High Court dismisses challenge to Nitrates Action Programme citing excessive procedural objections and lack of merit.

[2024] IEHC 129

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2022.0000458]

BETWEEN

AN TAISCE - THE NATIONAL TRUST FOR IRELAND

APPLICANT

AND

THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE, IRELAND AND THE

ATTORNEY GENERAL

RESPONDENTS

AND

THE MINISTER FOR AGRICULTURE FOOD AND THE MARINE, FEIRMEOIRÍ AONTUITHE NA

HÉIREANN IONTAOBAITHE TEORANTA AS TRUSTEE OF THE IRISH FARMERS'

ASSOCIATION AND FRANCIE GORMAN, TOM O'CONNOR, PATRICK MURPHY, JOHN

MURPHY AND FRANK ALLEN AS TRUSTEES OF THE IRISH CREAMERY MILK SUPPLIERS

ASSOCIATION (BY ORDER)

NOTICE PARTIES

(No. 1)

JUDGMENT of Humphreys J. delivered on Wednesday the 6th day of March, 2024

1. In these proceedings, An Taisce challenges the validity of Ireland’s Nitrates Action

Programme and related matters. As well as a full defence on the merits, the State, supported by

the IFA and ICMSA, has deposited an unprecedented volume of pleading-type objections into the

case, so much so that modularisation is required. Even dealing with the first module is requiring a

judgment of 92,375 words, the length of a respectable PhD thesis, albeit without quite the same

claim to originality. The question to be considered now is whether this indiscriminate scattershot of

pleading objections is meritorious.

Legal context – the nitrates directive

2. Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters

against pollution caused by nitrates from agricultural sources (“the nitrates directive”) is described

by the European Commission as an instrument that “aims at protecting water quality across Europe

by reducing and preventing ground and surface water pollution caused by nitrates from agricultural

sources, including by promoting the use of good farming practices and adopting Action

Programmes.” (FAQ note on the links between the Nature Directives and the Nitrates Directive Final

document October 2019: https://www.ecologic.eu/sites/default/files/publication/2019/3535-

_nature-directives.pdf).

3. Article 3 of the nitrates directive provides:

“1. Waters affected by pollution and waters which could be affected by pollution if action

pursuant Article 5 is not taken shall be identified by the Member States in accordance with

the criteria set out in Annex I.

2. Member States shall, within a two-year period following the notification of this Directive,

designate as vulnerable zones all known areas of land in their territories which drain into the

waters identified according to paragraph 1 and which contribute to pollution. They shall

notify the Commission of this initial designation within six months.

3. When any waters identified by a Member State in accordance with paragraph 1 are

affected by pollution from waters from another Member State draining directly or indirectly

in to them, the Member States whose waters are affected may notify the other Member

States and the Commission of the relevant facts.

The Member States concerned shall organize, where appropriate with the Commission, the

concertation necessary to identify the sources in question and the measures to be taken to

protect the waters that are affected in order to ensure conformity with this Directive.

4. Member States shall review if necessary revise or add to the designation of vulnerable

zones as appropriate, and at last every four years, to take into account changes and factors

unforeseen at the time of the previous designation. They shall notify the Commission of any

revision or addition to the designations within six months.

5. Member States shall be exempt from the obligation to identify specific vulnerable zones,

if they establish and apply action programmes referred to in Article 5 in accordance with this

Directive throughout their national territory.”

4. It can be noted on the last point that Ireland has chosen the “national territory” option -

European Communities (Protection of Waters against Pollution from Agricultural Sources)

Regulations, 2003 (S.I. No. 213).

5. Article 4 envisages codes of good agricultural practice:

“1. With the aim of providing for all waters a general level of protection against pollution,

Member States shall, within a two-year period following the notification of this Directive:

(a) establish a code or codes of good agricultural practice, to be implemented by farmers on

a voluntary basis, which should contain provisions covering at least the items mentioned in

Annex II A;

(b) set up where necessary a programme, including the provision of training and information

for farmers, promoting the application of the code(s) of good agricultural practice.

2. Member States shall submit to the Commission details of their codes of good agricultural

practice and the Commission shall include information on these codes in the report referred

to in Article 11. In the light of the information received, the Commission may, if it considers

it necessary, make appropriate proposals to the Council.”

6. Article 5 of the directive goes on to provide for nitrates action programmes:

“1. Within a two-year period following the initial designation referred to in Article 3 (2) or

within one year of each additional designation referred to in Article 3 (4), Member States

shall, for the purpose of realizing the objectives specified in Article 1, establish action

programmes in respect of designated vulnerable zones.

2. An action programme may relate to all vulnerable zones in the territory of a Member State

or, where the Member State considers it appropriate, different programmes may be

established for different vulnerable zones or parts of zones.

3. Action programmes shall take into account:

(a) available scientific and technical data, mainly with reference to respective nitrogen

contributions originating from agricultural and other sources;

(b) environmental conditions in the relevant regions of the Member State concerned.

4. Action programmes shall be implemented within four years of their establishment and

shall consist of the following mandatory measures:

(a) the measures in Annex III;

(b) those measures which Member States have prescribed in the code(s) of good agricultural

practice established in accordance with Article 4, except those which have been superseded

by the measures in Annex III.

5. Member States shall moreover take, in the framework of the action programmes, such

additional measures or reinforced actions as they consider necessary if, at the outset or in

the light of experience gained in implementing the action programmes, it becomes apparent

that the measures referred to in paragraph 4 will not be sufficient for achieving the objectives

specified in Article 1. In selecting these measures or actions, Member States shall take into

account their effectiveness and their cost relative to other possible preventive measures.

6. Member States shall draw up and implement suitable monitoring programmes to assess

the effectiveness of action programmes established pursuant to this Article.

Member States which apply Article 5 throughout their national territory shall monitor the

nitrate content of waters (surface waters and groundwater) at selected measuring points

which make it possible to establish the extent of nitrate pollution in the waters from

agricultural sources.

7. Member States shall review and if necessary revise their action programmes, including

any additional measures taken pursuant to paragraph 5, at least every four years. They shall

inform the Commission of any changes to the action programmes.”

7. Annex III, specifying the content of programmes, is as follows:

“ANNEX III

MEASURES TO BE INCLUDED IN ACTION PROGRAMMES AS REFERRED TO IN ARTICLE 5 (4)

(a) The measures shall include rules relating to:

1. periods when the land application of certain types of fertilizer is prohibited;

2. the capacity of storage vessels for livestock manure; this capacity must exceed that

required for storage throughout the longest period during which land application in the

vulnerable zone is prohibited, except where it can be demonstrated to the competent

authority that any quantity of manure in excess of the actual storage capacity will be

disposed of in a manner which will not cause harm to the environment;

3. limitation of the land application of fertilizers, consistent with good agricultural practice

and taking into account the characteristics of the vulnerable zone concerned, in particular:

(a) soil conditions, soil type and slope;

(b) climatic conditions, rainfall and irrigation;

(c) land use and agricultural practices, including crop rotation systems;

and to be based on a balance between:

(i) the foreseeable nitrogen requirements of the crops,

and

(ii) the nitrogen supply to the crops from the soil and from fertilization corresponding to:

— the amount of nitrogen present in the soil at the moment when the crop starts to use it

to a significant degree (outstanding amounts at the end of winter),

— the supply of nitrogen through the net mineralization of the reserves of organic nitrogen

in the soil,

— additions of nitrogen compounds from livestock manure,

— additions of nitrogen compounds from chemical and other fertilizers.

2. These measures will ensure that, for each farm or livestock unit, the amount of livestock

manure applied to the land each year, including by the animals themselves, shall not exceed

a specified amount per hectare.

The specified amount per hectare be the amount of manure containing 170 kg N. However:

(a) for the first four year action programme Member States may allow an amount of manure

containing up to 210 kg N;

(b) during and after the first four-year action programme, Member States may fix different

amounts from those referred to above. These amounts must be fixed so as not to prejudice

the achievement of the objectives specified in Article 1 and must be justified on the basis of

objectives criteria, for example:

— long growing seasons,

— crops with high nitrogen uptake,

— high net precipitation in the vulnerable zone,

— soils with exceptionally high denitrification capacity.

If a Member State allows a different amount under point (b) of the second subparagraph, it

shall inform the Commission, which shall examine the justification in accordance with the

regulatory procedure referred to in Article 9(2).

3. Member States may calculate the amounts referred to in paragraph 2 on the basis of

animal numbers.

4. Member States shall inform the Commission of the manner in which they are applying the

provisions of paragraph 2. In the light of the information received, the Commission may, if

it considers necessary, make appropriate proposals to the Council in accordance with Article

11.”

8. The Commission’s FAQ summary includes the following (p. 7):

“Establishment of Action Programmes to be implemented by farmers within NVZs on a

compulsory basis, or across the whole territory of the Member State if its authorities decided

to avail themselves of whole-territory option. These Programmes must include (see Annex

III of the Directive):

• measures already included in Codes of Good Agricultural Practice, which become

mandatory in the areas covered by the Action Plan; and

• other measures, such as

• periods when the land application of certain types of fertilizers is prohibited

• capacity of storage levels for livestock manure, which must exceed that required

for storage during the longest period in which land application is forbidden

• limitation of fertilizer application (mineral and organic), taking into account crop

needs, soil conditions and climatic conditions, and based on a balance between the

foreseeable requirements of the crops and the nitrogen supply to the crops from the

soil and fertilization (‘balanced fertilization’).

• the maximum amount of livestock manure to be applied (corresponding to 170 kg

nitrogen/hectare/year).

As confirmed by a recent Judgement of the Court of Justice [n8: Judgment of the Court

(Ninth Chamber) of 21 June 2018. European Commission v Federal Republic of Germany.

Case C-543/16. http://curia.europa.eu/juris/liste.jsf?num=C-543/16], as soon as it

becomes apparent that the above measures will not be sufficient to achieve the Directive’s

objectives, Member States are obliged, within the framework of the Action Programmes, to

take additional measures or reinforced actions. In the selection of these measures or actions,

Member States have to take into account their effectiveness and their cost relative to other

possible preventive measures. Member States are required to review and, if necessary,

revise their Action Programmes (including any additional measures) at least every four

years.”

9. The Commission’s assessment of progress as of the FAQ document in 2019 was (p. 10):

“The latest Commission Report on the implementation of the Nitrates Directive shows that

water pollution caused by nitrates has decreased in Europe in the last two decades, but in

sectors such as agriculture good practices need to be further extended in some regions.

Despite the positive overall trend, nitrates pollution and eutrophication continue to cause

problems in many Member States. Agricultural pressures on water quality are still increasing

in some areas, as some agricultural practices are heavily dependent on fertilisers that can

cause local water quality to deteriorate. The trends observed in the Report thus may have a

bearing on the supply of clean drinking water, and the costs that public authorities have to

carry to treat polluted water.

Since the adoption of the EU Nitrates Directive, nitrates concentrations have fallen in both

surface and groundwater. Eutrophication – the excess growth of weeds and algae that

suffocates life in rivers, lakes and seas – has also decreased, while sustainable agricultural

practices in relation to nutrients’ management have become more widespread. Despite this

positive overall trend, nitrates pollution and eutrophication continue to cause problems in

many Member States.

Nitrogen is an essential element for all living organisms, including plants and animals. In soil

and water environment, it is largely transferred in dissolved nitrate form, which is highly

mobile and easily transported by leaching in soils and later in waters. However, increased

nitrate concentrations in the water can be considered to be a contaminant, acting together

with phosphates as a trigger of eutrophication process. A combination of poor agricultural

management, resulting in e.g. excessive use of mineral and organic fertilizers, and high

connectivity to sensitive aquatic environment are the main sources of increased levels of

nitrates, as they cannot be taken up by plants and are leached to groundwater and reach

surface waters through surface runoff and interflow.

Natural background levels of nitrates in water usually do not have a direct effect on aquatic

species. However, nitrates concentrations above natural background ones can create

unsuitable conditions especially for sensitive species. Aquatic insects and fishes do not utilize

nitrates, but aquatic plants do. As the amount of nitrate may be limiting for the growth of

algae and aquatic plants, any excess nitrate in the water bodies is a source of fertilizer for

them. An excessive growth changes water ecosystem characteristics, by reducing light

availability, increasing amounts of organic matter and causing an unstable amount of

dissolved oxygen. This brings aquatic ecosystem functioning in imbalance and leads to

eutrophication. The eutrophication mechanism leads to a chain reaction, notably a change

in the structure of biological communities and trophic networks, as well as changes in

biogeochemical cycles. Such conditions endanger many aquatic insects and fishes, leading

in the long-term to reduced reproduction, leaving of the area or death, as well as potential

extreme changes in habitats. For example, fishes that need gravel or sand for spawning may

find nothing but mats of vegetation and so will be unable to breed (WRIG Website).

Furthermore, fishes and macroinvertebrates serve as prey for other species and represent a

limiting factor in their populations, for example the European Otter (Lutra Lutra) (Bedford,

2009). …”

Legal context – the water framework directive

10. Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000

establishing a framework for Community action in the field of water policy (the water framework

directive – see consolidated text at https://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=CELEX%3A02000L0060-20141120) envisages in Article 4 that a programme

of measures should be envisaged within river basin management plans. It sets out objectives in

that regard:

“Environmental objectives

1. In making operational the programmes of measures specified in the river basin

management plans:

(a) for surface waters

(i) Member States shall implement the necessary measures to prevent deterioration of the

status of all bodies of surface water, subject to the application of paragraphs 6 and 7 and

without prejudice to paragraph 8;

(ii) Member States shall protect, enhance and restore all bodies of surface water, subject to

the application of subparagraph (iii) for artificial and heavily modified bodies of water, with

the aim of achieving good surface water status at the latest 15 years after the date of entry

into force of this Directive, in accordance with the provisions laid down in Annex V, subject

to the application of extensions determined in accordance with paragraph 4 and to the

application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;

(iii) Member States shall protect and enhance all artificial and heavily modified bodies of

water, with the aim of achieving good ecological potential and good surface water chemical

status at the latest 15 years from the date of entry into force of this Directive, in accordance

with the provisions laid down in Annex V, subject to the application of extensions determined

in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without

prejudice to paragraph 8;

(iv) Member States shall implement the necessary measures in accordance with Article 16(1)

and (8), with the aim of progressively reducing pollution from priority substances and

ceasing or phasing out emissions, discharges and losses of priority hazardous substances

without prejudice to the relevant international agreements referred to in Article 1 for the

parties concerned;

(b) for groundwater

(i) Member States shall implement the measures necessary to prevent or limit the input of

pollutants into groundwater and to prevent the deterioration of the status of all bodies of

groundwater, subject to the application of paragraphs 6 and 7 and without prejudice to

paragraph 8 of this Article and subject to the application of Article 11(3)(j);

(ii) Member States shall protect, enhance and restore all bodies of groundwater, ensure a

balance between abstraction and recharge of groundwater, with the aim of achieving good

groundwater status at the latest 15 years after the date of entry into force of this Directive,

in accordance with the provisions laid down in Annex V, subject to the application of

extensions determined in accordance with paragraph 4 and to the application of paragraphs

5, 6 and 7 without prejudice to paragraph 8 of this Article and subject to the application of

Article 11(3)(j);

(iii) Member States shall implement the measures necessary to reverse any significant and

sustained upward trend in the concentration of any pollutant resulting from the impact of

human activity in order progressively to reduce pollution of groundwater.

Measures to achieve trend reversal shall be implemented in accordance with paragraphs 2,

4 and 5 of Article 17, taking into account the applicable standards set out in relevant

Community legislation, subject to the application of paragraphs 6 and 7 and without

prejudice to paragraph 8;

(c) for protected areas

Member States shall achieve compliance with any standards and objectives at the latest 15

years after the date of entry into force of this Directive, unless otherwise specified in the

Community legislation under which the individual protected areas have been established.

As regards Mayotte as an outermost region within the meaning of Article 349 of the Treaty

on the Functioning of the European Union (hereinafter ‘Mayotte’), the time limit referred to

in points (a)(ii), (a)(iii), (b)(ii) and (c) shall be 22 December 2021.

2. Where more than one of the objectives under paragraph 1 relates to a given body of

water, the most stringent shall apply.

3. Member States may designate a body of surface water as artificial or heavily modified,

when:

(a) the changes to the hydromorphological characteristics of that body which would be

necessary for achieving good ecological status would have significant adverse effects on:

(i) the wider environment;

(ii) navigation, including port facilities, or recreation;

(iii) activities for the purposes of which water is stored, such as drinking-water supply, power

generation or irrigation;

(iv) water regulation, flood protection, land drainage, or

(v) other equally important sustainable human development activities;

(b) the beneficial objectives served by the artificial or modified characteristics of the water

body cannot, for reasons of technical feasibility or disproportionate costs, reasonably be

achieved by other means, which are a significantly better environmental option.

Such designation and the reasons for it shall be specifically mentioned in the river basin

management plans required under Article 13 and reviewed every six years.

4. The time limits laid down in paragraph 1 may be extended for the purposes of phased

achievement of the objectives for bodies of water, provided that no further deterioration

occurs in the status of the affected body of water when all the following conditions are met:

(a) Member States determine that all necessary improvements in the status of bodies of

water cannot reasonably be achieved within the timescales set out in that paragraph for at

least one of the following reasons:

(i) the scale of improvements required can only be achieved in phases exceeding the

timescale, for reasons of technical feasibility;

(ii) completing the improvements within the timescale would be disproportionately

expensive;

(iii) natural conditions do not allow timely improvement in the status of the body of water.

(b) Extension of the deadline, and the reasons for it, are specifically set out and explained

in the river basin management plan required under Article 13.

(c) Extensions shall be limited to a maximum of two further updates of the river basin

management plan except in cases where the natural conditions are such that the objectives

cannot be achieved within this period.

(d) A summary of the measures required under Article 11 which are envisaged as necessary

to bring the bodies of water progressively to the required status by the extended deadline,

the reasons for any significant delay in making these measures operational, and the

expected timetable for their implementation are set out in the river basin management plan.

A review of the implementation of these measures and a summary of any additional

measures shall be included in updates of the river basin management plan.

5. Member States may aim to achieve less stringent environmental objectives than those

required under paragraph 1 for specific bodies of water when they are so affected by human

activity, as determined in accordance with Article 5(1), or their natural condition is such that

the achievement of these objectives would be infeasible or disproportionately expensive,

and all the following conditions are met:

(a) the environmental and socioeconomic needs served by such human activity cannot be

achieved by other means, which are a significantly better environmental option not entailing

disproportionate costs;

(b) Member States ensure,

— for surface water, the highest ecological and chemical status possible is achieved, given

impacts that could not reasonably have been avoided due to the nature of the human activity

or pollution,

— for groundwater, the least possible changes to good groundwater status, given impacts

that could not reasonably have been avoided due to the nature of the human activity or

pollution;

(c) no further deterioration occurs in the status of the affected body of water;

(d) the establishment of less stringent environmental objectives, and the reasons for it, are

specifically mentioned in the river basin management plan required under Article 13 and

those objectives are reviewed every six years.

6. Temporary deterioration in the status of bodies of water shall not be in breach of the

requirements of this Directive if this is the result of circumstances of natural cause or force

majeure which are exceptional or could not reasonably have been foreseen, in particular

extreme floods and prolonged droughts, or the result of circumstances due to accidents

which could not reasonably have been foreseen, when all of the following conditions have

been met:

(a) all practicable steps are taken to prevent further deterioration in status and in order not

to compromise the achievement of the objectives of this Directive in other bodies of water

not affected by those circumstances;

(b) the conditions under which circumstances that are exceptional or that could not

reasonably have been foreseen may be declared, including the adoption of the appropriate

indicators, are stated in the river basin management plan;

(c) the measures to be taken under such exceptional circumstances are included in the

programme of measures and will not compromise the recovery of the quality of the body of

water once the circumstances are over;

(d) the effects of the circumstances that are exceptional or that could not reasonably have

been foreseen are reviewed annually and, subject to the reasons set out in paragraph 4(a),

all practicable measures are taken with the aim of restoring the body of water to its status

prior to the effects of those circumstances as soon as reasonably practicable, and

(e) a summary of the effects of the circumstances and of such measures taken or to be

taken in accordance with paragraphs (a) and (d) are included in the next update of the river

basin management plan.

7. Member States will not be in breach of this Directive when:

— failure to achieve good groundwater status, good ecological status or, where relevant,

good ecological potential or to prevent deterioration in the status of a body of surface water

or groundwater is the result of new modifications to the physical characteristics of a surface

water body or alterations to the level of bodies of groundwater, or

— failure to prevent deterioration from high status to good status of a body of surface water

is the result of new sustainable human development activities

and all the following conditions are met:

(a) all practicable steps are taken to mitigate the adverse impact on the status of the body

of water;

(b) the reasons for those modifications or alterations are specifically set out and explained

in the river basin management plan required under Article 13 and the objectives are

reviewed every six years;

(c) the reasons for those modifications or alterations are of overriding public interest and/or

the benefits to the environment and to society of achieving the objectives set out in

paragraph 1 are outweighed by the benefits of the new modifications or alterations to human

health, to the maintenance of human safety or to sustainable development, and

(d) the beneficial objectives served by those modifications or alterations of the water body

cannot for reasons of technical feasibility or disproportionate cost be achieved by other

means, which are a significantly better environmental option.

8. When applying paragraphs 3, 4, 5, 6 and 7, a Member State shall ensure that the

application does not permanently exclude or compromise the achievement of the objectives

of this Directive in other bodies of water within the same river basin district and is consistent

with the implementation of other Community environmental legislation.

9. Steps must be taken to ensure that the application of the new provisions, including the

application of paragraphs 3, 4, 5, 6 and 7, guarantees at least the same level of protection

as the existing Community legislation.”

11. As well as a management plan specifically, art. 11 of the directive requires that for each

river basin there must be a “programme of measures”:

“Programme of measures

1. Each Member State shall ensure the establishment for each river basin district, or for the

part of an international river basin district within its territory, of a programme of measures,

taking account of the results of the analyses required under Article 5, in order to achieve the

objectives established under Article 4. Such programmes of measures may make reference

to measures following from legislation adopted at national level and covering the whole of

the territory of a Member State. Where appropriate, a Member State may adopt measures

applicable to all river basin districts and/or the portions of international river basin districts

falling within its territory.

2. Each programme of measures shall include the ‘basic’ measures specified in paragraph 3

and, where necessary, ‘supplementary’ measures.

3. ‘Basic measures’ are the minimum requirements to be complied with and shall consist

of:

(a) those measures required to implement Community legislation for the protection of water,

including measures required under the legislation specified in Article 10 and in part A of

Annex VI;

(b) measures deemed appropriate for the purposes of Article 9;

(c) measures to promote an efficient and sustainable water use in order to avoid

compromising the achievement of the objectives specified in Article 4;

(d) measures to meet the requirements of Article 7, including measures to safeguard water

quality in order to reduce the level of purification treatment required for the production of

drinking water;

(e) controls over the abstraction of fresh surface water and groundwater, and impoundment

of fresh surface water, including a register or registers of water abstractions and a

requirement of prior authorisation for abstraction and impoundment. These controls shall be

periodically reviewed and, where necessary, updated. Member States can exempt from these

controls, abstractions or impoundments which have no significant impact on water status;

(f) controls, including a requirement for prior authorisation of artificial recharge or

augmentation of groundwater bodies. The water used may be derived from any surface

water or groundwater, provided that the use of the source does not compromise the

achievement of the environmental objectives established for the source or the recharged or

augmented body of groundwater. These controls shall be periodically reviewed and, where

necessary, updated;

(g) for point source discharges liable to cause pollution, a requirement for prior regulation,

such as a prohibition on the entry of pollutants into water, or for prior authorisation, or

registration based on general binding rules, laying down emission controls for the pollutants

concerned, including controls in accordance with Articles 10 and 16. These controls shall be

periodically reviewed and, where necessary, updated;

(h) for diffuse sources liable to cause pollution, measures to prevent or control the input of

pollutants. Controls may take the form of a requirement for prior regulation, such as a

prohibition on the entry of pollutants into water, prior authorisation or registration based on

general binding rules where such a requirement is not otherwise provided for under

Community legislation. These controls shall be periodically reviewed and, where necessary,

updated;

(i) for any other significant adverse impacts on the status of water identified under Article 5

and Annex II, in particular measures to ensure that the hydromorphological conditions of

the bodies of water are consistent with the achievement of the required ecological status or

good ecological potential for bodies of water designated as artificial or heavily modified.

Controls for this purpose may take the form of a requirement for prior authorisation or

registration based on general binding rules where such a requirement is not otherwise

provided for under Community legislation. Such controls shall be periodically reviewed and,

where necessary, updated;

(j) a prohibition of direct discharges of pollutants into groundwater subject to the following

provisions:

Member States may authorise reinjection into the same aquifer of water used for geothermal

purposes.

They may also authorise, specifying the conditions for:

— injection of water containing substances resulting from the operations for exploration and

extraction of hydrocarbons or mining activities, and injection of water for technical reasons,

into geological formations from which hydrocarbons or other substances have been extracted

or into geological formations which for natural reasons are permanently unsuitable for other

purposes. Such injections shall not contain substances other than those resulting from the

above operations,

— reinjection of pumped groundwater from mines and quarries or associated with the

construction or maintenance of civil engineering works,

— injection of natural gas or liquefied petroleum gas (LPG) for storage purposes into

geological formations which for natural reasons are permanently unsuitable for other

purposes,

— injection of carbon dioxide streams for storage purposes into geological formations which

for natural reasons are permanently unsuitable for other purposes, provided that such

injection is made in accordance with Directive 2009/31/EC of the European Parliament and

of the Council of 23 April 2009 on the geological storage of carbon dioxide ( 22 ) or excluded

from the scope of that Directive pursuant to its Article 2(2),

— injection of natural gas or liquefied petroleum gas (LPG) for storage purposes into other

geological formations where there is an overriding need for security of gas supply, and where

the injection is such as to prevent any present or future danger of deterioration in the quality

of any receiving groundwater,

— construction, civil engineering and building works and similar activities on, or in the

ground which come into contact with groundwater. For these purposes, Member States may

determine that such activities are to be treated as having been authorised provided that

they are conducted in accordance with general binding rules developed by the Member State

in respect of such activities,

— discharges of small quantities of substances for scientific purposes for characterisation,

protection or remediation of water bodies limited to the amount strictly necessary for the

purposes concerned

provided such discharges do not compromise the achievement of the environmental

objectives established for that body of groundwater;

(k) in accordance with action taken pursuant to Article 16, measures to eliminate pollution

of surface waters by those substances specified in the list of priority substances agreed

pursuant to Article 16(2) and to progressively reduce pollution by other substances which

would otherwise prevent Member States from achieving the objectives for the bodies of

surface waters as set out in Article 4;

(l) any measures required to prevent significant losses of pollutants from technical

installations, and to prevent and/or to reduce the impact of accidental pollution incidents for

example as a result of floods, including through systems to detect or give warning of such

events including, in the case of accidents which could not reasonably have been foreseen,

all appropriate measures to reduce the risk to aquatic ecosystems.

4. ‘Supplementary’ measures are those measures designed and implemented in addition to

the basic measures, with the aim of achieving the objectives established pursuant to Article

4. Part B of Annex VI contains a non-exclusive list of such measures.

Member States may also adopt further supplementary measures in order to provide for

additional protection or improvement of the waters covered by this Directive, including in

implementation of the relevant international agreements referred to in Article 1.

5. Where monitoring or other data indicate that the objectives set under Article 4 for the

body of water are unlikely to be achieved, the Member State shall ensure that:

— the causes of the possible failure are investigated,

— relevant permits and authorisations are examined and reviewed as appropriate,

— the monitoring programmes are reviewed and adjusted as appropriate, and

— additional measures as may be necessary in order to achieve those objectives are

established, including, as appropriate, the establishment of stricter environmental quality

standards following the procedures laid down in Annex V.

Where those causes are the result of circumstances of natural cause or force majeure which

are exceptional and could not reasonably have been foreseen, in particular extreme floods

and prolonged droughts, the Member State may determine that additional measures are not

practicable, subject to Article 4(6).

6. In implementing measures pursuant to paragraph 3, Member States shall take all

appropriate steps not to increase pollution of marine waters. Without prejudice to existing

legislation, the application of measures taken pursuant to paragraph 3 may on no account

lead, either directly or indirectly to increased pollution of surface waters. This requirement

shall not apply where it would result in increased pollution of the environment as a whole.

7. The programmes of measures shall be established at the latest nine years after the date

of entry into force of this Directive and all the measures shall be made operational at the

latest 12 years after that date.

As regards Mayotte, the time limits referred to in the first subparagraph shall be 22

December 2015 and 22 December 2018, respectively.

8. The programmes of measures shall be reviewed, and if necessary updated at the latest

15 years after the date of entry into force of this Directive and every six years thereafter.

Any new or revised measures established under an updated programme shall be made

operational within three years of their establishment.

As regards Mayotte, the time limit referred to in the first subparagraph shall be 22 December

2021.”

12. The directive provides in art. 13 for a requirement for river basin management plans (making

specific provision for both international frontiers and overseas departments and territories,

specifically Mayotte in the Indian Ocean):

“Article 13

River basin management plans

1. Member States shall ensure that a river basin management plan is produced for each

river basin district lying entirely within their territory.

2. In the case of an international river basin district falling entirely within the Community,

Member States shall ensure coordination with the aim of producing a single international

river basin management plan. Where such an international river basin management plan is

not produced, Member States shall produce river basin management plans covering at least

those parts of the international river basin district falling within their territory to achieve the

objectives of this Directive.

3. In the case of an international river basin district extending beyond the boundaries of

the Community, Member States shall endeavour to produce a single river basin management

plan, and, where this is not possible, the plan shall at least cover the portion of the

international river basin district lying within the territory of the Member State concerned.

4. The river basin management plan shall include the information detailed in Annex VII.

5. River basin management plans may be supplemented by the production of more detailed

programmes and management plans for sub-basin, sector, issue, or water type, to deal with

particular aspects of water management. Implementation of these measures shall not

exempt Member States from any of their obligations under the rest of this Directive.

6. River basin management plans shall be published at the latest nine years after the date

of entry into force of this Directive.

As regards Mayotte, the time limit referred to in the first subparagraph shall be 22 December

2015.

7. River basin management plans shall be reviewed and updated at the latest 15 years after

the date of entry into force of this Directive and every six years thereafter.

As regards Mayotte, the time limit referred to in the first subparagraph shall be 22 December

2021.”

13. Annex VI envisages that among other things, measures under the nitrates directive would

be part of the programme of measures (notes omitted):

“LISTS OF MEASURES TO BE INCLUDED WITHIN THE PROGRAMMES OF MEASURES

PART A

Measures required under the following Directives:

(i) The Bathing Water Directive (76/160/EEC);

(ii) The Birds Directive (79/409/EEC);

(iii) The Drinking Water Directive (80/778/EEC) as amended by Directive (98/83/EC);

(iv) The Major Accidents (Seveso) Directive (96/82/EC);

(v) The Environmental Impact Assessment Directive (85/337/EEC);

(vi) The Sewage Sludge Directive (86/278/EEC);

(vii) The Urban Waste-water Treatment Directive (91/271/EEC);

(viii) The Plant Protection Products Directive (91/414/EEC);

(ix) The Nitrates Directive (91/676/EEC);

(x) The Habitats Directive (92/43/EEC);

(xi) The Integrated Pollution Prevention Control Directive (96/61/EC).

PART B

The following is a non-exclusive list of supplementary measures which Member States within

each river basin district may choose to adopt as part of the programme of measures required

under Article 11(4):

(i) legislative instruments

(ii) administrative instruments

(iii) economic or fiscal instruments

(iv) negotiated environmental agreements

(v) emission controls

(vi) codes of good practice

(vii) recreation and restoration of wetlands areas

(viii) abstraction controls

(ix) demand management measures, inter alia, promotion of adapted agricultural production

such as low water requiring crops in areas affected by drought

(x) efficiency and reuse measures, inter alia, promotion of water-efficient technologies in

industry and water-saving irrigation techniques

(xi) construction projects

(xii) desalination plants

(xiii) rehabilitation projects

(xiv) artificial recharge of aquifers

(xv) educational projects

(xvi) research, development and demonstration projects

(xvii) other relevant measures”

Legal context – SEA directive

14. The SEA directive (https://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=CELEX:32001L0042) provides as follows in art. 2:

“Definitions

For the purposes of this Directive:

(a) ‘plans and programmes’ shall mean plans and programmes, including those co-financed

by the European Community, as well as any modifications to them:

- which are subject to preparation and/or adoption by an authority at national, regional or

local level or which are prepared by an authority for adoption, through a legislative procedure

by Parliament or Government, and

- which are required by legislative, regulatory or administrative provisions;

(b) ‘environmental assessment’ shall mean the preparation of an environmental report, the

carrying out of consultations, the taking into account of the environmental report and the

results of the consultations in decision-making and the provision of information on the

decision in accordance with Articles 4 to 9;

(c) ‘environmental report’ shall mean the part of the plan or programme documentation

containing the information required in Article 5 and Annex I;

(d) ‘The public’ shall mean one or more natural or legal persons and, in accordance with

national legislation or practice, their associations, organisations or groups.”

15. Article 3 provides for a requirement to carry out such SEA:

“Scope

1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for

plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant

environmental effects.

2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans

and programmes,

(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste

management, water management, telecommunications, tourism, town and country planning

or land use and which set the framework for future development consent of projects listed

in Annexes I and II to Directive 85/337/EEC, or

(b) which, in view of the likely effect on sites, have been determined to require an

assessment pursuant to Article 6 or 7 of Directive 92/43/EEC.

3. Plans and programmes referred to in paragraph 2 which determine the use of small areas

at local level and minor modifications to plans and programmes referred to in paragraph 2

shall require an environmental assessment only where the Member States determine that

they are likely to have significant environmental effects.

4. Member States shall determine whether plans and programmes, other than those referred

to in paragraph 2, which set the framework for future development consent of projects, are

likely to have significant environmental effects.

5. Member States shall determine whether plans or programmes referred to in paragraphs

3 and 4 are likely to have significant environmental effects either through case-by-case

examination or by specifying types of plans and programmes or by combining both

approaches. For this purpose Member States shall in all cases take into account relevant

criteria set out in Annex II, in order to ensure that plans and programmes with likely

significant effects on the environment are covered by this Directive.

6. In the case-by-case examination and in specifying types of plans and programmes in

accordance with paragraph 5, the authorities referred to in Article 6(3) shall be consulted.

7. Member States shall ensure that their conclusions pursuant to paragraph 5, including the

reasons for not requiring an environmental assessment pursuant to Articles 4 to 9, are made

available to the public.

8. The following plans and programmes are not subject to this Directive:

- plans and programmes the sole purpose of which is to serve national defence or civil

emergency,

- financial or budget plans and programmes.

9. This Directive does not apply to plans and programmes co-financed under the current

respective programming periods(11) for Council Regulations (EC) No 1260/1999(12) and

(EC) No 1257/1999(13).”

16. The content of the assessment is specified in part in art. 5:

“Environmental report

1. Where an environmental assessment is required under Article 3(1), an environmental

report shall be prepared in which the likely significant effects on the environment of

implementing the plan or programme, and reasonable alternatives taking into account the

objectives and the geographical scope of the plan or programme, are identified, described

and evaluated. The information to be given for this purpose is referred to in Annex I.

2. The environmental report prepared pursuant to paragraph 1 shall include the information

that may reasonably be required taking into account current knowledge and methods of

assessment, the contents and level of detail in the plan or programme, its stage in the

decision-making process and the extent to which certain matters are more appropriately

assessed at different levels in that process in order to avoid duplication of the assessment.

3. Relevant information available on environmental effects of the plans and programmes

and obtained at other levels of decision-making or through other Community legislation may

be used for providing the information referred to in Annex I.

4. The authorities referred to in Article 6(3) shall be consulted when deciding on the scope

and level of detail of the information which must be included in the environmental report.”

17. Article 10 imposes monitoring obligations:

“Monitoring

1. Member States shall monitor the significant environmental effects of the implementation

of plans and programmes in order, inter alia, to identify at an early stage unforeseen adverse

effects, and to be able to undertake appropriate remedial action.

2. In order to comply with paragraph 1, existing monitoring arrangements may be used if

appropriate, with a view to avoiding duplication of monitoring.”

18. Annex I of the directive sets out information to be included in the art. 5 examination (note

omitted):

“ANNEX I

Information referred to in Article 5(1)

The information to be provided under Article 5(1), subject to Article 5(2) and (3), is the

following:

(a) an outline of the contents, main objectives of the plan or programme and relationship

with other relevant plans and programmes;

(b) the relevant aspects of the current state of the environment and the likely evolution

thereof without implementation of the plan or programme;

(c) the environmental characteristics of areas likely to be significantly affected;

(d) any existing environmental problems which are relevant to the plan or programme

including, in particular, those relating to any areas of a particular environmental importance,

such as areas designated pursuant to Directives 79/409/EEC and 92/43/EEC;

(e) the environmental protection objectives, established at international, Community or

Member State level, which are relevant to the plan or programme and the way those

objectives and any environmental considerations have been taken into account during its

preparation;

(f) the likely significant effects on the environment, including on issues such as biodiversity,

population, human health, fauna, flora, soil, water, air, climatic factors, material assets,

cultural heritage including architectural and archaeological heritage, landscape and the

interrelationship between the above factors;

(g) the measures envisaged to prevent, reduce and as fully as possible offset any significant

adverse effects on the environment of implementing the plan or programme;

(h) an outline of the reasons for selecting the alternatives dealt with, and a description of

how the assessment was undertaken including any difficulties (such as technical deficiencies

or lack of know-how) encountered in compiling the required information;

(i) a description of the measures envisaged concerning monitoring in accordance with Article

10;

(j) a non-technical summary of the information provided under the above headings.

These effects should include secondary, cumulative, synergistic, short, medium and long-

term permanent and temporary, positive and negative effects.”

Legal context – domestic law

19. There is no transposition challenge in the pleaded case, so it must be generally assumed

that the Irish transposing legislation is sufficient, on a conforming interpretation if necessary, to

comply with the obligations of EU law set out above, subject to the (perhaps theoretical) possibility

that any actually pleaded point could have a pleaded consequence that could be viewed as calling

into question the effectiveness of transposition. A failure to spell out that possible consequences

doesn’t detract from such points as the applicant has made, and nor of course does it seriously

prejudice the State respondents who are parties anyway. But this may not actually arise in the

manner feared and deprecated by the opposing parties.

20. Section 2 of the Planning and Development Act 2000 defines “agriculture” as including:

“horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of

livestock (including any creature kept for the production of food, wool, skins or fur, or for

the purpose of its use in the farming of land), the training of horses and the rearing of

bloodstock, the use of land as grazing land, meadow land, osier land, market gardens and

nursery grounds, …”

21. Section 4(1)(a) of 2000 Act provides that “development consisting of the use of any land for

the purpose of agriculture…” is exempted development.

22. Section 4(4) provides:

“(4) Notwithstanding paragraphs (a), (i), (ia), and (l) of subsection (1) and any regulations

under subsection (2), development shall not be exempted development if an environmental

impact assessment or an AA of the development is required”.

23. Article 28(1) of the European Communities (Birds and Natural Habitats) Regulations 2011

provides:

“28. (1) Where the Minister has reason to believe that any activity, either individually or in

combination with other activities, plans or projects, is of a type that may— (a) have a

significant effect on a European Site, (b) have an adverse effect on the integrity of a

European Site, or (c) cause the deterioration of natural habitats or the habitats of species

or the disturbance of the species for which the European Site may be or has been designated

pursuant to the Habitats Directive or has been classified pursuant to the Birds Directive, in

so far as such disturbance could be significant in relation to the objectives of the Habitats

Directive, the Minister shall, where he or she considers appropriate, direct that, subject to

paragraph (2), the activity shall not be carried out, caused or permitted to be carried out or

continued to be carried out by any person in the European Site or part thereof or at any

other specified land except with, and in accordance with, consent given by the Minister under

Regulation 30.”

The derogation system – several levels of regulation

24. The derogation system consists of several levels of regulation and decision:

(i) At the high level we have the nitrates directive, which in turn envisages the making of

national action programmes (art. 5 – see consolidated text at https://eur-

lex.europa.eu/legal-content/EN/TXT/?qid=1561542776070&uri=CELEX:01991L0676-

20081211).

(ii) Legal provision to make a NAP was set out at the material time in S.I. No. 605/2017 -

European Union (Good Agricultural Practice for Protection of Waters) Regulations 2017

(https://www.irishstatutebook.ie/eli/2017/si/605/made/en/print), art. 28, which provided

for the publication of a NAP by 31st December, 2021 and every four years thereafter. The

2017 regulations have since been revoked and the current provision to make a NAP is in art.

28 of the 2022 GAP regulations which envisages a NAP by 31 st December, 2025 and every

4 years thereafter.

(iii) The current Irish nitrates action programme, made under the 2017 regulations, is the Fifth

NAP 2022-2025 (https://www.gov.ie/pdf/?file=https://assets.gov.ie/218449/f1a6725a-

6269-442b-bff1-2730fe2dc06c.pdf#page=null). Under Annex III of the directive, the NAP

must ensure that, for each farm or livestock unit, the amount of livestock manure applied

to the land each year, including by the animals themselves, shall not exceed a specified

amount per hectare. The specified amount per hectare is to be the amount of manure

containing 170 kg N unless a higher amount is specified on stated criteria. If so, the member

state shall inform the Commission, which shall examine the justification. An NAP must

include mandatory measures by way of good agricultural practice (GAP).

(iv) To implement the NAP, provision for GAP measures is made in the European Union (Good

Agricultural Practice for Protection of Waters) Regulations 2022 (S.I. 113 of 2022) (“the GAP

Regulations”) (https://www.irishstatutebook.ie/eli/2022/si/113/made/en/print).

(v) Under the procedure envisaged by the directive, Ireland’s proposed derogation was notified

to and approved by the Commission – see Commission Implementing Decision (EU)

2022/696 of 29 April 2022 granting a derogation request by Ireland pursuant to Council

Directive 91/676/EEC concerning the protection of waters against pollution caused by

nitrates from agricultural sources: https://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=CELEX%3A32022D0696.

(vi) The Commission decision was implemented by way of amendment to the GAP Regulations,

the European Union (Good Agricultural Practice for Protection of Waters) (Amendment)

Regulations 2022 (S.I. No. 393 of 2022)

(https://www.irishstatutebook.ie/eli/2022/si/393/made/en/pdf).

(vii) The GAP regulations, as so amended, provide that a farmer cannot rely on the derogation

without authorisation from the Minister for Agriculture, Food and the Marine under regulation

35(1)(a) of the regulations. The regulations do not themselves require AA - the legal

obligation seems to remain in the Planning and Development Act 2000 and the 2011

regulations. Approximately 6,500 farmers apply for a derogation each year out of over

130,000 farms in Ireland. The considerable majority of these applicants are dairy farmers.

The individual derogations are not published, only aggregated data as to the location, by

local electoral area (LEA), of the farms concerned

(https://opendata.agriculture.gov.ie/dataset/https-assets-gov-ie-213396-fec4151b-4730-

4c8c-a0e3-c2e50b0b2f26-xlsx). Whatever about the legal framework, it would appear that

in practice AA has not been carried out for any of these decisions (although if I am incorrect

about that, the State might provide any necessary clarifications on affidavit for the benefit

of subsequent modules).

Facts – nitrates system

25. The Fifth NAP was adopted after several rounds of consultation. Approximately 700

submissions were received during the three consultation periods.

26. The first consultation occurred when the First Respondent initiated a Fourth Review of

Ireland’s Nitrates Action Programme – Stage 1 on 25th November, 2020. The applicant made a

submission on 14th January, 2021.

27. The first respondent initiated a second public consultation on Ireland’s Nitrates Action

Programme on 9th August, 2021 with a deadline of 20th September, 2021 for public submissions.

28. The applicant made a submission on 20th September, 2021.

29. A third consultation period focused on the draft Natura Impact Statement and draft Strategic

Environmental Assessment for the Programme then took place. The first respondent published a

Natura Impact Statement and Strategic Environmental Impact Assessment for the Draft Fifth

Nitrates Action Programme on 14th December, 2021 and invited further public submissions by 26th

January, 2022. The applicant made a submission on 26th January, 2022.

30. An NIS was prepared by RPS dated 25th February, 2022

(https://www.gov.ie/pdf/?file=https://assets.gov.ie/218455/0ba5a7df-50dd-431e-a036-

03218b30bdc2.pdf#page=null) which concluded as follows on p. 103:

“This Natura Impact Statement has considered the potential of the measures proposed

within the NAP to give rise to adverse effects on the integrity of European Sites, with regard

to their qualifying interests, associated conservation status and the overall site integrity,

alone and in combination with other relevant plans and programmes. The NAP does not

determine the precise location of any development project or designate or allocate specific

land uses, nor does it preclude the consideration of alternatives. In light of this and where

necessary, a precautionary approach has been adopted in the NIS to ensure that the

measures proposed with respect to implementing the actions of the NAP are, where

necessary, subject to Appropriate Assessment. As such, the NAP will not adversely affect

the integrity of any European Site either alone or in combination with other relevant plans

or programmes and subject to securing the mitigation prescribed above. In light of the

conclusions of the assessment contained in this NIS, the authors are of the view that the

adoption of the NAP alone, or in combination with other plans and programmes, will not

adversely affect the integrity of any European site. Accordingly, and in light of the

conclusions of the assessment contained here and the Appropriate Assessment that the

Ecological Assessment Unit shall conduct on the implications for the European sites

concerned, the competent authority is enabled to ascertain that the adoption of the NAP,

alone or in combination with other relevant plans and programmes, will not adversely affect

the integrity of any European Site.”

31. A "Determination on Appropriate Assessment" was made on 4th March, 2022 by the

Ecological Assessment Unit (https://www.gov.ie/pdf/?file=https://assets.gov.ie/218456/47a7d9ee-

a69d-4fbf-9c0d-3d8af3c6f7eb.pdf#page=null).

32. On 9th March, 2022, the Minister for Housing, Local Government and Heritage approved the

Fifth Nitrates Action Programme. On the same date, the Minister signed the GAP Regulations.

33. On 22nd April, 2022, the applicant says that the EPA engaged in a global categorisation of

hitherto unclassified water bodies in the State.

34. On 29th April, 2022, the Commission extended the derogation previously granted to Ireland

for the purposes of Paragraph 2 of Annex III to the Nitrates Directive.

35. Recital 23 of the Commission derogation states (note omitted):

“The derogation provided for in this Decision is without prejudice to the obligations of Ireland

to apply Council Directive 92/43/EEC (16), including the ruling of the Court of Justice of the

European Union in Case C-293/17 Coöperatie Mobilisation for the Environment and

Vereniging Leefmilieu, in particular on the interpretation of Article 6(3) of that Directive.”

36. The decision was recited in the amending GAP regulations in 2022 (SI No. 393 of 2022):

“2. In these Regulations :

(i) ‘Commission Decision’ means the Commission Implementing Decision of 29 April 2022

on granting a derogation requested by Ireland pursuant to Council Directive 91/676/EEC

concerning the protection of waters against pollution caused by nitrates from agricultural

sources;

(ii) ‘The 2022 Regulations’ means the European Union (Good Agricultural Practice for the

Protection of Waters) Regulations 2022 (S.I. No. 113 of 2022).”

37. The regulations add a new Part to the principal regulations regarding implementation of the

Commission decision. This envisages that individual farm derogations are “granted under the

Commission Decision” - a fairly extensive set of consequences which is going to be highly relevant

to the opposing argument that the decision can’t be challenged due to the lack of implementing

measures:

“17. The 2022 Regulations are amended by the insertion of the following after Part 6:

‘Part 7

Implementation of Commission Decision

34. The Minister for Agriculture, Food and the Marine shall be the competent authority for

the purposes of verifying compliance with a derogation granted under the Commission

Decision.

35. (1) The application to land, on a holding in any year of livestock manure in excess of the

amount specified in Article 20(1) shall be deemed not to be a contravention of that sub-

article where all of the following conditions are met—

(a) the occupier of the holding has made application in respect of that year to the Minister

for Agriculture, Food and the Marine for authorisation of a derogation from the requirements

of that sub-article;

(b) the application under paragraph (a) is duly completed in the form and on or before the

date specified for the time being by that Minister;

(c) the application under paragraph (a) is accompanied by an undertaking in writing by the

occupier to comply with all the conditions specified in Schedule 5, and

(d) all the conditions set out in Schedule 5 are met by the occupier in relation to the holding.

(2) Where an application is made to the Minister for Agriculture, Food and the Marine in

accordance with this Article that Minister shall consider the application and, where that

Minister considers that the application does not comply with the conditions therein, he or

she shall issue a notice of refusal to the occupier.

(3) Where it is established, in any year, that a grassland farm covered by an authorisation

does not fulfil the conditions set out in Articles 6 to 9 of the Commission Decision, the holding

shall not be eligible for an authorisation the following year.

36. The Minister for Agriculture, Food and the Marine shall carry out, or arrange for the

carrying out of, such monitoring, controls and reporting as are necessary for the purposes

of Articles 10, 11 and 13 of the Commission Decision.

37. The Agency shall prepare annually a report of the results of water quality monitoring

carried out by local authorities for the purposes of Article 10(4) of the Commission Decision

and, where appropriate and as agreed from time to time between the Agency and the

Minister for Agriculture, Food and the Marine, shall assist that Minister in compiling water

quality data for reporting in accordance with the requirements of the Commission Decision.

38. The Agency shall submit, by 30 June 2023, the assessment described in Article 10 of the

Commission Decision, corresponding to the year 2022, an annex containing the results of

monitoring as regards the nitrates concentrations of groundwater and surface waters and

the trophic status of surface water bodies as outlined in Article 12 (1) and (2) of the

Commission Decision.

39. In accordance with the requirements of Article 12 (3) and (4) of the Commission Decision

the Minister for Agriculture, Food and the Marine, shall assist the Minister in informing the

Commission, by 30 September 2023, of the outcomes of this two-year review, and in

particular on the areas and farms with an authorisation where the maximum amount of

manure to be applied is 220 kg nitrogen/ha per year and of the additional measures to be

applied within the Nitrates Action Programme.

40. The Agency shall make such recommendations and give such directions to a local

authority in relation to the monitoring of water quality as it considers appropriate and/or

necessary for the purposes of the Commission Decision.’”

Facts – water catchment management system

38. The current River Basin Management plan was published in 2018 for the period 2018-2021

– https://www.gov.ie/en/publication/429a79-river-basin-management-plan-2018-2021/. It was

subject to AA and SEA.

39. Under the heading “ 3.1.1 Legal Framework for Water Framework Directive Implementation

and Associated Actions” it states inter alia:

“The European Communities Environmental Objectives (Surface Water) Regulations 2009

(S.I. 272 of 2009) and the European Communities Environmental Objectives (Groundwater)

Regulations 2010 (S.I. 9 of 2010) establish the legal framework needed to implement the

environmental objectives of the WFD. They lay down the criteria and environmental quality

standards for classifying water status and impose an obligation on public authorities to take

the necessary steps to achieve the objectives set out in river basin management plans. Both

sets of Regulations, inter alia, require licensing authorities to examine, and where necessary,

review discharge licences where these are needed to achieve the water-quality objectives

as set out in river basin management plans.”

40. The Government has prepared a draft River Basin Management Plan 2022 to 2027

(https://www.gov.ie/pdf/?file=https://assets.gov.ie/199144/7f9320da-ff2e-4a7d-b238-

2e179e3bd98a.pdf#page=null). Page 10 clarifies one basic definition:

“A water catchment (or ‘river basin’) is an entire area of land from which surface water run-

off flows until it reaches a river, lake, groundwater or the coast.”

41. The NIS for that document, prepared by RPS in September, 2021, states at p. 45:

“The new NAP is being prepared; however it is not yet published in draft. There are

expectations as to what actions may be included within the new NAP, however these are not

confirmed. The actions arising from the new NAP have potential for significant adverse

effects on European Sites; particularly mindful of nutrient loss to water from agriculture is

one of the most significant pressures on water quality in Ireland. The new NAP will be

subject to AA and SEA in its own right and the new NAP will be required to be cognisant of

the RBMP; including the mitigations identified within this NIS for the RBMP. In the context

of nitrates derogations, it is noted that where a farm has a derogation and has an eco-

hydrological pathway to a European site, there is potential risk to the favourable

conservation status objective of those European sites. The derogations will be decided as

part of the NAP process. However, it is estimated that over 5,000 farms within the state

would seek to avail of the derogation status, covering significant land areas. The list of

farms and /or their location is not available. From a precautionary perspective it is assumed

that these some of these farms and their activities have eco-hydrological pathways to

European sites and that some of these European sites are within the landholding. Therefore,

there is significant potential for adverse effects on maintaining and achieving conservation

objectives and therefore integrity of European Sites with respect to these derogations both

individually and in combination with other derogations, plans and projects. Given the scale

of derogations under previous cycles of the NAP, the potential for in-combination effects is

significant. It will therefore be vital that any derogations which emerge from the NAP will

be subject to AA; which should include a robust assessment of in-combination adverse

effects.”

Procedural history

42. The proceedings were initiated on 31st May, 2022.

43. Under the procedures then operative, leave had not been granted in the judicial review list

in the period between May and November, 2022.

44. A motion to admit the case to what is now the Planning and Environment List was issued,

returnable for 7th November, 2022, and was granted on that date. Liberty to file an amended

statement of grounds was also granted having regard to the pleading requirements in the List.

45. On 21st November, 2022, representatives of the Irish Farmers Association were added as

notice parties on the basis of being represented by a single legal team. The second named

respondent (Ecological Assessment Unit) was struck out on the grounds of not being a legal entity

and as being already covered by having named the relevant Minister. Relief 4 (certiorari of the

appropriate assessment as distinct from the actual plan) was struck out on the basis that it was

unnecessary to be claimed as a separate relief and would be deemed included in the overall claim

for certiorari. The approach to be taken with the main relief was that a declaration of invalidity

would normally be the appropriate relief for a measure of general application (like a statute,

statutory instrument, or policy document), but certiorari could be claimed as a fall-back (this

principle is now reflected in statutory Practice Direction HC124.)

46. On 5th December, 2022 I granted leave on the basis of allowing a further minor amendment

to the statement of grounds. The Irish Creamery Milk Suppliers Association was also added as a

notice party through its trustees.

47. The substantive notice of motion was returnable for 19th December, 2022, at which point

directions were made for exchange of papers. The State’s opposition was directed to be filed by

20th February, 2023, but in fact was not filed until 8th March, 2023. Opposition by the notice parties

was filed on 31st March, 2023 and 27th April, 2023, and there were then further exchanges of

affidavits which went on until 17th July, 2023. A hearing date commencing on 12th December, 2023

was fixed and the matter was heard beginning on that date.

48. The case was in effect modularised so that the initial module related primarily to the large

number of pleading and evidential objections. The hearing concluded on 15th December, 2023,

following which the matter was adjourned to the following Monday 18th December, 2023, to finalise

the issue paper (that finalised version is set out in Schedule I to this judgment). The parties were

permitted to file supplementary written submissions in a sequence (the State by 26th January, 2024,

notice parties by 2nd February, 2024, and the applicant by 13th February, 2024) to be completed

by a mention date on 19th February, 2024. The final submissions were in fact delivered on the

morning of the latter date, at which point judgment was reserved.

Relief sought

49. The relief sought in the amended statement of grounds filed pursuant to an order of 5th

December, 2022, is as follows (strike-throughs in original):

“1. An Order of Certiorari by way of application for judicial review quashing the Fifth

Nitrates Action Programme in a decision taken by the First Respondent.

2. A Declaration that the Fifth Nitrates Action Programme prepared, published or

adopted by the first named Respondent pursuant to the European Union (Good Agricultural

Practice for Protection of Waters) Regulations 2017 is contrary to law and/or ultra vires

and/or invalid.

An Order of Certiorari by way of application for judicial review quashing the decision of the

Respondents to publish and adopt part or all of the Fifth Nitrates Action Programme pursuant

to the European Union (Good Agricultural Practice for Protection of Waters) Regulations

2022.

