In Case C-321/95 P,
Stichting Greenpeace Council (Greenpeace International) and Others, represented by Philippe Sands and Mark Hoskins, Barristers, instructed by Leigh, Day & Co., Solicitors, with an address for service in Luxembourg at the Chambers of Jean-Paul Noesen, 18 Rue des Glacis,
APPEAL against the order of the Court of First Instance of the European Communities (First Chamber) of 9 August 1995 in Case T-585/93 Greenpeace and Others v Commission  ECR II-2205, seeking to have that order set aside, the other party to the proceedings being: Commission of the European Communities, represented by Peter Oliver, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gomez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
Kingdom of Spain, represented by Alberto José Navarro Gonzdlez, Director-General for Legal and Institutional Coordination in Community Matters, and Gloria Calvo Diaz, Abogado del Estado, of the State Legal Service for matters before the Court of Justice of the European Communities, acting as Agents, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais,
composed of: G.C. Rodriguez Iglesias, President, C. Gulmann, H. Ragnemalm, M. Wathelet (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida (Rapporteur), PJ.G. Kapteyn, J.L. Murray, D.A.O. Edward, J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevén, Judges,
Advocate General: G. Cosmas,
Registrar: R. Grass,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 17 June 1997, at which Stichting Greenpeace Council (Greenpeace International) and Others were represented by Philippe Sands and Mark Hoskins, the Commission by Peter Oliver and the Kingdom of Spain by Luis Pérez de Ayala Becerril, Abogado del Estado, acting as Agent,
after hearing the Opinion of the Advocate General at the sitting on 23 September 1997,
gives the following
By application lodged at the Court Registry on 16 October 1995, Stichting Greenpeace Council (Greenpeace International) and Others brought an appeal under Article 49 of the EC Statute of the Court of Justice against the order of the Court of First Instance of 9 August 1995 in Case T-585/93 Greenpeace and Others v Commission  ECR II-2205 (“the contested order’) in so far as it declared inadmissible their action for annulment of the Commission's decision allegedly taken between 7 March 1991 and 29 October 1993 to disburse to the Kingdom of Spain ECU 12 000 000, or other amounts of that order, pursuant to Decision C (91) 440 concerning financial assistance provided by the European Regional Development Fund for the construction of two power stations in the Canary Islands (Gran Canaria and Tenerife).
According to the contested order, the factual background to the dispute is as follows:
“1 On 7 March 1991, on the basis of Council Regulation (EEC) No 1787/84 of 19 June 1984 on the European Regional Development Fund (OJ 1984 L 169, p. 1, "the basic regulation"), as amended by Council Regulation (EEC) No 3641/85 of 20 December 1985 (OJ 1985 L 350, p. 40), the Commission adopted Decision C (91) 440 granting the Kingdom of Spain financial assistance from the European Regional Development Fund (“the ERDF") up to a maximum of ECU 108 578 419, for infrastructure investment. The project concerned was for the building of two power stations in the Canary Islands, on Gran Canaria and on Tenerife, by Uni6n Eléctrica de Canarias SA (“Unelco").
2 The Community finance for the construction of the two power stations was to be spread over four years, from 1991 to 1994, and to be paid in yearly tranches (Articles 1 and 3 of, and Annexes II and Ill to, the decision). The financial commitment for the first year (1991), for ECU 28 953 000 (Article 1 of the decision), was payable on the defendant's adoption of the decision (Annex Ill, paragraph A4, of the decision). Subsequent disbursements, based on the financial plan for the operation and on the progress of its implementation, were to cover expenditure relating to the operations in question, legally approved in the Member State concerned (Articles 1 and 3 of the decision). Under Article 5 of the decision, the Commission could reduce or suspend the aid granted to the operation in issue if an examination were to reveal an irregularity and in particular a significant change affecting the way in which it was carried out for which the Commission's approval had not been requested (see also paragraphs A20, A21 and C2 of Annex Ill to the decision).
