Ireland was recently found not to have fully implemented Directive 85/337 on the assessment of the effects of certain public and private projects on the environment (the EIA Directive) and Directive 2003/35 (the Arhus Convention Directive).
As the name implies, this second directive arises from the Arhus Convention itself, which was negotiated under the auspices of the United Nations Economic Commission for Europe and aims to improve public participation and access to justice in environmental matters.1 The European Union and all of its Member States are signatories and it entered into force on 30 October 2001.2 The Arhus Convention Directive was to be brought into force in Member States by 25 June 2005.
This case was, in many ways, a missed opportunity. The implementation of the Arhus Convention - and ensuring access to justice in environmental matters - raises a number of interesting and difficult issues. To what extent must access be granted, and what must the Member States do in order to support individuals and NGOs who wish to assert their rights in development consent procedures? In particular, is there a conflict between the use of'sufficient interest' in the Convention and the Directive and the 'substantial interest' standard in Irish planning law; is this justifiable4 and is the process for judicial review for Irish planning permission decisions in fact 'fait; equitable, timely and not prohibitively expensive' (as required under the Convention)
Unfortunately, as the Advocate General highlighted,5 the Commission seems to have contradicted itself, putting forward complaints of lack of implementation and transposition but supporting those with arguments regarding the quality of implementation. As a result, the European Court of Justice (ECJ) decided important questions on narrow and technical grounds, leaving us without substantial responses to the policy issues involved.
Although heard as one case, the actions arose separately. One had its roots in damage to a coastal wetland in Kinsale, County Cork caused by a private road project. When the European Commission investigated this, it appeared that no development consent had been granted for the project and that no environmental impact assessment (EIA) had been carried out, despite the sensitivity of the site.6 It requested observations from Ireland on 18 October 2002, which were received on 5 March 2003, and issued a reasoned opinion on 11 June 2003, to which Ireland replied on 10 November 2003.
The second action was brought because of Commission concerns regarding the transposition of the Arhus Convention Directive into Irish law. On 28 July 2005, the Commission requested observations from Ireland because the latter had not informed the Commission of its implementing measures. Ireland replied on 7 September 2005. The Commission issued a first reasoned opinion on 19 December 2005 and a second on 18 October 2006, giving Ireland until 18 December 2006 to transpose the directive. Ireland replied several times, but was not able to satisfy the Commission.