Opinion of the Advocate General — ECLI:EU:C:2023:697
Date: 2023-09-21
Language of the case: English
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary 
1 In Sweetman v An Bord Pleanála & Ors [2021] IEHC 16, delivered on 15 January 
2021,[OMISSIS] a decision of An Bord Pleanála (“the Board”) granting 
permission to a proposed development for the abstraction of freshwater from Loch 
an Mhuilinn, Gorumna Island, Co[unty] Galway [was quashed], solely on the 
basis of its failure to comply with the requirements of the Water Framework 
Directive, (“the WFD”). [OMISSIS] 
2 Following delivery of that decision [OMISSIS], correspondence ensued between 
the first notice party and the Environmental Protection Agency (“the EPA”). The 
EPA [is] not a notice party to these proceedings [n]or [is it] involved in any way 
in the substantive hearing [OMISSIS]. 
3 The response of the EPA was circulated to all parties and following this, the first 
named respondent brought an application to have the case reopened. In the context 
of that application, it was suggested by the applicant that[OMISSIS][OMISSIS] I 
should make a preliminary reference to the Court of Justice of the European 
Union (“the CJEU”), pursuant to Article 267 TFEU. 
4 Having considered the arguments raised by the parties, I have decided that a 
preliminary reference is warranted. [OMISSIS]  
Nature of Dispute 
5 The planning application in question sought permission to abstract a maximum of 
4,680 m3 of freshwater per week from Loch an Mhuilinn, a privately owned non-
tidal inland lake (characterised as a body of surface water under the WFD) for up 
to 22 weeks annually from May-September. The abstraction would take place 
4 hours a day for a maximum of 4 days a week. The abstracted freshwater would 
be used to bathe diseased salmon to rid them of Amoebic Gill Disease and sea 
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lice. These salmon are located in four licenced sites operated by the first notice 
party, Bradán Beo Teoranta in Kilkieran Bay, Co. Galway. The freshwater would 
be pumped from the lake via a pipeline to a proposed headwall at the coast road 
where another pipeline would convey the freshwater to tarpaulins which would be 
towed by boat to the sites where the fish would be treated. 
Judgment of 15 January 2021 
6 The applicant [OMISSIS] it was successful in its argument that, in granting 
permission for the development, the Board had breached its obligation under 
Article 4(1) of [the WFD] [OMISSIS] to ensure non-deterioration and the 
achievement of good surface water status when granting approval for a 
development affecting a surface water body. I found that the proposed 
development will affect Loch an Mhuilinn, a surface water body. However, Loch 
an Mhuilinn had not been granted a status by the EPA following precise 
evaluation and monitoring, as required by the WFD and Ireland’s implementing 
legislation. The concepts of deterioration and good surface water status are 
inextricably tied to the complex evaluation framework identified in the WFD. 
Given the failure by the EPA to assign a status to Loch an Mhuilinn, I concluded 
it was impossible for the Board to evaluate whether the proposed works were 
compliant with Article 4(1) of the WFD. The reliance by the Inspector and the 
Board on some type of proxy evaluation that referred to concepts said to stem 
from the WFD was not, in my view, sufficient to establish compliance with the 
WFD. In those circumstances, I quashed the decision of the Board solely on this 
ground. 
Events post Judgment 
7 Following the delivery of my judgment, the first notice party decided to seek the 
views of the EPA on the issues raised. The response of the EPA, by letter dated 28 
January 2021, was circulated to all parties on 19 February 2021. 
8 The EPA’s response of 28 January 2021 set out an overview of its own 
understanding of “the EPA’s role in identifying waterbodies under the Water 
Framework Directive” in 13 [OMISSIS] points. In summary, it indicated that 
there was no obligation to determine the status of all waterbodies in the State and 
that it was not and is not obliged to determine the status of Loch an 
Mhuillin[:][OMISSIS]; 
“i. The purpose and provisions of the Water Framework Directive (WFD) 
apply to all waters including surface waters and groundwaters (Article 
1 (Purpose) and Article 2 (Definitions). 
ii. The basic unit of reporting used in the Directive is known as a water 
body. Water bodies are used to report on compliance with the main 
environmental objectives of the Directive. 