3 By letter dated 23 December 1991, Aurora Gonzdlez Gonzdlez and Pedro Melidn Castro, the fifth and sixth applicants, informed the Commission that the works carried out on Gran Canaria were unlawful because Unelco had failed to undertake an environmental impact assessment study in accordance with Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) and asked it to intervene to stop the works. Their letter was registered as No 4084/92.
4 By letter dated 23 November 1992, Domingo Viera Gonzalez, the second applicant, sought the Commission's assistance on the ground that Unelco had already started work on Gran Canaria and Tenerife without the Comisién de Urbanismo y Medio Ambiente de Canarias (Canary Islands Commission for Planning and the Environment, "Cumac") having issued its declaration of environmental impact in accordance with the applicable national legislation. That letter was registered as No 5151/92.
5 On 3 December 1992, Cumac issued two declarations of environmental impact relating to the construction of the power stations on Gran Canaria and Tenerife, published in the Boletin Oficial de Canarias on 26 February and 3 March 1993 respectively.
6 On 26 March 1993, Tagoror Ecologista Alternativo ("TEA"), the 18th applicant, a local environmental protection association based on Tenerife, lodged an administrative appeal against Cumac's declaration of environmental impact relating to the project for the construction of a power station on Tenerife. On 2 April 1993, the Comisién Canaria contra la Contaminacién (Canary Islands Commission against Pollution, hereinafter "CIC"), the 19th applicant, a local environmental protection association based on Gran Canaria, also brought administrative proceedings against Cumac's declaration of environmental impact relating to the two construction projects on Gran Canaria and Tenerife.
7 On 18 December 1993, Greenpeace Spain, an environmental protection association responsible at the national level for the achievement at local level of the objectives of Stichting Greenpeace Council ("Greenpeace"), the first applicant, a nature conservancy foundation having its head office in the Netherlands, brought legal proceedings challenging the validity of the administrative authorisations issued to Unelco by the Canary Island Regional Ministry of Industry, Commerce and Consumption.
8 By letter of 17 March 1993 addressed to the Director-General of the Commission's Directorate-General for Regional Policies (“DG XVI"), Greenpeace asked the Commission to confirm whether Community structural funds had been paid to the Regional Government of the Canary Islands for the construction of two power stations and to inform it of the timetable for the release of those funds.
9 By letter of 13 April 1993, the Director-General of DG XVI recommended that Greenpeace "read the Decision C (91) 440" which, he said, contained “details of the specific conditions to be respected by Unelco in order to obtain Community support and the financing plan".
10 By letter of 17 May 1993, Greenpeace asked the Commission for full disclosure of all information relating to measures it had taken with regard to the construction of the two power stations in the Canary Islands, in accordance with Article 7 of Council Regulation (EEC) No 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 185, p. 9), which provides: "Measures financed by the Funds or receiving assistance from the EIB or from another existing financial instrument shall be in keeping with the provisions of the Treaties, with the instruments adopted pursuant thereto and with Community policies, including those concerning ... environmental protection.”
By letter dated 23 June 1993, the Director-General of DG XVI wrote as follows to Greenpeace: "I regret to say that I am unable to supply this information since it concerns the internal decision making procedures of the Commission ... but I can assure you that the Commission's decision was taken only after full consultation between the various services concerned’.
On 29 October 1993 a meeting took place at the Commission's premises in Brussels between Greenpeace and DG XVI, concerning the financing by the ERDF of the construction of the power stations on Gran Canaria and Tenerife.’
