Costs and Time Limits
The CJEU generally recognises that it is possible to set a reasonable time limit for bringing an action in environmental matters - as long as such a time limit does not prevent broad public access to judicial protection. As regards the possibility of a time limit for judicial review, such a procedure is, in principle, not possible if it could fundamentally impede the effective implementation of EU law or, in practice, make it impossible or excessively difficult to exercise the rights conferred by EU law. See Barth (C-542/08), para. 28: “As regards the principle of effectiveness, the Court has stated that it is compatible with European Union law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty which protects both the individual and the authorities concerned. Such time-limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by European Union law. In that regard, a national limitation period of three years appears to be reasonable.” Or Pohl (C-429/12), para. 29: “As regards the principle of effectiveness, the Court has stated that it is compatible with European Union law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty to the extent that such time-limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by European Union law.”
The CJEU thus concludes that the time limit cannot prevent the remedy of a situation where an environmental impact assessment has not been carried out. In such a case, it will not be applied by the national courts (and, where appropriate, the contested act will be annulled unless the reasons for temporarily maintaining it in force prevail). This discretion of Member States also applies, for example, to the setting of the start of the limitation period (see Q-Beef and Bosschaert, C-89/10 and C-96/10).
At the same time, however, the time limit cannot wholly prevent the remedy of violating EU environmental requirements. See Stadt Wiener Neustadt (C-348/15), paras. 42–44: “…EU law, which does not lay down any rules on the time limits for bringing proceedings against the consents issued in breach of the obligation first to assess the effects on the environment, set out in Article 2(1) of Directive 85/377, does not preclude, in principle and subject to compliance with the principle of equivalence, the Member State concerned from setting a time limit of three years for bringing proceedings, such as that provided for in Paragraph 3(6) of the UVP-G 2000, to which Paragraph 46(20)(4) of the UVP-G 2000 refers. However, a national provision under which projects in respect of which the consent can no longer be subject to challenge before the courts, because of the expiry of the time limit for bringing proceedings laid down in national legislation, are purely and simply deemed to be lawfully authorised as regards the obligation to assess their effects on the environment, which it is for the referring court to ascertain, is not compatible with that directive. As the Advocate General noted, in essence, in points 42 to 44 of her Opinion, Directive 85/337 already precludes, as such, a provision of that nature, if only because that provision has the legal effect of relieving the competent authorities of the obligation to have regard to the fact that a project within the meaning of that directive has been carried out without its effects on the environment having been assessed and to ensure that such an assessment is made, where works or physical interventions connected with that project require subsequent consent (see, to that effect, judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others, C-275/09, EU:C:2011:154, paragraph 37).”