HAVET & VANHUFFEL – Association d’avocats
The Court of Justice of the European Union, in its judgment of 16 April 2026 (Case C-58/24 – NE and Others v Ireland), held that a Member State may impose a strict time limit for challenging an environmental derogation (regarding a protected species), provided that this time limit complies with the principles of equivalence and effectiveness, meaning that it must not render judicial review impossible or excessively difficult.
The dispute concerns a project to construct residential units in a former monastery in Ireland, located in Delgany (County Wicklow).
The project raises environmental issues related to the presence of protected bats.
Before even applying for planning permission, the developer obtained in 2020 a derogation from the species protection regime (Habitats Directive), in order to carry out works affecting the bats present on the site.
A revised derogation was subsequently granted to include an additional protected bat species. This derogation legally allowed the works to proceed despite the strict protection afforded to the species concerned.
Planning permission was granted in February 2021, following an assessment concluding that the project was not likely to have significant environmental impacts. The derogation was attached to the planning file.
Legal actions were brought against both the planning permission and the derogation. The applicants challenged, in particular, the validity of the derogation under EU law.
The Irish court dismissed the challenge to the planning permission but left the issue of the derogation unresolved. It considered that the derogation had not been challenged within the national three-month time limit.
Under Irish law, a derogation constitutes a standalone decision and must be challenged within a strict period of three months from the moment the applicant became aware of it.
However, the national court questioned whether this rule is compatible with EU law, in particular the principle of effective access to environmental justice under the Environmental Impact Assessment Directive, the Aarhus Convention, and the Charter of Fundamental Rights of the EU.
It referred several questions to the Court of Justice concerning the integration of the derogation into the authorisation procedure, the starting point of the limitation period, and whether the national authority must assess alternatives and the justification for the derogation.
The Court held that EU law does not preclude a Member State from imposing a three-month time limit to challenge an environmental derogation, provided that this rule complies with the principles of equivalence and effectiveness, meaning that it must not make judicial review impossible or excessively difficult.
To read the judgment, follow the link: https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX:62024CJ0058.