22nd September

Commission enforcement of EU Environmental legislation in Ireland – a 20 year retrospective

The following is an abridgment of a presentation made by Liam Cashman, Legal Affairs and Cohesion, DG Environment to a Coastwatch seminar in Dublin last spring.

Ireland's membership of the European Union broadly coincides with the emergence and development of a European environmental acquis. Despite this, Ireland’s environment has benefited only belatedly or incompletely from the safeguards put in place at EU level.
Jamestown Canal, River Shannon. The period from the 1970s has been marked by a decline in the extent of pristine water bodies. Photo Gillian Mills/Inshore Ireland
Jamestown Canal, River Shannon. Photo Gillian Mills/Inshore Ireland 
The period since the 1970s has been marked by, amongst other problems, a serious decline in the extent of pristine water bodies;widespread bacteriological contamination of drinking water;  lack of timely compliance with urban waste-water treatment requirements; inadequate protection of wildlife sites, and endangered species and impact assessment rules that are left without a meaning in practice.
The Irish environment
The period since accession has been one of agricultural intensification. Many environmental pressures stem from the presence of high livestock numbers. During the 1980s, fragile and unstable upland peat soils came to be severely eroded as a result of very heavy stocking with sheep.
Changing patterns of husbandry, in particular winter livestock housing, have generated large volumes of slurry for land-spreading. This, combined with more intensive forms of grassland management – involving greater levels of fertilisation – has increased nutrient run-off into rivers and lakes.
Aside from agriculture, afforestation and peat extraction are activities that have had major surface area impacts from the middle of the 20th century to date.Other activities with a significant transformative impact include quarrying and aquaculture.

As for settlements and infrastructure, Irish land-use policy – or, perhaps more accurately, practice - has favoured dispersed settlement in the countryside. One-off houses figure prominently in new construction over the past twenty years. The significance of one-off houses is evident in an estimated 400,000 septic tanks  - and in the number of small drinking water supplies, which run to several hundred. Widespread bacteriological contamination of the groundwater relied on by many of these supplies makes the provision of safe drinking water a considerable challenge.

Over the past twenty years, Ireland has sought to catch up with other Member States, making major investments in roads, drinking water supplies, waste water collection and treatment and waste facilities. Linear infrastructure such as new motorways has criss-crossed the landscape. Very significant low-density urban expansion has been noted by the European Environment Agency, especially in the hinterland of Dublin.

Difficulties encountered by the Commission
It was only in 1999 that the first ECJ judgment against Ireland was handed down, but the preceding period was marked by significant exchanges, with Commission interventions being a factor in several Irish reforms.  By the late 1990s, however, it was apparent, that under several headings, insufficient progress was being made.

Quality of national implementing legislation
As an initial Commission focus on the form of transposing legislation gave way to a more critical focus on content, Ireland became more reluctant to respond with legislative change. In particular, a willingness to replace circular letters with primary legislation or (more commonly) statutory instruments was not matched by a similar willingness to revisit binding legislation once this was adopted.

Many of the non-conformity difficulties have related to national rules that leave the intended scope of European provisions without a meaning in practice. Such rule-making might be considered to follow a “business-as-usual” rationale. The need to transpose is respected in terms of there being a rule to satisfy the requirements of outward form, but the rule as designed carries no practical consequences for the sectors ostensibly addressed: it is hollow.

The first judgment in 1999 was followed by others until Ireland became subject to one of the highest number of ECJ decisions on the environment.

Ireland is not, of course, the only Member State to allow Commission non-conformity proceedings to take their course, but amongst new Member States in particular there is now a marked tendency to try to resolve non-conformity problems in the pre-litigation phase.

Reluctance to recognise areas needing special environmental management

Four ECJ rulings against Ireland relate to a failure to recognise areas for environmental management purposes.

The ruling of 11 September 2001 in Case C-67/99 concerns Ireland’s failure to propose a meaningful set of sites for the conservation of Europe’s most endangered habitat types and species under the Habitats Directive. Ireland’s contribution was due in 1995 but remained the most nugatory of any Member State when the Commission court proceedings were lodged.

