Contents
Judgment of the Court (Fifth Chamber)16 April 2026note(Reference for a preliminary ruling — Environment — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Article 12 — System of strict protection for certain animal species — Article 16 — Decision to grant a derogation in anticipation of a planning permission application for a project covered by Directive 2011/92/EU — Article 11 — Aarhus Convention — Article 9 — Procedural autonomy — Principles of equivalence and effectiveness — Derogation decision classified as an autonomous legal act — Procedural rules providing for a three-month period for seeking the annulment of a derogation licence)In Case C‑58/24,REQUEST for a preliminary ruling under Article 267 TFEU from the High Court (Ireland), made by decision of 21 December 2023, received at the Court on 26 January 2024, in the proceedingsNE,MY,HJ,XF,WB,UV,VK,JU,RJ,DZvAn Coimisiún Pleanála, formerly An Bord Pleanála,Minister for Housing, Local Government and Heritage,Ireland,The Attorney General,notice party:Drumakilla Limited,THE COURT (Fifth Chamber),composed of M.L. Arastey Sahún, President of the Chamber, J. Passer (Rapporteur), E. Regan, D. Gratsias and B. Smulders, Judges,Advocate General: L. Medina,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– NE, MY, HJ, XF, WB, UV, VK, JU, RJ, DZ, by N. Steen, Senior Counsel, J. Kenny, Barrister-at-Law, and F. Logue, Solicitor,– the Minister for Housing, Local Government and Heritage, Ireland and the Attorney General, by M. Browne, Chief State Solicitor, A. Burke, A. Joyce and B. Slattery, acting as Agents, and by D. Browne, Senior Counsel, and J. Fitzsimons, Senior Counsel,– the European Commission, by D. Milanowska, M. Noll-Ehlers and N. Ruiz García, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 11 September 2025,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of, inter alia, Article 16(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7; ‘the Habitats Directive’) and of Article 11 of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘the EIA Directive’).
2The request has been made in the context of a dispute between a number of natural persons and An Coimisiún Pleanála, formerly An Bord Pleanála (Planning Commission, Ireland; ‘the Board’) and the Minister for Housing, Local Government and Heritage (Ireland), Ireland and the Attorney General (Ireland) in relation to the legality of a derogation licence granted to Drumakilla Limited (‘the developer’) for an application for planning permission for a project involving the construction of residential units.
Legal context
International law
3Article 9 of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed at Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1; ‘the Aarhus Convention’), provides, in paragraphs 2, 3 and 5 thereof:2.Each Party shall, within the framework of its national legislation, ensure that members of the public concerned:(a) having a sufficient interest or, alternatively,(b) maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 2(5) shall be deemed sufficient for the purpose of subparagraph (a) above. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.…5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.’
European Union law
The Habitats Directive
4Article 12 of the Habitats Directive provides:1.Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:…(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;…(d) deterioration or destruction of breeding sites or resting places.…’
5Article 16(1) of that directive is worded as follows:‘Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15(a) and (b):(a) in the interest of protecting wild fauna and flora and conserving natural habitats;…’
The EIA Directive
6Under Article 1(2) of the EIA Directive:‘For the purposes of this Directive, the following definitions shall apply:(a) “project” means:– the execution of construction works or of other installations or schemes,– other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;…(c) “development consent” means the decision of the competent authority or authorities which entitles the developer to proceed with the project;…(g) “environmental impact assessment” means a process consisting of:(i) the preparation of an environmental impact assessment report by the developer, as referred to in Article 5(1) and (2);(ii) the carrying out of consultations as referred to in Article 6 and, where relevant, Article 7;(iii) the examination by the competent authority of the information presented in the environmental impact assessment report and any supplementary information provided, where necessary, by the developer in accordance with Article 5(3), and any relevant information received through the consultations under Articles 6 and 7;(iv) the reasoned conclusion by the competent authority on the significant effects of the project on the environment, taking into account the results of the examination referred to in point (iii) and, where appropriate, its own supplementary examination; and(v) the integration of the competent authority’s reasoned conclusion into any of the decisions referred to in Article 8a.’
