Case C-459/03
Commission of the European Communities
v
Ireland
(Failure of a Member State to fulfil obligations – United Nations Convention on the Law of the Sea –
Part XII – Protection and preservation of the marine environment – Dispute-settlement system
provided for under that convention – Arbitration proceedings initiated on the basis of that system by
Ireland against the United Kingdom – Dispute relating to the MOX plant at Sellafield (United
Kingdom) – Irish Sea – Articles 292 EC and 193 EA – Undertaking not to submit a dispute relating to
the interpretation or application of the Treaty to a method of settlement other than those provided for
by the Treaty – Mixed agreement – Community competence – Articles 10 EC and 192 EA – Duty of
cooperation)
Summary of the Judgment
1. International agreements – Community agreements – Convention on the Law of the Sea
(Arts 175(1) EC and 176 EC)
2. International agreements – Community agreements – Convention on the Law of the Sea
(Arts 220 EC, 227 EC and 292 EC)
3. Member States – Obligations
(Arts 227 EC and 292 EC; Arts 142 EA and 193 EA)
4. Member States – Obligations – General obligation resulting from Article 10 EC
(Arts 10 EC and 292 EC)
5. Member States – Obligations – Obligation of cooperation
(Art. 10 EC; Art. 192 EA)
1. Article 175(1) EC is the appropriate legal basis for the conclusion, on behalf of the
Community, of international agreements on protection of the environment. As indicated in
Article 176 EC, that external competence of the Community in regard to protection of the
environment is not exclusive but rather, in principle, shared between the Community and the
Member States. However, 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. It follows that
the existence of the Community’s external competence in regard to protection of the marine
environment is not, in principle, contingent on the adoption of measures of secondary law
covering the area in question and liable to be affected if Member States were to take part in
the procedure for concluding the agreement in question. The Community can enter into
agreements in the area of environmental protection even if the specific matters covered by
those agreements are not yet, or are only very partially, the subject of rules at Community
level, which, by reason of that fact, are not likely to be affected.
However, within the specific context of the United Nations Convention on the Law of the Sea, a
finding that there has been a transfer to the Community of areas of shared competence is
contingent on the existence of Community rules within the areas covered by the Convention
provisions in issue, irrespective of what may otherwise be the scope and nature of those
rules. The matters covered by the provisions of the Convention on the prevention of marine
pollution, in particular Articles 123, 192, 193, 194, 197, 206, 207, 211 and 213 of that
Convention, are very largely regulated by Community measures, several of which are,
moreover, mentioned expressly in the appendix to the declaration of Community competence
annexed to Council Decision 98/392, by which the Convention was approved on behalf of the
Community. It follows that those provisions of the Convention come within the scope of
Community competence which the Community has elected to exercise by becoming a party
to the Convention, with the result that they are rules which form part of the Community legal
order. The Court accordingly has jurisdiction to deal with disputes relating to the
interpretation and application of those provisions and to assess a Member State’s
compliance with them.
(see paras 90, 92-95, 108, 110, 120 and 121)
2. An international agreement, such as the United Nations Convention on the Law of the Sea,
cannot affect the allocation of responsibilities defined in the Treaties and, consequently, the
autonomy of the Community legal system, compliance with which the Court ensures under
Article 220 EC. That exclusive jurisdiction of the Court is confirmed by Article 292 EC, by
which Member States undertake not to submit a dispute concerning the interpretation or
application of the EC Treaty to any method of settlement other than those provided for
therein. Moreover, the Convention in question precisely makes it possible to avoid such a
breach of the Court’s exclusive jurisdiction in such a way as to preserve the autonomy of the
Community legal system. It follows from Article 282 of the Convention that, as it provides for
procedures resulting in binding decisions in respect of the resolution of disputes between
Member States, the system for the resolution of disputes set out in the EC Treaty must in
principle take precedence over that contained in Part XV of the Convention.
It follows that Articles 220 EC and 292 EC preclude the initiation of proceedings before an
arbitral tribunal established pursuant to Annex VII to the Convention with a view to resolving
a dispute concerning the interpretation or application of provisions of the Convention coming
within the scope of the competence of the Community which the latter exercised by acceding
to that Convention, with the result that the provisions in issue form an integral part of the
Community legal order. Moreover, a dispute between two Member States in regard to an
alleged failure to comply with Community-law obligations resulting from that Convention is
clearly covered by one of the methods of dispute settlement established by the Treaty within
the terms of Article 292 EC, namely the procedure set out in Article 227 EC.
(see paras 123-126, 128, 133)
3. The submission by a Member State of instruments of Community law covered by the EC and
EAEC Treaties to a judicial forum other than the Court, such as an arbitral tribunal
established pursuant to Annex VII to the United Nations Convention on the Law of the Sea,
for purposes of their interpretation and application in the context of proceedings seeking a
declaration that another Member State had breached the provisions of those instruments is
at variance with the obligation imposed on Member States by Articles 292 EC and 193 EA to
respect the exclusive nature of the Court’s jurisdiction to resolve disputes concerning the
interpretation and application of provisions of Community law, in particular by having
recourse to the procedures set out respectively in Articles 227 EC and 142 EA for the
purpose of obtaining a declaration that another Member State has breached those
provisions. Furthermore, in those circumstances, the institution and pursuit of proceedings
before the arbitral tribunal involve a manifest risk that the jurisdictional order laid down in the
Treaties and, consequently, the autonomy of the Community legal system may be adversely
affected.
(see paras 151, 152 and 154)
4. The obligation devolving on Member States, set out in Article 292 EC, to have recourse to the
Community judicial system and to respect the Court’s exclusive jurisdiction, which is a
fundamental feature of that system, must be understood as a specific expression of the
Member States’ more general duty of loyalty resulting from Article 10 EC. It is for that reason
unnecessary to find that there has been a failure to comply with the general obligations
contained in Article 10 EC if a failure to comply with the more specific Community obligations
devolving on a Member State pursuant to Article 292 EC has already been established.
(see paras 169, 171)
5. The Member States and the Community institutions have an obligation of close cooperation in
fulfilling the commitments assumed by them under joint competence when they conclude a
mixed agreement. That is in particular the position in the case of a dispute concerning
essentially undertakings resulting from a mixed agreement which relates to an area in which
the respective areas of competence of the Community and the Member States are liable to
be closely interrelated. The act of submitting a dispute of this nature to a judicial forum such
as an arbitral tribunal established pursuant to Annex VII to the United Nations Convention on
the Law of the Sea involves the risk that a judicial forum other than the Court of Justice will
rule on the scope of obligations imposed on the Member States pursuant to Community law.
In those circumstances, the obligation of close cooperation within the framework of a mixed
agreement involves, on the part of a Member State, a duty to inform and consult the
competent Community institutions prior to instituting dispute-settlement proceedings under
the Convention.
(see paras 175-177, 179)
JUDGMENT OF THE COURT (Grand Chamber)
30 May 2006 (*)
(Failure of a Member State to fulfil obligations – United Nations Convention on the Law of the Sea –
Part XII – Protection and preservation of the marine environment – Dispute-settlement system
provided for under that convention – Arbitration proceedings initiated on the basis of that system by
Ireland against the United Kingdom – Dispute relating to the MOX plant at Sellafield (United
Kingdom) – Irish Sea – Articles 292 EC and 193 EA – Undertaking not to submit a dispute relating to
the interpretation or application of the Treaty to a method of settlement other than those provided for
by the Treaty – Mixed agreement – Community competence – Articles 10 EC and 192 EA – Duty of
cooperation)
In CaseC-459/03,
ACTION for failure to fulfil obligations under Article 226 EC and Article 141 EA, brought on 30
October 2003,
Commission of the European Communities, represented by P.J. Kuijper and M.B. Martenczuk,
acting as Agents, with an address for service in Luxembourg,
applicant,
supported by:
United Kingdom of Great Britain and Northern Ireland, represented by C. Jackson and C. Gibbs,
acting as Agents, and by R. Plender QC, with an address for service in Luxembourg,
intervener,
v
Ireland, represented by R. Brady and D. O’Hagan, acting as Agents, and by P. Sreenan and E.
Fitzsimons, SC, P. Sands QC, and N. Hyland, BL, with an address for service in Luxembourg,
defendant,
supported by:
Kingdom of Sweden, represented by K. Wistrand, acting as Agent,
intervener,
THE COURT (Grand Chamber),
composed of V. Skouris, President, P. Jann, C.W.A. Timmermans (Rapporteur) and J. Malenovský,
Presidents of Chambers, J.-P. Puissochet, R. Schintgen, N. Colneric, S. von Bahr, J.N. Cunha
Rodrigues, M. Ilešič, J. Klučka, U. Lõhmus and E. Levits, Judges,
Advocate General: M. Poiares Maduro,
Registrar: L. Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 8 November 2005,
after hearing the Opinion of the Advocate General at the sitting on 18 January 2006,
gives the following
Judgment
1 By its application, the Commission of the European Communities seeks a declaration by the Court
that, by instituting dispute-settlement proceedings against the United Kingdom of Great Britain and
Northern Ireland under the United Nations Convention on the Law of the Sea (‘the Convention’)
concerning the MOX plant located at Sellafield (United Kingdom), Ireland has failed to fulfil its
obligations under Articles 10 EC and 292 EC and Articles 192 EA and 193 EA.
