Jean Monnet Center at NYU School of Law

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Part IV. Responding to the Save-a-Bird Reference, Part II: Does the Court want to Mess with Associational Standing?

In Factortame I, the Court indicated its willingness to interfere with sensitive national policies such as separation of powers for the sake of effective judicial protection and effet utile. Save-a-Bird's challenge in my hypothetical is to convince the Court to follow the same approach here. This Part discusses the theoretical and practical difficulties that the Court would face if it chose to do so.

The first section of this Part describes the principal elements of the theoretical debate over associational standing, and illustrates this debate with examples drawn from the American experience. I chose to discuss the United States because the debate over associational standing in this country has produced an enormous amount of scholarship and case law. These sources illustrate the sensitive political and legal underpinnings of the standing doctrine (particularly as regards associations) and provide a good vantage point from which to evaluate the application of the doctrine in the European Union. The second section of this Part discusses the standing doctrine in the context of the Union by surveying the law of three Member States (England, Germany and Italy) through the lens of the Save-a-Bird case. This section shows that the Member States studied follow widely divergent approaches to associational standing. The last section of this Part, which is the most important, draws conclusions from the first two sections and sets out the difficulties that the Court would encounter if it chose to direct the Save-a-Bird national court to set aside national procedures prohibiting associational standing.

A. Theoretical Debate Over Associational Standing.

1. General Theories of Group Participation

Giving pressure group standing to litigate diffuse interests increases their bargaining power in the political process generally. Students of group litigation have pointed out that associations often use court cases as only one strategy in the achievement of their objectives."[59] Group theorists explain that the government may leave out organizations representing specific interests from the consultation and lobbying components of the law-making process. For example, a study of organizations consulted by the U.S. Federal Energy Administration over a two-year period revealed that it consulted 81 times with industry and commercial user representatives, but never consulted with environmental or individual consumer groups.[60] A group having standing to challenge the outcome of the political process in court, it is argued, will have a greater chance of forcing the government decision-makers to at least hear its voice.

Political theorists disagree as to the desirability of group participation in the modern democratic debate.[61] Some advocates of group participation have relied on democratic theories that stress the value of competition between conflicting policies. Organizations that effectively represent social interests, they argue, facilitate "political competition and debate."[62] These theorists point out that the centralization of government in a large political entity makes it difficult for the individual to operate effectively as an autonomous participant. This problem, they argue, would be alleviated if "each state is made of a host of little individuals, and rests finally, not on isolated individuals, but on groups small enough to express the spirit of neighborhood and personal acquaintance."[63]

Some critiques of group participation, on the other hand, emphasize the danger that the group voice will smother the individual will of its members and shut them out of the process. Rousseau sharply articulated this concern in his Du Contrat Social, stating that "when intrigues and partial associations come into being at the expense of the large association, the will of each of these associations becomes general in relation to its members and particular in relation to the state. It can be said, then, that there are no longer as many voters as there are men, but merely as many as there are associations."[64] Underlying this view is the belief, which Rousseau shared with philosophers such as Hobbes, in a sharp dichotomy between the State and its individual subject.[65] "Each of us," Rousseau wrote, "places his person and all his power in common under the supreme direction of the general will; and as one we receive each member as an indivisible part of the whole."[66]

This limited incursion into the theoretical debate yields two lessons relevant to group participation and standing in modem society. First, the internal organization of a group is highly relevant to the question of whether its participation in political institutions is desirable. Translated into a modern associational setting, Rousseau's critique prompts us to inquire into the extent to which a group provides a framework for ascertaining and taking into account the views of its individual members, allows access to membership by interested citizens and actually musters popular support and participation by individual citizens.[67] (As will be seen below, the Italian approach to standing takes these considerations into account). Next, the relative power of the group in the issue-area in which it operates has significance. The relevant inquiry here is the extent to which the group monopolizes associational involvement in one area. The more that is the case, it would seem, the more the democratic legitimacy of the group will depend on its ability to represent effectively a wide number of interested citizens.

The next subsection discusses the policy issues associated with standing in general, and associational standing in particular.

2. Purposes of Standing Doctrine in Associational Context; United States Example.

a. Separation of Powers: The Case of the United States.

The standing doctrine is generally described as an instrument that defines the place of the judge in society and furthers the separation of powers between the judiciary and the other branches of government.[68] The precise shape of the separation of powers debate, and the rules that it produces, depend on the legal and historical context in which it takes place. In every context, the issues at hand are raised most sharply with respect to associational standing.

