Ms Attracta U? Bhroin:

The Deputy had quite a lot of questions. I hope we will be able to answer them all. I ask him to prompt us if we are missing anything.

Head 14(2) states that the designation of MPAs shall be without prejudice to existing rights - basically existing authorisations. I think this is a problem for everyone. It is a major concern for industry and all sorts of actors in the marine environment who have gone to the bother going through the process of making applications, seeking investment and creating expectations within their organisations their shareholders, etc. One can understand their need and desire for legal certainty.

Notwithstanding that, as we said in our opening remarks, unfortunately, the MPA designation is late in Ireland. It is more than nine years late and everybody in this room realistically knows that by the time this legislation is enacted given that various different consultations, etc., need to happen, it will be some time before we have designations on the ground.

What are the implications from a legal perspective? What are the concerns over how head 14(2) is framed? The has been clear from back when the birds directive’s designations were late, not just here in Ireland but also in other member states, that a member state cannot benefit from the delay in fulfilling its obligations. In the European Court of Justice judgment C-374/98 in the case of Basses Corbières, the French state, paragraph 51 states a member state cannot benefit from the delay in delivering on its obligations.

To use the Deputy’s words from one of the earlier sessions, we are where we are. It is an unfortunate reality that we have that intersection where the science is telling us that an area should have been designated as MPA being potentially incompatible with something that has been given permission. A range of issues will arise from this. It is extremely frustrating that a more proactive approach was not taken to the delivery of the spatial plan and in mapping out areas to manage the expectations for the location of offshore renewable energy on a precautionary basis given the gaps in our information.

We argued very heavily for that at the time. The simple fact of the matter is that many different issues could arise depending on the various scenarios, one of which would be State liability. If a wind energy company has developed and invested, it may seek to sue the State for its loss of expectation because EU law will require us to remedy the breach of EU law. We cannot walk away and just say, "Whoops, sorry, we missed it." Duties are very clearly articulated, especially so in the context of Ireland. Some of the most authoritative and comprehensive judgments of the European Court of Justice in rehearsing and clarifying these points relate to the likes of Derrybrien wind farm in C-215/06 and C-261/18. It makes it very clear. I might add that it is not limited to those cases that one has to remedy a breach. It is not just a case of "Whoops, apocalypse". There are consequences and that must be addressed.

The economic operators may seek to pursue State liability. We can imagine the number of zeros that could be involved in that. That is already an issue in respect of a range of other matters in the terrestrial environment where there have been problems. It is the taxpayers of this country that end up footing the bill for that.

The European Court of Justice has also been clear that State liability is not an automatic presumption for economic actors unless they can demonstrate they had a reasonable understanding that their consents were lawful and that everything was in order. I do not see that as being credible in the context of the airing of issues that there is around the inadequacies of designations in Ireland. I think we are going to end up with a very serious mess. That is why it is all the more important, in particular at this critical time, given that on 23 December we saw the granting of maritime area consents under the Maritime Area Planning Act, and we are expecting to see development consent applications go to An Bord Pleanála, or an coimisiún pleanála as it may be called soon.

It is incumbent on us to address this because this is a car crash. This is going to delay and create confusion and uncertainty about industry's expectations of what it can do in terms of our successful migration to decarbonisation. We must be realistic about saying that we cannot just leave MPAs to paddy last. We have seen the Government move at breathtaking, shocking, and scary speed to enact legislation, guillotine it, and force it through when it needs to. Why do MPAs need to be left so long? Why are they being so deprioritised? We must ensure they are expedited. I am sorry that is a long answer, but it is a critical point.