Stichting Greenpeace Nederland v Euratom

• Jurisdiction: Holanda
• Judgment Date: 13 November 2007
• Court: Supreme Court (Netherlands)
• Date: 13 November 2007

The Netherlands, Supreme Court.

(Corstens, Presiding Judge; van Dorst, van Schendel, Ilsink and de Hullu, Justices)

Stichting Greenpeace Nederland

and

Euratom1

State immunity Jurisdictional immunity International organizations Institutions of the European Communities Whether Euratom enjoying immunity from criminal jurisdiction Functional immunity Euratom Treaty, 1957, Article 191 Protocol on Privileges and Immunities of European Communities, 1965 Applicable criterion

Environment Protection of environment through criminal law Whether Euratom immune from criminal jurisdiction The law of the Netherlands

Summary: The facts:The Joint Nuclear Research Centre (the Centre), operated by the European Atomic Energy Community (Euratom) and set up pursuant to Article 8 of the Euratom Treaty, 1957,2 was granted licences under the Environmental Management Act and the Nuclear Energy Act. Suspected of breaching licence conditions and other environmental offences, Euratom was summoned to appear before Alkmaar District Court. Stating that he had no right to prosecute, the Public Prosecutor withdrew the summons. Stitchting Greenpeace Nederland then lodged a complaint under Article 12 of the Code of Criminal Procedure.

On 21 December 2005 the Amsterdam Court of Appeal ordered the Public Prosecutor to resume the prosecution of Euratom for the alleged offences. It held that Euratom, whilst enjoying functional immunity, did not enjoy immunity from jurisdiction since it could have fulfilled its tasks without committing the alleged criminal offences.3

The Procurator at the Supreme Court appealed in cassation, in the interests of the uniform application of the law, requesting that the Court quash that order.4 He asserted that the Court of Appeal had misapplied the law or failed

to observe compulsory procedural requirements. He argued that Euratom's immunity was based on Article 191 of the Euratom Treaty and the Protocol on the Privileges and Immunities of the European Communities, 1965 (the Protocol) together with the Euratom-Netherlands Headquarters Agreement and the UN Convention on the Privileges and Immunities of the Specialized Agencies, 1947. He also maintained that functional immunity for international organizations was the dominant principle in case law and was supported in the literature

Held:The appeal was allowed. The order was quashed. Euratom enjoyed immunity from the jurisdiction of the courts of the Netherlands.

(1) Euratom enjoyed functional immunity in the Netherlands pursuant to Article 191 of the Euratom Treaty in conjunction with the Protocol. As such, Euratom enjoyed immunity from jurisdiction in respect of criminal offences committed in the context of its official activities so that those activities might be performed in full independence in accordance with its task (para. 6.2).

(2) Since the actions in question were directly related to the fulfilment of Euratom's tasks, they were covered by Euratom's functional immunity. The criterion applied by the Court of Appeal was too restrictive (paras. 6.36.4).

The text of the motion and application filed by Procurator General Fokkens at the Supreme Court on 3 July 2007 and attached to the judgment commences at p. 435. The following is the text of the judgment of the Supreme Court:5

Judgment on the appeal in cassation in the interests of the uniform application of the law instituted by the Procurator General at the Supreme Court of the Netherlands from an order given in chambers by Amsterdam Court of Appeal on 21 December 2005, no R2004/337/12Sv concerning a complaint as referred to in article 12 of the Code of Criminal Procedure lodged by Stichting Greenpeace Nederland, established in Amsterdam.

1. The Contested Order

The Court of Appeal ordered the Public Prosecutor at Alkmaar district court to resume the prosecution of the European Atomic Energy Community (Euratom), established at Petten in the municipality of Zijpe, for the offences which are the subject of the complaint.

2. The Appeal in Cassation

2.1 The motion and application filed by Procurator General Fokkens seek the quashing of the contested order by the Supreme Court in the interests of the uniform application of the law. The motion and application are attached to this judgment and form an integral part of it.

2.2 The counsel for Greenpeace, A. H. J. van den Biesen, attorney-at-law at Amsterdam, and counsel for Euratom, A. J. P. Tillema, attorney-at-law at Amsterdam, have submitted written commentaries on the motion and application to the Supreme Court.

