Judgment;Summary — ECLI:EU:C:2025:140
Date: 2025-03-06
Language of the case: English
Court formation: Tenth Chamber
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Ireland

SUMMARY OF PROCEEDINGS TO DATE 
1. A summary of relevant facts relevant to the issues in these proceedings is set out in 
the High Court’s request for a preliminary ruling (§§12-23) and summary of the 
procedural history (§§34-40) - it is not necessary to repeat same here. 
B. INTRODUCTION 
2. The Applicant in the proceedings seeks to quash the decision of the Respondent of 
16 September 2020 to grant planning permission to the Notice Party (the 
“Developer”) for the construction of 123 apartments and associated works at a site 
on […], Ballincollig, County Cork, Republic of Ireland. 
3. The issues in these proceedings all relate to the degree of certainty that is required 
before significant impacts on species, that are strictly protected for the purposes of 
the Habitats Directive, can be screened out for the purposes of the assessing 
whether a proposed development will have a significant environmental impact for 
the purposes of the EIA Directive[.] 
4. For the purposes of the application for development consent, a tree survey was 
conducted, and screening reports prepared on behalf of the developer for the 
purposes of environmental impact assessment (EIA) under Directive 2011/92 as 
amended and appropriate assessment (AA) under Directive 92/43. 
5. That EIA Screening Report does not include any particular analysis of flora and 
fauna or refer to the impact on bats, and the screening table does not refer to 
biodiversity. 
6. In the AA screening report, there is no consideration of the actual impact on bats 
beyond a general reference that “[d]isturbance to fauna can arise directly through 
the loss of habitat (e.g. bat roosts) or indirectly through noise, vibration and 
increased activity associated with construction and operation”. The only reference 
to biodiversity is in the AA screening report which in turn only refers to Natura 
2000 sites rather than the ecology of the development site itself. 
 
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7. The Arboricultural assessment was carried out on a single day on 16th November, 
2019 and identified thirteen trees for removal. The assessment did not include the 
potential or actual use of the trees by bats or whether the site was used for foraging 
or commuting. The EIA screening report proposes the retention of existing 
vegetation on site “where possible” and states that its enhancement through new 
landscaping will result in a positive biodiversity impact. Contrary to the impression 
thereby created, a number of trees are in fact being removed, including a number 
of cypress trees and two of the six oak trees on site. One of the oak trees has a 
cavity which could raise questions regarding potential use by bats. 
8. The Applicant made a detailed submission to the Board identifying that the site of 
the proposed development was in close proximity to a wildlife corridor on the 
River Lee, recording visual sightings of bats on the site and referenced “Extant 
records of bats in the immediate area indicate that a diverse range of bat species 
use the river corridor and the key impacts on these animals arise through potential 
roost loss, loss of feeding areas and disruption of commuting routes” 
9. The Board’s Inspector recommended a grant of permission on 11th September, 
2020. The Inspector was of the view the site did not generally provide suitable 
habitats for wildlife or species of conservation interest, but said that tree-felling 
should be undertaken in accordance with the advice of a suitably qualified 
ecologist to obviate potential impact on bats (Condition 21). 
10. The Board concurred albeit after undertaking a screening assessment for the 
purposes of the EIA Directive. There was no assessment of the impact on bats from 
the proposed development and the Board concluded without explanation that “by 
reason of the nature, scale and location of the subject site, the proposed 
development would not be likely to have significant effects on the environment. The 
Board decided, therefore, that an environmental impact assessment report for the 
proposed development was not necessary in this case.” 
C. FINDING OF FACT 
11. The referring Court made an important finding of fact (§30): 
 
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“As a finding of fact on the evidence, the conclusion on the facts drawn by 
the referring court is that while there was some information from which the 
board might have concluded that it was possible there might not be a 
significant effect on bats, the above factors cumulatively mean that there was 
a lack of information to definitively exclude the possible risk of significant 
effects on bats as a result of the development. Rather the board appears to 
have simply proceeded on the basis of accepting the developer’s original EIA 
screening report, which was prior to the applicant’s submission and was not 
subsequently updated. The very nature of the procedure adopted, namely no 
updating of the information before the board in the light of the applicant’s 
submissions – which did not happen because of the serious design flaw that 
the 2016 Act didn’t allow the developer’s information to be supplemented – 
contributed to the problem.” 
12. It will be seen that at (§24) the referring court identified a number of factors which 
evidenced the lack of information to objectively exclude any risk of significant 
effect. 
13. The referring Court identified at §25 “factors which would render the board’s 
decision reasonable if the test is merely reasonableness as opposed to exclusion of 
doubt”. 
14. The Court identified at §27 – “The board did not submit evidence by way of 
affidavit explaining what exactly it thought it was doing when conducting the EIA 
screening.” 
15. The referring Court identified at §28 affidavit evidence on behalf of the developer, 
but concluded §29 – “Overall that affidavit does not evidentially establish that 
there was a removal of all reasonable risk of impact on bats.” 
16. The referring Court then made at §30 the crucial finding of fact quoted above. 
17. The “design flaw” referred to at §30 of the referring court’s judgment is that the 
2016 Act (unlike most Irish development consent procedures) did not provide for 
the competent authority to revert to the developer on foot of issues raised in the 
 
