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This Part and the subsequent Part discuss the merits of Save-a-Bird's case. These Parts seek to highlight the difficult issues raised by Save-a-Bird's case, and conclude that it does not lend itself to an easy resolution.
The first salvo in Save-a-Bird's argument is the Francovich-type classic claim that the "full effectiveness of Community law would be impaired and the protection of the rights which [it] grants would be weakened"[42] if Save-a-Bird was not given access to court. Another way of framing this claim is to argue that upholding national procedural autonomy in this case would render the exercise of Community rights "virtually impossible or excessively difficult."[43] At bottom, the argument is the same: as often stated by experts in the field, granting associations the right to defend the interests of the environment is the only way to get the "ecological voice heard in a world with essentially economic interests."[44]
Save-a-Bird would likely adduce strong evidence to support this claim. The starting point of Save-a-Bird's argument is the legal conclusion, accepted by the national court, that the nature of the norms created by the directive is such that affected individuals are highly unlikely to be found. The empirical evidence bolsters Save-a-Bird's "enforcement deficit" argument. Studies report that the overwhelming majority of environmental cases brought under Community law were Article 169 actions by the Commission, and that there is a high likelihood that the Commission's limited resources and its related need to exercise discretion in selecting complaints leads to under-enforcement of Community environmental norms.[45] Studies point to "the paucity of information and lack of personnel in the Directorate General for Environment."[46] They assert that, because of this lack of resources, the Commission generally assumes a reactive role whereby it initiates Article 169 environmental actions only after it receives from a private party a complaint of non-compliance or incorrect implementation. In turn, available statistics show that the number of complaints brought to the Commission in the environmental field has grown at a much higher pace than the number of Article 169 proceedings it initiated.[47] These findings suggest that the Commission has logistical problems keeping up with the expansion of the environmental field.
This inference is strengthened by available data on the number of reasoned opinions and references to the Court that have arisen out of Article 169 complaints. In 1992, for example, the Commission sent out 1,210 Article 169 letters related to environmental matters. The letters were followed by 248 reasoned opinions. 64 referrals to the Court ensued.[48] The study reporting these figures does not address the extent to which the process led to compliance by the Member State and the nature of the complaints. Its findings, however, provide additional support for the proposition that exclusive reliance on the Commission for environmental enforcement does not guarantee the full effectiveness of Community law and effective protection of the beneficiaries of the rights that it creates.
The nature of the actions brought by the Commission also evidence its relative ineffectiveness as the sole "Euro-watchdog" of Community environmental protection. The bulk of the cases brought by the Commission relate to matters "of a technical nature, relating to parliamentary timetables, legal or administrative systems or differing methods of monitoring or measurement."[49] Cases raising "sensitive political questions about the economic or practical effect of EU legislation," on the other hand, represent a small portion of the Commission's environmental case load. This selective enforcement pattern is explained in part by the institutional structure for implementing environmental norms: regional or local authorities often have exclusive competence to transpose directives. While the Member States' central government is ultimately responsible for the effective transposition of directives, the Commission has acknowledged that the formal process of infringement proceedings may not provide the most effective means of sorting out transposition problems that reach down to local levels.[50] As a high ranking member of the DG for Environment wrote, "Community action cannot take the place of application of environmental law at the local and regional level, as protecting the environment is basically something that has to be done ´on the spot'."[51] This conclusion seems to make it all the more sensible to allow environmental groups, armed with information and knowledge of local conditions, to enforce environmental norms.
The Commission's under-enforcement of Community norms is further evidenced by the recently growing number of complaints brought to the Court and the Court of First Instance by individuals and undertakings challenging the Commission's refusal to take action in a given matter.[52] These cases arose out of the Commission's increasing strictness in determining whether a complaint raises a sufficient degree of Community interest to warrant investigation, and its consequent decision to "shelve an important part of the complaints that it receives."[53] The ensuing decisions confirmed that, at least with respect to complaints alleging infringement of Community law by a Member State, the complainant has no other right than to lodge the complaint. The Commission, conversely, has no obligation to investigate the complaint, to inform the complainant that it has been shelved or, a fortiori, to adopt a reasoned opinion or bring the matter before the Court.[54]
To restate, the crux of Save-a-Bird's claim is that it acts as the representative of the beneficiaries of the wild bird directive, and that the associational standing rules of the Member State deprive these beneficiaries of effective judicial protection and curtail the effet utile of the directive. This claim draws empirical support from the fact that most environmental cases are brought by the Commission. It also takes on added significance in light of the Commision's relative ineffectiveness as sole enforcer of environmental rights.
