High Court refers validity of Irish Nitrates Programme derogation to CJEU under Article 267 TFEU.

[2024] IEHC 472

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. 4)

JUDGMENT of Humphreys J. delivered on Tuesday the 30th day of July 2024

Subject-matter of the dispute

1. This request for a preliminary ruling concerns the interpretation of Directives 91/676, 92/43,

2000/60 and 2001/42 and the validity of Commission Implementing Decision 2022/696.

2. The request is being made in proceedings concerning a challenge by the applicant to the

validity of Ireland’s Fifth Nitrates Programme under Directive 91/676 and implementing measures,

together with a challenge to the validity of Commission Implementing Decision 2022/696 which

permits a derogation for Ireland which allows that, for each relevant farm or livestock unit, the

amount of livestock manure applied to the land each year, including by the animals themselves,

may exceed an amount of manure containing 170 kg N/ ha.

Legal context

European Union law

TEU

3. Article 3(3) TEU provides:

“3. The Union shall establish an internal market. It shall work for the sustainable

development of Europe based on balanced economic growth and price stability, a highly

competitive social market economy, aiming at full employment and social progress, and a

high level of protection and improvement of the quality of the environment. It shall promote

scientific and technological advance.

It shall combat social exclusion and discrimination, and shall promote social justice and

protection, equality between women and men, solidarity between generations and protection

of the rights of the child.

It shall promote economic, social and territorial cohesion, and solidarity among Member

States.

It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural

heritage is safeguarded and enhanced.”

4. Article 4 TEU provides:

“Article 4

1. In accordance with Article 5, competences not conferred upon the Union in the Treaties

remain with the Member States.

2. The Union shall respect the equality of Member States before the Treaties as well as their

national identities, inherent in their fundamental structures, political and constitutional,

inclusive of regional and local self-government. It shall respect their essential State

functions, including ensuring the territorial integrity of the State, maintaining law and order

and safeguarding national security. In particular, national security remains the sole

responsibility of each Member State.

3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall,

in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure

fulfilment of the obligations arising out of the Treaties or resulting from the acts of the

institutions of the Union. The Member States shall facilitate the achievement of the Union's

tasks and refrain from any measure which could jeopardise the attainment of the Union's

objectives.”

TFEU

5. Article 11 TFEU provides:

“Environmental protection requirements must be integrated into the definition and

implementation of the Union's policies and activities, in particular with a view to promoting

sustainable development.”

6. Article 191(2) TFEU provides:

“2. Union policy on the environment shall aim at a high level of protection taking into account

the diversity of situations in the various regions of the Union. It shall be based on the

precautionary principle and on the principles that preventive action should be taken, that

environmental damage should as a priority be rectified at source and that the polluter should

pay.”

EU Charter of Fundamental Rights

7. Article 37 provides:

“A high level of environmental protection and the improvement of the quality of the

environment must be integrated into the policies of the Union and ensured in accordance

with the principle of sustainable development.”

Directive 91/676 and Commission Implementing Decision 2022/696

8. Article 3 of Directive 91/676 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.”

9. Article 4 provides:

“Article 4

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.”

10. Article 5 provides:

“Article 5

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.”

11. Annex III 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.”

12. On 22nd October 2007, the Commission adopted Decision 2007/697/EC granting a

derogation requested by Ireland pursuant to Directive 91/676/EEC for the purpose of allowing the

application of livestock manure up to a limit of 250 kg nitrogen/ha per year, under certain conditions,

on farms with at least 80 % grassland, in the context of the Irish Nitrates Action Programme

(“NAP”), as implemented by Ireland by means of the European Communities (Good Agricultural

Practices for Protection of Waters) Regulations 2006.

13. On 24th February 2011, the Commission adopted Decision 2011/127/EU amending Decision

2007/697/EC and extending the derogation until 31st December 2013, in the context of the Irish

NAP as implemented by Ireland by means of the European Communities (Good Agricultural Practices

for Protection of Waters) Regulations 2010.

14. On 27th February 2014, the Commission adopted Implementing Decision 2014/112/EU

granting a derogation requested by Ireland pursuant to Directive 91/676/EEC for the purpose of

allowing the application of livestock manure up to a limit of 250 kg nitrogen/ha per year, under

certain conditions, on farms with at least 80 % grassland, in the context of the Irish NAP as

implemented by Ireland by means of the European Communities (Good Agricultural Practices for

Protection of Waters) Regulations 2014.

15. On 8th February 2018, the Commission adopted Implementing Decision (EU) 2018/209

granting a derogation requested by Ireland pursuant to Directive 91/676/EEC for the purpose of

allowing the application of livestock manure up to a limit of 250 kg nitrogen/ha per year, under

certain conditions, on farms with at least 80 % grassland, in the context of the Irish NAP as

implemented by Ireland by means of the European Union (Good Agricultural Practices for Protection

of Waters) Regulations 2017. Implementing Decision (EU) 2018/209 expired on 31st December

2021.

16. Recital 16 to Commission Implementing Decision (EU) 2022/696 provides:

“(16) After an examination of the request from Ireland in accordance with paragraph 2,

third subparagraph, of Annex III to Directive 91/676/EEC, and in the light of the Irish Action

Programme coupled with the experience gained from the derogation provided for in Decision

2007/697/EC and Implementing Decisions 2014/112/EU and (EU) 2018/209, the

Commission considers that the amount of manure proposed by Ireland, corresponding to

250 kg nitrogen/ha per year, will not prejudice the achievement of the objectives set out in

Directive 91/676/EEC, subject to certain strict conditions that should apply to farmers

covered by authorisation.”

17. Recital 23 provides:

“(23) 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 (17), in particular on the interpretation of Article 6(3) of that

Directive.”

18. Article 1 of the decision provides:

“Derogation

The derogation requested by Ireland, by letter of 14 October 2021, for the purpose of

allowing the application to the land of a higher amount of nitrogen from livestock manure

than that provided for in paragraph 2, second subparagraph, first sentence, of Annex III to

Directive 91/676/EEC, namely 170 kg nitrogen, is granted, subject to the conditions laid

down in Articles 4 to 12 of this Decision.”

19. Article 4 provides:

“Annual application and commitment

1. Grassland farmers who want to benefit from a derogation shall, each year, submit an

application for an authorisation to apply livestock manure containing up to 250 kg

nitrogen/ha per year to the competent authorities. The application shall contain a declaration

stating that the grassland farmer will submit to the controls provided for in Article 11.

2. In the application referred to in paragraph 1, the applicant shall undertake, in writing,

to fulfil the conditions laid down in Articles 6 to 9.”

20. Article 5 provides:

“The granting of authorisations

Authorisations to apply an amount of livestock manure on grassland farms containing up to

250 kg nitrogen/ha per year shall be granted subject to the conditions laid down in Articles

6 to 9.”

Directive 92/43

21. Article 6 of Directive 92/43 provides:

“1. For special areas of conservation, Member States shall establish the necessary

conservation measures involving, if need be, appropriate management plans specifically

designed for the sites or integrated into other development plans, and appropriate statutory,

administrative or contractual measures which correspond to the ecological requirements of

the natural habitat types in Annex I and the species in Annex II present on the sites.