7Article 2(1) of that directive provides:‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’
8Article 4(2) and (5) of the said directive provides:2.Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:(a) a case-by-case examination;or(b) thresholds or criteria set by the Member State.Member States may decide to apply both procedures referred to in points (a) and (b).…5.The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall be made available to the public and:(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.’
9According to Article 11 of the same directive:1.Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:(a) having a sufficient interest, or alternatively;(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.2. Member States shall determine at what stage the decisions, acts or omissions may be challenged.…5. In order to further the effectiveness of the provisions of this Article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.’
Irish Law
2011 Regulations
10Regulation 51(2) of the European Communities (Birds and Natural Habitats) Regulations 2011 (‘the 2011 Regulations’) provides:‘Notwithstanding any consent, statutory or otherwise, given to a person by a public authority or held by a person, except in accordance with a licence granted by the Minister under Regulation 54, a person who in respect of the species referred to in Part 1 of the First Schedule—…(b) deliberately disturbs these species particularly during the period of breeding, rearing, hibernation and migration,…(d) damages or destroys a breeding site or resting place of such an animal, ……shall be guilty of an offence.’
11Regulation 54 of the 2011 Regulations provides:(1) Any person may apply to the Minister, or the Minister or Ministers of Government with responsibilities for fish species referred to in Part 2 of the First Schedule, for a derogation licence from complying with the requirements of the provisions of Regulations 51, 52 and 53.(2)Where there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species to which the Habitats Directive relates at a favourable conservation status in their natural range, the Minister, or the Minister or Ministers of Government with responsibilities for fish species referred to in the Fourth Schedule, may grant such a derogation licence to one or more persons, where it is—(a) in the interests of protecting wild fauna and flora and conserving natural habitats,…(c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment,…(3) A derogation licence granted under paragraph (2) shall be subject to such conditions, restrictions, limitations or requirements as the Minister considers appropriate.(4) Any conditions, restrictions, limitations or requirements to which a derogation licence under paragraph (2) is subject shall be specified therein.…’
The RSC
12Order 84, rule 21 of the Rules of the Superior Courts (S.I. No 691 of 2011), in the version applicable to the dispute in the main proceedings (‘the RSC’), states:(1) An application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose.(2) Where the relief sought is an order of certiorari in respect of any [judgment], order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that [judgment], order, conviction or proceeding.(3)Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that: —(a) there is good and sufficient reason for doing so, and(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either —(i) were outside the control of, or(ii) could not reasonably have been anticipated bythe applicant for such extension.(4) In considering whether good and sufficient reason exists for the purposes of sub-rule (3), the court may have regard to the effect which an extension of the period referred to in that sub-rule might have on a respondent or third party.(5) An application for an extension referred to in sub-rule (3) shall be grounded upon an affidavit sworn by or on behalf of the applicant which shall set out the reasons for the applicant’s failure to make the application for leave within the period prescribed by sub-rule (1) and shall verify any facts relied on in support of those reasons.…’
Planning and Development Act
13Section 50 of the Planning and Development Act, 2000, in the version applicable to the dispute in the main proceedings, entitled ‘Judicial review of applications, appeals, referrals and other matters’, provides, in subsections (6) and (8) thereof:(6) Subject to subsection (8), an application for leave to apply for judicial review … in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of [eight] weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate.…(8)The High Court may extend the period provided for in subsection (6) or (7) within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that—(a) there is good and sufficient reason for doing so, and(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
14The dispute in the main proceedings concerns a project for the construction of residential units in the former Carmelite monastery in Delgany, located in County Wicklow (Ireland).
15In anticipation of a development consent application for that project, the developer submitted to the competent authorities, on 17 January 2020, an application for a derogation licence under Regulation 54 of the 2011 Regulations in respect of bats, an animal species strictly protected under Annex IV to the Habitats Directive. That licence was issued to it on 4 March 2020. On 21 July 2020, a revised derogation licence (‘the derogation licence’) was granted to the developer, following a request that it had made to that effect, in order to include brown long-eared bats.
