European Union
Access to Justice, Administrative, Environmental Impact Assessments, Wetlands, Permits, Jurisdiction, Remedies, Standing, Damages, Public Participation
The Commission raised a number of complaints in respects of Ireland’s implementation of the EIA Directive, as amended by Directive 2003/35, which was intended to achieve compliance with the Aarhus Convention in this area. All the Commission’s complaints were about the failure to transpose the relevant Community provisions; it did not complain about the quality of the transposition (including in respect of how the relevant provisions are implemented by the national courts). Because of the Commission’s approach to the formulation of its complaints, the scope of the decision is more restricted than it might otherwise have been. The ECJ held that by failing to adopt, in conformity with Article 2(1) and Article 4(2) to (4) of Council Directive 85/337 as amended by Directive 97/11, all measures to ensure that, before consent is given, projects likely to have significant effects on the environment in the road construction category covered by point 10(e) of Annex II to Directive 85/337 as amended by Directive 97/11 are made subject to a requirement for development consent and to an assessment with regard to their effects in accordance with Articles 5 to 10 of that amended directive, and by failing to adopt the laws, regulations and administrative provisions necessary to comply with Articles 3(3) to (7) and 4(2) to (4) of Directive 2003/35, and by failing to adequately notify such provisions to the Commission, Ireland has failed to fulfill its obligations under Directive 85/337, as amended by Directive 97/11, and Article 6 of Directive 2003/35.The remainder of the action is dismissed Article 10A of the EIA Directive (inserted by Article 3(7) of Directive 2003/35) and Article 15A of Directive 96/61 (inserted by Article 4(4) of Directive 2003/35) provide that procedures relating to these directives must not be prohibitively expensive (as noted above, effectively transposing the requirements of Article 9 of Aarhus in the context of the proceedings covered by these directives). Ireland argued that the discretion of its national courts to decline to make a costs order against an unsuccessful party was sufficient to meet its Community obligations. However, the Court held (differing in this respect from the approach of the Advocate General1) that a mere discretionary practice on the part of the courts was insufficient to be regarded as valid implementation of the obligations. Various other complaints against Ireland were rejected but largely on technical grounds. The Commission’s objection that in relation to costs there was ‘no applicable ceiling’ on the amount an unsuccessful applicant would have to pay was not echoed in the ECJ’s judgment.