2. Member States shall take appropriate steps to avoid, in the special areas of conservation,

the deterioration of natural habitats and the habitats of species as well as disturbance of the

species for which the areas have been designated, in so far as such disturbance could be

significant in relation to the objectives of this Directive.

3. 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.

4. If, in spite of a negative assessment of the implications for the site and in the absence

of alternative solutions, a plan or project must nevertheless be carried out for imperative

reasons of overriding public interest, including those of a social or economic nature, the

Member State shall take all compensatory measures necessary to ensure that the overall

coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory

measures adopted.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the

only considerations which may be raised are those relating to human health or public safety,

to beneficial consequences of primary importance for the environment or, further to an

opinion from the Commission, to other imperative reasons of overriding public interest.”

Directive 2000/60

22. Article 4 of Directive 2000/60 provides:

“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.”

23. Article 11 provides:

“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.”

24. Article 13 provides:

“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.”

25. Annex VI provides (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”

Directive 2001/42

26. Article 2 of Directive 2001/42 provides:

“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.”

27. Article 3 provides:

“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).”

28. Article 5 provides:

“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.”

29. Article 10 provides:

“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.”

30. Article 11 provides:

“Article 11

Relationship with other Community legislation

1. An environmental assessment carried out under this Directive shall be without prejudice

to any requirements under Directive 85/337/EEC and to any other Community law

requirements.

2. For plans and programmes for which the obligation to carry out assessments of the effects

on the environment arises simultaneously from this Directive and other Community

legislation, Member States may provide for coordinated or joint procedures fulfilling the

requirements of the relevant Community legislation in order, inter alia, to avoid duplication

of assessment.

3. For plans and programmes co-financed by the European Community, the environmental

assessment in accordance with this Directive shall be carried out in conformity with the

specific provisions in relevant Community legislation.”

31. Annex I provides:

“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.”

Domestic law

Planning and Development Act 2000

32. Section 2 of the Planning and Development Act 2000

(https://revisedacts.lawreform.ie/eli/2000/act/30/revised/en/html) provides inter alia:

“‘agriculture’ includes 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, and ‘agricultural’ shall be construed accordingly;”

33. Section 4(1)(a) provides:

“4.—(1) The following shall be exempted developments for the purposes of this Act—

(a) development consisting of the use of any land for the purpose of agriculture and

development consisting of the use for that purpose of any building occupied together with

land so used;”

34. 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 appropriate assessment of the development is required.”

European Communities (Birds and Natural Habitats) Regulations 2011

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

(https://www.npws.ie/sites/default/files/files/European%20Communities%20(Birds%20and%20Na

tural%20Habitats)%20Regulations%202011%20to%202021%20-

%20Unofficial%20Consolidation%20(Updated%20to%2028%20July%202022)(1).pdf) 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.”

European Union (Good Agricultural Practice for Protection of Waters) Regulations 2022

36. Legal provision to make an 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), Article 28, which provided for the

publication of a NAP by 31st December 2021 and every four years thereafter.

37. To implement the NAP, provision for good agricultural practice measures is made in the

European Union (Good Agricultural Practice for Protection of Waters) Regulations 2022 (S.I. No. 113

of 2022) (https://www.irishstatutebook.ie/eli/2022/si/113/made/en/print) (“the GAP

regulations”). The regulations revoke the 2017 regulations. The current provision to make a NAP

is in Article 28 of the 2022 GAP regulations which envisages a NAP by 31st December 2025 and

every 4 years thereafter.

38. 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). 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 appropriate assessment (“AA”) under

Directive 92/43. The legal obligation is in the Planning and Development Act 2000 and more

specifically in Article 28 of the 2011 regulations.

39. Article 2 of S.I. No. 393 of 2022 provides:

“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).”

40. Articles 34 to 40 of the GAP regulations as amended by S.I. No. 393 of 2022 provide:

“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.’”

41. Further amendments (which did not affect the text cited above) were made by S.I. No. 716

of 2022 (https://www.irishstatutebook.ie/eli/2022/si/716/made/en/print) and S.I. No. 62 of 2023

(https://www.irishstatutebook.ie/eli/2023/si/62/made/en/print).

Domestic caselaw and related matters

42. Domestic caselaw provides abundant examples of challenges being permitted to time-limited

decisions which are “capable of repetition but evading review” applies (Southern Pacific Terminal Co.

v. Interstate Commerce Co. (1911) 219 U.S. 498 at p. 501 per McKenna J. cited in Condon v. Minister

for Labour [1981] I.R. 62, [1979] 12 JIC 1102 at p. 72 per Kenny J., Grant v. Governor of Cloverhill

Prison [2015] IEHC 768, [2015] 11 JIC 2709; JA Cameroon v. Governor of Cloverhill Prison [2017]

IEHC 611, [2017] 10 JIC 2012).

43. This is consistent with CJEU jurisprudence on mootness: the principles in the judgment of

11 January 2024, Friends of the Irish Environment CLG v Minister for Agriculture, Food and the

Marine, C-330/22, ECLI:EU:C:2024:19.

44. Relatedly, in judicial review, the court has jurisdiction to grant reliefs not pleaded, within the

scope of the grounds as acknowledged in Concerned Residents of Treascon v. An Bord Pleanála

[2024] IESC 28 per Murray J., applying Order 84, Rules 18 and 19 of the Rules of the Superior

Courts:

“18. (1) An application for an order of certiorari, mandamus, prohibition or quo warranto

shall be made by way of an application for judicial review in accordance with the provisions

of this Order.

(2) An application for a declaration or an injunction may be made by way of an application

for judicial review, and on such an application the Court may grant the declaration or

injunction claimed if it considers that, having regard to:

(a) the nature of the matters in respect of which relief may be granted by way of an order

of mandamus, prohibition, certiorari, or quo warranto,

(b) the nature of the persons and bodies against whom relief may be granted by way of such

order, and

(c) all the circumstances of the case, it would be just and convenient for the declaration or

injunction to be granted on an application for judicial review.

19. On an application for judicial review any relief mentioned in rule 18(1) or (2) may be

claimed as an alternative or in addition to any other relief so mentioned if it arises out of or

relates to or is connected with the same matter and in any event the Court may grant any

relief mentioned in rules 18(1) or (2) which it considers appropriate notwithstanding that it

has not been specifically claimed.”

Facts

45. The current River Basin Management Plan (“RBMP”) was published in 2018

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

subject to AA and SEA. 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 [i.e., Directive 2000/60]. 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.”

46. The Environmental Protection Agency (“EPA”) is a statutory body charged inter alia with

environmental monitoring. Its report, Water Quality Monitoring Report on Nitrogen and Phosphorus

Concentrations in Irish Waters (2020), stated:

“The 2013-2018 assessment of water quality in Ireland (EPA,2019) found that only just over

half of our rivers and lakes were in satisfactory ecological health and overall water quality

was in decline. The picture for our estuaries was even more stark with only 38% in

satisfactory condition. The assessment indicated the main problem damaging our waters

was the presence of too much phosphorus and nitrogen. This report finds that nitrogen

concentrations remain too high in rivers, groundwater and estuaries in the south, south east

and east of Ireland; and the concentrations have been increasing since 2013…Agriculture

and wastewater discharges are the main sources of phosphorus in surface water .… The EPA

assessment shows that comparatively the nitrogen load reduction required in the Suir,

Slaney and Barrow catchments in the south east, and the Blackwater catchment in the south

is substantially higher than the other nine catchments with elevated nitrogen concentrations.

