EU
Regulation on packaging and packaging waste
The Council adopted a regulation which establishes requirements for the entire life-cycle of packaging (including sustainability and labelling criteria). It also establishes requirements for extended producer responsibility, the reduction of unnecessary packaging or re-use of packaging, and the collection and treatment of packaging waste. The Regulation applies to all packaging, regardless of material, and to all packaging waste, regardless of where it originates (for example, household, industry or retail). The Regulation provides that all packaging placed on the market must be recyclable.
The Regulation will apply from 12 August 2026. However, certain requirements will enter into force later. For example, criteria for minimum recycled content in plastic packaging will apply from 1 January 2030 at the earliest.
The World Trade Organisation upholds the EU's ability to take environmental and climate-based action under the EU Renewable Energy Directive 2018 (RED II)
Indonesia disputed measures taken by the EU under RED II, which limits the use of food and feed crop-based biofuels to achieve renewable energy consumption targets for the EU transport fuel market. RED II will phase out the use of palm oil-based biofuels by 2030.
The EU will now adjust a delegated act under RED II, as it is inconsistent with WTO rules. Indonesia may appeal the WTO's report before 10 March 2025. If no appeal is taken, the WTO will adopt the report, which will become binding between the EU and Indonesia. Both parties will agree on a reasonable period for Indonesia to comply with the report at this point.
Consultations on two proposed regulations on farm policy
The proposed regulations are aimed at strengthening farmers' position in the food supply chain and enforce rules on unfair trading practices in the agri-food supply chain. The proposed measures are intended to ensure fair and sufficient income for farmers and to correct imbalances by protecting them against unfair trading practices. Consultations on both proposals are open until 10 March 2025. Feedback will inform the next stage of the legislative process, where the Commission will present the proposals to the Parliament and Council.
Call for evidence for a European Water Resilience Strategy
The intent is to provide enhanced action to address water challenges in the EU, focusing on the proper management of sources and addressing water scarcity. It is also intended to promote a competitive EU water industry and increase water reuse and circularity. The call for evidence is open until 4 March 2025.
Call for evidence for European Oceans Pact
The pact is a new proposal which would aim to bring coherence across all EU policy areas linked to the oceans. Its focus is on boosting the blue economy (including fisheries and aquaculture) and ensuring good governance and sustainability of EU oceans. The Commission intends to present the pact in time for the 3rd UN Ocean Conference in June 2025. The call for evidence is open until June 2025.
DOMESTIC CASE LAW
Court of Appeal refers question to CJEU on the requirement for conservation objectives to be in place for AA to be carried out
The Court of Appeal referred the following question to the CJEU: "Are valid conservation objectives for a Special Protection Area a pre-requisite to the competent authority's jurisdiction to carry out a valid appropriate assessment under Article 6(3) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora as amended (the "Habitats Directive") when considering an application for a grant of development consent."
The question arose following a challenge against the Board's decision to grant permission for amendments to a wind farm. When making its decision, the Board carried out an appropriate assessment (AA) of the implications of the proposed development for identified European sites, including the Blackwater Callows SPA. No site-specific conservation objectives were set for the site at the time of the Board's decision. The appellant argued that without conservation objectives, the Board had no jurisdiction to carry out the AA.
The High Court determined that the development consent was lawful despite the fact that no site-specific conservation objectives were in place and the Board carried out the AA on the basis of general conservation objectives for the site. The basis for the appeal of the High Court's decision was whether an AA can be carried out in the absence of site-specific conservation objectives. The Court of Appeal considered that this is a question of interpretation of EU law, and has requested an expedited preliminary ruling by the CJEU, as the permission in question is due to expire in December 2026.
High Court considers requirement for decision-maker to engage with submissions
This decision related to a challenge against the grant of permission for a windfarm in Co. Laois. The key grounds of challenge alleged failures in the publication of environmental documents by the Board and inadequacies in the appropriate assessment (AA). Although the Court was critical of the incomprehensible file names of environmental documents which appeared on the Board's website, it found that the applicant failed to show that it was disadvantaged in a way that would warrant quashing the decision. The applicant downloaded all available documents, and did not claim that it was unaware of any further information. The Court granted declaratory relief in respect of the failure to make documents available in an effective and reasonable manner due to the unclear file names.
In terms of the alleged inadequacy of the AA, the Court considered that the requirements for AA were "not massively in dispute" and that the central question was whether the applicant demonstrated a defect in AA on evidence. The applicant challenged the Board's disagreement with expert submissions by the National Parks and Wildlife Service. The Court reiterated a CJEU ruling that the Board is not obliged to dispel scientific doubt regarding impacts on a European site through point-by-point reply to submissions. It must simply give sufficient reasons to dispel all reasonable doubt. The Court found that the Board met this obligation, and that the applicant failed to show that its reasons were insufficient on evidence.
High Court states that the Minister can only direct the amendment of development plans where there is an illegality
On the recommendation of the Office of the Planning Regulator, the Minister for Housing issued a statutory direction to Dún Laoghaire Rathdown County Council to remove the 0/0 Objective from its Development Plan. The 0/0 Objective aims to protect the architectural heritage of areas in Killiney and Dalkey. The Minister considered that the objective was inconsistent with the National Planning Framework (NPF) and the Regional Spatial and Economic Strategy (RSES) objectives for compact growth.
The Court noted that consistency with NPF objectives is required only "as far as practicable", and that the consistency required is typically "general as opposed to detailed, specific, comprehensive or ubiquitous" (following the decision of the Supreme Court in Killegland.) The Court also observed that the need to compromise and reconcile NPF and RSES objectives is inevitable. Competing NPF and RSES objectives often require compromise, notwithstanding that this exposes the planning authority to accusations of inconsistency.
The Court stressed that the Minister can only issue a direction to amend a development plan where he/she considers there is an illegality in the plan. The Court therefore declared the OPR's recommendation and the Minister's subsequent direction to be invalid.
High Court sets out requirements to re-instate withdrawn judicial review and emphasises the requirement to exhaust remedies
The High Court rejected a lay litigant's attempt to reactivate an application for judicial review in January 2025 which had been withdrawn in May 2024. The application is related to a challenge against a grant of permission by the Board for the development of concrete storage bays in Co. Meath. The Court noted that, where a leave application is withdrawn, an applicant cannot "simply come back at a later stage to move the leave application." The proceeding would have to be re-entered first, and the only basis for re-entry would be "in truly exceptional circumstances" which do not cause undue prejudice to other parties. The Court noted that it is difficult to imagine what those exceptional circumstances might be, other than where withdrawal was procured by duress or fraud.
Additionally, the applicant's attempt to appeal the original grant of permission by Meath County Council to the Board was invalid due to the applicant's failure to submit all necessary paperwork to the Council. The Court stated that the duty to exhaust remedies includes an obligation to correctly observe the legal conditions for such remedies. Making an invalid appeal by failing to include proper paperwork is a failure to exhaust remedies, which would preclude the grant of leave to take a judicial review, even if the proceedings could be reinstated.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.