The evolution of the doctrine in the United States exemplifies these propositions, and provides an interesting theoretical framework for assessing the debate in the Member States discussed below. Article III of the United States Constitution has been construed to require that a litigant show an "injury-in-fact" to gain access to a federal court. This requirement, courts and commentators generally explain, is an integral part of the "checks and balances" system whereby each branch of government possesses some degree of control over the other. The injury-in-fact requirement restricts the power of the judiciary to control the legislative and executive branches of government.[69] Also, in the view of authorities such as Justice Scalia, the doctrine prevents the legislative branch from unduly curtailing executive prerogatives by delegating to the courts the power to enforce the laws.[70]

These general principles have led to intensively fact-specific legal battles fought against a political background that has shifted over the past 40 years.[71] The vagueness of the injury-in-fact standard has prompted litigants to make arguments tailored to the specific facts of their case construed in light of the underlying policies of the standing doctrine. Opponents of broad associational standing rights routinely raise the specter of establishing precedents that will open up a floodgate of "citizen suits" hauling into courts every socially significant issue. Proponents have strained to show the connection between the association, its members and the dispute at hand. They also have argued at times that the association represents "under-represented" interests and that its access to courts would further the checks and balances system by countering the influence of large interests over the legislative and executive branches of parliament. [72]

In the 1960s and 1970s, the political climate of the United States favored associational standing. In the 1960s, the federal bench showed a general inclination to expand its power to oversee the proper functioning of government by giving groups generous access to court. Some explained the judiciary's mindset by arguing that judges had little faith in the proper functioning of administrative agencies. Others asserted that the Supreme Court attempted to cater to certain political interests and build itself a constituency of sorts."[73]

The expansion of associational standing rights continued in the 1970s. This time, the Congress also fueled the trend by legislatively expanding the class of plaintiffs that may gain access to courts, especially in the field of environmental and consumer protection.[74] Here again, political motives (and not merely a conclusion that a given statute requires broad enforcement to be effective) may have driven law-making: Pointing out that the growth in associational standing coincided with an era of Democratic dominance in Congress and Republican (almost) uninterrupted hold over the Presidency, some scholars have argued that Congress expanded associational standing to further its "institutional interest" in weakening the executive by delegating executive power to the courts and special interest groups.[75]

The political scene took a new turn in the 1990s with the gradual ideological shift of the Supreme Court to relative conservatism. In a landmark decision, the Court -- spearheaded by Justice Scalia -- held squarely that Congress may not grant standing to a class of plaintiffs that the Court finds do not meet the "injury-in-fact" requirement of Article III. Having appropriated to itself the power to decide who has standing, the Court issued a decision that one may describe, without getting into analysis of American law that lies beyond the scope of this paper, as relatively hostile to the rights of associations to litigate social interests.[76]

The American experience allows us to draw some significant lessons concerning associational standing. The doctrine involves sensitive legal and policy choices that carry profound implications in the legal order of a given society. These choices also implicate political considerations and are shaped in part by institutional power struggles. The politics of the standing doctrine, and its shape, may fluctuate over the years as the political affiliations and relative powers of the players in each branch of government shift.

Further, the legal application of the doctrine under rules such as the injury-in-fact requirement requires an intensively-fact specific inquiry. The cases will have little precedential value so that the decision whether to grant standing to an association will require an exercise of discretion informed not only by the judge's evaluation of the facts at hand but also by his or her view of the proper line of demarcation between the judiciary and the executive.

b. Procedural Considerations.

The standing doctrine also implicates some important procedural considerations. Rules of standing insure to a degree that courts will not decide cases "abstractly" from concrete facts. The presence of a legally sufficient dispute, it is often explained, insures that courts will construe legal rules in light of good information on its operation in the real world. On a related note, the presence of sufficiently aggrieved litigants is said to insure vigorous prosecution of a case. In turn, requiring vigorous prosecution of a rule in light of reliable information will insure that decisions on the merits of a case do not unfairly bind future litigants.[77]

The application of these principles in the associational standing debate has generated disagreement. Authorities disfavoring associational standing maintain that the traditional "Hohfeldian" plaintiff, and plaintiffs sharing his or her attributes, are best qualified to vigorously prosecute cases and inform courts on the operation of rules in the outside world.[78] The label "Hohfeldian" refers to a plaintiff who has "concrete claim which is not "purely ideological."[79] He or she has "the personal and proprietary interests of the traditional plaintiffs, and [not] the representative and public interests of the plaintiff in a public action."[80] These attributes, some argue, are the sine qua non of vigorous and informed representation.

