The announcement by the European Commission that it is to bring action against Ireland over the failure to ensure citizen's legal rights has the potential to severely embarrass the Government.
The Commission announced last week that is referring Ireland to the European Court of Justice for 'failing to adopt and provide correct information on measures to give effect to the EU's Public Participation Directive and the Aarhus Convention which it implements'.
The Convention was adopted in Aarhus, Denmark, in June 1998 and signed by 39 European and Central Asian countries and the European Community. The Directive which implements this Convention requires Member States to give citizens the right to challenge the legality of public authority decisions under EU legislation. The deadline for its implementation was June 2005. Since January of this year when Germany implemented the Convention, Ireland has became the only EU country not to have implemented it.
Normally provisions such as those contained in the Convention and the Directive would lead to the adoption and communication of new laws. However, Ireland argued that no new laws were necessary for the access to justice provisions because these rights were already provided for in Ireland's system of judicial review. In other words, the Irish Courts were already in line with the Directive.
However, the position conveyed by Ireland came after the Irish High Court had plainly said that it was not bound by the Directive and that it would not be giving effect to it.
The Commission's announcement of proceedings specifically referred to a ruling by Justice Kelly in a Judicial Review taken by the NGO Friends of the Curragh last July challenging a development proposed by the Turf Club. While agreeing that 'It is not to the credit of this State that it has failed to give effect to its legal obligations under the Directive', the Judge concluded that 'The language is not sufficiently precise, clear or unconditional to render it of direct effect.'
Cost were awarded against the NGO. NGOs are specifically given rights to challenge administrative decisions in the Directive.
The other case on which the Commission is basing its actions on is one taken by a residents against the siting of a dump on the River Lickey in County Waterford. The High Court rejected this Judicial Review last year. It refused leave to appeal and awarded the costs against the resident.
This directly contradicts the Directive which the Commission states is to ensure the 'Right of citizens to bring legal challenges without prohibitive expense' and the 'objective of giving the public concerned wide access to justice'.
Ireland defence that no new laws were necessary for the access to justice provisions because these rights were already provided for in Ireland's system of judicial review came after these cases. Neither case was mentioned in the Irish defence.
Both cases have been appealed the cost to the Supreme Court. It will be of interest to see whether the Government will now come to the assistance of these plaintiffs in the Supreme Court and urge the granting of the appeals against cost in order to be consistent with the position communicated to the Commission.
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