Opinion of the Advocate General — ECLI:EU:C:1997:421
Date: 1997-09-23
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Economic, social and territorial cohesion;Energy;Environment;Approximation of laws;European Regional Development Fund (ERDF)
Procedure: Action for annulment;Appeal - unfounded
Origin: Spain;Netherlands

summary form, the reasoning on 
which the appellants' claim for judicial pro­
tection is based is as follows: 
— The Commission was under a specific 
obligation not to disburse payments and 
to withhold financing of the relevant 
works if it found that they were being 
carried out in contravention of Commu­
nity law. 
16 — Seventh recital in the preamble to Decision C(91)440. 
17 — Article 6(2) of Directive 85/337/EEC. 
18 — The appellants cite the judgment in Case C-431/92 Com­
mission v Germany [1995] ECR I-2189, paragraphs 37 to 
40. 
I -1660 
GREENPEACE COUNCIL AND OTHERS v COMMISSION 
— In fact, the works were commenced with­
out a prior environmental impact assess­
ment in contravention of the provisions 
of Directive 85/33 7/EEC which, in its 
turn, confers rights on a certain category 
of Community nationals. 
— Consequently, by not 'withholding the 
additional financing, even though it had 
been informed in due time of the above-
mentioned infringement, the Commis­
sion violated its obligations under Com­
munity law which consist, at least in part, 
in the defence of the appellants' right to 
protection of the environment arising in 
general out of Community law and, in 
particular, out of the abovementioned 
provisions of Directive 85/33 7/EEC. 
23. (b) The appellants contend that the 
Court of First Instance erred in its interpre­
tation and application of Article 173 of the 
EC Treaty because it did not apply the 
proper criteria for assessing whether the 
applicants before it were individually 
affected, within the meaning of Article 173 
of the EC Treaty, by the contested decision 
adopted by the Commission. In particular, 
the Court of First Instance followed the 
case-law of the Court of Justice developed 
solely in the context of economic issues to 
the effect that an individual must belong to a 
'closed class' in order to be individually con­
cerned by a Community act. For that reason, 
the appellants assert, the Court of First 
Instance did not take account of the specific 
nature and character of the 'environmental 
legal interest', since indeed the Court of 
Justice has not hitherto adjudicated on the 
question of locus standi of individuals, where 
they allege that the legal interest affected is 
that of environmental protection. 
24. The appellants consider that the inter­
pretative approach followed by the Court of 
First Instance creates a vacuum in the judi­
cial protection afforded by the Community 
legal order, whenever it is a question of 
reviewing compliance by Community insti­
tutions with Community environmental leg­
islation. Since the interest in environmental 
protection is common to and is shared by all 
Community citizens, there cannot, in the 
event of environmental harm, be a closed 
class of persons affected by harm to the envi­
ronment, at least not in the sense attributed 
to the notion of a closed class by the Court 
of First Instance. It may be clearly inferred 
from the order appealed against, the appel­
lants assert, that the application, in cases 
concerning the environment, of the tradi­
tional case-law to the effect that an act must 
be of individual concern to the applicant will 
have the practical effect of never allowing 
individuals to challenge Community mea­
sures which affect their environmental inter­
ests. The legal vacuum becomes more appar­
ent from the finding that, in cases such as the 
present dispute, privileged applicants under 
Article 173 (that is to say Member States, 
Council and Commission) are not interested 
in availing themselves of the possibility 
afforded them by the second paragraph of 
Article 173. 
25. Nor, moreover, can it be maintained, in 
the appellants' view, that that vacuum may 
I - 1661 
OPINION OF MR COSMAS — CASE C-321/95 P 
be filled by the possibility afforded to indi­
viduals not having locus standi of bringing 
proceedings before a national court in order 
to vindicate their rights, having recourse to 
the legal remedies available under national 
law. In the present case, the proceedings 
brought before the Spanish courts can only 
concern the legality of national acts and non­
compliance by the Spanish authorities with 
their obligations under Council Directive 
85/337/EEC. Conversely, the legality of the 
Commission decision challenged before the 
Court of First Instance cannot be called in 
question in the context of national proceed­
ings, since the Spanish courts do not have 
jurisdiction to review the legality under 
Community law of payment by the Com­
mission of certain funds for the financing of 
works. 19 
26. The appellants go on to stress that the 
solution adopted by the Court of First 
Instance in the order appealed against 
directly contrasts with that of courts of the 
Member States, and with recent develop­
ments in international law. In that connec­
tion the appellants cite a series of compara­
tive studies from which it may be inferred 
that the legal systems of the Member States 
have all developed in the direction of a wid­
ening of the procedural right of citizens to 
seek judicial protection in cases in which 
their legal interests in environmental protec­
tion are infringed. Indeed, the appellants 
observe that, if they had been required to 
bring proceedings before a court of a Mem­
ber State, actions brought by some or all of 
them would have been adjudged admissible. 
27. Moreover, it is contended that the 
restrictive interpretation adopted by the 
Court of First Instance in the order appealed 
against runs counter to developments in 
Community and international law in relation 
to environmental protection. Reliance is 
placed on case-law of the Court of Justice in 
which environmental protection has been 
proclaimed as 'one of the Community's 
essential objectives' 20 and in which EC envi­
ronmental legislation has been held to be 
capable of creating rights and obligations for 
individuals. 21 Reference is also made to the 
Fifth Environmental Action Programme 
approved by the Council and by the repre­
sentatives of the Member States, 22 to Prin­
ciple 10 of the Rio Declaration, to Agenda 
21, to the Council of Europe Convention on 
Civil Liability for Damage Resulting from 
Activities Dangerous to the Environment, to 
recent judgments of the Court of Human 
Rights in Strasbourg, and to the system of 
administrative review introduced by the 
World Bank as from 1993 in the case of 
activities which pose a threat to the environ­
ment. 
19 — The appellants cite the judgment of the Court of First 
Instance in Case T-3/93 Air France v Commission [1994] 
ECR II-121, paragraph 69, in which it is expressly stated 
that the existence of a remedy before the national courts 
cannot preclude the possibility of contesting the legality of 
a decision adopted by a Community institution directly 
before the Community judicature under Article 173 of the 
Treaty. 
20 — Judgments in Case 240/83 Procureur de la République v 
Association de Défense des Brûleurs d'Huiles Usagées [1985] 
ECR 531, paragraph 13; and in Case 302/86 Commission v 
Denmark [1988] ECR 4607, paragraph 8. 
21 — Judgments in Case C-131/88 Commission v Germany 
[1991] ECR I-825, paragraph 7: and in Case C-361/88 
Commission v Germany [1991] ECR I-2567, paragraphs 15 
and 16. 
22 — Resolution of the Council and the Representatives of the 
Governments of the Member States, meeting within the 
Council of 1 February 1993, on a Community programme 
of policy and action in relation to the environment and sus­
tainable development (OJ 1993 C 138, p. 1). 
I - 1662 
GREENPEACE COUNCIL AND OTHERS v COMMISSION 
28. In light of the foregoing, the appellants 
propose a different interpretation of the 
fourth paragraph of Article 173 of the Treaty. 
In order to ascertain whether an individual is 
affected individually by a Community act 
when that person pleads damage to the envi­
ronment caused by an infringement by the 
Community institutions of their obligations 
under Community law, the Community 
judicature should, according to the appel­
lants' reasoning, require the applicant to 
demonstrate that: 
29. (a) he/she has personally suffered (or is 
likely to suffer) some actual or threatened 
detriment as a result of the allegedly illegal 
conduct of the Community institution con­
cerned, such as a violation of his or her envi­
ronmental rights or interference with his or 
her 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. 
30. It is contended on behalf of the appel­
lants that they satisfy these three criteria. As 
to the first criterion, they reiterate the evi­
dence relied on before the Court of First 
Instance in which they described the nature 
and extent of the detriment suffered as a 
result of the Commission's acts. As to the 
second criterion, they point out that the 
abovementioned harm can be traced to the 
Commission's acts because the national 
(Spanish) authorities have no discretion as to 
the use to which the funds advanced pursu­
ant to Decision C(91)440 are to be put. In 
other words, in disbursing the necessary 
funds to Spain to continue the construction 
of projects being carried out in a manner 
contrary to provisions of Community envi­
ronmental law and, in particular, to Directive 
85/337/EEC, the Commission directly con­
tributed to the detriment suffered by the 
appellants as a result of the harm to the envi­
ronment. As to the third criterion, it is sub­
mitted that the abovementioned detriment 
would be capable of being redressed if a 
court judgment were to annul the Commis­
sion decision to continue financing the 
works. For, if the necessary funding for the 
continuation of the projects were not avail­
able, it is to be expected, the appellants 
maintain, that work on the power stations 
'would be suspended. 
31. Specifically in relation to the appellant 
environmental associations, it is stated in the 
notice of appeal that those associations 
should be recognized as having standing 
because one or more of their members 
belong to the category of persons who, 
under the fourth paragraph of Article 173, 
are entitled to bring an action before the 
Court of First Instance, and also because 
they can rely in their own right, in order to 
have their standing recognized, on the fact 
that their primordial objective is the protec­
tion of the environment and that specifically 
included in their objects, moreover, is pro­
tection of the environment in the geographi­
cal area in which the works in question are 
I - 1663 
O P I N I O N O F MR COSMAS — CASE C-321/95 P 
being carried out. Specifically concerning the 
role of the representative organizations or 
associations and the need to recognize their 
procedural right of action before the Com­
munity judicature, whenever a Community 
act affects the interests and objectives for 
whose protection and furtherance they were 
formed, the appellant organizations and 
associations refer to the judgment of the 
Court of First Instance in Associazione Ital­
iana Tecnico Economica del Cemento and 
Others v Commission, 23 and to the Opinion 
of Advocate General Lenz in CID A v Coun­
cil. 24 
32. In conclusion, the appellants consider 
that the solution proposed by them is the 
most apposite, and refer to the Court's Platt-
mann judgment 25 from which they infer that 
the procedural criteria of Article 173 are not 
to be narrowly construed. 
B — The Commission's arguments 
33. The Commission observes at the outset 
that, even if the interpretative approach to 
Article 173 contended for on behalf of the 
appellants were accepted, the latter do not 
satisfy the criteria on which they rely. But, in 
any event, it considers that the solution pro­
posed by the appellants cannot be adopted 
because it would be tantamount to abandon­
ing the express requirement of the fourth 
paragraph of Article 173 that an applicant 
must be individually concerned by the con­
tested measure. 26 It is further pointed out by 
the Commission that the Court has never 
departed from its settled case-law to the 
effect that persons other than addressees of a 
decision may claim that a decision is of indi­
vidual concern to them only if it affects them 
by reason of certain attributes peculiar to 
them or by reason of circumstances differen­
tiating them from all other persons and, by 
virtue of that fact, distinguishes them indi­
vidually in the same way as the addressee. 
That definition is also to be found in the 
grounds of the judgments in Cases 11/82 
Piraiki-Patraiki v Commission [1985] ECR 
227, C-358/89 Extramet Industrie v Councã 
[1991] ECR I-2501 and Joined Cases 
T-480/93 and T-483/93 Antillean Rice Mills v 
Commission [1995], relied on by the appel­
lants in support of the contra legem interpre­
tation which they propose. In that way, the 
Commission says, the appellants are substi­
tuting for the letter of the law their own for­
mulation in accordance with which it is 
23 — Joined Cases T-447/93, T-448/93 and T-449/93 Associazione 
Italiana Tecnico Economica del Cemento and Others v 
Commission [1995] ECR II-1971, paragraphs 53 to 62. 
24 — Case 297/86 CIDA v Council [1988] ECR 3531; paragraph 
15 of Opinion: 'Nor should it be overlooked that, unlike 
Cases 282/85 and 117/86, this case is not concerned with a 
measure which primarily affects the interests of the mem­
bers of an association and not the association's own inter­
ests. The question under discussion is the appropriate 
degree of participation of economic and social categories in 
the Economic and Social Committee, which the Council 
must assess under Article 195 of the EEC Treaty. In such a 
situation, nothing could be more natural than to leave t he 
defence of the interests of the various categories referred t o 
in Article 195 to organized groups, that is to say associ­
ations, especially since the individual members of the group, 
since they are not individually affected, are generally n o t 
entitled to bring an action before the Court. ' 
25 — See footnote 7 above. 
26 — For that reason, according to the Commission's arguments, 
the elements of comparative law relied on by the appellants 
are not relevant On the one hand, the international texts on 
which they base their view have no binding effect. On the 
other hand, judicial developments in the legal systems of 
the Member States cannot be transposed, the Commission 
maintains, to Community procedural law. At national level 
there is no procedural requirement such as that imposed by 
the fourth paragraph of Article 173 of the Treaty that the 
contested measure must individually concern the applicant. 
I - 1664 
GREENPEACE COUNCIL A N D OTHERS y COMMISSION 
sufficient to demonstrate that a Community 
act 'personally' and not necessarily 'indi­
vidually' concerns the applicant for the latter 
to acquire locus standi before the Commu­
nity judicature. In particular, the Commis­
sion points out that, if one were ultimately 
to abandon the interpretative approach 
which requires a person, under the fourth 
paragraph of Article 173, to be 'differenti­
ated' in relation to the contested measure, 
then that measure would no longer be 
required to concern the applicant 'individu­
ally': it would be sufficient for him to be 
'personally' concerned. That contra legem 
interpretation would result, in the Commis­
sion's view, in every inhabitant of the islands 
of Tenerife and Gran Canaria being recog­
nized as having a legal interest in challenging 
the measure at issue adopted by the Com­
mission. 27 
34. The Commission goes on to point out 
that, in its view, the appellants cannot validly 
argue that the solution adopted by the Court 
of First Instance in the order appealed 
against creates a legal vacuum in judicial pro­
tection and review of conformity by the 
Community institutions with Community 
environmental legislation. In particular, it 
stresses that the appellants are entitled, in so 
far as the environmental dimension of the 
works subject to financing is concerned, to 
bring proceedings before the Spanish courts, 
and that certain of them had availed them­
selves of that right. Nevertheless, neither the 
financing, as such, of the works nor the role 
of the Commission in monitoring whether 
Spain is observing the relevant Community 
provisions concerns the appellants. Conse­
quently, they do not have a legal interest in 
obtaining a judicial determination in relation 
to those questions. The absence of a legal 
interest cannot be remedied by the elements 
of comparative law relied on by the appel­
lants in their pleadings. 
35. As to the rights which the appellants 
maintain may be inferred from Directive 
85/337/EEC, the Commission makes the fol­
lowing observations: even though that direc­
tive, as regards certain at least of its provi­
sions, may produce direct effects, reliance on 
it cannot avail the appellants in the context 
of the present proceedings. Even if it is 
acknowledged that the appellants, or certain 
of them, derive certain individual rights at 
the level of national law from the directive, 
those rights do not go so far as to afford 
them the possibility of contesting the legality 
of an act, such as Decision C(91)440, before 
the Court of First Instance or to differentiate 
them, for the purposes of the fourth para­
graph of Article 173, in relation to the con­
tested act. 
36. The Commission also rebuts the submis­
sion contained in the appeal to the effect that 
the appellant environmental associations 
have locus standi because, on the one hand, 
one or more of their members are individu­
ally affected by the contested measure and, 
on the other, as representative organizations 
whose object is the protection of the envi­
ronment in the Canary Islands, they auto-
27 — That is to say, the potential applicants would amount to 
tens, if not hundreds, nay, thousands, of persons. In the 
Commission's view, that argument is not affected by the 
vague position adopted by the appellants in their pleadings 
to the effect that 'it is clear that, i n the present case, most of 
the inhabitants of Tenerife and Gran Canaria would not sat­
isfy the conditions actually proposed by the appellants.' 
I - 1665 
OPINION OF MR COSMAS — CASE C-321/95 P 
matically have a legal interest in matters con­
cerning the environment. 28 
37. Furthermore, the Commission observes 
that the notice of appeal does not repeat the 
submission put forward at first instance to 
the effect that two at least of the appellants 
have standing by virtue of the fact that they 
had lodged complaints with the Commission 
concerning the conditions under which the 
relevant construction works were being car­
ried out. It infers from this that the appel­
lants have tacitly abandoned that submission. 
Finally, the Commission requests the Court, 
should it decide to set aside the order of the 
Court of First Instance, to adjudicate on the 
two other objections of inadmissibility raised 
at first instance. For it has come to the con­
clusion that the legal redress sought by the 
appellants before the Court of First Instance 
could be granted only in the event of an 
amendment of the fourth paragraph of 
Article 173 of the Treaty. 
