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accordance with Article 5 of the No 101 of 1996. Yet more correspondence Directive; ensued regarding Complaint No P 95/4724 concerning afforestation and Complaint No P 95/4219 concerning peat extraction.

(e) correctly to define the information to be provided to the public in accordance with Article 6(2) of the Directive; Legal analysis

6. The present dispute concerns the mea- sures adopted by Ireland for the transposi- tion of the Directive into national law. (f) correctly to define the information to be provided to the other Member States in accordance with Article 7 of the Directive;

tivated land or semi-natural areas for instrument and consistent with the aims intensive agricultural purposes; initial and rules of the Directive, for the prior afforestation or land reclamation; and assessment of under-threshold projects. extraction of peat. As grounds for its submission that the thresholds set by the Irish authorities infringe the Directive, the Commission makes a number of general points regarding all three classes of project to be considered by the Court. It then puts forward the arguments on the basis of which the infringements imputed to Ireland should be considered to be fully borne out Likewise, the Irish authorities did not take in respect of the separate grounds of action. due account of the way in which projects of the classes at issue may, because of their progressive effects over time (hereinafter 'incremental effects'), have a significant impact on the environment even though they do not exceed the thresholds set. Moreover, where various interested parties undertake a number of separate projects, none of which exceeds the thresholds, but which are carried out at the same time and in adjoining areas, their cumulative or Those general points may be briefly sum- incremental effects may cause environmen- marised as follows. tal damage and should not therefore be exempted from prior assessment under the Directive.

12. In response, the Commission claims that it referred to the problem of cumula- tive and incremental effects with the sole and transparent aim of elucidating and developing the argument set out in the reasoned opinion to the effect that the Objection as to the admissibility of certain thresholds system adopted by Ireland incor- pleas and the related evidence rectly transposes the Directive precisely because Ireland neglected to evaluate, not only the size-capacity factor, but also other characteristics of projects; the problem of cumulative and incremental effects should therefore be viewed in relation to that of sensitivity of location, that is to say, of the location of projects in areas of potential significance in terms of environmental 11. Ireland submits that the Commission impact, a point already raised by the did not raise the above objection either Commission during the pre-litigation pro- during the administrative procedure or in cedure. the reasoned opinion. Accordingly, it con- stitutes a new plea and is therefore inad- missible, the Court having consistently held that, in proceedings against a Member State under Article 169 of the Treaty, the Commission may not raise before the Court pleas other than those relied on during the pre-litigation procedure. Ireland also main- 13. As regards Ireland's contention that tains that the evidence produced by the certain evidence is inadmissible, the Com- Commission in relation to the alleged mission explains that it had produced environmental impact of the cumulative factual examples of the practical repercus- and incremental effects of projects — argu- sions of Ireland's failure to fulfil its obliga- ments which, in Ireland's view, the Com- tions in the matter of thresholds. Moreover, mission has introduced in order to raise the information produced is, in part at new pleas before the Court — is also least, a matter of public record and is inadmissible. In gathering that evidence, associated only incidentally with informa- the Commission has relied largely, if not tion culled from other investigations pend- exclusively, on complaints submitted to it ing before the Commission, which lie out- by individuals, to which it did not refer in side the scope of these proceedings, and, in the reasoned opinion and which are the any event, available independently of such subject of separate investigations con- investigations, comprising established facts

