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AG Opinion on preliminatory ruling (C‑530/11). European Commission v United Kingdom of Great Britain and Northern Ireland: Opinion of Advocate General Kokott

Subject-matter: Failure to adopt the provisions necessary to comply with Articles 3(7) and 4(4) of Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17) – Obligation to remove or reduce financial barriers to access to justice in environmental matters – Meaning of ‘not prohibitively expensive’ in relation to judicial proceedings.In his opinion Advocate General Kokott concludes that the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Articles 3(7) and 4(4) of Directive 2003/35/EC of the European Parliament and the Council Directives 85/337/EEC and 96/61/EC, based on the followng reasoning:– the courts’ discretion to grant costs protection is not tied to the objective of costs protection and the criteria to be applied in that connection are incompatible with those provisions,– in proceedings covered by those provisions the courts may order reciprocal costs protection which prevents the costs of a reasonable success fee for the representation of the persons and associations covered by those provisions from being imposed upon the opposing party if the action is successful, and– the courts in England and Wales, as well as Gibraltar, and in Northern Ireland may make necessary measures granting interim relief in proceedings covered by those provisions conditional on an undertaking to pay damages.Key words: Aarhus Convention, Directive 2003/35/EC, Access to justice, Concept of ‘prohibitively expensive’ judicial procedures, Transposition

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