TO THE COMMISSION OF THE EUROPEAN COMMUNITIES
CONCERNING FAILURE TO COMPLY WITH COMMUNITY LAW
and forename of complainant :
The Coalition for Access to Justice
for the Environment (CAJE), which comprises: Capacity Global, Environmental Law
Foundation (ELF), Friends of the Earth, Greenpeace, the Royal Society for the
Protection of Birds (RSPB) and WWF-UK.
appropriate, represented by :
Ms Carol Hatton (Solicitor) WWF-UK.
WWF-UK, Panda House, Weyside Park,
Cattleshall Lane, Godalming, Surrey, United Kingdom GU7 1XR
Telephone : 00 44 1483 412206
Fax : 00 44 1483 426409
Email : email@example.com
and place(s) of activity :
Member State or public body alleged
by the complainant not to have complied with Community law :
8. Fullest possible account of facts giving rise to complaint :
Member States were required to bring into force the laws, regulations and
administrative provisions necessary to comply with Directive 2003/35/EC of the
European Parliament and the Council of 26 May 2003 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 Council Directives 85/337/EEC and 96/61/EC
(hereafter referred to as the "Public Participation Directive" or the
"PPD") by 25th June 2005 at the latest.
In order to comply with the
provisions of Article 3 of the PPD, the Government in England proposes to amend
the Town and Country Planning (Environmental Impact Assessment) (England)
Regulations 1999 via the the Town and Country Planning (Environmental Impact
Assessment) (England) (Amendment) Regulations 2005 (hereafter referred to as
the T&CP EIA Regulations
). The T&CP EIA Regulations will apply in
England only (separate legislative instruments are being progressed in Wales,
Scotland and Northern Ireland). Prior
to this, a Consultation Paper was issued by the Office of the Deputy Prime
Minister (ODPM) in March 2005 with a deadline for response of 6th June 2005
In order to comply with the access
to justice provisions of the PPD, the Government in England also amended the
Pollution Prevention and Control (England and Wales) Regulations 2000. The Department of the Environment, Food and
Rural Affairs (DEFRA) consulted the public on a number of proposed amendments
to these Regulations on 21st July 2004.
This led to the making in December 2004 of the Pollution Prevention and
Control (England and Wales) (Amendment) and Connected Provisions Regulations
2004 (SI 2004 No. 3276)
. However, responses to this consultation
paper suggested that further refinement of these initial proposals would be
needed and, on 28th January 2005, DEFRA issued a second Consultation Paper on
the Draft Pollution Prevention and Control (Public Participation) (England and
Wales) Regulations 2005
. The ensuing Pollution Prevention and Control
(Public Participation) (England and Wales) Regulations 2005 (SI 2005 No. 1448,
hereafter referred to as the PPC
Regulations) came into effect in England and Wales on 25th June
CAJE remains seriously concerned
about the failure of these measures to transpose the requirements of Article 3
(access to justice provisions) of the PPD.
9. As far as possible, specify the provisions of Community law (treaties,
regulations, directives, decisions, etc.) which the complainant considers to
have been infringed by the Member State concerned:
Article 3(7) (inserting Article 10a)
of the Public Participation Directive states as follows:
States shall ensure that, in accordance with the relevant national legal
system, members of the public concerned:
(a) having a sufficient
interest, or alternatively,
maintaining the impairment of a right, where administrative procedural law of a
Member State requires this as a precondition,
access to a review procedure before a court of law or another independent and
impartial body established by law to challenge the substantive or procedural
legality of decisions, acts or omissions subject to the public participation
provisions of this Directive.