The analysis includes nitrogen load reduction assessments and the generation of load

reduction maps at the sub-catchment level and indicates that approximately 85% of the

nitrogen in these catchments is from agricultural sources. Assessments by the EPA have

shown that there is a clear nitrogen response in water to changes in herd numbers and gross

nitrogen balance.”

47. This analysis is repeated in the EPA’s Water Quality 2020 Indicators Report. Its Conclusion

(p. 21) notes:

“The indicators show us that nutrient levels are too high in many of our waters, and in some

areas trends are still going in the wrong direction. High nitrates are predominantly found in

our rivers, groundwaters and estuaries in the south and southeast of the country, areas with

intensive agriculture over freely draining soils…Agriculture and waste water are the

predominant sources of nutrients in our waters. Recent analysis by the EPA shows that up

to 85% of nitrogen in rivers in predominantly rural catchments in the south and southeast

comes from agriculture. It is essential for the protection of our rivers, groundwaters and

estuaries that urgent and focussed action is taken to reduce the nitrate losses to our waters

or we are in danger of losing our excellent coastal water quality.”

48. The first consultation on the current NAP occurred when the first respondent initiated a

Fourth Review of Ireland’s NAP – Stage 1 on 25th November 2020. The applicant made a submission

on 14th January 2021.

49. The first respondent initiated a second public consultation on Ireland’s NAP on 9th August

2021 with a deadline of 20th September 2021 for public submissions.

50. The applicant made a submission on 20th September 2021.

51. The Natura Impact Statement (“NIS”) under Directive 92/43 for the 3rd cycle RBMP 2022

to 2027 (https://assets.gov.ie/294558/b89b7956-1f5f-4fec-90fa-9b9720bbf1b7.pdf), drafted by

consultants (RPS) in September 2021 and ultimately adopted by the first respondent in the context

of that plan, states at p. 57:

“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.”

52. It can be noted that while this NIS says that it is “vital” that derogations be subject to AA,

in fact such derogations are not being subjected to AA.

53. On 14th October 2021, Ireland submitted to the Commission a request for an extension of

the derogation under paragraph (2), third subparagraph, of Annex III to Directive 91/676/EEC.

54. A third consultation period on the draft NAP focused on the draft NIS and draft Strategic

Environmental Assessment (“SEA”) report for the Programme then took place. The first respondent

published a NIS and SEA report for the Draft Fifth NAP on 14th December 2021 and invited further

public submissions by 26th January 2022. The applicant made a submission on 26th January 2022.

55. Insofar as the applicants complained that the SEA report took an overly broad view of the

concept of material assets, the referring court would not accept that but in any event the material

assets concerned were in the nature of strategic infrastructure and so constitute material assets

even on a narrow definition.

56. The alternative options were not considered in comparable detail in the SEA process.

57. In the assessment under Directive 2001/42 there was no meaningful assessment of the NAP

by reference to Article 4 of Directive 2000/60 and certainly no express assessment in that regard.

Nor was there a full assessment of the impacts of the underlying agricultural activities.

58. Full details of monitoring were not included in the environmental report in the SEA process.

The environmental report did not include a full description of the measures envisaged concerning

monitoring in accordance with Article 10 in sufficient detail to demonstrate that Article 10 would be

complied with, including details of how this monitoring would occur; when it would be done; or how

the monitoring would be used and how any identified unforeseen adverse environmental effects

would be addressed

59. The economic implications for material assets were considered in the SEA process, and were

treated as outweighing of what might otherwise have been more environmentally friendly options.

Thus the assessment under Directive 2001/42 here took into account and included an assessment

of broader economic matters such as the value of material assets, the broad societal impacts of

agricultural activities, the impact of the plan or project on the agricultural industry and on the output

and income of farmers, the sustainability of the agricultural industry Ireland, the food supply chain,

and the employment of a significant portion of the population.

60. The EPA is the competent authority for preparing and implementing the National Water

Quality Monitoring Programme. The National Water Quality Monitoring Programme has been in

place since 2006 and is reviewed and updated periodically. The current programme runs from 2022

to 2027. The EPA reports on water quality with respect to Directive 91/676 using data generated

under the National Water Quality Monitoring Programme. There are two categories of waters: (i)

small waterbodies which are below the threshold of a surface area of 0.5 km2 or more do not need

status assigned but are protected by basic measures, and (ii) identified water bodies with a surface

area of 0.5 km2 or more, of which there are approximately 5,000. With respect to the identified

supra-threshold water bodies, approximately 3,000 are monitored individually, and all 5,000 have

been assigned ecological status (either based on the monitoring or based on modelling). 2,000 water

bodies are not monitored but are assigned status through modelling. Type-specific reference

conditions are set once and establish the benchmark, while status assessments are carried out

subsequently on a regular basis considering the benchmark. The benchmarks are intercalibrated

across Member States. Benchmarks were in place to allow the status to be determined for all water

bodies when the NAP was adopted and this has not changed. There is a type-specific reference

condition assigned to each water body above the threshold for the purposes of Diretive 2000/60.

61. The EPA engaged in a global categorisation of hitherto unclassified water bodies in the State

with a surface area of 0.5 km2 or more. The status designations for the relevant water bodies took

effect on 22nd February 2022 (not 22nd April 2022 as stated in previous material). The relevant

data was available from that date upon request from the EPA. The data in respect of the status

designations for unmonitored lakes for the 2013–2018 period were uploaded to the EPA’s geoportal

on 25th February 2022

62. In February 2022, an AA screening report, Ireland’s Fifth NAP Screening for AA, was

prepared. This stated (p. 12):

“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.”

63. An NIS was prepared by consultants (RPS) on behalf of the first named respondent 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.”

64. A Determination on AA 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).

65. The applicant hasn’t shown that European-site-specific analysis (or of water-body-specific

analysis) in the plan-level in the NAP AA was practicable.

66. The AA of the NAP did not fully address the impacts of the underlying agricultural activities,

an omission which is reinforced by the lack of farm-level AA in practice at the derogation stage.

67. In the assessment under Directive 92/43 there was no meaningful assessment of the NAP

by reference to Article 4 of Directive 2000/60 and certainly no express assessment in that regard.

68. In particular, prior to adopting the NAP, the competent authority did not consider the

question of whether, and thus did not lawfully satisfy itself as to whether, the particular protections

afforded by the plan either alone or together with other binding measures adopted by the Member

State were sufficiently rigorous to ensure that the Nitrate-emitting agricultural activities which will

be carried out on foot of derogations granted consequent on the plan would 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

Directive 2000/60.

69. More specifically, the competent authority did not satisfy itself that the adoption of the plan

or programme is not liable to cause a deterioration of the status of any surface water body which

has been or ought to have been identified by that Member State as constituting a surface water

body ‘type’, nor is it liable to compromise the attainment of good surface water status or of good

ecological potential and good chemical status of such a surface water body and, secondly, that the

adoption of the plan or programme is compatible with the measures implemented pursuant to the

programme under Directive 2000/60 established, in accordance with Article 11 of that Directive, for

the river basin district concerned.

