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This paper explores the issue whether the principles of effective judicial protection and full effectiveness of Community law require national courts to give standing to pressure groups seeking to litigate diffuse social interests. The paper is organized around a hypothetical fact-pattern inspired by an actual case decided by a British court. My hypothetical is intended to highlight and contextualize the issues that the European Court of Justice (the "Court") would face if asked to direct a national court to allow associational litigation of diffuse interests.
The facts of the hypothetical are as follows. Community Directive 79/409[1] mandates that Member States take "appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting" certain protected species. A Member State of the European Union fails to transpose the provisions of the directive. The administrative authorities of the Member States then grant a permit to build a road cutting across a forest inhabited by species protected by the directive. These provisions of the directive, it is assumed, have direct effect in the Member State.
"Save-a-Bird" is an environmental organization devoted to protecting wildlife in the Member State. Save-a-Bird has a strong national and international reputation as a level-headed association that stirs away from what it terms "environmental zealotry", and includes in its membership a broad array of smaller organizations hol ding divergent views. Save-a-Bird's members elect its Board of Directors, which makes policy decisions by majority vote. Save-a-Bird has fairly lenient procedures for admission to membership.
Save-a-Bird monitors industrial activities and government decisions that carry potential harm to the environment. When it can gain access to court, usually by finding individuals with standing who are willing to "front" as representative plaintiffs, Save-a-Bird litigates the "diffuse" interests of wildlife. Save-a-Bird also raises funds earmarked for grants to local organizations engaged in wildlife preservation.
Save-a-Bird has concluded that the grant of a permit to build a road in a forest inhabited by endangered species clearly violates the Member State's duty under the European wild bird directive. Save-a-Bird commences an action in the Member-State's administrative courts seeking to annul the decision. The judge hearing the case has strong doubts as to the legality of the administrative action. However, under established rules of national procedure, the judge concludes that Save-a-Bird does not have standing to challenge the action.
Save-a-Bird protests that, if associations of concerned citizens are denied access to court, there will be no plaintiffs with standing to challenge the probable violation of the wild bird directive. The only creatures directly affected by the alleged breach of Community law are birds. Human beings are affected only insofar as, like Save-a-Bird and its members, they care about wild birds and their habitats.
The court agrees that, based on the facts at hand, refusing to entertain Save-a-Bird's application is the functional equivalent of upholding the grant of the permit. The court refers to the Court pursuant to Article 177 of the Treaty of European Union (the "Treaty") the question whether, under the facts described above, European law requires a national court to disregard national standing rules and allow an association to litigate diffuse interests.[Ǡ]
A few arguments made in the paper will be illustrated by the following, modified version of the Save-a-Bird case, to which I will refer as "Save-a-Bird II": in this second hypothetical, the Member State has transposed the provisions of the wild bird directive into national law. A company begins construction of a housing development in the forest housing protected species. Save-a-Bird asks the Member State's environmental protection agency to take action against the developer, but the agency declines to do so. Save-a-Bird commences an action against the developer in the Member State's civil courts to enjoin the construction. Here again, the court rules that Save-a-Bird has no standing to litigate the diffuse interests of wildlife and refers the question of associational standing to the Court.
Part II of the paper summarizes the doctrines of effective judicial protection and full effect of Community law (to which I will sometimes refer as the effet utile doctrine). Part II also describes the tension between these doctrines and the principle that national law determines the "procedural conditions" governing actions to enforce rights arising under Community law. Part II aims at providing doctrinal background for the ensuing discussion and distilling the aspects of effective judicial protection and effet utile that bear on the question put to the Court in the hypothetical Save-a-Bird case.
Parts III and IV of the paper apply the legal principles articulated in Part II to Save-a-Bird's case, and conclude that the case raises highly intricate issues that do not lend themselves to easy resolution. Thus, Part III shows that, on the one hand, Save-a-Bird will muster a compelling argument that denying it access to court is likely to leave violations of the wild bird directive unremedied. Studies detailing the "enforcement deficit" in environmental law abound. These studies are bolstered by empirical evidence showing that the Commission, lacking personnel and access to information, cannot keep up with the expansion of the environmental field. In addition, the case law essentially leaves the Commission free to "shelve" complaints, thereby denying aggrieved complainants an indirect means of forcing Member State compliance with environmental law.
Save-a-Bird may also buttress its enforcement deficit claim with strong doctrinal arguments based on the case law reviewed in Part II. Effective judicial protection, it will argue, confers upon the beneficiaries of a directive a right of access to national courts to enforce its provisions. In turn, the case law lends support to the argument that Save-a-Bird has the right to enforce the wild bird directive as a "surrogate" of its beneficiaries (the birds), which are obviously unable to enforce by themselves the norms established by the directive. Further, the recent Court decisions in van Schinjdel and Peterbroeck may be construed (as Part II does) to introduce into the doctrine a "hallmarks of procedure" analysis narrowing the range of rules that fall within the exclusive jurisdiction of the Member States. Under this analysis, Save-a-Bird may argue, the rules applicable to associational standing -- which regulate the fundamental issue of access to justice -- should not be deemed to be procedural rules left to the jurisdiction of the Member States.
