Opinion of the Advocate General — ECLI:EU:C:2026:275
Date: 2026-03-26
Language of the case: English

summary of the measures required under Article 11 which are envisaged as necessary 
to bring the bodies of water progressively to the required status by the extended deadline, 
the reasons for any significant delay in making these measures operational, and the 
expected timetable for their implementation are set out in the river basin management plan. 
A review of the implementation of these measures and a summary of any additional 
measures shall be included in updates of the river basin management plan.
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5. Member States may aim to achieve less stringent environmental objectives than those 
required under paragraph 1 for specific bodies of water when they are so affected by human 
activity, as determined in accordance with Article 5(1), or their natural condition is such that 
the achievement of these objectives would be infeasible or disproportionately expensive, 
and all the following conditions are met:
(a) the environmental and socioeconomic needs served by such human activity cannot be 
achieved by other means, which are a significantly better environmental option not entailing 
disproportionate costs;
(b) Member States ensure,
— for surface water, the highest ecological and chemical status possible is achieved, given 
impacts that could not reasonably have been avoided due to the nature of the human activity 
or pollution,
— for groundwater, the least possible changes to good groundwater status, given impacts 
that could not reasonably have been avoided due to the nature of the human activity or 
pollution;
(c) no further deterioration occurs in the status of the affected body of water;
(d) the establishment of less stringent environmental objectives, and the reasons for it, are 
specifically mentioned in the river basin management plan required under Article 13 and 
those objectives are reviewed every six years.
6. Temporary deterioration in the status of bodies of water shall not be in breach of the 
requirements of this Directive if this is the result of circumstances of natural cause or force 
majeure which are exceptional or could not reasonably have been foreseen, in particular 
extreme floods and prolonged droughts, or the result of circumstances due to accidents 
which could not reasonably have been foreseen, when all of the following conditions have 
been met:
(a) all practicable steps are taken to prevent further deterioration in status and in order not 
to compromise the achievement of the objectives of this Directive in other bodies of water 
not affected by those circumstances;
(b) the conditions under which circumstances that are exceptional or that could not 
reasonably have been foreseen may be declared, including the adoption of the appropriate 
indicators, are stated in the river basin management plan;
(c) the measures to be taken under such exceptional circumstances are included in the 
programme of measures and will not compromise the recovery of the quality of the body of 
water once the circumstances are over;
(d) the effects of the circumstances that are exceptional or that could not reasonably have 
been foreseen are reviewed annually and, subject to the reasons set out in paragraph 4(a), 
all practicable measures are taken with the aim of restoring the body of water to its status 
prior to the effects of those circumstances as soon as reasonably practicable, and
(e) a summary of the effects of the circumstances and of such measures taken or to be 
taken in accordance with paragraphs (a) and (d) are included in the next update of the river 
basin management plan.
7. Member States will not be in breach of this Directive when:
— failure to achieve good groundwater status, good ecological status or, where relevant, 
good ecological potential or to prevent deterioration in the status of a body of surface water 
or groundwater is the result of new modifications to the physical characteristics of a surface 
water body or alterations to the level of bodies of groundwater, or
— failure to prevent deterioration from high status to good status of a body of surface water 
is the result of new sustainable human development activities
and all the following conditions are met:
(a) all practicable steps are taken to mitigate the adverse impact on the status of the body 
of water;
(b) the reasons for those modifications or alterations are specifically set out and explained 
in the river basin management plan required under Article 13 and the objectives are 
reviewed every six years;
(c) the reasons for those modifications or alterations are of overriding public interest and/or 
the benefits to the environment and to society of achieving the objectives set out in 
paragraph 1 are outweighed by the benefits of the new modifications or alterations to human 
health, to the maintenance of human safety or to sustainable development, and
(d) the beneficial objectives served by those modifications or alterations of the water body 
cannot for reasons of technical feasibility or disproportionate cost be achieved by other 
means, which are a significantly better environmental option.
8. When applying paragraphs 3, 4, 5, 6 and 7, a Member State shall ensure that the 
application does not permanently exclude or compromise the achievement of the objectives 
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of this Directive in other bodies of water within the same river basin district and is consistent 
with the implementation of other Community environmental legislation.
9. Steps must be taken to ensure that the application of the new provisions, including the 
application of paragraphs 3, 4, 5, 6 and 7, guarantees at least the same level of protection 
as the existing Community legislation."
23. Article 11 provides:
"Programme of measures
1. Each Member State shall ensure the establishment for each river basin district, or for the 
part of an international river basin district within its territory, of a programme of measures, 
taking account of the results of the analyses required under Article 5, in order to achieve the 
objectives established under Article 4. Such programmes of measures may make reference 
to measures following from legislation adopted at national level and covering the whole of 
the territory of a Member State. Where appropriate, a Member State may adopt measures 
applicable to all river basin districts and/or the portions of international river basin districts 
falling within its territory.
2. Each programme of measures shall include the 'basic' measures specified in paragraph 3 
and, where necessary, 'supplementary' measures.
3. 'Basic measures' are the minimum requirements to be complied with and shall consist 
of:
(a) those measures required to implement Community legislation for the protection of water, 
including measures required under the legislation specified in Article 10 and in part A of 
Annex VI;
(b) measures deemed appropriate for the purposes of Article 9;
(c) measures to promote an efficient and sustainable water use in order to avoid 
compromising the achievement of the objectives specified in Article 4;
(d) measures to meet the requirements of Article 7, including measures to safeguard water 
quality in order to reduce the level of purification treatment required for the production of 
drinking water;
(e) controls over the abstraction of fresh surface water and groundwater, and impoundment 
of fresh surface water, including a register or registers of water abstractions and a 
requirement of prior authorisation for abstraction and impoundment. These controls shall be 
periodically reviewed and, where necessary, updated. Member States can exempt from these 
controls, abstractions or impoundments which have no significant impact on water status;
(f) controls, including a requirement for prior authorisation of artificial recharge or 
augmentation of groundwater bodies. The water used may be derived from any surface 
water or groundwater, provided that the use of the source does not compromise the 
achievement of the environmental objectives established for the source or the recharged or 
augmented body of groundwater. These controls shall be periodically reviewed and, where 
necessary, updated;
(g) for point source discharges liable to cause pollution, a requirement for prior regulation, 
such as a prohibition on the entry of pollutants into water, or for prior authorisation, or 
registration based on general binding rules, laying down emission controls for the pollutants 
concerned, including controls in accordance with Articles 10 and 16. These controls shall be 
periodically reviewed and, where necessary, updated;
(h) for diffuse sources liable to cause pollution, measures to prevent or control the input of 
pollutants. Controls may take the form of a requirement for prior regulation, such as a 
prohibition on the entry of pollutants into water, prior authorisation or registration based on 
general binding rules where such a requirement is not otherwise provided for under 
Community legislation. These controls shall be periodically reviewed and, where necessary, 
updated;
(i) for any other significant adverse impacts on the status of water identified under Article 5 
and Annex II, in particular measures to ensure that the hydromorphological conditions of 
the bodies of water are consistent with the achievement of the required ecological status or 
good ecological potential for bodies of water designated as artificial or heavily modified. 
Controls for this purpose may take the form of a requirement for prior authorisation or 
registration based on general binding rules where such a requirement is not otherwise 
provided for under Community legislation. Such controls shall be periodically reviewed and, 
where necessary, updated;
(j) a prohibition of direct discharges of pollutants into groundwater subject to the following 
provisions:
Member States may authorise reinjection into the same aquifer of water used for geothermal 
purposes.
They may also authorise, specifying the conditions for:
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— injection of water containing substances resulting from the operations for exploration and 
extraction of hydrocarbons or mining activities, and injection of water for technical reasons, 
into geological formations from which hydrocarbons or other substances have been extracted 
or into geological formations which for natural reasons are permanently unsuitable for other 
purposes. Such injections shall not contain substances other than those resulting from the 
above operations,
— reinjection of pumped groundwater from mines and quarries or associated with the 
construction or maintenance of civil engineering works,
— injection of natural gas or liquefied petroleum gas (LPG) for storage purposes into 
geological formations which for natural reasons are permanently unsuitable for other 
purposes,
— injection of carbon dioxide streams for storage purposes into geological formations which 
for natural reasons are permanently unsuitable for other purposes, provided that such 
injection is made in accordance with Directive 2009/31/EC of the European Parliament and 
of the Council of 23 April 2009 on the geological storage of carbon dioxide ( 22 ) or excluded 
from the scope of that Directive pursuant to its Article 2(2),
— injection of natural gas or liquefied petroleum gas (LPG) for storage purposes into other 
geological formations where there is an overriding need for security of gas supply, and where 
the injection is such as to prevent any present or future danger of deterioration in the quality 
of any receiving groundwater,
— construction, civil engineering and building works and similar activities on, or in the 
ground which come into contact with groundwater. For these purposes, Member States may 
determine that such activities are to be treated as having been authorised provided that 
they are conducted in accordance with general binding rules developed by the Member State 
in respect of such activities,
— discharges of small quantities of substances for scientific purposes for characterisation, 
protection or remediation of water bodies limited to the amount strictly necessary for the 
purposes concerned
provided such discharges do not compromise the achievement of the environmental 
objectives established for that body of groundwater;
(k) in accordance with action taken pursuant to Article 16, measures to eliminate pollution 
of surface waters by those substances specified in the list of priority substances agreed 
pursuant to Article 16(2) and to progressively reduce pollution by other substances which 
would otherwise prevent Member States from achieving the objectives for the bodies of 
surface waters as set out in Article 4;
(I) any measures required to prevent significant losses of pollutants from technical 
installations, and to prevent and/or to reduce the impact of accidental pollution incidents for 
example as a result of floods, including through systems to detect or give warning of such 
events including, in the case of accidents which could not reasonably have been foreseen, 
all appropriate measures to reduce the risk to aquatic ecosystems.
4. 'Supplementary' measures are those measures designed and implemented in addition to 
the basic measures, with the aim of achieving the objectives established pursuant to Article 
4. Part B of Annex VI contains a non-exclusive list of such measures.
Member States may also adopt further supplementary measures in order to provide for 
additional protection or improvement of the waters covered by this Directive, including in 
implementation of the relevant international agreements referred to in Article 1.
5. Where monitoring or other data indicate that the objectives set under Article 4 for the 
body of water are unlikely to be achieved, the Member State shall ensure that:
— the causes of the possible failure are investigated,
— relevant permits and authorisations are examined and reviewed as appropriate,
— the monitoring programmes are reviewed and adjusted as appropriate, and
— additional measures as may be necessary in order to achieve those objectives are 
established, including, as appropriate, the establishment of stricter environmental quality 
standards following the procedures laid down in Annex V.