States shall determine at what stage the decisions, acts or omissions may be
What constitutes a sufficient interest and
impairment of a right shall be determined by the Member States, consistently
with the objective of giving the public concerned wide access to justice. To this
end, the interest of any non-governmental organisation meeting the requirements
referred to in Article 1(2), shall be deemed sufficient for the purpose of
subparagraph (a) of this Article. Such organisations shall also be deemed to
have rights capable of being impaired for the purpose of subparagraph (b) of
provisions of this Article shall not exclude the possibility of a preliminary
review procedure before an administrative authority and shall not affect the
requirement of exhaustion of administrative review procedures prior to recourse
to judicial review procedures, where such a requirement exists under national
Any such procedure shall be fair,
equitable, timely and not prohibitively expensive.
order to further the effectiveness of the provisions of this article, Member
States shall ensure that practical information is made available to the public
on access to administrative and judicial review procedures."
(note - own emphasis added)
Article 3(7) clearly requires review
procedures to be "…fair, equitable, timely and not
prohibitively expensive ".
The ODPM’s Consultation Paper on the
T&CP EIA Regulations did not propose any changes to the Regulations in this
regard because "…it is considered
that the current judicial review procedures are sufficient to satisfy the main
Article 10a requirement for the public to have access to a review procedure for
challenging the legality of decisions, acts or omissions subject to the public
participation provisions of the Directive…"
. Similarly, DEFRA’s Consultation Paper on the
proposed PPC Regulations stated that the Government "…considers that existing domestic judicial review features fulfil the
[access to justice] requirements of this new Article."
CAJE strongly disagrees with these
statements for the following reasons.
(i.e. that costs "follow the event"). This rule evolved from simple civil cases between private parties
and was then applied (almost by default) to Judicial Review, the principal
procedure covered by the provisions of Article 3(7) of the PPD.
The Supreme Courts of England and Wales do have
an element of discretion in relation to costs.
In a relatively recent Privy Council case brought by the Belize
Association of Conservation NGOs (BACONGO), the Privy Council held that BACONGO
would not be ordered to pay the costs of the Belizean government (despite
losing the case) because the case was deemed to have been brought in the public
interest. However, this does not deal
with the issue of prohibitive expense because the person bringing the claim
remains fully exposed to the risk of liability until the end of the case and
then relies upon the discretion of the Court.
Similarly, at the beginning of a case
applicants may apply for a "Protective Costs Order", which serves to
limit the costs the public authority can recover at the end of the case (if
successful). However, at present such
an order is made in very exceptional circumstances
and in cases where the Claimant has ‘no
private interest’. They are not,
therefore, available in the vast majority of cases which fall within the
provisions of the Public Participation Directive as requiring access to justice
which is not prohibitively expensive.
Many such cases will either not amount to matters of ‘general public
importance’ in the narrow Corner House
sense, or will be excluded because the claimant may have a private interest
(for example being a neighbour).
considerable expense and court time can be taken up even seeking such an
order. And, if unsuccessful, the
claimant will normally be required to pay (a) the (potentially large) costs of
making the application; (b) the costs of the Defendant resisting the
application (see paragraphs 78-79 of Corner
House); and (c) the costs of the Defendant in resisting the application for
permission (if unsuccessful). A
leading solicitor in this field has pointed out in a recent article
that “the overall risk a potential
claimant must therefore consider, before embarking upon a challenge in the
public interest may be excess of £10,000 (and is likely to be in the region of
£5,000 even if the matter is not pursued beyond the paper application stage”. That is the case even if the claimant
applies for a Protective Costs Order.
