Ireland in the dock for profiting from EIAs

The European Commission has taken Ireland to court over charges made by the Irish planning system for environmental impact assessments.

Commission v Ireland (Case C-216/05)

The Advocate General issued her Opinion in the case of Commission v Ireland (Case C-216/05) on 22 June 2006.

The case concerned the alleged failure on the part of Ireland, to fulfil its obligations under the Environmental Impact Assessment (EIA) Directive (Directive 85/337/EEC) with regard to procedures of public consultation and the levying of administrative fees.

The Commission sought a declaration of the Court that, by making the full and effective participation of the public in certain environmental impact assessments subject to the prior payment of participation fees, Ireland had failed to comply with its obligations under Articles 6 and 8 of the EIA Directive.

Under Irish planning law, members of the public may be charged administrative fees for making submissions or observations on planning applications and on appeals, both within the procedure before local planning authorities and in proceedings before the Planning Appeals Board (An Bord Pleanála).

These administrative fees relate to all planning procedures, including procedures involving an environmental impact assessment and are of a fixed amount irrespective of the scale of the project or the extent of the submissions or observations.

Various State bodies and certain organisations are however exempted from the administrative fees payable at both stages.

In response to both the letter of formal notice and subsequently the reasoned opinion issued by the European Commission, Ireland maintained that the EIA Directive did not preclude the levying of administrative fees and that the public would not be discouraged from participating in the consultation procedures by such fees.

The Advocate General however has recommended that the Court dismisses the current action as the complaint alleging infringement of Article 6 of the EIA Directive and an associated breach of Article 8 is unfounded.

The Advocate General has stated that it cannot be inferred automatically from the EIA Directive's silence as to administrative fees in connection with public consultation pursuant to Article 6(2) that the Member States are prohibited from levying such fees.

While Article 6(2) of the Directive requires Member States to ensure that any request for development consent and any information gathered are made available to the public within a reasonable time 'in order to give the public concerned the opportunity to express an opinion before the development consent is granted', this cannot be taken to mean that there is an unrestricted right for everybody to be consulted.

The Advocate General also found that the actual amount of the administrative fees at issue does not render realisation of the public consultation virtually impossible or excessively difficult.

The full Opinion of the Advocate General can be found here.

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