An Taisce - The National Trust for Ireland v Minister for Housing & Ors [No. 3] (Approved)

Factual and Procedural Background

The present case involves a judicial review challenge to the validity of domestic and European measures concerning the derogation permitting the use of nitrates above standard levels under the Nitrates Directive. The challenge raises complex and novel EU law issues, particularly regarding the validity of a Commission Implementing Decision granting a derogation to Ireland. The court is considering whether to make a preliminary reference to the Court of Justice of the European Union (CJEU) on these issues.

The proceedings were initiated on 31 May 2022 in the judicial review list and subsequently transferred to the Planning and Environment List. Various amendments to pleadings and additions of notice parties, including agricultural associations represented by trustees, were made during the procedural history. The case was modularised, with initial modules addressing pleading and evidential objections, followed by substantive EU law questions. Hearings and exchanges of submissions occurred from late 2022 through mid-2024.

The relief sought includes orders quashing the Fifth Nitrates Action Programme (NAP) and associated regulations on grounds of invalidity and unlawfulness under EU environmental directives, declarations of breaches of the Habitats Directive, Water Framework Directive (WFD), and Strategic Environmental Assessment (SEA) Directive, and a reference to the CJEU on the validity of the Commission decision.

Legal Issues Presented

1. Whether the assessment of the Nitrates Action Programme under the Habitats Directive, WFD, and SEA Directive must consider the effects of nitrate-emitting agricultural activities enabled by derogations granted by the plan, or only the protective measures included in the plan.
2. Whether, if the above is negative, the assessment obligations change when farm-level appropriate assessments (AAs) of individual derogations are not operated in practice.
3. Whether the assessment of plans or programmes under the Habitats Directive and SEA Directive must include an assessment under Article 4 of the WFD concerning the sufficiency of measures to prevent deterioration of water bodies.
4. Whether Article 4 of the WFD requires that a plan or programme with potential effects on water bodies cannot be adopted unless all relevant water bodies have been assigned type-specific reference conditions and monitoring programmes.
5. Whether Article 5(1) of the SEA Directive and Annex I require environmental reports to include detailed descriptions of monitoring measures sufficient to demonstrate compliance with Article 10 of the SEA Directive.
6. Whether Article 4(3) TEU restricts the discretion of domestic courts in granting relief for breaches of EU law concerning the NAP, including refusal or limitation of orders affecting the validity of the plan, taking into account proportionality, prejudice to third parties, fundamental rights, and EU policies like the Common Agricultural Policy (CAP).
7. Whether the Commission Implementing Decision (EU) 2022/696 granting the derogation to Ireland is invalid if the adoption of the NAP breached the Habitats Directive, WFD, or SEA Directive.
8. Whether the court should seek information from the Commission or other EU institutions under the Eurobolt jurisdiction before deciding on referring the validity of the Commission decision.

Arguments of the Parties

Applicant's Arguments

• The NAP must be assessed in relation to the environmental effects of nitrate-emitting agricultural activities enabled by derogations, not merely the protective measures included in the plan, to satisfy the requirements of the Habitats Directive, WFD, and SEA Directive.
• In the absence of farm-level AAs for individual derogations, the plan-level AA must consider these underlying activities to ensure no reasonable scientific doubt exists regarding adverse effects on protected sites.
• There is an obligation to refuse adoption of plans or programmes if protective measures are not sufficiently rigorous to prevent deterioration of water bodies or jeopardise attainment of good status under the WFD.
• Environmental reports under the SEA Directive must include detailed descriptions of monitoring measures to demonstrate compliance with Article 10 and enable effective public participation.
• Domestic courts have limited discretion to refuse relief for breaches of EU law affecting the NAP; relief cannot be refused or limited permanently if a breach is established, though temporary stays may be permissible under narrowly defined circumstances.
• The validity of the Commission Implementing Decision is intrinsically linked to the validity of the NAP; if the NAP is invalid, the Commission decision is doubtful and must be referred to the CJEU for determination.
• The applicant does not currently propose questions under the Eurobolt jurisdiction but acknowledges the court's discretion to invoke it.

