Standing Rights of NGOs in the European Union - Diverse Models of Legal Protection on National and EU Level

Legal activism has been one of the main drivers of EU integration in the last decades with activist judges and affected litigants pushing the frontiers of integration ever further. At the same time, despite numerous calls from the ECJ/CJEU for effective means for enforcing EU rights on the national level, extensive differences persist in standing rights throughout the member states which cannot be explained by pointing to path-dependency and legal traditions. In this paper we address the question of a legal level playing field and discuss the two-faces approach of EU institutions regarding standing rights: While pressure on the member states is high on establishing a level playing field in legal terms, the EU is itself a laggard when it comes to apply these very rights. Focusing on a recent Aarhus Convention-related case-law, we ask for explanations for this situation and address the question whether the credibility of the EU legal activism might suffer from this discrepancy. In the framework of indirect (national) implementation, the paper examines a certain group of Member States, where the function of the administrative judicial review was historically characterised by the ‘impairment of rights’ doctrine. The German, Austrian, Czech, Slovak and Hungarian jurisdictions nowadays also restrict the personal scope of potential plaintiffs before national courts, and declare the violation of subjective rights, sometimes the violation of interests, as a prerequisite to that. In contrast, the CJEU (and the former ECJ) has facilitated a broader access to justice of citizens and NGOs before national courts since the Van Gend & Loos judgement, in order to enforce the Community law against the not necessarily loyal national administrations. As a result, it is a clear challenge for the legislation and law enforcement of the member states how to respond to this broadening tendency. In spite of this broadening tendency, the CJEU in actions for annulment (annulment procedure) still insists on the judicial protection of subjective rights at EU-level. This is expressed by Plaumann test elaborated in its case-law, according to which a direct and especially personal concern (as potential plaintiff to be member of a closed, fixed group) is required to have standing right at EU-level. The reason behind the still prevailing, predominantly subjective tendency of judicial protection at EU-level is that certain elements of the guarantee system of judicial protection have been unaltered since the early phases of the integration. It has to be seen, however, that by the broadening of direct implementation this concept becomes more and more obsolete.