Ireland puts EC’s nose out of joint by going over its head

Dublin's decision to call for UN intervention after the UK failed to consider the impact on the Irish environment of the Sellafield nuclear facilities has incurred the wrath of the snubbed EC.

Commission v Ireland (Case C-459/03)

In a judgement of the European Court of Justice (ECJ) given on 30 May 2006 in the case of the European Commission v Ireland (Case C-459/03), Ireland was held to be in breach of its obligations under the EA and EC Treaties.

The case concerned an application by the European Commission, seeking a declaration of the Court that, by instituting dispute-settlement proceedings against the United Kingdom under the United Nations Convention on the Law of the Sea (UNCLOS) concerning the MOX plant located at Sellafield, UK, Ireland had failed to fulfil its obligations under Articles 10 EC and 292 EC, and Articles 192 EA and 193 EA.

British Nuclear Fuel plc (‘BNFL’) operates a number of facilities on a site at Sellafield (United Kingdom), situated on the coast of the Irish Sea, which include the so-called MOX and THORP plants.

The MOX plant is designed to recycle plutonium from spent nuclear fuel by mixing plutonium dioxide with depleted uranium dioxide and thereby converting it into a new fuel known as MOX, an abbreviation used to designate mixed oxide fuel, intended for use as an energy source in nuclear power stations.

Construction of the MOX plant was authorised by the United Kingdom authorities following an application for authorisation submitted by BNFL on the basis of an environmental statement presented by the company in 1993.

However, in late 2001 Ireland announced that it was considering lodging a complaint pursuant to UNCLOS, which would centre on the failure to carry out a proper assessment of the impact which the MOX plant would have on the environment.

Ireland instituted proceedings against the United Kingdom before the arbitral tribunal provided for under UNCLOS with a view to resolving the dispute concerning the MOX plant, the international transfer of radioactive substances and the protection of the marine environment of the Irish Sea, criticising the UK for failure to comply with UNCLOS by not taking the appropriate measures to protect the marine environment with regard to the operation of the MOX plant.

The Commission was informed of the proceedings brought by Ireland and requested that they be suspended on the ground that the dispute in question came within the exclusive jurisdiction of the European Court (not the UN tribunal).

Ireland did not accede to that request and the Commission accordingly raised the action before the ECJ, claiming that Ireland had failed to respect the Court’s exclusive jurisdiction to rule on any dispute concerning the interpretation and application of Community law.

The ECJ found that Ireland had submitted instruments of Community law governed by the EC and EA Treaties to the arbitral tribunal for purposes of their interpretation and application within the framework of proceedings seeking a declaration that the United Kingdom had breached the provisions of those instruments, which was at variance with the obligation imposed on Member States to respect the exclusive nature of the European Court’s jurisdiction to resolve disputes concerning the interpretation and application of provisions of Community law.

The ECJ therefore held that by raising such proceedings under the dispute-settlement procedure under UNCLOS, without having first informed and consulted the competent Community institutions, Ireland had failed to comply with its duty of cooperation under the EC and EA Treaties.

The full text of the judgement of the ECJ is available at the following links here and here.

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