Others assert that associations are at least as interested and efficient litigators as Hohfeldian plaintiffs.[81] Associations, it is argued, often have a continuing interest in the outcome of a litigation. For instance, associations formed to eliminate discrimination will view court decisions as landmarks along a continuum leading to their stated goal. This interest will lead associations to invest adequate resources into fully litigating legal issues. In this respect, they may even be more effective than Hohfeldian plaintiffs whose resources or interest in the case may wane before its completion.[82]

c. Some Useful Terminology.

Before moving on to examine how these issues play out in the English, German and Italian contexts, it is useful to briefly outline some of the terminology used in associational standing.

As discussed above, the associational standing doctrine has produced an enormous amount of literature and theories. Many of these theories present original nuances and insights that lie beyond the scope of this paper. My ensuing discussion, however, will be facilitated by the use of a general dichotomy between two paradigmatic views of standing: the "personification" (or "subjective")[83] view, and the "general legality" view[84]. These conflicting views are useful tools for analysis although courts and commentators often adopt approaches that borrow elements from each. The theories are best understood when contrasted with each other. The personification approach views judges as responsible for the protection of individual citizens against particularized harm emanating from the government. The general legality approach, on the other hand, views judges as responsible for overseeing the legality of government action and attaches much less importance to the presence of an aggrieved individual.[85] The personification approach tends to disfavor associational standing. Under this approach, the paradigmatic litigant is the "Hohfeldian" plaintiff.[86] The general legality approach, on the other hand, tends to favor associational standing. In its classic form, it holds that the identity of the litigant should not prevent a court from intervening to check unlawful government conduct.[87]

The next section illustrates the operation of the associational standing doctrines in England, Italy and Germany, through the lens of the Save-a-Bird hypothetical.

B. Associational Doctrine in Sample Member-States.

1. England.

Save-a-Bird would encounter in England a theoretical debate on associational standing very similar to that which has surrounded the doctrine in the United States. The evolving British debate focuses on separation of powers and the proper role of the courts in a democracy. The British standard for standing to review government action is, like the American "injury-in-fact" standing, rather vague: it requires that the applicant have "a sufficient interest in the matters to which the application relates."[88] As in the United States, British associational standing doctrines has produced intensively fact-specific litigation characterized by widely divergent opinions. Therefore, if Save-a-Bird had brought its case in England, the resolution of the associational standing issue would essentially have depended on the individual predilections of the presiding judge.

The House of Lords' landmark opinion in what came to be known as the Fleet Street Casuals[89] case reflects the conflicting strains of thought in British associational standing law. There, the House of Lords held that an association of taxpayers had no standing to compel the national tax authorities to pursue tax arrears owed by casual printing industry workers. The House of Lords reached this result through the application of a grab bag of conflicting approaches that gave enough legal ammunition for any lower court judge to ground a holding for or against associational standing.[90]

The House of Lords in the various speeches that it produced gave the following directives. All agreed that standing is a matter of judicial policy that will evolve gradually over the years. The majority declared that an "aggregate of individuals, each of whom as no interest cannot of itself have an interest."[91] Lord Diplock, however, used strong general legality language and specified that "it would be ... a grave lacuna in our system of public law if a pressure group, like the Federation, or even a single public spirited citizen, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped "[92] In this connection, Lord Diplock noted, the argument that the matter may be left to the Attorney General cannot carry the day because "although he occasionally applies for prerogative orders against public authorities that do not form part of central government, in practice he never does against government departments."[93] Lord Wilberforce added that courts should evaluate the issue of associational standing in light of the merits of the case and the nature of the remedy that is requested. If the statute provides an implied or express right of action, Lord Wilberforce stated, then the applicant should be granted standing.[94]

The cases following the Fleet Street decision produced divergent decisions grounded in one or the other of the doctrinal strains embodied in that precedent. Some cases decided in the environmental field frowned upon associational standing rights. In ex parte Rose Theatre" ("Rose"),[95] for example, a pressure group formed by local citizens and interested intellectuals sought review of the Secretary of State's decision not to designate the remains of a historic theater in London as a site protected under a historic preservation law and to permit the construction of a new development over the remains of the theater. The Rose court held that the plaintiffs had no standing, relying on the principle that an aggregate of individuals each of whom does not have a sufficient interest to gain standing cannot of itself acquire standing. The court also rejected the argument that the protection of the building required action by concerned citizens, stating tersely that the statute at hand does not give the group "expressly or impliedly a greater right or expectation than any other citizen of this country to have that decision taken lawfully."[96]

