"39 In addition, in order to ensure effective judicial protection in the fields covered by EU environmental law, it is for the national court to interpret its national law in a way which, to the fullest extent possible, is consistent both with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention and with the objective of effective judicial protection of the rights conferred by EU law (see, to that effect, judgment of 8 March 2011, Lesoochranárske zoskupenie , C-240/09, EU:C:2011:125 , paragraphs 50 and 51).
To that end, it is incumbent upon the national court to ascertain, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by that law, whether it can arrive at an interpretation of domestic law that would enable it to apply effective coercive measures in order to ensure that the public authorities comply with a judgment that has become final, such as, in particular, high financial penalties that are repeated after a short time and the payment of which does not ultimately benefit the budget from which they are funded."
Those statements are about the interpretation of domestic law, not giving applicants a free pass to ignore domestic law (as the applicants have done here by failing to even seek an extension of time).
At para. 42 the Grand Chamber went on:
"In that regard, it should be recalled that, where it is unable to interpret national law in compliance with the requirements of EU law, the national court, hearing a case within its jurisdiction, has, as an organ of a Member State, the obligation to disapply any provision of national law which is contrary to a provision of EU law with direct effect in the case pending before it (judgments of 9 March 1978, Simmenthal , 106/77, EU:C:1978:49 , paragraph 21, and of 24 June 2019, Popławski , C-573/17, EU:C:2019:530 , paragraphs 58 and 61)."
So the domestic court should first "interpret national law in compliance with the requirements of EU law". Only if that is not possible do we move on to disapplying national law, and only in cases where the EU law concerned has direct effect due to being clear, precise and unconditional. Even then, such an EU law provision doesn't automatically have priority if there is a conflicting fundamental right recognised in European law as stated at para. 56:
"EU law, in particular the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances in which a national authority persistently refuses to comply with a judicial decision enjoining it to perform a clear, precise and unconditional obligation flowing from EU law, in particular from Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, it is incumbent upon the national court having jurisdiction to order the coercive detention of office holders involved in the exercise of official authority where provisions of domestic law contain a legal basis for ordering such detention which is sufficiently accessible, precise and foreseeable in its application and provided that the limitation on the right to liberty, guaranteed by Article 6 of the Charter of Fundamental Rights, that would result from so ordering complies with the other conditions laid down in that regard in Article 52(1) of the Charter. On the other hand, if there is no such legal basis in domestic law, EU law does not empower that court to have recourse to such a measure."
In North East Pylon Pressure Campaign Ltd , the court said at paras. 56 and 57:
"56 Therefore, if the effective protection of EU environmental law, in this case Directive 2011/92 and Regulation No 347/2013, is not to be undermined, it is inconceivable that Article 9(3) and (4) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law (see, by
analogy, judgment of 8 March 2011, Lesoochranárske zoskupenie , C-240/09, EU:C:2011:125 , paragraph 49).
Consequently, where the application of national environmental law - particularly in the implementation of a project of common interest, within the meaning of Regulation No 347/2013 - is at issue, it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention, so that judicial procedures are not prohibitively expensive."
Again that is about interpreting domestic law, not ignoring it. One can note in passing that the court did not consider art. 9(3) and (4) of the Aarhus Convention to have direct effect, but nonetheless the principle of conforming interpretation applies.
The fundamental problem for the applicants is that they think that either they, or the court, or both, can just ignore O. 84 r. 21 RSC (the three-month rule and provision for extension of time). But that rule confers some flexibility and is capable of being operated in a manner that complies with EU law, or to put it another way, nobody has shown that a conforming interpretation is impossible. If, for example, the rule were to prohibit extensions of time in circumstances where access to the court was required by EU law, and so where there was a direct conflict with applicable EU law and a conforming interpretation was not available, then one would be into Workplace Relations Commission -disapplying-national-law territory. But we haven't got to that point here.
The fundamental point is that there isn't anything inherently unlawful about national law providing rules about things like time limits as an aspect of the principle of national procedural autonomy: see Krikke v. Barranafaddock Sustainability Electricity Limited [2022] IESC 41, [2023] 1
I.L.R.M. 81, [2022] 11 JIC 0303. The CJEU held in Case C-348/15 Stadt Wiener Neustadt v. Niederösterreichische Landesregierung (Court of Justice of the European Union, 17th November, 2016, ECLI:C:2016:882) at paras. 40 and 41:
"40 ... It is indeed settled case-law of the Court that, in the absence of EU rules in the field, it is for the national legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, provided that such rules are not less favourable than those governing similar national actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness).
The Court also considers that it is compatible with EU law to lay down reasonable time limits for bringing proceedings in the interests of legal certainty, which protects both the individual and the administrative authority concerned. In particular, it finds that such time limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (see, to that effect, judgments of 15 April 2010, Barth , C-542/08, EU:C:2010:193 , paragraph 28, and of 16 January 2014, Pohl , C-429/12, EU:C:2014:12 , paragraph 29)."
