Volkmar Klohn v An Bord Pleanála.
Date: 2018-10-17
14


In its judgment of 16 July 2009, Commission v Ireland (C‑427/07, EU:C:2009:457, paragraphs 92 to 94), the Court held that Ireland had failed to transpose into national law the rule in Article 10a of Directive 85/337 as amended according to which procedures must ‘not [be] prohibitively expensive’.
26


The question of the direct effect of the not prohibitively expensive rule is at issue in the main proceedings as a result of Ireland’s failure to transpose the fifth paragraph of Article 10a of Directive 85/337 as amended, within the period laid down in Article 6 of Directive 2003/35, that is by 25 June 2005 at the latest. That failure to fulfil obligations was found by the Court in its judgment of 16 July 2009, Commission v Ireland (C‑427/07, EU:C:2009:457, paragraphs 92 to 94 and operative part). It is also apparent from the explanations provided by the referring court that it was not until 2011 that a national provision was adopted to transpose the not prohibitively expensive rule into national law, that is after the decision on the substance ending the judicial proceedings for which the taxation of costs is at issue in the main proceedings.
27


It must be borne in mind that provisions of EU law are directly applicable when they confer on individuals rights enforceable by them in the courts of a Member State (judgment of 4 December 1974, van Duyn, 41/74, EU:C:1974:133, paragraphs 4 and 8).
28


Such provisions impose on Member States a precise obligation which does not require the adoption of any further measure on the part either of the EU institutions or of the Member States and which leaves them, in relation to its implementation, no discretionary power (judgment of 4 December 1974, van Duyn, 41/74, EU:C:1974:133, paragraph 6).
30


Next, the Court has held that, by virtue of their procedural autonomy and subject to compliance with the principles of equivalence and effectiveness, the Member States have a discretion in implementing Article 10a of Directive 85/337 as amended (judgments of 16 February 2012, Solway and Others, C‑182/10, EU:C:2012:82, paragraph 47, and of 7 November 2013, Gemeinde Altrip and Others, C‑72/12, EU:C:2013:712, paragraph 30).
32


The Court has held in its judgment of 15 March 2018, North East Pylon Pressure Campaignand Sheehy (C‑470/16, EU:C:2018:185, paragraphs 52 and 58), that Article 9(4) of the Aarhus Convention is not directly applicable.
33


As the Court does not assess the direct applicability of the provisions of an agreement signed by the European Union according to criteria other than those that it uses in order to determine whether the provisions of a directive are directly applicable (see, to that effect, judgment of 30 September 1987, Demirel, 12/86, EU:C:1987:400, paragraph 14), it may also be concluded from the judgment mentioned in the preceding paragraph that the not prohibitively expensive rule in the fifth paragraph of Article 10a of Directive 85/337 as amended does not have direct effect.
34


Given that the provisions of Directive 85/337 as amended at issue do not have direct effect and were transposed belatedly into the legal system of the Member State concerned, the national courts of that Member State are required to interpret national law so far as possible, once the time limit for the Member States to transpose those provisions has expired, with a view to achieving the objective sought by those provisions, favouring the interpretation of the national rules which is the most consistent with that purpose in order thereby to achieve an outcome compatible with the provisions of the directive (see, to that effect, judgment of 4 July 2006, Adelener and Others, C‑212/04, EU:C:2006:443, paragraph 115 and operative part).
35


The objective pursued by the EU legislature when it laid down the not prohibitively expensive rule in Article 10a of Directive 85/337 as amended means that persons should not be prevented from seeking, or pursuing a claim for, a review by the courts, which falls within the scope of that provision, by reason of the financial burden that might arise as a result (judgment of 11 April 2013, Edwards and Pallikaropoulos, C‑260/11, EU:C:2013:221, paragraph 35). That objective, which is to give the public concerned wide access to justice, pertains, more broadly, to the desire of the EU legislature to preserve, protect and improve the quality of the environment and to ensure that, to that end, the public plays an active role, and to ensure that the right to an effective remedy and the principle of effectiveness are observed (see, to that effect, judgment of 11 April 2013, Edwards and Pallikaropoulos, C‑260/11, EU:C:2013:221, paragraphs 31 to 33).
38


According to the settled case-law of the Court, new rules apply, as a matter of principle, immediately to the future effects of a situation which arose under the old rule (judgments of 11 December 2008, Commission v Freistaat Sachsen, C‑334/07 P, EU:C:2008:709, paragraph 43 and the case-law cited; of 6 July 2010, Monsanto Technology, C‑428/08, EU:C:2010:402, paragraph 66; and of 6 October 2015, Commission v Andersen, C‑303/13 P, EU:C:2015:647, paragraph 49).
39


It is otherwise — subject to the principle of the non-retroactivity of legal acts — only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal application (judgment of 16 December 2010, Stichting Natuur en Milieu and Others, C‑266/09, EU:C:2010:779, paragraph 32).
41


Directive 2003/35 does not include any special provision as regards the conditions for the temporal application of Article 10a of Directive 85/337 as amended (judgment of 7 November 2013, Gemeinde Altrip and Others, C‑72/12, EU:C:2013:712, paragraph 23).
42


