EU ENVIRONMENTAL PUBLIC LAW
Richard Gordon QC (Brick Court Chambers, London)
I am grateful for so generous an introduction. It almost makes me wish that my parents could have
been present. My Father would have admired it, and my Mother would have believed it! I have to
say that I am delighted to be in Dublin and, particularly, at Trinity College. My elder son spent his
undergraduate years at Trinity. But he never managed to have a room in college. So this is one
area at last where I can claim to have done something that he has not.
I am honoured by the presence of so many distinguished guests here today. But I have to confess
that I feel rather like that new, young recruit in the British army in the First World War, who was
asked by his superior, ‘is that the sound of the enemy artillery?’ and he replied, ‘no sir; just the sound
of my teeth chattering.’
My experience as a barrister in London lies in English public law with a number of environmental
cases and a number of EU cases in Luxembourg many of which have been environmental in nature.
It is, however, true that it was with an EU environmental public law case that any public law
reputation I have was founded. It was the only case recorded in English law in which the brilliant
but intellectually terrifying Lord Hoffmann said that he had been persuaded by a barrister to change
his mind.
It was in the RSPB Bird case which concerned the Birds Directive. We were arguing (and I shall come
back to this case at the end) that special protection areas had to be designated under the Directive
whatever the social and economic consequences of the designation.
The fact that widespread
unemployment would occur on Lappel Bank in England was nothing to the point as far as EU law was
concerned. I was told afterwards that before I started all three judges in the Court of Appeal (Lord
Hoffmann being one of them had decided the case against me).
The exchange went something like this.
Me: My Lords, this is a case about the Birds Directive.
Lord Hoffmann: We know that.
Me: We say that the Birds Directive is, as its title shows, wholly and exclusively about birds.
Lord Hoffmann (jaw dropping as far as it is forensically possible for a Lord Justice of Appeal’s jaw to
drop): So you say that in a case like this EC law is birds-driven.
Me: My Lord, I do.
Believe it or not, Lord Hoffmann changed his mind in those opening minutes.
With that background in mind, please be charitable when I attempt to say a few words about EU
environmental public law.
What I want to do, in the time allotted, is to state but a single proposition. The proposition is that EU
law compels practitioners to think about, and to argue, and decision-makers (including judges) to
decide public law cases using a entirely different conceptual framework from that used in ordinary
administrative law cases. That idea is easy enough to state. But, as I can testify from my English
law experience, it is often quite difficult to remember and to apply in practice. When, of course, the
distinctive nature of EU requirements is forgotten then EU law is violated often with consequences
for the Member State.
I want to ask – by reference to some examples - why this is often forgotten. In so doing I will try to
relate it to Ireland and to wind up with a shopping list of things to remember.
There is, I believe, a fundamental dissonance between - on the one side - EU law and environmental
law and, on the other, public law. Public law consists, essentially, of a series of controls over legal
proceedings. Its rationale is to protect public bodies (which would include environmental regulators
and other environmental State bodies) from vexatious litigants and delay.
By contrast, EU and
environmental law (a fortiori when the two are combined) are giving (or conferring) something
substantive.
The imperatives of EU and environmental law are fuelled by a number of doctrines.
example, the doctrine of practical compliance (Articles 10 and 249 of the EC Treaty).
Take, for
In the first
drinking water case the UK’s defence that it had done all it could to implement the Drinking Water
Directive placing restrictions on the concentrates of nitrates in water was not an answer to the
breach of EU law that had occurred. This is because practical compliance is absolute rather than
relative in nature.
In contrast, in public law the Court has discretion to refuse relief and it is, therefore, highly likely in a
conventional public law case that a defence such as that mounted by the UK in the drinking water
case would persuade the Court not to grant relief.
Similar points can be made in respect of other EC environmental doctrines such as the principle of
sustainable development and the precautionary principle. They can also be made in respect of non
environmental EC doctrines such as the principle of effectiveness. All these principles strengthen
environmental protection whereas the natural tendency of public law is to restrict protection. In
that context, consider for example the rules on standing, delay and lack of merits review.
