European Commission v United Kingdom of Great Britain and Northern Ireland.
Date: 2014-02-13
33. According to settled case-law, 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 (see, to this effect, inter alia, Case 29/84 Commission  v Germany  [1985] ECR 1661, paragraph 23, and Commission  v Ireland , paragraph 54).
34. 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 (see, to this effect, inter alia, Case C-233/00 Commission  v France  [2003] ECR I-6625, paragraph 76).
35. The Court has thus ruled that a judicial practice under which the courts simply have the power to decline to order an unsuccessful party to pay the costs and can order expenditure incurred by the unsuccessful party to be borne by the other party is, by definition, uncertain and cannot meet 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 (see, to this effect, Commission v Ireland , paragraph 94).
39. According to settled case-law, whilst the letter of formal notice from the Commission and the reasoned opinion delimit the subject-matter of the proceedings, so that it cannot thereafter be extended, that requirement cannot be carried so far as to mean that in every case the statement of complaints in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings has not been extended or altered (see, to this effect, inter alia, Case C-358/01 Commission v Spain [2003] ECR I-13145, paragraphs 27 and 28).
40. The Court has also held that, although the reasoned opinion must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the FEU Treaty, the letter of formal notice cannot be subject to such strict requirements of precision, since it cannot, of necessity, contain anything more than an initial brief summary of the complaints. There is therefore nothing to prevent the Commission from setting out in detail in the reasoned opinion the complaints which it has already made more generally in the letter of formal notice (see, to this effect, Commission  v Spain , paragraph 29).
44. As to the merits of the Commission’s arguments, it should be recalled that the requirement that proceedings not be prohibitively expensive 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 (see, to this effect, Case C-260/11 Edwards and Pallikaropoulos  [2013] ECR, paragraphs 25, 26 and 28).
45. Where a court makes 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 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, however, satisfy itself that the requirement that proceedings not be prohibitively expensive 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 (see, to this effect, Edwards and Pallikaropoulos , paragraph 35).
46. As regards the relevant assessment criteria, the Court has held that, where European Union law lacks precision, it is for the Member States, when they transpose a directive, to ensure that it is fully effective and they retain a broad discretion as to the choice of methods (see, to this effect, inter alia, Edwards and Pallikaropoulos , paragraph 37 and the case-law cited). It follows that, as regards the methods likely to achieve the objective of ensuring effective judicial protection without excessive cost in the field of environmental law, account must be taken of all the relevant provisions of national law and, in particular, of a national legal aid scheme as well as of a costs protection regime such as that applied in the United Kingdom (see, to this effect, Edwards and Pallikaropoulos , paragraph 38).
47. However, the court cannot limit its assessment to the financial situation of the person concerned, but must also conduct an objective analysis of the amount of the costs, particularly since members of the public and associations are naturally required to play an active role in defending the environment. To that extent, the cost of the proceedings must neither exceed the financial resources of the person concerned nor appear, in any event, to be objectively unreasonable (see, to this effect, Edwards and Pallikaropoulos , paragraph 40).
48. The analysis of the financial situation of the person concerned cannot be based exclusively on the estimated financial resources of an ‘average’ claimant, since such information may have little connection with the situation of the person concerned (see, to this effect, Edwards and Pallikaropoulos , paragraph 41).
49. Furthermore, the court may 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 law and the applicable procedure and the potentially frivolous nature of the claim at its various stages (see, to this effect, Edwards and Pallikaropoulos , paragraph 42 and the case-law cited), but also, where appropriate, costs already incurred at earlier levels in the same dispute.
50. The fact that the claimant has not been deterred in practice from bringing his action is not in itself sufficient to establish that the proceedings are not prohibitively expensive for him (see, to this effect, Edwards and Pallikaropoulos , paragraph 43).
51. Finally, that assessment cannot differ depending on whether the national court is adjudicating at the conclusion of first-instance proceedings, an appeal or a second appeal (see, to this effect, Edwards and Pallikaropoulos , paragraph 45).
60. As regards the argument raised by the Commission that the costs protection regime also does not comply with European Union law in so far as protective costs orders involve a ‘reciprocal cap on costs’ enabling the defendant public authority to limit its financial liability if it loses the case, which indirectly reduces the protection conferred by a fee agreement, it is to be recalled that in proceedings brought under Article 258 TFEU for failure to fulfil obligations it is for the Commission to prove the allegation that an obligation has not been fulfilled. It is the Commission’s responsibility to place before the Court the information required to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption (see, inter alia, the judgment of 22 November 2012 in Case C‑600/10 Commission v Germany , paragraph 13 and the case-law cited).
64. As regards the system of cross-undertakings imposed by the court in respect of the grant of interim relief, which, as is apparent from the documents submitted to the Co urt, principally involves requiring the claimant to undertake to compensate for the damage which could result from interim relief if the right which the relief was intended to protect is not finally recognised as being well founded, it is to be recalled that the prohibitive expense of proceedings, within the meaning of Articles 3(7) and 4(4) of Directive 2003/35, concerns all the financial costs resulting from participation in the judicial proceedings, so that their prohibitiveness must be assessed as a whole, taking into account all the costs borne by the party concerned (see Edwards and Pallikaropoulos , paragraphs 27 and 28), subject to the abuse of rights.
65. In addition, it is apparent from settled case-law that a national court seised of a dispute governed by European Union law must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under European Union law (see, to this effect, Case C-416/00 Križan and Others [2013], paragraph 107 and the case-law cited), including in the area of environmental law (see Križan and Others , paragraph 109).
70. As to the United Kingdom’s argument that the limiting of cross-undertakings could result in infringement of the right to property, the Court consistently acknowledges that the right to property is not an absolute right, but must be viewed in relation to its social function. Its exercise may therefore be restricted, provided that those restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, disproportionate and intolerable interference, impairing the very substance of the right guaranteed (see, to this effect, Križan and Others , paragraph 113 and the case-law cited). Protection of the environment is one of those objectives and is therefore capable of justifying a restriction on the exercise of the right to property (see, also, to this effect, Križan and Others , paragraph 114 and the case-law cited).