Opinion of the Advocate General — ECLI:EU:C:2004:765
Date: 2004-12-02
Language of the case: English
Based on: Treaty establishing the European Atomic Energy Community (1957)
Subject matter: Research and training;Health and safety;Euratom matters
Procedure: Action for failure to fulfil obligations - unfounded
Origin: United Kingdom

Summary of the Judgment 1. EAEC – Treaty – Provisions taking account of the defence interests of the Member States – Provisions with a limited scope which do not support the finding that the rules of the EAEC Treaty, save in the case of express exceptions, are applicable to the military uses of nuclear energy (Arts 24 EA to 28 EA and 84, para. 3, EA) 2. EAEC – Treaty – Scope – Activities falling within the military sphere – Excluded – Article 37 EA not applicable to radioactive waste from military installations (Art. 37 EA) 3. EAEC – Health and safety – Plans for the disposal of radioactive waste – Communication to the Commission – Purpose – Interpretation of Article 37 EA allowing Member States discretion as to the time for communicating data and its content – Rejected (Art. 37 EA) 4. EAEC – Objective of protecting the health of the public and the environment against the dangers related to the use of nuclear energy, including for military purposes – Applicability of the provisions of the EC Treaty 1. The existence in the EAEC Treaty of provisions which take account of the defence interests of the Member States, namely Articles 24 EA to 28 EA and the third paragraph of Article 84 EA, does not necessarily lead to the conclusion that its rules are applicable, save express exceptions, to the military uses of nuclear energy. The existence of those provisions may also be explained by the fact that the application of certain rules introduced by that Treaty, even if it relates only to civil activities, is nevertheless liable to have an impact on activities and interests within the field of the national defence of the Member States. That is certainly the case for the rules laid down in Title II, Chapter 2, of the Treaty, which concern dissemination of information, and those in Chapter 7 of Title II, relating to safeguards. Furthermore, the provisions in question are limited in scope. Apart from the two chapters in which those provisions are found, the Treaty does not contain any other provisions which take account of the interests and specific requirements connected with military activities. (see paras 32-33) 2. Several provisions of the EAEC Treaty confer on the Commission substantial powers which enable it to intervene actively, by means of legislation or in the form of an opinion containing individual decisions, in various spheres of activity which, in the Community, are concerned with the use of nuclear energy. The application of such provisions to military installations, research programmes and other activities might be such as to compromise essential national defence interests of the Member States. Consequently, the absence in the Treaty of any derogation laying down the detailed rules according to which the Member States would be authorised to rely on and protect those essential interests leads to the conclusion that activities falling within the military sphere are outside the scope of that Treaty. Since the Treaty is not applicable to uses of nuclear energy for military purposes, the Commission is not justified in relying on Article 37 EA in order to require Member States to provide it with information on the disposal of radioactive waste from military installations. (see paras 35-36, 44) 3. Article 37 EA must be interpreted as meaning that the Commission must be provided with general data relating to any plan for the disposal of radioactive waste before such disposal is authorised by the competent authorities of the Member State concerned. In order to maintain the effectiveness of that provision, whose objective is to prevent radioactive contamination, and given the very great importance of the guidelines that the Commission can give to the Member State concerned, it is essential that the Commission be aware in good time of the general data relating to any plan for the disposal of radioactive waste in order, after consulting the group of experts, to be able to deliver an opinion which could be examined in detail by that State in circumstances such that the Commission’s suggestions may be taken into account before the authorisation is issued. An interpretation of Article 37 EA to the effect that the Member State concerned might decide both the time from which a military source of radioactive waste must be regarded as civil waste and the actual content of the data which must be communicated to the Commission would be in contradiction with the purpose of that provision. First, any late communication of the data would render nugatory the objective of prevention. Second, any partial communication of the relevant data would make it impossible to deliver an opinion with full knowledge of the facts. (see paras 39-40) 4. The fact that the Treaty is not applicable to uses of nuclear energy for military purposes does not by any means reduce the vital importance of the objective of protecting the health of the public and the environment against the dangers related to the use of nuclear energy, including for military purposes. In so far as that Treaty does not provide the Community with a specific instrument in order to pursue that objective, it is possible that appropriate measures may be adopted on the basis of the relevant provisions of the EC Treaty. (see para. 44)