Other courts took a similarly narrow view of standing. In R. v. Poole Council ex parte Bee Bee and others ("'BeeBee")[97], the court considered an application by an environmental organization ("WWF") seeking to challenge a Borough Council decision to permit housing construction in the habitat of protected species. WWF alleged that the Borough Council unlawfully failed to conduct an environmental impact assessment. The Court held that, although WWF had contributed financially to the protection of the ecosystem in the relevant area, it did not have a "sufficient interest" of its own to challenge the Council decision.[98]

Another line of cases reflects judicial endorsement of the portions of the Fleet Street case containing language and ideas closer to the generality legality model and more favorable to associational standing. Thus, one judge (Sir Harry Woolf) took on a prominent advocacy role in favor of associational standing in his academic writings and in his opinions. "I regard judicial review," Judge Woolf has stated, "as primarily concerned with enforcing public duties on behalf of the public as a whole...[V]indicating the interests of the individuals [is] part of the process of ensuring that public bodies do not act unlawfully and do perform their public duties."[99] It would be regrettable", Judge Woolf also wrote, "if a court had to come to the conclusion that in a situation where the need for intervention of the court had been established this intervention was prevented as a matter of standing."[100]

Judge Woolf backed his academic views with strong holdings in favor of associational standing, in which he allowed groups with a "sufficient relationship of proximity" to the alleged harm to have access to courts.[101] Thus, in R. v. Social Services ex parte Child Poverty Action and the Greater London Council ("CPAG"),[102] Judge Woolf granted the Child Poverty Action Group standing to challenge social security administrative practices on behalf of a group of unidentified claimants. The pressure group, Judge Woolf reasoned, was a body "designed" to represent the interests of children and families with children. The proximity of the group to the children, in other words, "transferred" to the group standing to litigate.[103] " Judge Woolf adopted a similar stance in Royal College of Nursing v. Department of Health, [104] a case in which a nurses' union gained access to court to challenge advice contained in a governmental circular to nurses perfuming abortions.

Other courts adopted a liberal approach grounded in the same legality arguments as drove Judge Woolf's comparatively liberal jurisprudence. Thus, a court allowed Greenpeace to challenge a government authorization for the construction of a nuclear fuel reprocessing plant.[105] The court found Greenpeace's international reputation relevant to the standing inquiry and, in a reasoning akin to the argument that Save-a-Bird would put to the Court in its hypothetical case, stated that "if I were to deny standing to Greenpeace, those it represented might not have an effective way to bring the issues before the court...With particular experience in environmental matters, its access to experts in the relevant realm of science and technology (not to mention the law), [Greenpeace] is able to mount a careful selected focused, relevant and well argued challenge."

Finally, the case from which the Save-a-Bird hypothetical is derived should be mentioned, primarily because of the court's failure to follow British precedent and European law. In that case, the judge denied standing to two parish councils who relied on a Council directive to challenge the construction of a motorway without any environmental impact assessment. The judge (in a ruling which, incidentally, formed the basis of a subsequent Article 169 proceeding) found that the directive at issue did not apply to projects in the "pipeline" on the date on which it was required to be implemented. Even assuming that this holding is incorrect, the judge added, the plaintiffs could not rely on the Directive because they had not "suffered" as a consequence of the state's failure to implement it. This result has been criticized as inconsistent with Community law in that the judge failed to consider the plaintiff's standing under national law, and inconsistent with British law in that the judge failed to apply the Fleet Street Casuals precedent.[106]

The outcome of Save-a-Bird's case in England would thus depend on which facets of Fleet Street Casuals the presiding judge is enclined to apply. In Judge Woolf's or the Greenpeace judge's court, Save-a-Bird would have a fair likelihood of success. It would argue that, as an organization "designed" to protect the interests of wildlife, it has a "relationship of proximity" to these creatures. Save-a-Bird would also have a good chance to convince these courts to ignore the fact that wild birds have of course no standing of their own to "transfer" to the organization. Here, Save-a-Bird would argue that unlawful governmental conduct would remain unchecked if the court did not appoint the organization as the wild birds' surrogate. Save-a-Bird's expertise, its long standing interest in the issue at stake and its reputation would go a long way towards convincing a sympathetic court to accept this argument.

Save-a-Bird would have much more trouble gaining access to courts such as the Rose or the Bee-Bee court. In the Rose court, Save-a-Bird would likely be told that, just like a group formed to protect historical buildings cannot gain standing, a group formed to protect nature does not have sufficient interest to gain access to court. Save-a-Bird would also be reminded that the courts do not provide a forum "for every individual interested in having the legality of an administrative action litigated." The Bee Bee judge would likely add that Save-a-Bird's financial and other contributions to the protection of the animals are irrelevant to the standing analysis.