Unlike almost all other Member States, Ireland did not have a territorially significant existing network of national parks and protected nature sites to begin with. Put bluntly, Ireland since independence showed scant interest in protecting its natural heritage. An inventory of areas of scientific interest – modelled on Britain’s sites of special scientific interest – was compiled during the 1970s by an environmental research body, An Foras Forbartha, but the expected national statutory regime to protect the sites concerned never materialised.

The status of the inventory fell victim to judicial review because of lack of landowner consultation and An Foras Forbartha was abolished during government cutbacks in the 1980s. A later effort to create a statutory network of Natural Heritage Areas (NHAs) also faltered, with the only NHA orders to date being adopted to help resolve an ECJ ruling

The establishment of an Irish contribution to Natura 2000 therefore had little to build on in terms of a pre-existing statutory network or a recognised need to protect. Using Community funds, Ireland’s National Parks and Wildlife Service (NPWS) reviewed the earlier inventory and compiled a new one but formalisation of this encountered the same factors that had militated against any meaningful national protection – landowner mistrust and resulting political caution.

The Irish authorities sought to achieve domestic acceptance by, on the one hand, instituting a non-statutory appeals mechanism for landowners and, on the other, targeting European agri-environmental payments at the selected sites. However, the process dragged on for over a decade.

Similar factors were at work in case C-418/04, which, to a significant extent, concerns a failure to classify SPAs under the Wild Birds Directive. Despite the fact that the duty to classify was supposed to have been met in 1981, Ireland still had the tiniest and most incomplete SPA network of any of the EU-15 Member State when the ECJ pronounced in 2007 -  indeed, nearly all of the Member States that acceded in 2004 had already by then surpassed Ireland in classification coverage.

There were corresponding delays in recognising areas for purposes of better controlling water pollution.

At the time that the Commission made its referral in Case C-391/96, Ireland was the only Member State not to have recognised any part of its territory as requiring mandatory control measures under the Nitrates Directive. Ireland’s approach reflected a wider reluctance to impose mandatory environmental measures on the farming sector.

Case-418/05 reflects the mismatch between Ireland’s development of a shellfish industry and its willingness to recognise areas used for shellfish culture in order to prevent or reduce water pollution.

Although the matter was ultimately resolved without need for a Court judgment, Ireland was initially reluctant to recognise a significant number of sensitive areas for purposes of the Urban Waste Water Treatment Directive.

Environmental infrastructure deficits
The Urban Waste Water Directive requires Member States to collect and treat urban waste water by set deadlines related to the sensitivity of the receiving water and the size of the settlement. So far as Ireland is concerned, the first deadline expired at the end of 1998, the second at the end of 2000 and the final one at the end of 2005. This email address is being protected from spambots. You need JavaScript enabled to view it.

  Obstacles to an effective role for civil society

Ireland's exceptionalism in this area has been pronounced:

  • Ireland is the only Member State out of twenty-seven not to have ratified the Aarhus Convention.
  • Ireland was the only Member State to introduce participatory fees for members of the public wishing to participate in development consent procedures. A Commission ECJ challenge to this failed in respect of Directive 85/337/EEC before it was aligned with the Aarhus Convention through Directive 2003/35/EC.
  • The loser pays principle has meant that unsuccessful environmental litigants have been exposed to adverse cost orders that have no equivalent in their severity elsewhere in the EU.
  • The unlikelihood of any preliminary references in environmental cases is a feature of the Irish system and lack of use of this calibrating mechanism means that it is left to the Commission to bring important matters of interpretation arising in Ireland to the ECJ’s attention. Following Commission legal action against Ireland, the ECJ ruled that legislative transposition was necessary for the cost provisions of the Environmental Impact Assessment Directive

State of Play
Over the past twenty years, Commission enforcement has been characterised by two fundamental objectives. The first has been to secure outcomes that, at a strategic level, protect or improve the state of the environment in accordance with the acquis. The second has been to make the governance structure in Ireland as dependable as possible and so reduce the long-term need for Commission intervention.

Measured against these objectives, the current picture is a mixed one.