In that regard, the Court has held that Article 10a of Directive 85/337 as amended is to be interpreted as meaning that the rules of national law adopted in order to transpose that article into the national legal order ought to apply to administrative development consent procedures ongoing as at the date on which the time limit for transposing that provision expired (see, to that effect, judgment of 7 November 2013, Gemeinde Altrip and Others, C‑72/12, EU:C:2013:712, paragraph 31).
47


In that regard, there is no need to distinguish between costs depending on whether they have in practice been incurred before or after the end of the transposition period, provided that the decision on the allocation of costs has not been taken as at that date and that therefore the obligation to interpret national law in conformity with the not prohibitively expensive rule is applicable to that decision, as stated in the preceding paragraph. In addition, the Court has held that the prohibitive nature of proceedings must be assessed as a whole, taking into account all the costs borne by the party concerned (judgment of 11 April 2013, Edwards and Pallikaropoulos, C‑260/11, EU:C:2013:221, paragraph 28).
48


However, the obligation of a national court to refer to the content of a directive when interpreting and applying the relevant rules of national law is limited by the general principles of law, in particular, the principles of legal certainty and non-retroactivity (judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 63 and the case-law cited).
50


Admittedly, the principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, requires, inter alia, that rules of law be clear, precise and predictable in their effect, especially where they may have negative consequences on individuals and undertakings (judgment of 22 June 2017, Unibet International, C‑49/16, EU:C:2017:491, paragraph 43 and the case-law cited).
51


In addition, the right to rely on the principle of the protection of legitimate expectations extends to any person in a situation in which it is clear that the relevant authorities have, in giving him precise assurances, caused him to entertain expectations which are justified (see, to that effect, judgment of 14 October 2010, Nuova Agricast and Cofra v Commission, C‑67/09 P, EU:C:2010:607, paragraph 71).
53


Lastly, the Court has held that the principle of the protection of legitimate expectations cannot be extended to the point of generally preventing a new rule from applying to the future effects of situations which arose under the earlier rule (judgment of 6 October 2015, Commission v Andersen, C‑303/13 P, EU:C:2015:647, paragraph 49).
59


According to settled case-law, when national courts apply national law, they are required to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 288 TFEU (judgment of 4 July 2006, Adelener and Others, C‑212/04, EU:C:2006:443, paragraph 108 and the case-law cited).
60


The requirement for national law to be interpreted in conformity with EU law is inherent in the system of the FEU Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they determine the disputes before them (judgment of 4 July 2006, Adelener and Others, C‑212/04, EU:C:2006:443, paragraph 109 and the case-law cited).
63


In that regard, the principle of res judicata is, both in the legal order of the European Union and in national legal systems, of particular importance. In order to ensure stability of the law and legal relations, as well as the sound administration of justice, it is important that judicial decisions which have become final after all rights of appeal have been exhausted or after expiry of the time limits provided for in that regard can no longer be called into question (judgment of 11 November 2015, Klausner Holz Niedersachsen, C‑505/14, EU:C:2015:742, paragraph 38 and the case-law cited).
64


EU law does not, therefore, preclude the application of national procedural rules conferring res judicata effects on a judicial decision (judgment of 20 March 2018, Di Puma and Consob, C‑596/16 and C‑597/16, EU:C:2018:192, paragraph 31 and the case-law cited).
65


Secondly, the obligation for national law to be interpreted in conformity with EU law ceases when national law cannot be interpreted so as to achieve a result which is compatible with that sought by the directive concerned. In other words, the principle that national law is to be interpreted in conformity with EU law cannot serve as the basis for an interpretation of national law contra legem (judgments of 4 July 2006, Adelener and Others, C‑212/04, EU:C:2006:443, paragraph 110, and of 15 April 2008, Impact, C‑268/06, EU:C:2008:223, paragraph 100).
66


The Court points out that when a matter is brought before it under Article 267 TFEU, it does not have jurisdiction to assess whether the abovementioned limits preclude an interpretation of national law in conformity with a rule of EU law. Generally, it is not for the Court, when giving a preliminary ruling, to interpret national law (judgment of 1 December 1965, Dekker, 33/65
EU:C:1965:118), since the national court has sole jurisdiction in that regard (see, to that effect, judgment of 26 September 2013, Ottica New Line, C‑539/11, EU:C:2013:591, paragraph 48).
68


In those circumstances, the Court may only provide clarification designed to give the national court guidance in its assessment (judgment of 21 February 2006, Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 77) and indicate to it which interpretation of national law would fulfil its obligation to interpret that law in conformity with EU law.
69


In that regard, the Court notes that the purpose of the High Court’s decision of 6 May 2008 as to how the costs are to be borne, ordering inter alia Mr Klohn to pay the Board’s costs, is not the same as the Taxing Master’s decision giving rise to the judicial proceedings before the referring court, in that, in particular, the former decision did not fix the precise amount of the costs awarded against the applicant in the main proceedings. According to the Court’s case-law, the force of res judicata extends only to the legal claims on which the court has ruled. It does not, therefore, preclude the Taxing Master or a court, in a later dispute, from ruling on points of law on which there is no ruling in that definitive decision (see, to that effect, judgment of 11 November 2015, Klausner Holz Niedersachsen, C‑505/14, EU:C:2015:742, paragraph 36).