Substance of the pleas. Preliminary obser- 14. I am inclined to agree with the Com- vations concerning the limits placed by the mission. Its argument concerning cumula- Directive on the discretionary power to set tion and incremental effects is unquestion- the thresholds at issue ably related to its complaint in the reasoned opinion, first raised during the pre-litiga- tion procedure, that the thresholds are inconsistent with the need to take into account the location of projects in areas which are sensitive but exempted from impact evaluation. Ireland's contention in 15. Before considering the merits, I should its rejoinder that, as a matter of logic, the like to make some preliminary remarks problem of cumulative and incremental effects arises independently of sensitivity of location, or the nature and size of the 2 — See the legal arguments set out in the Opinion of Advocate project, has no bearing on the complaint's General Cosmas of 26 November 1996 in Case C-157/94 Commission v Netherlands [1997] ECR I-5699: 'As the admissibility. In my view, it in no way Court has repeatedly observed, the purpose of the pre- detracts from the fact that the Commission litigation procedure is to give the Member State concerned an opportunity to comply with its obligations under views the consequences of the cumulative Community law and to avail itself of its right to defend itself against the complaints made by the Commission. and incremental development of projects Therefore the reasoned opinion with which that procedure exclusively in relation to their possible concludes must determine as clearly and specifically as possible the subject-matter of the dispute, that is to say, it impact on areas which are environmentally must contain all the particulars necessary to enable the Member State concerned to understand the factual and the sensitive. The facts relied on in that regard legal basis of the Commission's allegation that the State in by the Commission constitute evidence in question has failed to fulfil its obligations. If the reasoned opinion satisfies those requirements, the Commission's support of the arguments set out in the application will be admissible even though the arguments it contains, both factual (relating to the facts constituting reasoned opinion, but neither alter nor the situation or the conduct seen by the Commission as involving a failure by the defendant State to fulfil its extend the subject-matter of the dispute as obligations) and legal (concerning the interpretation of the delimited in the pre-litigation procedure: provisions of Community law which the Commission regards as having been infringed), may have been enhanced the substance of the infringement alleged by comparison with the arguments in the reasoned opinion, provided that such enhancement does not conceal an against Ireland, both in law and in fact, is alteration or extension to the legal and factual basis of the the same in the reasoned opinion as in the case as crystallised in the reasoned opinion.'

concerning the nature of the test which the than Article 3: whenever impact assess- Court may apply. ment is carried out, it is necessary to identify and assess in each individual case the direct and indirect effects of a project on a number of factors which collectively constitute the 'environment' to be protected (human beings, fauna and flora, soil, water and the landscape, and their interaction, Yet again, the problem before the Court material assets and cultural heritage). concerns the limits to which Member States are subject when setting thresholds pur- suant to Article 4(2). In support of their respective arguments, both the Commission and Ireland have relied on the case-law clarifying the wording of that provision. The Court has consistently held that the choices which Article 4(2) leaves to Mem- ber States are discretionary but nevertheless subject to the limitations set by Arti- cle 2(1), which provides as follows: 'Mem- ber States shall adopt all measures neces- sary to ensure that, before 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 17. The Court has considered 'absolute an assessment with regard to their effects.' thresholds', that is to say, those which have been definitively established within a single class of projects corresponding, the Court has stated, not to the large groups desig- nated numerically but to the related sub- headings which are alphabetically listed. 3 A threshold of that type marks an auto- matic cut-off point. Projects which exceed 16. In my view, that requirement is of the level set are subject to prior assessment fundamental importance for the correct and authorisation. The others are not. It application and transposition of the Direc- was this effect — precluding as it does tive as a whole. It manifestly reflects the verification in the case of below-threshold political aim of preventing ecological projects — on which the Court focused, damage (see the seventh recital in the and in Kraaijeveld it laid down a test for preamble) and therefore lays down a gen- determining whether a State has exceeded eral obligation to carry out a timely and its discretion in that regard. The Court appropriate assessment which must precede affirmed that Article 4(2) entails the need authorisation of any of the projects, public to take into account, not the characteristics or private, envisaged by the Community of a single project, but the characteristics as legislation in point. Since Article 2(1) plays a whole of projects planned which fall a pivotal role in the Directive's structure, it must be read in close conjunction, not only with Article 4(2), but with many other 3 — See Case C-133/94 Commission v Belgium [1996] ECR provisions as well. We need look no further I-2323 and Case C-72/95 Kraaijeveld [19961 ECR I-5403.

19. The Directive has thus categorised 18. However, the question arises whether projects by class and by characteristics. in the present case that is the only restric- These are parameters or reference criteria tion to which Member States are subject which the national legislature must respect under Article 2(1) in view of the underlying when transposing the Directive. What aim of taking preventive measures to pro- implications does this have for the present tect the environment. I do not think so. case? Prior assessment is a general obliga- According to the test laid down by the tion under a rule which is both binding and Court in Kraaijeveld and in the other endowed with direct effect. 4The fact that judgments referred to therein, the key is an assessment must be carried out when the to evaluate threshold levels on the basis of characteristics of projects as defined in the exclusory effect they may have with Article 2(1) so require means that this is regard to the prior assessment of an entire an obligation, one might say, as to the category of projects. No reference class result to be achieved, which is binding on may be exempted a priori from impact the Member States, whatever methods they assessment. The classes are predetermined may have chosen to implement Arti- by the Directive and listed in either Annex I cle 4(2). To put it more clearly, for present or Annex II, according to whether the purposes: if the preferred mechanism is the projects envisaged therein (see the sixth threshold system, the Member States must and seventh recitals) — which are in any take all measures necessary when adopting event presumed to be significant in terms of it to ensure that impact assessment is environmental impact — are subject to the carried out whenever a project exhibits, assessment procedure governed by Arti- together with the other characteristics, that cles 5 to 10 directly (Annex I), or indirectly of being located in a sensitive area, and is (Annex II), through the choices left to Member States, such as the setting of thresholds. Member States may make the 4 — See Kraaijeveld (cited in footnote 3), paragraph 43.