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course of public participation. 
D. THE FIRST QUESTION 
18. This question asks, in effect, whether - where there is material before the 
competent authority that a species or habitat might be affected by the project - 
a) the developer concerned should obtain all relevant information on species or 
habitats that may be affected by the project by conducting or obtaining 
scientific surveys that are adequate to remove doubt about significant effects 
on such species or habitats, and 
b) in the absence of the results of such surveys, the competent authority should be 
informed of and required to proceed on the basis of the absence of sufficient 
information to exclude doubt as to whether the project will have significant 
effects on the environment? 
19. The Applicant agrees with the referring Court that this question should be 
answered “Yes”. 
20. The Court’s suggested answer is as follows (§§44-45): 
“Insofar as concerns the screening of assessment of impacts of project on 
species or habitats, such screening would be incomplete, inadequate and 
ineffective unless there was an implied obligation to either conduct or obtain 
adequate scientific surveys, or to proceed on the basis that impact cannot be 
excluded. It would undermine the objective of the Directive to allow a 
competent authority to decide not to conduct assessment under Articles 5 to 
10 in a case where a reasonable doubt as to significant effects on the 
environment had not been excluded. 
The relevance of the question is that the developer here did not obtain all 
necessary scientific surveys, in particular a bat survey, such as would have 
excluded all reasonable risk of significant effects on the environment and 
specifically on bat species, but the board rejected the possibility of 
significant effects on the environment at the EIA screening stage. This would 
be impermissible if Directive 2011/92 has an effect as postulated in the 
 
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question.” 
21. The purpose of the EIA Directive is set at nought if a Developer and/or the consent 
authority can exclude the possibility of significant effects on the environment at 
Screening stage on the basis of incomplete and/or inadequate information. If the 
required information cannot or is not submitted by the Developer then Article 4(4) 
of the Directive should be read as importing an obligation on the Developer to 
inform the competent authority of that fact and that therefore the possibility of 
significant effects on the environment cannot be excluded. 
22. In the light, in particular, of the precautionary principle, which is one of the 
foundations of the high level of protection pursued by EU policy on the 
environment, in accordance with Article 191(2) TFEU, and by reference to which 
the EIA Directive must be interpreted, requires that the likelihood of significant 
effect to the environment must be considered to exist when that likelihood cannot 
be objectively excluded. 
23. There is no practical distinction between the test to exclude risk for EIA purposes 
and the test to exclude risk for habitats purposes. This is not surprising, as Union 
Law on the Environment is based on the precautionary principle and pursues a high 
level of protection. In Case C-526/16 Commission v Poland §67 the CJEU 
expressly referred to Case C-[127]/02 Waddenzee §44 
“Compte tenu du principe de précaution, qui est l’un des fondements de la 
politique de protection d’un niveau élevé poursuivie par l’Union dans le 
domaine de l’environnement, à la lumière duquel doit être interprétée la 
directive 2011/92, il est considéré qu’un tel risque existe dès lors qu’il ne 
peut être exclu, sur la base d’éléments objectifs, que le projet est susceptible 
d’avoir des incidences notables (voir, en ce sens, arrêts du 24 mars 2011, 
Commission/Belgique, C-435/09, non publié, EU:C:2011:176, point 64, ainsi 
que du 7 septembre 2004, Waddenvereniging et 
Vogelbeschermingsvereniging, C-127/02, EU:C:2004:482, point 44).” 
24. (Case C-[127]/02 Waddenzee §44 reads “In the light, in particular, of the 
precautionary principle, which is one of the foundations of the high level of 
 
