Opinion of the Advocate General — ECLI:EU:C:2025:702
Date: 2025-09-11
Language of the case: English
Procedure: Reference for a preliminary ruling
Origin: Ireland

Anonymised version 
 C-58/24 - 1 
Case C-58/24 
Request for a preliminary ruling 
Date lodged: 
26 January 2024 
Referring court: 
High Court (Ireland) 
Date of the decision to refer: 
21 December 2023 
Applicants 
NE 
MY 
HJ 
XF 
WB 
UV 
VK 
JU 
RJ 
DZ 
Respondents: 
An Bord Pleanála 
Minister for Housing, Local Government and Heritage 
EN 
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Ireland 
The Attorney General 
Notice party:  
Drumakilla Limited 
      
[OMISSIS] 
[OMISSIS] [Formal order for reference] 
[OMISSIS] 
[Schedule setting out the five questions referred for a preliminary ruling, which 
are repeated below] 
[OMISSIS] 
THE HIGH COURT 
PLANNING & ENVIRONMENT 
[OMISSIS] 
[OMISSIS] [Parties to the national proceedings as set out above] 
JUDGMENT [OMISSIS] delivered on Thursday the 21st day of December, 
2023 
1. This request for a preliminary ruling concerns the interpretation of Article 
16(1) of Directive 92/43 and of Article 11 of Directive 2011/92 insofar as it 
relates to that provision. 
2. The request is being made in proceedings concerning a challenge to the 
legality of a derogation licence to facilitate the proposed construction of 
residential units and associated works at the former Carmelite monastery at 
Delgany, County Wicklow. 
Legal context 
European Union law 
3. Article 16(1) of Council Directive 92/43/EEC of 21 May 1992 on the 
conservation of natural habitats and of wild fauna and flora OJ L 206 22.7.1992, 
p. 7-50 provides: 
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"1. Provided that there is no satisfactory alternative and the derogation is 
not detrimental to the maintenance of the populations of the species 
concerned at a favourable conservation status in their natural range, Member 
States may derogate from the provisions of Articles 12, 13, 14 and 15 (a) 
and (b): 
(a) in the interest of protecting wild fauna and flora and conserving natural 
habitats; 
(b) to prevent serious damage, in particular to crops, livestock, forests, 
fisheries and water and other types of property; 
(c) in the interests of public health and public safety, or for other 
imperative reasons of overriding public interest, including those of a social 
or economic nature and beneficial consequences of primary importance for 
the environment; 
(d) for the purpose of research and education, of repopulating and re-
introducing these species and for the breedings operations necessary for 
these purposes, including the artificial propagation of plants; 
(e) to allow, under strictly supervised conditions, on a selective basis and 
to a limited extent, the taking or keeping of certain specimens of the species 
listed in Annex IV in limited numbers specified by the competent national 
authorities." 
4. Article 6 of Directive 2011/92 provides: 
"1. Member States shall take the measures necessary to ensure that the 
authorities likely to be concerned by the project by reason of their specific 
environmental responsibilities or local and regional competences are given 
an opportunity to express their opinion on the information supplied by the 
developer and on the request for development consent, taking into account, 
where appropriate, the cases referred to in Article 8a(3). To that end, 
Member States shall designate the authorities to be consulted, either in 
general terms or on a case-by-case basis. The information gathered pursuant 
to Article 5 shall be forwarded to those authorities. Detailed arrangements 
for consultation shall be laid down by the Member States. 
2. In order to ensure the effective participation of the public concerned in 
the decision-making procedures, the public shall be informed electronically 
and by public notices or by other appropriate means, of the following 
matters early in the environmental decision-making procedures referred to in 
Article 2(2) and, at the latest, as soon as information can reasonably be 
provided: 
(a) the request for development consent; 
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(b) the fact that the project is subject to an environmental impact 
assessment procedure and, where relevant, the fact that Article 7 applies; 
(c) details of the competent authorities responsible for taking the decision, 
those from which relevant information can be obtained, those to which 
comments or questions can be submitted, and details of the time schedule for 
transmitting comments or questions; 
(d) the nature of possible decisions or, where there is one, the draft 
decision; 
(e) an indication of the availability of the information gathered pursuant to 
Article 5; 
(f) an indication of the times and places at which, and the means by 
which, the relevant information will be made available; 
(g) details of the arrangements for public participation made pursuant to 
paragraph 5 of this Article. 
3. Member States shall ensure that, within reasonable time-frames, the 
following is made available to the public concerned: 
(a) any information gathered pursuant to Article 5; 
(b) in accordance with national legislation, the main reports and advice 
issued to the competent authority or authorities at the time when the public 
concerned is informed in accordance with paragraph 2 of this Article; 
(c) in accordance with the provisions of Directive 2003/4/EC of the 
European Parliament and of the Council of 28 January 2003 on public access 
to environmental information, information other than that referred to in 
paragraph 2 of this Article which is relevant for the decision in accordance 
with Article 8 of this Directive and which only becomes available after the 
time the public concerned was informed in accordance with paragraph 2 of 
this Article. 
4. The public concerned shall be given early and effective opportunities 
to participate in the environmental decision-making procedures referred to in 
Article 2(2) and shall, for that purpose, be entitled to express comments and 
opinions when all options are open to the competent authority or authorities 
before the decision on the request for development consent is taken. 