likely to have a significant impact on the the environment, it is inherently more environment. limited and less secure than supervision on a case-by-case basis, which is precisely why the 'margin' — in the words of the Court — of discretion left to Member States must be assessed by reference to specific standards. Admittedly, in Kraaije- veld, the Court rejected the Commission's argument that the setting of a threshold did 20. Moreover, as the Court observed in not relieve the State in question of the Kraaijeveld, there are certain standards obligation to determine whether each pro- which must always be met if thresholds ject met the criteria laid down in Arti- are to be justified. There is more than one cle 2(1). 5 The Court pointed out that reason for this. By operation of Arti- Article 4(2) expressly permits the setting cle 2(1), national authorities do not enjoy of thresholds and there is no reason why, a broader discretion if they opt for thresh- once the Member State concerned has olds than if they use other methods of chosen that option, each project should transposition available to them under Arti- still be subject to individual assessment on cle 4(2). There are indeed other options the basis of the criteria laid down in open to them provided, of course, that the Article 2. That is the clear and inescapable obligation as to the result to be achieved, conclusion. If, however, a threshold has not laid down by Article 2(1), is not thereby been set for the class of projects at issue (or circumvented or breached. Let us consider, if a threshold has been set, but is incon- for example, the case where a Member sistent with the Directive), the obligation State decides that it need not set the under Article 2(1) to determine in the case threshold at a level which makes sufficient of each individual project whether or not, allowance for sensitivity of location, in the light of its particular characteristics, because that would be either technically it must undergo assessment, arises anew. difficult or impracticable for some other Advocate General Mischo made this clear reason. The State in question may make in his Opinion of 12 March 1998. 6 provision for the areas most at risk of environmental damage by means of specific projects subject to impact assessment, waiving the threshold in such cases and arranging for another, more suitable, method of prior verification for the projects affected.

version of Article 4(2) in Directive 97/11/ the theoretical and the practical level — EC, 7which replaces Directive 85/337/EEC. which is to identify, for each class of According to the new wording of that project, which projects should be subject provision, the Member States are to deter- to impact assessment and which should mine through a case-by-case examination not. Its effect, however, is to exempt a or by means of thresholds or criteria, or by priori virtually the entire class to which the both procedures together, whether any projects at issue belong. In the present case, project listed in Annex II should be made however, the question is not whether but subject to an assessment in accordance with how the threshold mechanism distinguishes Articles 5 to 10. The abstract thresholds the projects which are significant in terms mechanism and in concreto verification are of environmental impact from the others deemed to be equivalent and may even be within the same class. That problem, too, combined. Limited discretion is conferred concerns the discretionary power enjoyed here, as is also true of the test to be applied by the Member States and must be taken to the facts at issue. The version of fully into account when it comes to defin- Article 2(1) set out in Directive 97/11/EC ing the correct exercise of that power. I is substantially the same as in Directive have already pointed this out. Let me stress 85/337/EEC. Where a threshold is set, it that point, but with a different emphasis: if displaces the requirement, which would the threshold is adopted in breach of the otherwise apply, that each individual pro- criteria laid down in Article 2(1), the rules ject must be assessed. This confirms that, applying to projects (and to the related according to both versions of the legisla- 'developers', pursuant to Article 1(2) of the tion, thresholds may not be set which are at Directive) will, in my view, be tainted by variance with the aims of specific assess- unlawful discrimination, according to whe- ment or in disregard of any of the char- ther prior assessment is excluded or per- acteristics on the basis of which Article 2 mitted. For the purposes of prior assess- provides that impact assessments should be ment, the Directive in principle treats all carried out. the projects envisaged therein in the same way: Member States may at their discretion use thresholds (or similar mechanisms) in order to distinguish between projects only if they are consistent with the wording and purpose of Article 2(1).