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protection pursued by Community policy on the environment, in accordance with 
the first subparagraph of Article 174(2) EC, and by reference to which the 
Habitats Directive must be interpreted, such a risk exists if it cannot be excluded 
on the basis of objective information that the plan or project will have significant 
effects on the site concerned (see, by analogy, inter alia Case C-180/96 United 
Kingdom v Commission [1998] ECR 1-2265, paragraphs 50, 105 and 107). Such 
an interpretation of the condition to which the assessment of the implications of a 
plan or project for a specific site is subject, which implies that in case of doubt as 
to the absence of significant effects such an assessment must be carried out, makes 
it possible to ensure effectively that plans or projects which adversely affect the 
integrity of the site concerned are not authorised, and thereby contributes to 
achieving, in accordance with the third recital in the preamble to the Habitats 
Directive and Article 2(1) thereof, its main aim, namely, ensuring biodiversity 
through the conservation of natural habitats and of wild fauna and flora.”) 
25. In Case C-575/21 Wertlnvest, Adv-Gen Collins explained at para 47 (footnote 
omitted) – “Having regard to the precautionary principle, which is one of the 
foundations of the high level of protection that the European Union seeks to pursue 
in the field of environmental law, and by reference to which Directive 2011/92 falls 
to be interpreted, a risk of significant effects on the environment arises where it 
cannot be excluded, on the basis of objective information, that a project is likely to 
have such significant effects.” 
26. See also the Opinion of Adv-Gen Kokott in Eco-Advocacy CLG v. An Bord 
Pleanála, Case C-721/21 (footnotes omitted) - “61 The Court has held in this 
regard that an environmental impact assessment must be carried out where there 
is a probability or a risk that the project in question will have significant effects on 
the environment. In the light, in particular, of the precautionary principle, which is 
one of the foundations of the high level of protection pursued by EU policy on the 
environment, in accordance with Article 191(2) TFEU, and by reference to which 
the EIA Directive must be interpreted, such a risk exists if it cannot be excluded on 
the basis of objective circumstances that the project in question will have 
significant effects on the environment. This is consistent with the decision-making 
 
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practice of the Implementation Committee of the Espoo Convention, (which is 
transposed into EU law by the EIA Directive.” 
27. As identified by the CJEU in Commission v Italy C-87/02 paragraph 49 (emphasis 
added) “a decision by which the national competent authority takes the view that a 
project’s characteristics do not require it to be subjected to an assessment of its 
effects on the environment must contain or be accompanied by all the information 
that makes it possible to check that it is based on adequate screening, carried out 
in accordance with the requirements of Directive 85/337.” 
28. The requirement to “exclude” the project from EIA means that there must be a 
justifiable objective reason for excluding it. The reference to objective 
circumstances requires that the circumstances justifying exclusion must be 
identifiable. 
E. THE SECOND QUESTION 
29. By its second question, the referring Court asks, in effect, whether, where the 
competent authority does not have objective information sufficient to exclude 
doubt as to whether a proposed project will have significant effects on the 
environment, the project should be required to be subjected to an assessment under 
Articles 5 to 10 of the Directive? 
30. The Applicant agrees with the referring Court that this question should be 
answered “Yes”. 
31. The EIA Directive must be interpreted by reference to its broad principle and the 
achievement of the objective of environmental protection. Any potentially impact 
on such habitats and fauna must be axiomatically regarded as significant for the 
purposes of Stage 1 and Stage 2 EIA. This is particularly the case where (as here) 
the wild fauna are not designated as Conservation Objectives in respect of the 
surrounding Natura 2000 but rather are included within the ambit of Article 12 of 
the Habitats Directive. 
32. The Court’s case law in respect of Article 12 strongly suggests that any disturbance 
of such fauna represents a significant effect on the environment and therefore 
 