Finally, Save-a-Bird might just wind up in a "wild card" court such as the Twyford Parish court. There, Save-a-Bird might be dismissed rather summarily on the ground that it did not "suffer enough" from the state's failure to carry out the directive.

The paper now turns to the case of Germany.

2. Germany.

Like the United States, Germany uses standing as an instrument to further separation of powers. The German separation of powers debate, however, aims at separating law from politics more than achieving a desirable degree of mutual control between institutions.[107] German standing doctrine is built on deeply-engrained principles against the general legality view of access to court and the right of citizen groups to challenge administrative action. These principles have yielded standing rules that deprive organizations such as Save-a-Bird of standing, except in a few carefully limited circumstances.[108] Thus, in Germany, Save-a-Bird's action would in all likelihood not be admissible.

The German legal and political systems distinguish sharply between the "private rights" of individuals and issues of public interest. Individuals' private rights are protected by an independent judiciary. Issues of public interest are entrusted to a sovereign state standing in theory above warring social factions and determining the public good. "Restrictive standing rules are one of the legal instruments that maintain the categorical distinction between law and politics, rights and the public interest. They prevent the politicization of legal claims, the judicialization of executive decision-making, and the arrogation of sovereign law-making authority to private parties."[109]

The German restrictive view of standing is to a large extent a function of that country's history. "The German system of administrative courts derives its origin from the times of the semi-authoritarian monarchy in the late 19th century: its function was to protect personal freedom and property of the subjects against the state, but otherwise deny them any influence on the monarchic administration. The essence of this concept is still upheld in [the restrictive standing doctrine]".[110]

Some scholars have also argued that Germany's adherence to restrictive standing rules stem from its experience with authoritarian Nazi rule, which led German jurists to conclude with substantial certainty that a strict subjective approach to standing is essential for the preservation of an independent judiciary. From the early years of German public law until the Nazis came to power, two divergent views of standing cohabited. In Prussia and the Northem State, systems sharing some of the attributes of the "general legality model" were implemented. In those states, the judiciary was generally viewed as a presence "inside" the bureaucracy charged with overseeing its adherence to positive norms. This approach rejected restrictive standing rules tied to individual plaintiffs as inconsistent with the general objective of the judiciary.[111] Several Southern states adopted a different approach, labeled as the "individual rights" model. This approach rejected the notion of a judiciary "inside" the bureaucracy as inconsistent with the protection of individual rights. It held that a truly independent judiciary should perform its task from the point of view of private individual rights, rather than from the "bureaucracy's perspective of regularity, feasibility or convenience."[112]

The Nazi jurists seized upon the objective legal model, which they found compatible with the purposes of the Reich. They installed an administrative judiciary controlled by the State. Its function was to ensure that the Reich's bureaucracy properly carried out the instructions of the Fuhrer. The Nazis' propaganda also did its best to discredit the subjective rights model as a "liberal bourgeois-monstrosity."[113]

The general legality view of standing, it is argued, thus became associated with totalitarianism. This would then explain why the German legal system regards individual rights as fundamental and yet adopts a very narrow view of what may be characterized as a right of access to justice.[114] (This approach is reflected in the construction of the Basic Law's grant of a right of legal redress, which the courts have held to apply only to individual complaints and to preclude the assertion of "public interest" rights.)"[115]

The German rules of associational standing in actions against the government that Save-a-Bird would encounter reflect the theoretical approach followed by Germany. On the judicial side, the courts deny standing to associations in Save-a-Bird's position. Some judges have expanded slightly the rules of standing in the environmental field to grant access to judicial review to persons living sufficiently close to the source of the alleged harm. For instance, residents living within a 20 -mile radius of nuclear power plants have been granted standing on the ground that possible accidents might endanger them.[116] However, these rulings have not been extended to associations representing the diffuse interests of the environment.[117]

Save-a-Bird would also find that the German federal and state legislatures have not been generous in granting associational standing. Thus, familiar arguments as to the enforcement deficit of the environmental laws were advanced to the Federal legislative level in the course of the debate over the enactment of a statute for the protection of nature. The legislature, however, rejected the notion of associational standing and settled instead for a scheme whereby groups certified by the administration may participate in administrative decisions.[118]

A few German states, in what interestingly constitutes the only exception to the restrictive German approach to associational standing, adopted some statutes granting environmental associations limited standing rights. These statutes, however, apply to limited subject-matter areas and often condition the grant of standing to challenge an administrative action on participation by the agency in the administrative proceeding leading to the action. Further, these statutes also have been construed narrowly by the courts. Thus, in a case involving the construction of a controversial runway in the Frankfurt airport, an administrative agency allowed an association to participate in the proceedings but excluded it unilaterally from the decision-making process with respect to certain issues. In a subsequent action brought by the association to challenge the resolution of these issues, the court held that the association had no recourse against its exclusion and that, not having participated in the proceeding, it could not be heard to challenge it.[119]

Thus, in Germany, Save-a-Bird would have a rather slim chance to gain access to court.