Save-a-Bird would also present a few doctrinal arguments to buttress its claim. First, Save-a-Bird would rely on Verholen to rebut the possible argument that the case involves no "individuals" as to whom effective judicial protection applies. As discussed above, Verholen may be construed to stand for the proposition that the beneficiaries of a directive have a right of access to national courts to obtain a judicial determination. In Save-a-Bird's case, the argument would go, the association should be viewed as the "surrogate" of the beneficiaries of the directives. Much like a guardian is expected to defend the interests of a legally incompetent person, Save-a-Bird is merely acting as the conduit for claims that, in a sense, belong to the birds.
Next, Save-a-Bird would argue that associational standing rules, at least in the context of this case, bear very few of the "hallmarks of procedure" that the Court identified in van Schinjdel and Peterbroeck. The "defense" here cannot claim a right to violate Community law with impunity merely because the beneficiaries of the rights at stake are not individuals endowed with the capacity to hire an attorney. For essentially similar reasons, the interests in legal certainty that are implicated by a Peterbroeck-type rule do not apply in the case of associational standing. As to the interests of the national courts in "proper conduct of the proceedings", as will be seen later, standing rules are said to insure vigorous litigation of concrete claims informed by the operation of a rule of law in the real world. However, Save-a-Bird would still have a strong argument that its closeness to the issues at stake and interest in prosecuting environmental matters makes it unlikely that giving it standing would endanger the proper conduct of proceedings in national courts. (In any event, Save-a-Bird would argue, these procedural concerns are outweighed by the effective judicial protection and effet utile concerns described above.)
Save-a-Bird will then rely on Peterbroeck and van Schinjdel to address the doctrinal problem inherent in Save-a-Bird's reliance on empirical evidence to support its claim that associational standing is needed to secure the effectiveness of Community law and the effective protection of the rights that it creates. Save-a-Bird may argue that, just as the rules at issue in those cases were considered in the context of the entire judicial process, associational standing should be analyzed in the broad context of the entire judicial system of enforcement of rights.
So far, so good for our environmental plaintiff. Save-a-Bird's case, however, may encounter a fatal obstacle arising out of two related counter-arguments: first, Member States have experimented with alternative enforcement methods that do not necessarily involve traditional court actions; second, the von Colson line of cases stands for the proposition that Member States may choose among such alternative methods of enforcement, as long as the chosen method meets certain minimum standards of effectiveness.
These counter-arguments are best discussed in the context of a case such as Save-a-Bird II, which presents an issue of enforcement as against a private party rather than a Member State's failure to transpose the provisions of a directive into national law. In this context, one gains appreciation for the alternative methods of environmental enforcement and the fact that associational standing may actually interfere with the proper operation of these methods. One example is the execution of "eco-contracts" between a governmental body and a company or industry.[55] The substance of these agreements vary from country to country. In Denmark, for example, a framework legislation on these contractual arrangements was enacted in 1991. The basic idea behind the legislation was that the administrative authorities will issue binding objectives with respect to a particular environmental issue, to be implemented either by the issuance of orders to industries or through contractual arrangements. Under the law, the negotiation of these arrangements is open to participation by interested parties such as non-governmental organizations. Aside from the substantive environmental obligations that they establish, the eco-contracts contain provisions designating persons responsible for, and procedures for monitoring, the implementation of the agreement. These agreements have reportedly achieved relatively successful results in securing industry compliance with government norms.[56]§[§]
Another alternative enforcement method is the appointment of "environmental managers" charged with supervising a company's compliance with environmental norms. In Germany, for example, certain companies carrying on activities likely to endanger the environment are required to appoint environmental managers. The managers have an ombudsman-like statute that gives them the right to implement legal regulations without fearing retaliation from the company. They also keep records of the results of environmental inspections, and may inform the public of any perceived failure by their firm to comply with norms.[57]
The Community itself has also experimented with alternative methods of enforcing environmental law. The Council has enacted a regulation establishing an environmental audit scheme in which companies may participate voluntarily. Participating companies which comply with the provisions of the directive are entitled to have their names published annually in the E.U. Official Journal and to use in their documents a statement of participation in the scheme.[58]
The difficulty lies in determining whether these alternative methods of enforcement fulfill, under von Colson, the Member State's requirement to provide effective protection of Community rights and ensure the full effectiveness of Community law. The Court can easily conclude, based on its sense of justice, that compensating victims of discrimination for travel expenses only (the remedy challenged in von Colson) is not sufficient to deter gender discrimination. But how does the Court go about determining whether eco-contracts are sufficiently effective in a particular area of environmental law so as to provide an adequate substitute for judicial enforcement and public control? How much compliance is enough? Where does the Court find the technical expertise to evaluate environmental issues, and how does it compare two alternative methods of enforcement when, by definition, one has not been tested yet in the Member State from which a given case arises?