38. At the hearing, the Commission further 
pointed out that construction of one of the 
electricity-power generating plants had 
already been started in 1990, that is to say 
before the issue of Community financing of 
the works arose. The appellants ought there­
fore to have taken steps, as at that moment in 
time, to oppose the carrying out of the 
works or, at least, the financing of them, by 
challenging the original Commission 
Decision C(91)440. However, they failed to 
show due diligence and, for that reason, 
brought proceedings at a later date against 
the decision to continue the financing. The 
Commission's representative also stated that 
the decision to continue financing of the 
works was taken after there had been found 
to be no infringement of the provisions of 
Directive 85/337/EEC. Thus, the Commis­
sion carried out the review which it had 
bound itself to do under the original 
Decision C(91)440. 
39. It further pointed out that the Commu­
nity legal order also affords legal protection 
to persons which goes beyond the strict con­
fines of the fourth paragraph of Article 173 
of the Treaty. It recalled in that connection 
recent legislative developments concerning 
access by citizens to the archives of the 
Community institutions, the right of petition 
to the European Parliament and the possibil­
ity of bringing a matter before the Ombuds­
man. Conversely, no easing of the procedural 
restrictions laid down in the fourth para­
graph of Article 173 can be expected, nor has 
there been any such proposal in the context 
of the Intergovernmental Conference. 
C — The Spanish Government's arguments 
40. For its part, Spain proposes that the 
appeal be dismissed on the basis of the argu­
ments set out below. It begins by rehearsing 
the case-law of the Court on the issue of 
28 — The Commission points out that that criterion is unsup­
ported by authority, save for the Opinion of Advocate 
General Lenz in Case 297/86 (see footnote 24 above), 
which was not followed by the Court. 
I -1666 
GREENPEACE COUNCIL A N D OTHERS v COMMISSION 
locus standi of individuals, from which it 
infers that, in order for individuals to bring 
an admissible claim before the Community 
judicature, they must be individually con­
cerned by the act which they are contesting, 
in the sense that it affects those persons by 
reason of certain attributes peculiar to them 
or by reason of circumstances in which they 
are differentiated from all other persons and, 
by virtue of those factors, distinguishes them 
individually in the same way as the addressee 
of the decision. Consequently, Spain main­
tains, the only Community acts open to 
challenge are those concerning a closed class 
of persons which is ascertained or ascertain­
able at the time of adoption of the act and 
whose rights the author of the act has sought 
to regulate. For that purpose, it is not 
enough that it may be possible to ascertain 
with a greater or less degree of accuracy the 
number or even the identity of the persons 
to whom a measure applies, if the first of 
these three elements is not also present, that 
is to say if there are no circumstances which 
differentiate and distinguish them in the 
same way as the person addressed. 29 Thus, 
the Court confers the right to challenge a 
Community act only on the addressees 
thereof and on persons who may be equated 
with them. 
41. As a logical consequence, the appellants, 
who were not the addressees of the act 
which they are contesting and cannot be 
equated with the addressee of that act, 
namely Spain, do not have locus standi and 
the Court of First Instance was right to dis­
miss their action. For that reason, the appel­
lant environmental associations do not have 
locus standi. Also, it would be contrary to 
the principle of legality for the actions of the 
environmental associations to be adjudged to 
be admissible and at the same time for the 
actions brought by natural persons to be dis­
missed, that is to say for a wider legal inter­
est to be conferred on representative associ­
ations than on individuals. As to the latter, 
the Kingdom of Spain observes that they also 
lack locus standi to challenge the decision of 
the Commission to continue the financing. 
For one thing, they do not invoke circum­
stances or attributes peculiar to them which 
distinguish them individually in the same 
manner as the addressee of the contested 
decision. 30 
42. Consequently, they do not belong to any 
closed class of persons, ascertained or ascer­
tainable at the time of adoption of the act, 
nor are they in a position analogous to that 
of the addressee thereof. Again, as regards 
those appellants who had submitted com­
plaints to the Commission, that fact does not 
suffice to distinguish them, because the 
29 — Reference is made to the order of the Court in Case 
C-257/93 Van Parys v Coanei/ and Commission [1993] 
ECR I-3335, and to the order of the Court of First Instance 
in Case T-476/93 FRSEA and FNSEA v Council [1993] 
ECR II-1187, and the judgment of the Court in Case 
C-209/94P Buralux and Others v Council [1996] ECR 
I-615. 
30 — In accordance with the reasoning adopted by the Kingdom 
of Spain, if the interpretative approach advocated by the 
appellants were accepted, then a legal interest would have to 
be recognized in the case of any person invoking the impact 
of an interference with the environment in connection with 
fishing, farming, public health, tourism, quality of life, chil­
dren's education, damage to the interests of taxi-drivers, 
local workers, tourists, windsurfers, and those concerned 
with the protection of bird-life. Consequently, the appel­
lants are affected by the contested act just as much as any 
other individual carrying on any kind of activity in the area. 
I - 1667 
OPINION OF MR COSMAS — CASE C-321/95 P 
Commission is not under any obligation to 
initiate proceedings under Article 169 of the 
Treaty, whenever it receives a complaint in 
that connection. 3 1 For all the abovemen-
tioned reasons, the Kingdom of Spain agrees 
with the solution adopted by the Court of 
First Instance in the order appealed against. 
43. The Kingdom of Spain goes on to 
counter the appellants' argument concerning 
the creation of a legal vacuum in judicial 
protection caused by an inability to review 
infringements by the Commission in matters 
of environmental protection. It stresses that, 
in keeping with the system established by 
the Treaties, individuals enjoy the legal pro­
tection ensured by national courts which are 
the ordinary courts under the Community 
judicial system. Accordingly, only the Mem­
ber States and Community institutions have 
a legal interest in seeking the annulment of 
measures of a general nature, as is clearly 
indicated by Article 173 of the Treaty and 
laid down by the relevant case-law of the 
Court. Moreover, in light of the characteris­
tics of the present case, the Kingdom of 
Spain considers that, in actual fact, the appel­
lants are attempting to fabricate a dispute 
before the Community judicature. Under the 
guise of a challenge to the legality of a Com­
munity act, they are in fact seeking to 
prompt the Community judicature to adjudi­
cate on the legality of an act of a national 
authority and, indirectly, to annul it. Specifi­
cally, the appellants rely on no financial 
interest in connection with the mode of 
operation of the ERDF but, in a general and 
undefined manner, on their interest in envi­
ronmental protection which can be affected 
only by the act of a national authority. 
44. Thus, even if it were accepted that the 
competent Spanish authorities infringed the 
provisions of Community law on environ­
mental protection which, in so far as they 
have been transposed into the national legal 
order, constitute provisions of national law, 
there would then be an infringement of a 
national rule of law by a national public 
authority, in which case the dispute arising 
would fall within the exclusive competence 
of the national courts which, in a proper 
case, would be able to request the Court of 
Justice for a preliminary ruling on the inter­
pretation of the relevant provisions of Com­
munity law. 32 Finally, Spain submits, since 
the Commission decision at issue merely 
gives effect to Decision C(91)440, it neither 
affects nor can affect the environment or, in 
any event, the rights 'which the appellants 
might derive from the protection thereof. 
For that reason, Spain submits, there can be 
no question of an infringement of the rights 
of the citizen deriving from the protection of 
the environment. 
31 — Judgment in Case 247/87 Star fruit Company v Commis­
sion [1989] ECR 291. 
32 — Spain refers to the judgment in Case C-97/91 Borelli v 
Commission [1992] ECR I-6313 in which it was held that 
the Court is not competent to decide on the legality of an 
act adopted by a national authority even though that act 
was adopted in the context of a procedure for the adoption 
of a Community decision. 
I - 1668 
GREENPEACE C O U N C I L A N D OTHERS v COMMISSION 
45. Spain goes on to stress that, in its view, 
apart from having no individual interest, the 
appellants also have no direct interest in 
challenging the Commission decision to con­
tinue the financing. It points out in that con­
nection that Decision C(91)440, and acts 
adopted in implementation thereof, are of a 
financial nature and relate only indirectly to 
the environment, in the same way as any area 
of human activity. 
46. Finally, the representative of Spain main­
tained at the hearing before the Court that 
the change in case-law advocated by the 
appellants could not be regarded as expedi­
ent since it would result in the enshrinement 
of an actio popularis for environmental ques­
tions. Protection of the environment, more­
over, was but one legal concern among so 
many others within a legal system and there 
was no justification whatever for according it 
any different procedural treatment. 
VI — My views on the appeal 
47. I consider it important to stress, at the 
outset, the novelty of the present case. For 
the first time, the Court is being asked to 
form a view on a series of legal issues which 
were not dealt with in the context of the An 
Taisce and Associazione Agricoltori della 
Provincia di Rovigo 33 cases, whose subject-
matter concerned environmental protection. 
The issue before the Court in this case con­
cerns the interpretation of the fourth para­
graph of Article 173 of the Treaty. The legal 
debate turns on the precondition laid down 
in the abovementioned provision to the 
effect that, in order for a natural or legal per­
son to be able to challenge decisions of 
Community institutions addressed to 
another person, those decisions must be 'of 
direct and individual concern' to the former. 
That wording has imposed a significant pro­
cedural limitation on the right of action 
before the Community judicature and is 
appraised, moreover, of the Court's own 
33 — Order in Case C-325/94 P An Taisce and WWF (UK) v 
Commission [1996] ECR I-3727, and judgment in Case 
C-142/95 P Associazione Agricoltori della Provincia di 
Rovigo and Others v Commission [1996] ECR I-6669. 
In the first of these two cases the Court gave judgment on 
an appeal brought by two environmental associations 
against the judgment by the Court of First Instance dis­
missing as inadmissible their action for annulment of a 
Commission decision. In that decision the Commission 
refused to suspend or revoke the grant of appropriations 
from the Structural Fund for the construction of a nature 
observatory in Ireland. The Court of First Instance based 
its order in that case on the ground that it had not been 
proven that the Commission had decided not to make use 
of its power under the relevant Community provisions in 
relation to the suspension or reduction of Community 
funding for the construction of the abovementioned centre, 
a power which, according to the Court of First Instance, is 
always available. That view of the matter was upheld by the 
Court of Justice, as is apparent from paragraphs 30 and 31 
of its judgment. 
In the second of the two cases the appellants (local occupa­
tional associations and individuals) had appealed against an 
order of the Court of First Instance dismissing as inadmis­
sible their action for annulment of a Commission decision 
approving funding for the protection of the residents and 
natural environment of the Padua delu zone in Italy under 
Council Regulation (EEC) N o 1973/92 of 21 May 1992. 
The Court of Justice upheld the view taken by the Court of 
First Instance that the applicants were not affected indi­
vidually by the contested act because, contrary to their 
assertions, Community law did not confer on them a right 
to participate in the procedure for structuring the pro­
gramme of funding actions. 
It may be observed, then, that in those two cases the Court 
of First Instance in whole or in part founded its view as t o 
the inadmissibility of the actions on grounds other than 
those adopted in the present case. 
I -1669 
OPINION OF MR COSMAS — CASE C-321/95 P 
motion. 34 I consider that, in order that the 
dispute pending before the Court may be 
fully ventilated, the Court will need to give 
replies to the questions set out below: 
48. First, can the contested Commission 
decision 'concern' the appellants in the sense 
that they are able to derive a judicially pro­
tected right or legal interest from the inter­
est, within the Community legal order, in 
conservation of the environment? Secondly, 
if the first question is answered in the affir­
mative, was the Court of First Instance right 
to hold that that decision did not 'individu­
ally' concern the persons challenging it? 
Thirdly, if the second question is answered 
in the negative, was there any other obstacle 
to admissibility of the originating applica­
tion? 
A — As to the possibility of a Community 
national deriving a judicially protected right 
or legal interest from the interest, within the 
Community legal order, in conservation of 
the environment 
49. The fourth paragraph of Article 173 of 
the Treaty lays down the condition that a 
natural or legal person bringing an action 
against a decision of a Community institu­
tion must be the holder of some right or 
legal interest which is affected by the con­
tested act. That condition, which does not 
apply to the privileged parties mentioned in 
the second paragraph of that article, gener­
ally consists in the express requirement that 
the applicant be directly and individually 
affected by the contested act. Where the con­
tested act exhibits those characteristics, it is 
rare that that condition of a legal interest will 
not be satisfied. 35 In any event, the existence 
of a legal interest is one of the elements of 
admissibility of the action examined by the 
Community judicature. 36 
50. I believe that that issue must be exam­
ined at the outset, precisely on account of 
the particular features of the present case. 
Moreover, the Community judicature has 
not hitherto adjudicated upon the existence 
of an 'environmental legal interest'. For that 
reason, it is useful to clarify the position 
occupied by the issue of environmental pro­
tection in the Community legal order and to 
analyse the Court's case-law on that ques­
tion. 
(a) Public dimension of environmental pro­
tection 
51. In the first place, there can be no doubt 
that ensuring the quality of the environment 
is directly linked to what might be termed 
34 — Pursuant to Article 92(2) of the Rules of Procedure of the 
Court. See order in Case 13/86 Charlotte von Bonkewitz-
Lindner v Parliament [1987] ECR 1417, and judgment 
in Joined Cases C-305/86 and C-160/87 Neotype 
Techmaschexport v Commission and Council [1990] 
ECR I-2945, paragraph 18. 
35 — Nevertheless, it is not improbable; sec judgment in Case 
60/81 IBM v Commission [1981] ECR 2639. 
36 — As examples of cases in which the Court has accepted the 
existence of a legal interest, see judgments in Case 77/77 BP 
v Commission [1978] ECR 1513; Case 207/86 Apesco v 
Commission [1988] ECR 2151; and order of the Court in 
Case C-123/92 Leni Pietro v Commission [1993] ECR 
I-809. 
I - 1670 
GREENPEACE COUNCIL A N D OTHERS y COMMISSION 
the 'Community public interest'. The Com­
munity judicature has proclaimed in its judg­
ments that 'environmental protection is one 
of the fundamental objectives of the Com­
munity'. 37 Support for that view is, more­
over, to be found in the letter of the Treaty. 
Following the revision of 7 February 1992, 
Article 2 of the Treaty states that 'the Com­
munity shall have as its task (...) to promote 
(...) growth respecting the environment (...).' 
For those purposes the activity of the Com­
munity is to comprise, pursuant to Article 
3(k) of the Treaty, 'a policy in the sphere of 
the environment'. The general outlines of 
that policy are elaborated in Title XVI of the 
Treaty. That policy is to contribute, under 
Article 130 r o f the Treaty, inter alia, to 'pre­
serving, protecting and improving the quality 
of the environment, protecting human 
health', and 'prudent and rational utilization 
of natural resources.' Paragraph 2 of Article 
130r further provides that 'environmental 
protection requirements must be integrated 
into the definition and implementation of 
other Community policies.' 38 Secondary 
Community legislation has been enacted in 
order to give effect to the objectives of 
Article 130r of the Treaty; 39 it is the task of 
the Community judicature to ensure the cor­
rect application of that legislation. 
52. From the foregoing illustration it may be 
inferred that the environment has a public 
dimension which constitutes a general Com­
munity interest whose protection is the 
responsibility of the Member States and the 
Community institutions, in accordance with 
37 — See for example judgments in Case 240/83 ADBHU (see 
footnote 20 above), Case 302/86 Commission v Denmark 
(see footnote 20 above) and Case C-195/90 Commission v 
Germany [1992] ECR I-3141, paragraph 29, and my Opin­
ion of 10 December 1996 in Case C-343/95 Diego Caá, 
paragraphs 55 to 64. 
38 — For example, in Case C-2/90 Commission v Belgium [1992] 
ECR I-4431, paragraph 22 et seq., the Court seeks to rec­
oncile the fundamental Community freedom of movement 
of goods enshrined in Article 30 of the Treaty with the 
requirement of environmental protection, as described in 
Article 130r of the Treaty. Thus, although I consider that 
waste products may be classified as goods within the mean­
ing of Article 30 of the Treaty, in the final analysis, the 
imposition of restrictions on their circulation is accepted on 
the following grounds: The principle that environmental 
damage should as a matter of priority be remedied at 
source, laid down by Article 130r(2) of the Treaty as a basis 
for action by the Community relating to the environment, 
entails that it is for each region, municipality or other local 
authority to take appropriate steps to ensure that its own 
waste is collected, treated and disposed of; it must accord­
ingly be disposed of as close as possible to the place where 
it is produced, in order to limit as far as possible the trans­
port of waste.' (paragraph 34). 
See also judgment in Case C-155/91 Commission v Council 
[1993] ECR I-939 in regard to the same subject-matter. 
