Advocate-General’s opinion in Case C-260/11…

Advocate-General Kokott today gave her opinion in the reference made by the Supreme Court in R. (on the application of Edwards & another) v Environment Agency [2010] UKSC 57; [2011] 1 W.L.R. 79.

The case involves consideration of whether in relation to costs in cases covered by the EIA and IPPC Directives (and implementing in part Article 9 of the Aarhus Convention) the assessment of whether litigation is or is not “prohibitively expensive” to be decided on an 'objective' basis by reference (for example) to the ability of an 'ordinary' member of the public to meet the potential liability for costs, or should it be decided on a 'subjective' basis by reference to the means of the particular claimant, or upon some combination of the two bases?

The questions referred by the Supreme Court were these:

“1. How should a national court approach the question of awards of costs against a member of the public who is an unsuccessful claimant in an environmental claim, having regard to the requirements of Article 9(4) of the Aarhus Convention, as implemented by article 10a 85/337/EEC and article 15a 96/61/EEC (‘the Directives’)?
2. Should the question whether the cost of the litigation is or is not ‘prohibitively expensive’ within the meaning of Article 9(4) of the Aarhus Convention as implemented by the Directives be decided on an objective basis (by reference, for example, to the ability of an ‘ordinary’ member of the public to meet the potential liability for costs), or should it be decided on a subjective basis (by reference to the means of the particular claimant) or upon some combination of these two bases?
3. Or is this entirely a matter for the national law of the Member State subject only to achieving the result laid down by the Directives, namely that the proceedings in question are not ‘prohibitively expensive’?
4. In considering whether proceedings are, or are not, ‘prohibitively expensive’, is it relevant that the claimant has not in fact been deterred from bringing or continuing with the proceedings?
5. Is a different approach to these issues permissible at the stage of (i) an appeal or (ii) a second appeal from that which requires to be taken at first instance?”

The Advocate-General proposes these answers:

“1. 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.

2. 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.

3. 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.

4. 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.”

At paras. 29 – 30 of her opinion the Advocate-General said:

“29. Consequently, it is not only a question of preventing costs which are excessive, that is to say disproportionate to the proceedings, but above all the proceedings may not be so expensive that the costs threaten to prevent them from being conducted. Reasonable but prohibitive costs are a possibility in particular in environmental proceedings relating to large-scale projects, since these may be very burdensome in every respect, for example with regard to the legal, scientific and technical questions raised and the number of parties.

30. It is therefore now possible to give a helpful answer to the first and third questions: Under Article 9(4) of the Aarhus Convention, Article 10a of the EIA Directive and Article 15a of the IPPC Directive, 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.”

She also said this:

“45. Taking the public interest into account does not, however, rule out the inclusion of any individual interests of claimants. A person who combines extensive individual economic interests with proceedings to enforce environmental law can, as a rule, be expected to bear higher risks in terms of costs than a person who cannot anticipate any economic benefit. The threshold for accepting the existence of prohibitive costs may thus be higher where there are individual economic interests. This possibly explains why, in a dispute over odour nuisance between persons who were neighbours, hence a case with a relatively low public interest, the Compliance Committee did not consider a claim of more than GBP 5 000 in respect of part of the costs to be prohibitive.

46. Conversely, the presence of individual interests cannot prevent all account being taken of public interests that are also being pursued. For example, the individual interests of a few people affected by an airport project cannot, upon assessment of the permissible costs, justify disregard for the considerable public interest in the case which in any event stems from the fact that the group of those affected is very much wider.

47. The prospects of success may also be relevant with regard to the extent of the public interest. A clearly hopeless action is not in the interest of the public, even if it has an interest in the subject-matter of the action in principle.

48. As regards the level of permissible costs, it is lastly significant that provisions of the Convention on judicial proceedings are to be interpreted with the aim of ensuring ‘wide access to justice’. ‘Wide access to justice’ is admittedly only expressly mentioned in Article 9(2) of the Convention and the corresponding provisions of the directives in connection with the preconditions for an action relating to a sufficient interest and the impairment of a right. However, Article 9(2) at least makes clear that this is a general objective of the Convention. This principle of interpretation must therefore also apply in determining permissible costs. It would not be compatible with wide access to justice if the considerable risks in terms of cost are, as a rule, liable to prevent proceedings.

49. The answer to the second question is therefore that 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.”

James Maurici appeared for the United Kingdom Government