One need only ask a question to see how, without more, environmental law would receive fairly
short shrift from public law. The question is ‘Do trees have standing?’ The answer, of course, in
our somewhat anthropocentric world that trees would not have a sufficient interest to bring
proceedings.
Only with the added protections afforded by a separate legal regime such as that
afforded by EC principles can domestic environmental public law be forced to broaden its scope.
I should, perhaps, begin therefore by emphasising the significance of EU law to public environmental
law. I quote from the European Environmental Law website:
‘At this point in time, hundreds of [EU] measures relating to the environment have been
established, having an influence on almost all aspects of national environmental law. More
than half of national environmental law of the Member States is at present influenced or
prescribed by Brussels in this way.’ 1
These measures have, of course, been established as a result of prior Treaty obligations. Indeed,
environmental protection has become increasingly important in terms of EC obligations and shows
little sign of abating. The original Treaty of Rome contained no express provision for environmental
measures. But that has changed over the years as the result of the exercise of more general Treaty
powers.2 Now, for example, Article 2 EC requires the Community to promote, amongst other things,
‘a harmonious and balanced development of economic activities’ together with ‘a high level of
protection and improvement of the quality of the environment.’
development of ‘a policy in the sphere of the environment.’
Article 3 EC now recognizes the
Articles 174-176 [130] EC contain
provision for express legislative environmental measures on the part of Member States.
Against that background, it will surprise you, perhaps, that of the completed cases coming before
the ECJ in 2008, environmental law came second with 43 completed cases, being trumped only by
the ubiquitous agriculture case-load which, of course, fuels so much national discontent amongst
the Member States.
Of course, if the Lisbon Treaty is ratified by all the Member States (Ireland may, as one of the last
States not to have ratified, do so on 2nd October) the EU Charter will become legally binding thereby
See European Environmental Law (‘EEL’) website at http:/www.eel.nl
As, most notably, under Article 308 [235] EC. However the Single European Act 1986 added Articles 174176 (see text) and the Maastricht Treaty amended Articles 2-3 EC.
1
2
adding to the scope for EU environmental public law disputes.
As adopted at Lisbon, Article 37
stipulates that ‘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.’
Given its importance, it is, at first sight, surprising how often the EU dimension is forgotten in public
law challenges to environmental decisions and in public law decision-making including judicial
rulings. The reasons for this are various and not always easy to follow when one is in the thick of a
case. Before turning to some of the issues that I think this might cause for environmental public law
in Ireland, I hope I may be permitted to offer some initial anecdotal material stemming from my
more general experience as a public law practitioner in England.
It should, first, be borne in mind (and I do not mean this frivolously) that the ECJ in Luxembourg
does not necessarily think rationally. It is a Court often driven more by policy-imperatives than by
logic. For a national court such as the Court of Appeal in England (and doubtless in Ireland too) this
can be very difficult to understand especially when the policy driving the ECJ is different from that of
the domestic court.
This struck me forcibly when arguing the case of Yvonne Watts v. United Kingdom in the domestic
courts. That was not an environmental case but it illustrates my point. In fact, it was about the
legality of waiting lists for NHS treatment. Mrs Watts needed a double hip replacement and because
of lengthy NHS waiting lists in England wanted free NHS treatment in Belgium. This was refused by
her local health board.
As so often, there was a tremendous battle over whether particular questions of EU law arising from
the interpretation of particular EU legislation should be referred to the European Court of Justice
(‘ECJ’) in Luxembourg. In the High Court before Mr Justice Munby we succeeded in persuading him
that at least three decisions of the ECJ favoured our argument so that there was absolutely no need
to refer the case for a preliminary ruling.
But when the case reached the Court of Appeal these
decisions cut no ice whatever and the Court of Appeal referred the case to the ECJ for a fourth
round.
I was, in particular, struck by what, at one point, the former Master of the Rolls said.3 He said this:
3
See paragraph 110 of the judgment.