70. On 9th March 2022, the first named respondent approved the Fifth NAP 2022-2025:

(https://www.gov.ie/pdf/?file=https://assets.gov.ie/218449/f1a6725a-6269-442b-bff1-

2730fe2dc06c.pdf#page=null). On the same date, the Minister signed the GAP Regulations.

71. In conformity with Article 5(2) of Directive 91/676/EEC, Ireland applies an action programme

throughout its whole territory.

72. The assessments for the NAP did not include a full assessment of the environmental effects

of the Nitrate-emitting agricultural activities that were to be carried out on foot of derogations. The

focus of the assessments was on the protective measures alone. It is clear from the material (in

particular EPA reports and the NIS for the RBMP 2022 to 2027) that an assessment of the

environmental effects of the underlying agricultural activities would have been likely to have

demonstrated significant adverse environmental effects including on European sites for the purposes

of Directive 92/43.

73. The data in respect of the status designations for unmonitored river bodies were uploaded

to the EPA’s geoportal on 15th March 2022. The data is in the form of an excel spreadsheet which

includes the waterbody code and water body name, the assigned ecological status and method of

assessment (for both monitored and unmonitored waterbodies). On 5th April 2022, the status

designations for unmonitored waterbodies were uploaded to https://www.catchments.ie and EPA

Maps.

74. 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.

75. 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). In practice AA has not been carried out for any of these

decisions and there is no practical system in place to do this. The domestic legislation to give effect

to Directive 92/43 (such as Article 28 of the 2011 regulations) is not applied in practice in this

context.

Procedural history

76. The proceedings were initiated in the judicial review list on 31st May 2022. Leave was

granted on 5th December 2022. Trustees of the Irish Farmers’ Association (“IFA”) and Irish

Creamery Milk Suppliers Association (“ICMSA”) were joined as notice parties, and opposition papers

from the respondents and notice parties were delivered. Generally, the IFA and ICMSA supported

the State opposition to the proceedings.

77. The court then disposed of pleading objections and dealt with factual findings and issues,

and identified 9 questions for reference, consisting of 8 questions regarding the interpretation of EU

law and one question regarding the validity of EU law, which were necessary for the disposal of the

proceedings. The parties other than the IFA proposed answers to these questions as summarised

below.

78. In those circumstances the referring court is staying the proceedings and referring the

questions below to the Court of Justice for a preliminary ruling.

The first question

79. The first question is:

Do Article 6(3) of Directive 92/43, Article 4(1) of Directive 2000/60 and/or Article

3(1) of Directive 2001/42 read in the light of Article 3(3) TEU and/or Article 11

and/or 191(2) TFEU and/or Article 37 of the Charter of Fundamental Rights have

the effect that an action programme under Article 5 of Directive 91/676 that is

assessed under or by reference to such Directives is required to be assessed in

relation to the effects on the environment of the Nitrate-emitting agricultural

activities which will be carried out on foot of derogations granted consequent on

the plan, either generally or insofar as such effects are indirectly contributed to by

the absence of more rigorous protective measures in the plan, as opposed to being

assessed by reference to the protective measures the plan positively includes and

those alone?

80. The applicant submitted:

“Yes. The NAP is supposed to involve a global examination, at the level of the whole of the

national territory, of the environmental issues linked to nitrate pollution from agricultural

sources - Joined Cases C 105/09 and C 110/09 Terre Wallonne and Inter-Environnement

Wallonie. Here, the NAP includes the derogation – in the words of the Directive, it ‘allows’

an amount higher than the 170 kg N in the Directive. So the environmental issues linked to

nitrate pollution from the derogation fall within that examination. The assessments carried

out under the Habitats Directive, the WFD and the SEA Directive must consider the effects

on the environment of the Nitrate-emitting agricultural activities which will be carried out on

foot of derogations granted consequent on the plan. To confine such assessments to the

protective measures the plan positively includes, and those alone, would be contrary to the

nature of the NAP and the purpose of those assessments.”

81. The State submitted:

“None of the cited provisions - Article 6(3) of Directive 92/43 (‘the Habitats Directive’),

Article 4(1) Directive 2000/60 (‘the WFD’), or Article 3(1) of Directive 2001/42 (‘the SEA

Directive’) - requires that an action programme under Article 5 of Directive 91/676 (‘the

Nitrates Directive’) be assessed by reference to the effects on the environment of the Nitrate-

emitting agricultural activities regulated by that action programme, either generally or by

reference to whether the protective measures in the action programme are sufficiently

rigorous to prevent such damage.”

82. The ICMSA submitted:

“ICMSA adopts the submissions made by the State Respondents under this Issue. ... In

addition, ICMSA would merely note, and echo, the concern which the State expresses ...

regarding ‘an impossible standard that could never be met’. Much case law inclines against

impossible, or impracticable, standards.”

83. The referring court’s proposed answer is Yes. The assessment of the NAP under Article 6(3)

of Directive 92/43, Article 4(1) of Directive 2000/60 and/or Article 3(1) of Directive 2001/42 must

include an assessment of the environmental harms caused by the activities being regulated by the

NAP. It must be recalled that the NAP establishes a framework within which, subject to Commission

decision, consents can be granted for use of additional Nitrates on individual farms. Thus while not

itself a development consent, the NAP establishes a framework for development consent. Such a

framework can only meaningfully be assessed by reference to the environmental impacts of the

activities being regulated. Otherwise, the establishment of a framework to permit the use of Nitrates

in excess of standard levels will fail to ensure a high level of environmental protection contrary to

Article 3(3) TEU and/or Article 11 and/or 191(2) TFEU and/or Article 37 of the Charter of

Fundamental Rights. Assessment of the effects of the proposed derogations is not an impossible

standard, because at the NAP level it need only be carried out in general terms, not on a farm-by-

farm basis.

84. The relevance of the question is that the NAP did not include a full assessment of the

environmental effects of the Nitrate-emitting agricultural activities that were to be carried out on

foot of derogations. The focus of the assessments was on the protective measures alone. An

assessment of the environmental effects of the underlying agricultural activities would have been

likely to have demonstrated significant adverse environmental effects including on European sites

for the purposes of Directive 92/43. If the answer to the question is Yes, then the NAP was adopted

without a proper assessment and therefore in breach of EU law.

The second question

85. The second question is:

If the answer to the first question in general is No, do the provisions referred to

have that effect where provisions in the domestic law of the Member State

concerned for assessment of individual derogations granted consequent on an

action programme pursuant to Article 5 of Directive 91/676 are not operated in

practice in that context so that there is in practice no assessment carried out under

Directive 92/43 of individual derogations granted consequent on the plan in terms

of the effect on European sites of Nitrate-emitting agricultural activities which will

be carried out on foot of such derogations?

86. The applicant submitted:

“Yes. The key issue in the question is the non-application in practice of the law. Where an

AA is performed of an NAP which establishes a derogation from the 170 kg N limit, but the

Habitats Directive is not in fact applied to individual derogation applications, it is imperative

that the AA of the NAP consider the underlying Nitrate-emitting agricultural activities which

will be carried out on foot of derogations granted consequent on the plan, rather than merely

the protective measures the plan positively.”