39 — By means of secondary Community legislation a number of 
significant obligations have been imposed on the Member 
States requiring them to ensure protection of the environ­
ment- The number of directives concerning the safeguard­
ing of the environment is particularly considerable. An act 
or omission on the part of national authorities affecting the 
environment may cumulatively infringe not one but several 
directives. For example, following complaints by individu­
als against Greece concerning water quality in Lake Veyor-
itidas, the River Soulos and Payasitikos Bay, the Commis­
sion brought an action against Greece under Article 169 of 
the Treaty for the alleged infringement of Council Directive 
76/464/EEC of 4 May 1976 on pollution caused by certain 
dangerous substances discharged into the aquatic environ­
ment of the Community (OJ 1976 L 129, p. 23). Neverthe­
less, in its allegations in the reasoned opinion it also 
referred to Council Directive 76/160/EEC of 8 December 
1975 concerning the quality of bathing water (OJ 1975 
L 31, p. 1), as regards Payasitikos Bay, and to the following 
directives, as regards the particular situation of Lake Veyor-
itidas and the River Soulos: Council Directive 75/440/EEC 
of 16 June 1975 concerning the quality required of surface 
water intended for the abstraction of drinking water in the 
Member States (OJ 1975 L 194, p. 26), Council Directive 
79/869/EEC of 9 October 1979 concerning the methods of 
measurement and frequencies of sampling and analysis of 
surface water intended for the abstraction of drinking water 
in the Member Sutes (OJ 1979 L 271, p. 44), Council 
Directive 80/778/EEC of 15 July 1980 relating to the qual­
ity of water intended for human consumption (OJ 1980 
L 229, p. 1), Council Directive 78/659/EEC of 18 July 1978 
on the quality of fresh water needing protection or 
improvement in order to support fish life (OJ 1978 L 222, 
p. 1), Council Directive 75/442/EEC of 15 July 1975 on 
waste (OJ 1975 L 194, p. 39), and Council Directive 
78/319/EEC of 20 March 1978 on toxic and dangerous 
waste (OJ 1978 L 84, p 43). On that case, sec the Opinion 
of Advocate General Tesauro of 26 June 1997 in Joined 
Cases C-232/95 and C-233/95 Commission v Greece [1998] 
ECR I-3343, I-3345. 
I -1671 
O P I N I O N O F MR COSMAS — CASE C-321/95 P 
the equilibrium established by the Treaty. 40 
Thus, protection of the environment, as 
enshrined in primary Community law and as 
a matter of principle affirmed by the case-law 
of the Court, constitutes a fundamental obli­
gation on the part of the 'public' author­
ities 41 — if Community institutions and 
national authorities may be subsumed under 
one and the same term. And it is in the 
implementation of that obligation that 
obligations on the part of individuals may 
arise. 42 
53. However, the fact that legality must be 
observed per se within the Community, 
including the obligation to protect the envi­
ronment, does not automatically confer on a 
natural or legal person a right or legal inter­
est enforceable by an action under the fourth 
paragraph of Article 173 of the Treaty. The 
Community legal order does not recognize 
an actio popularis 43 in environmental matters 
either. It is not, therefore, possible to rely, as 
the sole ground for claiming locus standi, on 
the legal vacuum which would be likely to 
be created by the fact that certain infringe­
ments by the Commission cannot with cer­
tainty be remedied if the task of submitting 
them for judicial review is entrusted exclus­
ively to the Member States and the Commu­
nity institutions, which do not in practice 
have an interest in that regard. 
40 — An interesting example of the manner in which environ­
mental protection may be secured as a result of a procedure 
between Community institutions and Member States may 
be found in the judgment in Case C-431/92 Commission v 
Germany [1995] ECR I-2189. In that case the Commission 
of the European Communities had brought an action under 
Article 169 of the Treaty for a declaration that Germany, by 
granting authorization for the construction of a new section 
of the Grosskrotzenburg power station without a prior 
environmental impact assessment, had failed to fulfil its 
obligations under Articles 5 and 189 of the EEC Treaty in 
conjunction with Council Directive 85/337/EEC. It is 
worth noting that the Commission did not proceed against 
Germany on the ground of an incorrect transposition of the 
directive in general but confined itself to the issue of the 
construction of the thermal power station. The Court 
acknowledged that the Commission may bring an action 
against a Member State under Article 169 on the sole basis 
of an actual interference with the environment contrary t o 
secondary Community law. Indeed it considers it to be part 
of the Commission's task '...in the general interest of the 
Community, to ensure that the Member States give effect to 
the Treaty and the provisions adopted by the institutions 
thereunder and to obtain a declaration of any failure to fut-
fil the obligations deriving therefrom (...).' The Court also 
clearly distinguished between the need for environmental 
protection in the public interest and the existence or other­
wise of rights conferred by Community law on individuals 
in connection with such protection. It stated at paragraph 
26 that: 'In its application, the Commission complains that 
Germany has not observed, in a specific case, the obligation 
flowing directly from the directive to assess the environ­
mental impact of the project concerned. The question 
which arises is thus whether the directive is to be construed 
as imposing that obligation. That question is quite separate 
from the question whether individuals may rely as against 
the State on provisions of an unimplemented directive 
which are unconditional and sufficiently clear and precise, a 
right which has been recognized by the Court of Justice.' 
41 — O n this point Community law is analogous to the national 
constitutional systems of Germany, Greece and the Nether­
lands. In those countries protection of the environment is 
expressly recognized as a fundamental obligation of the 
State, not necessarily corresponding to a general individual 
right of the citizen to require observance of that obligation. 
42 — That does not, of course, mean that horizontal direct effect 
is conferred on directives with an environmental content 
(see footnote 58 below). See for example judgment in Case 
C-379/92 Peralta [1994] ECR I-3453, paragraph 59, on pro­
hibition of dumping into the sea of noxious chemical 
substances, and the judgment in Joined Cases C-304/94, 
C-330/94, C-342/94 and C-224/95 Tombesi and Others 
[1997] ECR I-3561 concerning the application of Directives 
41/156/EEC and 91/689/EEC on waste. 
43 — Contrary to the situation prevailing, at least to some extent, 
in Spain and Portugal. The reason why the procedural cri­
teria are so generous in those countries must be sought in 
the fact that the Constitutions in those states expressly 
enshrine a general constitutional right to the environment 
on the part of citizens (Article 45 of the Spanish Constitu­
tion and Article 46 of the Portuguese Constitution). 
I - 1672 
GREENPEACE COUNCIL A N D OTHERS v COMMISSION 
(b) Recognition by secondary Community 
law of rights in favour of individuals 
54. However, the question of environmental 
protection in the Community legal order is 
not exhaustively treated by pointers to the 
existence of a general obligation imposed on 
Community and national authorities. Sec­
ondary Community law which, directly or 
indirectly, gives effect to the Community's 
environmental objectives, has created in 
favour of individuals certain specific rights of 
real substance, which are guaranteed by the 
national and Community judicial authori­
ties. 44 Those rights, as a general rule, flow 
from the direct effect of directives whose 
subject-matter is concerned with environ­
mental protection. For example, the Court 
held in Case C-131/88 Commission v Ger­
many [1991] ECR I-825 4 5 that Council 
Directive 80/68/EEC of 17 December 1979 
on the protection of groundwater against 
pollution caused by certain dangerous 
substances 46 '(...) seeks to protect the 
Community's groundwater in an effective 
manner by laying down specific and detailed 
provisions requiring the Member States to 
adopt a series of prohibitions, authorization 
schemes and monitoring procedures in order 
to prevent or limit discharges of certain 
substances. The purpose of those provisions 
of the directive is thus to create rights and 
obligations for individuals.' Advocate Gen­
eral Van Gerven observed in his Opinion in 
that case that the 'clear and precise imple­
mentation of the directive's provisions may 
also be important for third parties (for 
instance environmental groups or neighbour­
hood residents) seeking to have the prohibi­
tions and restrictions contained in the direc­
tive enforced as against the authorities or 
other individuals'. 47 
55. The tendency of the case-law in favour 
of conferral on individuals of rights in con­
nection with environmental protection or, at 
least, of the possibility of relying before 
national courts on the obligations imposed 
by secondary Community law on national 
authorities, is also confirmed by the recent 
judgment of the Court in the Associazione 
Italiana per il World Wildlife Fund case. 48 
That case concerned a preliminary question 
which arose in the context of an action 
brought before the Italian courts by certain 
associations for nature protection, against a 
national decision determining the hunting 
calendar. Those associations maintained, 
inter alia, that there had been a breach of the 
principles contained in Council Directive 
79/409/EEC on the conservation of wild 
birds. 49 The question raised concerned the 
44 — Certainly, in the context of environmental protection, indi­
viduals may avail themselves of the other rights conferred 
on them by the Community legal order. Following adop­
tion by the Commission of Decision 94/90 on public access 
to Commission documents (Decision 94/90/ECSC, EC, 
Euratom of 8 February 1994), certain environmental asso­
ciations, the same ones which opposed the building of a 
nature observatory in Ireland (sec above, footnote 33), 
requested access to all the Commission documents concern­
ing examination of the construction project in point and the 
question whether structural funds could be used for that 
project- The Commission refused access, relying on protec­
tion of the public interest and its interest in the confidenti­
ality of its deliberations. WWF (UK) brought an action 
against that refusal before the Court of First Instance 
which, by judgment of 5 March 1997 (Case T-105/95), 
annulled the refusal on the ground that it did not satisfy the 
requirements as to reasoning laid down in Article 190 of the 
Treaty, having first found that Decision 94/90 constituted 
an act capable of conferring on third parties rights which 
the Commission was obliged to observe (paragraph 55). 
45 — Judgment of 28 September 1991, see footnote 21 above. 
46 — OJ 1979 L 20, p. 43. 
47 — Opinion in Case C-131/88, at paragraph 7. 
48 — Judgment in Case C-118/94 Associazione Italiana per il 
World Wildlife Fund v Regione Veneto [1996] ECR I-1223. 
See also judgment in Case C-44/95 Royal Society for the 
Protection of Birds [1996] ECR I-3805. 
49 — OJ 1979 L 103, p. 1. 
I - 1673 
OPINION OF MR COSMAS — CASE C-321/95 P 
conditions under which Article 9 of the 
directive permits Member States to derogate 
from the general prohibition on hunting pro­
tected species. In the final analysis, the Court 
conferred direct effect on that article, relying 
on its settled case-law according to which 
'where by means of a directive the Commu­
nity authorities have placed Member States 
under a duty to adopt a certain course of 
action, the effectiveness of such a measure 
would be diminished if persons were pre­
vented from relying on it in proceedings 
before the courts, and national courts were 
prevented from taking it into consideration 
as an element of Community law'. 50 
56. I regard that judgment as constituting a 
typical example of the manner in which a 
general objective, such as environmental pro­
tection, when implemented by means of a 
series of provisions of secondary Commu­
nity legislation, may result in securing for 
individuals the possibility of seeking judicial 
assistance in conserving the environment, 
even where such a right is not provided for 
directly and expressly by the Community 
legislature. 51 
57. That reasoning is also followed by the 
appellants when they maintain that Directive 
85/337/EEC created certain rights in their 
favour which are affected by the Commis­
sion decision at issue. It should be noted that 
that directive constitutes one of the most sig­
nificant achievements by the Community 
legislature in favour of environmental pro­
tection. Its objective is, as stated in the sixth 
recital in the preamble, to establish the prin­
ciple of prior assessment of the significant 
effects which certain interferences with the 
environment are likely to have. Under 
Article 3 of the directive Member States are 
obliged to assess the direct and indirect 
impact of a project on human beings, fauna 
and flora, soil, water, air, climate, landscape, 
material assets and the cultural heritage. The 
appellants consider that Articles 2, 3, 6 and 8 
of that directive enshrine certain rights in 
favour of a group of individuals who are 
described in Article 6 of the directive under 
the term 'public concerned'. 
50 — Paragraph 19 of the abovementioned judgment in Case 
C-118/94. It is worth noting that the Court has consistendy 
taken the view (judgments in Case 236/85 Commission v 
Netherlands [1987] ECR 3989, Case 247/85 Commission v 
Belgium [1987] ECR 3029, Case 252/85 Commission v 
France [1988] ECR 2243, Case C-288/88 Commission v 
Germany [1990] ECR I-2721, Case C-355/90 Commission v 
Spain [1993] ECR I-4221, and Case C-435/92 Association 
pour la Protection des Animaux Sauvages [1994] ECR I-67) 
that Community legislation on the protection of wild birds 
seeks to preserve the 'common heritage', the management 
of which is entrusted to the Member States. In that sense 
the directives in question serve to protect the environment 
which exists as a Community public interest, in accordance 
with the reasoning elaborated hitherto, and do not appear 
to have in direct contemplation the securing of a right in 
favour of individuals. Moreover, notwithstanding the fact 
that the relevant directives have been in issue before the 
Court, the Court has not adjudicated on the question 
whether they produce direct effect in the domestic legal 
orders. 
51 — Abo of interest is the judgment of the Court in Case 
C-361/88 Commission v Germany (cited above at footnote 
21) concerning the mandatory effect of Council Directive 
80/779/EEC of 15 July 1980 on air quality limit values for 
sulphur dioxide and suspended particulates. The Court 
appears to link the existence of a public obligation on the 
part of the public authorities with regard to protection of 
uman health with a corresponding .right on the part of 
individuals. At paragraph 16 of the judgment, it is stated as 
follows: 'In that respect, it should be pointed out that the 
obligation imposed on the Member States to prescribe limit 
values not to be exceeded within specified periods and in 
specified circumstances, laid down in Article 2 of the Direc­
tive, is imposed "in order to protect human health in par­
ticular". It implies, therefore, that whenever the exceeding 
of the limit values could endanger human health, the per­
sons concerned must be in a posidon to rely on mandatory 
rules in order to be able to assert their rights (...).' It is 
worth observing that it is human health which is taken to 
be the ground justifying the conferral of rights on individu­
als. Nevertheless, I consider that in that case public health 
constitutes a special objective direcdy related to environ­
mental protecaon. Moreover, the link between environment 
and health is highlighted by the formulation of Article 130r 
of the Treaty. 
I - 1674 
GREENPEACE COUNCIL A N D OTHERS v COMMISSION 
58. Indeed, the Court has upheld the direct 
effect of Articles 2, 3 and 8 of Directive 
85/337. 52 As regards the mandatory effect of 
Article 6(2) of the directive, Advocate Gen­
eral Elmer, in his Opinion in Case 
C-72/95, 53 observed as follows: 'According 
to Article 6(2) of the directive, it is for the 
Member States to ensure that any request for 
development consent and any information 
gathered are made available to the public and 
that the public concerned is given an oppor­
tunity to express an opinion before the 
project is initiated. The directive thus 
requires the Member States to introduce a 
consultation procedure to give individuals a 
right to express their opinion. Where a 
Member State's implementation of the direc­
tive is such that projects which are likely to 
have significant effects on the environment 
are not made the subject of an environmental 
impact assessment, the citizen is prevented 
from exercising his right to be heard. The 
Member State's own negligent implementa­
tion of the directive thus deprives the citizen 
of a right under the directive. ... In those cir­
cumstances my view is that Articles 2(1) and 
4(2) of the directive, in conjunction with 
Article 6(2), confer rights on individuals'. 54 
59. I believe that, if the appellants are to be 
regarded as belonging to the 'public' which 
may be concerned by the projected construc­
tion of the two power stations in the Canary 
Islands, 55 then they are entitled to the rights 
conferred by Directive 85/337/EEC. Those 
rights are the following: first, the require­
ment that the projected interference with the 
environment be submitted for an appraisal of 
its impact before authorization is granted; 
secondly, projects for works impacting on 
the environment, namely those mentioned in 
Annex I to the directive or, under certain 
conditions, in Annex II thereto, must be 
drawn up in accordance with the procedure 
described in Articles 5 to 10 of the directive. 
In particular, that procedure gives the right, 
first, for information gathered to be made 
available to the public, secondly, to provide 
the public with the possibility of expressing 
its opinion before the project is started and, 
thirdly, to require that opinion to be taken 
into account in the context of the procedure 
for granting authorization. Accordingly, if 
the Commission's contested decision, under 
which it was decided to continue financing 
the works in Spain at issue in these proceed­
ings, infringes those rights, then that decision 
did indeed 'concern' the appellants within 
the meaning of the fourth paragraph of 
Article 173 of the Treaty and the appellants 
were entitled, as a matter of principle, to 
challenge it. 56 
60. It follows from the foregoing that sec­
ondary Community law creates special 
52 — Sec Case C-431/92 Commission v Germany (paragraph 39), 
cited above at footnote 40. 