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assume[s] a particular significance for the purposes of assessing any potentially 
significant impact for the purposes of the EIA Directive. 
33. In Case C-463/20, Namur Est v Region Wallonie, paragraph 50, the Court of 
Justice specified that there is a particular obligation to have regard to species and 
habitats when conducting an assessment for the purposes of the EIA Directive. 
34. In Case [C-]526/16 Commission v Poland, the Court of Justice held: 
“Taking into account the precautionary principle, which is one of the 
foundations of the policy of protection of a high standard pursued by the 
European Union in the field of the environment, in the light of which 
Directive 2011/92 is to be interpreted, it is considered that such a risk exists 
if it cannot be excluded on the basis of objective evidence that the project is 
likely to have significant effects on the environment....”1 
35. In Case C-87/02, Commission v Italy, the Court of Justice held (§49): 
“a decision by which the national competent authority takes the view that a 
project’s characteristics do not require it to be subjected to an assessment of 
its effects on the environment must contain or be accompanied by all the 
information that makes it possible to check that it is based on adequate 
screening, carried out in accordance with the requirements of Directive 
85/337.” 
36. This implies the existence of required objective elements which exclude doubt in 
that regard. The Developer here did not obtain all necessary scientific surveys such 
as would have excluded any doubt as to the effect on bats, as found as a matter of 
fact by the referring Court. As a decision to screen out the necessity for full EIA 
under Articles 5 to 10 of the Directive is necessarily dependent on excluding all 
reasonable doubt as to significant effects on the environment, the absence of such 
information meant that the risk should have been screened in, then the decision not 
to conduct an EIA was impermissible. 
 
1 EU Commission: Informal translation of Commission v Poland, Case C-526/16, ECLI:EU:C:2018:356, 
paragraphs 66-67 as contained in the EU Commission’s 2020 Guidance document on EIA Case Law 
 
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F. THE THIRD QUESTION 
37. By its third question, the referring Court asks, in effect, whether if the answer to 
the first question is no, is that answer any different in circumstances where a 
strictly protected species for the purposes of Article 12 of the Habitats Directive is 
potentially affected by the proposed development. 
38. The Applicant agrees with the referring Court that this question should be 
answered “Yes”. 
39. Directive 2011/92 must be interpreted by reference to its broad principle and the 
achievement of the objective of environmental protection. Natural habitats and 
wild flora and fauna are the subject of particularly robust environmental protection. 
Any potential impact on such habitats and fauna must be regarded as significant for 
the purposes of Stage 1 EIA – Annex 3(1)(c) refers to “the use of natural 
resources, in particular land, soil, water and biodiversity”. This is particularly the 
case where (as here) the wild fauna are not designated as Conservation Objectives 
in respect of a Natura 2000 site but rather are included within the ambit of 
Article 12. The CJEU case law in respect of Article 12 strongly suggests that any 
disturbance of such fauna represents a significant effect on the environment and 
therefore assume a particular significance for the purposes of assessing any 
potentially significant impact for the purposes of Directive 2011/92. If the 
necessary information is not available, then the absence of such information cannot 
justify screening out for EIA; rather if the developer wishes to avoid EIA, then it 
necessary to obtain the information at the screening stage. Any other approach is 
inconsistent with the purpose of the Directive as identified in C-435/97 World 
Wildlife Fund v Autonome Provinz Bozen, In C-463/20, Namur Est v Region 
Wallonie consideration of impacts on species protected for the purposes of 
Directive 92/43 must form an integral part of the development consent procedure 
for the purposes of Directive 2011/92 (§§48-53) which means that the competent 
authority much have appropriate survey and other information to gauge the impact 
of the project on any species protected by Directive 92/43. 
 
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G. THE FOURTH QUESTION 
40. By its fourth question, the referring Court asks, in effect, in circumstances where 
additional information is provided by another party to the competent authority 
objectively capable of creating a doubt as to the effect of the project on the 
environment, either the developer is required to provide further information to the 
competent authority which would exclude such doubt or to inform the competent 
authority of the absence of such information, or the competent authority itself is 
required to obtain further information which would exclude such doubt or 
alternatively to determine that assessment under Articles 5 to 10 of the Directive is 
required in the absence of sufficient information to exclude doubt as to whether the 
project will have significant effects on the environment? 
41. The Applicant agrees with the referring Court that this question should be 
answered “Yes”. 
42. If the necessary information to exclude significant effects is not available, then the 
absence of such information cannot justify screening out for EIA; rather if the 
Developer wishes to avoid EIA, then it necessary to obtain the information at the 
screening stage. 
43. Any other approach is inconsistent with the purpose of the Directive as identified 
in the judgment of C-435/97, World Wildlife Fund v Autonome Provinz Bozen and 
others. In that case the Court held (§§45-48): 
“Consequently, whatever the method adopted by a Member State to 
determine whether or not a specific project needs to be assessed, be it by 
legislative designation or following an individual examination of the project, 
the method adopted must not undermine the objective of the Directive, which 
is that no project likely to have significant effects on the environment, within 
the meaning of the Directive, should be exempt from assessment, unless the 
specific project excluded could, on the basis of a comprehensive assessment, 
be regarded as not being likely to have such effects. 
… 
or the specific project could be regarded, on the basis of a comprehensive 
 
