European Commission Takes Ireland Back to Court and Proposes Fines
The European Commission is taking Ireland back to the Court of Justice of the EU for its failure to comply with part of the Court judgement of 3 July 2008 (C-215/06, Commission v Ireland), by not properly carrying out an environmental impact assessment for the Derrybrien wind farm in County Galway in Ireland.
Although the Derrybrien wind farm was constructed more than 13 years ago, no sufficient impact assessment has been carried out. Such impact assessment of certain public and private projects on the environment is required under the EU rules before construction is allowed to commence.
The scale of the development and its sensitive moorland hilltop location means that its operation continues to have an impact locally. The site could still benefit from mitigation and remediation measures, but these can only be identified after an environmental impact assessment has been done. Ireland must, therefore, ensure that this happens.
The Court of Justice of the EU ruled on 3 July 2008, amongst others, that Ireland had failed to carry out an environmental impact assessment for the 70 turbine wind farm – the largest in Ireland, and, at the time of judgment, one of the largest in the EU. Its construction required the removal of large areas of forest and extraction of peat up to 5.5 metres deep on the top of the Cashlaundrumlahan Mountain, causing a 2km environmentally devastating landslide in October 2003.
The Commission is requesting the Court of Justice of the EU to impose a minimum lump sum payment of €1 685 000.00 (€1 343.20 per day). The Commission is also proposing a daily penalty payment of €12 264.00, if full compliance is not achieved by the date when the Court issues its ruling. The final decision on the penalties rests with the Court of Justice of the EU.
The aim of the EIA Directive is to ensure that projects which are likely to have a significant effect on the environment are adequately assessed before they are approved. Developers can then adjust projects to minimise negative impacts before they actually occur, or the competent authorities can incorporate mitigation measures into the project approval. The Directive ensures public participation in decision-making and thereby strengthens the quality of decisions, makes the business environment more predictable for economic operators and creates a level playing field for them across the EU. The Directive applicable at the time of the judgment was the original Council Directive 85/337/EEC and its amendment Council Directive 97/11/EC.
Under Article 260 of the Treaty on the Functioning of the European Union (TFEU), if a Member State has not taken the necessary measures to comply with a judgment of the Court of Justice, the Commission may refer the matter to the Court of Justice. The decision on a second referral to the Court of Justice on the basis of Art. 260 of TFEU must always be accompanied by a proposal for a penalty and/or lump sum payment. Calculation of the penalty payment is based on a method that takes account of the seriousness of the infringement, having regard to the importance of the rules breached, and the impact of the infringement on general and particular interests, its duration and the size of the Member State, with a view to ensuring that the penalty itself has a deterrent effect. Rulings by the Court are binding on all EU Member States as well as on the EU institutions themselves.