Case C‑530/11

European Commission

v

United Kingdom of Great Britain and Northern Ireland

‛Failure of a Member State to fulfil obligations — Public participation in decision-making and access to justice in environmental matters — Concept of ‘not prohibitively expensive’ judicial proceedings’

Summary — Judgment of the Court (Second Chamber), 13 February 2014

1. Acts of the institutions — Directives — Implementation by Member States — Directive intended to create rights for individuals — Requirements of clarity and legal certainty — Transposition by judicial practice — Lawfulness

   (European Parliament and Council Directive 2003/35, Arts 3(7) and 4(4))

2. Actions for failure to fulfil obligations — Subject-matter of the proceedings — Determination during the pre-litigation procedure

   (Art. 258 TFEU)

3. Environment — Assessment of the effects of certain projects on the environment –Directives 85/337 and 96/61 — Transposition of Directive 2003/35 — Right to bring proceedings — Requirement that proceedings not be prohibitively expensive — Discretion granted to national courts — Need for a rule of law ensuring that proceedings are not prohibitively expensive

   (European Parliament and Council Directive 2003/35, Arts 3(7) and 4(4); Council Directives 85/337, Art. 10a, and 96/61, Art. 15a)

4. Actions for failure to fulfil obligations — Proof of failure — Burden of proof on the Commission — Presumptions — Not permissible

   (Art. 258 TFEU)

5. Environment — Assessment of the effects of certain projects on the environment — Directives 85/337 and 96/61 — Transposition of Directive 2003/35 — Right to bring proceedings — Requirement that proceedings not be prohibitively expensive — System of cross-undertakings in respect of the grant of interim relief — Included

   (European Parliament and Council Directive 2003/35, Arts 3(7) and 4(4); Council Directives 85/337, Art. 10a, and 96/61, Art. 15a)

1.  The transposition of a directive does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific, express provision of national law and a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner.

   In particular, where the relevant provision is designed to create rights for individuals, the legal situation must be sufficiently precise and clear, and the persons concerned must be put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts.

   It cannot be considered that every judicial practice is uncertain and inherently incapable of meeting the requirements of clarity and precision necessary in order to be regarded as valid implementation of the obligations arising from Articles 3(7) and 4(4) of Directive 2003/35 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Directives 85/337 and 96/61.

   (see paras 33-36)

2.  See the text of the decision.

   (see para. 39)

3.  The requirement that proceedings not be prohibitively expensive, laid down by Articles 3(7) and 4(4) of Directive 2003/35 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Directives 85/337 and 96/61, does not prevent the national courts from making an order for costs in judicial proceedings provided that they are reasonable in amount and that the costs borne by the party concerned taken as a whole are not prohibitive.

   In that regard, the discretion available to the court when applying the national costs regime in a specific case cannot in itself be considered incompatible with the requirement that proceedings not be prohibitively expensive. Furthermore, the possibility for the court hearing a case of granting a protective costs order, which enables the claimant to obtain, at an early stage of the proceedings, a cap on the amount of costs that may be payable, ensures greater predictability as to the cost of the proceedings and contributes to compliance with that requirement.

   However, the abovementioned provisions of Directive 2003/35 can be regarded as correctly transposed only if national courts are obliged by a rule of law to ensure that the proceedings are not prohibitively expensive for the claimant. The mere fact that, in order to determine whether a Member State’s national law meets the objectives of Directive 2003/35, the Court is obliged to analyse and assess the effect of various decisions of the national courts, and therefore of a body of case-law, whereas EU law confers on individuals specific rights which would need unequivocal rules in order to be effective, leads to the view that the transposition is in any event not sufficiently clear and precise.

   Furthermore, the very conditions under which the national courts rule on applications for costs protection do not ensure that national law complies with the requirement laid down by Directive 2003/35 that proceedings not be prohibitively expensive if it becomes apparent that courts may make a protective costs order only if the issues to be resolved are of public interest or that they are not required to grant such protection where the cost of the proceedings is objectively unreasonable or where only the particular interest of the claimant is involved.

   (see paras 44, 54-57)

4.  See the text of the decision.

   (see paras 60-62)

5.  The requirement that proceedings not be prohibitively expensive, laid down by Articles 3(7) and 4(4) of Directive 2003/35 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Directives 85/337 and 96/61, applies also to the financial costs resulting from measures which the national court might impose as a condition for the grant of interim measures in the context of disputes falling within those provisions.

   Subject to this reservation, the conditions under which the national court grants such interim relief are, in principle, a matter for national law alone, provided that the principles of equivalence and effectiveness are observed. The requirement that proceedings not be prohibitively expensive cannot be interpreted as immediately precluding the application of a financial guarantee, such as a cross-undertaking in respect of the grant of interim relief, which involves requiring the claimant to undertake to compensate for the damage which could result from interim relief if the right which the relief was intended to protect is not finally recognised as being well founded, where that financial guarantee is provided for by national law. The same is true of the financial consequences which might, as the case may be, result under national law from an action that constitutes an abuse.

   On the other hand, it is incumbent upon the court which rules on this issue to make sure that the resulting financial risk for the claimant is also included in the various costs generated by the case when it assesses whether or not the proceedings are prohibitively expensive.