It was against that background that, by application lodged at the Registry of the Court of First Instance on 21 December 1993, the applicants brought an action seeking annulment of the decision allegedly taken by the Commission to disburse to the Spanish Government, in addition to the first tranche of ECU 28 953 000, a further ECU 12 000 000 in reimbursement of expenses incurred in the construction of two power stations in the Canary Islands (Gran Canaria and Tenerife). That decision was allegedly taken between 7 March 1991, when Decision C (91) 440 was adopted, and 29 October 1993, when the Commission, at the abovementioned meeting with Greenpeace, whilst refusing to provide Greenpeace with detailed information regarding the financing of the construction of the two power stations in the Canary Islands, confirmed that a total of ECU 40 000 000 had already been disbursed to the Spanish Government pursuant to Decision C (91) 440.
By separate document lodged at the Registry of the Court of First Instance on 22 February 1994, the Commission raised an objection of inadmissibility in support of which it raised two pleas, one concerning the nature of the contested decision and the other the applicants’ lack of locus standi.
By the contested order, the Court of First Instance upheld the objection and declared the action inadmissible.
As to the pleas raised by the Commission in support of its objection of inadmissibility, the Court of First Instance stated, at paragraph 46, that it was first necessary to examine whether the applicants had locus standi to bring an action, before considering whether the act which they were challenging constituted a decision within the meaning of Article 173 of the EC Treaty.
As regards, first, the locus standi of the applicants who are private individuals, the Court of First Instance, in paragraph 48, referred first to the settled case-law of the Court of Justice according to which persons other than the addressees may claim that a decision is of direct concern to them only if that decision affects them by reason of certain attributes which are peculiar to them, or by reason of factual circumstances which differentiate them from all other persons and thereby distinguish them individually in the same way as the person addressed (Case 25/62 Plaumann v Commission  ECR 95, Case 231/82 Spijker v Commission  ECR 2559, Case 97/85 Deutsche Lebensmittelwerke and Others v Commission  ECR 2265, Case C-198/91 Cook v Commission  ECR I-2487, Case C-225/91 Matra v Commission  ECR I-3203, Case T-2/93 Air France v Commission  ECR II-323 and Case T-465/93 Consorzio Gruppo di Azione Locale ‘Murgia Messapica' v Commission  ECR 1I-361).
The Court of First Instance then decided to examine, at paragraph 49, the applicants’ argument that the Court should not be constrained by the limits imposed by that case-law and should concentrate on the sole fact that third-party applicants had suffered or would potentially suffer loss or detriment from the harmful environmental effects arising out of unlawful conduct on the part of the Community institutions.
In that regard, the Court of First Instance held, at paragraph 50, that whilst the settled case-law of the Court of Justice concerned essentially cases involving economic interests, the essential criterion which it applied (namely, a combination of circumstances sufficient for the third-party applicant to be able to claim to be affected by the contested decision in a manner which differentiated him from all other persons) remained applicable whatever the nature, economic or otherwise, of the applicants' interests which were affected.
The Court of First Instance accordingly held, at paragraph 51, that the criterion proposed by the applicants for appraising their locus standi, namely the existence of harm suffered or to be suffered, was not in itself sufficient to confer locus standi on an applicant; this was because such harm might affect, in a general abstract way, a large number of persons who could not be determined in advance in such a way as to distinguish them individually just like the addressee of a decision, as required under the case-law cited above. The Court of First Instance added that, in view of the conditions laid down in the fourth paragraph of Article 173 of the Treaty, that conclusion could not be affected by the practice of national courts whereby locus standi might depend merely on applicants having a ‘sufficient’ interest.
The Court of First Instance therefore concluded, at paragraph 52, that the applicants' argument that the question of their locus standi in this case should be determined in the light of criteria other than those already laid down in the case-law could not be accepted, and went on to hold, at paragraph 53, that their locus standi had to be assessed in the light of the criteria laid down in that case-law.
In this regard, the Court of First Instance stated first of all, at paragraphs 54 and 55, that the objective status of ‘local resident’, “fisherman' or ‘farmer’ or of persons concerned by the impact which the building of two power stations might have on local tourism, on the health of Canary Island residents and on the environment, relied on by the applicants, did not differ from that of all the people living or pursuing an activity in the areas concerned and that the applicants thus could not be affected by the contested decision otherwise than in the same manner as any other local resident, fisherman, farmer or tourist who was, or might be in the future, in the same situation.