2A In the alternative to Relief 2, an Order of Certiorari by way of application for judicial

review quashing the Fifth Nitrates Action Programme prepared, published or adopted by the

first named Respondent pursuant to the European Union (Good Agricultural Practice for

Protection of Waters) Regulations 2017.

3. A Declaration that the European Union (Good Agricultural Practice for Protection of

Waters) Regulations 2022 are contrary to law and/or ultra vires and/or invalid.

An Order of Certiorari by way of application for judicial review quashing the decision of the

Respondent to promulgate the European Union (Good Agricultural Practice for Protection of

Waters) Regulations 2022.

3A In the alternative to Relief 3, an Order of Certiorari by way of application for judicial

review quashing the European Union (Good Agricultural Practice for Protection of Waters)

Regulations 2022.

4. An order of Certiorari by way of application for judicial review quashing the

Appropriate Assessment Determination of the Environmental Assessment Unit dated 4 March

2022.

5. A Reference to the Court of Justice of the European Union pursuant to Article 267

TFEU to determine the validity of Commission Implementing Decision (EU) 2022/696

granting a derogation requested by Ireland pursuant to Council Directive 91/676/EEC

concerning the protection of waters against pollution caused by nitrates from agricultural

sources (OJ L 129, 3.5.2022, p. 37–45).

6. A Declaration that the Respondents breached Articles 3(1), 5(1), 10 of the SEA

Directive/SEA Regulations by adopting the Fifth Nitrates Action Programme without carrying

out a lawful environmental assessment in accordance with Articles 4 to 9 of the SEA

Directive.

7. A Declaration that the Respondents breached Article 6(3) of the Habitats Directive

by adopting the Fifth Nitrates Action Programme, without first concluding that it would not

adversely affect the integrity of European Site(s).

8. A Declaration that the Respondents breached Article 4(1) of the Water Framework

Directive (Directive 2000/60/EC) and/or Regulations 4 and 5 of the European Communities

Environmental Objectives (Surface Waters) Regulations 2009 (S.I. 272/2009) and/or

Regulations 4 and 5 of the European Communities Environmental Objectives (Groundwater)

Regulations 2010 (S.I. 9/2010) by adopting the Fifth Nitrates Action Program without

establishing that the NAP would not cause a deterioration of the status of a body of surface

water or would not jeopardise the attainment of good surface water status or of good

ecological potential and good surface water chemical status of a body of surface water,

and/or would not cause a deterioration of the status of a body of groundwater or would not

jeopardise the attainment of good groundwater status, and/or jeopardise the achievement

and/or maintenance of the standards and objectives for all bodies of surface and

groundwater comprising Protected Areas registered pursuant to Article 6 of the Water

Framework Directive.

9. An Order providing for the costs of the application and, where appropriate, an Order

pursuant to sections 3 and 7 of the Environment (Miscellaneous Provisions) Act 2011 in

respect of the costs of this application and/or a Declaration that the costs of the application

be Not Prohibitively Expensive pursuant to Article 9 of the Aarhus Convention.

10. Such further or other Order as this Honourable Court deems appropriate.”

Grounds of challenge

50. The core grounds of challenge are as follows:

“1. The decision to prepare and publish (‘the impugned decision’) the Fifth Nitrates

Action Program (‘the NAP’) is invalid because the NAP was authorised on the basis of an

appropriate assessment determination which was made in breach of Regulation 42A(11) of

the Birds and Natural Habitats Regulations 2011 and/or of Article 6(3) of the Habitats

Directive because it did not ensure that there was no reasonable scientific doubt as to the

absence of adverse significant effects from the NAP on the integrity of European Sites which

are likely to be affected by the NAP, further particulars of which are contained at Part B

below.

2. The impugned decision is invalid because the NAP was prepared and published in

breach of Article 4(1) of Directive 2000/60/EC of the European Parliament and of the Council

of 23 October 2000 establishing a framework for Community action in the field of water

policy (the ‘Water Framework Directive’) and/or Article 5 of Directive 2001/42/EC of the

European Parliament and of the Council of 27 June 2001 on the assessment of the effects of

certain plans and programmes on the environment (the ‘SEA Directive’) because the

Respondents did not ensure that the NAP would not cause a deterioration of the status of a

body of surface water or that it would not jeopardise the attainment of good surface water

status or of good ecological potential and good surface water chemical status and/or would

not cause a deterioration of the status of a body of groundwater or would not jeopardise the

attainment of good groundwater status, and/or jeopardise the achievement and/or

maintenance of the standards and objectives for all bodies of surface and groundwater

comprising Protected Areas registered pursuant to Article 6 of the Water Framework

Directive by the date laid down in the Directive or at all, further particulars of which are

contained at Part B below.

3. The decision to prepare and publish the NAP is invalid because the NAP was

authorised in breach of Articles 3(1), 5(1), 10 of the SEA Directive without carrying out a

lawful environmental assessment in accordance with Articles 4 to 9 of the SEA Directive. and

or the transposing provisions in the SEA Regulations 2004 (S.I. 436 of 2004), further

particulars of which are contained at Part B below.

4. As a consequence of the invalidity of the impugned decision Commission

Implementing Decision (EU) 2022/696 of 29 April 2022 granting a derogation requested by

Ireland pursuant to Council Directive 91/676/EEC concerning the protection of waters

against pollution caused by nitrates from agricultural sources (OJ L 129, 3.5.2022, p. 37–

45) is invalid, further particulars of which are contained at Part B below.”

51. Core ground 4 is essentially derivative on the applicant succeeding on one or more of the

first three core grounds.

Disposition of agreed points and pleading-type objections

52. The present case involved an embarrassment of issues. A total of 78 different questions

were identified on the issue paper – a record-breaking number in this list. For comparison, counsel

referred to a set of cases regarding aircraft leasing in Russia, currently being heard together in the

Commercial Court, with 112 issues in the current module, with something in the order of 4 months

being afforded for those to be heard. In that context, trying to deal with this many issues in one go

after a 4 day hearing seems ambitious, even for this list. There comes a point where the complexity

of a matter reaches a critical level such that the most practical way of navigating through it is to

take matters in a bite-sized way. To try to answer that many issues in one go would be virtually

impossible and would ensure that one would not give due attention to one or more of the myriad of

aspects of the problem. The first natural module is the collection of 42 pleading objections, which

the applicant suggested was also a record-breaking number, together with the matters where

clarification of what was agreed would be helpful.

53. The issue paper (finalised on 18th December, 2023 without objection from the parties)

consists of a list of the questions that appear potentially to arise as matters stood at that date, with

a provisional note as to whether the issue is (a) apparently agreed or (b) of a pleading/evidential

nature. Other categories of issues were not given labels at that stage.

54. The next step was to confirm the status of the issues that didn’t in fact need to be decided

and also to receive further focused submissions on those of a pleading or evidential objection-type

nature.

55. Having received those submissions, I now propose to determine the pleading and evidential

objections and confirm the matters that are agreed. As the State were keen to point out, there is

ultimately a degree of overlap in some of the questions, and the proposed disposition of the issues

will take that into account. All general comments were considered and were of assistance although

these are not all expressly quoted below. Not all issues were individually addressed by all parties,

and it can be noted that generally the IFA and ICMSA associated themselves with the State’s

responses. Certain points are being postponed for a possible later module as discussed further

below.

Core ground 1 - alleged breach of article 6(3) of habitats directive and transposing

legislation

56. Core ground 1 alleges a breach of art. 6(3) of the habitats directive and the transposing

legislation, reg. 42A(11) of the European Communities (Birds and Natural Habitats) Regulations

2011:

“1. The decision to prepare and publish (‘the impugned decision’) the Fifth Nitrates

Action Program (‘the NAP’) is invalid because the NAP was authorised on the basis of an

appropriate assessment determination which was made in breach of Regulation 42A(11) of

the Birds and Natural Habitats Regulations 2011 and/or of Article 6(3) of the Habitats

Directive because it did not ensure that there was no reasonable scientific doubt as to the

absence of adverse significant effects from the NAP on the integrity of European Sites which

are likely to be affected by the NAP, further particulars of which are contained at Part B

below.”

57. A threshold question is the extent to which the habitats directive applies.

58. Article 6(3) provides that:

“Any plan or project not directly connected with or necessary to the management of the site

but likely to have a significant effect thereon, either individually or in combination with other

plans or projects, shall be subject to appropriate assessment of its implications for the site

in view of the site's conservation objectives. In the light of the conclusions of the assessment

of the implications for the site and subject to the provisions of paragraph 4, the competent

national authorities shall agree to the plan or project only after having ascertained that it

will not adversely affect the integrity of the site concerned and, if appropriate, after having

obtained the opinion of the general public.”

59. Following European Commission guidance, I held in Friends of the Irish Environment v.

Government of Ireland [2023] IEHC 562, [2023] 10 JIC 1904 that an assessment by reference to

the conservation objectives of particular sites was not possible if a plan was too general to permit it

being related to particular sites. That is slightly different from saying that no assessment at all

under art. 6(3) is possible, just that it is not possible to do so by reference to particular “sites”.

60. As put in the Commission notice, “Managing Natura 2000 sites The provisions of Article 6 of

the Habitats’ Directive 92/43/EEC”, 21 November 2018, C(2018) 7621 Final at para. 4.4.2:

“Of obvious relevance under the Habitats Directive are land-use or spatial plans. Some plans

have direct legal effects for the use of land, others only indirect effects. For instance, regional

or geographically extensive spatial plans are often not applied directly but form the basis for

more detailed plans or serve as a framework for development consents, which then have

direct legal effects. Both types of land-use plan should be considered as covered by Article

6(3) to the extent that they are likely to have significant effects on a Natura 2000 site. The

Court upheld this view (C-6/04 paragraph 52) stating that although land-use plans do not

always authorise developments and planning permission must be obtained for development

projects in the normal manner, they have great influence on development decisions.

Therefore land-use plans must be subject to appropriate assessment of their implications for

the site concerned (see also C-418/04). Sectoral plans should also be considered as covered

by the scope of Article 6(3), again in so far as they are likely to have a significant effect on

a Natura 2000 site. Examples might include transport network plans, energy plans, waste

management plans, water management plans or forest management plans (see C-441/17,

122-124). However, a distinction needs to be made with ‘plans’ which are in the nature of

policy statements, i.e. policy documents which show the general political will or intention of

a ministry or lower authority. An example might be a general plan for sustainable

development across a Member State's territory or region. It does not seem appropriate to

treat these as ‘plans’ for the purpose of Article 6(3), particularly if any initiatives deriving

from such policy statements must pass through the intermediary of a land-use or sectoral

plan (C 179/06, paragraph 41). However, where the link between the content of such an

initiative and likely significant effects on a Natura 2000 site is clear and direct, Article 6(3)

should be applied. Where one or more specific projects are included in a plan in a general

way but not in terms of project details, the assessment made at plan level does not exempt

the specific projects from the assessment requirements of Article 6(3) at a later stage, when

much more details about them are known.” [footnotes omitted]

61. This is also reflected in the analogous EIA context as held by the CJEU in the judgment of

29 July 2019, Inter-Environnement Wallonie ASBL and Bond Beter Leefmilieu Vlaanderen ASBL v

Conseil des ministers, C-411/17, ECLI:EU:C:2019:622:

“85 Furthermore, where national law provides that the consent procedure is to be carried

out in several stages, the environmental impact assessment in respect of a project must, in

principle, be carried out as soon as it is possible to identify and assess all potential effects

of the project on the environment (judgments of 7 January 2004, Wells, C‑201/02,

EU:C:2004:12, paragraph 52, and of 28 February 2008, Abraham and Others, C‑2/07,

EU:C:2008:133, paragraph 26).

86 Where one of those stages is a principal decision and another an implementing decision

which cannot extend beyond the parameters set by the principal decision, the effects which

the project may have on the environment must be identified and assessed at the time of the

procedure relating to the principal decision. It is only if those effects are not identifiable until

the time of the procedure relating to the implementing decision that the assessment should

be carried out in the course of the latter procedure (judgments of 7 January 2004, Wells,

C‑201/02, EU:C:2004:12, paragraph 52, and of 28 February 2008, Abraham and Others,

C‑2/07, EU:C:2008:133, paragraph 26).”

62. The court then went on to apply this principle to the habitats directive context:

“140 The second sentence of Article 6(3) of the Habitats Directive specifies that following

an appropriate assessment, the competent national authorities are to ‘agree’ to the project

only after having ascertained that it will not adversely affect the integrity of the site

concerned and, if appropriate, after having obtained the opinion of the general public.

141 It follows that the assessment must be conducted before agreement is given.

142 Furthermore, while the Habitats Directive does not define the conditions governing

how the authorities ‘agree’ to a given project under Article 6(3) of that directive, the

definition of ‘development consent’ in Article 1(2)(c) of the EIA Directive is relevant in

defining that term.

143 Accordingly, by analogy with the Court’s findings on the EIA Directive, if national law

provides for a number of steps in the consent procedure, the assessment under Article 6(3)

of the Habitats Directive, should, in principle, be carried out as soon as the effects which the

project in question is likely to have on a protected site are sufficiently identifiable.

144 Consequently, for reasons similar to those set out in paragraphs 87 to 91 of the

present judgment, national legislation such as the Law of 28 June 2015 has the

characteristics of an agreement given by the authorities in respect of the project concerned,

for the purposes of Article 6(3) of the Habitats Directive, and the fact that subsequent acts

must be adopted in order to proceed with that project, specifically a new specific consent for

production of electricity for industrial purposes at one of the two power stations in question,

does not justify the failure to conduct an appropriate assessment of those effects before the

adoption of that legislation. Moreover, as regards the work that is inextricably linked to the

measures at issue in the main proceedings, if its nature and potential effects on the protected

sites are sufficiently identifiable, a finding which it is for the national court to make, an

assessment must be conducted of that work at that stage of the consent procedure.

145 In the light of the foregoing, the answer to Question 8(a) to (c) is that Article 6(3) of

the Habitats Directive must be interpreted as meaning that measures such as those at issue

in the main proceedings, together with the work of upgrading and of ensuring compliance

with current safety standards, constitute a project in respect of which an appropriate

assessment of its effects on the protected sites concerned should be conducted. Such an

assessment should be conducted in respect of those measures before they are adopted by

the legislature. The fact that the implementation of those measures involves subsequent

acts, such as the issue, for one of the power stations in question, of a new specific consent

for the production of electricity for industrial purposes, is not decisive in that respect. Work

that is inextricably linked to those measures must also be subject to such an assessment

before the adoption of those measures if its nature and potential impact on the protected

sites are sufficiently identifiable at that stage, a finding which it is for the referring court to

make.”

63. The message of that decision is that impacts that are not identifiable don’t need to be

assessed until the stage when they are identifiable.

64. In the judgment of 12 June 2019 Terre Wallonne ASBL v Région Wallonne, C-321/18,

ECLI:EU:C:2019:484, the CJEU said:

“30. In the present case, it is clear from the order for reference that the Decree of 1

December 2016 is directly connected to the management of all sites in the Walloon region.

It therefore does not concern a particular site, for the purposes of Article 6(3) of the Habitats

Directive and, accordingly, nor does it require an environmental assessment pursuant to

Article 3(2)(b) of the SEA Directive.

31. That being said, the fact that a measure, such as that at issue in the main proceedings,

need not be preceded by an environmental assessment on the basis of the combined

provisions of Article 6(3) of the Habitats Directive and Article 3(2)(b) of the SEA Directive

does not mean that it is exempt from any obligation in that regard, since it is not excluded

that such a measure could enact rules which lead to it being placed on the same footing as

a plan or programme for the purposes of the latter directive, in respect of which an

environmental impact assessment may be mandatory.”

65. This is reinforced by the transposing legislation, the European Communities (Birds and

Natural Habitats) Regulations 2011. Regulation 2 defines plan as follows:

“‘plan’, subject to the exclusion, except where the contrary intention appears, of any plan

that is a land use plan within the meaning of the Planning Acts 2000 to 2011, includes— (a)

any plan, programme or scheme, statutory or non-statutory, that establishes public policy

in relation to land use and infrastructural development in one or more specified locations or

regions, including any development of land or on land, the extraction or exploitation of

mineral resources or of renewable energy resources and the carrying out of land use

activities, that is to be considered for adoption or authorisation or approval or for the grant

of a licence, consent, permission, permit, derogation or other authorisation by a public

authority, or (b) a proposal to amend or extend a plan or scheme referred to in subparagraph

(a);”

66. The Commission’s FAQ document envisages that a site specific approach may not be viable

in the case of a nitrates action plan (pp. 21-22):

“In case of NVZs covering a limited geographical area overlapping or adjacent to Natura

2000 site(s), the Action Programme’s measures and restrictions could be aligned relatively

easily with the necessary conservation measures for the site(s). However, in the opposite

scenario, e.g. those cases where Action Programmes are applied to the whole territory of a

Member State, or when a single Action Programme is developed for 22 many /large NVZs

in a Member State, a full alignment of the content and measures of Nitrates Directive Action

Programmes’ measures with the nature protection/conservation measures applicable to

every single covered site does not seem viable. In this case, the measures established in

the Action Programmes will in principle benefit protected habitats and species. This can be

further promoted by selecting measures that can simultaneously contribute to the

environmental objectives of different directives and ensure the needs and requirements

applicable in Natura 2000 areas are met. However, it is also important to consider the

following situations:

• As already mentioned, some Natura 2000 sites will require stricter targeted measures,

according to the ecological requirements of the habitats and species for which they have

been designated. For instance, the relevant timeframes in which certain agricultural

practices are not to be implemented can be different in relation to the implementation of the

different directives, which has implications for Natura 2000 sites. The directives themselves

do not set out such timeframes, it is for the relevant Member State to define them. For

example, restrictions on fertilisers application under the Nitrates Directive tend to apply in

late autumn and winter (when there is hardly any vegetation growth and thus crop uptake

of nitrogen; fertiliser application during this period would increase the risk of nitrate

leaching). Whereas these restrictions are important for the protection of water habitats from

eutrophication, other important requirements from the nature conservation perspective are

likely to be related to breeding seasons of birds and other species on fields and grassland

during springtime. The Nitrates Directive does not, however, include temporal restrictions

on nitrogen application in the growing season.

• Also, it is clear that Action Programmes should not lead to a breach of Article 6(2) of the

Habitats Directive, which requires that the deterioration of natural habitats and the habitats

of species as well as disturbance of the species for which the Natura 2000 sites have been

designated is avoided in Natura 2000 sites.

• Finally, the Nitrates Directive allows the possibility to derogate from the maximum amount

of 170 kg of nitrogen per hectare per year from livestock manure in areas covered by the

Action Programme, provided that objective criteria set in Annex III to the Directive are met

and that the derogated amounts do not prejudice the achievement of the Directive's

objectives. The standards of management required to farmers who benefit from derogations

are higher than those of the Action Programmes, with additional obligations for nutrient

planning and extra constraints on land management. The application of derogations allowing

higher amount of manure than 170 kg of nitrogen per hectare per year should not lead to a

breach of Article 6(2) of the Habitats Directive.”

67. It goes on to pose the bald question: “Does Article 6(3) of the Habitats Directive apply to

action programmes and /or derogations granted under the Nitrates Directive?” (p. 22).

68. It goes on to say the following:

“The Habitats Directive does not define the term ‘plan’. The European Court of Justice has

clarified the following:

- Measures taken outside or inside a protected area may be subject to an assessment of

the implications under the Habitats Directive. [Judgment of 10 January 2006,

Commission v. Germany, C-98/03, ECLI:EU:C:2006:3 paras. 39-45.]

- Land use plans require an appropriate assessment under Article 6(3) Habitats Directive

although they do not as such authorise development and planning as they have great

influence on the final development or planning decision. [Judgment of 20 October 2005,

Commission v. United Kingdom, C-6/04, ECLI:EU:C:2005:626 para 52.]

- Action Programmes should be subject to strategic environmental assessment [Joint

cases C-105/09 and C-110/09, 17 June 2010, Terre wallonne ASBL (C-105/09) and

Inter-Environnement Wallonie ASBL (C-110/09) v Région wallonne,

ECLI:EU:C:2010:355 and ECLI:EU:C:2009:238 para. 35-42.]

- Article 6(3) of the Habitats Directive must be interpreted as meaning that the grazing

of cattle and the application of fertilisers on the surface of land or below its surface in

the vicinity of Natura 2000 sites may be classified as a ‘project’ within the meaning of

that provision, even if those activities, in so far as they are not a physical intervention

in the natural surroundings, do not constitute a ‘project’ within the meaning of Article

1(2)(a) of the EIA Directive [Joined Cases C-293/17 and C-294/17, REQUESTS for a

preliminary ruling under Article 267 TFEU from the Raad van State (Council of State,

Netherlands) Judgement of 7 November 2018, para 73.]

- Article 6(3) of the Habitats Directive must be interpreted as precluding national

programmatic legislation, such as that at issue in the main proceedings, which allows a

certain category of projects, in the present case the application of fertilisers on the

surface of land or below its surface and the grazing of cattle, to be implemented without

being subject to a permit requirement and, accordingly, to an individualised appropriate

assessment of its implications for the sites concerned, unless the objective

circumstances make it possible to rule out with certainty any possibility that those

projects, individually or in combination with other projects, may significantly affect those

sites, which it is for the referring court to ascertain. [Joined Cases C-293/17 and C-

294/17, requests for a preliminary ruling under Article 267 TFEU from the Raad van

State (Council of State, Netherlands) Judgement of 7 November 2018, para 120.]

According to the Commission notice ‘Managing Natura 2000 sites’ … the term ‘plan’ has a

potentially very broad meaning for the purpose of Article 6(3) of the Habitats Directive.

Examples of such plans are land-use or spatial plans as well as sectoral plans provided they

are likely to have significant effects on Natura 2000 sites. Examples for sectoral plans might

include transport network plans, energy plans, waste management plans, water

management plans or forest management plans. In the event that potential adverse effects

of a draft Nitrates Directive Action Programme are identified on one or several Natura 2000

sites, including in the context of the Strategic Environmental Assessment of the Action

Programme, an assessment under Article 6(3) would have to be conducted. The practice

concerning the application of Article 6(3) of the Habitats Directive to Action Programmes

varies from Member State to Member State.”

69. There then follows an interesting table of practices in different member states:

“Appropriate assessment under Article 6 (3) Habitats Directive in Member States

Austria has conducted a strategic environment assessment for its 2016 revision of the

nitrate Action Programme. This assessment covered Natura 2000 sites.

France has adopted nitrate Action Programmes on national and regional level. Prior to the

adoption of these programmes, an appropriate assessment under Article 6(3) of the Habitats

Directive has been conducted.

Germany has conducted a strategic environment assessment for its nitrate Action

Programme in 2016. This did not explicitly cover an appropriate assessment according to

Article 6(3) of the Habitats Directive.

Ireland conducted an appropriate assessment according to Article 6(3) Habitats Directive

for its draft nitrates action programme.

It has been conducted concurrently, but separately from the strategic environment

assessment. The Natura Impact Statement issued to document the results describes the

content of the draft Action Programme, gives an overview of the receiving environment,

describes a two-step assessment with a screening as the first step and the appropriate

assessment as the second step, and identifies mitigation measures. The competent

authorities have consulted interested parties and the public during the assessment

procedure.

Malta carried out a screening for its 2011 nitrate Action Programme and came to the

conclusion that it was unlikely to have significant effects on Nature 2000 sites. Therefore,

no appropriate assessment according to Article 6(3) of the Habitats Directive was conducted.

Denmark: In Denmark the Nitrates Directive is not implemented in a single legal act or

order. The Nitrates Action Programme consists of different legal instruments, which are

assessed individually.

Slovakia: At present, the Slovak Republic has not performed such an assessment of the

impact of Action Programmes on Natura 2000 sites.

Belgium (Flanders): In the region of Flanders an appropriate assessment according to

Article 6(3) of the Habitats Directive was conducted for the 6th Action Programme

20192022.” [emphasis added]

70. Finally the FAQ document deals with strict protection in rather muted terms:

“Strict species protection rules established under Articles 12 and 13 of the Habitats Directive

and Article 5 of the Birds Directive apply in the whole territory of the Member States, i.e.

beyond Natura 2000 sites. Article 12, paragraph 1, of the Habitats Directive requires

Member States to take the requisite measures to establish a system of strict protection for

the animal species listed in Annex IV(a) in their natural range, prohibiting (a) all forms of

deliberate capture or killing of specimens of these species in the wild; (b) deliberate

disturbance of these species, particularly during the period of breeding, rearing, hibernation

and migration; (c) deliberate destruction or taking of eggs from the wild; (d) deterioration

or destruction of breeding sites or resting places.

Article 13, paragraph 1, of the Habitats Directive requires Member States to take the

requisite measures to establish a system of strict protection for the plant species listed in

Annex IV (b), prohibiting: (a) the deliberate picking, collecting, cutting, uprooting or

destruction of such plants in their natural range in the wild; (b) the keeping, transport and

sale or exchange and offering for sale or exchange of specimens of such species taken in

the wild, except for those taken legally before this Directive is implemented.

Therefore, Action Programmes under the Nitrates Directive, as well as the application of

derogations granted under the Nitrates Directive, should not lead to a breach of the above

provisions. There is little information available concerning the application of these provisions

of the Habitats Directive in relation to Action Programmes under the Nitrates Directive in

Member States.”

71. The State’s submission here (footnote omitted) comments as follows:

“130. It is accepted that the test for AA is that set out in the cases cited by the Applicant:

Case C-127/02 Waddenzee, Case C-404/09 Commission v Spain and Kelly v. An Bord

Pleanála [2014] IEHC 400. However, what the Applicant fails to recognise is that the

application of that test will – as is clear from the Commission Guidance – depend on the

nature of the plan.”

72. The pleading-type objections including those related to core ground 1 are addressed below.

Issues arising under CG1 (Issues 1-34)

Issue 1

73. Issue 1 is:

“Is a nitrates action programme under article 5 of the nitrates directive a ‘plan’ for the

purposes of art. 6(3) of the habitats directive? APPEARS AGREED

74. The State submitted:

“The Respondents have not put the application of Article 6(3) of the Habitats Directive to

the Fifth Nitrates Action Plan (‘the NAP’) at issue in these proceedings, and do not seek to

do so now.”

75. My decision, if that’s the correct word, on this issue is that it follows that the case must

proceed on the basis that insofar as relevant to this action, a nitrates action programme under article

5 of the nitrates directive is a “plan” for the purposes of art. 6(3) of the habitats directive.

Issue 2

76. Issue 2 is :

“Alternatively, is the NAP subject to art. 6(3) because of the fact that the NAP underwent

AA which engages the Aarhus Convention per the judgment of 8 November 2016,

Lesoochranárske zoskupenie VLK, C-243/15 LZ II §47? APPEARS AGREED (insofar as it may

be agreed that this does not arise because of previous question)”

77. The State submitted:

“The Respondents agree that a reply to Question 2 is not required, in light of the

Respondents’ reply to Question 1.

For the avoidance of doubt, however, the Respondents do not accept the contention

advanced by the Applicant and reflected in Question 2. If the application of Article 6(3) of

the Habitats Directive to the NAP were at issue in these proceedings (and as confirmed in

response to Question 1 it is not), the fact that the NAP underwent AA would not mean that

the Court could, or should, assume that the NAP is subject to Article 6(3).

Rather, as the Supreme Court has unequivocally determined in Friends of the Irish

Environment v Government of Ireland [2022] IESC 42, the scope of application of the

Habitats Directive must be ascertained objectively. This is the case irrespective of whether

the Aarhus Convention is engaged.”

78. My decision (again, probably not the right word) on this issue is that this does not need to

be decided in the light of issue 1.

Issue 4

79. Issue 4 is:

“If site-specific analysis of the plan under art. 6(3) is not possible, must there still be an

appropriate assessment of the plan in general terms? APPEARS AGREED”

80. The State submitted:

“As stated in reply to Question 1, the Respondents have not put the application of Article

6(3) to the NAP at issue in these proceedings, and do not seek to do so now. It is not

possible to conduct a site-specific assessment of the NAP for the purposes of the Habitats

Directive, given its geographical scope and nature. This will be addressed in further detail in

due course, if necessary, in reply to Question 3. Where site-specific assessment is not

possible, any appropriate assessment of the NAP must necessarily be at a general level.”

81. My decision on this issue is that it follows that the case must proceed on the basis that if

site-specific analysis of the plan under art. 6(3) is not possible, there must still be an appropriate

assessment of the plan in general terms.

Issue 5

82. Issue 5 is:

“Is the applicant precluded from mounting a challenge to the adequacy of the AA because

such a challenge constitutes an impermissible merits-based challenge to the compliance of

the NAP with the requirements of the Nitrates Directive? PLEADING-TYPE ISSUE”

83. The applicant submitted:

“The attempt to characterise the challenge to the adequacy of the AA as an impermissible

merits-based challenge to the compliance of the NAP with the requirements of the Nitrates

Directive is incorrect. The adequacy of the AA is clearly a justiciable benchmark; to avoid

the defects in the AA, the State incorrectly endeavour to portray that challenge to the AA as

something else. Notably this is not done by reference to the pleadings, but rather is based

on words like ‘gravamen’ or alleged assumptions on the part of the Applicant.

The State’s argument appears to be premised on the idea that the NAP has ‘been shown to

be protective’.

Regarding the extent to which the NAP has been shown to be protective, para 164 of Mr

Flynn’s affidavit asserts (emphasis added) that ‘The SEA and AA of the NAP and the River

Basin Management Plan have concluded that the measures in the NAP are protective

measures that subject to mitigation will not have any significant adverse effects on the

environment including with respect to the deterioration of the status of water bodies.’

However, Dr McGoff, in her second affidavit, quotes from the NIS for the draft RBMP in

relation to ‘Assessment of Effects and Requirement for Mitigation’ in respect of the GAP

Regulations and the forthcoming NAP, now impugned in these proceedings. The entire quote

need not be repeated here but it includes – ‘The actions arising from the new NAP have

potential for significant adverse effects on European Sites; particularly mindful of nutrient

loss to water from agriculture is one of the most significant pressures on water quality in

Ireland.’

Further, the AA screening for the NAP states (p12) (emphasis added) – ‘Just over half of

Ireland’s monitored surface water bodies have satisfactory water quality and agriculture is

the most widespread and significant pressure impacting on the water environment. The EPA

report that nearly half of all river sites and one quarter of all groundwater sites have elevated

nitrate concentrations. Given the known and observed significant impact that the previous

Nitrate Action Programmes have had on water quality and water dependent ecosystems, the

fifth NAP is considered to have potential for significant direct, indirect or cumulative effects

to European Sites’.

The Respondents’ contend (emphasis in original) ‘what is being assessed under Article 6(3)

is the potential effects on the environment of the protective measures put in place by the

NAP, not the underlying agricultural activities that are restricted by the NAP. In that respect,

protective measures may, despite being beneficial with respect to the targeted

environmental objective, still cause damage to another environmental objective. It is in that

context that AA of a protective measure remains essential.’

The NIS is in fact clear as to its purpose; as to what it being assessed; and as to why it is

being assessed. As identified at p.2, §1.2 of the NIS ‘The overall purpose of the AA process

is to ensure that the NAP does not result in any adverse effects on the integrity of any

European sites in view of its conservation objectives.’ At p.18, Section 3.5, Table 3.1

identifies clearly those elements of the NAP which are subject to AA – and the reasons for

subjecting to them to AA.

The reason for assessing Part 7 ‘Implementation of the Commission Decision’ (i.e. the

Nitrates Derogation) is explained as follows – ‘This part of the NAP contains the specific

requirements relating to derogations on the application of livestock manure. While it is not

certain that the EU will grant Ireland such a derogation, the continued facilitation of the

increased application of nitrogen against the current baseline has potential for LSEs on

European Sites and this part is considered further in this NIS. The continued facilitation of

the increased application of nitrogen against the current baseline has potential for likely

significant effects on European Sites.’ The NIS does not identify the ‘continued facilitation of

the increased application of nitrogen against the current baseline’ as a ‘protective’ measure,

for the simple reason that it is not.

If a particular element of the NAP – protective or otherwise - is subject to AA, then that

assessment must be carried out in accordance with the requirements of Article 6(3) Habitats

Directive; and the Applicants are entitled to challenge that assessment if it does not accord

with the requirements of the Directive.

If a lawfully conducted AA were to conclude that a particular measure did not meet the

requirements of the Habitats Directive, the terms of its replacement or re-design would of

course be a matter for the Minister. However, that does not preclude the Applicant from

challenging the validity of the AA itself. If the mitigation measures relied for a particular

measure on do not dispel doubt to the requisite standards, the AA is unlawful in that regard.”

84. The State submitted:

“Overview

The Applicant is precluded from mounting a challenge to the adequacy of the AA of the NAP,

as pleaded in the Statement of Grounds, having regard inter alia to the issues raised by the

Court in Question 5, Question 6, and Question 7, which must be considered together.

In particular, the Applicant’s challenge to the NAP, based on Article 6(3) of the Habitats

Directive, constitutes:

i. an impermissible merits-based challenge to the level of ambition of the NAP

(addressed in response to Question 5), and/or

ii. an unpleaded and unparticularised challenge to the compliance of the NAP with the

requirements of the Nitrates Directive [Council Directive 91/676/EEC of 12

December 1991 concerning the protection of waters against pollution caused by

nitrates from agricultural sources (the ‘Nitrates Directive’)] (addressed in response

to Question 6).

In either case, the Applicant is precluded from mounting the challenge as pleaded.

Impermissible challenge to the level of ambition in the NAP

The Respondents do not take the position that an applicant could never challenge the

compliance of the NAP with the requirements of the Nitrates Directive, on the basis that this

would necessarily be an impermissible merits-based challenge.

Ireland’s substantive obligations to adopt measures to protect water bodies from pollution

caused by nitrates are delimited by the requirements of Article 5 of the Nitrates Directive

and Article 11 WFD [Directive 2000/60/EC of the European Parliament and of the Council of

23 October 2000 establishing a framework for Community action in the field of water policy

(the ‘Water Framework Directive’ or ‘WFD’)]. An evidence-based challenge alleging that the

NAP failed to satisfy Ireland’s positive obligations under Article 5 of the Nitrates Directive,

or that Ireland’s programme of measures failed to satisfy Ireland’s positive obligations under

Article 11 WFD, would therefore in theory be open to an applicant, and would not necessarily

constitute an impermissible merits-based challenge [The Respondents reserve their position

as to the appropriateness of such a challenge, and the nature of the assessment to be carried

out by the Court on such a challenge, for a case where such a challenge is taken.].

However, the Respondents submit that only a challenge alleging that the NAP fails to satisfy

Ireland’s positive obligations under Article 5 of the Nitrates Directive, or that the programme

of measures fails to satisfy Ireland’s positive obligations under Article 11 WFD, could raise a

justiciable benchmark sufficient to permit the Court to engage in an analysis of the

Respondents’ level of ambition when adopting those measures, with respect to the reduction

of nitrates from agricultural sources.

The Applicant has not pleaded any failure to satisfy Ireland’s positive obligations under

Article 5 of the Nitrates Directive, or under Article 11 WFD, as addressed in more detail in

reply to Question 6 and Question 7. The NAP therefore enjoys a presumption of legality,

with respect to those obligations, and it is respectfully submitted that the Court must proceed

on the basis that those obligations are met.

The gravamen of the Applicant’s arguments in these proceedings, based on Article 6(3) of

the Habitats Directive, is nevertheless that the Respondents, when adopting the NAP, should

have done more to reduce nitrates pollution. In that respect, the Applicant clearly seeks to

put at issue the level of ambition of the NAP, with respect to the reduction of nitrates from

agricultural sources.

Where the Applicant does not plead non-compliance with Article 5 of the Nitrates Directive

or Article 11 WFD, it is respectfully submitted that it has identified no justiciable benchmark

as against which the Court could measure the level of ambition of the NAP, with respect to

the reduction of nitrates from agricultural sources. It is in those circumstances that the

Respondents submit that the Applicant is asking the Court to engage in an impermissible

review of the merits of a non-justiciable policy decision by the Respondents, as to the degree

of ambition that should be adopted to reduce nitrate pollution.

As this Court recently held in Friends of the Irish Environment CLG v the Government of

Ireland & Ors [2023] IEHC 562 (‘FIE v Ireland (FV2030)’ (§8), the role of the Court is not

‘to assess the merits of any given strategy or other action or omission under challenge, or

to agree or disagree with any policy criticisms of it’. Nor is it ‘to hazard a view as to how

ambitious any given policy should be’. Rather, it is only to assess the measure ‘against such

justiciable benchmarks as may be properly pleaded in any given case.’

A similar point is made in Kerins v An Bord Pleanála [2023] IEHC 186, §58:

‘Where this particular development lies on the merits spectrum is something for the

court of public opinion: any given judge in any given case is only concerned with

legality, and more specifically only with legality by reference exclusively to the

particular legal points that are both properly pleaded … and pursued at the hearing.’

(emphasis added)

Having regard to that jurisprudence, it is clear that the Applicant’s pleaded case based on

Article 6(3) in fact amounts to an impermissible merits-based challenge to the level of

ambition of the NAP, with respect to the reduction of nitrates from agricultural activities.

The Applicant’s reliance on Article 6(3) as a justiciable benchmark

For the avoidance of doubt, the Applicant’s attempt to ground its merit-based challenge to

the level of ambition of the NAP in the requirements of Article 6(3) of the Habitats Directive

does not alter that conclusion [The Applicant also relies on Article 4(1) WFD and Articles

5(1) and (10) of Directive 2001/42/EC of the European Parliament and of the Council of 27

June 2001 on the assessment of the effects of certain plans and programmes on the

environment (the ‘SEA Directive’), which are addressed further below].

Compliance with Article 6(3) is a justiciable benchmark against which the Court can assess

a measure, even if that measure relates to policy choices that typically would not be

justiciable. However, any such assessment must be restricted to the compliance of the

measure at issue with Article 6(3); it cannot permit a Court to go beyond the narrow scope

of Article 6(3), to review the merits of non-justiciable policy decisions.

In that respect, the Applicant’s attempt to re-purpose Article 6(3) to ground a merit-based

challenge, seeking to require the State to adopt more ambitious policies with respect to

environmental protection than is required by EU law, is unsustainable.

The Applicant relies on two related arguments when seeking to make that case.

First, the Applicant contends that the environmental assessment of a measure aimed at

environmental protection under Article 6(3) must assess, not the effect of the measure itself,

but the effect of the underlying environmental damage the measure is trying to prevent.

On that basis, the Applicant assumes that Article 6(3) of the Habitats Directive requires the

Minister for Housing, Local Government and Heritage (the ’Minister’) to refuse to adopt a

national plan aimed at reducing an environmental risk, unless it is established beyond

reasonable scientific doubt that the protective measure is sufficiently ambitious to prevent

that environmental risk from having any effect on the integrity of any site.

This assumption is misplaced. Article 6(3) does not impose a positive obligation on the State

to adopt protective measures with the aim of environmental protection. Nor does Article

6(3) require the State to refuse to adopt a protective measure with the aim of environmental

protection, on the basis that the measure could or should have done more to protect the

relevant protected site and/or water body. Rather, Article 6(3) requires Member States

refrain from adopting a measure, where the measure under consideration would adversely

impact the integrity of the site.

In that respect, Article 6(3) of the Habitats Directive is preventative in nature, aimed at

prohibiting the adoption of plans or programmes that will harm protected sites. Once a

measure is shown to be protective, in that it provides greater environmental protection as

compared to baseline, it is illogical to contend, as the Applicant does, that Article 6(3) would

prohibit its adoption unless it can be shown to offer complete protection against the

environmental harm it targets. This would result in an impossible standard, and would

ultimately reduce environmental protections in the EU. This is contrary to the intent of the

Habitats Directive.

The Applicant contends that the Respondents’ position on this issue amounts to an argument

that, because the NAP is a protective measure, it does not require assessment under Article

6(3). That is not the argument that the Respondents seek to make. Rather, the

Respondents’ position is that what is being assessed under Article 6(3) is the potential effects

on the environment of the protective measures put in place by the NAP, not the underlying

agricultural activities that are restricted by the NAP. In that respect, protective measures

may, despite being beneficial with respect to the targeted environmental objective, still

cause damage to another environmental objective. It is in that context that AA of a

protective measure remains essential.

The only jurisprudence relied on by the Applicant to the contrary, is the Opinion of Advocate

General Kokott in Case C-434/22 AS ‘Latvijas valsts meži’ EU:C:2023:595. The Applicant

argues:

‘Calling something ‘protective’ does not offer a way around the requirements of the

Habitats Directive - see Adv-Gen Kokott’s opinion in Case C-434/22 AS ‘Latvijas

valsts meži’ in the context of tree-felling in an SAC with a view to the ‘protection’ of

forest habitats in order to maintain/create infrastructure installations in accordance

with the legal requirements relating to forest fire protection.’

However, that Opinion is entirely consistent with the Respondents’ position. The Advocate

General concluded that the felling of trees for the purposes of fire prevention, despite being

a measure aimed at environmental protection through fire prevention, required assessment

under the Habitats Directive (and that decision was affirmed by the CJEU on 7 December

2023).

The assessment envisaged, however, was not an assessment of whether the planned felling

of trees was sufficiently ambitious to achieve the environmental aim of fire prevention, or

whether more could or should have been done to achieve that aim. Rather, the assessment

that was envisaged was whether the protective measure at issue, the felling of trees and

reduction in the frequency of fires, might itself cause environmental harm, for example by

damaging a habitat.

That Advocate General’s Opinion therefore does not support the Applicant’s position. On the

contrary, it is consistent with the Respondents’ position, and with the approach taken to the

AA of the NAP. What is to be assessed for the purposes of Article 6(3) is not whether the

protective measures put in place are sufficiently ambitious with respect to the prevention of

nitrates pollution, but rather whether the implementation of those protective measures

might of itself cause environmental harm to protected sites.

The Applicant’s argument, that Article 6(3) requires that competent authorities refuse to

adopt a protective measure unless that measure offers complete protection against the

environmental harm it targets, is therefore misplaced, and cannot be relied on to re-purpose

Article 6(3), so as to ground a merits-based challenge to the level of ambition of the NAP

with respect to the prevention of nitrates from agricultural sources.

The second argument with which the Applicant seeks to justify its approach to Article 6(3)

is an impermissible conflation of the environmental assessment of the NAP, with the separate

issue of farm-level permitting for agricultural activities.

As addressed in detail in Part III of the Respondents’ Written Submissions, and in reply to

Question 15 below, this issue is outside the pleaded case, and the Applicant’s conflation of

the AA of the NAP with the separate issue of farm-level permitting for agricultural activities

is in any event unsustainable. This argument is therefore also incapable of justifying the

Applicant’s attempted repurposing of Article 6(3), to ground a merits-based challenge to the

level of ambition of the NAP.

The Applicant therefore has not identified any justiciable benchmark sufficient to permit the

Court to engage in an analysis of the level of ambition of the NAP. In those circumstances,

the Applicant’s pleaded case based on Article 6(3) amounts to an impermissible merits-based

challenge to the level of ambition of the NAP with respect to the reduction of nitrates from

agricultural activities. The Respondents respectfully submit that this is a fundamental flaw

in the Applicant’s approach to these proceedings, and is sufficient, of itself, to dispose of the

Article 6(3) challenge.” [some emphasis added]

85. The ICMSA submitted:

“The ICMSA expressly notes, and agrees with, the State Respondents’ submission under

Issue 5, at p.5 of their Response document that: ‘The NAP therefore enjoys a presumption

of legality, with respect to those obligations, and it is respectfully submitted that the Court

must proceed on the basis that those obligations are met.’”

86. My decision on this issue is essentially “No”. Some of the argument under this heading strays

beyond the identified issue on the issue paper. The question arising under Issue 5 is whether the

applicant is precluded from challenging the AA because it did not plead that the NAP was contrary

to the nitrates directive, but only contrary to the habitats, SEA and water framework directives. The

answer is no, since the two points are logically separate, but the failure to argue that the NAP is

contrary to the nitrates directive does have the consequence that the case must proceed on the

basis that the NAP is in accordance with the nitrates directive, save to the extent that provisions of

the nitrates directive overlap with other pleaded points such as the AA requirements of the habitats

directive, for example by providing that relevant matters should be taken into account.

87. To that extent, I think that Issue 26 for example needs to be reformulated, because it

tendentiously asserts that the NAP complies “fully” with the nitrates directive. The correct position

is that its compliance with the nitrates directive is not specifically challenged which has the effect

that the applicant can’t rely on any alleged breach of the nitrates directive that doesn’t otherwise

come within its pleaded grounds by reason of also constituting some other legal breach that is

pleaded. I will discuss this further later in the context of the situation where a given alleged wrong

constitutes multiple legal breaches, only some of which are pleaded. Failure of an applicant to plead

all ramifications doesn’t mean that the applicant can’t pursue the ramifications she did plead.

88. That doesn’t in itself mean that the AA cannot be challenged, even bearing in mind that by

definition the AA relates to the NAP itself and not directly to the activities by farmers to which the

NAP relates. However it may arguably relate indirectly to such activities in the sense that inadequate

governance of such activities may, subject to further submission, raise issues appropriate for

assessment. The rights and wrongs of that are a matter not of pleading but of substantive EU law

to be addressed in due course. The merits of the scope of AA are not something to be summarily

disposed of as a preliminary objection. Insofar as the State, understandably, seizes on the concept

that the court isn’t concerned with the level of ambition of government policy, as referred to in

Friends, the situation here isn’t analogous. The food policy at issue in Friends wasn’t something the

State was obliged by European law to create for the purposes of regulating pollution-causing

activities. It was an autonomous act, and thus the freedom of policy decision was quite wide,

rendering its level of ambition essentially non-justiciable. That level of freedom doesn’t necessarily

exist here due to the European legislative context.

Issue 6

89. Issue 6 is:

“Is the applicant precluded from mounting a challenge to the adequacy of the AA because

such a challenge constitutes an unpleaded challenge to the compliance of the NAP with the

requirements of the Nitrates Directive? PLEADING-TYPE ISSUE”

90. The applicant submitted:

“The attempt to characterise the challenge to the adequacy of the AA as an unpleaded

challenge to the compliance of the NAP with the requirements of the Nitrates Directive is

incorrect.

The corollary of the pleading jurisprudence cited by the State is that the Applicant is in fact

entitled to pursue the grounds on which it has got leave. Those grounds must be assessed

on their own merits.

The State submissions fail to identify why the challenge to the adequacy of the AA constitutes

an unpleaded challenge to the compliance of the NAP with the requirements of the Nitrates

Directive.

Compliance of the NAP (presumed or otherwise) with the requirements of the Nitrates

Directive does not resolve the question of assessment under the Habitats Directive. If every

NAP was as a matter of principle compliant with the Habitats Directive, then this NAP would

have be screened out of the need for AA; however, it wasn’t.”

91. The State submitted:

“Insofar as the Applicant were to seek to rely on the requirements of the Nitrates Directive

as a justiciable benchmark permitting it to challenge the level of ambition of the NAP (and

the Applicant has not sought to do so to date) that case is not pleaded.

In that respect, despite the Applicant’s repeated submissions that the NAP and the GAP

Regulations [European Union (Good Agricultural Practice for Protection of Waters)

Regulations 2022 (S.I. 113 of 2022) (as amended) (the ‘GAP Regulations’)] do not do

enough to protect water bodies from nitrates pollution, it is not pleaded that those measures

are insufficient to meet Ireland’s substantive obligations under Article 5 of the Nitrates

Directive.

Nor is it pleaded that Ireland’s decision to seek the Derogation is contrary to those

obligations. Indeed, it is unclear how that case could have been made, absent annulment

of the Commission Decision [Commission Implementing Decision (EU) 2022/696 of 29 April

2022 granting a derogation request by Ireland pursuant to Council Directive 91/676/EEC

concerning the protection of waters against pollution caused by nitrates from agricultural

sources (the ‘Commission Decision’)], where the Commission concluded that the Derogation

is ‘justified on the basis of objective criteria’ [Commission Decision, Recital 15], ‘will not

prejudice the objectives set out in [the Nitrates Directive]’ [Commission Decision, Recital

16] and ‘is coherent with the legally binding targets of the WFD’ [Commission Decision,

Recital 17.].

The Amended Statement of Grounds also does not plead that the Commission Decision is

invalid as being inconsistent with the requirements of the Nitrates Directive or WFD. Nor

has the Applicant sought annulment of the Commission Decision before the General Court

on that basis, or on any basis.

There is therefore no pleaded case that the substantive content of the NAP, or the State’s

level of ambition when adopting that measure, either with respect to the NAP generally or

the decision to seek the Derogation specifically, are non-compliant with the Respondents’

obligations under the Nitrates Directive.

In those circumstances, the Applicant is precluded from seeking to and cannot be permitted

to seek to challenge the NAP as lacking sufficient ambition to meet the requirements of the

Nitrates Directive, either directly, or by way of a misconceived collateral challenge under

Article 6(3).

Order 84, Rule 20(1) of the Rules of the Superior Courts (‘RSC’) provides that ‘[n]o

application for judicial review shall be made unless the leave of the Court has been obtained

in accordance with this rule.’

In this regard, Murray CJ in A.P. v DPP [2011] 1 IR 729 stated that (§5):

‘In the interests of the good administration of justice it is essential that a party applying for

relief by way of judicial review sets out clearly and precisely each and every ground upon

which such relief is sought. The same applies to the various reliefs sought.’

Murray CJ continued to state (§§8–10):

‘There has also been a tendency in some cases, at a hearing of the judicial review

proceedings on the merits, for new arguments to emerge in those of the applicant that in

reality either go well beyond the scope of a particular ground or grounds upon which the

leave was granted or simply raise new grounds.

The court of trial of course may, in the particular circumstances of the case, permit these

matters to be argued, especially if the respondents consent, but in those circumstances the

applicant should seek an order permitting any extended or new ground to be argued. This

would avoid ambiguity if not confusion in an appeal as to the grounds that were before the

High Court. The respondents, if they object to any matter being argued at such a hearing

because it goes beyond the scope of the grounds on which leave was granted, should raise

the matter and make their objection clear. Although it did not arise in this particular case, it

is also unsatisfactory for objections of this nature to be raised by the respondents at the

appeal stage when no objection had been expressly raised at the trial or there is controversy

as to whether this was the case.

In short it is incumbent on the parties to judicial review to assist the High Court, and

consequentially this court on appeal, by ensuring that grounds for judicial review are stated

clearly and precisely and that any additional grounds, subsequent to leave being granted,

are raised only after an appropriate order has been applied for and obtained.’ (Emphasis

added).

Critically, Denham J (as she then was) in A.P. v DPP stated (§17) ‘[o]nce an application for

leave to appeal has been granted the basis for the review by the court is established’ and

that (§19):

‘A court, including this court, is limited in a judicial review to the grounds ordered for the

review on the initial application, unless the grounds have been amended. In this case the

grounds for review are limited, essentially that a fourth trial would be an abuse and unfair,

and were not amended.’ (Emphasis added).

Moreover, O’Donnell J (as he then was) in Keegan v Garda Síochána Ombudsman

Commission [2015] IESC 68 stated that (§42):

‘It is not merely a procedural complaint that the ground upon which the case was decided

was not one upon which leave was sought or indeed granted nor was there an appropriate

amendment. The purpose of pleadings is to define the issues between the parties, so that

each party should know what matters are in issue so as to marshal their evidence on it, and

so that the Court may limit evidence to matters which are only relevant to those issues

between the parties, and so discovery and other intrusive interlocutory procedures limited

to those matters truly in issue between the parties. This is particularly important in judicial

review, which is a powerful weapon of review of administrative action. But administrative

action is intended to be taken in the public interest, and the commencement of judicial

review proceedings may have a chilling effect on that activity, until the issue is resolved one

way or another. Because of the impact of such proceedings, it is necessary to obtain leave

of the court before commencing proceedings. It is important therefore that the precise issues

in respect of which leave is obtained should be known with clarity from the outset. This also

contributes to efficiency so that judicial review is a speedy remedy.’ (Emphasis added).

Further, Barniville J in Rushe v an Bord Pleanála [2020] IEHC 122 referred to the dicta of

Murray CJ in A.P. v DPP and stated that (§113):

‘[i]n my view, these pleading obligations imposed upon an applicant in planning judicial

review proceedings are particularly important where those cases involve issues of very

considerable complexity and give rise to issues under EU Directives, such as the Habitats

Directive and the EIA Directive. It is especially important in those types of cases, involving

such complex issues, that the applicant's case is clearly and precisely pleaded in order that

the parties opposing the application (whether they be the respondents or the notice parties

or both) are clearly aware prior to the hearing of the application for judicial review of what

precisely the case is. Such precision is also required, as Murray C.J. pointed out in AP, to

ensure that there is no doubt, ambiguity or confusion as to what the applicant's case is

before the High Court, in the context of any appeal from the judgment of that Court to the

Court of Appeal or the Supreme Court. It is not appropriate that a case brought on a

particular basis, in which reliefs are sought on stated grounds is, when the case comes on

for hearing, transformed into one in which different or additional grounds are sought to be

advanced in support of the reliefs sought or new and additional reliefs are sought. Such a

course would be unfair on the parties opposing the application for judicial review and on the

court.’ (Emphasis added).

‘In People Over Wind and Another v an Bord Pleanála and Others [2015] IEHC 271,

Haughton J stated that (§55) in assessing the scope of the Statement of Grounds

the approach that should be adopted is that of a ‘fair and reasonable reading’ - but

not from the point of view of one or other parties to the proceedings but rather from

the point of view of the Court on an objective basis. Accordingly, in his application,

Haughton J rejected (§56) ‘an attempt to apply general pleas to a specific and

detailed complaint which was not pleaded, contrary to Order 84 rule 20(3).’.

These decisions make clear – were it in any doubt – that the Applicant is confined

to the case as pleaded in the Statement of Grounds. The Respondents’ position is

that the Applicant has not pleaded a justiciable case under Article 6(3) of the

Habitats Directive.’”

92. My decision on this issue is that this issue is ultimately just a reformulation of Issue 5 and

adds nothing to the negative answer to that. Insofar as the opposing parties make the point that

the applicant shouldn’t be allowed to make a complaint which is equivalent to a breach of the nitrates

directive without also pleading that explicitly, that is misconceived for reasons set out elsewhere in

this judgment.

Issue 7

93. Issue 7 is :

“Is the applicant precluded from mounting a challenge to the adequacy of the AA because

such a challenge constitutes an unpleaded challenge to the compliance of the Respondents’

programme of measures with Article 11 of the WFD? PLEADING-TYPE ISSUE”

94. The applicant submitted:

“The attempt to characterise the challenge to the adequacy of the AA as an unpleaded

challenge to the compliance of the compliance of the Respondents’ programme of measures

with Article 11 of the WFD is incorrect.

The corollary of the pleading jurisprudence cited by the State is that the Applicant is in fact

entitled to pursue the grounds on which it has got leave. Those grounds must be assessed

on their own merits.

The State submissions fail to identify why the challenge to the adequacy of the AA constitutes

an unpleaded challenge to the compliance of the NAP with the requirements of the Nitrates

Directive.

Compliance of the NAP (presumed or otherwise) with the requirements of Article 11 WFD

does not resolve the question of assessment under the Habitats Directive. If every NAP was

as a matter of principle compliant with the Habitats Directive, then this NAP would have be

screened out of the need for AA; however, it wasn’t.”

95. The State submitted:

“The Respondents reiterate their response to Question 6 above, which applies equally with

respect to Article 11 WFD.

The Applicant has not pleaded that Ireland’s programme of measures fails to comply with

the requirements of Article 11 WFD. It therefore cannot seek to put at issue the compliance

of Ireland’s programme of measures with Article 11 WFD in these proceedings, or otherwise

challenge the Respondents’ level of ambition with respect to the prevention of nitrates from

agricultural activities, either directly, or by way of a collateral challenge under Article 6(3).

The precise issues that arise with respect to Article 11 of the WFD are addressed in more

detail in response to Questions 38 and 41 below.”

96. My decision on this issue is that the failure to plead any breach of art. 11 of the WFD only

has the consequence that the NAP must be presumed to comply with art. 11 save insofar as non-

compliance necessarily follows from any pleaded legal breach. That doesn’t preclude the applicant

from challenging the AA by reference to its adequacy in preventing pollution caused by nitrates used

in agricultural activities, provided of course that when we get to the substantive EU law module the

applicant can establish the (hotly contested) proposition that there is an EU law obligation to address

such matters in the AA, as opposed to carrying out an assessment only of the “protective” measures

in the NAP.

