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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Marchiori, R (on the application of) v Environment Agency [2001] EWCA Civ 987 (22 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/987.html Cite as: [2001] EWCA Civ 987

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Turner)

		Royal Courts of Justice Strand London WC2 Friday, 22nd June 2001

1. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal against a judgment of Mr Justice Turner dealing with the application to military activities of certain parts of the Euratom Treaty. I rejected the application for permission on paper.
2. I have been helpfully addressed this morning by Mr Michael Fordham and also shown an amount of further material by him. I intend to grant permission in this case and I should briefly explain why, since in my written observations I indicated that on the central point, which is the application of the Euratom Treaty, I was unpersuaded that it was arguable that the judge had been wrong in the extremely detailed and clear analysis that he gave of the matter.
3. I should say, frankly, that I am still of the view that I originally took as to the structure, reach and intentions of the Euratom Treaty as it was formulated in 1957. I was of the view (and, speaking entirely for myself, am still of the view) that it was, and is, an instrument intended to unify the activities of member states with regard to civilian nuclear energy. I have set out in my written observations why I take that position. I do not expand on them. The judge below went into the matter in even greater detail and, broadly, I agree with what he said.
4. There is effectively only one aspect of this matter that gives me pause, and it is this. It appears to be the view of the Commission of the European Communities that Chapter III of the Treaty and, more particularly, Article 34 does apply to civil as well as military experiments. The judge was told this by means of certain statements that he quotes in paragraphs 24 to 27 of his judgment. It was not, however, made clear to him that when Mr Santer (who is the president of the Commission and not simply the president of the Parliament) made the observation that he did, first of all, he was speaking on behalf of the Commission formally and, secondly, that in a case the report of which has only been put before me this morning, Danielsson v Commission of the European Communities [1995] ECR 3051, in paragraph 12 of that report it is made plain by the court that the Commission submitted to the court through Mr Santer, its chairman, and through legal advisers appearing before that court that Article 34 indeed applied both to civil and to military "experiments". That being so, and it now being apparent that the Commission's position is one that it is prepared to argue before the European Court, it seems to me that a judge in a domestic court such as myself, whatever may be his view as to the reach of the Treaty, should hesitate long before he says that it is unarguable that a position apparently adopted by the Commission of the European Communities is correct. For that reason, and for that reason only, I would grant permission for this matter to be pursued.
5. Certain other aspects of the case follow from that. I have already indicated in my written comments that the notification issue is arguable, granted that the Euratom case is arguable. As to the other two matters ventilated before me on paper, I should say that I am unpersuaded that I was wrong in the conclusion that I first reached both as to the justification question and as to the international law issue. I do not, however, seek to inhibit Mr Fordham from arguing both of those points before the Court of Appeal. So far as the justification issue is concerned, it seems to me that it is inherently linked with the plausibility or otherwise of the Euratom Treaty applying to military as well as civil activities, and the consequences that that has on the facts of this case. So far as the international law point is concerned, if and insofar as Mr Fordham seeks to challenge the decision of the Divisional Court in the case of Hutchinson (and he tells me that, at least in a head-on manner, he does not seek to do so), I fear that I still adhere to the view that the Divisional Court in Hutchinson was correct; but in these circumstances it would not be right for me to refuse Mr Fordham an opportunity to challenge that view in front of the Court of Appeal.
6. In all the circumstances, therefore, I give permission to appeal. The normal rule will follow as to the lodging of the notice of appeal.
7. Mr Fordham has properly drawn my attention to the legal aid position, pointing out that, as things stand at the moment, he and his solicitor would be obliged to act pro bono both in the Court of Appeal and, as may be the case, in the European Court of Justice. It would not be appropriate for this court to give any guidance to the Legal Services Commission as to how it should deal with any further application, but I will go so far as to say that it would clearly be proper now for Mr Fordham's client to make a further application to the Commission, armed with the judgment that I have just delivered, and for the Commission to consider whether this is a case that it can properly support before the Court of Appeal.
Order: application for permission to appeal granted.