What 'Not Prohibitively Expensive' Means In Terms Of Assessment Of Costs In Environmental Cases: The Edwards Case.

Author:Mr Deborah Spence and Maeve Larkin
Profession:Arthur Cox

The Queen on the application of Edwards and Pallikaropoulos -v- Environment Agency, First Secretary of State and Secretary of State for Environment, Food and Rural Affairs

CJEU Case C-260/11

The Court of Justice of the European Union ("CJEU") has recently delivered a judgment on the requirement that litigation in environmental matters should not be "prohibitively expensive". The judgment is expected to have significant impacts on legal costs in litigation involving environmental concerns in Ireland, particularly where individual members of the public are involved.

Background to the Edwards case

Edwards and Pallikaropoulos took proceedings against the Environment Agency and others, challenging a decision of the Environment Agency to issue a permit for the operation of a cement works. Their case was dismissed on appeal and, in the normal way, the House of Lords (now the UK Supreme Court) ordered Edwards and Pallikaropoulos to pay the costs of the opposing parties, which were disputed and amounted to more than £88,000.00. In the course of the disputed costs hearings the Supreme Court referred a number of questions to the CJEU for a preliminary ruling.

The questions involved the interpretation of Article 9(4) of the Aarhus Convention, as implemented by Article 10a of the EIA Directive and the IPPC Directive. The key question concerned the meaning to be given to the phrase "the requirement that judicial proceedings in environmental matters should not be prohibitively expensive" (the "NPE Requirement").

CJEU Decision

The CJEU delivered its decision on 11 April 2013. It began by clarifying, by reference to the decision in Commission v. Ireland (Case C-427/07), that the NPE Requirement does not prevent an order for costs being made. Costs, it stated, must be assessed as a whole, taking into account all costs involved in the proceedings. Due to the necessity for uniform application of EU law, the CJEU found that it was not a matter for national laws alone to decide how the cost of litigation is to be assessed in order to establish whether the cost is prohibitively expensive.

The CJEU stressed the importance of the NPE Requirement, as it underpins the right to an effective remedy as set out in Article 47 of the Charter of Fundamental Rights of the European Union, and facilitates the objective of the EU legislature which is to ensure wide access to justice. It held that a person should not be prevented from taking a case because of the financial...

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