Private Enforcement of Environmental Law in the European Union
Abstract:The idea of writing this chapter came while reading the 1991 conference held by Professor Hans Ulrich Jessurun d'Oliveira at the European University Institute in Florence, entitled “Class Actions in relation to Cross-Border Pollution. A Dutch Perspective”. It dealt with a new topic in Europe at that time: the application of a procedural device in environmental matters, by which people whose rights and interests are shared by a group or by the public at large are granted access to justice. Its procedural speciality lies in the fact that final judgement will be binding on group members, even though most of them are absent from the proceedings.
Class actions accomplish three functions: access to justice, procedural economy and behaviour modification. These functions correspond to Principle 10 of the 1992 United Nations Conference on Environment and Development, held in Rio de Janeiro. Principle 10 specifies that sustainable development relies on public access to decision-making processes, and thus justice.
Since then, collective actions, linked to the recognition of diffuse and collective interests, have gained ground in Europe. Environmental protection is among these collective interests, but its recognition as such has not been accompanied by the correlative implementation of collective proceedings. The term itself, “collective action”, deserves definition, for which it is useful to remember the distinction between the protection of collective interests, and the collective protection of individual rights as outlined by the EU Green Paper on Consumers’ Access to Justice. In the case of the collective protection of individual rights, collective action seeks compensation for class members by grouping subjective rights, which have in common questions of fact or law, to be resolved in the same proceeding. That is not possible in the protection of collective interests, because collective interests matter to everyone and no-one in particular, these are interests in which it is not possible to identify subjective rights. Such a characterisation certainly makes the distinction between collective and public interests more ambiguous, and casts doubts on the intervention of private law.