53 — Opinion in Case C-72/95 Kraaijeveld and Others v Gede­
puteerde Staten Van Zuid-Holland [1996] ECR I-5431. 
54 — Paragraph 70 of the Opinion. However, the Court did not 
expressly form a view on that issue because, on the basis of 
the factual circumstances of the case pending before the 
court making the reference, the parties had not raised a 
claim concerning their rights under Directive 85/337/EEC. 
On that ground, the Court confined itself to replying that 
Article 2(1) of Directive 85/337/EEC has direct effect and 
that a national court which, under national law, has the 
power to apply of its own motion rules of law not relied on 
must apply the abovementioned provision, even if it has not 
been invoked by the party concerned. 
55 — It should be noted that Directive 85/337/EEC does not 
itself determine the 'public' to which the relevant provi­
sions refer, which is not without its relevance. See below, 
paragraph 96. 
56 — Of course, the fact that the Commission decision 'concerns' 
the appellants docs not necessarily mean that it also affects 
them individually (see paragraph 66 below). 
I -1675 
O P I N I O N O F MR COSMAS — CASE C-321/95 P 
attendant rights to environmental protection 
which may naturally be safeguarded by 
recourse to the courts. However, if the rights 
to be vindicated, or the legal interests of the 
citizen in connection with the environment, 
go no further than this, then the protection 
provided by the Community legal order 
remains incomplete and fragmentary. First, 
judicially protected rights or legal interests 
exist only where rules of secondary Commu­
nity law having direct effect in the domestic 
legal order have been adopted, 57 and cannot 
therefore arise when they involve the impo­
sition of an obligation on an individual. 58 
Secondly, reliance as against Community 
institutions on rights arising as described 
above, in annulment proceedings against acts 
of those institutions before the Court of 
First Instance, is in practice fraught with par­
ticularly severe obstacles. 59 
(c) Existence of a specific obligation on the 
Commission to monitor whether the works 
financed comply with Community environ­
mental legislation 
61. In addition to rights which Community 
law may expressly confer on individuals as 
against (primarily) national authorities, I 
consider that in certain specific cases Com­
munity rules relating to environmental pro­
tection directly impose on Community bod­
ies specific and clear obligations whose 
observance may be judicially enforced by 
individuals affected. The Commission has 
such an obligation under primary and sec­
ondary legislation whenever it proposes to 
finance works likely to have an impact on 
57 — It should also be emphasized that it is not always the rule 
that rights in favour of individuals may be derived from 
directives concerning environmental protection. It is 
instructive to note the position taken by the Court in its 
judgment in Case C-236/92 Comitato di Coordinamento 
per la Difesa della Cava and Others [1994] ECR I-483. In 
that case the question arose as to whether rights are con­
ferred on individuals by Article 4 of Council Directive 
75/442/EEC of 15 July 1975 on waste (OT 1975 L 194, 
p. 39) which is in the following terms: 'Member States shall 
take the necessary measures to ensure that waste is disposed 
of without endangering human health and without harming 
the environment and, in particular, without risk to water, 
air, soil and plants and animals, without causing a nuisance 
through noise or odours, and without adversely affecting 
the countryside or places of special interest.' Certain indi­
viduals had relied on the provision in question before the 
national courts, seeking annulment of the decision of a 
national authority involved in the application of that provi­
sion, on the ground that the domestic rules did not provide 
for the measures necessary to encourage processing and 
recycling of waste. The Court considered in the end that 
Article 4 of the directive indicated a programme to be fol­
lowed and set out the objectives to be followed by the 
Member States in the performance of the specific obliga­
tions imposed on them by other articles o f the directive. 
T h u s , the provision at issue must be regarded as defining 
the framework for the action to be taken by the Member 
States regarding the treatment of waste and not as requiring, 
in itself, the adoption of specific measures or a particular 
method of waste disposal. It is therefore neither uncondi­
tional nor sufficiently precise and thus is not capable of 
conferring rights on which individuals may rely as against 
the State' (paragraph 14). See also judgment in Joined Cases 
372/85, 373/85 and 374/85 Ministère Public v Traen [1987] 
ECR 2141. 
58 — A characteristic example is afforded by the judgment of the 
Court in Case C-168/95 Arcaro [1996] ECR I-4705 con­
cerning Council Directive 76/464/EEC on pollution caused 
by certain dangerous substances discharged into the aquatic 
environment of the Community. After reiterating its settled 
position on the horizontal and non-horizontal effect of 
directives, the Court decided that provisions of directives 
which require a person discharging cadmium to seek and 
obtain authorization for that purpose cannot in and by 
themselves, and without the national legislation applicable 
in connection with the application of those provisions being 
taken into account, justify an aggravation or diminution of 
the discharger's criminal liability for infringement of those 
provisions. 
59 — The principal obstacle is the fact that the infringement of 
rights enshrined in a directive as a rule stems from a 
decision made or action taken by a national body which, 
even if it relates to an act of a Community body, cannot be 
the subject of judicial review by the Community judicature. 
See judgment in Borelli (already cited in footnote 32). See 
also footnote 109 below. 
I - 1676 
GREENPEACE COUNCIL A N D OTHERS v COMMISSION 
the environment, which is the case here. In 
the case of the works at issue, moreover, and 
as was rightly pointed out by the appellants, 
the Commission acknowledged the existence 
of those obligations in Decision C(91)440 
and, moreover, bound itself to observe them. 
Let us now examine this issue in greater 
detail. 
62. I will begin by observing that the Treaty 
provisions concerning the environment are 
not mere proclamations of principle. Para­
graph 1 of Article 130r may refer in general 
terms to the pursuit of objectives to which 
Community policy must contribute in the 
sector of the environment, and paragraph 2 
may trace the general principles of that 
policy, but the last sentence of the first sub­
paragraph of paragraph 2 of Article 130r of 
the Treaty appears to impose on the Com­
munity institutions a specific and clear obli­
gation which could be deemed to produce 
direct effect in the Community legal order. It 
expressly states that: 'Environmental protec­
tion requirements must be integrated into 
the definition and implementation of other 
Community policies.' 
63. It should also be pointed out that that 
obligation has not remained a 'dead letter' 
but has been imported into secondary Com­
munity law, and indeed in the context of leg­
islation on the financing by the Community 
of certain actions having an impact on the 
environment. As referred to above, Article 7 
of Regulation N o 2052/88 provides: 'Mea­
sures financed by the Funds (...) shall be in 
keeping with Community policies, including 
those concerning (...) environmental protec­
tion.' Thus, in so far as the financing of the 
works for the construction of the two power 
stations in the Canary Islands is concerned, 
the Commission was obliged to take into 
consideration the aspect of environmental 
protection and it was right to bind itself to 
do so in Decision N o C(91)440. 60 
64. I consider that the above obligations 
imposed on the Commission flow from a 
framework of rules which may in a proper 
case give rise for a certain category of indi­
viduals to the right to seek the assistance of 
the courts to secure compliance with those 
obligations. Moreover, it is not by chance 
that the Community judicature has already 
discerned the need to link the obligations 
imposed on national authorities by clear 
rules of secondary Community law relating 
to environmental protection with the possi­
bility for individuals to secure compliance 
with those obligations through the courts. 
That is the conclusion to be inferred from 
the aforementioned case-law of the Court on 
60 — Notwithstanding the assertions of the Spanish Government, 
I consider that the Commission did indeed bind itself in 
that way. It is stated in the preamble to Decision C(91)440: 
'Whereas given the characteristics of this investment and its 
impacts it is compulsory to comply with Community law 
in this matter and, above all, with Directive 85/337/EEC.' 
Article 5 of the decision goes on to add that: 'Lack of com­
pliance with any of the conditions mentioned in this 
Decision shall authorise the Commission to reduce or can­
cel the assistance granted (...).' It is further stated at point 2 
of Section C of Annex III to the decision that 'If the Com­
mission observed that a certain operation has not complied 
with or is not complying with Community policy, it shall 
retain payment of Community funds for that operation and 
shall notify this to the authority responsible in the Member 
State for implementing the operation.' 
I - 1677 
OP I NI ON OF MR COSMAS — CASE C-321/95 P 
the direct effect of Directives 80/68/EEC, 
79/409/EEC and 80/779/EEC. More specifi­
cally, there is a discernible intention in that 
case-law on the part of the Community judi­
cature not to leave monitoring of observance 
of that secondary Community law in the 
sole care of the privileged parties mentioned 
in the second paragraph of Article 173 of the 
Treaty because the legislation in question is 
perceived to be closely interrelated with the 
protection of a certain group of individuals. I 
am of the view that the same philosophy 
should inform the Court in cases, such as the 
present one, in which the Community rule 
does not merely impose obligations on 
Member States but directly concerns the 
activity of Community bodies. Moreover, 
the fact that the Commission does not itself 
intervene in the environment but merely 
finances an intervention in it does not neces­
sarily mean that its decisions in that connec­
tion may not be likely to affect certain indi­
viduals, and indeed in a direct and individual 
manner. 61 
65. It must, I believe, be accepted that obser­
vance, in the present case, of the Commis­
sion's specific and clear obligation to take 
into account the safeguarding of environ­
mental interests at the same time as adhering 
to the relevant Community legislation dur­
ing the financing of the relevant works in the 
Canary Islands, is not of concern solely to 
the Commission but is also of relevance for 
certain individuals. The latter may seek judi­
cial protection in the event of non­
compliance with that obligation, provided of 
course that they satisfy the procedural 
requirements in that connection. 
66. Finally, I consider that in the context of 
the present case the appellants were entitled 
to plead before the Court of First Instance, 
on the one hand, infringement by the Com­
mission of their rights under Directive 
85/337/EEC and, on the other, the damage 
they claimed to have suffered as a result of 
the fact that the Commission failed, as they 
maintain, to check, prior to continuation of 
the funding, whether the relevant works 
were being carried out in accordance with 
Community environmental legislation. Cer­
tainly, the foregoing considerations do not 
necessarily lead to the conclusion that the 
appellants' action before the Court of First 
Instance was admissible. The admissibility of 
their action depends on whether they satis­
fied the preconditions of the fourth para­
graph of Article 173 of the Treaty and, in 
particular, the requirement that the contested 
decision must concern them individually. I 
now turn to analyse that issue. 
61 — Particularly revealing in that connection is the recent judg­
ment in Case C-395/95 P Geotronia [1997] ECR I-2271. In 
accordance with the settled case-law of the Court in the 
matter of public-works contracts financed by the European 
Development Fund, measures adopted by bodies acting on 
behalf of the Commission, whether approvals or refusals to 
approve, endorsements or refusals to endorse, are intended 
solely to establish whether or not the conditions for 
Community financing have been met, and are not — and 
cannot be — intended to interfere with the principle that 
the contracts in question remain national contracts for 
which the beneficiary States alone are responsible (see also 
judgments in Case 126/83 STS v Commission [1984] ECR 
2769, Case 118/83 CMC and Others v Commission [1985] 
ECR 2325 and Case C-257/90 Itdsolar v Commission 
[1993] ECR I-9). 
None the less, the Court held that, in light of the specific 
nature of the Geotronics case, a Commission decision refus­
ing a tender from a company, in the context of the PHARE 
programme, for the supply of electronic equipment to 
Romania, concerned that company individually. On that 
ground it set aside the judgment of the Court of First 
Instance which had held to the contrary. Thus, the fact that 
the Commission simply finances an activity, which it does 
not itself direcdy undertake, does not in principle preclude 
its decisions in that connection from affecting certain per­
sons, and indeed individually. 
I - 1678 
GREENPEACE COUNCIL AND OTHERS v COMMISSION 
B — Whether the contested decision was of 
individual concern to the appellants 
67. As stated above, the Court of First 
Instance, in the order appealed against, came 
to the conclusion that the contested decision 
was not of individual concern to the appli­
cants and, on that ground, adjudged the 
action to be inadmissible. It is that view of 
the matter taken by the Court of First 
Instance that the appellants are contesting in 
this appeal. 
68. The appellants also challenge the adher­
ence by the Court of First Instance to settled 
case-law to the effect that a decision of a 
Community institution can be of individual 
concern to persons other than the addressee 
thereof only if that decision affects them by 
reason of certain attributes 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. That is 
the major premiss of the legal reasoning fol­
lowed by the Court of First Instance. 
69. The appellants also developed their view 
before the Court of First Instance that the 
Community judicature, particularly in their 
case, should circumvent the strict procedural 
restrictions imposed by the aforementioned 
case-law. In that connection they rely on the 
specific nature of the environmental legal 
interest, on developments at national and 
international level in the direction of more 
effective judicial protection of legal interests 
of an environmental nature and on the dan­
ger of the legal vacuum in their legal protec­
tion created by the order appealed against. 
Indeed, they advance a series of criteria 
which, in their view, the Community judica­
ture must assess when it is called upon to 
decide upon the admissibility of an action 
involving a question of damage to the envi­
ronment. 
70. I shall next examine the question 
whether the order of the Court of First 
Instance appealed against was correct. In so 
doing, I shall distinguish between (b) the 
position which it took as against applicant 
individuals and (c) that which it maintained 
as against the applicant environmental asso­
ciations. However, before embarking on 
those issues, I consider it essential to refer to 
a problem discussed by the parties — which 
of course argued the point from opposing 
positions — touching on the quality and 
completeness of judicial protection afforded 
by the national (Spanish) courts (a). 
(a) Judicial protection afforded by the 
national courts as a ground for denying locus 
standi to the appellants 
71. The extent to which a natural person 
may seek and obtain judicial assistance 
within the national legal order is generally 
I - 1679 
O P I N I O N O F MR COSMAS — CASE C-321/95 P 
one of the matters examined when inquiry is 
made into the correct interpretation and 
application of the procedural preconditions 
laid down in the fourth paragraph of Article 
173 of the Treaty. Even though, from a theo­
retical viewpoint, I am opposed to the con­
sideration of that factor because the possibil­
ity of seeking redress before the national 
courts does not preclude the possibility of 
directly calling in question before the Com­
munity judicature the legality of a decision 
of a Community institution, where the pro­
cedural requirements of the fourth paragraph 
of Article 173 of the Treaty are satisfied,62 I 
do consider it necessary to stress the follow­
ing further matters: 
72. (i) First, I do not agree with the view put 
forward by the Spanish Government to the 
effect that the appellants were seeking a 
decision by the Community judicature on 
the legality of a decision of a national auth­
ority and for that reason had contrived the 
present dispute on the Commission's 
decision, which in reality does not concern 
them. It is my belief that the appellants are 
solely contesting the decision of a Commu­
nity institution, and are alleging an infringe­
ment by that institution of a rule of Com­
munity law which, according to them, affects 
their legally protected rights and interests. 63 
The fact that the contested Commission 
decision relates to construction works in 
Spain does not necessarily mean that persons 
desirous of contesting it have to proceed 
before the Spanish courts. Nor does it mean, 
at least in theory, that that decision may not, 
in and by itself, affect the rights and legal 
interests of certain persons, irrespective of 
whether any national administrative acts 
concerning those construction works subsist 
against which only the means of redress 
afforded by national law are available to the 
persons concerned. 
73. (ii) Both the Commission and the Span­
ish Government further argue that the appli­
cants could have secured adequate judicial 
protection if they had confined themselves to 
seeking redress before the national courts; in 
the proceedings for that purpose they could 
have raised the issue of the legality of the 
Commission decision to continue financing, 
whereupon, in the event of doubt, the 
national court could have referred a question 
62 — Consequently, the quality of judicial protection afforded 
under national law cannot be used as a criterion in review­
ing the correct interpretation of those procedural precondi­
tions and whether on each occasion the relevant factual cir­
cumstances may be brought within them, particularly since 
it is not mentioned expressly in the fourth paragraph of 
Article 173 of the Treaty. Moreover, I can scarcely imagine 
the Community judicature embarking on a detailed 
appraisal of that quality, merely to compare it with the judi­
cial protection which it itself affords. For that reason, the 
Court of First Instance was in my view correct not to draw 
any inferences from that issue, though invited to do so by 
the parties. 
63 — That is also why, moreover, the reliance placed by Spain on 
the Borelli judgment (sec above, footnote 32) is not on this 
point felicitous. The Court of First Instance was not 
requested by the appellants to adjudicate on the legality of a 
decision of the Spanish authorities adopted within the 
framework of the Community decision-making process, as 
was the case in Borelli. Thus, the appellants did not main­
tain that the contested Commission decision was unlawful 
on the ground that it was based on an unlawful decision 
adopted by or on irregularities on the part of the Spanish 
authorities. They are maintaining that the Commission did 
not check, as it ought to have done, the legality of the acts 
or omissions of the national authorities, solely in the light 
of Community law. Consequently, their argument is on a 
different footing from that of the Borelli judgment. In that 
case, the acuon was brought against a Community act 
which in law required the concurrence of the national 
authorities, and the applicants' arguments referred exclus­
ively to the illegality of the opinion given at national level. 
