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Advocate General Kokatt- Case C-254/19 issues her Opinion in Friends of the Irish Environment –v- An Bord Pleanala (Shannon LNG)

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In March 2008 An Bord Pleanala ('the Board') granted permission for the development of a Liquid Natural Gas terminal at Kilcolgan, Co. Kerry. The permission imposed a 10-year time limit on the carrying out and completion of the development.
 
The site in question is located adjacent to what are now two Natura 2000 sites -the Lower River Shannon Special Area of Conservation under the Habitats Directive (Site Code IE0002165), and the River Shannon and River Fergus Estuaries Special Area of Conservation under the Birds Directive (Site Code IE0004077).
 
In July 2018 the Board granted a 5-year extension to the development permission. Friends of the Irish Environment CLG ('FIE') brought judicial review proceedings challenging the decision to grant this extension, on the basis that this extension was not granted in compliance with the Habitats Directive.  
 
One issue that arose during the High Court proceedings was whether the original development consent and the extension constituted a single operation, thus meaning no further assessment under the Habitats Directive was required.  
 
In February 2019, Judge Simons referred six questions to the Court of Justice of the European Union ('CJEU').
 
 

Opinion

 
AG Kokott gave her opinion on 30 April 2020. She collated the referred questions under four headings, only three of which the AG gave an opinion on:
 
  1. Obligation to carry out a prior examination

 
The Board had argued that, aside from the extension of the construction phase, the development consent did not alter the scope of the project and its potential environmental effects. AG Kokott disagreed with this. She said that the nature and circumstances of the extension mean that it cannot be regarded as a single operation with the original 2008 development consent. The reason for this is because the original 2008 development has not been properly assessed under the Habitats Directive. AG Kokott stated:
 
''the extension could be dispensed with if it and the decision of 2008 are to be regarded as one single operation. Further steps for achieving such a single operation would not have to be assessed again under Article 6(3).''
 
However,
 
''The extension decision allows the works to be carried out for the first time, that is to say a measure which should be assessed under Article 6(3) of the Habitats Directive in order to determine whether it is likely to have a significant effect on the protection areas concerned.''
 
''The decision to extend the duration of the development consent to construct a facility, in the absence of which no works may be carried out, must be regarded as independent agreement of a project such as to trigger Article 6(3) –''
 
If the CJEU follows this Opinion, it would mean that the renewal of a development consent triggers screening for AA even where there are no works or interventions which alter the physical site.
 
 
  1. Screening

 
As the above answer was answered in the affirmative, AG Kokott turned to what considerations a competent authority is required to have regard to in carrying out Stage 1 screening under the Habitats Directive:
 
''Further scientific findings would be required in order to dispense with the appropriate assessment. Firstly, these findings would have to close the gaps in the 2008 assessment and, secondly, they would have to take account of any intervening changes in the project, the protected habitats and species concerned and the scientific knowledge. Any other plans and projects that have been added in the meantime must be included if, together with the plan or project under consideration, they could have a significant effect on the site''.
 
If the CJEU follows this Opinion, it would mean that screening must close any gaps in any earlier assessment and take account of whether the project has been changed in the meantime, whether there have been any changes in the protected habitats and species concerned and any new scientific knowledge.
 
 
  1. Interpretation in accordance with EU law and arguments of the parties

 
The High Court had asked the question, to what extent, if any, is the obligation on a national court to interpret legislation insofar as possible in accordance with the provisions of EU law, subject to the requirement that the parties to the litigation have expressly raised those interpretative issues.
 
AG Kokott stated that:
 
'' EU law does not require national courts to raise of their own motion a plea alleging infringement of provisions of EU law where examination of that plea would oblige them to go beyond the ambit of the dispute as defined by the parties, they are obliged to raise of their own motion points of law based on binding EU rules only where, under national law, they must or may do so in relation to a binding rule of national law''.
 
''It is not necessary for the parties to expressly plead before the national courts which individual provisions of national law those courts should disapply or interpret in accordance with EU law. Rather, the identification of those provisions and the development of the approach for eliminating any contradiction between national law and EU law is part of the obligation of national courts to achieve the result envisaged by the directive''.
 
If the CJEU follows this Opinion, it would mean that national courts must interpret national law in light of EU law even where a breach of EU law has not been expressly pleaded by the parties.
 
 
Also of note in the Opinion is the view expressed in relation to the interpretation of a "project" in the EIA Directive. The AG expressed the view that this is narrower than that in the Habitats Directive.
 
It must be remembered that this is only the opinion of the Advocate General and as such it is not a statement of the law. This will only come when the judgment of the full court is delivered.
 
A full copy of the opinion can be found here.

Wriiten by Patrick Reilly.

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