16On 21 October 2020, the developer submitted an application for planning permission. That application was accompanied by an environmental impact assessment screening report. The derogation licence was appended to the application documentation.
17On 15 February 2021, the Board granted planning permission, after having concluded that the proposed development, by reason of the nature and location of the site, would not be likely to have significant effects on the environment.
18On 25 March 2021, proceedings were brought seeking to have quashed the decision to issue the planning permission and the derogation licence.
19On 19 April 2021, the High Court (Ireland), which is the referring court, granted leave to seek judicial review and ordered a stay of execution of the works which were the subject of the planning permission.
20On 5 July 2023, the referring court dismissed the application to quash the decision to issue the planning permission and postponed the examination of the derogation licence. It states, in that regard, that the applicants in the main proceedings failed to challenge that derogation licence in support of their action against the decision to issue the planning permission and that, consequently, that action was dismissed even though the challenge to the said derogation licence remains outstanding.
21As regards the application to quash the derogation licence, the referring court notes, first, that, although that licence denies the existence of satisfactory alternatives to the grant of the derogation, it does not appear from the file that alternatives with less impact on strictly protected species, or indeed a solution consisting in not issuing the licence, were examined. Second, it observes that, according to that licence, it is issued in the interests of protecting the species concerned. According to the referring court, that conclusion is manifestly unreasonable and indeed absurd in the present case.
22However, that court indicates that, in so far as, under Irish law, a derogation licence under Regulation 54 of the 2011 Regulations constitutes not an interim decision but, on the contrary, a separate substantive decision, such a licence must be challenged individually within the statutory three-month period, provided for in this case in Order 84, rule 21 of the RSC. In principle, that period runs from the date on which the derogation is granted. The said court nevertheless states that the power to extend that period, provided for in Order 84, rule 21(3) of the RSC, may and must be exercised in such a way that that period starts to run from the date on which the applicant knew, or could reasonably have become aware, of the contested decision. In that regard, it indicates that, in this case, that date is the date of submission of the planning permission application, to which documentation containing, inter alia, that derogation licence was appended, and that the applicants in the main proceedings did not challenge that licence within three months of that date.
23The referring court concludes that, in so far as it seeks to have quashed the derogation licence, the application is out of time and should be dismissed, subject to any rule of EU law which requires a contrary result. That court was inclined to the view that there was no such rule, but that that position did not appear to be completely beyond doubt and therefore that it was appropriate to refer the matter to the Court of Justice.
24It is in those circumstances that the High Court (Ireland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Does Article 11 of [the EIA Directive] read in the light of the principle of wide access to justice under Article 9(2) of the Aarhus Convention have the effect that, in a case where a project within the meaning of Article 1(2)(a) of [that directive] the subject of an application for development consent (the “primary consent”) cannot be carried out without the developer having first obtained another permission (the “secondary consent”), and where the authority competent for granting the primary consent for such a project retains the ability to assess the project's environmental impact more strictly than was done in the secondary consent, such a secondary consent (if granted prior to the primary consent) is to be treated as forming part of the development consent procedure for purposes other than in relation to the scope of matters to be considered or assessed under [the EIA Directive], either generally or where the secondary consent is a decision adopted under Article 16(1) of [the Habitats Directive] and which authorises a developer to derogate from the applicable species protection measures in order to carry out the project?