Notwithstanding that fact, the Borelli judgment is not 
entirely irrelevant to the present case (see below at footnote 
109). 
I - 1680 
GREENPEACE COUNCIL A N D OTHERS v COMMISSION 
in that connection to the Court of Justice for 
a preliminary ruling. They go on to stress 
that that solution was the most appropriate if 
it is borne in mind that the national court is 
the ordinary court having jurisdiction to 
apply Community law. 
74. I think it useful to point out that, as is 
apparent from the documents in the case-file 
and from the submissions on behalf of the 
parties at the hearing before the Court, cer­
tain of the appellants sought to prevent the 
construction works in question by seeking 
the appropriate remedies before the compe­
tent national courts. Those proceedings are 
still pending. On the other hand, there is no 
question pending before the Court of Justice 
submitted for a preliminary ruling by a 
Spanish court on the issue of the legality of 
the relevant Commission decision to con­
tinue financing of the works on the Canary 
Islands. Nor do I see in what way the issue 
of the legality of that decision could be 
raised in the context of national proceedings. 
Those proceedings can concern only the law­
fulness of the administrative authorizations 
granted for construction of the electricity-
generating power stations, or of the environ­
mental impact assessment. But, even if any 
such supplementary issue could, exception­
ally, be raised, M the protection likely to be 
afforded by the national court would cer­
tainly not be as far-reaching and comprehen­
sive as that which would have been secured 
by the appellants, had their action before the 
Court of First Instance been successful. The 
judgment of the national court could not 
extend to cover the issue of legality of the 
financing per se or, a fortiori, lead to the set­
ting aside of the Commission decision to 
continue financing. 
75. Finally, if the appellants satisfy the pro­
cedural requirements for contesting the 
Commission decision by means of an action 
under the fourth paragraph of Article 173 of 
the Treaty, then, whatever may be the possi­
bilities of judicial protection under national 
law, those possibilities do not in the slightest 
act as a bar to their having locus standi 
before the Court of First Instance. 
(b) Locus standi of the appellant individuals 
76. First and foremost, I do not consider 
that the appellants are entitled to challenge 
the major premiss of the reasoning followed 
by the Court of First Instance, by arguing 
that in their case the fourth paragraph of 
Article 173 of the Treaty, as consistently 
interpreted by the Court of Justice, should 
not be applied. The strict and indeed restric­
tive criterion of admissibility according to 
which the contested act must be of indi­
vidual concern to the applicants was 
expressly laid down by primary Community 
law. Properly construing that provision, the 
Court of First Instance is requiring persons 
who are not addressees of a decision of a 
Community institution to plead and prove 
the existence of certain attributes peculiar to 
them, or of factual circumstances which 
64 — The only theoretical situation which I could imagine is one 
in which the Commission decision is relied on by the Span­
ish authorities before the national courts in order to justify 
commencement of the construction of the electricity-
generating plants in the Canary Islands without an environ­
mental impact assessment. In other words the Spanish 
authorities could argue that they did not proceed to draw 
up an impact assessment in accordance with Directive 
85/337/EEC because that was not essential in the present 
case, as is corroborated, moreover, by the position adopted 
by the Commission which continued to finance the works. 
And then again, of course, in order to reject that argument, 
the nadonafcourt (on the supposition that, under the direc­
tive, such assessment was mandatory) would not need to 
decide first on the legality of the Commission decision or, a 
fortiori, to refer a question to the Court for a preliminary 
ruling. 
I -1681 
O P I N I O N O F MR COSMAS — CASE C-321/95 P 
differentiate them and individually distin­
guish them from all other persons. 65 That 
view of the matter cannot be called in ques­
tion either by the specific nature of the legal 
interest in environmental protection or by 
the matters relied on by the appellants con­
cerning modern developments in national 
and international law in the matter of envi­
ronmental protection. 66 
77. None the less, the appellants further 
submit that the Court of First Instance erred 
in law by misinterpreting the procedural rule 
contained in the fourth paragraph of Article 
173 of the Treaty and drawing erroneous 
conclusions from the case-law of the Court 
of Justice on that rule. That ground of appeal 
is formally admissible and I now turn to 
examine it. 
(i) Existing case-law 
78. (aa) It is, I think, essential to refer to the 
Court's case-law in which the abovemen-
tioned procedural requirement has been 
interpreted and particularized. In the first 
place, it should be emphasized that, notwith­
standing the apparent homogeneity of its 
judgments, at least in their formulation, the 
Court does not profess to adhere to an 
entirely immutable point of view. 67 Indeed, 
it is prepared to ease the procedural 
obstacles, when the specific nature of a case 
so requires, for the sake of affording more 
comprehensive judicial protection. 68 
79. In the first place, locus standi in favour 
of individuals presents no particular difficul­
ties in cases where they have participated in 
the preparation of the contested act, 69 or 
where Community law has made provision 
for a special procedure prior to adoption of 
the contested act, in which those individuals 
may participate and submit their observa­
tions. On the basis of that reasoning, an 
action brought by a company, which com­
plained to the Commission of an agreement 
contrary to Article 85 of the Treaty between 
65 — In any event I will not dwell on the further element as to 
the manner in which the applicants are distinguished 'in the 
same way as the person addressed'. That specific require­
ment, which is not expressly laid down in the relevant pro­
vision of the fourth paragraph of Article 173 of the Treaty, 
is correctly demanded by the Community judicature in 
cases of an economic nature but cannot play the same role 
in cases such as the present one because, otherwise, it 
would deprive that provision of all effect. The result would 
be a reductio ad absurdum in which individuals or environ­
mental associations, in proceedings against a decision of the 
Commission concerning the payment of financial aid to a 
Member State for works having an impact on the environ­
ment, are required to show that they are in law and in fact 
identical with the addressee of the decision, that is to say 
may be assimilated to the State to which the financing is 
allocated. In other respects the 'distinguishing' requirement 
in regard to applicants remains entirely legitimate and cur­
rent, 
66 — The procedural restrictions contained in the fourth para­
graph of Article 173 of the Treaty cannot be called in ques­
tion even where the interest at stake is the protection of the 
environment. The importance of preserving the environ­
ment, underlined by the Rio Declaration, Agenda 21 and 
other associated texts, cannot exempt the appellants horn 
the aforementioned procedural restrictions. Furthermore, 
the Court recently held that the Fifth Environmental 
Action Programme, approved by the Council and represen­
tatives of the Member States on 1 February 1993, aims to 
create a framework for determining and giving effect to 
Community policy in the environmental sector, but does 
not contain binding rules of law (see Associazione Agricol­
tori della Provincia judgment (paragraph 32), cited above at 
footnote 33). 
67 — I refer, for example, to the alteration in the case-law 
brought about by the Court in its judgment in Case 
C-152/88 Sofrimport [1990] ECR I-2477 in relation to an 
earlier authority. On that case, see below at paragraph 86. 
68 — For example, the Court interpreted the relevant procedural 
criterion broadly and in a manner favourable to the appli­
cants in its judgment in Case 294/83 Les Verts [1986] ECR 
1339 in which it held that not only the political groups in 
existence when the decision of the President of the Parlia­
ment was taken on the allocation of credits authorized to 
cover the expenses of the political groups for the 1982 elec­
tions, but also groups unknown at that time, were entitled 
to bring proceedings against that decision. 
69 — See judgment in Case 264/82 Timex v Council and Com­
mission [1985] ECR 849 on the adoption of an anti­
dumping regulation. 
I - 1682 
GREENPEACE COUNCIL A N D OTHERS y COMMISSION 
its competitors, against the Commission 
decision exempting that agreement under 
Article 85(3) from the prohibition laid down 
in Article 85(1), was held to be admissible. 70 
Also held to have standing have been per­
sons who complained to the Commission of 
unlawful State aid and submitted observa­
tions in the procedure under Article 93(2) of 
the Treaty. 71 
80. The justification, in the final analysis, for 
the Court's upholding the admissibility of 
the actions in the above cases was elucidated 
in Cofaz 72 as follows: 'It is clear from a 
consistent line of decisions of the Court that 
persons other than those to whom a decision 
is addressed may claim to be concerned 
within the meaning of the second paragraph 
of Article 173 only if that decision affects 
them by reason of certain attributes which 
are peculiar to them, or by reason of circum­
stances in which they are differentiated from 
all other persons, and by virtue of these fac­
tors distinguishes them individually just as in 
the case of the person addressed (...). More 
particularly, as regards the circumstances 
referred to in that judgment, the Court has 
repeatedly held that where a regulation 
accords to applicant undertakings procedural 
guarantees entiding them to request the 
Commission to find an infringement of 
Community rules, those undertakings 
should be able to institute proceedings in 
order to protect their legitimate interests (...)' 
(emphasis added). 73 
81. Conversely, where such a procedure is 
not provided for under Community law, it is 
difficult for individuals in an analogous situ­
ation to those mentioned above to secure 
protection by the Community judicature. 74 
82. (bb) In other cases actions brought by 
individuals frequendy run up against the 
70 — The Court in that case based itself on the significance of the 
procedure under Article 3 of Regulation N o 17/62 under 
which certain persons are authorized to request the Com­
mission to establish an infringement of Article 85 of the 
Treaty. Accordingly, it is logical for the same persons to 
have access to the courts in order to protect their legal 
interests recognized by Regulation N o 17/62 (see judgment 
in Case 26/76 Metro v Commission [1977] ECR 1875). 
71 — Judgment in Case 169/84 Cofaz and Others v Commission 
[1986] ECR 391; judgment In Case C-198/91 Cook v Com­
mission [1993] ECR I-2487. The same applies, where the 
procedure under that paragraph was not followed by the 
Commission, to persons who could have submitted obser­
vations, had the Article 93(2) procedure been implemented 
(judgment in Case C-225/91 Matra v Commission [1993] 
ECR I-3203). In that judgment the Court emphasized the 
special nature of the procedure under Article 93(2) of the 
Treaty and the right to a hearing afforded by that procedure 
to 'interested' parties. It is to be noted that a competitor 
undertaking may likewise challenge a Commission decision 
finding that a merger decision between undertakings is 
compatible with the common market, where that undertak­
ing submitted observations under the procedure laid down 
in Regulation N o 4064/89 and received the reply that its 
observations would be fully taken into consideration. A 
competing undertaking may even contest a statement by the 
Commission that the merger in question does not have a 
Community dimension and thus does not come within the 
scope of Regulation N o 4064/89. That is also the position 
hitherto taken by the Court of First Instance in Case 
T-2/93 Air France v Commission [1994] ECR II-323 and in 
Case T-3/93 Air france v Commission (cited above at foot­
note 19). 
72 — See footnote 71 above. 
73 — Paragraphs 22 and 23 of the judgment, 
74 — For example, a Commission decision granane EAGGF 
financing to certain undertakings cannot be challenged by 
competitors of those undertakings (judgment in Joined 
Cases 10/68 and 18/68 Eridania v Commission [1969] ECR 
459). For the same reason, moreover, persons in receipt of 
State aid are not deemed to be individually affected by a 
Commission decision declaring such aid incompatible with 
the common market (judgment in Joined Cases 67/85, 
68/85 and 70/85 Van der Kooy — see footnote 12 above). 
I - 1683 
OPINION OF MR COSMAS — CASE C-321/95 P 
Court 's settled case-law to the effect that a 
measure cannot concern applicants individu­
ally when it applies to objectively defined 
situations and produces legal effects on cat­
egories of persons determined in a general 
and abstract manner. It should also be noted 
that whether a measure challenged is objec­
tive in nature must not be confused with the 
number of persons affected by it. A single 
person may be affected by a decision, but 
that does not mean that such person is 'indi­
vidually' affected by it for the purposes of 
the fourth paragraph of Article 173 of the 
Treaty. 75 Again, '(...) the possibility of deter­
mining more or less precisely the number or 
even the identity of the persons to whom a 
measure applies by no mean implies that it 
must be regarded as being of individual con­
cern to them as long as it is established that 
such application takes effect by virtue of an 
objective legal or factual situation defined by 
the measure in question (...)'. 76 
83. (cc) Furthermore, the Court appears to 
accept that an act is of individual concern to 
the applicant only where he belongs to a 
'closed class' of persons. I nevertheless 
believe that in that regard the Court's case-
law shows evidence of significant develop­
ments and fluctuations. 
(1) Initially, as for example in the Toepfer77 
and Bock 78 cases, the Court deemed it 
decisive, in favour of the admissibility of 
an action, that 'the number and identity 
of importers concerned in this way was 
already fixed and ascertainable' before 
the date of adoption of the decision. It 
also considered that the Commission was 
in a position to know that its decision 
would affect the interests and situation of 
those importers 'alone'. It went on to 
conclude that 'the factual situation thus 
created differentiates the latter from all 
other persons and distinguishes them 
individually just as in the case of the per­
son addressed'. 79 
(2) Subsequently, the Court appears to have 
determined the closed class of potential 
applicants to whom a contested decision 
is of individual concern in a manner 
more favourable to individuals than was 
originally the case. In Piraiki-Patraiki, 80 
a case concerning an action for the 
annulment of a Commission decision 
authorizing France to adopt protective 
measures against imports of cotton yarn 
75 — Sec for example judgment in Spijker (cited above at foot­
note 7). In that judgment it was held that the decision 
whereby the Commission permitted Belgium, Luxembourg 
and the Netherlands to exclude products such as brushes, 
brooms and similar products imported from China did not 
concern the applicant in spite of the fact that it was at the 
time the sole importer into those Member States of the rel­
evant products. The Court considered that the Commission 
decision affected the applicant qua importer of those prod­
ucts in the same way as any other undertaking actually or 
potentially in the same situation. 
76 — Judgment in Case C-209/94 P Buralux [1996] ECR I-615, 
paragraph 24. See also judgment in Case C-264/91 Abertal 
and Others v Council [1993] ECR I-3265, paragraph 16. 
77 — Judgment in Joined Cases 106/63 and 107/63 Toepfer v 
Commission [1965] ECR 405. 
78 — Judgment in Case 62/70 Bock v Commission [1971] ECR 
897. 
79 — See Bock, cited above (paragraph 10). 
80 — Case 11/82 Piraiki-Patraiki v Commission [1985] ECR 207. 
I - 1684 
GREENPEACE COUNCIL A N D OTHERS v COMMISSION 
of Greek provenance, brought by a 
group of Greek exporters, the Court 
stated that: '(...) it must be held that the 
fact that, before the adoption of the 
decision at issue, they had entered into 
contracts which were to be carried out 
during the months to which the con­
tracts applied constitutes a circumstance 
which distinguishes them from any other 
person concerned by the decision, in so 
far as the execution of their contracts 
was wholly or partly prevented by the 
adoption of the decision'. 81 It is note­
worthy that in that case the Commission 
called in question the admissibility of the 
actions in reliance on the fact that, when 
it adopted its decision, it was unaware of 
the number of contracts which had been 
entered into in respect of the period cov­
ered by the decision. The Court held that 
'in that respect it must be observed that 
the reply to be given to the question 
whether and to what extent the Commis­
sion was aware which Greek exporters 
had entered into contracts covering the 
period of application of the contested 
decision depends on the interpretation 
given to Article 130 of the Act of Acces­
sion, and in particular on the question 
whether the Commission, before author­
izing a protective measure under that 
provision, is obliged to make appropriate 
enquiries as to the economic effects of the 
decision to be taken and the undertakings 
which would be affected by it (...)'. 82 I 
would observe that in that judgment the 
Court distanced itself from the condition 
originally laid down concerning defini­
tion of the 'closed class', namely that the 
persons comprising that closed class had 
of necessity to be known to the auth­
ority adopting the contested act at the 
time of its adoption. In coming to the 
view which it took on the matter, the 
Court took account of the special nature 
of the Commission's obligations when 
adopting the contested decision and the 
interrelation between those obligations 
and protection of the applicants' legal 
interests. 
