COUNCIL DECISION
of 27 March 2007
establishing the European Joint Undertaking for ITER and the Development of Fusion Energy and conferring advantages upon it
(2007/198/Euratom)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Atomic Energy Community, and in particular the third and fourth subparagraph of Article 47 and Article 48 thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
The Community, through strong, continuous and coordinated Community support from the European Atomic Energy Community (Euratom) research and training programmes, together with the development of knowledge and human resources in the national fusion laboratories, working together notably in the framework of the European Fusion Development Agreement (EFDA), has created a single and fully integrated fusion research programme that has taken a leading international role in the development of fusion as a potentially limitless, safe, sustainable, environmentally responsible and economically competitive source of energy.
(2)
The establishment of the Joint European Torus (JET) fusion research project in 1978 (1), which has met or exceeded all of its design objectives including demonstrating the release of significant amounts of fusion energy in a controlled manner and going on to hold world records for both fusion power and energy, has demonstrated the added value of pooling resources and expertise at Community level in the form of a Joint Undertaking.
(3)
The Community has played a key role in the development of a next step international fusion project, the ITER, starting in 1988 with Conceptual Design Activities (2), continuing in 1992 with Engineering Design Activities (3) which were extended by three years in 1998 (4) and followed by a second agreement in 1994 (5) which, in 2001, produced a detailed, complete and fully integrated engineering design for a research facility aimed at demonstrating the feasibility of fusion as an energy source from which the Community could derive significant benefit, in particular in the context of ensuring the security and diversity of its long-term energy supply.
(4)
The seven parties to the ITER negotiations (Euratom, People's Republic of China, India, Japan, Republic of Korea, Russia and the United States), representing over one half of the world's population, have concluded the Agreement on the Establishment of the ITER International Fusion Energy Organisation for the Joint Implementation of the ITER Project (6) (the ITER Agreement) which establishes the ITER International Fusion Energy Organisation (the ITER Organisation) with headquarters in St Paul-lès-Durance (Bouches-du-Rhône) (France). The ITER Organisation has full responsibility for constructing, operating, exploiting and de-activating the ITER facilities.
(5)
The ITER Agreement requires all parties to provide contributions to the ITER Organisation through appropriate legal entities referred to as ‘Domestic Agencies’. To enable ITER construction to commence without delay and given that Euratom, as host party, will have special responsibilities as a member of the ITER Organisation including bearing the largest share of the contributions and the responsibility for the preparation of the site, the Domestic Agency of Euratom should be established as soon as possible.
(6)
Euratom and Japan have concluded a bilateral Agreement for the Joint Implementation of the Broader Approach Activities (the ‘Broader Approach Agreement with Japan’) setting out complementary joint fusion research activities as part of a ‘Broader Approach’ to the rapid realisation of fusion energy agreed during negotiations on the ITER Agreement. The Broader Approach Agreement with Japan foresees that such Broader Approach Activities should be carried out by Euratom through the Domestic Agency of Euratom as the implementing Agency.
(7)
To achieve maximum synergy and economies of scale, the Domestic Agency of Euratom, in the context of the ‘fast track’ approach to fusion examined by a group of independent experts at the request of the research ministers during the Belgian Presidency, should also implement a long-term programme of activities to prepare the construction of demonstration fusion reactors and related facilities to reinforce European industrial competitiveness in this respect.
(8)
In its Conclusions of 26-27 November 2003, the European Council, by unanimous decision, authorised the Commission to put forward France as the ITER host State and Cadarache as the ITER site and decided that the Domestic Agency for Euratom should be located in Spain.
(9)
The fundamental importance of the ITER Project and Broader Approach Activities for harnessing fusion as a potentially limitless, safe, sustainable, environmentally responsible and economically competitive source of energy makes it necessary to establish the Domestic Agency of Euratom in the form of a Joint Undertaking as provided for in Chapter 5 of the Euratom Treaty.
(10)
The Joint Undertaking, which should be responsible for public research activities of European and international interest, and discharge commitments pursuant to international agreements, should be considered as an international body within the meaning of Article 151(1)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (7), and as an international organisation within the meaning of the second indent of Article 23(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (8), Article 22 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (9), and Article 15 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (10).