Where those causes are the result of circumstances of natural cause or force majeure which 
are exceptional and could not reasonably have been foreseen, in particular extreme floods 
and prolonged droughts, the Member State may determine that additional measures are not 
practicable, subject to Article 4(6).
6. In implementing measures pursuant to paragraph 3, Member States shall take all 
appropriate steps not to increase pollution of marine waters. Without prejudice to existing 
legislation, the application of measures taken pursuant to paragraph 3 may on no account 
lead, either directly or indirectly to increased pollution of surface waters. This requirement 
shall not apply where it would result in increased pollution of the environment as a whole.
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7. The programmes of measures shall be established at the latest nine years after the date 
of entry into force of this Directive and all the measures shall be made operational at the 
latest 12 years after that date.
As regards Mayotte, the time limits referred to in the first subparagraph shall be 22 
December 2015 and 22 December 2018, respectively.
8. The programmes of measures shall be reviewed, and if necessary updated at the latest 
15 years after the date of entry into force of this Directive and every six years thereafter. 
Any new or revised measures established under an updated programme shall be made 
operational within three years of their establishment.
As regards Mayotte, the time limit referred to in the first subparagraph shall be 22 December 
2021."
24. Article 13 provides:
"Article 13
River basin management plans
1. Member States shall ensure that a river basin management plan is produced for each 
river basin district lying entirely within their territory.
2. In the case of an international river basin district falling entirely within the Community, 
Member States shall ensure coordination with the aim of producing a single international 
river basin management plan. Where such an international river basin management plan is 
not produced, Member States shall produce river basin management plans covering at least 
those parts of the international river basin district falling within their territory to achieve the 
objectives of this Directive.
3. In the case of an international river basin district extending beyond the boundaries of 
the Community, Member States shall endeavour to produce a single river basin management 
plan, and, where this is not possible, the plan shall at least cover the portion of the 
international river basin district lying within the territory of the Member State concerned.
4. The river basin management plan shall include the information detailed in Annex VII.
5. River basin management plans may be supplemented by the production of more detailed 
programmes and management plans for sub-basin, sector, issue, or water type, to deal with 
particular aspects of water management. Implementation of these measures shall not 
exempt Member States from any of their obligations under the rest of this Directive.
6. River basin management plans shall be published at the latest nine years after the date 
of entry into force of this Directive.
As regards Mayotte, the time limit referred to in the first subparagraph shall be 22 December 
2015.
7. River basin management plans shall be reviewed and updated at the latest 15 years after 
the date of entry into force of this Directive and every six years thereafter.
As regards Mayotte, the time limit referred to in the first subparagraph shall be 22 December 
2021."
25. Annex VI provides (notes omitted):
"LISTS OF MEASURES TO BE INCLUDED WITHIN THE PROGRAMMES OF MEASURES
PART A
Measures required under the following Directives:
(i) The Bathing Water Directive (76/160/EEC);
(ii) The Birds Directive (79/409/EEC);
(iii) The Drinking Water Directive (80/778/EEC) as amended by Directive (98/83/EC);
(iv) The Major Accidents (Seveso) Directive (96/82/EC);
(v) The Environmental Impact Assessment Directive (85/337/EEC);
(vi) The Sewage Sludge Directive (86/278/EEC);
(vii) The Urban Waste-water Treatment Directive (91/271/EEC);
(viii) The Plant Protection Products Directive (91/414/EEC);
(ix) The Nitrates Directive (91/676/EEC);
(x) The Habitats Directive (92/43/EEC);
(xi) The Integrated Pollution Prevention Control Directive (96/61/EC).
PART B
The following is a non-exclusive list of supplementary measures which Member States within 
each river basin district may choose to adopt as part of the programme of measures required 
under Article 11(4):
(i) legislative instruments
(ii) administrative instruments
(iii) economic or fiscal instruments
(iv) negotiated environmental agreements
(v) emission controls
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(vi) codes of good practice
(vii) recreation and restoration of wetlands areas
(viii) abstraction controls
(ix) demand management measures, inter alia, promotion of adapted agricultural production 
such as low water requiring crops in areas affected by drought
(x) efficiency and reuse measures, inter alia, promotion of water-efficient technologies in 
industry and water-saving irrigation techniques
(xi) construction projects
(xii) desalination plants
(xiii) rehabilitation projects
(xiv) artificial recharge of aquifers
(xv) educational projects
(xvi) research, development and demonstration projects
(xvii) other relevant measures"
Directive 2001/42
26. Article 2 of Directive 2001/42 provides:
"Definitions
For the purposes of this Directive:
(a) 'plans and programmes' shall mean plans and programmes, including those co-financed 
by the European Community, as well as any modifications to them:
- which are subject to preparation and/or adoption by an authority at national, regional or 
local level or which are prepared by an authority for adoption, through a legislative procedure 
by Parliament or Government, and
- which are required by legislative, regulatory or administrative provisions;
(b) 'environmental assessment' shall mean the preparation of an environmental report, the 
carrying out of consultations, the taking into account of the environmental report and the 
results of the consultations in decision-making and the provision of information on the 
decision in accordance with Articles 4 to 9;
(c) 'environmental report' shall mean the part of the plan or programme documentation 
containing the information required in Article 5 and Annex I;
(d) 'The public' shall mean one or more natural or legal persons and, in accordance with 
national legislation or practice, their associations, organisations or groups."
27. Article 3 provides:
"Scope
1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for 
plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant 
environmental effects.
2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans 
and programmes,
(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste 
management, water management, telecommunications, tourism, town and country planning 
or land use and which set the framework for future development consent of projects listed 
in Annexes I and II to Directive 85/337/EEC, or
(b) which, in view of the likely effect on sites, have been determined to require an 
assessment pursuant to Article 6 or 7 of Directive 92/43/EEC.
3. Plans and programmes referred to in paragraph 2 which determine the use of small areas 
at local level and minor modifications to plans and programmes referred to in paragraph 2 
shall require an environmental assessment only where the Member States determine that 
they are likely to have significant environmental effects.
4. Member States shall determine whether plans and programmes, other than those referred 
to in paragraph 2, which set the framework for future development consent of projects, are 
likely to have significant environmental effects.
5. Member States shall determine whether plans or programmes referred to in paragraphs 
3 and 4 are likely to have significant environmental effects either through case-by-case 
examination or by specifying types of plans and programmes or by combining both 
approaches. For this purpose Member States shall in all cases take into account relevant 
criteria set out in Annex II, in order to ensure that plans and programmes with likely 
significant effects on the environment are covered by this Directive.
6. In the case-by-case examination and in specifying types of plans and programmes in 
accordance with paragraph 5, the authorities referred to in Article 6(3) shall be consulted.
7. Member States shall ensure that their conclusions pursuant to paragraph 5, including the 
reasons for not requiring an environmental assessment pursuant to Articles 4 to 9, are made 
available to the public.
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8. The following plans and programmes are not subject to this Directive:
- plans and programmes the sole purpose of which is to serve national defence or civil 
emergency,
- financial or budget plans and programmes.
9. This Directive does not apply to plans and programmes co-financed under the current 
respective programming periods(ll) for Council Regulations (EC) No 1260/1999(12) and 
(EC) No 1257/1999(13)."
28. Article 5 provides:
"Environmental report
1. Where an environmental assessment is required under Article 3(1), an environmental 
report shall be prepared in which the likely significant effects on the environment of 
implementing the plan or programme, and reasonable alternatives taking into account the 
objectives and the geographical scope of the plan or programme, are identified, described 
and evaluated. The information to be given for this purpose is referred to in Annex I.
2. The environmental report prepared pursuant to paragraph 1 shall include the information 
that may reasonably be required taking into account current knowledge and methods of 
assessment, the contents and level of detail in the plan or programme, its stage in the 
decision-making process and the extent to which certain matters are more appropriately 
assessed at different levels in that process in order to avoid duplication of the assessment.
3. Relevant information available on environmental effects of the plans and programmes 
and obtained at other levels of decision-making or through other Community legislation may 
be used for providing the information referred to in Annex I.
4. The authorities referred to in Article 6(3) shall be consulted when deciding on the scope 
and level of detail of the information which must be included in the environmental report."
29. Article 10 provides:
"Monitoring
1. Member States shall monitor the significant environmental effects of the implementation 
of plans and programmes in order, inter alia, to identify at an early stage unforeseen adverse 
effects, and to be able to undertake appropriate remedial action.
2. In order to comply with paragraph 1, existing monitoring arrangements may be used if 
appropriate, with a view to avoiding duplication of monitoring."
30. Article 11 provides:
"Article 11
Relationship with other Community legislation
1. An environmental assessment carried out under this Directive shall be without prejudice 
to any requirements under Directive 85/337/EEC and to any other Community law 
requirements.
2. For plans and programmes for which the obligation to carry out assessments of the effects 
on the environment arises simultaneously from this Directive and other Community 
legislation, Member States may provide for coordinated or joint procedures fulfilling the 
requirements of the relevant Community legislation in order, inter alia, to avoid duplication 
of assessment.
3. For plans and programmes co-financed by the European Community, the environmental 
assessment in accordance with this Directive shall be carried out in conformity with the 
specific provisions in relevant Community legislation."
31. Annex I provides:
"ANNEX I
Information referred to in Article 5(1)
The information to be provided under Article 5(1), subject to Article 5(2) and (3), is the 
following:
(a) an outline of the contents, main objectives of the plan or programme and relationship 
with other relevant plans and programmes;
(b) the relevant aspects of the current state of the environment and the likely evolution 
thereof without implementation of the plan or programme;
(c) the environmental characteristics of areas likely to be significantly affected;
(d) any existing environmental problems which are relevant to the plan or programme 
including, in particular, those relating to any areas of a particular environmental importance, 
such as areas designated pursuant to Directives 79/409/EEC and 92/43/EEC;
(e) the environmental protection objectives, established at international, Community or 
Member State level, which are relevant to the plan or programme and the way those 
objectives and any environmental considerations have been taken into account during its 
preparation;
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(f) the likely significant effects on the environment, including on issues such as biodiversity, 
population, human health, fauna, flora, soil, water, air, climatic factors, material assets, 
cultural heritage including architectural and archaeological heritage, landscape and the 
interrelationship between the above factors;
(g) the measures envisaged to prevent, reduce and as fully as possible offset any significant 
adverse effects on the environment of implementing the plan or programme;
(h) an outline of the reasons for selecting the alternatives dealt with, and a description of 
how the assessment was undertaken including any difficulties (such as technical deficiencies 
or lack of know-how) encountered in compiling the required information;
(i) a description of the measures envisaged concerning monitoring in accordance with Article 
10;
(j) a non-technical summary of the information provided under the above headings.