84. That judicial trend was reaffirmed in 
Sofrimport. 83 The case concerned an action 
brought by an importer of apples from Chile 
against the Commission regulation suspend­
ing the issue of import licences for that fruit 
and determining import quotas. Notwith­
standing the Advocate General's Opinion to 
the contrary, 84 the Court considered import­
ers of Chilean apples which were in transit 
when the regulation at issue was adopted ' t o 
constitute a restricted group which is suf­
ficiently well defined in relation to any other 
importer of Chilean apples and cannot be 
extended after the suspensory measures in 
question take effect'. 85 It may be seen that 
the Court no longer refers to persons 
defined in number and identity but to 'a 
restricted group', 'sufficiently well defined'. 
81 — Paragraph 19 of the Piraiki-Patraiki judgment cited in the 
preceding footnote. 
82 — Paragraph 21 of the Piraiki-Patraiki judgment cited above 
at footnote 80 (emphasis added). 
83 — Cited above at footnote 67. 
84 — Opinion of Advocate General Tesauro of 22 November 
1989, Sofrimport [1990] ECR I-2492. 
85 — Paragraph 11 of the Sofrimport judgment, cited above at 
footnote 67. 
I - 1685 
OPINION OF MR COSMAS — CASE C-321/95 P 
85. In reaching that conclusion, the Court 
had regard, as in Piraiki-Patraiki, to the 
Commission's specific obligations, under the 
applicable Community law, in regard to the 
framing of its contested decision. In actual 
fact, a Council regulation had imposed on 
the Commission the requirement to take into 
consideration, when adopting protective 
measures, the specific situation of goods in 
transit to the Community. It is also notewor­
thy that in Sofrimport it is expressly stated 
that, where a Community rule affords special 
protection to a specific group of importers, 
'they must therefore be able to enforce 
observance of that protection and bring legal 
proceedings for that purpose'. 86 
86. The Sofrimport judgment is also of inter­
est from another point of view. In that judg­
ment the Court accepted that it was possible 
for there to be a 'closed class' of persons — 
entitled to bring an action under Article 173 
of the Treaty — within an 'open class' of 
persons to whom that procedural possibility 
is not available. Thus, the Community act 
does not need to concern solely the members 
of that closed class (in Sofrimport a specific 
group of importers), but may also affect, in 
an objective manner of course, persons com­
prising the open class of actual or potential 
importers. 87 None the less, it is essential for 
that closed class to be 'sufficiently well 
defined'. 88 For the purposes of such defini­
tion, the Court attached particular impor­
tance to the nature and extent of the Com­
mission's obligations under the applicable 
legislation. 
(3) I wish now to draw attention to 
two judgments of the Court which 
highlight the importance attached by the 
Community judicature to the effects 
which the contested decision is likely to 
have on the applicant. Those effects may 
give rise to a factual situation which 
sufficiently 'distinguishes' the applicant. 
87. In Extramet, 89 an importer sought the 
annulment of a regulation imposing anti­
dumping duties on imports into the Com­
munity of certain products from China and 
86 — Paragraph 12 of the Sofrimport judgment. 
87 — The Court appears to have abandoned the opposing view­
point which it had adopted in Case 45/81 Moksel[1982] 
ECR 1129. In that case an exporter of beef meat had 
brought an action against a Regulation suspending advance 
fixing of export refunds for beef meat, relying for locus 
standi on the fact that it belonged to a closed class, known 
in advance and fully ascertained, of undertakings which had 
lodged requests for refunds before the entry into force of 
the regulation and whose requests were still pending. The 
Court did not accept the applicant's submissions, notwith­
standing the Advocate General's Opinion to the contrary, 
taking the view that the class of persons in the aggregate 
concerned by the regulation was not closed. 'Since Article 1 
of Regulation N o 3318/80 concerns both earlier applica­
tions and those lodged during the period of suspension, the 
nature of the contested measure as a regulation is not called 
in question merely by the fact that it may be possible to 
determine the number or even the identity of certain traders 
concerned, especially where such a possibility by definition 
did not exist for other traders also covered by Regulation 
N o 3318/80' (paragraph 17 of the judgment). 
88 — Paragraph 11 of the Sofrimport judgment, cited above at 
footnote 67. 
89 — Judgment in Case C-358/89 Extramet Industrie v Council 
[1991] ECR I-2501. 
I - 1686 
GREENPEACE COUNCIL A N D OTHERS v COMMISSION 
the Soviet Union. On the basis of the case-
law as it then stood, a distinction was made 
between producers, exporters and the com­
plainants, on the one hand, and independent 
importers, on the other. As regards the latter, 
the issue of admissibility was dealt with by 
the Court in a particularly succinct man­
ner. 90 Consequently, Extramet, as an inde­
pendent importer of calcium metal, could 
not be deemed to be affected by the con­
tested regulation having regard to its status, 
which did not differentiate it from any other 
undertaking already carrying on the same 
activities or capable of doing so in the 
future. 91 
88. None the less, Advocate General Jacobs 
proposed that the Court should remove that 
obstacle, stating as follows: 'I am accordingly 
of the opinion that the Court should recog­
nize that a measure imposing an anti­
dumping duty is of direct and individual 
concern to any undertaking which is able to 
establish (...) that it is identified, explicitly or 
implicity, by the measure in question (...). 
The Court should in my view clarify the 
case-law by expressly acknowledging that, at 
least in the anti-dumping field, it is not nec­
essary for an applicant, in order to establish 
standing, to address the additional question 
of whether the contested measure constitutes 
a regulation or a decision. 
This approach accords with the purpose of 
Article 173, which is designed to enable 
persons to challenge measures having a 
particular impact on them, while limiting the 
right to challenge regulations so that there is 
no risk of their annulment being sought by 
an unlimited class of applicants. (...)'. 92 
89. For its part the Court, after recalling that 
an anti-dumping regulation may affect 
undertakings owing to certain attributes 
peculiar to them and which differentiate 
them from all other persons, held that 'the 
applicant has established the existence of a 
set of factors constituting such a situation 
which is peculiar to the applicant and which 
differentiates it, as regards the measure in 
question, from all other traders. The appli­
cant is the largest importer of the product 
forming the subject-matter of the anti­
dumping measure and, at the same time, the 
end-user of the product. In addition, its busi­
ness activities depend to a very Urge extent 
on those imports and are seriously affected 
90 — Regulations imposing temporary and definitive antidump­
ing duties have been held to constitute, as regards indepen­
dent importers, 'measures of general application ... because 
they apply to objectively determined situations and entail 
legal effects for categories of persons regarded generally and 
in the abstract' (judgment in Case 307/81 Alusuisse v Coun­
cil and Commission [1982] ECR 3463, paragraph 9). In 
accordance with its settled case-law, the Court had refused 
to recognize a right of action in favour of independent 
importers even where the case concerned the sole importer 
within a State of the product on which the duty was 
imposed (orders in Case 279/86 Sermes v Commission 
[1987] ECR 3109 and in Case 205/87 Nuova Ceam v Com-
mission [1987] ECR 4427) on the ground that 'a measure 
does not cease to be a regulation because it is possible to 
determine the number or even the identity of the persons to 
whom it applies at any given time as long as it is established 
that such application takes effect by virtue of an objective 
legal or factual situation denned by the measure in relation 
to its purpose' (judgment in Case 6/68 Zuckerfabrik 
Watenstedt [1968] ECR 595, and Alusuisse (paragraph 11)). 
91 — In other words, the regulation, as regards independent 
importers, could not be regarded as equivalent to a decision 
concerning them individually but contained general and 
abstract rules of law which by their nature did not affect 
persons individually. 92 — Paragraphs 75 and 76 of the Opinion (emphasis added). 
I -1687 
O P I N I O N OF MR COSMAS — CASE C-321/95 P 
by the contested regulation in view of the 
limited number of manufacturers of the 
product concerned and of the difficulties 
which it encounters in obtaining supplies 
from the sole Community producer, which, 
moreover, is its main competitor for the pro­
cessed product'. 9 3 
90. In Codorniu 94 the Court was called 
upon to adjudicate on an action brought by a 
Spanish producer of sparkling wine against a 
provision of a regulation laying down the 
conditions for use of the term 'crémanť for 
sparkling wines. The Council raised an 
objection of inadmissibility, contending that 
that measure was of a purely legislative 
nature and did not concern the applicant, 
except in its capacity as a producer using the 
term 'crémanť, that is to say in the same way 
as it concerned any other producer in the 
same situation. In his Opinion in that case, 9 5 
Advocate General Lenz found first, as a mat­
ter of undisputed fact, that the contested 
measure was of a legislative nature. Notwith­
standing that fact, he did not consider that 
the action should be dismissed without more 
ado as inadmissible, or that detailed examina­
tion was required of the question whether 
the measure in point, though overall of a leg­
islative nature, nevertheless had the effect of 
a decision as regards the applicant. Instead, 
he examined whether the measure was of 
'individual' concern to the applicant. In 
order to reply to that question, the Advocate 
General first considered whether, amongst 
the undertakings to which the prohibition on 
use of the term 'crémanť was of concern, 
there could be identified a category compris­
ing a fixed number of persons which could 
not be enlarged after adoption of the meas­
ure at issue. The applicant undertaking did in 
fact come within that clearly defined cat­
egory. 9 6 However, that factor is not suffi­
cient because, in accordance with the case-
law, there must be a specific connection 
between the applicant's situation and the 
contested measure. A particular link of that 
kind, which also enables the 'class' of poten­
tial applicants under the fourth paragraph of 
Article 173 of the Treaty to be determined, 
may be that identified in the Extramet judg­
ment. The relevant criterion is the effects 
which a measure has on a certain undertak­
ing and which may be differentiated from the 
effects of that measure on other persons. 9 7 
Finally, the Advocate General, having regard 
to all the evidence adduced by the applicant 
in connection with the impact on it of the 
contested measure, concluded that 'the appli­
cant is also distinguished from the category 
of traders affected by the effects which the 
measure has on its undertaking, and the 
measure is thus of individual concern to 
it'. 9 8 The Court reached the same conclusion 
93 — Paragraph 17 of the Extramet judgment, cited above at 
footnote 89 (emphasis added). 
94 — Judgment in Case C-309/89 Codorniu v Council [1994] 
ECR I-1853. 
95 — Opinion of 27 October 1992. 
96 — That is to say, producers using the term 'crémanť before 
entry into force of the regulation at issue. 
97 — The criterion of effects on the situation of the applicant is 
not applied only in Extramet and Codorniu. Also in cases 
where the applicants participated in the preparation of the 
contested act and thus appear to be individually affected by 
it (see paragraph 79 above), the Court accepts that the pre­
conditions of Article 173 are met only if the damage which 
the applicants are likely to sustain is of a certain serious­
ness. Thus, undertakings which participated in the pro­
cedure under Article 93(2) of the Treaty in order to oppose 
State aid have standing to bring an action before the Com­
munity judicature '(...) provided, however, that their pos­
ition on the market is significantly affected by the aid which 
is the subject of the contested decision (...)' (see Cofaz, 
cited above at footnote 71, paragraph 25). 
98 — Paragraph 64 of the Opinion. 
I-1688 
GREENPEACE COUNCIL A N D OTHERS v COMMISSION 
on the basis of evidently more elliptical rea­
soning. 99 
91. The significance and extent of mitigation 
by the Court, in Extramet and Codorniu, of 
the rigour of the case-law should not, how­
ever, be overstated. At least I infer as much 
from the Buralux judgment mentioned 
above. 100 In that case the Court, on appeal, 
upheld as correct an order of the Court of 
First Instance which had dismissed as inad­
missible an action for annulment of provi­
sions of a regulation concerning the monitor­
ing and control of shipments of waste within 
the Community. The action had been 
brought by undertakings engaged in the col­
lection, shipment and dumping of household 
waste. The Advocate General proposed that 
the Court should declare the action brought 
by one of the undertakings to be admissible 
under the Extramet 101 criteria. The Court 
did not follow that proposal, regarding as 
decisive the fact that the legal effects which 
the contested regulation was likely to pro­
duce concerned categories of persons in a 
general and abstract manner. 
92. I do not believe, however, that that judg­
ment constitutes a departure from Extramet. 
The Court was seeking to exclude cases in 
which an increasingly broad interpretation 
and application of the procedural provisions 
of the fourth paragraph of Article 173 of the 
Treaty would lead to recognition of a right 
of action by individuals against rules of 
Community law and not against individual 
decisions. In other words, in Buralux, the 
Court wished to safeguard the legislative 
nature of the regulation, as it did in Deutz 
and Geldermann. 102 
(ii) The procedural restrictions in the fourth 
paragraph of Article 173 of the Treaty and 
the particular nature of the present dispute 
93. (aa) I shall first examine whether, on the 
basis of the inferences to be drawn from the 
case-law referred to above, the contested 
decision of the Commission to continue 
financing of the construction works for the 
two power stations in the Canary Islands 
may be deemed to be of individual concern 
to the appellants. 
99 — 'Codorniu registered the graphic trade mark "Gran Cre­
mam de Codorniu" in Spain in 1924 and traditionally used 
that mark both before and after registration. By reserving 
the right to use the term "crémant" to French and Luxem­
bourg producers, the contested provision prevents Codor­
niu from using its graphic trade mark. It follows that 
Codorniu has established the existence of a situation 
which from the point of view of the contested provision 
differentiates it from all other traders' (paragraphs 21 and 
22 of the judgment). 
100 — Case C-209/94 P Buralux v Commission [1996] ECR 
I-615; and see footnote 29 above. 
101 — 'On tlie basis of these criteria it may very well be assumed 
that in this case the appellants by reason of special per­
sonal circumstances are differentiated from all other per­
sons concerned. Buralux, together with its partners, is the 
largest importer, at least in the France/Germany area, and 
as it cannot fulfil its continuing contracts it is affected par­
ticularly seriously by the regulation and the import prohi-
bmon envisaged therein. These contracts are almost all 
valid beyond the date on which the regulation was to 
become applicable. In my view it may therefore be stated 
that in this case it is of individual concern to the appel­
lants' (Opinion of Advocate General Lenz, paragraph 33). 
102 — Judgment in Case 26/86 Deutz and Geldermann [1987] 
ECR 941. On that point, see paragraphs 100 and 101 
below. 
I -1689 
OPINION OF MR COSMAS — CASE C-321/95 P 
94. As I stated above, the appellants have 
relied in support of their action both on the 
specific obligations imposed on the Commis­
sion on adoption of the contested act, requir­
ing it to monitor whether the works were 
progressing in conformity with Community 
environmental law, and on the rights which 
they consider are conferred on them by 
Directive 85/337/EEC in connection with 
the environmental impact assessment for 
works such as those in the present case. 
However, they do not call in question the 
correctness of the lower court's reasoning to 
the effect that the fact that certain of the 
appellant individuals lodged complaints with 
the Commission or exchanged correspon­
dence with it does not in itself suffice for the 
contested act to be deemed to concern them 
individually. 103 Consequently, I shall not 
dwell on that issue. 
95. It could nevertheless be argued that, 
whilst for the adoption of the contested 
decision no direct provision is made for par­
ticipation by interested parties, 104 none the 
less, the procedure laid down in Article 6(2) 
of Directive 85/337/EEC1 0 5 should be 
regarded as such a participatory procedure in 
relation to the adoption of the contested 
decision. Thus, Community law may not 
have included individuals in the procedure 
for preparation of Commission decisions on 
financing of works having an environmental 
impact, but it does require the Commission 
to verify prior to continuation of financing 
whether the relevant works are being carried 
out in conformity with Community provi­
sions, including the provision contained in 
Directive 85/337/EEC allowing the 'public 
concerned' to participate in the drawing up 
of the environmental impact assessment. It 
could be inferred from the combination of 
those obligations on the Commission and 
from the rights in favour of the 'public con­
cerned' conferred by Directive 85/337/EEC 
that those persons comprising the 'public 
concerned' are sufficiently differentiated in 
relation to the contested act. They are there­
fore distinguished from all other persons 
because Directive 85/337/EEC has afforded 
them concrete procedural guarantees analo­
gous to those in Cofaz, Metro and 
Matra, 106 cited above. In other words, by 
dint of reasoning by analogy, it might be 
inferred from the Commission's specific 
obligation to monitor whether the works 
financed are progressing on the basis of 
Community environmental law — and, thus, 
in accordance with the provisions of Direc­
tive 85/337/EEC — that the persons on 
whom rights are conferred by Directive 
85/337/EEC constitute a 'closed class' and 
thus have locus standi by analogy with the 
Piraiki-Patraiki and Sofrimport cases. 107 
96. I cannot adhere to that view or, at least, 
cannot regard it as founded on existing case-
law. The procedural guarantees relied on by 
the appellants are contained in the text of a 
directive and not a regulation, unlike the 
situation before the Court in Cofaz and 
Metro. That difference is not without impor-
103 — See paragraph 56 of the order appealed against. 
