Opinion of Mr Advocate General Cosmas delivered on 23 September 1997. - Stichting Greenpeace Council (Greenpeace International) and Others v Commission of the European Communities. - Appeal - Natural or legal persons - Measures of direct and individual concern to them. - Case C-321/95 P.



European Court reports 1998 Page I-01651



Opinion of the Advocate-General

I - Introductory observations

1 In the present case the Court is called upon to adjudicate on the appeal brought under Article 49 of the EEC Statute of the Court of Justice against the order of 9 August 1995 of the Court of First Instance of the European Communities. (1) The order appealed against dismissed the action brought by certain environmental associations and individuals, pursuant to the fourth paragraph of Article 173 of the EC Treaty, for annulment of the Commission Decision to pay to the Spanish Government, in addition to amounts initially granted, ECU 12 000 000 to cover expenditure incurred in the construction of two electricity-power stations in the Canary Islands. That decision, according to the applicants, was taken between 7 March 1991, the date of adoption of Commission Decision C(91)440 granting financial assistance for the works in question, and 29 October 1993, when the Commission confirmed that the abovementioned amounts had already been disbursed to the Spanish Government.

2 At the outset, it is worth noting that the Court will be required in this case to form a view as to the manner and scope of application of the fourth paragraph of Article 173 of the EC Treaty in circumstances in which the applicants base the legal interest on which they rely on the consequences for the environment alleged to flow from the Community institution's act that is being challenged.

II - Facts and procedure

3 The facts of the case under examination, as described in the order appealed against, may be stated as follows:

By Decision C(91) 440 adopted on 7 March 1991 pursuant to Council Regulation (EEC) No 1787/84 of 19 June 1984 on the European Regional Development Fund, (2) as amended by Council Regulation (EEC) No 3641/85 of 20 December 1985, (3) the Commission agreed to grant the Kingdom of Spain financial assistance from the European Regional Development Fund (`the ERDF') up to a maximum of ECU 108 578 419 for the construction of two electricity-power stations in the Canary Islands, on Gran Canaria and Tenerife, by Unión Eléctrica de Canarias SA (`UNELCO'). That financing was to be spread over four years, the first instalment being payable on adoption of aforementioned Decision C(91)440. Subsequent instalments of aid could be reduced or suspended if examination of progress of the works were to reveal irregularities and, in particular, any significant alteration affecting the implementation of the decision for which the Commission's approval had not been sought. That condition was laid down in Article 5 of the aforementioned Commission Decision, and also in paragraphs A.20, A.21 and C.2 of Annex III thereto.

4 As early as 23 December 1991, two of the appellants had informed the Commission by letter that, as regards the works commenced on Gran Canaria, UNELCO had failed to undertake an environmental impact assessment study in accordance with the applicable Community provisions. (4) Furthermore, another of the appellants reported to the Commission, by letter dated 23 November 1992, that UNELCO had started construction work on Gran Canaria and Tenerife without the Comisión de Urbanismo y Medio Ambiente de Canarias (Canary Islands Commission for Planning and the Environment, `CUMAC') having issued its environmental impact statement in accordance with the applicable national legislation.

5 In fact, on 3 December 1992, CUMAC issued two environmental impact statements relating to the construction of the power stations on Gran Canaria and Tenerife. Administrative appeals against those statements were lodged, on 26 March 1993 and 2 April 1993 respectively, by local environmental protection associations which are amongst the appellants in the present proceedings. (5) which provides: `Measures financed by the Funds (...) shall be in keeping with the provisions of the Treaties, with the instruments adopted pursuant thereto and with Community policies, including those concerning (...) environmental protection.' By letter dated 23 June 1993, the Director General of DG XVI replied to Greenpeace that it was unable to provide the information requested since it concerned the Commission's internal decision-making procedures, but gave the assurance that its decision was taken `only after full consultation between the various services concerned.' On 29 October 1993, a meeting took place in Brussels between Greenpeace and the competent officials of Directorate-General XVI of the Commission, specifically concerning the financing by the ERDF of the construction of the power stations on Gran Canaria and Tenerife.

7 On 21 December 1993, the appellants brought an action before the Court of First Instance for annulment of the abovementioned Commission decision to continue financing of the works. The Kingdom of Spain intervened in the proceedings before the Court of First Instance. In its abovementioned order of 9 August 1995 the Court of First Instance upheld the objection of inadmissibility raised by the Commission and on that ground dismissed the action.

