By: David Hart KC
22 March 2012 by David Hart KC
Cases T-439/10 and T-440/10, Fulmen & Mahmoudian v. Council of the European Union, read judgment
Fulmen, as many of you will know, means thunderbolt in Latin. So it must have seemed when this Iranian company had its assets frozen. This case is a good example of how general principles of European law were applied to annul measures taken against these Iranian applicants. The measures were part of EU policy to apply pressure on Iran to end nuclear proliferation. Fulmen was said to have supplied electrical equipment on the Qom/Fordoo nuclear site and Mr Mahmoudian is a director of Fulmen. Hence they were both listed in Council Decision 2010/413/CFSP. The upshot was that all of their assets were frozen by the EU.
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21 March 2012 by David Hart KC
Kennedy v. Charity Commission et al, Court of Appeal, 20 March 2012, read judgment
Tangled web, this one, but an important one. Many will remember George Galloway’s Mariam Appeal launched in response to sanctions imposed on Iraq in 1998, and the famous picture of GG with Saddam Hussein. Well, the Appeal was then inquired into by the Charity Commission, and this case concerns an attempt by a journalist, unsuccessful so far, to get hold of the documents which the Inquiry saw. But the Commission took the 5th amendment – or rather, in UK terms, a provision in the Freedom of Information Act (s.32(2))which exempted from disclosure any document placed in the custody of or created by an inquiry. Cue Article 10 ECHR, and in particular the bits which include the freedom to receive information.
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19 March 2012 by David Hart KC
Barr v. Biffa, CA, 19 March 2012, read judgment
For the last year or so, the law of nuisance has been in a state of flux pending this appeal. In this case about an odorous landfill, Coulson J had ruled that compliance with the waste permit amounted to a defence to a claim in nuisance, and that a claimant had to prove negligence in the operation of the landfill before he could claim in nuisance. The Court of Appeal has today reversed this decision.
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15 March 2012 by David Hart KC
Welsh Ministers v. RWE Npower Renewables Ltd [2012] EWCA Civ 311 read judgment, reversing RWE Npower Renewables v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment
In my previous post on this case, I summarised the judge’s findings as to why this Planning Inspector had gone wrong at the wind farm inquiry. The Inspector turned down the appeal because the positioning of individual turbines might lead to damage to deep deposits of peat found on this site. The judge, Beatson J, thought the inspector had not explained his reasons for his conclusions in sufficiently clear a form. Nor did the Inspector give the wind farm developer an opportunity to deal with his concerns.
So said the judge. But the Court of Appeal disagreed – showing how it is not easy to “call” the merits of these reasons challenges.
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4 March 2012 by David Hart KC
Case C-41/11,Inter-Environnement Wallonie ASBL,Terre wallonne ASBL v Région wallonne, CJEU, 28 February 2012, read judgment
Some years ago, Belgium got itself into trouble for not properly implementing the Nitrates Directive, a measure designed to limit the amount of water pollution arising from muck-spreading and other good old-fashioned agricultural activities. And then it got itself into trouble under another Directive (the Strategic Environmental Assessment Directive) for the way that it then went about amending the law to address nitrates. So the nitrates amending law got annulled. But what to do then? Because a defective nitrates law was better than none at all. This was the conundrum which faced the CJEU in this recent case.
The latest round of this saga started when NGOs challenged the way in which the Walloon government sought to amend their water law in line with the Nitrates Directive. They went to the Conseil d’Etat to annul the amendment, because it did not comply with the SEA Directive. In 2009, the Conseil d’Etat referred the case to the CJEU, asking whether the nitrates amendment was a strategic plan or programme with the meaning of the SEA Directive. In 2010, (C-105/09) the CJEU said it was, in principle, it being for the domestic court ultimately to rule on the issue. In due course, the Conseil d’Etat confirmed this view by ruling that the nitrates amendment was in fact such a measure.
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19 February 2012 by David Hart KC
Solvay, CJEU, 16 February 2012 read judgment
This case is a sequel to C-128/09 Boxus, CJEU, 18 October 2011, for which see my post. Boxus was a reference from the Belgian Conseil d’Etat. Solvay was a reference from the Belgian Constitutional Court, with a wide set of questions asking, in effect, whether ratification by the Walloon Parliament of various airport and railway projects got round various challenges set by the Aarhus Convention, the EIA Directive, as amended, and the Habitats Directive.
