The right to ‘not prohibitively expensive’ judicial proceedings under the Aarhus Convention and the ECJ as an international (environmental) law court: Edwards and Pallikaropoulos

Excerpt:

The EU implemented the first and second 'pillars' of the Aarhus Convention by way of Directive 2003/4 on public access to environmental information and Directive 2003/35 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment, respectively. Both Directives also contain provisions on the third pillar, in that their beneficiaries were given a right to access to justice in order to protect the rights conferred on them by the Directives.

The costs involved in gaining access to justice are a crucial factor in exercising those rights in practice. Both Article 10(a) of the EIA Directive andArticle 15(a) of the IPPC Directive provide that any such procedure 'shall be fair, equitable, timely and not prohibitively expensive'. The reference for a preliminary ruling from the UK Supreme Court in Edwards gave the ECJ the opportunity to clarify the notion of prohibitively expensive procedures in relation to Aarhus Convention claims.

The Court’s approach was subsequently confirmed in Commission v. UK, which likewise concerned UK cost rules in Aarhus Convention cases. Edwards not only provides an 'outsider's' perspective in the UK debate on cost rules reform, but also has wider implications for EU Member States seeking to reform cost rules. Furthermore, it highlights the role of the ECJ in the development of international environmental law, and international law more generally. The comments in this case note focus on these two key points.