Respondents' Arguments (State and ICMSA)

• The assessment under the Habitats Directive, WFD, and SEA Directive does not require consideration of the environmental effects of nitrate-emitting agricultural activities regulated by the NAP, but only the protective measures themselves.
• The NAP regulates but does not authorise farm-level activities; thus, the AA relates to the plan, not the individual agricultural projects.
• Even if farm-level AAs are not carried out in practice, this does not invalidate the NAP nor alter the assessment obligations at plan level.
• Article 4(1) WFD obligations apply to individual projects, not to plans or programmes like the NAP, which are part of the programme of measures under Article 11 WFD assessed globally, avoiding duplication.
• The SEA Directive imposes procedural obligations only; environmental reports need not include detailed monitoring descriptions beyond what is reasonably required, and discretion applies to the level of detail.
• Domestic courts retain discretion in granting relief and may consider proportionality, prejudice to third parties, fundamental rights (including rights to work, conduct business, and property), and EU policies such as the CAP in exercising judicial review.
• The Commission Implementing Decision remains valid even if the NAP is found to be in breach, as the decision is addressed to Member States and may only be challenged on grounds relevant to the Commission's own decision-making, which are not raised here.
• The court should not seek information from the Commission under Eurobolt jurisdiction absent party requests.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Joined Cases C-105/09 and C-110/09 Terre Wallonne and Inter-Environnement Wallonie	Interpretation of the Nitrates Directive requiring a global examination of environmental issues linked to nitrate pollution at the level of vulnerable zones and the entire territory.	Supported the applicant's argument that assessments must consider nitrate-emitting agricultural activities enabled by derogations, not only protective measures.
Case C-197/18 Wasserleitungsverband Nördliches Burgenland	Requirement for precise determination of nitrogen amounts applied by farmers to achieve balanced fertilisation under the Nitrates Directive.	Reinforced that assessment cannot be limited to protective measures alone.
Case C-293/17 and C-294/17 Coöperatie Mobilisation (Dutch Nitrogen cases)	Clarified the scope of appropriate assessment for programmatic plans authorising nitrogen deposition and grazing without individual permits.	Distinguished between authorisation of activities and regulation; held that programmatic legislation allowing certain projects without individual assessments is permissible if no reasonable scientific doubt exists.
Case C-127/02 Waddenzee	Requirement that all aspects of a plan or project likely to affect conservation objectives must be identified using best scientific knowledge.	Supported applicant's claim that agricultural activities must be considered in assessment.
Case C-461/13 Bund Naturschutz	Article 4(1) WFD requires refusal of authorisation for projects causing deterioration of water bodies unless derogation applies.	Applied in discussion regarding whether plans/programmes must be refused if insufficient to prevent deterioration.
Case C-41/11 Inter-Environnement Wallonie	Limits on national courts' discretion to maintain effects of annulled national measures; exceptional circumstances may permit temporary maintenance for environmental protection.	Guided the court on discretion in granting relief and maintaining effects of NAP pending remedial measures.
Case C-411/17 Inter-Environnement Wallonie ASBL and Bond Beter Leefmilieu Vlaanderen	Only the CJEU may allow temporary suspension of EU law’s primacy; national courts must nullify unlawful consequences of breaches but may consider overriding environmental considerations.	Informed court's approach to discretion in relief and maintaining effects of measures found unlawful.
Case C-535/18 IL v Land Nordrhein-Westfalen	Clarified obligations under Article 4 WFD regarding assessment of water bodies and public participation.	Referenced in applicant's arguments on assessment and necessity for express statements on environmental objectives.
Case C-420/11 Leth	Interpreted "material assets" under the EIA Directive excluding pecuniary value but including use of assets affecting environment.	Discussed by parties regarding scope of "material assets" under SEA Directive and whether economic/social impacts on agriculture may be considered.
Case C-261/18 Commission v. Ireland (Derrybrien Wind Farm)	Obligation on Member States to eliminate unlawful consequences of breaches of EU environmental law, including by revoking or suspending consent.	Referenced in discussion of remedies and discretion of domestic courts.
Case C-283/11 Sky Österreich	Recognition of broad discretion in EU law measures involving complex political, economic, and social choices.	Referenced in submissions concerning proportionality and balancing of interests.
Case C-426 Alemo-Herron	Protection of freedom to conduct business under Article 16 of the Charter against disproportionate interference.	Applied in submissions regarding potential impacts of removing derogations on farmers' business freedoms.
Case C-201/15 Aget Iraklis	Assessment of restrictions on business freedom and justification under EU law.	Used to illustrate the importance of protecting freedom to conduct business in the context of the NAP challenge.
Case 44/79 Hauer	Limits on property rights under Article 17 of the Charter justified by general interest.	Referenced in submissions on property rights implications for farmers affected by NAP and derogations.
Case C-24/19 A and Others	Conditions under which effects of unlawful instruments may be maintained temporarily to avoid significant implications.	Referenced in relation to discretion to maintain effects of unlawful measures.

