Suing the Government

Alex White - Oyster Angry Vexatious Litigant
Francovich v Italy was a very important judgment handed down by the European Court of Justice in 1990. It was important because it established the principle that European Union member states could be liable to pay compensation to individuals who suffered a loss by reason of the member state’s failure to transpose an EU directive into national law. The judgment established the principle of state liability in European Union law.

Many commentators glibly say that “EU Directives are binding”, without really explaining what this means. Whilst the essence of that statement is true, it must be noted that Directives are not immediately and automatically binding in the sense that as soon as they are passed they become Irish law. This is not the case. EU Directives are “transposed” into Irish law.

The obligation of Member States to comply with EU law is set out in Article 10 and Article 249 of the EU Treaty. Article 10 says that:

“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the Institutions of the Community. They shall facilitate the achievement of the Community’s tasks.”

Article 249 defines the different forms of EU legislation and describes the legal obligation they impose. Regulations are “binding in their entirety” and “directly applicable” on all Member States. Directives, however, are defined as legislation that is binding “as the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.” Member States therefore have a circumscribed choice. Whilst they can decide what is the most appropriate means of implementing EU Directives into domestic law, they are obliged to ensure that the objectives of the directives are attained and the directive is implemented into domestic law within the required timescale.

The Renewable Energy Directive (2001/77/EC) ordered Ireland to create an National Renewable Energy Action Plan (NREAP) describing how it intended to reach Ireland’s renewable energy targets. As we all know, the Irish NREAP pledged that 40 per cent of Irish electricity would be produced from renewable energy, with most of this renewable energy coming from industrial wind farms.

However, the publication and implementation of this NREAP was almost certainly in contravention of EU law. Firstly, the two-week-long public consultation period held before the publication of the NREAP was in breach of the Aarhus Convention as it was far too short a time for the Irish public to properly consider a national policy document. If that was not enough, the NREAP also breaches one or more EU Directives, namely the Strategic Environmental Assessment Directive (SEA Directive),the Environmental Impact Assessment (EIA Directive),the Birds Directive and / or the Habitats Directive.

For example, the NREAP was not subjected to an environmental assessment as is required for ‘plans’ that are governed by the Strategic Environmental Assessment Directive (SEA Directive). That Directive also has a public participation requirement which is not satisfied by a two-week long public consultation period.

Pat Swords has convincingly argued before the High Court that Ireland breached the SEA Directive when it failed to ensure that a comprehensive environmental assessment of the NREAP and the potential alternatives open to Ireland to fulfil its renewable energy obligations was not carried out, either adequately or at all. The Habitats Directive contains a similar requirement for projects that will have a significant effect on the environment, which clearly includes Grid 25 and the Irish wind farm policy.

In Francovich v Italy, the European Court of Justice held that to establish state liability in a national court for the failure of a member State to implement a Directive, claimants must prove that the directive conferred specific rights on them, identifiable in its wording, and that there is a causal link between the state’s failure to implement the directive and the loss suffered.
Let us go through those one by one and apply them to the NREAP / Grid 25 / wind farms.

1. Claimants must prove that the State of Ireland failed to implement an EU Directive.
This much is clear – there was inadequate public consultation prior to the publication of the NREAP, nor was an EIS carried out on the NREAP despite its massive environmental impact.

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2. Claimants must prove that the Directive conferred specific rights on them, identifiable in its wording,
The SEA Directive says that before implementing a Plan like the NREAP, the Government must provide and ensure:

“…an early and effective opportunity (for the public)…to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure”.

In other words the Directive conferred on all Irish citizens the right to be properly consulted about the NREAP and its environmental impact statement before that Plan became part of Irish law (or forms the basis of Irish law). This never happened.
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3. Claimants must then prove that there is a causal link between the state’s failure to implement the directive and the loss suffered.
If pylons or wind farms cause the value of your property to drop, or destroy your physical or mental health, or detrimentally affect your business / employment prospects, there is a clear case for damages. These things have occurred as a direct result of an illegally implemented policy.

We are awaiting a decision in the Pat Swords case, but the government (and that includes Councils) must be readying themselves for a flood of litigation by citizens claiming damages brought about by this country’s absurd energy policy.

Let’s get ready to rumble.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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One Response to Suing the Government

  1. Pat Swords says:

    Eva Barrett in her legal article also outlined how the Irish State can expect a whirlwind of legal cases:

    — ‘In sowing the wind, how Ireland could reap the whirlwind’ – a case against Irish wind development(s)

    This can be downloaded from:

    http://www.tandfonline.com/doi/abs/10.1080/02646811.2015.1008847#.VS1XFvnF_4A

    At the moment the judgement in my case is reserved and Justice Keane has until the 13th May to issue a written judgement. There is no doubt that this will lead to other cases in due time, it is all about stepping stones. In my case it is not in dispute that the law was not complied with, there is already a decision on non-compliance against the EU in International Law in relation to the NREAP and Directive 2009/28/EC. What is at dispute is the position of the State, articulated by its Senior Counsel, a former Attorney General, in that “if the State so chooses to be non-compliant with its International Treaty obligations, then the citizen can complain about it, but do nothing else”.

    In other words, the State and the EU can rely on their abject failures to implement the necessary regulatory measures to provide the citizen with those rights, to now effective deny those rights when the actual circumstances of the legal breach occurs. This most certainly is not ethical and it flies in the face of International Treaty obligations, directions issued by the European Court on Aarhus, etc. So we will have to wait and see what comes out in the written judgement.

    Interestingly there was a recent draft decision in Geneva at the UNECE Compliance Committee against the UK for failing to provide access to justice in relation to private nuisance claims related to the environment, which were required to be ‘fair, equitable, timely and not prohibitively expensive’. The issue concerned noise and dust from an adjacent quarry, the authorities failed to take action, so a law suit was initiated in relation to private nuisance, i.e. loss of residential amenity on the adjacent property. UNECE ruled that the cost of this legal action was excessive and an obstacle to access to justice, which the UK now has to resolve.

    http://www.landmarkchambers.co.uk/news.aspx?id=3481

    Relevant for people to have a look at the findings and recommendations related to the above in the link below. It’s a lengthy read (the draft findings and recommendations), but there is meat in it:

    http://www.unece.org/env/pp/compliance/compliancecommittee/85tableuk.html

    If people started taking private nuisance claims against nearby wind farms, which were causing loss of residential amenity (damage to persons or property?), then a lot of farmers / developers would think twice about the whole thing – wouldn’t they?

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