The Irish Dilemma: The Effects of the Insufficient Application of the CILFIT Rule on European Environmental Law

By Julian Langus, Student in  International and European Law at the University of Groningen in The Netherlands, on exchange at the University of Edinburgh,  EST Ambassador to Scotland. Feel free to contact Julian at scotland.est@gmail.com.

The function of article 267 of the Treaty on the Functioning of the European Union (TFEU) is to promote active cooperation between national courts and the Court of Justice of European Union (CJEU) while also acting as a safeguard for the uniform application of European law within the constituents of the European Union. The CJEU provided an exception to this rule in its case law, by abrogating the obligation to refer a question from the highest national courts, if it has already been addressed in a former preliminary reference (acte éclair)[i] or if there is no doubt about the manner in which the contested question is to be resolved (acte clair)[ii]. This paper addresses the following question: What are the effects of the insufficient application of acte clair doctrine by Irish courts on the effectiveness of European environmental law,[iii] and general principles of EU law? Extrajudicial misuse of this doctrine can have a substantial effect in undermining the active cooperation between national courts and the CJEU while subsequently rendering the whole preliminary reference procedure, more or less, a useless tool in pursuit of the ever closer cooperation. The subject matter for this study will mainly consist of the environmental cases decided in Ireland, some of which will be addressed in detail.[iv]

Environmental protection comprises both public and private interests,[v] and being a collective right, it is often taken for granted; looking at environment from an individualistic perspective, there is no real incentive to protect it, since when someone else does it, everyone will eventually benefit from it. It is imperative that the member states and institutions of the EU work together to realize a better future for the environment through mutual cooperation. Hence, the undisclosed purpose of the CILFIT rule was essentially to restrict the national courts’ competence to abstain from referring a question to the CJEU by introducing certain criteria[vi] that need to be fulfilled before a question can be declared acte clair; CJEU wanted to reassure that EU law has an effective impact in the national legal orders.[vii] When it comes to questions of environmental law, the Irish courts have demonstrated to be quite a reluctant bride towards the CJEU and preliminary reference procedure, opting to deal with these issues, more or less, by way of national law.[viii] During its over 40-year membership of the EU, the first time an Irish court decided to refer a question to CJEU concerning environmental law happened in Sweetman, which was referred to the CJEU as late as 2010.[ix] Incidentally, the European Community adopted its first ever environmental program the same year Ireland became a member of the European Community.[x] Ireland has shown consistency in its non-referral policy towards the CJEU and maintained a reluctance to deal with non-conformity issues with EU law, even after the CJEU has already ruled on these issues.[xi] The CJEU provided in its CILFIT judgement a restrictive criterion for the boundaries of national judiciary when considering whether the acte clair doctrine can be invoked; the criteria sets a high threshold that must be met in national court of last instance in case they decide not to refer a question to the CJEU.[xii] Disregarding or applying these criteria loosely would place the national court in a critical position to depart from the European legislation in question and dilute its effectiveness; something that has unfortunately happened in many cases that have been decided in Ireland.

For instance, in the Martin case, where it was contested whether the division of responsibility over environmental questions between the Planning Board and the Environmental Protection Agency adequately gives effect to the requirements of the Directive in question,[xiii] the Supreme Court of Ireland declared bluntly that the meaning and intent of the Directive in question are clear, while there being no reasonable scope for doubt, all without addressing the criteria for acte clair in detail. No word describes the Supreme Court’s approach to this judgement better than ‘disappointing’, since the effect of this Directive is significantly prejudiced by this decision. The Supreme Court uses similar reasoning in the case of Dunne, where it discussed whether a provision of the National Monuments Act 2004 was in breach of European law.[xiv] Expectedly, the court declared that there is no scope for reasonable doubt as to how European law should be applied to this specific case; interestingly, the wording here shows that the requirement of the application “being equally obvious to all courts of the EU” is brushed aside, since the Supreme Court only provides that the application of the Directive in question is clear to itself. In addition, the Supreme Court does not see it necessary to discuss the other criteria embedded with the application of acte clair. By neglecting the requirements of article 267 TFEU and the CILFIT doctrine, national judiciary could potentially give rise to state liability and further claims towards the State of Ireland,[xv] not to mention the European Commission, who bears the responsibility in last instance to keep Irish law from infringing its European counterpart. Even though Irish courts might not fundamentally infringe EU law, their conduct creates double standards and gradually diminishes the effectiveness of EU environmental law in their national system effecting legal certainty[xvi] of the individuals.

