Irish High Court permits addendum to preliminary ruling request to clarify facts for CJEU despite Commission's objections.

[2025] IEHC 709

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000037]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A AND 50B OF THE

PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

PADDY MASSEY

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL, MINISTER FOR HOUSING,

LOCAL GOVERNMENT AND HERITAGE

RESPONDENTS

AND

CURNS ENERGY LIMITED

NOTICE PARTY

(No. 5)

JUDGMENT of Humphreys J. delivered on Tuesday the 9th day of December 2025

1. This addendum to the request for a preliminary ruling in Case C-356/25 Massey is issued by

the referring court to the CJEU by way of clarification of the reference in the light of the Commission’s

written observations, with the intention that the following may assist the CJEU and the parties to

the reference.

The possibility of clarification of a reference by the referring court by means of an

addendum to the request

2. In Case C-58/24 Drumakilla, the referring court offered certain clarifications by way of an

addendum to the request for a preliminary ruling in the light of the European Commission’s written

observations on the original request. In the course of its observations on that addendum the

Commission commented as follows:

“2. As a preliminary and general remark, the Commission would like to emphasize that the

practice to notify the written submissions to the referring court [n1: Recommendations to

national courts and tribunals in relation to the initiation of preliminary ruling proceedings

(C/2024/6008)] has the objective to provide a useful reply to be given to the questions

referred by that court. However, in the Commission’s opinion, that practice should not be

construed as allowing referring courts to reply to one or several of the written observations.

That would render, in practice, the referring court one of the parties to the preliminary

procedure, which would in turn denaturalize the nature and goal of the preliminary

reference.”

3. The referring court in the present case agrees with the Commission to the extent that (a) it

would not propose to “reply” to written observations as such (and is not doing so in the present

addendum) and (b) a referring court is not one of the “parties” to the procedure. However the

referring court’s view, subject to the view of the CJEU, that approach does not have the effect that

the referring court cannot endeavour to clarify points of fact or of national law or procedure if it

considers that such clarifications would assist the CJEU in providing a “useful reply” (as put in

paragraph 35 of the Recommendations to national courts and tribunals in relation to the initiation of

preliminary ruling proceedings (OJ L C 380, 8.11.2019, p. 1).

4. As noted in paragraph 11 of the Recommendations, the CJEU “take[s] into account the legal

and factual context of the dispute in the main proceedings, as defined by the referring court or

tribunal in its request for a preliminary ruling” (emphasis added). To that extent if the referring

court considers that the legal and factual context may benefit from further definition to assist the

parties and the CJEU, it may be desirable to do so.

5. As noted by the CJEU in the judgment of 1 August 2025, Royal Football Club Seraing v

Fédération internationale de football association (FIFA) and Others, C‑600/23, ECLI:EU:C:2025:617

(Grand Chamber), at 77, “the preliminary ruling procedure provided for in Article 267 TFEU, which

is the keystone of the judicial system established by the Treaties, sets up a dialogue between one

court and another, specifically between the Court of Justice and the courts of the Member States”.

Subject of course to the views of the CJEU, it would appear to the referring court consistent with the

notion of “dialogue” that the referring court might, where appropriate, be allowed to clarify aspects

of the case that are in principle defined by it, without straying into reply as such to the views of the

parties to the procedure.

Specific clarifications in the light of the Commission’s written observations in the present

case

6. By way of clarification in the light of paragraph 14 of the Commission’s observations, the

judgment refusing to quash the permission is indeed final, hence having effects of res iudicata. The

applicant has exhausted the appeal mechanisms having been refused permission to appeal to the

Court of Appeal on 30 May 2025 (https://ww2.courts.ie/acc/alfresco/6368a7c7-2705-40f8-b6ac-

8e52e4de8fad/2025_IEHC_309.pdf/pdf#view=fitH) and to the Supreme Court on 16 October 2025

(https://ww2.courts.ie/acc/alfresco/d853ef74-40f9-4b46-ab6d-

dc766b080fa5/2025_IESCDET_126.pdf/pdf#view=fitH).

7. However it is not correct as suggested at paragraph 14 of the Commission’s observations

that “the substantive question has already been adjudicated by the referring Court”. What has been

adjudicated is the question of whether, even if a breach of Directive 92/43 as applied to Directive

2009/147 has occurred, the development consent should be quashed. That does not dispose of the

main proceedings because the referring court has not determined whether there was a breach.

In the event that such a breach is established by the referring court in the light of the CJEU’s reply

to the request, the applicant can obtain relief by way of Declaration (additional to and separate from

the Declaration already conceded by the State respondents), and that relief remains pending and

live before the referring court. The aforesaid procedural state of the main proceedings was noted

by the Supreme Court at paragraph 4 of the determination refusing the applicant leave to appeal to

that court, and no issue was taken by the Supreme Court with the legal correctness of the way the

referring court was dealing with the issue.

