EU LAW

X and X v Belgium (Opinion) [2017] EUECJ C-638/16_O (07 March 2017)

OPINION OF ADVOCATE GENERAL MENGOZZI

As I shall show in this Opinion, notwithstanding the objections put forward by the governments that participated in the hearing of 30 January 2017 and those of the European Commission, this case, first, provides the Court with an opportunity to make clear that a Member State implements EU law when it adopts a decision in relation to an application for a visa with limited territorial validity, which therefore requires the Member State to ensure that the rights guaranteed by the Charter are respected. Second, the present case must, in my opinion, lead the Court to state that respect for those rights, particularly the right enshrined in Article 4 of the Charter, implies the existence of a positive obligation on the part As I shall show in this Opinion, notwithstanding the objections put forward by the governments that participated in the hearing of 30 January 2017 and those of the European Commission, this case, first, provides the Court with an opportunity to make clear that a Member State implements EU law when it adopts a decision in relation to an application for a visa with limited territorial validity, which therefore requires the Member State to ensure that the rights guaranteed by the Charter are respected. Second, the present case must, in my opinion, lead the Court to state that respect for those rights, particularly the right enshrined in Article 4 of the Charter, implies the existence of a positive obligation on the part of the Member States, which must require them to issue a visa with limited territorial validity where there are substantial grounds to believe that the refusal to issue that document will have the direct consequence of exposing persons seeking international protection to torture or inhuman or degrading treatment which is prohibited by that article. of the Member States, which must require them to issue a visa with limited territorial validity where there are substantial grounds to believe that the refusal to issue that document will have the direct consequence of exposing persons seeking international protection to torture or inhuman or degrading treatment which is prohibited by that article.

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Uniform Justice can only be applied to EU citizens of all 27 member states when the legal costs regimes in all member states are harmonised. A recent call to the CJEU advised up to €5,000 can be made available for ART 267 preliminary references and the staff member advised they had received such an application from Irish legal professionals who were seeking multiples of this capped legal aid figure.

Art 47 Charter of Fundamental Rights of the European Union – Right to an effective remedy and to a fair trial which must be applied by Irish Courts when interpreting EU law.

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in

so far as such aid is necessary to ensure effective access to justice.”

The case of Volkmar Klohn adds much needed jurisprudence to the Irish EU caselaw particularly relating to the barriers to justice facing Irish citizens in seeking “effective remedies” for violations of their EU rights to include the prohibitively expensive legal costs regime dating back to the 13C where losing parties were to be punished for wasting the time of the gentrified courts/judges.

It is another sad indictment of the Irish Judicial System that Mr. Klohn (now retired) had to spend some 17 years caught up in legal wrangling spanning several Courts including CJEU. However his determined endeavours succeeded on 03/08/2021 when Supreme Court of Ireland reduced the decision of 24 June 2010 of the Taxing Master (Legal Costs Adjudicator) who considered under Irish law he did not have powers to enter into a consideration of the prohibitive nature of that expense in assessing the costs which Mr Klohn would have to reimburse the An Bord Pleanala at approximately €86,000 to €1,250.00 representing a reduction of €84,750 measured by the Supreme Court (who factored in Klohn had paid his own legal advisors some €30,000) based on EU “not prohibitively expensive” principle. Supreme Court of Ireland referenced the objective and subjective tests of costs noting a bill to a wealthy corporation may be of no consequence but that same bill to a person of modest means could be catastrophic and consideration must be given to both subjective and objective tests. This is a new phenomena to the Irish Courts who often loftily maintain they cannot discriminate between a billionaire and a pauper in awarding costs based on “equality” Art 40 provisions in the 1937 Irish Constitution (turning the blind eye of Justice to the consequences of the financial burdens flowing from their “equality based ” Costs Orders on the (totally unequal) parties involved and their families (noting corporations do not have families, get sick, suffer bereavements or die or take holidays and are not susceptible to the vagaries of the human condition).

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 – Statement by the Commission

The following Article was inserted into Directive 85/337 as amended (which provides that public and private projects likely to have a major effect on the environment are to be subject to an environmental impact assessment(EIA) & lays down obligations on the participation and consultation of the public in the decision-making process regarding the consent for such projects. )

“Article 10a

Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:

(a) having a sufficient interest, or alternatively,

(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition,

have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.

Member States shall determine at what stage the decisions, acts or omissions may be challenged.

What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article.

The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.

Any such procedure shall be fair, equitable, timely and not prohibitively expensive (NPE).

In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.”

CJEU in KLOHN (Environment – Assessment of the effects of certain projects on the environment – Judgment) [2018] EUECJ C-167/17 (17 October 2018)

relating to Art 267 TFEU PRELIMINARY Request made in proceedings between Mr Volkmar Klohn and An Bord Pleanála (the Planning Appeals Board, Ireland) (‘the Board’) concerning the burden of the costs of the judicial proceedings brought by Mr Klohn against the planning permission granted by the Board for the construction in Achonry, County Sligo (Ireland) of a fallen animal inspection unit for animals from across Ireland stated

Irish law

11      The Irish system of judicial review comprises two stages. Applicants must first of all apply to the High Court (Ireland) for leave to bring judicial review proceedings, setting out the grounds for their application and the relief sought. It is only if that leave is granted that proceedings may be brought.

12      Under Article 99 of the rules of the Superior Courts ‘costs [shall] follow the event’. Consequently, an applicant who is unsuccessful is to be ordered, as a rule, to pay the other party’s costs in addition to bearing his own costs. That is the general rule, but the High Court has discretion to depart from that rule if the particular circumstances of the case so require.