Member States, provided, of course, that sary to comply with the obligation of prior they are consistent with Article 2(1). In the assessment; that obligation is laid down in following analysis of the separate grounds respect of projects which are likely to have of action, that is the test that I propose to a significant environmental impact and apply. 8 those, in the Commission's view, are the projects which concern 'sensitive' areas within the meaning considered above. If this is the thrust of the pleas under examination — and, in my view, it is — the only evidence that the Commission may

26. As I mentioned above, Ireland contends that the Commission is under such an obligation. The most important point made by the Commission in response is the following: the proceedings which it has initiated concern the conformity of the Irish measures with the Directive, and the failure imputed to the defendant State is that of Projects for the use of uncultivated land or not having adopted the provisions neces- semi-natural areas for intensive agricultural purposes (Annex II, point 1(b)) 8 — In a sense, the Kraaijeveld test can be applied in the present

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(EIA) of certain areas to be carried out in listing as Natural Heritage Areas has been respect of projects for the use of unculti- proposed. vated land or semi-natural areas for inten- sive agricultural purposes, where the area concerned exceeds 100 hectares. The threshold was set at that level by virtue of Article 24 of the First Schedule, in con- junction with other provisions concerning land reclamation.

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overgrazing, wherever practised, exhibits into the existing authorisation procedures, the characteristics which, according to the or into other procedures or into procedures Directive, call for impact assessment. Ire- to be established in the legal systems of the land contests this on the abovementioned Member States. Accordingly, all these pro- grounds and also argues that in Ireland the cedures must be designed to achieve the environmental impact of grazing is mon- same aims as the Directive: the obligation itored under programmes established by of prior assessment, as laid down by Community regulations and designed to Article 2(1), is binding on the Member discourage intensive grazing, while the States when they introduce those other grant of financial assistance is subject to procedures into their respective legal sys- the condition that the farmers concerned tems, just as their discretion is limited in the must participate in the management of the cases provided for in Article 4(2). Rural Environmental Protection Schemes instituted by the defendant State.

If that is the position, then these other internal procedures, far from supplement- ing the Community legislative arrange- ments in point, run counter to them. In any event, Ireland cannot rely on the fact that it has provided for such procedures in order to rebut the Commission's allegation. 36. In bringing this problem to the Court's attention, the Commission refers once again to Ireland's obligation to determine the threshold in the light of the character- istics of projects. More specifically, how- ever, this entails the need to gauge how 35. The grounds for concluding that the projects should be evaluated in relation to 100 hectare threshold is not consistent with each other. That is the crucial aspect of this the Directive hold good, all the more so if plea. My analysis will focus on the project we turn to the points made by the Com- characteristics which have been mentioned mission concerning the Burren area. by the parties.

that particular kind. The Commission of whether one or more projects are argues that the threshold set is correlated involved. That is why the Commission to a sufficient extent with the factor of maintains that regard must be had both to sensitivity of location, only if it is applied incremental effects — those which develop having regard to: over time as a particular project pro- gresses — and to the effects which may follow from the cumulation of projects planned and carried out contempora- neously by separate developers in adjoining both areas which collectively encompass the 100 hectares set. Whenever a project is characterised by sensitivity of location, therefore, its prior assessment must be contemplated, subject always to verifica- (i) the individual projects planned for the tion that the area of land involved, if less area in question, which may affect than 100 hectares, exceeds that threshold relatively small areas, well below when considered in conjunction with other 100 hectares, as in the case of the areas affected by adjacent projects of the Burren, where deforestation or land same kind. conversion is fragmented, involving a number of operations and different developers;

39. Strictly speaking, this plea contests not the level of the threshold adopted in Ire- and land, but its application here, which the Commission regards as contrary to the Directive precisely because incremental and cumulative effects are not taken into account. The test is therefore: does it (ii) all the projects which, as a whole, follow from Articles 2(1) and 4(2), read affect the same area: in this context, together, that where Member States have the important factor for the purposes set thresholds, their application must be of prior assessment is therefore the full governed by the specific criterion argued impact of the operation to which the for by the Commission? projects, viewed individually or collec- tively, subject a section of the environ- ment which is recognised as deserving special protection.