Finally, at paragraph 56, the Court of First Instance held that the fact that certain of the applicants had submitted a complaint to the Commission could not confer locus standi under Article 173 of the Treaty, since no specific procedures were provided for whereby individuals might be associated with the adoption, implementation and monitoring of decisions taken in the field of financial assistance granted by the ERDF. The Court of Justice had held that, although a person who asked an institution not to take a decision in respect of him, but to open an inquiry with regard to third parties, might be considered to have an indirect interest, such a person was nevertheless not in the precise legal position of the actual or potential addressee of a measure which might be annulled under Article 173 of the Treaty (Case 246/81 Lord Bethell v Commission  ECR 2277).
Second, as regards the locus standi of the applicant associations, the Court of First Instance recalled, at paragraph 59, that it had consistently been held that an association formed for the protection of the collective interests of a category of persons could not be considered to be directly and individually concerned, for the purposes of the fourth paragraph of Article 173 of the Treaty, by a measure affecting the general interests of that category, and was therefore not entitled to bring an action for annulment where its members could not do so individually (Joined Cases 19/62 to 22/62 Fédération Nationale de la Boucherie en Gros et du Commerce en Gros des Viandes and Others v Council  ECR 491; Case 72/74 Union Syndicale - Service Public Européen and Others v Council  ECR 401; Case 60/79 Féderation Nationale des Producteurs de Vins de Table et Vins de Pays v Commission  ECR 2429; Case 282/85 DEFI v Commission  ECR 2469; Case 117/86 UFADE v Council and Commission  ECR 3255, paragraph 12; and Joined Cases T-447/93, T-448/93 and T-449/93 AITEC and Others v Commission  ECR 1I-1971, paragraphs 58 and 59). Since the Court of First Instance had held that the applicants who were private individuals could not be considered to be individually concerned by the contested decision, it therefore concluded, at paragraph 60, that the members of the applicant associations, as local residents of Gran Canaria and Tenerife, likewise could not be considered to be individually concerned.
The Court of First Instance went on to observe, at paragraph 59, that special circumstances, such as the role played by an association in a procedure which led to the adoption of an act within the meaning of Article 173 of the Treaty, might justify treating as admissible an action brought by an association whose members were not directly and individually concerned by the contested measure (Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others v Commission  ECR 219 and Case C-313/90 CIRFS and Others v Commission  ECR I-1125).
However, at paragraph 62 of its judgment, the Court of First Instance came to the conclusion that the exchange of correspondence and the discussions which Greenpeace had with the Commission concerning the financing of the project for the construction of two power stations in the Canary Islands did not constitute special circumstances of that kind since the Commission did not, prior to the adoption of the contested decision, initiate any procedure in which Greenpeace participated. Nor was Greenpeace in any way the interlocutor of the Commission with regard to the adoption of the basic Decision C (91) 440 and/or of the contested decision.
In their appeal the appellants submit that, in determining whether they were individually concerned by the contested decision within the meaning of Article 173 of the Treaty, the Court of First Instance erred in its interpretation and application of that provision and that, by applying the case-law developed by the Court of Justice in relation to economic issues and economic rights, according to which an individual must belong to a ‘closed class' in order to be individually concerned by a Community act, the Court of First Instance failed to take account of the nature and specific character of the environmental interests underpinning their action.
In particular, the appellants argue, first, that the approach adopted by the Court of First Instance creates a legal vacuum in ensuring compliance with Community environmental legislation, since in this area the interests are, by their very nature, common and shared, and the rights relating to those interests are liable to be held by a potentially large number of individuals so that there could never be a closed class of applicants satisfying the criteria adopted by the Court of First Instance.