‘We see the force of Mr Gordon's submissions that the Court of Justice has already addressed
and decided the main questions which this appeal raises. Nevertheless, we are troubled by
the conclusion to which those decisions in combination apparently lead….’
Decoded, and shorn of the comity which is supposed to exist between the ECJ and our domestic
courts, this means either that the Court of Appeal found the outcome of the ECJ’s reasoning in three
of its decisions impossible to understand or, alternatively, all too easy to understand but disagreed
with the policy implications.
Whereas England (and I suspect Ireland) had a policy of resource
allocation which often necessitated waiting lists, the ECJ’s policy derived from the general absence
of waiting lists in Europe because of compulsory insurance.
The ECJ was not over-concerned to
ensure logical consistency in its reasoning. Its policy was to ensure that the Treaty freedom of free
movement of services for (in our case) Belgian doctors was not held up because of waiting lists in
England.
The other example in my own practice that I want to offer for consideration is an EU environmental
public law case. Here, the difficulty was caused not so much by EU policy imperatives as, rather, by
a failure on the part of the national decision-maker to understand the difference between, on the
one hand, an autonomous EU Treaty concept and, on the other, a cherished national idea of what
the word meant.
The case went up to the House of Lords and is reported as R v. North Yorkshire County Council, ex p.
Brown and Cartwright.4
The issue there was whether an environmental impact assessment was
required by EC Council Directive 85/337 before the local mineral authority could determine
conditions to be attached under the Planning and Compensation Act 1991 to the continued
operation of a quarry (where old and heavily out-of-date planning permissions had been granted in
some cases as long ago as the 1950s).
The Directive reflected obligations under, amongst other
Treaty provisions, Article 235 of the Treaty which, in turn, enabled the Directive to adopt particular
environmental policies to give effect to Article 3(k) of the Treaty.5
Under the Directive, as you probably know, an environmental impact assessment is required in the
case of ‘development consent.’ As defined by the Directive, development consent is a ‘decision of
the competent authority or authorities which entitles the developer to proceed with the project.’
However, under the Planning and Compensation Act 1991 Parliament created a machinery by which,
4
[2000] 1 AC 397
Article 235 provides that ‘if action by the Community should prove necessary to attain, in the course of the
operation of the common market, one of the objectives of the Community and this Treaty has not provided the
necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after
consulting the European Parliament, take the appropriate measures.’
5
on penalty of forfeiting the benefit of a planning permission already granted (albeit very many years
earlier), owners of land had to register and then submit themselves to the decision of the mineral
planning authority as to what conditions should be imposed.
Unless the planning authority was
given the opportunity to impose such conditions, the original (‘old’) planning permission became
void.
The local mineral authority argued that no environmental assessment was needed because planning
permission had already been granted.
There was, therefore, the authority reasoned, no
requirement for development consent but only for the imposition of new conditions on a permission
that had already been granted. Clearly, so the argument went, the imposition of conditions to an
already extant planning permission did not constitute development consent since there had already
been a planning permission. The two concepts were the same.
But that was authority’s mistake. The authority equated the English notion of planning permission
with the EU concept of development consent. The two were (emphatically) not the same.
Giving the only speech, Lord Hoffmann said this:
‘Is this sufficient to bring it within the European concept of a development consent? I think it
is. The purpose of the Directive … is to ensure that planning decisions which may affect the
environment are made on the basis of full information. In Case C-72/95 Aannemersbedrijf
P.J. Kraaijeveld BV v. Gedeputeerde Staten van Zuid-Holland [1996] E.C.R. 1-5403, the
European Court of Justice said that "the wording of the Directive indicates that it has a wide
scope and a broad purpose." A decision as to the conditions under which a quarry may be
operated may have a very important effect on the environment. It can protect it by imposing
limits on noise, vibration and dust, requiring the preservation of important natural habitats or
the reinstatement of damage to the landscape and in many other ways. Without such
conditions, the unrestricted operation of the quarry might well have a significant effect on the
environment. It cannot therefore be said that the environmental effect of the quarry was
determined once and for all in 1947. One of the purposes of the 1991 Act was to allow mineral
planning authorities to assess those effects in the light of modern conditions.