excludes the cumulative and incremental tion is clearly an inevitable consequence of effects under consideration from the range the obligation to take into account even the of those that are relevant. Quite the con- indirect effects of projects on the environ- trary. Article 3 states in fact that prior ment when evaluating their characteristics. assessment is meant to identify the direct Both Directive 85/337 and the more recent and indirect effects of every project on all directive lay down that obligation in essen- the environmental factors. Incremental tially the same terms (cf. Articles 2 and 3 of effects obviously flow from the individual both directives). project, and are direct, because they are immediately linked to the progress of the operation planned by the developer. In my view, cumulative effects are also a proper subject for prior assessment, being attribu- table to the individual project, where the foreseeable impact of its characteristics is 42. I conclude, therefore, that the Commis- intensified by a conjunction of circum- sion's submissions are well founded: Ire- stances which are themselves relevant to land's failure to fulfil its obligations lies in environmental protection, such as the the fact that it did not base the threshold at aggregation of the individual project with issue on the necessary provisions enabling other projects in the sensitive area of its the incremental and cumulative effects of location. That makes it justifiable — and, projects to be taken into account in its in my view, necessary — to take cumulative application, having regard to the aforesaid effects into consideration when determin- conditions. It is therefore necessary for such ing whether the project exceeds the thresh- additional rules to be adopted, assuming old and should be subject to prior assess- Ireland maintains the threshold already set ment. and does not decide to transpose the Directive by other methods consistent with the proper exercise of its discretion.

tares, and for the replacement of broadleaf subsidies had been granted to implement high forest by conifer species where the afforestation projects: in February 1994 in area in question exceeds 10 hectares. S.I. respect of an area of 76 hectares in Dun- No 101 of 1996 altered those thresholds, ragh Loughs and Pettigo Plateau; in providing in conjunction with other Irish December 1994 in respect of an area of statutory provisions that an impact assess- 44.1 hectares in Tullytresna Bog; and in ment must be carried out in the following March 1994 in respect of an area of cases: in respect of initial afforestation, 190 hectares in Tamur Bog. Those projects when the area involved — either on its own were not subjected to environmental or taken together with other adjacent impact assessment. According to the Com- wooded areas — has come over the pre- mission, the afforestation of blanket bog ceding three years to cover more than areas involves ploughing, drainage, the use 70 hectares. Where existing woods are to of fertilisers and radical changes of vegeta- be replaced by conifer species, the thresh- tion, operations which risk damaging or old is 10 hectares. Article 24, First Sche- even destroying the ecosystem of blanket dule, Part II, 2(c)(ii) of S.I. No 349 of 1989 bog. In support of its allegation, the sets, however, a threshold of 100 hectares Commission produced evidence showing for projects where the area is to be that in many areas, designated by the Irish reclaimed for conversion to another type authorities themselves as Natural Heritage of land use. Areas (Dunragh Loughs, Pettigo Plateau, Tullytresna Bog, Tamur Bog), unmoni- tored afforestation operations are under- way. The Commission quotes scientific studies attesting to the serious or even irreversible impact which such operations 44. The Commission takes issue with that may have on the areas in question, 9and legislation in so far as it leaves below the draws particular attention to the afforesta- threshold level, and thus exempts from tion project in Dunragh Loughs and Pettigo prior assessment, afforestation projects Plateau, areas of approximately 2 000 hec- planned for areas of blanket bog or for tares, which are considered to be of great areas near waterways. The Commission scientific interest because of the undis- also contests the threshold of 100 hectares turbed blanket bog. The Commission adds set for projects concerning areas which are that the importance of that area in envi- to be reclaimed for conversion to another ronmental terms has been recognised inter- type of land use. Those grounds of action nationally (900 hectares of the Pettigo should be examined separately. Plateau are covered by the 1986 Ramsar Convention), and in the context of Council Directive 79/409/EEC in relation to which Ireland itself designated 619.2 hectares of Pettigo Plateau as an area meriting special protection. Furthermore, Pettigo Plateau and Dunragh Loughs are mentioned in a contract concluded between the European (a) Afforestation of blanket bog areas Commission and the Irish National Parks