87. The State submitted:

“The provisions referred to do not have that effect, even where in practice there is no

assessment carried out of individual derogation decisions under the Habitats Directive. An

alleged failure to comply with obligations under the Habitats Directive with respect to a

downstream measure will, if established, result in consequences for that downstream

measure. However, there is no basis to contend that an upstream measure would be

invalidated in those circumstances, or that the obligations arising under the Habitats

Directive with respect to an upstream measure would alter on that basis. There is no textual

support for that position in the Habitats Directive, and a purposive approach would not

support that claim. The purpose of Article 6(3) is to prevent the implementation of measures

that will have adverse effects on the integrity of a site. Refusing to authorise the NAP under

Article 6(3) would only prevent the authorisation of the NAP. It would have no effect on the

underlying agricultural activities and, in particular, would not prevent those activities from

continuing. It would serve only to remove the regulation of those activities that currently

are in place under the NAP.”

88. The ICMSA submitted:

“ICMSA adopts the submissions made by the State Respondents under this Issue.”

89. The referring court’s proposed answer is that this question does not arise because the answer

to the first question is Yes, but if it does arise the answer is Yes. The absence of the application of

domestic legislation for AA in the context of individual derogations at farm level is strongly suggestive

of a reluctance to enforce EU law. It is not necessary for the referring court to come to any final

conclusions on the legality of the State’s approach because the mere fact that there is no farm-level

assessment makes it all the more imperative that a full assessment of the impacts of the agricultural

activities be carried out at the plan level. The State’s defence that “[r]efusing to authorise the NAP

under Article 6(3) would only prevent the authorisation of the NAP … [i]t would have no effect on

the underlying agricultural activities and, in particular, would not prevent those activities from

continuing … [i]t would serve only to remove the regulation of those activities that currently are in

place under the NAP” is tendentious because it ignores the fact that the NAP, the Commission

decision and the GAP regulations form a coherent system to permit farm-level derogations. The

formal development consent is an authorisation of the Minister under article 35(1)(a) of the GAP

regulations as amended, but that power only exists by reason of the NAP and the Commission

decision. The NAP and Commission decision therefore form the framework within which unassessed

development can take place, including development that impacts on European sites. There is a

broad analogy with the decision of the Netherlands Raad van State in Stichting Werkgroep Behoud

de Peel, gevestigd te Deurne v. het college van gedeputeerde staten van Noord-Brabant, 29 May

2019, ECLI:NL:RVS:2019:1603, e.g., at para. 31.1, “Zoals volgt uit deze uitspraak is met de

passende beoordeling die aan het PAS ten grondslag ligt niet de zekerheid verkregen dat de

natuurlijke kenmerken van de Natura 2000-gebieden die in het PAS zijn opgenomen niet zullen

worden aangetast. Er is met andere woorden niet verzekerd dat de instandhoudingsdoelstellingen

van de gebieden niet in gevaar worden gebracht.” (As follows from this ruling, the appropriate

assessment underlying the [Netherlands Nitrogen action programme] does not provide certainty that

the natural characteristics of the Natura 2000 areas included in the [programme] will not be affected.

In other words, it does not ensure that the conservation objectives of the areas will not be

jeopardised.) (https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RVS:2019:1603)

90. The relevance of the question is that domestic law on AA is not operated in practice at the

farm level when derogations are granted. That has the effect that the only assessment that is

actually carried out occurs at the plan level. Accordingly if the plan level assessment must take into

account the effects of the agricultural activities concerned, then the assessment here was defective

and the NAP was adopted in breach of EU law.

The third question

91. The third question is:

Do Article 6(3) of Directive 92/43 and/or Article 3(1) and/or 5(1) and/or 11(2)

of Directive 2001/42 read in the light of Article 3(3) TEU and/or Article 11 and/or

191(2) TFEU and/or Article 37 of the Charter of Fundamental Rights have the effect

that assessment of a plan or programme that is subject to those articles and that

is capable of having environmental effects on a water body must include

assessment by reference to Article 4 of Directive 2000/60 either alone or together

with other binding measures adopted by the Member State are sufficiently rigorous

to ensure that the plan or 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 Directive 2000/60, and if so, do those provisions or either

of them require such an assessment to state in express and/or clearly

ascertainable terms whether the relevant environmental objectives of Directive

2000/60 will be met following adoption of the plan or programme; either generally

or in the specific case of the proposed adoption of a basic measure as defined by

Article 11(3) of Directive 2000/60 and in particular a nitrates action programme

under Article 5 of Directive 91/676 (as referred to in Annex VI part A para (ix) of

Directive 2000/60 as referenced in Article 11(3)(a) of that Directive)?

92. The applicant submitted:

“There is an obligation to conduct the assessment identified in the Court’s question and to

refuse a proposed development unless the assessment is conducted and the requisite degree

of certainty (no change in status and no deterioration) is substantiated. That conclusion

must be expressly stated.”

93. The State submitted:

“Neither Article 6(3) of the Habitats Directive, nor Articles 3(1) and/or 5(1) and/or 11(2) of

the SEA Directive require that, as part of the assessment of a Plan for the purposes of those

provisions, there is an additional assessment under Article 4(1) of the WFD. The Applicant

has identified no authority for that proposition. Moreover, there is no obligation to assess

the NAP under Article 4(1) of the WFD, separate to the assessment of the Programme of

Measures under Article 11 of the WFD, under the principle established in Weser. The CJEU

has never held that the Weser obligation applies to plans or programmes. Even if it did, it

could never apply to the assessment of one part of the programme of measures adopted

under Article 11. Even if those provisions did require an assessment under Article 4(1), that

assessment would be limited to whether the positive measures to be implemented under the

NAP caused a deterioration in a body of water. There could be no requirement for an

assessment as to whether the NAP is sufficiently rigorous, either alone or together with other

binding measures, to ensure that there would be no deterioration of any water body in the

State. Strictly without prejudice to the foregoing, if any such obligation arose, a measure

could not be invalidated by reason of a failure to state in express and/or clearly ascertainable

terms whether the objectives of the WFD will be met, once the necessary assessment was

completed in substance.”

94. The ICMSA submitted:

“ICMSA adopts the submissions made by the State Respondents under this Issue.”

95. The referring court’s proposed answer is that the requirement of a high level of

environmental protection and the obligation to ensure the attainment of the objectives of Directive

2000/60 require that where a plan or programme is likely to have significant effects on one or more

water bodies in a Member State, an assessment under Directives 92/43 and/or 2001/42 must include

an assessment of whether the plan or programme either individually or together with other binding

measures adopted by the Member State is sufficiently rigorous to ensure that the plan or 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 Directive 2000/60. This is not an unworkable requirement. Legal certainty

and the requirement for a high level of environmental protection require such a conclusion to be

clearly stated.

96. The relevance of the question is that in the assessment under Directives 92/43 and 2001/42

there was no meaningful assessment of the NAP by reference to Article 4 of Directive 2000/60 and

certainly no express assessment in that regard. If the answer to the question is Yes, then the NAP

was adopted without a proper assessment and therefore in breach of EU law.