(2) If the answer to the first question is Yes, does Article 11 of [the EIA Directive] read in the light of the principle of wide access to justice under Article 9(2) of the Aarhus Convention have the effect that national domestic rules as to the date on which time commences to run to challenge the validity of a decision adopted under Article 16(1) of [the Habitats Directive] (the “secondary consent”) must be interpreted so as to preclude that time from commencing to run prior to the date of adoption of the development consent concerned (the “primary consent”), either generally or in a case where: (i) the project was subject to the case-by-case examination envisaged by Article 4(2)(a) of [the EIA Directive], and/or (ii) the determination under Article 4(5) for the purposes of the primary consent was made after the secondary consent had been granted and simultaneously with the decision on the primary consent, and/or (iii) the proceedings challenging the validity of the secondary consent do not contain any ground challenging the relevant primary consent by reference to the asserted invalidity of the secondary consent, and/or (iv) the applicant fails to apply for an extension of time to bring the challenge to the secondary consent, which application is required by domestic law for a late challenge in the absence of any EU law rule to the contrary?(3) If the answer to the first question is Yes and if the answer to the second question in general is No, does [the EIA Directive] read in the light of Article 47 of the Charter of Fundamental Rights [of the European Union (‘the Charter’)] and/or the principle of wide access to justice under Article 9(2) of the Aarhus Convention have the effect that a time limit provided by the domestic law of a [M]ember [S]tate for the bringing of proceedings to assert a right under that [d]irective, must be reasonably foreseeable, but does not have to be expressly specified in legislation in accordance with Article 11(2) of [the EIA Directive] and/or in practical information made available to the public on access to administrative and judicial review procedures pursuant to Article 11(5) of [the EIA Directive] and/or definitively determined with certainty by domestic case[-]law, so that the answer to the second question is unaffected by provision being made in the domestic law of a [M]ember [S]tate for a foreseeable time limit of a general nature which applies to public law actions generally including for the bringing of proceedings challenging a decision adopted under Article 16(1) of [the Habitats Directive] and which authorises a developer to derogate from the applicable species protection measures in order to carry out the project, albeit that this is implicit rather than explicit in the domestic law concerned?(4) If the answer to the first question is Yes and either the answer to the second question is Yes or the answer to the third question is No, does Article 16(1) of [the Habitats Directive] have the effect that a competent authority cannot conclude that there is “no satisfactory alternative” to a decision which authorises a developer to derogate from the applicable species protection measures in order to carry out a project within the meaning of Article 1(2)(a) of [the EIA Directive] unless the competent authority actually considers alternatives such as alternative location or design, or refusal of the derogation?(5) If the answer to the first question is Yes and either the answer to the second question is Yes or the answer to the third question is No, does Article 16(1) of [the Habitats Directive] have the effect that a competent authority cannot conclude that it is “in the interest of protecting wild fauna and flora and conserving natural habitats” to grant a decision which authorises a developer to derogate from the applicable species protection measures in order to carry out a project within the meaning of Article 1(2)(a) of [the EIA Directive] unless some identified protection is created by the derogation itself rather than by mitigation measures adopted to reduce or compensate for the detriment created by the steps authorised by the derogation decision?’
Consideration of the questions referred
The first three questions
25By its first three questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 11 of the EIA Directive, read in the light of Article 9 of the Aarhus Convention and Article 47 of the Charter, must be interpreted as precluding a rule provided for by the law of a Member State whereby an action for annulment of a derogation licence, which has been issued pursuant to Article 16 of the Habitats Directive and which forms part of the development consent procedure for the purposes of Article 1(2)(a) of the EIA Directive, must be brought by the public concerned within a period of three months from the time when that public knew or could reasonably have become aware of such a derogation.
26In the first place, it is appropriate to recall that the Court has held that, in the specific case where, first, the execution of a project that is subject to the dual requirement for assessment and development consent laid down in Article 2(1) of the EIA Directive involves the developer applying for and obtaining a derogation from the plant and animal species protection measures prescribed in the provisions of national law transposing Articles 12 and 13 of the Habitats Directive and where, second, a Member State confers power to grant such a derogation on an authority other than the one on which it confers power to give development consent for the project, that potential derogation must necessarily be adopted before development consent is given. If it were otherwise, the development consent would be given on an incomplete basis and would not, therefore, meet the applicable requirements (see, to that effect, judgment of 24 February 2022, Namur-Est Environnement, C‑463/20, EU:C:2022:121, paragraphs 52 and 59).