Further, the Court's choosing an enforcement method over another, say associational litigation as opposed to voluntary compliance, may further weaken the effectiveness of the method deemed by the Court to produce unsatisfactory results. Industries may be less likely to enter into voluntary agreements with the government if they must also face the threat of associational litigation. The cost of facing both enforcement methods may be prohibitive. Or, simply, the possible perception by industry executives that the government failed to protect them against lawsuits they view as nuisance suits will reduce their incentive to cooperate.
This Part has sought to show that the difficulties raised by the issue whether Save-a-Bird is the sole effective guardian of the norms established by the wild bird directive and of the wildlife that the directive protects. The next Part discusses additional difficulties raised by Save-a-Bird's case related to the specific features of the standing doctrine.
[42] Francovich, supranote 7 at par. 32.
[43] San Giorgio, supra note 13.
[44] L. Kramer, Participation of Environmental Associations in the Activities of the EEC, in Fuhr and Roller eds., PARTICIPATION AND LITIGATION RIGHTS OF ENVIRONMENTAL ASSOCIATIONS IN EUROPE 129, 139 (1991).
[45] See, e.g., Huglo, L'Application par les Etats-Membres des normes communautaires en matiére d'environnement, 1994 R.T.D.E. 451 (juil.-sep. 1994); Macrory, The Enforcement of Community Environemental Laws: Some Critical Issues, 29 C.M.L.R. 347 (1992); Kramer, The Implementation of Community Environmental Directives within Member States: Some Implications of the Direct Effect Doctrine, 3 J. Envt'l L. 39 (1991); Gaskin, The Implementation of EC Environmental Law, 2 Rev. Eur. Community & Int'l Envtl. L. 335 (1993).
[46] Gaskin, supra note 45 at 338.
[47] Kramer, supra note 45 at 55.
[48] Gaskin, supra note 45 at 338.
[49] Id.]
50 Id.
[51] Kramer, supra note 45 at 55.
[52] See Maselis and Gilliams, Rights of Complainants in Community Law, 22 Eur. L. Rev. 103 (1997).
[53] Id.
[54] Id. at 103-106. See Rendo v. Commission, [1992] E.C.R. 291.
[55] See, Ercmann, Enforcement of Environmental Law in United States and European Law: Realities and Expectations, 26 Envt'l L. J. 1213 (1996).
[56] Id. at 1226-1228. See also Jorgensen, Legislation on Eco-Contracts in Denmark, in Van Dunne ed., NEW INSTRUMENTS FOR A REALISTIC ENVIRONMENTAL POLICY (1993); Rest, New Legal Instruments for Environmental Prevention, Control and Restoration in Public International Law, 23 Envt'l Policy & L. 260 (1993).
[§§] Comparative legislation has been enacted in the Netherlands. See Koeman, Bilateral Agreements between Government and Industry in Dutch Enviromental Law, 2 Eur. Envt'l L. Rev. 174 (1993). Several other Member-States, including France and Germany, are contemplating going this route. See Ercmann, Enforcement of Environmental Law in United States and European Law, 26 Envt'l L. J. 1213, 1228 (1996).
[57] Gaskin, supra note 45 at 1226-1227.
[58] Id. at 1231-1232.
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