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Two preliminary references from the Irish Courts to the Court of Justice of the EU (CJEU) concerning the obligation to establish site-specific conservation objectives (SSCO) and conservation measures for special areas of conservation (SACs) designated under the Habitats Directive (92/43/EEC) and special protection areas (SPAs) designated under the Birds Directive (2009/147/EC), are due to be heard together on 11 March 2026.
The outcome of these references will have significant consequences for the permitting of all types of plans and projects across the EU, and in Ireland the outcome will materially affect the delivery of infrastructure and the implementation of the Accelerating Infrastructure Report and Action Plan published by the Department of Public Expenditure, Infrastructure, Public Service Reform and Digitalisation in December 2025.
Questions Referred
In Case C-27/25 (Knocknamona) referred by the Irish Court of Appeal on 17 January 2025, the key question is whether valid conservation objectives for a particular SPA are a prerequisite to a lawful appropriate assessment (AA) being carried out under Article 6(3) of the Habitats Directive when considering an application for planning permission for a wind farm.
A related but distinct question has been referred by the High Court in Case C-356/25 (Massey), whether the absence of formally defined conservation objectives or measures for a SPA or SAC constitutes a jurisdictional bar preventing a valid AA screening being carried out under Article 6(3) of the Habitats Directive prior to a grant of planning permission for a wind farm.
These references have arisen due, in part, to Ireland’s failure to ensure that there are formal SSCO for all European sites – as established by the CJEU in Case C-444/21 Commission v Ireland on 29 June 2023. There are additional implications arising from the CJEU ruling in Case C-66/23 Elliniki on 12 September 2024.
Conservation Objectives Versus Conservation Measures
Conservation objectives set out the desired ecological condition of, or goals for, a habitat type or species for which a SAC or SPA is designated. The identification of potential SACs and SPAs involves the setting of conservation objectives, to an extent, as does the prioritisation of the ecological requirements for maintaining and restoring the site to good conservation status. However, the CJEU has ruled that conservation objectives must be set for each site, that are clear, precise and binding, referred to here as site-specific conservation objectives (SSCO). SSCO should inform and guide the subsequent establishment of conservation measures for the site, and are a reference point expressly linked in Article 6(3) of the Habitats Directive to the Appropriate Assessment (AA) process. Indeed, SSCO underpin the State’s obligations to protect, maintain and improve the conservation status of SACs and SPAs.
Conservation measures on the other hand follow on from SSCO, and are the practical operational means by which the SSCO goals are to be achieved. Conservation measures may be set within a specific conservation management plan for the site, or another appropriate statutory, administrative, or contractual measure or instrument provided the measures are clear, precise and binding, capable of creating concrete obligations for third parties to do or to refrain from doing anything liable to interfere with the SSCO.
Relevant CJEU rulings to date include:
- Case C-444/21 Commission v Ireland – Ireland was found to have failed to establish SSCOs and adopt the necessary conservation measures for all SACs within the prescribed period. The CJEU emphasised that, to be regarded as valid conservation objectives, the objectives must be specific and precise.
- Case C-116/22 Commission v Germany – the CJEU held that valid SSCOs need not always be quantitative and measurable and need not always distinguish between restoration and maintenance objectives. Such a rigid approach may be unsuitable for complex and dynamic habitats and environments with multiple factors and interactions. However, SSCO must be established first, so that conservation measures can be properly tailored to achieve the objectives.
- Case C-66/23 Elliniki – the CJEU held that the reasoning of the Court in Case C-444/21 and C-116/22 is transposable to SPAs designated under the Birds Directive. Article 4 of the Birds Directive read in the light of Article 6 of the Habitats Directive implies a requirement to set SSCO for SPAs as well as SACs. Moreover, the SSCOs for SPAs shall cover all Annex I and migratory bird species according to whether their presence within the SPA is significant, and not just those species for which the site was designated.
Potential jurisdictional bar to AA under Article 6(3) of the Habitats Directive
When hearing the two references – Case C-27/25 (Knocknamona) and Case C-356/25 (Massey) – on 11 March 2026, the CJEU will consider whether the absence of formally established SSCO and / or conservation measures for a relevant SAC or SPA creates a “jurisdictional bar” that precludes a valid AA or AA screening determination to carried out by the competent authority under Article 6(3) of the Habitats Directive.
Under Article 6(3) of the Habitats Directive, a competent authority shall only consent to a proposed plan or project after undertaking an AA (if required) to exclude adverse impacts on the integrity of the SPA or SAC in view of the site’s conservation objectives.
While the State has been establishing formally SSCOs for SPAs and SACs gradually over time and in response to Case C-444/21 Commission v Ireland, that work is ongoing and:
- the State has not established conservation measures for all SPAs and SACs, and
- insofar as measures are established it is unclear whether such measures cover all ecologically significant species present within the site, as prescribed by the CJEU in Case C-66/23 Elliniki.
