Commission v. United Kingdom, Case C‑530/11 (February 13, 2014)
Court of Justice for the European Union
In the United Kingdom, courts may issue "protective costs orders" to limit the amount a public authority can recover from a challenger at the end of the case. The European Commission raised concerns about the lack of clear rules for granting such orders, which is not in line with the requirements of Directive 2003/35/EC on public participation and access to justice. The Commission also challenged UK law requiring applicants for interim measures and injunctions suspending work on projects to provide a "cross undertaking in damages," promising to pay damages if the injunction turns out to be unfounded.
The United Kingdom countered that more lenient costs rules in environmental cases had been codified through case law and that courts have discretion to deal with cost orders justly. Paras. 20-32.
The European Court disagreed, declaring: “[W]here the relevant provision is designed to create rights for individuals, the legal situation must be sufficiently precise and clear, and the persons concerned must be put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts.” Para. 34. A judicial practice in which courts simply have the authority to decline to order an unsuccessful party to pay the costs and can order expenditure incurred by the unsuccessful party to be borne by the other party is, by definition, uncertain. Para. 35.
The Court concluded that the UK failed to meet its obligation to provide review procedures in environmental cases that are not prohibitively expensive.
The opinion may be viewed at this link: http://curia.europa.eu/juris/liste.jsf?language=en&num=C-530/11