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Delay in ECJ ruling on PCO regime limits effect of failure finding - Commission v UK C-530/11, 13th February 2014.

As long ago as 2007 the Commission commenced proceedings alleging that the UK had not properly transposed the provisions of Directives which incorporated the access to justice provisions of the Aarhus Convention in the context of the EIA and IPPC regimes. The particular complaint alleged that the UK was in breach in so far as the provisions required judicial proceedings not to be prohibitively expensive. Finally, in 2014 the complaint has been resolved.

Subject to a couple of caveats, the ECJ upheld the complaint. However, it was considering the law as it was pre-2010 and, although it did pay some regard to the case of Garner v Elmbridge BC [2010] EWCA Civ 1006, it paid no regard to the new rules of Court in force in both England and Scotland covering PCOs (or PEO's in Scotland). These procedural changes are significant so the impact of ECJ's ruling is both limited and uncertain.
The Court did make a number of matters clear:-

(a) Transposition by case law as opposed to enactment is acceptably provided the relevant general legal context is sufficiently clear and precise, which it found was not the case in the UK.

(b) Further, and perhaps of great importance, the Court accepted that merely because a Court has to exercise a discretion does not render any system incompatible. It was, though, concerned as to the limits of such discretion as existing in the period which it was considering.

(c) It reinforced the judgement of the same Court in Edwards & Pallikaropoulos Case C-260/11 as to the proper approach to what is, or is not, prohibitively expensive. But it did not comment on the subsequent ruling of the Supreme Court R (Edwards v Environment Agency) [2014] 1 WLR 55. Costs must be assessed subjectively but, importantly, must also not appear objectively unreasonable. Perhaps of some note, it restated the view that relevant factors include prospects of success, the importance of the point and the complexity of the law.

(d) As to the Corner House principles, the requirements of public interest and the lack of private interest were not appropriate. It was clear it did not satisfy the requirements of the Directives.

(e) By implication, it would appear it found that the law as stated in Garner was also not acceptable as there was no requirement on the Court to ensure that the costs were not objectively unreasonable.

(f) The requirements of any cross undertaking in damages consequent upon any interim relief were also caught by the regime and the current UK law was not compatible in this regard as being too uncertain and imprecise.

However, of greater importance, the ruling does nothing to resolve the following issues:-

(a) Reciprocal caps. The Commission had complained about the imposition of reciprocal caps which limit a Defendant's liability. The Court of Appeal in Garner imposed one and they have been taken forward into the relevant rules of Court. The Court simply did not rule on it as it stated it did not have enough information. Therefore the uncertainty as to their lawfulness persists. They do provide significant protection to a Defendant. For example in Garner the cap of £35K can be compared with threatened costs of over £150K. The challenge in Garner did fail.

(b) Fixed limits established by Rules of Court. It is difficult to divine from the Court's ruling whether it would find the current rules acceptable. Whilst on the one hand they would provide far greater certainty and reduce the prospect of satellite litigation the limits may be questioned.

Further, it must be recalled that the Court was only concerned with the law in the field of EIA and IPPC and did not have to grapple with the provisions of Aarhus which have not been incorporated in a Directive, in particular Article 9(2) and the ambit of the words "national law relating to the environment."

James Findlay QC, Cornerstone Barristers. (Counsel for the Council in Elmbridge v Garner)