Case C-459/03, Commission v. UK and Ireland

The Grand Chamber yesterday held that by instituting dispute-settlement proceedings against the UK under the UNCLOS, Ireland had violated Articles 10 and 292 EC and Articles 192 and 193 Euratom.

Case C-459/03 is an interesting case, and not only because it is the first time that the Court considered an alleged breach by a Member State of Article 292 EC and Article 193 Euratom. These provisions, which are identically worded, state that:

"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 2001, Ireland launched a UN action over Sellafield's Mox (mixed oxide) plant. It complained that the plant, which recycles plutonium from spent nuclear fuel, was increasing pollution in the Irish Sea and that therefore, the UK was violating the
UN Convention on the Law of the Sea (UNCLOS).

The Commission launched a separate action, claiming that Ireland had instituted these proceedings without taking due account of the fact that the European Community is a party to this Convention.

The Commission argued that by submitting the dispute to a arbitral tribunal outside the Community legal order, Ireland had violated the exclusive jurisdiction of the Court of Justice enshrined in Articles 292 EC and 193 Euratom.

The Commission furthermore claimed that Ireland had violated the duty of cooperation as enshired in Article 10 EC (and in 192 Euratom).

The Court first of all considered whether it had jurisdiction to deal with disputes relating to the interpretation of the disputed provisions of the UNCLOS.

The Court held, referring to IATA and ELFAA, that since the Convention was signed by the Community and subsequently approved by
Decision 98/392, the provisions of that convention now formed an integral part of the Community legal order (links to relevant case law below).

The Convention is a mixed agreement, since it was concluded by the Community and all of its Member States on the basis of shared competence. Therefore, the Court had to examine whether the provisions of that agreement relied on by Ireland before the Arbitral Tribunal came within the scope of Community competence.

The Court held that, although Article 176 EC provides that the external competence of the Community in regard to the protection of the environment is not exclusive but shared between the Community and the Member States, the question whether a provision of a mixed agreement comes within the competence of the Community “is one which relates to the attribution and, thus, the very existence of that competence, and not to its exclusive or shared nature.” (para. 93).

Therefore, the Court considered whether the Community, by becoming a party to the Convention, elected to exercise its external competence in matters of environmental protection.

The Court pointed out that the matters covered by the provisions of the Convention relied on by Ireland before the Arbitral Tribunal are very largely regulated by Community measures - such as Directive 85/337 and Council Directive 90/313 – and hence are rules which form part of the Community legal order.

Several of these measures were mentioned expressly in the appendix to the “Declaration of Community Competence”, by which the Community acceded to the Convention.

The Court therefore had jurisdiction to deal with disputes relating to the interpretation and application of those provisions.

The Court subsequently considered whether this jurisdiction was exclusive.

The Court reiterated that an international agreement cannot affect the allocation of responsibilities defined in the Treaties or the autonomy of the Community legal system, "compliance with which the Court ensures under Article 220" (para. 123).

The Court held that this exclusive jurisdiction of the Court is confirmed by Article 292 EC. Article 220 and 292 therefore precluded Ireland from initiating proceedings before the Arbitral Tribunal.
This also followed from the principle of loyal cooperation as enshrined in Article 10 EC

The Court reiterated, referring to Opinion 1/03, that Article 10 EC requires Member States to facilitate the achievement of the Community’s tasks and to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty.

The Member States assume similar obligations under the EAEC Treaty by virtue of Article 192 Euratom.

The Court held that “the act of submitting a dispute of this nature to a judicial forum such as the Arbitral Tribunal involves the risk that a judicial forum other than the Court will rule on the scope of obligations imposed on the Member States pursuant to Community law”(para. 174).

Text of Judgment

Relevant case law (selection)
Case C-13/00, Commission v Ireland
Case C-344/04, IATA and ELFAA
Opinion 2/00
Opinion 1/03