These effects should include secondary, cumulative, synergistic, short, medium and long­
term permanent and temporary, positive and negative effects."
Domestic law
Planning and Development Act 2000
32. Section 2 of the Planning and Development Act 2000 
(https://revisedacts.lawreform.ie/eli/2000/act/30/revised/en/htm!) provides inter alia:
"'agriculture' includes horticulture, fruit growing, seed growing, dairy farming, the breeding 
and keeping of livestock (including any creature kept for the production of food, wool, skins 
or fur, or for the purpose of its use in the farming of land), the training of horses and the 
rearing of bloodstock, the use of land as grazing land, meadow land, osier land, market 
gardens and nursery grounds, and 'agricultural' shall be construed accordingly;"
33. Section 4(l)(a) provides:
"4.—(1) The following shall be exempted developments for the purposes of this Act—
(a) development consisting of the use of any land for the purpose of agriculture and 
development consisting of the use for that purpose of any building occupied together with 
land so used;"
34. Section 4(4) provides:
"(4) Notwithstanding paragraphs (a), (i), (ia) and (I) of subsection (1) and any regulations 
under subsection (2), development shall not be exempted development if an environmental 
impact assessment or an appropriate assessment of the development is required."
European Communities (Birds and Natural Habitats) Regulations 2011
35. Article 28(1) of the European Communities (Birds and Natural Habitats) Regulations 2011 
(https ://www.npws.ie/sites/default/files/files/EuroDean%20Communities%20(Birds%20and%20Na 
tural%20Habitats)%20Requlations%202011%20to%202021%20-
%20Unofficial%20Consolidation%20(Updated%20to%2028%20Julv%202022)(l).pdf) provides: 
"28. (1) Where the Minister has reason to believe that any activity, either individually or in 
combination with other activities, plans or projects, is of a type that may— (a) have a 
significant effect on a European Site, (b) have an adverse effect on the integrity of a 
European Site, or (c) cause the deterioration of natural habitats or the habitats of species 
or the disturbance of the species for which the European Site may be or has been designated 
pursuant to the Habitats Directive or has been classified pursuant to the Birds Directive, in 
so far as such disturbance could be significant in relation to the objectives of the Habitats 
Directive, the Minister shall, where he or she considers appropriate, direct that, subject to 
paragraph (2), the activity shall not be carried out, caused or permitted to be carried out or 
continued to be carried out by any person in the European Site or part thereof or at any 
other specified land except with, and in accordance with, consent given by the Minister under 
Regulation 30."
European Union (Good Agricultural Practice for Protection of Waters) Regulations 2022
36. Legal provision to make an NAP was set out at the material time in S.I. No. 605/2017 - 
European Union (Good Agricultural Practice for Protection of Waters) Regulations 2017 
(https://www.irishstatutebook.ie/eli/2017/si/605/made/en/print), Article 28, which provided for the 
publication of a NAP by 31st December 2021 and every four years thereafter.
37. To implement the NAP, provision for good agricultural practice measures is made in the 
European Union (Good Agricultural Practice for Protection of Waters) Regulations 2022 (S.I. No. 113 
of 2022) (https://www.irishstatutebook.ie/eli/2022/si/113/made/en/print) ("the GAP 
regulations"). The regulations revoke the 2017 regulations. The current provision to make a NAP 
is in Article 28 of the 2022 GAP regulations which envisages a NAP by 31st December 2025 and 
every 4 years thereafter.
38. The Commission decision was implemented by way of amendment to the GAP regulations, 
the European Union (Good Agricultural Practice for Protection of Waters) (Amendment) Regulations 
2022 (S.I. No. 393 of 2022) (https://www.irishstatutebook.ie/eli/2022/si/393/made/en/pdf). The
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GAP regulations, as so amended, provide that a farmer cannot rely on the derogation without 
authorisation from the Minister for Agriculture, Food and the Marine under regulation 35(1)(a) of 
the regulations. The regulations do not themselves require appropriate assessment ("AA") under 
Directive 92/43. The legal obligation is in the Planning and Development Act 2000 and more 
specifically in Article 28 of the 2011 regulations.
39. Article 2 of S.I. No. 393 of 2022 provides:
"2. In these Regulations :
(i) 'Commission Decision' means the Commission Implementing Decision of 29 April 2022 
on granting a derogation requested by Ireland pursuant to Council Directive 91/676/EEC 
concerning the protection of waters against pollution caused by nitrates from agricultural 
sources;
(ii) 'The 2022 Regulations' means the European Union (Good Agricultural Practice for the 
Protection of Waters) Regulations 2022 (S.I. No. 113 of 2022)."
40. Articles 34 to 40 of the GAP regulations as amended by S.I. No. 393 of 2022 provide: 
"Part 7
Implementation of Commission Decision
34. The Minister for Agriculture, Food and the Marine shall be the competent authority for 
the purposes of verifying compliance with a derogation granted under the Commission 
Decision.
35. (1) The application to land, on a holding in any year of livestock manure in excess of the 
amount specified in Article 20(1) shall be deemed not to be a contravention of that sub­
article where all of the following conditions are met—
(a) the occupier of the holding has made application in respect of that year to the Minister 
for Agriculture, Food and the Marine for authorisation of a derogation from the requirements 
of that sub-article;
(b) the application under paragraph (a) is duly completed in the form and on or before the 
date specified for the time being by that Minister;
(c) the application under paragraph (a) is accompanied by an undertaking in writing by the 
occupier to comply with all the conditions specified in Schedule 5, and
(d) all the conditions set out in Schedule 5 are met by the occupier in relation to the holding.
(2) Where an application is made to the Minister for Agriculture, Food and the Marine in 
accordance with this Article that Minister shall consider the application and, where that 
Minister considers that the application does not comply with the conditions therein, he or 
she shall issue a notice of refusal to the occupier.
(3) Where it is established, in any year, that a grassland farm covered by an authorisation 
does not fulfil the conditions set out in Articles 6 to 9 of the Commission Decision, the holding 
shall not be eligible for an authorisation the following year.
36. The Minister for Agriculture, Food and the Marine shall carry out, or arrange for the 
carrying out of, such monitoring, controls and reporting as are necessary for the purposes 
of Articles 10, 11 and 13 of the Commission Decision.
37. The Agency shall prepare annually a report of the results of water quality monitoring 
carried out by local authorities for the purposes of Article 10(4) of the Commission Decision 
and, where appropriate and as agreed from time to time between the Agency and the 
Minister for Agriculture, Food and the Marine, shall assist that Minister in compiling water 
quality data for reporting in accordance with the requirements of the Commission Decision.
38. The Agency shall submit, by 30 June 2023, the assessment described in Article 10 of the 
Commission Decision, corresponding to the year 2022, an annex containing the results of 
monitoring as regards the nitrates concentrations of groundwater and surface waters and 
the trophic status of surface water bodies as outlined in Article 12 (1) and (2) of the 
Commission Decision.
39. In accordance with the requirements of Article 12 (3) and (4) of the Commission Decision 
the Minister for Agriculture, Food and the Marine, shall assist the Minister in informing the 
Commission, by 30 September 2023, of the outcomes of this two-year review, and in 
particular on the areas and farms with an authorisation where the maximum amount of 
manure to be applied is 220 kg nitrogen/ha per year and of the additional measures to be 
applied within the Nitrates Action Programme.
40. The Agency shall make such recommendations and give such directions to a local 
authority in relation to the monitoring of water quality as it considers appropriate and/or 
necessary for the purposes of the Commission Decision.'"
41. Further amendments (which did not affect the text cited above) were made by S.I. No. 716 
of 2022 (https://www.irishstatutebook.ie/eli/2022/si/716/made/en/print) and S.I. No. 62 of 2023 
(https://www.irishstatutebook.ie/eli/2023/si/62/made/en/print).
Domestic caselaw and related matters
15
42. Domestic caselaw provides abundant examples of challenges being permitted to time-limited 
decisions which are "capable of repetition but evading review" applies {Southern Pacific Terminal Co. 
v. Interstate Commerce Co. (1911) 219 U.S. 498 at p. 501 per McKenna J. cited in Condon v. Minister 
for Labour [1981] I.R. 62, [1979] 12 JIC 1102 at p. 72 per Kenny J., Grant v. Governor of Cloverhill 
Prison [2015] IEHC 768, [2015] 11 JIC 2709; JA Cameroon v. Governor of Cloverhill Prison [2017] 
IEHC 611, [2017] 10 JIC 2012).
43. This is consistent with CJEU jurisprudence on mootness: the principles in the judgment of
11 January 2024, Friends of the Irish Environment CLG v Minister for Agriculture, Food and the 
Marine, C-330/22, ECLI:EU:C:2024:19.
44. Relatedly, In judicial review, the court has jurisdiction to grant reliefs not pleaded, within the 
scope of the grounds as acknowledged in Concerned Residents of Treascon v. An Bord Pleanala 
[2024] IESC 28 per Murray J., applying Order 84, Rules 18 and 19 of the Rules of the Superior 
Courts:
"18 . (1) An application for an order of certiorari, mandamus, prohibition or quo warranto 
shall be made by way of an application for judicial review in accordance with the provisions 
of this Order.
(2) An application for a declaration or an injunction may be made by way of an application 
for judicial review, and on such an application the Court may grant the declaration or 
injunction claimed if it considers that, having regard to:
(a) the nature of the matters in respect of which relief may be granted by way of an order 
of mandamus, prohibition, certiorari, or quo warranto,
(b) the nature of the persons and bodies against whom relief may be granted by way of such 
order, and
(c) all the circumstances of the case, it would be just and convenient for the declaration or 
injunction to be granted on an application for judicial review.
19. On an application for judicial review any relief mentioned in rule 18(1) or (2) may be 
claimed as an alternative or in addition to any other relief so mentioned if it arises out of or 
relates to or is connected with the same matter and in any event the Court may grant any 
relief mentioned in rules 18(1) or (2) which it considers appropriate notwithstanding that it 
has not been specifically claimed."
