEU.
178 See LaForest, J. in R. v. Hydro-Québec, [1997] 3 S.C.R. 213 at para. 123 and para. 127.
179 Ibid at para. 112.
180 Elgie above n 142.
181 Krämer, L. “Environmental Protection and Article 30 of the EEC Treaty” 30 (1993) CMLRev 111 Google Scholar. However, the Community built up a body of environmental legislation using Articles 94 (Article 100) and 308 (Article 235) and developed Environmental Action Programmes.
182 Article 5 (Article 3b). See CEPR Making Sense of Subsidiarity (CEPR Annual Report, 1993) at 14.
183 See Case 240/83 Procureur de la République v. Association de défense des brûleurs d’huiles usagées [1985] ECR 531 at para. 13.
184 Case 302/86 Commission v. Denmark [1989] ECR 4607.
185 Ibid at 9.
186 Krämer above n 5 at 2-10 argues that the Commission lacks enforcement resources, the complaint procedure is not well organised and the Commission is too exposed to “administrative, political or other influences” to be a fully independent “guardian of the public interest environment”.
187 Ormond, T. “‘Access to Justice’ for Environmental NGOs in the European Union” in Deimann, S. and Dyssli, B. (eds.) Environmental Rights: Law, Litigation and Access to Justice (Cameron May, 1995) 71 Google Scholar at 76.
188 Krämer above n 5 at 17.
189 See e.g. ibid at 7.
190 See Ward, A. “The Right to an Effective Remedy in European Community Law and Environmental Protection” 5 (1993) Journal of Environmental Law 221 CrossRefGoogle Scholar; Geddes, A. “Locus Standi and EEC Environmental Measures” 4 (1992) Journal of Environmental Law 29 CrossRefGoogle Scholar. This issue is important when considering arguments citing Article 234 as an adequate alternative to a more liberal interpretation of Article 230(4).
191 E.g. Case 14/83 von Colson and Kamman v. Land Nordrhein-westfalen [1984] ECR 1891; Case 79/83 Dorit Harz v. Deutsche Tradex GmbH [1984] ECR 1921.
192 Fuhr, M., Gebers, B., Ormond, T. and Roller, G. above n 116 at 71. See also ECE Convention on “Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters” signed by the Community in Arhus on 25 June 1998.
193 30 & 31 Viet., c.3 (U.K.) (as am. by Canada Act 1982, 1982, c.11 (U.K.)).
194 The Federal Court cannot provide preliminary opinions to, and its judgements do not bind, the provincial superior courts, and in this sense the European Court of Justice is more like the Supreme Court of Canada, whose decisions are binding on the provincial courts. However, the Supreme Court has no original jurisdiction in contentious proceedings (although it can answer references addressed to it by the federal or provincial governments). In terms of original jurisdiction to review the exercise of federal statutory powers and legislative actions, the jurisdiction of the Federal Court resembles that of the European Court of Justice in Article 230.
195 Hartley, T.C. The Foundations of European Community Law (4th ed.) (Oxford University Press, 1998) at 77 Google Scholar.
196 Case 26/62 van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1.
197 E.g. Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629.
198 E.g. Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125. See Weiler and Lockhart above n 175.
199 Case 294/83 Parti Ecologiste “Us Verts” v. European Parliament [1986] ECR 1339 and Case C-70/88 European Parliament v. Council (“Chernobyl”) [1990] ECR I-2041.
200 E.g. Case 302/86 Commission v. Denmark [1989] ECR 4607.
201 Maduro, “Reforming the Market or State: Article 30 and the European Constitution: Economic Freedom and Political Rights” 3 (1997) ELJ 55 CrossRefGoogle Scholar.
202 See the frequently cited state aids and competition cases of the Court of Justice.
203 Mullan, D.J. “Judicial Review” in The Federal Court of Canada - An Evaluation (Papers presented at the 20th Anniversary Symposium, June 26, 1991) 29 at 31.
204 Federal Court Rules, C.R.C., c. 663, Rule 1618, as amended.
205 Federal Court Rules 1998, SOR/98-106.
206 Curtin above n 169 at 65.
207 Above n 135 at 250.
208 Bowal, P. “Speaking Up for Others: Locus Standi and Representative Bodies” 35 (1994) CDE 905 Google Scholar at 939 and Linenger above n 115 at 128: “in addition, access to justice for these groups would promote the development of environmental organizations in the EU where they are few in number and not very powerful”.
209 Krämer, above n 5 at 17. For cases on competition and state aids respectively, see e.g. Case 26/76 Metro v. Commission [1977] ECR 1875 and Case T-3/93 Air France [1994] ECR II-121; Case C-198/91 Cook v. Commission [1993] ECR I-2487 and Case 169/84 COFAZ [1986] ECR 391.
210 Macrory, R. “Environmental Citizenship and the Law: Repairing the European Road” 8 (1996) Journal of Environmental Law 219, 234CrossRefGoogle Scholar. Note also that, under the amendments to the EC Treaty proposed under the Treaty of Amsterdam, environmental protection is integrated into the definition and implementation of all Community policies and activities (new Article 6) while “a high level of protection and improvement of the quality of the environment” is now listed as an independent goal under Article 2, rather than as a mere by-product of economic growth.
211 Arnull, A. “Does the Court of Justice have Inherent Jurisdiction?” 27 (1990) CMLRev 683 Google Scholar.
212 Above text notes 133 to 134.
213 Above n 211 at 708. Arnull also indicates his support for a similar standing test for the ECJ in Arnull, A. “Private Applicants and the Action for Annulment under Article 173 EC” 32 (1995) CMLRev 7 Google Scholar.