   (see paras 64, 66-68)

Case C‑530/11

European Commission

v

United Kingdom of Great Britain and Northern Ireland

‛Failure of a Member State to fulfil obligations — Public participation in decision-making and access to justice in environmental matters — Concept of ‘not prohibitively expensive’ judicial proceedings’

Summary — Judgment of the Court (Second Chamber), 13 February 2014

1. Acts of the institutions — Directives — Implementation by Member States — Directive intended to create rights for individuals — Requirements of clarity and legal certainty — Transposition by judicial practice — Lawfulness

   (European Parliament and Council Directive 2003/35, Arts 3(7) and 4(4))

2. Actions for failure to fulfil obligations — Subject-matter of the proceedings — Determination during the pre-litigation procedure

   (Art. 258 TFEU)

3. Environment — Assessment of the effects of certain projects on the environment –Directives 85/337 and 96/61 — Transposition of Directive 2003/35 — Right to bring proceedings — Requirement that proceedings not be prohibitively expensive — Discretion granted to national courts — Need for a rule of law ensuring that proceedings are not prohibitively expensive

   (European Parliament and Council Directive 2003/35, Arts 3(7) and 4(4); Council Directives 85/337, Art. 10a, and 96/61, Art. 15a)

4. Actions for failure to fulfil obligations — Proof of failure — Burden of proof on the Commission — Presumptions — Not permissible

   (Art. 258 TFEU)

5. Environment — Assessment of the effects of certain projects on the environment — Directives 85/337 and 96/61 — Transposition of Directive 2003/35 — Right to bring proceedings — Requirement that proceedings not be prohibitively expensive — System of cross-undertakings in respect of the grant of interim relief — Included

   (European Parliament and Council Directive 2003/35, Arts 3(7) and 4(4); Council Directives 85/337, Art. 10a, and 96/61, Art. 15a)

1.  The transposition of a directive does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific, express provision of national law and a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner.

   In particular, where the relevant provision is designed to create rights for individuals, the legal situation must be sufficiently precise and clear, and the persons concerned must be put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts.

   It cannot be considered that every judicial practice is uncertain and inherently incapable of meeting the requirements of clarity and precision necessary in order to be regarded as valid implementation of the obligations arising from Articles 3(7) and 4(4) of Directive 2003/35 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Directives 85/337 and 96/61.

   (see paras 33-36)

2.  See the text of the decision.

   (see para. 39)

3.  The requirement that proceedings not be prohibitively expensive, laid down by Articles 3(7) and 4(4) of Directive 2003/35 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Directives 85/337 and 96/61, does not prevent the national courts from making an order for costs in judicial proceedings provided that they are reasonable in amount and that the costs borne by the party concerned taken as a whole are not prohibitive.

   In that regard, the discretion available to the court when applying the national costs regime in a specific case cannot in itself be considered incompatible with the requirement that proceedings not be prohibitively expensive. Furthermore, the possibility for the court hearing a case of granting a protective costs order, which enables the claimant to obtain, at an early stage of the proceedings, a cap on the amount of costs that may be payable, ensures greater predictability as to the cost of the proceedings and contributes to compliance with that requirement.

   However, the abovementioned provisions of Directive 2003/35 can be regarded as correctly transposed only if national courts are obliged by a rule of law to ensure that the proceedings are not prohibitively expensive for the claimant. The mere fact that, in order to determine whether a Member State’s national law meets the objectives of Directive 2003/35, the Court is obliged to analyse and assess the effect of various decisions of the national courts, and therefore of a body of case-law, whereas EU law confers on individuals specific rights which would need unequivocal rules in order to be effective, leads to the view that the transposition is in any event not sufficiently clear and precise.

   Furthermore, the very conditions under which the national courts rule on applications for costs protection do not ensure that national law complies with the requirement laid down by Directive 2003/35 that proceedings not be prohibitively expensive if it becomes apparent that courts may make a protective costs order only if the issues to be resolved are of public interest or that they are not required to grant such protection where the cost of the proceedings is objectively unreasonable or where only the particular interest of the claimant is involved.

   (see paras 44, 54-57)

4.  See the text of the decision.

   (see paras 60-62)

5.  The requirement that proceedings not be prohibitively expensive, laid down by Articles 3(7) and 4(4) of Directive 2003/35 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Directives 85/337 and 96/61, applies also to the financial costs resulting from measures which the national court might impose as a condition for the grant of interim measures in the context of disputes falling within those provisions.

   Subject to this reservation, the conditions under which the national court grants such interim relief are, in principle, a matter for national law alone, provided that the principles of equivalence and effectiveness are observed. The requirement that proceedings not be prohibitively expensive cannot be interpreted as immediately precluding the application of a financial guarantee, such as a cross-undertaking in respect of the grant of interim relief, which involves requiring the claimant to undertake to compensate for the damage which could result from interim relief if the right which the relief was intended to protect is not finally recognised as being well founded, where that financial guarantee is provided for by national law. The same is true of the financial consequences which might, as the case may be, result under national law from an action that constitutes an abuse.

   On the other hand, it is incumbent upon the court which rules on this issue to make sure that the resulting financial risk for the claimant is also included in the various costs generated by the case when it assesses whether or not the proceedings are prohibitively expensive.

   (see paras 64, 66-68)