The opinion of the advocate general (AG) of the Court of Justice of the EU (CJEU) delivered last week marks another significant development of the conditions and monitoring of the nitrates derogation that has applied to Ireland since 2007.
To a considerable extent, however, the opinion of the AG was not unexpected.
The AG’s opinion sets out the law and the requirements arising from the interaction between the Nitrates Directive and the Habitats Directive, the Water Framework Directive and the Directive on Strategic Environmental Assessment.
The AG has proposed in her opinion that the CJEU should rule that when the EU grants a derogation under the Nitrates Directive which allows a higher level of nitrate usage than the basic limit, the obligations under the three other directives must be fully fulfilled.
When the CJEU decides on its position on the issues raised in the preliminary reference the case is referred back to the High Court for the case to be finalised
The case came before the CJEU by way of a preliminary reference from the Irish High Court to clarify the EU law in the case taken by An Taisce against Ireland.
A preliminary reference is a procedure whereby national courts can refer questions on the interpretation of EU law.
When the CJEU decides on its position on the issues raised in the preliminary reference the case is referred back to the High Court for the case to be finalised.
From a farming point of view, and in particular for dairy farmers, the issue is what will be the impact and cost on individual farms if, or indeed when, the granting and monitoring of the nitrates derogation is subject to the full rigours of the requirements of the Water Framework Directive, Habitats Directive and Strategic Environmental Impact Directive.
If the AG’s opinion forms the basis of the final CJEU ruling, and is applied by the Irish courts, there will be a substantial increase in the scope of the assessment regarding the impact of additional nitrates at individual farm level, as well as at river catchment, regional and national levels.
The vast majority of the 6,500 derogation farms will be able to continue to operate under the nitrates derogation
For some farmers, the outcome could result in severe restrictions being imposed in order to continue to operate under a derogation and/or substantially reduced permitted levels of nitrates.
However, it is important to stress that, as the conditions and capacity on Irish farms have improved significantly over the last 15 years, the vast majority of the 6,500 derogation farms will be able to continue to operate under the nitrates derogation, albeit with varying additional measures and restrictions.
The European Commission and Ireland have already set in train major changes to the design and operation of the derogation in the sixth Nitrates Action Programme (NAP) which will comply to a great extent with any new requirements that may have to be put in place following a final judgment in the An Taisce case.
Concluding her opinion, the AG stated a member state may approve the application of an increased amount of nitrogen to land only after it has assessed that the requirements of the Water Framework and the Habitats Directives “are not prejudiced”.
While she also stated that there is no need for a member state to carry out such an assessment if there is an assessment at farm level, it is not clear what this farm assessment would entail.
Although the AG insisted that farming impacts were not permitted to outweigh environmental considerations, the opinion conceded that farm incomes and the sustainability of the agricultural industry and the food supply chain may be taken into account in the environmental assessment in order to justify the choices between different alternatives required to protect the environment.
If this is not done effectively it will leave the field open to the environmental zealots to successfully lobby for implementation of an unnecessary environmental straitjacket
The challenge and opportunity facing the farm organisations now is to engage in detailed, informed and constructive negotiation with Government departments to negotiate a practical and proportionate system that will be required under the new regulatory framework.
By informed I mean adopting negotiation positions based on the best environmental, ecological, scientific, economic and legal expertise.
If this is not done effectively it will leave the field open to the environmental zealots to successfully lobby for implementation of an unnecessary environmental straitjacket that will make the operation of the nitrates derogation prochallengehibitive both in terms of red tape and cost.
Constructive engagement and negotiation are the only way to ensure the best possible outcome for the farming sector under revamping of the NAP to meet the new and addition requirements that will have to be met by Ireland.
In conclusion, the law and procedures regarding the environment and the overlapping requirements of various directives and regulations are complex and difficult to fully comprehend even for experienced lawyers and regulators.
Changes
The range of probable changes to the regulation and monitoring of the nitrates derogation has been well flagged. And while changes are inevitable, the vast majority of derogation farmers are well capable of meeting the new requirements given the investment that has already taken place on the farms and the knowledge and experience they have gained in operating the derogation to-date.
However, some farmers, particularly in environmentally sensitive zones, could potentially face serious operational challenges and far higher costs.
Ciaran Dolan is an
agribusiness consultant and barrister.
The derogation’s legal trail
To put the AG’s opinion regarding the nitrates derogation in context it is useful to outline the legal twists and turns of the An Taisce case.
In May 2022 An Taisce lodged its case for a judicial review hearing in the High Court in Dublin alleging that Ireland failed in its responsibility to properly assess the impact of the fifth Nitrates Action Programme (NAP) under the Water Framework and Habitats Directives in its formation and application of the NAP and raised the matter of the lawfulness of the nitrates derogation granted by the European Commission. The High Court hearing was held in December 2023.
