Access for Whom? The issue of Legal Standing

1. Access for Whom?The issue of Legal Standing Carol Hatton Solicitor, WWF-UK “Opening the doors to justice: the challenge of strenghthening public access”

2. Summary of Standing Requirements under Article 9 of the Convention • Article 9(1) – Standing to review access to information • “Any person who considers that his or her request for information under Article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article.” • Article 9(2) – standing to review public participation and other relevant provisions • “Members of the public concerned, having a sufficient interest or, alternatively, maintaining impairment of a right, where the administrative procedural law of a party requires this as a precondition.” • Article 9(3) – standing to review contraventions of national environmental law • Members of the public, where they meet the criteria, laid down in national law

3. What was Article 9(3) designed to achieve? • Aim – Handbook on Access to Justice • To give individuals and NGOs (as well as businesses) a way into the courts, i.e. to liberalise the classes and categories of persons who can file lawsuits against public authorities and others when they perceive there to be a violition of law. • Limitations • The Convention does not affect the rights of Parties to set criteria by which members of the public enjoy access to enforcement proceedings

4. Categories of Standing (1) • 1. Any person or “Actio popularis” • Individuals • Participation in consultation process automatically grants judicial standing, e.g. Netherlands • NGOs • standing extended to NGOs in civil lawsuits, e.g. Netherlands, Portugal, some German lander • Common law expansion of standing for NGOs, e.g. UK (Greenpeace and ex parte Richard Dixon) • 2. Legislated standing for recognised NGOs • Finland, Sweden, Luxembourg, Italy, some German lander, e.g. Bremen

5. Categories of Standing (2) • 3. Sufficient interest standing • Belgium (natural or legal person must show a personal and direct interest in order to enjoy access to the Courts) • Georgia (citizens can only sue against an administrative act in cases which directly affect their legal rights) • 4. Restrictive subjective requirements for standing • Norway, ECJ

6. European Courts of Justice

7. Article 230(4) EC Treaty “Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.”

8. Standing – Case-law of the ECJ (1) • A conservative start • Plaumann v Commission (Case 25/62) • Preserving the status quo • Greenpeace v Commission (Case T-585/93 • Greenpeace v Council (Case C-321/95 P) • Bactria v Commission (Case T-339/00) • EEB v Commission (Case T-94/04) • Area Cova and others v Council (Case T-12/96) • Momentarily flirting with danger • Jégo-Quéré v Commission (Case T-177/01) • Commission v Jégo-Quéré (Case C-263/02 P)

9. More of the same? WWF v Council (Case T-91/07) • Basis of case – legality of cod quotas for 2007 in EC Regulation EC/41/2007 • Council has challenged WWF’s direct and individual concern under Article 230(4) EC Treaty • WWF arguing involvement in North Sea Regional Advisory Council distinguishes it from other NGOs and provides certain procedural guarantees and that our legal interests are affected by the decision • Aarhus Convention – excludes Community institutions or bodies when acting in a judicial or legislative capacity (Article 2(1)(c))

11. Do present standing requirements represent a barrier to access to justice for individuals and/or NGOs? • De Sadeleer (2002) • “The prerequisites for standing can strongly limit access to justice on the part of NGOs…all countries limit access to the courts by NGOs through various standing requirements. These requirements are formally similar in some ways but often interpreted differently by Member States’ courts. However, the diverse requirements for granting standing to an NGO in public interest actions effectively represents a hurdle to sue in many countries …”.

12. Recommendations (1) • Proposal for an EC Directive on Access to Justice in Environmental Matters • Article 4 - Legal standing of members of the public: • “where they have sufficient interest or …impairment of a right, where the administrative law requires this as a precondition.” • Article 5 – Legal standing of qualified entities: • “…recognised in accordance with Article 9 have access … without having a sufficient interest or maintaining the impairment of a right, if the matter of review in respect of which an action is brought is covered specifically by the statutory activities of the qualified entity and the review falls within the specific geographical area of the activities of that entity.” • Article 9 • Independent • Non-profit-making legal person • Environmental protection as an objective • Legally constituted and active for a period fixed by the MS, but not exceeding three years

13. Recommendations (2) • The role of the Judiciary • Similar criteria can effectively be interpreted by the courts in such a way as to allow for either broad or narrow access to the courts • Duty to provide “wide access to justice” (Aarhus Convention, Article 9(2), draft EC Directive, Article 4(2)) • Will not “open the floodgates” (de Sadeleer) • Regular monitoring and review

14. And finally…. • De Sadeleer “One of the most notable features to come out of this study is the important contribution that public interest actions on environmental matters make to the enforcement of environmental law in the Member States.”