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Food-plan case could have wider implications

Lawyers at Philip Lee say that a ruling from the Court of Justice of the European Union (CJEU) on questions referred to it by the Court of Appeal could have wider implications for Government strategies across a range of sectors.

The firm was commenting on a decision by the Court of Appeal last week in relation to Food Vision 2030 (FV2030), a Government strategy developed for the Irish agri-food sector.  

Friends of the Irish Environment (FIE) has appealed a High Court ruling in a case that centres on whether the 2030 strategy requires an ‘appropriate assessment’ (AA). 

Philip Lee lawyers note that, under article 6(3) of the EU Habitats Directive, an AA is required where a plan or project is likely to have a significant effect on a European site – designated or proposed for designation under the Habitats Directive or the Birds Directive. 

Position ‘not clear cut’ 

Ms Justice Butler, in her judgment, said that, while she was “minded to agree” with the trial judge that FV2030 was a plan that, in practical terms, was incapable of being the subject of a meaningful AA, the position was not clear cut. 

The questions referred to the CJEU are: 

• Is a high-level policy or strategy like Food Vision 2030 is capable of being deemed a “plan or project” for the purposes of the Habitats Directive?
• If it can be deemed a plan or project under article 6(3), can it constitute such a plan or project if it does not contain measures that are specific enough to allow them to be quantified and assessed in accordance with the requirements of article 6(3)?and
• If the answer to the second question is ‘yes’, is it sufficient for such an AA to be carried out based on generalised environmental risks? 

In framing the questions, Ms Justice Butler also set out the key characteristics of FV2023: 

• It was adopted on a voluntary basis by a stakeholder committee,
• It is formally supported by a decision of the Government,
• It does not authorise or limit any activity,
• It does not have any mandatory or binding effects on downstream decision-makers but may have some influence in that it may be considered by such decision-makers,
• It does not set criteria by reference to which development consent decisions will be made, and
• It does not set criteria by reference to which other plans or programmes will be adopted. 

‘Broader relevance’ 

“There are many high-level strategies and policies with similar characteristics adopted by Government for a variety of sectors and that have similar characteristics,” the Philip Lee lawyers point out. 

They cite as an example the Planning and Development Act 2000, which requires planning authorities to have regard to the policies of the Government and ministers, even where such policies are non-binding. 

“Therefore, the ruling of the EU court in this case is likely to have broader application and relevance,” they conclude, adding that those in the agri-food sector will be hoping for a “sensible and timely” outcome from the CJEU.