The applicants' next complaint is:
"It is the Applicant's case that these domestic rules and procedure cannot be relied upon to frustrate the objectives of the Directive–in this case the strict protection of bat fauna whose roosts may be lost to the proposed development."
The loose wording of the submission gives it away - the principle of EU law is that the domestic procedural rule must not make it in practice impossible or excessively difficulty to exercise EU law rights. It is not a principle that any and every applicant must be allowed to win their case, or that nobody can be held to fall foul of a procedural rule because that would "frustrate" the objectives of a directive.
Next, the applicants' endeavours to find supportive fragments of authority are turned up a notch:
"As identified by the Court of Justice in Case C-166/97, Commission v. France (§13): 'According to the settled case-law of the Court, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive...'"
As is perhaps obvious, that was an enforcement action by the Commission in relation to failure to fulfil obligations conferred by a directive (art. 4 of the birds directive (Council Directive 79/409). The settled caselaw referred to in the partial quotation also involves enforcement actions. The language of the CJEU regarding the context of enforcement action is just not transferrable holus- bolus to the conforming interpretation context, as the applicants seem to imply.
The quote continues:
"(see, inter alia, Case C-259/94 Commission v Greece [1995] ECR I-1947, at paragraph 5 and Case C-214/96 Commission v Spain [1998] ECR I-7661, at paragraph 18)."
None of this has anything to do with what amounts to an alleged entitlement of the applicants to exempt themselves from domestic law requirements - in this instance the need to apply for an extension of time to challenge a derogation licence.
The applicants' submission then reaches its peroration:
"In Case C-415/21 [ sic ], Commission v. Belgium , the Court of Justice stated (§21):
'The provisions of Directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty . The principle of legal certainty requires appropriate publicity for the national measures adopted pursuant to Community rules in such a way as to enable the persons concerned by such measures to ascertain the scope of their rights and obligations in the particular area governed by Community law.'"
This case is mis-cited - its correct case number is Case C-415/01. There is no emphasis in the original, but the submissions do not mention that emphasis has been added. Also, the quotation, strangely, is incomplete although there are no ellipses noted in the quotation in the submissions. The full quotation from Case C-415/01 Commission v. Belgium 2003 ECR I-02081 (ECLI:EU:C:2003:118), para. 21, is:
"In that regard, it is important to recall that, according to consistent case-law, the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, in particular, Case C-159/99 Commission v Italy [2001] ECR I-4007 , paragraph 32). The principle of legal certainty requires appropriate publicity for the national measures adopted pursuant to Community rules in such a way as to enable the persons concerned by such measures to ascertain the scope of their rights and obligations in the particular area governed by Community law (see Case C-313/99 Mulligan and Others [2002] ECR I-5719 , paragraphs 51 and 52)."
Case C-415/01 Commission v. Belgium , and Case C-159/99 Commission of the European Communities v. Italian Republic (Court of Justice of the European Union, 17th May, 2001, ECLI:EU:C:2001:278 ), were enforcement actions about the birds directive. Case C-313/99 Mulligan
v. Minister for Agriculture and Food (Court of Justice of the European Union, 20th June, 2002, ECLI:EU:C:2002:386) was a reference by the High Court here on the interpretation of Council Regulation (EEC) No 3950/92 of 28th December, 1992 establishing an additional levy in the milk and milk products sector. Unfortunately for the applicants, paras. 49 to 54 of Mulligan do not support the EU-law-straitjacket argument underpinning the applicants' case. Rather they impliedly acknowledge the scope of national procedural autonomy:
"49 In the present case, the questions referred by the national court, as reformulated in paragraph 38 of this judgment, concern two specific aspects of the legislative procedure followed for the adoption of the clawback measure at issue in the main proceedings, namely the fact that the 1995 Regulations, first, gave the Minister a discretion to adopt decisions for that purpose and, second, permitted the adoption of those measures by means of a notice published in the national press.
With regard to the first aspect of that procedure, the mere fact that a national legislative instrument has delegated to an authority of a Member State, such as a minister, authority to adopt measures pursuant to Article 7(1) of Regulation No 3950/92 is not in itself of such a nature as to infringe the principle of legal certainty, since the adoption of a measure following such a procedure does not necessarily mean that that measure is not binding or does not satisfy the requirement of that principle that it be specific, precise and clear.
With regard to the second aspect of that procedure, it suffices to observe that, although the principle of legal certainty requires appropriate publicity of the national measures adopted pursuant to a Community regulation, it is nevertheless the case that the principle does not prescribe any specific form of publicity, such as publication of the measures in the Official Journal of the Member State concerned.