97. I should add here that insofar as the applicant’s challenge to the AA involves a number of

separate issues, the scope of AA and the question of exclusion of doubt as a matter of fact and

evidence, as well as the timing of AA (see further Schedule III to this judgment), I have amended

the drafting of the issues to reflect this.

Issue 9

98. Issue 9 is:

“ Are individual derogation decisions published? APPEARS AGREED”

99. The applicant submitted:

“The State has confirmed that it does not publish individual derogation decisions. That

position is not changed by the other matters identified.”

100. The State submitted:

“The Department of Agriculture, Food and the Marine (‘the Department’) does not publish

individual authorisations permitting farmers to rely on the derogation under Regulation

35(1)(a) of the GAP Regulations.

A list of Nitrates Derogation farm locations by Local Electoral Area (‘LEA’) is published,

however. This provides the number of derogation herds and the total number of herds at

LEA level by year [See: https://opendata.agriculture.gov.ie/dataset/https-assets-gov-ie-

213396-fec4151b-4730-4c8c-a0e3-c2e50b0b2f26-xlsx].

An annual report regarding the nitrates derogation is submitted by DAFM to the European

Commission each year. It also contains maps showing the locations of derogation holdings,

as well as details at county level regarding the proportion of farmers/holdings, land and

grazing livestock units covered by the derogation.

Moreover, the Department has published an Implementation Map showing the areas for 2024

where the maximum derogation stocking rate of 220 kg livestock manure nitrogen per

hectare will apply [https://opendata.agriculture.gov.ie/dataset/national-water-quality].

This is an interactive map [Instructions regarding how to use the interactive map are

contained in the ‘Water Quality Review Implementation Map User Manual’ published in

October 2023. See: https://www.gov.ie/pdf/?file=https://assets.gov.ie/272234/adaa22c8-

b920-40c4-af1b-8c49a9cb1c1f.pdf#page=null] allowing anybody to zoom into a particular

area, and identify the maximum stocking rate appliable for derogation applicants in that

area.

Separately, the EPA publishes a water quality monitoring report on nitrogen and phosphorus

concentrations in Irish waters each year. This report also contains the map showing the

derogation herd locations for the year in question.

If members of the public require further information, available information can be sought

under the AIE Regulations, subject to the requirements of those Regulations, and in

particular the Department’s obligations under the GDPR [Regulation (EU) 2016/679 of the

European Parliament and of the Council of 27 April 2016 on the protection of natural persons

with regard to the processing of personal data and on the free movement of such data, and

repealing Directive 95/46/EC (‘GDPR’).] with respect to the processing of personal data.”

101. The IFA submitted:

“The IFA parties note the response of the State Respondents in identifying the numerous

different means by which the Applicant might have identified any farm-specific land holding

for the purposes of accessing derogation decisions. This ought not be news to the Applicant.

Notwithstanding the wide availability of public information, which was neither sought not

relied upon by the Applicant prior to commencing proceedings, the Applicant made no effort

to identify any specific land holding; derogation decision; protected site with specific

characteristics; or any other attempt at identifying any specific sites and/or individual

derogations, whether by request through Access on Information on the Environment

Regulations (‘AIE’) or simply relying on the available data (which would have provided a

basis for any more detailed information to be sought by AIE request, which never occurred).

Such steps prior to the commencement of proceedings might have better served the

Applicant –and the Court - in respect of any pleaded challenge to any alleged implementation

and/or non transposition matters in respect of the various named Directives (which the IFA

Parties do not accept are adequately pleaded, if at all). It is significant that the Applicant

took no such steps and instead seeks to offload unto the Court the burden of joining the

alleged dots. This approach undermines, fatally, any attempt to challenge the purported

absence of farm-level specific permitting. Farming activities and development are already

subject to wide range of statutory consenting / permitting schemes, none of which have

been subject to the broad-brush challenge foisted upon the Court in these proceedings. In

this regard, the IFA Parties rest upon their submissions already made at the substantive

hearing, and the submissions of the Respondents and ICSMA Notice Party.”

102. My decision on this issue is that the case must proceed on the basis that there is no system

in Irish law or practice for the systematic publication of individual derogation decisions. The

information published is general or aggregated. There are no means, still less numerous means, by

which specific decision information can be readily obtained. Rather any interested party would be

obliged to pursue express requests for environmental information under the AIE directive.

Surprisingly perhaps, the applicant hasn’t challenged this lack of publication in the proceedings so

the legality of the lack of a publication system as such will have to be considered in some other case

at some other time. However the fact of there being no such individual publication of decisions must

be taken to be established and indeed not properly disputed, for the purpose of any of the pleaded

grounds to which that fact is relevant (if there are any such grounds - again a matter of substantive

law to be considered further, not of pleading-type objection).

Issue 10

103. Issue 10 is:

“If individual derogation decisions are not published, does the objection that the applicant

could have pursued challenges to individual derogations arise at all for consideration?

PLEADING-TYPE ISSUE”

104. The applicant submitted:

“The applicant submits that the objection does not arise at all.

The point made in Ground 3 ASOG about the absence of a farm-level permitting system is

that such absence supports the contention that the requisite scientific certainty as to the

absence of significant effects must necessarily be contained in the AA of the NAP. The NAP

inter alia regulates the conditions under which the cultivation of grassland for the sustenance

of cattle for agricultural production is facilitated through the application of fertilisers on the

surface of land or below its surface across the territory of Ireland, including in the vicinity

of, and by way of hydrological connectivity to, Natura 2000 sites. That Plan therefore

determines the conditions under which farm-level projects for the grazing of cattle and the

application of fertilisers on the surface of land or below its surface may be carried out.

The contention that sufficient information is published to identify the location of derogation

herds is incorrect; for example the map relied in in answer to Q9 is vague and unspecific.

Reliance on information published on an annual basis will mean that most individual

challenges will be outside the time-limit. The State effectively acknowledge that the AIE

procedure will not yield the requisite information. JR proceedings must name the recipient

of the derogation, which is not available.

The State’s apparent enthusiasm for challenges to individual derogation is inconsistent with

the failure to publish the relevant details. The failure to publish the relevant details is liable

to make the excise of rights under the Habitats Directive and the Aarhus Convention

excessively difficult. In the circumstances, the objection advanced by the State and the

Notice Parties does not arise at all.”

105. The State submitted:

“The Respondents respectfully submit that their objection to the Applicant seeking to

challenge farm-level agricultural activities by way of a challenge to the NAP – which objection

is significantly wider than a contention that the Applicant should have pursued challenges to

individual derogation decisions – does arise for consideration, despite individual derogation

decisions not being published.

First, sufficient information is available online for the Applicant to have identified the location

of derogation herds and, if the Applicant believes that the presence of derogation herds in

any particular location is likely to have significant effects on a Natura 2000 site, to challenge

the decision to grant the derogations at issue and/or to otherwise bring an evidence-based,

site-specific challenge with respect to those derogation farms.

Second, it is also open to the Applicant to challenge individual farm-level activities, if it

believes those activities require AA, in addition to individual derogation decisions. Again, if

the Applicant believes that there is a specific Natura 2000 site that is at risk of significant

adverse effects by reason of agricultural activities in its vicinity, it could have taken an

evidence-based challenge with respect to those activities.

Third, while the nature of the challenge to a derogation farm or farm-level activity available

to an applicant might differ depending on the circumstances, and the particular concerns

arising for an applicant with respect to any specific Natura 2000 site, there are a range of

potential avenues open to the Applicant if it were concerned with respect to the impact of

nitrates on a Natura 2000 site, none of which it has exercised.

In that respect, if the Applicant believes that any specific agricultural land use falls under

section 4(4) of the Planning and Development Act 2000 (‘the 2000 Act’), on the basis that

it requires AA and therefore is not exempted development, and thus requires consent under

the 2000 Act, it is entitled to litigate that matter in the normal manner. It has not done so.

If the Applicant believes that any specific authorisation for a derogation requires AA, it could

have sought to challenge that authorisation, and to argue inter alia that the Minister was

required to carry out an AA: (i) having regard to its obligations under Regulation 27(2) of

the 2011 Regulations [S.I. No. 477/2011 - European Communities (Birds and Natural

Habitats) Regulations 2011.] to exercise its functions so as to secure compliance with the

requirements of the Habitats Directive, and/or (ii) under section 42 of the 2011 Regulations,

on the basis that the activities at issue were a ‘project’ for which the Minister for Agriculture

received an application for consent and that required AA. Again, the Applicant has not taken

that course of action.

More generally, if the Applicant is concerned as to the impact of nitrates on any particular

Natura 2000 site, it is open to the Applicant to bring that concern to the attention of the

Minister, and to ask the Minister to exercise its statutory power under Regulations 28 or 29

of the 2011 Regulations.

If the Minister, having considered that concern, were satisfied that any particular agricultural

activity did require AA screening or AA, it could make a direction under Regulation 28(1) to

the effect that the activity must cease unless consent is granted under Regulation 30, which

requires AA screening and where appropriate AA. Alternatively, if the Minister had reason to

believe that any such agricultural activity, either individually or in combination with other

activities, plans or projects, is of a type that may inter alia have an effect on a protected

site, it could make a direction regulating the activity under Regulation 29(1).

However, again, the Applicant has not taken that course of action, or asked the Minister to

exercise its powers under Regulations 28 to 30, or even identified in these proceedings any

specific agricultural activity it alleges there is ‘reason to believe’ is having a significant effect

on a specific Natura 2000 site within the meaning of Regulation 28 or 29. Nor has it identified

any Natura 2000 site it argues is at risk.

It is respectfully submitted that the publication of derogation decisions is not necessary to

permit an applicant to avail of the foregoing remedies, if that applicant has an evidence-

based concern that a particular Natura 2000 site is at risk by reason of nitrates from

agricultural activities in its vicinity.

Fourth, even if the Applicant were entitled to bring a systemic challenge to the framework

governing the regulation of agricultural activities in Ireland in the abstract, rather than on a

site-specific basis, the appropriate remedy would be to bring a transposition challenge that

engaged with the entirety of the legislative framework governing the regulation of

agricultural activities in Ireland. Again, the Applicant has not availed of this option.

Finally, it is important to emphasise that the fact that there are legitimate avenues open to

the Applicant to ventilate its argument with respect to the appropriate assessment of farm-

level activities, which could and should have been availed of by the Applicant, is not the

Respondents’ primary basis for arguing that the Applicant’s pleaded claim is procedurally

inappropriate and fundamentally misconceived, but rather is only one part of the

Respondents’ objections to the Applicant’s pleaded claim, as detailed in Part II and Part III

of the Respondents’ Written Submissions.

Thus, even if the Court were to conclude (contrary to the submission of the Respondents),

that the Applicant were precluded from challenging individual derogation decisions by reason

of the fact that those decisions are not published, it would not permit the Applicant to litigate

its argument with respect to farm-level activities in these proceedings.

In that respect, the Applicant’s apparent contention that the lack of published derogation

decisions means that it can seek to ventilate its concerns through an inappropriate

procedural route, has no basis in law.”

106. My decision on this issue is that this is an example of what I referred to in Flannery v. An

Bord Pleanála [2021] IEHC 140, [2021] 3 JIC 1216 and T.A. (Nigeria) v. Minister for Justice and

Equality [2018] IEHC 98, [2018] 1 JIC 1607 of “sending the fool further”. Despite the lack of any

individual publication system outside AIE, and the practice of only general or aggregated information

being circulated, the State criticises the applicant for failing to challenge the individual decisions and

claims this is disqualifying for the challenge that is being made. Given the indiscriminate battery of

pleading-type objections in the present module, one mightn’t need extraordinary clairvoyance to

wonder whether, if the applicant had tried to challenge the individual consents, it would have been

condemned as out of time and precluded from challenge by reason of failing to challenge the plan-

level arrangements, the AA or something else. The State’s position here is pure cakeism - no we

are not going to publish the individual decisions but yes we denounce you for not challenging them.

Such a posture gives the impression of being more inspired by Franz Kafka and Joseph Heller than

by the Ombudsman’s guide to good public administration.

107. As the applicant correctly says, “The State’s apparent enthusiasm for challenges to individual

derogation is inconsistent with the failure to publish the relevant details.” Where the applicant goes

on to say that “The failure to publish the relevant details is liable to make the excise of rights under

the Habitats Directive and the Aarhus Convention excessively difficult”, I interpret this as reinforcing

the obvious difficulty of challenging what is unpublished, rather than a demand for a declaration in

the present case (although maybe it will arise in some future case) that the inadequate legal

framework and/or practical operation of the system is failing to enforce AA legislation on an industrial

scale across the whole agricultural sector, or something to that effect. Fortunately for the State

they don’t need to reply to that allegation in quite that context here.

108. The conclusion is that no relevant consequences flow from the applicant’s failure to challenge

individual decisions, for several independent reasons: because the AA of the NAP is logically

separate, because individual challenges would be impracticable in any event given their quantity,

because any systematic process of individual challenges is not reasonably possible in the absence of

a publication system, and because EU law requires the law of a member state to make such

challenges not excessively difficult, thereby rendering it inappropriate to hold against an applicant a

failure to operate a mechanism that is, objectively, excessively difficult.

Issue 11

109. Issue 11 is:

“Even if the option of challenges to individual derogations falls for consideration, is the

applicant precluded from bringing a challenge at a general systemic level by reason of the

existence of the theoretical possibility of challenging individual derogations or individual

agricultural activities carried on without AA on a site-by-site basis or by the possibility of

calling on the Minister either on a site-by-site basis or generally to exercise powers to require

AA under domestic law (art. 28(1) of the 2011 regulations)? PLEADING-TYPE ISSUE”

110. The applicant submitted:

“The Applicant’s point about the absence of a farm-level assessment is simply that this

absence supports the contention that the requisite scientific certainty as to the absence of

significant effects must necessarily be contained in the AA of the NAP.

It is important to recall that p.82 of the NIS states ‘In making the decision as to whether a

derogation is to be granted in respect of a farm the minister should have due regard to the

potential for this decision to effect upon European sites which may be linked or in proximity

to the farm holding.’ However, it is clear from the description of the derogation application

process as set out in the affidavit of Edward Massey that this does not in fact happen; it is

not part of the decision-making process. It is no answer to the State’s failure to assess

individual derogations to say that that somebody could challenge that failure; and is thereby

precluded from bringing other challenges”

111. The State submitted:

“The Respondents do not argue that the Applicant is necessarily precluded from bringing a

challenge at a systemic level, by reason of the possibility of challenging individual

derogations, or individual activities on a site-by-site basis. Whether an applicant would be

permitted to bring a systemic challenge – properly pleaded – would depend on all of the

circumstance of the case.

The Respondents do submit that such a systemic challenge could be taken only where it

arose on the facts of the case, and was grounded in a site-specific context. In addition, such

a challenge would have to be properly pleaded, and brought on an appropriate procedural

basis. An applicant is not entitled to raise a legal point in the abstract, without first going

through the correct procedural channels or invoking the relevant statutory obligations to

address its concerns. Nor is it permissible for an applicant to utilise a challenge to a measure

for the purposes of seeking to ventilate an issue unrelated to that measure, and that does

not properly arise in the factual matrix of the proceedings.

In the case as pleaded, the Applicant meets none of those requirements which must be

satisfied in order to bring a systemic challenge to the regulation of farm-level activities in

Ireland.

A similar issue recently arose in Carrownagowan Concern Group v An Bord Pleanála & Ors

[2023] IEHC 579, where the Applicant argued that the Minister had failed to comply with a

remedial obligation with respect to historic forestry consents, in the context of a challenge

to a development consent for a wind farm, and where the Applicant had established no

relationship between that complaint and the consent. The Court made clear that seeking to

invoke that point in those proceedings, where the Applicant had not pursued appropriate

procedural channels or called on the Minister to exercise relevant statutory powers, was an

unacceptable method of pursuing the issue that the Applicant wished to raise.

It is respectfully submitted that, despite the different factual context in which that case

arose, there are analogies to be drawn here.”

112. My decision on this issue is that the applicant is not so precluded. Inadequacies of AA at

farm level are one thing but not challenging those (even if it were practicable, which it isn’t) doesn’t

mean one can’t challenge inadequacies of AA at plan level. There is no analogy with Carrownagowan

which was a challenge to a site-specific consent where the applicants hadn’t asked for the remedial

action by reference to the lack of which the consent was being impugned. That is a totally different

situation. While much of the language in the State’s submission is reasonably valid as a set of

abstract propositions, it doesn’t have any great bite in terms of its impact on the actual issue here.

To be a bit clearer:

(i) “such a systemic challenge could be taken only where it arose on the facts of the case” - of

course but that begs the question somewhat, and we are going to address the issue of

whether the applicant’s points arise on the facts of the case when we get to Module II;

(ii) “and was grounded in a site-specific context” - only to the extent that the point being made

is dependent on there being a need for a site-specific impact, which is not the case with all

of the applicant’s points here;

(iii) “such a challenge would have to be properly pleaded” - that doesn’t add anything to the

other pleading objections;

(iv) “and brought on an appropriate procedural basis” - again that doesn’t add anything to the

more specific objections;

(v) “an applicant is not entitled to raise a legal point in the abstract” - indeed, but likewise an

opposing party isn’t really helping by raising points of opposition in the abstract;

(vi) “without first going through the correct procedural channels” - absolutely right, but the State

hasn’t shown how this was breached - Carrownagowan was a very different situation where

there was a clear need to make a request before running to court;

(vii) “or invoking the relevant statutory obligations to address its concerns” - again perfectly

reasonable provided that there are statutory obligations an applicant can invoke prior to

litigating - which doesn’t seem to be the case here;

(viii) “nor is it permissible for an applicant to utilise a challenge to a measure for the purposes

of seeking to ventilate an issue unrelated to that measure” - agreed, but it’s not clear how

the applicant has impermissibly done that here; and

(ix) “and that does not properly arise in the factual matrix of the proceedings” - again agreed

but that also begs the question somewhat and again is a Module II issue where it will have

to be looked at in a more granular way.

Issue 12

113. Issue 12 is:

“Alternatively, is the applicant precluded from bringing such a claim by reason of its failure

to do so by way of a transposition challenge? PLEADING-TYPE ISSUE”

114. The applicant submitted:

“No. The points made in response to Issue 11 above apply here also.

The State has identified nothing in the statutory scheme which precludes it from doing what

the NIS said should be done – ‘In making the decision as to whether a derogation is to be

granted in respect of a farm the minister should have due regard to the potential for this

decision to effect upon European sites which may be linked or in proximity to the farm

holding.’ Rather the point is that the State chooses not to do so. The attempt to frame this

as a ‘transposition’ issue is misplaced.”

115. The State submitted:

“The Respondents submit that the Applicant is so precluded.

If the Applicant wished to challenge any systemic deficiency it contends arises in the

legislative framework governing the AA of agricultural activities, it was open to it to bring a

transposition challenge, identifying with precision how it alleges the Irish system fails to

properly transpose EU law, in accordance with the requirements detailed in the Respondent’s

Submissions, §§65–68.

It has not done so, and where that case not been pleaded the Applicant cannot be permitted

to make that case, for the reasons set out in response to Question 6.”

116. My decision on this issue is that the State’s objection is misconceived. The NAP is a time-

limited measure, not a part of the general framework of the legal system. Transposition generally

arises in the context of the latter, whereas inadequacies in the former are matters of failure to apply

EU law rather than to transpose it. The AA challenge is not a transposition challenge but an argument

that the habitats directive was not properly applied when the NAP was being adopted. Insofar as

the State is saying that the transposition regime such as the 2011 regulations hasn’t been

challenged, and that this means the applicant can’t raise any systemic deficiency, it depends what

one means by “systemic deficiency”. If by systemic deficiency one means that Ireland’s AA system

is legislatively defective in principle, then the State is broadly correct subject to the point that not

challenging transposition doesn’t generally cut down the case that the applicant did plead. If on the

other hand one means that that system wasn’t correctly applied to the NAP, then such an argument

isn’t precluded by not challenging the 2011 regulations, or any other transposing measure, for the

simple reason that an argument about inadequate application of (transposed) EU law is not

dependent on making a prior argument about inadequate transposition of EU law. The failure to

appreciate the transposition-application distinction is the basic flaw in the State’s objection.

Issue 13

117. Issue 13 is:

“Alternatively, is the applicant precluded from bringing such a claim by reason of its failure,

if the Applicant believes derogations should be published as a matter of EU law, to bring a

challenge to the failure to publish those decisions? PLEADING-TYPE ISSUE”

118. The applicant submitted:

“The Applicant’s point about the absence of a farm-level assessment is simply that this

absence supports the contention that the requisite scientific certainty as to the absence of

significant effects must necessarily be contained in the AA of the NAP.

The objection raised here is an example of the ‘send the fool further’ approach.”

119. The State submitted:

“If the Applicant believes that derogations should be published as a matter of EU law, and/or

that it is prevented from challenging derogation decisions by reason of the fact that

derogation decisions are not published, its remedy is to bring a challenge to the failure to

publish those decisions.

Even if that were not the case, the Applicant would be required to avail of appropriate

procedures to challenge the farm-level activities with which it is concerned and/or to bring

a challenge at a systemic level in a procedurally appropriate manner, as addressed in

Questions 10, 11 and 12.

Again, the Applicant’s contention that the lack of published derogation decisions means that

it can seek to ventilate its concerns through an inappropriate procedural route has no basis

in law.”

120. My decision on this issue is that this is a complaint about a case that the applicant hasn’t

made. Given how much stress was laid on the absence of any farm-level AA practice is, it is perhaps

puzzling that the applicant didn’t challenge this in a more head-on way. But not doing so doesn’t

dispose of the points that the applicant did challenge.

Issue 14

121. Issue 14 is:

“Is the applicant precluded from any claim of environmental consequences arising from the

manner of implementation of, or a failure to properly implement, the NAP, having regard to

the presumption of legality? PLEADING-TYPE ISSUE”

122. The applicant submitted:

“The Applicant’s claim is that the NAP was not properly assessed by reference to the Habitats

Directive, the WFD and the SEA Directive. It is not required to establish environmental

consequences arising from those failures of assessment. The objection appears to stem from

the State’s attempt to re-write the case being made.”

123. The State submitted:

“It is the Respondent’s position that the Applicant is precluded from any claim of

environmental consequences arising from the manner of implementation of and/or a failure

to properly implement the NAP having regard to the presumption of legality.

Ireland’s substantive obligations to adopt measures to protect water bodies from pollution

caused by nitrates are delimited by the requirements of Article 5(1) of the Nitrates Directive

and Article 11 WFD. It follows that only a challenge alleging that the NAP fails to satisfy

Ireland’s positive obligations under those provisions could raise a justiciable benchmark

sufficient to permit the Court to engage in an analysis of the level of ambition of the NAP.

As detailed above, it is striking that, despite the Applicant’s repeated submissions that the

NAP and the GAP Regulations do not do enough to protect water bodies from nitrates

pollution, it is not pleaded that those measures are insufficient to meet Ireland’s substantive

obligations under Article 5(1) of the Nitrates Directive or Article 11 WFD.

Nor is it pleaded that Ireland’s decision to seek the Derogation is contrary to those

obligations. Indeed, it is unclear how that case could have been made, absent annulment

of the Commission Decision, where the Commission concluded that the Derogation is

‘justified on the basis of objective criteria’ [Commission Decision, Recital 15.], ‘will not

prejudice the objectives set out in [the Nitrates Directive]’ [Commission Decision, Recital

16.] and ‘is coherent with the legally binding targets of the WFD’ [Commission Decision,

Recital 17].

The Amended Statement of Grounds also does not plead that the Commission Decision is

invalid as being inconsistent with the requirements of the Nitrates Directive or WFD. Nor

has the Applicant sought annulment of the Commission Decision before the General Court

on that basis, or on any basis.

There is therefore no pleaded case impugning the substantive content of the NAP, or the

State’s level of ambition when adopting that measure. Where neither the NAP nor the

Derogation have been challenged as non-compliant with those provisions, they enjoy a

presumption of legality in that respect.

It is respectfully submitted that the Court’s determination of these proceedings must

therefore be based on the uncontested position that the NAP and the GAP Regulations

(including the Derogation) are fully compliant with Ireland’s substantive obligations under

the Nitrates Directive and WFD, to adopt measures to reduce water pollution caused by

nitrates from agricultural sources. Any inference to the contrary in the Applicant’s

submissions must be rejected.”

124. My decision on this issue is that I don’t accept that the applicant’s complaints can be

dismissed as non-“substantive”. The pleaded breaches of SEA, AA and the WFD collectively amount

to a complaint of inadequate environmental protection, even if the provisions relied on could also be

viewed as procedural (relating to assessment or to ensuring that certain adverse consequences are

ruled out). While the State is correct that there is no pleaded breach of the nitrates directive (as

already discussed), there is a pleaded breach of the WFD. The lack of a plea that the Commission

decision is invalid on some separate basis from that pleaded doesn’t preclude the challenge that is

made. The presumption of legality is a principle applicable to the determination on the substance,

not a basis to “preclude” a challenge in the first place.

Issue 15

125. Issue 15 is:

“Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not pleaded any relief seeking to quash any specific derogation decision,

or agricultural activity? PLEADING-TYPE ISSUE”

126. The applicant submitted:

“No. This objection appears to be based on the State’s attempt to re-write the case being

made.

The NAP inter alia regulates the conditions under which the cultivation of grassland for the

sustenance of cattle for agricultural production is facilitated through the application of

fertilisers on the surface of land or below its surface across the territory of Ireland, including

in the vicinity of, and by way of hydrological connectivity to, Natura 2000 sites. That Plan

therefore determines the conditions under which farm-level projects for the grazing of cattle

and the application of fertilisers on the surface of land or below its surface may be carried

out.

The Applicant’s point about the absence of a farm-level assessment is simply that this

absence supports the contention that the requisite scientific certainty as to the absence of

significant effects must necessarily be contained in the AA of the NAP.

The inclusion of a challenge to a specific derogation decision, or agricultural activity would

be completely arbitrary and dependent on the proximity in time of such derogation or activity

to the point at which the NAP was adopted. The inclusion of a challenge would add nothing

to the case actually being made - that the NAP was not properly assessed by reference to

the Habitats Directive, the WFD and the SEA Directive.

The points made about the obstacles to challenging such decisions in the absence of

publication are re-iterated.”

127. The State submitted:

“The Respondents submits that the Applicant is so precluded.

The Applicant pleads five reliefs in the Amended Statement of Grounds. Each of those reliefs

seeks either certiorari of the NAP or the GAP Regulations, or a declaration that the NAP or

the GAP Regulations are contrary to law and/or ultra vires and/or invalid.

None of the reliefs pleaded seek to challenge any farm-level agricultural activities in Ireland.

Nor do any of those reliefs allege non-transposition of the Habitats Directive, or invalidity of

any legislative measure on the basis that it is incompatible with the Habitats Directive.

The additional complaints that the Applicant seeks to introduce therefore fall outside the

reliefs as pleaded.

The Applicant seeks to avoid that inevitable conclusion by characterising the NAP and/or the

GAP Regulations as constituting: (i) an authorisation for all farm-level agricultural activities,

and/or (ii) a programmatic measure governing the authorisation and AA of agricultural

activities, and/or (iii) the sole framework regulating relevant agricultural activities in Ireland

(see also: Respondents’ Submissions, §§29–39).

On that basis, the Applicant appears to assume that the issues raised by it with respect to

farm-level agricultural activities, and the alleged lack of a farm-level permitting system, fall

under the reliefs as pleaded. However, there is no basis for characterising the NAP or the

GAP Regulations as carrying out any of those functions. On the contrary, it is clear from the

basis on which those measures were prepared and adopted, and the content of those

measures, that there was no intention that they would serve those functions.

Notably, in that respect, the reliefs seek, inter alia, certiorari of the NAP as ‘prepared,

published or adopted by the first named Respondent pursuant to the European Union (Good

Agricultural Practice for Protection of Waters) Regulations 2017’ (the ‘2017 Regulations’).

The 2017 GAP Regulations under which the NAP was adopted, make the purpose of the NAP

clear: it is ‘an action programme’ for ‘the protection of waters against pollution from

agriculture’ [2017 GAP Regulations, Regulation 28(1).] that ‘shall include all such measures

as are necessary for the purposes of Article 5 of the Nitrates Directive’ [2017 GAP

Regulations, Regulation 28(2).].

There is nothing in the 2017 Regulations or the NAP that indicates an intent that, in adopting

that measure, the Minister is authorising any agricultural activity that does not offend against

the restrictions in that measure (as opposed to prohibiting those activities that do), or that

it intends to serve as a programmatic measure for the AA of agricultural activities.

Equally, there is nothing in the GAP Regulations that indicate an intention to authorise all

activities that are not contrary to its terms, or to serve as a programmatic measure for the

AA of agricultural activities. Indeed, the long title of the GAP Regulations makes clear that

it is not intended to serve any function in regulating the AA of agricultural activities. That

long title confirms that the GAP Regulations are adopted under the European Communities

Act 1972 for the purpose of giving further effect to Directive 91/676/EEC, Directive

2000/60/EC, Directive 2003/35/EC, Directive 2006/118/EC, and Directive 2008/98/EC. It

makes no reference to giving further effect to the Habitats Directive.

There is therefore no basis to suggest that the NAP and the GAP Regulations authorise farm-

level agricultural activities, or function as programmatic measures for the AA of agricultural

activities. In asserting that they do, the Applicant conflates two separate categories of

measures: (i) those that place restrictions on activities, such as the NAP and the GAP

Regulations, and (ii) those that regulate the environmental assessment and authorisation of

activities, which the NAP and the GAP Regulations clearly do not. The contention by the

Applicant that they do appears to be based solely on an assumption that there is no other

legislative framework relevant to the authorisation and AA of farm-level agricultural

activities.

However, a number of legislative measures are relevant to the authorisation and

environmental assessment of agricultural activities, including inter alia the 2000 Act and the

2011 Regulations (see: Respondents’ Submissions, §§78–88). The Applicant has failed to

consider or address those provisions, in the context of the claim it now seeks to make,

despite a lack of regulation of farm-level activities constituting the entire premise of their

position.

In light of the foregoing, it is clear that the case the Applicant seeks to make falls entirely

outside the reliefs pleaded. The reality is that the Applicant seeks to argue that individual

farm-level activities are invalid and/or should be required to cease on the basis that they

require AA, but have not undergone AA. That challenge is not pleaded, and the Applicant is

therefore precluded from pursuing it.”

128. My decision on this issue is that this issue adds nothing to the point about the failure to

challenge individual decisions, already dealt with. As also already mentioned, the scope of AA is a

matter of substantive EU law which can be addressed in due course and is not a point to be decided

at the pleading objection stage. The State may or may not turn out to be correct on the point that,

because the NAP is protective rather than constituting an authorisation, the matters to be considered

in the AA process are restricted in the manner submitted. But that is a matter of substantive EU

law for a merits module, not a pleading objection, and is adequately covered by the remaining

identified issues.

Issue 16

129. Issue 16 is:

“Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not sought any declaratory relief to the effect that any specific derogation

decision or agricultural activity, requires appropriate assessment? PLEADING-TYPE ISSUE”

130. The applicant submitted:

“Like the State, the Applicant re-iterates its response to Issue 15.”

131. The State submitted:

“The Respondents submit that the Applicant is so precluded and reiterate their response to

Question 15 above.”

132. My decision on this issue is that this also adds nothing to the negative answer to the previous

related question. The answer here is also No.

Issue 17

133. Issue 17 is:

“Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not sought any declaratory relief to the effect that derogation decisions or

agricultural activities generally, require appropriate assessment? PLEADING-TYPE ISSUE”

134. The applicant submitted:

“Like the State, the Applicant re-iterates its response to Issue 15.”

135. The State submitted:

“The Respondents submit that the Applicant is so precluded and reiterate their response to

Question 15 above.”

136. My decision on this issue is that maybe had it pleaded the issue more extensively the

applicant could have got more mileage out of the point about a systemic failure to implement

domestic law on AA, but not doing so in these particular proceedings doesn’t detract from the points

that it has pleaded.

Issue 18

137. Issue 18 is:

“Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not identified any derogation decision or agricultural activity that it alleges

required appropriate assessment? PLEADING-TYPE ISSUE”

138. The applicant submitted:

“Like the State, the Applicant re-iterates its response to Issue 15.”

139. The State submitted:

“The Respondents submit that the Applicant is so precluded and reiterate their response to

Question 15 above.”

140. My decision on this issue is that this is just a reformulation of previous issues, so the answer

here is also No for reasons already articulated.

Issue 19

141. Issue 19 is:

“Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not identified any protected site alleged to be affected by any derogation

decision or agricultural activity? PLEADING-TYPE ISSUE”

142. The applicant submitted:

“The reliance on Friends of the Irish Environment CLG v the Government of Ireland & Ors

[2023] IEHC 562 is misplaced, as the issue in that case (which is under appeal) concerned

whether the measure in question required Appropriate Assessment at all.

The State’s own NIS specifically identifies protected sites and Qualifying Objectives that are

potentially affected by the implementation of the NAP. It says:

‘As set out above at Section 6.3.2, the NAP has potential to give rise to a range of

impacts upon European Sites throughout Ireland. Such potential impacts are set out

within Section 6.3.3. While it is noted that a large proportion of European Sites within

Ireland and Northern Ireland will be potentially affected by measures within the NAP,

in order to address the specific vulnerability of such sites to these potential impacts

it is considered that further consideration of the qualifying features of the sites, their

conservation objectives and their relative sensitivity is required. As set out in Table

4.1, the Republic of Ireland supports 439 SACs and 165 SPAs. Northern Ireland

supports a further 58 SACs and 16 SPAs. Table 6.2 details a further breakdown of

the qualifying features for which these SACs and SPAs are designated.’[Book of

Exhibits, p.557]

It then addressed the specific water dependent Natura 2000 sites and identifies these

habitats by species and number of SAC. Having identified 14 habitat types and listed them

by reference to environmental indicators the NIS says:

‘On the basis of the information presented in Table 6.3, it is considered that the

following water dependant habitats are those which have the most potential to be

subject to adverse effects as a result of impacts arising via the NAP:

• Turloughs;

• Transition mires and quaking bogs;

• Calcareous fens with Cladium mariscus and species of the Carex

davalliana;

• Petrifying springs with tufa formation (Cratoneurion);

• Alkaline fens;

• Oligotrophic waters containing very few minerals of sandy plains

(Litttorelletalia);

• Oligotrophic to mesotrophic standing waters with vegetation of the

Littorelletea uniflorae and/or IsoetoNanojuncetea;

• Natural dystrophic lakes and ponds;

• Coastal lagoons;

• Margaritifera (Freshwater pearl mussel);

• Salmo salar (Atlantic salmon); • Najas flexilis (Slender naiad);

• Rivers with muddy banks with Chenopodium rubric p.p. and Bidention p.p.

vegetation; and

• Watercourses of plain to montane levels with the Ranunculion fluitantis

and Callitricho-batrachion vegetation. …

Of the habitats and species listed above the vast majority, with the exception of

Rivers with muddy banks [3270], are in sub-favourable condition, with many of

these habitats also exhibiting a negative trend. In the majority of cases identified

threats include those arising through nutrient inputs from agriculture. In this context

it is considered that any potential further deterioration of the conservation status of

these habitats and species arising as a result of nutrient inputs associated with

agriculture would be associated with inadequate provisioning of mitigation measures

in the NAP, or inadequate enforcement of these measures.’[Book of Exhibits, p.565]

The Applicant cannot fairly be criticised for not identifying sites when the State itself has

specifically identified 14 Qualifying Objectives and their locations as potentially affected by

the implementation of the NAP. There was no necessity for the Applicant to unnecessarily

repeat this exercise as the State itself identified the potential for significant effects in a wide

range of Natura 2000 sites; and the need for AA is not in dispute.”

143. The State submitted:

“The Respondents maintain that the Applicant is so precluded. In the context of the Habitats

Directive specifically, this Court made clear in Friends of the Irish Environment CLG v the

Government of Ireland & Ors [2023] IEHC 562 that an Applicant seeking to impugn a

measure by reference to the Habitats Directive is required to situate that claim by reference

to particular sites. The Applicant has failed to do so here. Rather, it alleges a breach of

and/or inconsistency with the Habitats Directive entirely in the abstract.”

144. My decision on this issue is that the answer here is also No. The State’s summary of Friends

is over-simplified. A more acceptable summary would be to say that a challenge (to an AA of a

general measure) that depends logically on a breach of an obligation of assessment of particular

sites depends on establishing that the impugned measure has an impact on particular sites. Here

by contrast the State has conceded the AA obligation – see Issue 1. That gets the applicant over

the hurdle that the State now impermissibly attempts to re-erect. Even if the applicant had to go

on to show, on the evidence, potential impact (of the underlying agricultural activities) on specific

sites, which it doesn’t necessarily, that wouldn’t be implausible in principle given the content of the

NAP here. That doesn’t take away from the more substantive objection as to what exactly needs to

be assessed, but that is a point on the substance rather than the pleadings.

Issue 20

145. Issue 20 is:

“Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not pleaded any non-transposition claim? PLEADING-TYPE ISSUE”

146. The applicant submitted:

“No. The claim is not dependent on transposition. The State has identified nothing in the

statutory scheme which precludes it from carrying out a valid AA. The attempt to frame this

as a ‘transposition’ issue is misplaced. The State have failed to identify what the supposedly

missing transposition claim should be.”

147. The State submitted:

“The Respondents maintain that the Applicant is so precluded.

A transposition point (even a transposition point not expressly stated as such) cannot be

raised at hearing if it has not been pleaded. Where the Applicant has not pleaded any

inadequate transposition of the Habitats Directive, ‘it can’t argue that the [domestic

provisions] don’t faithfully reflect the EU law obligation’ [Friends of the Irish Environment

CLG v the Government of Ireland & Ors [2023] IEHC 562, §85.]. The reality of the

Applicant’s position is that this is precisely what is being argued.

Further, and relatedly, a transposition point is ‘a serious complaint which needs to be pleaded

with a great deal of specificity’ [Friends of the Irish Environment CLG v the Government of

Ireland & Ors [2023] IEHC 562, 102. See also: Sweetman v. An Bord Pleanála [2020] IEHC

39, §103.]. If it is to be determined, ‘the point should properly arise within the factual matrix

of any given case’ [Sweetman v. An Bord Pleanála [2020] IEHC 39, §103.]. A court cannot

and should not ‘engage in some kind of line-by-line comparison of the directive and the

regulations unharnessed from any particular factual context or from any detailed and

particularised pleaded case’ Sweetman v. An Bord Pleanála [2020] IEHC 39, §135].

The point the Applicant seeks to make here is in all but name a transposition point. The

Applicant argues that EU law requires the AA of agricultural activities such as grazing,

contends (incorrectly) that there is no method in Irish law that would permit AA of farm-

level activities, and thus asserts that the NAP must be assumed to be a programmatic

measure aimed at authorising and carrying out AA of farm-level activities. The gravamen of

that complaint is clearly that Ireland has not properly transposed the Habitats Directive in

the context of agricultural activities. The Applicant cannot be permitted to raise that point

without properly pleading it.”

148. The ICMSA submitted:

“The text of Issue 20 correctly notes that ‘the Applicant has not pleaded any nontransposition

claim’.

The ICMSA agrees with the points and authority referenced by the State under this Issue,

and would merely draw attention to further passages from Friends of the Irish Environment

(in addition to those already noted in the State’s footnotes). Humphreys J. stated (§138):

‘138. That reinforces the problem that the applicant hasn’t engaged in the pleadings with

how exactly the transposition is defective insofar as it relates to these particular facts. But

the applicant’s problem is wider than that. Arguments about non-transposition are serious

and solemn issues that need to be expressly claimed, not only fully identified mid-hearing.

The fact that art. 7(2) refers back to art. 7(1) doesn’t suffice here to haul the applicant out

of the hole created by its own defective pleadings. An applicant has to be clear on what

exactly it is challenging when it launches a non-transposition claim.’

Humphreys J. continued (§139):

‘The only specific complaint of non-transposition is in relation to art. 7(2)(f), which doesn’t

apply. This isn’t an authorisation. Furthermore no relief is sought corresponding to any

grounds complaining of non-transposition of art. 7(2)(f).’”

149. My decision on this issue is that the analogy with Friends is misplaced, because that actually

was a transposition challenge. I don’t think this issue adds anything to the issues already discussed,

specifically that transposition is a matter of the general legal framework whereas the applicant’s

essential complaint here regarding the NAP is a failure to apply that framework. The NAP is an

instrument made under a directive and is not in any meaningful or helpful sense an act of

transposition in itself, unless one wants to completely collapse the distinction between transposition

and application. I appreciate that for many litigants, even on occasion official litigants, any

commitment to further the cause of clarity, enlightenment and intellectual understanding can

struggle to compete with the more pressing urge to score some ephemeral and not necessarily

particularly meritorious advantage in heat of the immediate needs of an individual case, but that

isn’t a strategy that the court should particularly encourage. The answer to the State’s objection,

again therefore, is No.

Issue 21

150. Issue 21 is:

“Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not engaged, at all, with the legislative framework governing agricultural

activities? PLEADING-TYPE ISSUE”

151. The applicant submitted:

“The Applicant’s point about the absence of a farm-level assessment is simply that this

absence supports the contention that the requisite scientific certainty as to the absence of

significant effects must necessarily be contained in the AA of the NAP.

The Applicant does not understand how alleged failure to engage with a legislative

framework can prevent from pursuing the pleaded points. In any event, in this case, no such

engagement is necessary.”

152. The State submitted:

“The Respondents submit that the Applicant is so precluded and that it is unclear why the

Applicant chose to seek to ventilate its concerns with respect to farm-level assessment in

the abstract, and via the unusual (and impermissible) procedural route that has been

adopted here. What is clear, however, is that the Applicant took that approach without

giving any real consideration to the legislative framework that in fact governs agricultural

activities, and AA, or how these issues might properly be raised before the Court.

The Applicant is correct that there is no specific or tailored permitting system for farm-level

agricultural activities in Ireland. However, it is incorrect in assuming that this means that

there is no legislative framework relevant to that issue.

A review of the legislative framework reveals that (i) the Applicant’s characterisation of the

NAP as an authorisation or programmatic appropriate assessment of agricultural activities is

incorrect (as addressed in response to Question 15), and (ii) the procedural basis on which

this issue is raised is therefore manifestly deficient.

Certain key legislative provisions relevant to the concerns raised by the Applicant, and with

which the Applicant has not engaged at all, are summarised below.

First, that there is typically no permitting obligation for the use of land for the purposes of

relevant agricultural activities is not, as the Applicant appears to infer, because the NAP acts

as a blanket authorisation for those activities. Rather, it is because section 4(1)(a) of the

2000 Act provides that ‘development consisting of the use of any land for the purpose of

agriculture’ is exempted development.

Section 2 of the 2000 Act defines ‘agriculture’ as including:

‘horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of

livestock (including any creature kept for the production of food, wool, skins or fur, or for

the purpose of its use in the farming of land), the training of horses and the rearing of

bloodstock, the use of land as grazing land, meadow land, osier land, market gardens and

nursery grounds, …’

These provisions therefore clearly apply to the type of agricultural activity with which the

Applicant is concerned.

Section 4(1)(a) will be subject to the provisions of section 4(4), which provides:

‘(4) Notwithstanding paragraphs (a), (i), (ia), and (l) of subsection (1) and any regulations

under subsection (2), development shall not be exempted development if an environmental

impact assessment or an AA of the development is required’.

If the Applicant believes that any specific agricultural land use falls under section 4(4) on

the basis that it requires AA, so that it is not exempted development, it is entitled to litigate

that matter in the normal manner. It has not done so.

Second, a farmer cannot rely on the Derogation without authorisation from the Minister for

Agriculture, Food and the Marine under regulation 35(1)(a) of the GAP Regulations, as

amended. It is the case that section 7 of the GAP Regulations does not reference AA.

However, if the Applicant believes that any specific authorisation for a derogation requires

AA, it could have sought to challenge that authorisation, and to argue inter alia that the

Minister was required to carry out an AA:

(i) having regard to its obligations under Regulation 27(2) of the 2011

Regulations to exercise its functions so as to secure compliance with the

requirements of the Habitats Directive, and/or

(ii) under section 42 of the 2011 Regulations, on the basis that the activities at

issue were a ‘project’ for which the Minister for Agriculture received an

application for consent and that required AA.

Again, the Applicant has not taken this course of action.

Third, insofar as there is any agricultural activity that concerns the Applicant and that falls

outside the foregoing provisions, it is open to the Applicant to bring that activity to the

attention of the Minister and ask the Minister to exercise its statutory power under Regulation

28 of the 2011 Act, which provides:

‘28. (1) Where the Minister has reason to believe that any activity, either individually or in

combination with other activities, plans or projects, is of a type that may—

a) have a significant effect on a European Site,

b) have an adverse effect on the integrity of a European Site, or

c) cause the deterioration of natural habitats or the habitats of species

or the disturbance of the species for which the European Site may

be or has been designated pursuant to the Habitats Directive or has

been classified pursuant to the Birds Directive, in so far as such

disturbance could be significant in relation to the objectives of the

Habitats Directive,

the Minister shall, where he or she considers appropriate, direct that, subject to paragraph

(2), the activity shall not be carried out, caused or permitted to be carried out or continued

to be carried out by any person in the European Site or part thereof or at any other specified

land except with, and in accordance with, consent given by the Minister under Regulation

30. …’

If the Minister were satisfied that the particular agricultural activity did require AA screening

or AA, it could make a direction under Regulation 28(1) to the effect that the activity must

cease unless consent is granted under Regulation 30, which requires AA screening and where

appropriate AA. Alternatively, it could make a direction regulating the activity under

Regulation 29(1).

Regulation 28(2) sets out certain exceptions to the Minister’s power, where the activity has

been granted a consent and is carried out in compliance with that consent. However, if that

were the case the Applicant would have had an opportunity to challenge the consent, if it

believed AA was necessary but not carried out.

However, again, the Applicant has not taken that course of action, or asked the Minister to

exercise its powers under Regulations 28 to 30, or even identified in these proceedings any

specific agricultural activity where it alleges that there is ‘reason to believe’ it is having a

significant effect on a specific European Site within the meaning of Regulation 28.

Where the Applicant has not engaged with that legislative framework at all in these

proceedings, even if the Applicant had sought declaratory relief with respect to any alleged

non-transposition of the Habitats Directive, that claim would necessarily fail.”

153. My decision on this issue is that the existence or otherwise of farm-level regulation is a

matter to be considered insofar as (if at all) it is relevant to the substantive issue of the adequacy

of the AA. Such regulation is not a reason to preclude a challenge to the AA at the level of principle

and thus the alleged preclusion does not arise.

Issue 22

154. Issue 22 is:

“Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has therefore neither pleaded nor made out either a specific or systemic

challenge with respect to the appropriate assessment of farm level agricultural activities?

PLEADING-TYPE ISSUE”

155. The applicant submitted:

“The Applicant’s point about the absence of a farm-level assessment is simply that this

absence supports the contention that the requisite scientific certainty as to the absence of

significant effects must necessarily be contained in the AA of the NAP. This does not require

a specific or systemic challenge with respect to the appropriate assessment of farm level

agricultural activities.”

156. The State submitted:

“The Respondents submit that the Applicant is so precluded.

The Respondents reiterate their response to Question 15 above that the Applicant has not

made out a specific challenge with respect to the appropriate assessment of farm-level

agricultural activities.

Moreover, the Respondents submit that the Applicant has not made out a systemic challenge

with respect to the appropriate assessment of farm-level agricultural activities and reiterate

their response to Question 20. If the Applicant wished to challenge any systemic deficiency

it contends arises in the legislative framework governing the AA of agricultural activities, it

was open to it to bring a non-transposition claim, identifying with precision how it alleges

the Irish system fails to properly transpose EU law, in accordance with the requirements

detailed above, which the Applicant failed to do.”

157. My decision on this issue is that this adds nothing to issues already addressed. As with those

issues, and for the same reasons, the answer is negative.

Issue 23

158. Issue 23 is:

“Is the applicant precluded from challenging whether the AA is sufficiently rigorous if the

Applicant's conclusion that the NAP ‘authorises’ farm-level activities is incorrect? PLEADING-

TYPE ISSUE”

159. The applicant submitted:

“It is not clear what ‘conclusion’ is being referred to here. In any event, the need for the

NAP to undergo AA is not in dispute; and accordingly it must comply with the requirements

for AA.”

160. The State submitted:

“The Respondents submit that the Applicant is so precluded. This has already been

addressed above, in Question 15 above.”

161. My decision on this issue is as follows. I accept, for present purposes, that the applicant’s

terminology is incorrect insofar as it suggests that the NAP “authorise[s]” (see e.g., sub-ground 3)

the activities complained of. A more accurate term would be something in the ball-park of

“regulates” or “mitigates”. The point so phrased essentially involves a challenge to the AA based on

the argument that the NAP is insufficiently rigorous. It would be undue formalism to dismiss the

point based on a wholly semantic infelicity if there is an issue on the substance to be debated further.

Issue 24

162. Issue 24 is:

“Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

a challenge based on an alleged failure to carry out appropriate assessment on derogation

decisions or agricultural activities could never be pursued through a challenge to the NAP?

PLEADING-TYPE ISSUE”

163. The applicant submitted:

“The Applicant’s point about the absence of a farm-level assessment is simply that this

absence supports the contention that the requisite scientific certainty as to the absence of

significant effects must necessarily be contained in the AA of the NAP.”

164. The State submitted:

“The Respondents submit that the Applicant is so precluded.

The complex and far-reaching case the Applicant seeks to make is entirely divorced from

the reliefs sought, and it is unclear how quashing Ireland’s action programme under Article

5(1) of the Nitrates Directive could possibly address the concerns raised by the Applicant.

The Applicant cannot be permitted ‘to build a tottering edifice reaching to certiorari on such

an ephemeral foundation’ [O’Donnell and Others v an Bord Pleanála and Others [2023] IEHC

381, §107].

The Applicant’s attempt to ventilate its concerns with respect to the permitting an

appropriate assessment of farm-level agricultural activities in these proceedings must be

rejected. As detailed in the Respondents’ responses above, no such claim has been pleaded,

or properly particularised, and this is in any event a manifestly inappropriate forum to

ventilate those concerns.

The logical fallacy inherent in the Applicant’s approach is perhaps best illustrated by the

consequences if the Applicant were to succeed in quashing the NAP on this basis. The

purpose of quashing an authorisation is to prevent the impugned development or activity

from commencing or continuing. Quashing the NAP would have no effect on the legality of

any ongoing agricultural activities with which the Applicant takes issue. Nor would it address

any transposition issue that the Applicant might say arises, or require the introduction of a

farm-level permitting system. All that it would accomplish would be to quash the protective

measures that are in place, reducing rather than increasing environmental protection.”

165. My decision on this issue is that this issue ultimately relates to the merits of the AA process

as a matter of EU law rather than being a matter of preclusion on a pleadings-type basis. The point

can be revisited at the appropriate stage. At this moment one can’t rule out a priori that a more

rigorous NAP could have been adopted and that consideration of this was something that should

have occurred in the AA process, even if quashing the NAP hypothetically would not rectify this. An

alternative way of looking at the problem with the State’s objection is that the fact that a remedy

would be very nuanced if hypothetically a remedy was called for does not in itself mean that the

challenge can’t get off the ground in the first place.

Issue 25

166. Issue 25 is:

“Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

any failure with respect to any farm-level activity could not go to the validity of the NAP?

PLEADING-TYPE ISSUE”

167. The applicant submitted:

“The Applicant’s point about the absence of a farm-level assessment is simply that this

absence supports the contention that the requisite scientific certainty as to the absence of

significant effects must necessarily be contained in the AA of the NAP.”

168. The State submitted:

“The Respondents submit that the Applicant is so precluded and reiterate their response to

Question 24 above.”

169. My decision on this issue is that it is overly simplistic to say categorically that failures at

farm level assessment can’t go to the validity of the NAP. If there is no effective system in practice

for farm level assessment (despite the theoretical relevance of the 2000 Act and 2011 regulations),

that may (or may not – to be decided) have implications for AA requirements at NAP level, which in

turn could have implications for the validity of the NAP. So this is an issue of substantive EU law,

not a knock-out pleading point.

Issue 27

170. Issue 27 is:

“Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not challenged the compliance of the measures in the NAP with the

requirements of the Nitrates Directive? PLEADING-TYPE ISSUE”

171. The applicant submitted:

“No. The Applicant is entitled to challenge the adequacy of the AA without challenging the

compliance of the measures in the NAP with the requirements of the Nitrates Directive. Like

the State, the Applicant refers to its answers to Issues 10, 11 and 12.”

172. The State submitted:

“The Respondents submit that the Applicant is so precluded, having regard to the basis for

the challenge to the AA of the NAP. This has already been addressed in reply to Questions

10, 11 and 12 above.”

173. My decision on this issue is that this doesn’t raise any distinct question from issues already

addressed and also therefore requires a negative answer.

Issue 28

174. Issue 28 is:

“Is the applicant precluded from maintaining the challenge in particular as to the likelihood

of adverse environmental effects as a result of the impugned decisions by reason of the

applicant’s failure to contest the evidence of the opposing parties by means of cross-

examination? PLEADING-TYPE ISSUE”

175. The applicant submitted:

“No. There is no necessity for cross-examination in relation to the actually pleaded case.

That relies on well-worn principles in respect of Article 6(3) of the Habitats Directive and

there is no necessity to cross-examine where the nub of the case is the legal question as to

whether the NIS and AA of the NAP has reached the requisite degree of scientific certainty.

This is, with respect, the type of issue raised and addressed every week in the Planning and

Environment Court without any suggestion, let alone obligation, to engage in cross-

examination.”

176. The State submitted:

“This issue was raised by the Second to Sixth Notice Parties and is more appropriately

addressed by those parties”

177. The IFA (being the relevant notice parties) did not specifically address this issue in the invited

supplemental submissions.

178. My decision on this issue is that in that the absence of a more detailed submission from the

party making the objection as to how the applicant is allegedly precluded from making its case, such

an objection can’t simply be accepted as a global complaint. The point is best reformulated as a

question as to whether the applicant has established each of the various factual propositions that

are required to enable it to make the different legal points it wants to make. I have attempted to

clarify this in the issue paper at Schedule II to this judgment, and submissions can be made more

specifically in this regard in Module II. But if the opposing parties want to pursue the objection, it

will have to be made clear what are the precise averments that the applicant has not sought to

contest by cross-examination and how precisely that failure would determine the issue against the

applicant, and it will also have to be established that such statements are genuinely evidential and

not bland generalities in the nature of “everything was done properly - nothing to see here”-type

rolled-up attempts to assert the ultimate issue or make a submission in the guise of an affidavit.

Likewise the applicant will have to be precise about the averments made on its behalf that establish

the necessary factual points.

Issue 29

179. Issue 29 is :

“Are the proceedings misconceived because the Applicant’s real complaint is that the State

is able to avail of a derogation at all and indeed has obtained such a derogation from the

European Commission and because these proceedings are no more than a Trojan horse and

an impermissible collateral attack on the decision to grant Ireland a derogation from the

170kg limit of livestock manure per hectare, available under Annex III2(b) of the Nitrates

Directive (Directive 91/676/EEC) as is said to be manifest from the pleadings (see Affidavit

of Elaine McGoff, §§14-19)? PLEADING-TYPE ISSUE”

180. The applicant submitted:

“The proceedings are not misconceived. The Applicant has raised a justiciable issue

regarding the adequacy of the AA. Dr McGoff’s affidavit at 14-19 describes the derogation

process; it is difficult to see what is supposedly objectionable about those paragraphs.”

181. The State submitted:

“The Respondents submit that the proceedings are so misconceived.

As detailed above, the Applicant has failed to plead any challenge to the substantive validity

of the Derogation. Yet, it is apparent from the pleadings, and was confirmed at the hearing,

that the Applicant’s main concern in these proceedings is Ireland’s decision to apply for the

Derogation and/or the Commission’s Decision to grant the Derogation. Where the Applicant

has not challenged those decisions, and in particular has not challenged the compliance of

those decisions with Article 5(1) of the Nitrates Directive or Article 11 WFD, it cannot

challenge the Derogation by way of a collateral attack under Article 6(3).”