The position would be different if, upon a proper construction of the United Kingdom
legislation, the determination of conditions was merely a subsidiary part of a single planning
process in which the main decision likely to affect the environment had already been taken. In
such a case, the environmental impact assessment (if any) would have been made at the
earlier stage and no further assessment would be required.’
I hope it is not doing injustice to the reasoning of North Yorkshire County Council to suggest that its
mistake as mineral regulator in that case was to assume that concepts of domestic law (in casu
planning permission) were synonymous with those of EU law (in casu development consent) merely
because they sounded similar.
One thing we see from this case is the purposive nature of interpretation of EU law. In considering
the domestic statute, proper account had to be given to the underlying EU purpose and the EU
obligation had to be applied.
It was not enough (as it would have been in a purely domestic
context) to read the 1991 Act and to note the omission of any requirement for an environmental
impact assessment or to read that Act and treat the notion of condition-making as entirely different
from a new planning permission. What was required was a purposive application of EU law.
As this case also shows, EU purpose is wider than merely interpreting a domestic statute. In the
North Yorkshire case the 1991 Act itself was not necessarily interpreted to require an environmental
impact assessment.
What happened there was that, in any event, the Directive in question was
directly effective and its purpose had therefore to be applied in domestic law notwithstanding the
fact that Parliament had plainly not considered the effect of that Directive when enacting the
Planning and Compensation Act 1991.
Let me move to another issue in the present context (that context being the difficulty of always
understanding the EU dimension in a national setting) that I understand to be confronting your
courts in Ireland at the moment.
The conventional test in Ireland for whether a public law decision is unlawful is still strongly
influenced by the ruling in 1992 of Finlay CJ in a case called O’Keeffe v. An Board Pleanala6 who said
this:
‘[T]he circumstances in which the courts can intervene on the basis of irrationality...are
limited and rare.’
On that basis, a court would not interfere with an administrative decision because it would have
come to a different conclusion or because (again I cite Finlay CJ) ‘the case against the decision made
by the authority was much stronger than the case for it.’
For the court to intervene, the CJ
observed, ‘[I]t is necessary [to establish] that the decision-making authority had before it no relevant
material which would support its decision.’
Now this is an extremely high threshold.
That test has been applied by the Supreme Court in a
number of cases but, surprisingly, the question of whether it can possibly be correct in a
fundamental rights context has not yet been addressed by that Court. My understanding is that as
long ago as 2003 in the judicial review case of Meadows v. Minister for Justice, Equality and Law
Reform7 Gilligan J in the High Court, having found against the applicant, granted leave to appeal on a
point of law of exceptional public importance, namely ‘whether or not in determining the
6
7
[1993] 1 I.R. 39
[2003] IEHC 79
reasonableness of an administrative decision which affects or concerns constitutional rights or
fundamental rights, is it correct to apply the standard as set out in O’Keeffe v. An Bord Pleanala?’
For reasons which I do not pretend to understand, the case did not come on before the Supreme
Court for hearing until late 2008 and I have not been able thus far to find any ruling by the Supreme
Court on this exceptionally important question.
The point I want to make is this.
The decision in Meadows when it comes (if it has not already
come) will be of some importance to environmental EU public law. Why is that?
There are two reasons. First, (although the precise nature of the obligation in EU law needs to be
properly understood) fundamental rights under the ECHR as elucidated by the European Court of
Human Rights in Strasbourg may be highly relevant to obligations in an EU context. Secondly, the
Strasbourg Court has given rulings recognising certain environmental fundamental rights which I
suspect will continue.
As to the recognition of fundamental rights in EU law, importantly, the ECHR – whilst not a direct
source of EC law – has assumed great importance in ECJ judgments which treat it as having a ‘special
significance’ in interpreting fundamental rights as one of the general principles of EC law.
So,
provided that a case falls within the scope of EC law, deploying the ECHR may be a gateway to the
wider relief afforded in EC cases generally.
