Case C‑530/11

European Commission

v

United Kingdom of Great Britain and Northern Ireland

‛Failure of a Member State to fulfil obligations — Public participation in decision-making and access to justice in environmental matters — Concept of ‘not prohibitively expensive’ judicial proceedings’

Summary — Judgment of the Court (Second Chamber), 13 February 2014

Environment — Assessment of the effects of certain projects on the environment — Directives 85/337 and 96/61 — Transposition of Directive 2003/35 — Right to bring proceedings — Requirement that proceedings not be prohibitively expensive — System of cross-undertakings in respect of the grant of interim relief — Included

Environment — Assessment of the effects of certain projects on the environment –Directives 85/337 and 96/61 — Transposition of Directive 2003/35 — Right to bring proceedings — Requirement that proceedings not be prohibitively expensive — Discretion granted to national courts — Need for a rule of law ensuring that proceedings are not prohibitively expensive

The transposition of a directive does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific, express provision of national law and a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner. In particular, where the relevant provision is designed to create rights for individuals, the legal situation must be sufficiently precise and clear, and the persons concerned must be put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts. It cannot be considered that every judicial practice is uncertain and inherently incapable of meeting the requirements of clarity and precision necessary in order to be regarded as valid implementation of the obligations arising from Articles 3(7) and 4(4) of Directive 2003/35 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 Directives 85/337 and 96/61. (see paras 33-36)

See the text of the decision. (see para. 39)

The requirement that proceedings not be prohibitively expensive, laid down by Articles 3(7) and 4(4) of Directive 2003/35 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 Directives 85/337 and 96/61, does not prevent the national courts from making an order for costs in judicial proceedings provided that they are reasonable in amount and that the costs borne by the party concerned taken as a whole are not prohibitive. In that regard, 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, which enables the claimant to obtain, at an early stage of the proceedings, a cap on the amount of costs that may be payable, ensures greater predictability as to the cost of the proceedings and contributes to compliance with that requirement. However, the abovementioned provisions of Directive 2003/35 can be regarded as correctly transposed only if national courts are obliged by a rule of law to ensure that the proceedings are not prohibitively expensive for the claimant. The mere fact that, in order to determine whether a Member State’s national law meets the objectives of Directive 2003/35, the Court is obliged to analyse and assess the effect of various decisions of the national courts, and therefore of a body of case-law, whereas EU law confers on individuals specific rights which would need unequivocal rules in order to be effective, leads to the view that the transposition is in any event not sufficiently clear and precise. Furthermore, 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 that proceedings not be prohibitively expensive if it becomes apparent that courts may make a protective costs order only if the issues to be resolved are of public interest or that they are not required to grant such protection where the cost of the proceedings is objectively unreasonable or where only the particular interest of the claimant is involved. (see paras 44, 54-57)

See the text of the decision. (see paras 60-62)