182. My decision on this issue is that this isn’t an obstacle to the proceedings. The allegation that

the applicant’s real complaint is the existence of the derogation at all is the stuff of forensic

knockabout comment and swordsmanship. It would be a more crushing complaint if the applicant

didn’t plead any other more plausibly justiciable issue, but that isn’t the case. Insofar as the

applicant has raised potentially justiciable issues, the court isn’t excused from dealing with those

simply because there is a school of thought that would suspect that the applicant would have sought

more sweeping remedies if the law so allowed.

Issue 30

183. Issue 30 is:

“Is the applicant precluded from raising issues that flow from the Government’s decision to

seek a derogation by reason of its failure to challenge that decision? PLEADING-TYPE ISSUE”

184. The applicant submitted:

“The Applicant has raised a justiciable issue regarding the adequacy of the AA. It is far from

clear that the Government’s decision to seek a derogation was justiciable.”

185. The State submitted:

“The Respondents plead that the Applicant is so precluded. The Respondents reiterate their

response to Question 29.”

186. My decision on this issue is as follows. Annex III para. 2 of the nitrates directive provides,

in relation to measures in a NAP:

“These measures will ensure that, for each farm or livestock unit, the amount of livestock

manure applied to the land each year, including by the animals themselves, shall not exceed

a specified amount per hectare.

The specified amount per hectare be the amount of manure containing 170 kg N. However:

(a) for the first four year action programme Member States may allow an amount of manure

containing up to 210 kg N;

(b) during and after the first four-year action programme, Member States may fix different

amounts from those referred to above. These amounts must be fixed so as not to prejudice

the achievement of the objectives specified in Article 1 and must be justified on the basis of

objectives criteria, for example:

— long growing seasons,

— crops with high nitrogen uptake,

— high net precipitation in the vulnerable zone,

— soils with exceptionally high denitrification capacity.

If a Member State allows a different amount under point (b) of the second subparagraph, it

shall inform the Commission, which shall examine the justification in accordance with the

regulatory procedure referred to in Article 9(2).”

187. Article 9(2) referred to, provides obliquely as follows:

“2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall

apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.”

188. That refers to 1999/468/EC: Council Decision of 28 June 1999 laying down the procedures

for the exercise of implementing powers conferred on the Commission. That decision is no longer

in force, having been repealed by Regulation (EU) No 182/2011 of the European Parliament and of

the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms

for control by Member States of the Commission’s exercise of implementing powers. Articles 5 to 8

of the latter provide:

“Article 5

Examination procedure

1. Where the examination procedure applies, the committee shall deliver its opinion by the

majority laid down in Article 16(4) and (5) of the Treaty on European Union and, where

applicable, Article 238(3) TFEU, for acts to be adopted on a proposal from the Commission.

The votes of the representatives of the Member States within the committee shall be

weighted in the manner set out in those Articles.

2. Where the committee delivers a positive opinion, the Commission shall adopt the draft

implementing act.

3. Without prejudice to Article 7, if the committee delivers a negative opinion, the

Commission shall not adopt the draft implementing act. Where an implementing act is

deemed to be necessary, the chair may either submit an amended version of the draft

implementing act to the same committee within 2 months of delivery of the negative opinion,

or submit the draft implementing act within 1 month of such delivery to the appeal

committee for further deliberation.

4. Where no opinion is delivered, the Commission may adopt the draft implementing act,

except in the cases provided for in the second subparagraph. Where the Commission does

not adopt the draft implementing act, the chair may submit to the committee an amended

version thereof.

Without prejudice to Article 7, the Commission shall not adopt the draft implementing act

where:

(a) that act concerns taxation, financial services, the protection of the health or safety of

humans, animals or plants, or definitive multilateral safeguard measures;

(b) the basic act provides that the draft implementing act may not be adopted where no

opinion is delivered; or

(c) a simple majority of the component members of the committee opposes it.

In any of the cases referred to in the second subparagraph, where an implementing act is

deemed to be necessary, the chair may either submit an amended version of that act to the

same committee within 2 months of the vote, or submit the draft implementing act within 1

month of the vote to the appeal committee for further deliberation.

5. By way of derogation from paragraph 4, the following procedure shall apply for the

adoption of draft definitive anti-dumping or countervailing measures, where no opinion is

delivered by the committee and a simple majority of its component members opposes the

draft implementing act.

The Commission shall conduct consultations with the Member States. 14 days at the earliest

and 1 month at the latest after the committee meeting, the Commission shall inform the

committee members of the results of those consultations and submit a draft implementing

act to the appeal committee. By way of derogation from Article 3(7), the appeal committee

shall meet 14 days at the earliest and 1 month at the latest after the submission of the draft

implementing act. The appeal committee shall deliver its opinion in accordance with Article

6. The time limits laid down in this paragraph shall be without prejudice to the need to

respect the deadlines laid down in the relevant basic acts.

Article 6

Referral to the appeal committee

1. The appeal committee shall deliver its opinion by the majority provided for in Article

5(1).

2. Until an opinion is delivered, any member of the appeal committee may suggest

amendments to the draft implementing act and the chair may decide whether or not to

modify it.

The chair shall endeavour to find solutions which command the widest possible support

within the appeal committee.

The chair shall inform the appeal committee of the manner in which the discussions and

suggestions for amendments have been taken into account, in particular as regards

suggestions for amendments which have been largely supported within the appeal

committee.

3. Where the appeal committee delivers a positive opinion, the Commission shall adopt the

draft implementing act.

Where no opinion is delivered, the Commission may adopt the draft implementing act.

Where the appeal committee delivers a negative opinion, the Commission shall not adopt

the draft implementing act.

4. By way of derogation from paragraph 3, for the adoption of definitive multilateral

safeguard measures, in the absence of a positive opinion voted by the majority provided for

in Article 5(1), the Commission shall not adopt the draft measures.

5. By way of derogation from paragraph 1, until 1 September 2012, the appeal committee

shall deliver its opinion on draft definitive anti-dumping or countervailing measures by a

simple majority of its component members.

Article 7

Adoption of implementing acts in exceptional cases

By way of derogation from Article 5(3) and the second subparagraph of Article 5(4), the

Commission may adopt a draft implementing act where it needs to be adopted without delay

in order to avoid creating a significant disruption of the markets in the area of agriculture or

a risk for the financial interests of the Union within the meaning of Article 325 TFEU.

In such a case, the Commission shall immediately submit the adopted implementing act to

the appeal committee. Where the appeal committee delivers a negative opinion on the

adopted implementing act, the Commission shall repeal that act immediately. Where the

appeal committee delivers a positive opinion or no opinion is delivered, the implementing

act shall remain in force.

Article 8

Immediately applicable implementing acts

1. By way of derogation from Articles 4 and 5, a basic act may provide that, on duly justified

imperative grounds of urgency, this Article is to apply.

2. The Commission shall adopt an implementing act which shall apply immediately, without

its prior submission to a committee, and shall remain in force for a period not exceeding 6

months unless the basic act provides otherwise.

3. At the latest 14 days after its adoption, the chair shall submit the act referred to in

paragraph 2 to the relevant committee in order to obtain its opinion.

4. Where the examination procedure applies, in the event of the committee delivering a

negative opinion, the Commission shall immediately repeal the implementing act adopted in

accordance with paragraph 2.

5. Where the Commission adopts provisional anti-dumping or countervailing measures, the

procedure provided for in this Article shall apply. The Commission shall adopt such measures

after consulting or, in cases of extreme urgency, after informing the Member States. In the

latter case, consultations shall take place 10 days at the latest after notification to the

Member States of the measures adopted by the Commission.”

189. The really critical point is that while superficially the nitrates directive gives the impression

that it is up to the member state to decide on acceptable concentration levels, art. 5(2) and (3) of

Regulation 182/2011 make it clear that the Commission is the decision-maker, basing itself primarily

on expert advice. Therefore the Government decision to seek a derogation is merely a step in the

process, not a final and binding legal act. On the basis of settled caselaw (see e.g. per Costello J.

in Spencer Place Development Ltd. v. Dublin City Council [2020] IECA 268, [2020] 10 JIC 0212) an

applicant is entitled and indeed required to await the final legally effective act before challenging the

process. In challenging a final act it is unnecessary and inappropriate to also challenge every

intermediate step expressly. So the applicant hasn’t done anything wrong here by not challenging

the Government decision merely to seek the derogation.

Issue 31

190. Issue 31 is:

“Is the applicant precluded from relying on any ultimate site-specific impacts because there

is a failure by the Applicant to adduce any evidence or identify any specific project, on any

given protected site, by reference to evidence relevant to the conservation objectives of any

particular site, in respect of which it might be contended that the 5th NAP has unlawfully

authorised an intervention to a protected site and because the EPA reports exhibited by the

Applicant cannot be relied upon because in no manner can they be considered or construed

as evidencing the authorisation of any project-specific intervention capable of having a

significant adverse impact on a European Site? PLEADING-TYPE ISSUE”

191. The applicant submitted:

“The Applicant repeats its response to Issue 19. There is no need to adduce such evidence.

The need for AA is not in dispute. The EPA reports demonstrate the importance of the issue

and the need for a valid AA.”

192. The State submitted:

“The Respondents submit that the Applicant is precluded from relying on any ultimate site-

specific impacts because of its failure to situate its claim by reference to a particular site or

particular sites. In the context of the Habitats Directive specifically, this Court made clear in

Friends of the Irish Environment CLG v the Government of Ireland & Ors [2023] IEHC 562

that an Applicant seeking to impugn a measure by reference to the Habitats Directive is

required to situate that claim by reference to particular sites. The Applicant has failed to do

so here. Rather, it alleges a breach of and/or inconsistency with the Habitats Directive

entirely in the abstract.”

193. My decision on this issue is that the first part of this objection doesn’t add anything to

matters already dealt with and has a negative answer for similar reasons. As to whether the EPA

reports cannot be relied on, the complaint confuses the concept of impermissible reliance with the

question of the meaning and import of material before the court. The State hasn’t proposed in this

Issue that the EPA reports are evidentially inadmissible, merely that they don’t identify specific

unassessed farm-level activities, on foot of derogations, that impermissibly impact on specific

European sites. Even assuming that to be correct for the sake of argument, that doesn’t have the

consequence that the EPA reports “cannot be relied upon” for any purpose. That is a matter to be

considered in analysing the totality of evidence and submissions, not a legitimate preliminary

objection.

Issue 32

194. Issue 32 is :

“Is the applicant precluded from relying on any ultimate site-specific impacts because an

allegation that the 5th NAP has authorised or is unlawfully authorising interventions into any

and/or all protected European Sites is not pleaded with necessary specificity and

particularity? PLEADING-TYPE ISSUE”

195. The applicant submitted:

“The Applicant repeats its answer to Issue 19. The Applicant relied and was entitled to rely

on the State’s identification in its NIS that the implementation of the NAP would have

potentially significant impacts on Natura 2000 sites. The legal issue raised by the Applicant

is whether the AA precluded the acknowledged potential impacts to the requisite degree of

certainty.”

196. The State submitted:

“The Respondents submit that the Applicant is so precluded, for the reasons already set out

above.”

197. My decision on this issue is that this complaint has not been made out. Thus far at any rate

the applicant’s pleaded complaint is acceptably clear. The vagueness of the State’s “elaboration” of

this issue lends the cry of preclusion a contrived energy.

Issue 34

198. Issue 34 is:

“Is the applicant’s challenge precluded by the principle that environmental protection and

economic activity are incommensurable values and the choice of by how much one might be

limited to advance the other cannot be assessed by reference to legal standards and

accordingly, it is an inherently political question, not a justiciable one? PLEADING-TYPE

ISSUE”

199. The applicant submitted:

“The Applicant has raised a justiciable issue regarding the adequacy of the AA. That does

not require consideration of non-justiciable issues.

Without prejudice to that, if a validly conducted AA precluded adoption of the NAP under

Article 6(3) Habitats Directive, Article 6(4) does specify an appropriate legal standard. The

State has not established any principle that environmental protection and economic activity

are incommensurable values”

200. The State submitted:

“The Respondents position is that Applicant is precluded from bringing this claim where it

amounts to a non-justiciable merits-based challenge to the level of ambition of the NAP with

respect to environmental protection. This has already been addressed in reply to Question

6.”

201. My decision on this issue is that while the State’s formula sounds reasonable enough, in

context it is just a reformulation of the point that the level of ambition of the NAP is not up for

judicial investigation. That in turn is a reformulation of the basic point, already amply covered in

the issues still to be dealt with, that art. 6(3) of the habitats directive does not require an

examination of the effects of the underlying activities. I don’t see the “political question” issue as

adding anything of substance to that question of interpretation. A related political question issue

arises in relation to the SEA grounds but that can also be addressed in that separate context.

Conclusion on Core Ground 1

202. The implications of the foregoing for Core Ground 1 are essentially that it can proceed as

pleaded, subject to the comments above.

Core ground 2 – alleged breach of art. 4(1) of the water framework directive

203. Core ground 2 provides:

“2. The impugned decision is invalid because the NAP was prepared and published in

breach of Article 4(1) of Directive 2000/60/EC of the European Parliament and of the Council

of 23 October 2000 establishing a framework for Community action in the field of water

policy (the ‘Water Framework Directive’) and/or Article 5 of Directive 2001/42/EC of the

European Parliament and of the Council of 27 June 2001 on the assessment of the effects of

certain plans and programmes on the environment (the ‘SEA Directive’) because the

Respondents did not ensure that the NAP would not cause a deterioration of the status of a

body of surface water or that it would not jeopardise the attainment of good surface water

status or of good ecological potential and good surface water chemical status and/or would

not cause a deterioration of the status of a body of groundwater or would not jeopardise the

attainment of good groundwater status, and/or jeopardise the achievement and/or

maintenance of the standards and objectives for all bodies of surface and groundwater

comprising Protected Areas registered pursuant to Article 6 of the Water Framework

Directive by the date laid down in the Directive or at all, further particulars of which are

contained at Part B below.”

204. This claims a breach of art. 4(1) of the water framework directive and consequentially a

breach of art. 5 of the SEA directive. The SEA argument under this heading is based on the same

logic.

Issues arising under CG2 (Issues 35-48)

Issue 35

205. Issue 35 is:

“Is the applicant precluded from obtaining relief in relation to the WFD by reason of the lack

of any pleaded relief in that regard (the claim being set out in the grounds only)? PLEADING-

TYPE ISSUE”

206. The applicant submitted:

“The objection is misplaced. The relief sought in respect of the WFD is certiorari and the

standard declaratory relief prescribed in the Practice Direction.

The State is not making this plea and leaves it to the 2nd – 6th Notice Parties to address.

While the IFA have identified this issue in its response, the issue is not actually addressed

in the purported response.”

207. The State submitted:

“The Respondents did not plead that the Applicant is precluded from obtaining relief in

relation to the WFD by reason of the lack of any pleaded relief in that regard. This issue

was raised by the Second to Sixth Notice Parties and would more appropriately be addressed

by those Notice Parties.

For the avoidance of doubt, the Respondents reiterate that the Applicant’s claim based on

Article 4(1) of the WFD is misconceived on inter alia the same basis as its claim under Article

6(3) of the Habitats Directive, and the Respondents will rely on the pleading points made

with respect to the Habitats Directive in this context also.

The Respondents’ further submit that the Applicant’s claim with respect to the WFD is also

misconceived, and not properly pleaded, on the basis set out in response to Questions 38 to

41 below.”

208. The IFA submitted:

“The Respondents and Notice Parties have each already made extensive submissions on the

failure by the Applicant to plead adequately, or at all, the points that it later sought to

ventilate in written and/or oral submissions.

Notwithstanding the specific, targeted criticisms of the parties in written submissions, the

Applicant failed to satisfactorily address how it might legitimately seek to advance issues not

pleaded, or inadequately pleaded, in the teeth of the extensive, settled law which runs

against it. The Applicant assumes that pleadings deficiencies can be overcome as a matter

of course, as if absolution for clear failure is simply there for the asking – although absolution

is not sought: rather, it is appears to be assumed. The approach of the Applicant appears to

the effect that its pleadings failures are either not failures at all (which runs entirely contrary

to law), or are of a de minimis / misunderstood variety (such as to fall within the ‘acceptably

clear’ line of permissible consideration). These positions are unavailable to the Applicant

here.

The IFA Parties further note and adopt the response of the ICSMA Notice Party at paragraphs

7 – 11 of its response to the Issues Paper.”

209. My decision on this issue is that the applicant’s response is essentially correct. The relevant

complaint is that the NAP is invalid by reason of non-compliance with the WFD. The remedy sought

is certiorari and appropriate declarations, as envisaged by Practice Direction HC124. That is standard

stuff and is not a problem. No further relief needs to be specifically sought for such a pleaded

challenge. In any event O. 84 makes clear that the court has jurisdiction to grant an unpleaded

relief – provided of course that it comes within the pleaded grounds. In any event the IFA provided

no sufficient elaboration of this objection so it must be dismissed.

Issue 36

210. Issue 36 is:

“Does Article 4(1) of the WFD have the effect that Member States are required – unless a

derogation is granted – to refuse authorisation for an individual project where it may cause

a deterioration of the status of a body of surface water or where it jeopardises the attainment

of good surface water status or of good ecological potential and good surface water chemical

status by the date laid down by the directive – as laid down in the judgment of 1 July 2015,

Bund für Umwelt und Naturschutz Deutschland e.V. v Bundesrepublik Deutschland, C-

461/13, ECLI:EU:C:2015:433 ? APPEARS AGREED”

211. The State submitted:

“The Respondents agree with the dicta of the Court of Justice of the European Union in Case

C-461/13 Bund für Umwelt und Naturschutz Deutschland EU:C:2015:433 (‘Weser’) that

(§51):

‘… Article 4(1)(a)(i) to (iii) of Directive 2000/60 must be interpreted as meaning that

the Member States are required — unless a derogation is granted — to refuse

authorisation for an individual project where it may cause a deterioration of the

status of a body of surface water or where it jeopardises the attainment of good

surface water status or of good ecological potential and good surface water chemical

status by the date laid down by the directive.’ (Emphasis added).

However, for completeness, the Respondents reiterate that the Applicant’s submission that

there is an obligation to assess the compliance of the NAP with Article 4(1) of the WFD is

misconceived, as detailed in §§136 to 142 of the Respondents’ Written Submissions, and in

reply to Question 38 below.”

212. My decision, if that’s the correct term, on this issue is that as the State’s response makes

clear, the proposition set out in the Issue is indeed agreed. The relevance of that proposition to the

case remains up for debate.

Issue 38

213. Issue 38 is:

“Is the applicant precluded from challenging a basic measure for the purposes of art. 11(3)

of the WFD if the challenge is in substance a merits-based challenge to the compliance of

Ireland’s programme of measures with Article 11 WFD? PLEADING-TYPE ISSUE”

214. The applicant submitted:

“The Applicant’s challenge on WFD grounds is that the NAP was required to be assessed

under Article 4 WFD for compliance with the environmental objectives – but was not. This is

based on the terms of Article 4 itself (Ground 28-35); and alternatively on the terms of the

SEA Directive (Ground 36 et seq). The consequences are set out in Ground 42 – ‘In light of

the lack of a lawful assessment of the effects of the NAP on the status of water bodies

concerned, the Minister is precluded from authorising the NAP.’ ( A further ground is raised

regarding unclassified water bodies, to the effect that in the absence of classification (which

did not happen until April 2022) the First Respondent could not have been satisfied that the

NAP would not jeopardise the attainment of good status of these water bodies or cause a

deterioration of status of these water bodies.)

The challenge is about the assessment of the NAP by reference to the WFD.

The Court should address the argument actually made; it should not be dissuaded from

addressing a validly pleaded argument on the basis that a different argument could have

been made, even if the State thinks it would be better placed to defend the alternative

argument.”

215. The State submitted:

“The Applicant is precluded from challenging the NAP based on Article 4(1) WFD, where inter

alia that challenge is in substance a merits-based challenge to the compliance of Ireland’s

programme of measures with Article 11 WFD.

The premise of the Applicant’s argument is that the Respondents were required to assess

the NAP under the Article 4(1) WFD assessment obligation.

Typically, an Article 4(1) assessment is of a specific intervention, such as the construction

of an individual project, that might cause a deterioration in the status of a water body [See,

e.g., Weser, which involved a scheme to deepen various parts of the river Weser; Case C-

301/22 Sweetman EU:C:2023:697, which involved a scheme to abstract a maximum of

4 680 m3 of freshwater per week from a lake via a pipeline, for up to 22 weeks annually

from May to September, with the abstracted freshwater being used to bathe diseased salmon

to rid them of amoebic gill disease and sea lice; Case C-43/10 Nomarchiaki Aftodioikisi

Aitoloakarnanias EU:C:2012:560, which involved a project for the partial diversion of the

upper waters of the river Acheloos to Thessaly; Case C-346/14 European Commission v

Republic of Austria EU:C:2016:322, which involved the construction of a hydropower plant

on the Schwarze Sulm; C-664/15 Protect Natur EU:C:2017:987, which involved an

application for the extension of a permit for a snow-production facility belonging to a ski

resort that includes a reservoir fed by water from the Einsiedlbach, a river located in Austria;

Case C-535/18 IL EU:C:2020:391, which involved an administrative decision granting

permission for a major road project.]. Here, the Applicant argues that the NAP required an

assessment under Article 4(1) WFD, as to whether the measures put in place by the NAP

are sufficient to protect against water pollution caused by nitrates from agricultural sources,

so as to ensure that there will be no deterioration in the status of any water body [See, e.g.,

Applicant’s Written Submissions, §118. See also §§106, 119, 122–127.].

The Applicant appears to envisage this as being a separate assessment, from the assessment

by Member States as to the measures required to comply with the objectives of the Nitrates

Directive (which assessment is not challenged in these proceedings), and from the

assessment by Member States under Article 11 WFD of the programme of measures required

to achieve the objectives of the WFD (which assessment is also not challenged in these

proceedings).

This is fundamentally misconceived, as detailed below, and in reply to Questions 39, 40 and

41. First, the Applicant’s argument assumes that Article 4(1) WFD requires an assessment of

the sufficiency of individual protective measures adopted as part of the programme of

measures to meet the objectives of Article 4(1), in addition to the global assessment of the

sufficiency of those measures to meet those objectives that is required under Article 11 WFD.

This is entirely contrary to the framework established by the WFD, and has no textual

support in the Directive.

Article 4(1) WFD and Article 11 WFD have clear and distinct functions under the WFD. Article

4(1) WFD sets out the objectives of the WFD that must be met by Member States. It is

entitled ‘Environmental objectives’, and it provides: ‘In making operational the programmes

of measures specified in the river basin management plans’ Member States ‘shall …

implement the necessary measures to prevent deterioration of the status of’ water bodies.

Article 4(1) therefore identifies the objectives of the WFD. It further places an obligation on

Member States to operationalise the programme of measures, and to ensure that the

programme of measures will achieve the objectives of the WFD. That obligation applies at

every stage of implementation, and where it becomes clear, at any stage, that those

objectives will not be achieved by the programme of measures, additional action will be

required.

However, while Article 4 WFD sets out the objectives to be achieved by the programme of

measures, and requires that Member State ensure that those objectives are achieved, it

does not determine the protective measures that Members States are required to put in

place, or address how the sufficiency of those measures to meet the objectives of Article 4

WFD is to be assessed, or how the programme of measures should be monitored, and

supplemented where necessary, to ensure those objectives are achieved.

Rather, those matters are addressed under Article 11 WFD, and are based on a global

assessment of the sufficiency of the programme of measures, rather than an individual

assessment of each measure that form part of that programme.

In that respect, Article 11(1) requires Member States to put in place a programme of

measures, in order to achieve the objectives of the WFD established in Article 4:

‘1. Each Member State shall ensure the establishment for each river basin district,

or for the part of an international river basin district within its territory, of a

programme of measures, taking account of the results of the analyses required

under Article 5, in order to achieve the objectives established under Article 4. …’

Article 11(2) provides that Member States are required to include specified ‘basic’ measures

in the programme of measures, and may also be required to include ‘supplementary’

measures, if those supplementary measures are necessary to achieve the objectives of the

WFD established in Article 4.

Article 11(3) sets out the eleven basic measures that Member States are in all cases required

to include in the programme of measures. The first of those basic measures is: ‘those

measures required to implement Community legislation for the protection of water, including

measures required under the legislation specified in Article 10 and in part A of Annex VI’.

The Nitrates Directive is referenced in both Article 10 WFD and part A of Annex VI WFD. The

State is therefore required by Article 11(2) and 11(3) WFD to include the NAP, being the

‘measure required’ under the Nitrates Directive, in the programme of measures. However,

the NAP is only one part, of one of the eleven basic measures, required to be put in place to

meet the Article 4(1) objectives.

Article 11(4) provides for supplementary measures, that may be required to meet the

objectives of Article 4(1), in addition to the basic measures. Part B of Annex VI sets out a

broad range of supplementary measures that Member States may choose to adopt as part

of the programme of measures required under Article 11(4). Where supplementary

measures are required to meet the objectives of Article 4(1), Member States must include

them in the programme of measures.

Article 11(5) then addresses the obligations on Member States where it appears that the

objectives of Article 4 will not be met with respect to any body of water:

‘5. Where monitoring or other data indicate that the objectives set under Article 4

for the body of water are unlikely to be achieved, the Member State shall ensure

that:

- the causes of the possible failure are investigated,

- relevant permits and authorisations are examined and reviewed as

appropriate,

- the monitoring programmes are reviewed and adjusted as appropriate, and

- additional measures as may be necessary in order to achieve those

objectives are established, including, as appropriate, the establishment of

stricter environmental quality standards following the procedures laid down

in Annex V.

Where those causes are the result of circumstances of natural cause or force majeure

which are exceptional and could not reasonably have been foreseen, in particular

extreme floods and prolonged droughts, the Member State may determine that

additional measures are not practicable, subject to Article 4(6)’.

It is clear that this procedure under Article 11(5) is intended to include a global assessment,

of all causes of the possible failure, with a reassessment and review of: (i) any relevant

permits and authorisations, (ii) the monitoring programme, and (iii) all relevant aspects of

the programme of measures in place. If supplemental measures, over and above the

measures already in place, are required, they must be implemented.

It should be emphasised that the Applicant has not pleaded any failure to put in place a

programme of measures sufficient to achieve the objectives of the WFD, as required by

Article 11(1) to (4) WFD. It has not argued that further supplementary measures in

additional to the basic measures are required to meet those objectives under Article 11(5)

WFD. All that is alleged is a failure to carry out a separate assessment of the NAP individually

under Article 4(1) WFD.

Equally, the Applicant has not identified any water body for which it alleges the objectives

set under Article 4 are unlikely to be achieved, so as to trigger an obligation under Article

11(5). Nor has the Applicant alleged any failure by the Respondents under Article 11(5) to

take action where there is such evidence.

Instead, the Applicant has brought a technical, and wholly misconceived, claim that a

separate assessment obligation arises under Article 4(1), whereby it must be established,

prior to adopting the NAP, that the NAP individually will be sufficient to meet the objectives

of Article 4(1).

There is no basis for that claim. Article 4 and Article 11 when read together make clear that

the WFD does not require any separate assessment process to determine whether each

individual protective measure is sufficient to meet the Article 4(1) objectives; that

assessment is carried out under Article 11 at a programmatic level, having regard to the

suite of measures globally.

Further, and fundamentally, the WFD does not impose any obligation that an individual basic

measure, alone, must be sufficient to meet the objectives in Article 4(1).

All that is required by the WFD with respect to the adoption of the NAP, therefore, is that

the State adopt the measures necessary to implement the Nitrates Directive, which means

adopting an action programme compliant with the Nitrates Directive.

That is not to say there is no obligation on Member States to assess the sufficiency of the

measures put in place by the NAP on an individual basis. However, as addressed below,

that obligation arises under the Nitrates Directive (and in particular Article 5(5) of the

Nitrates Directive), and it is to ensure that the objectives of the Nitrates Directive are met.

The Applicant has not pleaded any infringement by the State of that obligation.

There is no basis for an assumption that two obligations arise under the WFD with respect

to the assessment of the sufficiency of protective measures – one in Article 11 and one in

Article 4 – or that any obligation to assess those measures individually arises for the

purposes of the WFD.

The obligation proposed by the Applicant, whereby the NAP could not be adopted unless it

were established with scientific certainty, following a separate assessment under Article

4(1), that it alone would prevent the deterioration of the status of any water body in Ireland,

is therefore entirely incoherent with the framework established by the WFD, and significantly

exceeds any obligation on the State under the WFD.

Second, the Applicant seeks to evade that fundamental difficulty by arguing that the State

could have regard to other measures when carrying out an assessment of the NAP under

Article 4(1). At paragraph 121 of the Applicant’s Written Submissions, it submits:

Ԥ121 The other point the State makes is that there is allegedly no obligation for a

‘separate assessment’ for the purposes of the WFD as it is simply one of many

measures relied upon by the State to achieve the objectives of the WFD (§§78-79).

Leaving aside the fact that the State’s own RBMP identifies the NAP as the ‘Principal

Action’, there is nothing to prevent the State conducting an assessment of the

implementation of the NAP in tandem with any other additional measures and

schemes in order to assess whether the implementation of the NAP is consistent with

Article 4(1) of the WFD. The WFD does not provide for a format in which an Article

4(1) assessment should take place but such assessment are completed as a matter

of routine in, for example, many planning cases. The Applicant is agnostic as to what

form the assessment should take - but there must nevertheless be an assessment,

to ensure that the NAP will not lead to a deterioration of the status of a water body

for the purposes of Article 4(1) WFD. ….’

This is misconceived, and ignores the point that the relevant obligation to ensure the global

sufficiency of measures to meet the objectives of the WFD is expressly addressed, in Article

11. The Applicant in effect argues that an assessment under Article 11 of the sufficiency of

the measures in place must take place every time any individual basic measure is adopted

as part of the programme of measures. There is no basis for that submission in the Directive,

which sets out a clear and comprehensive framework for the assessment of the adequacy of

protective measures put in place under Article 11, and includes no such requirements.

Third, the Weser jurisprudence does not alter that conclusion.

The obligation that arises under Weser relates to individual interventions with the capacity

to cause a deterioration in the status of a water body and thereby result in a failure to

achieve the objectives of Article 4(1), which are not otherwise addressed in the WFD. It

does not relate to the assessment of the sufficiency of measures to achieve the objectives

of Article 4(1) – either individually or collectively – that is addressed comprehensively in

Article 11.

The Applicant has identified no dicta in Weser or any other case that would justify implying

– from the obligation to assess the potential harmful effects of individual projects with

respect to which the WFD is silent – an obligation of assessment of the sufficiency of

individual protective measures adopted as part of the programme of measures, with respect

to which the WFD sets out a clear and detailed framework.

It is clear, having regard to the above, that the purported obligation under Article 4(1) relied

on by the Applicant does not arise. Rather, the claim pleaded by the Applicant is a

misconceived merit-based challenge to the Respondents compliance with Article 11 WFD,

and must be rejected on that basis.”

216. My decision on this issue is as follows. First and foremost, it is not totally correct to claim

that the applicant did not plead reliance on art. 11 of the WFD. Sub-ground 35 provides:

“It is clear that no lawful assessment has been undertaken for the purposes of Article 4 of

the WFD to establish that the implementation of the NAP required under Article 11 of the

Directive and the associated Derogation under the Nitrates Directive which it facilitates,

(which the Respondents elected to apply for and implement and thus forms a Measure

subject to Article 11 of the Directive) will not result in deterioration of the status of the body

or bodies of water concerned or to jeopardise the attainment of good surface water status

or good ground water status. Accordingly, the First Respondent was acting ultra vires in

adopting SI 113 of 2022 and the NAP.”

217. Relatedly, the applicant also pleaded that art. 4 was relevant to SEA assessment, which is

an alternative route to consideration even if not being more elaborate in referring to art. 11 is

somehow preclusive. Sub-ground 36 reads:

“36. Further and in the alternative where a plan or programme is adopted using the SEA

procedure, the assessment of whether or not the plan or programme may cause such

deterioration or otherwise jeopardise the attainment of the requirements of Article 4 of the

WFD must be included in the environmental assessment required by the SEA Directive.”

218. This is then elaborated upon:

“38. The Environmental Report must therefore contain the data that is necessary in order

to assess the effects of the NAP on the status of the bodies of water concerned in the light

of the criteria and requirements laid down in, inter alia, Article 4(1) of the WFD. The

documents in the file that are made available to the relevant public must make it possible

for the public to obtain an accurate impression of the impact that the NAP will have on the

status of the bodies of water concerned in order for the public to be able to verify compliance

with the obligations arising from, inter alia, Article 4 of Directive 2000/60. In particular, the

data provided must be such as to show whether, having regard to the criteria established

by the WFD, the NAP is liable to result in a deterioration of a body of water. This includes

Protected Areas which includes Natura 2000 sites vulnerable to nitrates pollution, and all

water bodies in the State which have been designated as a Nitrate Vulnerable Zone under

the Nitrates Directive.

39. In the present case it is the Applicant's case that the First Respondent has failed to

satisfy this requirement since the documents that have been made available to the public

do not contain the necessary information for members of the public to verify compliance

with the obligations arising from Article 4 of the WFD.

40. For the same reasons as identified in Core Ground 1, none of the measures identified

in the SEA Statement meet the standard of scientific certainty either individually or

collectively as required for the purposes of Article 4 of the WFD. Furthermore, there is no

evaluation or assessment of the efficacy of these measures individually or at all in order to

allow the Minister to be able to verify compliance with the obligations arising from, inter alia,

Article 4 of the WFD.

41. In this case the Minister has breached Article 5 of the SEA Directive by compiling an

inadequate environmental report that fails to provide the necessary data to assess the

effects of the NAP on the status of the bodies of water concerned in the light of the criteria

and requirements laid down in, inter alia, Article 4(1) of the WFD. In particular the reliance

on unidentified or yet to be defined mitigation measures or scientific analysis makes this

assessment impossible.”

219. There is a third leg to the art. 4 argument as follows:

“43. Further and in the further alternative, the Respondents are precluded from granting

permission for the NAP which has the potential to affect all, or at the very least a significant

number of, waterbodies in the jurisdiction, including all the unclassified water bodies at the

time of the adoption or approval of the decision. In the absence of those water bodies being

classified prior to the mass designation of unclassified water bodies by the EPA on 22nd April

2022, the First Respondent could not have been satisfied that the project will not jeopardise

the attainment of good status of these water bodies or cause a deterioration of status of

these water bodies. In this regard the Applicant relies on the finding of fact that the NAP has

the potential to potentially affect all Natura 2000 sites, which are protected under Article

4(1)(c) of the WFD.”

220. This overlaps with the current reference to the CJEU in C-301/22 Sweetman.

221. Separately, calling the challenge “merits-based” doesn’t necessarily determine the issue.

The obligation to prevent deterioration of water quality is set out in art. 4(1)(a)(i) and (b)(i):

“Article 4

Environmental objectives

1. In making operational the programmes of measures specified in the river basin

management plans:

(a) for surface waters

(i) Member States shall implement the necessary measures to prevent deterioration of the

status of all bodies of surface water, subject to the application of paragraphs 6 and 7 and

without prejudice to paragraph 8;

(ii) Member States shall protect, enhance and restore all bodies of surface water, subject to

the application of subparagraph (iii) for artificial and heavily modified bodies of water, with

the aim of achieving good surface water status at the latest 15 years after the date of entry

into force of this Directive, in accordance with the provisions laid down in Annex V, subject

to the application of extensions determined in accordance with paragraph 4 and to the

application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;

(iii) Member States shall protect and enhance all artificial and heavily modified bodies of

water, with the aim of achieving good ecological potential and good surface water chemical

status at the latest 15 years from the date of entry into force of this Directive, in accordance

with the provisions laid down in Annex V, subject to the application of extensions determined

in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without

prejudice to paragraph 8;

(iv) Member States shall implement the necessary measures in accordance with Article 16(1)

and (8), with the aim of progressively reducing pollution from priority substances and

ceasing or phasing out emissions, discharges and losses of priority hazardous substances

without prejudice to the relevant international agreements referred to in Article 1 for the

parties concerned;

(b) for groundwater

(i) Member States shall implement the measures necessary to prevent or limit the input of

pollutants into groundwater and to prevent the deterioration of the status of all bodies of

groundwater, subject to the application of paragraphs 6 and 7 and without prejudice to

paragraph 8 of this Article and subject to the application of Article 11(3)(j);

(ii) Member States shall protect, enhance and restore all bodies of groundwater, ensure a

balance between abstraction and recharge of groundwater, with the aim of achieving good

groundwater status at the latest 15 years after the date of entry into force of this Directive,

in accordance with the provisions laid down in Annex V, subject to the application of

extensions determined in accordance with paragraph 4 and to the application of paragraphs

5, 6 and 7 without prejudice to paragraph 8 of this Article and subject to the application of

Article 11(3)(j);

(iii) Member States shall implement the measures necessary to reverse any significant and

sustained upward trend in the concentration of any pollutant resulting from the impact of

human activity in order progressively to reduce pollution of groundwater.

Measures to achieve trend reversal shall be implemented in accordance with paragraphs 2,

4 and 5 of Article 17, taking into account the applicable standards set out in relevant

Community legislation, subject to the application of paragraphs 6 and 7 and without

prejudice to paragraph 8;

(c) for protected areas

Member States shall achieve compliance with any standards and objectives at the latest 15

years after the date of entry into force of this Directive, unless otherwise specified in the

Community legislation under which the individual protected areas have been established.

As regards Mayotte as an outermost region within the meaning of Article 349 of the Treaty

on the Functioning of the European Union (hereinafter ‘Mayotte’), the time limit referred to

in points (a)(ii), (a)(iii), (b)(ii) and (c) shall be 22 December 2021.”

222. Yes in one sense the question of whether a step causes a deterioration in water quality is a

merits issue. But the question of whether the step has been lawfully assessed in that regard is a

procedural issue and thus the proper subject of judicial review.

223. So what is the actual issue here? Insofar as one can make sense of it (which in my case at

the moment may not be very far – but fortunately the parties are going to come back in a later

module with further submissions), the applicant seems to be making the following independent

points:

(i) art. 4 requires assessment of each proposed measure to be adopted for the purposes of art.

11 to ensure individual compliance with art. 4 as it impacts on each and every potential

water body affected, and this didn’t happen;

(ii) the SEA directive also requires assessment of compliance with art. 4 in a similar manner;

and

(iii) in any event, compliance with art. 4 could not have been established until the status of all

water bodies was assessed, which wasn’t the case at the material time.

224. The State seems to be saying primarily that:

(i) art. 4 does not require an assessment of the impact of art. 11 measures at the level of their

impact on each individual project;

(ii) rather art. 11 requires an overall assessment of the package of measures to be adopted for

the purpose of the WFD to ensure that the total package complies with art. 4;

(iii) SEA works similarly; and

(iv) assessment does not depend on the status of every water body being established.

225. This all seems a substantive EU law issue which can be addressed in a future Module rather

than an issue to be decided as a preliminary objection. To assist this process I have reformulated

issue 37 in order to add the various substance-related issues so that they can all be addressed and

replied to in detail. The point about unassigned water bodies is already covered in Issue 46. I am

also proposing to concentrate SEA issues under the heading of core ground 3 so have slightly re-

ordered the issues accordingly.

Issue 39

226. Issue 39 is:

“Is the applicant precluded from challenging a basic measure for the purposes of art. 11(3)

of the WFD if the challenge is in substance an unpleaded challenge to the compliance of

Ireland’s programme of measures with Article 11 WFD? PLEADING-TYPE ISSUE”

227. The applicant submitted:

“The Applicant relies on its response for Issue 38.”

228. The State submitted:

“The Respondents’ primary objection to the Applicant’s claim based on the WFD is that the

Applicant’s challenge under Article 4(1) is misconceived, for the reasons set out in reply to

Question 38.

However, in the alternative, the Respondent also maintains that the Applicant is precluded

from challenging the NAP under the WFD, where that challenge is in substance an unpleaded

challenge to the compliance of Ireland’s programme of measures with Article 11 WFD.

The Applicant has failed to plead any challenge to the compliance of Ireland’s programme of

measures with Article 11 WFD, and it cannot mount a collateral challenge in that respect, by

way of a challenge to the NAP alone, and based on a misconception with respect to the effect

of Article 4(1) WFD.

The Respondents rely, in this context, on the same jurisprudence with respect to the

importance of pleading judicial review proceedings with particularity, as in their reply to

Question 6.”

229. My decision on this issue is that any point under this heading will be addressed in dealing

with the merits of the reformulated issue 37, so no preclusion arises at this point.

Issue 40

230. Issue 40 is:

“Is the applicant precluded from challenging a basic measure for the purposes of art. 11(3)

of the WFD if the challenge is in substance an unpleaded challenge to the compliance of the

NAP with Article 5(5) of the Nitrates Directive? PLEADING-TYPE ISSUE”

231. The applicant submitted:

“The Applicant relies on its response for Issue 38.”

232. The State submitted:

“The Applicant is precluded from challenging the NAP under Article 4(1) WFD, where that

challenge is in substance an unpleaded challenge to the compliance of the NAP with Article

5(5) of the Nitrates Directive.

Adopting an action programme under Article 5(1), that includes the measures specified in

Article 5(4), is not all that is required under the Nitrates Directive. Rather, Article 5(5)

places an obligation on Member States to include in action programmes such measures as

are ‘sufficient for achieving the objectives specified in Article 1’.

Article 1 of the Nitrates Directive sets out the following objectives:

‘This Directive has the objective of:

— reducing water pollution caused or induced by nitrates from agricultural sources

and

— preventing further such pollution.’

To comply with the Nitrates Directive, the measures in the NAP must therefore be sufficient

to ensure that Ireland will achieve the objectives of reducing existing water pollution caused

by nitrates and preventing further water pollution caused by nitrates. If at any stage it

becomes clear that the measures in the NAP are not sufficient to achieve those objectives,

Member States are required to adopt additional measures as part of their action plan. This

is confirmed in Case C-197/18 Wasserleitungsverband Nördliches Burgenland and Others

EU:C:2019:824, at §§54–56; 70–72.

The Applicant has not challenged the compliance of the NAP (or the Derogation) with

Ireland’s obligations under the Nitrates Directive generally, or with the requirements of

Article 5(5) of the Nitrates Directive or Annex II(b) of the Nitrates Directive specifically. It

cannot, in those circumstances, now seek to cast doubt on those matters for the purposes

of these proceedings.

This case must therefore be decided on the assumption that:

i. The measures introduced by the NAP (including the derogation) are sufficient to

reduce water pollution already caused or induced by nitrates from agricultural

sources; and,

ii. The measures introduced by the NAP (including the derogation) are sufficient to

prevent further water pollution caused or induced by nitrates from agricultural

sources.

It is useful, in that context, to consider the precise breach alleged in Core Ground 2. The

Applicant alleges a breach of article 4(1) WFD where:

‘the Respondents did not ensure that the NAP would not cause a deterioration of the

status of a body of [] water or that it would not jeopardise the attainment of good

[] water status….’.

The Applicant has not pleaded any basis on which it could be alleged that the NAP could

cause a deterioration of the status of a body of water, or jeopardise the attainment of good

water status, without casting doubt on the NAP’s compliance with the obligation under Article

5(5) to include sufficient measures in the NAP to ensure compliance with the objectives of

the Nitrates Directive.

In that context, it is clear that the Applicant’s challenge based on Article 4(1) WFD (in

addition to being wholly misconceived and amounting to a collateral challenge to the

compliance of Ireland’s programme of measures with Article 11 WFD) amounts to a collateral

challenge to Ireland’s compliance with Article 5 of the Nitrates Directive, and in particular

Article 5(5), when adopting the NAP.

The Applicant is not entitled to cast doubt on Ireland’s compliance with Article 5 of the

Nitrates Directive when adopting the NAP, where it has not pleaded any such challenge, and

the NAP is entitled to a presumption of legality in that respect.

Core Ground 2 therefore amounts to a collateral challenge to the compliance of the NAP with

the requirements of the Nitrates Directive – and in particular Article 5(5) – which challenge

has not been pleaded. It must be rejected on that basis also.”

233. My decision on this issue is as follows. First of all let’s attempt a simplified version of the

State’s argument:

(i) an NAP must comply with art. 5(1) of the nitrates directive including the requirement in art.

5(4) to take measures in Annex III and the requirement in art. 5(5) to take additional

measures if necessary;

(ii) art. 5(1) in turn refers back to the objectives in art. 1(1) of the directive which include the

prevention of pollution;

(iii) the applicant hasn’t challenged the compliance of the NAP with art. 5(1);

(iv) therefore it can’t challenge the compliance of the plan with art 1(1);

(v) therefore it can’t make the point that the NAP fails to take all necessary measures to prevent

pollution; and

(vi) therefore it can’t make the same argument by pleading breach of art. 4(1) of the WFD.

234. Sounds good. But the fundamental fallacy in the State’s argument is that merely because

act or omission X has the consequence of contravening two legal requirements, A and B, an applicant

is not precluded from pursuing a pleaded challenge in respect of requirement A merely because she

has not also pleaded point B. An applicant is not legally prohibited from advancing its pleaded case

merely because there were other legal consequences it could have argued for based on the same

contentions. Sure, the case proceeds on the basis that the NAP is not contrary to the nitrates

directive, but not as an absolute proposition - only insofar as that concerns distinct issues not already

covered in the actual pleaded case. The fact that any pleaded breach could also have been pleaded

as a breach of the nitrates directive doesn’t mean that it can’t be pursued.

235. The State’s submission is ultimately as unfounded as saying that a prisoner cannot apply

under Article 40.4 of the Constitution if she doesn’t also apply under the Habeas Corpus Act 1781,

and that failure to apply under the latter legislation must be taken as a concession that the detention

is lawful. Considering that analogous argument could illustrate a number of the permeating

misconceptions across the State’s submissions. One can only imagine the thundering rhetoric by a

respondent to a habeas corpus application: “The applicant is precluded from challenging the legality

of detention for the purposes of Article 40.4 because the challenge is in substance an unpleaded

challenge under the 1781 Act; such a challenge constitutes an impermissible merits-based challenge

to the compliance by the respondent with the requirements of the 1781 Act and an impermissible

unpleaded challenge to the latter ... ” and so on.

Issue 41

236. Issue 41 is:

“Is the applicant precluded from challenging a basic measure for the purposes of art. 11(3)

of the WFD if the challenge is in substance an unpleaded argument that farm-level activities

require assessment under Article 4(1)? PLEADING-TYPE ISSUE”

237. The applicant submitted:

“The Applicant relies on its response for Issue 38.”

238. The State submitted:

“The Respondents submit that the Applicant is so precluded.

It appears that the Applicant may be seeking to avoid the fundamental difficulties with its

case under Article 4(1) WFD, by relying, again, on an alleged necessity to assess individual

farm-level activities.

The premise of the Applicant’s argument in that respect is that farm-level agricultural

activities require assessment under Article 4(1) WFD, and therefore that the NAP requires

individual assessment under Article 4(1). Insofar as this is the intent, it is not pleaded, and

is misconceived, and the Respondents submit that it must be rejected by this Court.”

239. My decision on this issue is that this complaint is really consequential on the State’s basic

point that an individual measure under art. 11 WFD does not need to be assessed for compliance

with art. 4, only the collective bundle. Either that is correct or not – if correct, this objection doesn’t

really provide an answer to that. We will deal with that point’s correctness or otherwise as a matter

of substantivate EU law in due course if and when we get to Module III.

Issue 42

240. Issue 42 is:

“Should it be presumed in the absence of any challenge to the compliance of the NAP with

the nitrates directive that the NAP complies with that directive? PLEADING-TYPE ISSUE”

241. The applicant submitted:

“In the Applicant’s submission, issue 42 is not relevant to the case made on WFD grounds.

Compliance (presumed or otherwise) with the Nitrates Directive does not address the

absence of the necessary assessments under the WFD or the difficulties posed the absence

of classification.”

242. The State submitted:

“It is the Respondent’s position that in the absence of any challenge to the compliance of

the NAP with the Nitrates Directive, it should be presumed that the NAP complies with the

Nitrates Directive on the basis of the presumption of legality.

The Respondents rely on the dicta of Humphreys J in N.P.B.K. (D.R.C.) v The International

Protection Appeals Tribunal & M.G. I. (D.R.C.) v The International Protection Appeals

Tribunal [2020] IEHC 450, in which the Court referred (§7(i)) approvingly of the dicta of

Finlay P (as he then was) in In re Comhaltas Ceoltóirí Éireann (Unreported, High Court, 5th

December, 1977) and per Keane J. (as he then was), in Campus Oil v. Minister for Industry

and Energy (No. 2) [1983] I.R. 88, p. 102 and stated that ‘there is a presumption of validity

for administrative decisions’.

This must apply here also. Where the Applicant has not challenged the compliance of the

NAP with the Nitrates Directive, the legality of the NAP in that respect must be assumed,

and the Applicant is not entitled to cast doubt on that compliance absent a pleaded case in

that respect.”

243. The ICMSA submission was:

“The ICMSA also expressly notes, and endorses, the State Respondents reference under

Issue 42, on page 43 to case law on the presumption of validity, including Humphreys J’s

reference in N.P.B.K. (D.R.C.) v International Protection Appeals Tribunal and M.G. I.

(D.R.C.) v International Protection Appeals Tribunal [2020] IEHC 450, to the dicta of Finlay

P (as he then was) in Re Comhaltas Ceoltóirí Éireann (unreported, High Court, 5th December,

1977) and per Keane J. (as he then was), in Campus Oil v. Minister for Industry and Energy

(No. 2) [1983] I.R. 88, at p.102 to the effect that ‘there is a presumption of validity for

administrative decisions’.

To these, the ICMSA would merely add reference to the dicta of O’Donnell J. (as he then

was), in Cullen v Wicklow County Manager [2011] 1 IR 152 at §19 as follows: ‘The difficulty

is that invalidity is a relative and not an absolute concept, and is furthermore dependent

upon court determination - something which is by definition not available to a county

manager when he or she receives a s. 4 resolution. As Lord Radcliffe perceptively observed,

in Smith v. East Elloe Rural District Council [1956] A.C. 736 at pp. 769 to 770 an act ‘bears

no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law

to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain

as effective for its ostensible purpose as the most impeccable of orders’. Similarly Craig,

Administrative Law (1983) at p. 390 observes, ‘it is difficult to see how, if there was no

challenge … it would be possible to say that the decision was ultra vires and a nullity at all’.

The position has now been reached where it may be said that an invalid act is an act which

a court will declare to be invalid. As Professor Wade observed (see Lewis, Judicial 5 Remedies

in Public Law (3rd ed., Sweet & Maxwell, 2004) at p. 187), ‘… the truth of the matter is that

the court will invalidate an order only if the right remedy is sought by the right person in the

right proceedings and circumstances’ and, it might be added, at the right time. Thus it has

been observed by Lewis in Judicial Remedies in Public Law at p. 187, ‘Nullifying is a

description of what the courts do when invalidity is properly established and the courts

consider it appropriate to intervene’.”.

244. My decision on this issue is that this is essentially a reformulation of a point already

addressed, and the previous answer applies. The ICMSA is absolutely correct that nullity is not an

absolute concept, but that can be addressed at the remedy stage if we ever get there.

Issue 43

245. Issue 43 is:

“Is the applicant precluded from challenging an NAP that (on the foregoing hypothesis)

complies with the requirements of the Nitrates Directive on the basis that such an NAP could

never cause a deterioration in the status of a water body? PLEADING-TYPE ISSUE”

246. The applicant submitted:

“No - compliance (presumed or otherwise) with the Nitrates Directive does not address the

absence of the necessary assessments under the WFD directive or the difficulties posed the

absence of classification.”

247. The State submitted:

“The Respondents submit that the Applicant is precluded from challenging an NAP that

complies with the requirements of the Nitrates Directive, on any basis that would call into

question its compliance with the Nitrates Directive.

A properly pleaded case with respect to compliance with a justiciable benchmark other than

the Nitrates Directive, and that did not constitute a collateral challenge to its compliance

with the Nitrates Directive, would not be precluded.

However, the Applicant’s case as pleaded under the Habitats Directive and the WFD does

constitute a collateral challenge to the compliance of the NAP with the Nitrates Directive,

and therefore must be rejected.”

248. My decision on this issue is that the issue is a roundabout way of raising the argument that

any consideration of art. 4 in the context of an NAP (if such be required) should only relate to the

allegedly protective measures in the NAP rather than to the underlying agricultural activities thereby

regulated. That is going to be separately covered in the reworded issue paper for the substantive

EU law module, subject to Module II.

Conclusion on Core Ground 2

249. The implications of the foregoing for Core Ground 2 are that that ground can proceed subject

to the foregoing comments.

Core ground 3 - alleged breach of arts. 3, 5 and 10 of the SEA directive

250. Core ground 3 claims various inadequacies in the assessment for the purpose of the SEA

directive:

“3. The decision to prepare and publish the NAP is invalid because the NAP was

authorised in breach of Articles 3(1), 5(1), 10 of the SEA Directive without carrying out a

lawful environmental assessment in accordance with Articles 4 to 9 of the SEA Directive. and

or the transposing provisions in the SEA Regulations 2004 (S.I. 436 of 2004), further

particulars of which are contained at Part B below.”

Issues arising under CG3 (Issues 49-68)

Issue 49

251. Issue 49 is:

“Is the applicant precluded from obtaining relief in relation to SEA by reason of the lack of

any pleaded relief in that regard (the claim being set out in the grounds only)? PLEADING-

TYPE ISSUE”

252. The applicant submitted:

“The objection is misplaced. The relief sought in respect of SEA is certiorari and the standard

declaratory relief prescribed in the Practice Direction.

The State is not making this plea and leaves it to the 2nd – 6th Notice Parties to address.

While the IFA have identified this issue in its response, the issue is not actually addressed

in the purported response.”

253. The State submitted:

“The Respondents did not plead that the Applicant is precluded from obtaining relief in

relation to SEA by reason of the lack of any pleaded relief in that regard. This issue was

raised by the Second to Sixth Notice Parties and would more appropriately be addressed by

those Notice Parties.

For the avoidance of doubt, the Respondents do not accept that the claim based on the SEA

Directive is adequately pleaded, as addressed further below.”

254. The IFA submitted:

“The IFA Notice Parties repeat and rely on the submission above mutatis mutandis.” This

seems to be a reference primarily to the submission under issue 35.

255. My decision on this issue is that the same reasons apply as set out earlier in relation to a

corresponding objection – the answer is also No.

Issue 50

256. Issue 50 is:

“Is the NAP a plan or programme for the purposes of the SEA directive? APPEARS AGREED”

257. The State submitted:

“The Respondents have not put the application of the SEA Directive to the NAP at issue in

these proceedings, and do not seek to do so now.”

258. My decision, if that’s the word, on this issue is that it is clear that the case must proceed on

the basis set out in the Issue.

Issue 51

259. Issue 51 is:

“Does the NAP therefore require SEA? APPEARS AGREED”

260. The State submitted:

“The Respondents have not pleaded that the NAP did not require SEA, and do not seek to

make that argument now.”

261. My decision on this issue is that again the case proceeds on the basis that SEA was required.

Issue 54

262. Issue 54 is:

“Is the applicant precluded from advancing the overall complaint under the SEA Directive

because it is inadequately pleaded? PLEADING-TYPE ISSUE”

263. The applicant submitted:

“The Grounds are pleaded to the requisite standard. The State response to this issue does

not contain anything specific to address.”

264. The State submitted:

“The Respondents submit that the Applicant is so precluded, where each of the pleas raised

under the SEA Core Grounds fails to meet the standard required by Order 84 Rule 20(3) of

the RSC, as applied by the consistent case-law of this Court, where those pleas fail to ‘state

precisely each such ground, giving particulars where appropriate, and identify in respect of

each ground the facts or matters relied upon as supporting that ground’.

The Respondents will rely on the same jurisprudence, with respect to the importance of

properly pleading judicial review proceedings, as it relies on for the purposes of its reply to

Question 6.

The basis on which each of the pleas raised by the Applicant with respect to the SEA Directive

does not meet the requirements of that jurisprudence has already been set out in the

Respondents’ legal submissions. The Respondents continue to rely on those submissions.”

