Conservation Objectives as Jurisdictional Precondition for AA Screening under Article 6(3) Habitats Directive

Introduction

Massey v An Bord Pleanála & Ors [No. 3] ([2025] IEHC 218) is a High Court reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) on the interpretation of Article 6(3) of the Habitats Directive (92/43/EEC), as applied to the Birds Directive (2009/147/EC) by Article 7 of the former. The dispute arises out of a challenge by Paddy Massey to a grant of planning permission to Curns Energy Limited for a wind farm and associated infrastructure on the Cork–Waterford border. The central legal issue is whether, at the screening stage of an Appropriate Assessment (AA), a competent authority must have site-specific conservation objectives and/or measures in place for any European site that might be affected.

The parties are:

Applicant: Paddy Massey
Respondents: An Bord Pleanála; the Attorney General; the Minister for Housing, Local Government and Heritage
Notice Party: Curns Energy Limited

The High Court refused to quash the planning permission but stayed proceedings to seek clarity from the CJEU on the scope and obligations imposed by Article 6(3) screening. The answer will determine whether declaratory relief must issue due to the absence of conservation objectives at the time of screening.

Summary of the Judgment

On 11 April 2025, Humphreys J. referred a single question to the CJEU under Article 267 TFEU:

Does Article 6(3) of Directive 92/43, as applied to Directive 2009/147 by Article 7 of the former, require that an AA screening determination be carried out by reference to conservation objectives and/or measures established for any European site concerned?

The High Court framed the competing positions:

Applicant’s stance: Yes. AA screening cannot proceed in the absence of conservation objectives (Friends of the Irish Environment C-254/19).
Respondents’ stance: No. Screening is governed by the first part of Article 6(3) and is not jurisdictionally barred by lack of objectives; such a requirement finds no textual, contextual, or purposive basis in the Directive.

The Court ordered:

Referral of the question to the CJEU;
Request for priority handling and potential joinder with Case C-27/25 (Knocknamona);
Adjournment of the domestic proceedings pending the CJEU ruling.

Analysis

Precedents Cited

Friends of the Irish Environment Ltd v An Bord Pleanála (C-254/19, EU:C:2020:680): Affirmed that where effects cannot be ruled out “having regard to the best scientific knowledge,” screening must proceed to a full AA.
Commission Notice (2021/C 437/01): Defines the four steps of AA screening: (1) identification of likely effects; (2) assessment of significance; (3) determination of need for full AA; (4) possible referral to full AA procedure.
Sweetman v An Bord Pleanála (C-258/11, EU:C:2012:743): Advocate General Sharpston cautioned against overly formalistic or jurisdictional readings that would frustrate effective environmental protection.

These authorities underline a precautionary and science-based approach but differ as to whether the absence of conservation objectives nullifies jurisdiction to screen.

Legal Reasoning

The core of the debate turns on the text of Article 6(3):

“Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect… shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives.”

Applicant’s argument: The phrase “in view of the site’s conservation objectives” imports a jurisdictional precondition. Without formally adopted objectives, the competent authority lacks legal footing to ascertain significant effects in line with Directive requirements. This interpretation ensures fidelity to the precautionary principle and to Article 42 of Ireland’s transposing Regulations.

Respondents’ argument: Article 6(3) comprises two limbs: screening (“any plan… likely to have a significant effect… shall be subject to appropriate assessment”) and, if needed, full AA “in view of the site’s conservation objectives.” The screening stage is distinct and self-standing, requiring only identification of potential significant effects; conservation objectives properly inform the full AA but are not essential to screening. To read them in as a jurisdictional bar would produce absurd results—any gap in national conservation planning would paralyze screening nationally.

In context, the Directive aims to prevent deterioration and disturbance but entrusts Member States with flexible procedural measures so long as outcomes adhere to precaution and scientific knowledge. A formalistic precondition would run counter to recital 7 of the Birds Directive and the Directive’s overall framework.

Impact on Future Cases and Environmental Planning

A CJEU ruling that conservation objectives are a jurisdictional precondition would:

Require Member States to adopt site-specific objectives before any AA screening can validly occur;
Potentially delay infrastructure projects pending objective-setting;
Enhance the detail and legal certainty of conservation objectives but at the cost of procedural complexity.

Conversely, a ruling that objectives are not a jurisdictional bar but rather an essential tool for full AA would:

Preserve the autonomy of screening as a rapid, low-threshold process;
Focus Member States’ efforts on ensuring later-stage compliance with conservation aims;
Maintain operational flexibility for strategic infrastructure development, particularly in the renewable energy sector.

Complex Concepts Simplified

Appropriate Assessment (AA): A step-by-step evaluation required by Article 6(3) and (4) of the Habitats Directive to ensure that any plan or project does not adversely affect the integrity of a Natura 2000 site.

Screening for AA: The initial phase determining whether a full AA is needed. It considers likelihood of significant effects “individually or in combination” but does not assess site-specific objectives in detail.

Conservation Objectives: Statutorily adopted aims that define the favourable conservation status of a site—population size, habitat extent, and ecological conditions. They guide the substance of a full AA by setting benchmarks against which effects are measured.

Jurisdictional Precondition: A requirement that must be satisfied before an authority can validly exercise its adjudicative function. If conservation objectives are jurisdictional, no screening can legally occur until objectives are in place.

Conclusion

Massey v An Bord Pleanála [No. 3] raises a novel and critical question: whether the absence of formally adopted conservation objectives strips competent authorities of their power to carry out AA screening under Article 6(3) of the Habitats Directive. The High Court’s referral pinpoints the tension between procedural efficiency and the Directive’s ecological safeguards.

The CJEU’s forthcoming ruling will clarify the interplay between screening and conservation objectives, shaping the conduct of environmental assessments across the EU. If the Court imposes a precondition, Member States will face heightened procedural demands at the earliest stage of project authorization. If not, authorities will continue to screen rapidly while ensuring full AA aligns with objectives when a significant effect cannot be excluded.

In either scenario, the decision will have profound implications for the planning and delivery of renewable energy infrastructure and for the practical application of Natura 2000 protection standards.