According to Directive 85/337/EEC (now replaced by Directive 2011/92/EU), Member States must ensure that consent for projects likely to have significant effects on the environment be subjected to a prior environmental impact assessment (EIA). In its judgement of 12 November 2019, the Grand Chamber of the Court of Justice of the European Union ruled that Ireland failed to comply with the judgement dated 3 July 2008 in which the Court of Justice held that Ireland had infringed Directive 85/337 by granting consent for works in the context of the construction of a wind farm at Derrybrien without carrying out a prior EIA. As a result, the Grand Chamber imposed financial penalties on Ireland.
Further to the ruling of 3 July 2008, Ireland had enacted legislation allowing for a regularisation of authorisations granted in breach of Directive 85/337. However, such a procedure had never been implemented, which prompted the European Commission to bring a second action for failure to fulfil obligations under EU law. The Court of Justice ruled in favour of the Commission.
The Court held that, in the event of violation of Directive 85/337, the principle of sincere cooperation requires Member States to eliminate the unlawful consequences of such a breach of EU law. This could occur exceptionally through a regularisation procedure. Such a procedure cannot be confined to any future impact on the environment of the project concerned, but must also take into account its environmental impact from the time of its completion.
According to the Court, since the new regularisation procedure provided by Irish law had not been implemented, Ireland still failed to comply with Directive 85/337. The Court considered the justifications provided by Ireland as unfounded. In particular, it is immaterial that the responsible local authorities put an end to the regularisation procedure (since they are an organ of Ireland) or that Ireland argued that it was unable to force the wind farm operator to undergo the said procedure (all the more so in this case, where the said operator is a wholly owned subsidiary of a semi-public sector entity that is 90% owned by Ireland). Moreover, the fact that the authorisation for the works regarding the wind farm can no longer be challenged before the courts because the time limit for bringing such proceedings as laid down in Irish law has expired, does not allow any consideration that the said authorisation should be deemed compliant with Directive 85/337. In this regard, Ireland cannot rely on legal certainty and legitimate expectations derived by the said wind farm operator from acquired rights in order to contest the consequences resulting from the objective finding that Ireland has failed to fulfil its obligations under Directive 85/337.
As a consequence, the Court ordered Ireland to pay a lump sum of EUR 5 million and a penalty payment of EUR 15, 000 per day until the date of compliance with the judgement of 3 July 2008. The Court reached that decision in view of the fundamental importance of the objective of protecting the environment, the duration of the infringement (more than 11 years), and the failure of Ireland to act in accordance with the principle of sincere cooperation.
Please contact Pierre de Bandt or Jeroen Dewispelaere for further information about this case and/or for general advice on EU environmental law or EU litigation.