The paper now moves on to discussing the Italian case.

3. Italy.

Italy has chosen to address the issues surrounding associational standing issues by adopting an approach whereby the legislature defines the class of plaintiffs that may obtain access to court in various substantive law areas. Under this approach, the legislature uses the standing tool as an instrument to control the judiciary by allowing or disallowing the judges from accepting cases brought by certain classes of plaintiffs. As applied in the Italian case, this approach also allows the legislature to define the type of associations that are likely to produce "quality litigation." Thus, in Italy, the relevant inquiry in Save-a-Bird's case would focus on whether the organization meets the legislatively defined criteria. In Save-a-Bird's case, these standards would likely allow the organization to obtain from the Minister of the Environment a certification giving the organization a blank check to represent the diffuse interests of wildlife.

A litigant will have standing to bring a case before an Italian administrative court if it demonstrates an "interest in acting' ("interesse ad agire") and a "power or authority to act" ("legitimazione ad agire"). The first requirement generally requires a plaintiff to litigate only issues rising above the level of a hypothetical or academic question, and has been compared to the Article III case or controversy requirement of the United States Constitution. The second requirement refers to the plaintiff's power to seek a judicial decision on the merits of its claims, and has been frequently used by the Courts to deny access to judicial review.[120]

The Italian courts focus their inquiry on the intent of the statute involved rather than on the extent to which the challenged action may be causally linked to a particularized harm to the plaintiff. This inquiry seeks to determine whether the plaintiff belongs to a class of person to whom the legislator intended to give a cause of action. (It is analogous to the inquiry undertaken by American courts seeking to determine whether a given statute "implies" a private right of action, as opposed to merely establishing a norm that public authorities are responsible to enforce.)[121]

The litigation over associational standing in the administrative courts has produced moderately liberal rules of standing whereby associations seeking to represent diffuse interests will have standing if they show a sufficient connection to the interests at stake. The Consiglio di Stato (Italy's highest administrative court) held, for instance, that an environmental organization had standing to challenge the construction of a road through a national park in Northern Italy. In reaching this result, however, the Consiglio introduced a requirement that the environmental organization have a direct geographic connection to the relevant issues. The Consiglio di Stato reached a similar result under a building construction law, granting standing only to those living in the vicinity of the site of the illegal construction.[122]

The primary legal activity over associational standing, however, has taken place in the Italian Parliament. The Parliament has enacted laws explicitly granting standing to associations meeting specified criteria which do away with some of the restrictions imposed by the administrative courts. The 1986 Environmental Law, for instance, establishes a certification procedure available to environmental organizations that are present in at least five regions. Organizations may seek certification by the Minister of the Environment, who must base his or her decision on an evaluation of the organization's stated purposes, its "internal democratic character", the "continuity of its actions" and its "external relevance" ("rilevanza esterna"). An advisory body comprising representatives of the government and of previously certified groups has the right to comment on any application for certification.[123]

Groups certified pursuant to this procedure may represent the "diffuse interests" of the environment, and "file complaints in administrative courts seeking the annulment of illegal actions" without the necessity of showing that any of their individual members was affected by the challenged act. Under these provisions, for example, an environmental association that brought an action challenging the adoption of noise regulations that allegedly discriminated against small businesses was not required to demonstrate that its membership included affected businesses."[124]

Thus, the Italian approach addresses the separation of powers and procedural concerns that underlie the standing doctrine by defining legislatively, in specific subject-matter areas, the class of complainants that may enforce the law. The rules that have evolved out of this approach favor organizations such as Save-a-Bird. Here, Save-a-Bird's national reputation, its internal democratic procedure, lenient admissions process and involvement in important social issues would all support its application for certification by the Minister of the Environment. Once admitted, Save-a-Bird would have a blank check to litigate environmental issues.

C.What Do These Standing Issues Mean for Save-a-Bird?.

This Part was intended to show that Save-a-Bird's case raises additional problems linked to the specific features of the standing doctrine, as applied to the litigation of diffuse interests. The first problem is that, if it required the national court in a case such as Save-a-Bird to set aside its national rules of associational standing, the Court would thrust itself in the middle of important, historically rooted separation of powers concerns. As mentioned above, the Court has indicated in cases such as Factortame I its willingness to interfere with such sensitive policies for the sake of effectiveness of European law and the effective protection of the rights that it creates. The case of associational standing, however, presents more complex issues than the Court has faced before, primarily because of the difficulties involved in substituting a European associational standing standard, applicable to cases arising under Community law, to the national rules.