Nor can that legal vacuum be filled by the possibility of bringing proceedings before the national courts. According to the appellants, such proceedings have in fact been brought in the present case, but they concern the Spanish authorities’ failure to comply with their obligations under Council Directive 85/337/EEC, and not the legality of the Commission measure, that is to say the lawfulness under Community law of the Commission's disbursement of structural funds on the ground that that disbursement is in violation of an obligation for protecting the environment.
Second, the appellants submit that the Court of First Instance was wrong to take the view, at paragraph 51 of the contested order, that reference to national laws on locus standi was irrelevant for the purposes of Article 173. The solution adopted by the Court of First Instance appears to conflict with that required by national judicial decisions and legislation as well as by developments in international law. According to the appellants, it is clear from the ‘Final Report on Access to Justice (1992)', prepared by the OKO-Institut for the Commission, which describes the position concerning locus standi on environmental issues, that, if they had been required to bring proceedings before a court of a Member State, actions brought by some or all of the applicants would have been declared admissible. The appellants add that the abovementioned developments have been influenced by American law, the Supreme Court holding in 1972 in Sierra Club v Morton 405 U.S. 727, 31 Led 2d 636 (1972), at p. 643 that: ‘Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process."
Third, the appellants submit that the approach adopted by the Court of First Instance in the contested order is at odds with both the case-law of the Court of Justice and declarations of the Community institutions and governments of the Member States on environmental matters. As regards case-law, they rely on the holding that environmental protection is ‘one of the Community's essential objectives’ (judgments in Case 240/83 Procureur de la République v Association de Défense des Brileurs d'Huiles Usagées  ECR 531, paragraph 13, and Case 302/86 Commission v Denmark  ECR 4607, paragraph 8) and submit that Community environmental legislation can create rights and obligations for individuals (judgments in Case C-131/88 Commission v Germany  ECR 1-825, paragraph 7, and Case C-361/88 Commission v Germany  ECR I-2567, paragraphs 15 and 16). Furthermore, in the present case, the appellants submit that their arguments relating to individual concern are based essentially on their individual rights conferred by Directive 85/337, Articles 6(2) and 8 of which provide for participation in the environmental impact assessment procedure in relation to certain projects (judgment in Case C-431/92 Commission v Germany  ECR I-2189, paragraphs 37 to 40), and that they are singled out by virtue of those rights which are recognised and protected in Commission Decision C (91) 440.
The appellants go on to refer to the Fifth Environmental Action Programme (OJ 1993 C 138, p. 1), to principle 10 of the Rio Declaration, ratified by the Community at the United Nations Conference of 1992 on Environment and Development, to Agenda 21, adopted at the same conference, to the Council of Europe Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment, and to the system of administrative review introduced by the World Bank to allow review of its acts where they have negative effects on the environment (World Bank, Resolution No 93-10, Resolution No IDA93-6, 22 September 1993, paragraph 12).
Fourth, the appellants propose a different interpretation of the fourth paragraph of Article 173 of the Treaty. In order to determine whether a particular applicant is individually concerned by a Community act involving violations of Community environmental obligations, that applicant should be required to demonstrate that:
(a) he has personally suffered (or is likely personally to suffer) some actual or threatened detriment as a result of the allegedly illegal conduct of the Community institution concerned, such as a violation of his environmental rights or interference with his environmental interests;
(b) the detriment can be traced to the act challenged; and
(c) the detriment is capable of being redressed by a favourable judgment.
The appellants contend that they satisfy those three conditions. As regards the first condition, they state that they submitted statements describing the detriment which they have suffered as a result of the Commission's acts. As regards the second condition, they point out that, by disbursing to the Kingdom of Spain the funds granted under Decision C (91) 440 for the construction of projects carried out in breach of Community environmental law, the Commission directly contributed to the detriment caused to their interests since the Spanish authorities had no discretion as to the use to which those funds were to be put. As regards the third condition, the appellants consider that, if the Court of First Instance had annulled the contested decision, the Commission would not have continued to finance work on construction of the power stations which would then have probably been suspended until completion of the environmental impact procedure.