27The Court has also held that the partial assessment thus carried out by an authority other than the one on which the Member State concerned confers the power to give development consent for the project and the derogation adopted by that authority must not prejudge, first, the overall assessment that the authority competent for granting development consent must in any event carry out and, second, the decision adopted on the conclusion of that overall assessment. Indeed, that overall assessment may lead the competent authority to conclude that, having regard to the interaction or interrelationship between the various environmental effects of a project, those effects must be assessed more strictly or, as the case may be, less strictly than one or other effect, considered in isolation, has been assessed beforehand (see, to that effect, judgment of 24 February 2022, Namur-Est Environnement, C‑463/20, EU:C:2022:121, paragraphs 61 and 62).
28Accordingly, the Court has held that a decision adopted under Article 16(1) of the Habitats Directive which authorises a developer to derogate from the applicable species protection measures in order to carry out a project within the meaning of Article 1(2)(a) of the EIA Directive forms part of the development consent procedure, for the purposes of Article 1(2)(c) of the latter directive, where, first, the project cannot be carried out without a derogation under the Habitats Directive and, second, the authority competent for granting development consent for such a project retains the ability to assess the project’s environmental impact more strictly than was done in the said derogation (judgment of 24 February 2022, Namur-Est Environnement, C‑463/20, EU:C:2022:121, paragraph 66).
29In the second place, it is worth noting that Article 11(1) of the EIA Directive provides that Member States are to ensure that, in accordance with the relevant national legal system, members of the public concerned having a sufficient interest in bringing proceedings have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of that directive. Article 11(5) of that directive provides, moreover, that, in order to further the effectiveness of the provisions of that article, Member States are to ensure that practical information is made available to the public on access to administrative and judicial review procedures.
30Thus, on the one hand, Article 11(1) and (5) implements, in the specific context of the EIA Directive, Article 9(2) and (5) of the Aarhus Convention. That convention, the provisions of which form an integral part of the EU legal order (judgment of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 30), provides, in Article 9(2) and (5) thereof, that each party to that convention is to ensure, inter alia, first, that members of the public concerned having a sufficient interest in bringing proceedings have access to a review procedure before a court of law to challenge the legality of any decision subject to the provisions of Article 6 of that convention and, second, that, in order to further the effectiveness of the provisions of that Article 9, that information is provided to the public on access to administrative and judicial review procedures.
31Furthermore, in view of its content, Article 11(1) of the EIA Directive also gives concrete expression to the Member States’ obligation to ensure effective judicial protection of the rights conferred by EU law as referred to in Article 47 of the Charter.
32On the other hand, although the Habitats Directive does not contain a provision equivalent to Article 11 of the EIA Directive specifying the detailed procedural rules governing actions against a derogation decision, it should be recalled that, in so far as concerns a species protected by the Habitats Directive, it is for the national court, in order to ensure, in the fields covered by EU environmental law, effective judicial protection as guaranteed by Article 47 of the Charter, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention, according to which each party to that convention is to ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment (see, to that effect, judgments of 8 March 2011, Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 50, and of 8 November 2022, Deutsche Umwelthilfe (Approval of motor vehicles), C‑873/19, EU:C:2022:857, paragraph 66).
33It follows that, in the specific scenario referred to in paragraphs 28 to 30 of the present judgment, the derogation decision adopted under Article 16(1) of the Habitats Directive and the development consent decision within the meaning of Article 1(2)(c) of the EIA Directive must be capable of being challenged in proceedings, the former decision in accordance with Article 9(3) of the Aarhus Convention and the latter decision under Article 11(1) of the EIA Directive.
34That obligation to ensure the possibility of bringing proceedings against those decisions does not mean, however, that those proceedings must be brought against those decisions together or that they must be brought separately against each of them.