8 The unsuccessful parties at first instance appealed against that order, requesting the Court to set aside the order, to declare admissible the action brought before the Court of First Instance and to order the Commission to pay the costs. The Commission requests the Court to dismiss the appeal or, in the alternative, to dismiss the original application as inadmissible on one of the other grounds advanced by the Commission at first instance and, finally, to order the appellants to bear the costs. For its part, the Kingdom of Spain seeks the dismissal of the appeal, affirmation of the correctness of the order at first instance, and an order for costs against the appellants. III - The order appealed against

9 In the order appealed against the Court of First Instance examined whether the applicants had standing to bring the action pending before it. In so doing it distinguished between the applicant individuals and applicant environmental associations.

10 (a) As regards the former, it based itself on the settled case-law of both the Court and the Court of First Instance, according to which: `(...) persons other than the addressees may claim that a decision is of direct concern to them only if that decision affects them by reason of certain attributes which are peculiar to them, or by reason of factual circumstances which differentiate them from all other persons and thereby distinguish them individually in the same way as the person addressed.' (7) In so doing, it did not follow the interpretative approach to the fourth paragraph of Article 173, contended for on behalf of the applicants to the effect that the hitherto restrictive case-law cannot be transposed to situations in which the legal interests affected by the contested decision are not economic in nature but arise from the negative environmental impact of the unlawful conduct by the Community institutions. The Court of First Instance held in that connection that the essential criterion applied by the Court of Justice in its settled case-law, namely, `in substance, a combination of circumstances sufficient for the third-party applicant to be able to claim that he is affected by the contested decision in a manner which differentiates him from all other persons - remains applicable whatever the nature, economic or otherwise, of those of the applicants' interests which are affected'. (8) Reliance solely on the harm likely to be suffered, generally and in the abstract, by individuals who cannot be determined in advance `(...)in a way which distinguishes them individually in the same way as the addressee of a decision (...)' (9) cannot suffice to confer locus standi. The Court of First Instance further considers that that case-law constitutes the only correct interpretation of the fourth paragraph of Article 173 of the Treaty. In its order it expressly states that the contested decision must directly and individually affect the applicant. That view of the matter cannot be affected either by the finding that there has been a tendency in recent years by the competent national courts to make locus standi solely dependent on the existence of a `sufficient' interest on the part of the applicants. (10) For the above reasons, the Court of First Instance held that it had to be examined whether, in the case pending before it, the contested decision was of individual concern to the applicants. The Court of First Instance held that it was not, in light of two matters of relevance in its view, enlarged upon in paragraphs 54 to 56 of the order appealed against, which read as follows:

11 `The applicants are sixteen private individuals who rely either on their objective status as "local resident", "fisherman" or "farmer" or on their position as persons concerned by the consequences which the building of two power stations might have on local tourism, on the health of Canary Island residents and on the environment. They do not, therefore, rely on any attribute substantially distinct from those of all the people who live or pursue an activity in the areas concerned and so for them the contested decision, in so far as it grants financial assistance for the construction of two power stations on Gran Canaria and Tenerife, is a measure whose effects are likely to impinge on, objectively, generally and in the abstract, various categories of person and in fact any person residing or staying temporarily in the areas concerned.

12 The applicants thus cannot be affected by the contested decision other than in the same manner as any other local resident, fisherman, farmer or tourist who is, or might be in the future, in the same situation (Case 231/82 Spijker, cited above, paragraph 9, and the order of 21 February 1995 in Case T-117/94 Associazione Agricoltori della Provincia di Rovigo and Others v Commission [1995] ECR II-455, paragraph 25).

13 Nor can the fact that the second, fifth and sixth applicants have submitted a complaint to the Commission constitute a special circumstance distinguishing them individually from all other persons and thereby giving them locus standi to bring an action under Article 173 of the Treaty. No specific procedures are provided for whereby individuals may be associated with the adoption, implementation and monitoring of decisions taken in the field of financial assistance granted by the ERDF. Merely submitting a complaint and subsequently exchanging correspondence with the Commission cannot therefore give a complainant locus standi to bring an action under Article 173. As the Court of Justice has held, although a person who asks an institution, not to take a decision in respect of him, but to open an inquiry with regard to third parties, may be considered to have an indirect interest, he is nevertheless not in the precise legal position of the actual or potential addressee of a measure which may be annulled under Article 173 of the Treaty (Case 246/81 Lord Bethell v Commission [1982] ECR 2277).'