Facts
45. The current River Basin Management Plan ("RBMP") was published in 2018 
(https://www.gov.ie/en/publication/429a79-river-basin-management-plan-2018-2021/). It was 
subject to AA and SEA. Under the heading " 3.1.1 Legal Framework for Water Framework Directive 
Implementation and Associated Actions" it states inter alia:
"The European Communities Environmental Objectives (Surface Water) Regulations 2009 
(S.I. 272 of 2009) and the European Communities Environmental Objectives (Groundwater) 
Regulations 2010 (S.I. 9 of 2010) establish the legal framework needed to implement the 
environmental objectives of the WFD [i.e., Directive 2000/60]. They lay down the criteria 
and environmental quality standards for classifying water status and impose an obligation 
on public authorities to take the necessary steps to achieve the objectives set out in river 
basin management plans. Both sets of Regulations, inter alia, require licensing authorities 
to examine, and where necessary, review discharge licences where these are needed to 
achieve the water-quality objectives as set out in river basin management plans."
46. The Environmental Protection Agency ("EPA") is a statutory body charged inter alia with 
environmental monitoring. Its report, Water Quality Monitoring Report on Nitrogen and Phosphorus 
Concentrations in Irish Waters (2020), stated:
"The 2013-2018 assessment of water quality in Ireland (EPA,2019) found that only just over 
half of our rivers and lakes were in satisfactory ecological health and overall water quality 
was in decline. The picture for our estuaries was even more stark with only 38% in 
satisfactory condition. The assessment indicated the main problem damaging our waters 
was the presence of too much phosphorus and nitrogen. This report finds that nitrogen 
concentrations remain too high in rivers, groundwater and estuaries in the south, south east 
and east of Ireland; and the concentrations have been increasing since 2013...Agriculture 
and wastewater discharges are the main sources of phosphorus in surface water.... The EPA 
assessment shows that comparatively the nitrogen load reduction required in the Suir, 
Slaney and Barrow catchments in the south east, and the Blackwater catchment in the south 
is substantially higher than the other nine catchments with elevated nitrogen concentrations. 
The analysis includes nitrogen load reduction assessments and the generation of load 
reduction maps at the sub-catchment level and indicates that approximately 85% of the 
nitrogen in these catchments is from agricultural sources. Assessments by the EPA have 
shown that there is a clear nitrogen response in water to changes in herd numbers and gross 
nitrogen balance."
16
47. This analysis is repeated in the EPA's Water Quality 2020 Indicators Report. Its Conclusion 
(p. 21) notes:
"The indicators show us that nutrient levels are too high in many of our waters, and in some 
areas trends are still going in the wrong direction. High nitrates are predominantly found in 
our rivers, groundwaters and estuaries in the south and southeast of the country, areas with 
intensive agriculture over freely draining soils...Agriculture and waste water are the 
predominant sources of nutrients in our waters. Recent analysis by the EPA shows that up 
to 85% of nitrogen in rivers in predominantly rural catchments in the south and southeast 
comes from agriculture. It is essential for the protection of our rivers, groundwaters and 
estuaries that urgent and focussed action is taken to reduce the nitrate losses to our waters 
or we are in danger of losing our excellent coastal water quality."
48. The first consultation on the current NAP occurred when the first respondent initiated a 
Fourth Review of Ireland's NAP - Stage 1 on 25th November 2020. The applicant made a submission 
on 14th January 2021.
49. The first respondent initiated a second public consultation on Ireland's NAP on 9th August 
2021 with a deadline of 20th September 2021 for public submissions.
50. The applicant made a submission on 20th September 2021.
51. The Natura Impact Statement ("NIS") under Directive 92/43 for the 3rd cycle RBMP 2022 
to 2027 (https://assets.qov.ie/294558/b89b7956-lf5f-4fec-90fa-9b9720bbflb7.odf), drafted by 
consultants (RPS) in September 2021 and ultimately adopted by the first respondent in the context 
of that plan, states at p. 57:
"The new NAP is being prepared; however it is not yet published in draft. There are 
expectations as to what actions may be included within the new NAP, however these are not 
confirmed. The actions arising from the new NAP have potential for significant adverse 
effects on European Sites; particularly mindful of nutrient loss to water from agriculture is 
one of the most significant pressures on water quality in Ireland. The new NAP will be 
subject to AA and SEA in its own right and the new NAP will be required to be cognisant of 
the RBMP; including the mitigations identified within this NIS for the RBMP. In the context 
of nitrates derogations, it is noted that where a farm has a derogation and has an eco- 
hydrological pathway to a European site, there is potential risk to the favourable 
conservation status objective of those European sites. The derogations will be decided as 
part of the NAP process. However, it is estimated that over 5,000 farms within the state 
would seek to avail of the derogation status, covering significant land areas. The list of 
farms and /or their location is not available. From a precautionary perspective it is assumed 
that these some of these farms and their activities have eco-hydrological pathways to 
European sites and that some of these European sites are within the landholding. Therefore, 
there is significant potential for adverse effects on maintaining and achieving conservation 
objectives and therefore integrity of European Sites with respect to these derogations both 
individually and in combination with other derogations, plans and projects. Given the scale 
of derogations under previous cycles of the NAP, the potential for in-combination effects is 
significant. It will therefore be vital that any derogations which emerge from the NAP will 
be subject to AA; which should include a robust assessment of in-combination adverse 
effects."
52. It can be noted that while this NIS says that it is "vital" that derogations be subject to AA, 
in fact such derogations are not being subjected to AA.
53. On 14th October 2021, Ireland submitted to the Commission a request for an extension of 
the derogation under paragraph (2), third subparagraph, of Annex III to Directive 91/676/EEC.
54. A third consultation period on the draft NAP focused on the draft NIS and draft Strategic 
Environmental Assessment ("SEA") report for the Programme then took place. The first respondent 
published a NIS and SEA report for the Draft Fifth NAP on 14th December 2021 and invited further 
public submissions by 26th January 2022. The applicant made a submission on 26th January 2022. 
55. Insofar as the applicants complained that the SEA report took an overly broad view of the 
concept of material assets, the referring court would not accept that but in any event the material 
assets concerned were in the nature of strategic infrastructure and so constitute material assets 
even on a narrow definition.
56. The alternative options were not considered in comparable detail in the SEA process.
57. In the assessment under Directive 2001/42 there was no meaningful assessment of the NAP 
by reference to Article 4 of Directive 2000/60 and certainly no express assessment in that regard. 
Nor was there a full assessment of the impacts of the underlying agricultural activities.
58. Full details of monitoring were not included in the environmental report in the SEA process. 
The environmental report did not include a full description of the measures envisaged concerning 
monitoring in accordance with Article 10 in sufficient detail to demonstrate that Article 10 would be 
complied with, including details of how this monitoring would occur; when it would be done; or how 
17
the monitoring would be used and how any identified unforeseen adverse environmental effects 
would be addressed
59. The economic implications for material assets were considered in the SEA process, and were 
treated as outweighing of what might otherwise have been more environmentally friendly options. 
Thus the assessment under Directive 2001/42 here took into account and included an assessment 
of broader economic matters such as the value of material assets, the broad societal impacts of 
agricultural activities, the impact of the plan or project on the agricultural industry and on the output 
and income of farmers, the sustainability of the agricultural industry Ireland, the food supply chain, 
and the employment of a significant portion of the population.
60. The EPA is the competent authority for preparing and implementing the National Water 
Quality Monitoring Programme. The National Water Quality Monitoring Programme has been in 
place since 2006 and is reviewed and updated periodically. The current programme runs from 2022 
to 2027. The EPA reports on water quality with respect to Directive 91/676 using data generated 
under the National Water Quality Monitoring Programme. There are two categories of waters: (i) 
small waterbodies which are below the threshold of a surface area of 0.5 km2 or more do not need 
status assigned but are protected by basic measures, and (ii) identified water bodies with a surface 
area of 0.5 km2 or more, of which there are approximately 5,000. With respect to the identified 
supra-threshold water bodies, approximately 3,000 are monitored individually, and all 5,000 have 
been assigned ecological status (either based on the monitoring or based on modelling). 2,000 water 
bodies are not monitored but are assigned status through modelling. Type-specific reference 
conditions are set once and establish the benchmark, while status assessments are carried out 
subsequently on a regular basis considering the benchmark. The benchmarks are intercalibrated 
across Member States. Benchmarks were in place to allow the status to be determined for all water 
bodies when the NAP was adopted and this has not changed. There is a type-specific reference 
condition assigned to each water body above the threshold for the purposes of Diretive 2000/60.
61. The EPA engaged in a global categorisation of hitherto unclassified water bodies in the State 
with a surface area of 0.5 km2 or more. The status designations for the relevant water bodies took 
effect on 22nd February 2022 (not 22nd April 2022 as stated in previous material). The relevant 
data was available from that date upon request from the EPA. The data in respect of the status 
designations for unmonitored lakes for the 2013-2018 period were uploaded to the EPA's geoportal 
on 25th February 2022
62. In February 2022, an AA screening report, Ireland's Fifth NAP Screening for AA, was 
prepared. This stated (p. 12):
"Just over half of Ireland's monitored surface water bodies have satisfactory water quality 
and agriculture is the most widespread and significant pressure impacting on the water 
environment. The EPA report that nearly half of all river sites and one quarter of all 
groundwater sites have elevated nitrate concentrations. Given the known and observed 
significant impact that the previous Nitrate Action Programmes have had on water quality 
and water dependent ecosystems, the fifth NAP is considered to have potential for significant 
direct, indirect or cumulative effects to European Sites."
63. An NIS was prepared by consultants (RPS) on behalf of the first named respondent dated 
25th February 2022 (https://www.gov.ie/pdf/?file=https://assets.gov.ie/218455/0ba5a7df-50dd= 
431e-a036-03218b30bdc2.Ddf#Daqe=null) which concluded as follows on p. 103:
"This Natura Impact Statement has considered the potential of the measures proposed 
within the NAP to give rise to adverse effects on the integrity of European Sites, with regard 
to their qualifying interests, associated conservation status and the overall site integrity, 
alone and in combination with other relevant plans and programmes. The NAP does not 
determine the precise location of any development project or designate or allocate specific 
land uses, nor does it preclude the consideration of alternatives. In light of this and where 
necessary, a precautionary approach has been adopted in the NIS to ensure that the 
measures proposed with respect to implementing the actions of the NAP are, where 
necessary, subject to Appropriate Assessment. As such, the NAP will not adversely affect 
the integrity of any European Site either alone or in combination with other relevant plans 
or programmes and subject to securing the mitigation prescribed above. In light of the 
conclusions of the assessment contained in this NIS, the authors are of the view that the 
adoption of the NAP alone, or in combination with other plans and programmes, will not 
adversely affect the integrity of any European site. Accordingly, and in light of the 
conclusions of the assessment contained here and the Appropriate Assessment that the 
Ecological Assessment Unit shall conduct on the implications for the European sites 
concerned, the competent authority is enabled to ascertain that the adoption of the NAP, 
alone or in combination with other relevant plans and programmes, will not adversely affect 
the integrity of any European Site."