35In the third place, it should be noted that neither the EIA Directive nor other provisions of EU law specify the detailed procedural rules governing actions against a derogation decision adopted under Article 16(1) of the Habitats Directive or against a development consent decision within the meaning of Article 1(2)(c) of the EIA Directive. In particular, EU law does not specify either the period for bringing proceedings or the starting point of such a period.
36Consequently, in the specific scenario referred to in paragraphs 28 to 30 of the present judgment, EU law does not require that those decisions be treated, for the purposes of exercising the right to bring proceedings against them, as a single decision, together with a single period for bringing an action.
37Likewise, EU law does not require that, where a derogation is granted under Article 16 of the Habitats Directive, which forms part of the development consent procedure for a project for the purposes of Article 1(2)(c) of the EIA Directive, the period for bringing an action must begin to run only from the adoption or publication of such development consent.
38However, according to settled case-law, in the absence of EU rules in the field, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, second, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (judgment of 15 June 2023, Eco Advocacy, C‑721/21, EU:C:2023:477, paragraph 21 and the case-law cited).
39So far as concerns, in the first place, the principle of effectiveness, a period for bringing an action of three months from the date of the adoption of a derogation decision under Article 16 of the Habitats Directive or, as the case may be, from the time when the applicant knew, or could reasonably have become aware, of that adoption does not appear to render virtually impossible or excessively difficult the exercise of rights conferred by EU law.
40First, the fact that such a period for bringing proceedings runs, in principle, before the completion of the development consent procedure, referred to in Article 1(2)(c) of the EIA Directive, does not appear to be such as to deprive of their effectiveness the proceedings which may thus be brought.
41On the one hand, that circumstance does not preclude the compatibility of a derogation decision adopted under Article 16(1) of the Habitats Directive in the light of all the requirements to which its adoption is subject under that provision from being open to challenge by the public concerned and reviewed by the competent court.
42On the other hand, while it is true that the corollary of that circumstance is that such a derogation becomes final upon expiry of the period for bringing proceedings, that same circumstance does not, however, mean that the consent for the project, within the meaning of Article 1(2)(c) of the EIA Directive, cannot be challenged by the public concerned and reviewed by a court in an effective manner, in particular in the light of the possible interaction between the various environmental effects of a project, as referred to in paragraph 27 of the present judgment.
43Admittedly, challenging a derogation decision in isolation before the development consent procedure has been completed may necessitate a certain degree of coordination between the competent administrative and judicial authorities in order to ensure (i) that the authority empowered to consent to a project within the meaning of Article 1(2)(a) of the EIA Directive takes adequate account of partial assessments which have already been the subject of judicial proceedings, and (ii) the judicial review of the development consent decision within the meaning of Article 1(2)(c) of that directive. However, that fact cannot in itself undermine the principle of effectiveness, since, under the applicable national legislation, the compatibility of both the derogation decision under Article 16 of the Habitats Directive and that of the development consent decision within the meaning of Article 1(2)(c) of the EIA Directive with all provisions of EU law may be challenged by the public concerned and reviewed by the competent court, account being had of Article 47 of the Charter.
44Second, it should be recalled that the Court has recognised that it is compatible with the principle of effectiveness to lay down reasonable time limits for bringing proceedings in the interests of legal certainty which protects both the individual and the authorities concerned, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (judgment of 7 November 2019, Flausch and Others, C‑280/18, EU:C:2019:928, paragraph 54 and the case-law cited).
45Apart from the fact that a period of three months from the time when a person knew or could reasonably have been aware of an act appears sufficient to enable that person to prepare his or her action, the Court does not regard as an excessive difficulty the imposition of periods for bringing proceedings which start to run only from the date on which the person concerned knew of the adoption of the decision at issue or, at least, could reasonably have become aware of it (see, to that effect, judgment of 7 November 2019, Flausch and Others, C‑280/18, EU:C:2019:928, paragraph 55 and the case-law cited).
