Opinion of the Advocate General — ECLI:EU:C:2006:230
Date: 2006-04-06
Language of the case: German
Based on: Treaty establishing the European Atomic Energy Community (1957)
Subject matter: Supply agency;Euratom matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. EAEC – Supplies – Commitments not subject to the provisions of the supply system (Art. 75, first para., EA) 2. EAEC – Supplies – Undertaking pursuing its activities ‘in the territories of the Member States’ within the meaning of Article 196(b) EA (Art. 196(b) EA) 3. EAEC – Supplies – Commitments not subject to the provisions of the supply system (Art. 75(c), first para., EA) 4. EAEC – Supplies – Undertaking pursuing all or any of its activities ‘in the territories of the Member States’ within the meaning of Article 196(b) EA (Art. 196(b) EA) 5. EAEC – Supplies – Agreement or contract entered into by a national of a third State and which provides for the delivery of products which come within the province of the Agency (Art. 73 EA) 1. The first paragraph of Article 75 EA is to be interpreted as meaning that the terms ‘processing’, ‘conversion’ and ‘shaping’ in that provision also encompass uranium enrichment. First of all, that provision states that ‘the provisions of [Chapter 6] shall not apply to commitments relating to the processing, conversion or shaping of ores, source materials or special fissile materials’ entered into in one of the ways described in subparagraphs (a) to (c) of that provision. In the second place, uranium enrichment consists in the separation of isotopes, either by gaseous diffusion or by centrifuge, in order to raise the uranium 235 content and so to render the uranium suitable for use in a reactor. That separation constitutes a conversion within the meaning of Article 75 EA. First, its result is that the uranium is returned in a different form and, therefore, giving the ordinary meaning to the term, converted. Secondly, the terms ‘processing’, ‘conversion’ and ‘shaping’ are generic terms. Seen in isolation, they do not lead to the conclusion that certain types of processing, conversion or shaping of minerals, untreated substances or special fissile materials are outside the scope of Article 75 EA, for example by reason of particular technical characteristics peculiar to such processing, conversion or shaping or the value added by them. That analysis is confirmed by the general scheme and purpose of Chapter 6, of which Article 75 EA forms part. That chapter implements the general obligation imposed on the Community institutions by Article 2(d) EA to ensure that all users in the Community receive a regular and equitable supply of ores and nuclear fuels. The effect of Article 75 EA is to remove substances which are the subject of the contract work operations referred to in that provision from the ambit of the provisions relating to the supply system. It follows that Article 75 EA concerns situations which are deemed not to affect, or not sufficiently to affect, the regular and equitable supply to all users in the Community of ores and nuclear fuels, in order to justify the full application of the system laid down under Chapter 6. That applies to a process, such as that referred to in Article 75(c) EA, which involves the enrichment in the Community of uranium from a third State which is to be returned to a third State. Such a process is inherently neutral as regards the supply of uranium to users established in the Community. (see paras 35-40, 46, operative part 1) 2. Article 196(b) EA is to be interpreted as meaning that an undertaking having its seat outside the territories of the Member States does not pursue, within the meaning of that provision, all or any of its activities in those territories if it maintains with an undertaking having its seat in those territories a commercial relationship either for the supply of raw material for the production of enriched uranium and the procurement of enriched uranium or for the storage of that enriched uranium. (see para. 51, operative part 2) 3. Article 75(c) EA is to be interpreted as meaning that the material supplied for treatment, conversion or shaping need not be identical to the material subsequently returned and that it is sufficient for the processed material to be commensurate in terms of quality and quantity with the material supplied, although it may be impossible, in some cases, to attribute the material returned to the material supplied. In addition, the provision is to be interpreted as meaning that the application of Article 75(c) EA is not precluded where the undertaking carrying out the process acquires title to the raw material on delivery and therefore has to transfer title to the enriched uranium back to the other contracting party on completion of the process. (see para. 56, operative part 3) 4. Article 196(b) EA is to be interpreted as meaning that an undertaking does not pursue all or any of its activities in the territories of the Member States within the meaning of that provision if it acquires or disposes of enriched uranium stored there. (see para. 66, operative part 4) 5. Article 73 EA is to be interpreted as meaning that it does not apply to agreements concerning enriched uranium stored within the territory of the European Atomic Energy Community where all the parties to the agreement are nationals of third States. (see para. 69, operative part 5)