[TRANSLATION]

the FACTS

The application was lodged by 78 individuals1, the majority of whom reside in the local authorities of Esch-sur-Alzette and Schifflange in Luxembourg, and the association Greenpeace, which has its registered office in Esch-sur-Alzette. All the applicants, who either own or rent their homes, are Luxembourg nationals.

They were represented before the Court by Mr F. Entringer, of the Luxembourg Bar.

A.  The circumstances of the case

Since the end of the Second World War, Luxembourg, which has a long industrial tradition in iron and steel, has concentrated the country’s steelworks on three major sites (Esch-Schifflange, Differdange and Esch-Belval), passing legislation where possible, especially since 1990, to reduce air and water pollution and the quantity of waste products. The solution chosen was not to adapt the existing plants but rather to change the production methods from traditional processes to electrically-fired steelworks, which were considered to be less polluting.

Accordingly, the ARBED S.A. company, which operates several steelworks, decided to change its production methods and to produce steel from scrap instead of iron ore. With a view to building a new electrically-fired steelworks on the boundary between the local authorities of Esch-Alzette and Schifflange, the company applied for licences to the Minister of Labour and the Minister of the Environment, in accordance with the Act of 9 May 1990 on dangerous, unhealthy and offensive establishments, which requires establishments in the first category, which were considered to be the most dangerous, to be licensed. The company was granted the licences, to which a number of conditions were attached, in the form of decisions taken by the two ministers dated 3 and 5 February 1993 respectively.

On 8 April 1993 the applicants lodged an application to set aside the two ministerial decisions coupled with an application to vary them, in which they requested modification of the qualifying conditions for the licence concerning, in particular, emissions of gas and dust, including emissions of dioxin and furan, reduction of pollutant waste and noise abatement.

They argued in particular that the authorities responsible for granting the operating licence had not required the use of the best possible technology to avoid the risk of air pollution, and criticised the impact studies made in 1992 by the Institute for Environmental Protection and Energy Technology in Cologne (TÜV Rheinland).

Since the joint application did not have suspensive effect, the new electrically-fired steelworks was brought into production in late 1993.

In 1994 various newspaper articles reported nauseating and intolerable smells around the steelworks. Others stated that the inhabitants of Esch-Schifflange had to throw away their vegetables, which had been contaminated by heavy metals.

In a judgment of 3 May 1995 the Conseil d’Etat ruled firstly on the admissibility of the applicants’ application to set aside in the following terms:

“Whereas, pursuant to section 31 of the amended Act of 8 February 1961 on the organisation of the Conseil d’Etat, an application to set aside is admissible before the Judicial Committee only with respect to decisions which are subject to no other kind of appeal under the legislation and regulations; whereas, pursuant to section 13 of the Act of 9 May 1990 on dangerous, unhealthy and offensive establishments, decisions concerning the licences of those establishments may form the subject of an appeal to the Judicial Committee of the Conseil d’Etat, which rules on the merits at first and last instance, the application to set aside must be declared inadmissible.”

With regard to the submission by the ARBED S.A. company that the application to vary the decisions should be declared inadmissible for lack of a specific personal interest in the matter, sufficiently individual in nature not to be subsumed in the general interest of the population as a whole, the Conseil d’Etat held:

“Whereas the applicants submitted that as owners or lessees of their residences, they lived, in the case of the nearest, 300 metres away from the factory, while the farthest lived less than one and a half kilometres away;

Whereas applicants nos. 9, 12, 56, 73 and 74 do not live in the immediate vicinity of the electrically-fired steelworks of Esch/Schifflange; whereas, moreover, those applicants have not submitted that they suffered any personal injury arising directly from the decision complained of; ...

Whereas the company and the representative of the Government also pleaded in defence against the other applicants, natural persons living in Esch-sur-Alzette and Schifflange, that the application was inadmissible as they had failed to establish an existing, personal and legitimate interest;

Whereas those applicants have submitted that they live in the immediate vicinity of the plant, that by this appeal they are defending their health and their quality of life and that the probability of a danger of inconvenience or nuisance is sufficient, without the applicants being required to prove a direct relationship between the alleged nuisance and the plant;

Whereas a judicial appeal is only available to persons who can assert that they have suffered a personal injury as a direct result of the decision complained of and distinct from the general interest of the community ... whereas it does not suffice to submit that some interest or other has been prejudiced in order to be able to commence legal proceedings, it being also necessary to provide evidence of individual prejudice which, if not probable, is at least reasonably foreseeable,

The application must consequently be declared inadmissible for lack of standing.”

As to the applicants’ submissions based on Article 6 § 1 of the Convention concerning their standing to take legal proceedings, in which they had argued that everyone should have access to a court to which they could submit their civil-law claims, the Conseil d’Etat held: “Article 6 § 1 is not intended to guarantee everyone a hearing by a tribunal even in the absence of standing to commence legal proceedings”.

