EU Commission

In a continued debate with Commissioner Margot Wallstrom, FIE is seeking a study of Irish road Environmental Impact Statements. During the correspondence relating to the Commission's failure to enforce EU law over Carrickmines, and various other cases we cited, Commissioner Wallstrom suggested that even without proceeding to Court, the Commission's pressure had resulted in 'overall changes in practice.' We suggest that in fact the standard of road EIS has fallen in Ireland, and that a Commission desktop study would show this. Read the correspondence and our Press Release.

In a continued debate with Commissioner Margot Wallstrom, FIE is seeking a study of Irish road Environmental Impact Statements. During the correspondence relating to the Commission's failure to enforce EU law over Carrickmines, and various other cases we cited, Commissioner Wallstrom suggested that even without proceeding to Court, the Commission's pressure had resulted in 'overall changes in practice.' We suggest that in fact the standard of road EIS has fallen in Ireland, and that a Commission desktop study would show this. Read the correspondence and our Press Release.
The text of the correspondence between FIE and EU Environmental Commissioner Margot Wallstrom on EU enforcement.
Margot Wallstrom, Commissioner,
Environmental Directorate XI,
Rue de la Loi, 200,
B-1049, Brussels, Belgium
17 April, 2004 A(O4)24463 - D(O4)8184


Dear Ms. Wallstr??m,

Thank you for your letter of reply over our concerns about the protection of Carrickmines and other sites in Ireland.

We would be grateful if you could consider the following comments which we make in response.

We appreciate that the Commission is ultimately limited in this instance to what it could achieve in litigation by proving a case before the European Court of Justice. As you know it is a source of frustration for environmental NGOs and concerned citizens of Member States that we are denied access to the European Court of Justice in matters such as this. In that context the Commission's obligations in relation to enforcement action are all the higher.

Therefore if the Commission is considering a decision not to enforce EU law, or has already made such a decision then

¬? there must be good and clear reasons for that decision

¬? the decision must be formally announced in an accountable fashion to complainants and the public.

We have considered case C-57/89, Commission v Germany, which you referred to in your letter. The case involved an application for interim measures to prevent work which in the Commission's view would impact on wild birds contrary to the Birds Directive. From our reading of the case, the core problem the Commission met was its inability to demonstrate impact on the conservation status of wild birds. We do not see how this case would form a precedent in relation to Carrickmines where there is no disagreement about the impact.

An agreed reallocation of funds to other projects is not in any sense a sanction against a Member State for non-compliance. This reallocation was necessary due to delays in the road project, which delays are entirely due to the Irish authorities' repeated failure to comply with Irish law.

In any event, DG Regio emphasises that allocation of funds is not the primary mechanism for ensuring compliance with EU law. We agree. Legal action is the primary mechanism.

We did not intend to suggest that "the Commission's representations in relation to the cases that [we] mentioned were without value." The point we were making was that EU law was never implemented or, put another way, the specific non-compliances with EU law complained of were never made good.

In relation to Ballymun, we will be writing to the Commission again separately in relation to

a) the failure of EIA of demolition to assess the asbestos contents of the flats, which is leading to attempts by Ballymuin Regeneration Ltd. to have the Irish Health and Safety Authority lower its standards

b) the ongoing lack of any EIA of drainage and flood attenuation, the main plank of our original concerns which have yet to be satisfactorily addressed

We note your reference to overall changes in practice. In our last letter, we stated:

"We have noted that the quality of EISs of road schemes in Ireland has declined significantly in the last few years. We suppose that this is due in large part to the lack of enforcement of their quality."

We believe that this decline in quality of EISs of road schemes would be easy to demonstrate by a desktop study. However, a considerable amount of time would have to be put in. The Commission may not receive sufficient complaints to be aware of this because of a lack of belief on the part of affected community groups that it is possible to achieve any meaningful change.

If the Commission is interested in addressing EIA in the context of "overall changes in practice" then would your office commission such a study to determine exactly what have been these changes in practice?

Our resources as an NGO do not allow us to extend from individual cases to surveys of the entirety of EIA of roads in Ireland. However, we are aware of many poor quality EIAs of road developments and would be happy to assist in in any way we could.

Finally, we are grateful for your continued courtesy to us and your attention to the concerns of our organization.


Tony Lowes. Caroline Murphy, Percy Podger





MARGOT WALLSTROM'S REPLY TO OUR ORIGINAL LETTER SEEKING ENFORCEMENT AT CARRICKMINES CASTLE COMPLEX



Mr Tony Lowes, Ms. Caroline Murphy and Mr Percy Podger,
Friends of the Irish Environment, Allihies,
County Cork, IRELAND

Dear Mr Lowes, Ms. Murphy and Mr Podger,
I would like to thank you for your letter of 18 December 2003 with regard to the impact of the M50 motorway project on important archaeological remains at Carrickmines Castle.

In particular, you urge the Commission to take steps to seek a redesign -of the motorway in the vicinity of the Castle to issue proceedings in the European Court of Justice if necessary. You also suggest that Commission investigation of complaints in relation to the environmental impact assessment {EIA) process do not usually lead to a rectification of the flaws in the EIA process or any change in the substantive environmental impact of the road scheme in question. You mention a number of cases in particular.

First of all, I would like to stress the limits of the Commission's role. The Commission is not itself a judicial body and can not itself order a halt to a project. It is true that it can but it bears the burden of proving that. the Member State is in breach of its obligations.. It is also true that the Court can, under "certain circumstances, end measures at. national level. However, the order of the Court ill Case (C57/89, Commission v Germany, where the Commission unsuccessfully sought to suspend work on sea defenses, suggests that it would be unlikely to do so in a case such as Carrickmines.

With regard to the role of EU funding, the Commission in late 2003 reallocated approximately half of the Community funding earmarked for the M50South Eastern Motorway to another road project in view of the likely delays to the completion of the project. The Irish authorities had sought the transfer and the Commission was in a position to agree to the proposal. Further EU funding of work on the section affecting Carrickmines Castle is not currently envisaged.