18
64. A Determination on AA was made on 4th March 2022 by the Ecological Assessment Unit 
(https://www.gov.ie/pdf/?file=https://assets.gov.ie/218456/47a7d9ee-a69d-4fbf-9cOd-
3d8af3c6f7eb.pdf#page=null).
65. The applicant hasn't shown that European-site-specific analysis (or of water-body-specific 
analysis) in the plan-level in the NAP AA was practicable.
66. The AA of the NAP did not fully address the impacts of the underlying agricultural activities, 
an omission which is reinforced by the lack of farm-level AA in practice at the derogation stage.
67. In the assessment under Directive 92/43 there was no meaningful assessment of the NAP 
by reference to Article 4 of Directive 2000/60 and certainly no express assessment in that regard.
68. In particular, prior to adopting the NAP, the competent authority did not consider the 
question of whether, and thus did not lawfully satisfy itself as to whether, the particular protections 
afforded by the plan either alone or together with other binding measures adopted by the Member 
State were sufficiently rigorous to ensure that the Nitrate-emitting agricultural activities which will 
be carried out on foot of derogations granted consequent on the plan would not cause a deterioration 
of the status of a body of surface water or jeopardise the attainment of good surface water status 
or of good ecological potential and good surface water chemical status by the date laid down by 
Directive 2000/60.
69. More specifically, the competent authority did not satisfy itself that the adoption of the plan 
or programme is not liable to cause a deterioration of the status of any surface water body which 
has been or ought to have been identified by that Member State as constituting a surface water 
body 'type', nor is it liable to compromise the attainment of good surface water status or of good 
ecological potential and good chemical status of such a surface water body and, secondly, that the 
adoption of the plan or programme is compatible with the measures implemented pursuant to the 
programme under Directive 2000/60 established, in accordance with Article 11 of that Directive, for 
the river basin district concerned.
70. On 9th March 2022, the first named respondent approved the Fifth NAP 2022-2025: 
(https://www.gov.ie/pdf/?file=https://assets.gov.ie/218449/f1a6725a-6269-442b-bffi- 
2730fe2dc06c.pdf#Daqe=null). On the same date, the Minister signed the GAP Regulations.
71. In conformity with Article 5(2) of Directive 91/676/EEC, Ireland applies an action programme 
throughout its whole territory.
72. The assessments for the NAP did not include a full assessment of the environmental effects 
of the Nitrate-emitting agricultural activities that were to be carried out on foot of derogations. The 
focus of the assessments was on the protective measures alone. It is clear from the material (in 
particular EPA reports and the NIS for the RBMP 2022 to 2027) that an assessment of the 
environmental effects of the underlying agricultural activities would have been likely to have 
demonstrated significant adverse environmental effects including on European sites for the purposes 
of Directive 92/43.
73. The data in respect of the status designations for unmonitored river bodies were uploaded 
to the EPA's geoportal on 15th March 2022. The data is in the form of an excel spreadsheet which 
includes the waterbody code and water body name, the assigned ecological status and method of 
assessment (for both monitored and unmonitored waterbodies). On 5th April 2022, the status 
designations for unmonitored waterbodies were uploaded to https://www.catchments.ie and EPA 
Maps.
74. On 29th April, 2022, the Commission extended the derogation previously granted to Ireland 
for the purposes of Paragraph 2 of Annex III to the Nitrates Directive.
75. Approximately 6,500 farmers apply for a derogation each year out of over 130,000 farms in 
Ireland. The considerable majority of these applicants are dairy farmers. The individual derogations 
are not published, only aggregated data as to the location, by local electoral area (LEA), of the farms 
concerned (https://opendata.agriculture.gov.ie/dataset/https-assets-gov-ie-213396-fec4151b- 
4730-4c8c-a0e3-c2e50b0b2f26-xlsx). In practice AA has not been carried out for any of these 
decisions and there is no practical system in place to do this. The domestic legislation to give effect 
to Directive 92/43 (such as Article 28 of the 2011 regulations) is not applied in practice in this 
context.
Procedural history
76. The proceedings were initiated in the judicial review list on 31st May 2022. Leave was 
granted on 5th December 2022. Trustees of the Irish Farmers' Association ("IFA") and Irish 
Creamery Milk Suppliers Association ("ICMSA") were joined as notice parties, and opposition papers 
from the respondents and notice parties were delivered. Generally, the IFA and ICMSA supported 
the State opposition to the proceedings.
77. The court then disposed of pleading objections and dealt with factual findings and issues, 
and identified 9 questions for reference, consisting of 8 questions regarding the interpretation of EU 
law and one question regarding the validity of EU law, which were necessary for the disposal of the 
19
proceedings. The parties other than the IFA proposed answers to these questions as summarised 
below.
78. In those circumstances the referring court is staying the proceedings and referring the 
questions below to the Court of Justice for a preliminary ruling.
The first question
79. The first question is:
Do Article 6(3) of Directive 92/43, Article 4(1) of Directive 2000/60 and/or Article 
3(1) of Directive 2001/42 read in the light of Article 3(3) TEU and/or Article 11 
and/or 191(2) TFEU and/or Article 37 of the Charter of Fundamental Rights have 
the effect that an action programme under Article 5 of Directive 91/676 that is 
assessed under or by reference to such Directives is required to be assessed in 
relation to the effects on the environment of the Nitrate-emitting agricultural 
activities which will be carried out on foot of derogations granted consequent on 
the plan, either generally or insofar as such effects are indirectly contributed to by 
the absence of more rigorous protective measures in the plan, as opposed to being 
assessed by reference to the protective measures the plan positively includes and 
those alone?
80. The applicant submitted:
"Yes. The NAP is supposed to involve a global examination, at the level of the whole of the 
national territory, of the environmental issues linked to nitrate pollution from agricultural 
sources - Joined Cases C 105/09 and C 110/09 Terre Wallonne and Inter-Environnement 
Wallonie. Here, the NAP includes the derogation - in the words of the Directive, it 'allows' 
an amount higher than the 170 kg N in the Directive. So the environmental issues linked to 
nitrate pollution from the derogation fall within that examination. The assessments carried 
out under the Habitats Directive, the WFD and the SEA Directive must consider the effects 
on the environment of the Nitrate-emitting agricultural activities which will be carried out on 
foot of derogations granted consequent on the plan. To confine such assessments to the 
protective measures the plan positively includes, and those alone, would be contrary to the 
nature of the NAP and the purpose of those assessments."
81. The State submitted:
"None of the cited provisions - Article 6(3) of Directive 92/43 ('the Habitats Directive'), 
Article 4(1) Directive 2000/60 ('the WFD'), or Article 3(1) of Directive 2001/42 ('the SEA 
Directive') - requires that an action programme under Article 5 of Directive 91/676 ('the 
Nitrates Directive') be assessed by reference to the effects on the environment of the Nitrate­
emitting agricultural activities regulated by that action programme, either generally or by 
reference to whether the protective measures in the action programme are sufficiently 
rigorous to prevent such damage."
82. The ICMSA submitted:
"ICMSA adopts the submissions made by the State Respondents under this Issue. ... In 
addition, ICMSA would merely note, and echo, the concern which the State expresses ... 
regarding 'an impossible standard that could never be met'. Much case law inclines against 
impossible, or impracticable, standards."
83. The referring court's proposed answer is Yes. The assessment of the NAP under Article 6(3) 
of Directive 92/43, Article 4(1) of Directive 2000/60 and/or Article 3(1) of Directive 2001/42 must 
include an assessment of the environmental harms caused by the activities being regulated by the 
NAP. It must be recalled that the NAP establishes a framework within which, subject to Commission 
decision, consents can be granted for use of additional Nitrates on individual farms. Thus while not 
itself a development consent, the NAP establishes a framework for development consent. Such a 
framework can only meaningfully be assessed by reference to the environmental impacts of the 
activities being regulated. Otherwise, the establishment of a framework to permit the use of Nitrates 
in excess of standard levels will fail to ensure a high level of environmental protection contrary to 
Article 3(3) TEU and/or Article 11 and/or 191(2) TFEU and/or Article 37 of the Charter of 
Fundamental Rights. Assessment of the effects of the proposed derogations is not an impossible 
standard, because at the NAP level it need only be carried out in general terms, not on a farm-by- 
farm basis.
84. The relevance of the question is that the NAP did not include a full assessment of the 
environmental effects of the Nitrate-emitting agricultural activities that were to be carried out on 
foot of derogations. The focus of the assessments was on the protective measures alone. An 
assessment of the environmental effects of the underlying agricultural activities would have been 
likely to have demonstrated significant adverse environmental effects including on European sites 
for the purposes of Directive 92/43. If the answer to the question is Yes, then the NAP was adopted 
without a proper assessment and therefore in breach of EU law.
The second question
20
85. The second question is:
If the answer to the first question in general is No, do the provisions referred to 
have that effect where provisions in the domestic law of the Member State 
concerned for assessment of individual derogations granted consequent on an 
action programme pursuant to Article 5 of Directive 91/676 are not operated in 
practice in that context so that there is in practice no assessment carried out under 
Directive 92/43 of individual derogations granted consequent on the plan in terms 
of the effect on European sites of Nitrate-emitting agricultural activities which will 
be carried out on foot of such derogations?
86. The applicant submitted:
"Yes. The key issue in the question is the non-application in practice of the law. Where an 
AA is performed of an NAP which establishes a derogation from the 170 kg N limit, but the 
Habitats Directive is not in fact applied to individual derogation applications, it is imperative 
that the AA of the NAP consider the underlying Nitrate-emitting agricultural activities which 
will be carried out on foot of derogations granted consequent on the plan, rather than merely 
the protective measures the plan positively."
87. The State submitted:
"The provisions referred to do not have that effect, even where in practice there is no 
assessment carried out of individual derogation decisions under the Habitats Directive. An 
alleged failure to comply with obligations under the Habitats Directive with respect to a 
downstream measure will, if established, result in consequences for that downstream 
measure. However, there is no basis to contend that an upstream measure would be 
invalidated in those circumstances, or that the obligations arising under the Habitats 
Directive with respect to an upstream measure would alter on that basis. There is no textual 
support for that position in the Habitats Directive, and a purposive approach would not 
support that claim. The purpose of Article 6(3) is to prevent the implementation of measures 
that will have adverse effects on the integrity of a site. Refusing to authorise the NAP under 
Article 6(3) would only prevent the authorisation of the NAP. It would have no effect on the 
underlying agricultural activities and, in particular, would not prevent those activities from 
continuing. It would serve only to remove the regulation of those activities that currently 
are in place under the NAP."