As is clear from the case-law cited in paragraph 47 above, the reason why the principle of legal certainty, as a general principle of Community law, requires appropriate publicity of measures adopted by the Member States in implementation of an obligation under Community law is the obvious need to ensure that persons concerned by such measures are able to ascertain the scope of their rights and obligations in the particular area governed by Community law.
It follows that to be appropriate publicity must be of such a nature as to inform the natural or legal persons concerned by the measure of their rights and obligations under it. It is not therefore ruled out that publication of that measure in the national press may satisfy that condition. However, it is for the national court to determine, on the basis of the facts before it, whether that is the case in the main proceedings.
Consequently, the answer to the second and third questions must be that the principle of legal certainty does not preclude, as a general principle of Community law, a Member State from choosing, for the purpose of adopting national measures pursuant to Article 7(1) of Regulation No 3950/92, a procedure whereby a legislative instrument authorises the competent authority, such as a minister, to adopt those measures by means of a decision. That principle requires that the publicity for such measures be of such a nature as to inform the natural or legal persons concerned by the measures of their rights and obligations under them. It is for the national court to determine, on the basis of the facts before it, whether that is the case in the main proceedings."
Bearing all that in mind, the question is whether there is any remaining path, however narrow, to enable the applicants to progress their objection to the derogation licence.
What is the applicants' route-map, if any, to impugning the derogation licence?
In order to succeed, the applicants would need to establish the following arguments (phrased as propositions but I am not to be taken as accepting these for present purposes):
(i) The grant of a derogation licence should be held to be "part of the development consent procedure" to use the language of the CJEU in Case C- 463/20 Namur-Est Environnement ASBL v. Région wallonne (Court of Justice of the European Union, 24th February, 2022, ECLI:EU:C:2022:121 ).
(ii) Therefore the derogation licence should be capable of being challenged as if made on the date of the development consent . As put in legal submissions, "[i]nsofar as any time objection may be made in relation to this point, the Derogation Licence only crystallised and was only published once planning permission for the proposed development was granted and the Bat Report was published". The concept of "crystallisation" is to some extent a conceit of the applicants' own confection, although on the other hand one cannot totally rule out such an argument as flowing from the proposition that the licence should be treated as part of the development consent for EU law purposes. Hence the applicants submit: "[i]t is the Applicants' case that the only appropriate time to challenge the Derogation Licence was after planning permission was granted."
(iii) This should apply even where national law allows the derogation licence to be applied before, during or after the development consent, if the detriment created by a licence in practice requires the approval of the project. In such circumstances, where the licence is obtained before the development consent, then the licence should be treated as part of the consent so that it can be challenged as of the date of the consent, notwithstanding the principle of national procedural autonomy reflected for example in art. 11(2) of the EIA Directive 2011/92 which provides that: "[m]ember States shall determine at what stage the decisions, acts or omissions may be challenged". Thus any given applicant can simultaneously challenge an associated derogation licence on the basis that it is a part of the development consent, even in a member state like Ireland where the law is unspecific as to whether one can seek any necessary development consents before, during or after the procedure: see the slightly different fact situation of Namur-Est Environnement ASBL and in particular the opinion of Advocate General Kokott delivered in that case (Court of Justice of the European Union, 21st October, 2021, ECLI:EU:C:2021:868). At para. 37 of her opinion, Advocate General Kokott stated: "Moreover, the Kingdom of Belgium's submission is also not convincing in terms of content, since the permit under species protection law was expressly applied for in relation to the implementation of the quarry project. According to the observations submitted in the hearing, detriment caused to protected species is accordingly permissible only within the framework of the project, and therefore requires, at least in practice, the approval of the project as a whole. A further reason why such a link with the project appears to be necessary under EU law is that only the objectives of the measure concerned, in this case the project, can justify a derogation from the obligations of species protection in accordance with Article 16 of the Habitats Directive and Article 9 of the Birds Directive."
(iv) The applicants were entitled to an extension of time to cover the period up to when they knew about the derogation licence. The written submission goes on: "[w]hile the Minister does take a time point against the Applicants (§§29-30 of the SOO), he does not explain how the Applicants were supposed to challenge a decision with which they had no involvement, where there was no public participation, and which was only published in the context of materials being placed by the Developer on its website for the purpose of applying for planning permission." If the complaint is that the applicants couldn't have challenged the licence before
the application documents were placed on the website, that is a fair point, but it is not in dispute. Had the applicants moved within three months from that date and sought an extension of time for the purpose, we would not be having this discussion. But they didn't do that either.
(v) The applicants were entitled to a further extension of time to cover the period from when they knew about the derogation licence up to the date of the permission. The argument is that this follows from the above points.