14 (b) As regards locus standi of the applicant associations, the Court of First Instance followed settled case-law according to which an association formed to further the collective interests of a category of persons does not have locus standi to challenge a measure adopted by a Community institution affecting the general interests of that category where the members of that association do not have standing to do so individually, (11) unless that association had played a role in a procedure which led to the adoption of an act within the meaning of Article 173 of the Treaty, subject to the proviso, certainly, that the particular role is of such a nature as to justify admissibility of the action brought by the association, even though its members are not directly and individually affected by the act in question. (12)

15 In that context it is stated in the order appealed against that the applicant associations did not adduce any special circumstances to demonstrate the individual interest of their members as opposed to that of any other person residing in the areas of Gran Canaria and Tenerife. `The possible effect on the legal position of the members of the applicant associations cannot, therefore, be any different from that alleged here by the applicants who are private individuals.' (13) Consequently, in so far as the applicants in the present case could not be considered to be individually concerned by the contested decision, nor in logic, according to the Court of First Instance, could the members of the applicant associations.

16 The Court of First Instance went on to examine whether the existence of contacts between one of those associations, Greenpeace, and the Commission was sufficient to confer locus standi on Greenpeace. The reply given to that question was in the negative since it was considered, in the first place, that `the Commission did not, prior to the adoption of the contested decision, initiate any procedure in which Greenpeace participated; nor was Greenpeace in any way the interlocutor of the Commission with regard to the adoption of the basic Decision C(91) 440 and/or of the contested decision' (14) and, secondly, that `the correspondence which took place between Greenpeace and the Commission and its subsequent meeting with members of the Commission's staff were for purposes of information only, since the Commission was under no duty either to consult or to hear the applicants in the context of the implementation of Decision C(91) 440.' (15)

17 On those grounds the Court of First Instance, in its abovementioned order, dismissed the action in its entirety as inadmissible, on the ground that the applicants were not `individually concerned' by the contested decision, without further examination of the remaining pleas of inadmissibility raised by the Commission. IV - Legal framework

18 As mentioned above, the legal discussion turns on the interpretation of the fourth paragraph of Article 173 of the EC Treaty, which reads as follows: `Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.' V - Arguments of the parties . A - The appellants' arguments

19 (a) In their pleadings the appellants begin by setting out the relevant legal context for the solution of the present case which, in their view, was incorrectly appraised by the Court of First Instance. Thus, they consider that the lower court, in applying the fourth paragraph of Article 173 of the Treaty, ought to have taken account of the following matters: under Commission Decision C(91)440, which expressly refers in its preamble to the necessity of carrying out the works which are the subject of financing in compliance with the requirements of Community law on environmental protection and, in particular, with Directive 85/337/EEC, owing to the likely impact of the works on the environment, the Commission was required, if it observed that during the construction works `Community policy' (16) was not being complied with, to withhold payment of Community funds, to notify the competent national authorities and to determine the measures to be taken. Furthermore, Council Regulation (EEC) No 2052/88, pursuant to which abovementioned Decision C(91)440 was adopted, expressly provides that works subject to financing are to comply with Community provisions on environmental protection.

20 From the foregoing the appellants infer that, in implementing Decision C(91)440, the Commission ought, on the one hand, to have systematically monitored whether the construction projects benefiting from financing were being carried out in compliance with Community law and, in particular, with Directive 85/337/EEC and, on the other, to have refused to disburse further funds if it observed non-compliance with Community provisions on environmental law. They further consider that, inasmuch as the construction projects were commenced before an environmental impact assessment had been obtained and the Commission was aware of that irregularity, the decision by the latter to disburse to Spain further funds amounting to ECU 12 000 000 is in direct breach of its abovementioned obligations.

