knowledge 21 July 2026 |

No Objectives, No Assessment: CJEU clarifies role of SSCOs in AA

Background

As explained in our earlier briefing, the Irish Court of Appeal referred a question to the CJEU in Knocknamona (Case C-27/25) as to whether valid conservation objectives for a particular Special Protection Area (SPA) are a pre-condition to a competent authority’s jurisdiction to carry out a stage two AA. The issue arose from a challenge before Holland J. in the High Court to An Bord Pleanála's decision to grant permission for modest amendments to the Knocknamona Wind Farm in Co. Waterford (Power v. An Bord Pleanála (No.1) [2024] IEHC 108; (No. 2) [2024] IEHC 247). Although the High Court found that Ireland had failed to comply with its obligation to establish site-specific conservation objectives for the Blackwater Callows SPA (a deficiency since remedied by the National Parks and Wildlife Service (NPWS) in March 2024), it declined to quash the permission. This was because scientific evidence showed that the whooper swan, the qualifying species most likely to be affected, was not present in or near the site, meaning the development would not adversely affect the site’s integrity regardless of what conservation objectives might eventually be adopted. This decision was appealed to the Court of Appeal, which referred the question to the CJEU (Power v. An Bord Pleanála [2024] IECA 295).

A related but distinct question was also referred to the CJEU by the High Court in Massey (Case C-356/25), which also concerned a windfarm development, this time located some 9.9km from the Blackwater Callows SPA, where the relevant conservation objectives were similarly absent at the time permission was granted (Massey v. An Bord Pleanála (No. 2) [2025] IEHC 206). However, unlike Knocknamona, which concerned stage two AA, Massey focused on the earlier AA screening stage and whether the absence of SSCOs is a bar to determining whether a proposed development is likely to have significant effects on a protected site.

Given the overlap between the issues raised in both cases, the references were joined on 22 October 2025 and heard together by the CJEU on 11 March 2026.

Opinion of Advocate General Kokott

Advocate General Kokott delivered her opinion on 16 April 2026 and concluded that the setting of SSCOs is not a mandatory pre-requisite for either AA or AA screening. The Advocate General adopted a pragmatic approach, taking the view that the absence of formally adopted SSCOs does not necessarily preclude an assessment since conservation objectives may be identified by other means "if need be". This might include, for instance, inferring the relevant objectives from the information used to designate the site, as set out in the Standard Data Form, together with any available findings about other species and habitat types present there.

The Advocate General stressed that in the event the CJEU disagreed with her view, it should at least impose a temporal limitation on the effect of its decision so as to “only apply to plans and projects agreed to after the judgment in the present proceedings is delivered”.

Judgment of the CJEU

The CJEU departed from the Advocate General’s recommendation and held that "the appropriate assessment must be carried out based on the conservation objectives specific to the site concerned”. This confirms that valid SSCOs are a pre-condition to a competent authority’s jurisdiction to carry out a valid stage two AA under the Habitats Directive. The CJEU made clear where valid SSCOs have not been set prior to the completion of the AA, it cannot be said that such an assessment satisfies the requirements that the findings and conclusions are “complete, precise and definitive”. The CJEU expressed concern that, in the absence of such SSCOs, there is an increased risk of "significant, or even irreparable, ecological damage” to the site in question.

With respect to AA screening, however, the CJEU held that it does not require “as full and precise” an analysis as that which applies to a stage two AA. The CJEU accepted that "[i]t may be possible to carry out such cataloguing without it being necessary to take into account the conservation objectives specific to each of the protected sites", for example because of "the distance between that plan or project and the protected sites and the existence or absence of plausible impact pathways”.

In other words, where it can be shown that the source-pathway-receptor is reliably interrupted or that no pathway exists and that a plan or project therefore cannot plausibly affect a particular protected site, consideration of SSCOs at screening may not be necessary.  

It follows that while valid SSCOs are a pre-condition to a valid stage two AA, the same is not always true at the screening stage.

As for the temporal limit, the court refused to narrow the effect of its judgment to future applications or proceedings as recommended by the Advocate General. This was because Ireland had not demonstrated a risk of serious difficulties given that it “ultimately adopted, in 2024, conservation objectives specific to all SPAs located in its territory”.

Future effect?

There will be many projects that are unaffected by the CJEU’s decision given the work undertaken by the NPWS in recent years in formally establishing SSCOs for both SPAs and SACs in Ireland. Planning permissions validly granted and unchallenged within the eight-week judicial review period should also be unaffected by the ruling. In truth, the greatest impact will be on decisions pending before a consent authority or decisions already under challenge by way of judicial review that include a lack of SSCOs as a ground of challenge.

The CJEU’s ruling will lead to a stricter approach to compliance with the Habitats Directive as it is now clear that SSCOs are a substantive legal prerequisite to a valid AA. In practice, this will necessitate greater engagement with ecologists and other environmental specialists to ensure that assessments are expressly grounded in the SSCOs applicable to the protected site concerned. 

The decision also provides welcome clarification on the distinction between screening and stage two AA, confirming that a more limited analysis may suffice at the screening stage where likely significant effects can be excluded by reference to factors such as distance from the protected site or the absence of a plausible pathway of impact.

Also contributed to by Aoife Stewart.