(vi) Where an applicant is to be allowed an extension of time by virtue of EU law, domestic procedures should not preclude a claim merely because an applicant does not apply for an extension of time to which she would be thus entitled. Here the applicants are really pushing the boat out, because they didn't even invoke the formality of seeking an extension of time in the statement of grounds, or when applying for leave (even on a conditional basis if and insofar as such an extension was required), which was the legally ideal time to alert the court to the problem, or by way of a motion seeking extension of time thereafter. Their main line of defence seemed to be that they didn't need to apply for an extension of time. That is incorrect - obviously so - as a matter of domestic law. There isn't anything about the relationship between EU and domestic law that would preclude that conclusion. But is this only the omission of a formality? It has to be pointed out that this is a totally self-inflicted addition to the list of issues because it would have been painless for the applicants to have asked for the extension on the grounds that they claim to be entitled to it as of right, thereby providing formal compliance with domestic law rules. On the other hand, if the applicants can ignore domestic law as to time because it is a formality, then what else can they ignore? Can they wander into court without pleadings or affidavits, without seeking leave, without paying stamp duty, without complying with rules of court or practice directions? The whole doctrine cooked up by the applicants appears on the face of things to be a recipe for procedural chaos. Perhaps there is some other answer to this that I am missing and that meets the minimum threshold of plausible doubt warranting consideration of the Luxembourg route, so I will give the opportunity to clarify that as stated below.
(vii) A derogation licence cannot conclude that there were no alternatives unless it actually considers alternatives. Assuming that the applicants get over the time problem, their next point is that the licence was invalid because it didn't study any alternatives, so it could not conclude that there were no alternatives.
(viii) A derogation licence can only be granted for the purpose of protecting wild fauna and conserving natural habitats if some identified level of protection is created by the licence rather than by mitigation measures associated with the detriment created by the licence. The applicants essentially complain that the licence itself doesn't provide protection for fauna and habitats so should not have been issued on the basis that it did.
Conclusion on this issue for present purposes
Having identified the foregoing points, I have some concerns that the EU argument on the time issue crystallised very late in the hearing and that the parties may not have had the fullest opportunity to address these questions. I am therefore going to give the parties a final opportunity to make written legal submissions on these points and in particular on whether I should decide these myself or whether any doubt arises as to these such as would warrant consideration of the Luxembourg route. By all appearances at the present moment, and totally subject to contrary argument, the weakest link is point (vi), so the parties will have to focus on whether or not there is anything to create doubt about the answer to that in particular, while also having the opportunity to consider the other issues.
Subject to any alternative position that may emerge following further submissions, the take- home point in the meantime is that as a matter of domestic law, a derogation licence should be challenged when any given challenger finds out about it or at the latest within three months from the earliest date on which she should have known about it. Where the challenge comes more than three months after the date of the licence, an extension of time is required as a matter of Irish law. Any EU law argument can normally only be made once there is compliance with the domestic law requirement to seek such an extension, which on the face of things is consistent with both equivalence and effectiveness. If an applicant challenges a licence within three months of the date she could reasonably have known of it, then an extension based on EU law is there for the asking. One might have thought that the safer course is to comply with that rather than to add further EU law dominoes to an already crowded list of things that have to fall one's way, because to wait for the final permission means having to face a whole other set of tripwires. But even if an applicant
incautiously waits until then, the prudent and indeed completely obvious course is to formally apply for the extension of time when seeking leave. These applicants didn't do that, for reasons best known to themselves.
Summary
Without taking from the more express and operative terms of the judgment, a rough summary of the outcome is as follows:
(i) Core ground 1 – this was not pursued;
(ii) Core ground 2 – zoning – this misunderstands the concept of a zoning provision;
(iii) Core ground 3 – material contravention – the plan provided sufficient flexibility for the decision on the specific facts here;
(iv) Core ground 4 – statutory invalidity – this exaggerates the effect of the SEA directive beyond anything in national or European caselaw;
(v) Core ground 5 – this was not pursued;
(vi) Core ground 6 - insofar as the pleaded case was concerned, this was not pursued, and insofar as an attempt was made to construct a new case out of a passing reference to the EIA screening, the argument is not adequately pleaded;
(vii) Core ground 7 – derogation licence – there will be a further opportunity to make submissions on the remaining net issues here;
(viii) Core ground 8 – traffic – this exaggerates the entitlement to reasons, which were sufficient in context; and
(ix) Core ground 9 – stay – this can continue for the time being subject to any application.
Order
For the foregoing reasons, it will be ordered that:
(i) the challenge to the decision of the board be dismissed;
(ii) submissions be invited in the terms stated in the judgment on the challenge to the derogation licence;
(iii) the matter be listed for mention on a date to be notified;
(iv) the stay be continued for the time being until further order with liberty to apply; and
(v) the foregoing order be perfected with no order as to the costs of the challenge to the decision of the board, and with costs of the challenge to the derogation licence reserved, unless submissions to the contrary are lodged with the court within 7 days of the date of this judgment.