Legal context
2 The Convention, which was signed at Montego Bay (Jamaica) on 10 December 1982, came into
force on 16 November 1994.
3 The Convention was approved on behalf of the European Community by Council Decision 98/392/EC
of 23 March 1998 (OJ 1998 L 179, p. 1). The Convention has also been ratified by all of the Member
States of the European Union.
4 On 21 June 1996, at the time when the Convention was being ratified by Ireland, that Member State
made the following declaration:
‘Ireland recalls that, as a State member of the European Community, it has transferred competence
to the Community in regard to certain matters which are governed by the Convention. A detailed
declaration on the nature and extent of the competence transferred to the European Community will
be made in due course in accordance with the provisions of Annex IX to the Convention.’
5 According to the first citation in the preamble to Decision 98/392:
‘Having regard to the Treaty establishing the European Community, and in particular Articles 43
[now, after amendment, Article 37 EC], 113 [now, after amendment, Article 133 EC], and 130s(1)
[now, after amendment, Article 175(1) EC], in conjunction with the first sentence of Article 228(2) and
the second subparagraph of Article 228(3) thereof [now, after amendment, the first sentence of
Article 300(2) EC and the second subparagraph of Article 300(3) EC]’.
6 The third, fifth and sixth recitals in the preamble to that decision read as follows:
‘Whereas the conditions permitting the Community to deposit the instrument of formal confirmation
provided for in Article 3 of Annex IX to the Convention and referred to in Article 4(4) of the Agreement
have been fulfilled;
…
Whereas the Convention … should be approved to enable the Community to become a party to [it]
within the limits of its competence;
Whereas the Community must, when depositing the instrument of formal confirmation, also deposit a
declaration specifying the matters governed by the Convention … in respect of which competence
has been transferred to it by its Member States …’
7 Article 1 of Decision 98/392 provides:
‘1. The United Nations Convention on the Law of the Sea and the Agreement relating to the
implementation of Part XI thereof are hereby approved on behalf of the European Community.
2. The texts of the Convention and the Agreement appear in Annex I.
3. The Community’s instrument of formal confirmation, which appears in Annex II, shall be
deposited with the Secretary-General of the United Nations. It shall comprise a declaration under
Article 310 of the Convention and a declaration of competence.’
8 The declaration of competence referred to in Article 1(3) of Decision 98/392 (‘the Declaration of
Community competence’) is worded as follows:
‘DECLARATION CONCERNING THE COMPETENCE OF THE EUROPEAN COMMUNITY WITH
REGARD TO MATTERS GOVERNED BY THE UNITED NATIONS CONVENTION ON THE LAW OF
THE SEA OF 10 DECEMBER 1982 AND THE AGREEMENT OF 28 JULY 1994 CONCERNING THE
APPLICATION OF PART XI OF THAT CONVENTION
(Declaration made pursuant to Article 5(1) of Annex IX to the Convention and to Article 4(4) of the
Agreement)
Article 5(1) of Annex IX to the United Nations Convention on the Law of the Sea provides that the
instrument of formal confirmation of an international organisation shall contain a declaration
specifying the matters governed by the Convention in respect of which competence has been
transferred to the organisation by its Member States which are Parties to the Convention. …
…
The European Communities were established by the Treaties of Paris (ECSC) and of Rome (EEC
and Euratom), signed on 18 April 1951 and 25 March 1957 respectively. … [Those Treaties] were
amended by the Treaty on European Union, signed in Maastricht on 7 February 1992 …
…
In accordance with the provisions referred to above, this declaration indicates the competence that
the Member States have transferred to the Community under the Treaties in matters governed by the
Convention.
…
The Community has exclusive competence for certain matters and shares competence with its
Member States for certain other matters.
1. Matters for which the Community has exclusive competence
– The Community points out that its Member States have transferred competence to it
with regard to the conservation and management of sea fishing resources. Hence in
this field it is for the Community to adopt the relevant rules and regulations (which are
enforced by the Member States) and, within its competence, to enter into external
undertakings with third States or competent international organisations. …
– By virtue of its commercial and customs policy, the Community has competence in
respect of those provisions of Parts X and XI of the Convention and of the Agreement
of 28 July 1994 which are related to international trade.
2. Matters for which the Community shares competence with its Member States
– With regard to fisheries, for a certain number of matters that are not directly related to
the conservation and management of sea fishing resources, for example research and
technological development and development cooperation, there is shared competence.
– With regard to the provisions on maritime transport, safety of shipping and the
prevention of marine pollution contained, inter alia in Parts II, III, V, VII and XII of the
Convention, the Community has exclusive competence only to the extent that such
provisions of the Convention or legal instruments adopted in implementation thereof
affect common rules established by the Community. When Community rules exist but
are not affected, in particular in cases of Community provisions establishing only
minimum standards, the Member States have competence, without prejudice to the
competence of the Community to act in this field. Otherwise competence rests with the
Members States.
A list of relevant Community acts appears in the Appendix. The extent of Community
competence ensuing from these acts must be assessed by reference to the precise
provisions of each measure, and in particular, the extent to which these provisions
establish common rules.
…
Appendix
COMMUNITY ACTS WHICH REFER TO MATTERS GOVERNED BY THE CONVENTION AND
THE AGREEMENT
– In the maritime safety and prevention of marine pollution sectors
…
Council Directive 93/75/EEC of 13 September 1993 concerning minimum requirements for
vessels bound for or leaving Community ports and carrying dangerous or polluting goods (OJ
L 247, 5.10.1993, p. 19)
…
– In the field of protection and preservation of the marine environment (Part XII of the
Convention)
…
Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain
public and private projects on the environment (OJ L 175, 5.7.1985, p. 40)
…
– Conventions to which the Community is a party
Convention for the prevention of marine pollution from land-based sources, Paris, 4 June 1974
(Council Decision75/437/EEC of 3 March 1975, published in OJ L 194, 25.7.1975, p. 5)
Protocol amending the Convention for the prevention of marine pollution from land-based
sources, Paris, 26 March 1986 (Council Decision 87/57/EEC of 22 December 1986, published
in OJ L 24, 27.1.1987, p. 46)
…’
9 Part IX of the Convention, entitled ‘Enclosed or semi-enclosed seas’, consists of Articles 122 and
123, which are worded as follows:
‘Article 122
Definition
For the purposes of this Convention, “enclosed or semi-enclosed sea” means a gulf, basin or sea
surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or
consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more
coastal States.
Article 123
Cooperation of States bordering enclosed or semi-enclosed seas
States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise
of their rights and in the performance of their duties under this Convention. To this end they shall
endeavour, directly or through an appropriate regional organisation:
…
(b) to coordinate the implementation of their rights and duties with respect to the protection and
preservation of the marine environment;
…’
10 Articles 192 to 194 of the Convention, which form part of Section 1, entitled ‘General provisions’, of
Part XII, entitled ‘Protection and preservation of the marine environment’, provide as follows:
‘Article 192
General obligation
States have the obligation to protect and preserve the marine environment.
Article 193
Sovereign right of States to exploit their natural resources
States have the sovereign right to exploit their natural resources pursuant to their environmental
policies and in accordance with their duty to protect and preserve the marine environment.
Article 194
Measures to prevent, reduce and control pollution of the marine environment
1. States shall take, individually or jointly as appropriate, all measures consistent with this
Convention that are necessary to prevent, reduce and control pollution of the marine environment
from any source, using for this purpose the best practicable means at their disposal and in
accordance with their capabilities, and they shall endeavour to harmonise their policies in this
connection.
2. States shall take all measures necessary to ensure that activities under their jurisdiction or
control are so conducted as not to cause damage by pollution to other States and their environment,
and that pollution arising from incidents or activities under their jurisdiction or control does not spread
beyond the areas where they exercise sovereign rights in accordance with this Convention.
3. The measures taken pursuant to this part shall deal with all sources of pollution of the marine
environment. These measures shall include, inter alia, those designed to minimise to the fullest
possible extent:
(a) the release of toxic, harmful or noxious substances, especially those which are persistent,
from land-based sources, from or through the atmosphere or by dumping;
(b) pollution from vessels, in particular measures for preventing accidents and dealing with
emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional
discharges, and regulating the design, construction, equipment, operation and manning of
vessels;
(c) pollution from installations and devices used in exploration or exploitation of the natural
resources of the seabed and subsoil, in particular measures for preventing accidents and
dealing with emergencies, ensuring the safety of operations at sea, and regulating the design,
construction, equipment, operation and manning of such installations or devices;
(d) pollution from other installations and devices operating in the marine environment, in particular
measures for preventing accidents and dealing with emergencies, ensuring the safety of
operations at sea, and regulating the design, construction, equipment, operation and manning
of such installations or devices.
4. In taking measures to prevent, reduce or control pollution of the marine environment, States
shall refrain from unjustifiable interference with activities carried out by other States in the exercise of
their rights and in pursuance of their duties in conformity with this Convention.
5. The measures taken in accordance with this part shall include those necessary to protect and
preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered
species and other forms of marine life’.
11 Articles 204 to 206 of the Convention, which feature in Section 4 of Part XII thereof, entitled
‘Monitoring and environmental assessment’, provide as follows:
‘Article 204
Monitoring of the risks or effects of pollution
1. States shall, consistent with the rights of other States, endeavour, as far as practicable, directly
or through the competent international organisations, to observe, measure, evaluate and analyse, by
recognised scientific methods, the risks or effects of pollution of the marine environment.
