On 6 April 2011, the European Commission announced that it has decided to refer the UK Government to the Court of Justice of the European Communities under Article 258 TFEU, for failing to provide affordable access to justice in environmental cases.
This blog has previously charted some of the twists and turns in the process of showing that environmental challenges are currently “prohibitively expensive” within the meaning of Article 9(4) of the Aarhus Convention – not the least of which was a complaint to the Aarhus Compliance Committee which was upheld by that Committee in October 2010. And the underlying concern is the state of the costs rules under which a claimant may be ordered to pay tens of thousands of pounds of costs if he loses, despite the developing case law on Protective Costs Orders designed to mitigate this.
The decision to commence infraction proceedings before the CJEU arises out of a complaint made by the Coalition for Access to Justice for the Environment, a group of environmental NGOs, as long ago as 2005. The wheels of that process have not exactly run fast, and the UK can hardly complain that it does not know what is coming. The Commission sent the UK a letter of formal notice in respect of the complaint in December 2007 and issued the UK with a Reasoned Opinion on 18 March 2010.
So, you might think, we all now know exactly why the Commission considers that the UK is non-compliant, and we can therefore analyse those claims before we get judgment, and indeed inform our domestic courts precisely what issues are to be before the CJEU.
In line with current Commission practice, neither the Commission’s letter of formal notice or the Reasoned Opinion is publicly available – an oddity, if not a considerable irony, given that the EU itself is signed up to Aarhus and its rights to environmental information. It implements what it conceives to be its Aarhus obligations via its own Regulation 1049/2001 applicable to EU institutions. Some member states volunteer these potentially embarrassing documents (these include, no surprises, Netherlands, Sweden and Denmark, and exclude, equally no surprises, the UK). The Commission refuses to disclose either letter of formal notice or reasoned opinion, apparently on the grounds that such information amounts to documents concerning “inspections, investigations and audits” under Article 4(2) of Regulation 1049/2001, and it appears unwilling to accept that an overriding public interest lies in the disclosure of these documents under the same provision.
So the procedure will wend its way through the CJEU without the rest of us knowing precisely what it is all about until we get to the stage of the Advocate-General’s opinion. Only then, it appears, can the rest of us be trusted with this information.
You will look in vain for anything addressing the costs difficulties posed by Aarhus in the Ministry of Justice’s response of 29 March 2011 to consultation on the Jackson report – all we are told is that Qualified One-way Cost Shifting (i.e. abating the ordinary costs rules in favour of claimants) is not to be extended to cases other than personal injury and clinical negligence. The Aarhus argument commands 3 lines (para.176) – with no governmental response. Pity – because if ever there was an opportunity to amend the costs regime in environmental cases, it is at the moment, as part of the wide-ranging reforms which the MoJ is otherwise supporting. After all, it is not as if the problem is miraculously going away. The Aarhus Compliance Committee has declared the UK to be in breach. The CJEU is going to be hearing infraction proceedings, and it also will be considering the Article 267 reference from the Supreme Court in Edwards on what prohibitive expense means – is it subjective (this claimant) or objective (ordinary claimants)? So, sooner or later, something will have to be done – setting the domestic courts a host of questions in the meanwhile.
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