265. My decision on this issue is that while the next issue is at least a bit more specific, this

particular objection is vague and unparticularised, and like other passages in the State’s submissions

is a sort of single transferrable grumble that could be comfortably launched by any respondent in

any case regardless of the pleadings (that isn’t a to-do suggestion for opposing parties, by the way).

Under the present heading, and without prejudice to more specific objections dealt with elsewhere,

the State has not made out a case that the applicant’s point is unacceptably clear. One could

perhaps conceivably be forgiven for thinking that if vagueness by applicants is unhelpful, vagueness

by opposing parties in their objections is equally unhelpful if not at times more so, depending on the

amount of unnecessary work thereby created for the court.

Issue 55

266. Issue 55 is:

“Is the applicant precluded from challenging the particular complaint regarding the

assessment of alternatives by the SEA because that claim is inadequately pleaded?

PLEADING-TYPE ISSUE”

267. The applicant submitted:

“The Grounds are pleaded to the requisite standard. The Applicant is not obliged to explain

in the grounds the meaning of the word ‘comparable’. The applicant identifies the

Commission Guidance as supporting the need for a ‘comparable’ assessment. The shortfall

identified is the absence of detailed description or evaluation of the likely significant

environmental effect of the alternative strategies in the Environmental Report. (While not

decisive, ‘alternatives’ arose in FIE v Government of Ireland (2018 No 391 JR) in similar

terms and in those proceedings the High Court, the Court of Appeal and the Supreme Court

appear to have been able to proceed without any difficulty in understanding the case

raised.)”

268. The State submitted:

“The Respondents submit that the Applicant is so precluded.

The complaint based on the assessment of alternatives is inadequately pleaded, where the

Applicant has not specified with the necessary particularity inter alia: (i) what level of

assessment is required to be considered ‘comparable’, or (ii) which provision in the SEA

Directive substantiates the content of the requirement, or (iii) how the assessment

undertaken in the SEA Environmental Report and the consideration of reasonable

alternatives is alleged to have fallen short of any obligation that is alleged to arise.”

269. My decision on this issue is that in fairness to the State at least there is a little bit more meat

on the bone here. Let’s look at the objection in more detail.

270. The first complaint is lack of specification of “what level of assessment is required to be

considered ‘comparable’”.

271. Sub-ground 57 provides:

“57. Fourthly, the SEA Statement failed to consider, adequately or at all, the alternatives

to the strategic alternative option selected and to subject each of the alternatives to a

commensurate level of analysis. There is no detailed description or evaluation of the likely

significant environmental effects of the alternative strategies in the Environmental Report.

As identified by the Commission Guidance

[https://ec.europa.eu/environment/archives/eia/pdf/030923_sea_guidance.pdf] (2003) (at

§5.12) the Directive makes no distinction between the assessment requirements for the

drafted plan or programme and for the alternatives and the alternatives must be identified,

described and evaluated in a comparable way.”

272. So the State complains that the applicant hasn’t explained what “in a comparable way”

means. To which the answer can only be - is that your best point?

273. The applicant responds generally to this kind of attitude in its submission:

“’Particularise that’ – In Mount Salus Residents v An Bord Pleanála [2023] IEHC 691 Holland

J referred at §94 to a number of decisions of Humphreys J and observed ‘The Court will, of

course, expect that State bodies exercise proper judgment in pleading a want of particulars

– as opposed to pleading it as a knee-jerk reaction to every case and as to all grounds of

challenge. A certain impatience in this regard is perhaps to be detected in the refrain of

Humphreys J that ‘The game of ‘particularise that’ can be played forever’, ‘… the cry of

‘particularise that’ can echo indefinitely’ and ‘the opposing cry of ‘particularise that’ has to

stop when it is acceptably clear what the point being made.’ However, I need not consider

here how a proper restraint by respondents can be ensured while vindicating the obligation

on applicants to provide particulars.”

274. For those who want the matter phrased in formal terms, the position is that the requirement

of the rules to state the grounds precisely does not oblige an applicant to particularise indefinitely,

or to give details of matters that have been made acceptably clear. As one example of a situation

where matters are acceptably clear, there is no requirement to explain the normal meaning of words

and phrases in English or Irish, or any other relevant language for that matter, if the normal meaning

is what is intended. Applying that here, the phrase “in a comparable way” attracts its normal

meaning and doesn’t need to be particularised, explained or glossed further in order to constitute a

valid pleading.

275. In any event, if that wasn’t enough, as the applicant points out and as we shall see further

in a moment, it is clear from the pleadings that the phrase “in a comparable way” is not the

applicant’s term - it is the European Commission’s term and is its interpretation of what EU law

requires. So the State’s attempt to take aim at the applicant backfires on that count as well.

276. The State is on slightly firmer ground (that wouldn’t be difficult) with its next complaint,

which is the lack of specification of “which provision in the SEA Directive substantiates the content

of the requirement”. In principle an applicant shouldn’t just quote legal measures generally but

should specify what provisions are relied on. Living dangerously, the applicant doesn’t consistently

do that here. But it is acceptably clear that the alleged requirement to engage in a comparable

consideration is inherent in the obligation of assessment of reasonable alternatives. While not

spelled out in every relevant sub-ground, there isn’t any doubt that any such obligation derives from

art. 5(1) and is reflected in art. 9(1)(b). Article 5(1) is expressly referenced in core ground 3, even

though, in fairness to the State, things could have been a fair bit more explicit. But there isn’t really

any ambiguity when one looks at the pleadings in their totality and at this point in that context.

277. The State’s third complaint is that the applicant hasn’t pleaded “how the assessment

undertaken in the SEA Environmental Report and the consideration of reasonable alternatives is

alleged to have fallen short of any obligation that is alleged to arise.”

278. Let’s look at the pleadings. Sub-ground 57 is as follows:

“57. Fourthly, the SEA Statement failed to consider, adequately or at all, the alternatives

to the strategic alternative option selected and to subject each of the alternatives to a

commensurate level of analysis. There is no detailed description or evaluation of the likely

significant environmental effects of the alternative strategies in the Environmental Report.

As identified by the Commission Guidance

[https://ec.europa.eu/environment/archives/eia/pdf/030923_sea_guidance.pdf] (2003) (at

§5.12) the Directive makes no distinction between the assessment requirements for the

drafted plan or programme and for the alternatives and the alternatives must be identified,

described and evaluated in a comparable way.”

279. The specific paragraph of the guidance referred to states:

“5.12. In requiring the likely significant environmental effects of reasonable alternatives to

be identified, described and evaluated, the Directive makes no distinction between the

assessment requirements for the drafted plan or programme and for the alternatives.14 The

essential thing is that the likely significant effects of the plan or programme and the

alternatives are identified, described and evaluated in a comparable way. The requirements

in Article 5(2) concerning scope and level of detail for the information in the report apply to

the assessment of alternatives as well. It is essential that the authority or parliament

responsible for the adoption of the plan or programme as well as the authorities and the

public consulted, are presented with an accurate picture of what reasonable alternatives

there are and why they not are considered to be the best option. The information referred

to in Annex I should thus be provided for the alternatives chosen. This includes for example

the information for Annex I (b) on the likely evolution of the current state of the environment

without the implementation of the alternative. That evolution could be another one than that

related to the plan or programme in cases when it concerns different areas or aspects.”

280. Footnote 14 states:

“Compare Article 5(3) and Annex IV of the EIA Directive which require the developer to

provide an outline of the main alternatives studied and an indication of the main reasons for

his choice taking into account the environmental effects”

281. Thus the pleading identifies the issue as being the lack of detailed description or evaluation

of the likely significant environmental effects, and refers expressly to a specific paragraph of the

Commission Guidance and to the Commission’s analysis of the Directive. The Commission thinks it

is “essential” that the effects of the plan and the alternatives are identified, described and evaluated

in a comparable way. All that needs to be said for present purposes is that the applicant has given

at least an acceptably minimum indication of how the assessment undertaken in the SEA

Environmental Report and the consideration of reasonable alternatives is alleged to have fallen short

of the requirements of the SEA directive. What is missing in the SEA environmental report is alleged,

by necessary implication, to be detail of environmental effects equivalent to the detail given for the

chosen alternative. That is acceptably clear and indeed fairly obvious.

Issue 56

282. Issue 56 is:

“Is the applicant precluded from challenging the particular complaint regarding the

monitoring provision of the SEA because that claim is inadequately pleaded? PLEADING-

TYPE ISSUE”

283. The applicant submitted:

“The Grounds are pleaded to the requisite standard. Ground 59 includes ‘No details of how

this monitoring will occur, who will do it, when it will be done, how the monitoring will be

used, and how any identified unforeseen adverse environmental effects will be addressed.’

(While not decisive, monitoring arose in FIE v Government of Ireland (2018 No 391 JR) in

similar terms and in those proceedings the High Court, the Court of Appeal and the Supreme

Court appear to have been able to proceed without any difficulty in understanding the case

raised.)”

284. The State submitted:

“The alleged failure to consider monitoring for the purposes of the SEA Directive is also

inadequately pleaded. The Applicant has failed to identify how it is alleged any obligation

arises to include monitoring obligations within the programme itself and/or to identify the

scope and content of such monitoring obligations as and where they do arise. It has failed

to properly engage with the monitoring obligations that are in place, or to particularise how

those monitoring obligations are alleged to be inadequate.

Notwithstanding the above objection, the Respondents maintain that detailed and

prescriptive monitoring measures are prescribed by the NAP, as particularised in detail in

the Statement of Opposition (§§160–170).”

285. My decision on this issue is as follows. Here we must again give the State credit for providing

at least some details of the objection.

286. The first complaint is that “the Applicant has failed to identify how it is alleged any obligation

arises to include monitoring obligations within the programme itself”. That is true. But despite that,

is the point acceptably clear? Annex I para. (i) says that the environmental report under art. 5(1)

should include “a description of the measures envisaged concerning monitoring in accordance with

Article 10”. Sub-ground 59 concludes with the following:

“The monitoring program set out in Chapter 7 of the SEA statement does not discharge the

Respondent’s obligations under section 13J of the Regulations and Article 10 of the SEA

Directive.”

287. Is this sufficient? Very borderline. Again the applicant is living dangerously and like the

second sub-point within Issue 55, one can’t say that the State’s pleading compliant is wholly

unmeritorious here either. But given the relationship between the various provisions of the directive,

reference to art. 10 must be taken as impliedly including art. 10 as referenced in Annex I. It seems

on balance excessively formalistic to rule out the point merely because the applicant didn’t add

reference to the ancillary provisions of Annex I and art. 5(1) – the substantive obligations are in art.

10, which is pleaded.

288. The second complaint is that there is a failure “to identify the scope and content of such

monitoring obligations as and where they do arise”. That may literally correct so depending on one’s

point of view but essentially the applicant is complaining about a negative because the complaint is

about provisions that are missing, not ones that are included. Sub-ground 59 again:

“This issue is addressed at Chapter 7 of the SEA Statement. No details of how this monitoring

will occur, who will do it, when it will be done, how the monitoring will be used, and how any

identified unforeseen adverse environmental effects will be addressed.”

289. It is one thing to require particulars of some positive illegality that an applicant is saying is

there. It would be a new adventure in metaphysics for an applicant to be thrown out for failure to

particularise in extensive detail what is not there. Here the applicant has done enough to make the

point acceptably clear.

290. The third complaint is that the applicant “has failed to properly engage with the monitoring

obligations that are in place, or to particularise how those monitoring obligations are alleged to be

inadequate.”

291. The complaint of failing to “engage” is misconceived as a pleading objection. Save to the

extent that a party is meant to draw attention to legal norms that are contrary to its position and

directly in point (something the State can rest assured that we will come to), a party is not required

to anticipate the other side’s potential arguments and deal with them in depth and in advance. Mind

you, it may sometimes be shrewd to do so as a pre-emptive strike, blunting the impact of any

inevitable reply and depriving the other side of an energetic counter-punch. The risk may be giving

a point to the other side that they might not have thought of - here we are in the realm of advocacy

and lawyering as art rather than science.

292. As regards failing to particularise the detail of what is lacking, that is another version of the

issue just discussed. There is a limit to the extent to which it is meaningful to discuss the detail of

what is not there. One is reminded of the fictional story of Sartre’s disappointment, having asked

for coffee without cream, on being told that the café was out of cream so it would have to be coffee

without milk. The State’s disappointment here plumbs similar existential depths.

Issue 57

293. Issue 57 is:

“Is a claim about inadequate monitoring provision premature and not a basis to challenge

an SEA process itself? PLEADING-TYPE ISSUE”

294. The applicant submitted:

“By Article 9(1) SEA Directive ‘Member States shall ensure that, when a plan or programme

is adopted, the authorities referred to in Article 6(3), the public and any Member State

consulted under Article 7 are informed and the following items are made available to those

so informed…(c) the measures decided concerning monitoring in accordance with Article 10.’

Further Annex 1 SEA Directive specifies what should be in the Environmental Report

envisaged by Article 5, including ‘(i) a description of the measures envisaged concerning

monitoring in accordance with Article 10’. Thus the Directive envisages that monitoring be

addressed and provided for in the SEA process leading to the adoption of the plan or

programme.

Here the SEA Statement says p10 ‘An environmental monitoring programme to track

progress towards achieving Strategic Environmental Objectives (SEOs) and reaching targets

was presented in the SEA Environmental Report. This programme will facilitate the ongoing

monitoring of the implementation of the NAP and is presented in Section 7.’

The fact that monitoring may be revisited does not preclude, as a matter of principle, any

challenge to the monitoring as presented in the SEA.”

295. The State submitted:

“The Respondents submit that the Applicant’s claim with respect to monitoring is premature.

Article 10 of the SEA Directive and section 13J of the SEA Regulations make plain that

monitoring is a future obligation and an on-going process, which applies to the

‘implementation of plans and programmes’. Reviewing for monitoring is only something that

can be undertaken after the passage of time. Accordingly, this plea is premature and

unstateable.

Notwithstanding the above objection, there are detailed and prescriptive monitoring

measures prescribed by the NAP, as particularised in detail in the Statement of Opposition

(§§160–170).”

296. My decision on this issue is that ultimately this is a substance issue as to the meaning of EU

law, not properly a pleading-type objection. The extent to which the SEA directive envisages express

provision for monitoring at the time of the plan itself can be dealt with in a later module. That

doesn’t mean that the State is wrong of course, just that there is no “preliminary” issue that can be

separated from the meaning of the provisions of the SEA directive.

Issue 58

297. Issue 58 is:

“Is the applicant precluded from advancing the SEA complaint because on a proper analysis

what the Applicant is in effect inviting the Court to engage in a merits-based review of the

decision challenged and a review of matters of policy and policy implementation and because

the Court cannot review the impugned decision in the manner sought by the Applicant and

because to do so would offend again the core principle of the separation of powers and

settled case-law? PLEADING-TYPE ISSUE”

298. The applicant submitted:

“No - the adequacy of the SEA process is not to be confused with the exercise of discretion

or the formulation of policy at the end. The idea of the SEA process is that such matters be

informed by an adequate SEA.

As identified in the introduction to the Commission Guidance on SEA -

‘The Strategic Environmental Assessment (SEA) Directive is an important step forward in

European environmental law. At the moment, major projects likely to have an impact on the

environment must be assessed under Directive 85/337/EEC. However, this assessment

takes place at a stage when options for significant change are often limited. Decisions on

the site of a project, or on the choice of alternatives, may already have been taken in the

context of plans for a whole sector or geographical area. The SEA Directive - 2001/42/EC –

plugs this gap by requiring the environmental effects of a broad range of plans and

programmes to be assessed, so that they can be taken into account while plans are actually

being developed, and in due course adopted. The public must also be consulted on the draft

plans and on the environmental assessment and their views must be taken into account.

Whilst the concept of strategic environmental assessment is relatively straightforward,

implementation of the Directive sets Member States a considerable challenge. It goes to the

heart of much public-sector decision-making. In many cases it will require more structured

planning and consultation procedures. Proposals will have to be more systematically

assessed against environmental criteria to determine their likely effects, and those of viable

alternatives. There will be difficult questions of interpretation, but when properly applied,

these assessments will help produce decisions that are better informed. This in turn will

result in a better quality of life and a more sustainable environment, now and for generations

to come.’”

299. The State submitted:

“The Applicant is so precluded. This objection arises, in particular, with respect to pleas (1)

and (4).

In plea (1), the Applicant alleged a failure to assess the likely significant effects on the

environment of the preferred option.

This is quintessentially a merits-based argument, that goes to the merits of the evaluation

contained in the Environmental Report. This is within the discretion of the Respondents and

is subject to challenge on limited irrationality grounds only [Friends of the Irish Environment

v the Government of Ireland [2021] IECA 317, §213, and the judgments cited therein.].

The breadth of discretion given to a competent authority by Article 5 of the SEA Directive,

to decide what information might be ‘reasonably required’ in the Environmental Report,

emphasises the ‘wide range of autonomous judgment on the adequacy of the information

provided’ [As regards authorities from England and Wales, see Regina (Plan B Earth) v

Secretary of State for Transport (WWF-UK intervening) [2020] EWCA Civ 214, §§ 136, 144.

See also the dicta of the Court at first instance, in Spurrier v The Secretary of State for

Transport [2019] EWHC 1070, §§391, 434.] afforded to the authority and the limited role of

the Court on review. Regard must also be had under Article 5(2) to the high-level nature of

the NAP, when considering the level of information required.

In plea (4), the Applicant imports a legal requirement to select the most ‘environmentally

friendly’ programme, where no such legal requirement exists under the SEA Directive. There

is no basis for this contention that the Court should review the policy decision of the

Respondents with respect to the selection of the preferred alternative for the NAP. The

Respondents must logically be entitled to have regard to policy or economic considerations

when selecting the preferred alternative, and in weighing up the factors in determining

whether reasonable alternatives were realistic and viable, and which option ought to be

preferred. Those issues are non-justiciable, and the Applicant identifies no basis in the SEA

Directive – which involves procedural obligations only – that would render those obligations

justiciable.

The Respondents continue to rely on paragraphs 173 and 174 of their Written Submissions

in that respect.”

300. My decision on this issue is that the applicant’s complaints can’t be dismissed on a

preliminary basis. The applicant’s main point is correct - the adequacy of the SEA process is not to

be confused with the exercise of discretion or the formulation of policy at the end.

301. Insofar as a failure of assessment is pleaded, that must be construed as a legal objection as

to the adoption of the correct process, and thus subject to normal judicial review principles such as

legality and reasonableness.

302. Insofar as the alleged failure to adopt the “most environmentally friendly option” is

concerned, if that arises it should be construed as a contested legal proposition as to the

interpretation of the SEA directive and can be addressed on the substance in a later module.

Conclusion on Core Ground 3

303. The implications of the foregoing for Core Ground 3 are essentially that the ground proceeds

subject to the foregoing comments.

Remedies - Appropriate order in the event of upholding core grounds 1 to 3

304. The question of remedies has two aspects - the interim remedy following some hypothetical

finding of an illegality somewhere in the process, and the ultimate remedy in the form of a final

order. The two situations are closely related but slightly different.

305. Assuming purely for the sake of argument that we were to get to a hypothetical finding of

some illegality in some step in the process, the court has options as to how to proceed. Of course,

an immediate order of certiorari (with no further agonising about interim and final remedies) would

be the obvious default in most cases, but there are other options, most notably adjourning the

matter (with or without some directions in the meantime) to allow the respondents to take rectifying

steps to be specified by order.

306. Once any such steps, if ordered, were allowed for, one then returns to the question of the

final order, which could be anything from some form of certiorari (again, normally the default order

following illegality) to a declaration to no order at all.

307. As regards any interim order, numerous arguments are advanced by the opposing parties

as to why, in the event of an infirmity being demonstrated in the NAP or GAP regulations, no

immediate order affecting their validity should be made. These submissions included the arguments

that:

(i) the environment would be best protected by an order maintaining the NAP in force until such

time as a replacement is adopted (e.g., a suspended order of certiorari). The State submits:

“This would lead to a lower level of protection of water against pollution caused by nitrates

from agricultural sources, which would run specifically counter to the fundamental objective

of the Nitrates Directive. The environmental damage caused by quashing the NAP and the

GAP Regulations would therefore be more harmful to the environment than maintaining their

effects pending any remedial measures coming into effect.” The State submits that this

would be “entirely consistent with well-established principles of EU law” citing the judgment

of 26 July 2017, Comune di Corridonia, C-196/16 and C-197/16, ECLI:EU:C:2017:589

(§§34-38) and the judgment of 25 June 2020, A and Others, C-24/19, ECLI:EU:C:2020:503

(§§80-95, in particular §90); and

(ii) a straightforward order of certiorari would create “a legal vacuum that is incompatible with

Ireland’s obligations to adopt measures to transpose the Nitrates Directive”.

308. The applicant accepts that the interests to be take in into account include environmental

protection, animal welfare and the interest of individual farmers. Accordingly the applicant would

not object in principle to a stay on an order of certiorari, but the duration and terms of such stay

would need to be discussed.

309. As regards the final order, the notice parties in particular are keen to argue that certiorari

should be refused as a matter of discretion having regard inter alia to economic impact on farmers.

That debate is sufficiently far into the future as not to require much further consideration at this

stage.

Issues arising in relation to the Remedy (Issues 69-70)

Issue 70

310. Issue 70 is:

“If the Court determines that an order of certiorari or a declaration of invalidity is required,

should a stayed or suspensive order be made pending remedial measures to address the

Court’s findings having regard to the risks of reduced environmental protection in the short

term, or a breach of EU law, or adverse consequences to other stakeholders? APPEARS

AGREED”

311. The applicant submitted:

“As identified Transcript, Day 2, the aim for An Taisce in the proceedings is the correct

interpretation and implementation of the law. An Taisce accepts, in principle, that if certiorari

or a declaration of invalidity is found to be the appropriate remedy, that there can be a stay

on the grounds of environmental prejudice or environmental protection on matters such as

animal welfare. An Taisce also accept that the interests of the individual farmers are

something that can be taken into account in the context of a stay. As the Court put it –

‘you’re not objecting to a stay on any order if the Court gets to that point – it’s only a

hypothesis, obviously - but we would want to debate the Ts and Cs at that stage…’.

If the Court finds certiorari or declaratory relief is warranted but a stay is appropriate that

should not preclude the reference sought. As per the CJEU’S ‘Recommendations to national

courts and tribunals in relation to the initiation of preliminary ruling proceedings’ (2019) ‘It

follows, moreover, from settled case-law that although national courts and tribunals may

reject pleas raised before them challenging the validity of acts of an institution, body, office

or agency of the Union, the Court has exclusive jurisdiction to declare such acts invalid.

When it has doubts about the validity of such an act, a court or tribunal of a Member State

must therefore refer the matter to the Court, stating the reasons why it has such doubts.’ If

the Court has ‘doubts’ as to the validity of the derogation, those doubts would be based on

the findings warranting certiorari or declaratory relief, and would not be displaced by a stay.”

312. The State submitted:

“If, without prejudice to the Respondents’ opposition, the Court considers the NAP and/or

the GAP Regulations are contrary to law and/or ultra vires and/or invalid (which is denied),

it is invited to exercise its discretion to maintain the effects of the NAP and the GAP

Regulations until any necessary measures to remedy any irregularity identified by the Court

take effect.

The NAP and the GAP Regulations correctly transpose and implement the Nitrates Directive.

In that respect, the Applicant has not challenged the compatibility of either the NAP or the

GAP Regulations with the Nitrates Directive, and the Commission Decision demonstrates that

the derogation in the context of the NAP is consistent with Ireland’s obligations under the

Nitrates Directive.

Quashing the NAP and/or the GAP Regulations would result in a legal vacuum that is

incompatible with Ireland’s obligations to adopt measures to transpose the Nitrates

Directive. This would lead to a lower level of protection of water against pollution caused by

nitrates from agricultural sources, which would run specifically counter to the fundamental

objective of the Nitrates Directive. The environmental damage caused by quashing the NAP

and the GAP Regulations would therefore be more harmful to the environment than

maintaining their effects pending any remedial measures coming into effect.

In those circumstances, were the Court to consider that the NAP is invalid (which is denied),

the Court would be permitted to, and the Respondents plead that it should, exercise its

discretion to maintain exceptionally the effects of the NAP and/or the GAP Regulations,

pending the implementation of remedial measures. This is entirely consistent with well-

established principles of EU law in Cases C-196/16 and C-197/16 Comune di Corridonia

EU:C:2017:589, §§34–38 and Case C-24/19 A and Others EU:C:2020:503, §§80–95, in

particular §90).”

313. The IFA submitted:

“18. In relation to the issues raised at 69 to 70 of the Issue Paper in respect of the proper

approach to the grant of a remedy if any, the IFA Parties refer to its previous submissions

on this matter, to the effect that the Court should exercise its inherent discretion to either

(a) decline to make the orders sought or (b) suspend or place a stay on any such orders.

19. The IFA also notes and supports the position of the State Respondent on this issue.

Without prejudice to the foregoing, the IFA parties respectfully submit that the Court should

refrain from making any concluded legal finding in respect of remedies and submits that the

question of a remedy should be the subject of a further hearing when the Court has

determined all other issues in the proceedings.

20. The IFA Parties would request that a further hearing would be convened to hear

submissions on the nature of any such remedy, and to make submissions arising from any

findings of fact, or ruling, that the Court might make on any particular issue.

21. It is respectfully submitted that this approach is appropriate in the particular

circumstances which pertain in these proceedings having regard to the following:

(a) The wide range of options in terms of remedies identified by the Court as available

to it and that the appropriate remedy or remedies may well depend on the Courts legal

findings.

(b) The impact that the Courts decision on remedies will have particularly on the Notice

Parties and the wider farming community, having regard to the evidence placed before the

Court in that regard.

(c) The fact that quashing the NAP Regulations would result in a lacuna in legal

regulation and possible risk to the environment.

(d) The fact that in the course of the hearing Counsel for the Applicant has for the first

time indicated to the Court that it appears it open to consider some form of deferred or

suspended remedy albeit the Applicants position on this matter is somewhat unclear.”

314. The ICMSA submitted:

“ICMSA also agrees with the Respondents’ points on Issue 70 regarding a stay or suspensive

order in the event that the Court were minded to grant any relief.”

315. My decision on this issue is that there appears to be broad agreement on the situation that

would arise under this heading. In the hypothetical event of an illegality of some kind being

established (obviously we are still some distance from that contested outcome), and in the event of

the court being minded in principle to grant relief in that regard, the impugned measures would

remain in force in the short term at any rate, albeit possibly subject to hypothetical directions, while

an appropriate and ideally agreed course of action was taken. That might involve providing a

sufficient period of time for any hypothetical remedial assessments, to take what is purely one

possible example. So nothing needs to be decided under this heading in the immediate future. Issue

69 remains on the table for the hypothetical Module IV on remedies if it arises.

Conclusion on Remedy

316. The implications of the foregoing for the remedy issue are that in effect the whole issue can

be parked for now. There will be a reasonably leisurely opportunity to discuss it if that becomes

necessary.

Core ground 4 – alleged invalidity of Commission decision

317. A further dispute exists as to whether the Commission decision could be invalid as a result

of any invalidity in the NAP, and if so what the procedural mechanism to determine this is. Core

ground 4 provides:

“4. As a consequence of the invalidity of the impugned decision Commission

Implementing Decision (EU) 2022/696 of 29 April 2022 granting a derogation requested by

Ireland pursuant to Council Directive 91/676/EEC concerning the protection of waters

against pollution caused by nitrates from agricultural sources (OJ L 129, 3.5.2022, p. 37–

45) is invalid, further particulars of which are contained at Part B below.”

318. Core ground 4 is essentially derivative on the applicant succeeding on one or more of the

first three core grounds.

Issues arising under CG4 (Issues 71-78)

Issue 71

319. Issue 71 is:

“Is the Commission derogation decision unchallengeable in these proceedings and therefore

does it follow that the applicant is precluded from challenging the findings therein and the

court must proceed on the basis that such findings are valid and correct? PLEADING-TYPE

ISSUE”

320. The applicant submitted:

“The Commission derogation decision is not ‘unchallengeable’ in these proceedings – but the

only way it can be challenged is by way of a reference. Article 14 of the Commission

Implementing Decision states that the Decision: ‘This Decision shall apply in the context of

the Irish Action Programme as implemented in the Statutory Instrument No 113 of 2022,

European Union (Good Agricultural Practice for Protection of Waters) Regulations 2022.’ If

the ‘Irish Action Programme as implemented in the Statutory Instrument No 113 of 2022’ is

unlawful, the ‘context’ for the continued application of the Commission Decision no longer

applies.

In FIE v Minister for Communications [2022] IECA 298, relied on by the State, the Court of

Appeal considered the effects of the division of jurisdiction between EU courts and courts of

the Member States that result from the involvement of national authorities in the course of

a procedure which leads to the adoption of an EU act. This is a complex area of law and the

procedure leading to the adoption of the European Act here is different from that under

consideration in FIE. In FIE Noonan J identified §77 ‘…there is no genuine dispute here in

which the validity of the delegated regulation is raised indirectly.’ Here the argument is that

the validity of the European act is premised on the validity of the domestic act.

Regarding the State’s quote from Lenaerts et al, it is clear from the portion quoted that the

relevance of the recitals is in the interpretation of the operative part. Further, the footnote

quoted in part by the State continues ‘Whether the operative part has adverse effect

consequently extends to the recitals, which constitute the necessary support for the

operative part. The assessments made in the recitals to an act are not in themselves capable

of forming the subject of an action for annulment and can be subject to judicial review by

the union courts to the extent that, as grounds of an act adversely affecting the applicant's

interests, they constitute the essential basis for the operative part of that act …Thus an

action for annulment cannot be validly brought exclusively against a recital in the preamble

to a union act see e.g. – 657/21 Chessani and Others v Parliament and Council (order) 2021

paras 20 to 21’.

Regarding the suggestion that An Taisce should have proceeded by way of Article 263 (which

in fact arises under Issue 74), that article cannot be relied on to prevent a reference under

Article 267 ‘unless those persons unquestionably had the right to bring an action against

those provisions on the basis of Article 263 TFEU and failed to exercise that right within the

period prescribed’ – Case C-72/15 Rosneft, paragraphs 66 and 67. It cannot be said that An

Taisce ‘unquestionably’ had standing under Article 263 – no ENGO has ever had standing

under that Article. Further, even if An Taisce had proceeded under Article 263, the CJEU

could not have ruled on the domestic measure.

Regarding Case C-344/98 Masterfoods, paras 51-52 of which are quoted by the State, it

should be noted that para 54 says ‘Moreover, if a national court has doubts as to the validity

or interpretation of an act of a Community institution it may, or must, in accordance with

the second and third paragraphs of Article 177 of the Treaty, refer a question to the Court

of Justice for a preliminary ruling.’”

321. The State submitted:

“The Court has no jurisdiction to declare that the Commission Decision is invalid; only the

CJEU may do so. In Digital Rights Ireland v. Minister for Communications, Marine and Natural

Resources [2010] 3 I.R. 251, p. 300 (McKechnie J.), the Court was very clear that ‘the

reference is required because [the Court is] unable to rule on the validity of [EU] law.’ This

is also clear from JTI Ireland Ltd. v. Minister for Health & Ors. [2015] IEHC 481, §20.

The Applicant has, rightly, not sought such a declaration of invalidity because it cannot. This

stand-alone relief can only be obtained from the General Court in Luxembourg. Accordingly,

there are no grounds for any preliminary reference from this Court to the CJEU on that basis,

where the Applicant ought to have sought this relief directly from the General Court. This is

precisely the situation that the Irish Courts in Friends of the Irish Environment [2022] IECA

298 addressed when they dismissed the relevant application for judicial review and refused

to make a reference regarding the alleged invalidity of an EU act in circumstances where the

proper procedural route was a direct action before the General Court.

It also follows from the foregoing that the Applicant is precluded from challenging the

findings in the Commission Decision in this Court. Moreover, if this Court were to entertain

a challenge to the findings of the Commission Decision, this would not be consistent with

the principle of legal certainty.

In this regard, the CJEU in C-314/85 Foto-Frost EU:C:1987:452 stated that (§§14–15) while

a national court may consider the validity of a Community act and, if the national court

considers the grounds put forward by the parties in support of invalidity are unfounded, the

national court may reject them and conclude ‘that the measure is completely valid’, on the

other hand, ‘those courts do not have the power to declare acts of the Community

institutions invalid’. (Emphasis added).

Additionally, in a competition law context, the CJEU in Case C-344/98 Masterfoods Ltd v HB

Ice Cream Ltd EU:C:2000:689 stated that (§§51–52) it is ‘… important that when national

courts rule on agreements or practices which are already the subject of a Commission

decision they cannot take decisions running counter to that of the Commission, even if the

latter's decision conflicts with a decision given by a national court of first instance.’

(Emphasis added)

Further, and insofar as the Applicant considers that the Court is not bound by the Recitals

in the Commission Decision, the Respondents contend that this is manifestly incorrect. This

is a well-established principle of EU law ‘because the operative part of an act is indissociably

linked to the statement of reasons for it, so that when it has to be interpreted, account must

be taken of the reasons which led to its adoption’: see Lenaerts et al, ‘Procedural Law’ (OUP,

2nd Edn) at §7.18 fn 51, citing C-355/95 P TWD Textilwerke Deggendorf v Commission

EU:C:1997:241, §21; T-213/95 and T-18/96 SCK and FNK v Commission EU:T:1997:157,

§104; and T-747/17 UPF v Commission EU:T:2019:271, §50.

In this regard, on Day 2 of the hearing, Counsel for the Respondents referred to Recital 16

of the Commission Decision and stated that this represents a determination by the

Commission ‘that the amount of manure proposed by Ireland in the derogation will not

prejudice the achievements of the objectives in the Nitrates Directive.’ [Day 2 Transcript, p.

77.] In response, on Day 4 of the hearing, Counsel for the Applicant stated that:

‘Now, if I could just touch, now, on an argument that was made several times … that

the Commission had said the derogation is okay. It's important to recall that the

Commission's assessment there is contained in the recitals of the Commission

Decision, it doesn't actually form part of the binding decision itself.’ [Day 4

Transcript, p. 33.]

This is misconceived, and should be rejected.”

322. The IFA submitted:

“22. In relation to the issues raised at 71-78 in respect of a reference to the Court of

Justice of the European Union, the IFA Parties refer to its previous submission on the matter

to the effect that:

(a) That the question of whether a preliminary reference to the CJEU should be granted

should be postponed pending the final determination of the domestic law issues arising in

the within proceedings; and

(b) There is no necessity for a reference to the CJEU; the law in this regard is acte clair

and does not need a referral to the CJEU.

23. Furthermore, and without prejudice to the generality of the foregoing the IFA Parties

submit that in respect of the issue raised at 71 -74 in the Issue Paper the decision of the

Commission to grant the derogation is clearly not amenable to challenge in the within

proceedings for the simple reason that (a) it is clearly not within the scope of the reliefs

pleaded by the Applicant and (b) the Court clearly has no jurisdiction to grant such relief or

in any manner challenge or question the validity of decision of the Commission in

circumstances where only the CJEU has jurisdiction to declare the decision invalid. [JTI

Ireland Ltd. v. Minister for Health & Ors. [2015] IEHC 481, §20.]

24. By its own assertion, the Applicant is a legal person that is directly affected by the

Commission Implementing Decision 2022/696. Having met the article 263 criteria, and

having failed to bring an annulment action under articles 256(1) / 263 TFEU within the

limitation period of two months, the Applicant is precluded from seeking the same remedy

via the alternative mechanism of article 267 TFEU. Accordingly, the relief at D(5) of the

Amended Statement of Grounds is sought impermissibly and ought be refused without

further consideration.

25. The IFA Parties also notes and supports the position of the State Respondent on this

issue.

26. By way of further assistance to the Court, the context for the relief sought, and the

IFA parties position, is as follows. At paragraph D (5) of the Amended Statement of Grounds,

the Applicant seeks to challenge the validity of Commission Implementing Decision 2022/696

by way of a preliminary reference from this Court. The precise relief sought is:

5. A Reference to the Court of Justice of the European Union pursuant to Article

267 TFEU to determine the validity of Commission Implementing Decision (EU)

2022/696 granting a derogation requested by Ireland pursuant to Council Directive

91/676/EEC concerning the protection of waters against pollution caused by nitrates

from agricultural sources (OJ L 129, 3.5.2022, p. 37–45).

27. At Core Ground 4 of the Amended Statement of Grounds, the Applicant provides the

following basis for that relief:

4. As a consequence of the invalidity of the impugned decision Commission

Implementing Decision (EU) 2022/696 of 29 April 2022 granting a derogation

requested by Ireland pursuant to Council Directive 91/676/EEC concerning the

protection of waters against pollution caused by nitrates from agricultural sources

(OJ L 129, 3.5.2022, p. 37–45) is invalid, further particulars of which are contained

at Part B below.

28. See also the pleas in the Respondents’ Statement of Opposition, paras. 173 -181.

29. In the particulars of Legal Grounds for Core Ground 4, the Applicant elaborates on

the precise basis for the alleged invalidity:

64. This Core Ground is consequential on the Applicant succeeding in having

the NAP quashed.

65. The consequence of the Court quashing the NAP is that the Commission

Implementing Decision (EU) 2022/696 is invalid since it depends on the validity of

the NAP.

30. At paragraph 69 of the Statement of Grounds, the applicant acknowledges that the

Court does not have jurisdiction to grant precisely that which the Applicant seeks at relief

D(4):

69. While the High Court does not have jurisdiction to determine whether the

Commission Implementing Decision is valid in that eventuality, if it shares the

Applicant’s doubts in that regard it is required to make a preliminary reference to

the Court of Justice pursuant to Article 267 TFEU asking the Court of Justice to

determine whether the Commission Implementing Decision is valid in light of the

quashing of the NAP.

31. As can be seen from the underlined passage above, the Applicant dictates to the

Court that it is ‘required’ to make a preliminary reference ‘if it shares the Applicant’s doubts’.

Drafting infelicities aside, the premise of this approach is fatally flawed. The Applicant seeks

impermissibly to circumvent the procedural means by which an affected party can challenge

an act of the Commission. The architecture of the TFEU expressly provides, in article 263, a

mechanism by which an affected party can seek annulment of an act of the Commission

within two months of enactment. For the purposes of article 263, the Applicant is a legal

person, directly concerned, and no implementing measures were required to give effect to

the Commission Implementing Decision at issue. The High Court has addressed precisely

this issue in Friends of the Irish Environment v. Minister for Communications, Climate Action

and the Environment & Ors. [2020] IEHC 383 (at paras. 106-111). See also (subsequent to

the latter judgment) the judgment of the CJEU in Case C–352/19 P Région de Bruxelles-

Capitale v Commission (ECLI:EU:C:2020:978), paras. 30, 64.

32. A key distinction in the instant case is that the act of the Commission is a Decision,

and not a Directive, where the latter would require implementing measures which would, in

turn, open the door to a possible action seeking annulment under via article 267 TFEU. As

stated, that does not arise on the facts of this case and the Applicant cannot seek to avail

of a wider standing requirement under article 267. Applying ... Friends of the Irish

Environment v. Minister for Communications, Climate Action and the Environment & Ors.

the issue is res judicata and the relief ought to be refused.”

323. I should note here for clarity that the ICMSA submissions were too shrewd and focused to

try to foist this particular canard on the court, save perhaps to the trivially relevant extent of

boilerplate adoption of the State’s submissions, which is harmless in this context.

324. My decision on this issue is that I accept the applicant’s position - the correct and appropriate

route is a reference where there is a genuine domestic dispute, as here. The exception is that a

direct action is the correct route only in the very limited situation where it is unquestionably clear

that the applicant could have done that. Here, it is not only not unquestionably clear that a direct

action would have been appropriate, but it is effectively certain that any direct action brought by

this applicant under art. 263 would have been peremptorily dismissed as inadmissible, because it is

obvious that the NAP is neither addressed to the applicant nor of direct concern to it, as that term

has been restrictively interpreted by the CJEU.

325. The problem, unfortunately, with the State and IFA position is two-fold.

326. Firstly, insofar as they rely on brief references to caselaw, the critical references are either

irrelevant or taken out of context. When properly situated in context, a contrary picture emerges.

To crudely summarise, the State and IFA have just been a little bit over-selective in their cherry-

picking of snippets of material that they thought were helpful to the project of blocking a reference.

327. Secondly and more fundamentally, the relevant opposing parties have overlooked caselaw

that is pre-existing, binding, directly in point, and determinative of the opposite conclusion:

(i) judgment of 15 July 1963, Plaumann, C-25/62, ECLI:EU:C:1963:17;

(ii) judgment of 22 October 1987, Foto-Frost, C-314/85, ECLI:EU:C:1987:452, para. 16;

(iii) judgment of 21 February 1991, Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest,

C‑143/88 and C‑92/89, ECLI:EU:C:1991:65, paras. 14-21;

(iv) judgment of 7 April 1998, Stichting Greenpeace Council (Greenpeace International), C-

321/95, EU:C:1998:153

(v) judgment of 15 February 2001, Nachi Europe, C‑239/99, ECLI:EU:C:2001:101, paragraphs

35 and 36;

(vi) judgment of 25 July 2002, Unión de Pequeños Agricultores, C-50/00, EU:C:2002:462;

(vii) judgment of 10 December 2002, British American Tobacco (Investments) Ltd, C-491/01;

(viii) judgment of 1 April 2004, Jégo-Quéré & Cie SA, C-263/02, EU:C:2004:210;

(ix) judgment of 29 June 2004, Front national v European Parliament, C-486/01,

ECLI:EU:C:2004:394;

(x) judgment of 6 December 2005, ABNA and Others, C‑453/03, C‑11/04, C‑12/04 and C‑194/04,

ECLI:EU:C:2005:741, paragraph 103;

(xi) judgment of 3 June 2008, Intertanko and Others, C‑308/06, ECLI:EU:C:2008:312,

paragraph 31;

(xii) judgment of 29 June 2010, E and F, C‑550/09, ECLI:EU:C:2010:382, paragraphs 45 and

46;

(xiii) judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council,

C‑583/11, ECLI:EU:C:2013:625, paragraph 95;

(xiv) judgment of 28 March 2017, Rosneft, C‑72/15, ECLI:EU:C:2017:236, paras. 66 and 67 in

particular);

(xv) judgment of 3 July 2019, Eurobolt BV, C-644/17, ECLI:EU:C:2019:555; and

(xvi) judgment of 3 December 2020, Région de Bruxelles-Capitale, C-352/19,

ECLI:EU:C:2020:978.

328. The State’s citation of paras. 14 and 15 of Foto-Frost (irrelevant to this issue) is particularly

unfortunate. Those paragraphs deal with the domestic court confining itself to upholding the EU

measure (para. 14), or impermissibly trying to decide invalidity itself (para. 15). We are not talking

about either situation here. It’s perhaps a pity that the State didn’t keep reading to the next

paragraph (para. 16), which is not only relevant but supportive of the applicant’s analysis:

“The same conclusion is dictated by consideration of the necessary coherence of the system

of judicial protection established by the Treaty. In that regard it must be observed that

requests for preliminary rulings, like actions for annulment, constitute means for reviewing

the legality of acts of the Community institutions. As the Court pointed out in its judgment

of 23 April 1986 in Case 294/83 Parti écologiste 'les Verts' v European Parliament [1986]

ECR 1339), 'in Articles 173 and 184, on the one hand, and in Article 177, on the other, the

Treaty established a complete system of legal remedies and procedures designed to permit

the Court of Justice to review the legality of measures adopted by the institutions'.”

329. The caselaw on the “complete” system of legal remedies for all acts of EU institutions also

demolishes the attempt to argue that somehow it takes a challenge to a directive in order to “open

the door” for a reference. The door is open already for a challenge to any EU institutional act,

subject to there being a basis for a reference in the first place. That includes in relation to a decision.

The exception where a direct action is possible doesn’t apply here. Implementing measures are not

necessary, only that there is a genuine domestic dispute (as we shall see from the caselaw). The

fact that the impugned measure in a given case is a decision doesn’t, in any event, mean that there

are no implementing measures. In fact here, as we know, there is the implementing measure of

the GAP amending regulations of 2022 which expressly quote the Commission decision, plus all of

the administrative law steps to be taken “under” the Commission decision, as the regulations put it.

330. Article 263 TFEU is as follows:

“Article 263

(ex Article 230 TEC)

The Court of Justice of the European Union shall review the legality of legislative acts, of

acts of the Council, of the Commission and of the European Central Bank, other than

recommendations and opinions, and of acts of the European Parliament and of the European

Council intended to produce legal effects vis-à-vis third parties. It shall also review the

legality of acts of bodies, offices or agencies of the Union intended to produce legal effects

vis-à-vis third parties.

It shall for this purpose have jurisdiction in actions brought by a Member State, the European

Parliament, the Council or the Commission on grounds of lack of competence, infringement

of an essential procedural requirement, infringement of the Treaties or of any rule of law

relating to their application, or misuse of powers.

The Court shall have jurisdiction under the same conditions in actions brought by the Court

of Auditors, by the European Central Bank and by the Committee of the Regions for the

purpose of protecting their prerogatives.

Any natural or legal person may, under the conditions laid down in the first and second

paragraphs, institute proceedings against an act addressed to that person or which is of

direct and individual concern to them, and against a regulatory act which is of direct concern

to them and does not entail implementing measures.

Acts setting up bodies, offices and agencies of the Union may lay down specific conditions

and arrangements concerning actions brought by natural or legal persons against acts of

these bodies, offices or agencies intended to produce legal effects in relation to them.

The proceedings provided for in this Article shall be instituted within two months of the

publication of the measure, or of its notification to the plaintiff, or, in the absence thereof,

of the day on which it came to the knowledge of the latter, as the case may be.”

331. The provision for direct action by non-privileged persons is therefore that they can:

(i) institute proceedings against an act addressed to that person or which is of direct

and individual concern to them; and

(ii) institute proceedings against a regulatory act (which means a measure of general

application not including a legislative act - Inuit Tapiriit Kanatami, C‑583/11) which

is of direct concern to them and does not entail implementing measures.

332. Article 267 TFEU is broader in its terms:

“Article 267

(ex Article 234 TEC)

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings

concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of

the Union;

Where such a question is raised before any court or tribunal of a Member State, that court

or tribunal may, if it considers that a decision on the question is necessary to enable it to

give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member

State against whose decisions there is no judicial remedy under national law, that court or

tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State

with regard to a person in custody, the Court of Justice of the European Union shall act with

the minimum of delay.”

333. Plaumann, C-25/62, was an early case where the ECJ took a very restrictive approach from

the outset to the criterion of a direct action being of “individual concern”. The court said:

“Under the second paragraph of Article 173 of the Treaty private individuals may institute

proceedings for annulment against decisions which, although addressed to another person,

are of direct and individual concern to them, but in the present case the defendant denies

that the contested decision is of direct and individual concern to the applicant.

It is appropriate in the first place to examine whether the second requirement of admissibility

is fulfilled because, if the applicant is not individually concerned by the decision, it becomes

unnecessary to enquire whether he is directly concerned.

Persons other than those to whom a decision is addressed may only claim to be individually

concerned if that decision affects them by reason of certain attributes which are peculiar to

them or by reason of circumstances in which they are differentiated from ail other persons

and by virtue of these factors distinguishes them individually just as in the case of the person

addressed. In the present case the applicant is affected by the disputed Decision as an

importer of clementines, that is to say, by reason of a commercial activity which may at any

time be practised by any person and is not therefore such as to distinguish the applicant in

relation to the contested Decision as in the case of the addressee.

For these reasons the present action for annulment must be declared inadmissible.”

334. In Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest, C‑143/88 and C‑92/89, the

court, dealing with interim suspension of domestic measures based on EU law, said:

“14 The Finanzgericht Hamburg first seeks, in substance, to ascertain whether the second

paragraph of Article 189 of the EEC Treaty must be interpreted as meaning that it denies to

national courts the power to suspend enforcement of a national administrative measure

adopted on the basis of a Community regulation.

15 In support of the existence of the power to grant such a suspension, the Finanzgericht

Hamburg states that such a measure merely defers any implementation of a national

decision and does not call in question the validity of the Community regulation. However, by

way of explanation of the reason for its question, it points out, as a ground for denying that

national courts have such jurisdiction, that the granting of interim relief, which may have

far-reaching effects, may constitute an obstacle to the full effectiveness of regulations in all

the Member States, in breach of the second paragraph of Article 189 of the Treaty.

16 It should first be emphasized that the provisions of the second paragraph of Article 189

of the Treaty cannot constitute an obstacle to the legal protection which Community law

confers on individuals. In cases where national authorities are responsible for the

administrative implementation of Community regulations, the legal protection guaranteed

by Community law includes the right of individuals to challenge, as a preliminary issue, the

legality of such regulations before national courts and to induce those courts to refer

questions to the Court of Justice for a preliminary ruling.

17 That right would be compromised if, pending delivery of a judgment of the Court, which

alone has jurisdiction to declare that a Community regulation is invalid (see judgment in

Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199, at paragraph 20),

individuals were not in a position, where certain conditions are satisfied, to obtain a decision

granting suspension of enforcement which would make it possible for the effects of the

disputed regulation to be rendered for the time being inoperative as regards them.

18 As the Court pointed out in its judgment in Foto-Frost, cited above, (at paragraph 16),

requests for preliminary rulings which seek to ascertain the validity of a measure, like actions

for annulment, constitute means for reviewing the legality of acts of the Community

institutions. In the context of actions for annulment, Article 185 of the EEC Treaty enables

applicants to request suspension of the enforcement of the contested act and empowers the

Court to order such suspension. The coherence of the system of interim legal protection

therefore requires that national courts should also be able to order suspension of

enforcement of a national administrative measure based on a Community regulation, the

legality of which is contested.

19 Furthermore, in its judgment in Case C-213/89 (The Queen v Secretary of State for

Transport, ex parte Factortame Ltd and Others [1990] ECR I-2433), delivered in a case

concerning the compatibility of national legislation with Community law, the Court, referring

to the effectiveness of Article 177, took the view that the national court which had referred

to it questions of interpretation for a preliminary ruling in order to enable it to decide that

issue of compatibility, had to be able to grant interim relief and to suspend the application

of the disputed national legislation until such time as it could deliver its judgment on the

basis of the interpretation given in accordance with Article 177.

20 The interim legal protection which Community law ensures for individuals before national

courts must remain the same, irrespective of whether they contest the compatibility of

national legal provisions with Community law or the validity of secondary Community law,

in view of the fact that the dispute in both cases is based on Community law itself.

21 It follows from the foregoing considerations that the reply to the first part of the first

question must be that Article 189 of the Treaty has to be interpreted as meaning that it does

not preclude the power of national courts to suspend enforcement of a national

administrative measure adopted on the basis of a Community regulation.”

335. Stichting Greenpeace Council (Greenpeace International), C-321/95, was a case where a

direct challenge under art. 263 by an environmental NGO was rejected as inadmissible by the Court

of Justice, upholding the Court of First Instance. The court made short work of the appellant’s claim:

“27. The interpretation of the fourth paragraph of Article 173 of the Treaty that the Court

of First Instance applied in concluding that the appellants did not have locus standi is

consonant with the settled case-law of the Court of Justice.

28. As far as natural persons are concerned, it follows from the case-law, cited at both

paragraph 48 of the contested order and at paragraph 7 of this judgment, that where, as in

the present case, the specific situation of the applicant was not taken into consideration in

the adoption of the act, which concerns him in a general and abstract fashion and, in fact,

like any other person in the same situation, the applicant is not individually concerned by

the act.

29. The same applies to associations which claim to have locus standi on the basis of the

fact that the persons whom they represent are individually concerned by the contested

decision. For the reasons given in the preceding paragraph, that is not the case.

30. In appraising the appellants' arguments purporting to demonstrate that the case-law of

the Court of Justice, as applied by the Court of First Instance, takes no account of the nature

and specific characteristics of the environmental interests underpinning their action, it should

be emphasised that it is the decision to build the two power stations in question which is

liable to affect the environmental rights arising under Directive 85/337 that the appellants

seek to invoke.

31. In those circumstances, the contested decision, which concerns the Community

financing of those power stations, can affect those rights only indirectly.

32. As regards the appellants' argument that application of the Court's case-law would mean

that, in the present case, the rights which they derive from Directive 85/337 would have no

effective judicial protection at all, it must be noted that, as is clear from the file, Greenpeace

brought proceedings before the national courts challenging the administrative authorisations

issued to Unelco concerning the construction of those power stations. TEA and CIC also

lodged appeals against CUMAC's declaration of environmental impact relating to the two

construction projects (see paragraphs 6 and 7 of the contested order, reproduced at

paragraph 2 of this judgment).

33. Although the subject-matter of those proceedings and of the action brought before the

Court of First Instance is different, both actions are based on the same rights afforded to

individuals by Directive 85/337, so that in the circumstances of the present case those rights

are fully protected by the national courts which may, if need be, refer a question to this

Court for a preliminary ruling under Article 177 of the Treaty.

34. The Court of First Instance did not therefore err in law in determining the question of

the appellants' locus standi in the light of the criteria developed by the Court of Justice in

the case-law set out at paragraph 7 of this judgment.

35. In those circumstances the appeal must be dismissed.”

336. In Nachi Europe, C‑239/99, the court dealt with a situation where an undertaking could

“undoubtedly” have brought a direct action for annulment. Failure to do so was disqualifying in

terms of seeking an equivalent order on foot of a reference:

“28. Irrespective of the effects of the partial annulment delivered by the Court of First

Instance in its judgment in NTN Corporation and Koyo Seiko v Council, it is necessary to

examine whether Nachi Europe has locus standi to plead the invalidity of the anti-dumping

duty applicable to ball bearings manufactured by Nachi Fujikoshi in a dispute before a

national court.

29. First, it is settled case-law that a decision adopted by a Community institution which has

not been challenged by its addressee within the time-limit laid down by the fifth paragraph

of Article 230 EC becomes definitive as against that person (see, inter alia, Case 156/77

Commission v Belgium [1978] ECR 1881, paragraphs 20 to 24, Case C-183/91 Commission

v Greece [1993] ECR I-3131, paragraphs 9 and 10, and Case C-188/92 TWD Textilwerke

Deggendorf v Germany [1994] ECR I-833, paragraph 13). Such a rule is based in particular

on the consideration that the periods within which legal proceedings must be brought are

intended to ensure legal certainty by preventing Community measures which produce legal

effects from being called in question indefinitely (Case C-178/95 Wiljo v Belgian State [1997]

ECR I-585, paragraph 19).

30. The Court has also ruled that it follows from the same requirements of legal certainty

that it is not possible for a recipient of State aid, forming the subject-matter of a Commission

decision addressed directly solely to the Member State from which that beneficiary came,

who could undoubtedly have challenged that decision and who allowed the mandatory time-

limit laid down in this regard by the fifth paragraph of Article 230 EC to pass, to call in

question the lawfulness of that decision before the national courts in an action brought

against the measures taken by the national authorities in implementation of that decision

(TWD Textilwerke Deggendorf, paragraphs 17 and 24, and Wiljo, paragraphs 20 and 21,

both cited above). The Court has taken the view that to find otherwise would enable the

recipient of the aid to overcome the definitive nature which a decision necessarily assumed,

by virtue of the principle of legal certainty, once the time-limit laid down for bringing

proceedings had passed (TWD Textilwerke Deggendorf, paragraph 18, and Wiljo, paragraph

21).

31. It is necessary to examine whether, as the Council and Commission submit, the solution

arrived at in TWD Textilwerke Deggendorf may be extended to a case, such as that here in

the main proceedings, in which it is the invalidity of an anti-dumping regulation that is being

invoked in a dispute before a national court by an undertaking in a position such as that of

Nachi Europe.

32. On this point, Nachi Europe submitted during the hearing that the solution arrived at in

TWD Textilwerke Deggendorf could not be applied where the invalidity of a regulation is

pleaded incidentally, since Article 241 EC allows any party to plead the inapplicability of a

regulation as an incidental issue, notwithstanding the expiry of the period laid down in the

fifth paragraph of Article 230 EC.

