Ireland's five-year legal campaign to close Sellafield looks set to fail following a recommendation yesterday by an adviser to the European Court of Justice.
The recommendation, which is followed by the court in about 80 per cent of cases, supported the European Commission's action against the Government for taking a case to the UN Convention on the Law of the Sea over the nuclear reprocessing plant.
Ireland should have pursued its case against Britain at the European court, according to a legal opinion issued by advocate general Miguel Poiares Maduro. He also noted that the Government should have consulted the EU institutions before taking its action.
If the recommendation is followed by the court, Ireland will be forced to drop its case at the UN body, which is adjourned pending an outcome in the current proceedings.
The European Commission took the case against Ireland in 2003 in an effort to prevent the Government from bypassing the EU institutions on the Sellafield issue.
It argued that under the Treaty of Rome, Ireland must pursue action against Britain through the EU institutions rather than an international body such as the UN.
Yesterday's opinion is a major setback for the Government, which initiated proceedings against Britain at the UN body in 2001. This case stemmed from Britain's failure to provide the Irish authorities with a copy of an assessment, conducted by a private consultancy firm, on the economic justification for the operation of the controversial mixed oxide (Mox) plant at Sellafield. The Government also cited ongoing environmental and health concerns about emissions from the plant.
The Mox plant at Sellafield recycles plutonium from spent nuclear fuel and has been strongly criticised by green campaigners as a serious risk to the environment. The commission has no legal power to order the closure of a nuclear power plant, however it can levy fines on member states if a facility endangers the environment.
In 2004 the commission launched infringement proceedings against Britain over its failure to properly account for nuclear material held at Sellafield and enable adequate checks by EU officials. The case has not yet been notified to the court for a trial date.
A spokesman for the commission's legal services said the case was at the pre-court phase but he noted that Ireland could take Britain to the court itself over Sellafield.
In practice, member states rarely pursue actions against each other at the court for fear of the diplomatic fallout from such actions. There have been only three examples of member states taking each other to the court since 1957.
The British government has previously indicated that the Mox plant at Sellafield will close by 2010. However, a British energy policy review due to be published in the summer is expected to argue for an expansion of nuclear energy use in the future - a policy decision that could prolong the lifetime of the Sellafield plant.
Editorial comment: page 19