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15 February 2012 by David Hart KC
Hardy & Maile v. United Kingdom, ECtHR, 14 February 2012 read judgment
This Strasbourg decision is the end of a long saga. Our applicants Hardy and Maile lived near proposed Liquified Natural Gas terminals at Milford Haven. In 2003 and 2004, an oil refiner obtained various consents to enable the LNG to be imported, and the applicants challenged them in the domestic courts. But the image, and the identity of its participants, will tell you that the LNG started to arrive. But Alison Hardy and Rodney Maile were not easily deflected, and after a long battle through the domestic courts ended up in the Strasbourg Court.
As we will see, they lost in their challenge to the grant of these consents, but not before establishing an interesting point about the reach of Article 8.
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2 February 2012 by David Hart KC
In October 2011, I posted on an important consultation, Cost Protection for Litigants in Environmental Judicial Review Claims, in which the Ministry of Justice wheeled out its proposals to get it out of the various scrapes caused by the expense of environmental challenges. The Aarhus Convention requires that environmental challenges not be “prohibitively expensive”, and both the European Commission and the Aarhus Compliance Committee don’t think that the English system complies – it costs way too much.
In a nutshell, MoJ were suggesting that there should be a starting point in the form of costs orders designed to protect unsuccessful claimants against excessive costs incurred by successful defendants – unsurprisingly called Protective Costs Orders. If a Claimant got permission to challenge an environmental decision, but then lost on a full judicial review hearing, he or she should have to pay no more than £5,000. In return, he should not be able to recover any more than £30,000 if he won. MoJ’s consultation period has now closed, and a very significant response has been received from Lord Justice Jackson, who recently carried out a set of mammoth reviews of litigation costs in all areas of the law.
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25 January 2012 by David Hart KC
Secretary of State for Energy and Climate Change v. Friends of the Earth and others, CA, 25 January 2012, read judgment
So, after an anxious wait for the affected businesses, the Court of Appeal has confirmed today that the Minister was too hasty in the way he went about modifying the scheme for subsidising small solar power schemes. But, as often, the Court went about things differently from the judgment below (see my initial and follow-up posts on this)
The Court held that the Minister had no power to do what he did, which was to say he was going to modify the subsidy rules in respect of schemes which had become eligible prior to the modification coming into effect. The legislation and rules are characteristically impenetrable, but the Minister proposed in a consultation, which closed on 31 October 2011, to reduce the subsidies for schemes which became eligible after 12 December 2011. The key point is that he proposed that this modification should come into force on 1 April 2012, and that those who had signed up to such a scheme between December 2011 and April 2012 lost much of their subsidy from 1 April 2012. The original scheme paid participants 43.3p per kilowatt hour for 25 years. The proposed revised scheme for these new joiners would pay them that rate until April 2012, but thereafter 21p per kilowatt hour for the rest of the 25 years.
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21 January 2012 by David Hart KC
C-28/09, European Commission v. Austria, 21 December 2011 – read judgment
Many countries in the EU are struggling to comply with its laws about air pollution. The UK is in continuing breach of its nitrogen dioxide emission limit: see my post just before Christmas. But one way a country can try to comply with these laws is by banning or limiting heavy traffic. And that is exactly what Austria did in respect of an important bit of its motorway network; it prohibited lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley. And just before Christmas, it paid the price.
The EU Court told Austria it was infringing EU law, in particular, Articles 28 and 29 of the EC Treaty (now Arts 34 and 35 of TFEU) which are the core provisions protecting free movement of goods. Why, given that it was trying to comply proactively with another requirement of EU law?
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17 January 2012 by David Hart KC
R (on the application of (1) Homesun Holdings (2) Solar Century Holdings (3) Friends of the Earth) v Secretary of State for Energy and Climate Change , Mitting J, 21 December 2011, hearing in the CA 13 & 16 January 2012
Avid readers of this blog (posted unpromisingly between Christmas and New Year) may recall this successful challenge to a proposal to modify solar power subsidies for small photovoltaic proposals (called by the judge, charmingly, “small solar systems”). At that stage, all I had was a short summary of the decision. Now a full transcript is available, albeit from behind a paywall. As importantly, the case has already bounded its way to the Court of Appeal, who have just finished hearing it, and are due to give judgment in February. I shall therefore not deal with the basis upon which the judge ruled that the change of policy was unlawful, but the broader point in my last post – when can you challenge a proposal?