I do not agree that the Commission's representations in relation to the cases that you mentioned were without value. With regard to the Glen' of the Downs and the Kildare By-Pass, further design features were incorporated to reduce the impacts of the projects, and, in the case of the Glen of the Downs, agreement was secured to undertake compensatory planting of native woodland. With regard to the regeneration of Ballymun, I understand that, while earlier phases of the project were not made subject to EIA, later phases were, following Commission intervention. In addition, the Commission has decided to refer Ireland to the Court of Justice on the use of participation fees. Particular account has been taken of the circumstances that pertained in Ballymun.

Beyond the specific cases, the Commission has urged overall changes in practice with a view to lessening the likelihood of advers impacts from major infrastructure, and to improving implementation of the Environmental Impact Assessment .Directive (85;/333/EEC). It has encouraged corridor and route selection processes that seek to identify possible key impacts at a very early stage. It has also successfully pressed the Irish authorities for national guidance on the screening of Annex II projects under Directive 85/337/EEC.

Yours sincerely,

Margot Wallstrom







OUR ORIGINAL LETTER SEEKING ENFORCEMENT AT CARRICKMINES CASTLE COMPLEX

Margot Wallstrom, Commissioner,
Environmental Directorate XI,
Rue de la Loi, 200,
B-1049, Brussels, Belgium
December 18, 2003
This email address is being protected from spambots. You need JavaScript enabled to view it.



Re: Carrickmines Castle Complex and the Kampsax Report


Dear Commissioner Wallstr??m,

Friends of the Irish Environment (FIE) would be grateful if we could make some comments arising out of the recently released Kampsax report, commissioned in part in response to the Petition brought by our organization and Friends of Medieval Dublin.

We are most concerned by recent reports in the Irish Times (13th December 2003) quoting unnamed senior sources at the Commission predicting that Ireland will not lose any grant aid and that you would not take legal action over the breaches of EU law.

Our comments reflect our area of competence, which is the Environmental Impact Assessment process and environmental law. We will not go into great detail in relation to the archaeological issues raised. We wish to address the Commission's r?¥le in ensuring the implementation of EU law, based on our experience of previous complaints processed by the Commission.

The Irish authorities have long argued that administrative errors in Ireland can be corrected by way of Judicial Review.

In fact, in a letter to your authority of 26 June 2001 in case P2000/4002, the Irish authorities state:

"In the absence of a planning decision have been challenged and taken to finality under Irish legislation, a complaint by any party in relation to procedural matters must be regarded as lacking in substance and validity."

Aside from the reason of resources and possible punitive costs which we have outlined to you before as barriers to environmental justice in Ireland - and the participation fee now required for submissions on planning applications - in this case the two month time period for an application to the Courts has long passed. Thus, this case relies even more than usual on the Commission's intervention.


1. What does the report say about the adequacy/validity of the EIA process?

The study shows the EIS and therefore the EIA process was inadequate and that the procedures used were flawed.

We have the greatest concerns about the non-technical summary, the inadequacy of which is rated as having "high significance" by the Report:

"We find the defective non-technical summary is the most significant shortcoming for the EIS in general, since it is the basis on which the public will react."

As to the technical reports that comprise the body of the EIS, the Report details that on 'some points of vital importance in regard to assessing the effect on Carrickmines Castle shortcomings in the the EIS have been found." The Report states that the EIS

"did not begin to consider the implications over the uncertainty of the location of Carrickmines Castle that was admitted to be the case, and the fact that in the worst case scenario the effect could be very severe indeed."

Elsewhere the authors expand on this point:

"But even if the castle had been half its size, or exactly where it was thought to be, the measures taken to acquire a more certain understanding of it were inadequate, and the mitigation process was flawed."

Also:
"Had the true scale of the impact been understood sooner it must be the case that a better engineering solution could have been designed."

And
"The actual degree of uncertainty should have prompted a high degree of alarm in September 1997 about the possibility that the castle was as extensive as their earlier warnings had suggested."

The report has established that inadequacies in the EIS and therefore EIA have led to a design which has a much more severe impact on archaeological heritage than necessary.

From a legal point of view, the criterion of a lapse which is 'so serious as to invalidate the whole EIA process" is surely met in an instance such as Carrickmines where "lapses of best archeological practices" have resulted in a more severe impact on a very important archaeological site than would have been necessary if the European Directive had not been infringed.


2. What is the appropriate response to the inadequacy of the EIA?

The question then arises as to what the appropriate response is. We feel the appropriate response is obvious: all practical measures to make good the inadequacy of the process must be taken.

This means redesigning the motorway in the vicinity of Carrickmines Castle.

As to this, the report says:

"As matters stand, short of reopening the entire approval process for the Carrickmines Interchange for the purposes of a new design, there is little that can be done except for the greatest possible degree of preservation within the existing road limits."

We are not aware of any reason why the authors should suppose that the approval process for the Carrickmines Interchanges should not be reopened nor is there any indication in the report as to why this supposition is or might be made. The question of whether or not the road scheme should be redesigned was, we understand, not part of their brief.

The sole reason advanced by the Irish authorities for not reopening the approval process for the Interchange has been delay. (Another unadvanced reason may have been an unwillingness to admit that errors were made.)

Therefore the secondary question arises whether as a matter of EU law, the Irish authorities should be allowed continue with a project in breach of EU law because of the claimed delay that the necessary steps to comply with EU law would cause to the completion of the project.

There are a number of important factors to be considered in seeking to answer this question.

A. Most importantly, we are not aware of any legal grounds for allowing the project to proceed in breach of EU law on this basis.

B. Additionally we are particularly concerned that this is the reason consistently advanced by the Irish authorities in order to be allowed complete projects which have not complied with EU law. There is a consistent problem in Ireland with inadequate EIA of major road schemes. In the instant case, the inadequacy in EU law was matched by a failure to comply with Irish law, specifically the National Monuments Act.

The pattern for EIA of road schemes in Ireland is one of avoiding the difficult issues. Unfortunately complaints to the Commission in relation to the EIA process, while they are taken up and lead to investigations, do not usually lead to a rectification of the flaws in the EIA process or any change in the substantive environmental impact of the road scheme in question.

We have noted that the quality of EISs of road schemes in Ireland has declined significantly in the last few years. We suppose that this is due in large part to the lack of enforcement of their quality.

We can instance four cases in which we have been involved where the Commission failed to enforce the Directive.