So far as the state of the environment is concerned,

  • improved air quality in Dublin represents an early success
  • investments in waste-water treatment have alleviated water pollution pressures in many parts of the country
  • Ireland’s decision, in response to an ECJ ruling, to take a whole-territory approach to the Nitrates Directive has strengthened safeguards against diffuse water pollution: slurry-spreading in winter has been prohibited and major investments have been made in farmyard waste storage
  • an important network of protected nature sites has been established. Site protection is assisted by the availability of agri-environmental payments.
  • afforestation has been ended in protected peatlands
  • sheep overgrazing has been made subject to sophisticated control measures across the estimated 400,000 hectares of commonage that were adversely affected.
  • taken as a whole, Ireland’s network of landfills is better managed than during the 1990s and – although fly-tipping remains a problem - significant-scale clandestine landfilling appears to be a thing of the past.
  • drinking water supplies benefit from a set of greater safeguards, including chlorine alarms that alert operators to treatment malfunctions.

Looking ahead
At EU level, the environmental directorate-general of the Commission has in recent years entered into a programme of cooperation with European organisations representing national judges: the latter have expressed a keen interest in improving awareness of the environmental acquis amongst their membership. This cooperation has led to seminars on specific topics such as EU nature conservation and environmental impact assessment legislation. In some jurisdictions, judges have assumed a greater role in upholding the acquis, thus alleviating part of the burden that falls on the Commission and the ECJ. A trend in that direction in Ireland would certainly be welcome but, based on past experience, it seems safe to say that, without the ECJ, the future for Ireland’s natural heritage is very uncertain – and very bleak in the case of active raised bogs. Of course, it is not possible to predict with certainty how the ECJ will address the environmental acquis in the future. Jurisprudential tides come in: they also go out.

Against this background, the following are suggestions on how Ireland's implementation of the acquis might be improved:

  • Greater recognition of the underlying purposes and objectives of EU environmental


  • Greater care and foresight in the drafting of implementing legislation.
  • Creativity in the design and deployment of implementing measures.
  • Greater emphasis on long-term strategic approaches and tools such as strategic environmental assessment.
  • Greater coherence and targeting of implementing measures
  • An emphasis on outcomes in enforcement action
  • Further improvements in oversight of and assistance to local authorities.
  • Further improvements in relation to role of civil society

Parts of the acquis of special relevance

  • Impact Assessment Directive, 85/337/EEC and Strategic Environmental Assessment Directive, 2001/42/EC - seek to incorporate an element of environmental foresight into decision-making across a very wide range of project types and plans.
  • Access to Information Directive, 2003/4/EC - provides for the disclosure on request, and in some cases the active dissemination, of environmental information held by public authorities.
  • Wild Birds Directive, 79/409/EEC - covers all naturally-occurring wild bird species. It requires Member States to control hunting, establish a network of special protection areas (SPAs) for migratory species and listed resident species and adopt conservation measures in the wider countryside.
  • Habitats Directive, 92/43/EEC - foresees the creation of a Europe-wide network of protected nature sites called Natura 2000.
  • Drinking Water Directive, 98/83/EC, previously 80/778/EEC - sets standards for the drinking water supplied to consumers, including a requirement that drinking water be completely free of bacteria.
  • Nitrates Directive, 91/676/EEC - aims at reducing nitrate pollution from agricultural sources.
  • Urban Waste Water Treatment Directive, 91/271/EEC - complements the Nitrates Directive by requiring that larger human settlements collect and treat urban waste water – the other main source of nutrient pollution.
  • Water Framework Directive, 2000/60/EC and precursor instruments - creates an overarching system - involving water quality objectives, monitoring, river basin management plans, programmes of measures and stakeholder involvement – aimed at ensuring that all water bodies enjoy good water quality. Its water pricing provisions have a particular topicality.
  • Waste Framework Directive, originally 74/442/EEC, now 2008/98/EC - establishes a basic set of rules for the safe disposal and treatment of waste.
  • Landfill Directive, 99/31/EC - complements the Waste Framework Directive by setting detailed standards for the operation of landfills.




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