46. Ireland contends that, following the Commission's reasoned opinion, the Law 47. In evaluating the Commission's sub- of 1 October 1996 reduced the impact missions, here as before, it should be noted assessment threshold from 200 hectares to that the applicant has focused on sensitive 70 hectares. Ireland has thus fulfilled its areas for which no prior assessment is obligations under that opinion and the required in respect of afforestation projects. The scientific reports and other evidence produced by the Commission show that the 10 — Rachel Bain and Clive Mellon, Summary Report, Survey of Breeding Birds at Pettigo Plateau, County Fermanagh, detrimental effects on the environment 1995, Royal Society for the Protection of Birds (RSPB). caused by the afforestation of peatlands is

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founded. Admittedly, Ireland contends that Commission objected in its reasoned opi- it has made provision — in respect of nion to a 200 hectare threshold and that below-threshold projects as well — for the defendant State then reduced it to monitoring the impact of afforestation, 70 hectares. The Commission also consid- both generally by statute (S.I_ No 94/97 ers the lower threshold applied as from European Communities Regulations 1997) 1 October 1996 to be inappropriate and and through administrative procedures: the submits that, in setting that level, the Irish grant of subsidies for operations of that legislature took no account of the incre- kind is thus conditional upon strict verifi- mental effect, because it exempted from cation of their compatibility with the prior assessment projects which do not protection of the environment.

the Directive: Article 1 makes arrange- level. ments for authorisation which is uncondi- tionally linked to the prior assessment of a project whenever it involves any of the matters listed in Annexes I and II. Prior assessment is incorporated in internal pro- cedures only in accordance with the condi- tions which I have described above (see point 33) and these cannot be waived by the Member States. In other words, the I shall pass over the allegation that Ireland incentive which drives the private devel- infringed Article 7 of the Directive in that it oper to seek funding has no bearing on the failed to fulfil its obligation to inform and controls required under the Directive: so consult the United Kingdom, which is an much so that the obligation to carry out interested party, given the fact that some projects, such as Pettigo Plateau, straddle

48. Using the reports on Aquafor and The Trophic Status of Lough Conn, the Com- mission has shown that afforestation in (c) Projects for land reclamation for the certain areas has a serious impact on the purposes of conversion to another type of environment because of the acidification land use and eutrophication of water. Ireland sub- mits that these reports should not be relied upon because the studies to which they relate were effected before the Directive 50. The arguments set out above must also came into force. There is no evidence, be applied to the evaluation of the 100 hec- therefore, to substantiate the Commission's tare threshold set in respect of projects for argument. Ireland's submission cannot be land reclamation for the purposes of con- upheld. It is useful to note that the two version to another type of land use, by studies merely define in scientific terms the application of Article 24, First Schedule, causal link between afforestation and the Part II, 2(c)(ii) of S.I. No 349 of 1989. The serious impact on the environment caused important case in this context is the Burren, by the acidification and eutrophication of examined earlier. Allow me to refer to my waters in certain parts of Ireland. They observations in that regard (see point 35 make an important contribution to the Court's analysis, not because they demon- strate the fact of environmental damage, 11 — See 'Evaluation of the Effects of Forestry on Surface-Water which is not an issue here (see point 26 Chemistry and Fishery Potential in Ireland', EOLAS Contract ER/90/76; N. Allott and Others, 'Stream Chem- above), but because they provide scientific istry and Forest Cover in Ten Small Western Irish guidance to the special nature of the areas Catchments' in Ecological Effects of Afforestation, Studies in the History and Ecology of Afforestation in Western in question and to the possible impact of Europe, 1993; N. Allott and M. Brennan, 'Impact of Afforestation on Inland Waters' in Water of Life, Dublin, afforestation projects located there. 1992.