104 — For a discussion of an analogous problem see Case 
C-142/95 P, cited above at footnote 33. 
105 — See paragraphs 58 and 59 above. 
106 — See footnotes 70 and 71 above. 
107 — See footnotes 80 and 67 above. 
I - 1690 
GREENPEACE COUNCIL A N D OTHERS y COMMISSION 
tance. Regulations and directives do not have 
the same binding effect as to their content. 
Furthermore, the cases in which the Court 
founded itself, in conferring locus standi on 
applicants, on the existence of procedural 
guarantees were concerned purely with 
Community-law procedures, implemented 
exclusively by Community bodies. In con­
trast, the procedure for drawing up an envi­
ronmental impact assessment is national in 
character, is governed by rules of both Com­
munity and national origin and is a matter 
for national authorities. But, irrespective of 
those differences,, 108 it would be difficult to 
equate the procedure provided for in Direc­
tive 85/337/EEC with the procedure for the 
adoption of the contested Commission 
decision, in respect of which there is no 
direct provision for participation by inter­
ested parties. Finally, it does not follow from 
the nature of the obligation imposed on the 
Commission in connection with the adop­
tion of the contested act that a group of indi­
viduals has locus standi to bring proceedings 
in the event of any infringement of that obli­
gation. That obligation consists in the moni­
toring of the application of Community leg­
islation by the national authorities which 
implement the funded projects and does not 
expressly concern the protection of certain 
persons. But even if the monitoring obliga­
tion — because it extends to cover the cor­
rect application of Directive 85/337/EEC — 
is deemed to include those provisions of that 
directive which provide for participation of 
the 'public concerned' in the drawing up of 
the environmental impact assessment, that 
does not automatically mean that those per­
sons comprising the 'public concerned' are 
individually affected by the contested Com­
mission decision. The 'public concerned' 
under Directive 85/337/EEC cannot be 
regarded as constituting a 'closed class' as 
defined in the Court's case-law. Moreover, 
the concept of 'public concerned' is not suf­
ficiently defined by Directive 85/337/EEC. 
The definition of that term is left to the 
national courts. Thus, in Directive 
85/337/EEC Community law dictates the 
protection of a group of persons which, 
however, it does not precisely define. 109 
97. Accordingly, no inference may be drawn 
directly, either from the obligations imposed 
108 — Those differences are not so crucial if it is accepted that, 
for the purposes of Directive 85/337/EEC, national 
authorities are in essence exercising a Community compe­
tence conferred on them by the directive, that is to say in 
the context of rules of Community law. That observation 
cannot, however, detract from the national character of 
acts adopted by national bodies pursuant to Directive 
85/337/EEC. 
109 — Moreover, if, finally, a Commission decision, such as the 
one at issue, were deemed individually to affect those per­
sons constituting the public to which Directive 
85/337/EEC refers, then, whenever an environmental 
impact assessment is required for infrastructure works 
benefiting from financing (most frequently the case), a 
particularly wide category of persons could bring proceed­
ings before the Community judicature against decisions of 
the Commission concerning financing of the works, bas­
ing their locus standi on the non-existence of or defects in 
the environmental impact assessment. A development of 
that kind would run directly counter to the judgment in 
Barelli (see footnote 32), according to which the Court 
does not have jurisdiction to decide upon the lawfulness of 
acts of a national authority, even where the national act is 
adopted in the framework of the Community decision­
making procedure. In any event, however, the majority of 
such proceedings would be inadmissible for lack of any 
legal interest- We would thus arrive at the paradoxical situ­
ation in which the procedural conditions laid down in the 
fourth paragraph of Article 173 of the Treaty — that the 
contested act must individually affect the applicant 
— would be met more readily than the requirement of the 
existence of a legal interest. 
It might, finally, be objected that relaxation to such an 
extent of the locus standi conditions is justified in extreme 
cases, such as the present one, that is to say where the 
Commission declines to perform its supervisory function 
in order to bring to an end a substantial irregularity, such 
as failure to obtain an environmental impact assessment. I 
cannot adopt that view of the matter, even though I 
acknowledge its expediency, because I would then be 
interpreting the procedural requirements as to admissibil­
ity after first appraising the substance of the dispute, and 
thus in a manner which would be methodologically incor­
rect- However, I would also refer to the view which I 
develop in footnote 128 below. 
I - 1691 
O P I N I O N OF MR COSMAS — CASE C-321/95 P 
on the Commission on adoption of the con­
tested act or from the provisions of Directive 
85/33 7/EEC, to the effect that the contested 
act of the Commission individually con­
cerned the appellant individuals within the 
meaning of the fourth paragraph of Article 
173 of the Treaty, as interpreted in the 
Court 's case-law. 
98. (bb) In light of the foregoing, the Court 
of First Instance in fact faithfully followed 
the case-law established hitherto. If the sole 
criterion of correct interpretation of th 
fourth paragraph of Article 173 of the Treaty 
is the reiteration of the viewpoint hitherto 
judicially accepted, then the order appealed 
against is unimpeachable. 
99. Nevertheless, I take the view that the 
Court should examine the possibility of tak­
ing a further step forward from certain of its 
hitherto settled positions. The point on 
which I consider it expedient to submit to 
particular examination the solution adopted 
by the Court of First Instance, and on which 
the need for advancement in the case-law is 
brought into sharp relief, is that part of the 
lower court's reasoning in which the Com­
mission's contested decision is deemed not 
to concern the appellants individually on the 
ground that it affected them in the same way 
as any other person living, staying or carry­
ing on business on Gran Canaria and Tener­
ife. According to the Court of First Instance, 
the contested decision 'for them (...) is a 
measure whose effects are likely to impinge 
on, objectively, generally and in the abstract, 
various categories of person (...)'. 110 
100. In the first place, I consider it relevant 
to emphasize that the general and abstract 
nature of the impingement on the appellant 
individuals, on -which the order of the Court 
of First Instance dismissing their action is 
based, is not due to the legislative nature of 
the Commission's contested decision. The 
significance of that point may, of course, be 
doubted. In accordance with existing case-
law, if a person is affected by an act, whether 
of an individual nature or in the nature of a 
regulation, in a general and abstract manner, 
that finding suffices to deny that person locus 
standi, without the need for further distinc­
tion as between the legislative or non-
legislative nature of that act. 111 
101. Yet I do not believe that the nature of 
the contested act is entirely without impor­
tance. When that act is of a legislative nature, 
the Court is particularly strict in denying 
individuals a right of action, precisely in 
order to safeguard the legislative nature of 
the act. 112 In accordance with the expressly 
formulated intention of the framers of the 
Treaty, a rule of Community law cannot 
form the subject-matter of proceedings 
brought by persons other than those men­
tioned in the second paragraph of Article 173 
of the Treaty. That specific bar does not 
apply in cases where the contested act does 
not contain rules of law, thus where the 
110 — Sec paragraph 54 of the order appealed against. 
111 — See, for example, the judgment in Case 97/85 Deutsche 
Lebensmittelwerke v Commission (cited above at footnote 
7). Proceedings brought by sellers of margarine against the 
Commission decision in favour of Germany in connection 
with the promotion of sales of butter in the West Berlin 
market were held to be inadmissible. According to the 
Court 's judgment, 'although the contested decision affects 
the applicants, that is only because of the effects it pro­
duces on their position on the market. In that regard, the 
decision is of concern to the applicants just as it was to 
any other person supplying margarine on the West Berlin 
market while the contested operation was in progress, and 
it is not therefore of individual concern to them for the 
purposes of the second paragraph of Article 173 of the 
EEC Treaty' (paragraph 11). 
112 — See paragraph 92 above. 
I - 1692 
GREENPEACE COUNCIL A N D OTHERS v COMMISSION 
general and objective nature of the results 
produced by the act are due not to its legisla­
tive nature but to its subject-matter. In this 
problematical context, I believe the appel­
lants' submission as to the particular nature 
of the consequences which an intervention in 
the environment has, or is likely to have, to 
be worthy of consideration. 
102. For environmental protection is indeed 
a matter of general interest. Conservation of 
the environment is a legal interest theoreti­
cally shared by all natural persons; it thus 
has a communal dimension. 113 Furthermore, 
the more significant is the intervention in or 
impingement on the environment, the greater 
is the number of persons affected thereby. 
103. That unexceptionable statement cannot 
of course lead, on account of the special 
nature of the environmental legal interest, to 
the setting aside of the procedural require­
ments laid down in the fourth paragraph of 
Article 173 of the Treaty. The conferral of a 
right of action before the Court of First 
Instance on every person whose interest in 
conservation of the environment is affected 
by an act of a Community institution would 
be tantamount to acceptance of an actio 
popularis in all cases having an environmen­
tal dimension. As I stated above, 114 a depar­
ture in the case-law in that direction is 
impossible because, apart from the practical 
obstacles which would be encountered, it 
would run counter to the letter of the fourth 
paragraph of Article 173 of the Treaty. It 
would equally be impossible to lay down 
specifically for cases raising issues of envi­
ronmental protection requirements as to 
locus standi which differ from those con­
tained in the abovementioned provision. In 
the final analysis, the starting-point for 
appraisal of locus standi cannot but be the 
same in all cases, irrespective of the subject-
matter of the dispute: the applicant must be 
individually affected by the act which he 
contests. 
104. The points which I have made concern­
ing the particular characteristics of the legal 
interest in the environment and its protec­
tion are not intended to overturn the settled 
positions described above, but to secure 
what is, in my view, the correct application 
of the fourth paragraph of Article 173 of the 
Treaty. 115 In light of the particular nature of 
the issue of environmental protection, I con­
sider that the Community judicature, in par­
ticular in cases where that protection is likely 
113 — For that reason, moreover, it has been recognized in cer­
tain Member States as a fundamental social right. 
114 — See paragraphs 53 and 76 above. 
115 — I believe, moreover, that judicial protection within a legal 
order governed by the rule of law must seek to safeguard 
the rights and interests conferred by that legal order on 
persons subject to it. The procedural dimension of the 
legal interest, as the precondition of admissibility of a legal 
action, cannot be distinguished in an absolute manner 
from the substantive dimension of the legal interest, which 
the legal order seeks to safeguard in favour of the person 
entitled. Thus, account should be taken of the particular 
nature of each interest protected by the Community legal 
order in determining the specific procedural conditions 
under which the person in whose favour the rules enshrin­
ing that interest were created may seek judicial assistance 
in upholding those principles. I further believe that to 
interpret the written procedural rules-in such a manner as 
entirely to debar a person entitled to a right or legal inter­
est (in the substantive sense of that term) from access to 
justice to defend his interests under the legal order, first, 
renders nugatory recognition by substantive law of those 
rights and legal interests and, secondly, must be regarded 
as wrong in law, inasmuch as the procedural provisions arc 
laid down by the legal order in order to provide a struc­
tural framework, in so far as practicable, to give effect to 
the rights or legal interests conferred on persons subject to 
it, and not — absolutely and uniformly — in order 
entirely to debar them from judicial protection. Other­
wise, if persons enjoying the protection of certain rules of 
law are completely debarred by procedural rules from 
obtaining judicial protection, the legal order is simply 
abdicating its function. 
I - 1693 
O P I N I O N OF MR COSMAS — CASE C-321/95 P 
to have been undermined by a non-
legislative act of a Community body, must 
not rest content with the self-evident finding 
that the likely harm to the environment by 
its very nature affects categories of persons 
in a general, objective and abstract manner, 
and must not, on that ground alone, dismiss 
the action brought. That is particularly so 
when the Community body was under a 
specific and clear obligation to take account, 
on adoption of the contested decision, of the 
factor of conservation of the environ­
ment. 116 On this point, then, I would draw 
the attention of the Court to a possible and, 
in my view, appropriate easing of the 
requirements laid down in the case-law. 
Allow me to explain: 
A decision which has an impact on the envi­
ronment does indeed affect, or may affect, 
large categories of citizens in a general and 
abstract manner. None the less, it is not 
impossible for one or more of the persons 
affected, who constitute a 'closed class', to be 
particularly affected, and thus to be distin­
guished from any other person, that is to say 
to be differentiated for the purposes of the 
fourth paragraph of Article 173 of the Treaty. 
An intervention in the environment, such as 
that in point in the present case, is located in 
a specific geographical area, and the extent of 
its impact is lessened the further away one is 
from the area of the intervention. 117 Accord­
ingly, persons close to the construction 
works suffer its consequences in a different, 
more intense manner than persons farther 
away, the latter being at a greater radius from 
the epicentre of the intervention in the envi­
ronment. By way of logical extension, it may 
be argued that persons near the epicentre 
comprise a particularly closed and defined 
'class', 'who find themselves in a situation 
which differentiates them from any other 
person. It is then the task of the courts to 
determine, on the basis of the appropriate 
criteria, the breadth of that closed class, the 
width of its radius. By logical extension, per­
sons within that class should be regarded as 
having locus standi to bring an action against 
the decision occasioning consequences for 
the environment. 
105. The criteria may not only be geographi­
cal. Geographical proximity — referred to in 
Article 130r(2) of the Treaty 118 — is cer­
tainly useful, particularly in cases such as the 
present one, but will have to be weighed 
together with the nature of the consequences 
which the intervention in the environment 
will or is likely to have, 119 and principally 
having regard to the extent, that is to say the 
gravity, of those consequences. 120 Those are, 
moreover, the matters chiefly taken into 
116 — Sec paragraphs 62 to 65 above. 
117 — This phenomenon may be likened to the throwing of a 
stone into a lake which creates on the surface of the water 
a series of concentric circles. Etymologically, moreover, 
the notion of a circle is inherent in the term 'environment'. 
For example, in Greek, the word for environment 
('perivallon') comes from 'peri ' (around) and 'vallo' 
(throw); in French or English from the word 'envirum'; 
and the German equivalent "Umwelt* is made up of 'urn ' 
(around) and 'Welt' (world). Thus, that term refers to an 
object which encompasses something else, that is to say 
encloses and embraces it. 
118 — 'Community policy (...) shall be based on the precaution­
ary principle and on the principles that preventive action 
should be taken, that environmental damage should as a 
priority be rectified at source (...)' (emphasis added). 
119 — For example, construction of a conventional power station 
would be dealt with differently from that of a nuclear 
power station. 
120 — The gravity of the consequences was, moreover, one of the 
basic criteria taken into account in drawing up the annexes 
to Directive 85/33 7/EEC and distinguishing the works for 
which a mandatory environmental impact assessment is 
required from those for which such assessment is optional. 
I - 1694 
GREENPEACE C O U N C I L A N D OTHERS v COMMISSION 
account by the national courts in the Mem­
ber States in disputes of this kind. 121 
106. That reasoning is not entirely foreign to 
existing case-law. As I have said, it is possible 
for an act to concern both an open class of 
persons (in environmental matters that class 
is especially wide) without locus standi to 
challenge it and a closed class of persons 
who do have that procedural possibility. 122 
Furthermore, the gravity of the impact 
which a measure has or may have on a per­
son may bring about a situation which dis­
tinguishes that person from all others, as was 
held to be the case in Extramet and Codor-
niu. 123 
107. The interpretative approach I am advo­
cating constitutes, in my view, the appropri­
ate way, in cases such as this, in which to 
particularize the procedural condition that 
the contested act must concern the applicant 
individually. In my opinion, it cannot be 
maintained that this approach no longer 
seeks to 'differentiate' the applicant but to 
establish whether the applicant is affected 
personally by the act. 124 The applicant's 
individual relationship to the contested act 
continues to be the decisive criterion also 
under the solution now advanced. Admit­
tedly, on this view of the matter, the require­
ment of differentiation is assimilated to that 
of the existence of an individual legal interest 
and is perhaps identical with it, albeit that 
the Community judicature has hitherto not 
121 — See, for example: 
— English law: in R v Secretary of State for Trade and 
Industry, ex parte Duddridge and Others [1995] ELR 
151 the decision of a public authority not to limit by 
regulation electromagnetic emissions from electricity 
cables may be challenged before the courts by parents 
residing in the area in which new electricity cables are 
placed, relying solely on the increased danger of leu­
kaemia to which their children are exposed as a specific 
consequence of high electromagnetic levels. 
— Belgian law: Conseil d'État, Ville de Liège et Heze, 
20.9.1991, No 37.676. Proceedings by neighbour to 
quash decision approving installation of plant using 
substances harmful to environment held to be admis­
sible. 
— Netherlands law: Road Van State, Afdeling Bestuurs­
rechtspraak (Council of State, Administrative Law 
Section), 18.6.96, AB 1996, 313. Inhabitants of a 
village may invoke expected reduction in road safety in 
their village in order to challenge projected works. 