33. It should first of all be noted in this regard that, according to settled case-law, the

possibility provided by Article 241 EC of pleading the inapplicability of a regulation does not

constitute an independent right of action and may only be exercised incidentally in

proceedings brought before the Court of Justice itself pursuant to a separate provision of the

Treaty (judgments in Joined Cases 31/62 and 33/62 Wöhrmann and Lütticke v Commission

[1962] ECR 501, at 507, Case 33/80 Albini v Council and Commission [1981] ECR 2141,

paragraph 17, and Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others

v Commission and Council [1985] ECR 2523, paragraph 36; order in Case C-64/93 Donatab

and Others v Commission [1993] ECR I-3595, paragraph 19).

34. Since Article 241 EC cannot be invoked before the Court in the absence of a main action

brought before it, that provision cannot as such be applied in the context of the preliminary

ruling procedure provided for in Article 234 EC. As the Advocate General has pointed out in

paragraph 62 of his Opinion, Article 234 EC itself provides for a procedure for resolution of

a question which arises with regard to the validity of a Community measure, where such a

question arises incidentally in a dispute before a national court.

35. It is true, however, that Article 241 EC expresses a general principle of law under which

an applicant must, in proceedings brought under national law against the rejection of his

application, be able to plead the illegality of a Community measure on which the national

decision adopted in his regard is based, and the question of the validity of that Community

measure may thus be referred to the Court in proceedings for a preliminary ruling (Case

216/82 Universität Hamburg [1983] ECR 2771, paragraphs 10 and 12).

36. The Court has also pointed out that this general principle confers on any party to

proceedings the right to challenge, for the purpose of obtaining the annulment of a decision

of direct and individual concern to that party, the validity of previous acts of the institutions

which form the legal basis of the decision which is being attacked, if that party was not

entitled under Article 230 EC to bring a direct action challenging those acts by which it was

thus affected without having been in a position to ask that they be declared void (Case 92/78

Simmenthal v Commission [1979] ECR 777, paragraph 39, and TWD Textilwerke

Deggendorf, paragraph 23).

37. However, this general principle, which has the effect of ensuring that every person has

or will have had the opportunity to challenge a Community measure which forms the basis

of a decision adversely affecting him, does not in any way preclude a regulation from

becoming definitive as against an individual in regard to whom it must be considered to be

an individual decision and who could undoubtedly have sought its annulment under Article

230 EC, a fact which prevents that individual from pleading the illegality of that regulation

before the national court (see, in regard to a Commission decision, TWD Textilwerke

Deggendorf, paragraphs 24 and 25). Such a conclusion applies to regulations imposing anti-

dumping duties by virtue of their dual nature, noted by the Court in the case-law cited in

paragraph 21 of the present judgment, as acts of a legislative nature and acts liable to be

of direct and individual concern to certain traders.

38. In the present case, Nachi Europe, the plaintiff in the main proceedings, could

undoubtedly have sought the annulment of Article 1(2) of Regulation No 2849/92 inasmuch

as it fixed an anti-dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi.

39. As the Advocate General has noted in paragraphs 32 to 34 of his Opinion, Nachi Europe

is an importer which is associated with Nachi Fujikoshi and whose resale prices for the goods

in question were used to construct the export price applied by Regulation No 2849/92 in

order to establish the dumping margins in respect of Nachi Fujikoshi. Pursuant to the case-

law cited in paragraphs 21 and 22 of the present judgment, that fact allowed Nachi Europe

to be regarded as being directly and individually concerned by the provisions of that

regulation which imposed a specific anti-dumping duty on goods manufactured by Nachi

Fujikoshi.

40. It follows from all of the foregoing considerations that the answer to the first question

must be that neither the judgment of the Court of First Instance in NTN Corporation and

Koyo Seiko v Council nor that of the Court of Justice in Commission v NTN and Koyo Seiko

affected the validity of Article 1(2) of Regulation No 2849/92 in so far as it fixes an anti-

dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi.

An importer of those products, such as Nachi Europe, which undoubtedly had a right of

action before the Court of First Instance to seek the annulment of the anti-dumping duty

imposed on those goods, but which did not exercise that right, cannot subsequently plead

the invalidity of that anti-dumping duty before a national court. In such a case, the national

court is bound by the definitive nature of the anti-dumping duty applicable under Article 1(2)

of Regulation No 2849/92 to ball bearings manufactured by Nachi Fujikoshi and imported by

Nachi Europe.”

337. Unión de Pequeños Agricultores, C-50/00, was another failed direct challenge in the Court

of First Instance, with the appeal to the Court of Justice also being dismissed. The court however

emphasised the “complete system” of judicial protection, which had the effect that an applicant

falling outside the direct action provision had to be able to challenge an EU institutional act

“indirectly” by seeking a reference:

“32. As a preliminary point, it should be noted that the appellant has not challenged the

finding of the Court of First Instance, in paragraph 44 of the contested order, to the effect

that the contested regulation is of general application. Nor has it challenged the finding, in

paragraph 56 of that order, that the specific interests of the appellant were not affected by

the contested regulation or the finding, in paragraph 50 of that order, that its members are

not affected by the contested regulation by reason of certain attributes which are peculiar

to them or by reason of factual circumstances in which they are differentiated from all other

persons.

33. In those circumstances, it is necessary to examine whether the appellant, as

representative of the interests of its members, can none the less have standing, in

conformity with the fourth paragraph of Article 173 of the Treaty, to bring an action for

annulment of the contested regulation on the sole ground that, in the alleged absence of

any legal remedy before the national courts, the right to effective judicial protection requires

it.

34. It should be recalled that, according to the second and third paragraphs of Article 173

of the Treaty, the Court is to have jurisdiction in actions brought by a Member State, the

Council or the Commission on grounds of lack of competence, infringement of an essential

procedural requirement, infringement of the Treaty or of any rule of law relating to its

application, or misuse of powers or, when it is for the purpose of protecting their

prerogatives, by the European Parliament, by the Court of Auditors and by the European

Central Bank. Under the fourth paragraph of Article 173, ‘[a]ny natural or legal person may,

under the same conditions, institute proceedings against a decision addressed to that person

or against a decision which, although in the form of a regulation or a decision addressed to

another person, is of direct and individual concern to the former.’

35. Thus, under Article 173 of the Treaty, a regulation, as a measure of general application,

cannot be challenged by natural or legal persons other than the institutions, the European

Central Bank and the Member States (see, to that effect, Case 92/78 Simmenthal v

Commission [1979] ECR 777, paragraph 40).

36. However, a measure of general application such as a regulation can, in certain

circumstances, be of individual concern to certain natural or legal persons and is thus in the

nature of a decision in their regard (see, in particular, Case C-358/89 Extramet Industrie v

Council [1991] ECR I-2501, paragraph 13; Case C-309/89 Codorniu v Council [1994] ECR

I-1853, paragraph 19, and Case C-41/99 P Sadam Zuccherifici and Others v Council [2001]

ECR I-4239, paragraph 27). That is so where the measure in question affects specific natural

or legal persons by reason of certain attributes peculiar to them, or by reason of a factual

situation which differentiates them from all other persons and distinguishes them individually

in the same way as the addressee (see, in particular, Case 25/62 Plaumann v Commission

[1963] ECR 95, 107, and Case C-452/98 Nederlandse Antillen v Council [2001] ECR I-8973,

paragraph 60).

37. If that condition is not fulfilled, a natural or legal person does not, under any

circumstances, have standing to bring an action for annulment of a regulation (see, in that

regard, the order in CNPAAP v Council, cited above, paragraph 38).

38. The European Community is, however, a community based on the rule of law in which

its institutions are subject to judicial review of the compatibility of their acts with the Treaty

and with the general principles of law which include fundamental rights.

39. Individuals are therefore entitled to effective judicial protection of the rights they derive

from the Community legal order, and the right to such protection is one of the general

principles of law stemming from the constitutional traditions common to the Member States.

That right has also been enshrined in Articles 6 and 13 of the European Convention for the

Protection of Human Rights and Fundamental Freedoms (see, in particular, Case 222/84

Johnston [1986] ECR 1651, paragraph 18, and Case C-424/99 Commission v Austria [2001]

ECR I-9285, paragraph 45).

40. By Article 173 and Article 184 (now Article 241 EC), on the one hand, and by Article

177, on the other, the Treaty has established a complete system of legal remedies and

procedures designed to ensure judicial review of the legality of acts of the institutions, and

has entrusted such review to the Community Courts (see, to that effect, Les Verts v

Parliament, paragraph 23). Under that system, where natural or legal persons cannot, by

reason of the conditions for admissibility laid down in the fourth paragraph of Article 173 of

the Treaty, directly challenge Community measures of general application, they are able,

depending on the case, either indirectly to plead the invalidity of such acts before the

Community Courts under Article 184 of the Treaty or to do so before the national courts and

ask them, since they have no jurisdiction themselves to declare those measures invalid (see

Case 314/85 Foto-Frost [1987] ECR 4199, paragraph 20), to make a reference to the Court

of Justice for a preliminary ruling on validity.

41. Thus it is for the Member States to establish a system of legal remedies and procedures

which ensure respect for the right to effective judicial protection.

42. In that context, in accordance with the principle of sincere cooperation laid down in

Article 5 of the Treaty, national courts are required, so far as possible, to interpret and apply

national procedural rules governing the exercise of rights of action in a way that enables

natural and legal persons to challenge before the courts the legality of any decision or other

national measure relative to the application to them of a Community act of general

application, by pleading the invalidity of such an act.

43. As the Advocate General has pointed out in paragraphs 50 to 53 of his Opinion, it is not

acceptable to adopt an interpretation of the system of remedies, such as that favoured by

the appellant, to the effect that a direct action for annulment before the Community Court

will be available where it can be shown, following an examination by that Court of the

particular national procedural rules, that those rules do not allow the individual to bring

proceedings to contest the validity of the Community measure at issue. Such an

interpretation would require the Community Court, in each individual case, to examine and

interpret national procedural law. That would go beyond its jurisdiction when reviewing the

legality of Community measures.

44. Finally, it should be added that, according to the system for judicial review of legality

established by the Treaty, a natural or legal person can bring an action challenging a

regulation only if it is concerned both directly and individually. Although this last condition

must be interpreted in the light of the principle of effective judicial protection by taking

account of the various circumstances that may distinguish an applicant individually (see, for

example, Joined Cases 67/85, 68/85 and 70/85 Van der Kooy v Commission [1988] ECR

219, paragraph 14; Extramet Industrie v Council, paragraph 13, and Codorniu v Council,

paragraph 19), such an interpretation cannot have the effect of setting aside the condition

in question, expressly laid down in the Treaty, without going beyond the jurisdiction

conferred by the Treaty on the Community Courts.

45. While it is, admittedly, possible to envisage a system of judicial review of the legality of

Community measures of general application different from that established by the founding

Treaty and never amended as to its principles, it is for the Member States, if necessary, in

accordance with Article 48 EU, to reform the system currently in force.

46. In the light of the foregoing, the Court finds that the Court of First Instance did not err

in law when it declared the appellant's application inadmissible without examining whether,

in the particular case, there was a remedy before a national court enabling the validity of

the contested regulation to be examined.

47. The appeal must therefore be dismissed.”

338. In British American Tobacco (Investments) Ltd, C-491/01, the ECJ held that a domestic

implementing measure was not essential to enable a reference on the validity of an EU institutional

act:

“32. Under Article 234 EC the Court has jurisdiction to give preliminary rulings concerning

the validity and interpretation of acts of the Community institutions, regardless of whether

they are directly applicable (see, to that effect, Case 111/75 Mazzalai [1976] ECR 657,

paragraph 7, and Case C-373/95 Maso and Others [1997] ECR I-4051, paragraph 28).

33. A directive therefore constitutes an act covered by Article 234 EC even though the

period for its implementation has not yet expired, and a question concerning it may validly

be referred to the Court provided that that reference also satisfies the conditions for

admissibility laid down in the Court's case-law.

34. In that regard, it is to be remembered that when a question on the validity of a measure

adopted by the Community institutions is raised before a national court, it is for that court

to decide whether a decision on the matter is necessary to enable it to give judgment and

consequently whether it should request the Court to rule on that question. Accordingly,

where the national court's questions relate to the validity of a provision of Community law,

the Court is obliged in principle to give a ruling (Case C-408/95 Eurotunnel and Others

[1997] ECR I-6315, paragraph 19).

35. Nevertheless, the Court has held that it cannot give a preliminary ruling on a question

submitted by a national court where, inter alia, it is quite obvious that the ruling sought by

that court on the interpretation or validity of Community law bears no relation to the actual

facts of the main action or its purpose or where the problem is hypothetical (see, in

particular, Joined Cases C-430/99 and C-431/99 Sea-Land Service and Nedlloyd Lijnen

[2002] ECR I-5235, paragraph 46).

36. With regard, first of all, to the actual facts of the dispute in the main proceedings, it is

clear from the order for reference that, pursuant to the permission granted to them for that

purpose by the High Court, the claimants in the main proceedings may make an application

for judicial review of the legality of ‘the intention and/or obligation’ of the United Kingdom

Government to implement the Directive even though, when that application was made, the

period prescribed for implementation of the Directive had not yet expired and that

Government had adopted no national implementation measures. There is, moreover, some

disagreement between the claimants and the Secretary of State for Health as to whether or

not the abovementioned application is well founded.

37. With regard, next, to the relevance of the questions referred to the outcome of the

dispute in the main proceedings, it is first to be observed that, should the Directive be held

to be invalid, that would indeed influence the outcome. The claimants in the main

proceedings maintain that implementation by the United Kingdom Government of a directive

by means of regulations adopted on the basis of Article 2(2) of the European Communities

Act 1972 is subject to the condition that the directive should be valid, with the result that

its invalidity would prevent its being implemented by means of regulations under that

legislation. Second, it must be stated that interpretation of the provisions of the Directive

may also influence the outcome of the dispute in the main proceedings.

38. It is therefore not obvious that the assessment of the Directive's validity or its

interpretation, requested by the national court, bear no relation to the actual facts of the

main action or its purpose or raise a purely hypothetical question.

39. As for the argument that to accept the admissibility of the order for reference seeking

a decision on validity in a situation such as that in the main proceedings could be tantamount

to circumventing the requirements of Article 230 EC, it must be stated that, in the complete

system of legal remedies and procedures established by the EC Treaty with a view to

ensuring judicial review of the legality of acts of the institutions, where natural or legal

persons cannot, by reason of the conditions for admissibility laid down in the fourth

paragraph of that article, directly challenge Community measures of general application,

they are able, depending on the case, either indirectly to plead the invalidity of such acts

before the Community judicature under Article 241 EC or to do so before the national courts

and ask them, since they have no jurisdiction themselves to declare those measures invalid,

to make a reference to the Court of Justice for a preliminary ruling on validity (Case C-50/00

P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 40).

40. The opportunity open to individuals to plead the invalidity of a Community act of general

application before national courts is not conditional upon that act's actually having been the

subject of implementing measures adopted pursuant to national law. In that respect, it is

sufficient if the national court is called upon to hear a genuine dispute in which the question

of the validity of such an act is raised indirectly. That condition is amply fulfilled in the

circumstances of the case in the main proceedings, as is apparent from paragraphs 36 and

37 above.

41. It follows from all the foregoing considerations that the questions referred by the

national court are admissible.”

339. Jégo-Quéré & Cie SA, C-263/02 was a case where the Court of Justice overturned a broader

interpretation of the “individual concern” rule that had been adopted by the Court of First Instance.

The court said:

“29 It should be noted that individuals are entitled to effective judicial protection of the

rights they derive from the Community legal order, and the right to such protection is one

of the general principles of law stemming from the constitutional traditions common to the

Member States. That right has also been enshrined in Articles 6 and 13 of the ECHR (see, in

particular, Case 222/84 Johnston [1986] ECR 1651, paragraph 18, and Case C-50/00 P

Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 39).

30 By Articles 230 EC and Article 241 EC, on the one hand, and by Article 234, on the other,

the Treaty has established a complete system of legal remedies and procedures designed to

ensure review of the legality of acts of the institutions, and has entrusted such review to the

Community Courts. Under that system, where natural or legal persons cannot, by reason of

the conditions for admissibility laid down in the fourth paragraph of Article 230 EC, directly

challenge Community measures of general application, they are able, depending on the case,

either indirectly to plead the invalidity of such acts before the Community Courts under

Article 241 EC or to do so before the national courts and ask them, since they have no

jurisdiction themselves to declare those measures invalid, to make a reference to the Court

of Justice for a preliminary ruling on validity (see Unión de Pequeños Agricultores v Council,

paragraph 40).

31 Thus it is for the Member States to establish a system of legal remedies and procedures

which ensure respect for the right to effective judicial protection (see Unión de Pequeños

Agricultores v Council, paragraph 41).

32 In that context, in accordance with the principle of sincere cooperation laid down in

Article 10 EC, national courts are required, so far as possible, to interpret and apply national

procedural rules governing the exercise of rights of action in a way that enables natural and

legal persons to challenge before the courts the legality of any decision or other national

measure relative to the application to them of a Community act of general application, by

pleading the invalidity of such an act (see Unión de Pequeños Agricultores v Council,

paragraph 42).

33 However, it is not appropriate for an action for annulment before the Community Court

to be available to an individual who contests the validity of a measure of general application,

such as a regulation, which does not distinguish him individually in the same way as an

addressee, even if it could be shown, following an examination by that Court of the particular

national procedural rules, that those rules do not allow the individual to bring proceedings

to contest the validity of the Community measure at issue. Such an interpretation would

require the Community Court, in each individual case, to examine and interpret national

procedural law. That would go beyond its jurisdiction when reviewing the legality of

Community measures (see Unión de Pequeños Agricultores v Council, paragraphs 37 and

43).

34 Accordingly, an action for annulment before the Community Court should not on any

view be available, even where it is apparent that the national procedural rules do not allow

the individual to contest the validity of the Community measure at issue unless he has first

contravened it.

35 In the present case, it should be pointed out that the fact that Regulation No 1162/2001

applies directly, without intervention by the national authorities, does not mean that a party

who is directly concerned by it can only contest the validity of that regulation if he has first

contravened it. It is possible for domestic law to permit an individual directly concerned by

a general legislative measure of national law which cannot be directly contested before the

courts to seek from the national authorities under that legislation a measure which may itself

be contested before the national courts, so that the individual may challenge the legislation

indirectly. It is likewise possible that under national law an operator directly concerned by

Regulation No 1162/2001 may seek from the national authorities a measure under that

regulation which may be contested before the national court, enabling the operator to

challenge the regulation indirectly.

36 Although the condition that a natural or legal person can bring an action challenging a

regulation only if he is concerned both directly and individually must be interpreted in the

light of the principle of effective judicial protection by taking account of the various

circumstances that may distinguish an applicant individually, such an interpretation cannot

have the effect of setting aside the condition in question, expressly laid down in the Treaty.

The Community Courts would otherwise go beyond the jurisdiction conferred by the Treaty

(see Unión de Pequeños Agricultores v Council, paragraph 44).

37 That applies to the interpretation of the condition in question set out at paragraph 51 of

the contested judgment, to the effect that a natural or legal person is to be regarded as

individually concerned by a Community measure of general application that concerns him

directly if the measure in question affects his legal position, in a manner which is both

definite and immediate, by restricting his rights or by imposing obligations on him.

38 Such an interpretation has the effect of removing all meaning from the requirement of

individual concern set out in the fourth paragraph of Article 230 EC.

39 It follows from the above that the Court of First Instance erred in law. Accordingly, the

second plea in law must be declared to be well founded.

...

43 As the Court of First Instance rightly held at paragraphs 23 and 24 of the contested

judgment, Articles 3(d) and 5 of Regulation No 1162/2001, which Jégo‑Quéré seeks to have

annulled, are addressed in abstract terms to undefined classes of persons and apply to

objectively determined situations. Accordingly, those articles are, by their nature, of general

application.

44 However, the Court has consistently held that the fact that a measure is of general

application does not mean that it cannot be of direct and individual concern to certain

economic operators (see, inter alia, Case C-142/00 P Commission v Netherlands Antilles

[2003] ECR I-3484, paragraph 64).

45 In particular, natural or legal persons cannot be individually concerned by such a

measure unless they are affected by it by reason of certain attributes peculiar to them, or

by reason of a factual situation which differentiates them from all other persons and

distinguishes them individually in the same way as an addressee (see, inter alia, Case 25/62

Plaumann v Commission [1963] ECR 95, 107, and Commission v Netherlands Antilles,

paragraph 65).

46 The fact that Jégo-Quéré is the only operator fishing for whiting in the waters south of

Ireland with vessels of over 30 metres in length does not, as the Court of First Instance

points out at paragraph 30 of the contested judgment, differentiate it, as Articles 3(d) and

5 of Regulation No 1162/2001 are of concern to it only in its objective capacity as an entity

which fishes for whiting using a certain fishing technique in a specific area, in the same way

as any other economic operator actually or potentially in the same situation.

47 Furthermore, no provision of Community law required the Commission, when adopting

Regulation No 1162/2001, to follow a procedure under which Jégo‑Quére would be entitled

to claim rights that might be available to it, including the right to be heard. Community law

has accordingly not conferred any particular legal status on an operator such as Jégo-Quéré

with regard to the adoption of Regulation No 1162/2001 (see, to that effect, Case 191/82

FEDIOL v Commission [1983] ECR 2913, paragraph 31).

48 In those circumstances, the fact that Jégo-Quéré was the only fishing company to

propose to the Commission, before Regulation No 1162/2001 was adopted, a particular

solution for the renewal of hake stocks does not make it individually concerned for the

purposes of the fourth paragraph of Article 230 EC.

49 The cross-appeal should accordingly be dismissed.

50 In the light of the foregoing, the contested judgment should be set aside, and, having

regard to the first paragraph of Article 61 of the Statute of the Court of Justice, the

application for annulment of Articles 3(d) and 5 of Regulation No 1162/2001 must be

declared to be inadmissible.”

340. Thus the traditional, strict, interpretation of the concept of direct and individual concern

remained in place. A wide interpretation was not necessary to create a complete system of legal

protection because a litigant before a domestic court had a number of procedural options available

to enable her to litigate. The question that troubled the Court of First Instance was essentially, what

if there is no national implementing measure to enable an applicant to litigate? But the Court of

Justice didn’t see that as a problem - it was up to the legal system of the member state to ensure

that there would be a remedy. Some creative options are mentioned in the judgment.

341. Front national v European Parliament, C-486/01 was a case where the Grand Chamber held

that a rule in the European Parliament that prevented members of the Front national from forming

a group of their choice was not of “direct concern” to the Front national party.

342. The Grand Chamber said:

“34 In that regard, it is appropriate to bear in mind that, by virtue of settled case-law, the

condition that the decision forming the subject-matter of the proceedings must be of ‘direct

concern’ to a natural or legal person, as it is stated in the fourth paragraph of Article 230

EC, requires the Community measure complained of to affect directly the legal situation of

the individual and leave no discretion to the addressees of that measure, who are entrusted

with the task of implementing it, such implementation being purely automatic and resulting

from Community rules without the application of other intermediate rules (see, inter alia,

Case C‑404/96 P Glencore Grain v Commission [1998] ECR I‑2435, paragraph 41, and the

case-law cited).

35 In this instance there is no question that the contested act – to the extent to which it

deprived the Members having declared the formation of the TDI Group, and in particular the

Members from the Front National’s list, of the opportunity of forming by means of the TDI

Group a political group within the meaning of Rule 29 – affected those Members directly. As

the Court of First Instance rightly pointed out in paragraphs 59 and 65 of the judgment

under appeal, those Members were in fact prevented, solely because of the contested act,

from forming themselves into a political group and were henceforth deemed to be non-

attached Members for the purposes of Rule 30; as a result, they were afforded more limited

parliamentary rights and lesser material and financial advantages than those they would

have enjoyed had they been members of a political group within the meaning of Rule 29.

36 Such a conclusion cannot be drawn, however, in relation to a national political party such

as the Front National. As the Advocate General has noted in point 40 of his Opinion, although

it is natural for a national political party which puts up candidates in the European elections

to want its candidates, once elected, to exercise their mandate under the same conditions

as the other Members of the Parliament, that aspiration does not confer on it any right for

its elected representatives to form their own group or to become members of one of the

groups being formed within the Parliament.

37 It must be observed that under Rule 29(2) the formation of a political group within the

Parliament requires a minimum number of Members from various Member States and that,

in any event, Rule 29(1) mentions only the possibility of Members forming themselves into

groups according to their political affinities. The rule assigns no specific function in the

process of forming political groups to the national political parties to which those Members

belong.

38 In those circumstances, it cannot be maintained that a national political party is directly

affected by the contested act, which applies, and which in fact, by virtue of the actual

wording of Rule 29, could apply, only to the Members of the Parliament who had declared

the formation of the TDI Group.”

343. Some might say commonsensically, the Court of First Instance had said, as recorded by the

Grand Chamber:

“39 In paragraph 66 of the judgment under appeal, the Court of First Instance admittedly

found that, since the contested act deprived the Members concerned, particularly those

elected from the Front National’s list, of the opportunity to organise themselves into a

political group, it directly impinged on the promotion of the ideas and projects of the party

which they represented in the European Parliament and, hence, on the attainment of that

political party’s stipulated object at European level, the reason why the Front National was

directly affected by the act.”

344. The Grand Chamber rejected that:

“40 Such effects, however, cannot be regarded as directly caused by the contested act.

Even on the assumption that such consequences ensue, they result from the fact that

Members who do not belong to a political group are deemed to be non-attached Members

under Rule 30 and from the fact that non-attached Members are afforded a less favourable

status by Rule 30. The Front National is liable to be affected only indirectly by the contested

act, by virtue of the consequences which the act entails for the status of the Members who

adhere to that party.

41 The Court must also reject the argument which the Front National derives from the

Court’s recognition, in its judgment in Les Verts v Parliament, of the principle of equal

treatment for parties in an electoral campaign, which remains effective once the ballot is

over. That judgment concerned a quite different situation from the one at issue in this

instance.

42 Thus, the decisions of the Parliament at issue in Les Verts v Parliament were of direct

concern to the applicant in that case, since they provided, in the period preceding the

European elections in 1984, for the allocation of appropriations between the political

groupings – which included that party – without any further measure being necessary, given

that the calculation of the proportion of the appropriations to be awarded to each of the

political groupings concerned was automatic and left no room for any discretion, as the Court

stated in paragraph 31 of its judgment.

43 In the present case, however, the Front National is not directly concerned by the

contested act. Although it cannot be denied that no implementing measure is necessary for

the act to produce effects, there is also no question that, pursuant to the actual wording of

Rule 29, the act can produce effects only on the legal situation of Members of the Parliament

and not on that of national political parties from whose lists those Members were elected

and which, in some cases, have played a part in securing the election of those Members.

Contrary to the requirements laid down by the case-law referred to in paragraph 34 of this

judgment, such an act therefore does not directly produce effects on the legal situation of

the Front National.

44 In view of all the foregoing considerations, it must therefore be concluded that the Court

of First Instance erred in law in holding, in paragraph 67 of the judgment under appeal, that

the contested act directly affected the Front National, and the judgment must be set aside

in so far as it declared the Front National’s action admissible.”

345. One can only pause here to say that if a rule preventing a party’s members from joining a

political group isn’t of direct concern to the party, as that phrase is restrictively interpreted by the

CJEU, this applicant wouldn’t have had a roasted snowball’s chance of getting a ruling that a

Commission decision addressed to Ireland was of “direct concern”, as so interpreted, to it as an NGO

with a general environmental brief.

346. In ABNA and Others, C‑453/03, C‑11/04, C‑12/04 and C‑194/04, the court returned to the

problem of interim remedies, confirming that national courts, though not administrative authorities,

had power in effect to suspend the application of EU acts in certain circumstances. The discussion

confirms the relevance of the preliminary ruling procedure as a vehicle for the issue of validity to be

ultimately determined by the CJEU.

“103 As the Court has held in its judgment in Joined Cases C‑143/88 and C‑92/89

Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I‑415, paragraph 18

(‘Zuckerfabrik’), references for preliminary rulings on the validity of a measure, like actions

for annulment, allow the legality of acts of the Community institutions to be reviewed. In

the context of actions for annulment, Article 242 EC enables applicants to request

enforcement of the contested act to be suspended and empowers the Court to order such

suspension. The coherence of the system of interim legal protection therefore requires that

national courts should also be able to order suspension of enforcement of a national

administrative measure based on a Community regulation, the legality of which is contested

(see also Case C‑465/93 Atlanta Fruchthandelsgesellschaft and Others (I) [1995] ECR

I‑3761, paragraph 22, and Case C‑68/95 T. Port [1996] ECR I‑6065, paragraph 49; on the

Court’s lack of jurisdiction to order interim measures in the context of preliminary-ruling

proceedings, see the order of the President of the Court in Case C‑186/01 R Dory [2001]

ECR I‑7823, paragraph 13).

104 The Court has, however, ruled that the uniform application of Community law, which

is a fundamental requirement of the Community legal order, means that the suspension of

enforcement of administrative measures based on a Community regulation, whilst it is

governed by national procedural law, in particular as regards the making and examination

of the application, must in all the Member States be subject, at the very least, to conditions

which are uniform so far as the granting of such relief is concerned and which it has defined

as being the same conditions as those of the application for interim relief brought before the

Court (Zuckerfabrik, cited above, paragraphs 26 and 27).

105 The Court has pointed out in particular that, in order to determine whether the

conditions relating to urgency and the risk of serious and irreparable damage have been

satisfied, the national court dealing with the application for interim relief must examine the

circumstances particular to the case before it and consider whether immediate enforcement

of the measure which is the subject of the application for interim relief would be likely to

result in irreversible damage to the applicant which could not be made good if the

Community act were to be declared invalid (Zuckerfabrik, paragraph 29; Atlanta

Fruchthandelsgesellschaft and Others (I), cited above, paragraph 41).

106 As the court responsible for applying, within the framework of its jurisdiction, the

provisions of Community law and consequently under an obligation to ensure that

Community law is fully effective, the national court, when dealing with an application for

interim relief, must take account of the damage which the interim measure may cause to

the legal regime established by a Community measure for the Community as a whole. It

must consider, on the one hand, the cumulative effect which would arise if a large number

of courts were also to adopt interim measures for similar reasons and, on the other, those

special features of the applicant’s situation which distinguish it from the other operators

concerned (Atlanta Fruchthandelsgesellschaft and Others (I), paragraph 44).

107 In particular, if the grant of interim relief may represent a financial risk for the

Community, the national court must also be in a position to require the applicant to provide

adequate guarantees, such as the deposit of money or other security (Zuckerfabrik,

paragraph 32; Atlanta Fruchthandelsgesellschaft and Others (I), paragraph 45).

108 The unavoidable conclusion in this regard is that national administrative authorities,

such as those in issue in Case C‑194/04, are not in a position to adopt interim measures

while complying with the conditions for granting such measures as defined by the Court.

109 In this context, it is in particular appropriate to point out that the actual status of

those authorities is not in general such as to guarantee that they have the same degree of

independence and impartiality as that which national courts are recognised as having.

Likewise, it is not certain that such authorities would benefit from the exercise of the

adversarial principle inherent to judicial proceedings, which allows account to be taken of

the arguments put forward by the different parties before the interests in issue are weighed

one against the other at the time when a decision is being taken.

110 So far as concerns the argument that considerations of expedition or cost may justify

the need to recognise the national administrative authorities as having competence, it must

be emphasised that national courts ruling in applications for interim relief may in general

adopt decisions within very short periods of time. In any event, an argument relating to

expedition or cost cannot be conclusive in regard to the guarantees offered by the systems

of judicial protection established by the respective legal systems of the Member States.

111 The answer to the question referred must therefore be that, even in the case in which

a court of a Member State forms the view that the conditions have been satisfied under

which it may suspend application of a Community measure, in particular where the question

of the validity of that measure has already been referred to the Court, the competent

national administrative authorities of the other Member States cannot suspend application

of that measure until such time as the Court of Justice has ruled on its validity. National

courts alone are entitled to verify, taking into consideration the specific circumstances of the

cases brought before them, whether the conditions governing the grant of interim relief have

been satisfied.”

347. In Intertanko, C‑308/06, the court considered that the power to refer a question as to validity

of an EU act included the power to refer it even before the expiry of the time for transposition and

in the absence of any transposing measures (so much for the State’s complaint here about the lack

of a transposition challenge). Only if it was “obvious” that the reference was unnecessary would the

ECJ decline to rule on the validity of the EU measure:

“Admissibility

30 The French Government questions whether the reference for a preliminary ruling is

admissible, the national court having, in its view, failed to set out the circumstances in which

the case has been brought before it. The French Government submits that, in contrast to

cases such as that giving rise to the judgment in Case C-491/01 British American Tobacco

(Investments) and Imperial Tobacco [2002] ECR I-11453, the order for reference does not

state that the claimants in the main proceedings have sought to bring an action contesting

the transposition of Directive 2005/35 by the United Kingdom of Great Britain and Northern

Ireland.

31 In that regard, it is to be remembered that, when a question on the validity of a

measure adopted by the institutions of the European Community is raised before a national

court, it is for that court to decide whether a decision on the matter is necessary to enable

it to give judgment and, consequently, whether it should request the Court to rule on that

question. Accordingly, where the national court’s questions relate to the validity of a

provision of Community law, the Court is obliged in principle to give a ruling (British

American Tobacco (Investments) and Imperial Tobacco, paragraph 34 and the case-law

cited).

32 It is possible for the Court to refuse to give a preliminary ruling on a question submitted

by a national court only where, inter alia, it is quite obvious that the ruling sought by that

court on the interpretation or validity of Community law bears no relation to the actual facts

of the main action or its purpose or where the problem is hypothetical (British American

Tobacco (Investments) and Imperial Tobacco, paragraph 35 and the case-law cited).

33 In the present case, it is clear from the order for reference that the claimants in the

main proceedings have made an application to the High Court for judicial review of

implementation of Directive 2005/35 in the United Kingdom and that they may make such

an application even though, when the application was made, the period prescribed for

implementation of the directive had not yet expired and no national implementing measures

had been adopted.

34 Nor is it disputed before the Court of Justice that the questions submitted are relevant

to the outcome of the main proceedings, as the adoption of national measures designed to

transpose a directive into domestic law in the United Kingdom may be subject to the

condition that the directive be valid (see British American Tobacco (Investments) and

Imperial Tobacco, paragraph 37).

35 It is therefore not obvious that the ruling sought by the national court on the validity

of Directive 2005/35 bears no relation to the actual facts of the main action or its purpose

or concerns a hypothetical problem.”

348. In E and F, C‑550/09, another case of a validity challenge to EU law by way of a reference,

the court again emphasised the complete system of remedies, and that proceeding by reference is

only ruled out if a direct action was available without question, and that a challenge to a “legislative

act” in a domestic court envisaged there was a decision or act to challenge at domestic level:

“43 At the outset, it should be emphasised that, by contrast with the case which gave rise

to the judgment in Joined Cases C‑402/05 P and C-415/05 P Kadi and Al Barakaat

International Foundation v Council and Commission [2008] ECR I‑6351, which concerned a

measure freezing the applicants’ assets, the provisions whose legality is under consideration

in this reference for a preliminary ruling are relied upon in support of accusations relating to

an infringement of Regulation No 2580/2001, which is punishable under the applicable

national law by criminal penalties entailing custodial sentences.

44 Against that background, it should be noted that the European Union is based on the

rule of law and the acts of its institutions are subject to review by the Court of their

compatibility with EU law and, in particular, with the Treaty on the Functioning of the

European Union and the general principles of law. The Treaty on the Functioning of the

European Union has established a complete system of legal remedies and procedures

designed to confer on the judicature of the European Union jurisdiction to review the legality

of acts of the institutions of the European Union (see, to that effect, Case C-50/00 P Unión

de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraphs 38 and 40, and Kadi and

Al Barakaat International Foundation v Council and Commission, paragraph 281).

45 It follows that, in proceedings before the national courts, every party has the right to

plead before the court hearing the case the illegality of the provisions contained in legislative

acts of the European Union which serve as the basis for a decision or act of national law

relied upon against him and to prompt that court, which does not have jurisdiction itself to

make a finding of such illegality, to put that question to the Court by means of a reference

for a preliminary ruling (see, to that effect, Cases C‑239/99 Nachi Europe [2001] ECR I‑1197,

paragraph 35, and Unión de Pequeños Agricultores v Council, paragraph 40).

46 The recognition of that right presupposes, however, that the party in question had no

right of direct action under Article 263 TFEU by which it could challenge provisions, the

consequences of which it is suffering without having been able to seek their annulment (see,

to that effect, Case C-188/92 TWD Textilwerke Deggendorf [1994] ECR I‑833, paragraph

23, and Nachi Europe, paragraph 36).

47 Pursuant to Paragraph 34(4) of the AWG, in the case before the referring court, the

inclusion of DHKP-C on the list during the period prior to 29 June 2007 serves, together with

Regulation No 2580/2001, as the basis for the indictment of the defendants in respect of

that period.

48 Accordingly, it is necessary to determine whether, if the defendants had brought an

action for annulment of that listing, the admissibility of their action would have been beyond

doubt (see, to that effect, Case C-343/07 Bavaria and Bavaria Italia [2009] ECR I‑0000,

paragraph 40).

49 In that regard, it should be pointed out that the defendants themselves were not

placed on that list: the entry on the list relates only to DHKP‑C. Moreover, the order for

reference does not give any information on the basis of which it could be established that

the position occupied by the defendants within DHKP‑C would have conferred on them the

power to represent that organisation in an action for annulment brought before the

judicature of the European Union.

50 In addition, it cannot be held that the defendants were indisputably ‘directly and

individually concerned’ by the listing at issue for the purposes of the fourth paragraph of

Article 230 EC, which was applicable at the material time.

51 The reason for this is that, like Regulation No 2580/2001, that inclusion on the list is

of general application. It serves, together with that regulation, to impose on an

indeterminate number of persons an obligation to comply with specific restrictive measures

against DHKP-C (see, by analogy, Kadi and Al Barakaat International Foundation v Council

and Commission, paragraphs 241 to 244).

52 It follows that, as the national court pointed out, the defendants – unlike DHKP‑C –

did not have an indisputable right to bring an action under Article 230 EC for the annulment

of that listing.”

349. Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11, was another

chimerical direct action before the General Court. That court said that a direct action was

unavailable, and the Grand Chamber agreed. The Grand Chamber set out the findings of the General

Court:

“10 First, the General Court held that, although the contested regulation was adopted on

the basis of the EC Treaty, the conditions of admissibility of the action, which was brought

after the entry into force of the FEU Treaty, have to be examined on the basis of Article 263

TFEU.

11 The General Court then examined the admissibility of the action before it. In that

context, it first assessed the concept of ‘regulatory act’ within the meaning of the fourth

paragraph of Article 263 TFEU. In that regard, the General Court undertook a literal,

historical and teleological interpretation of that provision and made the following findings in

paragraphs 41 to 51 of the order under appeal:

‘41 In the first place and as a reminder, the fourth paragraph of Article 230 EC

allowed natural and legal persons to institute proceedings against decisions as acts of

individual application and against acts of general application such as a regulation which

is of direct concern to those persons and affects them by reason of certain attributes

peculiar to them, or by reason of a factual situation which differentiates them from all

other persons and distinguishes them individually in the same way as the addressee of

a decision (see, to that effect, Case 25/62 Plaumann v Commission [1963] ECR 95, 107,

and Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677,

paragraph 36).

42 The fourth paragraph of Article 263 TFEU, even though it omits the word ‘decision’

reproduces those two possibilities and adds a third. It permits the institution of

proceedings against individual acts, against acts of general application which are of

direct and individual concern to a natural or legal person and against a regulatory act

which is of direct concern to them and does not entail implementing measures. It is

apparent from the ordinary meaning of the word ‘regulatory’ that the acts covered by

that third possibility are also of general application.

43 Against that background, it is clear that that possibility does not relate to all acts

of general application, but to a more restricted category, namely regulatory acts.

44 The first paragraph of Article 263 TFEU sets out a number of categories of acts

of the European Union which may be subject to a review of legality, namely, first,

legislative acts and, secondly, other binding acts intended to produce legal effects vis-

à-vis third parties, which may be individual acts or acts of general application.

45 It must be concluded that the fourth paragraph of Article 263 TFEU, read in

conjunction with its first paragraph, permits a natural or legal person to institute

proceedings against an act addressed to that person and also (i) against a legislative or

regulatory act of general application which is of direct and individual concern to them

and (ii) against certain acts of general application, namely regulatory acts which are of

direct concern to them and do not entail implementing measures.

46 Furthermore, such an interpretation of the word ‘regulatory’, and of the equivalent

word in the different language versions of the FEU Treaty, as opposed to the word

‘legislative’, is also apparent from a number of other provisions of the FEU Treaty, in

particular Article 114 TFEU, concerning the approximation of the “provisions laid down

by law, regulation or administrative action in Member States”.

47 In that regard, it is necessary to reject the … argument [of the appellants and Mr

Agathos] that the distinction between legislative and regulatory acts, as proposed by

the Parliament and the Council and upheld in paragraphs 42 to 45 above, consists of

adding the qualifier ‘legislative’ to the word ‘act’ with reference to the first two

possibilities covered by the fourth paragraph of Article 263 TFEU. As is apparent from

the conclusion drawn in paragraph 45 above, the word ‘act’ with reference to those first

two possibilities covers not only an act addressed to the natural or legal person, but

also any act, legislative or regulatory, which is of direct and individual concern to them.

In particular, legislative acts and regulatory acts entailing implementing measures are

covered by that latter possibility.

48 Furthermore, it must be stated that, contrary to the … claim [of the appellants

and Mr Agathos], it is apparent from the wording of the final part of the fourth paragraph

of Article 263 TFEU that the objective of the Member States was not to limit the scope

of that provision solely to delegated acts within the meaning of Article 290 TFEU, but

more generally, to regulatory acts.

49 In the second place, the interpretation of the fourth paragraph of Article 263

TFEU upheld in paragraphs 42 to 45 above is borne out by the history of the process

which led to the adoption of that provision, which had initially been proposed as [Article

III‑365(4) of the proposed] treaty establishing a Constitution for Europe. It is apparent,

inter alia from the cover note of the Praesidium of the Convention (Secretariat of the

European Convention, CONV 734/03) of 12 May 2003, that, in spite of the proposal for

an amendment to the fourth paragraph of Article 230 EC mentioning ‘an act of general

application’, the Praesidium adopted another option, that mentioning ‘a regulatory act’.

As is apparent from the cover note referred to above, that wording enabled ‘a distinction

to be made between legislative acts and regulatory acts, maintaining a restrictive

approach in relation to actions by individuals against legislative acts (for which the ‘of

direct and individual concern’ condition remains applicable)’.

50 In the third place, on account of the choice of such wording in the fourth paragraph

of Article 263 TFEU, it must be observed that the purpose of that provision is to allow a

natural or legal person to institute proceedings against an act of general application

which is not a legislative act, which is of direct concern to them and does not entail

implementing measures, thereby avoiding the situation in which such a person would

have to infringe the law to have access to the court (see cover note of the Praesidium

of the Convention, referred to above). As is apparent from the analysis in the preceding

paragraphs, the wording of the fourth paragraph of Article 263 TFEU does not allow

proceedings to be instituted against all acts which satisfy the criteria of direct concern

and which are not implementing measures or against all acts of general application

which satisfy those criteria, but only against a specific category of acts of general

application, namely regulatory acts. Consequently, the conditions of admissibility of an

action for annulment of a legislative act are still more restrictive than in the case of

proceedings instituted against a regulatory act.

51 That finding cannot be called into question by the … argument [of the appellants

and Mr Agathos] relating to the right to effective judicial protection, inter alia having

regard to Article 47 of the Charter of Fundamental Rights of the European Union (OJ

2007 C 303, p. 1 [‘the Charter’]). According to settled case-law, the Courts of the

European Union may not, without exceeding their jurisdiction, interpret the conditions

under which an individual may institute proceedings against a regulation in a way which

has the effect of setting aside those conditions, expressly laid down in the Treaty, even

in the light of the principle of effective judicial protection (see, to that effect, Case

C‑263/02 P Commission v Jégo-Quéré [2004] ECR I‑3425, paragraph 36, and order of

9 January 2007 in Case T‑127/05 Lootus Teine Osaühing v Council, not published in the

ECR, paragraph 50).’

12 The General Court concluded, in paragraph 56 of the order under appeal, that ‘the

meaning of ‘regulatory act’ for the purposes of the fourth paragraph of Article 263 TFEU

must be understood as covering all acts of general application apart from legislative acts’.

Consequently, a legislative act may form the subject matter of an action for annulment

brought by a natural or legal person only if it is of direct and individual concern to them.”

350. The Grand Chamber went on to say:

“Findings of the Court

89 By the third ground of appeal, the appellants claim, in essence, that the interpretation

adopted by the General Court of the fourth paragraph of Article 263 TFEU is in breach of

Article 47 of the Charter in that it enables natural and legal persons to bring actions for

annulment of European Union legislative acts solely where those acts are of direct and

individual concern to them, within the meaning of the fourth paragraph of Article 263 TFEU.

90 First, it must be recalled that judicial review of compliance with the European Union

legal order is ensured, as can be seen from Article 19(1) TEU, by the Court of Justice and

the courts and tribunals of the Member States (see, to that effect, Opinion of the Court 1/09

[2011] ECR I-1137, paragraph 66).

91 Further, the European Union is a union based on the rule of law in which the acts of

its institutions are subject to review of their compatibility with, in particular, the Treaties,

the general principles of law and fundamental rights (see, to that effect, Case C‑550/09 E

and F [2010] ECR I‑6213, paragraph 44).

92 To that end, the FEU Treaty has established, by Articles 263 and 277, on the one

hand, and Article 267, on the other, a complete system of legal remedies and procedures

designed to ensure judicial review of the legality of European Union acts, and has entrusted

such review to the Courts of the European Union (see Case 294/83 Les Verts v Parliament

[1986] ECR 1339, paragraph 23; Unión de Pequeños Agricultores v Council, paragraph 40;

Reynolds Tobacco and Others v Commission, paragraph 80; and Case C‑59/11 Association

Kokopelli [2012] ECR, paragraph 34).

93 Accordingly, natural or legal persons who cannot, by reason of the conditions of

admissibility stated in the fourth paragraph of Article 263 TFEU, challenge directly European

Union acts of general application do have protection against the application to them of those

acts. Where responsibility for the implementation of those acts lies with the European Union

institutions, those persons are entitled to bring a direct action before the Courts of the

European Union against the implementing measures under the conditions stated in the fourth

paragraph of Article 263 TFEU, and to plead, pursuant to Article 277 TFEU, in support of that

action, the illegality of the general act at issue. Where that implementation is a matter for

the Member States, such persons may plead the invalidity of the European Union act at issue

before the national courts and tribunals and cause the latter to request a preliminary ruling

from the Court of Justice, pursuant to Article 267 TFEU (see, to that effect, Les Verts v

Parliament, paragraph 23).

94 In that context, it must be emphasised that, in proceedings before the national courts,

individual parties have the right to challenge before the courts the legality of any decision

or other national measure relative to the application to them of a European Union act of

general application, by pleading the invalidity of such an act (see, to that effect, Unión de

Pequeños Agricultores v Council, paragraph 42, and E and F, paragraph 45).

95 It follows that requests for preliminary rulings which seek to ascertain the validity of

a measure constitute, like actions for annulment, means for reviewing the legality of

European Union acts (see Joined Cases C-143/88 and C-92/89 Zuckerfabrik

Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I-415, paragraph 18, and Joined

Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others [2005] ECR I-10423,

paragraph 103).

96 In that regard, it must be borne in mind that where a national court or tribunal

considers that one or more arguments for invalidity of a European Union act, put forward by

the parties or, as the case may be, raised by it of its own motion, are well founded, it is

incumbent upon it to stay proceedings and to make a reference to the Court for a preliminary

ruling on the act’s validity, the Court alone having jurisdiction to declare a European Union

act invalid (Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraphs 27 and 30 and

the case-law cited).

97 Having regard to the protection conferred by Article 47 of the Charter, it must be

observed that that article is not intended to change the system of judicial review laid down

by the Treaties, and particularly the rules relating to the admissibility of direct actions

brought before the Courts of the European Union, as is apparent also from the Explanation

on Article 47 of the Charter, which must, in accordance with the third subparagraph of

Articles 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the

interpretation of the Charter (see the judgment of 22 January 2013 in Case C‑283/11 Sky

Österreich [2013] ECR, paragraph 42, and the judgment of 18 July 2013 in Case C‑426/11

Alemo‑Herron and Others [2013] ECR, paragraph 32).

98 Accordingly, the conditions of admissibility laid down in the fourth paragraph of Article

263 TFEU must be interpreted in the light of the fundamental right to effective judicial

protection, but such an interpretation cannot have the effect of setting aside the conditions

expressly laid down in that Treaty (see, to that effect, Unión de Pequeños Agricultores v

Council, paragraph 44, and Commission v Jégo-Quéré, paragraph 36).

99 As regards the role of the national courts and tribunals, referred to in paragraph 90

of this judgment, it must be recalled that the national courts and tribunals, in collaboration

with the Court of Justice, fulfil a duty entrusted to them both of ensuring that in the

interpretation and application of the Treaties the law is observed (Opinion of the Court 1/09,

paragraph 69).

100 It is therefore for the Member States to establish a system of legal remedies and

procedures which ensure respect for the fundamental right to effective judicial protection

(Unión de Pequeños Agricultores v Council, paragraph 41, and Commission v Jégo-Quéré,

paragraph 31).

101 That obligation on the Member States was reaffirmed by the second subparagraph of

Article 19(1) TEU, which states that Member States ‘shall provide remedies sufficient to

ensure effective judicial protection in the fields covered by European Union law’.

102 In that regard, in the absence of European Union rules governing the matter, it is for

the domestic legal system of each Member State to designate, with due observance of the

requirements stemming from paragraphs 100 and 101 of this judgment and the principles

of effectiveness and equivalence, the courts and tribunals with jurisdiction and to lay down

the detailed procedural rules governing actions brought to safeguard rights which individuals

derive from European Union law (see, to that effect, inter alia, Case C-268/06 Impact [2008]

ECR I-2483, paragraph 44 and the case-law cited; Case C-118/08 Transportes Urbanos y

Servicios Generales [2010] ECR I-635, paragraph 31; and Joined Cases C-317/08 to

C‑320/08 Alassini and Others [2010] ECR I-2213, paragraphs 47 and 61).

103 As regards the remedies which Member States must provide, while the FEU Treaty

has made it possible in a number of instances for natural and legal persons to bring a direct

action, where appropriate, before the Courts of the European Union, neither the FEU Treaty

nor Article 19 TEU intended to create new remedies before the national courts to ensure the

observance of European Union law other than those already laid down by national law (Case

C‑432/05 Unibet [2007] ECR I‑2271, paragraph 40).

104 The position would be otherwise only if the structure of the domestic legal system

concerned were such that there was no remedy making it possible, even indirectly, to ensure

respect for the rights which individuals derive from European Union law, or again if the sole

means of access to a court was available to parties who were compelled to act unlawfully

(see, to that effect, Unibet, paragraphs 41 and 64 and the case-law cited).

105 As regards the appellants’ argument that the interpretation adopted by the General

Court of the concept of ‘regulatory act’, provided for in the fourth paragraph of Article 263

TFEU, creates a gap in judicial protection, and is incompatible with Article 47 of the Charter

in that its effect is that any legislative act is virtually immune to judicial review, it must be

stated that the protection conferred by Article 47 of the Charter does not require that an

individual should have an unconditional entitlement to bring an action for annulment of

European Union legislative acts directly before the Courts of the European Union.

106 Last, neither that fundamental right nor the second subparagraph of Article 19(1) TEU

require that an individual should be entitled to bring actions against such acts, as their

primary subject matter, before the national courts or tribunals.

107 In those circumstances, the third ground of appeal must be rejected as being

unfounded.”

351. Those final comments regarding the lack of any requirement that an applicant has an

unconditional entitlement to seek to annul legislative acts directly before national courts, as the

primary subject matter of proceedings (that is, in the absence of any existing, proposed, or possible

implementing measures) may be relevant to a limited category of cases. Friends of the Irish

Environment v. Minister for Communications [2020] IEHC 383, [2020] 9 JIC 1405 (Simons J.),

upheld in Friends of the Irish Environment v. Minister for Communications [2022] IECA 298 (Noonan

J.), was one of those limited cases. But that is a totally different situation where the decision

challenged didn’t involve domestic transposition. The reliance on that case by the State and the IFA

is totally misconceived. The present case isn’t in that category - here, it is implementing measures

all the way down. That difference isn’t incidental – it is absolutely fundamental and jurisdictional.

352. The cornerstone of the Friends decision was that the invalidity of the Commission decision

at issue there was in effect the sole relief (or at least that’s how Simons J. characterised it - see in

particular para. 71). Thus there was no basis for a reference, which could only arise if it is necessary

for the domestic court itself to give judgment. It was on that basis that he convincingly distinguished

the judgment of 6 October 2015, Schrems, C-362/14, ECLI:EU:C:2015:650, because in that case

there was at least some dispute between the applicant and the national regulatory authorities

capable of being litigated domestically (para. 89). That’s the distinction between there being little

left over after a reference (not all that unusual, one might argue) and there being nothing at all left

over - which would mean that a reference isn’t suitable in the first place.

353. In the present case there is plenty left over, specifically any domestic administrative or

legislative actions that are predicated on the derogation having been approved by the Commission.

The general claim for declaratory relief is there for such contingencies should the appropriate relief

not otherwise commend itself. Relief 3 seeks a declaration about the validity of the GAP regulations

of 2022, which were amended textually in the amending Regulations of 2022 so as to specifically

quote the Commission decision. Reference in any legal document to an enactment is presumptively

to the enactment as amended (this is reflected in s. 14(2) of the Interpretation Act 2005, which is

closely related to s. 14(1) which applies not just to citations in enactments but to “any ... other

document”), and that applies here. So the applicant here has a ready-made domestic platform from

which it can launch a potential reference.

354. Various strands are brought together in Rosneft, C‑72/15:

“Admissibility

48 The Estonian and Polish Governments and the Council consider that Question 1 is

inadmissible. They contend that the referring court has not explained the connection

between that question and the legal proceedings at the national level, and are sceptical as

to whether an answer to that question is necessary. Further, the Council argues that

questions raised in the dispute in the main proceedings can be resolved in the light of

Regulation No 833/2014 alone, there being no need to give a ruling on the validity of

Decision 2014/512.

49 In that regard, it must be borne in mind that when a question on the validity of a

measure adopted by the institutions of the European Union is raised before a national court

or tribunal, it is for that court or tribunal to decide whether a preliminary ruling on the matter

is necessary to enable it to give judgment and consequently whether it should ask the Court

to rule on that question. Consequently, where the questions referred by the national court

or tribunal concern the validity of a provision of EU law, the Court is, as a general rule,

obliged to give a ruling (judgment of 3 June 2008, Intertanko and Others, C‑308/06,

EU:C:2008:312, paragraph 31 and the case-law cited).

50 The Court may refuse to give a ruling on a question referred by a national court for a

preliminary ruling, under Article 267 TFEU, only where, for instance, the requirements

concerning the content of a request for a preliminary ruling, set out in Article 94 of the Rules

of Procedure, are not satisfied or where it is quite obvious that the interpretation of a

provision of European Union law, or the assessment of its validity, which is sought by the

national court bears no relation to the actual facts of the main action or to its purpose or

where the problem is hypothetical (see, to that effect, judgments of 10 December 2002,

British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741,

paragraph 35; of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 19, and of

15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 54).

51 In this case, it is clear from the order for reference that the validity of certain provisions

of Decision 2014/512 is challenged by Rosneft in the procedure at issue in the main

proceedings. According to the referring court, the arguments made before it related, inter

alia, to the proposition that, if the Court does not have jurisdiction to give a ruling on the

validity of that decision, it is for the national court to ensure that there exist legal remedies

sufficient to ensure effective judicial protection in the field of the CFSP, in accordance with

the second subparagraph of Article 19(1) TEU.

52 Since the referring court considers that the analysis of its own jurisdiction must

depend on that of the Court, the first question, which concerns the jurisdiction of the Court,

has a direct connection to the subject matter of the main proceedings.

