# C_2016428EN.01000701.xml

| 21.11.2016 | EN | Official Journal of the European Union | C 428/7 |
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21.11.2016

EN

Official Journal of the European Union

C 428/7

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Reference for a preliminary ruling from High Court (Irlande) made on 22 August 2016 — North East Pylon Pressure Campaing Limited, Maura Sheehy v An Bord Pleanála, The Minister for Communications Energy and Natural Resources, Ireland, Attorney General

(Case C-470/16)

(2016/C 428/09)

Language of the case: English

Referring court

Referring court

High Court (Irlande)

Parties to the main proceedings

Parties to the main proceedings

Applicants: North East Pylon Pressure Campaing Limited, Maura Sheehy

Applicants:

Defendants: An Bord Pleanála, The Minister for Communications Energy and Natural Resources, Ireland, Attorney General

Defendants:

Questions referred

Questions referred

| i. | in the context of a national legal system where the legislature has not expressly and definitively stated at what stage of the process a decision is to be challenged and where this falls for judicial determination in the context of each specific application on a-case-by-case basis in accordance with common law rules, whether the entitlement under art. 11(4) of Directive 2011/92/EU (1) to a ‘not prohibitively expensive’ procedure applies to the process before a national court whereby it is determined as to whether the particular application in question has been brought at the correct stage; |
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i.

in the context of a national legal system where the legislature has not expressly and definitively stated at what stage of the process a decision is to be challenged and where this falls for judicial determination in the context of each specific application on a-case-by-case basis in accordance with common law rules, whether the entitlement under art. 11(4) of Directive 2011/92/EU (1) to a ‘not prohibitively expensive’ procedure applies to the process before a national court whereby it is determined as to whether the particular application in question has been brought at the correct stage;

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| ii. | whether the requirement that a procedure be ‘not prohibitively expensive’ pursuant to art. 11(4) of Directive 2011/92/EU applies to all elements of a judicial procedure by which the legality (in national or EU law) of a decision, act or omission subject to the public participation provisions of the directive are challenged, or merely to the EU law elements of such a challenge (or in particular, merely to the elements of the challenge related to issues regarding the public participation provisions of the directive); |
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ii.

whether the requirement that a procedure be ‘not prohibitively expensive’ pursuant to art. 11(4) of Directive 2011/92/EU applies to all elements of a judicial procedure by which the legality (in national or EU law) of a decision, act or omission subject to the public participation provisions of the directive are challenged, or merely to the EU law elements of such a challenge (or in particular, merely to the elements of the challenge related to issues regarding the public participation provisions of the directive);

| iii. | whether the phrase ‘decisions, acts or omissions’ in art. 11(1) of Directive 2011/92/EU includes administrative decisions in the course of determining an application for development consent, whether or not such administrative decisions irreversibly and finally determine the legal rights of the parties; |
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iii.

whether the phrase ‘decisions, acts or omissions’ in art. 11(1) of Directive 2011/92/EU includes administrative decisions in the course of determining an application for development consent, whether or not such administrative decisions irreversibly and finally determine the legal rights of the parties;

| iv. | whether a national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, should interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in art. 9(3) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25th June, 1998 (a) in a procedure challenging the validity of a development consent process involving a project of common interest that has been designated under Regulation No. 347/2013 (2) of the European Parliament and of the Council of 17th April, 2013 on guidelines for trans-European energy infrastructure, and/or (b) in a procedure challenging the validity of a development consent process where the development affects a European site designated under Council Directive 92/43/EEC of 21st May, 1992 on the conservation of natural habitats and of wild fauna and flora; |
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iv.

whether a national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, should interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in art. 9(3) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25th June, 1998 (a) in a procedure challenging the validity of a development consent process involving a project of common interest that has been designated under Regulation No. 347/2013 (2) of the European Parliament and of the Council of 17th April, 2013 on guidelines for trans-European energy infrastructure, and/or (b) in a procedure challenging the validity of a development consent process where the development affects a European site designated under Council Directive 92/43/EEC of 21st May, 1992 on the conservation of natural habitats and of wild fauna and flora;

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| v. | whether, if the answer to question (iv)(a) and/or (b) is in the affirmative, the stipulation that applicants must ‘meet the criteria, if any, laid down in its national law’ precludes the Convention being regarded as directly effective, in circumstances where the applicants have not failed to meet any criteria in national law for making an application and/or are clearly entitled to make the application (a) in a procedure challenging the validity of a development consent process involving a project of common interest that has been designated under Regulation No. 347/2013 of the European Parliament and of the Council of 1th April, 2013 on guidelines for trans-European energy infrastructure, and/or (b) in a procedure challenging the validity of a development consent process where the development affects a European site designated under Council Directive 92/43/EEC of 21st May, 1992 on the conservation of natural habitats and of wild fauna and flora; |
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v.

whether, if the answer to question (iv)(a) and/or (b) is in the affirmative, the stipulation that applicants must ‘meet the criteria, if any, laid down in its national law’ precludes the Convention being regarded as directly effective, in circumstances where the applicants have not failed to meet any criteria in national law for making an application and/or are clearly entitled to make the application (a) in a procedure challenging the validity of a development consent process involving a project of common interest that has been designated under Regulation No. 347/2013 of the European Parliament and of the Council of 1th April, 2013 on guidelines for trans-European energy infrastructure, and/or (b) in a procedure challenging the validity of a development consent process where the development affects a European site designated under Council Directive 92/43/EEC of 21st May, 1992 on the conservation of natural habitats and of wild fauna and flora;

| vi. | whether it is open to a member state to provide in legislation for exceptions to the rule that environmental proceedings should not be prohibitively expensive, where no such exception is provided for in Directive 2011/92/EU or the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25th June, 1998; and |
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vi.

whether it is open to a member state to provide in legislation for exceptions to the rule that environmental proceedings should not be prohibitively expensive, where no such exception is provided for in Directive 2011/92/EU or the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25th June, 1998; and

| vii. | in particular, whether a requirement in national law for a causative link between the alleged unlawful act or decision and damage to the environment as a condition for the application of national legislation giving effect to art. 9(4) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25th June, 1998 to ensure that environmental proceedings are not prohibitively expensive is compatible with the Convention. |
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vii.

in particular, whether a requirement in national law for a causative link between the alleged unlawful act or decision and damage to the environment as a condition for the application of national legislation giving effect to art. 9(4) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25th June, 1998 to ensure that environmental proceedings are not prohibitively expensive is compatible with the Convention.

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(1)  Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment

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OJ L 26, p. 1

(2)  Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009

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OJ L 115, p. 39

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