The fourth question

97. The fourth question is:

If the answer to the third question is such that that assessment of a plan or

programme that is subject to Article 6(3) of Directive 92/43 and/or Article 3(1) of

Directive 2001/42 and that is capable of having environmental effects on a water

body must include assessment by reference to Article 4 of Directive 2000/60 and

the answer to the first or second questions is such that assessment for the

purposes of Directive 2001/42 in terms of compliance with Directive 2000/60 is

required to include an assessment of the effects on the environment of the Nitrate-

emitting agricultural activities which will be carried out on foot of derogations

granted consequent on the plan and/or in particular the omission of more rigorous

provisions in a plan, does Article 4(1) of Directive 2000/60 (and specifically the

principle of law having 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), read in the light of Article 3(3) TEU and/or Article 11 and/or 191(2)

TFEU and/or Article 37 of the Charter of Fundamental Rights, have the effect that

a 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 Nitrate-emitting

agricultural activities which will be carried out on foot of derogations granted

consequent on 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 Directive 2000/60, either generally or in the specific case of the proposed

adoption of a basic measure as defined by Article 11(3) of Directive 2000/60 and

in particular a nitrates action programme under Article 5 of Directive 91/676 (as

referred to in Annex VI part A para (ix) of Directive 2000/60 as referenced in

Article 11(3)(a) of that Directive)?

98. The applicant submitted:

“There is an obligation to refuse to adopt a plan if the particular protective measures are not

sufficiently robust.”

99. The State submitted:

“There is no such obligation, for all of the reasons already set out ...”.

100. The ICMSA submitted:

“ICMSA adopts the submissions made by the State Respondents under this Issue.”

101. The referring court’s proposed answer is that by analogy with 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, Member States are required, unless a derogation is granted, to refuse

authorisation for a plan or programme 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 Nitrate-emitting agricultural activities which will be carried out on foot of derogations

granted consequent on 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 Directive 2000/60.

102. The relevance of the question is that prior to adopting the NAP, the competent authority did

not consider the question of whether, and thus did not lawfully satisfy itself as to whether, the

particular protections afforded by the plan either alone or together with other binding measures

adopted by the Member State were sufficiently rigorous to ensure that the Nitrate-emitting

agricultural activities which will be carried out on foot of derogations granted consequent on the plan

would 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 Directive 2000/60. If the answer to the question is Yes, then the plan was

adopted in breach of EU law because the competent authority was not satisfied in the manner

referred to in the question.

The fifth question

103. The fifth question is:

If the answer to the third and/or fourth questions in general is No, do the

provisions referred to have the effect referred to where provisions in the domestic

law of the Member State concerned for assessment of individual derogations

granted consequent on an action programme pursuant to Article 5 of Directive

91/676 are not operated in practice in that context so that there is in practice no

assessment carried out under Directive 92/43 (whether by reference to Article 4

of Directive 2000/60 or otherwise) of individual derogations granted consequent

on the plan in terms of the effect on water bodies in the Member State of Nitrate-

emitting agricultural activities which will be carried out on foot of such

derogations?

104. The applicant submitted:

“Yes. If farm level permitting or assessments are not undertaken in order to assess at farm

level the potential impacts of the nitrates emitting activities that will result as a consequence

of individual derogations, the certainty required for the purposes of Article 4 WFD must be

found in the assessments of the NAP itself. that is the only way in which the requirements

of Article 4 WFD can be achieved if the effects of individual derogations are not assessed at

farm level.”

105. The State submitted:

“No, for the same reasons as detailed in response to [the second question].”

106. The ICMSA submitted:

“ICMSA adopts the submissions made by the State Respondents under this Issue.”

107. The referring court’s proposed answer is that this question does not arise because the answer

to the third and fourth questions is Yes, but if it does arise the answer is Yes. The lack of any system

in practice for assessment of individual derogations under Directive 92/43 gives rise to a breach of

EU law unless the assessment of the NAP is sufficient to guarantee no impact on European sites,

which was not the case here.

108. The relevance of the question is that there was and is no assessment of individual

derogations under Directive 92/43, even derogations that occur in or affecting European sites, and

there was no comprehensive or sufficient assessment on impacts on European sites (including by

reference inter alia to Directive 2000/60) at the stage of adoption of the NAP. If such an assessment

is a requirement, then the NAP was adopted without a proper assessment and therefore in breach

of EU law.

The sixth question

109. The sixth question is:

Does Article 4 of Directive 2000/60 read in the light of Article 3(3) TEU and/or

Article 11 and/or 191(2) TFEU and/or Article 37 of the Charter of Fundamental

Rights have the effect that a plan or programme in particular a nitrates action

programme under Directive 91/676 with the potential to affect the status of any

relevant water body within a Member State cannot be adopted by the competent

authority of a Member State unless the competent authority is required to satisfy

itself firstly, that the adoption of the plan or programme is not liable to cause a

deterioration of the status of any surface water body which has been or ought to

have been identified by that Member State as constituting a surface water body

‘type’, nor is it liable to compromise the attainment of good surface water status

or of good ecological potential and good chemical status of such a surface water

body and, secondly, that the adoption of the plan or programme is compatible with

the measures implemented pursuant to the programme under Directive 2000/60

established, in accordance with Article 11 of that Directive, for the river basin

district concerned?

110. The applicant submitted:

“... outside of the de minimis exclusions, there is such an obligation to assess the potential

impacts on all water bodies; however, based on the decision of the Court of Justice in

Sweetman the answer to this question is unclear. In the Weser case the Advocate General

observed §53 ‘In the present case, it is clear from the documents in the main proceedings

that a management plan covering a programme of measures was adopted for the Weser

river basin district. Consequently, the Court is not called upon to determine the effects of

Article 4(1) of the WFD with regard to a body of water in respect of which the assessment

and planning measures required by Article 4 of the WFD have not been adopted.’”

111. The State submitted:

“... there is no obligation to assess the compliance of the NAP with Article 4(1) of the WFD,

and the contention that the assessment obligation established in Weser and developed in

Sweetman applies to the adoption of an action programme under Article 5(1) of the Nitrates

Directive is misconceived.”

112. The ICMSA submitted:

“ICMSA adopts the submissions made by the State Respondents under this Issue.”

113. The referring court’s proposed answer is that to ensure the requirement for a high level of

environmental protection, and to ensure the attainment of the objectives of Directive 2000/60, a

plan or programme cannot be adopted by a Member State unless the competent authority satisfies

itself that the adoption of the plan or programme will not occasion any non-compliance with the

objectives of Directive 2000/60 or any incompatibility with the measures adopted under that

Directive for the river basin district concerned.

114. The relevance of the question is that the competent authority did not satisfy itself that the

adoption of the plan or programme is not liable to cause a deterioration of the status of any surface

water body which has been or ought to have been identified by that Member State as constituting a

surface water body ‘type’, nor is it liable to compromise the attainment of good surface water status

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

that the adoption of the plan or programme is compatible with the measures implemented pursuant

to the programme under Directive 2000/60 established, in accordance with Article 11 of that

Directive, for the river basin district concerned. If that is an obligation under Directive 2000/60 then

such an obligation was breached here and the NAP was adopted in breach of EU law.

The seventh question

115. The seventh question is:

Do Article 5(1) of and Annex I para. (i) to Directive 2001/42 read in the light of

Article 3(3) TEU and/or Article 11 and/or 191(2) TFEU and/or Article 37 of the

Charter of Fundamental Rights have the effect that the environmental report itself

must include a description of the measures envisaged concerning monitoring in

accordance with Article 10 in sufficient detail to demonstrate that Article 10 will

be complied with, including details of how this monitoring will occur; when it will

be done; and/or how the monitoring will be used and how any identified

unforeseen adverse environmental effects will be addressed?

