A high court judge has referred the case about the legality of Ireland’s Nitrates Action Programme (NAP), which governs the nitrates derogation, to the Court of Justice of the European Union (CJEU).

The case has been taken by An Taisce against the Minister for Housing and the Minister for Agriculture, with both the IFA and ICMSA named as notice parties. It has challenged the legality of Ireland’s NAP.

In a lengthy ruling issued on 24 July, Justice Richard Humphreys ordered that nine of the 12 issues raised in the case should be referred to the highest court in Europe.

“The present action is a challenge to the validity of domestic and European measures relating to the derogation for the use of nitrates above and beyond standard levels,” the ruling states.

Difficult question

“That challenge raises significant issues of European law. To refer or not to refer is the primary question now, although it isn’t a particularly difficult question, especially given that all contributing parties agree that almost all of the questions are not acte clair.

“The applicant [An Taisce] has raised what are clearly novel, complex and important issues of EU law, culminating in a question regarding the validity of a Commission decision,” Justice Humphreys said.

He said that the court does not have the jurisdiction to determine the Commission’s decision in favour of An Taisce, and said he isn’t particularly minded at the present time to determine it in favour of the respondents.

“While making a reference to the CJEU is generally optional apart from for apex courts, a case where the validity of an EU law measure is in issue can be an exception. Even a first instance court must refer such a question if it considers that the European law measure should be declared invalid by the CJEU,” he said.

Commenting on the decision, ICMSA president Denis Drennan said: “ICMSA is a notice party in this high court case, our involvement stems from our conviction that retention of the nitrates derogation is absolutely crucial to the survival and wellbeing of Irish farming.

“ICMSA made substantial submissions and lodged affidavits on behalf of our members. And we welcome the court’s fair and balanced consideration of the farmer concerns as submitted by our lawyers,” he said.

Ruling 'pivotal'

Drennan described a reference in the ruling as pivotal: “As the above affidavits illustrate, this would not only undercut the economic viability of the sector, but would also produce adverse effects on families, the local community and Ireland’s cultural heritage”.

The decision, when made, will be critical for any future agri-viability and ICMSA will continue to defend Irish farmers’ rights to farm sustainably under a derogation Drennan said.

The matter has been listed for mention in the Irish High Court on 9 September to confirm the progress on the case and costs of the proceedings to date have been reserved until further order.

Reacting to the judgment, An Taisce CEO Gary Freemantle said: "Our clean water resources are vital for all life and must be protected. This judgment is a step towards ensuring that Ireland has the strongest possible legal framework to safeguard our waterways.

"This is directly connected to the An Taisce mission of protecting and celebrating Ireland’s natural and built environment for present and future generations."