¬? In the case of the Glen of the Downs, the Commission dropped their enforcement proceedings because of delay on the part of complainants. There is no suggestion of such delay in this case.

¬? In the case of the regeneration at Ballymun [P1999/4449] where the EIA Directive was circumvented by 13 simultaneous planning applications all just beneath the 2 hectare threshold requiring EIA, the Commission chose for reasons which are unclear to us not to taken enforcement action. The impoverished Ballymun resident who ensured the case was "taken to finality under Irish legislation" was financially ruined and was visited by the Sherrif with a view to seizing what possessions of value he might have owned on foot of an action to recover it's costs by the developer, Ballymun Regeneration Ltd., an emanation of the State.

¬? In the case of the Kildare By-Pass [P1999/4306] the Commission chose not to proceed, even though it was clearly apparent that the Government's own scientific service had been ignored and the impacts on Pollardstown Fen, a cSAC, unassessed. In this case, The Commission accepted the mitigation measures proposed on foot of the complaint, mitigation measures which would have been unnecessary had the Directive not been infringed.

¬? In the case of the proposed golf course at Doonbeg, Co. Clare, a cSAC [P97/4877], the failure of the Heritage Service to make available a key report by Dr, Evelyn Moorkins during the EIA process was never addressed by the Commission, which actually continued to fund the project. When the Commission's inaction became critical, one of our members brought proceedings in the Irish Courts which while it did not stop the project, succeeding in requiring the Minister to ensure that the habitat was protected.

In the one case where the Commission did proceed under the EIA Directive [C-392/96, Commission vs. Ireland] the effect has been, while tardy, extraordinarily wide spread, even to a revision of the entire national forestry legislation, incorporating for the first time the principles of public consultation.

In this context, it would be most regrettable should the Commission engage in a pattern of continuous extension of the grounds under which it will opt not to enforce EU law.


C. Voluntary or poorly-funded heritage and environmental NGOs including Friends of the Irish Environment, Friends of Mediaeval Dublin, an Taisce, the Carrickminders, as well as individual archaeologists, historians and heritage experts have put extensive effort into raising the Carrickmines issue with the Commission and the European Parliament. If at the end of the day the project is allowed to proceed as planned, it will significantly undermine the faith of the public in the enforcement mechanisms for EU law and the professional expertise needed to prepare submission, already a difficult matter, will be lost to us.

One of the results of the Commission's failure to act in significant cases of proposed developments is that it discourages NGOs and others from using their scarce resources and time in making complaints to the Commission. It also widens the gap between the European Union and the citizens of its member state.

The Irish authorities continue to see NGOs and members of the public concerned about environmental issues as a force to be tackled and dealt with. We would instance the phrase "the opponents of the motorway" used in the Department of the Environment's response to the Kampsax report. We are not aware of any group or person who could be described as "opponents of the motorway". It appears that the Irish authorities fundamentally fail to appreciate the nature of our concerns.


D The length of delay need not be extensive. In fact we consider that if the approval process for a redesigned Carrickmines Interchange had started when the significance and extent of the site had become clear (identified in the report as 1997 at the latest) then it would have been completed by now.

The process for the approval of the redesign of the Lehaunstown Interchange (the next interchange on the same motorway) has reached the stage of consideration by An Bord Pleanála having been initiated by the Council in 2003.

Significantly, the Irish authorities (D??n Laoghaire Rathdown County Council, the National Roads Authority, D??chas and the Minister for the Environment, Heritage and Local Government - with the notable exception of the National Museum) were determined to press ahead with the existing design and refused at any stage to consider a redesign. This is despite the fact that the inadequacies in the EIA were surely as obvious to them as they were to the authors of the Kampsax report. For this reason any delay can in fact be attributed to their refusal to employ the procedures necessary to set things right as soon as possible.


3. Conclusion

If the Commission does not act in the case of the Carrickmines Castle Complex, those who seek the implementation of EU law in Ireland will be undermined, and with them the respect for the law on which civil society rests.

One of our founding members, Dr. Sara Dillon, analysed Ireland's record in implementing EU environmental law and accorded it the title of "the reluctant jurisdiction."

Our organisation has been centrally involved in all of the cases referred to above, as we have been in the case of the Carrickmines Castle Complex as joint Petitioners with the Friends of Medieval Dublin. Yet all of this work has been done on a voluntary basis by an organisation that has no staff. Even more disturbing, all of our legal advice has been obtained pro bono. Should it prove again to have been to no avail, we will not find it easy to obtain advice, regardless of the importance of the cases that may arise.

We were present on your visit to Ireland in 2002 and know that you have a sense of the frustration of our organisations, our relative impotence, and the political and judicial realities that render our State's environment at continual risk.

We urge you to take the necessary steps to ensure that the Irish authorities make the best restitution for their failure to comply with the EIA Directive. This means redesigning the motorway in the vicinity of the Castle. If the Irish authorities are not willing to do this, then we urge you to issue proceedings in the European Court of Justice.

Respectfully yours,

Tony Lowes
Caroline Murphy
Percy Podger
Directors of Friends of the Irish Environment, Ltd.


Dillon, Sara, 1999, The Mirage of EC Environmental Federalism in a Reluctant Jurisdiction, Vol. 8 New York University Journal of Environmental Law



CC: Pronsias de Rossa, MEP, Vice-President European Petitions Committee; This email address is being protected from spambots. You need JavaScript enabled to view it.
Patricia McKenna, MEP; This email address is being protected from spambots. You need JavaScript enabled to view it.

Letter to Margot Wallstrom
Margot Wallstrom, Commissioner,
Environmental Directorate XI,
Rue de la Loi, 200,
B-1049, Brussels, Belgium
December 18, 2003
This email address is being protected from spambots. You need JavaScript enabled to view it.



Re: Carrickmines Castle Complex and the Kampsax Report


Dear Commissioner Wallstr??m,

Friends of the Irish Environment (FIE) would be grateful if we could make some comments arising out of the recently released Kampsax report, commissioned in part in response to the Petition brought by our organization and Friends of Medieval Dublin.

We are most concerned by recent reports in the Irish Times (13th December 2003) quoting unnamed senior sources at the Commission predicting that Ireland will not lose any grant aid and that you would not take legal action over the breaches of EU law.

