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Commission of the European Communities v. Ireland. Case C-459/03. Judgment

Published online by Cambridge University Press:  27 February 2017

Daniel Bodansky  and
Cesare P. R. Romano
Cesare P. R. Romano
Affiliation:
Loyola Law School Los Angeles
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Extract

Commission of the European Communities v. Ireland. Case C-459/03. Jud gment. At <http://eur-lex.europa.eu>.

Court of Justice of the European Communities (Grand Chamber), May 30, 2006.

On May 30,2006, the Court of Justice of the European Communities (ECJ) ruled on Case C-459/03, Commission v. Ireland, brought by the European Commission (Commission) and alleging Ireland's failure to fulfill obligations under the Treaty Establishing the European Community (EC Treaty). In 2001, Ireland had initiated proceedings against the United Kingdom before an ad hoc Arbitral Tribunal pursuant to the Annex VII dispute settlement procedures of the 1982 UN Convention on the Law of the Sea (LOS Convention). In the present case, the Commission alleged, first, that Ireland breached Article 292 of the EC Treaty and Article 193 of the EURATOM Treaty (EA Treaty) because, by submitting the dispute to Annex VII arbitration, Ireland failed to respect the ECJ's exclusive jurisdiction on the interpretation and application of EC law. Second, the Commission claimed that Ireland had violated Article 10 of the EC Treaty and Article 192 of the EA Treaty because, by not consulting with the Commission before initiating arbitral proceedings, Ireland had hindered the achievement of the EC's tasks and jeopardized the attainment of the objectives of the EC Treaty. The Court upheld all complaints.

Type
International Decisions
Information
American Journal of International Law , Volume 101 , Issue 1 , January 2007 , pp. 171 - 178
Copyright
Copyright © American Society of International Law 2007

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References

1 Case C–459/03, Commission v. Ireland (Eur. Ct. Justice May 30, 2006). The judgment, along with other materials associated with it, is available at <http://curia.europa.eu>. Sweden intervened in support of Ireland. For a commentary on the judgment, see Constanze, Semmelmann, Forum Shopping Between UNCLOS Arbitration and EC Adjudication—and the Winner “Should Be” the ECJ! 2006 Eur. L. Rep. 234 Google Scholar; Karen, Kaiser, AusschließlicheZuständigkeit des EuGH bei Auslegung und Anwendung von zum Gemeinschafisrecht gehörenden Bestimmungen, 17 Europäische Zeitschrift Fur Wirtschaftsrecht 470 (2006)Google Scholar.

2 Treaty Establishing The European Community, Mar. 25, 1957, 298 UNTS 11, as amended by Treaty Of Amsterdam, Oct. 2, 1997, 1997 O.J. (C 340) 1, as amended by Treaty Of Nice, Feb. 26, 2001, 2001 O.J. (C 80) 1, consolidated version reprinted in 2002 O.J. (C 325) 33 [hereinafter EC Treaty].

3 UN Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397, reprinted in 21 ILM 1261 (1982) [hereinafter LOS Convention]. The Convention, along with the judgments and others decisions of the International Tribunal for the Law of the Sea (ITLOS), are available at <http://www.un.org/Depts/los/>.

4 Treaty Establishing the European Atomic Energy Community, Mar. 25, 1957, Art. 193, 298 UNTS 167, as amended by Treaty of Nice (2001), 2001 O.J. (C 80) 1.

5 At the time of this writing, the dispute over the MOX plant is still pending before the ad hoc Annex VII Arbitral Tribunal. See infra notes 36–38 and accompanying text.

6 Short for “mixed oxide,” a uranium–plutonium oxide mixture that is derived from spent nuclear fuel and is now itself being (re)used as a fuel in nuclear reactors.

7 Convention for the Protection of the Marine Environment of the North–East Atlantic, 1992 Y.B. Int’l Envtl. L. 703, 31 ILM 1312 (1993).

8 Access to Information Under Article 9 of the OSPAR Convention (Ir. v. UK), Final Award (Arb. Trib. July 2, 2003), 42 ILM 1118 (2003), at <http://www.pca–cpa.org>. On this part of the MOX dispute, see the case report by Ted McDorman at 98 AJIL 330 (2004); Yuval, Shany, The First MOX Plant Award: The Need to Harmonize Competing Environmental Regimes and Dispute Settlement Procedures, 17 Leiden J. Int’l L. 815 (2004)Google Scholar; Robin, Churchill & Joanne, Scott, The MOX Plant Litigation: The First Half–Life, 53 Int’l & Comp. L.Q. 643 (2004)Google Scholar.

