Comment is free – but not in Ireland

Dublin has successfully seen off a complaint from Brussels which maintained that charging the public to comment on planning applications was in breach of EU law.

Commission v Ireland

Environmental Impact Assessment (EIA)

The European Court of Justice (ECJ) gave judgement in the case of Commission v Ireland (Case C-216/05) on 9 November 2006. The case concerned a challenge by the European Commission regarding the levying of an administrative fee in order to be able to make submissions in relation to a planning application and therefore participate in the consultation process.

The Commission sought a declaration of the Court to the effect 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 has failed to comply with its obligations under Articles 6 and 8 of the EIA Directive (Directive 85/337/EEC as amended by Directive 97/11/EC).

Under Article 6 of the EIA Directive Member States are required to ensure that any request for development consent and related information 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.

Under Article 6(3), the detailed arrangements for such information and consultation are to be determined by the individual Member States. To this end, section 33(2)(c) of the Irish Planning and Development Act 2000 permits the Minister of Environment by regulations to make provision in order to enable persons to make submissions or observations on payment of the prescribed fee and within a prescribed period.

The Minister of Environment may prescribe, by regulation, an administrative fee payable by members of the public for making submissions or observations on planning applications before local planning authorities. Article 44 of the Act also permits the Board (An Bord Pleanala) to determine a fee for the making of submissions or observations on planning appeals. At the time the Commission raised the complaint, the fees were ¬20 and ¬45 respectively.

Following formal notice having been given to Ireland, the Commission issued a reasoned opinion to Ireland on 23 January 2003, requesting Ireland to take the necessary measures to comply with the opinion within 2 months. However, following an unsatisfactory response, the Commission proceeded to raise the action before the ECJ.

While Article 6 of the Directive offers Member States a degree of discretion in laying down the “detailed arrangements” for consultation, the Commission argued that the imposition of fees were incompatible with Article 6 of the Directive for four main reasons.

No provision of the Directive permits such fees, the levying of an administrative fee is contrary to the scheme and purpose of the Directive, Article 6(3) of the Directive covers only what is necessary to give practical effect to consultation and therefore doesn’t cover the imposition of a fee, and finally, the levying of such fees impedes, or potentially impedes, exercise of the rights conferred on the public by Article 6(2) of the Directive.

The ECJ has this week followed the Opinion of the Advocate General, having held that Member States are free to act provided this does not conflict with the requirements of Community law. Where the Directive is silent on the issue of levying fees this does not necessarily prohibit Member States from levying fees.

Also, while the levying of administrative fees as a condition for public participation in the consultation process does impose a condition on or restrict consultation of the public, that restriction is not in itself incompatible with the Directive.

The ECJ has therefore held that the alleged infringement of Article 6 of the Directive is unfounded and dismissed the action. The arguments regarding Article 8 of the Directive were therefore also held to be unfounded.

The full judgement of the ECJ can be found at the following link.

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