Although the ECJ may not always decide the ambit of an ECHR provision in the same way as the
European Court of Human Rights in Strasbourg, the likelihood is that, in practice, it will do so. Thus,
environmental decisions of the European Court of Human Rights may be as relevant to an EC
challenge as they are to an HRA challenge.
By far the most likely ECHR provision to apply in environmental cases is Article 8 (respect for private
and family life).
An interesting example of the relevance of that provision to environmental
litigation is afforded by the facts of a case (decided in Strasbourg) Guerra v. Italy.8
There, the applicants lived approximately 1 kilometre from a chemical factory which produced
fertilizers and other chemicals. In 1988 the factory was classified as high-risk according to criteria
set out by Presidential Decree. The complaint was that the authorities had not taken appropriate
action to reduce the risk of pollution by the factory and to prevent the risk of accident.
8
(1998) 26 EHRR 357.
In the event, although other ECHR provisions were argued, the European Court of Human Rights
decided in the applicants’ favour only on Article 8. The Court held that Article 8 does not merely
compel the State to abstain from interference by public authorities but also imposes a positive
obligation.
The Court reiterated the point that severe environmental pollution may affect
individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their
private and family life adversely. There was, in the instant case, a violation of the positive obligation
under Article 8 as a result of the authorities; failure to provide them with relevant information about
risk and how to proceed in the event of an accident when (as happened) toxic emission occurred.
However, whether or not Article 8 is either engaged or gives rise to an unjustified interference is as
much a question of degree in the environmental context as it is in other contexts. The facts of a
serious case such as Guerra, or Lopez Ostra9 have been held both to engage and to violate Article 8.
Now, I do not know how the Irish Supreme Court will decide (or has decided) Meadows.
But it
would simply not be possible for the Supreme Court – if that were the issue before it - to hold that
as a matter of EU law the test for whether or not EU fundamental rights had been complied with was
confined to the standard set out in O’Keeffe.
The test in EU law is, essentially, one of EU
proportionality which involves, indeed, mandates much greater scrutiny of the factual merits of a
particular decision than does conventional judicial review.
Reverting to my main theme of how and why national decision-makers, practitioners and courts so
often misunderstand EU environmental law, the difficulties can, I think, be reduced to three in the
EU fundamental rights context.
First, judges (and it is has been as true of England as of Ireland) tend to be several years behind the
times.
Ireland had its human rights legislation (the European Convention on Human Rights Act
2003) five years after England passed the HRA 1998 and in England it took some years for the courts
to understand the difference between Wednesbury rationality (essentially, the O’Keeffe standard)
and EU/ECHR proportionality.
Secondly, the connection between fundamental rights and EU law is – even now – not properly
understood in most jurisdictions. This is, perhaps, unsurprising given that the ECJ itself took many
years to integrate fundamental rights into its own jurisprudence.
9
Lopez Ostra v. Spain (1995) 20 EHRR 277 (held: construction of a waste treatment plant close to the
applicant’s home was a breach of Article 8 because, on the facts, a fair balance had not been struck between the
interest of the town’s economic well being and the applicant’s effective enjoyment of her right to respect for her
home and her private and family life. The facts there included health problems caused by nauseating smells,
pestilential fumes and persistent noise emanating from the waste treatment plant)..
Thirdly (and finally) in the specific context of the environment, the notion of fundamental rights is
only really starting and still has some way to go. This means that EU environmental fundamental
rights issues – especially in relation to Article 8 ECHR – have probably not yet surfaced in an Irish
case.
Nonetheless, the three legal regimes with which the UK and Ireland both have to deal (domestic law,
the ECHR and the EU) all inter-act. A decision in one of them may affect another. It is, therefore,
crucial in my view for arguments and decisions in cases such as Meadows to have an eye on the
wider ramifications in terms of the EU.
What I am seeking to illustrate from different directions (albeit with reference to EU public law) is
that unfamiliarity with the different ways in which EU law manifests itself in terms of legal obligation
is likely to lead to serious breaches of EU law.
In the case of Ireland this has been evidenced, I think, from a number of fairly recent ECJ decisions.