21 In that regard the appellants see fit to recall that, in accordance with their interpretation of Directive 85/337/EEC, the latter instrument confers a series of rights on `people who may be concerned' by public and private projects likely to have significant effects on the environment, including a right of access to information relating to the project concerned and the right `to express an opinion before the project is initiated'. (17) There are, then, certain rights which are conferred on individuals in connection with environmental protection on which the persons entitled may directly rely, inasmuch as the relevant provisions of Directive 85/337/EEC have been adjudged by the Court of Justice (18) to be of a clear and unconditional nature, thus producing direct effects in the domestic legal order.

22 In summary form, the reasoning on which the appellants' claim for judicial protection 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 Community law. - In fact, the works were commenced without a prior environmental impact assessment in contravention of the provisions of Directive 85/337/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 abovementioned infringement, the Commission violated its obligations under Community 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 85/337/EEC.

23 (b) The appellants contend that the Court of First Instance erred in its interpretation 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 concerned 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 interpretative approach followed by the Court of First Instance creates a vacuum in the judicial protection afforded by the Community legal order, whenever it is a question of reviewing compliance by Community institutions with Community environmental legislation. 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 environment, 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 appellants assert, that the application, in cases concerning the environment, of the traditional 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 measures which affect their environmental interests. The legal vacuum becomes more apparent 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 be filled by the possibility afforded to individuals 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 proceedings, since the Spanish courts do not have jurisdiction to review the legality under Community law of payment by the Commission 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 developments in international law. In that connection the appellants cite a series of comparative studies from which it may be inferred that the legal systems of the Member States have all developed in the direction of a widening of the procedural right of citizens to seek judicial protection in cases in which their legal interests in environmental protection are infringed. Indeed, the appellants observe that, if they had been required to bring proceedings before a court of a Member 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 environmental 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 representatives of the Member States, (22) to Principle 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 environment.

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 environment caused by an infringement by the Community institutions of their obligations under Community law, the Community judicature should, according to the appellants' 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 concerned, such as a violation of his or her environmental 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 appellants that they satisfy these three criteria. As to the first criterion, they reiterate the evidence 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 pursuant 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 environmental law and, in particular, to Directive 85/337/EEC, the Commission directly contributed to the detriment suffered by the appellants as a result of the harm to the environment. As to the third criterion, it is submitted that the abovementioned detriment would be capable of being redressed if a court judgment were to annul the Commission decision to continue financing the works. For, if the necessary funding for the continuation of the projects were not available, 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 protection of the environment and that specifically included in their objects, moreover, is protection of the environment in the geographical area in which the works in question are 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 Community 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 Italiana Tecnico Economica del Cemento and Others v Commission, (23) and to the Opinion of Advocate General Lenz in CIDA v Council. (24)

32 In conclusion, the appellants consider that the solution proposed by them is the most apposite, and refer to the Court's Plaumann 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 proposed by the appellants cannot be adopted because it would be tantamount to abandoning the express requirement of the fourth paragraph of Article 173 that an applicant must be individually concerned by the contested 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 individual concern to them only if it affects them by reason of certain attributes peculiar to them or by reason of circumstances differentiating them from all other persons and, by virtue of that fact, distinguishes them individually 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 Council [1991] ECR I-2501 and Joined Cases T-480/93 and T-483/93 Antillean Rice Mills v Commission [1995], relied on by the appellants in support of the contra legem interpretation which they propose. In that way, the Commission says, the appellants are substituting for the letter of the law their own formulation in accordance with which it is sufficient to demonstrate that a Community act `personally' and not necessarily `individually' concerns the applicant for the latter to acquire locus standi before the Community judicature. In particular, the Commission 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 `differentiated' in relation to the contested measure, then that measure would no longer be required to concern the applicant `individually': it would be sufficient for him to be `personally' concerned. That contra legem interpretation would result, in the Commission's view, in every inhabitant of the islands of Tenerife and Gran Canaria being recognized as having a legal interest in challenging the measure at issue adopted by the Commission. (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 protection 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 themselves 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. Consequently, 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 appellants in their pleadings.

35 As to the rights which the appellants maintain may be inferred from Directive 85/337/EEC, the Commission makes the following observations: even though that directive, as regards certain at least of its provisions, 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 paragraph of Article 173, in relation to the contested act.