Court's Reasoning and Analysis

The court recognised that the issues raised involve complex and novel questions of EU law, particularly concerning the scope and nature of environmental assessments required under multiple directives when derogations allow nitrate levels above standard limits. All parties agree that the legal questions are not acte clair, making a reference to the CJEU appropriate and likely inevitable.

The court analysed the submissions distinguishing between the positive obligations under the Nitrates Directive and WFD, which require Member States to adopt sufficiently rigorous protective measures, and the negative and procedural obligations under the Habitats Directive and SEA Directive, which require assessments to ensure no adverse effects but do not mandate substantive outcomes or duplication of assessments.

The court noted that the NAP regulates but does not authorise farm-level activities, and that assessments under the Habitats Directive and SEA Directive concern the plan itself, not the underlying agricultural projects. The court acknowledged the applicant’s concern that absence of farm-level assessments may necessitate broader plan-level assessment, but the respondents argued this does not invalidate the plan or alter assessment obligations.

The court further considered the interaction between the directives, the requirement for water bodies to be classified and monitored under the WFD, and the procedural requirements under the SEA Directive for environmental reports to include monitoring measures. The court found that while detailed monitoring descriptions may be required, the level of detail is subject to discretion and proportionality.

Regarding remedies, the court analysed the principle of sincere cooperation under Article 4(3) TEU, concluding that domestic courts have discretion in granting relief for breaches of EU law but must ensure the unlawful consequences are remedied. The court acknowledged the risk of legal vacuum if the NAP or associated regulations were quashed and the potential disproportionate impact on farmers’ fundamental rights, including rights to work, conduct business, and property.

On the validity of the Commission Implementing Decision, the court noted that it lacks jurisdiction to determine validity but must consider whether doubts exist sufficient to warrant a reference to the CJEU. The court concluded that such doubts do exist and a reference is appropriate.

The court declined to invoke the Eurobolt jurisdiction absent any party request, reserving that procedural innovation for future cases.

Holding and Implications

The court ordered that a preliminary reference be made to the Court of Justice of the European Union concerning nine of the twelve posed questions, reflecting the complex and unsettled nature of the EU law issues involved. The remaining questions were either undisputed or no longer arise on the facts.

The court directed the parties to comply with procedural steps to facilitate the reference, including submission of necessary pleadings and anonymisation preferences, and scheduled a mention to monitor progress.

The direct effect of this decision is to advance the resolution of the substantive EU law questions through the CJEU's authoritative interpretation, ensuring uniform application of EU environmental law. The court did not set new precedent but followed established principles on references, judicial discretion, and the interplay of EU directives.

The court reserved costs of the proceedings to be determined later.