9 MOX Plant (Ir. v. UK), Order No. 3, Suspension of Proceedings on Jurisdiction and Merits (LOS Convention Annex VII Arb. Trib. June 24, 2003), 42 ILM 1187 (2003) [hereinafter Order No. 3], at <http://www.pca–cpa.org>.

10 MOX Plant (Ir. v. UK), ITLOS Case No. 10, Interim Measures (Dec. 3, 2001), 41 ILM 405 (2002).

11 The LOS Convention was signed by the EC and approved by Council Decision 98/392/EC of 23 March 1998 (1998 O.J. (L 179) 1).

12 Citing Case C–344/04, Int’l Air Transp. Assoc. v. Dep’t of Transp., para. 36 (Eur. Ct. Justice Jan. 10, 2006).

13 LOS Convention, supra note 3, Annex IX, Arts. 4, 5.

14 Declaration Made Pursuant to Article 5(1) of Annex IX to the [LOS Convention] and to Article 4(4) of the [Agreement Relating to the Implementation of Part XI of the LOS Convention] (Apr. 1, 1998) (emphasis added), at <http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm>; see Commission v. Ireland, para. 8.

15 Ireland contended breach of various articles of the Convention, including Articles 123, 192–94, 197, 206, 207, 211, and 213.

16 For example, Council Directives 85/337/EEC, 1985 O.J. (L 175) 40; 93/75/EEC, 1993 O.J. (L247) 19, and 90/313/EEC, 1990 O.J. (L 158) 56. See Commission v. Ireland, paras. 110–120, 147; see also id., para. 135 (“a significant part of the dispute in this case between Ireland and the United Kingdom relates to the interpretation or application of Community law” (emphasis added)).

17 See Opinion of the Advocate General Poiares Maduro (Jan. 18, 2006), para. 9, Commission v. Ireland, citing Nicolas Mackel, Article 292 (Ex–article 219), in Commentaire Article Par Article Des Traites Ue Et Ce 1874 (Philippe Leger ed., 2000).

18 See Iron, Rhine (“IjzerenRijn”) Railway (Belg./Neth.), Award, paras. 120, 137, 141 (Arb.Trib. May 24, 2005)Google Scholar, at <http://www.pca–cpa.org>. On the award and its significance for the MOX dispute, see Nikolaos, Lavranos, The MOX Plant and IJzeren Rijn Disputes: Which Court Is the Supreme Arbiter? 19 Leiden J. Int’l L. 249 (2006)Google Scholar.

19 The Iron Rhine case was brought before the arbitral tribunal jointly by the two countries; hence, neither was going to bring the matter before the ECJ. The Commission probably decided that because that arbitration had taken place consensually (as opposed to the MOX case, where proceedings were started unilaterally), the Commission would not bring the dispute before the ECJ either. It is worth noting that Article 292 of the EC Treaty was tangentially raised recently in Reynolds Tobacco v. Commission, Case C–131/03 P, paras. 97–103 (Eur. Ct. Justice Sept. 12, 2006), but the courts in question in that case were U.S. courts, not international ones.

20 For example, the U.S. Supreme Court has original and exclusive jurisdiction over disputes between states, U.S. Const. Art. III, §2; in Brazil, the Supreme Federal Tribunal has original jurisdiction over disputes between the Union and states, the Union and the Federal District, or between on another, C. F. Art. 102; and in the Federated States of Micronesia, the Supreme Court has original and exclusive jurisdiction in disputes between states, Const. Art. XI.6.a.

21 EC Treaty, supra note 2, Arts. 174–76 (Title XIX).

22 See also Case No. 2/00, Cartagena Protocol, [2001] ECR I–9713, para. 47.

23 This result does not, of course, prejudice disputes that member states might have with states that are not EC members.

24 Between 1958 and 2000, the EC and all or some of its member states concluded 154 mixed agreements with other subjects of public international law. Joni Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and Its Member States (2001). These agreements included several major multilateral environmental treaties/regimes, such as the International Convention for the Prevention of Pollution from Ships, Convention for the Protection of the Mediterranean Sea Against Pollution, Convention for the Protection of the Antarctic Marine Living Resources, Convention on Long–Range Transboundary Air Pollution, Vienna Convention for the Protection of the Ozone Layer and Montreal Protocol, and UN Framework Convention on Climate Change.

25 “The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights . . . against which a subsequent act incompatible with the concept of the Community cannot prevail.” Case 6/64, Flaminio Costa v. E.N.E.L, 1964 ECR 585.

26 For an account of the ECJ’s role in the building and transformation of the European polity, see Karen Alter, Establishing The Supremacy of European Law (2001).