46However, in order for that period for bringing proceedings to begin to run, it is important that that knowledge, or indeed that possibility of having become aware, relate not only to the operative part but also to the grounds of the decision at issue. Such knowledge or awareness is a precondition for the effectiveness of the right to bring proceedings.
47Furthermore, in order for the principle of effectiveness to be observed, it is also important that, in the specific scenario referred to in paragraphs 28 to 30 of the present judgment, the applicants in the main proceedings could reasonably have foreseen the legal remedies available to them and the time limits applicable to them.
48In that regard, in so far as Article 9(5) of the Aarhus Convention provides that, in order to further the effectiveness of the provisions of that Article 9, which includes paragraph 3 thereof, each party to that convention is to ensure that information is provided to the public on access to administrative or judicial review procedures, a requirement, moreover, implemented, in the specific context of the EIA Directive, in Article 11(5) thereof, it should be noted that, in particular, in the scenario referred to in paragraphs 28 to 30 of the present judgment, that information should state that the bringing of proceedings against a derogation decision under Article 16 of the Habitats Directive must be done within three months of the time when the applicant could reasonably have become aware of the adoption of that decision.
49However, the failure to make such information available to the public is not sufficient, in itself, to infer that the principle of effectiveness has been infringed. As is apparent from the wording of Article 9(5) of the Aarhus Convention, which is confirmed, moreover, by that of Article 11(5) of the EIA Directive, the making available of that information is intended solely to further the effectiveness of the provisions of that Article 9.
50In the case at hand, it is not disputed that the period for bringing an action of three months from the time when the applicant could reasonably have become aware of the adoption of that decision corresponds to the period for bringing proceedings referred to by the RSC, namely a legislative act the publication of which ensures that the public has been able to become aware of that period.
51However, since, in the specific scenario referred to in paragraphs 28 to 30 of the present judgment, Member States may determine that proceedings against the derogation decision adopted under Article 16(1) of the Habitats Directive must be brought within three months of its adoption or that they must be brought from the adoption of the development consent decision within the meaning of Article 1(2)(c) of the EIA Directive, it is important for the referring court to assess whether, in the light of all the circumstances of the case, the applicants in the main proceedings were reasonably in a position to know, and at the latest at the time when they were able to become aware of the derogation decision adopted under Article 16(1) of the Habitats Directive, that they could bring an action against that decision within a period of three months from its adoption or from the time when they knew of it.
52In the second place, as regards the principle of equivalence, it is not apparent from the documents before the Court that there is a provision in Irish law which provides for a period more favourable than that referred to in Order 84, rule 21 of the RSC.
53In the light of all the foregoing considerations, the answer to the first to third questions is that Article 11 of the EIA Directive, read in the light of Article 9 of the Aarhus Convention and Article 47 of the Charter, must be interpreted as not precluding a rule provided for by the law of a Member State whereby an action for annulment of a derogation licence, which has been issued pursuant to Article 16 of the Habitats Directive and which forms part of the development consent procedure for the purposes of Article 1(2)(a) of the EIA Directive, must be brought by the public concerned within a period of three months from the time when that public knew or could reasonably have become aware of such a derogation, provided that such a rule of law is not less favourable than those governing similar domestic actions (principle of equivalence) and does not render virtually impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness).
Fourth and fifth questions
54In light of the answer to the first three questions, there is no need to answer the fourth and fifth questions.
Costs
55Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Fifth Chamber) hereby rules: Article 11 of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014, read in the light of Article 9 of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed at Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, and Article 47 of the Charter of Fundamental Rights of the European Union,must be interpreted as not precluding a rule provided for by the law of a Member State whereby an action for annulment of a derogation licence, which has been issued pursuant to Article 16 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora and which forms part of the development consent procedure for the purposes of Article 1(2)(a) of Directive 2011/92, as amended by Directive 2014/52, must be brought by the public concerned within a period of three months from the time when that public knew or could reasonably have become aware of such a derogation, provided that such a rule of law is not less favourable than those governing similar domestic actions (principle of equivalence) and does not render virtually impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness).
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