36 The Commission also rebuts the submission 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 individually affected by the contested measure and, on the other, as representative organizations whose object is the protection of the environment in the Canary Islands, they automatically have a legal interest in matters concerning 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 carried out. It infers from this that the appellants 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 conclusion 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 therefore 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 Commission 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 Community legal order also affords legal protection to persons which goes beyond the strict confines 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 possibility of bringing a matter before the Ombudsman. Conversely, no easing of the procedural restrictions laid down in the fourth paragraph 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 arguments set out below. It begins by rehearsing the case-law of the Court on the issue of 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 concerned 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 maintains, the only Community acts open to challenge are those concerning a closed class of persons which is ascertained or ascertainable 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 dismiss their action. For that reason, the appellant 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 dismissed, that is to say for a wider legal interest to be conferred on representative associations 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 circumstances 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 ascertainable 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 complaints to the Commission, that fact does not suffice to distinguish them, because the Commission is not under any obligation to initiate proceedings under Article 169 of the Treaty, whenever it receives a complaint in that connection. (31) For all the abovementioned 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 protection ensured by national courts which are the ordinary courts under the Community judicial system. Accordingly, only the Member 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 characteristics of the present case, the Kingdom of Spain considers that, in actual fact, the appellants are attempting to fabricate a dispute before the Community judicature. Under the guise of a challenge to the legality of a Community act, they are in fact seeking to prompt the Community judicature to adjudicate on the legality of an act of a national authority and, indirectly, to annul it. Specifically, 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 environmental 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 environmental 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 interpretation of the relevant provisions of Community 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.

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 continue the financing. It points out in that connection 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 maintained at the hearing before the Court that the change in case-law advocated by the appellants could not be regarded as expedient since it would result in the enshrinement of an actio popularis for environmental questions. Protection of the environment, moreover, 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 concerns the interpretation of the fourth paragraph 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 person 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 procedural limitation on the right of action before the Community judicature and is appraised, moreover, of the Court's own 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 protected right or legal interest from the interest, within the Community legal order, in conservation of the environment? Secondly, if the first question is answered in the affirmative, was the Court of First Instance right to hold that that decision did not `individually' 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 application? 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 institution must be the holder of some right or legal interest which is affected by the contested act. That condition, which does not apply to the privileged parties mentioned in the second paragraph of that article, generally consists in the express requirement that the applicant be directly and individually affected by the contested act. Where the contested 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 examined 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 protection in the Community legal order and to analyse the Court's case-law on that question. (a) Public dimension of environmental protection

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 the `Community public interest'. The Community judicature has proclaimed in its judgments that `environmental protection is one of the fundamental objectives of the Community'. (37) Support for that view is, moreover, to be found in the letter of the Treaty. Following the revision of 7 February 1992, Article 2 of the Treaty states that `the Community shall have as its task (...) to promote (...) growth respecting the environment (...).' For those purposes the activity of the Community 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 130r of the Treaty, inter alia, to `preserving, 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 correct application of that legislation.

52 From the foregoing illustration it may be inferred that the environment has a public dimension which constitutes a general Community interest whose protection is the responsibility of the Member States and the Community institutions, in accordance with 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 obligation on the part of the `public' authorities (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 environment, does not automatically confer on a natural or legal person a right or legal interest 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 infringements by the Commission cannot with certainty be remedied if the task of submitting them for judicial review is entrusted exclusively to the Member States and the Community institutions, which do not in practice have an interest in that regard. (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. Secondary 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 authorities. (44) Those rights, as a general rule, flow from the direct effect of directives whose subject-matter is concerned with environmental protection. For example, the Court held in Case C-131/88 Commission v Germany [1991] ECR I-825 (45) 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 General Van Gerven observed in his Opinion in that case that the `clear and precise implementation of the directive's provisions may also be important for third parties (for instance environmental groups or neighbourhood residents) seeking to have the prohibitions and restrictions contained in the directive 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 connection 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 conditions under which Article 9 of the directive permits Member States to derogate from the general prohibition on hunting protected 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 Community 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 prevented 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 protection, when implemented by means of a series of provisions of secondary Community 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 Commission decision at issue. It should be noted that that directive constitutes one of the most significant achievements by the Community legislature in favour of environmental protection. Its objective is, as stated in the sixth recital in the preamble, to establish the principle 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'.

