Official Journal of the European Union

C 156/5

(Case C-260/11) (<a id="ntc1-C_2013156EN.01000501-E0001" href="#ntr1-C_2013156EN.01000501-E0001"> (<span class="super">1</span>)</a>

(Environment - Aarhus Convention - Directive 85/337/EEC - Directive 2003/35/EC - Article 10a - Directive 96/61/EC - Article 15a - Access to justice in environmental matters - Meaning of ‘not prohibitively expensive’ judicial proceedings)

2013/C 156/07

Language of the case: English

Referring court

Parties to the main proceedings

Applicants: David Edwards, Lilian Pallikaropoulos

Defendants: Environment Agency, First Secretary of State, Secretary of State for Environment, Food and Rural Affairs,

Re:

Request for a preliminary ruling — Supreme Court of the United Kingdom — Interpretation of Article 10a of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Directive 2003/35/EC of the European Parliament and of 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 — Statement by the Commission (OJ 2003 L 156, p. 17) — Interpretation of Article 15a of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26), as amended by Directive 2003/35/EC — Interpretation of Article 9(4) of the (Aarhus) Convention on access to information, public participation in decision-making and access to justice in environmental matters concluded, on behalf of the European Community, by Decision of the Council of 17 February 2005 (OJ 2005 L 124, p. 1) — An order that the unsuccessful party pay the costs of the proceedings — Meaning of ‘not prohibitively expensive’ judicial proceedings

Operative part of the judgment

The requirement, under the fifth paragraph of Article 10a of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment and the fifth paragraph of Article 15a of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, that judicial proceedings should not be prohibitively expensive means that the persons covered by those provisions should not be prevented from seeking, or pursuing a claim for, a review by the courts that falls within the scope of those articles by reason of the financial burden that might arise as a result. Where a national court is called upon to make an order for costs against a member of the public who is an unsuccessful claimant in an environmental dispute or, more generally, where it is required — as courts in the United Kingdom may be — to state its views, at an earlier stage of the proceedings, on a possible capping of the costs for which the unsuccessful party may be liable, it must satisfy itself that that requirement has been complied with, taking into account both the interest of the person wishing to defend his rights and the public interest in the protection of the environment.

In the context of that assessment, the national court cannot act solely on the basis of that claimant’s financial situation but must also carry out an objective analysis of the amount of the costs. It 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, the potentially frivolous nature of the claim at its various stages, and the existence of a national legal aid scheme or a costs protection regime.

By contrast, the fact that a claimant has not been deterred, in practice, from asserting his claim is not of itself sufficient to establish that the proceedings are not prohibitively expensive for him.

Lastly, that assessment cannot be conducted according to different criteria depending on whether it is carried out at the conclusion of first-instance proceedings, an appeal or a second appeal.

(<span class="super">1</span>) OJ C 226, 30.7.2011.