The appellants submit further that environmental associations should be recognised as having locus standi where their objectives concern chiefly environmental protection and one or more of their members are individually concerned by the contested Community decision, but also where, independently, their primary objective is environmental protection and they can demonstrate a specific interest in the question at issue.
Referring to the judgment in Plaumann v Commission, cited above, the appellants conclude that Article 173 must not be interpreted restrictively; its wording does not expressly require an approach based on the idea of a ‘closed class’, as affirmed in the case-law of the Court of Justice and the Court of First Instance (judgments in Case 11/82 Piraiki-Patraiki and Others v Commission  ECR 207; Case C-358/89 Extramet Industrie v Council  ECR 1-2501; Case C- 309/89 Codorniu v Council  ECR I-1853; and Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others v Commission  ECR II-2305). Rather, it must be interpreted in such a way as to safeguard fundamental environmental interests and protect individual environmental rights effectively (judgments in Procureur de la République v Association de Défense des Briileurs d'Huiles Usagées, cited above, paragraph 13; Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary  ECR 1651, paragraphs 13 to 21; and Case 222/86 UNECTEF v Heylens and Others  ECR 4097, paragraph 14).
Findings of the Court
The interpretation of the fourth paragraph of Article 173 of the Treaty that the Court of First Instance applied in concluding that the appellants did not have locus standi is consonant with the settled case-law of the Court of Justice.
As far as natural persons are concerned, it follows from the case-law, cited at both paragraph 48 of the contested order and at paragraph 7 of this judgment, that where, as in the present case, the specific situation of the applicant was not taken into consideration in the adoption of the act, which concerns him in a general and abstract fashion and, in fact, like any other person in the same situation, the applicant is not individually concerned by the act.
The same applies to associations which claim to have locus standi on the basis of the fact that the persons whom they represent are individually concerned by the contested decision. For the reasons given in the preceding paragraph, that is not the case.
In appraising the appellants’ arguments purporting to demonstrate that the case-law of the Court of Justice, as applied by the Court of First Instance, takes no account of the nature and specific characteristics of the environmental interests underpinning their action, it should be emphasised that it is the decision to build the two power stations in question which is liable to affect the environmental rights arising under Directive 85/337 that the appellants seek to invoke.
In those circumstances, the contested decision, which concerns the Community financing of those power stations, can affect those rights only indirectly.
As regards the appellants' argument that application of the Court's case-law would mean that, in the present case, the rights which they derive from Directive 85/337 would have no effective judicial protection at all, it must be noted that, as is clear from the file, Greenpeace brought proceedings before the national courts challenging the administrative authorisations issued to Unelco concerning the construction of those power stations. TEA and CIC also lodged appeals against CUMAC's declaration of environmental impact relating to the two construction projects (see paragraphs 6 and 7 of the contested order, reproduced at paragraph 2 of this judgment).
Although the subject-matter of those proceedings and of the action brought before the Court of First Instance is different, both actions are based on the same rights afforded to individuals by Directive 85/337, so that in the circumstances of the present case those rights are fully protected by the national courts which may, if need be, refer a question to this Court for a preliminary ruling under Article 177 of the Treaty.
The Court of First Instance did not therefore err in law in determining the question of the appellants’ locus standi in the light of the criteria developed by the Court of Justice in the case-law set out at paragraph 7 of this judgment.
In those circumstances the appeal must be dismissed.
Decision on costs
Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleadings. Since the appellants have been unsuccessful in their appeal, they must be ordered to pay the costs. Under Article 69(4) of the Rules of Procedure, the Kingdom of Spain, which intervened in these proceedings, is to bear its own costs.
On those grounds,
Dismisses the appeal;
Orders the appellants to pay the costs;
Orders the Kingdom of Spain to bear its own costs.