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 General 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 opportunity 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 directive 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 implementation of the directive thus deprives the citizen of a right under the directive. ... In those circumstances 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 construction 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 requirement 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 proceedings, 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 secondary Community law creates special 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 Community law having direct effect in the domestic legal order have been adopted, (57) and cannot therefore arise when they involve the imposition 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 particularly severe obstacles. (59) (c) Existence of a specific obligation on the Commission to monitor whether the works financed comply with Community environmental 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 Community rules relating to environmental protection directly impose on Community bodies specific and clear obligations whose observance may be judicially enforced by individuals affected. The Commission has such an obligation under primary and secondary legislation whenever it proposes to finance works likely to have an impact on 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. Paragraph 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 subparagraph of paragraph 2 of Article 130r of the Treaty appears to impose on the Community institutions a specific and clear obligation which could be deemed to produce direct effect in the Community legal order. It expressly states that: `Environmental protection 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 Community law, and indeed in the context of legislation on the financing by the Community of certain actions having an impact on the environment. As referred to above, Article 7 of Regulation No 2052/88 provides: `Measures financed by the Funds (...) shall be in keeping with Community policies, including those concerning (...) environmental protection.' 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 No 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 individuals 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 possibility 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 the direct effect of Directives 80/68/EEC, 79/409/EEC and 80/779/EEC. More specifically, there is a discernible intention in that case-law on the part of the Community judicature 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 necessarily mean that its decisions in that connection may not be likely to affect certain individuals, and indeed in a direct and individual manner. (61)

65 It must, I believe, be accepted that observance, in the present case, of the Commission's specific and clear obligation to take into account the safeguarding of environmental interests at the same time as adhering to the relevant Community legislation during 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 judicial 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 Commission 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. Certainly, 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 satisfied the preconditions of the fourth paragraph 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. 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 applicants 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 adherence 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 followed 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 danger of the legal vacuum in their legal protection created by the order appealed against. Indeed, they advance a series of criteria which, in their view, the Community judicature must assess when it is called upon to decide upon the admissibility of an action involving a question of damage to the environment.

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 associations. 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 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 theoretical viewpoint, I am opposed to the consideration of that factor because the possibility of seeking redress before the national courts does not preclude the possibility of directly calling in question before the Community judicature the legality of a decision of a Community institution, where the procedural requirements of the fourth paragraph of Article 173 of the Treaty are satisfied, (62) I do consider it necessary to stress the following 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 authority 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 Community institution, and are alleging an infringement by that institution of a rule of Community 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 Spanish Government further argue that the applicants 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 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, certain of the appellants sought to prevent the construction works in question by seeking the appropriate remedies before the competent 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 continue 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 lawfulness of the administrative authorizations granted for construction of the electricity-generating power stations, or of the environmental impact assessment. But, even if any such supplementary issue could, exceptionally, be raised, (64) the protection likely to be afforded by the national court would certainly not be as far-reaching and comprehensive 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 setting aside of the Commission decision to continue financing.

75 Finally, if the appellants satisfy the procedural 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 possibilities 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 restrictive criterion of admissibility according to which the contested act must be of individual 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 differentiate them and individually distinguish them from all other persons. (65) That view of the matter cannot be called in question either by the specific nature of the legal interest in environmental protection or by the matters relied on by the appellants concerning modern developments in national and international law in the matter of environmental 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 abovementioned procedural requirement has been interpreted and particularized. In the first place, it should be emphasized that, notwithstanding 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 difficulties 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 observations. On the basis of that reasoning, an action brought by a company, which complained to the Commission of an agreement contrary to Article 85 of the Treaty between 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 persons who complained to the Commission of unlawful State aid and submitted observations 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 circumstances in which they are differentiated from all other persons, and by virtue of these factors 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 entitling 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 situation to those mentioned above to secure protection by the Community judicature. (74)

82 (bb) In other cases actions brought by individuals frequently run up against the Court's settled case-law to the effect that a measure cannot concern applicants individually when it applies to objectively defined situations and produces legal effects on categories of persons determined in a general and abstract manner. It should also be noted that whether a measure challenged is objective 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 `individually' affected by it for the purposes of the fourth paragraph of Article 173 of the Treaty. (75) Again, `(...) the possibility of determining 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 concern 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 developments and fluctuations. (1) Initially, as for example in the Toepfer (77) 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 person 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 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 contracts 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 noteworthy 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 covered 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 Commission 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 Accession, and in particular on the question whether the Commission, before authorizing 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 definition of the `closed class', namely that the persons comprising that closed class had of necessity to be known to the authority 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 suspending the issue of import licences for that fruit and determining import quotas. Notwithstanding the Advocate General's Opinion to the contrary, (84) the Court considered importers of Chilean apples which were in transit when the regulation at issue was adopted `to constitute a restricted group which is sufficiently 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'.