AN BORD PLEANÁLA ET IRELAND AND THE ATTORNEY GENERAL 
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iii. The Directive requires member states to identify water bodies (defined 
in Article 2(10)) as part of the analysis of the characteristics of the 
river basin districts (Article 5 and Annex II). 
iv. The EPA is the competent authority in Ireland for identifying water 
bodies under the WFD (Article 7, SI No. 722 of 2003. European 
Communities (Water Policy) Regulations). 
v. The European Commission produces guidance to support member 
states in implementing the WFD requirements. Guidance Document 
No. 2 relates to the Identification of Water Bodies 
https ://ec. europa. eu/environment/water/waterframework/facts 
figures/ guidance docs en.htm 
vi. Guidance Document No. 2 recognises that the identification of all 
surface waters as discrete water bodies would place a very significant 
burden on member states. 
vii. The guidance states that member states have flexibility to decide 
whether the purposes of the Directive, which apply to all surface 
waters, can be achieved without having to identify as a water body 
every minor but discrete and significant element of surface water 
(Section 3.5 of Guidance [Document No. ]2). 
viii. For lakes, the Directive requires all lakes larger than 50 hectares 
(0.5 km2) in surface area to be identified as a WFD water body (Article 
5, Annex 2 (1.2.2)). 
ix. For lakes smaller than this threshold, member states may decide to 
include these as WFD water bodies if they are significant in the 
context of the Directive’s purposes and provisions (e.g. ecologically 
important, important to the objectives of a protected area (as listed in 
Annex 5 of the Directive) or having a significant adverse impact on 
other surface waters). 
x. These principles were applied by the EPA and the River Basin District 
Coordinating Authorities to the selection of lake water bodies in 
Ireland (see Characterisation Report at link below). All lakes greater 
than 50 hectares in size and smaller lakes in protected areas (Special 
Areas of Conservation or areas used for drinking water abstraction) 
were identified as WFD water bodies. 
https://www. epa. ie/pubs/reports/water/other/wfd/EPA water WFD m 
oni faring programme analysis of river basins.pdf 
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xi. There are an estimated 12,000 lakes in Ireland ranging in size from 
small ponds to our largest lakes such as Lough Conn and Lough Derg. 
The EPA has identified 800 lakes [as] WFD lake water bodies. 
xii. Loch an Mhuilin is not an identified WFD water body as it does not 
meet the criteria in relation to surface area or being located in a 
protected area and therefore the EPA does not determine a status for 
it. 
xiii. For elements of surface water not identified as a WFD water body the 
basic protection measures listed in Article 11 of the Directive apply 
(Section 3.5 of Guidance [Document No. ]2). 
9 In short, the EPA [OMISSIS] did not believe that it was necessary that Loch an 
Mhuilin be identified as a WFD water body. This was not a view that had ever 
been communicated to me during the hearing of the matter prior to the judgment 
of 15 January 2020. As the Board observed in their submissions [OMISSIS], “It is 
fair to say that all parties and the Court proceeded on the “common assumption” 
that the status of Loch an Mhuilin for the purposes of the WFD [was] required to 
be and/or would be determined and that it now emerges that there is at least a 
possibility that that common assumption was mistaken”. 
10 On 16 April 2021 the matter was re-listed [OMISSIS] [OMISSIS]At that stage, 
the [second] notice party made clear it was not intending to take part in any 
further hearings or make any further submissions. 
11 [OMISSIS]. 
12 [OMISSIS] [Procedural steps in the national proceedings] 
Reopening a Judgment of the High Court 
13 In the light of my existing judgment on this matter, I must explain why I have 
decided to re-open the matter, as requested by both the Board and the applicant. 
