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² Laeken Declaration on the Future of Europe, Dec 2001. Available at <http://www.europa.eu.int/futurum/documents/offtext/doc 151201_en.htm>..>Google Scholar

³ See Curtin, D, Postnational Democracy: The European Union in search of a Political Philosophy (The Hague: Kluwer Law International, 1997), 90.Google Scholar

⁴ For an illustration of this point and a comprehensive overview of the post-1990 case law under Art 230 EC see A Arnull, ‘Private Actions and the Application for Annulment since Cordoniu’ (2001) 38 CMLRev 7.Google Scholar

⁵ Defined by Art 230 (4) EC.Google Scholar

⁶ Until the Treaty of Nice, the European Parliament was only awarded the status of a semiprivileged applicant under Art 230 (3) EC.Google Scholar

⁷ This occurred on 1 Feb 2003 after a drawn out ratification process because of the need for the second Irish referendum.Google Scholar

⁸ Art 230 (3).Google Scholar

⁹ Case 302/87 European Parliament v Council (Comitology) [1988] ECR 5615. The Court of Justice declined to follow the view of Advocate-General Darmon who argued that Parliament should be a privileged applicant for the purposes of protecting its right to participate in the comitology process. However, in Case C-70/88 European Parliament v Council (Chernobyl) [1990] ECR I-2041 less than 20 years later the Court of Justice accepted the institutional balance arguments of Advocate-General Darmon and extended the position of privileged applicant to the European Parliament specifically in those circumstances when it seeks to protect its own privileges. This is discussed more fully below.Google Scholar

¹⁰ Art 34 Treaty of Nice.Google Scholar

¹¹ Case T-177/01 Jégo-Quéré et Cie SA v Commission [2002] ECR II-2365.Google Scholar

¹² Case C- 50/00 Unión de Pequeños Agricultores v Council [2002] ECR I-6677.Google Scholar

¹³ This issue has been the subject of much academic debate for many years. See, eg, Usher, J, ‘Judicial review of Community acts and the private litigant’, in Campbell, A and Voyatzi, M (eds), Legal Reasoning and Judicial Interpretation of Community Law (1996), 121;Google ScholarArnull, A, ‘Private Applicants and the Action for Annulment under Article 173 of the EC Treaty’ (1995) 32 CMLRev 7;Google ScholarNeuwahl, N, ‘Article 173 Paragraph 4 EC: Past, Present and Possible Future’ (1996) 21 ELRev 17.Google Scholar

¹⁴ See the Opinion of Advocate General Jacobs in Union de Pequeños Agricultores v Council, at para 39.Google Scholar

¹⁵ A term used quite frequently by the English courts. See, eg, Greenpeace No 2 below.Google Scholar

¹⁶ The liberal approach of the Court to procedural propriety in cases involving Community institutions is in stark contrast to those cases involving Member States, eg, free movement of workers cases or more recently in the ‘Golden Shares’ cases, Cases C-367/98 Commission v Portugal; C-483/99 Commission v France, Case C503/99 Commission v Belgium judgments of 4 June 2002 nyr. Available at <http://www.curia.eu.int/en/index.htm>. In the Golden Shares cases the Court was adamant that Member States must comply with EC law even if this may cause economic hardship..+In+the+Golden+Shares+cases+the+Court+was+adamant+that+Member+States+must+comply+with+EC+law+even+if+this+may+cause+economic+hardship.>Google ScholarFor more on this issue see Szyszczak, E, ‘Golden Shares and Market Governance’ [2002] 29 Legal issues of Economic Integration, 255.CrossRefGoogle Scholar

¹⁷ See, eg, Belgian law: Conseil d'État, Ville de Liège et Heze, 20.9.91, No 37.676; German Law: Bundesverwaltungsgericht (Federal Administrative Court) 1.12.82 BverwGE 66, 307 (crabfishermen case); Italian law: TAR Lazio, 20.1.95, No 62 Foro Italiano 1995 II-460; French law: Conseil d'État, 24.6.91, Soc Côte d'Azur, Lebon, 1110.Google Scholar

¹⁸ See, eg, the judgment of the Court of First Instance in Case T-585/93 Greenpeace and Others v Commission [1995] ECR II-2205, para 51 and approved by the Court of Justice in Case C-321/95P Stichting Greenpeace Council (Greenpeace International and Others) v Commission [1998] ECR I 1651. Discussed below.Google Scholar

¹⁹ See, eg, C-ll/70, Internationale Handelsgesellschaft [1970] ECR 1125; Case 44/79 Hauer v Lad Rheinland-Pfalz [1979] ECR 3727; Brunner v The European Union Treaty [1994] 1 CMLR 57.Google Scholar

²⁰ Judgment of the Court in Unión de Pequeños Agricultores v Council, at para 49.Google Scholar

²¹ This was the view of the Court of First Instance in Greenpeace, at 2230–2.Google Scholar

²² Section 31 (3).