88. The ICMSA submitted:
"ICMSA adopts the submissions made by the State Respondents under this Issue."
89. The referring court's proposed answer is that this question does not arise because the answer 
to the first question is Yes, but if it does arise the answer is Yes. The absence of the application of 
domestic legislation for AA in the context of individual derogations at farm level is strongly suggestive 
of a reluctance to enforce EU law. It is not necessary for the referring court to come to any final 
conclusions on the legality of the State's approach because the mere fact that there is no farm-level 
assessment makes it all the more imperative that a full assessment of the impacts of the agricultural 
activities be carried out at the plan level. The State's defence that "[r]efusing to authorise the NAP 
under Article 6(3) would only prevent the authorisation of the NAP ... [i]t would have no effect on 
the underlying agricultural activities and, in particular, would not prevent those activities from 
continuing ... [i]t would serve only to remove the regulation of those activities that currently are in 
place under the NAP" is tendentious because it ignores the fact that the NAP, the Commission 
decision and the GAP regulations form a coherent system to permit farm-level derogations. The 
formal development consent is an authorisation of the Minister under article 35(l)(a) of the GAP 
regulations as amended, but that power only exists by reason of the NAP and the Commission 
decision. The NAP and Commission decision therefore form the framework within which unassessed 
development can take place, including development that impacts on European sites. There is a 
broad analogy with the decision of the Netherlands Raad van State in Stichting Werkgroep Behoud 
de Peel, gevestigd te Deurne v. het college van gedeputeerde staten van Noord-Brabant, 29 May 
2019, ECLI:NL:RVS:2019:1603, e.g., at para. 31.1, "Zoals voIgt uit deze uitspraak is met de 
passende beoordeling die aan het PAS ten grondslag ligt niet de zekerheid verkregen dat de 
natuurlijke kenmerken van de Natura 2000-gebieden die in het PAS zijn opgenomen niet zullen 
worden aangetast. Er is met andere woorden niet verzekerd dat de instandhoudingsdoelstellingen 
van de gebieden niet in gevaar worden gebracht." (As follows from this ruling, the appropriate 
assessment underlying the [Netherlands Nitrogen action programme] does not provide certainty that 
the natural characteristics of the Natura 2000 areas included in the [programme] will not be affected. 
In other words, it does not ensure that the conservation objectives of the areas will not be 
jeopardised.) (https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:R\/S:2019:1603)
90. The relevance of the question is that domestic law on AA is not operated in practice at the 
farm level when derogations are granted. That has the effect that the only assessment that is 
actually carried out occurs at the plan level. Accordingly if the plan level assessment must take into 
21
account the effects of the agricultural activities concerned, then the assessment here was defective 
and the NAP was adopted in breach of EU law.
The third question
91. The third question is:
Do Article 6(3) of Directive 92/43 and/or Article 3(1) and/or 5(1) and/or 11(2) 
of Directive 2001/42 read in the light of Article 3(3) TEU and/or Article 11 and/or 
191(2) TFEU and/or Article 37 of the Charter of Fundamental Rights have the effect 
that assessment of a plan or programme that is subject to those articles and that 
is capable of having environmental effects on a water body must include 
assessment by reference to Article 4 of Directive 2000/60 either alone or together 
with other binding measures adopted by the Member State are sufficiently rigorous 
to ensure that the plan or programme will not cause a deterioration of the status 
of a body of surface water or jeopardise the attainment of good surface water 
status or of good ecological potential and good surface water chemical status by 
the date laid down by Directive 2000/60, and if so, do those provisions or either 
of them require such an assessment to state in express and/or clearly 
ascertainable terms whether the relevant environmental objectives of Directive 
2000/60 will be met following adoption of the plan or programme; either generally 
or in the specific case of the proposed adoption of a basic measure as defined by 
Article 11(3) of Directive 2000/60 and in particular a nitrates action programme 
under Article 5 of Directive 91/676 (as referred to in Annex VI part A para (ix) of 
Directive 2000/60 as referenced in Article Il(3)(a) of that Directive)?
92. The applicant submitted:
"There is an obligation to conduct the assessment identified in the Court's question and to 
refuse a proposed development unless the assessment is conducted and the requisite degree 
of certainty (no change in status and no deterioration) is substantiated. That conclusion 
must be expressly stated."
93. The State submitted:
"Neither Article 6(3) of the Habitats Directive, nor Articles 3(1) and/or 5(1) and/or 11(2) of 
the SEA Directive require that, as part of the assessment of a Plan for the purposes of those 
provisions, there is an additional assessment under Article 4(1) of the WFD. The Applicant 
has identified no authority for that proposition. Moreover, there is no obligation to assess 
the NAP under Article 4(1) of the WFD, separate to the assessment of the Programme of 
Measures under Article 11 of the WFD, under the principle established in Weser. The CJEU 
has never held that the Weser obligation applies to plans or programmes. Even if it did, it 
could never apply to the assessment of one part of the programme of measures adopted 
under Article 11. Even if those provisions did require an assessment under Article 4(1), that 
assessment would be limited to whether the positive measures to be implemented under the 
NAP caused a deterioration in a body of water. There could be no requirement for an 
assessment as to whether the NAP is sufficiently rigorous, either alone or together with other 
binding measures, to ensure that there would be no deterioration of any water body in the 
State. Strictly without prejudice to the foregoing, if any such obligation arose, a measure 
could not be invalidated by reason of a failure to state in express and/or clearly ascertainable 
terms whether the objectives of the WFD will be met, once the necessary assessment was 
completed in substance."
94. The ICMSA submitted:
"ICMSA adopts the submissions made by the State Respondents under this Issue."
95. The referring court's proposed answer is that the requirement of a high level of 
environmental protection and the obligation to ensure the attainment of the objectives of Directive 
2000/60 require that where a plan or programme is likely to have significant effects on one or more 
water bodies in a Member State, an assessment under Directives 92/43 and/or 2001/42 must include 
an assessment of whether the plan or programme either individually or together with other binding 
measures adopted by the Member State is sufficiently rigorous to ensure that the plan or programme 
will not cause a deterioration of the status of a body of surface water or jeopardise the attainment 
of good surface water status or of good ecological potential and good surface water chemical status 
by the date laid down by Directive 2000/60. This is not an unworkable requirement. Legal certainty 
and the requirement for a high level of environmental protection require such a conclusion to be 
clearly stated.
96. The relevance of the question is that in the assessment under Directives 92/43 and 2001/42 
there was no meaningful assessment of the NAP by reference to Article 4 of Directive 2000/60 and 
certainly no express assessment in that regard. If the answer to the question is Yes, then the NAP 
was adopted without a proper assessment and therefore in breach of EU law.
The fourth question
22
97. The fourth question is:
If the answer to the third question is such that that assessment of a plan or 
programme that is subject to Article 6(3) of Directive 92/43 and/or Article 3(1) of 
Directive 2001/42 and that is capable of having environmental effects on a water 
body must include assessment by reference to Article 4 of Directive 2000/60 and 
the answer to the first or second questions is such that assessment for the 
purposes of Directive 2001/42 in terms of compliance with Directive 2000/60 is 
required to include an assessment of the effects on the environment of the Nitrate­
emitting agricultural activities which will be carried out on foot of derogations 
granted consequent on the plan and/or in particular the omission of more rigorous 
provisions in a plan, does Article 4(1) of Directive 2000/60 (and specifically the 
principle of law having the effect that Member States are required, unless a 
derogation is granted, to refuse authorisation for an individual project where it 
may cause a deterioration of the status of a body of surface water or where it 
jeopardises the attainment of good surface water status or of good ecological 
potential and good surface water chemical status by the date laid down by the 
Directive), read in the light of Article 3(3) TEU and/or Article 11 and/or 191(2) 
TFEU and/or Article 37 of the Charter of Fundamental Rights, have the effect that 
a Member States must also refuse to adopt a plan if the particular protections 
afforded by the plan either alone or together with other binding measures adopted 
by the Member State are insufficiently rigorous to ensure that the Nitrate-emitting 
agricultural activities which will be carried out on foot of derogations granted 
consequent on the plan will not cause a deterioration of the status of a body of 
surface water or jeopardise the attainment of good surface water status or of good 
ecological potential and good surface water chemical status by the date laid down 
by Directive 2000/60, either generally or in the specific case of the proposed 
adoption of a basic measure as defined by Article 11(3) of Directive 2000/60 and 
in particular a nitrates action programme under Article 5 of Directive 91/676 (as 
referred to in Annex VI part A para (ix) of Directive 2000/60 as referenced in 
Article Il(3)(a) of that Directive)?
98. The applicant submitted:
"There is an obligation to refuse to adopt a plan if the particular protective measures are not 
sufficiently robust."
99. The State submitted:
"There is no such obligation, for all of the reasons already set out
100. The ICMSA submitted:
"ICMSA adopts the submissions made by the State Respondents under this Issue."
101. The referring court's proposed answer is that by analogy with the judgment of 1 July 2015, 
Bund fur Umwelt und Naturschutz Deutschland e. V. v Bundesrepublik Deutschland, C-461/13, 
ECLI:EU:C:2015:433, Member States are required, unless a derogation is granted, to refuse 
authorisation for a plan or programme if the particular protections afforded by the plan either alone 
or together with other binding measures adopted by the Member State are insufficiently rigorous to 
ensure that the Nitrate-emitting agricultural activities which will be carried out on foot of derogations 
granted consequent on the plan will not cause a deterioration of the status of a body of surface 
water or jeopardise the attainment of good surface water status or of good ecological potential and 
good surface water chemical status by the date laid down by Directive 2000/60.
102. The relevance of the question is that prior to adopting the NAP, the competent authority did 
not consider the question of whether, and thus did not lawfully satisfy itself as to whether, the 
particular protections afforded by the plan either alone or together with other binding measures 
adopted by the Member State were sufficiently rigorous to ensure that the Nitrate-emitting 
agricultural activities which will be carried out on foot of derogations granted consequent on the plan 
would not cause a deterioration of the status of a body of surface water or jeopardise the attainment 
of good surface water status or of good ecological potential and good surface water chemical status 
by the date laid down by Directive 2000/60. If the answer to the question is Yes, then the plan was 
adopted in breach of EU law because the competent authority was not satisfied in the manner 
referred to in the question.