Because of the way in which present rules on
costs are applied, the financial risk involved in bringing a judicial
review is enormous. It is not uncommon
for it to run into the hundreds of thousands of pounds and, in any event, it
will rarely be less than tens of thousands of pounds. As such, existing judicial review procedures are “prohibitively
expensive” for both members of the public and NGOs. It cannot be said that process in which
members of the public can only challenge the legality of a decision by risking
very large sums of money (or a significant proportion of their assets) is “not
prohibitively expensive.” Indeed,
there is growing evidence that many members of the public who do wish to
challenge environmental decisions at law are prevented from doing so as a
result of the risk of unquantifiable adverse costs orders. For example, a recent report by the
Environmental Law Foundation entitled "Civil
law aspects of environmental justice"
states that in “31% of cases the cost of pursuing legal action was the main
reason for its failure i.e. they were advised that they could reasonably pursue
the matter and were likely to have done so but for the cost or potential costs
that may be incurred.”. Similarly,
a report by the Environmental Justice Project
highlighted similar concerns shared by practitioners and NGOs with regard to
costs exposure. Further details
can also be found in a CAJE briefing entitled "Access to environmental justice: Making it affordable"
These concerns are not confined to individuals
and NGOs. In Autumn 2004, the Court of
Appeal recognised the serious problems associated with the risk of adverse
costs in environmental judicial reviews, noting that “an unprotected claimant in such a case, if unsuccessful in a public
interest challenge, may have to pay very heavy legal costs to the successful
defendant, and that this may be a
potent factor in deterring litigation directed towards protecting the
environment from harm”
. CAJE submits that any factor that deters
litigation directed towards protecting the environment from harm on the basis
of the costs of such litigation (particularly against public authorities in the
judicial review context) is contrary to the requirements of the Aarhus
Convention and the PPD.
when pursuing interim relief places an unduly onerous financial burden on NGO
or individual applicants. As the
potential liability in a typical construction project could extend to several
hundred thousand, if not millions, of pounds interim injunctions are very
rarely pursued by individuals or NGOs.
However, the consequences of a failure to do so can be disastrous and
irreversible (witness the destruction of Lappel Bank, part of the Medway
Estuary and Marshes Special Protection Area (SPA) for Birds in 1996
CAJE would point out that the requirement to provide a cross-undertaking in
damages when pursuing interim relief exacerbates the problem of prohibitive
expense for individual and NGO applicants.
Unfortunately, there appears to have been no
general research on access to environmental justice undertaken in Northern
Ireland to date (although we understand that some research covering Northern
Ireland and the Republic is imminent
). This short submission covers a number of
points made by a practitioner and academics in the field, and will be
supplemented by case references and further research as soon as possible.
. Almost all Judicial Reviews are handled by a
small number of High Court judges, who routinely hold concurrent hearings on
leave and the substantive issues of the case.
As such, we understand that it is unusual for cases in Northern Ireland
to amass significant pre-hearing costs.
Furthermore, it is reported that a full JR hearing would rarely run for
longer than two days. However, this
does seem to be a phenomenon of current volume and practice rather than the
result of any desire to reduce the costs exposure for applicants.
Similarly, CAJE is not aware of any comparable
research conducted on the issue of access to environmental justice in Scotland,
however, the costs rules in Scotland are also similar to those operating in
England, Wales and Northern Ireland.
Certainly, WWF’s experience in Secretary of State for
Scotland & ORS vs (1) World Wildlife Fund UK Ltd (2) Royal Society for the
Protection of Birds
reflects the general
position, in that WWF-UK and RSPB (as the losing parties in the Outer Court of
Session) were ordered to pay costs in the region of £150,000. This factor has been instrumental in
dissuading WWF, at least, from pursuing more legal action in Scotland.
CAJE submits that if the UK is to comply with
the access to justice provisions of the PPD, individuals and NGOs bringing
cases that fall within the scope of the Aarhus Convention must be in a position
to access to review procedures that are "not prohibitively
expensive". Such reassurance can
only be provided by removing the element of discretion from the Costs rules in
respect of such cases.
England and Wales
Furthermore, CAJE notes that NGOs promoting
environmental protection are deemed to have an interest with respect to the
review procedures referred to in Article 3(7).
