Friends of the Irish Environment Ltd and Another v The Minister for the Environment Heritage and Local Government & others

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 15 April 2005
• Neutral Citation: [2005] IEHC 123
• Court: High Court
• Docket Number: [2004 No. 1019 P]
• Date: 15 April 2005

FRIENDS OF THE IRISH ENVIRONMENT LTD & LOWES v MIN FOR ENVIRONMENT & ORS

BETWEEN

FRIENDS OF THE IRISH ENVIRONMENT LIMITED AND TONY LOWES

PLAINTIFFS

And

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND, THE ATTORNEY GENERAL AND GALWAY COUNTY COUNCIL

DEFENDANTS

[2005] IEHC 123

RECORD No. 1019 P/2004

THE HIGH COURT

Stay

Similar proceedings - Compatibility with European law - Premature application -Other process not yet invoked - Whether proceedings in national court should be stayed pending decision of European Court of Justice - Case C-392/96 Commission v Ireland [1999] ECR I-05901; Case 26/62 Van Gend en Loos v Nederlandse administratieder belastingen [1963] ECR 1 and Merck &Co Inc v GD Searle & Co [2002] 3 IR 614followed - Treaty of European Union arts 226and 234 - Stay granted

Facts: This was an application by the defendants for an order staying the plaintiffs' proceedings pending the resolution of matters raised by European Commission, which the defendants stated were similar to the plaintiffs' claim. The plaintiffs' claim was for a declaration that s. 33(2)(c) of the Planning and Development Act 2000 was null and void having regard to the provisions of European law insofar as they purported to charge a fee in the context of planning applications accompanied by an environmental impact statement. The Commission's reasoned opinion was that Ireland, by making full and effective participation by the public in certain environmental impact assessments subject to prior payment, had failed to comply with is obligations under Directive 85/337/EC. The defendants stated that the Commission intended to refer the matter to the ECJ by way of infringement proceedings against Ireland under Article 226 of the EC Treaty. The plaintiffs argued that they intended to seek to make a reference to the ECJ under Article 234 and staying the proceedings would deny them this entitlement.

Held by Murphy J. in granting the stay pending the resolution of the matters raised by the Commission that the reliefs sought by the plaintiffs were substantially the same as those being pursued by the Commission. An Article 234 reference would not achieve anything different or more expedient than the present procedure initiated by the Commission.

Reporter: R.W.

EEC DIR 85/337 ART 6

EEC DIR 85/337 ART 7

PLANNING & DEVELOPMENT ACT 2000 S33(2)(c)

EEC DIR 97/11

TREATY OF ROME ART 226

TREATY OF ROME ART 10

KOBLER v AUSTRIA C-224/01 ECJ

TREATY OF ROME ART 234

CILFIT & ANOR v MIN FOR HEALTH 1982 ECR 3415

SINGER 1965 ECR 965

MERCK & CO INC & ANOR v GD SEARLE & CO & MONSANTO CO 2002 3 IR 614 2001 2 ILRM 363

VAN GEND v LOOS 1963 ECR 1

R v SECRETARY OF STATE FOR TRANSPORT EX-PARTE FACTORTAME 1990 ECR 1- 2433

SINN FEIN FUNDS CASE 1950 IR 67

SINN FEIN FUNDS ACT 1947

COMMISSION v IRELAND C-392/96 EC

1 JUDGMENT of Mr. Justice Murphy dated the 15th day of April, 2005

2 1. This is an application by the first, second and third named defendants (the State)(proceedings having been discontinued against the fourth named defendant) for an order staying the within proceedings pending the resolution of matters raised in the European Commission reasoned opinion of 21st January, 2003, by the Commission which the State considers to be similar to the plaintiff's claim herein.

3 2. The reasoned opinion, under the first paragraph of Article 22.6 of the Treaty, is that Ireland, by making the full and effective participation of the public in certain environmental impact assessments subject to prior payment of participation fees, has failed to comply with its obligation under Articles 6 and 7 of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment.

4 The plaintiff's claim is for a declaration that s. 33(2)(c) of the Planning and Development Act, 2000 and the regulations made thereunder are null and void and invalid having regard to the provisions of the law of the European Union insofar as they purport to charge a fee in the context of planning applications or appeals to An Bord Pleanála accompanied by an environmental impact statement.

