Today Advocate-General Kokott gave her opinion in Case C 530/11 European Commission v United Kingdom of Great Britain and Northern Ireland. She has proposed that the Court:
- “ … declare that the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Articles 3(7) and 4(4) of Directive 2003/35/EC of the European Parliament and the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, by reason of the fact that:
- the courts’ discretion to grant costs protection is not tied to the objective of costs protection and the criteria to be applied in that connection are incompatible with those provisions,
- in proceedings covered by those provisions the courts may order reciprocal costs protection which prevents the costs of a reasonable success fee for the representation of the persons and associations covered by those provisions from being imposed upon the opposing party if the action is successful, and
- the courts in England and Wales, as well as Gibraltar, and in Northern Ireland may make necessary measures granting interim relief in proceedings covered by those provisions conditional on an undertaking to pay damages …”
She urged the Court though to reject an allegation by the Commission contesting the application of Articles 3(7) and 4(4) of Directive 2003/35/EC by the courts of the United Kingdom based on a “consistent and general practice of the United Kingdom courts”.
The opinion is available on the curia website.
The case 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 the recent Aarhus rules changes on costs.
James Maurici QC appeared for the UK.