5. The detailed arrangements for informing the public, for example by 
bill posting within a certain radius or publication in local newspapers, and 
for consulting the public concerned, for example by written submissions or 
by way of a public inquiry, shall be determined by the Member States. 
Member States shall take the necessary measures to ensure that the relevant 
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information is electronically accessible to the public, through at least a 
central portal or easily accessible points of access, at the appropriate 
administrative level. 
6. Reasonable time-frames for the different phases shall be provided for, 
allowing sufficient time for: 
(a) informing the authorities referred to in paragraph 1 and the public; and 
(b) the authorities referred to in paragraph 1 and the public concerned to 
prepare and participate effectively in the environmental decision-making, 
subject to the provisions of this Article. 
7. The time-frames for consulting the public concerned on the 
environmental impact assessment report referred to in Article 5(1) shall not 
be shorter than 30 days." 
5. Article 11 of Directive 2011/92 provides: 
"1. Member States shall ensure that, in accordance with the relevant 
national legal system, members of the public concerned: 
(a) having a sufficient interest, or alternatively; 
(b) maintaining the impairment of a right, where administrative procedural 
law of a Member 
State requires this as a precondition; 
have access to a review procedure before a court of law or another 
Independent and impartial body established by law to challenge the 
substantive or procedural legality of decisions, acts or omissions subject to 
the public participation provisions of this Directive. 
2. Member States shall determine at what stage the decisions, acts or 
omissions may be challenged. 
3. What constitutes a sufficient interest and impairment of a right shall be 
determined by the Member States, consistently with the objective of giving 
the public concerned wide access to justice. To that end, the interest of any 
non-governmental organisation meeting the requirements referred to in 
Article 1(2) shall be deemed sufficient for the purpose of point (a) of 
paragraph 1 of this Article. Such organisations shall also be deemed to have 
rights capable of being impaired for the purpose of point (b) of paragraph 1 
of this Article. 
4. The provisions of this Article shall not exclude the possibility of a 
preliminary review procedure before an administrative authority and shall 
not affect the requirement of exhaustion of administrative review procedures 
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prior to recourse to judicial review procedures, where such a requirement 
exists under national law. 
Any such procedure shall be fair, equitable, timely and not prohibitively 
expensive. 
5. In order to further the effectiveness of the provisions of this Article, 
Member States shall ensure that practical information is made available to 
the public on access to administrative and judicial review procedures." 
6. It was common ground between the parties that Article 11 of Directive 
2011/92 applies to a challenge to a screening decision, not just to a decision 
following environmental assessment: the judgment of 15 October 2015, 
Commission v Germany, C-137/14, ECLI:EU:C:2015:683 at §48 and 49, the 
judgment of 16 April 2015, Gruber, C-570/13, ECLI:EU:C:2015:231; the 
judgment of 7 November 2018, Flausch and Others, C-280/18, 
ECLI:EU:C:2019:928, paras. 46 and 47. Additionally, the applicant's submission 
was that the "Aarhus Convention Compliance Committee in case 
ACCC/C/2010/50 concerning compliance by the Czech Republic held that an EIA 
screening decision is a determination under Article 6(1)(b) of the Convention and 
therefore the provisions of Article 9(2) apply which require that the public 
concerned have access to a review procedure to challenge the legality of the 
outcome of the EIA screening process". 
7. Other relevant EU law includes: 
(i) Judgment of 16 June 2005, Pupino, C-105/03, ECLI:EU:C:2005:386 
[OMISSIS]; 
(ii) Judgment of 19 September 2006, Germany GmbH and Arcor AG & 
Co. KG, C-39/04 and C-422/04, ECLI:EU:C:2006:586 [OMISSIS], 
para. 57; 
(iii) Judgment of 15 April 2008, Impact v Minister for Agriculture and 
Food and others, C-268/06, ECLI:EU:C:2008:223 [OMISSIS]; 
(iv) Judgment of 28 January 2010, Commission v Ireland, C-456/08, 
ECLI:EU:C:2010:46 [OMISSIS]; 
(v) Judgment of 30 June 2011, Meilicke and Others, C-262/09, 
ECLI:EU:C:2011:438, [OMISSIS] para 55; 
(vi) Judgment of 18 October 2012, Pelati v Republika Slovenija, C-603/10, 
ECLI:EU:C:2012:639, [OMISSIS] para 36; 
(vii) Judgment of 20 December 2017, Caterpillar Financial Services, 
C-500/16, EU:C:2017:996 [OMISSIS], paragraph 42; 
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(viii) Judgment of 15 March 2018, North East Pylon Pressure Campaign 
and Sheehy, C-470/16, ECLI:EU:C:2018:185 [OMISSIS]; 
(ix) Judgment of 10 October 2019, Luonnonsuojeluyhdistys Tapiola, 
C-947/17, ECLI:EU:C:2-19:851 [OMISSIS]; 
(x) Opinion of the Advocate General of 21 October 2021, C-463/20, 
Namur-Est Environnement, EU:C:2021:868 [OMISSIS]; 
(xi) Judgment of 24 February 2022, C-463/20, Namur-Est Environnement, 
ECLI:EU:C:2022:121 [OMISSIS]; 
(xii) Judgment of 6 July 2023, Hellfire Massy Residents Association, 
C-166/22, ECLI:EU:C:2023:545 [OMISSIS]; and 
(xiii) Judgement of 15 June 2023, Eco Advocacy, C-721/21, 
ECLI:EU:C:2023:477 [OMISSIS]. 