In England and Wales, Section 31(3)
of the Supreme Court Act 1981 provides that the Courts will not give leave for
an application for Judicial Review unless the applicant has sufficient interest
in the matter to which the application relates. In determining whether an applicant has standing the Courts
consider: (1) the merits of the application; (2) the nature of the applicant’s
interest; and (3) the circumstances of the case.
established that a person or organisation with no particular stake in an issue
or its outcome was perfectly entitled as a citizen to draw the Court’s
attention to what he or she contended was an illegality which could have an
impact on the environment. Indeed,
recent research from the Environmental Justice Project (see above) suggests
that respondents have not experienced any significant difficulties with regard
to standing in recent years
. However, it has been noted that while the
requirement to show a sufficient interest remains embedded in statute a return
to a more conservative approach always remains a possibility. CAJE therefore remains concerned about the
disparity between the existing rules on standing, which (despite evolving case
law) still require applicants to address the issue when submitting an
application for review. This lack of
certainty creates confusion, increases bureacracy (and thus the costs of the
case) and conflicts with the requirements of Article 3(7) of the PPD.
CAJE submits that an amendment to
the Supreme Court Act 1981 is required to guarantee NGOs the right of standing
to bring cases falling within the ambit of the PPD/Aarhus Convention.
. However, again there is a lack of certainty
as to the position and the continued requirement to address standing results in
unnecessary confusion and bureaucracy.
It is of great concern to CAJE that
standing in Scotland is so restrictive.
The requirement to show title and
interest to sue means that any NGO or individual not directly affected by a
proposal will not be able to demonstrate sufficient standing to start legal
proceedings. This seems to be the
reverse of the requirement of the Cornerhouse
judgment (see above) where if there is a private interest a pre-emptive costs
award cannot be granted.
CAJE is not suggesting that the extremely
narrow decision in Cornerhouse is an
appropriate transposition of the PPD in England and Wales, however, the total
inability of environmental NGOs to bring legal actions in Scotland - despite
their aims and objectives being clearly relevant in such matters of
environmental importance- is incorrect.
Again, CAJE notes that NGOs promoting
environmental protection are deemed to have an interest with respect to the
review procedures referred to in Article 3(7) of the PPD.
appropriate, mention the involvement of a Community funding scheme (with
references if possible) from which the Member State concerned benefits or
stands to benefit, in relation to the facts giving rise to the complaint
Details of any approaches already
made to the Commission's services (if possible, attach copies of
None as yet.
of any approaches already made to other Community bodies or authorities (e.g.
European Parliament Committee on Petitions, European Ombudsman). If possible,
give the reference assigned to the complainant's approach by the
None as yet, although it is
probable that CAJE will submit a complaint to the Compliance Committee
established under Article 15 of the UNECE Aarhus Convention when the complaints
process becomes live in respect of the UK (approximately May 2006).
13. Approaches already made to national authorities, whether central,
regional or local (if possible, attach copies of correspondence)
Individual members of CAJE have responded
to the Government Consultation Papers referred to in this submission and have
taken every available opportunity to highlight the problems associated with the
application of the current costs rules in England and Wales. Copies of these submissions are available on
request, but essentially cover the points made in this complaint.
approaches (e.g. complaint to the relevant national administrative authorities,
whether central, regional or local, and/or to a national or regional ombudsman)
None as yet.
to national courts or other procedures (e.g. arbitration or conciliation).
(State whether there has already been a decision or award and attach a copy
Individual members of CAJE continue
to pursue Judicial Review in the UK and have applied for Protective Costs
Orders at an early stage in the proceedings.
Specify any documents or evidence
which may be submitted in support of the complaint, including the national
measures concerned (attach copies)
Annex A Town and Country Planning (Environmental
Impact Assessment) (England) (Amendment) Regulations 2005
Annex B Office of the Deputy
Prime Minister (ODPM) (March 2005) The
draft Town and Country Planning (Environmental Impact Assessment) (England)
(Amendment) Regulations 2005 -
Annex C Pollution
Prevention and Control (England and Wales) (Amendment) and Connected Provisions
Regulations 2004 (SI 2004 No. 3276)
Annex D DEFRA Consultation Paper on the Draft
Pollution Prevention and Control (Public Participation) (England and Wales)
Annex E Pollution Prevention and Control (Public
Participation) (England and Wales) Regulations 2005 (SI 2005 No. 1448)
Annex F Civil Procedure Rules, Rule 44 (General
Rules about Costs)
Annex G R. on
the application of Cornerhouse v. Secretary of State for Trade and Industry 
EWCA Civ 192
Annex H Stein, R. and Beagent,
J. (2005). Court of Appeal (Civil Division): R (Corner House Research) v The
Secretary of State for Trade and Industry.
