Military loophole: EU failing on basic protection – Advocate General
EU court advised to dismiss Tireless case
The British Government was not legally obliged to alert Gibraltarians as to how to protect themselves against the dangers that repairs to the nuclear submarine HMS Tireless could have posed, the most senior legal adviser to the European Court of Justice said yesterday.
Adrian Geelhoed, the court’s Advocate General, reached that conclusion as he advised the court to dismiss a case brought by the European Commission against the UK in relation to the Tireless incident. But he said he had considerable sympathy for the commission’s case, adding that he believed it would be difficult to argue that military interests could be damaged by the provision of basic information to citizens.
He said the European directive requiring governments to provide such information could not be applied to the military and described the commission’s case as “irremediably flawedâ€.
In a statement that could have implications beyond the Tireless case, Mr Geelhoed suggested that this legal loophole pointed to a failure by the EU to fully protect the general public’s health.
The commission had asked the court to declare that the UK breached an EU directive by failing to give Gibraltarians information on how to protect themselves in the event of a radiation emergency during the Tireless repairs. But the Advocate General said that a previous legal case had clearly established that the European Atomic Energy Community Treaty, from which the directive stems, was not applicable to the use of nuclear energy for military purposes.
“It follows that the inevitable consequence of the Court’s judgement [in the previous case] is that, for as long as the Community has not made use of its competence under the EC Treaty to legislate in this sphere, a gap exists in the protection of the health of the general public,†Mr Geelhoed said in his advice to the court.
“It is clear from the judgement’s terms that the Court has accepted this consequence.
For these reasons, I am compelled to conclude that the Commission’s action in the present case must fail.â€
The directive that the UK is accused of breaching sets out the minimum standards of information on protective measures that governments must provide to communities at risk from potential radiation leaks. But existing case law made clear that the Treaty, and by extension the directive, “cannot apply to nuclear radiation from military sources, without exception,†Mr Geelhoed said in an opinion document released yesterday.
He said the British Government could have easily satisfied the obligations set out in the directive by posting a copy of the GIBPUBSAFE plan, which provides information on procedures in the event of an accident involving a nuclear-powered warship, through each letterbox in Gibraltar.
“Needless to say, this seems a negligible burden when compared with the essential importance of the public health protection interest aimed at by the [directive],†Mr Geelhoed said.
“On the facts of the present case, therefore, the position of the United Kingdom…refuting the existence of such an obligation is plainly unattractive.â€
But all those arguments were academic because the law simply did not apply, Mr Geelhoed concluded. He advised the court to dismiss the commission’s action and order it to pay the UK’s costs.
The court, although not bound, generally heeds the advice of its advocate and is unlikely to reach a final judgement in the Tireless case until next year.
Campo ‘deceived’ over Tireless
Grupo Ecologista Verdemar and Ecologistas en Acción, the Campo environmental campaigners yesterday reacted to the ECJ ruling by declaring that Britain had deceived everyone with Tireless and that Gibraltar was not properly equipped to deal with nuclear repairs.
They declared that although graded to allow visits by nuclear submarines they were not entitled to put the lives of 250,000 people at risk.
From The Gibraltar Chronicle - The Independent Daily First Published 1801
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