14 There is a significant volume of case law identifying the criteria that apply in 
respect of the re-opening of a decision of the High Court in a variety of 
circumstances (see the decision [OMISSIS] in DPP v Lavery (No. 3) [2018] IEHC 
185). Here, I have delivered a written judgment but no order has been perfected. 
The position in these circumstances is therefore similar to that of the leading case 
of In Re McInerney Homes [2011] IEHC 25. 
15 [OMISSIS] 
16 [OMISSIS] 
17 [OMISSIS] 
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18 [OMISSIS] [Explanation of the iterations of the test to re-open proceedings after 
judgment in national case law] 
19 [OMISSIS] 
20 As discussed [OMISSIS] at paragraph [OMISSIS][40] in MacFhlannchadha v 
Minister for Agriculture [2021] IEHC 647, the decisions in both McInerney and 
Nash resulted from a situation where some error of fact had arisen. In 
MacFhlannchadha, [OMISSIS].[the judge] was asked to revisit a decision she had 
made as regards the direct effect of Directive 2001/82 in light of the ruling of 
Advocate General Bobek in the course of Article 267 proceedings. In those 
circumstances, she noted that the decision of the Supreme Court in Abbeydrive 
Developments v Kildare County Council [2010] 2 IR 397 was of particular 
“resonance” given it concerned the reopening of a decision on the basis of an 
interpretation of EU law. A similar situation pertains here. 
21 [OMISSIS] [Facts giving rise to that Supreme Court judgment] 
22 In his Supreme Court judgment, Kearns P. held [OMISSIS] that while in the 
ordinary course, a decision of the Supreme Court was final and conclusive, in 
special or unusual circumstances the Court will exercise its special jurisdiction to 
“nonetheless intervene to interfere with its own order”. [OMISSIS]the Supreme 
Court made clear that it would, in appropriate circumstances, revisit its 
conclusions where to do otherwise would vitiate the constitutional protection of 
fair procedures. [OMISSIS] for the threshold for the exercise of the special 
jurisdiction to be met, the general importance of the point to be raised must be 
considered and, “it must be a point which, if valid, would as a matter of 
probability have affected the outcome of the case”. [OMISSIS] 
Decision to Re-open 
23 Applying the above principles, in this case, the issues raised by the EPA letter 
undoubtedly have the potential of affecting the outcome of the case. The applicant 
succeeded only on one ground: that there had been a breach of the WFD in 
circumstances where the lake in question had not been designated and therefore 
the impact of the proposed development could not be evaluated as required by the 
Directive. The EPA letter argues that there is no requirement to designate every 
single water body under the Directive, and indeed that the Directive envisages not 
all water bodies will be designated and that does not prevent the application of the 
Directive. The EPA adds that the European Commission adopts this position and 
no objection has ever been taken to Ireland’s decision not to designate all water 
bodies. 
24 That raises a fundamental issue going to the heart of the case, given my 
conclusion that there had been a breach of the WFD by authorising abstraction 
from a water body that had not been designated. Further, it is a point that 
potentially affects every water body throughout the member states and does not 
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appear to have been determined by the CJEU. Applying the test identified by [the 
Supreme Court] it is a point which if valid would very likely have affected the 
outcome of the case. 
25 It arises in the context of new material being put before the Court. That material 
could in my view with reasonable diligence have been put before the Court at the 
original hearing as per the test [set out In Re McInerney Homes][OMISSIS]. That 
points towards a refusal to re-open the case. Nonetheless, because of the particular 
importance of the point at issue, and its applicability well beyond the 
circumstances of this case, I have concluded I should not refuse to re-open the 
matter simply because this information ought to have been identified and put 
before the Court prior to the hearing. 
26 In those circumstances, [OMISSIS]I am satisfied the threshold for re-opening the 
case is comfortably met under Irish law. The point raised goes to the core of my 
decision. I turn now to the matters relevant to the making of a preliminary ruling. 
