The High Court has refused Friends of the Irish Environment CLG’s request to refer to the EU Court of Justice a challenge to the inclusion of the proposed Shannon LNG terminal and connecting pipeline on the European Union’s list of projects of common interest.
Mr Justice Garrett Simons ruled that the High Court had no underlying national dispute to decide, so a preliminary ruling on the validity of the EU measure was not necessary for the court to give judgment. The court also refused the organisation’s related request for a declaration that Ireland must provide a mechanism to challenge an EU Commission decision even where no national authority has acted to implement it.
The case concerns Commission Delegated Regulation (EU) 2020/389, which established the fourth Union list of projects of common interest. Such designation can bring faster treatment for permit applications and eligibility for EU financial assistance. The environmental organisation argued that the Commission exceeded its powers by including Shannon LNG without ensuring the project met criteria under the EU’s TEN-E Regulation, including sustainability requirements. It also alleged that the Irish State had failed to carry out an adequate assessment while participating in the regional process.
The judgment recounts State evidence that an initial draft ranking did not give Shannon LNG a sufficient cost-benefit ratio for inclusion. After Ireland raised issues including the country’s peripherality and Brexit, a later ranking recalculated the project’s ratio to include an “isolation benefit”. The applicant’s solicitor objected to the late disclosure of that information and said it remained unclear how the relevant criterion came to be accepted. The court did not determine the substantive validity of the listing in this judgment.
The judge held that the High Court could not invalidate the delegated regulation; only the EU courts could do so. A national court may refer a validity question where it arises in a national case involving a decision or implementing measure. Here, the judge said, no such national measure had been identified, and the judicial review was being used solely to bring the EU measure’s validity before the Court of Justice. He also rejected the argument that the EU case concerning data protection complaints created a general right to such a freestanding reference.
Other grounds in the judicial review, including claims under the Climate Action and Low Carbon Development Act 2015, were not decided. They are to be listed for a further hearing. The case was set for directions on 16 October 2020.