Case C-470/16 North Easy Pylon Pressure Campaign Ltd, Maura Sheehy v An Bord Pleanála (Irish Planning Appeals Board)
The CJEU recently adopted a disappointing interpretation of the rule that judicial procedures should not be prohibitively expensive in Article 11(4) EIA Directive. There is a risk this judgement could dissuade prospective applicants from challenging unlawful decisions.
This preliminary reference from the Irish High Court primarily concerned the rule in Article 11(4) of the Environmental Impact Assessment Directive (Directive 2011/92) that the cost for members of the public of initiating judicial proceedings should not be prohibitively expensive (THE “NPE rule”). The Court of Justice of the EU opted for a narrow interpretation of the NPE rule in the context of 11(4) of the EIA Directive, holding that it only applies to the arguments in an application for judicial review which relate to the public participation obligations contained in that Directive. Fortunately, the Court found that the costs associated with the other arguments in the challenge should be covered by the NPE rule in Articles 9(3) and 9(4) of the Aarhus Convention. However, these articles of the Convention are not directly effective and their application is dependent on national judges’ willingness to interpret procedural rules in a way that is consistent with them, when this is possible. Consequently, there is a risk that this judgment creates uncertainty surrounding the NPE rule in cases brought under the EIA Directive that will dissuade prospective applicants from challenging unlawful decisions.
The State-owned electric power operator, EirGrid plc, applied for a permit to construct an electricity interconnector between the grids of Ireland and Northern Ireland (a project of common interest under Regulation 347/2013) consisting of 300 pylons over a distance of 138 km, to An Bord Pleanála, the Irish Planning Appeals Board. A group of potentially concerned landowners and residents sought leave to apply for judicial review of the development consent process on a number of grounds. The Irish Court refused leave on the basis that the claimants should have waited for An Board Pleanála to adopt its final decision, and therefore judicial review would be premature. When it came to allocating the costs of the procedure to seek leave, which amounted to over EUR 500,000, the High Court was uncertain as to the compatibility of the applicable Irish rules with the NPE rule in Article 11 of the EIA Directive and Article 9(2), 9(3) and 9(4) of the Aarhus Convention. It referred a number of questions to the Court of Justice of the EU.
The Court of Justice was primarily concerned with whether the NPE rule in Article 11(4) of the EIA Directive applies to the costs relating to the challenge as a whole, or only to those arguments that relate to the public participation provisions of that Directive. The Court opted for the latter. It found this narrow interpretation to be consistent with the wording of Article 11 of the EIA Directive, as well as Articles 9(2) and 9(4) of the Aarhus Convention. As a result, the Court found that it is for the national courts to distinguish between the costs relating to the arguments based on the public participation provisions of the IEA Directive, and those relating to arguments based on other provisions of EU or national law.
The Court went on to confirm that the other arguments in the challenge (those relating to other provisions of EU or national law) are covered by the NPE rule laid down in Articles 9(3) and 9(4) of the Aarhus Convention. However, the Court recalled that these provisions do not have direct effect and cannot be relied upon directly by individuals to enforce their rights. Therefore, it is for national courts to give an interpretation of national procedural law which is, to the extent possible, consistent with the objectives of those provisions.
Finally, the Court found that a Member State cannot derogate from the NPE rule 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.
The Court’s narrow interpretation of the NPE rule in Article 11(4) of the EIA Directive is cause for concern. As Advocate-General Bobek stated in his opinion on the case, “[p]redictability constitutes an integral part of the assessment of whether costs are prohibitively expensive.”
It must be remembered that applicants are not always in control of the arguments raised in such challenges (while they may limit themselves to the public participation provisions, the public authority in question may base its defence on provisions of national law, or other EU laws), nor the time spent by the Court on each argument.
Therefore, in limiting the NPE rule in Article 11(4) of the EIA Directive to arguments that concern the public participation provisions in that Directive, the Court has disregarded the importance of the predictability of costs for prospective applicants. This seems to go against the objective of the widest possible access to justice in environmental matters, as espoused by the Court in its previous case law on costs under the EIA Directive (case C-260/2011). The extent to which the impact of this interpretation will be mitigated by the Court’s reassurance that the remaining arguments are covered by the NPE rule in Articles 9(3) and 9(4) of the Aarhus Convention is questionable, given that they do not have direct effect.
Therefore, for them to have the desired effect national judges must be willing to interpret national procedural law in a way that gives effect to the NPE rule. Unfortunately, this will not always be the case. Yet again we are faced with the clear reality that the case law of the CJEU does not always compensate for the lack of a legally binding instrument that implements Article 9 of the Aarhus Convention across the EU.