About this case:

• Citation:
  [2020] IEHC 383
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Background

The Friends of the Irish Environment (FIE) sought to challenge the establishment, by the European Commission, of a list of “projects of common interest” (PCIs), by way of judicial review. The list purports to have been established pursuant to powers delegated to the European Commission under Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure, sometimes referred to as the “Trans European Energy Networks Regulation” (TEN-E Regulation). The case was taken against the Minister for Communications, Climate Action and the Environment and Ireland.

The TEN-E Regulation addresses the identification of PCIs necessary to implement priority corridors and areas, under several energy infrastructure categories. The designation of a project as a PCI means that the “most rapid treatment legally possible” is to be given to the permit granting process.

Permit granting for PCIs are to be streamlined and accelerated, and An Bord Pleanála is the designated national competent authority in this regard (North East Pylon Pressure Campaign Ltd v An Bord Pleanála [2019] IESC 8).

FIE, represented by James Devlin SC and John Kenny BL instructed by FP Logue Solicitors, opposed the inclusion of the proposed Shannon LNG terminal and connecting pipeline as a PCI, contending that the Commission exceeded the limits of powers delegated to it.

FIE acknowledged that only the CJEU has jurisdiction to invalidate delegated regulation. An action for annulment is normally brought before the General Court under Article 263 TFEU, with a right of appeal thereafter to the European Court of Justice. FIE did not pursue this route, stating that it would not be able to satisfy the locus standi requirements.

Instead, FIE sought to bring the matter before the CJEU by way of an Article 267 TFEU reference, asking the High Court to seek a preliminary ruling on the validity of the delegated regulation. FIE argued that the preliminary reference procedure must compensate for the restrictions inherent in the direct action procedure, in order to avoid a “gap” in judicial protection.

High Court

A person with locus standi to bring a direct challenge under Article 263 TFEU is not entitled to circumvent the relevant time-limit by seeking instead to invalidate the act by the use of the preliminary reference procedure in national law proceedings taken after the expiry of the time-limit. (Case C-370/12, Pringle, EU:C:2012:756). The High Court said that it “does not, however, follow as a corollary that a person who does not have standing under Article 263 TFEU is automatically entitled to rely on Article 267 TFEU”.

“The possibility of a reference is contingent always on the national court having jurisdiction to make a preliminary reference in the particular circumstances of the case”, it said.

Mr Justice Garrett Simons noted a number of attempts to give a broader interpretation to the concept of “direct and individual concern” which have been made. The court cited Case 25/62, Plaumann & Co v Commission, EU:C:1963:17, where it was held that a person, other than those to whom a decision is addressed, may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them, or by reason of circumstances in which they are differentiated from all other persons.

The judge considered that an attempt to argue for a different standard in the context of environmental litigation had been made in Case 321/95 P, Stichting Greenpeace Council (Greenpeace International), EU:C:1998:153, but was unsuccessful: “The preliminary reference procedure will not be available in the absence of national implementing measures or decisions which are capable of forming the basis of an action before the national court.”

The approach adopted by FIE to a “gap” in effective judicial protection was “to advocate for a less stringent application of the standing requirement under Article 263 (as opposed to a wider availability of the preliminary reference procedure under Article 267 TFEU)”.

A “practical example” of the operation of the preliminary reference procedure was provided by earlier proceedings taken by FIE related to Shannon LNG terminal in FIE v An Bord Pleanála [2019] IEHC 80, challenging An Bord Pleanála’s decision to amend the terms of a planning permission authorising the construction of the gas terminal, by the extension of the planning permission period. The High Court made a preliminary reference to the CJEU on the interpretation of the Habitats Directive (Case C-254/19, Friends of the Irish Environment). The Advocate General delivered her opinion in April 2020, and the CJEU delivered its judgment on 9 September 2020. The matter will now return to the High Court with a view to its determining the proceedings before it.

Mr Justice Simons said that this was distinct from the present matter, where the sole function of the national court would be to refer the question of the validity of the delegated regulation to the CJEU. The CJEU would then determine that issue itself, with no outstanding issue remaining to be determined by the national court. The judicial review proceedings were “intended merely as a vehicle by which to bring this issue before the Court of Justice”.

Conclusion

The court said that the “fatal flaw” in the proceedings was that FIE was unable to identify any decision or implementing measure at national level which is capable of forming the basis of an action before the High Court.

The court refused the application for a preliminary reference, and it also refused the associated declaratory relief, to the effect that Ireland is obliged to provide a dedicated and suitable mechanism by which the validity of a decision of the European Commission can be raised, irrespective of whether there is also an infringement by the national authorities.