The European Commission is warning the UK about prohibitively expensive challenges to the legality of decisions on the environment. The Commission sent an initial warning to the UK government in 2007; failure to respond to this could result in a summons to the European Court.

European Environment Commissioner Janez Potočnik said: "When important decisions affecting the environment are taken, the public must be allowed to challenge them. This important principle is established in European law. But the law also requires that these challenges must be affordable. I urge the UK to address this problem quickly as ultimately the health and wellbeing of the public as a whole depends on these rights."

High costs preventing legal challenges

Under European law, citizens have a right to know about the impact of industrial pollution, and about the potential impact projects may have on the environment, and a right to challenge such decisions. The law explicitly states that such challenges must not be prohibitively expensive. The Commission is concerned that in the United Kingdom legal proceedings can prove too costly, and that the potential financial consequences of losing challenges is preventing NGOs and individuals from bringing cases against public bodies.

The warning letter also raises concerns about the requirement in the United Kingdom for applicants for interim injunctions to give expensive and often unaffordable "cross undertakings in damages" (deposits that may be used to compensate defendants) before such orders are granted by the courts. This is a serious impediment to the use of such injunctions, which are essential for temporarily halting operations that may have a potentially damaging impact on the environment while their legality is being assessed.

The Commission sent an initial warning letter about this issue in October 2007, and the UK replied that the procedures were under review. Whilst the reviews undertaken since 2007 have been illuminating they have not resulted in any changes having been made to improve on the situation that existed in 2007 The Commission therefore considers that the UK is failing to comply with the legislation. A failure to comply with this final warning could see the UK brought before the European Court of Justice.

Access to environmental information

Several pieces of environmental legislation, including the Environmental Impact Assessment (EIA) Directive and the integrated pollution prevention and control (IPPC) Directive, aim to boost public awareness of environmental matters in Member States and ensure increased transparency. The measures – which are also necessary under the Aarhus Convention on Access to Justice, which has also been signed by the UK – have been transposed to UK legislation, but the current financial obstacles have led the Commission to conclude that the laws covering this area of the Directive have not been fully transposed and are not being properly applied in practice.

Legal Process

The Commission has the power to take legal action against a Member State that is not respecting its obligations under Community law, under Article 258 of the Treaty on the Functioning of the European Union.

The infringement procedure begins with a first written warning ("Letter of Formal Notice") to the Member State concerned, which must be answered within two months.

If the Commission is not satisfied with the reply, this first letter may be followed by a final written warning ("Reasoned Opinion") clearly explaining the infringement, and calling on the Member State to comply within a specified period, usually two months.

A failure to act on the final written warning can result in a summons to the Court of Justice. If the Court rules against the Member State, it must then take the necessary measures to comply with the judgment.

If, despite the ruling, a Member State still fails to act, a further round of the infringement process begins under Article 260 of the Treaty, this time with only one written warning. This second round can ultimately result in financial penalties for the Member State concerned.