A High Court judge presiding over a legal challenge launched by An Taisce against the State’s fifth Nitrates Action Programme (NAP) said today (Wednesday, July 24) that the case “raises significant issues of European law”.
An Taisce launched legal proceedings to judicially review the government’s NAP because it claims that “measures taken under successive NAPs have failed in their objective” which is to “prevent pollution of surface waters and ground water from agricultural sources”.
In his latest judgement on the case Justice Humphreys stated today that An Taisce’s legal action “is a challenge to the validity of domestic and European measures relating to the derogation for the use of nitrates above and beyond standard levels”.
As a result the judge now intends to refer nine key questions raised during the legal challenge to the Court of Justice of the European Union (CJEU).
The legal challenge has been taken by An Taisce primarily against the Minister for Housing, Local Government and Heritage and the Attorney General (respondents). But the Minister for Agriculture, Food and the Marine, the Irish Farmers’ Association (IFA) and the Irish Creamery Milk Suppliers Association (ICMSA) are also listed as notice parties.
An Taisce
In a judgement published today Justice Humphreys said: “The applicant (An Taisce) has raised what are clearly novel, complex and important issues of EU law, culminating in a question regarding the validity of a commission decision.
“The court doesn’t have jurisdiction to determine the latter issue in favour of the applicant, and isn’t particularly minded at the present time to determine it in favour of the respondents.”
The Minister for Housing, Local Government and Heritage had approved the fifth NAP on March 9, 2022. An Taisce then launched legal proceedings in May 2022 to judicially review the government’s NAP.
Justice Humphreys said the “primary question now” in relation to An Taisce’s legal challenge is “to refer or not” to the Court of Justice of the European Union (CJEU).
“While making a reference to the CJEU is generally optional apart from for apex courts, a case where the validity of an EU law measure is in issue can be an exception,” the judge stated.
Harry Potter
This is the latest in a number of judgements published in relation to An Taisce’s legal challenge on NAP.
However Justice Humphreys noted they are “getting shorter as we work through the issues”.
“We are at a cumulative total of 209,423 words – exceeding Crime and Punishment but falling short of J.K. Rowling’s Harry Potter and the Order of the Phoenix.
“There the analogy with great literature ends I’m afraid (except perhaps for the punishment bit),” Justice Humphreys stated.
Today’s judgement sets out that the court has examined what a nitrates action programe is and and “what it is supposed to do, especially in the context of a derogation”.
It also references a number of related cases brought before the Court of Justice of the European Union (CJEU) and notes that “most of the CJEU case-law on the nitrates directive has involved enforcement action”.
According to Justice Humphreys “the applicant’s position is supported by case-law of the CJEU”.
Nitrates derogation
However Justice Humphreys also highlighted in his judgement ICMSA’s submission to the court specifically in relation to “how essential the agricultural sector is to Ireland’s community life and cultural heritage”.
He also noted that the ICMSA had detailed how “social and community impacts may also arise if the viability of family farms is imperiled, or even cast into doubt” because of any change to the NAP.
The former president of the ICMSA, Pat McCormack, had previously outlined to the court “numerous concerns regarding the viability of dairy farming as a profession if the nitrates directive derogation ceased to be available”.
Justice Humphreys confirmed in the judgement today that nine key questions raised during the legal proceedings will now be referred to the CJEU.
He directed all parties involved in the case to “prepare agreed electronic books of necessary pleadings for the CJEU”.
The judge also noted that “costs of the proceedings to date be reserved until further order”.