Costs and Time Limits
The practice shows there are many issues concerning Art. 9(4) of the Aarhus Convention requirements that the review procedures should, inter alia, provide adequate and effective remedies, including legally mandated relief where appropriate, and should be fair, equitable, timely, and not costly. These requirements are reflected in the various EU directives, notably Art. 11 (formerly Art. 10(a)) of the EIA Directive, but not in the vast majority of EU environmental law, even though they should apply to all court proceedings concerning environmental matters based on the Aarhus Convention.
However, unlike Art. 9(2) or Art. 9(3) of the Aarhus Convention, Art. 9(4) is not capable of direct applicability in EU law, despite the broader requirement of Art. 47 of the EU Charter of Fundamental Rights, which enshrines the right to an effective remedy. The national courts are merely obliged to interpret national law in such a way as to achieve, as far as possible, a result that is consistent with the objective pursued by these rules. See Klohn (C-167/17), para. 29: “In that regard, it must be borne in mind, first, that the fifth paragraph of Article 10a of Directive 85/337 as amended simply provides that the judicial proceedings concerned ‘shall be fair, equitable, timely and not prohibitively expensive’. Given the general nature of the words used, it is difficult to envisage how those provisions may be regarded as imposing sufficiently precise obligations on the Member States in order to dispense with national implementing measures.”
This means that the representatives of the public concerned may invoke the direct effect of EU law to achieve access to judicial protection but no longer to ensure that the proceedings are not disproportionately costly or too lengthy.
As a result, when the CJEU interprets what exactly is meant by excessive costliness of legal proceedings in cases such as C-260/11 (Edwards and Pallikaropoulos), and C-427/07 (Commission v Ireland), or C-530/11 (Commission v United Kingdom), the impact of its conclusions is limited. This is of crucial importance for planning and construction disputes as these often pose high financial risks the national legislator (or the court) is tempted to delegate to the public concerned.
See Edwards and Pallikaropoulos (C-260/11), para. 33: “…the requirement that the cost should be ‘not prohibitively expensive’ pertains, in environmental matters, to the observance of the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, and to the principle of effectiveness, in accordance with which detailed procedural rules governing actions for safeguarding an individual’s rights under European Union law must not make it in practice impossible or excessively difficult to exercise rights conferred by European Union law…”.
The rules following from the first abovementioned judgment (Edwards) can be summarised as follows: 1) as regards the means capable of achieving the objective of effective legal protection in the field of environmental law without disproportionate costs of proceedings, all relevant provisions of national law, and in particular the national legal aid system, must be taken into account; 2) the national court must also take into account the interest of the person seeking to defend his rights and the general interest in protecting the environment. The requirement that there be no disproportionate legal costs cannot be assessed differently by the national court depending on whether it is ruling at first instance, on appeal, or on a further appeal. The second judgment (Commission v Ireland) emphasises that all costs associated with the proceedings must be taken into account and that the mere possibility for the courts to waive the imposition of fees (administrative practice) does not stand up to the requirements of the EIA Directive. The third judgment (Commission v United Kingdom) then shows that the requirement that the costs of the proceedings not be disproportionate also applies to granting interim measures (and thus, for example, to the granting of suspensive effect).