Reply to Delegations' Questions on proposed Council Directive on the Safety of Nuclear Installations and Proposed Council Directive on the Management of Spent Nuclear Fuel and Radioactive Waste

September 26, 2003

Brussels, 25 Sep 2003

Full text of Document 1/03
Suite of documents 1/03

No. prev. doc.: 11046/03 ATO 145 ENER 210 ENV 375
Cion prop.: 8990/03 ATO 95 ENER 132
Subject: - Proposal for a Council Directive on basic obligations and general principles on the safety of nuclear installations
- Proposal for a Council Directive on the management of spent nuclear fuel and radioactive waste
= Reply to delegations' questions

Delegations will find attached a reply to the delegations' questions and comments set out in 11046/03 , as received from DG TREN of the Commission.

Reply to the summary of delegations' questions and comments on the "nuclear package" proposals

1. Legal and principles issues

1. Can it be established, e.g. from the Court ruling in Case C-29/99 and bearing in mind the concerns of the Economic and Social Committee, that the legal basis proposed by the Commission is adequate and sufficient, for instance with respect to financial provisions or provisions on verification ? Should Article 203 be added ?

Under Article 2(b) of the Euratom Treaty, the Community is required, as provided in the Treaty, to "establish uniform safety standards to protect the health of workers and of the general public and ensure that they are applied". Chapter 3 of the Treaty contains provisions on basic standards for protection from ionising radiation. While that chapter has mainly given rise to enactment of radiation protection legislation, its scope is nevertheless more extensive, covering other areas: health protection and safety of nuclear installations. Radiation protection and nuclear safety ultimately share a common aim: protection from ionising radiation. Both subject areas play a part in Community health protection policy. The enactment of Community legislation on safety of nuclear installations under Chapter 3 of the Euratom Treaty was upheld by the Court of Justice of the European Communities in its judgment of 10 December 2002 in Case C-29/99.

Decommissioning funds are not to be regarded as an end in themselves, but as a means of ensuring a high level of nuclear safety in carrying out decommissioning operations. In principle, they are comparable to any other arrangements, including technical measures, enabling that result to be ensured. Financial resources form a key part of a credible nuclear installation safety policy. Such a policy has to ensure a high level of safety, not just during an installation's active life but also beyond it, so long as the installation requires monitoring for protection from ionising radiation. That is why the proposed Directive on safety of nuclear installations also includes financial provisions for decommissioning.

Article 203 of the Euratom Treaty cannot serve as an appropriate legal basis, on its own or along with other provisions. That article concerns cases in which action by the Community proves necessary to attain one of the objectives of the Community and the Treaty has not provided the necessary powers. That is not the case here. Under Chapter 3 of the Treaty, the Community does have the powers required in order to back up Community health protection policy by enacting legislation on safety of nuclear installations. Use of Article 203 would also involve identifying a Community objective not covered by any specific provisions. That does not hold true for health protection under Article 2(b), as implemented by means of Chapter 3.

2. To what extent is the legal basis relevant if a "framework" Directive is intended, with "daughter" directives possibly to be adopted at a later stage?

The proposal for a Directive setting out basic obligations and general principles on the safety of nuclear installations, approved by the Commission on 30 January 2003, is not a framework directive entailing the drafting and implementation of sub-directives under it. None of the provisions of that Directive requires any implementing directives before being transposed by Member States.

3. What is the exact definition and scope of "nuclear safety" that one should have in mind when reading the proposal on safety standards?

The internationally established definition of "nuclear safety" stems from the Convention on Nuclear Safety (CNS), adopted under IAEA auspices, to which the European Community is party. The approach followed in the draft Directive would introduce cross-checking by safety authorities in an enlarged European Union, with systematic peer review like that arranged on an ad hoc basis within the Working Party on Nuclear Safety (WPNS). That method and the recommendations made to the

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