²³ See, eg, the judgment of Lord Wilberforce in IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] 2 AC 617, at 630; and Scheimann J in R v Secretary of State for Environment Ex parte Rose Theatre Trust Co [1990] 1 QB 504, at 520.

²⁴ R v Inspectorate of Pollution and another, Ex parte Greenpeace Ltd (No 2) [1994] 4 All ER 329.Google Scholar

²⁵ Ibid, at 350.

²⁶ Case C-321/95 Stichting Greenpeace Council (Greenpeace International) v Commission [1998] ECR I-1651, discussed below.Google Scholar

²⁷ R v Secretary of State for Foreign Affairs Ex parte World Development Movement Ltd [1995] 1 All ER 611.Google Scholar

²⁸ Section 1.Google Scholar

²⁹ LJ, Rose discussed this issue at 626-1.Google Scholar

³⁰ See Tomkins, A, ‘Judges Dam(n) the Government’, vol 7, King's College Law Journal (1996–1997)91.Google Scholar

³¹ At 619.Google Scholar

³² See Order 54 Rules of the Supreme Court.Google Scholar

³³ See n 21 above.Google Scholar

³⁴ At 620.Google Scholar

³⁵ 8th edn (Oxford: Oxford University Press, 2000).Google Scholar

³⁶ Ibid at 712.

³⁷ A similar argument was put forward by Orton J in Greenpeace (No 2).Google Scholar

³⁸ At 620.Google Scholar

³⁹ For further discussion of these issues see Harlow, C, ‘Public Law and Popular Justice’ (2002) 65MLR 1.Google Scholar

⁴⁰ See the judgment of the Court in Unión de Pequeños Agricultores v Council, at para 29. This hostility can be traced back to the early years of the EC. See, eg, Cases 16 & 17/62 Confédération Nationale des Fruits et Producteurs des Fruits et Légumes v Council [1962] ECR 471.Google Scholar

⁴¹ The call for an extension of the right to locus standi before the European Court of Justice is not a new phenomenon and has been advanced by several commentators as a part of the solution to the EU's democratic deficit. See, eg, Harlow, C, ‘Towards a Theory of Standing for the European Court of Justice’ (1992) 12 Yearbook of European Law 213 andCrossRefGoogle ScholarFeldman, D, ‘Public Interest Litigation and Constitutional Theory in Comparative Perspective’ (1992) 55 MLR 44.CrossRefGoogle Scholar

⁴² Advocate General Jacobs also expressed scepticism with the floodgates argument in his Opinion in Unión de Pequeños Agricultores v Council. See paras 75–81.Google Scholar

⁴³ Seen 39 above, at 8–11.Google Scholar

⁴⁴ See n 9 above.Google Scholar

⁴⁵ In fact the Court adopted the view given in the Opinion of Advocate-General Darmon in the Comitology case, who similarly argued for a specific extension to Art 230 EC to allow Parliament to protect its own prerogatives. See para 34 of the Advocate General's Opinion.Google Scholar

⁴⁶ Ibid, at para 25.

⁴⁷ See further Arnull, A, ‘Does the Court of Justice have inherent jurisdiction?’ (1990) 27 CMLRev 683.Google Scholar

⁴⁸ Para 3.Google Scholar

⁴⁹ Judgment of the Court, para 45.Google Scholar

⁵⁰ Ibid, para 27.

⁵¹ See Harlow, , at 39 above, at 16.Google Scholar

⁵² For an annotation of the Greenpeace judgment, see Berrod, F, (1999) 36 CMLRev 635.Google Scholar

⁵³ ECR I-1653, at 1681, para 74Google Scholar

⁵⁴ Directive 85/337/EEC of the Council, 27 June 1985, OJ 1985, L175/40.Google Scholar

⁵⁵ Though the relevant competent Spanish authorities conducted an impact assessment of the project, this did not occur until over one year after the project had commenced.Google Scholar

⁵⁶ Opinion of Advocate General Cosmas at para 76.Google Scholar

⁵⁷ Ibid, para 79.

