Fifth Meeting of the Access to Justice Task Force June 13 th – 14 th , 2012 Geneva

1. Fifth Meeting of the Access to Justice Task ForceJune 13th – 14th, 2012Geneva

2. Costs and Financial Arrangements in selected EU Member States Carol Day, Solicitor WWF-UK/CAJE

3. Member States evaluated • Portugal Netherlands • Poland Italy • Hungary Belgium • Germany UK • Czech Republic Sweden • France Spain • Ireland Denmark • Slovakia Cyprus

4. Article 9 Aarhus Convention • Article 9(3) – each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. • Article 9(4) - such procedures must be “fair, equitable, timely and not prohibitively expensive…” • Article 9(5) - In order to further the effectiveness of the provisions of this article, each Party shall … consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.

5. Court Fees • Generally not a significant barrier • Average around €100-200 at first instance and €500 on appeal • Some aberrations, e.g. UK Supreme Court in excess of €7,500 • No fees payable in Sweden and low in France • Mostly per individual/group (Czech Republic) but occasionally per petition (Slovakia)

6. Streitwert I • Applied in Germany (Hungary, Poland and Portugal) • Germany: • Fees based on the value of the claim (‘Streitwert) to cover the costs of the procedure • Objective to prevent price competition amongst lawyers • Guideline for ‘Streitwert fixing’ is the value of the case for the plaintiff • Typical amount in nature conservation claims estimated to be €25,000 • Administrative Court Act (Art. 52(1)) provides a legally binding schedule with a degressive system

7. Streitwert II • Court fees estimated by NDV as being between: • €4,200-5,800 at first instance; • €5,600-7,700 on appeal; • €5,600 on revision. • Costs for legal representation only reimbursed to winning party up to the limits set by law. Estimated by NDV as: • €700-2,5000 at first instance; • €900-3,000 on appeal; • €900-2,000 on revision. • Own legal costs estimated by NDV to be around €10,000 • Own costs for expert reports and evaluations • Can still be prohibitively expensive - but one case in which Streitwert was fixed at a lower rate to reflect Art. 9(4) Aarhus

8. Lawyers’ and Experts’ Fees • Legal representation required in most Member States, notably in Higher Courts (exceptions - Sweden, Netherlands and Poland) • Lawyers’ fees represent the most significant barrier – Ireland (€86,000) and the UK (€50,000+) • Can be lower but still prohibitive – Spain (€3,000) and Belgium (€2,000) • Can be modest – Sweden (water disputes excepted) • Average €2,000-5,000 plus expert costs and adverse costs

9. Loser Pays Principle • A form of the LPP applies in most of the Member States studied except Belgium, Netherlands, Slovakia, Poland, Denmark and Sweden • In Germany, the figure is capped and in Portugal it does not apply to authors of actio popularis cases • The LPP can have a chilling effect – Italy, Cyprus, Spain, Ireland and the UK • Some countries use Protective Costs Orders (PCO) to limit adverse liability – UK and Ireland

10. The evolution of PCOs in the UK I • PCOs introduced into the UK in Corner House case (2004) • Certain conditions apply and some remain problematic (no private interest, case must be of general public importance, claimants’ lawyers ideally acting pro bono) • Adverse costs commonly capped at around €11,000 but can be much higher (€30,000-40,000 not uncommon in Scotland) • International scrutiny - European Commission infraction proceedings (case C-530/11 Commission v UK) and Communication ACCC

11. The evolution of PCOs in the UK II • Government proposals (as of 2011/2012): • Adverse costs liability capped at £5,000 • Cross-cap of £30,000 • Figures challengeable on the basis of information in the public domain • Position unclear on injunctive relief • Proposals do not apply uniformly across the UK • CJEU Hearing (C-530/11 Commission v UK and Edwards) determinative to UK position and may have implications for other Member States

12. Other costs regimes • Ireland – split system following C-407/07 - Commission v Ireland • Each party bears own costs in EIA/IPPC cases (also certain categories of legal proceedings aimed at enforcing planning and environmental law - but notable omissions) • Loser pays principle applies in other Aarhus cases • One-way costs shifting • Netherlands, Poland and Slovakia • Modified form applies in Czech Republic (winning public authority cannot recover legal costs, as in CJEU) • Countries in which this principle applies generally fall into ‘satisfactory’ category

13. Other costs • Expert advice • Costs usually borne by the parties and can be significant (France, Portugal) • Injunctive relief • Requirement to provide a bond/security or cross-undertaking in damages can be an obstacle (UK, Cyprus, Spain, Italy, Ireland and Belgium

14. Legal aid • Almost all countries have legal aid schemes • Conditions for granting aid vary from country to country • Does not always cover NGOs or associations (Netherlands, Slovakia, Sweden and the UK) • Can be restricted in scope (Cyprus) • Very exceptional circumstances (France and Belgium) • Chronically underfunded (Ireland) • Lawyers poorly paid (Czech Republic) • Positive examples (Art 9(5)) • Spain • Hungary • Sweden

15. Comparative Table showing Member States performance on costs in 2007 and 2012

16. Possible ways forward • Member States could move towards the ‘satisfactory’ and ’good’ categories by adopting or providing the following: • no court fee (Sweden) or a modest flat rate fee (Czech Republic, Belgium, Slovakia, Denmark) per petition (Slovakia) • Form of Streitwert? (Germany, Poland, Hungary, Portugal) • Own costs regime where lawyers’ fees are low (Sweden) or one-way costs shifting (Netherlands, Slovakia, Portugal) or a modified form of the loser pays principle in which legal costs are not recoverable or are capped (Czech Republic, Germany, CJEU) • Appropriate injunctive relief in the absence of security/bonds (Netherlands, Hungary) • Legal aid and support for individuals and NGOs (Spain, Hungary)

17. For further information please contact: Carol Day, Solicitor, WWF-UK cday@wwf.org.uk Thank you