Explainer: why Ireland's nitrates derogation is before Europe's highest court

In May 2022, An Taisce launched legal proceedings in the form of a judicial review against the Department of Housing, seeking to quash Ireland’s Nitrates Action Programme (NAP) and, by extension, the nitrates derogation.

It said that the move was “rooted in the undisputed evidence of continuing deterioration of water quality in Ireland, where all the indicators are negative and continuing in a downward direction”.

The case involves An Taisce, the Department of Housing, the State and the attorney general. The Department of Agriculture, the IFA and ICMSA are named as notice parties.

What has An Taisce said?

An Taisce said that the decision to prepare and publish the fifth NAP is invalid because the programme was authorised on the basis of an appropriate assessment determination, which was made in breach of the Habitats Directive.

This, An Taisce said, is because it did not ensure that there was no reasonable scientific doubt as to the absence of adverse significant effects from the NAP on the integrity of European sites which are likely to be affected by it.

It has also said that the NAP is in breach of the Water Framework Directive and the Strategic Environmental Assessment Directive. An Taisce has said to the court that the NAP includes the derogation.

“In the words of the Nitrates Directive, it ‘allows’ an amount higher than the 170kg organic N per hectare in the directive. So the environmental issues linked to nitrate pollution from the derogation fall within that examination,” it said.

It also argued that the decision to grant a nitrates derogation, and to thereby allow an increase to 250kg N, must be assessed as part of the assessment of the NAP under the directives already cited.

The State submitted that neither the Habitats Directive, Water Framework Directive nor the Strategic Environmental Assessment Directive require that an action programme under the Nitrates Directive should be assessed by referring to the effects on the environment of the nitrate-emitting agricultural activities regulated by that action programme.

It added that this does not mean that EU law does not require any assessment of whether an action programme is sufficiently rigorous to meet the objectives of the Nitrates Directive, and that there are ongoing positive obligations on member states, in that respect.

An Taisce, the State claimed, has sought to “read across the positive substantive obligations” under the Nitrates Directive and the Water Framework Directive to the negative obligations under the Habitats Directive and Water Framework Directive.

‘No basis EU law’

“There is no basis in EU law for doing so,” the State said.

Court documents show that the ICMSA position is that if An Taisce seeks to overturn the NAP that it would “disproportionally” interfere with Irish farmers’ rights to work under the Charter of Fundamental Rights.

In an affidavit lodged to the court, then president of the ICMSA, Pat McCormack, outlined numerous concerns on the viability of dairy farming as a profession, if the derogation ceased to be available.

“Some 6,900 farmers applied for a derogation in 2022. The ICMSA expects the number of such applications to increase in 2023,” he said.

“I say and believe that very serious consequences would ensue for many farmers and farming families, and for the rural economy more generally, were the derogation to be removed or placed in jeopardy,” he said.

Stock levels

If all derogation farmers were stocked to the maximum level of 250kg N per hectare and had to reduce their stocking rate to 170kg N per hectare, this would mean that stock levels on their farms would have to reduce by close to 50%, McCormack said.

The judge said in his ruling that this would result in a need to reduce cow numbers, which would give rise to further losses.

“With the assistance of data supplied by the Irish Cattle Breeding Federation, Mr McCormack illustrated by way of a table the losses which would occur to Irish farmers if the cow numbers were reduced by 20% to be €1,057,199,060 and by 10% to be €528,599,530,” the judge noted.

Before the judge referred the case to the Court of Justice of the EU, the IFA argued that any referral to Europe’s highest court should be postponed, pending the final determination of the domestic law issues in the court case.

It had also said that there was no necessity for the case to be referred to the CJEU and that the law in this regard is “acte clair” – that essentially the law is clear enough and did not warrant referral to the EU court. Legal counsel for the IFA also said the challenge by An Taisce on the implementation of the various directives it had cited had not been adequately pleaded, if at all, to the court.

A number of judgments have been made by High Court judge Richard Humphreys to date in the case, amounting to a staggering 209,423 words.

Justice Humphreys said that while the judgments are getting shorter, to date they have exceeded Crime and Punishment by Fyodor Dostoevsky but have fallen short of JK Rowling’s Harry Potter and the Order of the Phoenix.

Two weeks ago, the judge issued a ruling on the case in relation to EU law and proceeded to refer the case to the Court of Justice of the European Union (CJEU), the highest court in Europe.

Challenge

He said that the court case 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.

That challenge raises significant issues of European law, he said.

An Taisce, he said, has raised “what are clearly novel, complex and important issues of EU law, culminating in a question regarding the validity of a [European] Commission decision”.

The court did not have jurisdiction to determine the latter issue in favour of An Taisce, and wasn’t “particularly minded at the present time to determine it in favour” of the respondents, the Department, IFA and ICMSA, he said. He has referred nine of the 12 issues in the case to the CJEU and that the three other questions are either not in dispute or can be resolved.

The matter has been listed for mention in the High Court on 9 September 2024 to confirm progress and the costs of the court proceedings to date are reserved for a further order.