Key facts of the case:
Reference for a preliminary ruling from the Supreme Court (United Kingdom)
(Aarhus Convention – Directive 2003/35/EC – Directive 85/337/EEC – Assessment of the effects of projects on the environment – Directive 96/61/EC – Integrated pollution prevention and control – Access to justice – Concept of ‘prohibitively expensive’ judicial proceedings)
Results (sanctions) and key consequences of the case:
I therefore propose that the Court rule as follows:
- Under Article 9(4) of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, Article 10a of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35/EC, and Article 15a of Directive 96/61/EC concerning integrated pollution prevention and control, as amended by Directive 2003/35, it is in principle for the Member States to determine how to avoid the judicial proceedings covered not being conducted on account of their costs. However, those measures must ensure in a sufficiently clear and binding manner that the objectives of the Aarhus Convention are satisfied in each individual case and, at the same time, observe the principles of effectiveness and equivalence and the fundamental rights under EU law.
- In examining whether costs of proceedings are prohibitive, account must be taken of the objective and subjective circumstances of the case, with the aim of enabling wide access to justice. The insufficient financial capacity of the claimant may not constitute an obstacle to proceedings. It is necessary always, hence including when determining the costs which can be expected of claimants having capacity to pay, to take due account of the public interest in environmental protection in the case at issue.
- The fact that, despite the refusal of an application for a protective costs order, the claimant has not in fact been deterred from bringing or continuing with the proceedings may be taken duly into account afterwards in an order for costs if the obligation to prevent prohibitive costs was observed in the decision on the application for a protective costs order.
- It is compatible with Article 9(4) of the Aarhus Convention and with Article 10a of Directive 85/337 and Article 15a of Directive 96/61 to re-examine at each level of jurisdiction the extent to which prohibitive costs must be prevented.