Our comments reflect our area of competence, which is the Environmental Impact Assessment process and environmental law. We will not go into great detail in relation to the archaeological issues raised. We wish to address the Commission's r?¥le in ensuring the implementation of EU law, based on our experience of previous complaints processed by the Commission.

The Irish authorities have long argued that administrative errors in Ireland can be corrected by way of Judicial Review.

In fact, in a letter to your authority of 26 June 2001 in case P2000/4002, the Irish authorities state:

"In the absence of a planning decision have been challenged and taken to finality under Irish legislation, a complaint by any party in relation to procedural matters must be regarded as lacking in substance and validity."

Aside from the reason of resources and possible punitive costs which we have outlined to you before as barriers to environmental justice in Ireland - and the participation fee now required for submissions on planning applications - in this case the two month time period for an application to the Courts has long passed. Thus, this case relies even more than usual on the Commission's intervention.


1. What does the report say about the adequacy/validity of the EIA process?

The study shows the EIS and therefore the EIA process was inadequate and that the procedures used were flawed.

We have the greatest concerns about the non-technical summary, the inadequacy of which is rated as having "high significance" by the Report:

"We find the defective non-technical summary is the most significant shortcoming for the EIS in general, since it is the basis on which the public will react."

As to the technical reports that comprise the body of the EIS, the Report details that on 'some points of vital importance in regard to assessing the effect on Carrickmines Castle shortcomings in the the EIS have been found." The Report states that the EIS

"did not begin to consider the implications over the uncertainty of the location of Carrickmines Castle that was admitted to be the case, and the fact that in the worst case scenario the effect could be very severe indeed."

Elsewhere the authors expand on this point:

"But even if the castle had been half its size, or exactly where it was thought to be, the measures taken to acquire a more certain understanding of it were inadequate, and the mitigation process was flawed."

Also:
"Had the true scale of the impact been understood sooner it must be the case that a better engineering solution could have been designed."

And
"The actual degree of uncertainty should have prompted a high degree of alarm in September 1997 about the possibility that the castle was as extensive as their earlier warnings had suggested."

The report has established that inadequacies in the EIS and therefore EIA have led to a design which has a much more severe impact on archaeological heritage than necessary.

From a legal point of view, the criterion of a lapse which is 'so serious as to invalidate the whole EIA process" is surely met in an instance such as Carrickmines where "lapses of best archeological practices" have resulted in a more severe impact on a very important archaeological site than would have been necessary if the European Directive had not been infringed.


2. What is the appropriate response to the inadequacy of the EIA?

The question then arises as to what the appropriate response is. We feel the appropriate response is obvious: all practical measures to make good the inadequacy of the process must be taken.

This means redesigning the motorway in the vicinity of Carrickmines Castle.

As to this, the report says:

"As matters stand, short of reopening the entire approval process for the Carrickmines Interchange for the purposes of a new design, there is little that can be done except for the greatest possible degree of preservation within the existing road limits."

We are not aware of any reason why the authors should suppose that the approval process for the Carrickmines Interchanges should not be reopened nor is there any indication in the report as to why this supposition is or might be made. The question of whether or not the road scheme should be redesigned was, we understand, not part of their brief.

The sole reason advanced by the Irish authorities for not reopening the approval process for the Interchange has been delay. (Another unadvanced reason may have been an unwillingness to admit that errors were made.)

Therefore the secondary question arises whether as a matter of EU law, the Irish authorities should be allowed continue with a project in breach of EU law because of the claimed delay that the necessary steps to comply with EU law would cause to the completion of the project.

There are a number of important factors to be considered in seeking to answer this question.

A. Most importantly, we are not aware of any legal grounds for allowing the project to proceed in breach of EU law on this basis.

B. Additionally we are particularly concerned that this is the reason consistently advanced by the Irish authorities in order to be allowed complete projects which have not complied with EU law. There is a consistent problem in Ireland with inadequate EIA of major road schemes. In the instant case, the inadequacy in EU law was matched by a failure to comply with Irish law, specifically the National Monuments Act.

The pattern for EIA of road schemes in Ireland is one of avoiding the difficult issues. Unfortunately complaints to the Commission in relation to the EIA process, while they are taken up and lead to investigations, do not usually lead to a rectification of the flaws in the EIA process or any change in the substantive environmental impact of the road scheme in question.

We have noted that the quality of EISes of road schemes in Ireland has declined significantly in the last few years. We suppose that this is due in large part to the lack of enforcement of their quality.

We can instance four cases in which we have been involved where the Commission failed to enforce the Directive.

¬? In the case of the Glen of the Downs, the Commission dropped their enforcement proceedings because of delay on the part of complainants. There is no suggestion of such delay in this case.

¬? In the case of the regeneration at Ballymun [P1999/4449] where the EIA Directive was circumvented by 13 simultaneous planning applications all just beneath the 2 hectare threshold requiring EIA, the Commission chose for reasons which are unclear to us not to taken enforcement action.. The impoverished Ballymun resident who ensured the case was "taken to finality under Irish legislation" was financially ruined and was visited by the Sherrif with a view to seizing what possessions of value he might have owned on foot of an action to recover it's costs by the developer, Ballymun Regeneration Ltd., an emanation of the State.

¬? In the case of the Kildare By-Pass [P1999/4306] the Commission chose not to proceed, even though it was clearly apparent that the Government's own scientific service had been ignored and the impacts on Pollardstown Fen, a cSAC, unassessed. In this case, The Commission accepted the mitigation measures proposed on foot of the complaint, mitigation measures which would have been unnecessary had the Directive not been infringed.

¬? In the case of the proposed golf course at Doonbeg, Co. Clare, a cSAC [P97/4877], the failure of the Heritage Service to make available a key report by Dr, Evelyn Moorkins during the EIA process was never addressed by the Commission, which actually continued to fund the project. When the Commission's inaction became critical, one of our members brought proceedings in the Irish Courts which while it did not stop the project, succeeding in requiring the Minister to ensure that the habitat was protected.

In the one case where the Commission did proceed under the EIA Directive [C-392/96, Commission vs. Ireland] the effect has been, while tardy, extraordinarily wide spread, even to a revision of the entire national forestry legislation, incorporating for the first time the principles of public consultation.