Relevant Findings of Facts 
27 [OMISSIS] all the relevant findings of fact are set out in the judgment [of 15 
January 2021]. [OMISSIS] 
National Provisions/National Case Law 
28 The relevant provisions of national law are the regulations that implement the 
WFD in Ireland, being S.I. No. 722/2003, the European Communities (Water 
Policy) Regulations 2003 and S.I. No. 350/2014, the European [U]nion (Water 
Policy) Regulations 2014. 
Decision to Make a Preliminary Reference 
29 [OMISSIS] [I]n order to resolve this question, the assistance of the CJEU would 
be required, given (a) that it raises a question of the correct interpretation of the 
WFD, having regard in particular to the decision of the CJEU in Case C-461/13 
Bund für Umwelt und Naturschutz Deutschland ECLI:EU:C:2O15:433 (the Weser 
case), (b) the heavy reliance [placed] by the EPA upon guidance notes and the 
practice of the European Commission, thus making it desirable that the 
Commission would provide their observations on the issue and (c) the absence of 
any case-law of the CJEU on the issue[OMISSIS] In those circumstances, I have 
decided to make a reference under Article 267 TFEU. 
30 In respect of the nature of the question of interpretation[OMISSIS], the water 
body the subject of this dispute, Loch an Mhuilinn, has not been designated 
pursuant to the WFD by the body responsible for designation in Ireland, i.e. the 
EPA, apparently because of its size. Therefore, it does not have an existing status 
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under the WFD. I found that in those circumstances, there could be no analysis of 
deterioration having regard to the benchmark set by a status analysis and nor 
could there be an analysis of the impact of the proposed abstraction on the good 
surface water status/ecological potential/chemical status. 
31 The EPA says this approach is incorrect. It argues that there is a 0.5km2/50ha 
threshold for identifying lakes for WFD purposes, to be found in Annex II, 
Section 1.2.2 which says that lake inclusions begin with those of 0.5 to 1 km2 
producing the size threshold of 0.5 km2 (excluding protected areas under 
Article 6). It says that when implementing the WFD it provided a status to all 
water bodies above 0.5 km2 and in protected areas. It says the concept of 
significance is relevant when considering what bodies require designation. It 
explains that it made its approach quite clear to the European Commission in 2004 
when it provided its submission in accordance with Article 5 of the WFD and that 
its approach has been reviewed by the Commission without adverse comment on 
the use of the 0.5 km2 criteria coupled with the inclusion of protected areas below 
that size. It points out no infringement action has been taken by the Commission. 
Indeed, it argues that the approach adopted by Ireland is reflected throughout 
Europe and the Commission has acknowledged this, citing by way of example the 
Commission report on Finland when reviewing the first cycle RBMP (Member 
State: Finland Com (2012) 670 Final) where it refers to the “WFD limits of system 
A of 0.5 km2 for lakes and 10km2 catchments for rivers”. In those circumstances, 
the EPA submits the position is acte clair despite the absence of a judgment on 
this point. 
32 My judgment [of 15 January] is premised on an interpretation of the WFD, 
informed by the decision of the CJEU in Weser, that the concepts of deterioration 
and good surface water status are inextricably tied to the complex evaluation 
framework identified in the WFD. I found that without a status as determined in 
accordance with the WFD, it is not possible to evaluate whether there has been a 
deterioration in that status and therefore whether there has been compliance with 
Article 4(1) of the WFD. 
33 There is therefore a key question on the interpretation of the WFD that in my view 
can only be answered by the CJEU i.e. whether all water bodies, irrespective of 
their size, require to be designated pursuant to the WFD so that in the context of 
an application for permission to carry out a development affecting a surface water 
body, a court can assess the proposed development by reference to deterioration 
and good surface water status. [OMISSIS] Moreover, it is a question that is 
specifically about the correct interpretation of the WFD and it arises in particular 
having regard to the findings of the CJEU in Weser. 
34 [OMISSIS] 
Submissions of the Parties on Questions to be Referred 
35 [OMISSIS] 
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36 [OMISSIS] 
37 [OMISSIS] 
38 [OMISSIS] 
Questions to be Referred 
[OMISSIS]