3. Facts and Course of Proceedings

3.1 Euratom operates an establishment in Petten under the name Joint Nuclear Research Centre (JRC or the Centre) for which purpose it has been granted licences under (currently) the Environmental Management Act and the Nuclear Energy Act. The Centre was set up pursuant to article 8 of the Treaty establishing the European Atomic Energy Community of 25 March 1957, Dutch Treaty Series 1957, 75 and 92 (the Euratom Treaty).

Euratom was summonsed to appear on 25 March 2004 at a hearing before the Economic Offences Division of Alkmaar district court on suspicion of breaching one or more of the licence conditions and other environmental offences. After withdrawing the summons, the Public Prosecutor stated on 21 July 2005 that he would not be prosecuting Euratom any further since, in his view, he had no further right to prosecute. Subsequently, following the lodging of a complaint by Greenpeace under article 12 of the Code of Criminal Procedure, the Amsterdam Court of Appeal ordered the Public Prosecutor to resume the prosecution of Euratom for the offences which were the subject of the complaint.

3.2 The offences which were the subject of the complaint are described in the charge sheet appended to this judgment.

4. Legal Framework

(i) Insofar as relevant, the Euratom Treaty reads as follows:

(ii) The Protocol on the privileges and immunities of the European Communities (the Protocol) referred to in article 191 of the Euratom Treaty reads, insofar as relevant, as follows:

5. Order Made by the Court of Appeal

The order made by the Court of Appeal reads as follows, insofar as relevant to the assessment of the grounds for appeal:

6. Assessment of the Grounds for Appeal in Cassation

6.1 The grounds for appeal contest the Court of Appeal's opinion that Euratom does not enjoy immunity from jurisdiction.

6.2 As rightly held by the Court of Appeal, there can be no reasonable doubt concerning the fact that Euratom enjoys functional immunity in the Netherlands pursuant to article 191 of the Euratom Treaty in conjunction with the Protocol on the privileges and immunities of the European Communities. This means that Euratom enjoys immunity from jurisdiction in respect of criminal offences committed in the context of its official activities so that those activities may be performed in full independence in accordance with its task (cf. ECJ 11 July 1968, no 5/68, Verkeersrecht 1971, 14).

6.3 In its ruling that Euratom enjoys no immunity in respect of the offences with which it is charged, the Court of Appeal evidently applied the criterion of whether Euratom would have been able to fulfil its tasks without committing the offences in question, since in consideration 6.4 cited above it considered the question of whether the fulfilment of Euratom's task would be impeded if it were to be held liable under criminal law for compliance with these rules and regulations by the Centre to be of decisive importance.

6.4 That criterion is incorrect because it is too restrictive. What is at issue is whether the actions in question are directly related to the fulfilment of Euratom's tasks. The actions with which Euratom is charged, as described in the charge sheet, concern breaches of the conditions attached to the environmental licences and licences under the Nuclear Energy Act granted to the Centre, as well as other contraventions of environmental legislation. These can hardly be regarded as anything other than actions directly related to the tasks with which Euratom is charged. They are therefore also covered by Euratom's functional immunity.

6.5 The grounds for appeal are correct.

7. Conclusion

The considerations set out above lead to the conclusion that the contested order cannot be upheld and that the Court must decide as follows.

8. Decision

The Supreme Court quashes the contested order in the interests of the uniform application of the law.

[The following is the text of the motion and application filed by Procurator General Fokkens:]

Introduction

1. This appeal in cassation in the interests of the uniform application of the law is directed against the order of 21 December 2005, case number 13.0972782004, LJN AU9264; NJFS 2006, 93 made by the Court of Appeal in Amsterdam in response to a complaint under article 12 of the Code of Criminal Procedure lodged by Stichting Greenpeace Nederland.1 The Court of Appeal thereby ordered that the prosecution of Euratom be resumed. I hereby submit a certified copy of the order, as well as the case file [not reproduced here].

2. No ordinary appeal in cassation lies from the order.2 Cassation in the interests of the uniform application of the law is possible.3

3. The following is at issue in the present case. Euratom was summonsed to appear at a...