116. The applicant submitted:

“Article 5(1) and Annex 1 paragraph (i) to Directive 2001/42 requires that the environmental

report must include a description of the measures envisaged for monitoring under Article 10

in sufficient detail to demonstrate how Article 10 will be complies with. This clear from the

wording of the Directive, the context and the purpose of SEA. The public is entitled to

comment on envisaged monitoring measures and therefore ought to be given sufficient

information to verify that they are consistent with Article 10. Furthermore clarity in

monitoring serves other purposes such as avoidance of duplication by facilitating reuse of

monitoring in other plans or programmes or coordinating SEA monitoring activities into a

larger suite of environmental surveillance.”

117. The State submitted:

“The Respondents’ position is that Article 5(1) of the SEA Directive does not contain a bright

line rule as to the level of detail that is required to be included in an environmental report,

which is to be determined on an individual basis, in light of the Respondents’ discretion

pursuant to Article 5(2) of the SEA Directive to include the information in the environmental

report that may reasonably be required. Accordingly, the Respondents disagree with the

proposition that Article 5(1) of the SEA Directive requires an environmental report to include

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

10 of the SEA Directive in sufficient detail to demonstrate that Article 10 of the SEA Directive

will be complied with.”

118. The ICMSA submitted:

“ICMSA adopts the submissions made by the State Respondents under this Issue.”

119. The referring court’s proposed answer is that the express wording of Directive 2001/42

requires that the assessment include “a description of the measures envisaged concerning

monitoring in accordance with Article 10”. If the details referred to in the question are not included

but are left over for later decision, it cannot be said that a description of the measures concerning

monitoring in accordance with Article 10 has been provided. Failure to specify these details

jeopardises the practical attainment of the objectives of the Directive and also undermines the Union

objective of a high level of environmental protection.

120. The relevance of the question is that the assessment carried out in the present case under

Directive 2001/42 did not include the level of detail referred to in the question. If the answer to the

question is Yes, then the NAP was adopted without a proper assessment and therefore in breach of

EU law.

The eighth question

121. The eighth question is:

Does the term ‘material assets’ in para. (f) of annex I of Directive 2001/42 exclude

the value of such assets and/or in particular in the case of the assessment of an

action programme pursuant to Article 5 of Directive 91/676, does that term

exclude the broad societal impacts of agricultural activities, the impact of the plan

or project on the agricultural industry and on the output and income of farmers,

the sustainability of the agricultural industry in the Member State concerned, the

food supply chain, and the employment of a significant portion of the population,

and if so does Directive 2001/42 have the effect that consideration of such matters

is unlawful in assessing the effects of the plan?

122. The applicant submitted:

“By analogy with the judgment in Case C-420/11, Leth the term ‘material assets’ in

paragraph (f) of Annex I to the SEA Directive excludes the value of material assets and in

the case of an action plan under Directive 91/676 excludes other economic or social impacts

on the agriculture sector and farmers except in so far as these factor have an impact on the

environment. Such an interpretation is not supported by the wording of the Directive and is

not consistent with the objective of the Directive.”

123. The State submitted:

“Even if ‘material assets’ excludes a consideration of ‘critical infrastructure essential for the

functioning of society’ (which is not accepted), the Respondents submit that the taking into

account of ‘critical infrastructure essential for the functioning of society’ is still permissible

in an environmental report prepared pursuant to Article 5(1) of the SEA Directive for the

following reasons given that Article 5(2) provides that the environmental report prepared

pursuant to Article 5(1) shall include the information ‘that may reasonably be required…’

and that paragraph f of Annex I of the SEA Directive, which refers to ‘material assets’ is non-

exhaustive. The interpretation of ‘material assets’ in Leth is specific to the EIA Directive and

not capable of automatic transposition to an SEA Directive context in light of the fact that

environmental assessment at a strategic level is a fundamentally different process from that

at a project level.”

124. The ICMSA submitted:

“C-420/11, Leth merely concerns what is required to be included in an EIA. It says nothing

about what must not be included in such an assessment, much less one for SEA purposes.

An Taisce adduces no case law on this in the SEA context, EIA context or any context. An

Taisce’s arguments seem predicated on an assumption that readers of the report are, in

effect, so easily confused that they could not process or understand the report if it contained

anything other than environmental matters. There is no warrant for this assumption, nor

does An Taisce provide any. Even assuming arguendo that something had been included

which ought not to have been, An Taisce has not demonstrated that any ‘consideration’

which follows is ‘unlawful’ as a result.”

125. The referring court’s proposed answer is that the term “material assets” for the purpose of

Directive 2001/42 does not include the financial value of such assets, by analogy with the judgment

of 14 March 2013, Leth, C-420/11, ECLI:EU:C:2013:166 which referred to assessment under

Directive 85/337. However Leth only established that assessment of financial value of material

assets was not “necessary”. It does not follow that including such assessment is unlawful. Directive

2001/42 does not prohibit the competent authority of a Member State from assessing additional

matters above and beyond the minimum necessary under the Directive, provided that the matters

falling within the Directive are also assessed.

126. The relevance of the question is that the assessment carried out in this case did consider

financial issues, therefore rendering it necessary to establish whether such consideration was lawful.

The ninth question

127. The ninth question is:

If the answers to one or more of the first to eighth questions have the consequence

that the adoption of the NAP involved a breach of Directives 92/43, 2000/60

and/or 2001/42, is Commission Decision 2022/696 invalid having regard inter alia

to Article 3(3) TEU and/or Article 11 and/or 191(2) TFEU and/or Article 37 of the

Charter of Fundamental Rights?

128. The applicant submitted:

“The threshold that the Applicant has to meet is to raise a doubt in the Court’s mind such

that the matter has to be referred to the Court of Justice. In circumstances where the

Derogation expressly relies on the NAP, if the adoption of the NAP involved a breach of the

Habitats Directive, the WFD or the SEA Directive that raises (at the very least) a doubt

whether the Derogation remains valid.”

129. The State submitted:

“If the answers to the previous issues have the consequence that the adoption of the NAP

involved a breach of the Habitats Directive, WFD and/or SEA Directive, the 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 nonetheless remains valid.”

130. The ICMSA submitted:

“161. ICMSA adopts the submissions made by the State Respondents under this Issue.

Those run from §235 to §259.”

131. The referring court’s proposed answer is that the conclusion that would follow from the

proposed answers to the earlier questions would be that the NAP was adopted in breach of Directives

92/43, 2000/60 and/or 2001/42. Commission Decision 2022/696 presupposes a valid NAP that was

subject to proper assessment. In the absence of such proper assessment in conformity with EU law,

the referring court’s proposed answer is that the CJEU should declare that Commission Decision

2022/696 is invalid on that basis. Relatedly and in particular, the Commission Decision is expressly

predicated on the need for compliance with Directive 92/43, but a practical system to ensure such

compliance is absent given the lack of any farm-level AA prior to the grant of individual derogations.

In the absence of such a factual precondition, combined with the lack of any other compensating

adequate assessment at the stage of adopting the NAP, the referring court’s proposed additional

answer is that the CJEU should declare that the Commission Decision is invalid on that specific basis

in particular.

