High Court: Court gives reasons to join AG and not send CJEU Reference

Andrew McKeown BL
Andrew McKeown BL

The High Court, in a reasoned judgment following on from an earlier order, set out reasons for the joining of the Attorney General in judicial review proceedings, and for not sending an Art.267 Reference to the Court of Justice of the European Union (CJEU).


A judgment was delivered by Mr Justice Garrett Simons on 24 April which originally decided to seek the guidance of the CJEU, by way of an Art.267 TFEU reference, as to its obligations under the Environmental Impact Assessment Directive. In particular, guidance was to be sought as to whether the High Court might be obliged to rule upon the validity of the impugned planning permission notwithstanding that Michael Dempsey, Eva Dempsey, Eamonn Courtney, and Jacinta Courtney (the applicants) wished to withdraw their proceedings.

The Attorney General sought to be joined. The notice party developer, Ardstone Homes Ltd, represented by Neil Steen SC and Aoife Carroll BL instructed by McCann Fitzgerald, requested that, given the urgency of the matter from its perspective, the court should announce its decision on whether the preliminary reference was to proceed at the soonest possible opportunity, and, if necessary, in advance of the publication of its reasoned decision.

The court, having considered the submissions of the Attorney General, was persuaded that its original decision to issue an Art.267 Reference was per incuriam. It made an order on 25 August 2020 that the proceedings be struck out in their entirety, with no order as to costs, and this brought its jurisdiction to an end.

As such, there would be no Art.267 reference. The judge noted that a further judgment would be issued in October, setting out the reasons for joining the Attorney, and for not referring to the CJEU.


The Attorney General has a “well-established role of defending the public interest”, the judge said, noting that the AG has on a number of occasions intervened in planning and environmental law proceedings to ensure compliance with EU law. He cited the proceedings challenging the grant of planning permission for the Apple data centre in Galway in Fitzpatrick v An Bord Pleanála [2018] IESC 60, where the AG and the Minister for Housing, Planning and Local Government, who had not participated in the proceedings before the High Court, successfully applied to be heard on the appeal to the Supreme Court as amici curiae.

More recently, in Friends of the Irish Environment clg v Legal Aid Board [2020] IEHC 347, Ms Justice Niamh Hyland directed that the Attorney General be put on notice of proceedings raising issues under the Aarhus Convention on access to justice in environmental matters.

The circumstances in which the AG may intervene in planning judicial review proceedings featured in Usk and District Residents Association Ltd v An Bord Pleanála [2010] 4 IR 113. The applicant initially sought relief as against the State for alleged failure to properly transpose certain EU environmental law directives. At the hearing, the applicant withdrew its claim against Ireland. The Attorney General indicated, through counsel, that he wished to continue to participate in the proceedings, and to support some of the arguments made by the applicant. An Bord Pleanála objected that the State had no legal standing to intervene on the issues between the applicant and the board, and further submitted that once the reliefs claimed against the State had been withdrawn, it was no longer properly a party to the proceedings.

Mr Justice John MacMenamin overruled this objection. He noted TDI Metro Ltd v Delap (No. 1) [2000] 4 IR 337, where the AG sought to be joined as a party at the appeal stage which was, he noted, “clearly a much more extreme situation…” The Supreme Court was prepared, utilising discretion to join the AG as the issue was one of public concern, being whether a County Council had a statutory power to prosecute indictable offences. The AG is not entitled to intervene as of right, but a court has discretion to allow a party to be joined if it is necessary in the interests of justice, and where there is no specific rule of law excluding the addition of the parties at that stage of the proceedings. Mr Justice MacMenamin indicated, obiter dicta, that the Attorney General, on behalf of the State, might have a wide entitlement to participate in proceedings where it is alleged that a national authority has breached EU law.

The Attorney General was again allowed to support an application for judicial review in Sweetman v An Bord Pleanála [2009] IEHC 599, a case concerning the interpretation of Art.6(3) of the Habitats Directive and the Natural Habitats Regulations 1997. Mr Justice George Birmingham said there was “a very substantial public dimension at issue” in relation to their interpretation, and that the State would understandably wish to be heard on the issue. He said that the fact that the State did not seek to launch judicial review proceedings did not mean that the State would not have a “keen interest” in contributing and advancing views in the judicial review proceedings. The court also emphasised the role of the Attorney General in protecting the public interest.

The AG wished to make a submission on an important issue of constitutional law concerning the nature and extent of the judicial power: “The Attorney, as the guardian of the public interest, is a proper party to be heard in respect of these matters.”

Mr Justice Simons said that there is “an obvious public interest in the issues canvassed in—and presented by—the proposed reference to the Court of Justice. The Attorney General wished to be heard on the logically anterior question as to whether this court has jurisdiction to determine proceedings in circumstances where all of the parties are consenting to an order striking out the proceedings simpliciter.”

The judge noted that the mere fact that a court is considering making a Art.267 TFEU preliminary reference does not necessitate putting the Attorney General on notice. Citing Case C-416/10, Krizan, EU:C:2013:8, he said that this is because “the decision on whether to make a reference is, ultimately, a matter for the court.”

He said that a court will invite and carefully consider submissions of relevant parties on whether a reference is appropriate. This did not require notifying the Attorney. The CJEU’s Statute requires the notification of all Member States of the making of an Art.267 reference, and they are entitled to submit statements of case or written observations to the CJEU. That affords the State an opportunity subsequently to make observations on the pending reference.

Oisin Collins BL, counsel for the applicants, instructed by O’Connell Clarke Solicitors, and Brian Kennedy SC and Fintan Valentine BL, for An Bord Pleanála, instructed by Philip Lee Solicitors, had approached the issue that, as a matter of domestic law, the court had a limited discretion in ruling on an application to withdraw proceedings.

The Attorney General adopted a different approach, submitting that, as a matter of domestic constitutional law, the court does not have any jurisdiction to determine the proceedings in circumstances where the parties no longer wish to have any issue resolved. The fact that the court had originally been seised of a dispute does not mean that it continues to have jurisdiction.

Counsel said that there was nothing under EU law which conferred jurisdiction where standing is not present in the domestic national law, as EU law does not require national courts to exceed their sphere of competence to achieve the objectives of EU legislation.

Michael M. Collins SC and Dr Catherine Donnelly BL (now SC) for the Attorney General instructed by the Chief State Solicitor, referred to the judgment in Case C-470/12 Pohotovost, where the Court of Justice seemed to expressly contemplate that the refusal of a national court to take note of the withdrawal of the main proceedings might result in the Court of Justice removing the case from its own register.

As noted in I.R.M. v Minister for Justice and Equality [2018] 1 IR 417, courts may only decide cases brought before them by parties. The parties must themselves have a legitimate interest, grounded in the facts, in the resolution of their dispute. A court cannot itself initiate a legal issue, still less issue of its own accord a generally binding statement of law. Furthermore, a court may only decide, in the sense of giving a binding determination, those legal issues which are necessary and essential to resolve the legal dispute between the parties.


Having mistakenly found that domestic law afforded a broader discretion than it does, Mr Justice Simons considered that the guidance of the Court of Justice was necessary to allow the court to identify the factors to be taken into account in the exercise of this supposed discretion: “Now that this mistake has been identified and acknowledged, the premise for the proposed preliminary reference falls away.”

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Other judgments by Mr Justice Garrett Simons