Domestic law 
8. Section 4 of the Planning and Development (Housing) and Residential 
Tenancies Act 2016 [OMISSIS] allowed (prior to its repeal) for strategic housing 
development applications. 
9. Order 84 r. 21(1) to (5) of the Rules of the Superior Courts (RSC) 
[OMISSIS] states: 
"21. (1) An application for leave to apply for judicial review shall be made 
within three months from the date when grounds for the application first 
arose. 
(2) Where the relief sought is an order of certiorari in respect of any 
judgement, order, conviction or other proceeding, the date when grounds for 
the application first arose shall be taken to be the date of that judgement, 
order, conviction or proceeding. 
(3) Notwithstanding sub-rule (1), the Court may, on an application for that 
purpose, extend the period within which an application for leave to apply for 
judicial review may be made, but the Court shall only extend such period if 
it is satisfied that: 
(a) there is good and sufficient reason for doing so, and 
(b) the circumstances that resulted in the failure to make the application 
for leave within the period mentioned in sub-rule (1) either: 
(i) were outside the control of, or 
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(ii) could not reasonably have been anticipated by 
the applicant for such extension. 
(4) In considering whether good and sufficient reason exists for the 
purposes of sub-rule (3), the court may have regard to the effect which an 
extension of the period referred to in that sub-rule might have on a 
respondent or third party. 
(5) An application for an extension referred to in sub-rule (3) shall be 
grounded upon an affidavit sworn by or on behalf of the applicant which 
shall set out the reasons for the applicant's failure to make the application for 
leave within the period prescribed by sub-rule (1) and shall verify any facts 
relied on in support of those reasons.” 
10. In accordance with established European and domestic caselaw, and in 
particular with the principle of effectiveness, the domestic law power to extend 
time under O. 84 r. 21(3) RSC is susceptible to a conforming interpretation such 
that it can and must be exercised in such a way as to provide for the full period (in 
this case, 3 months) to run from the date on which an applicant is or ought to be 
aware of the impugned decision. However the applicants made no application here 
for an extension of time. 
11. There is no specific statutory or regulatory provision in Irish law specifying 
how Article 11(2) of Directive 2011/92 applies to derogation decisions under 
Article 16(1) of Directive 92/43. 
12. Therefore general principles of statutory interpretation apply. The general 
national law principle is that interim decisions should be challenged following the 
final decision in a procedure, but while this is the predominant approach, this 
principle has not been applied consistently. However as a matter of domestic law 
the derogation licence is not an interim decision. The referring court concludes 
that in domestic law, and subject to any requirements of conforming 
interpretation, where a project requires multiple consents, each consent is a 
separate substantive decision which are to be individually challenged within the 
statutory period running individually from the date of each decision. Such a 
situation is not a series of interim decisions leading to a final definitive consent. 
13. Thus a derogation decision is a separate decision in law so that the time for 
judicial review commences when that decision is made, not when the related 
development consent is granted. 
14. The referring court concludes that the time limits for challenge to the 
derogation licence are reasonably foreseeable by reference to the general law on 
judicial review. 
15. Other relevant domestic law includes: 
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(i) Sections 50 and 50A of the Planning and Development Act 2000 (as 
amended) [OMISSIS] 
(ii) Planning and Development Regulations 2001 to 2023 (SI 600 of 
2001), as amended [OMISSIS]; 
(iii) Regulations 51, 54 and 54A of the European Communities (Birds and 
Natural Habitats) Regulations 2011 to 2021 [OMISSIS]; and 
(iv) Quinn and anor. v. An Bord Pleanala [2022] IEHC 699, [2022] 12 JIC 
1608 (and the case law cited) [OMISSIS]. 
Facts 
16. In anticipation of the development consent application, an application for a 
bat derogation licence was made to the National Parks and Wildlife Service 
(NPWS) on 17th January, 2020. The licence was issued on 4th March, 2020. 
17. On 16th July, 2020, a request was made to amend the licence to include the 
brown long-eared bat. That was granted and an amended licence issued on 21st 
July, 2020. 
18. The licence states: 
"This licence is granted solely to allow the activities specified in connection 
with the proposed strategic housing development located at Delgany, Co. 
Wicklow, for Drumkilla Ltd." 
19. Condition 4 states: 
"The mitigation measures outlined in the application report (Environmental 
Impact Assessment for a proposed strategic housing development on lands, 
Delgany, Co. Wicklow, 7. remedial or reductive measures, 7.11 Protection 
Measures for Bat Roosts -- Buildings, 7.12 Protective Measures for Bat 
Roosts -- Trees, 7.13 Protective Measures for Bat Foraging and Commuting, 
pp 30-37), together with any changes or clarification agreed in 
correspondence between NPWS and the agent or applicant, are to be carried 
out. Strict adherence must be paid to all the proposed measures in the 
application." 
20. Two factual conclusions can be drawn by the referring court in relation to 
the derogation licence: 
(I) while the licence denies the existence of satisfactory alternatives to the 
grant of the derogation, the materials disclose no consideration of 
alternatives with less impact on strictly protected species, or of the 
alternative option of not granting the licence, which gives rise to the 
inference that it is likely that there was no such consideration; and 
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(ii) the licence states that it is issued in the interests of protection of the 
species concerned. If and insofar as that requirement means that the 
derogation itself, as opposed to mitigating conditions, is in the interests 
of such species, then that conclusion is manifestly unreasonable and 
indeed absurd. 