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assessment, as not being likely to have significant effects on the environment. 
It is for the national court to review whether, on the basis of the individual 
examination carried out by the national authorities which resulted in the 
exclusion of the specific project at issue from the assessment procedure 
established by the Directive, those authorities correctly assessed, in 
accordance with the Directive, the significance of the effects of that project 
on the environment.” 
44. If information is submitted that suggests that there is doubt as to the significance of 
the effect on the environment then that doubt must be dispelled by either the 
Developer or the competent authority by the commissioning of new surveys or the 
undertaking of additional studies. Otherwise, it cannot be said that a 
comprehensive assessment has been undertaken and the project must be subjected 
to Stage 2 EIA. This is particularly apposite here where the Applicant’s submission 
did raise a doubt as to whether the Developer had adequately assessed the 
possibility of significant effects on bat fauna in the absence of any objective 
information from the Developer and the Board granted permission 
notwithstanding. This approach does not constitute a comprehensive assessment 
and cannot be said to be in accordance with the precautionary principle. 
H. THE FIFTH QUESTION 
45. By its fifth question, the referring Court asks, in effect, whether if the answer to the 
fourth question in general is no, do such consequences arise insofar as the potential 
significant effect on the environment relates to species that may be affected by the 
project where such species are entitled to strict protection under Article 12 of 
Council Directive 92/43, having regard inter alia to the importance of such species 
as recognised in Article 3(1)(b) of Directive 2011/92 and Recital 11 to Directive 
2014/52? 
46. The Applicant agrees with the referring Court that this question should be 
answered “Yes” insofar as it arises. 
47. The Applicant notes that where a doubt has been raised as to potentially significant 
impacts on wild habitats and of wild fauna and flora protected for the purposes of 
 
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Article 12 of Council Directive 92/43/EEC the obligation on the Developer to 
dispel that doubt is qualitatively different to the more general scenario posited in 
Question 4. The presence of a strictly protected species cannot be ignored and 
requires, where appropriate, specific and objective information to ensure that the 
significance of any effects on that strictly protected species are identified. 
48. Any other approach would be incompatible with the approach of the Court of 
Justice in Case C-473/19 Föreningen Skydda Skogen. The Court found that a 
system of strict protection presupposes the adoption of coherent and coordinated 
measures of a preventive nature. That system of strict protection must therefore 
make it possible actually to avoid harm to the protected animal species as set out in 
Article 12. Applying that rationale to these proceedings – if there is no information 
on the potential effects to strictly protected species from the proposed development 
that cannot be compatible with the system of strict protection identified by the 
Court[,] [the] solution is the same – either objective information must be provided 
that allows the competent authority to identify such effects or permission must be 
refused. The importance of species subject to strict protection requires an enhanced 
level of certainty as to the absence of any impacts on such species. 
49. In this case the Developer simply does not know if the development will involve 
the loss of bats roosts. The Court of Justice in C-98/03 Commission v Germany 
(§55) identified 
“By not limiting the prohibition laid down in Article 12(1)(d) of the Directive 
to deliberate acts, which it has done in respect of acts referred to in Article 
12(1)(a) to (c), the Community legislature has demonstrated its intention to 
give breeding grounds or resting places increased protection against acts 
causing their deterioration or destruction. Given the importance of the 
objectives of protecting biodiversity which the Directive aims to achieve, it is 
by no means disproportionate that the prohibition laid down in Article 
12(1)(d) is not limited to deliberate acts.” 
50. In its “Guidance document on the strict protection of animal species of Community 
interest under the Habitats Directive 92/43/EEC” the Commission explains: 
 
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“Breeding sites and resting places are to be strictly protected, because they 
are crucial to the life cycle of animals and are vital parts of a species’ entire 
habitat. Article 12(1)(d) should therefore be understood as aiming to 
safeguard the continued ecological functionality of such sites and places, 
ensuring that they continue to provide all the elements needed by a specific 
animal to rest or to breed successfully. The protection applies all year round 
if these sites are used on a regular basis.” 
51. The relevance of the question is that no such additional information was obtained 
or provided following the information in the applicant’s submission to the board 
such as would be capable of dispelling all doubts as to the possible significant 
effects on the environment in respect of species subject to strict protection. 
I. CONCLUSION 
52. The Applicant respectfully submits that this Court should answer the questions 
referred in line with these observations. 
JAMES DEVLIN SC  
JOHN KENNY BL