In this context, it would be most regrettable should the Commission engage in a pattern of continuous extension of the grounds under which it will opt not to enforce EU law.


C. Voluntary or poorly-funded heritage and environmental NGOs including Friends of the Irish Environment, Friends of Mediaeval Dublin, an Taisce, the Carrickminders, as well as individual archaeologists, historians and heritage experts have put extensive effort into raising the Carrickmines issue with the Commission and the European Parliament. If at the end of the day the project is allowed to proceed as planned, it will significantly undermine the faith of the public in the enforcement mechanisms for EU law and the professional expertise needed to prepare submission, already a difficult matter, will be lost to us.

One of the results of the Commission's failure to act in significant cases of proposed developments is that it discourages NGOs and others from using their scarce resources and time in making complaints to the Commission. It also widens the gap between the European Union and the citizens of its member state.

The Irish authorities continue to see NGOs and members of the public concerned about environmental issues as a force to be tackled and dealt with. We would instance the phrase "the opponents of the motorway" used in the Department of the Environment's response to the Kampsax report. We are not aware of any group or person who could be described as "opponents of the motorway". It appears that the Irish authorities fundamentally fail to appreciate the nature of our concerns.


D The length of delay need not be extensive. In fact we consider that if the approval process for a redesigned Carrickmines Interchange had started when the significance and extent of the site had become clear (identified in the report as 1997 at the latest) then it would have been completed by now.

The process for the approval of the redesign of the Lehaunstown Interchange (the next interchange on the same motorway) has reached the stage of consideration by An Bord Pleanála having been initiated by the Council in 2003.

Significantly, the Irish authorities (D??n Laoghaire Rathdown County Council, the National Roads Authority, D??chas and the Minister for the Environment, Heritage and Local Government - with the notable exception of the National Museum) were determined to press ahead with the existing design and refused at any stage to consider a redesign. This is despite the fact that the inadequacies in the EIA were surely as obvious to them as they were to the authors of the Kampsax report. For this reason any delay can in fact be attributed to their refusal to employ the procedures necessary to set things right as soon as possible.



3. Conclusion

If the Commission does not act in the case of the Carrickmines Castle Complex, those who seek the implementation of EU law in Ireland will be undermined, and with them the respect for the law on which civil society rests.

One of our founding members, Dr. Sara Dillon, analysed Ireland's record in implementing EU environmental law and accorded it the title of "the reluctant jurisdiction."

Our organisation has been centrally involved in all of the cases referred to above, as we have been in the case of the Carrickmines Castle Complex as joint Petitioners with the Friends of Medieval Dublin. Yet all of this work has been done on a voluntary basis by an organisation that has no staff. Even more disturbing, all of our legal advice has been obtained pro bono. Should it prove again to have been to no avail, we will not find it easy to obtain advice, regardless of the importance of the cases that may arise.

We were present on your visit to Ireland in 2002 and know that you have a sense of the frustration of our organisations, our relative impotence, and the political and judicial realities that render our State's environment at continual risk.

We urge you to take the necessary steps to ensure that the Irish authorities make the best restitution for their failure to comply with the EIA Directive. This means redesigning the motorway in the vicinity of the Castle. If the Irish authorities are not willing to do this, then we urge you to issue proceedings in the European Court of Justice.

Respectfully yours,

Tony Lowes
Caroline Murphy
Percy Podger
Directors of Friends of the Irish Environment, Ltd.


Dillon, Sara, 1999, The Mirage of EC Environmental Federalism in a Reluctant Jurisdiction, Vol. 8 New York University Journal of Environmental Law



CC: Pronsias de Rossa, MEP, Vice-President European Petitions Committee; This email address is being protected from spambots. You need JavaScript enabled to view it.
Patricia McKenna, MEP; This email address is being protected from spambots. You need JavaScript enabled to view it.
Ireland's recent refusal to continue to release to FIE all warning letters and Reasoned Opinions relating to legal proceedings against Ireland was the subject of a successful FIE complaint to Margot Wallstrom, the EU Environment Commissioner. Reasoned Opinions are critical documents in that they give the case law and the Commission's views on the interpretation of European Directives. She told Patricia McKenna, Irish MEP, that where the Commission had determined not to proceed to Court, Reasoned Opinions could not be exempt from requests under EU legislation. Read our PRESS RELEASE and the Irish Examiner story, the only Irish paper to cover this story of the new culture of secrecy.

Ireland's recent refusal to continue to release to FIE all warning letters and Reasoned Opinions relating to legal proceedings against Ireland was the subject of a successful FIE complaint to Margot Wallstrom, the EU Environment Commissioner. Reasoned Opinions are critical documents in that they give the case law and the Commission's views on the interpretation of European Directives. She told Patricia McKenna, Irish MEP, that where the Commission had determined not to proceed to Court, Reasoned Opinions could not be exempt from requests under EU legislation. Read our PRESS RELEASE and the Irish Examiner story, the only Irish paper to cover this story of the new culture of secrecy.
(Failure by a Member State to fulfil its obligations - Directive 92/43/EEC - Conservation of natural habitats - Conservation of wild fauna and flora - Article 4(1) - List of sites - Site information)
JUDGMENT OF THE COURT (Sixth Chamber)

11 September 2001 (1)

In Case C-67/99,

Commission of the European Communities, represented by R. Wainwright and P. Stancanelli, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Ireland, represented by M.A. Buckley, acting as Agent, H.A. Whelehan SC and A.M. Collins BL, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to transmit to the Commission the full list of sites mentioned in the first subparagraph of Article 4(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), together with the information on each site required by the second subparagraph of Article 4(1) thereof, Ireland has failed to fulfil its obligations under that directive,

THE COURT (Sixth Chamber),

composed of: C. Gulmann (Rapporteur), President of the Chamber, V. Skouris, R. Schintgen, F. Macken and J.N. Cunha Rodrigues, Judges,

Advocate General: P. L?©ger,


Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 18 January 2001,

after hearing the Opinion of the Advocate General at the sitting on 3 May 2001,

gives the following

Judgment

1.