I intend to confine myself by way of example to the recent ruling of the ECJ (on 16 July 2009) in
response to an infringement action brought by the EC Commission against Ireland for alleged
breaches of the Public Participation Directive (2003/35/EC) the object of which was to give effect to
the Arhus Convention on access to information, public participation in decision-making and access to
justice in environmental matters).
What this case demonstrates, I think, is that (as I have sought to show) as far as EU public law is
concerned it is simply no good relying on familiar and traditional patterns of justice or ways of
looking at public law or national concepts.
It is essential (and will increasingly be essential) to
grapple with the substance of the Community obligation in question.
The infringement action – memorably called, with the ECJ’s strong predilection for catchy soundbites, Case 427/07 (EIA and access to justice) – concerned five specific complaints made by the
Commission that Ireland had, in different ways, failed to transpose the requirements of the Public
Participation Directive as inserted into two Directives, one of them being the EIA Directive 85/337.
Transposition had to have occurred by June 2005. Three of the Commission’s arguments were held
to be unfounded but two were upheld. I want, briefly, to consider the two complaints that were
upheld and say a few words about one of the complaints that was not upheld.
Critically, a new Article 10a was inserted by the Public Participation Directive into the EIA Directive.
As I have foreshadowed, the amendment was made to give effect in EU law to the Arhus
Convention. The Arhus Convention is a most significant international Treaty in the environmental
field It entered into force on October 30, 2001. One noteworthy element of the Convention is the
strong emphasis that is placed on ‘access to justice’ in environmental matters. The Convention sets
down basic requirements regarding ‘access to justice’ with a view to ensuring that information and
participation rights are ‘effective’ and enforceable.
Against that background, Article 10a reads (materially) as follows:10
‘[1] Member States shall ensure that, in accordance with the relevant national legal system,
members of the public concerned:
(a) having a sufficient interest, or alternatively,
(b) maintaining the impairment of a right, where administrative procedural law of a
Member State requires this as a precondition,
have access to a review procedure before a court of law or another independent and
impartial body established by law to challenge the substantive or procedural legality of
decisions, acts or omissions ...
[3] What constitutes a sufficient interest and impairment of a right shall be determined by the
Member States, consistently with the objective of giving the public concerned wide access to
justice...
[5] Any such procedure shall be fair, equitable, timely and not prohibitively expensive.
[6] In order to further the effectiveness of the provisions of this [A]rticle, Member States shall
ensure that practical information is made available to the public on access to administrative
and judicial review procedures.’
Central to the infringement case was paragraph 5 of Article 10a. The review procedures referred to
in Article 10a para. 1. Must, by paragraph 5, be ‘fair, equitable, timely and not prohibitively
expensive’ (Article 10a para. 5).
It was always possible that this specific requirement could have a dramatic impact on certain aspects
of Irish (and for that matter English) judicial review practice and procedure, particularly in the
context of costs and delay. But no one, I suspect, really thought it would.
What exactly was encompassed in the phrase ‘prohibitively expensive’? As with so many EU texts,
the text of the amended Directive did not (and does not) provide any guidance on this important
practical point. But those used to running judicial review cases know that it is one of the less costly
legal procedures since there is virtually no cross-examination or investigation of the merits
10
I have added paragraph numbering for ease of reference.
However, the Commission complained that in relation to judicial review costs there was no
applicable ceiling as regards the amount that an unsuccessful applicant might have to pay. This was
directly related to the fact that there was no legal provision in Ireland which referred to the fact that
the procedure should not be prohibitively expensive.
The ECJ agreed with the Commission. It reasoned as follows:
‘92 As regards the fourth argument concerning the costs of proceedings, it is clear from
Article 10a of Directive 85/337 … that the procedures established in the context of those
provisions must not be prohibitively expensive. That covers only the costs arising from
participation in such procedures. Such a condition does not prevent the courts from making
an order for costs provided that the amount of those costs complies with that requirement.