J. Environmental Law 2005 17:413-445
Annex I Stookes, P (2003) Civil law aspects of environmental justice. Environmental Law Foundation.
Annex J Environmental Law Foundation, Leigh, Day
& Co Solicitors and WWF-UK (2003) Environmental
Justice – Report by the Environmental Justice Project.
Annex K Adebowale, M. (2003) Using the Law: Barriers and Opportunities for Environmental
Justice. Capacity Global.
Annex L Coalition for Access to Justice for the
Environment (CAJE) Briefing – Access to
environmental justice: making it
Annex M R. on the application of Burkett v.
LB Hammersmith and Fulham  EWCA Civ 1342
Annex O Friends of the Earth Northern Ireland Press
Release “Court victory on sewage hotspots”
dated 14th September 2005
a "I authorise the
Commission to disclose my identity in its contacts with the authorities of the
Member State against which the complaint is made."
request the Commission not to disclose my identity in its contacts with the
authorities of the Member State against which the complaint is made."
Place, date and signature of
20th December 2005
note to appear on back of complaint form)
Each Member State is responsible for the
implementation of Community law (adoption of implementing measures before
a specified deadline, conformity and correct application) within its own legal
system. Under the Treaties, the Commission of the European Communities is
responsible for ensuring that Community law is correctly applied. Consequently,
where a Member State fails to comply with Community law, the Commission has
powers of its own (action for non-compliance) to try to bring the infringement
to an end and, if necessary, may refer the case to the Court of Justice of the
European Communities. The Commission takes whatever action it deems appropriate
in response to either a complaint or indications of infringements which it
Non-compliance means failure by a Member State
to fulfil its obligations under Community law, whether by action or by
omission. The term State is taken to mean the Member State which infringes
Community law, irrespective of the authority - central, regional or local - to
which the non-compliance is attributable.
Anyone may lodge a complaint with the
Commission against a Member State about any measure (law, regulation or
administrative action) or practice which they consider incompatible with a
provision or a principle of Community law. Complainants do not have to
demonstrate a formal interest in bringing proceedings. Neither do they have to
prove that they are principally and directly concerned by the infringement
complained of. To be admissible, a complaint has to relate to an infringement
of Community law by a Member State. It should be borne in mind that the
Commission’s services may decide whether or not further action should be taken
on a complaint in the light of the rules and priorities laid down by the
Commission for opening and pursuing infringement procedures.
Anyone who considers a measure (law, regulation
or administrative action) or administrative practice to be incompatible with
Community law is invited, before or at the same time as lodging a complaint
with the Commission, to seek redress from the national administrative or
judicial authorities (including the national or regional ombudsman and/or
arbitration and conciliation procedures available). The Commission advises the
prior use of such national means of redress, whether administrative, judicial
or other, before lodging a complaint with the Commission, because of the
advantages they may offer for complainants.
By using the means of redress available at
national level, complainants should, as a rule, be able to assert their rights
more directly and more personally (e.g. a court order to an administrative
body, repeal of a national decision and/or damages) than they would following
an infringement procedure successfully brought by the Commission which may take
some time. Indeed, before referring a case to the Court of Justice, the
Commission is obliged to hold a series of contacts with the Member State
concerned to try to terminate the infringement.
