Access to Justice

As regards costs for bringing an environmental case before courts, Member States must ensure that judicial review procedures to challenge decisions, acts and omissions relating to EU environmental law are not prohibitively expensive so that they constitute a potential major deterrent. Hence, a cost regime has to be shaped in such a way as to guarantee that rights conferred by the EU can be effectively exercised.

The “not prohibitively expensive” concept refers to all of the costs of participating in a procedure, including financial guarantees that a claimant is asked to provide, and applies to all judicial stages. Based on this, for the claimant there must be a reasonable predictability as regards both whether the costs of the judicial proceedings in which he becomes involved are payable by him, and their amount.

Regarding the application of the “loser pays principle” and other cost-allocation approaches by national courts when deciding on costs, the CJEU has stressed that both subjective and objective aspects have to be taken into consideration, such as the financial situation of the person concerned, the potential frivolous nature of the claim at its various stages, the complexity of the relevant law and procedure. The overarching aim is to guarantee that the cost of proceedings is not objectively unreasonable. With respect to the application of the “loser pays principle”, a cost-allocation approach involving cost-capping may prove useful. Namely, the CJEU considered a system of cost-capping in Commission v United Kingdom, noting that in principle the possibility for the court hearing a case to grant a protective cost order ensures greater predictability as to the cost of the proceedings and contributes to compliance with the requirement on prohibitive costs. However, several specific features of the existing cost capping systems of Member States have been proved not to be in line with the “not prohibitively expensive” requirement.

Moving now to the timeliness and efficiency of procedures, Member States are entitled to require that environmental claimants apply for judicial review within specified time limits which are reasonable. In Stadt Wiener Neustadt, the CJEU confirmed that it is compatible with EU law to lay down reasonable time limits for bringing proceedings in the interest of legal certainty. This protects both the individual and the administrative authority concerned.

Moreover, under Article 9(4) of the Aarhus Convention, Member States have to ensure that judicial review procedures are conducted in a timely manner. Timeliness of court procedures is a key guarantee that judicial review will be efficient. A general obligation to ensure a reasonable length of proceedings is also enshrined in Article 47(2) of the Charter of Fundamental Rights, which corresponds to Article 6(1) of the European Convention on Human Rights on the right to a fair trial.