The High Court has referred nine questions to the Court of Justice of the European Union (CJEU) in a judicial review challenging Ireland’s Fifth Nitrates Action Programme and a European Commission decision allowing some farms to apply more livestock manure than the standard limit.
In a judgment delivered on 30 July 2024, Mr Justice Humphreys stayed the substantive proceedings pending the CJEU’s ruling. The High Court did not decide the judicial review or issue a final ruling on the validity of the programme or the Commission decision.
The challenge was brought by An Taisce – The National Trust for Ireland against the Minister for Housing, Local Government and Heritage, Ireland and the Attorney General. The Minister for Agriculture, Food and the Marine, the Irish Farmers’ Association and the Irish Creamery Milk Suppliers Association were notice parties.
The Commission’s 2022 decision permits Ireland, subject to conditions, to authorise livestock manure containing up to 250kg of nitrogen per hectare each year on eligible grassland farms. The usual limit under the EU Nitrates Directive is 170kg. The Irish programme sets the framework for those authorisations.
An Taisce argued that environmental assessments of the programme should have considered the effects of the nitrate-emitting farming activities enabled by the derogation, not only the programme’s protective measures. It also argued that the assessments did not properly address water-quality objectives or provide enough detail on monitoring. The State respondents disputed that EU law required the assessments An Taisce proposed. The farming associations generally supported the State’s opposition.
The High Court set out its proposed answers to the questions referred. Among other points, it proposed that assessments should consider the environmental harms of the activities regulated by the programme and whether the measures are sufficient to protect water bodies. It also proposed that monitoring measures in an environmental report must be described with enough detail to show how monitoring will be carried out. These are the referring court’s views placed before the CJEU, not a final determination by the EU court.
The reference also asks whether the Commission’s 2022 decision is invalid if the programme’s adoption breached EU environmental directives. The High Court’s proposed answer is that the CJEU should declare the decision invalid if the earlier questions establish such breaches. The Commission decision’s validity therefore remains unresolved.
The court ordered that the nine questions be referred under Article 267 of the Treaty on the Functioning of the European Union. It adjourned the substantive case pending the CJEU judgment, while preserving the possibility of procedural or interlocutory decisions in the meantime. The judgment also asks the CJEU to note that the natural-person notice parties requested that their names not be anonymised in the EU proceedings.