2. In particular, States shall keep under surveillance the effects of any activities which they permit
or in which they engage in order to determine whether these activities are likely to pollute the marine
environment.
Article 205
Publication of reports
States shall publish reports of the results obtained pursuant to Article 204 or provide such reports at
appropriate intervals to the competent international organisations, which should make them available
to all States.
Article 206
Assessment of potential effects of activities
When States have reasonable grounds for believing that planned activities under their jurisdiction or
control may cause substantial pollution of or significant and harmful changes to the marine
environment, they shall, as far as practicable, assess the potential effects of such activities on the
marine environment and shall communicate reports of the results of such assessments in the manner
provided in Article 205.’
12 Section 5 of Part XII of the Convention, entitled ‘International rules and national legislation to prevent,
reduce and control pollution of the marine environment’, includes in particular Articles 207 and 211,
which are worded as follows:
‘Article 207
Pollution from land-based sources
1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine
environment from land-based sources, including rivers, estuaries, pipelines and outfall structures,
taking into account internationally agreed rules, standards and recommended practices and
procedures.
2. States shall take other measures as may be necessary to prevent, reduce and control such
pollution.
3. States shall endeavour to harmonise their policies in this connection at the appropriate regional
level.
4. States, acting especially through competent international organisations or diplomatic
conference, shall endeavour to establish global and regional rules, standards and recommended
practices and procedures to prevent, reduce and control pollution of the marine environment from
land-based sources, taking into account characteristic regional features, the economic capacity of
developing States and their need for economic development. Such rules, standards and
recommended practices and procedures shall be re-examined from time to time as necessary.
5. Laws, regulations, measures, rules, standards and recommended practices and procedures
referred to in paragraphs 1, 2 and 4 shall include those designed to minimise, to the fullest extent
possible, the release of toxic, harmful or noxious substances, especially those which are persistent,
into the marine environment.’
‘Article 211
Pollution from vessels
1. States, acting through the competent international organisation or general diplomatic
conference, shall establish international rules and standards to prevent, reduce and control pollution
of the marine environment from vessels and promote the adoption, in the same manner, wherever
appropriate, of routing systems designed to minimise the threat of accidents which might cause
pollution of the marine environment, including the coastline, and pollution damage to the related
interests of coastal States. Such rules and standards shall, in the same manner, be re-examined
from time to time as necessary.
2. States shall adopt laws and regulations for the prevention, reduction and control of pollution of
the marine environment from vessels flying their flag or of their registry. Such laws and regulations
shall at least have the same effect as that of generally accepted international rules and standards
established through the competent international organisation or general diplomatic conference.
…’
13 Article 213 of the Convention, which features in Section 6, entitled ‘Enforcement’, of Part XII thereof,
provides as follows:
‘Enforcement with respect to pollution from land-based sources
States shall enforce their laws and regulations adopted in accordance with Article 207 and shall
adopt laws and regulations and take other measures necessary to implement applicable international
rules and standards established through competent international organisations or diplomatic
conference to prevent, reduce and control pollution of the marine environment from land-based
sources.’
14 Part XV of the Convention, entitled ‘Settlement of disputes’, contains a Section 1 (‘General
provisions’). Article 282, which features in that section, provides as follows:
‘Obligations under general, regional or bilateral agreements
If the States Parties which are parties to a dispute concerning the interpretation or application of this
Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such
dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a
binding decision, that procedure shall apply in lieu of the procedures provided for in this part, unless
the parties to the dispute otherwise agree.’
15 Articles 286 to 288 of the Convention, which are in Section 2, entitled ‘Compulsory procedures
entailing binding decisions’, of Part XV thereof, read as follows:
‘Article 286
Application of procedures under this section
Subject to Section 3, any dispute concerning the interpretation or application of this Convention shall,
where no settlement has been reached by recourse to Section 1, be submitted at the request of any
party to the dispute to the court or tribunal having jurisdiction under this section.
Article 287
Choice of procedure
1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be
free to choose, by means of a written declaration, one or more of the following means for the
settlement of disputes concerning the interpretation or application of this Convention:
(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with Annex VII;
(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the
categories of disputes specified therein.
…
Article 288
Jurisdiction
1. A court or tribunal referred to in Article 287 shall have jurisdiction over any dispute concerning
the interpretation or application of this Convention which is submitted to it in accordance with this
part.
2. A court or tribunal referred to in Article 287 shall also have jurisdiction over any dispute
concerning the interpretation or application of an international agreement related to the purposes of
this Convention, which is submitted to it in accordance with the agreement.
…’
16 Article 290 of the Convention, which also features in Section 2 of Part XV, provides that a court or
tribunal to which a dispute has been duly submitted may prescribe provisional measures.
17 Article 293 of the Convention, which also features in that section of Part XV thereof, is worded as
follows:
‘Applicable law
1. A court or tribunal having jurisdiction under this Section shall apply this Convention and other
rules of international law not incompatible with this Convention.
…’
18 Article 296, which is also contained in Section 2 of Part XV of the Convention, provides:
‘Finality and binding force of decisions
1. Any decision rendered by a court or tribunal having jurisdiction under this Section shall be final and
shall be complied with by all the parties to the dispute.
2. Any such decision shall have no binding force except between the parties and in respect of that
particular dispute.’
19 Annex IX to the Convention, which is entitled ‘Participation by international organisations’, includes
the following provisions:
‘Article 1
Use of terms
For the purposes of Article 305 and of this Annex, “international organisation” means an
intergovernmental organisation constituted by States to which its Member States have transferred
competence over matters governed by this Convention, including the competence to enter into
treaties in respect of those matters.
Article 2
Signature
An international organisation may sign this Convention if a majority of its Member States are
signatories of this Convention. At the time of signature an international organisation shall make a
declaration specifying the matters governed by this Convention in respect of which competence has
been transferred to that organisation by its Member States which are signatories, and the nature and
extent of that competence.
Article 3
Formal confirmation and accession
1. An international organisation may deposit its instrument of formal confirmation or of accession if
a majority of its Member States deposit or have deposited their instruments of ratification or
accession.
2. The instruments deposited by the international organisation shall contain the undertakings and
declarations required by Articles 4 and 5 of this Annex.
Article 4
Extent of participation and rights and obligations
1. The instrument of formal confirmation or of accession of an international organisation shall
contain an undertaking to accept the rights and obligations of States under this Convention in respect
of matters relating to which competence has been transferred to it by its Member States which are
Parties to this Convention.
2. An international organisation shall be a Party to this Convention to the extent that it has
competence in accordance with the declarations, communications of information or notifications
referred to in Article 5 of this Annex.
3. Such an international organisation shall exercise the rights and perform the obligations which
its Member States which are Parties would otherwise have under this Convention, on matters relating
to which competence has been transferred to it by those Member States. The Member States of that
international organisation shall not exercise competence which they have transferred to it.
4. Participation of such an international organisation shall in no case entail an increase of the
representation to which its Member States which are States Parties would otherwise be entitled,
including rights in decision-making.
5. Participation of such an international organisation shall in no case confer any rights under this
Convention on Member States of the organisation which are not States Parties to this Convention.
6. In the event of a conflict between the obligations of an international organisation under this
Convention and its obligations under the agreement establishing the organisation or any acts relating
to it, the obligations under this Convention shall prevail.
Article 5
Declarations, notifications and communications
1. The instrument of formal confirmation or of accession of an international organisation shall
contain a declaration specifying the matters governed by this Convention in respect of which
competence has been transferred to the organisation by its Member States which are Parties to this
Convention.
2. A Member State of an international organisation shall, at the time it ratifies or accedes to this
Convention or at the time when the organisation deposits its instrument of formal confirmation or of
accession, whichever is later, make a declaration specifying the matters governed by this Convention
in respect of which it has transferred competence to the organisation.
3. States Parties which are Member States of an international organisation which is a Party to this
Convention shall be presumed to have competence over all matters governed by this Convention in
respect of which transfers of competence to the organisation have not been specifically declared,
notified or communicated by those States under this Article.
4. The international organisation and its Member States which are States Parties shall promptly
notify the depositary of this Convention of any changes to the distribution of competence, including
new transfers of competence, specified in the declarations under paragraphs 1 and 2.
5. Any State Party may request an international organisation and its Member States which are
States Parties to provide information as to which, as between the organisation and its Member
States, has competence in respect of any specific question which has arisen. The organisation and
the Member States concerned shall provide this information within a reasonable time. The
international organisation and the Member States may also, on their own initiative, provide this
information.
6. Declarations, notifications and communications of information under this Article shall specify
the nature and extent of the competence transferred.
…’
Background to the dispute
The dispute between Ireland and the United Kingdom concerning the MOX plant
20 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. Those facilities include the so-called MOX and
THORP plants.
21 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.
22 Some of the material used in the MOX plant originates in the thermal oxide reprocessing plant, or
THORP, in which spent nuclear fuel from nuclear reactors in the United Kingdom and other countries
is reprocessed in order to extract from it the plutonium dioxide and uranium dioxide.
23 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 (‘the 1993 environmental statement’).
24 In 1996 BNFL submitted an application to the UK Environment Agency for authorisation to operate
the MOX plant.