21. The critical dates are as follows: 
(i) date of derogation licence - 4th March, 2020, amended on 21st July, 
2020; 
(ii) date applicants knew or could reasonably have been aware of the 
derogation licence - 21st October, 2020 on the making of the 
application for permission; 
(iii) date of permission - 15th February, 2021; and 
(iv) date on which the proceedings challenging the derogation licence were 
brought - 25th March, 2021. 
22. Pre-application consultation took place on 23rd July, 2020, which resulted in 
a board order identifying issues to be addressed dated 12th August, 2020. 
23. The application for planning permission under section 4 of the Planning and 
Development (Housing) and Residential Tenancies Act 2016 was submitted on 
21st October, 2020. The application was accompanied by an EIA screening report. 
The revised derogation licence was appended to the application documentation, so 
the application date was the first date on which the applicants could have known 
about it. 
24. The applicants made submissions on the application. The board's inspector 
then prepared a report recommending grant of permission with conditions dated 
3rd February, 2021. The board broadly accepted this recommendation. 
25. The board completed a screening for environmental Impact assessment and 
considered that the Environmental Impact Screening Report submitted by the 
developer identified and described adequately the direct, indirect, secondary and 
cumulative effects of the Proposed Development on the environment. The board 
concluded that having regard to the matters listed in the board's decision that the 
proposed development, by reason of the nature, and location of the site the 
proposed development would not be likely to have significant effects on the 
environment. The board therefore decided that an environmental impact 
assessment report for the proposed development was not necessary. 
26. The board granted permission on 15th February, 2021. 
27. Insofar as the applicant made an issue under Article 11(2) and (5) of 
Directive 2011/92 it was common ground that: 
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(i) there is no specific statute specifying the time limit for a challenge to a 
derogation decision specifically, above and beyond the rules on 
judicial review generally; and 
(ii) likewise the State has not specifically publicised any particular 
procedure for the information of the public as to how to challenge a 
derogation decision as opposed to giving public information on 
judicial review generally. 
Procedural history 
28. Proceedings challenging the board's decision and the derogation licence 
were issued on 25th March, 2021. The applicants did not seek to extend time for 
the challenge. 
29. The applicants did not challenge the derogation licence within 3 months of 
when they became or ought to have become aware of it (and hence within a period 
that the court would have permitted by way of a conforming interpretation of the 
power to extend time, had such an application been made). 
30. On 19th April, 2021, the referring court granted leave to seek judicial review 
and a stay on the works. [OMISSIS] 
[OMISSIS] [Procedural information not relevant for the purposes of the 
preliminary reference] 
32. On 5th July, 2023, the referring court dismissed the application to quash the 
planning permission and adjourned for further submissions the challenge to the 
derogation licence. The stay was continued for the time being. 
33. An important point in this regard is that the applicants failed to mount a 
derogation-based challenge to the planning permission. On the pleaded case, the 
challenge to the derogation licence was not a ground to challenge the permission. 
Hence the challenge to the planning permission was dismissed even though the 
derogation licence challenge remains outstanding. 
[OMISSIS] 
[OMISSIS] [Procedural information not relevant for the purposes of the 
preliminary reference] 
37. The referring court's conclusion is that the application is out of time and 
should be dismissed, subject to any rule of EU law that required a contrary result. 
The referring court was inclined to the view that there was no such rule, but that 
the position was not completely beyond doubt and therefore that it was 
appropriate to refer the issue to the CJEU. 
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38. In the circumstances the referring court has decided to stay the proceedings 
and to refer the following questions to the Court of Justice for a preliminary 
ruling. 
39. The board (the first named respondent) did not get involved in the issues 
regarding the reference. 
The first question - Scope of Namur-Est 
40. The first question is: 
Does Article 11 of Directive 2011/92 read in the light of the principle of 
wide access to justice under Article 9(2) of the Aarhus Convention have 
the effect that, in a case where a project within the meaning of Article 
1(2)(a) of Directive 2011/92 the subject of an application for 
development consent (the "primary consent") cannot be carried out 
without the developer having first obtained another permission (the 
"secondary consent"), and where the authority competent for granting 
the primary consent for such a project retains the ability to assess the 
project's environmental impact more strictly than was done in the 
secondary consent, such a secondary consent (if granted prior to the 
primary consent) is to be treated as forming part of the development 
consent procedure for purposes other than in relation to the scope of 
matters to be considered or assessed under Directive 2011/92, either 
generally or where the secondary consent is a decision adopted under 
Article 16(1) of Directive 92/43 and which authorises a developer to 
derogate from the applicable species protection measures in order to 
carry out the project? 
