Fifth Meeting of the Access to Justice Task Force
June 13th – 14th, 2012
Geneva
Costs and Financial Arrangements in selected
EU Member States
Carol Day, Solicitor
WWF-UK/CAJE
Member States evaluated
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Portugal
Poland
Hungary
Germany
Czech Republic
France
Ireland
Slovakia
Netherlands
Italy
Belgium
UK
Sweden
Spain
Denmark
Cyprus
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.
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)
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
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
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
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
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
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
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
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 crossundertaking in damages can be an obstacle (UK, Cyprus,
Spain, Italy, Ireland and Belgium
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
Comparative Table showing Member States performance on
costs in 2007 and 2012
Member State
Costs (including legal aid) (2007)
Costs (including legal aid and bonds)
(2012)
Portugal
++
++
Hungary
--
+/++
Germany
+
+
Czech Republic
++
++
Netherlands
+
+
Italy
--
--
Belgium
+
+
UK
--
--
Sweden
++
+++
Cyprus
++
+
Spain
++
+/++
France
+
+
Ireland
--
--
Denmark
+++
++
Slovakia
++
++
Poland
++
++/+++
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)
For further information please contact:
Carol Day, Solicitor, WWF-UK
[email protected]
Thank you