The fifth question
103. The fifth question is:
If the answer to the third and/or fourth questions in general is No, do the 
provisions referred to have the effect referred to where provisions in the domestic 
law of the Member State concerned for assessment of individual derogations 
granted consequent on an action programme pursuant to Article 5 of Directive 
91/676 are not operated in practice in that context so that there is in practice no 
23
assessment carried out under Directive 92/43 (whether by reference to Article 4 
of Directive 2000/60 or otherwise) of individual derogations granted consequent 
on the plan in terms of the effect on water bodies in the Member State of Nitrate­
emitting agricultural activities which will be carried out on foot of such 
derogations?
104. The applicant submitted:
"Yes. If farm level permitting or assessments are not undertaken in order to assess at farm 
level the potential impacts of the nitrates emitting activities that will result as a consequence 
of individual derogations, the certainty required for the purposes of Article 4 WFD must be 
found in the assessments of the NAP itself, that is the only way in which the requirements 
of Article 4 WFD can be achieved if the effects of individual derogations are not assessed at 
farm level."
105. The State submitted:
"No, for the same reasons as detailed in response to [the second question]."
106. The ICMSA submitted:
"ICMSA adopts the submissions made by the State Respondents under this Issue."
107. The referring court's proposed answer is that this question does not arise because the answer 
to the third and fourth questions is Yes, but if it does arise the answer is Yes. The lack of any system 
in practice for assessment of individual derogations under Directive 92/43 gives rise to a breach of 
EU law unless the assessment of the NAP is sufficient to guarantee no impact on European sites, 
which was not the case here.
108. The relevance of the question is that there was and is no assessment of individual 
derogations under Directive 92/43, even derogations that occur in or affecting European sites, and 
there was no comprehensive or sufficient assessment on impacts on European sites (including by 
reference inter alia to Directive 2000/60) at the stage of adoption of the NAP. If such an assessment 
is a requirement, then the NAP was adopted without a proper assessment and therefore in breach 
of EU law.
The sixth question
109. The sixth question is:
Does Article 4 of Directive 2000/60 read in the light of Article 3(3) TEU and/or 
Article 11 and/or 191(2) TFEU and/or Article 37 of the Charter of Fundamental 
Rights have the effect that a plan or programme in particular a nitrates action 
programme under Directive 91/676 with the potential to affect the status of any 
relevant water body within a Member State cannot be adopted by the competent 
authority of a Member State unless the competent authority is required to satisfy 
itself firstly, that the adoption of the plan or programme is not liable to cause a 
deterioration of the status of any surface water body which has been or ought to 
have been identified by that Member State as constituting a surface water body 
'type', nor is it liable to compromise the attainment of good surface water status 
or of good ecological potential and good chemical status of such a surface water 
body and, secondly, that the adoption of the plan or programme is compatible with 
the measures implemented pursuant to the programme under Directive 2000/60 
established, in accordance with Article 11 of that Directive, for the river basin 
district concerned?
110. The applicant submitted:
"... outside of the de minimis exclusions, there is such an obligation to assess the potential 
impacts on all water bodies; however, based on the decision of the Court of Justice in 
Sweetman the answer to this question is unclear. In the Weser case the Advocate General 
observed §53 'In the present case, it is clear from the documents in the main proceedings 
that a management plan covering a programme of measures was adopted for the Weser 
river basin district. Consequently, the Court is not called upon to determine the effects of 
Article 4(1) of the WFD with regard to a body of water in respect of which the assessment 
and planning measures required by Article 4 of the WFD have not been adopted.'"
111. The State submitted:
"... there is no obligation to assess the compliance of the NAP with Article 4(1) of the WFD, 
and the contention that the assessment obligation established in Weser and developed in 
Sweetman applies to the adoption of an action programme under Article 5(1) of the Nitrates 
Directive is misconceived."
112. The ICMSA submitted:
"ICMSA adopts the submissions made by the State Respondents under this issue."
113. The referring court's proposed answer is that to ensure the requirement for a high level of 
environmental protection, and to ensure the attainment of the objectives of Directive 2000/60, a 
plan or programme cannot be adopted by a Member State unless the competent authority satisfies 
24
itself that the adoption of the plan or programme will not occasion any non-compliance with the 
objectives of Directive 2000/60 or any incompatibility with the measures adopted under that 
Directive for the river basin district concerned.
114. The relevance of the question is that the competent authority did not satisfy itself that the 
adoption of the plan or programme is not liable to cause a deterioration of the status of any surface 
water body which has been or ought to have been identified by that Member State as constituting a 
surface water body 'type', nor is it liable to compromise the attainment of good surface water status 
or of good ecological potential and good chemical status of such a surface water body and, secondly, 
that the adoption of the plan or programme is compatible with the measures implemented pursuant 
to the programme under Directive 2000/60 established, in accordance with Article 11 of that 
Directive, for the river basin district concerned. If that is an obligation under Directive 2000/60 then 
such an obligation was breached here and the NAP was adopted in breach of EU law.
The seventh question
115. The seventh question is:
Do Article 5(1) of and Annex I para, (i) to Directive 2001/42 read in the light of 
Article 3(3) TEU and/or Article 11 and/or 191(2) TFEU and/or Article 37 of the 
Charter of Fundamental Rights have the effect that the environmental report itself 
must include a description of the measures envisaged concerning monitoring in 
accordance with Article 10 in sufficient detail to demonstrate that Article 10 will 
be complied with, including details of how this monitoring will occur; when it will 
be done; and/or how the monitoring will be used and how any identified 
unforeseen adverse environmental effects will be addressed?
116. The applicant submitted:
"Article 5(1) and Annex 1 paragraph (i) to Directive 2001/42 requires that the environmental 
report must include a description of the measures envisaged for monitoring under Article 10 
in sufficient detail to demonstrate how Article 10 will be complies with. This clear from the 
wording of the Directive, the context and the purpose of SEA. The public is entitled to 
comment on envisaged monitoring measures and therefore ought to be given sufficient 
information to verify that they are consistent with Article 10. Furthermore clarity in 
monitoring serves other purposes such as avoidance of duplication by facilitating reuse of 
monitoring in other plans or programmes or coordinating SEA monitoring activities into a 
larger suite of environmental surveillance."
117. The State submitted:
"The Respondents' position is that Article 5(1) of the SEA Directive does not contain a bright 
line rule as to the level of detail that is required to be included in an environmental report, 
which is to be determined on an individual basis, in light of the Respondents' discretion 
pursuant to Article 5(2) of the SEA Directive to include the information in the environmental 
report that may reasonably be required. Accordingly, the Respondents disagree with the 
proposition that Article 5(1) of the SEA Directive requires an environmental report to include 
a description of the measures envisaged concerning monitoring in accordance with Article 
10 of the SEA Directive in sufficient detail to demonstrate that Article 10 of the SEA Directive 
will be complied with."
118. The ICMSA submitted:
"ICMSA adopts the submissions made by the State Respondents under this Issue."
119. The referring court's proposed answer is that the express wording of Directive 2001/42 
requires that the assessment include "a description of the measures envisaged concerning 
monitoring in accordance with Article 10". If the details referred to in the question are not included 
but are left over for later decision, it cannot be said that a description of the measures concerning 
monitoring in accordance with Article 10 has been provided. Failure to specify these details 
jeopardises the practical attainment of the objectives of the Directive and also undermines the Union 
objective of a high level of environmental protection.
120. The relevance of the question is that the assessment carried out in the present case under 
Directive 2001/42 did not include the level of detail referred to in the question. If the answer to the 
question is Yes, then the NAP was adopted without a proper assessment and therefore in breach of 
EU law.
The eighth question
121. The eighth question is:
Does the term 'material assets' in para, (f) of annex I of Directive 2001/42 exclude 
the value of such assets and/or in particular in the case of the assessment of an 
action programme pursuant to Article 5 of Directive 91/676, does that term 
exclude the broad societal impacts of agricultural activities, the impact of the plan 
or project on the agricultural industry and on the output and income of farmers, 
the sustainability of the agricultural industry in the Member State concerned, the 
25
food supply chain, and the employment of a significant portion of the population, 
and if so does Directive 2001/42 have the effect that consideration of such matters 
is unlawful in assessing the effects of the plan?
122. The applicant submitted:
"By analogy with the judgment in Case C-420/11, Leth the term 'material assets' in 
paragraph (f) of Annex I to the SEA Directive excludes the value of material assets and in 
the case of an action plan under Directive 91/676 excludes other economic or social impacts 
on the agriculture sector and farmers except in so far as these factor have an impact on the 
environment. Such an interpretation is not supported by the wording of the Directive and is 
not consistent with the objective of the Directive."
123. The State submitted:
"Even if'material assets' excludes a consideration of'critical infrastructure essential for the 
functioning of society' (which is not accepted), the Respondents submit that the taking into 
account of'critical infrastructure essential for the functioning of society' is still permissible 
in an environmental report prepared pursuant to Article 5(1) of the SEA Directive for the 
following reasons given that Article 5(2) provides that the environmental report prepared 
pursuant to Article 5(1) shall include the information 'that may reasonably be required...' 
and that paragraph f of Annex I of the SEA Directive, which refers to 'material assets' is non­
exhaustive. The interpretation of'material assets' in Leth is specific to the EIA Directive and 
not capable of automatic transposition to an SEA Directive context in light of the fact that 
environmental assessment at a strategic level is a fundamentally different process from that 
at a project level."
124. The ICMSA submitted:
"C-420/11, Leth merely concerns what is required to be included in an EIA. It says nothing 
about what must not be included in such an assessment, much less one for SEA purposes. 
An Taisce adduces no case law on this in the SEA context, EIA context or any context. An 
Taisce's arguments seem predicated on an assumption that readers of the report are, in 
effect, so easily confused that they could not process or understand the report if it contained 
anything other than environmental matters. There is no warrant for this assumption, nor 
does An Taisce provide any. Even assuming arguendo that something had been included 
which ought not to have been, An Taisce has not demonstrated that any 'consideration' 
which follows is 'unlawful' as a result."
125. The referring court's proposed answer is that the term "material assets" for the purpose of 
Directive 2001/42 does not include the financial value of such assets, by analogy with the judgment 
of 14 March 2013, Leth, C-420/11, ECLI:EU:C:2013:166 which referred to assessment under 
Directive 85/337. However Leth only established that assessment of financial value of material 
assets was not "necessary". It does not follow that including such assessment is unlawful. Directive 
2001/42 does not prohibit the competent authority of a Member State from assessing additional 
matters above and beyond the minimum necessary under the Directive, provided that the matters 
falling within the Directive are also assessed.
