Referred pain

The Judiciary are reluctant to refer questions of EU environmental law to the European Court. They appear to be extending the criteria for not doing so beyond that allowed by EU law. Their reluctance may be due to several factors, including a scepticism about the clarity and use of the European Court judgments and the inevitable delay in getting judgment from the Court.

Nonetheless, the implications of not referring questions of EU environmental law are worthy of note. They include haphazard references and impacts on the development of environmental law.

Background

The relationship between the EU and our domestic courts is a reference based relationship [1]. Questions about the interpretation and validity of EU law arising in national courts are supposed to be referred to the European Court. EU caselaw has laid down stringent criteria for when a reference must be made [2]. The lower courts are granted a discretion whether to refer but a court of final resort must do so unless it has established that the question is irrelevant, that the EU provision in question has already been interpreted or that the correct application of EU law is obvious.

The rationale for the strict approach is that EU law will develop uniformly throughout the EU if all national courts refer EU law questions to the European Court and the European Court can continually develop EU law.

References

Questions of EU environmental law are being referred by our lower and higher courts, but they are few in number considering the prevalence of EU law in environmental law. There are only two ongoing references. Questions of cost protection in environmental cases have been referred by the Supreme Court (R (Edwards) v Environment Agency) and the Upper Tribunal has recently referred the question whether privatised companies are public authorities for the purposes of the freedom of information and Aarhus regimes (Fish Legal v Information Commissioner). During 2007 – 2012, the European Court gave judgment in eight environmental cases referred by the domestic judiciary.

References not made

For every case where a UK court decides to refer, there are plenty of examples where referrals are not made. They include several of the seminal environmental law cases to be decided in the past six years, including R (Morge) v Hampshire Council (nature conservation), Edwards v Environment Agency (pollution control), and R (Countryside Alliance) v Attorney General (hunting and animal welfare). During this period domestic courts do not appear to have made a reference on their own initiative, absent a request by the party(ies).

In refusing to refer the domestic Courts are arguably extending the EU criteria for not referring beyond what is allowed by EU law.

Some cases do formally refer back to the EU sanctioned reasons for non-referral (such as the decision being within a lower court’s discretion (Loader v Secretary of State); the issue not being determinative (R (Edwards) v Environment Agency); or the question being one of fact rather than law (Bowen West v Secretary of State).

However it is hard to escape the impression that these reasons can reflect or indeed mask the deep-seated uneasiness in the relationship with the European Court. The language deployed in Loader and Bowen suggests a wary attitude to the European Court. The wariness appears most prominently in the lower court rulings (Loader; Bowen, and Condron v Merthyr Tydfil County Borough Council).

The House of Lords, now Supreme Court, appears more circumspect in how it describes and evaluates the role of the European Court than the lower courts. This does not translate in a great eagerness to refer, but in a greater focus within House of Lords/Supreme Court case law on stretching the boundaries of the grounds for non-referral and subtle attempts to renegotiate its relationship with the European Court.

Still staying within the official boundaries for non-referral, some decisions are very quick to assume clarity, thus pulling potentially controversial questions within ‘no need to refer’ criteria. This happens where the court interprets a conflict away from adopting remarkably confident assumptions about how the European Court would decide the issue if invited (See Edwards v Environment Agency and R(Countryside Alliance) v Attorney General).

Other cases reformulate the notoriously stringent criteria for referral into something altogether more flexible, such as there being insufficient doubt about the interpretation of EU law (Condron), or no authoritative indications that the European Court would decide differently from the national court (Hargreaves v Secretary of State).

Finally, certain judgments do not so much redefine the conditions but, arguably, the very purpose of the preliminary reference procedure. In R (Morge) v Hampshire, the assumption of a cooperative rather than hierarchical relationship manifests itself in unmistakable terms, with the Supreme Court qualifying the European Court’s role as one of assistance, and refusing to refer because it does not see what ‘value added’ a European Court ruling could bring to its determination. This redefines the preliminary reference procedure beyond that allowed by EU law.

Understanding the reluctance to refer

The reluctance to refer may be explained by several factors. Firstly; by the delay in getting judgment from the European Court. In 2011 the average time taken to get judgment was 16.4 months which is an improvement on earlier years. In addition there is a scepticism about the clarity and applicability of any answer from the European Court. Anyone who has had to argue about whether a particular material had ceased to be waste will have some sympathy with the comment of Carnwath LJ in OSS v Environment Agency that “a search for logical coherence in the Luxembourg case-law is probably doomed to failure” which underlay his decision not to make any further reference. It seems likely that the [same] perception may have underlain Lord Brown’s approach in Morge. Conversely however, the judgment of the European Court in C–127/02 Waddenzee is central to habitats law.

Impacts of the reluctance to refer

What then are the impacts of the reluctance to refer? Firstly; domestic courts have, on occasions, failed to grasp or predict the possibility of an approach by the European Court that would be radically at odds with long enshrined domestic approach, as for example with Environmental Impact Assessment and staged planning permission cases (see C-290/03Barker).

Secondly, a failure to refer may delay the final resolution of a legal issue at EU level. Consider, for example, the 10-year gap between the 1998 Court of Appeal decision in Marson, that a planning authority is not required to give reasons for a decision that environmental impact assessment is not necessary and the judgment of the European Court in C-75/08 Mellor that reasons are required. Thirdly, greater communication with the European Court could reduce domestic litigation. Would the apparently never ending stream of domestic environmental impact assessment litigation be reduced by more (good quality) judgments from the EU?

Finally; a haphazard system of referrals reduces the ability of the judiciary to get the most useful judgments back from the European Court. Professor Takis Tridimas argues the European Court gives three types of judgment ranging from an answer so specific it assists only the parties to an answer in such general terms it effectively defers the decision to the national judiciary. Judgments providing guidance to the national courts are the most useful for future cases, but care is needed to select those cases for referral that lend themselves to such guidance from the European Court.

Justine Thornton is a barrister at 39 Essex Street.

This article is based on a longer paper by Justine, Richard Drabble QC [3] and Dr Veerle Heyvaert [4] presented at the Bar European Group Conference in Portugage in May 2012 and due to be published as a article in the summer of 2012.