After a year of waiting, the judgment is finally out, and it does not make for pretty reading. The learned judge found against Pat in his condonation for delay application, and failed to rule on the protective costs application.
I am living on a building site at the moment and so am unable to analyse and comment on the judgment. You can read it in full (link below) and if you want to offer analysis and comment, I will gladly publish those.
Pat had this to say:
“People need to realise the significance of this and as to how far it goes, or maybe I should say, should go, based on the future reaction to it. I had written some legal background to this before, so I’ve just cut and pasted it further down into the e-mail, although the footnotes are now in some cases probably misaligned with previous numbering.
In essence the issue of temporal limits is really a side show. The case was always highly valid, not least as with regard to the substantive issues, the failures of the NREAP to comply with legal procedures, this is already legally established, albeit in International law and not in domestic Irish law. The latter a complex issue for another day. However, the real issue of substance is the most basic human and civil right of the availability of an effective remedy, which is what I sought to explain with reference to the actual EU / Irish legal situation in the text further down. Did I or did I not have such a remedy back in 2010? Do I have it now? The answer to that simply doesn’t exist.
Let me make it clear, this matter came before three separate judges in the High Court, the first being on application of leave in front of Justice Pearte. In each case the judges refused point blank to rule on this issue, i.e. as to if I have a right to ‘fair, equitable, timely and not prohibitively expensive’, which would enable me to pursue this matter, which was clearly going to be very long and drawn out, not least as the State had confirmed this by both in writing and by its behaviour. . Let’s not beat around the bush here, the matter on the protective costs order ran for more than a day in March 2015, the State contesting it all the way and taking up the lion’s share of the time. There was and is an obligation for the Court to rule on this issue, see Point 52 of ‘Brown Bear’ below (plus Point 81 of the Judgement). Justice Keane refused to rule on this, according to him he didn’t have to? Why, because he found a letter in the file, that letter was never present in Court by either Party, as I said the State contested the matter fiercely. He then decided, see Point 88, that he didn’t have to decide.
There are a number of issues with this, not least as he ignored his obligations defined by the ECJ on ‘Brown Bear’. First off, if a new NREAP or similar was to appear in the next month or so and I or any another person was to appear again in Court, where would we stand? Presenting a dog and pony show in front of judges seeking fudges? Secondly, all of this is not for his bleeding entertainment, these proceedings cost time and money and judgements are a crucial part of the public’s right to an effective judicial process.
- Courts are expected to provide reasons for judgment as a duty to the public at large
Regardless of what (which seems by mistake) the State put down in this particular letter, there was a ‘bum fight’ on this matter, which involved several days of preparation and over a day in Court. He then decided he didn’t need to decide. Bollocks, not least as the party which was entitled to a successful outcome of this issue was fully entitled to be financially recompensed for having to undertake these measures.
Adoption of legal instruments incorporating the Convention into Community law
The Convention’s three ‘pillars’ of access to information, public participation in decision-making and access to justice were also partially adopted into Community law by means of Directives. Directive 2003/4/EC on public access to environmental information adopted both Article 4 of the Convention, which provides for access to environmental information on request and Article 5 of the Convention, which relates to the collection and dissemination of environmental information. It also adopted the access to justice requirements of Article 9(1) of the Convention, which are engaged by a refusal of a request for environmental information.
The excellent UNECE ‘Aarhus Convention: An Implementation Guide’ explains the Articles of the Convention in more detail. The second edition contains reference to the endorsed findings of the ACCC. In addition the Maastricht Recommendations on Promoting Effective Public Participation in Decision-making in Environmental Matters, adopted by the Meeting of the Parties in 2014, provide additional specific guidance in relation to public participation. As the Implementation Guide explains in its introduction to the public participation pillar:
- ‘In its ideal form, public participation involves the activity of members of the public in partnership with public authorities to reach an optimal result in decision-making and policymaking. There is no set formula for public participation, but at a minimum it requires effective notice, adequate information, proper procedures and appropriately taking account of the outcome of the public participation’.
For decision making, as to whether to permit activities listed in Annex I of the Convention, the requirements of Article 6 of the Convention apply. Note: Annex I is very similar to the list of projects in the annexes to the EU’s Environmental Impact Assessment Directive. Article 6 of the Convention is quite prescriptive in its requirements, such as the manner in which the ‘public concerned’ have to be informed and the contents of the relevant information to be provided.
