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Edwards & Anor v Environment Agency & Ors [2013] EUECJ C-260/11 - 11/04/13


Preliminary ruling concerning the meaning of 'not prohibitively expensive' judicial proceedings and the correct approach to making a costs assessment in disputes relating to environmental matters under the Aarhus Convention.

Held: That judicial proceedings should not be 'prohibitively expensive' means that a member of the public not be prevented from seeking or pursuing a claim for review by the courts of an environmental matter by reason of the financial burden that might arise as a result. Where a national court makes a costs order or caps liability for costs, it must be satisfied that the above requirement has been complied with, taking into account both the interest of the party wishing to defend their rights and the public interest in the protection of the environment.

The prohibitive nature of costs must be assessed objectively and as a whole, taking into account the financial situation of the parties concerned, whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure, the potentially frivolous nature of the claim at its various stages, and the existence of a national legal aid scheme or a costs protection regime. The fact that a claimant has not been deterred, in practice, from asserting the claim is not of itself sufficient to establish that the proceedings are not prohibitively expensive. Further, the assessment cannot be conducted according to different criteria depending on whether it is carried out at the conclusion of first-instance proceedings, an appeal or a second appeal.