⁵⁸ Judgment of the Court, at para 28.Google Scholar

⁵⁹ Preamble to Council Directive 85/337 EEC.Google Scholar

⁶⁰ See, eg, Case 26/76 Metro v Commission [1977] ECR 1875.Google Scholar

⁶¹ Judgment of the Court, at paras 28ñ9.Google Scholar

⁶² Case 169/84 Cofaz v Commission [1986] ECR 391.Google Scholar

⁶³ Case 358/89 Extramet Industries v Council [1991] ECR I-2501.Google Scholar

⁶⁴ eg, such procedural guarantees are contained within Council Regulation 4064/89. On the Control of Concentration Between Undertakings (The Merger Regulation) OJ 1990 L257/90.Google Scholar

⁶⁵ Judgment of the Court, at para 16.Google Scholar

⁶⁶ Ibid, para 18.

⁶⁷ Ibid.

⁶⁸ Case 302/86 Commission v Denmark [1988] ECR 4607, at para 9.Google Scholar

⁶⁹ Opinion of Advocate General Cosmas, at para 117.Google Scholar

⁷⁰ In the context of environmental matters before the Court there are several other cases of failed attempts by NGOs to review Community measures. See, eg, Case T-461/93 An Taisce v Commission [1994] ECR II-733; Case T-219/95R Danielsson v Commission [1995] ECR II-3051.Google Scholar

⁷¹ See Berrod above, at 50.Google Scholar

⁷² Council Directive 90/313 on freedom of access to environmental information, OJ 1990 LI 58/56.Google Scholar

⁷³ For a further discussion on the impact of the Aarhus Convention on EU environmental law generally see Scott, J, ‘Law and Environmental Governance in the EU’ (2002) 51 ICLQ 996.Google Scholar

⁷⁴ Proposal from the Commission of 29 June 2000 for a Directive on public access to environmental information, OJ 2000 C337/156.Google Scholar

⁷⁵ Under Art 9 (1) of the Aarhus Convention there is a requirement that the rules on standing must be consistent with the objective of giving the public wide access to justice to any person who considers they have had their right to information violated. However, the Convention does not address procedural questions which are still left entirely in the hands of the signatories.Google Scholar

⁷⁶ See Macrory, R and Turner, S, ‘Participatory rights, transboundary environmental governance and EC law’, 39 (2002) Common Market Law Review 489, at 519.CrossRefGoogle Scholar

⁷⁷ See, eg, Krämer, L, ‘Public Interest Litigation in Environmental matters before the European Courts’ (1996) 8 Journal of Environmental Law 1;CrossRefGoogle ScholarGerard, N, ‘Access to Justice in Environmental Matters—A Case of Double Standards’ (1996) 8 Journal of Environmental Law 139, and Scott above at n 73.Google Scholar

⁷⁸ At n 36 above.Google Scholar

⁷⁹ Case C-309/89 Cordoniu SA v Council [1994] ECR I-1853.Google Scholar

⁸⁰ Art 37 states that ‘A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.’ It is worth noting though that the Charter includes reference to a large number of social rights which could all be subjected to similar considerations as those advocated by the CFI and Advocate General. See n 87 below.Google Scholar

⁸¹ The effective protection of a citizen's fundamental rights has already been acknowledged by the Court, where the rights contained within Art 13 of the ECHR for effective judicial protection have readily been protected by the Court of Justice. See, eg, Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651.Google Scholar

⁸² See Bradley, AW, “Administrative Justice: A Developing Human Right’ (1995) 1 European Public Law 347.Google Scholar

⁸³ Judgment of the CFI, at para 47.Google Scholar

⁸⁴ Ibid.

⁸⁵ Ibid, para 49.

⁸⁶ See n 81 above.Google Scholar

⁸⁷ See, eg, Case C-173/99 R. v Secretary of State for Trade and Industry ex parte BECTU [2001] ECR I-4881.Google Scholar

⁸⁸ Convention Document 354/02, at 2. Available at <http://register.consilium.eu.int/pdf/en/02/cv00/00354en2.pdf>..>Google Scholar

⁸⁹ Case T-122/96 [1997] ECR II-1559.Google Scholar

⁹⁰ eg, those living in close proximity to the power stations or whose livelihood was affected by the projects. This question of proximity was seen as a crucial issue for the English Court in Greenpeace No 2 and ultimately a key factor in the Court granting locus standi to Greenpeace to bring the representative action. See n 22 above.Google Scholar