25 On 11 February 1997 the Commission, basing itself on information provided by the United Kingdom
Government, delivered an opinion pursuant to Article 37 EA on the plan for the disposal of
radioactive waste arising from the operation of the MOX facility (OJ 1997 C 68, p. 4) in which it
concluded that ‘the implementation of the plan for the disposal of radioactive wastes arising from the
operation of the BNFL Sellafield mixed oxide fuel plant, both in normal operation and in the event of
an accident of the type and magnitude considered in the general data, is not liable to result in
radioactive contamination, significant from the point of view of health, of the water, soil or airspace of
another Member State.’
26 In addition, with a view to meeting the requirements laid down by Council Directive 80/836/Euratom
of 15 July 1980 amending the Directives laying down the basic safety standards for the health
protection of the general public and workers against the dangers of ionizing radiation (OJ 1980 L
246, p. 1), an assessment of the economic justification for the MOX plant was prepared by a private
consulting firm (‘the PA report’), a version of which was published in 1997.
27 Between April 1997 and August 2001 the United Kingdom authorities also organised five rounds of
public consultations on the economic justification for the MOX plant. On 3 October 2001 those
authorities decided that the MOX plant was economically justified within the terms of Article 6(1) of
Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the
protection of the health of workers and the general public against the dangers arising from ionizing
radiation (OJ 1996 L 159, p. 1), which repealed Directive 80/836 with effect from 13 May 2000.
28 Between 1994 and June 2001 Ireland submitted its views on the MOX plant to the United Kingdom
authorities on several occasions. In particular, Ireland repeatedly questioned the soundness of the
1993 environmental statement and of the decision concerning the economic justification for the plant.
Ireland also contested the basis on which the rounds of consultations had been conducted and
requested more information than that contained in the public version of the PA report.
29 In a press statement of 4 October 2001 the Irish Minister with responsibility for nuclear safety
announced that Ireland was considering lodging a complaint pursuant to the Convention which would
centre on the failure to carry out a proper assessment of the impact which the MOX plant would have
on the environment.
Dispute-settlement proceedings brought by Ireland in regard to the MOX plant
30 On 15 June 2001 Ireland forwarded to the United Kingdom a request for the constitution of an arbitral
tribunal and a statement of claim pursuant to Article 32 of the Convention for the Protection of the
Marine Environment of the North-East Atlantic, which was signed in Paris on 22 September 1992 and
approved on behalf of the Community by Council Decision 98/249/EC of 7 October 1997 (OJ 1998
L 104, p. 1). That convention replaces, inter alia, the Paris conventions for the prevention of marine
pollution from land-based sources to which the Community was already a party and which, as such,
were mentioned in the annex to the Declaration of Community competence.
31 In that request, Ireland claimed that the United Kingdom had failed in its obligations under Article 9 of
that convention by refusing to provide Ireland with a complete copy of the PA report.
32 On 2 July 2003 the arbitral tribunal constituted pursuant to that convention dismissed Ireland’s claim.
33 The institution of those proceedings is not, however, covered by the present action for failure to fulfil
obligations.
34 On 25 October 2001 Ireland notified the United Kingdom that, under Article 287 of the Convention, it
was instituting before the arbitral tribunal provided for in Annex VII to that convention (‘the Arbitral
Tribunal’) proceedings for the purpose of resolving ‘the dispute concerning the MOX plant,
international movements of radioactive materials and the protection of the marine environment of the
Irish Sea’.
35 In its statement of claim, Ireland requested the Arbitral Tribunal to order and declare:
‘(1) That the United Kingdom has breached its obligations under Articles 192 and 193 and/or
Article 194 and/or Article 207 and/or Articles 211 and 213 of [the Convention] in relation to the
authorisation of the MOX plant, including by failing to take the necessary measures to prevent,
reduce and control pollution of the marine environment of the Irish Sea from (1) intended
discharges of radioactive materials and/or wastes from the MOX plant, and/or (2) accidental
releases of radioactive materials and/or wastes from the MOX plant and/or international
movements associated with the MOX plant, and/or (3) releases of radioactive materials and/or
wastes from the MOX plant and/or international movements associated with the MOX plant or
resulting from terrorist act;
(2) That the United Kingdom has breached its obligations under Articles 192 and 193 and/or
Article 194 and/or Article 207 and/or Articles 211 and 213 of [the Convention] in relation to the
authorisation of the MOX plant by failing (1) properly or at all to assess the risk of terrorist
attack on the MOX plant and international movements of radioactive material associated with
the plant, and/or (2) properly or at all to prepare a comprehensive response strategy or plan to
prevent, contain and respond to terrorist attack on the MOX plant and international
movements of radioactive waste associated with the plant;
(3) That the United Kingdom has breached its obligations under Articles 123 and 197 of [the
Convention] in relation to the authorisation of the MOX plant, and has failed to cooperate with
Ireland in the protection of the marine environment of the Irish Sea inter alia by refusing to
share information with Ireland and/or refusing to carry out a proper environmental assessment
of the impacts on the marine environment of the MOX plant and associated activities and/or
proceeding to authorise the operation of the MOX plant whilst proceedings relating to the
settlement of a dispute on access to information were still pending;
(4) That the United Kingdom has breached its obligations under Article 206 of [the Convention] in
relation to the authorisation of the MOX plant, including by
(a) failing, by its 1993 Environmental Statement, properly and fully to assess the potential
effects of the operation of the MOX plant on the marine environment of the Irish Sea;
and/or
(b) failing, since the publication of its 1993 Environmental Statement, to assess the
potential effects of the operation of the MOX plant on the marine environment by
reference to the factual and legal developments which have arisen since 1993, and in
particular since 1998; and/or
(c) failing to assess the potential effects on the marine environment of the Irish Sea of
international movements of radioactive materials to be transported to and from the
MOX plant; and/or
(d) failing to assess the risk of potential effects on the marine environment of the Irish Sea
arising from terrorist act or acts on the MOX plant and/or on international movements of
radioactive material to and from the MOX plant;
(5) That the United Kingdom shall refrain from authorising or failing to prevent (a) the operation of
the MOX plant and/or (b) international movements of radioactive materials into and out of the
United Kingdom related to the operation of the MOX plant or any preparatory or other activities
associated with the operation of the MOX plant until such time as (1) there has been carried
out a proper assessment of the environmental impact of the operation of the MOX plant as
well as related international movements of radioactive materials, and (2) it is demonstrated
that the operation of the MOX plant and related international movements of radioactive
materials will result in the deliberate discharge of no radioactive materials, including wastes,
directly or indirectly into the marine environment of the Irish Sea, and (3) there has been
agreed and adopted jointly with Ireland a comprehensive strategy paper or plan to prevent,
contain and respond to terrorist attack on the MOX plant and international movements of
radioactive waste associated with the plant;
(6) That the United Kingdom pays Ireland’s costs of the proceedings.’
36 The statement of claim adds that, with respect to the law to be applied by it, ‘the arbitral tribunal will
also be asked to take into account, as appropriate, the provisions of other international instruments,
including international conventions and European Community laws …’.
37 Referring to Article 293 of the Convention, the statement of claim also states that ‘Ireland considers
that the provisions of the [Convention] fall to be construed by reference to other international rules
which are binding upon Ireland and the United Kingdom, including the [Convention for the Protection
of the Marine Environment of the North-East Atlantic] …, Directive 85/337/EEC and Directives
80/836/Euratom and 96/29/Euratom’.
38 On 9 November 2001 Ireland also submitted a request for provisional measures to the International
Tribunal for the Law of the Sea pursuant to Article 290(5) of the Convention, in which it requested in
particular that the United Kingdom suspend immediately the authorisation for the operation of the
MOX plant.
39 By order of 3 December 2001 (Case 10, ‘The Mox Plant Case’, Ireland v. United Kingdom), the
International Tribunal for the Law of the Sea prescribed the following interim measures, which
differed from those requested by Ireland:
‘Ireland and the United Kingdom shall cooperate and shall, for this purpose, enter into consultations
forthwith in order to:
(a) exchange further information with regard to possible consequences for the Irish Sea arising
out of the commissioning of the MOX plant;
(b) monitor risks or the effects of the operation of the MOX plant for the Irish Sea;
(c) devise, as appropriate, measures to prevent pollution of the marine environment which might
result from the operation of the MOX plant.’
40 In that order the Tribunal declared that it had prima facie jurisdiction and rejected the objection of lack
of jurisdiction raised by the United Kingdom on the basis of Article 282 of the Convention to the effect
that certain aspects of Ireland’s complaints fell within the scope of Community law and that the Court
of Justice therefore had exclusive jurisdiction to deal with the dispute.
41 That objection of lack of jurisdiction was once again raised by the United Kingdom in the course of
the written procedure before the Arbitral Tribunal and was the subject of pleadings during the
hearings before that Tribunal.
42 By order of 24 June 2003, notified to the Commission on 27 June 2003, the Arbitral Tribunal decided
to suspend the proceedings until 1 December 2003 and asked to be more extensively informed, by
that date, as to the implications of Community law in regard to the dispute pending before it.
43 In that order, the Arbitral Tribunal noted that problems closely related to Community law had arisen
concerning important issues such as the standing of Ireland and the United Kingdom, the division of
areas of competence between the Community and its Member States in respect of the Convention,
the extent to which the provisions invoked by the parties could be relied upon by the Arbitral Tribunal
and the question of the exclusive jurisdiction of the Court of Justice.
