Opinion of the Advocate General — ECLI:EU:C:2006:42
Date: 2006-01-18
Language of the case: English
Based on: Treaty establishing the European Atomic Energy Community (1957);Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Provisions governing the Institutions;Principles, objectives and tasks of the Treaties;Pollution
Procedure: Action for failure to fulfil obligations - successful
Origin: Ireland

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)