Referral to European Court of Justice should not delay planning of Galway City Outer Bypass - Fahey

Ministers Noel Dempsey and John Gormley have now recommended that the proper course of action in the case of the Galway City Outer Bypass is to get clarity on the application of the Habitats Directive as it applies to the Bypass and all other road construction projects, to ensure full compliance with European Union and Irish law.

An early referral of the case to the European Court of Justice will be sought by the Attorney General at the Supreme Court as the best option to get legal certainty on the issue for the Bypass and future road projects.

At a meeting with European Commission officials in Brussels which I attended with Pat the Cope Gallagher MEP last November, a number of critical points emerged:

It was emphasised that the Commission was in no way against the development of major infrastructure projects, as long as they adhere to the Habitats Directive. The Directive states that the competent national authority may approve a development only after ascertaining that it will not affect the integrity of the site concerned. However, there is an in built flexibility in the Directive which allows a development to continue in spite of a negative assessment.

Without wishing to pre-judge the Supreme Court ruling the Commission officials considered that should the Supreme Court find in favour of the County Council ‘it was more likely than not’ that the Commission would begin infringement proceedings against Ireland.

If the Irish Supreme Court finds against Galway County Council, the development can only proceed if, in the opinion of the Commission, the competent authority can demonstrate that the development must be carried out for imperative reasons of overriding public interest, no alternative options exist, and all necessary compensatory measures have been taken. The Commissions officials suggested in our meeting that such an opinion could be delivered quite quickly, assuming that the County Council have a case prepared for consideration.

The Commission officials confirmed to me that they would be available to meet informally with Galway County Council and the NRA. They said that it would be useful from their perspective to become better informed on the route selection process and why the development must be carried out for imperative reasons of overriding public interest.

In light of the views expressed by the Attorney General, supported by Ministers Dempsey and Gormley and the clear position of the European Commission is that it appears that the best approach would be that the Supreme Court approach the European Court of Justice for a ‘preliminary ruling’. This procedure allows a national court to seek advice if it is in any doubt about the interpretation or validity of an EU law.

I was informed that EU Commission officials that this procedure can typically take up to 18 months.

If this is the approach chosen by the Supreme Court I believe it is imperative that informal discussions take place between the NRA/Galway County Council and the EU Commission. This will enable the NRA/County Council to provide the Commission with information supporting its application, which comprehensively addresses the issue of possible alternative routes, and the reasons for selecting the route put forward.

While the opinion of the Commission has not been sought for a project in Ireland under these circumstances before, the Commission has given favourable responses in the case of projects in other Member States, where a well prepared case, covering the necessary information, has been put forward.

Following the Supreme Court hearing the planning process should be allowed to continue to the point where the project is ready to go to the invitation of preliminary tenders.

This would involve a site investigation work and the archaeological investigations which have a12 month time scale. The interpretation issue should not impact on the substantive issue, which can be progressed between the EU Commission and the NRA/Galway County Council.

Galway City and Connemara needs this Bypass and it cannot afford to be caught up in this bureaucracy. The development and growth of the city is being hindered with each day that passes in this legal wrangle, and I hope that this proposal will be given serious consideration by the NRA and Galway County Council.