As discussed in this part, the Member States follow widely divergent doctrinal approaches to associational standing, emphasizing different aspects of the doctrine. The rules governing associational standing also may differ within a single Member State, such as England, with judges interpreting broad language to further their individual policy preferences. We have also seen that associational standing cases often involve intensively fact-specific inquiries. Further, associational standing is in a state of flux, taking shape based on the outcome of the debate on the issue in the Member States. If the Court decides that effective judicial protection and effet utile require national judges to grant associations standing to litigate diffuse interests, it will need to provide some guidance to national courts as to what principles should be substituted for the widely divergent, fluctuating and case-specific approaches to associational standing followed by the Member States.

First, as it has done in the past, the Court will likely attempt to draw an analogy from Community law. However, the Court will not find much guidance because it has generally followed a subjective, restrictive approach to associational standing. Thus, in actions brought under article 173 to challenge Community measures, associations will have standing only if they show that their own interest, as distinguished from the diffuse interests of their members, are affected by the action. Thus, an association could challenge a Commission decision that curtails its freedom of assembly or access to information. However, the association could not challenge in the Court a measure that affects the interests of its members, even if it was specifically formed to protect the interests of the members. This approach is, in essence, the same approach as the German courts apply.[125]

In these circumstances, the Court would be left with the formidable task of developing from scratch associational standing principles applicable to claims brought under Community law in the national courts. Where, in the absence of uniform principles among the Member States or a rule of Communiy law applicable by analogy, should the Court derive the requisite principles? Should it follow an approach akin to the Italian methodology and define the class of plaintiffs who can gain access to court in specific subject-matter areas? Should it adopt a relation of "sufficient proximity" test such as the one advocated by Judge Woolf? These thorny problems would be complicated by the necessity of giving national courts sufficient guidance to apply these principles on a case by case basis, or get itself ready for a cascade of Article 177 references that would give the national courts a "crash course" in associational standing as understood by the Court.

Further, the Court's intrusion into national procedures is likely to encounter resistance at the national judicial level. Professor Caruso, in her article on national resistance to European integration,[126] writes that "compliance with EC law has been, for national judges, an experience of empowerment within their own institutional arenas." National courts, however, "pursue private law integration only in so far as it fosters their sense of control over civil adjudication and increases their powers vis-à-vis national legislators. If the trend of harmonization ... is in line with some unspoken mission of the judiciary, then courts will bypass the shortcomings of internal legislation ... In any other case, following European guidelines might result in an experience of institutional disempowerment. It may be better for judges to then cling to the dogmas of private law."[127] I have documented above the reluctance of some judges to accept associational standing. Their lack of sympathy for associational litigation would likely compound their resentment of the Court's intrusion into national judicial matters.

I stated in the introduction that the primary purpose of this paper is to demonstrate that the doctrines of effective judicial protection and effet utile may be construed to require national courts to give standing to associations litigating diffuse interests, but that doing so raises some seemingly intractable problems. Should we, then, conclude that the Court should refrain from entering the quagmire of associational standing. I will let the reader draw his or her own conclusions, but will suggest in the conclusion of the paper a possible way out of the problem.

[59] See, generally, P. Stanley, STANDING FOR GROUPS IN ENGLISH ADMINISTRATIVE LAW 63 (unpublished LLM thesis, Harvard University School of Law 1992).

[60] Id. (citations omitted)

[61] Stanley, supra note 59 provides a comprehensive overview of the treatment of groups in political theory.

[62] See Hirst, Representative Democracy and Its Limits, 59 Political Quarterly 190, 196 (1988).

[63] See Stanley, supra note 59 at 31 (citation omitted).

[64] Rousseau, DU CONTRAT SOCIAL, quoted in Stanley, supra note 59 at 53.]

65 Id. at 54.

[66] Rousseau, supra note 64, quoted in Stanley, supra note 59 at 62.

[67] Id. at 62.

[68] See, e.g., Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L.Rev. 881 (1983).

[69] See, generally, Parker, Standing to Litigate "Abstract Social Interests" in the United States and Italy: Reexamining Injury-in-Fac, 33 Colum. J. Transnat'l L. 259 (1995).

[70] See Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992).