41. The applicant's proposed answer is that the Namur-Est judgment is not 
limited to the scope of consideration and therefore is relevant for procedural 
matters such as limitation periods. It is clear from the Namur-Est judgment, that in 
the particular circumstances which arose in Belgium and which also apply in 
Ireland, the derogation decision must be considered as forming part of the 
development consent procedure with the grant of development consent being the 
end point of the decision making process. In particular the authority competent for 
granting development consent, i.e. the board, retains the ability to assess the 
project's environmental impact assessment more strictly than was done in the 
derogation decision. The Court also ruled that it was not necessary to provide 
public participation in respect of the derogation decision provided that such 
participation is effectively ensured before the adoption of the decision on possible 
development consent. This is also the case in Ireland. As already submitted by the 
applicants, the EIA screening decision is effectively a threshold determination as 
to whether EIA is required for the project and therefore also as to whether the 
findings of the Namur-Est case apply at all to the project. This supports the 
applicants' view that under EU law the time limit to challenge the derogation 
licence must run from the date of the EIA screening decision which screened the 
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project out, since it is only at that point is it determined whether the derogation 
decision must be considered as part of the development consent procedure per 
Namur-Est or whether it comes within another regime. It would also be contrary 
to Namur-Est for it to be interpreted as applying only to the scope of consideration 
and irrelevant to other issues such as limitation periods. It would be perverse for 
Directive 2011/92 to be interpreted in such a way that a member of the public 
concerned would have to challenge a derogation licence before the public 
participation phase of the procedure had concluded, which would be the case if 
national limitation periods were not affected by the Namur-Est ruling. 
42. The State's proposed answer is that in Namur-Est, the CJEU held (at §66) 
that the Directive 2011/92 must be interpreted as meaning that a decision adopted 
under Article 16(1) of Directive 92/43/EEC, which authorises a developer to 
derogate from the applicable species protection measures in order to carry out a 
project within the meaning of Article l(2)(a) of Directive 2011/92, forms part of 
the development consent procedure within the meaning of Article 1(2)(c) of 
Directive 2011/92, where, first, the project cannot be carried out without the 
developer having first obtained that derogation decision and, secondly, the 
authority competent for granting development consent for such a project retains 
the ability to assess the project's environmental impact more strictly than was 
done in that derogation decision. Thus, a decision to grant a Derogation Licence 
under Article 16 of Directive 92/43 forms part of the development consent 
procedure within the meaning of Article l(2)(c) of Directive 2011/92. In that 
context, the Derogation Licence is a discrete decision taken in a development 
consent process and is "challengeable" as a discrete decision taken in that process. 
However, the Derogation Licence is not to be treated as forming part of the 
development consent procedure for purposes other than in relation to the scope of 
matters to be considered or assessed under Directive 2011/92. It is further 
submitted that the decision in Namur-Est is limited to the scope of consideration 
and is irrelevant to the issue of the applicable limitation period. 
43. The notice party's proposed answer is to agree with the State's proposed 
answer. 
44. The referring court's proposed answer is No. While the referring court 
appreciates that in both the opinion of Advocate General Kokott in Namur-Est at 
para. 37, and the judgment of the CJEU, para. 66, the derogation licence was to be 
treated as part of the development consent, this was only in the context of the 
scope of matters to be considered or assessed as part of environment impact 
assessment. Namur-Est does not establish that a derogation licence or other multi-
consent decision must be treated as a single decision for any other purpose, such 
as time limits for example. To treat such secondary consents as part of the primary 
consent for such other purpose would create procedural chaos and would be 
contrary to the principle of legal certainty. There is nothing perverse about 
requiring an applicant to challenge a derogation licence while public participation 
may be ongoing in the related development consent. Nor does this undermine 
public participation or access to justice in any other way. It simply requires 
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members of the public concerned to bring any challenge to the derogation decision 
separately by way of an action within the time fixed by domestic law. Otherwise, 
challenges to a multi-stage consent process would become unmanageable and 
chaotic if all were to be potentially postponable until the final consent. 
45. The relevance of the question is that if an earlier derogation decision is 
treated as part of the development consent only for the purposes of matters to be 
considered, and not for the purposes of any extension of limitation periods for 
challenge, then the present action is out of time under domestic law, and a 
conclusion to that effect does not contravene EU law, subject to the next question. 
The second question - limitation periods generally 
46. The second question is: 
If the answer to the first question is Yes, does Article 11 of Directive 
2011/92 read in the light of the principle of wide access to justice under 
Article 9(2) of the Aarhus Convention have the effect that national 
domestic rules as to the date on which time commences to run to 
challenge the validity of a decision adopted under Article 16(1) of 
Directive 92/43 (the "secondary consent") must be interpreted so as to 
preclude that time from commencing to run prior to the date of 
adoption of the development consent concerned (the "primary 
consent"), either generally or in a case where: (i) the project was subject 
to the case-by-case examination envisaged by Article 4(2)(a) of Directive 
2011/92, and/or (ii) the determination under Article 4(5) for the 
purposes of the primary consent was made after the secondary consent 
had been granted and simultaneously with the decision on the primary 
consent, and/or (iii) the proceedings challenging the validity of the 
secondary consent do not contain any ground challenging the relevant 
primary consent by reference to the asserted invalidity of the secondary 
consent, and/or (iv) the applicant fails to apply for an extension of time 
to bring the challenge to the secondary consent, which application is 
required by domestic law for a late challenge in the absence of any EU 
law rule to the contrary? 