5 The grounding affidavit of Oonagh Buckley, principal officer of the first named defendant, sworn 16th May, 2003, referred to that reasoned opinion and to correspondence between Ireland and the European Commission requesting Ireland to comment on the complaint. The State had responded thereto on 6th December, 2000 and on 7th March, 2002.

6 The Commission had raised concerns about the compatibility with Community law of the fee requirement under the Planning and Development Act, 2000 and the regulations made thereunder. A third party wishing to make a submission in respect of an application for planning permission and, in particular, in respect of environmental impact assessments (EIA), was required to pay a fee. This did not appear to be compatible with directive 85/337 as amended by directive 97/11.

7 The reasoned opinion of the Commission was replied to on 16th May, 2003. The reply, having analysed the provisions of the directive, put forward reasons justifying the fees by reference to the level of participation of the public in environmental impact assessment processes and believed it to be in conformity with directive 85/337.

8 By supplemental affidavit, sworn 21st February, 2005, Ms. Buckley referred to advices received on 26th January, 2005, that the Commission intended to issue Article 226 proceedings against Ireland before the Court of Justice aforesaid following the reasoned opinion. She averred that, notwithstanding, Ireland had not yet been formally notified of the institution of those proceedings.

9 The State defendants consider that since the compatibility of the legislation with the directive 85/337 (the EIA directive) will be determined in the course of the Article 226 reference, it is appropriate that the present proceedings be stayed.

10 The compatibility of the Irish legislation with the EIA Directive will be determined by the Court of Justice in the context of the infringement proceedings. The State submits that it would be incompatible with Ireland's obligations under Article 10 EC Treaty for an Irish court to proceed to determine the issue of the compatibility of the Irish legislation with the EIA Directive. (Such obligation extends to the courts of Member States - see case 224/01 Kobler, decision of 30th September, 2003) Article 10 EC Treaty obliges Member States to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out to the Treat and to facilitate the achievement of the Community's tasks and to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty.

11 The ruling of the Court of Justice on the matter would take precedence over any national ruling. For a national court to proceed to a decision where it was aware that the Court of Justice would inevitably be ruling on precisely the same matter (will the risk of possible conflicting decisions that that would entail) would, in the submissions of the defendant, be contrary to a national court's obligations under Article 10.

3. State submissions

12 2 3.1 The plaintiffs argue that, if the proceedings are not stayed, then they will seek to make a reference to the Court of Justice under Article 234. They argue that they are in some way entitled to a reference and that to stay the proceedings would deprive them of this entitlement.

13 The State submits that this approach to a reference is entirely misconceived.

14 The purpose of a reference is not ask the court of Justice to decide upon facts or the application of Community law to a particular factual situation. Rather it is to seek the assistance of the court in the interpretation of Community law. In the Note for Guidance on references by National Courts for Preliminary Rulings issued by the Court of Justice, it is provided at paragraph 7 that:

"A national court may refer a question to the Court of Justice as soon as it finds that a ruling on a point or point of interpretation or validity is necessary to enable it to give Judgment. It must be stressed however, that it is not for the Court of Justice to decide issues of fact or to resolve disputes as to the interpretation or application of rules of national law. It is therefore desirable that a decision to refer should not be taken until the national proceedings have reached a stage where the national court is able to define, if only as a working hypothesis, the factual and legal context of the question."

15 In case 283/81 Cilfit v. Ministry of Health, the court was asked to consider the circumstances in which a court which has an obligation to refer should abstain from making a reference. It noted at para. 13 that where a question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case, that obligation may not have the same weight. At para. 14 it was noted that this was so, even where the questions at issue were not strictly identical, provided that previous decisions of the court had already dealt with the point of law in question.

16 While a national court is always free to make a reference. However, where the Court of Justice had already interpreted a provision of Community law references raising a similar point were not appropriate.

17 It is submitted that a similar principle applies with equal force where it is known in advance that the Court of Justice will be interpreting a provision of Community law. Thus in the submission of the defendants, any application to the national court for a reference will be met with the response that a reference is not necessary given that precisely the same matter is before the Court of Justice.

18 It...