Court of Justice comes down hard on persistent failures to assess the environmental impacts of projects

Case C-261/18 Commission v Ireland

This judgment clarifies Member States’ obligations when a project has been permitted and work has commenced without prior environmental impact assessment (EIA). Although the judgment was handed down in the context of infringement proceedings against Ireland, many of the principles espoused by the Court are relevant to challenges brought by members of the public and environmental organisations against public authorities in national courts.

Background – case C-215/2005 Commission v Ireland

In 2008 the Court of Justice handed down its judgment in case C-215/06 Commission v Ireland. This infringement judgment concerned two separate but related issues. First, the way in which Ireland had transposed the Environmental Impact Assessment Directive (EIA Directive), including the legislative framework allowing for routine regularisation of permits granted in breach of the EIA Directive (known as “retention permission”). The second issue concerned the particular case of the Derrybrien windfarm, one of the largest windfarms in Europe at the time, which was permitted and constructed despite the absence of an EIA. The Court found Ireland to be in breach of the EIA Directive on both counts. Following the judgment, Ireland passed legislation designed to remedy its shortcomings regarding transposition of the EIA Directive, including the introduction of a new procedure allowing for regularisation of permits in specific circumstances (known as “substitution consent”, which continues to be controversial in Ireland). However, the permits for the Derrybrien windfarm were not submitted to the new regularisation procedure and an EIA was never conducted. Over nine years later, the Commission finally instituted new proceedings before the Court of Justice under Article 260(2) TFEU on the basis that no substantive progress had been made to comply with the judgment with regard to the Derrybrien windfarm.

The judgment – case C-261/18 Commission v Ireland

First, the Court recalled the obligations on a Member State when a project has been authorised in breach of the obligations to carry out a prior EIA. It held that the principle of sincere cooperation in Article 4(3) TEU requires every organ of the Member State concerned to take the measures necessary, within the sphere of their competence, to remedy the failure to carry out an EIA. This could be done, for example, by revoking or suspending permits already granted in order to carry out such as assessment. Second, regarding the possibility to regularise such a failure a posteriori, this should be a possibility in exceptional cases only and must not offer the persons concerned the chance to circumvent the rules of EU law or to dispense with their application. In addition, an environmental assessment carried out in the context of a regularisation procedure must take into account environmental impacts from the time that the project was completed.

The Court noted the new regularisation procedure adopted by way of legislation to ensure compliance with the 2008 judgment. Nevertheless, the Court concluded that Ireland had failed to carry out a new environmental impact assessment of the wind farm within the context of the regularisation of the Derrybrien permits.

Ireland put forward two main justifications for this failure, both of which were rejected by the Court. First, Ireland argued that the decision to submit the consents to the regularisation procedure was a matter for the competent local authorities and not for the government. Similarly, the government could not require the wind farm operator to apply for regularisation, despite it being a wholly owned subsidiary of a semi-public sector entity.

In response, the Court recalled that a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under EU law. Therefore, Ireland cannot rely on national provisions limiting the possibilities for commencing a regularisation procedure to justify its failure to comply with the judgment of 2008, particularly since those procedures were, themselves, adopted to comply with the same 2008 judgment. In this respect, every organ of a Member State, including local authorities, are required to take all measures necessary, within the sphere of their competence, to remedy the failure to carry out an environmental impact assessment of the wind farm.

With regard to the failure of the windfarm operator to apply for regularisation, the Court held that, since the operator is controlled by Ireland, it is an emanation of that Member State, and therefore also bound by the obligations arising from EU directives.
Finally, Ireland argued that because the deadline for challenging the consents in the national courts had expired, it would be against the principle of legal certainty and of the protection of legitimate expectations to revoke the consents. The Court responded by recalling that the infringement procedure is based on the objective finding that a Member State has failed to fulfil its obligations under EU law and that withdrawal of an unlawful provision is permitted in EU law. Therefore, Ireland could not rely on legal certainty and legitimate expectations derived by the operator of the wind farm from acquired rights to contest the consequences flowing from Ireland’s breach of the EIA Directive. Indeed, such a position would go against the Court’s previous case law which prevents projects from being simply deemed to be lawfully authorised as regards the obligation to assess their effects because the deadline for challenging them in court has expired. However, the Court recalled that in these circumstances, economic operators may exercise their rights to bring a claim for compensation for the damage sustained as a result of the State’s actions or omissions.

The Court imposed a lump sum payment of 5 million euros, plus a penalty payment of EUR 15,000 for each day until the date of compliance with the 2008 judgment.

Comment

This judgment contains little that is novel. Yet, it ties the different strands of previous case law together to create a strong judgment on Member States’ obligations to remedy failures to carry out a prior environmental impact assessment. Such a clear signal from the Court can be used in actions brought by members of the public in national courts to challenge similar situations, where it can often be difficult for claimants to secure an effective remedy. In particular, the Court’s insistence that regularisation is for exceptional cases only and that permits long granted may be retracted and could trigger State liability is a clear indication of the gravity of the infraction. It is also a helpful reminder that the obligation to remedy the lack of prior EIA binds every organ of the State, including private entities under public control. In particular, Member State governments and public authorities (in the case of a direct challenge by members of the public) cannot hide behind the unwillingness of separate publicly controlled bodies to take remedial action.