In 2004 the defendant Irish planning appeals board granted a company planning permission to construct in Achonry an inspection unit for fallen animals from across Ireland. The claimant, who owned a farm near the site of the proposed unit, applied for judicial review of the planning permission. On 23 April 2008 the Irish High Court dismissed the claimant’s application and on 6 May 2008 ordered him to pay the defendant’s costs. On the assessment of costs before the taxing master, the claimant contended that, pursuant to, inter alia, article 10a of Council Directive 85/337/EEC as inserted, the costs awarded against him should be “not prohibitively expensive”. In July 2009, in unconnected proceedings, the Court of Justice of the European Communities ruled that Ireland had failed to transpose the not prohibitively expensive rule into national law by 25 June 2005, that being the latest date for transposition. On 24 June 2010 the taxing master decided that he did not have power under national law to consider the prohibitive nature of the expense, a decision which the High Court upheld. On the claimant’s appeal, the Irish Supreme Court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the questions: (i) whether the prohibitively expensive rule in article 10a of the Directive 85/337 had any application where the public authority’s decision challenged in the proceedings had been granted prior to the latest date for transposition of the Directive, and where the proceedings which challenged the relevant decision had also been commenced prior to that date; and, if so, whether the rule potentially applied to all costs incurred in the proceedings or only to costs incurred after the latest date for transposition; (ii) whether a national court which enjoyed a discretion concerning the award of costs against an unsuccessful party was obliged, when considering an order for costs in proceedings to which article 10a of the Directive applied, to ensure that any order made did not render the proceedings “prohibitively expensive” either because the relevant provisions were directly effective, or because the court of the member state was required to interpret its national procedural law in a manner, to the fullest extent possible, which fulfilled the objectives of article 10a; and (iii) where an order for costs was unqualified and would, by virtue of the absence of any appeal, be regarded as final and conclusive as a matter of national law, whether Union law required that a taxing master, or a court reviewing a taxing master’s decision, had an obligation to depart from otherwise applicable measures of national law and instead determine the amount of costs to be awarded in such a way as ensured that the costs so awarded did not render the proceedings “prohibitively expensive”.
On the reference—
Held, (1) the wording of the fifth paragraph of article 10a of Directive 85/337/EEC as amended by Council Directive 2003/35/EC, article 3(7), which gave rise to the “not prohibitively expensive” rule, did not have direct effect. Where that article had not been transposed by a member state, the national courts of that member state were none the less required to interpret national law to the fullest extent possible, once the time limit for transposing that article had expired. Persons should not be prevented from seeking, or pursuing a claim for, a review by the courts which fell within the scope of that article, by reason of the financial burden which might arise as a result (judgment, para 36, operative part, para 1).
(2) National courts were required to interpret national law, as soon as the time limit for transposing an untransposed Directive had expired, in such a manner that the future effects of situations which arose under the old rule were immediately compatible with the provisions of that untransposed Directive. Proceedings brought before the expiry of the time limit for transposing Directive 2003/35/EC had to be regarded as a situation which arose under the old rule. The principle of legal certainty did not preclude the obligation for the national courts to interpret national law in conformity with the “not prohibitively expensive” rule when ruling on the allocation of costs. According to the fifth paragraph of article 10a of Directive 85/337/EEC, where a member state’s court had to decide on the allocation of costs in the course of proceedings, its obligation to interpret national law in conformity with that Directive was effective from the date on which the time limit for transposing the “not prohibitively expensive” rule had expired, irrespective of the date on which those costs were incurred during the proceedings concerned (judgment, paras 45, 46, 54, 55, operative part, para 2).
(3) A national court called upon to rule on an amount of costs was under an obligation to interpret national law, in conformity with article 10a of Directive 85/337/EEC, in so far as its effect was not precluded by the force of res judicata attaching to the decision as to how the costs were to be borne, which was a matter for the national court to determine (judgment, para 71, operative part, para 3).
B Ohlig, for the claimant.
B Foley and A Doyle, solicitor, for the defendant.
M Gray, H Godfrey and R Mulcahy, and by M Browne, G Hodge and A Joyce, agents, for the Irish Government.
C Zadra, G Gattinara and J Tomkin, for the European Commission.