61978CX0001_EN
Grounds
Operative part
Grounds
1BY APPLICATION LODGED ON 7 JUNE 1978 PURSUANT TO ARTICLE 103 OF THE TREATY ESTABLISHING THE EUROPEAN ATOMIC ENERGY COMMUNITY THE GOVERNMENT OF THE KINGDOM OF BELGIUM REQUESTED THE COURT TO ADJUDICATE ON A SERIES OF QUESTIONS RELATING TO THE DIVISION OF POWERS BETWEEN THE COMMUNITY AND THE MEMBER STATES WITH REGARD TO THE CONCLUSION OF THE CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIALS, FACILITIES AND TRANSPORTS ( HEREINAFTER REFERRED TO AS ' ' THE CONVENTION ' ' ) WHICH IS AT PRESENT BEING DRAWN UP WITHIN THE FRAMEWORK OF THE INTERNATIONAL ATOMIC ENERGY AGENCY .
2THE EAEC TREATY ENVISAGES DIFFERENT SITUATIONS REGARDING THE NEGOTIATION AND CONCLUSION OF AGREEMENTS OR CONTRACTS BY THE COMMUNITY . ARTICLE 101, AT THE BEGINNING OF CHAPTER X OF THE TREATY, RELATING TO EXTERNAL RELATIONS, PROVIDES IN THE FIRST PARAGRAPH THAT : ' ' THE COMMUNITY MAY, WITHIN THE LIMITS OF ITS POWERS AND JURISDICTION, ENTER INTO OBLIGATIONS BY CONCLUDING AGREEMENTS OR CONTRACTS WITH A THIRD STATE, AN INTERNATIONAL ORGANIZATION OR A NATIONAL OF A THIRD STATE ' ' . ARTICLE 102 DETERMINES THE PROCEDURE APPLICABLE TO THE CONCLUSION OF AGREEMENTS OR CONTRACTS WITH THIRD STATES, INTERNATIONAL ORGANIZATIONS OR INDIVIDUALS TO WHICH, IN ADDITION TO THE COMMUNITY, INTER ALIA ' ' ONE OR MORE MEMBER STATES ' '
ARE PARTIES . TAKEN AS A WHOLE THESE PROVISIONS DEFINE THE POWERS AND JURISDICTION OF THE COMMUNITY IN THE FIELD OF EXTERNAL RELATIONS .
3IN ORDER TO ENSURE THAT THE PROVISIONS OF THE TREATY ARE NOT FRUSTRATED BY AGREEMENTS OR CONTRACTS CONCLUDED BY THE MEMBER STATES WITH THIRD PARTIES THE EAEC TREATY PROVIDED IN ARTICLE 103 FOR A COMMUNITY SUPERVISORY PROCEDURE ALLOWING FOR THE PRELIMINARY EXAMINATION OF THE COMPATIBILITY OF SUCH AGREEMENTS WITH THE REQUIREMENTS OF THE TREATY . THAT ARTICLE, WHICH IS THE BASIS OF THE PRESENT CASE, IS WORDED AS FOLLOWS :
' ' MEMBER STATES SHALL COMMUNICATE TO THE COMMISSION DRAFT AGREEMENTS OR CONTRACTS WITH A THIRD STATE, AN INTERNATIONAL ORGANIZATION OR A NATIONAL OF A THIRD STATE TO THE EXTENT THAT SUCH AGREEMENTS OR CONTRACTS CONCERN MATTERS WITHIN THE PURVIEW OF THIS TREATY .
IF A DRAFT AGREEMENT OR CONTRACT CONTAINS CLAUSES WHICH IMPEDE THE APPLICATION OF THIS TREATY, THE COMMISSION SHALL, WITHIN ONE MONTH OF RECEIPT OF SUCH COMMUNICATION, MAKE ITS COMMENTS KNOWN TO THE STATE CONCERNED .
THE STATE SHALL NOT CONCLUDE THE PROPOSED AGREEMENT OR CONTRACT UNTIL IT HAS SATISFIED THE OBJECTIONS OF THE COMMISSION OR COMPLIED WITH A RULING BY THE COURT OF JUSTICE, ADJUDICATING URGENTLY UPON AN APPLICATION FROM THE STATE, ON THE COMPATIBILITY OF THE PROPOSED CLAUSES WITH THE PROVISIONS OF THIS TREATY . AN APPLICATION MAY BE MADE TO THE COURT OF JUSTICE AT ANY TIME AFTER THE STATE HAS RECEIVED THE COMMENTS OF THE COMMISSION . ' '
4THE BELGIAN GOVERNMENT RELIED ON THAT PROVISION IN ORDER TO CLARIFY DOUBTS WHICH HAD ARISEN REGARDING THE NECESSITY FOR THE COMMUNITY TO PARTICIPATE IN THE AFOREMENTIONED CONVENTION . AFTER COMMUNICATING THE DRAFT CONVENTION TO THE COMMISSION AND HAVING OBTAINED THE LATTER ' S COMMENTS THE BELGIAN GOVERNMENT APPLIED TO THE COURT PURSUANT TO THE THIRD PARAGRAPH OF ARTICLE 103 AND RAISED FIVE QUESTIONS .