— German law: Bundesverwaltungsgericht (Fed. Admin. 
Ct.), 1.12.82, BVerwGE 66, p. 307 (crab-fishermen 
case): proceedings held to be admissible brought by 
fishermen against decision approving dumping at sea of 
liquid toxic waste on ground of reduction in fish popu­
lation as a result of dumping of waste. 
— Italian law: T. A. R. Lazio, 20.1.95, No.62, Foro Ital­
iano 1995, II-460. Inhabitants of an area may invoke 
their right to quality of life (interesse di vita) in order 
to challenge permission to build shopping and trading 
centre in their area. 
— Greek law: Simvoulio tis Epikratias (Council of State) 
2281/1992: Inhabitant of the centre of a large town 
held to have locus standi to seek the quashing of deci­
sions authorizing clearance of wooded area on edge of 
town. Held that the town and threatened woods 
belonged to same geographical basin which 'consti­
tuted an unbroken ekistic whole with very few green 
spaces in constant diminution. Thus, the unfavourable 
consequences for the ecological balance and for the 
quality of life of its inhabitants of the decisions leading 
to clearance of a wooded area in that basin are experi­
enced not only by those in its immediate vicinity but 
also by those in more distant and lower-lying areas, 
and indeed in some cases more intensely by the latter.' 
— French law. Vicinity constitutes the principal criterion 
of locus standi for natural persons i n planning cases 
(Conseil d'État, 22.10.86, Reynaud, Lebon, p. 652). In 
determining vicinity regard is had, in addition to dis­
tance from proposed works, to nature and gravity of 
consequences arising. Thus, an applicant challenging 
building permit for large shopping centre (Conseil 
d'État, 24.6.91, Soc. Interprovence Côte d'Azur, Lehon, 
p. 1110) docs not need to be in such close proximity to 
the works as an applicant challenging construction 
works having less significant environmental impact 
(CE 17.6.91, Renauld, Lehon, p. 1110). See also 
R. Chapus, Droit du Contentieux Administratif, LGDJ, 
6th Ed, 1996, No 438). 
122 — See above my observations on the Sofrimport judgment, 
paragraph 84 et seq. 
123 — Nevertheless, it cannot of course be maintained that the 
solution here advocated may be directly drawn from dicta 
in the Court 's existing case-law. Those dicta are merely 
indicative of the interpretative possibilities open to the 
Community judicature in the context of the application of 
the fourth paragraph of Article 173 of the Treaty. 
124 — On that point I refer to the relevant arguments of the 
Commission, at paragraph 33 above. 
I -1695 
O P I N I O N O F MR COSMAS — CASE C-321/95 P 
been accustomed to that assimilation. I do 
not believe, however, that, in particular in 
cases such as the present one, to approximate 
the Court's reasoning on the individual 
nature of the effect on the applicant to the 
reasoning followed by the majority of 
national courts in determining the legal inter­
est of the individual, runs counter to the for­
mulation and spirit of the fourth paragraph 
of Article 173 of the Treaty or to the under­
lying rationale of the Court's existing case-
law, even if it does not constitute a linear 
continuation of that case-law. 
108. Moreover, I do not believe that the 
above 'class' of persons having locus standi 
which will emerge from the application of 
the interpretative approach advocated is not 
sufficiently 'closed' and defined, especially if 
it comprises persons who already enjoy, 
before the entry into force of the contested 
act, the environmental interests which that 
act is likely to affect. 125 Therefore, protec­
tion should be afforded to natural persons 
who had previously secured, perhaps even 
over a long period of time, a quality of life 
which is likely to be particularly severely 
affected by the act of the Community insti­
tution. It is worth remembering that the 
Court, in its case-law to date, appears to 
accept the locus standi of non-privileged par­
ties in cases where they invoke the protec­
tion of an acquired right. At least, that inter­
pretation may be inferred from the 
judgments in Bock, Piraiki-Patraiki and 
Sofrimport. 126 I consider therefore that the 
situation of a natural person who was 
already enjoying environmental protection 
of a certain quality, before the alteration 
likely to be brought about by the contested 
act of the Community institution, is 
analogous to the situation of the applicants 
in the above cases and is equally deserving of 
judicial protection. 
109. Again, the adequacy of the definition of 
the closed class of natural persons with locus 
standi depends on the criteria which the 
Community judicature will apply. I have 
already said that, in my view, the severity 
with which the quality of life of the appli­
cant, or any other interest connected with 
the environment, is likely to be affected will 
be particularly considerable so as to bring 
him within the class of persons having locus 
standi, regard being had to the nature of the 
environmental intervention and the appli­
cant's situation. However, the criterion can­
not be a mathematical one. A Community 
act concerning construction works, such as 
an electricity-generating station, irrespective 
of whether it is built on an island with many 
inhabitants, such as Gran Canaria or Tener­
ife, or on an island with very few, affects 
them either generally and in an abstract man­
ner — in which case no question of locus 
standi arises — or individually, irrespective 
of their number. The criteria by which it is 
to be judged whether an applicant has locus 
standi remain the same. 
125 — That criterion is also to be found in Sofrimport (cited 
above at footnote 67), Codomiu (cited above at footnote 
94), and Extramet (cited above at footnote 89). 126 — See above, footnotes 78, 80 and 67. 
I - 1696 
GREENPEACE COUNCIL AND OTHERS v COMMISSION 
110. I now come to the application of the 
above observations to the present case. The 
natural persons who brought proceedings 
before the Court of First Instance are not 
relying on precisely the same legal and fac­
tual situations. Certain of them say that they 
reside in areas which are a short distance 
from the works in question, others that they 
are owners of real estate in those areas, and 
others that they carry on some occupational 
activity there. Others refer to the negative 
impact which the construction works in 
question will have on the health of inhabit­
ants, on tourism, on fishing, on farming, 
education of the young, local flora and fauna 
or occupations in connection with windsurf­
ing. Finally, some of the parties cite health 
problems associated with the impact on the 
environment of the construction works. 
111. The above submissions and the factual 
evidence relating to them were taken into 
consideration by the Court of First Instance, 
which examined them at paragraphs 35 and 
36 of the order appealed against and con­
cluded that the action should be dismissed. 
The legal classification of the above submis­
sions and evidence falls within the purview 
of appellate review. However, contrary to the 
appellants' assertions, and again in light of 
the restrictive interpretation, as set out 
above, of the fourth paragraph of Article 173 
of the Treaty, I do not consider that the 
Court of First Instance erred on this point. It 
did not have before it sufficient evidence for 
it to accept that the probable impingement 
on the environment individually affects the 
natural persons belonging to the closed class 
and, specifically, that the applicants before it 
are affected, by virtue of the legal and factual 
situation peculiar to them, in such a way as 
to differentiate them from all other persons. 
Thus, the Court of First Instance — cor­
rectly — did not deduce from the matters 
relied on by the applicants that the latter 
were 'differentiated' in regard to the con­
tested act and thus had locus standi to bring 
an action under Article 173. 
112. In particular, certain of the applicants 
vaguely 127 relied on the fact that they reside 
'very close' to the units under construction, 
without, however, its being possible to 
deduce from that unsupported submission 
that their situation differs from that of other 
persons. Nor is it possible to discern the rea­
son why arable production, fishing, tourism 
or other activities are affected by the con­
struction works in question, and to what 
extent, or whether the likely impact on such 
activities especially affects the applicants 
with particular severity, so as to justify 
granting them locus standi. Equally general 
and abstract is the invocation of harm to 
health likely to be occasioned by the carry­
ing out of the works in question. 
113. Subject to those essential clarifications, 
I consider that the view taken by the Court 
127 — With the sole exception of one appellant who, without 
giving further particulars, merely stated that she is the 
owner of real estate ten kilometres away from the con­
struction works in question. 
I -1697 
O P I N I O N O F MR COSMAS — CASE C-321/95 P 
of First Instance in paragraph 54 of the order 
appealed against is correct. 128 
(c) Locus standi of the appellant environ­
mental associations 
114. As stated above, the Court of First 
Instance held that the environmental associ­
ations which had brought proceedings before 
it, that is to say Greenpeace, TEA and CIC, 
are not affected individually by the contested 
act within the meaning of the fourth para­
graph of Article 173 of the Treaty and thus 
do not have locus standi In particular, 
according to the reasoning of the Court of 
First Instance, the environmental associ­
ations did not have that procedural possibility 
because, first, its members could not inde­
pendently bring annulment proceedings and, 
secondly, those associations did not play any 
special role in the procedure which led to the 
adoption of the contested decision such as to 
give them locus standi under the Court's 
existing case-law. 129 
115. The appellant associations do not call in 
question the second limb of the lower 
court's reasoning. 130 I will dwell no longer 
on this issue. Again, in my view correctly, 
the Court of First Instance followed the 
settled case-law of the Court of Justice 
which makes the locus standi of an associ­
ation dependent on that of its members. 131 In 
128 — Nevertheless, there are also arguments in favour of pre­
cisely the opposite viewpoint, which have as the major 
premiss of their legal reasoning the interpretative approach 
which I advocate above. In fact, in the present case, the 
Commission is under a clear and specific obligation to 
monitor whether the works financed are being carried ou t 
in accordance with Directive 85/337/EEC. Under the 
applicable legislation, commencement and continuation of 
the construction of the electricity-generating stations, such 
as the ones in question, depend upon the prior obtaining 
of an environmental impact assessment and, hence, it may 
be presumed that those works may have an unfavourable 
impact on the environment. The importance attached by 
both Community and national law to that assessment 
should indeed be emphasized. Whether those works can 
be implemented and under what specific terms and condi­
tions will in the end be determined by that assessment. 
Prior to completion of the assessment, it is not possible 
accurately to determine the impact which the works in 
question will have on the environment or, a fortiori, 
whether those works should be carried out and, by logical 
extension, whether they should be financed by Commu­
nity funds. Accordingly, it is perhaps excessively strict for 
individuals desirous of challenging a Commission decision 
continuing financing of the works in question to be 
required fully to prove the damage they are likely to sus­
tain as a result of those works, since, precisely because 
there is no environmental impact assessment, the conse­
quences of the works in question for the environment 
remain essentially unknown. A special rule should thus be 
implied that, when there is no environmental impact 
assessment for a given set of works, persons challenging 
the Commission decision granting financial aid for the car­
rying out of those works, when required to show why the 
contested act affects them individually in accordance with 
the provisions of the fourth paragraph of Article 173 of 
the Treaty, should not be obliged to provide full and con­
crete proof of the effects on their individual situations 
owing to the actual or potential environmental impact of 
the works financed. It may then suffice for them to invoke 
their sums as residents of the wider area in which the 
works in question are being carried out or as persons car­
rying on occupations in that area. Under that interpreta­
tion, the matters relied on by the appellants in the present 
case were in principle sufficient for them to be deemed to 
be affected individually by the contested act, in which case 
the order of the Court of First Instance is wrong in law 
and should be set aside. 
129 — See judgments in Van der Kooy and CIRFS (cited above at 
footnote 12). 
130 — Neither the complaints to the Commission nor the com­
munication which those environmental associations had 
with it may be said to amount to participation by them in 
a special Community procedure thus differentiating them 
in relation to the contested act. 
131 — See, for example, judgments in Joined Cases 19/62 to 
22/62 Fédération Nationale de la Boucherie en Gros and 
Others v Council, Case 72/74 Union Syndicale and Others 
v Council, Case 282/85 DEFI v Commission (cited above 
at footnote 11) and Case 191/82 FEDIOL v Commission 
[1983] ECR 2913. 
I - 1698 
GREENPEACE COUNCIL AND OTHERS v COMMISSION 
light of that case-law and of the fact that the 
locus standi of the appellant individuals in the 
present case must be precluded in accordance 
with the foregoing analysis, the Court of First 
Instance, I think correctly, dismissed the 
action brought before it by the environmental 
associations. At any rate, that is the solution 
dictated by the existing case-law of the Court 
of Justice. 
116. None the less, the appellant associ­
ations argue that, in general, legal persons 
which represent the interests of a group of 
persons should be recognized as having the 
right to bring proceedings against a Commu­
nity act where one or more of their members 
would have locus standi to do so or where 
that legal person can show the existence of a 
specific right or interest. As regards the sec­
ond alternative basis of locus standi which 
they put forward —which, it is to be noted, 
finds no support in existing case-law — the 
appellant associations make the following 
observations: in their view, the Court ought 
to recognize the existence of a specific inter­
est on the part of environmental associations 
to bring annulment proceedings against acts 
which jeopardize environmental protection, 
even where their members or other natural 
persons cannot show themselves to be indi­
vidually affected by such an act. In that way, 
it is contended on behalf of the appellants, it 
is possible to ensure adequate judicial pro­
tection in favour of natural persons who, 
though affected by a Community act having 
negative consequences on the environment, 
do not comprise a closed class of persons, in 
accordance with the Court's case-law cited 
above, and thus cannot directly challenge 
such an act. 132 
117. The Court is thus invited to embark on 
a further extension of its case-law. For my 
part, I consider it desirable to set out the fol­
lowing observations. First, I believe that a 
relaxation by the Court, to the extent 
sought, of the criteria of admissibility could 
be abused and lead to aberrant consequences. 
Natural persons without locus standi under 
the fourth paragraph of Article 173 of the 
Treaty could circumvent that procedural 
impediment by setting up an environmental 
association. Moreover, whilst the number of 
natural persons, that is to say citizens of the 
European Union, however high it may be, 
none the less remains limited, the number of 
environmental associations capable of being 
created is, at least in theory, infinite. But, 
even if that obstacle could be overcome, for 
example, by conferring locus standi only on 
associations constituted prior to adoption of 
the contested measure, account would have 
to be taken of the fact that, within the Euro­
pean Union, the number of legal persons 
which have as their object the protection and 
conservation of the environment is today 
132 — The appellant associations also stress that to confer on 
them locus standi would enable judicial review of Commu­
nity measures concerning the environment to be exercised 
in a more consistent and coherent manner. 
I - 1699 
O P I N I O N O F MR COSMAS — CASE C-321/95 P 
particularly high. If the Court were ulti­
mately to follow the proposal of the appel­
lant associations, in future every measure of 
a Community institution concerning the 
environment or having an impact on it could 
be expected, on each occasion, to form the 
subject-matter of proceedings brought by a 
plethora of environmental associations. 
118. For those reasons and notwithstanding 
the recent developments in national and 
international law, I continue to have signifi­
cant reservations concerning the expediency 
of the departure from existing case-law 
sought by the appellant associations. More­
over — and this I think is the decisive argu­
ment — to give to environmental associ­
ations the possibility of challenging 
Community measures concerning the envi­
ronment would, notwithstanding the posi­
tive consequences which might well flow 
from this, run counter to the letter of the 
law, in this case of Article 173 of the Treaty. 
The Community legislature has divided 
applicants into two categories, namely those 
mentioned in the second and those men­
tioned in the fourth paragraphs of Article 
173. To accept the interpretative approach 
advocated by the appellant associations 
would be tantamount to creating a third cat­
egory extra legem. In other words, between 
the privileged parties mentioned in the sec­
ond paragraph, who are not required to 
invoke any legal interest, and the parties 
mentioned in the fourth paragraph, who 
must be directly and individually affected by 
the contested measure, there would be inter­
posed the environmental association, which 
would be presumed to have locus standi 
whenever the contested measure concerns 
the environment or any impact on it. In con­
clusion, I believe that the departure from 
case-law advocated, irrespective of whether 
or not it is desirable, remains unfeasible 133 
on the basis of existing written law. 
119. From all the foregoing, I conclude that 
the order of the Court of First Instance 
appealed against is unimpeachable and there 
can be no question of its being set aside. 
Moreover, there is no need to examine the 
remaining objections of inadmissibility 
raised by the Commission and Spain, that is 
to say whether a decision to continue financ­
ing infrastructure works can direcdy affect 
the rights or interests of the appellants or 
whether that measure, by its very nature, can 
constitute the subject-matter of proceedings 
under the fourth paragraph of Article 173 of 
the Treaty. 
133 — Moreover, I do not see why locus standi should be 
granted in that way as a privilege only to environmental 
associations and not to other legal persons of a representative 
nature. Invocation of the special nature of environmental 
protection, extensively canvassed above, cannot, in my 
view, justify different treatment of environmental associa­
tions in relation to associations which have other, analo­
gous objects. 
I - 1700 
GREENPEACE COUNCIL AND OTHERS v COMMISSION 
VII — Conclusion 
120. In light of the foregoing I propose that the Court should: 
— dismiss the appeal in its entirety, and 
— order the appellants to pay the costs. 
I -1701