High Court to ask European forum to decide issues linked to validity of nitrate derogation measures

The Court of Justice of the European Union (CJEU) will be asked to rule on legal questions related to the validity of Irish and European nitrate derogation measures.

The High Court on Wednesday held that there should be a referral of certain issues that have arisen in An Taisce’s challenge to Ireland’s Nitrates Action Plan (Nap), which aims to protect waters from agricultural pollution, and the regulations underpinning it.

Mr Justice Richard Humphreys said the trust raised novel, complex and important issues of EU law. The exact questions to be referred will be outlined in a future judgment, he said.

The trust’s court case argues the Nap was “instrumental” to the derogation to normal organic fertiliser limits imposed on farms. The derogation allows certain farms to exceed the 170kg nitrates per hectare limit by 50kg.

The EU’s Nitrates Directive requires member states to produce a nitrates plan every four years, setting rules for farm management including on the application of slurry and chemical fertilisers to limit their impact on water quality. Ireland’s Nap was approved by the Minister for Local Government in consultation with the Minister for Agriculture.

Lawyers for the State submitted An Taisce’s request for certain questions to be referred to Europe was an “impermissible attack” on a European Commission decision.

In a ruling on Wednesday, the judge noted An Taisce has not identified a lack of competence on the part of the commission but pleaded that a consequence of the court quashing the Nitrates Action Plan would be that the derogation is invalid “since it depends on the validity of the Nap”.

However, the judge said the commission’s decision would be unaffected if the Nitrates Action Plan was found to have breached a European directive. The validity of the commission’s decision may be reviewed against standards the commission itself was obliged to comply with, but An Taisce does not impugn these in its case, he said.

The judge said there are certain EU law points raised by An Taisce that are “not acte clair”, meaning there is a doubt about how a domestic court should interpret the European Union law. These unclear points should be referred for determination by the CJEU, he decided.

The trustee of the Irish Farmers’ Association and trustees of the Irish Creamery Milk Suppliers Association were joined to An Taisce’s case as notice parties.