(11)
This Decision establishes, for the duration foreseen for the Joint Undertaking, a financial reference amount which illustrates the will of the legislative authority and which will not affect the powers of the budgetary authority as defined in the Treaty.
(12)
The Joint Undertaking should have, subject to prior consultation with the Commission, its own financial regulation based on the principles of Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the Framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (11) (the Framework Financial Regulation) taking into account its specific operating needs arising, in particular, from its international obligations.
(13)
To strengthen international research cooperation, the Joint Undertaking should be open to the participation of countries that have concluded cooperation agreements with Euratom in the field of nuclear fusion that associate their respective programmes with the Euratom programmes.
(14)
The proposal for the Council Decision for the seventh framework programme of the European Atomic Energy Community (Euratom) for nuclear research and training activities (2007 to 2011), and the specific programme implementing that framework programme (FP7) put ITER at the heart of the European strategy for fusion and make provision for the Euratom contribution, through the Joint Undertaking to the ITER Organisation, Broader Approach Activities and other related activities with a view to preparing for demonstration fusion reactors.
(15)
The need to ensure stable employment conditions and equal treatment of staff, taking into account the experience gained from the JET Joint Undertaking, in order to attract specialised scientific and technical staff of the highest calibre, requires the application of the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities, laid down by Regulation (EEC, Euratom, ECSC) No 259/68 (12) (the Staff Regulations) to all the staff recruited by the Joint Undertaking.
(16)
Taking into account that the Joint Undertaking is not designed to fulfill an economic purpose and is responsible for managing Euratom participation in an international research project of public interest, it is necessary for the performance of its tasks that the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965 (13) apply to the Joint Undertaking, its Director and staff.
(17)
In view of the particular nature of the activities of the Joint Undertaking and its importance for the development of fusion research and in order to promote a sound and economic management of the public funding to be provided to the Joint Undertaking, all the advantages provided for in Annex III to the Treaty should be conferred on the Joint Undertaking.
(18)
As a body possessing legal personality, the Joint Undertaking should be accountable for its actions. As regards the resolution of disputes in contractual matters, it should be possible that the contracts concluded by the Joint Undertaking provide that the Court of Justice have jurisdiction.
(19)
Taking into account the rights and obligations of the Community under Title II, Chapter 2 of the Treaty concerning the dissemination of information, the Joint Undertaking should make appropriate arrangements in that regard with the Commission.
(20)
A host agreement should be concluded between the Joint Undertaking and Spain concerning office accommodation, privileges and immunities and other support to be provided by Spain to the Joint Undertaking.
(21)
This Decision takes into account the outcome of the enquiry conducted by the Commission and, in particular, the positive opinion of the Consultative Committee for the Euratom Specific Research and Training Programme in the Field of Nuclear Energy (Fusion) on the proposals,
HAS ADOPTED THIS DECISION:
Article 1
Establishment of a Joint Undertaking
1. A European Joint Undertaking for ITER and the Development of Fusion Energy (Fusion for Energy) (the Joint Undertaking) is hereby established for a period of 35 years starting on 19 April 2007.
2. The tasks of the Joint Undertaking shall be as follows:
(a)
to provide the contribution of the European Atomic Energy Community (Euratom) to the ITER International Fusion Energy Organisation;
(b)
to provide the contribution of Euratom to Broader Approach Activities with Japan for the rapid realisation of fusion energy;
(c)
to prepare and coordinate a programme of activities in preparation for the construction of a demonstration fusion reactor and related facilities including the International Fusion Materials Irradiation Facility (IFMIF).
3. The Joint Undertaking shall have its seat in Barcelona in Spain.
4. The Joint Undertaking shall be considered as an international body within the meaning of Article 151(1)(b) of Council Directive 2006/112/EC, and as an international organisation within the meaning of the second indent of Article 23(1) of Directive 92/12/EEC, of Article 22 point (c) of Directive 2004/17/EC and of Article 15 point (c) of Directive 2004/18/EC.