126. The relevance of the question is that the assessment carried out in this case did consider 
financial issues, therefore rendering it necessary to establish whether such consideration was lawful. 
The ninth question
127. The ninth question is:
If the answers to one or more of the first to eighth questions have the consequence 
that the adoption of the NAP involved a breach of Directives 92/43, 2000/60 
and/or 2001/42, is Commission Decision 2022/696 invalid having regard inter alia 
to Article 3(3) TEU and/or Article 11 and/or 191(2) TFEU and/or Article 37 of the 
Charter of Fundamental Rights?
128. The applicant submitted:
"The threshold that the Applicant has to meet is to raise a doubt in the Court's mind such 
that the matter has to be referred to the Court of Justice. In circumstances where the 
Derogation expressly relies on the NAP, if the adoption of the NAP involved a breach of the 
Habitats Directive, the WFD or the SEA Directive that raises (at the very least) a doubt 
whether the Derogation remains valid."
129. The State submitted:
"If the answers to the previous issues have the consequence that the adoption of the NAP 
involved a breach of the Habitats Directive, WFD and/or SEA Directive, the Commission 
Implementing Decision (EU) 2022/696 of 29 April 2022 granting a derogation requested by 
Ireland pursuant to Council Directive 91/676/EEC concerning the protection of waters 
against pollution caused by nitrates from agricultural sources nonetheless remains valid."
130. The ICMSA submitted:
26
"161. ICMSA adopts the submissions made by the State Respondents under this Issue. 
Those run from §235 to §259."
131. The referring court's proposed answer is that the conclusion that would follow from the 
proposed answers to the earlier questions would be that the NAP was adopted in breach of Directives 
92/43, 2000/60 and/or 2001/42. Commission Decision 2022/696 presupposes a valid NAP that was 
subject to proper assessment. In the absence of such proper assessment in conformity with EU law, 
the referring court's proposed answer is that the CJEU should declare that Commission Decision 
2022/696 is invalid on that basis. Relatedly and in particular, the Commission Decision is expressly 
predicated on the need for compliance with Directive 92/43, but a practical system to ensure such 
compliance is absent given the lack of any farm-level AA prior to the grant of individual derogations. 
In the absence of such a factual precondition, combined with the lack of any other compensating 
adequate assessment at the stage of adopting the NAP, the referring court's proposed additional 
answer is that the CJEU should declare that the Commission Decision is invalid on that specific basis 
in particular.
132. The critical point is that the Commission decision is predicated on the adoption of the Irish 
NAP (recital 9 and art. 14) and thus implicitly on the valid adoption of a NAP in compliance with 
Union law. The State submits that the reference to the NAP is just context, but that is implausible. 
Any legal inadequacy in the NAP would therefore flow through into the Decision.
133. Commission Decision 2022/696 is also expressly premised on the basis that the habitats 
directive will be fully implemented - see recital 23. The fact that there is no system in place in 
practice to apply the habitats directive prior to making farm-level derogation decisions is highly 
relevant. It appears likely to the referring court that the European Commission was not fully seized 
of the gap in domestic enforcement of the habitats directive. While the Commission decision recites 
that the directive should be complied with, there does not seem to have been any engagement with 
the fact that farm-level derogations are being allowed by the thousand without any appropriate 
assessment, including adjacent to or even within European sites. All of this has potentially negative 
results on water quality in Ireland. It seems unlikely on the face of things that the European 
Commission could lawfully have granted the derogation had it been focused on that situation.
134. The issue is necessary and appropriate for reference to the CJEU. It is clear from established 
caselaw that a domestic court at any level, not just an apex court, must refer an issue regarding the 
validity of EU secondary law if it considers that such law should be declared invalid by the CJEU: the 
judgment of 14 December 2000, Masterfoods, C-344/98, ECLI:EU:C:2000:689. That applies here.
135. Insofar as the State made points that the CJEU doesn't have jurisdiction to answer this 
question, that argument is unprincipled and contrary to the established jurisprudence of the CJEU: 
see for example the judgment of 11 January 2024, Friends of the Irish Environment, C-330/22, 
ECLI:EU:C:2024:19 at 43:
"It is apparent from settled case-law of the Court that, when a question on the validity of a 
measure adopted by the institutions of the European Union is raised before a national court 
or tribunal, it is for that court or tribunal to decide whether a preliminary ruling on the matter 
is necessary to enable it to give judgment and consequently whether it should ask the Court 
to rule on that question. Consequently, where the questions referred by the national court 
or tribunal concern the validity of a provision of EU law, the Court is, as a general rule, 
obliged to give a ruling (judgment of 28 March 2017, Rosneft, C-72/15, EU:C:2017:236, 
paragraph 49 and the case-law cited)."
136. The present action isn't a case where the applicant brings an abstract or free-standing 
challenge to EU measures without reference to domestic implementation or a dispute in national 
law. The challenge is firmly situated in the context of a concrete domestic dispute which for good 
measure also involves a challenge to national implementing measures. Nor is this a case where 
there is nothing left to decide by the national court in the event that the CJEU rules on the validity 
of the Commission Decision, because the applicant also challenges the GAP regulations which include 
amendments consequent on the Commission Decision. Furthermore, he applicant did not have 
standing to bring a direct action to the CJEU to challenge the Decision: see the tests laid down in 
cases such as the judgment of 30 October 2013, Inuit Tapiriit Kanatami and Others v Parliament 
and Council, C-583/11, ECLI:EU:C:2013:625.
137. As regards the State's proposed objection to the CJEU that the reference regarding the 
validity of the Commission decision is inadmissible because it is not necessary for anything that the 
court has to decide to resolve a dispute between the parties, that is also misconceived. The applicant 
has, as it is entitled to do, challenged an EU law measure in the context of a concrete dispute 
between the parties that involves, for good measure, a challenge to implementing measures. That 
is a standard procedure. To resolve that dispute the issue of the validity of the Commission decision 
must be addressed, and that can only be answered definitively by the CJEU. The State's admissibility 
objection (to an extent supported by the notice parties) would be destructive of the rule of law, 
because it would essentially eliminate Article 267 TFEU as a channel for oversight by the CJEU of the 
27
Union legislative process. In practice almost all legislative challenges would manifest in a complaint 
about some domestic implementing measure, and a new doctrine that allowing the national court to 
adjudicate on the domestic measure eliminated the need to address the validity of the relevant 
element of EU secondary legislation would effectively eliminate the possibility of ever reaching such 
issues. That would hollow out and render redundant the express provisions for reference of issues 
as to the validity of secondary EU law as set out in Article 267 TFEU.
138. The State's argument that this issue should be postponed is also misconceived. That would 
potentially require a second reference, some time in 2025 or 2026, which seems procedurally 
cumbersome and amounts to pointless formalism. The referring court has endeavoured to set out 
the reasons for the questions and thus the nexus between the questions and the issue of whether 
any breach of EU law has occurred in the adoption of the NAP and consequently the Commission 
Decision. It should therefore be legitimately open to the CJEU to draw any appropriate conclusions 
in answer to this question.
139. For completeness the referring court should note that this issue will not be moot even if this 
question is not answered until after 31st December 2025 being the expiry date of the Decision. It 
may be possible for the CJEU to determine the reference before then, but in any event the principles 
in the judgment of 11 January 2024, Friends of the Irish Environment CLG v Minister for Agriculture, 
Food and the Marine, C-330/22, ECLI:EU:C:2024:19, apply and the reference is appropriate on a 
similar basis. The referring court will not be precluded from granting at least some relief to the 
applicant if the answers to the questions referred indicate that a legal infirmity has occurred.
140. Viewed from the perspective of Irish law, the domestic jurisprudence allowing review of 
temporary decisions that are "capable of repetition but evading review" applies as set out earlier in 
this judgment. The present case falls squarely within the principle even if it is not finally determined 
by December 2025. Thus the present challenge can legitimately be pursued, for at least some relief, 
even after December 2025.
141. Indeed, the State accepted this in written submissions of 8th July 2024:
"15. If the Court decides to refer a question to the CJEU, with the consequence that the 
proceedings may not be finally determined prior to 31 December 2025, being the date until 
when the Commission Decision applies, the Respondents confirm that they would not raise 
a mootness objection before the CJEU. This is without prejudice to the Respondents raising 
an objection before the CJEU that questions concerning the validity of the Commission 
Decision are inadmissible on account of their being unnecessary to resolve any dispute 
between the parties to the proceedings."
142. In the event that the final order is made after the expiry of the instruments concerned, the 
court, if it finds for an applicant, is not without capacity to grant a remedy for a range of reasons, 
not least because the court does have jurisdiction to grant reliefs not pleaded, within the scope of 
the grounds (see domestic law referred to earlier in this judgment). So at least a declaration would 
be available in any event. Alternatively, if the court decides to direct an alternative remedy to 
certiorari, such as for example an order compelling the undertaking of further assessment, it is not 
an answer to that to say that the relief was not expressly sought. Again, that is because an 
unpleaded relief can be granted if within the scope of the grounds of challenge. The State again 
concedes this point in submissions of 8th July 2024:
"16. The Respondents do not consider that any issue arises at this juncture in circumstances 
in which pursuant to Order 84, Rule 19 [of the Rules of the Superior Courts] the Court may 
grant any relief mentioned in Order 84, Rule 18(1)—(2) which it considers appropriate 
notwithstanding that it has not been specifically claimed. Alternatively, the Applicant may seek 
leave of the Court to amend its Statement of Grounds."
143. Thus the challenge can legitimately be pursued, for at least some relief, even after December 
2025. It can in any event be noted that the previous derogation expired in December 2021, but 
was replaced only in April 2022, so there may be a run off period of at least de facto application in 
any event.
144. The relevance of the question is that in the proceedings, the applicant challenges the validity 
of Commission decision 2022/696. An answer to this question is therefore relevant and necessary 
to addressing the relief sought by the applicant.
Order
145. 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 CJEU be requested to note that the notice parties who are natural persons have 
requested the referring court to inform the CJEU that they do not wish their names 
to be anonymised for the purposes of the proceedings in the CJEU and therefore that 
all such persons can be named by the CJEU including by way of the publication of 
materials or of the judgment of that court; and
28
(iii) 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 or the determination of the 
appropriate way to proceed in respect of grounds that have been adjourned to await 
progress in other proceedings.
Approved