[71] See Greve, The Non-Reformation of Administrative Law, Standing to Sue and Public Interest Litigation in West German Environmental Law, 22 Cornell Int'l L. J. 197, 229-233 (1989). The case law and commentary on associational standing are summarized in Poisner, Environmental Values and Judicial Review after Lujan: Two Critiques of the Separation of Powers Theory of Standing, 18 Ecology L.Q. 335 (1991).

[72] Greve, supra note 71.

[73] Id. at 229. See also Shapiro, The Supreme Court from Warren to Burger, in THE NEW AMERICAN SYSTEM 179-212 (1980).

[74] Greve, supra note 71 at 229-230.

[75] Id. at 230.

[76] See Parker supra note 69.

[77] See Tushnet, The Sociology of Article III: A Response to Professor Brilmayer, 93 Harv. L. Rev. 1698, 1708 (1980). Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 Harv. L. Rev. 297 (1979).

[78] Id.

[79] Tushnet, supra note 77 at 1708.]

80 Id.

[81] See, e.g., Brilmayer, supra note 77.

[82] See Tushnet, supra note 77.

[83] See Stanley, supra note 59; Albor-Llorens, PRIVATE PARTIES IN EUROPEAN COMMUNITY LAW 39-40 (1996).

[84] Stanley, supra note 59 at 9-22.

[85] Id.

[86] See Tushnet, supra note 77 at 1708.

[87] See Stanley, supra note59 at 19.

[88] R.S.C. Order 53, Rule 3(7).

[89] R. v. Inland Revenue Commissioners ex parte Federation of Self-Employed and Small Businesses Ltd., [1982] A.C. 617.

[90] See Hough, Standing for Pressure groups and the Representative Plaintiff, 1991 Denning L.J. 77.

[91] Geddes, Locus Standi and EEC Environmental Measures, 4 J. Envt'l L. 29, 33 (1992) (citations omitted).

[92] Id.

[93] Id.

[94] Id.

[95] [1990] 1 Q.B. 504.

[96] Geddes, supra note 91 at 34.

[97] Unreported decision described in Geddes, supra note 91 at 34-35.]

98 Id.

[99] Stanley, supra note 59 at 19.

[100] Hough, supra note 90 at 83 (citations omitted).

[101] Id. at 79-80.

[102] I have based my discussion of this case on a Lexis transcript and a summary of the case in Stanley, supra note 69 and Hough, supra note 90.

[103] Hough, supra note 90 at 80-81.

[104] [1981] All E.R. 545.

[105] R. v. Inspectorate of Pollution ex p. Greenpeace, [1994] 4 All E.R. 329.

[106] Twyford Parish Council & Others v. Sec. of State for the Environment and Sec. of State for Transport, unreported case discussed in Geddes, supra note 91 at 35.

[107] Greve, supra note 108 at 232.

[108] See generally Ormond, Environmental Group Actions in West Germany, in Fuhr and Roller ed., PARTICIPATION AND LITIGATION RIGHTS OF ENVIRONMENTAL ASSOCIATIONS IN EUROPE: CURRENT LEGAL SITUATION AND PRACTICAL EXPERIENCE (1991); Greve, The Non-Reformation of Administrative Law: Standing to Sue and Public Interest Litigation in West German Environmental Law, 22 Cornell Int'l L. J.(1989); Koch, Class and Public Interest Action in German Law, Civil Justice Quarterly.

[109] Id.

[110] Ormond, supra note 108 at 81.

[111] Greve, supra note 108 at 236.

[112] Id. at 237.

[113] Id. at 238.]

114 Id. at 239.

[115] Id. at 197.

[116] Koch, supra note 108 at 74.

[117] Greve, supra note 108 at 224-225.

[118] Id. at 202, 213-215. See also Koch, supra note 98.

[119] Greve, supra note 38 at 202, 213-215.

[120] Parker, supra note 31 at 276; Capelletti & Perilo, CIVIL PROCEDURE IN ITALY 147 (1965).

[121] Parker, supra note 31 at 279-280.

[122] Id. at 281-285.

[123] Id. at 285-290.

[124] Id. at 290-292.

[125] See, e.g., Confederation Nationale des Producteurs de Fruits et Legumes v. Council, [1963] C.M.L.R. 160; DEFI v. Commission, [1988] C.M.L.R. 156. See also M. Fromont, L'INFLUENCE DU DROIT FRANCAIS ET DU DROIT ALLEMAND SUR LES CONDITIONS DE RECEVABILITE DU RECOURS EN ANNULATION DEVANT LA COUR DE JUSTICE DES COMMUNAUTES EUROPEENNES 63 (1962).

[126] Caruso, The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration (1996). Jean Monnet Paper, Harvard Law School.

[127] Id. at 18.

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