Advocate General: Habitats Directive screening applies to temporal extensions of construction permits

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Case C-254/19 Friends of the Irish Environment v An Bord Pleanála

This opinion from Advocate General Kokott considers whether an extension of the duration of a construction permit triggers the appropriate assessment obligations in Article 6(3) of the Habitats Directive (91/43). It also deals with important questions regarding the standard of review that must be applied by national courts when reviewing permitting decisions, as well as their obligation to interpret national law in conformity with EU law.

Background

The preliminary questions were sent by the Irish High Court regarding a permit granted by the Irish Planning Board, An Bord Pleanála, for the construction of a gas terminal adjacent to two Natura 2000 sites. The original permit was granted back in 2008, requiring the construction works to be completed within a ten-year period. After the permit expired without the works ever having started, An Bord adopted a second decision in 2018 extending it by a further five-year period (the extension permit). Notably, An Bord did not carry out any scoping with regard to an appropriate assessment under Article 6(3) of the Habitats Directive in relation to the extension permit.
An environmental NGO, Friends of the Irish Environment, applied for judicial review of the extension permit, prompting the High Court to refer several questions to the CJEU regarding the obligation contained in Article 6(3) of the Habitats Directive.

When does an extension to a permit trigger Article 6(3) of the Habitats Directive?

The main question concerned whether the decision to extend the original permit triggered the appropriate assessment obligations in Article 6(3) of the Habitats Directive. First, the AG emphasised that the definition of a project in the EIA Directive is narrower than that in the Habitats Directive. She therefore rejected An Bord’s arguments that compared the extension permit with renewal of an operating license under the EIA Directive.

Second, the AG recalled that a decision to permit further works that contribute to achieving a single operation do not trigger Article 6(3) of the Habitats Directive. Therefore, she considered whether the extension permit and the original permit could be considered to form one single operation. She rejected this idea on the following grounds:

• The Advocate General considered the background to the CJEU’s case law on the concept of a “single operation”, which was intended to provide for a limited restriction of the assessment obligations in Article 6(3) to protect the legitimate expectation of developers whose projects were first authorised before the entry into force of the Habitats Directive. However, as the original permit was granted at a time when the essential requirements of Article 6(3) were already well known in Ireland, she considered that there was no reason to protect the legitimate expectations of the developer in this case.

• Irish law required the adoption of a new development consent in connection with any extension of the construction phase of the project. Therefore, development of the new gas terminal would not be possible without the extension permit.

• The extension permit would allow the works to commence for the first time. Therefore, the activity permitted by the extension permit that produced a risk of adverse effects on the protected sites, the prevention of such risks being the aim of an appropriate assessment under Article 6(3).

As a result, the AG opined that the extension permit constituted a decision to permit an independent project triggering Article 6(3) of the Habitats Directive.

What does the screening exercise consist of?

Article 6(3) of the Habitats Directive makes the requirement of an appropriate assessment of the implications of a plan or project conditional on there being a likelihood or a risk that it will have a significant effect on the protected site or sites concerned (the so-called screening exercise). The Irish Court asked what the screening exercise should consist of in the context of a temporal extension to a previous permit.

The Advocate General recalled the that the precautionary principle implies that a risk of a significant effect is deemed to be present where it cannot be ruled out, having regard to the best scientific knowledge in the field, that the plan or project might affect the conservation objectives for the site. This means that the earlier assessment in relation to the original permit would only be capable of ruling out that risk if it contained complete, precise and definitive findings capable of removing all reasonable scientific doubt as to the effects of the works.

Therefore, the screening exercise must: a) close any gaps in that earlier assessment; b) take account of any changes in the project that have occurred in the meantime, as well as any other plans or projects that have been added which, together, could have a significant effect on the site; c) take account of any changes in the protected habitats and species concerned and whether any new scientific knowledge is available.

These requirements, if followed by the CJEU, would confirm that national authorities enjoy a narrow margin of discretion when carrying out the screening exercise required under Article 6(3) of the Habitats Directive. This implies that national courts must apply a strict standard of review to such decisions, including the evidence on which they are based, to ensure that national authorities have stayed within that margin.

Duty of the court to interpret national law in accordance with EU law

An Bord granted the extension permit on the basis of a provision of Irish law that does require an appropriate assessment under Article 6(3) of the Habitats Directive. However, the claimants in the case did not expressly plead that the wrong legal basis in Irish law was used. Therefore, the Irish High Court asked the CJEU if it is obliged to interpret national law in accordance with EU law even when the parties have not asserted that interpretation.

The AG noted that the claimant had consistently asserted an infringement of Article 6(3) of the Habitats Directive. In this respect, the CJEU’s case law is clear that the duty to take all appropriate measures to achieve the result envisaged by an EU directive is binding on all the authorities of Member States, including the courts. This means that national courts must interpret national rules, as far as possible, in the light of the wording and the purpose of the directive concerned and, if this is not possible, refuse to apply such provisions. She concluded that it is not necessary for the parties to expressly plead which provisions of national law the courts should disapply or interpret in accordance with EU law. This is the job of national courts, in accordance with the obligation to achieve the result envisaged by the directive under Article 288 TFEU.

Comment

If the Advocate General’s opinion is followed by the Court, the case would provide welcome confirmation that Article 6(3) of the Habitats Directive can be triggered by a purely temporal extension to a construction permit. In addition, it provides a clear indication of the narrow margin of discretion enjoyed by national authorities in these particular circumstances and, by extension, the standard of review to be undertaken by national courts in relation to such decisions. In this regard, the opinion supplements the CJEU’s previous case law on the concept of “single operation” and the standard of review (e.g. see our analysis of case C‑411/17 Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderenconfirms). Finally, it is clear that there is no easy way for national courts to avoid their duty to interpret provisions of national law in conformity with EU law provisions that have been identified by the parties to the case and, if necessary, disapply such provisions

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Henrique Craveiro