Opinion of the Advocate General — ECLI:EU:C:2005:729
Date: 2005-12-01
Language of the case: English
Based on: Treaty establishing the European Atomic Energy Community (1957)
Subject matter: Health and safety;Euratom matters
Procedure: Action for failure to fulfil obligations - unfounded
Origin: United Kingdom

Summary of the Judgment EAEC – Treaty – Scope (Art. 31 EA; Council Directive 89/618, Art. 5) In view of the absence in the EAEC Treaty of any derogation laying down the detailed rules according to which the Member States would be authorised to invoke and protect essential national defence interests, activities falling within the military sphere are outside the scope of all of the provisions of the EAEC Treaty. As the scope of provisions of secondary legislation cannot validly exceed that of their legal basis, the inapplicability of Article 31 EA, which provides the basis for Directive 89/618 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency, to military activities necessarily means that the directive does not apply to such activities. In the case of the repair of a nuclear-powered submarine, where it is common ground that the source of the nuclear energy is of military origin, to accept that the obligation under Article 5 of the directive to inform the public who might be affected in the event of a radiological emergency about health protection measures that would apply is incumbent none the less on Member States would amount to recognising that the provisions of the EAEC Treaty concerning health and safety, in particular Article 31 EA, are different in scope from the other provisions of that Treaty. (see paras 19, 23-24, 27, 29)