Key Contact: Alice Whittaker – Chairperson and Partner |
On 12 July 2025, I was pleased to be interviewed by Ella McSweeney on RTE Radio’s excellent Countrywide programme (see RTE Playback Link here).
My task was to explain, in simple Saturday-morning terms, the Appropriate Assessment (“AA”) procedure under Article 6(3) of the Habitats Directive, in the specific context of farming derogations under the Nitrates Directive.
The interview followed reports that the EU Commission wrote to the Irish Government last month stating that Ireland “must demonstrate compliance” with the EU Habitats Directive when granting approximately 7,000 farm derogations in Ireland each year.
I mentioned the “Dutch Nitrates” case (Joined Cases C‑293/17 and C‑294/17 CURIA – Documents), in which the Court of Justice of the EU (CJEU) held that the application of fertilisers and the grazing of cattle is a ‘project’ for the purposes of Article 6(3) of the Habitats Directive, where those activities are having or are likely to have a significant effect on a European site designated for protection under the Habitats and Birds Directives.
Among other findings in the Dutch Nitrates case, which dates from late 2018, the CJEU ruled that nitrates derogations cannot be implemented lawfully in accordance with Article 6(3) of the Habitats Directive without being subject an individualised (i.e. project-specific) AA, unless “the objective circumstances make it possible to rule out with certainty any possibility that those projects, individually or in combination with other projects, may significantly affect those sites“.
The CJEU did not rule out the possibility that a higher-level AA of a plan or programme could achieve the requisite standard of proof, but it made it clear that the burden of proof is very high as it is necessary to demonstrate no site-specific effects. A system that exempts the requirement for AA based on generally binding rules such as the Good Agricultural Practice Regulations would not, in and of itself, satisfy the burden of proof.
In 2022, An Taisce applied for judicial review of Ireland’s latest Nitrates Action Plan. Among the grounds of challenge to the validity of the Plan, it was argued that the Plan failed to ensure compliance with the legal standards laid down by the Habitats Directive as interpreted by the CJEU in the Dutch Nitrates case.
On foot of that challenge, in 2024 the Irish High Court referred several questions to the CJEU (see Case C-531/24), including whether the farm derogation regime is lawful in the absence of individualised AAs for each derogation licence. The CJEU’s ruling is pending, however the latest reported communication from the European Commission suggests that Ireland cannot await the CJEU’s decision before it takes action.
It is unsurprising in these circumstances that the Irish Creamery Milk Suppliers’ Association (ICMSA) is calling on the Minister for Agriculture Food and the Marine to clarify for farmers what the Government’s plan is for retaining the derogation, and querying whether it is realistic (see link to Agriland report dated 16 July 2025).