53 Further, it is clear that, if the Court were to examine solely the questions raised in

the main proceedings in the light of Regulation No 833/2014, that would be likely to provide

an inadequate answer to the concerns of the referring court with respect to the validity of

the relevant restrictive measures.

54 The referring court considers that were decisions of the Council adopted within the

framework of the CFSP not to be open to challenge, that could undermine the fundamental

right of access to justice, and states that it is a requirement of Article 19 TEU that effective

judicial protection be ensured in the fields covered by EU law.

55 Accordingly, since a prerequisite for the validity of a regulation adopted on the basis

of Article 215 TFEU is the prior adoption of a valid decision in accordance with the provisions

relating to the CFSP, the question of the validity of Decision 2014/512 is clearly relevant in

the context of the present case.

56 It should be recalled, further, that the Member States must, pursuant to Article 29

TEU, ensure that their national policies conform to the Union position adopted under the

CFSP. It follows that were Regulation No 833/2014 to be declared invalid, that would, as a

matter of principle, have no effect on the obligation of Member States to ensure that their

national policies conform to the restrictive measures established pursuant to Decision

2014/512. Accordingly, to the extent that the Court has jurisdiction to examine the validity

of Decision 2014/512, such an examination is required in order to determine the scope of

the obligations resulting from that decision, irrespective of whether Regulation No 833/2014

is valid.

57 It follows from all the foregoing that the first question submitted by the referring court

is admissible.

Substance

58 The United Kingdom Government, the Czech, Estonian, French and Polish

Governments, and the Council consider that, pursuant to the last sentence of the second

subparagraph of Article 24(1) TEU and Article 275 TFEU, the Court does not have jurisdiction

to give a preliminary ruling on the validity of Decision 2014/512.

59 According to the Commission, Article 24(1) TEU and Article 275 TFEU do not preclude

the Court from also having jurisdiction to rule on the validity of Decision 2014/512 in the

context of a request for a preliminary ruling. However, if the Court is to have jurisdiction in

such a situation, it is necessary, first, that the applicant in the main proceedings who brings

an action before the national court satisfies the conditions laid down in the fourth paragraph

of Article 263 TFEU and, second, that the aim of the proceedings is to examine the legality

of restrictive measures against natural or legal persons. The Commission considers that, in

this case, those conditions are not met.

60 As a preliminary point, while, pursuant to the last sentence of the second subparagraph

of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the Court does not, as a

general rule, have jurisdiction with respect to the provisions relating to the CFSP and the

acts adopted on the basis of those provisions (see judgment of 19 July 2016, H v Council

and Commission, C‑455/14 P, EU:C:2016:569, paragraph 39), it must however be recalled

that the Treaties explicitly establish two exceptions to that rule. First, both the last sentence

of the second subparagraph of Article 24(1) TEU and the second paragraph of Article 275

TFEU provide that the Court has jurisdiction to monitor compliance with Article 40 TEU.

Second, the last sentence of the second subparagraph of Article 24(1) TEU confers on the

Court jurisdiction to review the legality of certain decisions referred to in the second

paragraph of Article 275 TFEU. The latter provision confers on the Court jurisdiction to give

rulings on actions, brought subject to the conditions laid down in the fourth paragraph of

Article 263 TFEU, concerning the review of the legality of Council decisions, adopted on the

basis of provisions relating to the CFSP, which provide for restrictive measures against

natural or legal persons.

61 Accordingly, the view can be taken that Question 1 encompasses, in essence, two

issues. First, the question seeks to determine whether the Court has jurisdiction to monitor,

pursuant to a request for a preliminary ruling submitted by a national court or tribunal under

Article 267 TFEU, compliance, by the Council, with Article 40 TEU when the Council adopted

Decision 2014/512. Second, the aim of the question is to ascertain whether the Court has

jurisdiction to review the legality of restrictive measures against natural or legal persons,

the adoption of those measures being prescribed by that decision, not only where those

persons bring an action for the annulment of those measures before the Courts of the

European Union, under Articles 256 and 263 TFEU, but also in circumstances where the

Court is seised, under the preliminary ruling procedure provided for in Article 267 TFEU, of

a request by a national court or tribunal which has doubts as to the validity of such measures.

62 In that regard, with respect, in the first place, to the jurisdiction of the Court to

monitor compliance with Article 40 TEU, it must be observed that the Treaties do not make

provision for any particular means by which such judicial monitoring is to be carried out.

That being the case, that monitoring falls within the scope of the general jurisdiction that

Article 19 TEU confers on the Court to ensure that in the interpretation and application of

the Treaties the law is observed. In establishing this general jurisdiction, Article 19(3)(b)

TEU states, further, that the Court is to give preliminary rulings, at the request of national

courts or tribunals, on, inter alia, the validity of acts adopted by the institutions of the

European Union.

63 Consequently, the Court has jurisdiction to give a ruling on a request for a preliminary

ruling concerning the compliance of Decision 2014/512 with Article 40 TEU.

64 In the second place, the issue arises whether the Court has jurisdiction to give

preliminary rulings on the validity of decisions adopted in relation to the CFSP, such as

Decision 2014/512, where they prescribe restrictive measures against natural or legal

persons.

65 In accordance with the wording of the last sentence of the second subparagraph of

Article 24(1) TEU and the second paragraph of Article 275 TFEU, the Treaties have conferred

on the Court the jurisdiction to review the legality of Council decisions providing for the

imposition of restrictive measures on natural or legal persons. Accordingly, whereas Article

24(1) TEU empowers the Court to review the legality of certain decisions as provided for in

the second paragraph of Article 275 TFEU, the latter article provides that the Court has

jurisdiction to rule on proceedings, brought in accordance with the conditions laid down in

the fourth paragraph of Article 263 TFEU, concerning that review of legality.

66 The review of the legality of acts of the Union that the Court is to ensure under the

Treaties relies, in accordance with settled case-law, on two complementary judicial

procedures. The FEU Treaty has established, by Articles 263 and 277, on the one hand, and

Article 267, on the other, a complete system of legal remedies and procedures designed to

ensure judicial review of the legality of European Union acts, and has entrusted such review

to the Courts of the European Union (judgments of 23 April 1986, Les Verts v Parliament,

294/83, EU:C:1986:166, paragraph 23; of 25 July 2002, Unión de Pequeños Agricultores v

Council, C‑50/00 P, EU:C:2002:462, paragraph 40, and of 3 October 2013, Inuit Tapiriit

Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 92).

67 It is inherent in that complete system of legal remedies and procedures that persons

bringing proceedings must, when an action is brought before a national court or tribunal,

have the right to challenge the legality of provisions contained in European Union acts on

which a decision or national measure adopted in respect of them is based, pleading the

invalidity of that decision or measure, in order that the national court or tribunal, having

itself no jurisdiction to declare such invalidity, consults the Court on that matter by means

of a reference for a preliminary ruling, unless those persons unquestionably had the right to

bring an action against those provisions on the basis of Article 263 TFEU and failed to

exercise that right within the period prescribed (see, to that effect, judgments of 15 February

2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraphs 35 and 36, and of 29 June 2010,

E and F, C‑550/09, EU:C:2010:382, paragraphs 45 and 46).

68 Accordingly, requests for preliminary rulings which seek to ascertain the validity of a

measure constitute, like actions for annulment, a means for reviewing the legality of

European Union acts (see judgments of 22 October 1987, Foto-Frost, 314/85,

EU:C:1987:452, paragraph 16; of 21 February 1991, Zuckerfabrik Süderdithmarschen and

Zuckerfabrik Soest, C‑143/88 and C‑92/89, EU:C:1991:65, paragraph 18; of 6 December

2005, ABNA and Others, C‑453/03, C‑11/04, C‑12/04 and C‑194/04, EU:C:2005:741,

paragraph 103, and of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and

Council, C‑583/11 P, EU:C:2013:625, paragraph 95).

69 That essential characteristic of the system for judicial protection in the European

Union extends to the review of the legality of decisions that prescribe the adoption of

restrictive measures against natural or legal persons within the framework of the CFSP.

70 Neither the EU Treaty nor the FEU Treaty indicates that an action for annulment

brought before the General Court, pursuant to the combined provisions of Articles 256 and

263 TFEU, constitutes the sole means for reviewing the legality of decisions providing for

restrictive measures against natural or legal persons, to the exclusion, in particular, of a

reference for a preliminary ruling on validity. In that regard, the last sentence of the second

subparagraph of Article 24(1) TEU refers to the second paragraph of Article 275 TFEU in

order to determine not the type of procedure under which the Court may review the legality

of certain decisions, but rather the type of decisions whose legality may be reviewed by the

Court, within any procedure that has as its aim such a review of legality.

71 However, given that the implementation of a decision providing for restrictive

measures against natural or legal persons is in part the responsibility of the Member States,

a reference for a preliminary ruling on the validity of a measure plays an essential part in

ensuring effective judicial protection, particularly, where, as in the main proceedings, both

the legality of the national implementing measures and the legality of the underlying decision

adopted in the field of the CFSP itself are challenged within national legal proceedings.

Having regard to the fact that the Member States must ensure that their national policies

conform to the Union position enshrined in Council decisions, adopted under Article 29 TEU,

access to judicial review of those decisions is indispensable where those decisions prescribe

the adoption of restrictive measures against natural or legal persons.

72 As is apparent from both Article 2 TEU, which is included in the common provisions

of the EU Treaty, and Article 21 TEU, concerning the European Union’s external action, to

which Article 23 TEU, relating to the CFSP, refers, one of the European Union’s founding

values is the rule of law (see, to that effect, judgment of 19 July 2016, H v Council and

Commission, C‑455/14 P, EU:C:2016:569, paragraph 41 and the case-law cited).

73 It may be added that Article 47 of the Charter, which constitutes a reaffirmation of

the principle of effective judicial protection, requires, in its first paragraph, that any person

whose rights and freedoms guaranteed by EU law are violated should have the right to an

effective remedy before a tribunal in compliance with the conditions laid down in that article.

It must be recalled that the very existence of effective judicial review designed to ensure

compliance with provisions of EU law is of the essence of the rule of law (see judgments of

18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 45, and of 6 October

2015, Schrems, C‑362/14, EU:C:2015:650, paragraph 95).

74 While, admittedly, Article 47 of the Charter cannot confer jurisdiction on the Court,

where the Treaties exclude it, the principle of effective judicial protection nonetheless implies

that the exclusion of the Court’s jurisdiction in the field of the CFSP should be interpreted

strictly.

75 Since the purpose of the procedure that enables the Court to give preliminary rulings

is to ensure that in the interpretation and application of the Treaties the law is observed, in

accordance with the duty assigned to the Court under Article 19(1) TEU, it would be contrary

to the objectives of that provision and to the principle of effective judicial protection to adopt

a strict interpretation of the jurisdiction conferred on the Court by the second paragraph of

Article 275 TFEU, to which reference is made by Article 24(1) TEU (see, by analogy,

judgments of 27 February 2007, Gestoras Pro Amnistía and Others v Council, C‑354/04 P,

EU:C:2007:115, paragraph 53; of 27 February 2007, Segi and Others v Council, C‑355/04

P, EU:C:2007:116, paragraph 53; of 24 June 2014, Parliament v Council, C‑658/11,

EU:C:2014:2025, paragraph 70; of 12 November 2015, Elitaliana v Eulex Kosovo, C‑439/13

P, EU:C:2015:753, paragraph 42, and of 19 July 2016, H v Council and Commission,

C‑455/14 P, EU:C:2016:569, paragraph 40).

76 In those circumstances, provided that the Court has, under Article 24(1) TEU and the

second paragraph of Article 275 TFEU, jurisdiction ex ratione materiae to rule on the validity

of European Union acts, that is, in particular, where such acts relate to restrictive measures

against natural or legal persons, it would be inconsistent with the system of effective judicial

protection established by the Treaties to interpret the latter provision as excluding the

possibility that the courts and tribunals of Member States may refer questions to the Court

on the validity of Council decisions prescribing the adoption of such measures.

77 Last, the Court must reject the argument that it falls to national courts and tribunals

alone to ensure effective judicial protection if the Court has no jurisdiction to give preliminary

rulings on the validity of decisions in the field of the CFSP that prescribe the adoption of

restrictive measures against natural or legal persons.

78 The necessary coherence of the system of judicial protection requires, in accordance

with settled case-law, that when the validity of acts of the European Union institutions is

raised before a national court or tribunal, the power to declare such acts invalid should be

reserved to the Court under Article 267 TFEU (see, to that effect, judgments of 22 October

1987, Foto-Frost, 314/85, EU:C:1987:452, paragraph 17, and of 6 October 2015, Schrems,

C‑362/14, EU:C:2015:650, paragraph 62). The same conclusion is imperative with respect

to decisions in the field of the CFSP where the Treaties confer on the Court jurisdiction to

review their legality.

79 Moreover, the Court is best placed to give a ruling on the validity of acts of the Union,

given that it is open to the Court, within the preliminary ruling procedure, on the one hand,

to obtain the observations of Member States and the institutions of the Union whose acts

are challenged and, on the other, to request that Member States and the institutions, bodies

or agencies of the Union which are not parties to the proceedings provide all the information

that the Court considers necessary for the purposes of the case before it (see, to that effect,

judgment of 22 October 1987, Foto-Frost, 314/85, EU:C:1987:452, paragraph 18).

80 That conclusion is confirmed by the essential objective of Article 267 TFEU, which is

to ensure that EU law is applied uniformly by the national courts and tribunals, that objective

being equally vital both for the review of legality of decisions prescribing the adoption of

restrictive measures against natural or legal persons and for other European Union acts.

With respect to such decisions, differences between courts or tribunals of the Member States

as to the validity of a European Union act would be liable to jeopardise the very unity of the

European Union legal order and to undermine the fundamental requirement of legal certainty

(see, by analogy, judgments of 22 February 1990, Busseni, C‑221/88, EU:C:1990:84,

paragraph 15; of 6 December 2005, Gaston Schul Douane‑expediteur, C‑461/03,

EU:C:2005:742, paragraph 21, and of 21 December 2011, Air Transport Association of

America and Others, C‑366/10, EU:C:2011:864, paragraph 47).

81 In the light of the foregoing, the answer to Question 1 is that Articles 19, 24 and 40

TEU, Article 275 TFEU, and Article 47 of the Charter must be interpreted as meaning that

the Court has jurisdiction to give preliminary rulings, under Article 267 TFEU, on the validity

of an act adopted on the basis of provisions relating to the CFSP, such as Decision 2014/512,

provided that the request for a preliminary ruling relates either to the monitoring of that

decision’s compliance with Article 40 TEU, or to reviewing the legality of restrictive measures

against natural or legal persons.”

355. Eurobolt BV, C-644/17, was an interesting constitutional law reference from the Hoge Raad

der Nederlanden (Supreme Court of the Netherlands) where the CJEU held that a domestic court

could seek further information from EU institutions prior to referring a question as to the validity of

an EU measure:

“Question 1(a) and (c)

24 By indents (a) and (c) of its first question, the referring court asks, in essence, whether

Article 267 TFEU is to be interpreted as meaning that, in order to contest the validity of a

piece of secondary EU legislation, an individual may rely before a national court or tribunal

on complaints that could be put forward in the context of an action for annulment under

Article 263 TFEU, including complaints alleging a failure to satisfy the conditions for adopting

that piece of legislation.

25 As is apparent from settled case-law, the jurisdiction of the Court to give preliminary

rulings under Article 267 TFEU concerning the validity of acts of the EU institutions cannot

be limited by the grounds on which the validity of those measures may be contested

(judgments of 12 December 1972, International Fruit Company and Others, 21/72 to 24/72,

EU:C:1972:115, paragraph 5, and of 16 June 1998, Racke, C‑162/96, EU:C:1998:293,

paragraph 26).

26 Consequently, the answer to indents (a) and (c) of the first question is that Article

267 TFEU must be interpreted as meaning that, in order to contest the validity of a piece of

secondary EU legislation, an individual may rely before a national court or tribunal on

complaints that could be put forward in the context of an action for annulment under Article

263 TFEU, including complaints alleging a failure to satisfy the conditions for adopting such

a piece of legislation.

Question 1(b)

27 By indent (b) of its first question, the referring court asks, in essence, whether Article

267 TFEU, read in conjunction with Article 4(3) TEU, is to be interpreted as meaning that a

national court or tribunal is entitled to approach the EU institutions that have taken part in

drawing up a piece of secondary EU legislation, the validity of which is being contested before

that court or tribunal, in order to obtain information from those institutions regarding the

factors which they took or should have taken into consideration when adopting that piece of

legislation.

28 It should be borne in mind that national courts may examine the validity of an act of

the Union and, if they consider that the grounds which they have raised of their own motion

or which have been raised by the parties in support of invalidity are unfounded, they may

reject those grounds, concluding that the act is completely valid (see, to that effect,

judgments of 16 June 1981, Salonia, 126/80, EU:C:1981:136, paragraph 7, and of 22

October 1987, Foto-Frost, 314/85, EU:C:1987:452, paragraph 14). By contrast, national

courts have no jurisdiction themselves to determine that acts of EU institutions are invalid

(judgment of 6 December 2005, Gaston Schul Douane-expediteur, C‑461/03,

EU:C:2005:742, paragraph 17).

29 Accordingly, if the grounds put forward by the parties are sufficient to convince the

national court that an act of the Union is invalid, that court should, solely on that basis,

question the Court of Justice as to the validity of that act, without investigating further. As

can be seen from the judgment of 22 October 1987, Foto-Frost (314/85, EU:C:1987:452,

paragraph 18), the Court of Justice is in the best position to decide on the validity of pieces

of secondary EU legislation, in so far as the EU institutions whose acts are challenged are

entitled, under the second paragraph of Article 23 of the Statute of the Court of Justice of

the European Union, to submit written observations to the Court in order to defend the

validity of the acts in question. In addition, under the second paragraph of Article 24 of that

Statute, the Court may require the institutions, bodies, offices and agencies of the Union not

being parties to the case to supply all information which it considers necessary for the

purposes of the case before it.

30 That being said, a national court or tribunal is entitled to approach an EU institution,

prior to the bringing of proceedings before the Court of Justice, in order to obtain specific

information and evidence from that institution which that court or tribunal considers essential

in order to dispel all doubts which it may have as regards the validity of the EU act concerned

and, thus, avoid making a reference to the Court of Justice for a preliminary ruling for the

purpose of assessing validity.

31 In that regard, it is apparent from the case-law of the Court of Justice that the EU

institutions are under a duty of sincere cooperation with the judicial authorities of the

Member States, which are responsible for ensuring that EU law is applied and respected in

the national legal system. On that basis, those institutions must, pursuant to Article 4(3)

TEU, provide those authorities with the evidence and documents which have been asked of

them in the exercise of their powers, unless the refusal to provide these is justified by

legitimate reasons based, inter alia, on protecting the rights of third parties or the risk of an

impediment to the functioning or the independence of the Union (see, to that effect, order

of 6 December 1990, Zwartveld and Others, C‑2/88-IMM, EU:C:1990:440, paragraphs 10

and 11).

32 Consequently, the answer to indent (b) of the first question is that Article 267 TFEU,

read in conjunction with Article 4(3) TEU, must be interpreted as meaning that a national

court or tribunal is entitled, prior to bringing proceedings before the Court of Justice, to

approach the EU institutions that have taken part in drawing up a piece of secondary EU

legislation, the validity of which is being contested before that court or tribunal, in order to

obtain specific information and evidence from those institutions which it considers essential

in order to dispel all doubts which it may have as regards the validity of the EU act concerned

and so that it may avoid referring a question to the Court of Justice for a preliminary ruling

for the purpose of assessing the validity of that act.”

356. Région de Bruxelles-Capitale, C-352/19, was a case where the Court of Justice upheld the

General Court and rejected the opinion of the Advocate-General, in holding a direct action

inadmissible. The following parts of this complex decision appear relevant (some emphasis added):

“18 It should be borne in mind that an action by a local or regional entity cannot be

treated in the same way as an action by a Member State and must therefore satisfy the

conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU (see, to that

effect, judgment of 2 May 2006, Regione Siciliana v Commission, C–417/04 P,

EU:C:2006:282, paragraphs 21 to 24).

19 That provision makes the admissibility of an action brought by a natural or legal

person against a decision which is not addressed to him or her, as is the case here for the

Brussels Capital Region, subject to the condition that the decision is of direct and individual

concern to that person or, if it is a regulatory act, that that act is of direct concern to that

person and that the regulatory act does not entail implementing measures.

20 In the present case, the General Court, hearing an objection of inadmissibility on the

basis of the Brussels Capital Region’s lack of standing to seek the annulment of the act at

issue, limited its examination to the question whether the Brussels Capital Region was

directly concerned by that act and ruled, in the order under appeal, that that condition was

not satisfied.

21 In support of its appeal against that order, the Brussels Capital Region raises two

grounds of appeal, alleging, first, the failure to have regard to the Convention on access to

information, public participation in decision-making and access to justice in environmental

matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European

Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1)

(‘the Aarhus Convention’) and, second, that the General Court erred in finding that it was

not directly affected by the act at issue.

The first ground of appeal, alleging failure to have regard to the Aarhus Convention

…

25 With regard to the first part of the first ground of appeal, it should be borne in mind

that, although, under the second paragraph of Article 216 TFEU, agreements concluded by

the European Union bind its institutions and therefore prevail over the acts laid down by

those institutions (judgments of 3 June 2008, Intertanko and Others, C‑308/06,

EU:C:2008:312, paragraph 42; of 21 December 2011, Air Transport Association of America

and Others, C‑366/10, EU:C:2011:864, paragraph 50 and the case-law cited; and of 13

January 2015, Council and Commission v Stichting Natuur en Milieu and Pesticide Action

Network Europe, C‑404/12 P and C‑405/12 P, EU:C:2015:5, paragraph 44), those

international agreements cannot prevail over EU primary law.

26 It follows that Article 9 of the Aarhus Convention cannot have the effect of modifying

the conditions of admissibility of actions for annulment laid down in the fourth paragraph of

Article 263 TFEU.

27 In those circumstances, the first part of the first ground of appeal, alleging that the

General Court assessed the admissibility of the action without taking account of the Aarhus

Convention, must be dismissed.

28 In addition, since the argument based on the General Court’s refusal to take account

of Article 9 of the Aarhus Convention must be rejected, the criticism of the grounds on which,

in paragraph 37 of the order under appeal, the General Court disregarded that argument is

ineffective. Consequently, the second part of the first ground of appeal must be dismissed.

29 It follows from the foregoing that the first ground of appeal must be dismissed.

The second ground of appeal, alleging that the General Court erred in finding that

the appellant was not directly concerned by the act at issue

30 At the outset, it should be borne in mind that it is settled case-law of the Court that

the condition of ‘direct concern’ means that the measure must, first, directly affect the legal

situation of the individual and, second, leave no discretion to the addressees of that measure

who are entrusted with the task of implementing it, such implementation being purely

automatic and resulting from EU rules alone without the application of other intermediate

rules (see, to that effect, judgments of 5 May 1998, Glencore Grain v Commission, C–404/96

P, EU:C:1998:196, paragraph 41, and of 5 November 2019, ECB and Others v Trasta

Komercbanka and Others, C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923,

paragraph 103).

...

Third part of the second ground of appeal

...

50 In the first place, it follows from the case-law cited in paragraph 30 of this judgment

that one of the two cumulative conditions for establishing that a measure directly affects an

individual is that it leaves no discretion to the addressees of that measure who are entrusted

with the task of implementing it.

51 As the General Court pointed out in paragraph 61 of the order under appeal, where a

Member State receives an application for authorisation to place on the market a plant

protection product already authorised for that use by another Member State, it is not

required to grant it, since, first, Article 41(1) of Regulation No 1107/2009 allows it to take

account of the circumstances in its territory and, second, Article 36(3) of that regulation, to

which Article 41 of that regulation refers, states (i) that it may impose risk mitigation

measures relating to human or animal health or the environment and (ii) that it may even

refuse to issue an authorisation where risk mitigation measures cannot meet the concerns

of that Member State due to its specific environmental or agricultural circumstances. The

General Court therefore rightly held that the mutual recognition procedure does not create

an automatic mechanism and leaves a discretion to the Member State which receives a

request for mutual recognition.

52 It follows from the foregoing that the appellant is not justified in complaining that, in

that regard, the General Court erred in law and vitiated its assessment by a failure to state

sufficient reasons.

53 In the second place and in any event, contrary to what the appellant maintains, the

General Court rightly held that the effects of the mutual recognition procedure are not

themselves the direct consequence of the act at issue. It must be observed that the approval

of an active substance is only one of the requirements, listed in Article 29(1) of Regulation

No 1107/2009, to which the authorisation to place on the market a plant protection product

containing that active substance is subject. Moreover, the issuance of such an authorisation

in one Member State does not of itself entail authorisation in other Member States, since

Article 40 of that regulation provides, subject to the conditions which it lays down, that the

holder of an authorisation granted in one Member State may, under the mutual recognition

procedure, apply for an authorisation for the same plant protection product in another

Member State. Lastly, and as was explained in the previous paragraph, the latter Member

State is not obliged to grant that authorisation in all circumstances.

54 It follows from the foregoing that the third part of the second ground of appeal must

be dismissed.

The fourth part of the second ground of appeal

...

62 In the first place, the fact that, according to the appellant, the General Court

misinterpreted its own case-law does not in itself constitute an error of law on which an

appeal could be based. Moreover, the claim alleging a confusion between the criteria of direct

concern and individual concern is not accompanied by any details making it possible to

assess its merits and therefore must be rejected.

63 In the second place, it should be noted that the legality ‑ contested in the context of

an appeal before the Conseil d’État (Council of State) ‑ of the Decree of 10 November 2016

cannot in any event be affected by the act at issue, since that act was adopted after the

date of adoption of that decree. In addition, neither the risk of an action for a declaration of

failure to fulfil obligations at the initiative of the Commission, alluded to in the appeal, nor

doubts as to the validity of the scheme prohibiting the use of pesticides containing

glyphosate in the light of the Belgian Constitution, whose link with the act at issue the

appellant does not make clear, are such as to establish that it is directly concerned by that

act. In those circumstances, the appellant does not establish that the act at issue would

pose a risk to that prohibition scheme.

64 In the third place, it is apparent from the case-law of the Court referred to in paragraph

30 of this judgment that the condition of ‘direct concern’ means inter alia that the measure

in question must directly affect the legal situation of the natural or legal person who intends

to bring an action under the fourth paragraph of Article 263 TFEU. Thus, such a condition

must be assessed only with regard to the legal effects of the measure, the possible political

effects of that measure not having any bearing on that assessment. Consequently, such an

argument must be rejected.

65 In the fourth place, the appellant’s argument based on the judgment of 13 December

2018, Ville de Paris, Ville de Bruxelles and Ayuntamiento de Madrid v Commission (T‑339/16,

T‑352/16 and T‑391/16, EU:T:2018:927), does not explain how the fact, even if it were

established, that the solution adopted in the order under appeal contradicts that judgment

would in itself be such as to render that order unlawful. This claim must therefore also be

rejected.

66 In the fifth place, although the Brussels Capital Region complains that the General

Court did not examine its argument that the act at issue directly affects its legal position by

maintaining the legal interest in bringing proceedings of the authors of the actions for

annulment against the Decree of 10 November 2016, it should be noted that that argument

was submitted by the appellant only in its response to the objection of inadmissibility raised

by the Commission. Consequently, it cannot be regarded as a plea which the General Court

was required to examine. Accordingly, the complaint must be rejected.

67 It follows from the foregoing that the fourth part of the second ground of appeal and

the appeal in its entirety must be dismissed.”

357. Overall there is precious little sign of any flexibility there as to the requirement of direct and

individual concern.

358. Finally, the court’s recent discussion in the judgment of 11 January 2024, Friends of the

Irish Environment, C-330/22, ECLI:EU:C:2024:19 is also instructive:

“Admissibility

41 By its first question, the referring court asks, in essence, whether the present request

for a preliminary ruling, concerning the validity of Regulation 2020/123, is necessary, when

that regulation and the national measures implementing it, at issue in the main proceedings,

are no longer applicable. It therefore calls on the Court, in essence, to rule on the

admissibility of that request.

42 In that regard, the defendants in the main proceedings submit that the said request

is inadmissible. In their view, first, having regard to the expiry of the period of application

of Regulation 2020/123 and of the fisheries management opinions at issue in the main

proceedings, the questions raised by that case are hypothetical, within the meaning of the

case-law of the Court. Second, they submit that, in answering those questions, the Court

would be assessing the validity of Regulation 2020/123 outside the two-month period

provided for in Article 263 TFEU and that it would be without the benefit of the full factual

material necessary for its answer, which would have been available to it in an action based

on that article.

43 It is apparent from settled case-law of the Court that, when a question on the validity

of a measure adopted by the institutions of the European Union is raised before a national

court or tribunal, it is for that court or tribunal to decide whether a preliminary ruling on the

matter is necessary to enable it to give judgment and consequently whether it should ask

the Court to rule on that question. Consequently, where the questions referred by the

national court or tribunal concern the validity of a provision of EU law, the Court is, as a

general rule, obliged to give a ruling (judgment of 28 March 2017, Rosneft, C‑72/15,

EU:C:2017:236, paragraph 49 and the case-law cited).

44 Thus, the Court may refuse to give a ruling on a question referred for a preliminary

ruling on determination of validity only where, for instance, the requirements concerning the

content of a request for a preliminary ruling, set out in Article 94 of the Rules of Procedure

of the Court of Justice, are not satisfied or where it is quite obvious that the assessment of

the validity of a provision of EU law which is sought by the national court bears no relation

to the actual facts of the main action or to its purpose or where the problem is hypothetical

(see, to that effect, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236,

paragraph 50 and the case-law cited).

45 In particular, in the light of the spirit of cooperation which must prevail in the operation

of the preliminary reference procedure and in accordance with Article 94(c) of those rules,

it is essential that the national court set out in its order for reference the precise reasons

which led it to question the validity of certain provisions of EU law and the grounds of

invalidity which appear to it capable of being upheld (see, to that effect, judgments of 10

January 2006, IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraph 31, and of 4 May 2016,

Pillbox 38, C‑477/14, EU:C:2016:324, paragraphs 24 and 25 and the case-law cited).

46 In that regard, as is apparent from the grounds of the request for a preliminary ruling,

the referring court considers, in the light of national case-law, that it is for it to examine the

action in the main proceedings, notwithstanding the fact that Regulation 2020/123 and the

fisheries management opinions being challenged in that action are no longer applicable. In

particular, it considers that the temporary nature of those acts makes it impossible to

challenge them during their limited period of validity.

47 In the first place, it is not for the Court to call into question the referring court’s

assessment of the admissibility of the action in the main proceedings, which falls, in the

context of the preliminary ruling proceedings, within the jurisdiction of the national court. In

the present case, the referring court rejected the objections of admissibility raised before it

by the defendants in the main proceedings concerning the mootness of the said action,

within the meaning of national law. In addition, the fact that the period of application of the

fisheries management opinions at issue in the action in the main proceedings has expired

does not prevent the Court from ruling on a question referred for a preliminary ruling,

provided that such an action is permitted under national law and that the question meets an

objective need for the purpose of settling the dispute properly brought before the referring

court (see, to that effect, judgment of 10 December 2018, Wightman and Others, C‑621/18,

EU:C:2018:999, paragraphs 30 and 31 and the case-law cited).

48 In the second place, in terms of the expiry of the period of application of the TACs at

issue, suffice it to note, first, that the fisheries management opinions being challenged in

the action in the main proceedings were adopted on the basis of those TACs, second, that

they were in force on the date on which those opinions were adopted and, third, that their

invalidity is invoked, incidentally, in support of the said action. It follows that the expiry of

the period of application of the said TACs cannot render inadmissible a question relating to

their validity, since that question meets an objective need for the purpose of settling the

dispute properly brought before the referring court.

49 Those considerations cannot be called into question by the line of argument of the

defendants in the main proceedings according to which the Court would then be assessing

the validity of Regulation 2020/123 outside the two-month period provided for in Article 263

TFEU and without the benefit of the full factual material necessary for its answer, which

would have been available to it in an action for annulment.

50 It is sufficient to recall that it is inherent in the complete system of legal remedies

and procedures established by the FEU Treaty in Articles 263 and 277 thereof, on the one

hand, and in Article 267 thereof, on the other, that persons bringing proceedings must, when

an action is brought before a national court or tribunal, have the right to challenge the

legality of provisions contained in European Union acts on which a decision or national

measure adopted in respect of them is based, pleading the invalidity of that decision or

measure, in order that the national court or tribunal, having itself no jurisdiction to declare

such invalidity, consults the Court on that matter by means of a reference for a preliminary

ruling, unless those persons unquestionably had the right to bring an action against those

provisions on the basis of Article 263 TFEU and failed to exercise that right within the period

prescribed (judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraphs 66

and 67 and the case-law cited). It does not appear that FIE would unquestionably have been

entitled to bring an action for annulment under Article 263 TFEU against the TACs at issue,

which the defendants in the main proceedings do not dispute.

51 In the third place, as paragraphs 35 to 38 of the present judgment illustrate, in the

order for reference, the referring court set out, with all due precision, the reasons why it

had serious doubts as to the validity of the TACs at issue, on the ground that they did not

comply with the ICES advice, recommending a zero-catch level for the stocks mentioned in

paragraph 28 of the present judgment. Thus, the referring court has provided the Court with

the necessary information on the reasons why it considers the request for a preliminary

ruling relevant for the purpose of settling the dispute brought before it.

52 In the light of all the foregoing considerations, it must be held that the request for a

preliminary ruling is admissible.”

359. The Court of Appeal, upholding the order dismissing the proceedings in Friends of the Irish

Environment [2020] IEHC 383, effectively identified the ratio as being the lack of a “genuine”

domestic dispute capable of grounding a reference to the CJEU. Insofar as the rest of Simons J.’s

remarks are therefore obiter, perhaps a few respectful footnotes might be added.

360. Summarising a few of the foregoing cases in Friends of the Irish Environment, Simons J.

said at para. 59 that:

“As appears from the foregoing discussion of the case law, the limitation upon the use of the

preliminary reference procedure to question the validity of EU measures has long since been

recognised. The procedure will not be available in the absence of national implementing

measures or decisions which are capable of forming the basis of an action before the national

court. The approach adopted to any ‘gap’ in effective judicial protection arising has been to

advocate for a less stringent application of the standing requirement under Article 263 (as

opposed to a wider availability of the preliminary reference procedure under Article 267

TFEU).”

361. Summaries can be necessarily incomplete so a few points are worth noting. Firstly while it

is correct to say that the limitation of art. 267 has long been recognised, the main limitation has

been that it is not available to challenge a measure if an applicant could have brought a direct action.

The “limitation” of not being able to make a direct, abstract, challenge to a legislative measure alone

without a genuine domestic dispute has been more of a side-note in the caselaw, although latterly

a part of it for sure. But rather the preponderance of caselaw emphasises the “complete” system of

judicial protection. Multiple cases envisage creative ways in which an EU law measure can be

challenged even in the absence of an existing implementing measure, such as in anticipation of such

a measure, or by calling for a measure to be adopted. So it would be over-simplistic to say that the

procedure of a reference “will not be available” in the absence of a national measure or decision.

Indeed the ECJ expressly said the contrary in British American Tobacco - what is required is a

“genuine dispute”, not an implementing measure.

362. As regards a less stringent application of standing to avoid any gap, there is no evidence for

this in the caselaw. The bar to launch a direct action has remained consistently high.

363. In making the suggestion about a less stringent approach to standing, Simons J. appears to

have placed heavy reliance on the opinion of the Advocate-General in Région de Bruxelles-Capitale

C-352/19. He says:

“57. The State respondents have identified, in their supplemental written legal submissions

of 20 July 2020, a very recent Advocate General’s Opinion on the issue of standing, Case C-

352/19 P, Région de Bruxelles-Capitale. The proceedings involved a challenge to a regulatory

act not entailing implementing measures. As such, the less stringent requirement of “direct

concern” applied. The Advocate General, in concluding that the applicant met this standing

requirement, emphasised that the absence of national implementing measures had the

consequence that the possibility of raising the validity of the EU act in proceedings before

the national courts were limited. In effect, the applicants would have to infringe the

provisions of national law, and then plead invalidity in response to proceedings taken against

them.

‘168. According to settled case-law, the expression ‘does not entail implementing measures’

must be interpreted in the light of the objective of that provision, which, as is apparent from

its drafting history, is to ensure that individuals do not have to break the law in order to

have access to a court. Where a regulatory act directly affects the legal situation of a natural

or legal person without requiring implementing measures, that person could be denied

effective judicial protection if he or she did not have a direct legal remedy before the EU

Courts for the purpose of challenging the lawfulness of the regulatory act. In the absence of

implementing measures, a natural or legal person, although directly concerned by the act in

question, would be able to obtain judicial review of the act only after having infringed its

provisions, by pleading that those provisions are unlawful in proceedings initiated against

them before the national court.’*

*Footnote omitted.

58. The Advocate General adopts the approach that the standing rules under Article 263

TFEU should be interpreted so as to fill the gap in the system of judicial remedies with regard

to those cases where the indirect review of European Union acts, i.e. via the preliminary

reference procedure; is impossible or would be artificial. Applicants should not be expected

to create artificial litigation, i.e. by breaching national law, in order to challenge national acts

that, if it were not for the breach of law, would have never come into existence. Rather, they

should be able to invoke Article 263 TFEU.”

364. Unfortunately for this argument, the Advocate-General’s view which seems to have

influenced Simons J. was rejected by the Court of Justice (some weeks after Simons J.’s judgment

- a point obliquely acknowledged in para. 31 of the IFA’s submission in the present case, quoted

above, by the use of the word “subsequent”), which instead of reversing the Court of First Instance

as seemingly anticipated by Simons J. and as proposed in the Advocate-General’s Opinion, dismissed

the appeal on the basis that the action was inadmissible because the appellant lacked standing. One

can but sympathise - prediction is difficult, especially about the future (to quote an “old Danish

proverb” (W. J. Moore, Schrödinger, Life and Thought (Cambridge University Press, Cambridge,

1989), p. 320) in turn apparently quoted by Neils Bohr (Arthur K. Ellis, Teaching and Learning

Elementary Social Studies (Newton Mass., Allyn and Bacon, 1970), p. 431): see

https://web.archive.org/web/20231225140043/http://chaosbook.blogspot.com/2010/06/lundskov

dk-citater.html).

365. Simons J. went on to say at para. 74 that:

“Whereas there has been much discussion in the case law of the limitations upon the

availability of the preliminary reference procedure, and the direct action procedure,

respectively, the case law does not allow for a freestanding procedure whereby an applicant

can utilise the preliminary reference procedure to launch a challenge to a piece of EU

legislation notwithstanding the absence of any national implementing measures or

decisions.”

366. As we have seen, national implementing measures are not inherently indispensable to a

reference. And whether the Commission act there was technically “a piece of EU legislation” may

be something for discussion. Cases like Inuit Tapiriit Kanatami make clear that there is not a right

to bring a free-standing challenge in domestic courts to a legislative act, separate from any dispute

capable of otherwise being litigated in domestic law, but that doctrine doesn’t necessarily apply on

its own terms to non-legislative acts. That doesn’t at all mean to suggest that Simons J. was off

track to say that a reference was unavailable in Friends due to the lack of a domestic dispute. There

must still be a genuine dispute capable of being litigated domestically, as the Court of Appeal found.

How the CJEU would characterise an attempted free-standing challenge to a non-legislative act may

be something for a future case but doesn’t arise here.

367. Even if I am wrong about any or all of those glosses to Friends, it doesn’t matter. The

present action isn’t a case where the applicant brings an abstract or free-standing challenge to EU

measures without reference to domestic implementation or a dispute in national law. The State and

IFA have simply conveniently adverted to snippets of the Friends case taken utterly out of context,

with no discernible regard to the actual content or to the fact that the case deals with a scenario

that is totally irrelevant here. Apart from anything else, we’ve seen above that the ministerial

amending GAP regulations of 2022 provide for extensive domestic administrative law consequences

to be expressly taken “under” the Commission decision.

368. On the present facts, it is not only not unquestionably clear that the applicant could have

proceeded under art. 263 TFEU, it is effectively certain that it couldn’t have. The protestations of

the State and IFA to the contrary are formulaic, and fail to acknowledge the obviously insuperable

obstacles that the applicant would have faced in such an action. Textbook examples of “sending the

fool further” don’t come better than this – condemning an applicant for taking one procedure on the

grounds that she didn’t take a different procedure, which would have been even more problematic.

369. For all of these reasons, a reference would be the appropriate mechanism to address this

issue, if that becomes necessary. A reference is not inappropriate in principle if for no other reason

than that a direct action was unavailable to this applicant, and there is a genuine domestic dispute

which for good measure involved relevant domestic implementing measures.

370. The State’s side note to the effect that recital 16 to the Commission decision asserts that

the nitrates directive will be complied with doesn’t make that recital unchallengeable. Rather it

reinforces the need for a reference, should that arise. Whether the recital is an overly submissive

response to the government’s application for a derogation would be a matter for the CJEU in the

hypothetical event of a reference - the existence of the recital is not some kind of fundamental

stumbling block for the applicant’s case either now or later, given that that case includes a request

for a determination by the CJEU of the validity of the decision.

371. That recital or any issue related to the content of an EU institutional act can’t preclude a

reference that would otherwise be appropriate and permissible.

372. What’s odd about the State’s reliance on Masterfoods, C-344/98, is that the submission

only quotes a snippet of text - for some unexplained reason the submission attributes this to”§§51–

52” but the wording occurs entirely in para. 52. The quoted part is that it is “… important that when

national courts rule on agreements or practices which are already the subject of a Commission

decision they cannot take decisions running counter to that of the Commission, even if the latter's

decision conflicts with a decision given by a national court of first instance.”

373. There the State’s quotation ends. But, just for curiosity, let’s read on -

“54. Moreover, if a national court has doubts as to the validity or interpretation of an act

of a Community institution it may, or must, in accordance with the second and third

paragraphs of Article 177 of the Treaty, refer a question to the Court of Justice for a

preliminary ruling.”

374. Wait, what? The “national court ... may, or must ... refer”? Isn’t that the very thing the

State is saying can’t happen in such a situation?

375. The ECJ went on to reinforce this point - the reference can happen even a direct action has

got underway:

“55. If, as here in the main proceedings, the addressee of a Commission decision has, within

the period prescribed in the fifth paragraph of Article 173 of the Treaty, brought an action

for annulment of that decision pursuant to that article, it is for the national court to decide

whether to stay proceedings until a definitive decision has been given in the action for

annulment or in order to refer a question to the Court for a preliminary ruling.”

376. It repeated the point that a reference is an option:

“57. When the outcome of the dispute before the national court depends on the validity of

the Commission decision, it follows from the obligation of sincere cooperation that the

national court should, in order to avoid reaching a decision that runs counter to that of the

Commission, stay its proceedings pending final judgment in the action for annulment by the

Community Courts, unless it considers that, in the circumstances of the case, a reference to

the Court of Justice for a preliminary ruling on the validity of the Commission decision is

warranted.”

377. And:

“59. In this case it appears from the order for reference that the maintenance in force of

the permanent injunction granted by the High Court restraining Masterfoods from inducing

retailers to store its products in freezers belonging to HB depends on the validity of Decision

98/531. It therefore follows from the obligation of sincere cooperation that the national court

should stay proceedings pending final judgment in the action for annulment by the

Community Courts unless it considers that, in the circumstances of the case, a reference to

the Court of Justice for a preliminary ruling on the validity of the Commission decision is

warranted.

60. The answer to Question 1 must therefore be that, where a national court is ruling on an

agreement or practice the compatibility of which with Articles 85(1) and 86 of the Treaty is

already the subject of a Commission decision, it cannot take a decision running counter to

that of the Commission, even if the latter's decision conflicts with a decision given by a

national court of first instance. If the addressee of the Commission decision has, within the

period prescribed in the fifth paragraph of Article 173 of the Treaty, brought an action for

annulment of that decision, it is for the national court to decide whether to stay proceedings

pending final judgment in that action for annulment or in order to refer a question to the

Court for a preliminary ruling.”

378. Leaving the State’s submission there, and turning finally to the IFA’s two main points, the

first was that the question of a reference should be postponed until after the determination of any

domestic law issues. I agree, which is why we are going to have a Module II on interpretation and

facts before we get to EU law points. Their second point is that a reference is unnecessary because

the EU law issues are acte clair. I by no means rule that out, but deciding it now is inconsistent with

the first point. Let’s get through the evidential phase first and then see what EU law issues, if any,

remain - then we can meaningfully talk about whether they are acte clair or not.

Summary of the right to refer a question regarding the validity of an EU institutional act

379. To summarise the right to refer the issue of the validity of an act of an EU institution:

(i) The provisions of the treaties constitute a complete system of judicial protection and review

of EU institutional acts. It is for the national courts to ensure that there exist legal remedies

sufficient to ensure effective judicial protection and thus to construe national legislation and

jurisdictions in a way that gives effect to this complete system insofar as possible.

(ii) A domestic court is free to uphold the validity of an EU institutional act, and may seek

information from relevant EU institutions with a view to assuaging its doubts prior to deciding

to do so.

(iii) It cannot however rule such an act to be invalid. Instead a domestic court can refer to the

CJEU any issue as to the validity of an act of EU institutions, subject to two basic conditions:

(a). It can do so only in the context of a genuine dispute capable of being litigated in

domestic law. This does not require that implementing measures have been

adopted, and could include any form of action capable of being domestically litigated,

for example:

1. common or garden certiorari of, or declarations addressed to, domestic legally

binding transposing or implementing measures;

2. a situation where the EU measure is being implemented administratively rather

than through legislative transposition (certiorari of administrative acts);

3. where implementing measures are anticipated and the applicant wishes to

prohibit this from occurring (prohibition or injunctive relief); or

4. where the applicant calls on the national authorities to carry out an act or adopt

a decision or measure by reference to the EU instrument, or related domestic

law, thereby enabling the applicant to challenge the EU measure indirectly

(mandamus or declaratory relief if the request for action to be taken is refused,

certiorari or declaratory relief if it is granted).

However an applicant doesn’t have an EU law right to bring a free-standing challenge

independent of any genuine dispute capable of being litigated in domestic law (or at

least this condition applies insofar as concerns a legislative measure).

(b). An applicant who has unquestionably met the extremely restrictive requirements for

a direct action under art. 263 is precluded from seeking such a reference, but this

only arises in extremely limited circumstances in practice. The highly restrictive

interpretations of the requirement of direct and individual concern remain operative

and any attempts at General Court or Advocate-General level to dilute these have

been rejected by the Court of Justice.

380. Consequentially, most of the issues under this heading don’t arise, specifically Issues 72 to

74 and Issue 76. The remaining issues can essentially be combined into a single issue.

Issue 72

381. Issue 72 is:

“Alternatively, if the Commission findings cannot be directly differed from by the court, can

the court nonetheless refer a question to the CJEU as to the correctness in fact or in law of

such findings? PLEADING-TYPE ISSUE”

382. The applicant submitted:

“The Applicant submits that this Court could in principle refer a question as to the correctness

in fact or in law of such findings, in line with the jurisprudence set out above in response to

Issue 71.

The Applicant understands this question to refer to the recitals, which is a separate issue to

the question proposed by the Applicant, as to the continuing validity of the Commission

decision where the ‘context’ for the continued application of the Commission Decision no

longer applies.”

383. The State submitted:

“The Court, in these proceedings, may not refer a question to the CJEU as to the correctness

in fact or in law of the findings in the Commission Decision as no relevant part of the dispute

currently engaging the High Court requires determination by addressing the allegation of

invalidity of the Commission Decision in that respect.

The starting point is that the Commission Decision is binding. The Applicant has not pleaded

any relevant grounds which put in issue the findings of fact or law in the Commission

Decision. There is no obligation upon this Court, and no principle of EU law requiring this

Court, to identify any such grounds for the Applicant and raise them of its own motion such

that there could, potentially, be a dispute which could, potentially, raise a question of the

validity of a measure of EU law warranting an Article 267 TFEU reference to the CJEU. The

Respondents rely on C-721/21 Eco Advocacy EU:C:2023:477, §§28–29. This is not a case

where there is inadequate or unparticularised pleas. There are no pleas at all directly

impugning the Commission Decision.

In the present case, therefore, and where there is no relevant pleaded case as to the

correctness in fact or in law of the Commission’s findings, there is consequently no dispute

before this Court on those findings, as regards which it is necessary to obtain a ruling from

the CJEU. This Court does not have jurisdiction to refer a question to the CJEU on a matter

in which there is no dispute between the parties. The Respondents rely on the dictum in

Dempsey v an Bord Pleanála [2020] IEHC 462, where Simons J stated that (§22) ‘EU law

does not require national courts to exceed their sphere of competence to achieve the

objectives of the EIA Directive (or indeed any EU legislation)…’, and the case-law cited in

that judgment on this issue.

In that respect, it is well established that under Article 267 TFEU, a national court may refer

a question to the CJEU for a preliminary ruling only where necessary to enable the court to

give judgment. The Supreme Court has described the general operation of Article 267 TFEU

by national courts in the following terms:

‘The reason why a reference might be required would be that, to a greater or lesser

extent, the question of whether relief should be granted or refused (or where

granted, the nature of the relief appropriate) might depend at least in part on a

contested question of EU law whose resolution was necessary to the final

determination of the proceedings, in circumstances where the issue of EU law

concerned was not acte clair in the sense in which that term is used in the

jurisprudence of the CJEU.’ [Data Protection Commissioner & Anor. v. Facebook

Ireland Ltd. & Anor. [2019] 3 IR 255, p. 263, per Clarke CJ.]

Moreover, the need for an answer from the CJEU ‘presupposes that there is a controversy

pending before the national court, the resolution of which is dependent on the response to

the reference’ [Friends of the Irish Environment CLG v. Minister for Communications, Climate

Action, and the Environment & Ors. [2022] IECA 298, §29, per Noonan J referring to the

judgment of the High Court, per Simons J ([2020] IEHC 383).].

The Applicant does not allege that the NAP and the GAP Regulations are invalid because the

Commission Decision is invalid. Rather, it claims the opposite; that the alleged invalidity of

the NAP will render the Commission Decision invalid. The Applicant rightly accepts that ‘this

Core Ground is consequential on the Applicant succeeding in having the NAP quashed’(§64).

The Applicant pleads no other cases regarding identified grounds of purported invalidity of

the Commission Decision. That is a fundamental prerequisite to engaging the jurisdiction of

this Court and, in turn, the jurisdiction of the CJEU to consider questions of the validity of

an EU measure referred to it.”

384. My decision on this issue is that this doesn’t arise having regard to the outcome of Issue 71.

Issue 73

385. Issue 73 is:

“Even if the Commission derogation decision is binding for the purposes of the proceedings,

is the statement in recitals that it is without prejudice to the habitats directive sufficient to

enable the applicant to advance arguments related to that issue? PLEADING-TYPE ISSUE”

386. The applicant submitted:

“Yes. It is clear that the Commission did not proceed on the basis that Habitats issues were

resolved.

Contrary to what is asserted by the State in its response, the reference sought is based on

the question of the continuing validity of the Commission decision where the ‘context’ for

the continued application of the Commission Decision no longer applies.”

387. The State submitted:

“A distinction must be drawn between an argument properly advanced under the Habitats

Directive with respect to the assessment of the NAP under Article 6(3), and an argument

stated to be advanced under the Habitats Directive, but that in fact involves a collateral

challenge to the compliance of the Derogation with Ireland’s obligations under the Nitrates

Directive or Article 11 WFD, and thus a collateral challenge to the Commission’s Decision.

The former is permissible; the latter is not. This would be the case irrespective of the

inclusion of Recital 23 of the Commission Decision.

The Applicant’s pleaded case under the Habitats Directive and the WFD seeks to call into

question the compliance of the Derogation with Ireland’s obligations under the Nitrates

Directive and Article 11 WFD, and thus the correctness of the Commission Decision, and is

therefore precluded.”

388. My decision on this issue is that this doesn’t arise having regard to the outcome of Issue 71.

Conclusion on Core Ground 4

389. The implications of the foregoing for Core Ground 4 are that the ground can proceed subject

to the above comments. I would note however that in the possibly unlikely event that the Eurobolt

jurisdiction arises, it might be prudent to make provision for this as a sub-issue, and have amended

the issue paper accordingly.

Summary and next steps

390. Argued law is tough law (Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9, 16-17 per

Megarry J.). One of the glories of academic life is that one can skip straight to the senior common

room, teacup in hand, armchair chat about the substance of legal questions. In the forensic context,

for an applicant to even get to that stage, let alone to overcome it, she has to first pass through at

least two bruising qualifying rounds - the point must be properly pleaded, and it must properly arise

on the facts.

391. Here the applicant has come through the first round essentially intact. Its pleadings have

held up reasonably well, and while the State did make a couple of minor valid criticisms amidst the

deluge of ineffective or premature ones, they aren’t fatal because the points being made are

acceptably clear. Getting through the first qualifying leg has been laborious enough (I can possibly

be allowed to indiscreetly say that the present judgment has gone through a recent personal record

48 drafts at this stage), but the one consolation is that, all going well, the number of issues should

be on a downward curve.

392. Having successfully played defence in the first round, roles with the opposing parties are to

be reversed and the applicant must now switch to offence by demonstrating that its various legal

points are properly factually grounded in uncontradicted averments (or that any purported

contradiction is not properly evidential or outweighing). To say the least, discharging the burden of

proof in a conflict of affidavits, without cross-examination, isn’t always easy, and many a judicial

review applicant has come a cropper at this stage in the past - it was a background factor in cases

such as Reid v. An Bord Pleanála (No. 2) [2021] IEHC 362, [2021] 5 JIC 2705 for example. No

doubt we can look forward to a lively contest on this issue in the present case.

393. As mentioned above, Schedule I to this judgment records the issue paper as of 18th

December, 2023.

394. I now set out in Schedule II a revised issue paper incorporating what appear to be the

remaining issues, subject to any further or contrary submissions. In revising the issue paper I have

classed as redundant the largely duplicative preliminary issues which have been covered in this

judgment, but have also rearranged and amplified the wording of the questions in an attempt to

have a more structured conversation in later modules. Insofar as the “preliminary” issues raised

matters best dealt with later, these are now all covered by some other substantive question in the

revised issue paper.

395. To make clear that all of the challenges are being dealt with one way or the other, I set out

in Schedule III a table showing how the various grounds raised by the applicant are being addressed

in the revised issue paper. Again I am open to submissions to the contrary if necessary. Some of

the grounds give rise to a range of issues but I have only recorded in Schedule III the issue to which

they initially relate, simply in order to make clear that they are covered somewhere in the issue

paper.

396. Subject to any contrary submission, the sequence in which I would now propose to address

the remaining issues would be in accordance with the following algorithm:

(i) There will need to be a Module II on interpretation and evidential-type issues (not substantive

EU law issues), so I will invite the parties to make written submissions on those matters,

identified in Schedule II as the issues that are both bold and underlined. However parties

will have to pick up the pace considerably in relation to submissions - the 2 month gap

between the agreement of the issue paper in December 2023 and the final set of submissions

in February 2024 is ideally not to be repeated.

(ii) The applicant and the State will have 10 days from the date of this judgment to deliver

simultaneous written submissions on such issues, with the notice parties having a further 4

days thereafter to make their submissions. All submissions should address the issues on a

question-by-question basis with appropriate headings, in relation to any issues on which the

relevant party wishes to make submissions. Where questions are divided into sub-parts

(e.g., (a), (b) and so on), each sub-part should be given a separate and distinct heading in

the written submissions. While there is no problem with parts of such submissions referring

to the answers in other parts of the same document rather than setting them out in extenso,

it would be more convenient for the court if the submission did not merely reference

submissions made at earlier stages of the case but set out the full legal submission (relevant

to the particular issue concerned) in extenso within the forthcoming submission itself. The

notice parties are more than welcome to merely adopt some or all of the State’s submission

either summarily or on the basis of general comments, as they have done before and are

not obliged to comment further, but if they wish to make issue-specific comments they might

do so with appropriate headings. Insofar as evidential propositions are concerned, the

applicant will need to be very precise on identifying the specific averments supporting the

proposition in question, if they exist, and the opposing parties will need to be equally clear

on where they have contested the issue, if they have. It will also need to be made clear

that any relevant averments are genuinely evidential and not argumentative, assertions of

the ultimate issue, submissions-in-sheep’s clothing, or otherwise inadmissible, vacuous, or

non-determinative of the issue.

