MOX Plant and the Espoo Convention: Can Member State Disputes Concerning Mixed Environmental Agreements be Resolved Outside EC Law?

Abstract

This article examines implications of the MOX Plant European Court of Justice (ECJ) case for dispute settlement between Member States that are parties to mixed environmental agreements. In 2006, the ECJ held Ireland in breach of EC law for failing to consult the Commission about its dispute with the UK and for instituting proceedings under an international treaty rather than through EC law; this was held necessary because it concerned two Member States and EC law which the ECJ was competent to determine. The completed litigation illustrates the operation of autonomous legal systems in public international law and the proliferation of overlapping courts and tribunals. Although it clarifies the relationship between international and EC law, it leaves some questions unanswered, in particular regarding dispute settlement by Member States that are parties to mixed agreements outside EC law. Is non‐EC dispute settlement still possible, and if so how? Is this limited to judicial processes? Viewing the dispute primarily as relating to transboundary environmental impact assessement (EIA), the article examines the role of the Espoo Convention, in particular the Inquiry Commission. The failure of Ireland to challenge the UK under the EIA Directive implementing the Convention was noted by the ECJ and some commentators. What is not clear is whether the Inquiry Procedure, which is a scientific process for determining effect significance when parties dispute this, can still be used. It has not been incorporated into the EIA Directive and there is nothing comparable under EC law. Its recent application in the Danube Delta case is considered and the options for Member States outlined. It is concluded that EC Member States that use this procedure against other Member States are likely to be found in breach of EC law.