The definition of actio popularis

Actio popularis” has its origins in Roman law where the weakness of the institutions then in place, notably the police and magistrates, allowed its emergence. The concept of actio popularis was also developed at a time when the border between private and public law was still blurred. For this reason, the actio popularis has constituted a sort of intermediate category, between public action and civil action.

In Roman law, actio popularis was defined as “A legal instrument allowing any citizen to denounce before a judge facts relating to public order or public property”. Thus, the actio popularis was characterised by the attribution to all Roman citizens of the right to defend collective or common interests in court. No particular attention was paid to whether or not the Roman citizen invoking the actio popularis was directly injured. In other words, the latter did not need to act selflessly; he could well invoke actio popularis in order to protect his personal interests, provided that his action also served to protect the common interest. Ultimately, the Roman actio popularis recognized a kind of solidarity between the interests of the community and the interests of the individual.

If certain analogies can be drawn between the Roman actio popularis and what is today known as the actio popularis in international or domestic law, it is nevertheless necessary to distinguish them.

According to French François Voeffray, author of “Actio popularis or the defense of the collective interest before international courts”, three main elements should be brought together to bring an actio popularis before an international court. These three elements include the applicant’s formal right of access to the court concerned, the existence of a title establishing appropriately the jurisdiction of the court seized in relation to the dispute in question, and the possession by the applicant of a quality to act in the general interest.

However, in international legal thought, differences of opinion can be observed regarding the use of this mechanism, ranging from the complete denial of actio popularis to its full recognition and application in judicial protection. In fact, the acceptance of actio popularis comes up against the development of the international legal order which generally tends to orbit the State. The International Court of Justice is a perfect illustration of this problem since it leaves the possibility of being a party to a dispute before it only to the States.

In international law, there has so far been only one definition of actio popularis that can be found in the South West Africa case which occupied the International Court of Justice from 1962 to 1966. In this case, Liberia and Ethiopia wished to question the apartheid policy of South Africa in the former South West Africa (Namibia). However, the Court had opposed in 1962 the use of actio popularis, claiming that the applicant States were not entitled to act since none of their subjective rights had been infringed. On July 18, 1966, during the second phase of the trial, the Court declared the action inadmissible on the ground that no damage had been suffered directly by Liberia or by Ethiopia.

In the words of the International Court of Justice in the 1966 judgement, the actio popularis would constitute “A right for each member of a community to bring an action in defense of a public interest”. It recalls, however, that “While some systems of domestic law may know this concept, international law as it currently stands does not recognise it and the Court cannot see it as one of the main general principles of law mentioned in Article 38, paragraph 1 (c) of its Statute”. The International Court of Justice therefore does not prohibit this type of action but reserves the recognition of its existence to casuistry, when this is expressly provided for. This definition of action popularis proposed by the International Court of Justice has been strongly criticised and often described as incomplete and restrictive. It must be noted that the international legal order has been drawn up in such a way as to favour the defense of individual interests.

In Europe, an attempt to introduce actio popularis into national law relating to environmental issues was made through the adoption of the Aarhus Convention. Article 9, paragraph 3, of the Convention requires each State party to the Convention to ensure that “Members of the public may initiate administrative or judicial proceedings to contest the acts or omissions of individuals or of public authorities going against the provisions of their national environmental legislation”.

States are gradually becoming aware that environmental problems affect them all more or less directly. One solution could be to have a mechanism enabling one or more States to seize international jurisdiction in the name of a common interest in a healthy environment, recognized at the Stockholm and Rio Conferences. The chamber specialising in environmental law has never been used, while recourse to an actio popularis could provide a solution to a growing problem. But for many, the concept still lacks clarity.

Internal legal orders, like the international legal order, have also been built around the individual. The parties act only to defend their own interests, and the potential benefit to the others is indirect. However, in countries where the actio popularis mechanism exists, it undoubtedly contributes to the protection of human rights, the environment, economic and commercial law as well as to the development of practice and legal thought.

Indeed, various countries have incorporated actio popularis into their legislation, although its influence is often relative. Thus, Belgian law accepts actio popularis under the term “Action of collective interest”. However, the civil chamber of the Brussels Court of Cassation specified in a decision of October 5, 2001 that “To be admitted to court, you must have been directly and personally injured in your own interests”, before adding that “Collective action is not allowed in our law, except in rare exceptions provided by law”. The role played by actio popularis in Belgian law is therefore marginal.

In Hungary, actio popularis had been recognized in the Constitution and the Law on the Constitutional Court in its version in force between 1989 and 2011. Thus, article 32 / A (3) of the Hungarian Constitution specified that “The procedure before the Constitutional Court (could) be initiated by anyone, in cases defined by law”. This short provision thus indicated that the procedure for the a posteriori review of constitutionality of a legal rule or other legal means of state administration could be initiated by anyone. Despite the contributions made by actio popularis in Hungarian law, notably with regard to the development of coherent case law of the Constitutional Court, it was finally abolished in 2012 on the occasion of a profound reform of the Hungarian constitutional system. These examples tend to show that national systems, although more inclined to accept actio popularis than international law, face the same reluctance and the same difficulties.

This article was written by Anna CIBERT (Paris-Saclay).