Action brought by EU Commission v Ireland over Tara
Action brought on 14 September 2007 – Commission of the European Communities v Ireland
(Case C-427/07)
Parties
Applicant: Commission of the European Communities (represented by: D. Recchia and D. Lawunmi, Agents)
Defendant: Ireland
The applicant claims that the Court should:
declare that by failing to adopt, in conformity with Article 2(1) and Article 4 paragraphs (2), (3) and (4) of Council Directive 85/337/EEC1 on the assessment of the effects of certain public and private projects on the environment as amended by Council Directive 97/11/EC, 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 Class 10(e) of Annex II to Directive 85/337/EEC 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 the Directive, has failed to fulfil its obligations under Council Directive 85/337/EEC
declare that by failing to adopt the laws, regulations or administrative provisions necessary to comply with Articles 3(1), (3), (4), (5), (6) and (7) and 4(1), (2), (3), (4), (5) and (6) of Directive 2003/35/EC2 of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directive 85/337/EEC and 96/61/EC or, in any event, by failing to adequately notify such provisions to the Commission, Ireland has failed to fulfil its obligations under article 6 of that Directive.
order Ireland to pay the costs.
Pleas in law and main arguments
Transposition of directive 85/337/EEC
The Commission considers that Ireland has failed to fully transpose directive 85/337/EEC because it fails to make provision for measures to achieve the results of articles 2(1) and 4 in respect of private road projects. The Commission considers that private road projects (proposed by private developers) fall within the scope of directive 85/337/EEC. Moreover, there is no basis for a presumption that such projects will not have significant effects upon the environment. The failure to include road projects proposed by private developers amounts to a breach of Ireland’s obligations under the aforementioned articles of the directive.
Transposition of directive 2003/35/EC
The Commission contends that there has been a failure on the part of Ireland, in accordance with article 6 of directive 2003/35/EC, to adopt and inform the Commission of all the national measures necessary to comply with articles 3 and 4 of the directive. More specifically, article 3, paras. 1, 3, 4, 5 and 6 of the directive set out specific amendments to several articles of directive 85/337/EEC. Ireland does not dispute that transposition needs to be effected by changes to both Irish planning legislation and legislation governing other consent systems. Ireland did not communicate any amendments to its planning legislation within the time-frame set by the additional reasoned opinion, and, in any case it has not yet communicated legislation governing all other consent systems. Articles 3(7) and 4(4) of the directive require not only systems of review of decision-making, but systems that provide specific guarantees. To the extent that Ireland claims that its existing system of judicial review meets the requirements of articles 3(7) and 4(4), it has failed to provide enough information to satisfy the requirements of the second sentence of the first paragraph of article 6 of the directive.
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1 – OJ L 175, p. 40
2 – OJ L 156, p.17
EU to take action over handling of Tara route for M3
The Irish Times Wednesday, October 17, 2007
Jamie Smyth in Brussels
The European Commission is expected to begin legal action against the Government today over the manner in which it has proceeded to build the M3 motorway near the Hill of Tara.
The decision will provide a boost to campaigners who are trying to force Minister for the Environment John Gormley to consider re-routing the motorway. The legal move is not expected to halt the construction of the road, but it will force the Government to defend its position at Europe’s highest court, a process that could eventually lead to the imposition of fines if it loses the case.
Environment commissioner Stavros Dimas will tell his commissioner colleagues at a meeting in Brussels today that the National Monuments Act in the Republic does not offer enough protection for important archaeological sites. He will also highlight alleged weaknesses in Irish law that split decision-making between Irish planning authorities and the Environmental Protection Agency (EPA) for industrial projects.
He cites the Government’s action at the Hill of Tara as a prime example of how it fails to conform to EU law. In a draft decision, which requires the approval of commissioners before taking effect, Mr Dimas refers Ireland to the European Court of Justice (ECJ) over these shortcomings. “The commission considers Ireland’s approach to decisions involving the destruction or removal of historic structures and archaeological monuments to be in contravention of the directive,” says an explanatory note on the decision seen by The Irish Times. The relevant EU directive says there must be a proper assessment of the effects of certain public and private projects on the environment.
The commission believes a decision not to order a second environmental impact assessment when a potentially significant archaeological site was discovered at Lismullen, close to Tara, was “in contravention of the directive”. “Because the prehistoric site was only identified in 2007, its significance could not be taken into account in a 2003 assessment of the motorway project,” says the commission’s explanatory note.
Despite the EU executive’s concerns, in June the Government ordered that the Lismullen site be excavated without a second environmental impact assessment. It said no delay was possible due to the fragile nature of the site.
But campaigners hoping the commission would intervene directly to force the Government to halt construction of the M3 may be disappointed. The draft commission decision refers only to weaknesses in Irish legislation and does not question the Government’s choice of route for the M3. Neither does it seek any kind of court injunction that would force the Government to stop work on the motorway. The Government has argued that the motorway is a vital piece of national infrastructure and choosing an alternative route for the M3 would cause delays and cost up to €200 million extra.
Campaigners have fought a vocal campaign against the motorway, which they claim will spoil the Hill of Tara for future generations. The commission document claims that when decisions are being taken on proposed incinerators and other industrial projects, “Irish rules do not guarantee that interactions such as those between pollution-control measures and the landscape will be adequately assessed and taken into account.There are risks that outcomes required by the directive will not always be achieved,” it concludes.
The commission decision to start legal action will force the Government to defend its position at the ECJ in Luxembourg.
If it loses the legal case and does not amend its laws to conform with the relevant EU directive, it could eventually face heavy fines. Ireland currently faces 37 infringement proceedings for breaching environmental directives.