47. The applicant's proposed answer is that insofar as relates to a derogation 
licence, this does not arise in light of the Namur-Est judgment and the national 
law principle that interim decisions should be challenged following the final 
decision in a procedure. The applicants argue, by analogy, that the derogation 
licence decision is a preliminary decision for the purpose of the EIA screening 
determination in the same way as it was held to be a preliminary decision within 
the EIA procedure, and therefore only becomes final once the procedures under 
Directive 2011/92 come to an end, either with a negative EIA screening 
determination or the EIA determination if the project is screened in by the 
competent authority. In addition, since the rationale of Namur-Est is derived from 
the procedural rights given to the public concerned under Directive 2011/92 for 
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projects requiring EIA, it would be contrary to that directive for national law to 
require the applicants to challenge the derogation licence even before those rights 
were established which only occurs with the EIA screening determination under 
Article 4(5) of Directive 2011/92. The EIA screening determination essentially 
determines whether the procedural rules under EU law apply, as set out in Namur-
Est, or whether national procedural rules apply, which would be [the] case if a 
negative screening determination was made under Article 4(5)(b) of Directive 
2011/92. If the project is screened in then Namur-Est applies which means that the 
applicants are entitled to wait at least until the screening determination is made 
before their rights in relation to the derogation licence crystallise. If the project 
were to be screened in they would then be entitled to wait until the conclusion of 
the environmental assessment by the competent authority and to consider a 
possible challenge in light of that assessment as explained by the AG in Namur-
Est. It would therefore be contrary to Directive 2011/92 for the time limit to 
challenge the Derogation Licence to start to run before the EIA screening 
determination was published. 
48. The State's proposed answer is that, in the light of the judgment of 6 July 
2023, Hellfire Massy Residents Association, C-166/22, ECLI:EU:C:2023:545, the 
question of when time runs where a point of EU law is at issue is acte clair or acte 
éclairé against the applicants. First, the time period within which to challenge the 
derogation licence was three months from the grant of the derogation licence or, 
alternatively, applying a conforming interpretation, from the date when the 
applicants actually, or should have, found out about the derogation licence. 
Secondly, Directive 2011/92, when read in light of the access to justice principles 
in Articles 9(2) of the Aarhus Convention, does not require that domestic time 
limits should be construed differently in this case. Third, the CJEU very recently 
concluded in Hellfire Massy Residents Association, C-166/22 that Directive 
2011/92 did not lay down any obligation for the derogation procedure under 
Article 16 to be integrated into the procedures for granting development consent 
to projects. Fourth, in the particular circumstances of this case, where the Court 
has already held that the applicants did not contend on the pleadings that the 
permission was invalid because the derogation licence was invalid, there is no 
basis for an interpretation of sub-rules 21(1) and/or (2) that a challenge to the 
derogation licence may be brought at the end of the development consent/planning 
application procedure. Fifth, the applicants could have challenged the decision of 
the relevant competent authority - An Bord Pleanála - to grant development 
consent, on the basis that it did not assess the project's impact on protected species 
more strictly than was done at the derogation licence stage. However, the 
applicants simply did not advance that proposition. It is a matter of the utmost 
significance that, in considering the interrelationship between a derogation licence 
and a grant of planning permission, the CJEU has very recently held that neither 
Directive 92/43 nor Directive 2011/92 lay down any obligation for the derogation 
procedure under Article 16 to be integrated into the procedures for granting 
development consent to projects. The State Respondents submit that if there is no 
obligation for the derogation licence procedure to be integrated into the 
procedures for granting planning permission, there can be no concomitant 
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obligation for a conforming interpretation to be applied to sub-rule 21(2) insofar 
as it applies to administrative proceedings, so as to conclude that the date of the 
proceedings would have to be interpreted as the date of the final decision under 
the planning code. It would be entirely contrary to the principle of legal certainty 
if the time limit that applies to the grant of the derogation licence was, somehow, 
to be "suspended" until the grant of the development consent. If the court was to 
hold with this principle, it would potentially also apply to other statutory consents 
such as foreshore licences granted under the Foreshore Act 1933 (which is 
domestic law) or industrial emission licences (granted under Regulations and the 
Environmental Protection Agency Act 1992 giving effect to the Industrial 
Emissions Directive). 
49. The notice party's proposed answer is No. 
50. The referring court's proposed answer is that this does not arise because the 
answer to the first question is No, but if it does arise the answer is No. The 
Namur-Est decision should not be extended to have the effect of cutting across 
domestic limitation periods which are a matter within the scope of national 
procedural autonomy, subject to the principles of equivalence and effectiveness: 
Judgment of 17 November 2016, Stadt Wiener Neustadt v Niederosterreichische 
Landesregierung, C-348/15, ECLI:EU:C:2016:882 at paras. 40 and 41, judgment 
of 20 December 2017, Caterpillar Financial Services, C-500/16, EU:C:2017:996, 
paragraph 42[,] Flausch and Others, C-280/18, EU:C:2019:928, paragraphs 46-
49, 51, and 54-60. To so extend Namur-Est would be contrary to the principle of 
legal certainty. No such extension is necessary because where a project requires 
multiple consents, each consent can be challenged as it is made, within the 
relevant limitation period in domestic law which may vary from decision to 
decision subject to the principles of equivalence and effectiveness. As regards the 
specific sub-elements referred to in the question: 
(i) the fact that the project was subject to the case-by-case examination 
envisaged by Article 4(2)(a) of Directive 2011/92 is immaterial; 
(ii) the fact that the determination under Article 4(5) for the purposes of 
the primary consent was made after the secondary consent had been 
granted and simultaneously with the decision on the primary consent is 
also immaterial; 
(iii) if EU law does not generally require the postponement of a time limit 
to challenge a secondary consent until the primary consent is given, 
this must apply a fortiori if the proceedings challenging the validity of 
the secondary consent do not contain any ground challenging the 
relevant primary consent by reference to the asserted invalidity of the 
secondary consent; thus while the answer should be No in any event, 
this is doubly so where the challenge brought to an earlier consent in a 
multi-stage consent process is not linked in the pleadings to the 
validity of any consent issued at a later stage; and 
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(iv) where the applicant fails to apply for an extension of time to bring the 
challenge to the secondary consent, which application is required by 
domestic law for a late challenge, this has the effect that a necessary 
precondition for a conforming interpretation does not apply on the 
facts. An applicant's failure to even apply for an extension of time as 
mandated by national rules is a disregard of domestic law which goes 
beyond any EU law entitlement. If an extension of time that is 
necessitated by domestic law is actually applied for, any EU law 
entitlements can be read in by way of a conforming interpretation. But 
if an applicant fails to even seek the necessary extension of time, 
contrary to domestic law, the need for a conforming interpretation does 
not arise. 
