On 18 October, Advocate General (AG) Kokott gave her opinion in a reference made by the UK Supreme Court in R. (on the application of Edwards & another) v Environment Agency. The UK Supreme Court was seeking advice on how to approach the requirement under EU law and the Aarhus Convention that costs in environmental cases should not be “prohibitively expensive”.
AG Kokott opined that recognition of the public interest in environmental cases is important since there are many cases where the legal interests of individuals are not affected. The environment cannot defend itself before a court and needs to be represented, for example, by active citizens or Non-Governmental Organisations.
The AG noted that a claimant may be purely public spirited or alternative may be defending their economic interests. The fact that a person is pursuing individual interests does not necessarily mean that there is no public interest element. However, such a person “can be expected to bear higher risks in terms of costs than a person who cannot anticipate any economic benefit.”
In determining whether litigation is or is not “prohibitively expensive”, the AG said “account must be taken of the objective and subjective circumstances of the case”. This means the Court must look at the financial means of the claimant as well as the public interest involved.
The AG considered the British Protective Costs Order (PCO) mechanism in detail and added that it was “in principle an appropriate element” in implementing the Aarhus Convention (Art 9(4)). She stated that it was important to ensure that the getting of a PCO itself is not prohibitively expensive so as not to deter people from taking a case.
She considered the issue of legal aid and although it is not a requirement under the Aarhus Convention, it may be necessary where the risk of costs presents an insurmountable obstacle to access to justice. This is interesting as it may create an obligation on the state to provide legal aid in an EU case where otherwise costs might prove to be a barrier.
The Court of Justice of the European Union’s decision is likely to be handed down early next year. Although the Opinions of Advocates are not binding on the Court, it generally sides with the the opinions of its Advocate-Generals.
Click here to read a UK Human Rights Blog article on the case and another.