93 Although it is common ground that the Irish courts may decline to order an unsuccessful
party to pay the costs and can, in addition, order expenditure incurred by the unsuccessful
party to be borne by the other party, that is merely a discretionary practice on the part of the
courts.
94 That mere practice which cannot, by definition, be certain, in the light of the requirements
laid down by the settled case-law of the Court, cited in paragraphs 54 and 55 of this
judgment, cannot be regarded as valid implementation of the obligations arising from Article
10a of Directive 85/337…’
95 The fourth argument is thus well founded.’
Now this is quite an alarming judgment.
rejected this argument.
The A-G had prepared an opinion which would have
It is clear that there will be considerable wider effect on public law
generally. Plainly, if the costs of environmental public law litigation have to be cut, it will not be
long before that ripple effect cascades over into other areas of public law.
The other complaint of the Commission that was upheld was the complaint that criticised Ireland for
not having made available to the public practical information on access to administrative and judicial
review procedures, as required by paragraph 6.
Ireland argued unsuccessfully that it had fulfilled that obligation, since Order 84 of the Rules of the
Superior Court is a statutory provision available for public inspection and there is, in addition, a
website for the Courts Service of Ireland which describes the different courts and the limits of their
jurisdiction, and allows for access to High Court judgments.
The ECJ took a different view. It observed that one of the underlying principles of Directive 2003/35
was to promote access to justice in environmental matters, along the lines of the Arhus Convention
That being so, the obligation to make available to the public practical information on access to
administrative and judicial review procedures laid down in paragraph 6 amounted to an obligation to
obtain a precise result which the Member States had to ensure was achieved.
In the absence of
any specific statutory or regulatory provision concerning information on the rights thus offered to
the public, the mere availability, through publications or on the internet, of rules concerning access
to administrative and judicial review procedures and the possibility of access to court decisions could
not be regarded as ensuring, in a sufficiently clear and precise manner, that the public concerned is
in a position to be aware of its rights on access to justice in environmental matters
As with the tough line of the ECJ on the Irish costs rules in judicial review, it is likely that the ECJ’s
ruling will impact on other areas of public law. In terms of the general approach there is also likely, I
believe, to be an impact in time on other areas of environmental practice as, for example, on
entitlement to civil legal aid and advice in the context of challenges to decisions concerning projects
that are subject to EIA. It is, I gather, well-known that it is currently very difficult to secure civil legal
aid with a view to mounting a challenge by way of judicial review in a planning/environmental case.
That is, I suspect, likely to change.
Nor should we forget that the Commission had also complained in the infringement case that I have
been discussing about the adequacy of judicial review as a procedure sufficient to comply with
paragraph 1 of Article 10a.
The ECJ dismissed the complaint because it did not have before it a
complaint of a failure in transposition. But the Court did not rule that the argument, in principle,
was flawed.
My own view is that Ireland was a little unlucky in this particular case. But that is not really the
point.
The point that I want to drive home in the short time available is that an adherence to
wedded ideas of familiar domestic ideas of substantive and procedural legal requirements in
environmental public law cannot survive against the very different concepts that prevail in the EU
context.
As far as Ireland is concerned the infringement case does not tell the whole story as far as noncompliance with environmental EU law requirements go. If it stood alone one might offer tears and
sympathy. But it does not.
Ireland’s record in terms of EU law compliance in this context is not, I am told, a good one. This may
have something to do with the fact that the Irish courts do not seem to make references for
preliminary rulings to the ECJ under Article 234 EC in environmental cases. Certainly, I was not able
to find one considered by the ECJ or even one lodged at the Court in recent or even past years.
A preliminary ruling – which seeks clarification of the law from Europe when the national court is
uncertain - is to be contrasted with infringement proceedings under Article 236 EC which will arise if
the Member State ostensibly breaches EC law.
In contrast with its record of null points in Article 234 references, Ireland has an unenviable record in
infringement proceedings, the judgment of 16 July which I have been discussing being, sadly, only
one of numerous such cases.
For example, in 2008 four infringement proceedings were closed
against Ireland, at least two of which concerned the environment and, in particular, the scope of the
EIA Directive. It is fair to say that some of the infringement proceedings have been unsuccessful
because of procedural or other defects in the Commission’s approach.