52. The threshold for peat extraction pro- jects was set at 50 hectares, as laid down in Article 24, First Schedule, Part II, 2(a) of S.I. No 349 of 1989. Ireland's defence — leaving aside the arguments disposed of Projects referred to in Annex II, point 2(a): above and put forward again in this extraction of peat connection — is essentially two-fold: (i) the Commission based its allegations almost exclusively on the exceptional case of Ballyduff-Clonfinane Bog, disregarding the test laid down in Kraaijeveld, which 51. Similar considerations weigh in favour requires account to be taken of the char- of upholding the next plea which concerns acteristics of all the projects of the class at the effects on the environment of projects issue, never of one project alone; and (ii) for the extraction of peat. Such operations the threshold was set at 50 hectares may constitute — according to the Com- because the Irish legislature wished to draw mission, and I see no reason to disagree — a distinction between the commercial one of the most serious threats to the exploitation of peat and the tradition of integrity of the environment, particularly in turf-cutting, practised for centuries in rural the case of the peatlands at issue. The Ireland, that is to say the hand- cutting of extraction of peat in boggy areas involves peat by an individual for his family needs. drainage. That in turn leads to the drying out of peat-forming vegetation. The low- ering of the water table causes shrinkage of the peat content of the bog; the slope of the bog becomes more acute, increasing the water run-off, and exacerbating the drying- out process. In that connection, the Com- mission cites the example of Ballyduff- 53. In my view, neither defence should be Clonfinane Bog in County Tipperary, upheld. As I have already explained (see which is examined in detail in Complaint point 24 above), the criterion of the loca- No P.95/4218. That site, which consists of tion of the project is disregarded whenever two separate bogs, forms a complex of the threshold effectively precludes impact 312 hectares and was designated a Natural assessment notwithstanding the serious Hertitage Area in 1995. On 28 December potential impact of the operation in ques- 1995 a contract was concluded between the tion, in view of its location. The number of

55. The only relevant point here is the possible impact of peat extraction on the areas in question. It should be borne in Infringement of Articles 2(3), 5 and 7 of mind that, as the Commission points out, the Directive peat extraction may provoke irreversible changes in the ecosystem of the bogs. The Commission acknowledges that turf cutting by hand, hallowed in Irish tradition, 13 falls outside the scope of the Directive. It is the commercial exploitation of areas of less 56. S.I. No 349 of 1989 makes provision than 50 hectares, therefore, which ought to for the competent minister to exempt a have been taken into consideration and, so project from assessment wherever this is far as we can tell, it has not. On application warranted by exceptional circumstances. of the criterion set out above (see point 23 The Commission maintains that this arrangement is not consistent with Arti- cle 2 of the Directive because: (a) the 12 — See especially paragraph 19 of the Commission's reply. 13 — And even in Irish literature: see paragraph 106 of Ireland's minister is not required to determine whe- defence. ther another form of assessment is appro-

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priate or whether the information collected through measures in the course of adop- should be made available to the public; and tion. (b) the minister is not required to inform the Commission.

57. Article 2 of S.I. No 349 of 1989 pro- 60. Therefore, those grounds of action vides simply that an impact study may must also be upheld. Ireland has failed to contain information. The Commission fulfil its obligation to transpose Articles 2, points out that the Irish legislation does 5 and 7 of the Directive into national law not ensure, in accordance with Article 5 of within the period prescribed by the Com- the Directive, that developers provide in an mission in its reasoned opinion. appropriate form the information specified in Annex III thereto, in the case of projects which must be subjected to impact assess- ment.

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embraces the entire range of aims contem- exercise of the discretion conferred on it. plated, including nature conservation. As Furthermore, as the Commission acknowl- Ireland points out in its defence, nature edges, aside from the points at issue in these conservation is also subject to other Com- proceedings, Ireland has not failed to munity legislation, but in my view such transpose the Directive correctly into its rules in no way prevent a Member State national law. Should the Court decide that, from fulfilling its obligations under Arti- for the reasons set out above, Ireland has cle 2(1), the touchstone for the Court's failed to fulfil its obligations, the thresholds analysis of this case. at issue need not necessarily be reduced — nor indeed has the Commission specified a particular level to which they ought to be reduced — as if that were the only way to pass, like Alice in Wonderland, through a That said, we must not forget that the magic door. If the plea is upheld, however, Commission has confined itself to alleging the Irish legislature will in any event be that Ireland has failed to comply with the required to make provision, generally and specific, albeit fundamental, criterion of in such a way as to meet the requirements sensitivity of location, and has quoted of legal certainty, for situations where cases — or rather, examples — which projects are located in sensitive areas, in arguably show that its general criticism is order to ensure that they are subject to well founded. The question how the Irish prior assessment in full and proper confor- legal system may best be adjusted to take mity with the Directive. This holds true adequate account of that criterion is a whatever method is chosen in order to matter for Ireland (as for any other Mem- implement the provisions of Article 4(2). ber State) in the balanced and lawful

(2) Ireland is ordered to pay the costs.

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