44 The Tribunal took the view in this regard that there was a real possibility that the Court of Justice
might be seised of the dispute and rule that the dispute was a matter of Community law, thereby
precluding the Tribunal’s jurisdiction under Article 282 of the Convention.
45 The Arbitral Tribunal went on to observe that the issues on which its jurisdiction depends concern
essentially the internal operation of a separate legal order, namely the legal order of the Community,
and that those issues must be resolved within the institutional framework of the Community and, in
particular, by the Court of Justice.
46 In that connection, the Arbitral Tribunal took the view that, given the risk of conflicting decisions and
bearing in mind considerations of mutual respect and comity between judicial institutions, it would not
be appropriate to continue the proceedings without a resolution of the issues touching on Community
law. The Arbitral Tribunal also enjoined the parties to take the appropriate steps separately or jointly
to expedite resolution of the outstanding issues within the institutional framework of the European
Communities.
47 By that order the Arbitral Tribunal also confirmed the provisional measures previously prescribed by
the International Tribunal for the Law of the Sea and refused the further provisional measures
requested by Ireland.
48 Following the Commission’s decision to bring the present action for failure to fulfil obligations, Ireland
requested the Arbitral Tribunal to suspend hearings until the Court of Justice has delivered judgment
in the present case. The Tribunal acceded to that request by order of 14 November 2004.
The proceedings for failure to fulfil obligations
49 The Commission was informed of the proceedings brought by Ireland before the Arbitral Tribunal
established under the Convention for the Protection of the Marine Environment of the North-East
Atlantic (see paragraph 30 of the present judgment) by a letter of 18 June 2001 from the Executive
Secretary of the commission established under that convention.
50 By letter of 8 October 2001, the Commission’s services called on Ireland to suspend those
proceedings on the ground that the dispute in issue came within the exclusive jurisdiction of the
Court of Justice.
51 On 25 October 2001 Ireland instituted the dispute-settlement proceedings under the Convention.
52 On 20 June 2002 a meeting was held between the Commission’s services and the Irish authorities
concerning the totality of issues in the dispute relating to the MOX plant.
53 By letter of 27 June 2002, followed by a reminder of 8 October 2002, the Commission’s services
requested the Irish authorities to provide certain additional documentation, including the pleadings
filed in the proceedings instituted under the Convention for the Protection of the Marine Environment
of the North-East Atlantic and the Convention.
54 Under cover of a letter of 22 October 2002, Ireland acceded to that request in regard to the pleadings
which it had lodged in the proceedings before the Arbitral Tribunal established pursuant to the
Convention for the Protection of the Marine Environment of the North-East Atlantic and before the
International Tribunal for the Law of the Sea. With regard to the proceedings before the Arbitral
Tribunal, however, Ireland indicated that both parties were under a duty of confidentiality until the
hearing. Ireland also stated that its letter was not to be regarded as the making of a complaint within
the terms of Article 227 EC.
55 The Commission thereupon commenced an action under Article 226 EC for failure to fulfil obligations.
On 15 May 2003 the Commission sent a letter of formal notice to Ireland, requesting it to submit its
observations on the complaint that, by instituting proceedings under the Convention, it had failed to
fulfil its obligations under Articles 10 EC and 292 EC and under Articles 192 EA and 193 EA.
56 In a letter of 15 July 2003, Ireland expressed its disagreement with the Commission’s legal
interpretation, and on 19 August 2003 the Commission addressed to Ireland a reasoned opinion in
which it called on Ireland to take the measures necessary to comply therewith within two weeks of
receipt, a period subsequently extended by a further two weeks.
57 As it found Ireland’s response to the reasoned opinion to be unsatisfactory, the Commission brought
the present action.
58 By order of the President of the Court of 7 April 2004, the Kingdom of Sweden was granted leave to
intervene in support of the form of order sought by Ireland and the United Kingdom was granted
leave to intervene in support of the form of order sought by the Commission.
The action
59 The Commission raises three heads of complaint in its action. First, it claims that, by bringing
proceedings against the United Kingdom under the Convention, Ireland has failed to respect the
exclusive jurisdiction vested in the Court by Article 292 EC to rule on any dispute concerning the
interpretation and application of Community law. Second, the Commission argues that Ireland has
breached Articles 292 EC and 193 EA by referring to the Arbitral Tribunal a dispute which requires
for its resolution the interpretation and application of measures of Community law. Third, the
Commission alleges that Ireland has failed to comply with its duty of cooperation under Article 10 EC
by exercising a competence which belongs to the Community and that it has failed in that duty under
Articles 10 EC and 192 EA by failing first to inform or consult with the competent Community
institutions.
The first head of complaint
60 In its first head of complaint, the Commission submits that, by instituting the dispute-settlement
proceedings provided for under the Convention for the purpose of resolving its dispute with the
United Kingdom concerning the MOX plant, Ireland has failed to respect the exclusive jurisdiction of
the Court in regard to disputes concerning the interpretation and application of Community law and
has thereby breached Article 292 EC.
Arguments of the parties
61 The Commission submits that, as the Convention is a mixed agreement, the provisions of the
Convention on which Ireland relies before the Arbitral Tribunal come within the scope of the
Community’s external competence in matters relating to environmental protection, as provided for
under Article 175 EC, and that the interpretation and application of those provisions in the context of
a dispute between Member States are therefore matters falling within the exclusive jurisdiction of the
Court by virtue of Article 292 EC.
62 Decision 98/392, in so far as it refers inter alia to Article 175 EC, and the Declaration of Community
competence, in so far as it states that the protection of the marine environment comes within the
scope of shared competence of the Community, confirm, according to the Commission, that, by
becoming a party to the Convention, the Community exercised its shared powers in the field of the
protection of the environment. It is for that reason not necessary to establish exclusive competence
of the Community within the areas concerned by the dispute.
63 The Commission submits that it follows from the case-law that, where a dispute is brought before it in
accordance with the provisions of the Treaty, the Court has jurisdiction to interpret the provisions of
mixed agreements not only where the provisions in question fall within the exclusive competence of
the Community but also where they fall within the shared competence of the Community and the
Member States. The Commission refers in this regard to Case C-53/96 Hermès [1998] ECR I-3603,
paragraph 33, Joined Cases C-300/98 and C-392/98 Dior and Others [2000] ECR I-11307,
paragraph 33, and Case C-13/00 Commission v Ireland [2002] ECR I-2943, paragraph 20.
64 Furthermore, all of the issues raised before the Arbitral Tribunal are, the Commission submits, largely
covered by an almost complete legislative framework of internal Community measures, some of
which are mentioned in the appendix to the Declaration of Community competence.
65 That declaration, which states that the Community may become a party to the Convention only within
the limits of its competence, does not, however, in any way restrict such accession to areas which
are the subject of exclusive competence.
66 Ireland submits that there was no transfer to the Community of competence in relation to the matters
covered by the provisions of the Convention on which that Member State bases its request before
the Arbitral Tribunal.
67 As is confirmed by the Declaration of Community competence, it is necessary, in order to establish
the Community’s competence in the present case, to prove that measures of Community law are
affected by the provisions of the Convention in issue.
68 In so far as they relate to areas in which the Community has fixed only minimum rules, the areas of
shared competence specified in that declaration have not, Ireland argues, been transferred and
therefore still belong to the Member States.
69 Provisions in mixed agreements relating to shared competence of the Community are an integral part
of Community law only in the case where those provisions are liable to affect common rules of
Community law.
70 That, Ireland claims, is not the position in the present case, as the Community rules on protection of
the environment here in issue lay down only minimum rules.
71 The Commission has therefore been unable to establish that the provisions of the Convention relied
on by Ireland before the Arbitral Tribunal involve the same obligations as those provided for under
existing Community measures and has for that reason failed to adduce evidence that Community
rules have been affected.
72 According to Ireland, the provisions of the Convention here in issue involve stricter obligations than
those provided for under Community law.
73 So far as concerns the discharge of radioactive substances into the marine environment and
notification and cooperation in the area of the transport of such substances by sea, no Community
legislation at all exists. Nor does Community legislation feature any rule comparable to that of Article
123 of the Convention.
74 Furthermore, as Euratom is not a party to the Convention and no measure adopted on the basis of
the EAEC Treaty is included in the appendix to the Declaration of Community competence, no
competence based on that Treaty can be attributed to the Community within the context of the
Convention.
75 The Swedish Government submits that, as the Community’s external competence with respect to the
protection of the environment is not exclusive, that competence becomes exclusive only if and to the
extent to which the Community adopts at the internal level common rules which may be affected by
obligations undertaken by Member States at the international level. The Swedish Government cites
in this regard the judgment in Case 22/70 Commission v Council [1971] ECR 263, paragraph 17 (‘the
AETR judgment’).
76 In the case where the common rules consist only of minimum rules, Member States, it argues, retain
the power to seek greater protection at both national and international level.
77 The United Kingdom Government submits that, with regard to Part XII of the Convention, which
relates to the protection of the marine environment, the Community’s competence must be based on
common rules adopted pursuant to Article 175 EC and not on the environmental objectives referred
to in Article 174 EC.