B.  Relevant domestic law

Act of 9 May 1990 on dangerous, unhealthy and offensive establishments

Section 1: Scope

“The provisions of this Act shall apply to any establishment of an industrial, craft or commercial nature, whether public or private, whose existence or operation may present dangers or nuisances either for the safety, health or comfort of the public, local residents or staff of the establishment, or for the human and natural environment.”

Section 13: Appeal

“An appeal shall lie against decisions taken under sections 10, 11, 12 and 16(2) to the Judicial Committee of the Conseil d’Etat, which shall rule on the merits at first and last instance.”

Section 22: Criminal penalties

“1.  Any breach of the provisions of sections 1, 5, 9, 11, 12, 14, 15, 16 and 17 of this Act ... shall be punishable by eight days to six months’ imprisonment and/or a fine of between 2,501 and 5,000,000 francs.

2.  In the case ... of operation which is not in accordance with the conditions of operation, any party with an interest, having joined criminal proceedings as a civil party, may ask the trial court to order the closure of the establishment.

3.  ...

“Where operation does not comply with the conditions attached to the licence, the court may either set a time-limit within which the operator must comply with the conditions, or order the closure of the establishment concerned. Where a time-limit is set, the court remains competent to rule on any difficulties in execution that may arise. Upon expiry of the time allowed, which may not be longer than two years, the court shall order the closure of the establishment concerned at the request of the Public Prosecutor’s Office or the civil party.”

Section 24: Administrative sanctions and measures

2.  Any interested party may make a request [to the ministers for the establishments in Category 1] for implementation of the measures contemplated in the preceding paragraph [setting a time-limit for compliance by the operator, temporarily suspending operation or construction, closure of the establishment or placing official seals]. ... [The] answers given to a request for suspension or closure of an establishment or a construction site are administrative decisions from which an appeal on the merits lies to the Judicial Committee of the Conseil d’Etat. Such an appeal must be introduced within forty days of notification of the minister’s answer, failing which the right to appeal shall be forfeited.”

COMPLAINTS

1.  The applicants complained of a violation of Article 8 of the Convention. They submitted that because the conditions attached to the operating licences for electrically-fired steelworks were inadequate, their right to respect for their homes and private and family life safeguarded by Article 8 of the Convention had been infringed, on the ground that since the steelworks in question had started operating nuisances had arisen.

2.  The applicants further complained that the Conseil d’Etat had rejected their application to vary the decisions for lack of standing. They argued on that basis that their right of access to a tribunal had been infringed because, as the merits of their appeal had not been examined, they had been unable to obtain more stringent conditions for the operation of the steelworks so as to protect the environment and local residents. They relied on Article 6 § 1 of the Convention.

PROCEDURE

The application was introduced before the European Commission of Human Rights (“the Commission”) on 17 October 1995 and registered on 8 November 1995.

On 4 September 1996 the Commission decided to give notice of the application to the Government, and to invite them to submit their written observations on the admissibility and merits of the application.

The Government submitted their observations on 8 November 1996. The applicants replied on 13 February 1997.

Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998 the case fell to be examined by the Court, pursuant to Article 5 § 2 of that Protocol.

the LAW

1.  The applicants complained of damage to the environment that affected their quality of life and deprived them of the peaceful enjoyment of their homes (or of their registered office in the case of the association Greenpeace), in such a way as to infringe their right to respect for their private and family life, safeguarded by Article 8 of the Convention, which provides:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the [interest] of ... the economic well-being of the country ...”

The Government submitted that after the steelworks began production the applicants had not started proceedings to obtain a ruling ordering the cessation of the alleged nuisance. They further argued that the existence and the intensity of the nuisances complained of and the causal link between those nuisances and the applicants’ quality of life had not been established. Moreover, while it was true that when the steelworks had first been brought into production it had not completely complied with the conditions attached to the operating licences, the Government had taken every step necessary to ensure compliance as soon as possible.

With respect to the fair balance to be struck between economic interests and the rights of the applicants, the Government emphasised the importance of the iron and steel industry in Luxembourg and submitted that full impact studies had been carried out before and after the grant of the operating licence, that the norms imposed were particularly stringent in comparison with those of other European countries and that the technology used was the best possible.

The applicants did not deny that the operating licence had been granted under the Act of 9 May 1990 and with the objective of the economic well-being of the country. However, they asserted that the iron and steel industry in present-day Luxembourg was not so important as the Government had submitted.

Further, they maintained that the Government’s argument that studies had been carried out was certainly not proved. They also argued that, whatever studies had been carried out and whatever norms imposed, these were in any event so inadequate as to justify an appeal which had not even been examined on the merits.

