AG Opinion: Key Clarification On AA And AA Screening

On 16 April 2026, Advocate General Kokott delivered her Opinion (Opinion) in joined cases C-27/25 – Knocknamona and C-356/25 – Massey, concluding that the setting of site-specific conservation objectives (SSCOs) is not a prerequisite for Appropriate Assessment (AA) and AA screening.

The Opinion is a welcome response to a net, but fundamental, point of interpretation of the Habitats Directive.

The Opinion arises from a preliminary ruling request by the Irish Court of Appeal in Knocknamona, asking, in essence, whether valid conservation objectives for a special protection area (SPA) are a prerequisite to the competent authority’s jurisdiction to carry out a valid appropriate assessment under the Habitats Directive when considering an application for a grant of development consent.

On 22 October 2025, the case was joined with Massey, originating from a preliminary ruling request by the Irish High Court on similar principles of law.

The Habitats Directive

Under Council Directive 92/43/EEC (Habitats Directive), any plan or project likely to have a significant effect on a Natura 2000 site (i.e. sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II of the Directive, including SPAs classified by Member States pursuant to Directive 2009/147/EC (Birds Directive)), either individually or in combination with other plans or projects, must be subject to an AA. Accordingly, the point of reference for both the screening and the full assessment is the site’s conservation objectives. However, neither the Habitats Directive nor the Birds Directive explicitly require Member States to set SSCOs for each Natura 2000 site.

Under the Habitats Directive, Member States are required to establish priorities when designating sites as special areas of conservation; in establishing such priorities, the competent authorities decide on the importance to be placed on the conservation objectives for the site, in relation to each other and in the overall context of the Natura 2000 network. Additionally, Member States must establish the necessary conservation measures for the ecological requirements of the habitat types and species listed in Annex I and Annex II of the Directive respectively on the sites.

The equivalent protection under the Birds Directive includes the setting of conservation objectives. The CJEU confirmed in C‑66/23 Elliniki Ornithologiki Etaireia and Others that Member States must set conservation objectives for SPAs covered by the Birds Directive.

Factual Background

On 28 September 2022, An Bord Pleanála (Board), as it then was, granted planning permission to Knocknamona Windfarm Limited for amendments to a previously permitted wind farm in Co. Waterford, permitting an increase in the uppermost tip height of the turbines (to a maximum of 155 metres), and a meteorological mast (99 metres).

In considering the application for development consent, the Board carried out an AA for five protected sites, including the Blackwater Callows SPA (Area). The Board, relying on its inspector’s report, which recorded that the conservation objectives for the Area were a ‘generic conservation objectives document’, decided that the proposed developments would not adversely affect the integrity of the Area. At the time of the Board’s decision, no SSCOs had been determined for the Area.

In judicial review proceedings taken by SU and Wild Ireland Defence, the High Court determined that, in certain circumstances – indeed in most circumstances – conservation objectives will be necessary to carry out a valid AA, but on the particular facts of the case, it was possible to have a valid AA without such objectives, on the basis that the qualifying interest would not be affected by the development irrespective of the setting of conservation objectives.

The applicants subsequently appealed that decision to the Court of Appeal, which referred a request for a preliminary ruling to the CJEU seeking clarification on whether valid conservation objectives for a SPA are a prerequisite to the competent authority’s jurisdiction to carry out a valid AA under Article 6(3) of the Habitats Directive when considering an application for a grant of development consent.

The Opinion

Advocate General Kokott, responding to whether it follows from the obligation to set conservation objectives that an AA is not permitted if no such objectives have been set, found:

• Identification of Conservation Objectives: An AA can be carried out in practice based on conservation objectives identified on a provisional basis if the competent authorities have not yet set any SSCOs. Surveyors for project developers and regulatory authorities may infer the relevant conservation objectives for an assessment in particular from the information which was used as a basis for designating the relevant area of conservation and which is set out in the relevant Standard Data Form for the site, and also, where applicable, with due regard to additional findings about other species and habitat types which are present there.
• Consequences for Screenings: AA screening does not presuppose that Member States have set SSCOs in advance; as such, it is sufficient for those objectives to be identified on a provisional basis by reference to the site’s characteristics.
• Time Limit: a decision by the Court disagreeing with Advocate General Kokott’s position should be subject to a temporal limitation; a corresponding decision by the Court should therefore only apply to plans and projects agreed to after the judgment in the present proceedings is delivered. She suggested that the Court could
  “even consider restricting the application of such a decision to approval procedures which are only initiated after the judgment is delivered, since it is possible that time-consuming appropriate assessments on the basis of conservation objectives that have been identified on a provisional basis might already have been carried out in the absence of [SSCOs] as part of ongoing approval procedures”.

Conclusion

The position adopted by AG Kokott in her Opinion will be welcomed as a practical interpretation of the Habitats Directive, which allows large-scale projects to maintain their momentum. The Court’s final determination of the issues raised in the joined cases may have broad-reaching implications for a large number of projects in the EU that are directly affected. Given the level of uncertainty surrounding the extent to which Member States have set SSCOs, and when any such objectives were set, it is expected that the final judgment will afford much-needed clarity to planning and development stakeholders in Ireland, and across the wider EU region.

The Opinion is not binding on the CJEU, which will deliver its judgment in due course.