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This conclusion humbly suggests a possible resolution of the question raised by the paper, more as an opening for a new study than a proposal to resolve definitively the question. I termed the suggestion "controlled experimentation" because it seeks to enroll the national courts in developing a European law of associational standing based on the conditions prevailing in their countries, under the supervision of the European Court.
This suggestion may be viewed as a mere extension of von Colson. Under this approach, the Court would issue in a case such as Save-a-Bird a general ruling announcing that national courts must allow associational standing if there exist no effective alternative methods of enforcing particular diffuse interests protected by European law. The Court would then direct national courts to analyze, based on the specific facts of each case, the effectiveness of alternative remedies. The national courts would evaluate both the possibility that actions will be brought by plaintiffs with standing under national law and the effectiveness of non-judicial methods of enforcement.
If the national court found that the alternative remedies are not effective enough, the national court would be required by European law to give standing to the association seeking relief. However, the Court would give the national courts a way out of granting standing to associations not adequately organized to represent the interests at stake or to be quality litigants. Here, the Court could cite to the broad guidelines set forth in the Italian law as (non-exhaustive) example of the type of factors that the national courts could consider. The Court would retain, through Article 177, jurisdiction to supervise the experimentation by the national courts. The role of the Court would essentially be to insure that the enterprise remains on track by correcting aberrant behavior and ensuring that national courts not let effectiveness fall below minimum standards.
This suggestion has, in my view, a number of advantages. First, associational standing -- with the right safeguards -- may indeed be a necessary part of the legal enforcement arsenal as modern conditions increasingly affect diffuse interests. Historical biases against associational standing, such as those present in Germany, may have lost some of their relevance. The controlled experimentation approach would give national judges a "gentle first push" towards acceptance of an idea whose time may have come. At the same time, the approach would not amount to a wholesale, blind endorsement of associational standing. National judges closer to the issues at hand than the Court would scrutinize alternative remedies. The judges would also retain the freedom to shut "bad plaintiffs" out of their courts.
Perhaps more importantly, the European common law of associational standing would develop as a result of cooperation between the Court and national judges, and the empowerment of the latter by the Court. As they have done in other contexts, lower-court judges may view positively the newly-found power to evaluate and control the actions of the executive and legislative branches of their government.[128] The judges' sense of empowerment, perhaps, will lead them to put aside their biases against associational standing and play the "experimentation game" with an open mind. At the same time, this sense will decrease the likelihood that, as in the examples described by Professor Caruso, they will resist integration.
Professor van Gerven wrote that every new generation of lawyers must attempt to createa "common law of Europe with the help of general principles underlying the national and supra-national legal systems in the Member-States." Controlled experimentation may create the legal framework for achieving this goal in the field of associational standing.
[128] See Weiler, The Transformation of Europe, 100 Yale L.J. 2403, 2425 (1991).