The Court must first examine whether the applicants can claim to be the “victims” of a violation of Article 8 of the Convention, within the meaning of Article 34 of the Convention.

In order to be able to rely on that provision, two conditions must be met: an applicant must fall into one of the categories of petitioners mentioned in Article 34, and he must be able to make out a prima facie case that he is the victim of a violation of the Convention. It is clear that the first condition has been met since the first 78 applicants are individuals and the 79th is a non-governmental organisation.

With regard to the association Greenpeace-Luxembourg, the Court considers that a non-governmental organisation cannot claim to be the victim of an infringement of the right to respect for its “home”, within the meaning of Article 8 of the Convention, merely because it has its registered office close to the steelworks that it is criticising, where the infringement of the right to respect for the home results, as alleged in this case, from nuisances or problems which can be encountered only by natural persons. In so far as Greenpeace-Luxembourg sought to rely on the difficulties suffered by its members or employees working or spending time at its registered office in Esch-sur-Alzette, the Court considers that the association may only act as a representative of its members or employees, in the same way as, for example, a lawyer represents his client, but it cannot itself claim to be the victim of a violation of Article 8 (see X v. France, application no. 9939/82, Commission decision of 4 July 1983, Decisions and Reports (DR) 34, p. 213).

As for the other applicants, some of whom, moreover, do not live within the boundaries of the local authorities of Esch or Schifflange, the Court notes that the application to vary an administrative decision lodged by the applicants in April 1993 was directed against the operating licences of an electrically-fired steelworks which had not yet been built. It was therefore not a matter of the applicants putting an end to a violation of Article 8 of the Convention, but rather trying, by obtaining stricter operating conditions, to prevent it.

From the terms “victim” and “violation” in Article 34 of the Convention, like the underlying philosophy of the obligation to exhaust all domestic remedies imposed by Article 35, it can be deduced that, in the system for the protection of human rights as envisaged by the framers of the Convention, exercise of the right of individual petition cannot have the aim of preventing a violation of the Convention. It is only in wholly exceptional circumstances that the risk of a future violation may nevertheless confer the status of “victim” on an individual applicant, and only then if he or she produces reasonable and convincing evidence of the probability of the occurrence of a violation concerning him or her personally: mere suspicions or conjectures are not enough in that respect.

In the instant case, the Court considers that the mere mention of the pollution risks inherent in the production of steel from scrap iron is not enough to justify the applicants’ assertion that they are the victims of a violation of the Convention. They must be able to assert, arguably and in a detailed manner, that for lack of adequate precautions taken by the authorities the degree of probability of the occurrence of damage is such that it can be considered to constitute a violation, on condition that the consequences of the act complained of are not too remote (see, mutatis mutandis, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 33, § 85). In the Court’s opinion, it is not evident from the file that the conditions of operation imposed by the Luxembourg authorities and in particular the norms dealing with the discharge of air-polluting wastes were so inadequate as to constitute a serious infringement of the principle of precaution.

It is true that the applicants argued that since the steelworks started operating in late 1993 nuisances, in particular smells, had occurred. But the Court notes that the applicants produced little evidence of the existence and intensity of the nuisances complained of or about the causal link between those nuisances and the applicants’ quality of life (see the López Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, pp. 54-55, § 51).

It is also not contested that the Luxembourg authorities took all necessary measures, after steel production began, to ensure that the steelworks complied as soon as possible with the conditions of the operating licences. Lastly, it is also not contested that under Luxembourg law the applicants have access to civil and criminal remedies which would enable them to complain of verifiable consequences for their health or their quality of life resulting from the start of steel production at ARBED’s electrically-fired plant.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected pursuant to Article 35 § 4.

2.  The applicants complained of a violation of their right of access to a court on account of the Conseil d’Etat’s rejection of their application to vary the decisions for lack of standing. They relied on Article 6 § 1 of the Convention which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to [a] ... hearing ... by an independent and impartial tribunal established by law...”

The Government, who did not contest the applicability of Article 6 to the proceedings, argued firstly that the applicants had several remedies available to them, both criminal and civil, such as, for example, an action for damages before the ordinary courts or an application for an injunction. They also observed that no complaint for failure to comply with the conditions under the operating licences had been filed.

Moreover, according to the Government, litigants’ standing had to be assessed in relation to the specific case; the fact that the applicants’ standing had not been recognised in the present case did not constitute a violation of Article 6 § 1 of the Convention, but was rather a legitimate measure to restrain unmeritorious applications. Furthermore, the Court’s case-law left States a margin of appreciation with regard to regulation of the right of access to tribunals.