The public participation requirements relevant to decision-making on plans, programmes and policies related to the environment are defined in Article 7 of the Convention. These requirements are reasonably specific, engaging many of the requirements of Article 6, but the information to be provided is defined solely as the ‘necessary information’ and the ‘…the public, which may participate shall be identified by the relevant public authority, taking into account the objectives of the Convention’. For policies, the requirements are even less specific in that ‘…to the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment’. A similarly broad approach is to be found in Article 8, which relates to public participation during preparation of executive regulations and / or generally applicable legally binding normative instruments. Unfortunately, this vague phraseology does allow recalcitrant Member States to be shoddy and tawdry in their implementation of the Convention.
Through Directive 2003/35/EC on public participation, the requirements of Article 6 of the Convention were adopted into Community law by modifying existing Directives on Environmental Impact Assessment and Integrated Pollution Prevention and Control. In addition, the provisions of Article 9(2) of the Convention, which relates to the access to justice provisions ‘….to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6’, were also adopted in Directive 2003/35/EC. Those provisions also including the requirements of Article 9(4) of the Convention, in that that the access to justice procedures ‘…shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive’.
However, while the ‘text’ of Article 7 of the Convention, as it related to plans and programmes, was adopted into Directive 2003/35/EC, its scope was restricted to an extremely limited number of legislative measures, listed in Annex I of that Directive, which were primarily related to waste and air quality management. This was in major variance to the Convention, in which the public participation requirements of Article 7 apply to ‘all’ plans and programmes related to the environment.
Indeed, the EU’s first Implementation Report to the Meeting of the Parties claimed that the implementation of Article 7 was ensured by the implementation of Directive 2003/35/EC, the SEA Directive and the public participation requirements of the ‘water framework’ Directive  and the Directive on the assessment and management of flood risks. However, the SEA Directive’s scope is strictly related to plans and programmes, which set the framework for future development consent of projects listed in the annexes to the Directive on Environmental Impact Assessment. It is broader in its methodology than Article 7 of the Convention, in that instead of the ‘necessary information’, the public has to be provided with a detailed environmental report. However, it is narrower in scope. Therefore, some serious omissions occurred with respect to the proper adoption of the requirements of Article 7 of the Convention into the relevant Community Directives. .
Finally with respect to the access to justice pillar; the general rights of the public ‘…to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’ are to be found in Article 9(3) of the Convention. A third draft Directive, COM (2003) 624, was prepared in order to give effect to the requirements of Article 9(3) of the Convention. However, due to opposition from some Member States it was never adopted, instead when the EU ratified the Convention through Decision 2005/370/EC, it simply declared:
- ‘That the legal instruments in force do not cover fully the implementation of the obligations resulting from Article 9(3) of the Convention as they relate to administrative and judicial procedures to challenge acts and omissions by private persons and public authorities other than the institutions of the European Community as covered by Article 2(2)(d) of the Convention, and that, consequently, its Member States are responsible for the performance of these obligations at the time of approval of the Convention by the European Community and will remain so unless and until the Community, in the exercise of its powers under the EC Treaty, adopts provisions of Community law covering the implementation of those obligations’.
 Directive 2003/4/EC of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC
 The Aarhus Convention: An Implementation Guide (second edition) Published June 2014.
 Directive 2011/92/EU of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment: Codification previously 85/337/EEC.
 This is defined in the Convention: ‘The public concerned’ means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.
 There is an overlap / similarity with the information requirements of Article 6(6) of the Aarhus Convention and that of UNECE’s Convention on Environmental Impact Assessment in a Transboundary Context (adopted in Espoo, Finland, 25 February 1991; entry into force 10 September 1997) United Nations, Treaty Series, vol. 1989, p. 309. http://www.unece.org/env/eia/eia.html
 Directive 2003/35/EC of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC.
 See further detail in notes 27 and 28 above.
 Implementation Report, see n 10 above.
 Directive 2000/60/EC of 23 October 2000 establishing a framework for Community action in the field of water policy: See Article 14 in relation to river basin management plans.
 Directive 2007/60/EC of the Council of 23 October 2007 on the assessment and management of flood risks.
 See notes 5 and 30 above
 Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters.
 See n 9 above.