Origin of the preliminary references from Irish Courts
Case C-27/25 (Knocknamona) arose from the following Court decisions:
- Power (No. 1) [2024] IEHC 108, the High Court (Holland J) rejected a challenge to planning permission for the modification and extension of a wind farm permission based on the absence of SSCO for a SPA. The court granted a declaration that the State had failed to fulfil their obligation to establish the necessary SSCO and conservation measures for the SPA, but refused to quash the permission because the Court found on the evidence that the proposed development would have no adverse implications for the SPA.
- Power (No. 2) [2024] IEHC 247, Holland J granted leave to appeal and certified a question as of exceptional public importance: whether valid conservation objectives for a SPA are a prerequisite to a valid AA under Article 6(3) of the Habitats Directive.
- Power [2024] IECA 295, the Court of Appeal decided to refer the question to the CJEU.
Case C-356/25 (Massey) arose as follows:
- Massey (No. 2) [2025] IEHC 206 the High Court (Humphreys J) refused to quash a grant of planning permission for a wind farm, but referred a question to the CJEU as to whether conservation objectives and measures must be established before screening for AA can be validly conducted. The Court noted that there is no express reference to conservation objectives in the context of AA screening as opposed to the full AA process under Article 6(3) of the Habitat Directive.
In Friends of Ardee Bog v An Bord Pleanála [2025] IESC 13 the Supreme Court adjourned consideration of an application for leave to appeal pending the outcome of the reference in Case C-27/25 (Knocknamona). The application for leave to appeal arose from:
- Friends of Ardee Bog [2024] IEHC 292 the Court (O’Regan J) made a declaration that the State had failed to fulfil their obligation to make formal SSCO, but refused to quash the grant of planning approval for a road project; and
- Friends of Ardee Bog [2024] IEHC 634, O’Regan J refused an application for a certificate of leave to appeal on the basis that the “jurisdictional bar” issue had not been properly pleaded in the High Court.
- Friends of Ardee Bog v An Bord Pleanála [2025] IESC 13, as noted the Supreme Court has paused consideration of an application for a “leapfrog” appeal to that Court, pending the outcome of the references to the CJEU in Power and Massey.
Incidentally, the Court of Appeal in Friends of the Irish Environment v Minister for Agriculture Food and the Marine [2025] IECA 71 has referred a question to the CJEU as to whether “Food Vision” (a high-level policy) has the characteristics necessary to constitute a plan for the purposes of Article 6(3) of the Habitats Directive (Case C-332/25 – pending). The Court of Appeal (Butler J) highlighted the challenge of undertaking a site-specific AA of a high-level policy, particularly in the absence of SSCO, citing Case C-116/22 Commission v Germany.
Implications of “jurisdictional bar” ruling
As noted, a valid grant of planning permission or other consent or agreement to a plan or project will depend on the jurisdiction of the competent authority to undertake a lawful AA prior to the planning or consent decision. If the lack of SSCO and/or conservation measures is identified by the CJEU as a jurisdictional bar, there will be serious repercussions across all sectors and activities.
The Accelerating Infrastructure Report and Action Plan published by the Department of Public Expenditure, Infrastructure, Public Service Reform and Digitalisation in December 2025 proposes:
Action 6: Create mechanisms that identify new precedents set by court judgements that are relevant to infrastructure and offer early options to Government to address, as well as enduring solutions.
The precedents set by Case C-444/21 Commission v Ireland, Case C-116/22 Commission v Germany, and Case C-66/23 Elliniki should be on a “red flag” list of matters requiring urgent and intensive action. As noted, while the State has been gradually establishing SSCO in response to Case C-444/21, it is unclear whether this work has been sufficient in scope to ensure that the requirements specified in Case C-66/23 are fulfilled. In particular, it will be necessary to ensure that all relevant species are identified, not just those for which the site is designated, and that conservation measures are tailored, clear, precise, binding and capable of being applied to third party activities.
Conclusions
The references to the CJEU in Case C-27/25 (Knocknamona) and Case C-356/25 (Massey) will require the Court to address whether the express link between AA and conservation objectives in Article 6(3) of the Habitats Directive creates a jurisdictional bar to a valid AA if conservation objectives are not established formally on a site-specific basis at the time the AA is undertaken. A related but distinct question arises in relation to AA screening.
Alternatively, the CJEU may determine that the absence of such formally established SSCO is a breach of the State’s obligations under the Directive but does not invalidate individual project AA conducted by the competent authority on the basis of best available scientific information to exclude adverse implications for the integrity of the European site concerned. It is unclear whether the Court will address whether valid conservation measures are a pre-requisite to a valid AA.
Case C-27/25 (Knocknamona) will be heard together on 11 March 2026 with Case C-356/25 (Massey). The Court’s answers to the questions referred by the Irish Court of Appeal and High Court will have significant practical consequences for development consent processes across EU Member States and particularly in Ireland.
Even with priority, it may be late 2026 or early 2027 before a final ruling is delivered by the Court.
