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An Taisce — the National Trust for Ireland welcomed the Opinion of Advocate General (AG) Kokott of the Court of Justice of the European Union (CJEU) in respect of nine legal questions referred to the CJEU by the High Court of Ireland as part of the Judicial Review initiated by An Taisce into Ireland’s fifth Nitrates Action Programme (NAP). The AG Opinion is an independent opinion for the CJEU judges to consider in arriving at a judgment. It is not binding on the Court but is of considerable influence. 

The AG Opinion sets out that in creating a NAP, priority has to be given to the requirements of the Water Framework Directive noting that water quality rules are binding and central, and that a State must prove that a higher threshold for nitrogen will not breach those standards before approving it. 

It also notes that in framing an action plan, the State must assess the real-world impact it would have on water and the environment and not rely just on the existence of the rules set out in a NAP. 

The AG Opinion signposted the need for a farm level assessment to ensure compliance with the Water Framework Directive and the Habitats Directive. 

The Opinion highlighted the potential requirement for catchment-based assessment to ensure all the nitrogen sources are taken into consideration before granting a derogation (para 89). 

The AG Opinion also indicates the potential need for nitrogen budgets to ensure that allowable nitrogen is divided up between farmers. (para 102). 

The AG Opinion cast doubt on whether the derogation can continue if the NAP is found in breach of EU law, and highlights that the national court would have to determine if it could justify the temporary maintenance of the derogation if it is found to be unlawful. (para 185).  

The Opinion is another important stage in the ongoing programme of action by An Taisce to hold the Irish Government to account for its failure to prioritise the protection and maintenance of clean water as a freely accessible resource to all.  

Explaining the context for the case, Dr Elaine McGoff, Head of Advocacy for An Taisce said, “The objective here is simple. We want Ireland to be a country that can provide and protect clean water.  

From our knowledge and understanding, the State has not provided the assessments and cannot provide the assurances that the NAP will not worsen water quality or undermine the environmental objectives of EU directives on water, habitats, and environmental assessment 

While the work of the courts, both in Ireland and Luxembourg, is detailed and complex, this is necessary work in order to pursue the relatively simple aim of protecting clean water in our rivers, lakes and seas in the interests of all Irish people.” 

An Taisce's legal action was lodged with the Irish courts in 2022 and sets out that the measures taken under successive Irish NAPs failed to prevent pollution of Irish water bodies and were in breach of the EU Habitats Directive or the Water Framework Directive. 

Regular reporting by the Environmental Protection Agency (EPA) has consistently shown water quality to be negatively impacted, particularly from intensive agriculture, with nitrogen pollution being a significant problem in the South and Southeast of the country, corresponding to where the most intensive dairy farming occurs. 

The case was referred to the CJEU by the High Court so that it could provide authoritative guidance on key considerations of EU law which would then allow for the determination of the key issues in the Irish Courts. 

The nine questions include challenges to both the procedure by which the NAP was framed and the substance of some of the decisions or assessments arrived at in that process.  In particular, the questions focussed on how the Irish NAP was assessed having regard to the requirements of the Water Framework, Habitats and Strategic Environmental Assessment Directives. 

The AG’s opinion published today is a core element of the process which precedes the Court’s judgment. The opinion follows a hearing at the ECJ last December. A full decision is expected later this year.   

An Taisce is represented by FP Logue Solicitors, and Counsel are James Devlin SC and John Kenny BL. 

Further information:

The Advocate General: The position of advocate general was created as a core part of the working of the European Court of Justice when it was founded in 1951.  

An AG has the same status as a judge of the Court. The purpose of the role is to assist the Court by considering the issues in a case and writing an independent opinion for its the judges to consider in arriving at a judgment.  

To assist in framing an opinion, an AG can take part in the hearing of cases and with the option to question the parties.  

The AG’s opinion is not binding on the Court, but the process of arriving at a judgement does not begin until an opinion is received and an opinion is considered influential given the impartial standing of the AG. 

EU Directives — The questions referred by Irish High Court to the CJEU relate to the application of and interdependence between four directives: 

• Water Framework Directive (WFD): provides for minimum levels of water quality and protection against the deterioration of water bodies
• Nitrates Directive (ND): addressing agricultural nitrate pollution controls, including the NAP
• Habitats Directive (HD): protecting designated sites and species
• Strategic Environmental Assessment (SEA): Directive which requires an environmental assessment of plans and programmes