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 noteworthy 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 interest from another point of view. In that judgment 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 comprising 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 definition, the Court attached particular importance to the nature and extent of the Commission'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 Community of certain products from China and the Soviet Union. On the basis of the case-law as it then stood, a distinction was made between producers, exporters and the complainants, 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 manner. (90) Consequently, Extramet, as an independent importer of calcium metal, could not be deemed to be affected by the contested 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 recognize 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 necessary 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 applicant 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 business activities depend to a very large extent on those imports and are seriously affected 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 processed product'. (93)

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 `crémant' 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 `crémant', that is to say in the same way as it concerned any other producer in the same situation. In his Opinion in that case, (95) Advocate General Lenz found first, as a matter of undisputed fact, that the contested measure was of a legislative nature. Notwithstanding that fact, he did not consider that the action should be dismissed without more ado as inadmissible, or that detailed examination was required of the question whether the measure in point, though overall of a legislative 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 `crémant' was of concern, there could be identified a category comprising a fixed number of persons which could not be enlarged after adoption of the measure at issue. The applicant undertaking did in fact come within that clearly defined category. (96) However, that factor is not sufficient 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 potential applicants under the fourth paragraph of Article 173 of the Treaty to be determined, may be that identified in the Extramet judgment. The relevant criterion is the effects which a measure has on a certain undertaking and which may be differentiated from the effects of that measure on other persons. (97) 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 applicant 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'. (98) The Court reached the same conclusion on the basis of evidently more elliptical reasoning. (99)

91 The significance and extent of mitigation by the Court, in Extramet and Codorniu, of the rigour of the case-law should not, however, 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 inadmissible an action for annulment of provisions of a regulation concerning the monitoring and control of shipments of waste within the Community. The action had been brought by undertakings engaged in the collection, 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 produce concerned categories of persons in a general and abstract manner.

92 I do not believe, however, that that judgment 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.

94 As I stated above, the appellants have relied in support of their action both on the specific obligations imposed on the Commission on adoption of the contested act, requiring 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 correspondence 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 participation by interested parties, (104) none the less, the procedure laid down in Article 6 (2) of Directive 85/337/EEC (105) 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 provisions, 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 concerned' conferred by Directive 85/337/EEC that those persons comprising the `public concerned' are sufficiently differentiated in relation to the contested act. They are therefore distinguished from all other persons because Directive 85/337/EEC has afforded them concrete procedural guarantees analogous 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 Directive 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 importance. 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 contrast, the procedure for drawing up an environmental impact assessment is national in character, is governed by rules of both Community 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 Directive 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 interested parties. Finally, it does not follow from the nature of the obligation imposed on the Commission in connection with the adoption of the contested act that a group of individuals has locus standi to bring proceedings in the event of any infringement of that obligation. That obligation consists in the monitoring of the application of Community legislation by the national authorities which implement the funded projects and does not expressly concern the protection of certain persons. But even if the monitoring obligation - because it extends to cover the correct 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 persons comprising the `public concerned' are individually affected by the contested Commission 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 sufficiently 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 on the Commission on adoption of the contested act or from the provisions of Directive 85/337/EEC, to the effect that the contested act of the Commission individually concerned 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 the 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 taking 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 Commission'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 carrying on business on Gran Canaria and Tenerife. 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 distinction 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 importance. 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 mentioned 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 general and objective nature of the results produced by the act are due not to its legislative nature but to its subject-matter. In this problematical context, I believe the appellants' 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 theoretically 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 requirements 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 environmental dimension. As I stated above, (114) a departure 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 environmental protection requirements as to locus standi which differ from those contained 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 concerning the particular characteristics of the legal interest in the environment and its protection 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 consider that the Community judicature, in particular in cases where that protection is likely 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 environment. (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 environment 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 distinguished 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) Accordingly, 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 environment. 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, persons 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 geographical. Geographical proximity - referred to in Article 130r(2) of the Treaty (118) - is certainly 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 account by the national courts in the Member 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 clas