The applicants submitted that their sole objective had been to have even stricter conditions attached to the operation of the steelworks concerning the environment and the well-being of local residents. In order to do this, they had had only one remedy available to them: that of asking the Conseil d’Etat to vary the decisions. They accepted that the Conseil d’Etat was empowered to assess the merits of the case in order to determine whether the issue of the operating licence had been justified on the facts and in law.

As to their standing, the applicants maintained that the Government, in seeking to justify their interpretation of the concept of standing, had referred to Luxembourg law, whereas the case-law of the Court concerning Article 34 of the Convention gave the concept of victim an autonomous meaning that had to be interpreted independently of concepts of domestic law concerning such matters as standing or capacity to take legal proceedings.

The Court reiterates that Article 6 § 1 applies to a dispute over a right which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope, and the manner of its exercise. Lastly, the outcome of the proceedings must be directly decisive for such a right. The Court has consistently held that tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see the Balmer-Schafroth and Others v. Switzerland judgment of 26 August 1997, Reports of Judgments and Decisions 1997-IV, pp. 1357 and 1359, §§ 32 and 40, in which the Court held that Article 6 § 1 did not apply in a case which concerned an appeal to the Swiss Federal Council challenging an extension of the validity of a nuclear power station’s operating licence).

In the instant case, as the applicants failed to establish a direct link between the conditions imposed by the operating licences and personal damage that was, if not probable, at least reasonably foreseeable, the Court does not find it necessary to consider whether the outcome of the proceedings could be considered to be directly decisive for the right invoked by the applicants to respect for their homes and their private and family life (see, mutatis mutandis, the Balmer-Schafroth judgment cited above, p. 1359, § 40). The Court considers that the complaint concerning lack of access to a tribunal must, in any event, be dismissed in the instant case for the following reasons.

The Court notes that Luxembourg law did indeed give the applicants, acting as either the “public” or local residents, the right to challenge the administrative operating licences. That right was conferred by the Act of 9 May 1990 (see above: “Relevant domestic law”). It also notes that in their application to vary the decisions the applicants asked the Conseil d’Etat to change the conditions attached to the operating licences of the Esch-Schifflange electrically-fired steelworks on the ground that, in their opinion, the new plant had serious defects and did not meet the most up-to-date safety standards, seeking to prove the existence of the technical deficiencies and the need to lessen the resulting danger to local residents and the environment in general by every available means.

The Court notes first of all that the applicants did not deny that the Conseil d’Etat is a “tribunal” within the meaning of Article 6 of the Convention. It further notes that the proceedings brought by the applicants before the Conseil d’Etat fall into the category of judicial review proceedings in which that court has very broad discretion enabling it to determine whether the administrative decision was justified both on the facts and in law, or even to substitute its own decision for that of the administrative authority. It follows that the applicants cannot maintain that they did not have “access” to a tribunal with full jurisdiction for the purposes of Article 6 § 1 of the Convention.

It is true that the application to vary the decisions was dismissed by the Conseil d’Etat on the ground that the applicants had failed to show that they had standing.

The applicants asserted that the dismissal of their application on that ground amounted to the denial of their status as “victims” of a violation of the Convention. The case-law of the Convention institutions has always affirmed the autonomous scope of the concept of “victim” in Article 34 of the Convention, particularly in relation to concepts under internal law such as standing or capacity to take part in legal proceedings. As to the right of access to a tribunal, it cannot be taken to mean, as the applicants would have it, that when a tribunal with the fullest possible jurisdiction, as in the instant case, dismisses an application for lack of standing it thereby denies the individual litigant access to a tribunal with jurisdiction to examine an alleged infringement of his substantive rights.

There are some situations where even though under internal law a person has the standing or capacity to undertake legal proceedings, he will not necessarily be considered a “victim”, within the meaning of Article 34 of the Convention, in the absence of a sufficiently direct link between the applicant and the prejudice he thinks he has suffered (see Tauira and 18 others v. France, application no. 28204/95, Commission decision of 4 December 1995, DR 83-B, p. 112). The Court reiterates in that connection that the Convention does not allow an actio popularis but requires as a condition for exercice of the right of individual petition that an applicant must be able to claim on arguable grounds that he himself has been a direct or indirect victim of a violation of the Convention resulting from an act or omission which can be attributed to a Contracting State.

In the instant case, the Court considers that the dismissal of the applicants’ appeal for lack of standing did not restrict their access to a tribunal. Their application to vary the decisions was directed against the operating licence of a new electrically-fired steelworks, even before its construction was completed. The nuisances mentioned by the applicants did not arise until production began. Moreover, under Luxembourg law, the applicants individually have legal remedies available to them to put an end to the alleged violations of Article 8 of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and it must therefore be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

1.  A detailed list of applicants can be obtained from at the Registry of the Court.


Asselbourg and others v. luxembourg DECISION


Asselbourg and Others v. LUXEMBOURG DECISION