78 In order to establish the extent of the transfer of competence to the Community within the area
covered by the provisions of the Convention here in issue, the United Kingdom Government submits
that reference must be made to the principles established at paragraphs 15 to 17 of the AETR
judgment and the subsequent case-law which developed those principles, in particular, Opinion 1/94
[1994] ECR I-5267, paragraph 77, and Opinion 2/94 [1996] ECR I-1759, paragraphs 24 to 26.
79 The provisions of the Convention invoked by Ireland before the Arbitral Tribunal may affect common
rules adopted by the Community because, on the points on which they are invoked and interpreted
by that Member State before that Tribunal, the provisions in question relate to a field covered by the
Treaty, not to a large extent, but precisely.
Findings of the Court
80 It is necessary to specify at the outset that, by its first head of complaint, the Commission is criticising
Ireland for failing to respect the exclusive jurisdiction of the Court by bringing before the Arbitral
Tribunal a dispute between it and another Member State concerning the interpretation and
application of provisions of the Convention involving obligations assumed by the Community in the
exercise of its external competence in regard to protection of the environment, and for thereby
breaching Article 292 EC. The articles of the EAEC Treaty to which the Commission refers in its
submissions relate to the second and third heads of complaint.
81 Under Article 300(7) EC, ‘[a]greements concluded under the conditions set out in [that] Article shall
be binding on the institutions of the Community and on Member States’.
82 The Convention was signed by the Community and subsequently approved by Decision 98/392. It
follows that, according to settled case-law, the provisions of that convention now form an integral part
of the Community legal order (see, inter alia, Case C-344/04 IATA and ELFAA [2006] ECR I-0000,
paragraph 36).
83 The Convention was concluded by the Community and all of its Member States on the basis of
shared competence.
84 The Court has already ruled that mixed agreements have the same status in the Community legal
order as purely Community agreements, as these are provisions coming within the scope of
Community competence (Case C-13/00 Commission v Ireland, paragraph 14).
85 From this the Court has concluded that, in ensuring respect for commitments arising from an
agreement concluded by the Community institutions, the Member States fulfil, within the Community
system, an obligation in relation to the Community, which has assumed responsibility for the due
performance of that agreement (Case C-13/00 Commission v Ireland, paragraph 15).
86 As the Convention is a mixed agreement, it is for that reason necessary to examine whether the
provisions of that agreement relied on by Ireland before the Arbitral Tribunal in connection with the
dispute concerning the MOX plant come within the scope of Community competence.
87 It follows from the wording of Ireland’s statement of claim (set out in paragraph 35 of the present
judgment) that that Member State is essentially criticising the United Kingdom for granting
authorisation to operate the MOX plant without having met a number of obligations arising under the
Convention.
88 With the exception of Article 123 of the Convention, all of the provisions relied on in that regard
feature in Part XII of that Convention, entitled ‘Protection and preservation of the marine
environment’.
89 Ireland criticises the United Kingdom in particular for having breached, in the first place, Article 206 of
the Convention by failing in its obligation to carry out a proper assessment of the environmental
impact of all activities associated with the MOX plant on the marine environment of the Irish Sea,
secondly, Articles 123 and 197 of the Convention by failing in its obligation to cooperate with Ireland
in order to protect the marine environment of the Irish Sea, a sea which is semi-enclosed, and,
finally, Articles 192, 193 and/or 194 and/or 207, 211 and 213 of the Convention by failing to take the
measures necessary to prevent, reduce and control pollution of the marine environment of the Irish
Sea.
90 The Court has already interpreted Article 175(1) EC as being the appropriate legal basis for
conclusion, on behalf of the Community, of international agreements on protection of the
environment (see, in this regard, Opinion 2/00 [2001] ECR I-9713, paragraph 44).
91 That conclusion is reinforced by the reading of Article 175(1) EC in conjunction with the fourth indent
in Article 174(1) EC, which expressly includes ‘promoting measures at international level to deal with
regional or worldwide environmental problems’ among the objectives to be pursued within the
framework of policy on the environment.
92 Admittedly, as indicated in Article 176 EC, that external competence of the Community in regard to
the protection of the environment, in this case the marine environment, is not exclusive but rather, in
principle, shared between the Community and the Member States (see, to that effect, Opinion 2/00,
paragraph 47).
93 However, the question as to 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.
94 It follows that the existence of the Community’s external competence in regard to protection of the
marine environment is not, in principle, contingent on the adoption of measures of secondary law
covering the area in question and liable to be affected if Member States were to take part in the
procedure for concluding the agreement in question, within the terms of the principle formulated by
the Court in paragraph 17 of the AETR judgment.
95 The Community can enter into agreements in the area of environmental protection even if the specific
matters covered by those agreements are not yet, or are only very partially, the subject of rules at
Community level, which, by reason of that fact, are not likely to be affected (see, in that regard,
Opinion 2/00, paragraphs 44 to 47, and Case C-239/03 Commission v France [2004] ECR I-9325,
paragraph 30).
96 That being so, it is necessary to establish whether and to what extent the Community, by becoming a
party to the Convention, elected to exercise its external competence in matters of environmental
protection.
97 In this regard, the reference, in the first citation in the preamble to Decision 98/392, to Article 130s(1)
of the EC Treaty (now, after amendment, Article 175(1) EC) as one of the provisions constituting the
legal basis of the decision approving the Convention indicates that this was indeed the case.
98 Furthermore, the fifth recital in the preamble to that decision states that approval of the Convention
by the Community is designed to enable it to become a party to it within the limits of its competence.
99 The Declaration of Community competence referred to in Article 1(3) of that decision, which forms
part of the Community’s instrument of formal confirmation constituting Annex II to the Decision,
specifies the extent and the nature of the areas of competence transferred by the Member States to
the Community in the matters dealt with by the Convention in respect of which the Community
accepts the rights and obligations provided for by that convention.
100 Ireland submits that Article 4(3) of Annex IX to the Convention, in particular the notion of ‘transfer of
competence’ which features there, and the Declaration of Community competence must be
construed as meaning that, in regard to shared competence, the only areas of competence
transferred and exercised by the Community when it became a party to the Convention are those
which have become exclusive as a result of having been affected, within the meaning of the principle
set out in paragraph 17 of the AETR judgment.
101 This, it claims, is a particular feature of the Convention, which allows only the transfer of exclusive
competence of the Community, the other areas of competence and the relevant responsibilities
remaining within the purview of the Member States.
102 According to Ireland, as the Community provisions in issue are only minimum rules, they are not in
principle affected; consequently, the related areas of shared competence have not been transferred
within the framework of the Convention.
103 By contrast, the Commission avers that the Declaration of Community competence must be
understood as meaning that the areas of shared competence in question are transferred and
exercised by the Community even if they relate to matters in respect of which there are at present no
Community rules.
104 It is necessary to point out in this regard that the second sentence of the first paragraph of the
second indent of point 2 of the Declaration of Community competence states, with regard to, inter
alia, the provisions of the Convention relating to the prevention of marine pollution, that ‘[w]hen
Community rules exist but are not affected, in particular in cases of Community provisions
establishing only minimum standards, the Member States have competence, without prejudice to the
competence of the Community to act in this field’.
105 Consequently, that declaration confirms that a transfer of areas of shared competence, in particular
in regard to the prevention of marine pollution, took place within the framework of the Convention,
and without any of the Community rules concerned being affected, within the terms of the principle
set out in the AETR judgment.
106 However, that passage of the Declaration of Community competence makes the transfer of areas of
shared competence subject to the existence of Community rules, even though it is not necessary that
those rules be affected.
107 In the other cases, that is to say, those in which there are no Community rules, competence rests
with the Member States, in accordance with the third sentence of the first paragraph of the second
indent of point 2 of the Declaration of Community competence.
108 It follows that, within the specific context of the Convention, a finding that there has been a transfer to
the Community of areas of shared competence is contingent on the existence of Community rules
within the areas covered by the Convention provisions in issue, irrespective of what may otherwise
be the scope and nature of those rules.
109 In this regard, the appendix to the Declaration of Community competence, while not exhaustive,
constitutes a useful reference base.
110 It appears 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, several of which are
mentioned expressly in the appendix to that declaration.
111 Thus, with regard to the head of complaint alleging failure to meet the obligation to carry out a proper
assessment of the environmental impact of all of the activities associated with the MOX plant on the
marine environment of the Irish Sea, based on Article 206 of the Convention, it must be stated that
this matter is the subject of Directive 85/337, which is mentioned in the appendix to the Declaration of
Community competence.
112 Ireland also cannot question the relevance of Directive 85/337 since it itself referred to that directive
in its statement of claim before the Arbitral Tribunal as a measure which could serve as a reference
for the interpretation of the relevant provisions of the Convention.
113 In addition, Ireland derived a number of arguments from that directive in support of its complaint in its
pleadings before the Arbitral Tribunal.
114 The same observation also holds true for the complaint which Ireland bases on Articles 192, 193,
194, 207, 211 and 213 of the Convention, in so far as that complaint relates to the obligation to take
the measures necessary to prevent, reduce and control pollution in the Irish Sea.
115 In its pleadings before the Arbitral Tribunal, Ireland derived several arguments from Directive 85/337
with a view to supporting that complaint in regard to the obligation to prevent pollution. The relevance
of Directive 85/337 to the matter under consideration is therefore manifest.
116 Furthermore, that complaint, in so far as it concerns international transfers of radioactive substances
connected to the activity of the MOX plant, is closely linked to Directive 93/75, which is also
mentioned in the appendix to the Declaration of Community competence and regulates the minimum
requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting
goods.
