# C_2022472EN.01003201.xml

| 12.12.2022 | EN | Official Journal of the European Union | C 472/32 |
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12.12.2022

EN

Official Journal of the European Union

C 472/32

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Reference for a preliminary ruling from the High Court (Ireland) made on 23 September 2022 — Dublin 8 Residents Association v An Bord Pleanála, Ireland and the Attorney General

(Case C-613/22)

(2022/C 472/36)

Language of the case: English

Referring court

High Court (Ireland)

Parties to the main proceedings

Applicant: Dublin 8 Residents Association

Defendants: An Bord Pleanála, Ireland, and the Attorney General

Notice Party: DBTR-SCR1 Fund, a Sub-Fund of the CWTC Multi-Family ICAV

Questions referred

| 1. | Does article 11(1)(a) of directive 2011/92/EU (1) read in conjunction with article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council Decision 2005/370/EC (2) have the effect that where an environmental NGO meets the test for standing set out in that provision, the NGO concerned is to be regarded as having sufficient capacity to seek a judicial remedy notwithstanding a general rule in the domestic law of a member state which precludes unincorporated associations from bringing legal proceedings? |
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1.

Does article 11(1)(a) of directive 2011/92/EU (1) read in conjunction with article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council Decision 2005/370/EC (2) have the effect that where an environmental NGO meets the test for standing set out in that provision, the NGO concerned is to be regarded as having sufficient capacity to seek a judicial remedy notwithstanding a general rule in the domestic law of a member state which precludes unincorporated associations from bringing legal proceedings?

| 2. | If Article 11(1)(a) of directive 2011/92/EU read in conjunction with article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect set out in the first question in general circumstances, does it have that effect in circumstances where the domestic law of the member state concerned provides that an NGO that meets the test for standing conferred by article 1(2)(e) of the directive is thereby conferred with capacity to seek a judicial remedy? |
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2.

If Article 11(1)(a) of directive 2011/92/EU read in conjunction with article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect set out in the first question in general circumstances, does it have that effect in circumstances where the domestic law of the member state concerned provides that an NGO that meets the test for standing conferred by article 1(2)(e) of the directive is thereby conferred with capacity to seek a judicial remedy?

| 3. | If article 11(1)(a) of directive 2011/92/EU read in conjunction with article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect set out in the first question in general circumstances, does it have that effect in circumstances where the domestic law of the member state concerned and/or procedures adopted by the competent authority of the member state concerned have enabled an environmental NGO which would not otherwise have legal capacity in domestic law to nonetheless participate in the administrative phase of the development consent process? |
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3.

If article 11(1)(a) of directive 2011/92/EU read in conjunction with article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect set out in the first question in general circumstances, does it have that effect in circumstances where the domestic law of the member state concerned and/or procedures adopted by the competent authority of the member state concerned have enabled an environmental NGO which would not otherwise have legal capacity in domestic law to nonetheless participate in the administrative phase of the development consent process?

| 4. | If article 11(1)(a) of EIA directive 2011/92/EU read in conjunction with article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect set out in the first question in general circumstances, does it have that effect where the conditions set by the law of the member state concerned in order to enable an NGO to qualify for the purpose of article 1(2)(e) are such that the required period of existence of an NGO in order to so qualify is longer than the statutory period for determination of an application for development consent, thus having the consequence that an unincorporated NGO formed in response to a particular planning application would normally never qualify for the purposes of the legislation implementing article 1(2)(e). |
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4.

If article 11(1)(a) of EIA directive 2011/92/EU read in conjunction with article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect set out in the first question in general circumstances, does it have that effect where the conditions set by the law of the member state concerned in order to enable an NGO to qualify for the purpose of article 1(2)(e) are such that the required period of existence of an NGO in order to so qualify is longer than the statutory period for determination of an application for development consent, thus having the consequence that an unincorporated NGO formed in response to a particular planning application would normally never qualify for the purposes of the legislation implementing article 1(2)(e).

| 5. | Does article 11(1)(a) of directive 2011/92/EU read in the light of the principles of legal certainty and/or effectiveness and/or in conjunction with Article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC have the effect that a discretion created by a provision of national procedural law of a member state to allow the substitution of an individual applicant or applicants who are members of an unincorporated association in lieu of the unincorporated association itself must be exercised in such a way as to give full effect to the right of access to an effective judicial remedy such that that substitution could not be precluded by reason only of a rule of domestic law regarding limitation of time for the bringing of the action concerned. |
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5.

Does article 11(1)(a) of directive 2011/92/EU read in the light of the principles of legal certainty and/or effectiveness and/or in conjunction with Article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC have the effect that a discretion created by a provision of national procedural law of a member state to allow the substitution of an individual applicant or applicants who are members of an unincorporated association in lieu of the unincorporated association itself must be exercised in such a way as to give full effect to the right of access to an effective judicial remedy such that that substitution could not be precluded by reason only of a rule of domestic law regarding limitation of time for the bringing of the action concerned.

| 6. | If article 11(1)(a) of directive 2011/92/EU read in the light of the principles of legal certainty and/or effectiveness and/or in conjunction with Article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect referred to in the fifth question in general circumstances, does it have that effect particularly in the light of the principle of effectiveness in circumstances where the action was brought by the original applicant within the time fixed by domestic law and where the grounds of challenge on which the right of access to a judicial remedy was sought by the substituted applicant remained unchanged. |
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6.

If article 11(1)(a) of directive 2011/92/EU read in the light of the principles of legal certainty and/or effectiveness and/or in conjunction with Article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect referred to in the fifth question in general circumstances, does it have that effect particularly in the light of the principle of effectiveness in circumstances where the action was brought by the original applicant within the time fixed by domestic law and where the grounds of challenge on which the right of access to a judicial remedy was sought by the substituted applicant remained unchanged.

| 7. | If article 11(1)(a) of directive 2011/92/EU read in the light of the principles of legal certainty and/or effectiveness and/or in conjunction with Article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect referred to in the fifth question in general circumstances, does it have that effect if the domestic law of the member state concerned regarding the application of limitation periods in such situations is unclear and/or contradictory such that an applicant does not enjoy legal certainty prior to bringing proceedings as to whether such substitution is permissible. |
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7.

If article 11(1)(a) of directive 2011/92/EU read in the light of the principles of legal certainty and/or effectiveness and/or in conjunction with Article 47 of the Charter of Fundamental Rights and/or article 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect referred to in the fifth question in general circumstances, does it have that effect if the domestic law of the member state concerned regarding the application of limitation periods in such situations is unclear and/or contradictory such that an applicant does not enjoy legal certainty prior to bringing proceedings as to whether such substitution is permissible.

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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 (OJ 2012, L 26, p. 1).

(2)  Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005, L 142, p. 1).

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