51. The relevance of the question is that if the answer to either the first question 
or this question is No then the action must be dismissed as out of time. 
The third question - limitation periods in the absence of express provision 
52. The third question is: 
If the answer to the first question is Yes and if the answer to the second 
question in general is No, does Directive 2011/92 read in the light of 
article 47 of the Charter of Fundamental Rights and/or the principle of 
wide access to justice under Article 9(2) of the Aarhus Convention have 
the effect that a time limit provided by the domestic law of a member 
state for the bringing of proceedings to assert a right under that 
Directive, must be reasonably foreseeable, but does not have to be 
expressly specified in legislation in accordance with Article 11(2) of 
Directive 2011/92 and/or in practical information made available to the 
public on access to administrative and judicial review procedures 
pursuant to Article 11(5) of Directive 2011/92 and/or definitively 
determined with certainty by domestic caselaw, so that the answer to 
the second question is unaffected by provision being made in the 
domestic law of a member state for a foreseeable time limit of a general 
nature which applies to public law actions generally including for the 
bringing of proceedings challenging a decision adopted under Article 
16(1) of Directive 92/43 and which authorises a developer to derogate 
from the applicable species protection measures in order to carry out 
the project, albeit that this is implicit rather than explicit in the 
domestic law concerned? 
53. The applicant's proposed answer is as per the second question. In the 
judgment of 28 January 2010, Commission v Ireland, C-456/08, 
ECLI:EU:C:2010:46, the Court of Justice held that the sixth subparagraph of 
Article 10a of the previous Directive 85/337 (which is identical to Article 11(5) of 
the current directive) is an obligation to obtain a precise result which the Member 
State must ensure is achieved. The Court of Justice held that: "In the absence of 
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any specific statutory or regulatory provision concerning information on the rights 
thus offered to the public, the mere availability, through publications or on the 
internet, of rules concerning access to administrative and judicial review 
procedures and the possibility of access to court decisions cannot be regarded as 
ensuring, in a sufficiently clear and precise manner, that the public concerned is in 
a position to be aware of its rights on access to justice in environmental matters." 
Thus, it is not sufficient for the State to state baldly that the general rules, 
including common law rules, provide that time runs from the date when the public 
becomes aware of a preliminary decision. The State is required to determine 
specifically at what stage a challenge may be brought and to provide practical 
information on access to procedures to bring those challenges, including precisely 
specifying when the time period within which a challenge must be brought. 
54. The State's proposed answer is that Directive 2011/92 read in the light of the 
principle of wide access to justice under Article 9(2) of the Aarhus Convention 
does not have the effect specified in the second question where the law of the 
member state concerned has not definitively determined, in accordance with 
Article 11(2) of Directive 2011/92, at what stage the decisions, acts or omissions 
may be challenged, and where the position is not determined with certainty by 
domestic caselaw. 
55. The notice party's proposed answer is that this does not arise on the facts of 
this case. Order 84 RSC provides for when time begins to run in respect of a 
challenge by way of judicial review. The three-month time limit runs from the 
date of the decision as set out above. 
56. The referring court's proposed answer is that this does not arise because the 
answer to the first question is No. But If it does arise, the answer is Yes. The 
objectives of access to justice are met by the existence of a foreseeable time limit. 
There is no basis to go beyond that and to require that the time limit for any 
particular type of proceedings should be determined beyond doubt by express 
provision in legislation or express findings in definitive caselaw. Such an 
obligation would be impracticable given the vast number of possible legal actions 
that could be brought across the field of EU law, each of which would in principle 
be subject to the requirement for the existence of an effective remedy. Creating an 
express list of such actions and keeping it up to date would be impracticable and 
indeed virtually impossible. Hence a general, foreseeable, time limit must suffice. 
Here, the general time limit in O. 84 RSC applies and that creates sufficient 
foreseeability for applicants generally. 
57. The relevance of the question is that if the answer to the first question is yes 
but the answer to the second question remains negative despite the existence of a 
general time limit then the action must be dismissed as out of time. 
The fourth question - merits - alternatives to derogation 
58. The fourth question is: 
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If the answer to the first question is Yes and either the answer to the 
second question is Yes or the answer to the third question is No, does 
Article 16(1) of Directive 92/43 have the effect that a competent 
authority cannot conclude that there is "no satisfactory alternative" to a 
decision which authorises a developer to derogate from the applicable 
species protection measures in order to carry out a project within the 
meaning of Article l(2)(a) of Directive 2011/92 unless the competent 
authority actually considers alternatives such as alternative location or 
design, or refusal of the derogation? 