By application lodged at the Court Registry on 25 February 1999, the Commission of the European Communities brought an action under Article 169 of the EC Treaty (now Article 226 EC) for a declaration that, by failing to transmit to the Commission the full list of sites mentioned in the first subparagraph of Article 4(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) ('the directive), together with the information on each site required by the second subparagraph of Article 4(1) thereof, Ireland has failed to fulfil its obligations under that directive.

Community law

2.

According to its Article 2, the aim of the directive is to contribute towards bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the EC Treaty applies.

3.

Article 3(1) and (2) of the directive provides:

'1. A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species' habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.

The Natura 2000 network shall include the special protection areas classified by the Member States pursuant to Directive 79/409/EEC.

2. Each Member State shall contribute to the creation of Natura 2000 in proportion to the representation within its territory of the natural habitat types and the habitats of species referred to in paragraph 1. To that effect each Member State shall designate, in accordance with Article 4, sites as special areas of conservation taking account of the objectives set out in paragraph 1.

4.

A 'site is defined by Article 1(j) of the directive as a geographically defined area whose extent is clearly delineated. Article 1(k) of the directive defines a 'site of Community importance as being a site which, in the biogeographical region or regions to which it belongs, contributes significantly to the maintenance or restoration at a favourable conservation status of a natural habitat type in Annex I or of a species in Annex II and may also contribute significantly to the coherence of Natura 2000, and/or contributes significantly to the maintenance of biological diversity within the biogeographical region or regions concerned. For animal species ranging over wide areas, sites of Community importance must correspond to the places within the natural range of such species which present the physical or biological factors essential to their life and reproduction.

5.

The procedure governing the designation of special areas of conservation ('Special Areas of Conservations), which is laid down in Article 4 of the directive, consists of four stages. First, each Member State must propose a list of sites indicating which natural habitat types in Annex I and which species in Annex II native to its territory the sites host (Article 4(1)). Second, the Commission, on the basis of the Member States' lists and in agreement with each of them, must establish a draft list of sites of Community importance (Article 4(2), first and second subparagraphs). Third, the list of sites selected as sites of Community importance must be adopted by the Commission in accordance with the procedure laid down in Article 21 of the directive (Article 4(2), third subparagraph, and 4(3)). Fourth, Member States are required to designate sites of Community importance as Special Areas of Conservations (Article 4(4)).

6.

With more specific regard to the first stage, Article 4(1), first subparagraph, of the directive requires Member States to propose the list of sites there mentioned on the basis of the criteria set out in Annex III (Stage 1) to the directive and relevant scientific information.

7.

Annex III (Stage 1), Parts A and B, to the directive sets out the following criteria:

'A. Site assessment criteria for a given natural habitat type in Annex I

(a) Degree of representativity of the natural habitat type on the site.

(b) Area of the site covered by the natural habitat type in relation to the total area covered by that natural habitat type within national territory.

(c) Degree of conservation of the structure and functions of the natural habitat type concerned and restoration possibilities.

(d) Global assessment of the value of the site for conservation of the natural habitat type concerned.

B. Site assessment criteria for a given species in Annex II

(a) Size and density of the population of the species present on the site in relation to the populations present within national territory.

(b) Degree of conservation of the features of the habitat which are important for the species concerned and restoration possibilities.

(c) Degree of isolation of the population present on the site in relation to the natural range of the species.

(d) Global assessment of the value of the site for conservation of the species concerned.

8.

Under Annex III (Stage 1), Part C, to the directive, Member States are required, on the basis of the criteria set out in Annex III (Stage 1), Parts A and B, to classify the sites which they propose on the national list as sites eligible for identification as sites of Community importance according to their relative value for the conservation of each natural habitat type in Annex I or each species in Annex II.

9.

Under the second subparagraph of Article 4(1) of the directive, the list of sites proposed must be transmitted to the Commission within three years of notification of the directive, together with information on each site. This information must include a map of the site, its name, location, extent and the data resulting from application of the criteria specified in Annex III (Stage 1), and must be provided in a format established by the Commission in accordance with the procedure laid down in Article 21 of the directive ('the format).

10.

Since the directive was notified on 10 June 1992, Member States ought to have transmitted the list of proposed sites and the information on those sites to the Commission before 11 June 1995.

11.

The format was established only by Commission Decision 97/266/EC of 18 December 1996 concerning a site information format for proposed Natura 2000 sites (OJ 1997 L 107, p. 1). That decision was notified to the Member States on 19 December 1996 and published in the Official Journal of the European Communities on 24 April 1997.

Pre-litigation procedure

12.

Having failed to receive from the Irish authorities either a full list of sites hosting the natural habitat types and native species referred to in Annexes I and II to the directive respectively or the information on those sites, and in the absence of anything else indicating to it that Ireland had adopted the measures necessary to meet its obligations under Article 4 of the directive, the Commission, on 24 April 1996, put the Irish Government on formal notice to submit its observations on that matter within two months, in accordance with the procedure laid down in Article 169 of the EC Treaty.

13.

By letter of 28 April 1997, the Irish authorities communicated a list of 207 sites covering 5 530 km¬? which had been publicly proposed for designation as Special Areas of Conservations and which hosted priority natural habitats.

14.

Bearing in mind the fact that the format had been available only from 19 December 1996, the Commission sent to the Irish Government on 11 July 1997 an additional letter of formal notice in which it once again complained that it had failed to transmit a full list of sites and relevant site information and called on it to submit its observations on that infringement of Article 4(1) of the directive within one month. The Commission stressed, in particular, the need to use the format for transmission of the relevant data.

15.

By letter of 5 September 1997, the Irish authorities informed the Commission of their intention to give effect to the first subparagraph of Article 4(1) of the directive by preparing the required list in three tranches, the first consisting of sites hosting priority natural habitat types, the second consisting of sites hosting non-priority natural habitats and species, and the third consisting of marine sites. With regard to the list transmitted on 28 April 1997, concerning the first of the three tranches, the Irish authorities pointed out that this had never been intended to replace or remove the need for the formal transmission mechanism.

16.

Since its correspondence with the Irish authorities did not allow it to conclude that Ireland had transmitted a full list of the sites hosting the natural habitat types and native species listed in Annexes I and II to the directive respectively or the information relating to those sites, the Commission, acting in accordance with Article 169 of theEC Treaty, issued a reasoned opinion to Ireland on 19 December 1997, in which it called on that Member State to comply therewith within two months of its notification.