Many of these cases are
discussed in my colleague Margaret Gray’s distinguished paper on Recent Developments in
Environmental Law Enforcement by the ECJ – Spotlight on Ireland which was delivered at University
College, Cork in April of this year and I will not trespass on her territory (but the Paper can be found
on her home page at the Brick Court Chambers website, of which we are both members).
In the light of all this, my short shopping list for ‘reform’ (if that is the right word) would include the
following:
1. It should always be borne in mind that EU law is heavily policy-driven, much more so than
most areas of national law.
2. As with the ECHR, EU legal concepts – even where they sound similar to those used in
domestic law – have their own autonomous meaning. If there has not been clarification as
to the meaning, then elucidation of the meaning should come not from looking at the
national law framework and language but, rather, first to the EC Treaty and, thereafter, to
any relevant secondary EU legislation.
3. The general principles of EU law should never be forgotten. Those principles include, most
notably, the principle of effectiveness.
This means that EU law rights must be made
effective and must not, in practice, have their substance eroded.
The general principles
should be applied in any case within the ‘reach’ of EU law not only to the EU provisions in
question but also to the interpretation of national legislation and to the understanding of
what legal obligations lie against emanations of the State.
4. It should never be assumed that merely because a national procedure, concept or doctrine
has subsisted for years without complaint, the situation can continue. Finally,
5. It should always be remembered that intrinsic to EU law is the fact that the ECJ (and CFI) will
always have a different mind-set to those of the national courts. This is because they have
the often conflicting interests of the 27 sovereign states comprising the Union to consider.
They have to consider legal issues panoramically rather than nationally.
This will often
produce a situation which, clear though it may be to the national court, us very far from
clear as a matter of EU law. When in doubt then, at least at the highest level, references for
preliminary rulings should be made under Article 234.
Lest it be thought that Ireland has come under the firing gun in this short discussion, I will finish by
mention again of the Birds Case which has particular resonance to the last point in my shopping list.
That was a case where two members of the English Court of Appeal thought that the case was act
Claire against the RSPB. One member of that Court (Lord Hoffmann) – persuaded by the brilliant
advocacy conducted before him - thought that the case was clear in our favour.
What should the Court have done? Consistently with my recommendations here it ought to have
referred to the ECJ. But the Court did not refer, considering that their judicial oaths required them
(by a majority) not to refer. They gave leave to appeal to the House of Lords and (what happened?)
the House of Lords made a reference which the RSPB won!
The Advocate General made mention of this point in his Opinion. This is what he said:
‘In the proceedings before the national courts, and in particular the Court of Appeal,
both main parties argued that the principal question, namely whether economic
requirements were relevant in the framework of decisions by Member State
authorities on the designation of SPAs, was "acte clair" in their favour. Lord Jauncey
of Tullichettle, speaking in the House of Lords, records the surprising fact that two
Lords Justices of Appeal considered the matter to be "acte clair" that the Secretary of
State was entitled to have regard to economic requirements, whereas the third
considered it to be "acte clair" the other way. While the court has had to interpret
Article 4 on a number of previous occasions, and though I consider that it is possible
to reach a clear and unequivocal answer to the questions submitted by the referring
court. I rather doubt that "the correct application of Community law [was] so obvious
as to leave no scope for any reasonable doubt as to the manner in which the question
raised [should] be resolved", to adopt the test laid down by the court in CILFIT v
MINISTRY OF HEALTH (Case 283/81: [1982] ECR 3415, [1983] 1 CMLR 472, para
[16]). Faced with opposing claims that a particular matter is "acte clair", national
courts might well bear in mind the observations, in the same case, of Capotorti AG.’
So, England has in the past been every bit as guilty of neglecting the often obscure and, let us face it,
to a national court sometimes incomprehensible requirements of EU environmental public law.
Focusing on English defaults in this area is perhaps the most appropriate and certainly more
diplomatic place to end this discussion in the Republic of Ireland.