Today the European Court of Justice gave judgment in Case C 530/11 European Commission v United Kingdom of Great Britain and Northern Ireland  ECR 0000.
These were infraction proceedings related to a complaint made to the Commission by the WWF-UK (later to become one of the constituent bodies of CAJE) made in December 2005 regarding the UK’s failure to comply with the Aarhus Convention so far as applied by Directive 2003/35/EC.
The CJEU’s judgment relates to the law and practice as it stood at 22 May 2010; the date for compliance with the Reasoned opinion and thus pre-dating cases like Garner (see below) and the recent Aarhus rules changes on costs. Garner was given some consideration, but the recent rules changes were not.
The CJEU found that in relation to the law as it stood at 22 May 2010 the UK was non-compliant with Directive 2003/35. On prohibitive expense it reiterated the guidance it gave in Case C-260/11 Edwards and Pallikaropoulos  ECR. The CJEU recognised that “it should be stated first of all that the discretion available to the court when applying the national costs regime in a specific case cannot in itself be considered incompatible with the requirement that proceedings not be prohibitively expensive. Furthermore, the possibility for the court hearing a case of granting a protective costs order ensures greater predictability as to the cost of the proceedings and contributes to compliance with that requirement” (see para. 54). But held that:
“57. Thus, the very conditions under which the national courts rule on applications for costs protection do not ensure that national law complies with the requirement laid down by Directive 2003/35 in several respects. First, the condition, laid down by the national case-law, that the issues to be resolved must be of public interest is not appropriate and, even should it be accepted, as the United Kingdom pleads, that this condition was removed by the judgment of the Court of Appeal in R (on the application of Garner) v Elmbridge Borough Council and Others, that judgment, which was delivered after the period laid down in the reasoned opinion expired, could not be taken into account by the Court in the present case. Second, in any event, the courts do not appear to be obliged to grant protection where the cost of the proceedings is objectively unreasonable. Nor, finally, does protection appear to be granted where only the particular interest of the claimant is involved. These various factors lead to the conclusion that in practice the rules of case-law applied do not satisfy the requirement that proceedings not be prohibitively expensive within its meaning as defined in Edwards and Pallikaropoulos.
58 It is also apparent from the foregoing that that regime laid down by case-law does not ensure the claimant reasonable predictability as regards both whether the costs of the judicial proceedings in which he becomes involved are payable by him and their amount, although such predictability appears particularly necessary because, as the United Kingdom acknowledges, judicial proceedings in the United Kingdom entail high lawyers’ fees.
59 The United Kingdom expressly concedes, moreover, in paragraph 70 of its defence that until the judgment of the Court of Appeal in R (on the application of Garner) v Elmbridge Borough Council and Others the principles governing protective costs orders did not comply in every respect with European Union law.”
On reciprocal caps the Commission’s complaints were not upheld; the Advocate-General’s comments on these matters were thus not endorsed. The CJEU said “the Commission merely stated in its reasoned opinion that, if the national court grants such a reciprocal costs order, the claimant may be obliged to pay part of his lawyer’s fees, but without also giving details concerning the conditions for application of that practice or its financial consequences … It must therefore be held that the Commission’s argument appears insufficiently supported to be capable of examination”.
The CJEU also found the regime governing interim relief as at 2010 was insufficient for transposition, although it recognised that “the conditions under which the national court grants such interim relief are, in principle, a matter for national law alone, provided that the principles of equivalence and effectiveness are observed. The requirement that proceedings not be prohibitively expensive cannot be interpreted as immediately precluding the application of a financial guarantee such as that of the cross-undertakings where that guarantee is provided for by national law. The same is true of the financial consequences which might, as the case may be, result under national law from an action that constitutes an abuse”.
James Maurici QC appeared for the UK Government before the CJEU in Commission v UK and also in Edwards and Pallikaropoulos.