27 For example, in Van Genden Loos v. Nederlandse Administratie der Belastingen, Case 26/62, 1963 ECR 1, the Court held that rights conferred on individuals by EC legislation should be enforceable by those individuals in national courts, but that position is nowhere to be found in the EC treaties.

28 Alter, supra note 26, at 20–21.

29 See generally Ren Barents, The Autonomy of Community Law (2004). In Van Gend en Loos, at 12, the ECJ stated that the EC Treaty had created “a new legal order of international law.” The ECJ later dropped the label “of international law” to speak of a “new legal order” tout court. Alter, supra note 26, at 2 n.2.

30 EC Treaty, supra note 2, pmbl.

31 LOS Convention, supra note 3, Art. 282.

32 On the negotiating history of, and for a commentary of, the LOS Convention dispute settlement system, see Andronico Adede, The System for Settlement of Disputes Under The United Nations Convention on the Law of The Sea: a Drafting History and a Commentary (1987); Myron Nordquist, 5 United Nations Convention on the Law of the Sea 1982: a Commentary (1989); Robin, Churchill & Vaughan, Lowe, the Law of the Sea (2d ed. 1999)Google Scholar; Natalie, Klein, Dispute Settlement In The Un Convention on the Law of The Sea (2005)Google Scholar; Bernard H., Oxman, The Third UN Conference on the Law of the Sea: The Tenth Session (1981), 76 AJIL 1 (1982)Google Scholar; and Shabtai, Rosenne, UNCLOS III—The Montreux (Riphagen) Compromise, in Realism In Law–Making 169 (Adriaan, Bos & Hugo, Siblesz eds., 1986)Google Scholar.

33 For example, the parties to the dispute pending before the Arbitral Tribunal are Ireland and the United Kingdom, and the main issue concerned the violation of the LOS Convention; the parties to the case decided by the ECJ were the Commission and Ireland, and the issue concerned the violation of EC laws.

34 In 2000, an Annex VII LOS Convention arbitral tribunal declined to exercise jurisdiction in the Southern Bluefin Tuna dispute because the 1993 Convention for the Conservation of the Southern Bluefin Tuna contains a dispute settlement clause that, according to the respondent, should have been resorted to in lieu of the dispute settlement procedure under the LOS Convention. The arbitral tribunal recognized that in that particular case, the very same dispute had arisen under two different conventions. Southern Bluefin Tuna (Austl. v. Japan; N.Z. v. Japan), Jurisdiction and Admissibility, para. 54, 39 ILM 1359 (2000) (LOS Convention Annex VII Arb. Trib. Aug. 4, 2000), see Barbara, Kwiatkowska, Case Report: Southern Bluefin Tuna (Australia and New Zealand v. Japan), Jurisdiction and Admissibility, 95 AJIL 162 (2001)Google Scholar.

35 At the time this note was prepared (November 2006), the parties were holding consultations about how to proceed in the light of the ECJ ruling. No date for a final award has been fixed yet. In the order suspending proceedings, the LOS Convention Arbitral Tribunal observed that “a procedure that might result in two conflicting decisions on the same issue would not be helpful to the resolution of the dispute between the Parties.” Order No. 3, supra note 9, para. 28. See also the June 13, 2003, Statement by the President, para. 11, at <http://www.pcacpa.org>.

36 In its Order No. 3, supra note 9, the Arbitral Tribunal suspended proceedings until December 1, 2003, and in its Order No. 4 of November 14, 2003, until the ECJ has issued its judgment.

37 Order No. 3, supra note 9, para. 28.

38 On the problems raised by competing jurisdictions, along with possible solutions, see generally Yuval, Shany, Competing Jurisdictions Of International Courts and Tribunals (2003)Google Scholar; Andrew, Bell, Forum Shopping and Venue In Transnational Litigation (2003)Google Scholar; Laurence R., Heifer, Forum Shopping for Human Rights, 148 U. Penn. L. Rev. 285 (1999)Google Scholar; Anne–Marie, Slaughter, A Global Community of Courts, 44 Harv. int’l L.J. 191 (2003); Jenny S. Martinez, Toward an International Judicial System, 56 Stan. L. Rev. 429 (2003)Google Scholar; William W., Burke–White, A Community of Courts: Toward a System of International Criminal Law Enforcement, 24 Mich.J. Int’l L. 1 (2002)Google Scholar; and Melissa A., Waters, Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, 93 Geo. L.J. 487 (2005)Google Scholar. For a summary and criticism of the various proposed solutions, see Cesare, Romano, The Shift from the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent, 39 Nyu J. Int’l. L. (forthcoming 2007)Google Scholar.