Part III shows, on the other hand, some of the problems inherent in attempting to demonstrate that litigation of diffuse interests is the only way to insure effective enforcement of the rights created by the directive. (This portion of Part III discusses the relevant issues in the context of Save-a-Bird II). In particular, Part III discusses how Member States, mindful of the problem of protecting diffuse interests, increasingly experiment with alternative methods of enforcing environmental laws. Some countries have, for example, enacted legislation promoting "eco-contracts" between the government and companies that set forth programs for enforcement of environmental norms established by the government. Other countries rely on the presence of "environmental managers" acting as on-site ombudsmen responsible for a firm's compliance with environmental norms.
In turn, Community law leaves Member States free to choose among alternative (effective) methods of enforcing Community rights. It is one thing for the Court to determine, based on its sense of justice that, say, a low cap on damages in a discrimination case will not provide an adequate remedy. Asking the Court to determine that alternative methods of enforcing environmental rights are not sufficiently effective, however, requires the Court to evaluate experimental techniques and, essentially, select the view of one set of experts over another. Further, the effectiveness of the alternative methods of enforcement may even be weakened if the Court forced associational standing as an additional remedy. (This could happen if, for example, corporate resources devoted to fulfilling their obligations under eco-contracts were diverted to the defense of lawsuits brought by associations.) If associational standing turns out in the long-run not to provide a satisfactory solution to the problem of enforcement of diffuse interests, the Court would have in fact impaired the full effectiveness of Community law and the effective judicial protection of its beneficiaries.
Part IV of the paper discusses additional difficulties, related to the specific features of the standing doctrine, inherent in arguing that effective judicial protection and effet utile require national courts to give standing to associations litigating diffuse interests. First, doing so would thrust the Court in the middle of important, historically rooted national policy concerns that are furthered by the doctrine of standing (e.g., separation of powers). The Court has indicated in the past its willingness to interfere with such sensitive policies for the sake of effectiveness of European law and the effective protection of the rights that it creates. The case of associational standing, however, presents more complex issues than the Court has faced before: Member States follow widely divergent doctrinal approaches to associational standing, emphasizing different aspects of the doctrine; the rules governing associational standing also may differ within a single Member State, with judges interpreting broad language to further their individual policy preferences; associational standing cases often involve intensively fact-specific inquiries guided by the general policies followed in the relevant jurisdiction; associational standing is in a state of flux, taking shape based on the outcome of the debate on the issue in the Member States. Part IV illustrates these points by surveying of laws of associational standing of England, Germany, and Italy, through the lens of the Save-a-Bird case.
If the Court decides that effective judicial protection and effet utile require national judges to grant associations standing to litigate diffuse interests, it will need to provide some guidance to national courts as to what principles should be substituted for the widely divergent, fluctuating and case-specific approaches to associational standing followed by the Member States. As it has done in the past, the Court will likely attempt to draw an analogy from Community law. As will be described later, however, the associational standing rules developed by the Court are very restrictive, and do not provide much help in fashioning a European rule of associational standing. In these circumstances, the Court would be left with the formidable task of developing, from scratch, principles of associational standing applicable to claims arising under European law brought in the national courts. This task may be further complicated by possible resistance from national judges against the Court's intrusion in national judicial matters.
The principal aim of the paper is to highlight the difficult questions that the Court would face in a case such as Save-a-Bird. In its conclusion, however, the paper advances a modest suggestion on how to resolve these questions through enrollment of national judges in the gradual development of a European "common law" of associational standing. Under this approach, the Court would let the Member State experiment with various forms of protection for diffuse interests. The Court would empower the national judge, guided by general principles articulated by the Court, to ensure that his or her government meet a minimum standard of effectiveness. In turn, through Article 177 collaboration with the national judges, the Court would retain ultimate control over the experiment. (This is why I have labeled this approach "controlled experimentation".) This suggestion, again, is meant to be an opening for further study rather than a definitive proposal for resolving the tensions discussed in the paper.
[1] Directive No. 79/409 on the conservation of wild birds, Article 4(4).
[«] I chose a hypothetical from the environmental field because environmental cases, which often cannot be brought by a human plaintiff, provide a sharp illustration of the issues raised by associational standing. While my research and this paper are tailored to fit the hypothetical facts of the case described above, the issues raised would apply -- with nuances and varying degrees of strength -- in other settings involving broad societal issues such as urban planning or consumer protection.
[†] The (British) case on which this hypothetical is based is Twyford Parish Council and Others v. Sec. of State for the Environment and Sec. of State for Transport. There, two parish councils sought judicial review of an administrative decision to permit the construction of a motorway without conducting an environmental impact assessment required by European law. The case is discussed infra at note 106 and accompanying text.
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