17.

By letter of 23 February 1998, the Irish authorities informed the Commission that their failure to transmit the list of sites and the information relating to those sites was attributable to delays associated with the public consultation process in Ireland, and indicated that they expected to be in a position to transmit a list by about mid-1998. By a letter of 30 September 1998 Ireland transmitted a first partial definitive list of 39 sites for purposes of Article 4(1) of the directive. Information on the 39 sites contained on this first partial definitive list had been transmitted separately with a letter of 6 August 1998. By letter of 12 October 1998, the Irish authorities submitted a second partial definitive list of nine sites for purposes of Article 4(1) of the directive. The information on the sites contained on this second list had been sent separately with a letter of 6 October 1998.

18.

Taking the view that these communications did not allow it to conclude that Ireland had put an end to the infringement in question, the Commission decided to bring the present action before the Court.

Admissibility

19.

The Irish Government submits that the action must be declared inadmissible in its entirety. It argues that the reasoned opinion fails to satisfy the requirements laid down in the Court's case-law. It does not, it contends, contain a coherent and detailed statement of the reasons which led the Commission to conclude that Ireland had failed to fulfil its Treaty obligations.

20.

Moreover, it continues, that opinion does not contain the same grounds and complaints as those which feature in the application. The Irish Government submits in that regard that the reasoned opinion merely mentions Ireland's dilatory compliance with the provisions of Article 4(1) of the directive but makes no reference to the specific heads of complaint in the application which allege that Ireland has failed to comply with the substantive requirements of Article 4(1).

21.

It should be noted in this regard that a reasoned opinion must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil its obligations under Community law (see, inter alia, Case C-279/94 Commission v Italy [1997] ECR I-4743, paragraph 15).

22.

In addition, the subject-matter of proceedings brought under Article 169 of the EC Treaty is circumscribed by the pre-litigation procedure provided for by that provision and the Commission's reasoned opinion and application must consequently be based on the same complaints (see, inter alia, Commission v Italy, cited above, paragraph 24).

23.

That rule, however, does not prevent the Commission from setting out its initial complaints in greater detail in its application, on condition that it does not alter the subject-matter of the dispute (see, along these lines, Case C-256/98 Commission v France [2000] ECR I-2487, paragraphs 30 and 31).

24.

In its reasoned opinion, the Commission complained that Ireland had failed to forward either the definitive and complete list of sites eligible for designation as Special Areas of Conservations or the information relating to those sites, as required under Article 4(1), first and second subparagraphs, of the directive. The Commission has pointed out in that regard that the indicative and partial list forwarded by the Irish authorities on 28 April 1997 could not be treated as being a full list either from the geographical point of view or with regard to the types of natural habitats and species' habitats to be covered, and that the site information communicated did not relate to all of the sites in question.

25.

In its application, the Commission set out the same heads of claim as in the reasoned opinion. It pointed out that, in view of the scientific reference sources, the definitive and partial list of sites proposed by Ireland was insufficient. It stated that Ireland had not proposed any sites for 26 natural habitat types of Community interest - including seven priority natural habitats extensively represented within its territory, such as coastal lagoons, Atlantic decalcified fixed dunes (Cannulo-Ulicetea), decalcified fixed dunes with Empetrum nigrum, active raised bogs, bog woodland, and Taxus baccata woods of the British Isles - or for 20 species of Community interest, such as Rhinolophus hipposideros, Phoca vitulina, Alosa fallax, Geomalacus maculosus and Margaritifera margaritifera, of which it has sizeable populations. The Commission also noted that, for certain natural habitat types and certain species, the number of sites definitively proposed by Ireland was inadequate.

26.

It first of all follows from the foregoing that, in this case, the reasoned opinion does satisfy the requirements of the Court's case-law referred to in paragraph 21 of the present judgment.

27.

Second, this analysis makes possible the finding that the Commission did not, in its application, alter the subject-matter of the dispute, but confined itself to illustrating the head of complaint set out in its reasoned opinion, concerning the failure to transmit a list of all the sites eligible for designation as Special Areas of Conservations, by providing precise examples of the shortcomings in the lists which had already been forwarded by Ireland.

28.

The plea of inadmissibility raised by Ireland must for those reasons be rejected.

Substance

The first plea in law

29.

With regard to the obligation to transmit the site list referred to in Article 4(1), first subparagraph, of the directive, the Commission points out that each Member State's contribution to the setting up of a coherent European ecological network depends on the representation on its territory of the natural habitat types and species' habitats listed in Annexes I and II to the directive respectively. It is clear from the combined provisions of Article 4(1) of and Annex III to the directive that Member States enjoy a certain margin of discretion when selecting sites for inclusion in the list. The exercise of that discretion is, however, in the Commission's view, subject to compliance with the following three conditions:

- only criteria of a scientific nature may guide the choice of the sites to be proposed;

- the sites proposed must provide a geographical cover which is homogeneous and representative of the entire territory of each Member State, with a view to ensuring the coherence and balance of the resulting network. The list to be submitted by each Member State must therefore reflect the ecological variety (and, in the case of species, the genetic variety) of the natural habitats and species present within its territory;

- the list must be complete, that is to say, each Member State must propose a number of sites which will ensure sufficient representation of all the natural habitat types listed in Annex I and all the species' habitats listed in Annex II to the directive which exist on its territory.

30.

So far as the Irish national list is concerned, the Commission notes that, when the period laid down in the reasoned opinion expired on 19 February 1998, Ireland had forwarded to it a list of 207 sites, but that this was no more than an indicative list. When the Commission brought its action before the Court on 25 February 1999, Ireland had not confirmed this indicative list but had merely sent a partial definitive list of 48 sites and related information, and at the date of the hearing, 18 January 2001, Ireland had transmitted in total a list of 362 sites.

31.

The Commission states that it instituted the present proceedings with a view to securing a declaration that the Irish national list was manifestly inadequate, and that such inadequacy far exceeded the margin of discretion given to Member States. Not only is such inadequacy evident with regard to the situation existing when the period set in the reasoned opinion expired, but also a whole series of provisos concerning the list of 362 sites still remained to be formulated. The Irish national list, the Commission concludes, did not therefore meet the criteria set out in Article 4(1) of the directive, read in conjunction with Annex III thereto.

