Commission of the European Communities v Ireland.

• Jurisdiction: European Union
• Celex Number: 62003CC0459
• ECLI: ECLI:EU:C:2006:42
• Court: Court of Justice (European Union)
• Date: 18 January 2006
• Procedure Type: Recurso por incumplimiento – fundado
• Docket Number: C-459/03

OPINION OF ADVOCATE GENERAL

Poiares Maduro

delivered on 18 January 2006 (1)

Case C-459/03

Commission of the European Communities

v

Ireland

(Dispute between Ireland and the United Kingdom – Arbitral tribunal established under Annex VII of the 1982 United Nations Convention on the Law of the Sea – Jurisdiction of the Court of Justice – Article 292 EC – Article 193 EA – Duty of cooperation – Article 10 EC – Article 192 EA)

1. These infringement proceedings require the Court to consider for the first time an alleged breach by a Member State of Article 292 EC and Article 193 EA. The Commission believes that Ireland has infringed these provisions, as well as Article 10 EC and Article 192 EA, by submitting a dispute with another Member State (the United Kingdom) to an arbitral tribunal established under the United Nations Convention on the Law of the Sea (hereinafter ‘Unclos’).

2. According to Article 292 EC and its identically worded counterpart, Article 193 EA, ‘Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein’. In order to establish whether these provisions were infringed, the Court must determine if the matters brought before the Arbitral Tribunal by Ireland fall within the scope of Community law.

I – The facts and the pre-contentious procedure

3. The present proceedings originate in a dispute between Ireland and the United Kingdom over the operation of a MOX plant in Sellafield, in the North West of England, on the coast of the Irish Sea. The plant is designed to recycle plutonium from spent nuclear fuel, by mixing plutonium dioxide with depleted uranium dioxide and converting it into mixed oxide fuel (MOX), which can be used as an energy source in nuclear power plants.

4. The United Kingdom approved the construction of the MOX plant by British Nuclear Fuel plc (hereafter ‘BNFL’) following an environmental impact study published by BNFL in 1993. The plant was completed in 1996. On 3 October 2001, after conducting five public enquiries into the economic justifications of the MOX plant, the United Kingdom granted authorisation to BNFL to operate the plant and manufacture MOX.

5. On 25 October 2001 Ireland, alleging various breaches by the United Kingdom of the provisions of Unclos, instituted proceedings concerning the MOX plant against the United Kingdom before an arbitral tribunal established under Annex VII of Unclos. (2)

6. On 20 June 2002 a meeting was held between Ireland and the Commission services concerning the MOX plant disputes. (3) On 15 May 2003 the Commission addressed a letter of formal notice to Ireland, expressing the view that by instituting proceedings against the United Kingdom under Unclos, Ireland had failed to fulfil its obligations under Articles 10 EC and 292 EC and Articles 192 EA and 193 EA.

7. By letter of 15 July 2003 Ireland explained that it disagreed with the views of the Commission. On 19 August 2003 the Commission addressed a reasoned opinion to Ireland on account of the institution of arbitral proceedings concerning the MOX plant against the United Kingdom under Unclos. On 16 September 2003 Ireland replied that it remained unconvinced of the Commission’s point of view. The Commission brought the matter before the Court on 15 October 2003.

II – The issues raised

8. The Court has only rarely been called to decide a dispute between two Member States. (4) Yet, by virtue of Article 220 EC in conjunction with Article 227 EC, and Article 136 EA in conjunction with Article 142 EA, the Court has jurisdiction in such disputes where they concern the application and interpretation of the EC Treaty or the Euratom Treaty. (5)

9. Article 292 EC and Article 193 EA provide that this jurisdiction is exclusive. Together, these provisions establish what has been called a ‘jurisdictional monopoly’ for the Court of Justice regarding disputes between Member States concerning the application and interpretation of Community law. (6)

10. The Court’s exclusive jurisdiction in disputes between Member States concerning Community law is a means of preserving the autonomy of the Community legal order. (7) It serves to ensure that Member States do not incur legal obligations under public international law which may conflict with their obligations under Community law. Fundamentally, Article 292 EC and Article 193 EA express the duty of loyalty to the judicial system created by the Community Treaties. Member States have agreed to settle their differences through the ways provided in the Treaties; they must abstain from submitting disputes relating to those Treaties to other methods of settlement. (8)

11. The Commission contends that Ireland has infringed this rule by submitting its dispute with the United Kingdom regarding the MOX plant to arbitration by a tribunal established under Unclos. The essential question to be decided by this Court is whether that dispute concerns Community law. The Court must examine and compare, on the one hand, the scope of its jurisdiction and, on the other hand, the subject-matter of the dispute brought before the Arbitral Tribunal.