13      The court hearing the case rules only on how the costs are to be borne. Subsequently, the amount of costs awarded against the unsuccessful party is quantified in a separate decision by the Taxing Master, a judge specially entrusted with the taxation of costs, in the light of the supporting documents provided by the successful party. That decision is open to appeal.

14      In its judgment of 16 July 2009, Commission v Ireland (C‑427/07, EU:C:2009:457, paragraphs 92 to 94), the Court held that Ireland had failed to transpose into national law the rule in Article 10a of Directive 85/337 as amended according to which procedures must ‘not [be] prohibitively expensive’.

15      In the course of 2011, in order to give due effect to the finding of a failure to fulfil obligations on that point, Ireland inserted Section 50B in the Planning and Development Act, so that in the field of application of that law, each party is, as a rule, obliged to bear its own costs. That provision is not, however, applicable, ratione temporis to the main proceedings.

 Before the Taxing Master of the High Court, charged with quantifying the amount of the costs to be reimbursed in accordance with national law, Mr Klohn argued that, pursuant to Article 3(8) and Article 9(4) of the Aarhus Convention and Article 10a of Directive 85/337 as amended, costs awarded against him should not be ‘prohibitively expensive’.

21      By a decision of 24 June 2010, the Taxing Master took the view that under Irish law he did not have powers to enter into a consideration of the prohibitive nature of that expense and he assessed the costs which Mr Klohn would have to reimburse the Board at approximately EUR 86 000.

22      After receiving a request from Mr Klohn to review the Taxing Master’s decision, the High Court upheld that decision.

23      Mr Klohn then appealed against that judgment of the High Court to the Supreme Court (Ireland).

24      The Supreme Court decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Can the “not prohibitively expensive” provisions of Article 10a of [Directive 85/337 as amended] potentially have any application in a case such as the instant case where the development consent challenged in the proceedings was granted prior to the latest date for transposition of that directive and where the proceedings challenging the relevant development consent were also commenced prior to that date? If so have the “not prohibitively expensive” provisions of [Directive 85/337 as amended] potential application to all costs incurred in the proceedings or only to costs incurred after the latest date for transposition?


REPLY FROM THE CJEU

The fifth paragraph of Article 10a of Directive 85/337 as amended must be interpreted as meaning that a Member State’s courts are under an obligation to interpret national law in conformity with that directive, when deciding on the allocation of costs in judicial proceedings which were ongoing as at the date on which the time limit for transposing the not prohibitively expensive rule laid down in the fifth paragraph of Article 10a expired, irrespective of the date on which those costs were incurred during the proceedings concerned.

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(2)      Is a national court which enjoys a discretion concerning the award of costs against an unsuccessful party, in the absence of any specific measure having been adopted by the Member State in question for the purposes of transposing Article 10a of [Directive 85/337 as amended], obliged, when considering an order for costs in proceedings to which that provision applies, to ensure that any order made does not render the proceedings “prohibitively expensive” either because the relevant provisions are directly effective or because the court of the Member State concerned is required to interpret its national procedural law in a manner, to the fullest extent possible, which fulfils the objectives of Article 10a?

REPLY FROM CJEU

The fifth paragraph of Article 10a of Directive 85/337 as amended must be interpreted as meaning that the not prohibitively expensive rule which it lays down does not have direct effect. Where that article has not been transposed by a Member State, the national courts of that Member State are nonetheless required to interpret national law to the fullest extent possible, once the time limit for transposing that article has expired, in such a way that persons should not be prevented from seeking, or pursuing a claim for, a review by the courts, which falls within the scope of that article, by reason of the financial burden that might arise as a result.


(3)      Where an order for costs is unqualified and would, by virtue of the absence of any appeal, be regarded as final and conclusive as a matter of national law, does Union law require that either:

(a)       a Taxing Master charged in accordance with national law with the task of quantifying the amount of costs reasonably incurred by the successful party; or,

(b)      a court asked to review a decision of such a Taxing Master

nonetheless have an obligation to depart from otherwise applicable measures of national law and determine the amount of costs to be awarded in such a way as ensures that the costs so awarded do not render the proceedings prohibitively expensive?’

CJEU REPLY

71      The answer to the third question is, therefore, that the fifth paragraph of Article 10a of Directive 85/337 as amended must be interpreted as meaning that, in a dispute such as that at issue in the main proceedings, the national court called upon to rule on the amount of costs is under an obligation to interpret national law in conformity with that directive, in so far as the force of res judicata attaching to the decision as to how the costs are to be borne, which has become final, does not preclude this, which it is for the national court to determine.

CJEU held RES JUDICATA does not preclude the Taxing Master or a court, in a later dispute, from ruling on points of law on which there is no ruling in that definitive decision (see, to that effect, judgment of 11 November 2015, Klausner Holz Niedersachsen, C‑505/14, EU:C:2015:742, paragraph 36) but rather that “the force of res judicata extends only to the legal claims on which the court has ruled. ”

CJEU held an interpretation according to which, having regard to the close connection between (1) decision as to how the costs are to be borne and (2) decision quantifying those costs, the Board would be entitled to claim all the costs reasonably incurred for its defence, would be contrary to the principle of legal certainty and the requirement for the foreseeability of EU law. As the Advocate General observed in point 114 of his Opinion, Mr Klohn could not have been aware of the amount of the costs which he might have to reimburse the successful parties until the Taxing Master’s decision delivered more than a year after the decision awarding costs against him, and could not, therefore, challenge the first of those decisions with full knowledge of the facts. The amount of the Board’s costs which were recoverable as determined by the Taxing Master was all the more unforeseeable by Mr Klohn since it was around three times the amount of the costs which he himself had incurred in the procedure concerned.