8. Irish law permits the grant of merely declaratory relief as an outcome of the judicial review

process (as opposed to coercive or imperative relief such as the quashing of a decision such as a

development consent). The jurisdiction to grant such declaratory relief was recently discussed by

the Supreme Court in B. v. The Child & Family Agency [2025] IESC 2 (Unreported, Supreme Court,

27 January 2025) (https://ww2.courts.ie/acc/alfresco/4a8af7af-4ddd-413c-8e61-

c4e82b0928b7/[2025]_IESC_2.pdf/pdf#view=fitH). At paragraph 46, Hogan J. identified what was

in essence a three-part test:

(i) “[t]here was a good reason to seek a declaration of this kind”;

(ii) “there was a real and substantial issue to be determined”; and

(iii) there was a party that “had a real interest in opposing the grant of any declaration”.

9. Declaratory relief is discussed further in Save The South Leinster Way v. An Coimisiún

Pleanála (No. 2) [2025] IEHC 541 (Unreported, High Court, 15 October 2025)

(https://ww2.courts.ie/acc/alfresco/76e4fb6f-c0a7-4d3f-b3be-

6053e1935d1a/2025_IEHC_541.pdf/pdf#view=fitH) at 119.

10. Among numerous examples where the referring court has granted a declaration as to breach

of law without quashing a decision, see the following recent cases:

(i) Byrne v. Fingal County Council [2025] IEHC 204 (Unreported, High Court, 11 April

2025) (https://ww2.courts.ie/view/Judgments/d0024230-4a89-4bd1-a45b-

21533a8fdf7d/e2a69639-7090-4a5a-95c6-

ed81999ae9cd/2025_IEHC_204.pdf/pdf);

(ii) Eco Advocacy CLG v. An Bord Pleanála [2025] IEHC 15 (Unreported, High Court, 15

January 2025) (https://ww2.courts.ie/view/Judgments/e148fb64-3b18-45b6-a5ad-

ea0f43434eda/b3cace91-ccb9-49d8-a880-eae70a432518/2025_IEHC_15.pdf/pdf);

(iii) Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7 October

2024) (https://ww2.courts.ie/view/Judgments/bf929f54-4a13-4976-86b5-

f4913e742912/66e84471-90f4-4a24-bad7-7427f26cf8f6/2024_IEHC_570.pdf/pdf);

(iv) Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported,

High Court, 20 May 2024) (https://ww2.courts.ie/view/Judgments/ebacb168-da91-

4b30-becd-ef4f279c5955/40a0d01a-94e5-4f12-b611-

b4390518f244/2024_IEHC_300.pdf/pdf); and

(v) Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27 (Unreported, High Court, 24

January 2024) (https://ww2.courts.ie/view/Judgments/8ddfaf53-e3f7-4485-a028-

647afd70dba7/15984f2b-d915-4c1b-87ba-30c2f14fb784/2024_IEHC_27.pdf/pdf).

11. The referring court would also point out that a very similar situation also arose in the

judgment of 6 July 2023, Hellfire Massy v Residents Association v An Bord Pleanála and Others, C-

166/22, ECLI:EU:C:2023:545, where the referring court had, prior to the request for a preliminary

ruling, rejected a challenge to the validity of the development consent (a decision which was upheld

by the Supreme Court in Hellfire Massy v. An Bord Pleanála [2022] IESC 38, [2024] 1 I.R. 386

(https://ww2.courts.ie/view/Judgments/5781f39e-8876-4b18-9cc9-81128b6afff9/cf9fa2a5-2a14-

451c-9469-9a8221967626/2022_IESC_38.pdf/pdf)). The CJEU dismissed objections regarding the

inadmissibility of a subsequent reference on the grounds that an element of the case remained live

(see in particular paragraph 27). As the referring court sees it, an analogous situation applies here.

12. Contrary to the Commission’s suggestion at paragraph 15 of its observations, the referring

court’s view is that the referred question is therefore not moot. Furthermore while the referring

court agrees that the answer would be devoid of pertinence for adjudicating the validity of the

permission, the “substance” of the case is not limited to the question of the validity of the permission

because it also encompasses the currently live issue of declaratory relief, which additionally has

ancillary consequences in terms of the costs of the proceedings, as the above examples illustrate.

Furthermore, as the commission points out, by default the commission acts on any declaration made

by the court as a basis for its actions in subsequent cases, even though such declarations do not

have imperative force.

13. Therefore, contrary to the Commission’s suggestion at paragraph 16 of its observations, the

referring court’s view is that this is not a case where the question bears no relation to the purpose

of the main action and nor is it one where the problem is hypothetical. This is more than simply a

matter of a presumption of relevance in line with the CJEU’s established caselaw. The referring court

would like to inform the CJEU that all parties to the main proceedings agree that the matter is not

moot, and none of them objected to the referring court issuing the present addendum.

Order

14. For the foregoing reasons, it is ordered that the present addendum to the request for a

preliminary ruling be transmitted to the CJEU.