Swords v Minister for Communications, Energy and Natural Resources initially commenced in November 2012, when the author was provided with leave for a Judicial Review of the Irish NREAP. The State made a counter motion in respect of delay in taking proceedings, which was heard in April 2013 over a period of three days by Justice Kearns, the President of the High Court. This was a complex issue, as Ireland was for many years the only Member State, which had not ratified the Aarhus Convention, the ratification finally taking effect in October 2012. Ireland also had failed to transpose the requirements of Directive 2003/4/EC and 2003/35/EC until subsequent decisions against it occurred in the European Court.
Ireland is a dualist State, in which Article 29.6 of the Constitution requires that international treaties entered into must be incorporated into domestic law by legislation before they are applicable within the State, the exception being European Community law, which, under the terms of Article 29 of the Constitution, has the force of law in the State. In Klohn V An Bord Pleanala Hedigan J ruled in November 2011 that: ‘With regard to the Aarhus Convention, this convention is not applicable as Ireland has not formally ratified it.’ However, Kearns J took the view that it was applicable since 2005 when the EU ratified it. As such then he decided, without producing any written judgement, that a Plenary Summons procedure should be substituted for a Judicial Review and costs be deferred to those proceedings.
In Klohn Hedigan J also ruled that the Taxing Master’s assessment of €86,000 for four days in front of the High Court; ‘…appear to reflect economic reality for litigants in the State’. With regard to future Plenary Summons proceedings on the Swords’ case, the State made it clear that it was seeking considerably longer than ten days in the High Court. This was clearly prohibitively expensive. As such then the matter did not return to the High Court until March 2015, when it was heard for five days in front of Justice Keane. This was solely to deal with two preliminary motions; the first brought by the State in respect of time delay and the second by the plaintiff with an application for a protective costs order. With regard to the first motion, the same arguments, which were presented previously in April 2013, had to be re-run in front of a different judge, the only difference being essentially the title pages referring to Plenary Summons rather than Judicial Review.
The NREAP was adopted in June 2010. Accordingly, Judicial Review proceedings should, by simple application of Irish law, have been brought without delay, such as within three months. However, even when Ireland ratified the Convention in 2012, it did not adopt its text into Irish law. The core of the Swords’ case, the right to challenge a failure of the NREAP to comply with the provisions of Article 7 of the Convention, fell under Articles 9(3) and 9(4) of the Convention, which as previously highlighted with respect to the EU’s ratification under Decision 2005/370/EC; ‘…Member States are responsible for the performance of these obligations.’
Even when Ireland, in August 2011 and in advance of its ratification of the Convention, adopted legislation to enact some access to justice provisions related to Article 9(3) by means of Part 2 of the Environment (Miscellaneous Provisions) Act 2011, these fell far short of the broad scope of the Convention. Instead these were restricted to legal challenges to a limited number of proceedings in which ‘…each party shall bear its own costs.’ No provisions were made for legal challenges falling under the scope of Article 7 of the Convention and still to this day do not exist under Irish law.
As regards the European Court, there has only been one case with respect to Article 9(3) of the Convention, the Slovak ‘Brown Bear’ case of 8th March 2011. While this related solely to standing rights, it did clarify:
- 49 ‘Therefore, if the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law.’
- 52 ‘In those circumstances, the answer to the first and second questions referred is that Article 9(3) of the Aarhus Convention does not have direct effect in EU law. It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by EU law, in order to enable an environmental protection organisation, such as the zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law.’
So the Swords’ case is in many respects a circular argument. As no provisions for cost protection existed in 2010, it was in practice impossible / excessively difficult to initiate judicial proceedings, which is why a Communication to the ACCC was pursued instead. Indeed, under Irish law no such provisions for cost protection currently exist. So how can temporal limits be applied when your legal rights to initiate proceedings are never recognised? Judgement was reserved in March 2015 by Justice Keane and was adjourned repeatedly with the 20th May 2016 now being the latest date specified for delivery.
 High Court Record 2013/1265P
 High Court Record 2012/920JR
 See n 26 above.
 See n 32 above.
 ECJ 3.5.2007, C-391/06, Commission v Ireland; ECJ 16.7.2009, C-427/07, Commission v Ireland.
  IEHC 196
 Author’s report of the Court proceedings, as despite written records of Court decisions being a requirement of Article 9(4) of the Convention, none were produced.
 See n 79 above.
 See n 79 above
 See n 9 above.
 Case C‑240/09 Lesoochranárske zoskupenie VLK
 See n 79 above.