Furthermore, any finding of an infringement by
the Court of Justice has no impact on the rights of the complainant, since it
does not serve to resolve individual cases. It merely obliges the Member State
to comply with Community law. More specifically, any individual claims for
damages would have to be brought by complainants before the national courts.
administrative guarantees exist for the benefit of the complainant:
(a) Once it has been registered with the
Commission's Secretariat-General, any complaint found admissible will be
assigned an official reference number. An acknowledgment bearing the reference
number, which should be quoted in any correspondence, will immediately be sent
to the complainant. However, the assignment of an official reference number to
a complaint does not necessarily mean that an infringement procedure will be
opened against the Member State in question.
(b) Where the Commission's services make
representations to the authorities of the Member State against which the
complaint has been made, they will abide by the choice made by the complainant
in Section 15 of this form.
(c) The Commission will endeavour to take a
decision on the substance (either to open infringement proceedings or to close
the case) within twelve months of registration of the complaint with its
(d) The complainant will be notified in advance
by the relevant department if it plans to propose that the Commission
close the case. The Commission's services will keep the complainant
informed of the course of any infringement procedure.
You are not obliged to
use this form. You may also submit a complaint by ordinary letter, but it is in
your interest to include as much relevant information as possible. You can send
this form by ordinary mail to the following address:
Commission of the European Communities
Rue de la Loi 200,
You may also hand in
the form at any of the Commission's representative offices in the
Member States. The form is accessible on the European Union's Internet
To be admissible, your
complaint has to relate to an infringement of Community law by a
You should inform the
Commission of any change of address and of any event likely to affect the
handling of your complaint.
ODPM (March 2005) The draft Town and Country Planning
(Environmental Impact Assessment) (England) (Amendment) Regulations 2005 - Consultation Paper. Page 13, Paragraph 3.19
January 2005) Consultation on Draft
Regulations to Transpose Amendments to the IPPC Directive made by the Public
Participation Directive. Page 9,
The Court of Appeal in the
leading case on this subject reiterated that a protective costs order should
only be made in ‘the most exceptional
circumstances’ (paragraph 72) (See http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2005/192.html&query=corner+house&method=all)
R. on the application of Cornerhouse v. Secretary of State for
Trade and Industry  EWCA Civ 192, paragraph 74 . Judgment attached as Annex G.
See Stein, R. and Beagent,
J. (2005). Court of Appeal (Civil Division): R (Corner House Research) v The
Secretary of State for Trade and Industry.
J. Environmental Law 2005 17:413-445 attached as Annex H. See http://jel.oxfordjournals.org/cgi/content/full/17/3/413?etoc
Stookes, P (2003) Civil law aspects of environmental justice. Environmental Law Foundation.
Page 25, paragraph 50. Report
attached as Annex I.
Foundation, Leigh, Day & Co Solicitors and WWF-UK (2004) Environmental Justice – Report by the
Environmental Justice Project Page
39, paragraph 68. Report attached as
Adebowale, M. (2003) Using
the Law: Barriers and Opportunities for Environmental Justice. Capacity Global. Report attached as Annex K.
R. on the application of Burkett v. LB Hammersmith and Fulham  EWCA Civ 1342. Judgment attached as Annex M.
I.e. in the event of losing the case the
applicant undertakes to reimburse a party prejudiced by the decision (usually a
third party) for any profit lost as a result of halting the activity likely to
R v Secretary of State for the Environment ex parte the Royal Society for
the Protection of Birds  Env. L.R. 431. See the EJP Report (pages 36-39 for further information).
Article 9(4) of the
Directive requires the procedures referred to in paragraphs 9(1), (2) and (3)
to “…provide adequate and effective
remedies, including injunctive relief as appropriate, and be fair…”
ELF, Leigh, Day & Co
Solicitors and WWF-UK (2004) Environmental Justice – Report by the
Environmental Justice Project.
Available from WWF-UK
See http://www.foe.co.uk/northern_ireland/press_releases/2005/court_victory-sewage.html Press release attached as Annex O.