Article 2
Members
The Joint Undertaking shall have the following Members:
(a)
Euratom, represented by the Commission;
(b)
the Member States of Euratom;
(c)
third countries which have concluded a cooperation agreements with Euratom in the field of controlled nuclear fusion that associate their respective research programmes with the Euratom programmes and which have expressed their wish to become Members of the Joint Undertaking.
Article 3
Statutes
The Statutes of the Joint Undertaking, as set out in the Annex, are hereby adopted.
Article 4
Financing
1. The resources required for the Joint Undertaking to carry out its tasks shall be determined as follows:
(a)
as regards the tasks referred to in Article 1(2)(a), in accordance with the ITER Agreement;
(b)
as regards the tasks referred to in Article 1(2)(b), in accordance with the Broader Approach Agreement with Japan;
(c)
as regards the tasks referred to in Article 1(2)(c), in accordance with research and training programmes adopted pursuant to Article 7 of the Treaty.
2. The resources of the Joint Undertaking shall consist of a contribution from Euratom, contributions from the ITER host State, the annual membership contributions and voluntary contributions from Members of the Joint Undertaking other than Euratom, and additional resources.
3. The indicative total resources deemed necessary for the Joint Undertaking in accordance with paragraph 1 shall be EUR 9 653 million (14). This is detailed as follows:
(EUR million)
2007-2016
2017-2041
2007-2041
of which 2007-2011
Constant values
Total
4 127
1 717
5 526
3 544
9 653
4. The indicative total contribution from Euratom to the resources referred to in paragraph 3 shall be EUR 7 649 million, of which a maximum of 15 % shall be for administrative expenditure. This is detailed as follows:
(EUR million)
2007-2016
2017-2041
2007-2041
of which FP7 2007-2011
Constant values
Total
3 147
1 290
4 502
2 887
7 649
Article 5
Financial Regulation
1. The Joint Undertaking shall have a distinct financial regulation based on the principles of the Framework Financial Regulation. The financial regulation of the Joint Undertaking (the financial regulation) may depart from the Framework Financial Regulation where the specific operating needs of the Joint Undertaking so require and subject to prior consultation with the Commission.
2. The Joint Undertaking shall establish its own internal audit service.
3. Discharge for the implementation of the budget of the Joint Undertaking shall be given by the European Parliament on the recommendation of the Council.
Article 6
Staff
The Staff Regulations, as well as the rules adopted jointly by the institutions of the European Community for the purposes of the application of those Staff Regulations, shall apply to the staff of the Joint Undertaking.
Article 7
Privileges and immunities
The Protocol on the Privileges and Immunities of the European Communities shall apply to the Joint Undertaking, its Director and staff.
Article 8
Advantages
The Member States shall confer all the advantages provided for in Annex III to the Treaty on the Joint Undertaking within the scope of its official activities, for as long as the Joint Undertaking exists.
Article 9
Liability and jurisdiction of the Court of Justice
1. The contractual liability of the Joint Undertaking shall be governed by the relevant contractual provisions and by the law applicable to the contract in question.
The Court of Justice of the European Communities shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the Joint Undertaking.
2. In the case of non-contractual liability, the Joint Undertaking shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its servants in the performance of their duties.
The Court of Justice of the European Communities shall have jurisdiction in disputes relating to compensation for such damage.
3. The Court of Justice shall have jurisdiction in actions brought against the Joint Undertaking, including decisions of its Governing Board, under the conditions provided for in Articles 146 and 148 of the Treaty.
4. Any payment by the Joint Undertaking in respect of the liability referred to in paragraphs 1 and 2 and the costs and expenses incurred in connection therewith shall be considered as expenditure of the Joint Undertaking and shall be covered by the resources of the Joint Undertaking.
Article 10
Dissemination of information
The Joint Undertaking shall agree with the Commission appropriate provisions which will allow the Community to exercise its rights and obligations under Title II, Chapter 2 of the Treaty.
Article 11
Host agreement
A host agreement shall be concluded between the Joint Undertaking and Spain within three months from the establishment of the Joint Undertaking.
Article 12
Application
This Decision shall apply from the 20th day following its publication in the Official Journal of the European Union.
This Decision is addressed to the Member States.
Done at Brussels, 27 March 2007.