32.

The Irish Government accepts that, when the period laid down in the reasoned opinion expired, it had not forwarded to the Commission any list of sites capable of being designated as Special Areas of Conservations. It argues that this delay was attributable to domestic difficulties. In order to obtain approval of the population for the ambitious objectives pursued bythe directive, it was considered necessary to launch a vast programme of public consultation. It points out that the 362 Irish sites officially notified up to January 2001 are protected under Irish law, which goes much further than what is required under the directive.

33.

Although it follows from the rules governing the procedure for identifying sites eligible for designation as Special Areas of Conservations, set out in Article 4(1) of the directive, that Member States have a margin of discretion when making their site proposals, the fact none the less remains, as the Commission has noted, that they must do so in compliance with the criteria laid down by the directive.

34.

It should be noted in this regard that, in order to produce a draft list of sites of Community importance, capable of leading to the creation of a coherent European ecological network of Special Areas of Conservations, the Commission must have available an exhaustive list of the sites which, at national level, have an ecological interest which is relevant from the point of view of the directive's objective of conserving natural habitats and wild fauna and flora. To that end, that list is drawn up on the basis of the criteria laid down in Annex III (Stage 1) to the directive (Case C-371/98 First Corporate Shipping [2000] ECR I-9235, paragraph 22).

35.

Only in that way, moreover, is it possible to realise the objective, in the first subparagraph of Article 3(1) of the directive, of maintaining or restoring the natural habitat types and the species' habitats concerned at a favourable conservation status in their natural range, which may lie across one or more frontiers inside the Community. It follows from Article 1(e) and (i) of the directive, read in conjunction with Article 2(1) thereof, that the favourable conservation status of a natural habitat or a species must be assessed in relation to the entire European territory of the Member States to which the Treaty applies (First Corporate Shipping, cited above, paragraph 23).

36.

It is also necessary to recall that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State as it stood at the end of the period laid down in the reasoned opinion. The Court cannot therefore take account of any subsequent changes (see, inter alia, Case C-266/99 Commission v France [2001] ECR I-1981, paragraph 38).

37.

When the period laid down in the reasoned opinion expired on 19 February 1998, the content of the Irish national list sent to the Commission was manifestly inadequate, going well beyond the margin of discretion available to Member States for the purpose of drawing up the list of sites mentioned in Article 4(1), first subparagraph, of the directive. In accordance with the case-law cited in the preceding paragraph of the present judgment, the lists of sites communicated to the Commission after the expiry of that period are irrelevant for purposes of the present action.

38.

It must therefore be concluded that, by failing to transmit to the Commission, within the prescribed period, the list of sites mentioned in the first subparagraph of Article 4(1) of the directive, Ireland has failed to fulfil its obligations under that directive.

The second plea in law

39.

With regard to the obligation to transmit information on the sites eligible for designation as Special Areas of Conservations, the Irish Government acknowledges that it had not sent that information by the expiry of the period laid down in the reasoned opinion, but at the same time argues that, since the format was not adopted until December 1996 and the Commission insisted that the information in question be transmitted by means of that format, it was not possible to complete this important work within the set period.

40.

The Commission submits that the obligation to transmit the site information had to be met before 11 June 1995. Even if certain Member States which already had the list of proposed sites and relevant information before 11 June 1995 wished to await adoption of the format, they could, after the format was notified on 19 December 1996, rapidly have incorporated that information in the format and forwarded it to the Commission.

41.

The Commission adds that, in order to take account of the late adoption of the format, it extended the pre-litigation procedure by addressing an additional letter of formal notice to Ireland on 11 July 1997, thus well after the date on which the format was notified. The Irish authorities were therefore fully in a position to meet their obligation to transmit the information on each site. When the period laid down in the reasoned opinion expired on 19 February 1998, Ireland had not sent to the Commission the information on the sites to be proposed.

42.

It is necessary first to point out that, even though the Commission had initially sent to the Irish Government a letter of formal notice on 24 April 1996, that is to say, before the format was notified, it sent to the Irish Government a new letter of formal notice, following notification of the format, giving it a new period within which to comply with Article 4(1), second subparagraph, of the directive.

43.

Next, it must be noted that, following notification of the directive on 10 June 1992, the Member States were aware which types of information they would be required to collate for purposes of transmission within three years of that notification, that is to say, by 11 June 1995. They also knew that this information had to be provided on the basis of the format once it had been drawn up by the Commission. Article 4(1), second subparagraph, of the directive expressly states that the information to be transmitted, in a format established by the Commission, must include a map of the site, its name, location, extent and the data resulting from application of the criteria specified in Annex III (Stage 1).

44.

The period which the Commission gave to the Irish Government for meeting its obligation to include on the format the site information, which it was required to have at its disposal prior to 11 June 1995, must consequently be regarded as reasonable. From 19 December 1996, the date on which the format was notified, to 19 February 1998, when the period laid down in the reasoned opinion expired, the Irish Government benefited from a period of more than one year to comply with that specific obligation.

45.

Since the Irish Government acknowledges that, when the period laid down in the reasoned opinion expired, it had not transmitted to the Commission, on the basis of the format, the information on the sites to be proposed, it must be held that, by failing to transmit to the Commission, within the period prescribed, the information relating to the sites on the list mentioned in the first subparagraph of Article 4(1) of the directive, pursuant to the second subparagraph of that article, Ireland has failed to fulfil its obligations under that directive.

Costs

46.

Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. As the Commission has applied for an order for costs against Ireland and the latter has been unsuccessful, Ireland must be ordered to bear the costs.

On those grounds,

THE COURT (Sixth Chamber)

hereby:

1. Declares that, by failing to transmit to the Commission, within the period prescribed, the list of sites mentioned in the first subparagraph of Article 4(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, together with the information on those sites required by the second subparagraph of Article 4(1) thereof, Ireland has failed to fulfil its obligations under that directive;

2. Orders Ireland to bear the costs.

Gulmann SkourisSchintgenMacken Cunha Rodrigues

Delivered in open court in Luxembourg on 11 September 2001.

R. Grass

C. Gulmann

Registrar

President of the Sixth Chamber


1: Language of the case: English