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European Court finds UK in breach of EU law on access to environmental justice

Last modified: 14 February 2014

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Image: Graham Catley

The Coalition for Access to Justice for the Environment (CAJE) today welcomes the historic judgment of the European Court on the UK’s non-compliance with EU law on costs in environmental legal proceedings, after a ten year battle by legal campaigners. The case arose as a result of a complaint lodged with the European Commission by CAJE in 2005.


Both EU law and the UNECE Aarhus Convention oblige Member States and contracting Parties to ensure that environmental legal proceedings are “not prohibitively expensive”.  This means that ordinary citizens and civil society groups should be able to afford to go to court to challenge the decisions of public and private bodies that threaten the environment. Now the European Court has ruled that the government must do more to make access to justice affordable for ordinary citizens.


In anticipation that the European Court would find against it, the Ministry of Justice introduced a new costs regime for environmental cases in April 2013.  This judgement confirms that the government cannot roll-back on the new costs regime as the European Court requires claimants to have certainty regarding their costs liability.


The judgment has significant implications for the Government’s ongoing attack on Judicial Review (JR), which often represents civil society’s last opportunity to ensure the decisions of public bodies are lawful. In the last eighteen months, the Ministry of Justice has announced a series of measures to undermine the process of JR, which it says acts as a “brake on economic growth” and is used for “PR purposes, or as a tactical device to cause delay”. While many of the Government’s harmful proposals apply across the board, the Government is now unable to unravel improvements in introduced to the costs regime for environmental cases in April 2013. The current regime also makes it possible for the court to grant an injunction to suspend projects that may damage the environment without requiring claimants to compensate the court.


This judgment confirms that domestic courts cannot look exclusively at the financial means of individual claimants but must also carry out an objective analysis of the amount of the costs. In deciding whether a figure would be “objectively unreasonable”, the court must take a number of other factors into account, including whether the claimant has reasonable prospects of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and whether public funding or other costs protection schemes are available.

Speaking on behalf of CAJE, Solicitor Carol Day said:


"This judgment confirms that the Government’s sustained attacks on Judicial Review cannot extend to environmental claims and that, if anything, it must go further to ensure that the public can exercise their democratic right to go to court to defend the environment”.


Ms Day continued: “There is simply no evidence to show that Judicial Review is a brake on development or is being abused by groups to delay infrastructure projects – it is a vitally needed part of any democracy to ensure that the decisions of public bodies are lawful”.


Until the improvements to the costs regime in 2013, individuals and groups applying for JR had not been able to rule out the possibility that they would be ordered to pay tens of thousands of pounds to the other side - usually the Government - if they lost. In today’s judgment, the European Court has taken its final step towards ensuring that the risk of paying a public body’s legal costs no longer poses a substantial obstacle to environmental justice in the UK and across the territory of the EU.


The Coalition for Access to Justice for the Environment (CAJE) comprises Friends of the Earth, Greenpeace, Royal Society for the Protection of Birds, WWF, Campaign to Protect Rural England, Environmental Law Foundation and the Living Space Project. This press statement is made on behalf of Friends of the Earth, Friends of the Earth Scotland, RSPB, WWF .

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