The judgment is pithy and helpful for those tussling with such a problem. The Minister contended that he could consult on any proposal, and provided he had not made up his mind, he could not be judicially reviewed whilst this process was happening. Yes, said Mitting J, I agree with all that…
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2 January 2012 by David Hart KC
Case C-366/10 The Air Transport Association of America and Others, judgment of the CJEU, 21 December 2011 Opinion of Advocate-General Kokott, 6 October 2011
On 1 January 2012, the EU Emissions Trading Scheme started applying to airlines for real. So it was perhaps no coincidence that just before Christmas, and rather more speedily than usual, the EU Court (the CJEU) effectively threw out a challenge by US airlines to the scheme brought in the UK Courts which was referred to the CJEU. The airlines had said that a raft of international rules and conventions were inconsistent with the scheme. The UK denied the unlawfulness; it said, if you want to land in the EU, you have to obey EU rules. I posted on the Advocate-General’s opinion, and the Court has come to the same conclusion albeit by a slightly different route. But, first, what are these emissions trading schemes about?
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29 December 2011 by David Hart KC
R (on the application of (1) Homesun Holdings (2) Solar Century Holdings (3) Friends of the Earth) v Secretary of State for Energy and Climate Change
Admin. Ct, Mitting J, 21 December 2011, extempore judgment, so no transcript available
This successful challenge to a proposal to modify subsidies for solar power arose out of the decision by the climate change Department to amend the rules under which the subsidies were to be payable. The essential questions were whether DECC could do this whilst a statutory consultation period was running, and further whether judicial review lay against a proposal to change the system, as distinct from a challenge to the change itself.
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22 December 2011 by David Hart KC
R (CLIENTEARTH) v SECRETARY OF STATE FOR ENVIRONMENT FOOD & RURAL AFFAIRS (2011), QBD (Admin) Mitting J, 13 December 2011, extempore so transcript not available.
For some time now, the United Kingdom has known that it is in trouble under EU legislation, Directive 2008/50, limiting the amount of nitrogen dioxide in the air we breathe. The date for meeting these levels was 1 January 2010. ClientEarth, an environmental NGO, brought proceedings to enforce this obligation. They failed, despite an admitted breach by the UK. Why?
ClientEarth sought a declaration and mandatory orders against the Government for failing to comply with the levels set out in Article 13 of the Directive. Only 3 out of 43 areas and conglomerates in the UK met that target. Under Article 22, it was possible to extend the time for compliance with the limits by a maximum of five years. Recital nine to the 2008 Directive stated that where the objectives were not met, Member States were required to take steps to ensure compliance. In particular Articles 22 and 23 said that where an extension to the compliance time was sought, a Member State should publish an air quality plan indicating how compliance with the limits would be reached.
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16 December 2011 by David Hart KC
OBG Ltd et al v. United Kingdom, 29 November 2011
We have become quite used to the Strasbourg Court having a serious go at bits of our statutory law, whether it be prisoners’ rights, anti-terrorist legislation or housing law. A lot of this statute enables the state to do things to private citizens which may or may not offend the Convention. But what is rather rarer in Strasbourg is the case where an applicant challenges judge-made law or common law, and does so where the dispute is between two private parties. Perhaps the best known example is the MGN/Naomi Campbell case in which privacy and costs issues got an intense scrutiny from the Strasbourg Court.
OBG sounds much less glamorous and more obscure, but is nonetheless interesting. The human rights of companies which have been injured by the wrongful exercise of administrative receivership powers have not been minutely examined in the case law, to say the least. But if this case sounds dry, and likely to hoist me by my own petard (should lawyers get named and shamed for being boring?), bear with me. Because it is actually quite a sad story of people being dealt an unjust result – for which neither domestic nor Strasbourg courts felt able to fashion a suitable remedy.
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Cases T-439/10 and T-440/10, Fulmen & Mahmoudian v. Council of the European Union, read judgment
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