Marchiori, R (on the application of) v Environment Agency

Permission to appeal should be granted where a material legal issue is reasonably arguable. A domestic court should hesitate before concluding that a position apparently adopted and formally advanced by the European Commission before the European Court is unarguable. This applies even where the domestic judge remains persuaded by his own interpretation of the Euratom Treaty. Where one issue is arguable, closely connected issues may also properly be pursued on appeal. The court may permit argument on other points, including a challenge to existing authority, while expressing a provisional view against the applicant.

The applicant sought permission to appeal from the judgment of Mr Justice Turner in the Administrative Court concerning the application of provisions of the Euratom Treaty to military activities. Permission had previously been refused on paper. On renewal, the applicant relied particularly on the Commission’s position that Chapter III, and Article 34 in particular, applied to both civil and military experiments. The court also considered notification, justification and international-law issues, including the decision of the Divisional Court in Hutchinson.

1. Permission granted. The court granted permission to appeal and directed that the normal rule should apply to lodging the notice of appeal.
2. The judge remained of the view that the Euratom Treaty, as formulated in 1957, was intended to unify member-state activities concerning civilian nuclear energy. He broadly agreed with the detailed analysis of Mr Justice Turner.
3. Nevertheless, the Commission’s position made the central Euratom issue arguable. The judgment in Danielsson v Commission of the European Communities [1995] ECR 3051, paragraph 12, showed that the Commission had formally submitted through its chairman and legal advisers that Article 34 applied to both civil and military experiments. A domestic judge should hesitate before declaring unarguable a position apparently adopted by the Commission and capable of being argued before the European Court.
4. The notification issue was also arguable, once the Euratom issue was accepted as arguable. The justification issue was inherently linked to whether the Treaty applied to military as well as civil activities and to the factual consequences of that issue.
5. The court remained unpersuaded that its initial conclusions on justification and international law were wrong. It nevertheless allowed those matters to be argued before the Court of Appeal. In particular, although the applicant did not seek a direct challenge to Hutchinson, the court maintained its provisional view that the Divisional Court had been correct, while permitting the applicant to challenge that view.

• Court of Appeal (Civil Division): Permission to appeal had initially been refused on paper by Lord Justice Buxton, but the renewed application was granted on 22 June 2001.
• Administrative Court, Queen’s Bench Division: Mr Justice Turner had given judgment on the application for judicial review concerning the application of the Euratom Treaty to military activities. The citation of that judgment was not stated in the judgment.