UCC Law

1
UCC Law the Environment

• The MOX Plant Dispute- Implications
• Joanne Blennerhassett
• UCD Law School

2
Sellafield MOX (mixed oxide) plant

• 1) Background to litigation Ireland v England
  OSPAR UNCLOS
• 2) ECJ - jurisdictional overlap
• 3) ECJ Judgment May 2006- implications for
  environmental dispute resolution?

3
Timescale

• 1992 BNFL applied for permission to build-
  EIA carried out
• 1994 consent given to build plant
• 1995 plant completed
• Dec 2001 authorization to operate granted

4
Litigation- The Arbitral Tribunal Stage

• June 2001 OSPAR Convention Proceedings
• July 2003 OSPAR arbitral tribunal rejected
  Irelands claims
• October 2001 UNCLOS arbitral tribunal Annex VII
• June 2003 UNCLOS tribunals jurisdictional
  concern because UNCLOS is a mixed agreement
•  
• UKs objection to jurisdiction of UNCLOS tribunal
  on basis of EC law.
• Could result in two competing decisions.
• 24 June 2003 -UNCLOS tribunal order to suspend
  proceedings while ECJ ruled on issues of
  Community Law raised by the case

5
ECJ Decision

• UNCLOS adopted by EC by Council Decision 98/392
• Convention provides its own dispute settlement
  procedure.
• Under the EC Treaty, MS obliged not to submit
  disputes in relation to the application or
  interpretation of Community law to any court or
  tribunal other than ECJ
• ECJ held
• -Ireland breached Articles 10 EC 292 EC and 193
  EURATOM Treaty instituting proceedings under
  Conventions regime without informing and
  consulting with Community institutions
• -failure to comply with duty of co-operation
  under Art 10 EC and Art 192 Euratom.

6
Implications of ECJ judgment

• ECJ constitutional monopoly on inter-state
  dispute resolution?
• Fora such as those under UNCLOS are now
  redundant?
• EC MS lose freedom to decide before which forum
  they wish to bring a dispute
• Practical repercussions and disadvantages?
• Procedural advantages lost?
• Different legal nature and consequences of an ECJ
  decision

7
Further action?

• Irelands case will not proceed under UNCLOS
• Community level- European Commission
• - Actions under EURATOM Treaty
• Commission decision 15 Dec 06- THORP
• UK Appeal to ECJ Case T/121/06
• - Nuclear Package