117 Furthermore, with regard to the complaint derived from Articles 123 and 197 of the Convention
concerning the lack of cooperation on the part of the United Kingdom and, in particular, its refusal to
provide Ireland with certain information, such as the full version of the PA report, it must be held that
the provision of information of this kind comes within the scope of Council Directive 90/313/EEC of
7 June 1990 on the freedom of access to information on the environment (OJ 1990 L 158, p. 56).
118 In addition, as has been stated in paragraph 31 of the present judgment, Ireland set out that same
head of complaint before the arbitral tribunal established pursuant to the Convention for the
Protection of the Marine Environment of the North-East Atlantic on the basis of Article 9 of that
convention, a convention which it once again invoked in its application initiating proceedings before
the Arbitral Tribunal as a reference base for the interpretation of the Convention provisions in issue.
The Convention for the Protection of the Marine Environment of the North-East Atlantic was
concluded by the Community and, moreover, replaced the Paris conventions for the prevention of
marine pollution from land-based sources, themselves mentioned in the appendix to the Declaration
of Community competence.
119 It is also common ground that, in its pleadings before the Arbitral Tribunal, Ireland based its
arguments in support of the head of claim in issue simultaneously on Directive 85/337, Directive
90/313 and the Convention for the Protection of the Marine Environment of the North-East Atlantic.
120 Those matters suffice to establish that the Convention provisions on the prevention of marine
pollution relied on by Ireland, which clearly cover a significant part of the dispute relating to the MOX
plant, come within the scope of Community competence which the Community has elected to
exercise by becoming a party to the Convention.
121 It follows that the provisions of the Convention relied on by Ireland in the dispute relating to the MOX
plant and submitted to the Arbitral Tribunal are rules which form part of the Community legal order.
The Court therefore has jurisdiction to deal with disputes relating to the interpretation and application
of those provisions and to assess a Member State’s compliance with them (see, in that connection,
Case C-13/00 Commission v Ireland, paragraph 20, and Case C-239/03 Commission v France,
paragraph 31).
122 It is, however, necessary to determine whether this jurisdiction of the Court is exclusive, such as to
preclude a dispute like that relating to the MOX plant being brought by a Member State before an
arbitral tribunal established pursuant to Annex VII to the Convention.
123 The Court has already pointed out that an international agreement cannot affect the allocation of
responsibilities defined in the Treaties and, consequently, the autonomy of the Community legal
system, compliance with which the Court ensures under Article 220 EC. That exclusive jurisdiction of
the Court is confirmed by Article 292 EC, by which Member States undertake not to submit a dispute
concerning the interpretation or application of the EC Treaty to any method of settlement other than
those provided for therein (see, to that effect, Opinion 1/91 [1991] ECR I-6079, paragraph 35, and
Opinion 1/00 [2002] ECR I-3493, paragraphs 11 and 12).
124 It should be stated at the outset that the Convention precisely makes it possible to avoid such a
breach of the Court’s exclusive jurisdiction in such a way as to preserve the autonomy of the
Community legal system.
125 It follows from Article 282 of the Convention that, as it provides for procedures resulting in binding
decisions in respect of the resolution of disputes between Member States, the system for the
resolution of disputes set out in the EC Treaty must in principle take precedence over that contained
in Part XV of the Convention.
126 It has been established that the provisions of the Convention in issue in the dispute concerning the
MOX plant come within the scope of Community competence which the Community exercised by
acceding to the Convention, with the result that those provisions form an integral part of the
Community legal order.
127 Consequently, the dispute in this case is indeed a dispute concerning the interpretation or application
of the EC Treaty, within the terms of Article 292 EC.
128 Furthermore, as it is between two Member States in regard to an alleged failure to comply with
Community-law obligations resulting from those provisions of the Convention, this dispute is clearly
covered by one of the methods of dispute settlement established by the EC Treaty within the terms of
Article 292 EC, namely the procedure set out in Article 227 EC.
129 In addition, it is not open to dispute that proceedings such as those brought by Ireland before the
Arbitral Tribunal fall to be described as a method of settlement of a dispute within the terms of Article
292 EC inasmuch as, under Article 296 of the Convention, the decisions delivered by such a tribunal
are final and binding on the parties to the dispute.
130 Ireland contends, however, by way of alternative submission, that, if the Court were to conclude that
the provisions of the Convention invoked before the Arbitral Tribunal form an integral part of
Community law, that conclusion would also be unavoidable with regard to the provisions of the
Convention dealing with dispute settlement. Consequently, it submits, the initiation of proceedings
before an arbitral tribunal referred to in Article 287(1)(c) of the Convention constitutes a method of
dispute settlement provided for in the EC Treaty, within the terms of Article 292 EC.
131 That argument must be rejected.
132 As has been pointed out in paragraph 123 of the present judgment, an international agreement such
as the Convention cannot affect the exclusive jurisdiction of the Court in regard to the resolution of
disputes between Member States concerning the interpretation and application of Community law.
Furthermore, as indicated in paragraphs 124 and 125 of the present judgment, Article 282 of the
Convention precisely makes it possible to avoid such a breach occurring, in such a way as to
preserve the autonomy of the Community legal system.
133 It follows from all of the foregoing that Articles 220 EC and 292 EC precluded Ireland from initiating
proceedings before the Arbitral Tribunal with a view to resolving the dispute concerning the MOX
plant.
134 This finding cannot be brought into question by the fact that the application by Ireland instituting
proceedings before the Arbitral Tribunal also relates to certain obligations of the United Kingdom
concerning the risks connected with terrorism.
135 Without it being necessary to rule on the question as to whether that part of the dispute comes within
the scope of Community law, suffice it to hold that, as follows from paragraph 120 of the present
judgment, a significant part of the dispute in this case between Ireland and the United Kingdom
relates to the interpretation or application of Community law. It is for the Court, should the need arise,
to identify the elements of the dispute which relate to provisions of the international agreement in
question which fall outside its jurisdiction.
136 As the jurisdiction of the Court is exclusive and binding on the Member States, the arguments put
forward by Ireland concerning the advantages which arbitration proceedings under Annex VII to the
Convention would present in comparison with an action brought before the Court under Article 227
EC cannot be accepted.
137 Even if they were assumed to have been demonstrated, such advantages could not in any event
justify a Member State in avoiding its Treaty obligations with regard to judicial proceedings intended
to rectify an alleged breach of Community law by another Member State (see, to that effect, Case
232/78 Commission v France [1979] ECR 2729, paragraph 9).
138 Finally, with regard to the arguments put forward by Ireland concerning urgency and the possibility of
obtaining interim measures under Article 290 of the Convention, suffice it to point out that, under
Article 243 EC, the Court may prescribe any necessary interim measures in cases before it. It is
evident that such measures may therefore be ordered in the context of proceedings brought under
Article 227 EC.
139 In the light of all of the foregoing, the first head of complaint must be upheld.
The second head of complaint
140 By its second head of complaint, the Commission contends that the submission by Ireland of
instruments of Community law for interpretation and application by the Arbitral Tribunal amounts to a
breach of Article 292 EC and, in regard to the measures relied on which come within the ambit of the
EAEC Treaty, a breach of Article 193 EA.
Arguments of the parties
141 The Commission criticises Ireland for its failure to respect the exclusive jurisdiction of the Court, as
provided for under Articles 292 EC and 193 EA, inasmuch as that Member State invoked before the
Arbitral Tribunal, in particular in its statement of claim, a number of instruments of Community law
coming under the EC Treaty or the EAEC Treaty by reason of Article 293 of the Convention, and thus
as law to be applied by that tribunal.
142 The United Kingdom Government, which shares this view, points out that, in the written pleadings
which it lodged with the Arbitral Tribunal, Ireland invoked, under Article 293 of the Convention,
several measures of Community law, in particular Directives 85/337 and 90/313, Council Directive
92/3/Euratom of 3 February 1992 on the supervision and control of shipments of radioactive waste
between Member States and into and out of the Community (OJ 1992 L 35, p. 24), as well as
international agreements such as the Convention for the Protection of the Marine Environment of the
North-East Atlantic.
143 The United Kingdom Government also submits that Ireland set out arguments before that tribunal
concerning the interpretation to be given to specific provisions of those measures or agreements and
that it alleged that the conduct of the United Kingdom was incompatible with certain Community-law
obligations deriving from those provisions.
144 Ireland states that it referred to instruments of Community law as non-binding elements of fact solely
with a view to facilitating the interpretation of a number of terms of the Convention by indicating how
those terms are understood in the practice of courts and tribunals of legal systems other than that
governing the Arbitral Tribunal.
145 According to Ireland, elements of a legal system distinct from that of the Convention may also be
used by way of ‘renvoi’, a frequently used juridical technique designed to guarantee the harmonious
coexistence of rules deriving from different legal orders.
Findings of the Court
146 It is common ground that, in its statement of claim and in its written submissions to the Arbitral
Tribunal, Ireland invoked a number of Community measures.
147 In addition to the Convention for the Protection of the Marine Environment of the North-East Atlantic,
the measures in question are essentially, in regard to the EC Treaty, Directives 85/337 and 90/313
and, in regard to the EAEC Treaty, Directives 80/836, 92/3 and 96/29.