12. Before the Arbitral Tribunal, Ireland argues that the United Kingdom has breached three sets of obligations. First, the obligation to carry out a proper assessment of the potential effects of the authorisation of the MOX plant on the marine environment of the Irish Sea. In this regard, Ireland refers to Article 206 Unclos. Second, the obligation to cooperate with Ireland, as co-riparian of the semi-enclosed Irish Sea, in taking the necessary steps to preserve the marine environment of that sea. In this regard, Ireland refers to Articles 123 and 197 Unclos. Third, the obligation to take all the steps necessary to protect and preserve the marine environment of the Irish Sea. In this connection, Ireland invokes Articles 192, 193, 194, 207, 211, 213 and 217 Unclos.

13. The positions of Ireland and the Commission as regards the extent of the Court’s jurisdiction over the MOX-plant dispute are diametrically opposed. According to Ireland, none of the issues in dispute falls within the Court’s jurisdiction. The Commission, on the other hand, argues that the entire dispute comes within the jurisdiction of the Court. For the purposes of the present proceedings, however, it is not necessary to establish whether the MOX-plant dispute falls wholly within the jurisdiction of the Court. It suffices to verify whether at least part of the subject-matter of the dispute is governed by Community law. If that is so then, in my view, a breach of Article 292 EC – or Article 193 EA, as the case may be – is established.

14. This is not to say that the Court’s jurisdiction extends to the entire dispute, merely because part of the dispute is covered by Community law. It may be that a dispute falls largely and perhaps predominantly outside the jurisdiction of the Court, and that only one or a few of the matters of contention come within its jurisdiction. However, in such circumstances Article 292 EC – or Article 193 EA – nevertheless precludes that the entire dispute, including the elements falling within the scope of Community law, is submitted to a method of settlement other than those provided for in the Community Treaties. After all, there is no threshold in the rules establishing the Court’s jurisdictional monopoly. Whenever Community law is concerned, Member States must settle their differences within the Community. (9)

15. The Commission has presented three complaints. First, it maintains that the provisions of Unclos invoked by Ireland before the Arbitral Tribunal constitute part of Community law and accordingly fall within the Court’s exclusive jurisdiction to settle a dispute between Member States. As a consequence, the institution of arbitral proceedings against another Member State concerning the Unclos provisions at issue amounts to a breach of Article 292 EC. Second, the Commission considers that Ireland has infringed Articles 292 EC and 193 EA by calling on the Arbitral Tribunal to apply the provisions of certain Community directives. Third, it contends that by instituting such proceedings Ireland has breached the duty of cooperation which can be derived from Article 10 EC and Article 192 EA.

16. I shall assess these three complaints in turn.

III – The Court’s jurisdiction as regards provisions of Unclos

17. Unclos is a mixed agreement. At the time when Ireland submitted the dispute with the United Kingdom to the Arbitral Tribunal, the European Community and 14 of its then Member States were parties to Unclos. (10) The Community and the Member States that were parties to Unclos at the material time have assumed obligations under Unclos within their respective spheres of competence. (11) For example, the Community assumed obligations in the field of conservation and management of sea fishing resources, while the Member States assumed obligations in the field of the delimitation of maritime boundaries. (12)

18. It is the point of view of the Commission that the provisions of Unclos invoked by Ireland against the United Kingdom come within the jurisdiction of the Court because they fall under the competence of, and were concluded by, the Community. In this connection, the Commission emphasises that the protection of the environment is an explicit objective of the Community, for which the Community has external competence. The Commission further points out that Council Decision 98/392/EC, (13) by which the European Community concluded Unclos, was also based on Article 130s of the EC Treaty (now Article 175 EC).

19. In contrast, Ireland is of the opinion that there has been no transfer of competence from the Member States to the Community in the areas in which Ireland seeks to litigate against the United Kingdom. Ireland argues that the Community is a contracting party to Unclos...