Is justice what you can afford to be done? ECJ turns to Aarhus Convention to apply ‘not prohibitively expensive’ in the EIA Directive.

In Edwards, the European Court of Justice (‘ECJ’) turned to the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, to interpret the provision ‘not prohibitively expensive’ in the European Directive on Environmental Impact Assessment (‘EIA’). These provide that members of the public (with sufficient interest) must have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the Directive. Any such procedure must be, in the words of the Directive, ‘fair, equitable, timely and not prohibitively expensive.’

The House of Lords had affirmed a Court of Appeal’s decision to dismiss the appeal of Ms Pallikaropoulos and, on 18 July 2008, ordered her to pay the respondents’ (including the Environment Agency) costs of the appeal, the amount of which, in the event of disagreement between the parties, was to be fixed by the Clerk of the Parliaments. The respondents submitted two bills for recoverable costs in the amounts of GBP 55 810 and GBP 32 290. The jurisdiction of the House of Lords was transferred to the newly-established Supreme Court and the detailed assessment of the costs was carried out by two costs officers appointed by the President of the Supreme Court. In that context, Ms Pallikaropoulos relied on Directives 85/337 and 96/61 to challenge the costs order that had been made against her.

The Supreme Court asked the ECJ inter alia

– whether 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 [those] 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?, and whether

– 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?

In 2003, the EIA Directive had been amended and specific reference had been made to the Aaurhus Convention with which, the Directive said, the EIA Directive had to be ‘properly aligned’.

The ECJ held that the cost of proceedings must neither exceed the financial resources of the person concerned nor appear, in any event, to be objectively unreasonable.  As regards the analysis of the financial situation of the person concerned, the assessment which must be carried out by the national court cannot be based exclusively on the estimated financial resources of an ‘average’ applicant, since such information may have little connection with the situation of the person concerned. The national court may also take into account the situation of the parties concerned, whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure and the potentially frivolous nature of the claim at its various stages. That the claimant has not been deterred, in practice, from asserting his or her claim is not in itself sufficient to establish that the proceedings are not, as far as that claimant is concerned, prohibitively expensive.

Plenty of criteria therefore for the Supreme Court to consider, altogether a (slight but important) dent in Member States’ national civil procedure rules.

Geert.