Following extensive review of both Irish and EU law, the High Court referred a total of 11 questions for a preliminary ruling to the Court of Justice of the EU (CJEU). This formed the basis of the AG opinion delivered last week.
Earlier this month, An Taisce filed an application for a judicial review of the current sixth NAP
Meanwhile, Ireland applied for an extension of the derogation and brought into effect the sixth NAP which made significant changes compared to the fifth NAP. The An Taisce High Court challenge was against the fifth NAP. Earlier this month, An Taisce filed an application for a judicial review of the current sixth NAP. In December 2025, the Commission granted an extension of the derogation to Ireland by way of what the Commission referred to as an “exceptional measure”.
In effect, this extension of the derogation to 2028 was specifically designed as a holding operation. The decision to grant a derogation made specific references to the An Taisce case before the CJEU.
It is also important to point out that in the legal document granting the derogation it was clearly pointed out that the nitrates derogation must be justified on the basis of the Nitrates Directive and “be underpinned by the necessary environmental assessments under other [EU] law”, in particularly those relating to the Habitats Directive and the Water Framework Directive.
Therefore, the current extension of the derogation explicitly required conformity with the assessment required under the other directives.
Furthermore, in granting the current extension of the derogation the Commission stated that the outcome to the An Taisce case “is critical to enable Ireland to identify and carry out the necessary assessments and eventually present a complete and thorough derogation request.”
The Commission required Ireland to finalise the assessment of environmental impact of the derogation by the 31 December 2028
The Commission noted that in July 2025 Ireland expressed its commitment to complete the legally required assessments of the environmental effects of this potential derogation as required by EU law. Finally, the Commission required Ireland to finalise the assessment of environmental impact of the derogation by the 31 December 2028.
While the expended derogation required additional measures for derogation farms in catchment areas with significant environmental challenges, the Commission rightly noted that the sixth NAP requires increased animal slurry and soiled water storage on livestock farms as of 2028, new measures regarding the distribution of animal slurry on fragmented holdings, and major changes to buffer zones.
Referring directly to the An Taisce case, the Commission stated that it may be necessary to modify the conditions attached to the current derogation following the preliminary ruling from the CJEU.
The opinion of the advocate general (AG) of the Court of Justice of the EU (CJEU) delivered last week marks another significant development of the conditions and monitoring of the nitrates derogation that has applied to Ireland since 2007.
To a considerable extent, however, the opinion of the AG was not unexpected.
The AG’s opinion sets out the law and the requirements arising from the interaction between the Nitrates Directive and the Habitats Directive, the Water Framework Directive and the Directive on Strategic Environmental Assessment.
The AG has proposed in her opinion that the CJEU should rule that when the EU grants a derogation under the Nitrates Directive which allows a higher level of nitrate usage than the basic limit, the obligations under the three other directives must be fully fulfilled.
When the CJEU decides on its position on the issues raised in the preliminary reference the case is referred back to the High Court for the case to be finalised
The case came before the CJEU by way of a preliminary reference from the Irish High Court to clarify the EU law in the case taken by An Taisce against Ireland.
A preliminary reference is a procedure whereby national courts can refer questions on the interpretation of EU law.
When the CJEU decides on its position on the issues raised in the preliminary reference the case is referred back to the High Court for the case to be finalised.
From a farming point of view, and in particular for dairy farmers, the issue is what will be the impact and cost on individual farms if, or indeed when, the granting and monitoring of the nitrates derogation is subject to the full rigours of the requirements of the Water Framework Directive, Habitats Directive and Strategic Environmental Impact Directive.
If the AG’s opinion forms the basis of the final CJEU ruling, and is applied by the Irish courts, there will be a substantial increase in the scope of the assessment regarding the impact of additional nitrates at individual farm level, as well as at river catchment, regional and national levels.
The vast majority of the 6,500 derogation farms will be able to continue to operate under the nitrates derogation
For some farmers, the outcome could result in severe restrictions being imposed in order to continue to operate under a derogation and/or substantially reduced permitted levels of nitrates.
However, it is important to stress that, as the conditions and capacity on Irish farms have improved significantly over the last 15 years, the vast majority of the 6,500 derogation farms will be able to continue to operate under the nitrates derogation, albeit with varying additional measures and restrictions.
The European Commission and Ireland have already set in train major changes to the design and operation of the derogation in the sixth Nitrates Action Programme (NAP) which will comply to a great extent with any new requirements that may have to be put in place following a final judgment in the An Taisce case.