59. The applicant's proposed answer is that the competent authority must (a) 
consider alternatives; and (b) explain how it has considered them. This is also 
clear from the judgment of 10 October 2019, Luonnonsuojeluyhdistys Tapiola, 
C-947/17, ECLI:EU:C:2019:851, which held that the obligation to provide a 
statement of reasons is not met when the derogation contains no reference to the 
absence of any other satisfactory alternatives or any reference to technical, legal 
and scientific reports to that effect. Thus it follows that given the requirement to 
state reasons in relation to satisfactory alternatives, there must be a requirement 
for the competent authority to actually consider satisfactory alternatives such as 
alternative location or design, or refusal of the derogation, and to document its 
reasoned conclusion in its decision. As identified by Richard Moules, Significant 
EU Environmental Cases: 2019, Journal of Environmental Law, Volume 32, Issue 
1, March 2020, Pages 161-172, https://doi.org/10.1093/jel/eqaa002, at page 168: 
"This decision illustrates that the Court is willing to put national authorities to 
proof to demonstrate the strict necessity of derogations from the Habitats 
Directive. The requirement for objective scientific data and clear and precise 
reasons ensures that derogations are only made as a matter of last resort, thereby 
strengthening the aim of the Habitats Directive of ensuring biodiversity through 
the conservation of natural habitats and wild fauna and flora." In the present case 
none of these concerns was present. There was no countervailing objective of 
protecting other wild flora or fauna or natural habitats, and the need for a 
derogation could have been avoided entirely by either not carrying out the project 
or alternatively through a modified project. 
60. The State's proposed answer is that the fourth and fifth questions are moot 
because the proceedings are outside time. The Court has itself identified that the 
issues falling for consideration relate to the interpretation and application of Order 
84, rule 21 of the Rules of the Superior Courts 1986, as amended. If contrary to 
this the question arises, the fourth question should be answered in the affirmative. 
61. The notice party's proposed answer is that the fourth and fifth questions are 
not required as the challenge to the Derogation Licence is time-barred and no 
application for an extension of time has been made. 
62. The referring court's proposed answer is that this does not arise because the 
answer to the threshold first question is No. If it does arise the answer is Yes. The 
requirements of Directive 92/43 would be significantly undermined and the 
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consideration of alternatives would be artificial and unreal unless the actual 
alternatives, specifically alternative locations if that is an option, alternative 
designs if that is an option, or refusal of the derogation, are actually given 
meaningful consideration. 
63. The relevance of the question is that if the application is not out of time, and 
the question is answered No, the derogation licence would be held invalid. 
The fifth question - merits - protection by means of derogation 
64. The fifth question is: 
If the answer to the first question is Yes and either the answer to the 
second question is Yes or the answer to the third question is No, does 
Article 16(1) of Directive 92/43 have the effect that a competent 
authority cannot conclude that it is "in the interest of protecting wild 
fauna and flora and conserving natural habitats" to grant a decision 
which authorises a developer to derogate from the applicable species 
protection measures in order to carry out a project within the meaning 
of Article 1(2)(a) of Directive 2011/92 unless some identified protection 
is created by the derogation itself rather than by mitigation measures 
adopted to reduce or compensate for the detriment created by the steps 
authorised by the derogation decision? 
65. The applicant's proposed answer is that Article 16(l)(a) of Directive 92/43 
does not provide an appropriate legal basis for the grant of the Derogation Licence 
since the activities sought to be authorised, i.e. the construction of a private 
housing development, are not aimed at the protection of wild fauna and flora or 
the conservation of natural habitats. In fact, the overall net result of the derogation 
would be to harm wild fauna and their habitats, since there are no identified 
positive benefits from the proposed development which would otherwise give rise 
to the protection of wild flora and fauna or natural habitats. In the applicants' 
view, the derogation under Article 16(l)(a) involves a proportionate trade-off 
between strict protection of species on the one hand and the protection of other 
wild flora and fauna and the conservation of habitats on the other. In other words, 
in certain circumstances a derogation may be granted if the harm caused by 
activities prohibited under Article 12 is the price worth paying for the protection 
of other species or the conservation of other habitats. This provision is not 
concerned with facilitating development, particularly where (as here) there is no 
evidence that the developer considered development alternatives that would have 
allowed a modified development to proceed that also avoided entirely prohibited 
activities affecting strictly protected species. 
66. The State's proposed answer is that this does not arise as per the fourth 
question, but if it does arise, the fifth question should be answered in the 
affirmative. 
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67. The notice party's proposed answer is as per the fourth question. 
68. The referring court's proposed answer is that this does not arise because the 
answer to the threshold first question is No. If it does arise the answer is Yes. The 
language and intention of Article 16(1) of Directive 92/43 supports the intention 
that the reference to the interest of protecting wild fauna and flora and conserving 
natural habitats must be promoted by the decision itself. Granting the decision for 
other reasons and then mitigating that decision with protection measures would 
not comply with that provision. 
69. The relevance of the question is that if the application is not out of time, and 
the question is answered No, the derogation licence would be invalid. 
Order 
70. For the foregoing reasons, it is ordered that: 
(i) the questions set out in this judgment be referred to the CJEU pursuant 
to article 267 TFEU; 
(ii) the substantive determination of the proceedings be adjourned pending 
the judgment of the CJEU, without prejudice to the determination of 
any appropriate procedural or interlocutory issues in the meantime 
including the stay on the primary consent, leave to appeal in relation to 
the primary consent, and costs of the challenge to that consent; 
[OMISSIS] 
[OMISSIS] [Orders made by the court outlining procedural details.]