Friends of the Irish Environment Limited is one of the more distinctive cases, where the Irish High Courts decided to push the envelope it comes to dealing with questions of EU law. Question in this case was, whether a provision of the Irish Planning and Development Act was compatible with Directive 85/337 on environmental impact assessment.[xvii] Intrinsically, the High Court does not fall within the definition of being a court of last instance, which means it has the freedom to choose whether to refer a question to the CJEU or not. However, it was well aware of the fact that the Irish provision in question did not comply with the Union law, since the Commission had issued a reasoned opinion about the issue, yet it still decided to stay the proceedings without making a preliminary reference. The rationale behind this particular decision of the High Court was that the Commission would be able to start infringement proceedings with regard to this matter, while also claiming that it wanted to give the State the opportunity to comply with its obligations before making the CJEU aware of the situation. Needless to say, even though the Commission had issued a reasoned opinion about the issue, it cannot be taken as a guarantee leading to infringement proceedings in front of the CJEU. Moreover, if the High Court would have opted for a preliminary reference, it would not obstruct the State from amending the contested provision in any way, which makes this argument ludicrous. The principle of sincere cooperation[xviii] indicates that all national authorities, judicial or non-judicial, have an obligation to ensure that the system of EU law functions properly;[xix] from the perspective of this general principle of EU law, the High Court can arguably be labelled a renegade in this case. In case the Commission deemed it not necessary to institute proceedings against Ireland, individuals who believe they can rely on EU law provisions might be excluded of their right. Whether a court of last instance or not, the High Court is obliged to comply with principle of legal certainty; the High Court could not be unconscious of the infringement being committed in the present case, which undoubtedly causes EU law to be abrogated with regard to it and its parties, who will not able to rely on provisions containing rights to them. Whether the High Court did this knowingly or not, it totally discarded its obligations to adhere to the principles of sincere cooperation and legal certainty in Friends of the Irish Environment Limited; in case the Commission decides not to proceed with the claim of infringement of EU law by Ireland, individuals are deprived of their right to rely on EU law.

As mentioned earlier, starting with the Sweetman case, during recent years the Irish courts have occasionally expressed their willingness to cooperate with the CJEU, when it comes to environmental matters, and opted for a more restrictive view on acte clair. Hence, in James Elliot Construction Limited, the Supreme Court of Ireland had to decide whether the defendant was liable of damages caused by “pyrite heave” as a matter of domestic and EU law. Surprisingly, the Supreme Court actually discussed CILFIT and considered itself to be obliged to refer a question to the CJEU, since it declared that some of the issues might not be as clear or self-evident as it thought.[xx] This positive exception to ask for a preliminary ruling was even more surprising, since the Supreme Court even stated that the EU law in question was considered to be, more or less, ineffective when it comes to the situation of the defendant. This makes up for a policy which contributes towards the effectiveness of EU law in the national legal system and accentuates the adherence of principle of legal certainty, something the Irish courts, along with other courts of the member states of EU, should strive for in the future.

History has shown that the Irish courts have neglected their duty as decentralized courts of the EU to oversee that the effectiveness of EU law is upheld in their case law. Furthermore, the insufficient application of the acte clair and its conditions has led to situations where general principles of EU law, such as principles of legal certainty and sincere cooperation, have seriously been compromised. Since Ireland has not shown substantial development towards compliance in European environmental law questions, it is either up to the Commission to induce compliance, or to the CJEU to further restrict the possibility of invoking acte clair by national courts. At this day and age, environmental law is arguably one of the most dynamic areas of European Union activity, which provides to a large extent that national courts are to be brought in line with EU rules, in one way or another, to ensure a better future for the environment. EU law cannot be presented as a buffet table from where participants can pick and choose whatever they please; the membership to the legal order comes with rights and obligations which are to be respected if member states, such as Ireland, wish to stay seated in the table.

[i] Joined Cases 28 and 30-62 Da Costa en Schaake NV, Jacob Meijer NV, Hoechst-Holland NV v Netherlands Inland Revenue Administration (ECJ, 27 March 1963)

[ii] Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415

[iii] Principle of effectiveness: Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 1989

[iv] The material (cases and articles alike) was found by way of consulting the library of University of Groningen and its staff, and certain Irish colleagues of mine, which also led to the use of different legal databases (such as Westlaw, Justis and British and Irish Legal Institute)

[v] Jonas Ebbesson, Access to Justice in Environmental Matters in the EU (Kluwer Law Online 2002) 4

[vi] No scope for reasonable doubt, equally obvious to all courts in EU, account given to all official languages of the EU, considering difference in legal meaning among member states, considering EU concepts own meaning and EU teleological interpretation

[vii] Hjalte Rasmussen, ‘The European Court’s acte clair strategy in CILFIT’ (2015) 40 ELR 475, 482

[viii] Examples of such cases: McBride v Galway Corporation [1997] IEHC 140 (31 July 1997); Lancefort Ltd. v An Bord Pleanála [1998] IEHC 199 (12 March 1998); Maher v Minister for Agriculture, Food and Rural Development [2001] IESC 32 (30 March 2001)

[ix] Case C-258/11 Peter Sweetman and Others v An Bord Pleanála [2013] ECR 0

[x] Council Declaration of 22 November 1973 on the programme of action of the European Communities on the environment [1973] OJ C112/1

[xi] Suzanne Kingston, European Perspectives on Environmental Law and Governance (Routledge 2013) 193

[xii] Aine Ryall, Effective Judicial Protection and the Environmental Impact Assessment Directive in Ireland (Hart Publishing 2009) 241

[xiii] Martin v An Bord Plenála & ors [2007] IESC 23 (10 May 2007)

[xiv] Dunne v Minister for Environment Heritage and Local Government & ors [2006] IESC 49 (25 July 2006)

[xv] Case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239

[xvi] Case 120/86 J. Mulder v Minister van Landbouw en Visserij [1988] ECR 2321

[xvii] Friends of the Irish Environment Ltd. & Anor v. Minister for the Environment, Heritage and Local Government & ors [2005] IEHC 123 (15 April 2005)

[xviii] Consolidated version of the Treaty on European Union [2012] OJ C326/1, art 4(3)

[xix] Case C-2/88 J. J. Zwartveld and Others [1990] ECR I-4405

[xx] James Elliott Construction Ltd v Irish Asphalt Ltd [2014] IESC 74 (2 December 2014)