DISSENTING OPINION OF JUDGE FOIGHEL

I agree in principle with the dissenting opinion of Judge Pettiti. I do however, wish to stress the following, which explains why I have voted with the minority.

The majority have not drawn any distinction between, on the one hand, the prerogative act of the government – that it is to say the political decision to use nuclear energy and to grant or renew an operating licence within the framework of the law – and, on the other hand, the question whether the conditions and obligations laid down by law as the framework within which the government is entitled to grant or renew a licence have been complied with (see paragraph 12).

While Article 6 is not applicable to questions falling within the government's sovereign prerogative, there is nothing in the Convention or in the Court's case-law which excludes judicial review of the question whether a government has complied with the conditions and obligations laid down by law.

It is my understanding that the applicants were careful to limit their claim to a right to judicial review of this latter question and, because that right to review was denied them, I find that Article 6 has been violated.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

1. The case is numbered 67/1996/686/876. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] 2. Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4] 1. Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions - 1997), but a copy of the Commission's report is available from the registry.

[5] . See in particular M.-A. Eissen, Jurisprudence relative à l’article 6 de la Convention , Council of Europe, Strasbourg, 1985; J.-C. Soyer and M. de Salvia, “Article 6”, in. Decaux, Imbert and Pettiti (eds.), Commentaire article par article de la Convention européenne des Droits de l'Homme, Economica, Paris, 1995.

[6] . See, in particular, the judgments in the cases of Klass and Others cited above; Boyle and Rice v. the United Kingdom, 27 April 1988, Series A no. 131; Plattform “Ärzte für das Leben” v. Austria, 21 June 1988, Series A no. 139; and Katikaridis and Others v. Greece, 15 November 1996, Reports of Judgments and Decisions 1996-V.

[7] . V. Maurutz, “ Les contre-experts du nucléaire ”, Le Monde, 19 June 1997.

[8] . M. Déjeant-Pons, Le droit de l'homme à l'environnement et la Convention européenne de sauvegarde des droits de l'homme et des libertés fondamentales , Liber amicorum Marc-André Eissen, 1995, pp. 79 et seq.; C. Lepage Jessua, “ L'impact de la Convention et de la Cour européennes des Droits de l'Homme sur l'évolution du droit de l'environnement ”, report for the Commission of the European Communities.