132. The critical point is that the Commission decision is predicated on the adoption of the Irish

NAP (recital 9 and art. 14) and thus implicitly on the valid adoption of a NAP in compliance with

Union law. The State submits that the reference to the NAP is just context, but that is implausible.

Any legal inadequacy in the NAP would therefore flow through into the Decision.

133. Commission Decision 2022/696 is also expressly premised on the basis that the habitats

directive will be fully implemented – see recital 23. The fact that there is no system in place in

practice to apply the habitats directive prior to making farm-level derogation decisions is highly

relevant. It appears likely to the referring court that the European Commission was not fully seized

of the gap in domestic enforcement of the habitats directive. While the Commission decision recites

that the directive should be complied with, there does not seem to have been any engagement with

the fact that farm-level derogations are being allowed by the thousand without any appropriate

assessment, including adjacent to or even within European sites. All of this has potentially negative

results on water quality in Ireland. It seems unlikely on the face of things that the European

Commission could lawfully have granted the derogation had it been focused on that situation.

134. The issue is necessary and appropriate for reference to the CJEU. It is clear from established

caselaw that a domestic court at any level, not just an apex court, must refer an issue regarding the

validity of EU secondary law if it considers that such law should be declared invalid by the CJEU: the

judgment of 14 December 2000, Masterfoods, C-344/98, ECLI:EU:C:2000:689. That applies here.

135. Insofar as the State made points that the CJEU doesn’t have jurisdiction to answer this

question, that argument is unprincipled and contrary to the established jurisprudence of the CJEU:

see for example the judgment of 11 January 2024, Friends of the Irish Environment, C-330/22,

ECLI:EU:C:2024:19 at 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).”

136. 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 challenge is firmly situated in the context of a concrete domestic dispute which for good

measure also involves a challenge to national implementing measures. Nor is this a case where

there is nothing left to decide by the national court in the event that the CJEU rules on the validity

of the Commission Decision, because the applicant also challenges the GAP regulations which include

amendments consequent on the Commission Decision. Furthermore, he applicant did not have

standing to bring a direct action to the CJEU to challenge the Decision: see the tests laid down in

cases such as the judgment of 30 October 2013, Inuit Tapiriit Kanatami and Others v Parliament

and Council, C‑583/11, ECLI:EU:C:2013:625.

137. As regards the State’s proposed objection to the CJEU that the reference regarding the

validity of the Commission decision is inadmissible because it is not necessary for anything that the

court has to decide to resolve a dispute between the parties, that is also misconceived. The applicant

has, as it is entitled to do, challenged an EU law measure in the context of a concrete dispute

between the parties that involves, for good measure, a challenge to implementing measures. That

is a standard procedure. To resolve that dispute the issue of the validity of the Commission decision

must be addressed, and that can only be answered definitively by the CJEU. The State’s admissibility

objection (to an extent supported by the notice parties) would be destructive of the rule of law,

because it would essentially eliminate Article 267 TFEU as a channel for oversight by the CJEU of the

Union legislative process. In practice almost all legislative challenges would manifest in a complaint

about some domestic implementing measure, and a new doctrine that allowing the national court to

adjudicate on the domestic measure eliminated the need to address the validity of the relevant

element of EU secondary legislation would effectively eliminate the possibility of ever reaching such

issues. That would hollow out and render redundant the express provisions for reference of issues

as to the validity of secondary EU law as set out in Article 267 TFEU.

138. The State’s argument that this issue should be postponed is also misconceived. That would

potentially require a second reference, some time in 2025 or 2026, which seems procedurally

cumbersome and amounts to pointless formalism. The referring court has endeavoured to set out

the reasons for the questions and thus the nexus between the questions and the issue of whether

any breach of EU law has occurred in the adoption of the NAP and consequently the Commission

Decision. It should therefore be legitimately open to the CJEU to draw any appropriate conclusions

in answer to this question.

139. For completeness the referring court should note that this issue will not be moot even if this

question is not answered until after 31st December 2025 being the expiry date of the Decision. It

may be possible for the CJEU to determine the reference before then, but in any event the principles

in the judgment of 11 January 2024, Friends of the Irish Environment CLG v Minister for Agriculture,

Food and the Marine, C-330/22, ECLI:EU:C:2024:19, apply and the reference is appropriate on a

similar basis. The referring court will not be precluded from granting at least some relief to the

applicant if the answers to the questions referred indicate that a legal infirmity has occurred.

140. Viewed from the perspective of Irish law, the domestic jurisprudence allowing review of

temporary decisions that are “capable of repetition but evading review” applies as set out earlier in

this judgment. The present case falls squarely within the principle even if it is not finally determined

by December 2025. Thus the present challenge can legitimately be pursued, for at least some relief,

even after December 2025.

141. Indeed, the State accepted this in written submissions of 8th July 2024:

“15. If the Court decides to refer a question to the CJEU, with the consequence that the

proceedings may not be finally determined prior to 31 December 2025, being the date until

when the Commission Decision applies, the Respondents confirm that they would not raise

a mootness objection before the CJEU. This is without prejudice to the Respondents raising

an objection before the CJEU that questions concerning the validity of the Commission

Decision are inadmissible on account of their being unnecessary to resolve any dispute

between the parties to the proceedings.”

142. In the event that the final order is made after the expiry of the instruments concerned, the

court, if it finds for an applicant, is not without capacity to grant a remedy for a range of reasons,

not least because the court does have jurisdiction to grant reliefs not pleaded, within the scope of

the grounds (see domestic law referred to earlier in this judgment). So at least a declaration would

be available in any event. Alternatively, if the court decides to direct an alternative remedy to

certiorari, such as for example an order compelling the undertaking of further assessment, it is not

an answer to that to say that the relief was not expressly sought. Again, that is because an

unpleaded relief can be granted if within the scope of the grounds of challenge. The State again

concedes this point in submissions of 8th July 2024:

“16. The Respondents do not consider that any issue arises at this juncture in circumstances

in which pursuant to Order 84, Rule 19 [of the Rules of the Superior Courts] the Court may

grant any relief mentioned in Order 84, Rule 18(1)–(2) which it considers appropriate

notwithstanding that it has not been specifically claimed. Alternatively, the Applicant may seek

leave of the Court to amend its Statement of Grounds.”

143. Thus the challenge can legitimately be pursued, for at least some relief, even after December

2025. It can in any event be noted that the previous derogation expired in December 2021, but

was replaced only in April 2022, so there may be a run off period of at least de facto application in

any event.

144. The relevance of the question is that in the proceedings, the applicant challenges the validity

of Commission decision 2022/696. An answer to this question is therefore relevant and necessary

to addressing the relief sought by the applicant.

Order

145. For the foregoing reasons, it is ordered that:

(i) the questions set out in this judgment be referred to the CJEU pursuant to article

267 TFEU;

(ii) the CJEU be requested to note that the notice parties who are natural persons have

requested the referring court to inform the CJEU that they do not wish their names

to be anonymised for the purposes of the proceedings in the CJEU and therefore that

all such persons can be named by the CJEU including by way of the publication of

materials or of the judgment of that court; and

(iii) the substantive determination of the proceedings be adjourned pending the

judgment of the CJEU, without prejudice to the determination of any appropriate

procedural or interlocutory issues in the meantime or the determination of the

appropriate way to proceed in respect of grounds that have been adjourned to await

progress in other proceedings.