148 It is also common ground that those Community measures were invoked by Ireland pursuant to
Article 293(1) of the Convention, which provides that a tribunal such as the Arbitral Tribunal is to
‘apply this Convention and other rules of international law not incompatible with this Convention’.
149 As the Advocate General has noted in points 49 and 50 of his Opinion, it follows from the different
passages in the pleadings lodged by Ireland before the Arbitral Tribunal that that Member State
presented those Community measures not only as relevant for the purpose of clarifying the meaning
of the general provisions of the Convention in issue in the dispute but also as rules of international
law to be applied by the Arbitral Tribunal pursuant to Article 293 of the Convention.
150 Thus, as the United Kingdom Government has submitted without being challenged on this point,
Ireland argued inter alia before the Arbitral Tribunal that the 1993 environmental statement did not
meet the requirements of Directive 85/337 and that the United Kingdom’s refusal to disclose the
operating plan for the MOX plant meant that it was not possible to evaluate the justification for that
plant, as required under Directive 96/29, in addition to the contention that this refusal amounted to a
breach of Article 6 of Directive 80/836 and of Article 6 of Directive 96/29.
151 It thus appears that Ireland submitted instruments of Community law to the Arbitral Tribunal for
purposes of their interpretation and application in the context of proceedings seeking a declaration
that the United Kingdom had breached the provisions of those instruments.
152 That is at variance with the obligation imposed on Member States by Articles 292 EC and 193 EA to
respect the exclusive nature of the Court’s jurisdiction to resolve disputes concerning the
interpretation and application of provisions of Community law, in particular by having recourse to the
procedures set out in Articles 227 EC and 142 EA for the purpose of obtaining a declaration that
another Member State has breached those provisions.
153 Therefore, as some of the measures in question come within the scope of the EC Treaty and others
within the scope of the EAEC Treaty, it must be held that there has been a breach of Articles 292 EC
and 193 EA.
154 It must also be pointed out that the institution and pursuit of proceedings before the Arbitral Tribunal,
in the circumstances indicated in paragraphs 146 to 150 of the present judgment, involve a manifest
risk that the jurisdictional order laid down in the Treaties and, consequently, the autonomy of the
Community legal system may be adversely affected.
155 That risk exists even though, as Ireland avers, it has given a formal assurance that it has not called
on, and will not call on, the Arbitral Tribunal to examine or appraise, pursuant to Article 293 of the
Convention or any other provision, whether the United Kingdom has breached any rule of Community
law.
156 Furthermore, the existence of that risk renders entirely irrelevant the fact that Ireland may have called
on the Arbitral Tribunal to apply Community law by way of renvoi or by recourse to any other
technique.
157 The second head of complaint must accordingly be regarded as being well founded.
The third head of complaint
158 By its third head of complaint, the Commission submits, first, that Ireland has failed to comply with
the duty of cooperation under Article 10 EC inasmuch as, by instituting proceedings under the
Convention on the basis of provisions falling within the competence of the Community, Ireland
exercised a competence which belongs to the Community. Second, the Commission contends that
Ireland also failed in its duty of cooperation under both Article 10 EC and Article 192 EA by bringing
those proceedings unilaterally without having first informed and consulted the competent Community
institutions.
Arguments of the parties
159 The Commission submits that, by instituting dispute-settlement proceedings within the framework of
the Convention on the basis of provisions of that Convention falling within the competence of the
Community, Ireland exercised a competence which belongs to the Community.
160 An act of this kind, it argues, is liable to create confusion in non-member countries which are parties
to the Convention with regard to the external representation and internal cohesion of the Community
as a contracting party, and is highly damaging to the effectiveness and coherence of the
Community’s external action.
161 Furthermore, Articles 10 EC and 192 EA were, the Commission submits, breached by reason of the
fact that a Member State cannot unilaterally bring dispute-settlement proceedings within the
framework of a mixed agreement without having first informed and consulted the competent
Community institutions.
162 According to the Commission, all contacts between it and Ireland occurred after the disputesettlement
proceedings had been brought within the framework of the Convention for the Protection
of the Marine Environment of the North-East Atlantic and of the Convention.
163 Ireland argues that, as it is a general principle, Article 10 EC creates a residual obligation. Therefore,
if the Court were to take the view that there has been a breach of Article 292 EC, there could not also
be a breach of Article 10 EC.
164 The Swedish Government essentially takes the same view.
165 Ireland adds that, in the circumstances of this case, prior consultation would not have made it
possible to reconcile the respective views as the Commission was clearly of the opinion that Ireland
could not have recourse to the dispute-settlement procedure under the Convention.
166 The United Kingdom Government argues that Ireland ought, at the very least, to have taken the view
that there was an objective basis for entertaining serious doubts as to whether its intention was in
accordance with Articles 292 EC and 193 EA.
167 In those circumstances, Ireland was under an obligation to consult its partners and, if the dispute
could not be resolved by that avenue, it would then have been for the Court to determine whether the
Community had competence.
Findings of the Court
168 The Commission first of all criticises Ireland for having failed in its duty of cooperation under Article
10 EC inasmuch as, by bringing arbitral proceedings under the Convention, Ireland exercised a
competence which belongs to the Community.
169 The obligation devolving on Member States, set out in Article 292 EC, to have recourse to the
Community judicial system and to respect the Court’s exclusive jurisdiction, which is a fundamental
feature of that system, must be understood as a specific expression of Member States’ more general
duty of loyalty resulting from Article 10 EC.
170 The unavoidable conclusion must also be drawn that this first part of the third head of complaint has
the same subject-matter as the first head of complaint since it focuses on the same conduct on the
part of Ireland, that is to say, the bringing by that Member State of the proceedings before the Arbitral
Tribunal in contravention of Article 292 EC.
171 It is for that reason unnecessary to find that there has been a failure to comply with the general
obligations contained in Article 10 EC that is distinct from the failure, already established, to comply
with the more specific Community obligations devolving on Ireland pursuant to Article 292 EC.
172 Second, the Commission criticises Ireland for having breached Articles 10 EC and 192 EA by
bringing the proceedings before the Arbitral Tribunal without having first informed and consulted the
competent Community institutions.
173 This second part of the third head of complaint relates to an alleged omission by Ireland which is
distinct from the conduct forming the subject-matter of the first head of complaint. It is for that reason
necessary to examine it.
174 The Court has pointed out that, in all the areas corresponding to the objectives of the EC Treaty,
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 (see,
inter alia, Opinion 1/03 [2006] ECR I-0000, paragraph 119). The Member States assume similar
obligations under the EAEC Treaty by virtue of Article 192 EA.
175 The Court has also emphasised that the Member States and the Community institutions have an
obligation of close cooperation in fulfilling the commitments undertaken by them under joint
competence when they conclude a mixed agreement (see Dior and Others, paragraph 36).
176 That is in particular the position in the case of a dispute which, as in the present case, relates
essentially to undertakings resulting from a mixed agreement which relates to an area, namely the
protection and preservation of the marine environment, in which the respective areas of competence
of the Community and the Member States are liable to be closely interrelated, as is, moreover,
evidenced by the Declaration of Community competence and the appendix thereto.
177 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.
178 Moreover, in their letter of 8 October 2001, the Commission’s services had already contended that
the dispute relating to the MOX plant, as referred by Ireland to the arbitral tribunal constituted
pursuant to the Convention for the Protection of the Marine Environment of the North-East Atlantic,
was a matter falling within the exclusive jurisdiction of the Court.
179 In those circumstances, the obligation of close cooperation within the framework of a mixed
agreement involved, on the part of Ireland, a duty to inform and consult the competent Community
institutions prior to instituting dispute-settlement proceedings concerning the MOX plant within the
framework of the Convention.
180 The same duty of prior information and consultation was also imposed on Ireland by virtue of the
EAEC Treaty in so far as that Member State contemplated invoking provisions of that Treaty and
measures adopted pursuant to it within the framework of the proceedings which it was proposing to
bring before the Arbitral Tribunal.
181 It is common ground that, at the date on which those proceedings were brought, Ireland had not
complied with that duty of prior information and consultation.
182 Regard being had to the foregoing, the third head of complaint must be upheld in so far as it seeks a
declaration by the Court that, by bringing proceedings under the dispute-settlement system set out in
the Convention, without having first informed and consulted the competent Community institutions,
Ireland has failed to comply with its duty of cooperation under Articles 10 EC and 192 EA.
183 The action must accordingly be upheld.
Costs
184 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the
costs if they have been applied for in the successful party’s pleadings. As the Commission has
applied for costs to be awarded against Ireland and the latter has been unsuccessful, Ireland must be
ordered to pay the costs. In accordance with Article 69(4) of the Rules of Procedure, the United
Kingdom and the Kingdom of Sweden shall bear their own costs.
On those grounds, the Court (Grand Chamber) hereby:
1. Declares that, by instituting dispute-settlement proceedings against the United Kingdom
of Great Britain and Northern Ireland under the United Nations Convention on the Law
of the Sea concerning the MOX plant located at Sellafield (United Kingdom), Ireland has
failed to fulfil its obligations under Articles 10 EC and 292 EC and under Articles 192 EA
and 193 EA;
2. Orders Ireland to pay the costs;
3. Orders the United Kingdom of Great Britain and Northern Ireland and the Kingdom of
Sweden to bear their own respective costs.
[Signatures]