EU countries should only permit farmers to use more nitrogen if if can be proved that this will not impact on water quality or protected habitats according to a senior European legal adviser.

The Advocate General at the Court of Justice of the European Union (CJEU) today (Thursday, March 26) published her opinion in relation to the long running An Taisce case challenging the government’s fifth Nitrates Action Programme (NAP).

An Taisce first launched legal proceedings in Ireland in May 2022 to judicially review the government’s NAP because it claimed that “measures taken under successive NAPs have failed in their objective” which is to “prevent pollution of surface waters and ground water from agricultural sources.

The case was then referred by a High Court judge to the CJEU because the judge said it raised "significant issues of European law”.

Specifically the judge referred nine key questions raised during the legal challenge at the CJEU.

These questions are critically linked to Ireland's nitrates derogation because the court has to examine key issues in relation to "the effects on the environment of the nitrate-emitting agricultural activities".

Court of Justice of the EU

The opinion published today by the Advocate General at the Court of Justice of the EU looks in detail at the nine key questions referred by the High Court judge in Ireland.

The general consenus set out in the opinion that any NAP "requires an environmental assessment" and the approval of a NAP must also be based in the context of the Water Framework Directive and that Natura 2000 sites are "identified, described and evaluated".

The Advocate General also notes that member states must "monitor the significant environmental effects" of the implementation of NAP and programmes to "identify at an early stage unforeseen adverse effects and to be able to undertake appropriate remedial action".

Her recommendation to the CJEU clearly sets out that member states may only approve an "increased amount of nitrogen in agriculture" within the framework of a water policy.

The Advocate General also states that any action programme which permits farms under certain conditions, "to apply to the land increased amounts of nitrates" must be examined within the context of the conservation of natural habitats and of wild fauna and flora.

She states that this is "in order to determine whether any reasonable scientific doubt is ruled out that such application will adversely affect the integrity of Natura 2000 sites as a result of nitrogen deposition".

The Advocate General also warns in her opinion that an environmental report should be produced that describes "the measures for monitoring the significant effects of the implementation of the action programme and, in particular, of the approval of the application of increased amounts of nitrogen".

In her opinion she clearly states that if a Nitrates Action Plan did not comply with the Habitats Directive or was in breach of the Water Framework Directive then "it is unlikely that the approval of the application of increased amounts of nitrogen would be lawful".

However the Advocate General also outlined that there would be good reason to "maintain the effects of the action plan".

This is because "its repeal would create a legal vacuum which would be incompatible with Ireland’s obligation to adopt measures to implement the Nitrates Directive". 

"All restrictions on the application of nitrates by farms contained in the action plan would cease to apply until further notice without being replaced.

"That could also undermine the objectives of the Water Framework Directive and the Habitats Directive," she added.