Concluding her opinion, the AG stated a member state may approve the application of an increased amount of nitrogen to land only after it has assessed that the requirements of the Water Framework and the Habitats Directives “are not prejudiced”.
While she also stated that there is no need for a member state to carry out such an assessment if there is an assessment at farm level, it is not clear what this farm assessment would entail.
Although the AG insisted that farming impacts were not permitted to outweigh environmental considerations, the opinion conceded that farm incomes and the sustainability of the agricultural industry and the food supply chain may be taken into account in the environmental assessment in order to justify the choices between different alternatives required to protect the environment.
If this is not done effectively it will leave the field open to the environmental zealots to successfully lobby for implementation of an unnecessary environmental straitjacket
The challenge and opportunity facing the farm organisations now is to engage in detailed, informed and constructive negotiation with Government departments to negotiate a practical and proportionate system that will be required under the new regulatory framework.
By informed I mean adopting negotiation positions based on the best environmental, ecological, scientific, economic and legal expertise.
If this is not done effectively it will leave the field open to the environmental zealots to successfully lobby for implementation of an unnecessary environmental straitjacket that will make the operation of the nitrates derogation prochallengehibitive both in terms of red tape and cost.
Constructive engagement and negotiation are the only way to ensure the best possible outcome for the farming sector under revamping of the NAP to meet the new and addition requirements that will have to be met by Ireland.
In conclusion, the law and procedures regarding the environment and the overlapping requirements of various directives and regulations are complex and difficult to fully comprehend even for experienced lawyers and regulators.
Changes
The range of probable changes to the regulation and monitoring of the nitrates derogation has been well flagged. And while changes are inevitable, the vast majority of derogation farmers are well capable of meeting the new requirements given the investment that has already taken place on the farms and the knowledge and experience they have gained in operating the derogation to-date.
However, some farmers, particularly in environmentally sensitive zones, could potentially face serious operational challenges and far higher costs.
Ciaran Dolan is an
agribusiness consultant and barrister.
The derogation’s legal trail
To put the AG’s opinion regarding the nitrates derogation in context it is useful to outline the legal twists and turns of the An Taisce case.
In May 2022 An Taisce lodged its case for a judicial review hearing in the High Court in Dublin alleging that Ireland failed in its responsibility to properly assess the impact of the fifth Nitrates Action Programme (NAP) under the Water Framework and Habitats Directives in its formation and application of the NAP and raised the matter of the lawfulness of the nitrates derogation granted by the European Commission. The High Court hearing was held in December 2023.
Following extensive review of both Irish and EU law, the High Court referred a total of 11 questions for a preliminary ruling to the Court of Justice of the EU (CJEU). This formed the basis of the AG opinion delivered last week.
Earlier this month, An Taisce filed an application for a judicial review of the current sixth NAP
Meanwhile, Ireland applied for an extension of the derogation and brought into effect the sixth NAP which made significant changes compared to the fifth NAP. The An Taisce High Court challenge was against the fifth NAP. Earlier this month, An Taisce filed an application for a judicial review of the current sixth NAP. In December 2025, the Commission granted an extension of the derogation to Ireland by way of what the Commission referred to as an “exceptional measure”.
In effect, this extension of the derogation to 2028 was specifically designed as a holding operation. The decision to grant a derogation made specific references to the An Taisce case before the CJEU.
It is also important to point out that in the legal document granting the derogation it was clearly pointed out that the nitrates derogation must be justified on the basis of the Nitrates Directive and “be underpinned by the necessary environmental assessments under other [EU] law”, in particularly those relating to the Habitats Directive and the Water Framework Directive.
Therefore, the current extension of the derogation explicitly required conformity with the assessment required under the other directives.
Furthermore, in granting the current extension of the derogation the Commission stated that the outcome to the An Taisce case “is critical to enable Ireland to identify and carry out the necessary assessments and eventually present a complete and thorough derogation request.”
The Commission required Ireland to finalise the assessment of environmental impact of the derogation by the 31 December 2028
The Commission noted that in July 2025 Ireland expressed its commitment to complete the legally required assessments of the environmental effects of this potential derogation as required by EU law. Finally, the Commission required Ireland to finalise the assessment of environmental impact of the derogation by the 31 December 2028.
While the expended derogation required additional measures for derogation farms in catchment areas with significant environmental challenges, the Commission rightly noted that the sixth NAP requires increased animal slurry and soiled water storage on livestock farms as of 2028, new measures regarding the distribution of animal slurry on fragmented holdings, and major changes to buffer zones.
Referring directly to the An Taisce case, the Commission stated that it may be necessary to modify the conditions attached to the current derogation following the preliminary ruling from the CJEU.
SHARING OPTIONS