CJEU pronouncement regarding the requirement that certain judicial procedures in environmental matters not be prohibitively expensive

The Court of Justice of the European Union recently dictated a Judgement regarding the requirement that certain judicial procedures in environmental matters not be prohibitively expensive. This requirement is laid down by Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2013 on the assessment of the effects of certain public and private projects on the environment, as well as by the Convention on access to information, public participation in decision making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 (the Aarhus Convention).

The preliminary ruling took place amid the controversy regarding the project to erect 300 pylons carrying high-voltage cables in order to connect the electricity grids of Ireland and Northern Ireland. A private citizen and a lobby group called North East Pylon Pressure Group challenged its development consent process by making an application for leave to seek judicial review. The referring court found the application premature and therefore refused it. The costs incurred in this procedure amounted to more than EUR 500 000.

The CJEU found that the requirement does apply to a procedure before a court of a member State in which it is determined whether leave may be granted to bring a challenge in the course of a development consent process. According to the Directive, in those cases where an applicant raises pleas alleging infringement both of the rules on public participation in decision making in environmental matters and of other rules, the requirement only applies to the first of them. However, the requirement contained in the Aarhus Convention, in order to ensure effective judicial protection in the fields covered by EY environmental law, extends the requirement to those pleas in which the applicant seeks to enforce national environmental law.

Finally, a member State cannot derogate from the requirement in those cases where a challenge is deemed frivolous or vexatious, or where there is no link between the alleged breach of national environmental law and damage to the environment. Nevertheless, the requirement in no way prevents national courts from ordering an applicant to pay costs, as long as they are not unreasonably high.

CJEU pronouncement