The Court of Appeal has dismissed Friends of the Irish Environment’s (FIE) appeal over the inclusion of the proposed Shannon LNG terminal on a European Union list of projects of common interest, holding that the proceedings did not present a genuine dispute for an Irish court to resolve.
In a judgment delivered on 21 December 2022, Mr Justice Noonan said the Irish courts could not review the State’s preparatory steps in the process because the European Commission alone made the final decision on the Union list. Those steps included allowing the project to proceed from a regional group for the Commission’s consideration.
FIE, an environmental organisation, argued that the Commission’s delegated regulation was unlawful because the project had not undergone the required sustainability assessment. It sought a reference to the Court of Justice of the European Union (CJEU) so that the validity of the regulation could be considered. FIE also argued that Ireland should have vetoed the project’s inclusion and that its failure to do so breached obligations under the Climate Action and Low Carbon Development Act 2015.
The court said a preliminary reference under Article 267 of the Treaty on the Functioning of the European Union must be necessary to resolve a dispute before the national court. Here, the challenge to the regulation’s validity was the substance of the case, rather than an issue arising indirectly in a genuine dispute with a national authority. A reference would leave no separate matter for the Irish court to decide, the judgment said.
The court also held that Ireland’s role in forwarding the project was preparatory and ancillary to the Commission’s final decision. Reviewing those steps nationally would amount to a collateral challenge to the regulation, which falls within the jurisdiction of the EU courts. The court agreed with the High Court that the Government was not bound by the cited duties in the 2015 Act in exercising its function under EU law. It said that issue did not alter the conclusion that the proceedings amounted to an impermissible collateral challenge.
The judgment noted evidence that the Shannon LNG project was not on the current Union list. On that basis, the court said the requested reference had become hypothetical and unavailable. It also observed that FIE could challenge any necessary permission or licence for the terminal in Irish proceedings if such an issue arose; planning permission had been granted in 2007. The appeal was dismissed and the High Court orders affirmed. The parties were permitted to make written submissions on costs within 28 days.