(iii) While previously the parties agreed inter se to an extension of the timelines for submissions,

in the interests of making progress in this case any further proposals for agreed extensions

must be submitted for advance approval by the court.

(iv) If the parties so request, there will be an oral hearing for Module II.

(v) The matter will be listed for mention shortly to fix a date in that regard if any party wishes

to have such a hearing. While I have an open mind as to the duration of this hearing if any

(it could be anything from dispensing with a further hearing altogether, to a Monday

afternoon to a couple of days or something in between) and welcome proposals in this

regard, it would need to be reasonably proximate - a timescale of weeks rather than months

from now is what I had in mind ideally.

(vi) Depending on the extent if any to which substantive EU law issues remain after the evidential

phase, one could then envisage a subsequent Module III confined to EU law issues, and

analogous directions in that regard will be given when judgment on Module II is delivered if

and to the extent that the necessity for a Module III arises.

(vii) Hypothetically there could be a final Module IV on remedies in the (obviously contested)

event that the outcome of Modules II and III is such that the question of a remedy arises

for consideration.

Order

397. The order made on 15th December, 2023, was that:

(i) the matter be listed for mention on Monday 18th December, 2023, to finalise the

issue paper;

(ii) the parties be required to upload word versions of their affidavits to ShareFile in

accordance with PD HC124 by Friday 19th January, 2024;

(iii) the State be directed to submit to the court and upload to ShareFile by Friday 26th

January, 2024, written legal submissions on a sequential heading-by-heading basis

addressing the apparently agreed and pleading issues:

(a). confirming that there is no dispute required to be determined by the court

in relation to the issues marked as apparently agreed; and

(b). setting out their submissions, including specific authorities and references,

as to the issues identified as pleading issues in the issue paper;

(iv) the notice parties would do likewise by Friday 2nd February, 2024;

(v) the applicant do likewise by Tuesday 13th February, 2024, at which point judgment

would stand reserved; and

(vi) costs of the proceedings to date be reserved.

398. For the foregoing reasons, it is now ordered that:

(i) the pleading/evidential-type issues and ostensibly agreed issues be disposed of as

set out in the judgment;

(ii) the issue paper for future modules be reworded as set out in Schedule II to this

judgment, with liberty to make any contrary proposal on the mention date of 11th

March, 2024;

(iii) the parties be directed to make written submissions on the Module II issues by the

timelines set out in the judgment;

(iv) the parties be directed to liaise with the List Registrar to set up sub-folders within

each main existing ShareFile folder, to separate Module I papers (existing papers

not directly relevant now) from Module II papers (papers relevant to the next

module);

(v) all affidavits relevant to Module II be made available in the relevant sub-folder in

Word document format;

(vi) the matter be listed for mention on Monday 11th March, 2024, for the purpose of

fixing a date for a potential oral hearing of Module II, if requested, as envisaged by

the next steps algorithm (in which regard the parties are invited to suggest

proximate dates and durations for consideration); and

(vii) costs of the proceedings to date be reserved, subject to liberty to apply.

SCHEDULE I – ISSUE PAPER AS OF 18TH DECEMBER, 2023

Issues that appear agreed or that constitute pleading/evidential-type objections are marked as such

CG1 – HABITATS

1. Is a nitrates action programme under article 5 of the nitrates directive a “plan” for the

purposes of art. 6(3) of the habitats directive? APPEARS AGREED

2. Alternatively, is the NAP subject to art. 6(3) because of the fact that the NAP underwent AA

which engages the Aarhus Convention per the judgement of 8 November 2016, Lesoochranárske

zoskupenie VLK, C-243/15 LZ II §47? APPEARS AGREED (insofar as it may be agreed that this does

not arise because of previous question)

3. Is a site-specific analysis of the NAP under art. 6(3) possible (and therefore required)?

4. If site-specific analysis of the plan under art. 6(3) is not possible, must there still be an

appropriate assessment of the plan in general terms? APPEARS AGREED

5. Is the applicant precluded from mounting a challenge to the adequacy of the AA because

such a challenge constitutes an impermissible merits-based challenge to the compliance of the NAP

with the requirements of the Nitrates Directive? PLEADING-TYPE ISSUE

6. Is the applicant precluded from mounting a challenge to the adequacy of the AA because

such a challenge constitutes an unpleaded challenge to the compliance of the NAP with the

requirements of the Nitrates Directive? PLEADING-TYPE ISSUE

7. Is the applicant precluded from mounting a challenge to the adequacy of the AA because

such a challenge constitutes an unpleaded challenge to the compliance of the Respondents’

programme of measures with Article 11 of the WFD? PLEADING-TYPE ISSUE

8. Subject to the foregoing objection, is it a requirement that such an assessment must include

the question of whether the particular measures characterised by the State as protections afforded

by the plan and/or measures described as mitigation measures therein either alone or together with

other binding measures adopted by the member state are sufficiently rigorous to remove all scientific

doubt as to adverse effects on European sites caused by the activities the subject of provisions

contained in the programme?

9. Are individual derogation decisions published? APPEARS AGREED

10. If individual derogation decisions are not published, does the objection that the applicant

could have pursued challenges to individual derogations arise at all for consideration? PLEADING-

TYPE ISSUE

11. Even if the option of challenges to individual derogations falls for consideration, is the

applicant precluded from bringing a challenge at a general systemic level by reason of the existence

of the theoretical possibility of challenging individual derogations or individual agricultural activities

carried on without AA on a site-by-site basis or by the possibility of calling on the Minister either on

a site-by-site basis or generally to exercise powers to require AA under domestic law (art. 28(1) of

the 2011 regulations)? PLEADING-TYPE ISSUE

12. Alternatively, is the applicant precluded from bringing such a claim by reason of its failure

to do so by way of a transposition challenge? PLEADING-TYPE ISSUE

13. Alternatively, is the applicant precluded from bringing such a claim by reason of its failure,

if the Applicant believes derogations should be published as a matter of EU law, to bring a challenge

to the failure to publish those decisions? PLEADING-TYPE ISSUE

14. Is the applicant precluded from any claim of environmental consequences arising from the

manner of implementation of, or a failure to properly implement, the NAP, having regard to the

presumption of legality? PLEADING-TYPE ISSUE

15. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not pleaded any relief seeking to quash any specific derogation decision, or

agricultural activity? PLEADING-TYPE ISSUE

16. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not sought any declaratory relief to the effect that any specific derogation decision

or agricultural activity, requires appropriate assessment? PLEADING-TYPE ISSUE

17. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not sought any declaratory relief to the effect that derogation decisions or

agricultural activities generally, require appropriate assessment? PLEADING-TYPE ISSUE

18. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not identified any derogation decision or agricultural activity that it alleges required

appropriate assessment? PLEADING-TYPE ISSUE

19. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not identified any protected site alleged to be affected by any derogation decision

or agricultural activity? PLEADING-TYPE ISSUE

20. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not pleaded any non-transposition claim? PLEADING-TYPE ISSUE

21. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not engaged, at all, with the legislative framework governing agricultural activities?

PLEADING-TYPE ISSUE

22. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has therefore neither pleaded nor made out either a specific or systemic challenge with

respect to the appropriate assessment of farm level agricultural activities? PLEADING-TYPE ISSUE

23. Is the applicant precluded from challenging whether the AA is sufficiently rigorous if the

Applicant's conclusion that the NAP "authorises” farm-level activities is incorrect? PLEADING-TYPE

ISSUE

24. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

a challenge based on an alleged failure to carry out appropriate assessment on derogation decisions

or agricultural activities could never be pursued through a challenge to the NAP? PLEADING-TYPE

ISSUE

25. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

any failure with respect to any farm-level activity could not go to the validity of the NAP? PLEADING-

TYPE ISSUE

26. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

alternatively, and without prejudice to the foregoing objections, the measures in the NAP (including

measures described as mitigation measures therein) are sufficiently rigorous in circumstances where

(in particular, but not exclusively) they comply fully with the requirements of the Nitrates Directive?

27. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not challenged the compliance of the measures in the NAP with the requirements

of the Nitrates Directive? PLEADING-TYPE ISSUE

28. Is the applicant precluded from maintaining the challenge in particular as to the likelihood

of adverse environmental effects as a result of the impugned decisions by reason of the applicant’s

failure to contest the evidence of the opposing parties by means of cross-examination? PLEADING-

TYPE ISSUE

29. Are the proceedings misconceived because the Applicant’s real complaint is that the State is

able to avail of a derogation at all and indeed has obtained such a derogation from the European

Commission and because these proceedings are no more than a Trojan horse and an impermissible

collateral attack on the decision to grant Ireland a derogation from the 170kg limit of livestock

manure per hectare, available under Annex III2(b) of the Nitrates Directive (Directive 91/676/EEC)

as is said to be manifest from the pleadings (see Affidavit of Elaine McGoff, §§14-19)? PLEADING-

TYPE ISSUE

30. Is the applicant precluded from raising issues that flow from the Government’s decision to

seek a derogation by reason of its failure to challenge that decision? PLEADING-TYPE ISSUE

31. Is the applicant precluded from relying on any ultimate site-specific impacts because there

is a failure by the Applicant to adduce any evidence or identify any specific project, on any given

protected site, by reference to evidence relevant to the conservation objectives of any particular

site, in respect of which it might be contended that the 5th NAP has unlawfully authorised an

intervention to a protected site and because the EPA reports exhibited by the Applicant cannot be

relied upon because in no manner can they be considered or construed as evidencing the

authorisation of any project-specific intervention capable of having a significant adverse impact on

a European Site? PLEADING-TYPE ISSUE

32. Is the applicant precluded from relying on any ultimate site-specific impacts because an

allegation that the 5th NAP has authorised or is unlawfully authorising interventions into any and/or

all protected European Sites is not pleaded with necessary specificity and particularity? PLEADING-

TYPE ISSUE

33. Subject to the foregoing objections, are the measures in the Irish nitrates action programme

insufficiently rigorous for the purposes of AA because:

(i) the programme envisages farm-level derogations in a context that will require AA where

they may affect European sites and State has made it clear that they do not intend to carry out site

specific assessments in the context of a derogation application as set out in the responses in the

SEA;

(ii) the individual derogations do not adequately or at all seek information from farmers as to

whether the individual farms are in or near European sites or as to whether agricultural activities on

such farms could affect such sites or impose requirements that would follow from such information;

and

(iii) there is no general provision otherwise for site-specific assessment of impacts of farming on

European sites.

34. Is the applicant’s challenge precluded by the principle that environmental protection and

economic activity are incommensurable values and the choice of by how much one might be limited

to advance the other cannot be assessed by reference to legal standards and accordingly, it is an

inherently political question, not a justiciable one? PLEADING-TYPE ISSUE

CG2 – WFD

35. Is the applicant precluded from obtaining relief in relation to the WFD by reason of the lack

of any pleaded relief in that regard (the claim being set out in the grounds only)? PLEADING-TYPE

ISSUE

36. Does Article 4(1) of the WFD have the effect that Member States are required – unless a

derogation is granted – to refuse authorisation for an individual project where it may cause a

deterioration of the status of a body of surface water or where it jeopardises the attainment of good

surface water status or of good ecological potential and good surface water chemical status by the

date laid down by the directive – as laid down in the judgment of 1 July 2015, Bund für Umwelt und

Naturschutz Deutschland e.V. v Bundesrepublik Deutschland, C-461/13, ECLI:EU:C:2015:433 ?

APPEARS AGREED

37. Does such a principle have the effect that member states must also refuse to adopt a plan

if the particular protections afforded by the plan either alone or together with other binding measures

adopted by the member state are insufficiently rigorous to ensure that the activities the subject of

provisions contained in the plan will not cause a deterioration of the status of a body of surface water

or where it jeopardises the attainment of good surface water status or of good ecological potential

and good surface water chemical status by the date laid down by the directive, either generally or

in the specific case of basic measures required by art 11 of the WFD?

38. Is the applicant precluded from challenging a basic measure for the purposes of art. 11(3)

of the WFD if the challenge is in substance a merits-based challenge to the compliance of Ireland’s

programme of measures with Article 11 WFD? PLEADING-TYPE ISSUE

39. Is the applicant precluded from challenging a basic measure for the purposes of art. 11(3)

of the WFD if the challenge is in substance an unpleaded challenge to the compliance of Ireland’s

programme of measures with Article 11 WFD? PLEADING-TYPE ISSUE

40. Is the applicant precluded from challenging a basic measure for the purposes of art. 11(3)

of the WFD if the challenge is in substance an unpleaded challenge to the compliance of the NAP

with Article 5(5) of the Nitrates Directive? PLEADING-TYPE ISSUE

41. Is the applicant precluded from challenging a basic measure for the purposes of art. 11(3)

of the WFD if the challenge is in substance an unpleaded argument that farm-level activities require

assessment under Article 4(1)? PLEADING-TYPE ISSUE

42. Should it be presumed in the absence of any challenge to the compliance of the NAP with

the nitrates directive that the NAP complies with that directive? PLEADING-TYPE ISSUE

43. Is the applicant precluded from challenging an NAP that (on the foregoing hypothesis)

complies with the requirements of the Nitrates Directive on the basis that such an NAP could never

cause a deterioration in the status of a water body? PLEADING-TYPE ISSUE

44. Even if in general terms the requirement to refuse to adopt a plan referred to above applies,

does this requirement apply in the specific case of the proposed adoption of a basic measure as

defined by art. 11(3) of the WFD and in particular a nitrates action programme under article 5 of the

nitrates directive (as referred to in Annex VI part A para (ix) of the WFD as referenced in art. 11(3)(a)

of the directive)?

45. If assessment by reference to art. 4 of the WFD is required, was the NAP properly assessed

by reference to the WFD so as to ensure that the objectives in art. 4 of the WFD are met?

46. If an art. 4 WFD assessment is required, does that application have the consequence that

either:

(i) an NAP cannot be adopted unless all water bodies in the member state concerned have been

assigned a status, because in the absence of that it cannot be ascertained as to whether a

deterioration in such status would be caused by the activities the subject of provisions contained in

the NAP [this possibly overlaps with the preliminary reference in Sweetman v. An Bord Pleanála

[2021] IEHC 777]; or

(ii) Alternatively, even assuming an NAP can in principle be adopted in the absence of the

assignment of status to all water bodies, the NAP cannot be adopted if the particular protections

afforded by the plan either alone or together with other binding measures adopted by the member

state are insufficiently rigorous to ensure that the activities the subject of provisions contained in

the programme will not cause a deterioration of the status of a body of surface water or jeopardise

the attainment of good surface water status or of good ecological potential and good surface water

chemical status by the date laid down by the directive?

47. Are the measures in the Irish nitrates action programme insufficiently rigorous in that regard

because they fail to ensure that the agricultural activities the subject of provisions in the NAP will

not cause the deterioration of the status of any water body or will not jeopardise the attainment of

good surface water status or good ecological potential and good surface water chemical status and

the attainment of good groundwater status?

48. Are the GAP Regulations SI 113 of 2022 invalid for similar reasons as contrary to art. 4(1)

WFD insofar as they contain codes of good practice that are insufficiently rigorous in this regard

(ground 35)?

CG3 – SEA

49. Is the applicant precluded from obtaining relief in relation to SEA by reason of the lack of

any pleaded relief in that regard (the claim being set out in the grounds only)? PLEADING-TYPE

ISSUE

50. Is the NAP a plan or programme for the purposes of the SEA directive? APPEARS AGREED

51. Does the NAP therefore require SEA? APPEARS AGREED

52. Does the SEA directive require that such SEA must assess the environmental effects of the

NAP in terms of its adequacy or efficiency in addressing the environmental effects of the activities

the subject of provisions contained in the NAP (as opposed to the mitigation measures within the

NAP)?

53. Does the SEA directive require that such SEA must assess the environmental effects of the

NAP in terms of the adequacy or efficiency of mitigation measures within the NAP?

54. Is the applicant precluded from advancing the overall complaint under the SEA Directive

because it is inadequately pleaded? PLEADING-TYPE ISSUE

55. Is the applicant precluded from challenging the particular complaint regarding the

assessment of alternatives by the SEA because that claim is inadequately pleaded? PLEADING-TYPE

ISSUE

56. Is the applicant precluded from challenging the particular complaint regarding the

monitoring provision of the SEA because that claim is inadequately pleaded? PLEADING-TYPE ISSUE

57. Is a claim about inadequate monitoring provision premature and not a basis to challenge an

SEA process itself? PLEADING-TYPE ISSUE

58. Is the applicant precluded from advancing the SEA complaint because on a proper analysis

what the Applicant is in effect inviting the Court to engage in a merits-based review of the decision

challenged and a review of matters of policy and policy implementation and because the Court cannot

review the impugned decision in the manner sought by the Applicant and because to do so would

offend again the core principle of the separation of powers and settled case-law? PLEADING-TYPE

ISSUE

59. Is the SEA for the NAP inadequate in that regard because the Environmental Report does

not contain an assessment of the preferred option on the “likely significant effects on the

environment” including “secondary, cumulative, synergistic, short, medium and long-term,

permanent and temporary, positive and negative effects” (overall sub-ground 50)? [Note: this is

possibly a factual question – State response is that the Environmental Report does contain a proper

assessment of the preferred option on the “likely significant effects on the environment”, including

as claimed above, in particular (but not limited) to the assessment at Chapter 8 of the Environmental

Report]

60. If an assessment of the efficacy of proposed mitigation measures is required, is the SEA for

the NAP inadequate in that regard because there is no assessment of the efficacy of the proposed

mitigation measures (sub-ground 52)? [Note: possibly a factual question – State response is that

there is such an assessment in the SEA Environmental Report and the SEA Statement even though

such was not required in the State’s submission]

61. Is the SEA for the NAP inadequate in that regard because “material assets” means as set

out in the EPA "SEA Pack of resources to guide the implementation of the SEA Directive provides a

definition of "material assets" as "critical infrastructure essential for the functioning of society"?

62. If so do agricultural assets or the food supply chain amount to a critical infrastructure

essential for the functioning of society?

63. Is the SEA for the NAP inadequate in that regard because by analogy with C-420/11 – Leth

(an EIA case) the value of assets does not form part of the assessment, this applies not just to

individual assets but to the broad societal impacts of agricultural activities, the impact of the NAP

on the agricultural industry, and in particular on the output and income of farmers, the sustainability

of the agricultural industry in Ireland, the food supply chain and the employment of a significant

portion of the population, and the SEA incorrectly considered whether the value of agricultural assets

would be affected by the programme?

64. Is the SEA for the NAP inadequate in that regard because material assets were treated as a

separate factor rather than as an aspect of the environment as required by Annex I (sub-grounds

54 and 55)? [Note: this is possibly a question of how the SEA is to be interpreted – State response

is that the Environmental Report evidences that, at the least, “material assets” were treated as an

aspect of the environmental assessment as required by Annex I of the SEA Directive]

65. Is the SEA for the NAP inadequate in that regard because material assets were treated as

an outweighing factor? [Note: State response is that the Applicant confuses the obligation to assess

environmental effects of reasonable alternatives with the obligation when selecting the preferred

alternative? There is no obligation under the SEA Directive to select the alternative that is the most

environmentally friendly. The Respondents were entitled to have regard to policy considerations

when selecting the preferred alternative.]

66. Is the SEA for the NAP inadequate in that regard because assessment criteria used to select

the preferred alternative are irrational and/or were applied irrationally in the decision to select the

preferred alternative, especially where the assessment provides that each objective has been given

equal weight? [Note: this may be a matter of interpretation of the SEA)? State response is that the

reason for the selection of the preferred option is clear from inter alia the Environmental Report. The

Respondents had an evidential basis for reaching the decision that they did. This is a merits-based

challenge and the Respondents rely on the decision of the Court of Appeal in Friends of the Irish

Environment CLG v. Government of Ireland [2021] IECA 317.]

67. Is the SEA for the NAP inadequate in that regard because: Subject to the pleading objection

above, the SEA Statement failed to consider, adequately or at all, the alternatives to the strategic

alternative option selected and to subject each of the alternatives to a commensurate level of

analysis? There is no detailed description or evaluation of the likely significant environmental effects

of the alternative strategies in the Environmental Report. As identified by the Commission Guidance

(2003) (at §5.12) the Directive makes no distinction between the assessment requirements for the

drafted plan or programme and for the alternatives and the alternatives must be identified, described

and evaluated in a comparable way (sub-ground 57)? [Note: this potentially overlaps with the issue

before the CJEU in Friends of the Irish Environment v Government of Ireland) (this may be a question

of interpretation of the SEA. State response is that the alternatives were properly assessed and, so

far as required under the SEA Directive, subject to a commensurate level of analysis in the iterative

procedure under that Directive, including by way of detailed description and evaluation in inter alia

Chapter 7 of the Environmental Report. The Commission Guidance is not binding. The Respondents

rely on the decision of the Court of Appeal in Friends of the Irish Environment CLG v. Government

of Ireland [2021] IECA 317 and submit that the Court is not required to await the decision of the

CJEU in Friends of the Irish Environment v Government of Ireland in order to determine this issue.]

68. Is the SEA for the NAP inadequate in that regard because subject to the pleading and

prematurity objection above, it is implicit in Art. 10 that monitoring provisions must be included

within the decision itself? On that premise, the NAP includes no adequate provision for monitoring

of the significant environmental effects of its implementation and therefore contains no or no

adequate provision for the identification at an early stage of unforeseen adverse effects or when

appropriate remedial action might be required. This issue is addressed at Chapter 7 of the SEA

Statement. No details of how this monitoring will occur, who will do it, when it will be done, how the

monitoring will be used, and how any identified unforeseen adverse environmental effects will be

addressed. Most of what the Chapter identifies as indicators for monitoring significant environmental

effects do not in fact measure environmental effects (sub-grounds 59 and 60)? [Note: this potentially

overlaps with the issue to be considered by the Supreme Court following the judgment of the CJEU

in Friends of the Irish Environment v Government of Ireland). This may be a matter of interpretation

of the SEA. State response includes - the monitoring measures in the NAP, which reflect the

requirements of the Nitrates Directive and the Commission Decision, are clearly adequate (see, for

example but not limited to the summary at Section 9.2 and table at 9.3 of the Environmental Report).

The Respondents rely on the decision of the Court of Appeal in Friends of the Irish Environment CLG

v Government of Ireland [2021] IECA 317. On the other hand the monitoring issue is one that the

Supreme Court has reserved its position on.]

REMEDY

69. If any error was committed in the decision-making process, should the court decline to grant

relief at all or alternatively should it decline to make any order that affects the validity of the NAP/

GAP, for example by instead directing further reasons or assessments as opposed to impugning such

measures, in the exercise of the Court's discretion on judicial review, taking into account the general

principle (as a matter of EU law) of proportionality, and prejudice to third parties including by

reference to any applicable rights and interests of others, including under the Charter of Fundamental

Rights, in particular the right to work under art. 15, to conduct a business under art. 16, and to

property under art. 17, and the corresponding constitutional right under Art. 40.3, as well as Union

policies generally including the CAP under art. 39 TFEU and Regulation (EU) 2021/2115 of the

European Parliament and of the Council of 2 December 2021?

70. If the Court determines that an order of certiorari or a declaration of invalidity is required,

should a stayed or suspensive order be made pending remedial measures to address the Court’s

findings having regard to the risks of reduced environmental protection in the short term, or a breach

of EU law, or adverse consequences to other stakeholders? APPEARS AGREED

CG4 - REFERENCE

71. Is the Commission derogation decision unchallengeable in these proceedings and therefore

does it follow that the applicant is precluded from challenging the findings therein and the court

must proceed on the basis that such findings are valid and correct? PLEADING-TYPE ISSUE

72. Alternatively, if the Commission findings cannot be directly differed from by the court, can

the court nonetheless refer a question to the CJEU as to the correctness in fact or in law of such

findings? PLEADING-TYPE ISSUE

73. Even if the Commission derogation decision is binding for the purposes of the proceedings,

is the statement in recitals that it is without prejudice to the habitats directive sufficient to enable

the applicant to advance arguments related to that issue? PLEADING-TYPE ISSUE

74. Is the applicant precluded from asking the court to refer to the CJEU a question as to the

validity of the Commission Decision because the appropriate legal route is an Article 263 TFEU action

for annulment before the General Court of the EU under art. 256(1) TFEU?

75. If a reference to the CJEU is in principle available, is such a reference precluded here because

the proceedings would have been disposed of with a decision on the validity of the NAP and/or GAP?

76. Even if such a reference is available and is in principle not precluded, is such a reference

appropriate on a discretionary basis because of the absence of any direct action for annulment?

[would this add anything to the discretion anyway?]

77. Even if such a reference is available and is in principle not precluded, is the applicant correct

that that the postulated invalidity of the NAP would have an impact on the validity of the Commission

decision?

78. Even if so, does the postulated proposal to suspend any order of certiorari impact on the

answer to the previous question?

SCHEDULE II – ISSUE PAPER AS OF MODULE II

Issues already dealt with or that no longer arise, or that are superseded by a substantive issue, in

italics

Issues to be dealt with in Module II in bold and underlined

Issues potentially for Modules III & IV – bold with no underlining

CG1 – HABITATS DIRECTIVE

1. Is a nitrates action programme under article 5 of the nitrates directive a “plan” for the

purposes of art. 6(3) of the habitats directive? APPEARS AGREED

2. Alternatively, is the NAP subject to art. 6(3) because of the fact that the NAP underwent AA

which engages the Aarhus Convention per the judgement of 8 November 2016, Lesoochranárske

zoskupenie VLK, C-243/15 LZ II §47? APPEARS AGREED (insofar as it may be agreed that this does

not arise because of previous question)

3. (a) Does art. 6(3) of the habitats directive have the effect that, if a site-specific

analysis of effects of the NAP is possible for the purposes of AA of the NAP, such an

analysis is required.

(b) Has the applicant established that insofar as a site-specific analysis in the AA was

possible, such an analysis of the NAP was not carried out (on the assumption that the

effects of the underlying agricultural activities should be considered).

(c) Has the applicant established that insofar as a site-specific analysis in the AA was

possible, such an analysis of the NAP was not carried out (on the assumption that only

the effects of the mitigating measures in the plan itself should be considered).

(d) Does art. 6(3) of the habitats directive (transposed by Regulation 42A(11) of the Birds

and Natural Habitats Regulations) have the effect that a NAP cannot lawfully be approved

unless an AA is carried out prior to such approval.

(e) Has the applicant established that in this case the AA was not carried out prior to the

approval of the NAP (the applicant’s case being that the Appropriate Assessment

determination of 4th March 2022 post-dates the approval of the NAP which, per the SEA

Statement was therein stated to have been approved on 1st March 2022).

[reworded]

4. If site-specific analysis of the plan under art. 6(3) is not possible, must there still be an

appropriate assessment of the plan in general terms? APPEARS AGREED

5. Is the applicant precluded from mounting a challenge to the adequacy of the AA because

such a challenge constitutes an impermissible merits-based challenge to the compliance of the NAP

with the requirements of the Nitrates Directive? PLEADING-TYPE ISSUE

6. Is the applicant precluded from mounting a challenge to the adequacy of the AA because

such a challenge constitutes an unpleaded challenge to the compliance of the NAP with the

requirements of the Nitrates Directive? PLEADING-TYPE ISSUE

7. Is the applicant precluded from mounting a challenge to the adequacy of the AA because

such a challenge constitutes an unpleaded challenge to the compliance of the Respondents’

programme of measures with Article 11 of the WFD? PLEADING-TYPE ISSUE

8. Does art. 6(3) of the habitats directive have the effect that it is a requirement that

AA of the NAP must include the question of whether the particular measures characterised

by the State as protections afforded by the plan and/or measures described as mitigation

measures therein either alone or together with other binding measures adopted by the

member state are sufficiently rigorous to remove all scientific doubt as to adverse effects

on European sites caused by the agricultural activities the subject of provisions contained

in the programme.

[reworded]

9. Are individual derogation decisions published? APPEARS AGREED

10. If individual derogation decisions are not published, does the objection that the applicant

could have pursued challenges to individual derogations arise at all for consideration? PLEADING-

TYPE ISSUE

11. Even if the option of challenges to individual derogations falls for consideration, is the

applicant precluded from bringing a challenge at a general systemic level by reason of the existence

of the theoretical possibility of challenging individual derogations or individual agricultural activities

carried on without AA on a site-by-site basis or by the possibility of calling on the Minister either on

a site-by-site basis or generally to exercise powers to require AA under domestic law (art. 28(1) of

the 2011 regulations)? PLEADING-TYPE ISSUE

12. Alternatively, is the applicant precluded from bringing such a claim by reason of its failure

to do so by way of a transposition challenge? PLEADING-TYPE ISSUE

13. Alternatively, is the applicant precluded from bringing such a claim by reason of its failure,

if the Applicant believes derogations should be published as a matter of EU law, to bring a challenge

to the failure to publish those decisions? PLEADING-TYPE ISSUE

14. Is the applicant precluded from any claim of environmental consequences arising from the

manner of implementation of, or a failure to properly implement, the NAP, having regard to the

presumption of legality? PLEADING-TYPE ISSUE

15. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not pleaded any relief seeking to quash any specific derogation decision, or

agricultural activity? PLEADING-TYPE ISSUE

16. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not sought any declaratory relief to the effect that any specific derogation decision

or agricultural activity, requires appropriate assessment? PLEADING-TYPE ISSUE

17. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not sought any declaratory relief to the effect that derogation decisions or

agricultural activities generally, require appropriate assessment? PLEADING-TYPE ISSUE

18. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not identified any derogation decision or agricultural activity that it alleges required

appropriate assessment? PLEADING-TYPE ISSUE

19. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not identified any protected site alleged to be affected by any derogation decision

or agricultural activity? PLEADING-TYPE ISSUE

20. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not pleaded any non-transposition claim? PLEADING-TYPE ISSUE

21. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not engaged, at all, with the legislative framework governing agricultural activities?

PLEADING-TYPE ISSUE

22. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has therefore neither pleaded nor made out either a specific or systemic challenge with

respect to the appropriate assessment of farm level agricultural activities? PLEADING-TYPE ISSUE

23. Is the applicant precluded from challenging whether the AA is sufficiently rigorous if the

Applicant's conclusion that the NAP "authorises” farm-level activities is incorrect? PLEADING-TYPE

ISSUE

24. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

a challenge based on an alleged failure to carry out appropriate assessment on derogation decisions

or agricultural activities could never be pursued through a challenge to the NAP? PLEADING-TYPE

ISSUE

25. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

any failure with respect to any farm-level activity could not go to the validity of the NAP? PLEADING-

TYPE ISSUE

26. Has the applicant established that the AA determination was inadequate to remove

all scientific doubt as to the effects of the NAP (leaving aside the question of a site-specific

analysis), on the assumption that only the effects of the mitigating measures in the plan

itself should be considered, having regard in particular to the lack of a plea of breach of

the nitrates directive.

[reformulated combination of 26 and 33]

27. Is the applicant precluded from challenging whether the AA is sufficiently rigorous because

the Applicant has not challenged the compliance of the measures in the NAP with the requirements

of the Nitrates Directive? PLEADING-TYPE ISSUE

28. Is the applicant precluded from maintaining the challenge in particular as to the likelihood

of adverse environmental effects as a result of the impugned decisions by reason of the applicant’s

failure to contest the evidence of the opposing parties by means of cross-examination? PLEADING-

TYPE ISSUE

29. Are the proceedings misconceived because the Applicant’s real complaint is that the State is

able to avail of a derogation at all and indeed has obtained such a derogation from the European

Commission and because these proceedings are no more than a Trojan horse and an impermissible

collateral attack on the decision to grant Ireland a derogation from the 170kg limit of livestock

manure per hectare, available under Annex III2(b) of the Nitrates Directive (Directive 91/676/EEC)

as is said to be manifest from the pleadings (see Affidavit of Elaine McGoff, §§14-19)? PLEADING-

TYPE ISSUE

30. Is the applicant precluded from raising issues that flow from the Government’s decision to

seek a derogation by reason of its failure to challenge that decision? PLEADING-TYPE ISSUE

31. Is the applicant precluded from relying on any ultimate site-specific impacts because there

is a failure by the Applicant to adduce any evidence or identify any specific project, on any given

protected site, by reference to evidence relevant to the conservation objectives of any particular

site, in respect of which it might be contended that the 5th NAP has unlawfully authorised an

intervention to a protected site and because the EPA reports exhibited by the Applicant cannot be

relied upon because in no manner can they be considered or construed as evidencing the

authorisation of any project-specific intervention capable of having a significant adverse impact on

a European Site? PLEADING-TYPE ISSUE

32. Is the applicant precluded from relying on any ultimate site-specific impacts because an

allegation that the 5th NAP has authorised or is unlawfully authorising interventions into any and/or

all protected European Sites is not pleaded with necessary specificity and particularity? PLEADING-

TYPE ISSUE

33. (a) Has the applicant established that the AA determination was inadequate to

remove all scientific doubt as to the effects of the NAP (leaving aside the question of the

need for a site-specific analysis within the AA itself), on the assumption that the effects

of the underlying agricultural activities should be considered, having regard in particular

to:

(i) The lack of a plea of breach of the nitrates directive;

(ii) the fact that the NAP envisages farm-level derogations in a context that will

require AA where they may affect European sites and State has made it clear that

they do not intend to carry out site specific assessments in the context of a

derogation application as set out in the responses in the SEA;

(iii) the fact that the individual derogations do not adequately or at all seek information

from farmers as to whether the individual farms are in or near European sites or

as to whether agricultural activities on such farms could affect such sites or impose

requirements that would follow from such information; and

(iv) the fact that there is no general provision otherwise for site-specific assessment

of impacts of farming on European sites.

(b) Has the applicant established that there is no effective system in practice for farm

level AA (despite the theoretical relevance of the 2000 Act and 2011 regulations), insofar

as this alleged fact may be relevant to the adequacy of the AA of the NAP.

[reformulated combination of 26 and 33]

34. Is the applicant’s challenge precluded by the principle that environmental protection and

economic activity are incommensurable values and the choice of by how much one might be limited

to advance the other cannot be assessed by reference to legal standards and accordingly, it is an

inherently political question, not a justiciable one?

CG2 – WFD

35. Is the applicant precluded from obtaining relief in relation to the WFD by reason of the lack

of any pleaded relief in that regard (the claim being set out in the grounds only)? PLEADING-TYPE

ISSUE

36. Does Article 4(1) of the WFD have the effect that Member States are required – unless a

derogation is granted – to refuse authorisation for an individual project where it may cause a

deterioration of the status of a body of surface water or where it jeopardises the attainment of good

surface water status or of good ecological potential and good surface water chemical status by the

date laid down by the directive – as laid down in the judgment of 1 July 2015, Bund für Umwelt und

Naturschutz Deutschland e.V. v Bundesrepublik Deutschland, C-461/13, ECLI:EU:C:2015:433 ?

APPEARS AGREED

37. (a) Does Article 4(1) of the WFD (as interpreted in the light of the principle that

Member States are required – unless a derogation is granted – to refuse authorisation for

an individual project where it may cause a deterioration of the status of a body of surface

water or where it jeopardises the attainment of good surface water status or of good

ecological potential and good surface water chemical status by the date laid down by the

directive – as laid down in the judgment of 1 July 2015, Bund für Umwelt und Naturschutz

Deutschland e.V. v Bundesrepublik Deutschland, C-461/13, ECLI:EU:C:2015:433) have

the effect that member states must also refuse to adopt a plan if the particular protections

afforded by the plan either alone or together with other binding measures adopted by the

member state are insufficiently rigorous to ensure that the activities the subject of

provisions contained in the plan will not cause a deterioration of the status of a body of

surface water or jeopardise the attainment of good surface water status or of good

ecological potential and good surface water chemical status by the date laid down by the

directive, either generally or in the specific case of the proposed adoption of a basic

measure as defined by art. 11(3) of the WFD and in particular a nitrates action programme

under article 5 of the nitrates directive (as referred to in Annex VI part A para (ix) of the

WFD as referenced in art. 11(3)(a) of the directive).

(b) Does Article 4(1) of the WFD have the effect that each proposed measure to be

adopted for the purposes of art. 11 of the WFD must be individually assessed to ensure

individual compliance with art. 4 as it impacts on each and every potential water body

affected by the measure and, insofar as that is required, by the underlying activities

regulated by the measure.

[reformulated to ensure all issues addressed – see body of judgment - also SEA issues moved to

under CG3 for simplicity]

38. Is the applicant precluded from challenging a basic measure for the purposes of art. 11(3)

of the WFD if the challenge is in substance a merits-based challenge to the compliance of Ireland’s

programme of measures with Article 11 WFD? PLEADING-TYPE ISSUE

39. Is the applicant precluded from challenging a basic measure for the purposes of art. 11(3)

of the WFD if the challenge is in substance an unpleaded challenge to the compliance of Ireland’s

programme of measures with Article 11 WFD? PLEADING-TYPE ISSUE

40. Is the applicant precluded from challenging a basic measure for the purposes of art. 11(3)

of the WFD if the challenge is in substance an unpleaded challenge to the compliance of the NAP

with Article 5(5) of the Nitrates Directive? PLEADING-TYPE ISSUE

41. Is the applicant precluded from challenging a basic measure for the purposes of art. 11(3)

of the WFD if the challenge is in substance an unpleaded argument that farm-level activities require

assessment under Article 4(1)? PLEADING-TYPE ISSUE

42. Should it be presumed in the absence of any challenge to the compliance of the NAP with

the nitrates directive that the NAP complies with that directive? PLEADING-TYPE ISSUE

43. Is the applicant precluded from challenging an NAP that (on the foregoing hypothesis)

complies with the requirements of the Nitrates Directive on the basis that such an NAP could never

cause a deterioration in the status of a water body? PLEADING-TYPE ISSUE

44. Even if in general terms the requirement to refuse to adopt a plan referred to above applies,

does this requirement apply in the specific case of the proposed adoption of a basic measure as

defined by art. 11(3) of the WFD and in particular a nitrates action programme under article 5 of the

nitrates directive (as referred to in Annex VI part A para (ix) of the WFD as referenced in art. 11(3)(a)

of the directive)?

[combined with Issue 37(a) and (b)]

45. (a) Has the applicant established that the particular protections afforded by the

NAP either alone or together with other binding measures adopted by the member state

are insufficiently rigorous to ensure that the activities the subject of provisions contained

in the plan will not cause a deterioration of the status of a body of surface water or

jeopardise the attainment of good surface water status or of good ecological potential and

good surface water chemical status by the date laid down by the directive (on the

assumption that such rigour is required).

(b) Has the applicant established that the NAP as a proposed measure to be adopted for

the purposes of art. 11 of the WFD was not individually assessed to ensure individual

compliance with art. 4 as it impacts on each and every potential water body affected by

the measure and, insofar as that is required, by the underlying activities regulated by the

measure (assuming such to be required).

[reworded - SEA issues moved to under CG3 for simplicity]

46. Does art. 4 WFD have the effect that:

(i) an NAP cannot be adopted unless all water bodies in the member state concerned

have been assigned a status, because in the absence of that it cannot be ascertained as

to whether a deterioration in such status would be caused by the activities the subject of

provisions contained in the NAP; or

(ii) in the absence of the assignment of status to all water bodies, the NAP cannot be

adopted without an (ad hoc) determination that the plan (and if required the activities

the subject of provisions contained in the plan) will not cause a deterioration of the status

of any body of surface water or jeopardise the attainment of good surface water status or

of good ecological potential and good surface water chemical status by the date laid down

by the directive.

[reworded - overlaps with the preliminary reference in C-301/22 Sweetman]

47. (a) Are the measures in the NAP insufficiently rigorous in that regard because they fail to

ensure that the agricultural activities the subject of provisions in the NAP will not cause the

deterioration of the status of any water body or will not jeopardise the attainment of good surface

water status or good ecological potential and good surface water chemical status and the attainment

of good groundwater status?

(b) Is it the case that any consideration of art. 4 in the context of an NAP (if such be required) should

only relate to the allegedly protective measures in the NAP rather than to the underlying agricultural

activities thereby regulated.

[combined with Issue 37]

48. If art. 4(1) of the WFD has the effect contended for by the applicant and if the NAP is

insufficiently rigorous in that regard as contended for by the applicant, is the validity or otherwise

of the GAP Regulations SI 113 of 2022 essentially consequential on the validity or otherwise of the

NAP and/or Commission decision (and hence is this a remedy issue).

[validity of GAP regulations issue moved to the remedy section as issue 69(b)]

CG3 – SEA

49. Is the applicant precluded from obtaining relief in relation to SEA by reason of the lack of

any pleaded relief in that regard (the claim being set out in the grounds only)? PLEADING-TYPE

ISSUE

50. Is the NAP a plan or programme for the purposes of the SEA directive? APPEARS AGREED

51. Does the NAP therefore require SEA? APPEARS AGREED

52. (a) Does Article 5(1) of the SEA directive have the effect that a plan or programme

must be assessed by reference to the question of whether (by reference to the standards

in art. 4 WFD) the particular protections afforded by the plan either alone or together with

other binding measures adopted by the member state are insufficiently rigorous to ensure

that the activities the subject of provisions contained in the plan will not cause a

deterioration of the status of a body of surface water or jeopardise the attainment of good

surface water status or of good ecological potential and good surface water chemical

status by the date laid down by the WFD, either generally or in the specific case of the

proposed adoption of a basic measure as defined by art. 11(3) of the WFD and in particular

a nitrates action programme under article 5 of the nitrates directive (as referred to in

Annex VI part A para (ix) of the WFD as referenced in art. 11(3)(a) of the directive).

(b) Does Article 5(1) of the SEA directive have the effect that each proposed measure to

be adopted for the purposes of art. 11 of the WFD must be individually assessed to

establish its effects (by reference to the standards in art. 4 WFD) as it impacts on each

and every potential water body affected by the measure and, insofar as that is required,

by the underlying activities regulated by the measure.

(c) Has the applicant established that the particular protections afforded by the NAP

either alone or together with other binding measures adopted by the member state were

not assessed in the SEA report by reference to the question as to whether they are

insufficiently rigorous to ensure that the activities the subject of provisions contained in

the plan will not cause a deterioration of the status of a body of surface water or

jeopardise the attainment of good surface water status or of good ecological potential and

good surface water chemical status by the date laid down by the WFD (on the assumption

that such rigour is required).

(d) Has the applicant established that the NAP as a proposed measure to be adopted for

the purposes of art. 11 of the WFD was not individually assessed in the SEA report to

establish its effects (by reference to the standards in art. 4 WFD) as it impacts on each

and every potential water body affected by the measure and, insofar as that is required,

by the underlying activities regulated by the measure.

(e) Does the SEA directive require that such SEA must assess the environmental effects of the NAP

in terms of its adequacy or efficiency in addressing the environmental effects of the activities the

subject of provisions contained in the NAP (as opposed to the mitigation measures within the NAP)?

[SEA issues moved here from CG2 for simplicity, previous 52 now incorporated in Issue 37(b)]

53. Does the SEA directive require that such SEA must assess the environmental effects of the

NAP in terms of the adequacy or efficiency of mitigation measures within the NAP?

[now incorporated in Issue 37(b)]

54. Is the applicant precluded from advancing the overall complaint under the SEA Directive

because it is inadequately pleaded? PLEADING-TYPE ISSUE

55. Is the applicant precluded from challenging the particular complaint regarding the

assessment of alternatives by the SEA because that claim is inadequately pleaded? PLEADING-TYPE

ISSUE

56. Is the applicant precluded from challenging the particular complaint regarding the

monitoring provision of the SEA because that claim is inadequately pleaded? PLEADING-TYPE ISSUE

57. Do art. 5(1) of and Annex I para. (i) to the SEA directive have the effect that the

SEA report itself must include details of an adequate monitoring process in compliance

with art. 10 of the directive.

[reworded]

58. Is the applicant precluded from advancing the SEA complaint because on a proper analysis

what the Applicant is in effect inviting the Court to engage in a merits-based review of the decision

challenged and a review of matters of policy and policy implementation and because the Court cannot

review the impugned decision in the manner sought by the Applicant and because to do so would

offend again the core principle of the separation of powers and settled case-law? PLEADING-TYPE

ISSUE

59. Has the applicant established that the Environmental Report does not contain an

assessment of the preferred option on the “likely significant effects on the environment”

including “secondary, cumulative, synergistic, short, medium and long-term, permanent

and temporary, positive and negative effects” as required by Annex I.

[reworded, this is a factual question – State response is that the Environmental Report does contain

a proper assessment of the preferred option on the “likely significant effects on the environment”,

including as claimed above, in particular (but not limited) to the assessment at Chapter 8 of the

Environmental Report]

60. Has the applicant established that the environmental report does not include an

assessment of the efficacy of the proposed mitigation measures (assuming such is

necessary).

[reworded– State response is that there is such an assessment in the SEA Environmental Report

and the SEA Statement even though such was not required in the State’s submission]

61. (a) Does the SEA directive have the effect that “material assets” means "critical

infrastructure essential for the functioning of society" (see EPA SEA Pack of resources to

guide the implementation of the SEA Directive)

(b) Assuming so, has the applicant established that the SEA for the NAP inadequate in

that regard.

[reworded]

62. Does the SEA directive have the effect that agricultural assets or the food supply

chain do not amount to a critical infrastructure essential for the functioning of society.

[reworded]

63. (a) Does the SEA directive have the effect that, by analogy with the judgment of

14 March 2013, Leth, C-420/11, ECLI:EU:C:2013:166 (an EIA case), the value of assets

does not form part of the assessment, and that this applies not just to individual assets

but to the broad societal impacts of agricultural activities, the impact of the NAP on the

agricultural industry, and in particular on the output and income of farmers, the

sustainability of the agricultural industry in Ireland, the food supply chain and the

employment of a significant portion of the population.

(b) Assuming so, has the applicant established that the SEA for the NAP inadequate in

that regard because it considered whether the value of agricultural assets would be

affected by the programme.

[reworded]

64. (a) Does the SEA directive have the effect that material assets are not to be treated

as a separate factor but as an aspect of the environment as required by Annex I.

(b) Assuming so, has the applicant established that the SEA for the NAP inadequate in

that regard.

[Note: this is a question of how the SEA is to be interpreted – State response is that the

Environmental Report evidences that, at the least, “material assets” were treated as an aspect of

the environmental assessment as required by Annex I of the SEA Directive]

65. (a) Does the SEA directive have the effect that material assets cannot be treated

as an outweighing factor and/or that the most environmentally friendly option must be

selected.

(b) Has the applicant established that in the SEA for the NAP, material assets were treated

as an outweighing factor and/or that the most environmentally friendly option was not

selected.

[reworded]

[Note: State response is that the Applicant confuses the obligation to assess environmental effects

of reasonable alternatives with the obligation when selecting the preferred alternative - There is no

obligation under the SEA Directive to select the alternative that is the most environmentally friendly.

The Respondents were entitled to have regard to policy considerations when selecting the preferred

alternative.]

66. Has the applicant established that the SEA for the NAP was inadequate because

assessment criteria used to select the preferred alternative are irrational and/or were

applied irrationally in the decision to select the preferred alternative, especially where the

assessment provides that each objective has been given equal weight.

[Note: this may be a matter of interpretation of the SEA) State response is that the reason for the

selection of the preferred option is clear from inter alia the Environmental Report. The Respondents

had an evidential basis for reaching the decision that they did. This is a merits-based challenge and

the Respondents rely on the decision of the Court of Appeal in Friends of the Irish Environment CLG

v. Government of Ireland [2021] IECA 317, [2021] 11 JIC 2603 (Costello J.).]

67. (a) Does art. 5(1) of the SEA directive have the effect that alternatives must be

identified, described and evaluated in a comparable way (see Commission Guidance

(2003) (at §5.12) to the effect that the Directive makes no distinction between the

assessment requirements for the drafted plan or programme and for the alternatives).

(b) Has the applicant established that the SEA Statement failed to consider, adequately

or at all, the alternatives to the strategic alternative option selected and to subject each

of the alternatives to a commensurate level of analysis and/or failed to include detailed

description or evaluation of the likely significant environmental effects of the alternative

strategies in the Environmental Report and/or failed to ensure that the alternatives were

identified, described and evaluated in a comparable way.

[Note: reformulated. This potentially overlaps with the issue before the CJEU in Friends of the Irish

Environment v. Government of Ireland) (this may be a question of interpretation of the SEA. State

response is that the alternatives were properly assessed and, so far as required under the SEA

Directive, subject to a commensurate level of analysis in the iterative procedure under that Directive,

including by way of detailed description and evaluation in inter alia Chapter 7 of the Environmental

Report. The Commission Guidance is not binding. The Respondents rely on the decision of the Court

of Appeal in Friends of the Irish Environment CLG v. Government of Ireland [2021] IECA 317, [2021]

11 JIC 2603 (Costello J.) and submit that the Court is not required to await the decision of the CJEU

in Friends of the Irish Environment v. Government of Ireland in order to determine this issue.]

68. Has the applicant established that, assuming art. 5(1) of and Annex I para. (i) to

the SEA directive have the effect that the SEA report itself must include details of an

adequate monitoring process in compliance with art. 10 of the directive, the SEA for the

NAP fails to do this because it includes no adequate provision for monitoring of the

significant environmental effects of its implementation and therefore contains no or no

adequate provision for the identification at an early stage of unforeseen adverse effects

or when appropriate remedial action might be required. This issue is addressed at Chapter

7 of the SEA Statement; no details of how this monitoring will occur, who will do it, when

it will be done, how the monitoring will be used, and how any identified unforeseen

adverse environmental effects will be addressed; and/or most of what the Chapter

identifies as indicators for monitoring significant environmental effects do not in fact

measure environmental effects.

[Note: reformulated - this potentially overlaps with the issue to be considered by the Supreme Court

following the judgment of the CJEU in Friends of the Irish Environment v Government of Ireland).

This may be a matter of interpretation of the SEA. State response includes - the monitoring

measures in the NAP, which reflect the requirements of the Nitrates Directive and the Commission

Decision, are clearly adequate (see, for example but not limited to the summary at Section 9.2 and

table at 9.3 of the Environmental Report). The Respondents rely on the decision of the Court of

Appeal in Friends of the Irish Environment CLG v Government of Ireland [2021] IECA 317, [2021]

11 JIC 2603 (Costello J.). On the other hand the monitoring issue is one that the Supreme Court

has reserved its position on.]

REMEDY

69. (a) If any error was committed in the decision-making process, should the court

decline to grant relief at all or alternatively should it decline to make any order that affects

the validity of the NAP/ GAP, for example by instead directing further reasons or

assessments as opposed to impugning such measures, in the exercise of the Court's

discretion on judicial review, taking into account the general principle (as a matter of EU

law) of proportionality, and prejudice to third parties including by reference to any

applicable rights and interests of others, including under the Charter of Fundamental

Rights, in particular the right to work under art. 15, to conduct a business under art. 16,

and to property under art. 17, and the corresponding constitutional right under Art. 40.3,

as well as Union policies generally including the CAP under art. 39 TFEU and Regulation

(EU) 2021/2115 of the European Parliament and of the Council of 2 December 2021?

(b) If art. 4(1) of the WFD has the effect contended for by the applicant and if the NAP

is insufficiently rigorous in that regard as contended for by the applicant, is the validity

or otherwise of the GAP Regulations SI 113 of 2022 essentially consequential on the

validity or otherwise of the NAP and/or Commission decision (and hence is this a remedy

issue).

[Note this issue in some form is not going to arise in the short term]

70. If the Court determines that an order of certiorari or a declaration of invalidity is required,

should a stayed or suspensive order be made pending remedial measures to address the Court’s

findings having regard to the risks of reduced environmental protection in the short term, or a breach

of EU law, or adverse consequences to other stakeholders? APPEARS AGREED

CG4 – REFERENCE REGARDING VALIDITY OF COMMISSION DECISION

71. Is the Commission derogation decision unchallengeable in these proceedings and therefore

does it follow that the applicant is precluded from challenging the findings therein and the court

must proceed on the basis that such findings are valid and correct?

72. Alternatively, if the Commission findings cannot be directly differed from by the court, can

the court nonetheless refer a question to the CJEU as to the correctness in fact or in law of such

findings?

73. Even if the Commission derogation decision is binding for the purposes of the proceedings,

is the statement in recitals that it is without prejudice to the habitats directive sufficient to enable

the applicant to advance arguments related to that issue?

74. Is the applicant precluded from asking the court to refer to the CJEU a question as to the

validity of the Commission Decision because the appropriate legal route is an Article 263 TFEU action

for annulment before the General Court of the EU under art. 256(1) TFEU?

75. (a) If the answers to the previous issues clearly have the consequence (or the

national court in applying the answers to such questions determines) that the NAP is

legally defective as a result of a breach of the habitats, WFD and/or SEA directives, is

Commission decision 2022/696 also invalid (as a question for the CJEU on reference,

rather than the domestic court, if it arises).

(b) Should the court seek any information from EU institutions under the Eurobolt

jurisdiction prior to deciding on whether this issue should be referred?

[reworded]

76. Even if such a reference is available and is in principle not precluded, is such a reference

appropriate on a discretionary basis because of the absence of any direct action for annulment?

77. Even if such a reference is available and is in principle not precluded, is the applicant correct

that that the postulated invalidity of the NAP would have an impact on the validity of the Commission

decision.

[incorporated into issue 75]

78. Even if so, does the postulated proposal to suspend any order of certiorari impact on the

answer to the previous question?

[if relevant this can be addressed in issue 75 but in practice the issue of a remedy might not arise

prior to the issue at issue 75, rendering this point effectively moot]

SCHEDULE III – TABLE OF CORRESPONDENCE BETWEEN GROUNDS AND ISSUES

Note – where the “ground” is merely a statement of context rather than a proper ground as such,

this is noted.

Sub-ground number Issue number to which the Subject

sub-ground initially relates

1. - Legal context

2. - Legal context

3. - Legal context

4. - Legal context

5. - Legal context

6. - Legal context

7. - Legal context

8. - Legal context

9. - Legal context

10. 26 & 33 Inadequate AA of NAP

11. 26 & 33 Inadequate AA of NAP

12. 26 & 33 Inadequate AA of NAP

13. 26 & 33 Inadequate AA of NAP

14. 26 & 33 Inadequate AA of NAP

15. 26 & 33 Inadequate AA of NAP

16. 26 & 33 Inadequate AA of NAP

17. 26 & 33 Inadequate AA of NAP

18. 26 & 33 Inadequate AA of NAP

19. 26 & 33 Inadequate AA of NAP

20. 26 & 33 Inadequate AA of NAP

21. 26 & 33 Inadequate AA of NAP

22. 26 & 33 Inadequate AA of NAP

23. 26 & 33 Inadequate AA of NAP

24. 26 & 33 Inadequate AA of NAP

25. 26 & 33 Inadequate AA of NAP

26. 26 & 33 Inadequate AA of NAP

27. 3(d) & (e) Timing of AA

28. - Legal context

29. - Legal context

30. - Legal context

31. - Legal context

32. - Legal context

33. - Legal context

34. - Legal context

35. 37 Lack of assessment art. 4 WFD

36. 37 Art. 4 WFD within SEA

37. - Legal context

38. - Legal context

39. 37 Lack of assessment art. 4 WFD

40. 37 Art. 4 WFD within SEA

41. 37 Art. 4 WFD within SEA

42. 37 Art. 4 WFD

43. 46 Unassessed water bodies, WFD

44. - Legal context

45. - Legal context

46. - Legal context

47. - Legal context

48. - Legal context

49. - Legal context

50. 59 Inadequate SEA

51. - Legal context

52. 60 Efficacy of mitigation, SEA

53. 60 Efficacy of mitigation, SEA

54. 64 Material Assets, SEA

55. 64 Material Assets, SEA

56. 66 Irrational alternatives, SEA

57. 67 Comparable analysis, SEA

58. - Legal context

59. 68 Monitoring, SEA

60. 68 Monitoring, SEA

61. - Legal context

62. 68 Monitoring, SEA

63. 68 Monitoring, SEA

64. - Legal context

65. 75 Commission decision validity

66. - Legal context

67. - Legal context

68. 75 Commission decision validity

69. 75 Commission decision validity