IN ITS FIRST QUESTION THE BELGIAN GOVERNMENT RAISES THE PROBLEM OF THE COMPATIBILITY, IN PRINCIPLE, WITH THE REQUIREMENTS UNDER THE EAEC TREATY OF THE PARTICIPATION OF MEMBER STATES IN THE DRAFT CONVENTION, EITHER JOINTLY OR SEVERALLY, WITHOUT THE COMMUNITY ' S BEING PARTY TO THE CONVENTION IN ADDITION TO THE STATES .
THE SECOND, THIRD AND FOURTH QUESTIONS ASK MORE PARTICULARLY WHETHER THE COMMUNITY HAS THE RIGHT TO PARTICIPATE IN THE DRAFT CONVENTION TAKING ACCOUNT OF THE PROVISIONS OF THE EAEC TREATY RELATING TO THE SUPPLY AND THE FREE MOVEMENT OF NUCLEAR MATERIALS .
FINALLY IN ITS FIFTH QUESTION THE BELGIAN GOVERNMENT ASKS THE COURT ABOUT THE PRACTICAL CONSEQUENCES WHICH WOULD FOLLOW FROM THE POSSIBLE PARTICIPATION OF THE COMMUNITY IN THE CONVENTION REGARDING THE IMPLEMENTATION OF THE PROTECTIVE MEASURES PROVIDED BY THE CONVENTION .
5IN ORDER TO DELINEATE EXACTLY THE SCOPE OF THE PROBLEM REFERRED TO THE COURT THE BELGIAN GOVERNMENT ' S APPLICATION MUST BE COMPARED WITH THE ACTUAL PROVISIONS OF ARTICLE 103 . THE THIRD PARAGRAPH OF THAT ARTICLE PROVIDES THAT THE COURT, IN ANSWER TO AN APPLICATION BY A MEMBER STATE, SHALL ADJUDICATE ' ' ON THE COMPATIBILITY OF THE PROPOSED CLAUSES WITH THE PROVISIONS OF THIS TREATY ' ' . IT APPEARS FROM THAT PROVISION THAT THE COURT ' S EXAMINATION MUST TAKE ACCOUNT OF ALL THE RELEVANT RULES OF THE TREATY WHETHER THEY CONCERN QUESTIONS OF SUBSTANCE, OF JURISDICTION OR OF PROCEDURE .
IT IS IN THE FIRST AND FIFTH QUESTIONS PUT BY THE BELGIAN GOVERNMENT THAT THE PROBLEM IS FORMULATED IN THIS MANNER . THESE QUESTIONS ASK, ON THE ONE HAND, WHETHER THE PARTICIPATION OF ONE OR MORE MEMBER STATES IN THE CONVENTION NEGOTIATED WITHIN THE INTERNATIONAL AGENCY IS COMPATIBLE WITH THE PROVISIONS OF THE TREATY RELATING TO THE DIVISION OF POWERS IN THIS REGARD BETWEEN THE COMMUNITY AND THE MEMBER STATES IF NO APPROPRIATE PLACE IS PROVIDED FOR THE COMMUNITY AMONGST THE PARTIES TO THE CONVENTION AND, ON THE OTHER, WHETHER THE COMMUNITY HAS THE NECESSARY POWERS TO ENSURE THE IMPLEMENTATION OF THE PROVISIONS TO WHICH IT MAY POSSIBLY SUBSCRIBE . THE MORE SPECIFIC QUESTIONS RAISED WITH REGARD TO THE SUPPLY ARRANGEMENTS AND THE FUNCTIONING OF THE NUCLEAR COMMON MARKET MUST NECESSARILY BE ANSWERED WITHIN THIS FRAMEWORK .
6THE EXCHANGES OF VIEWS WHICH THE DRAFT CONVENTION OCCASIONED FIRST WITHIN THE COMPETENT ORGANS OF THE COUNCIL, SUBSEQUENTLY BETWEEN THE COMMISSION AND THE BELGIAN GOVERNMENT AND FINALLY WITHIN THE CONTEXT OF THESE PROCEEDINGS HAVE REVEALED THAT, APART FROM CERTAIN GENERAL PROVISIONS OF THE EAEC TREATY SUCH AS ARTICLE 2 WHICH DEFINES IN GENERAL TERMS THE TASKS OF THE COMMUNITY AND ARTICLE 195 RELATING TO NATIONAL RULES LAID DOWN FOR REASONS OF PUBLIC POLICY OR PUBLIC HEALTH, NO FEWER THAN FOUR INDIVIDUAL CHAPTERS OF THE TREATY ARE CONCERNED, NAMELY : THE CHAPTERS RELATING TO SUPPLIES AND THE NUCLEAR COMMON MARKET WHICH ARE CLOSELY INTERCONNECTED, THE CHAPTER RELATING TO SAFEGUARDS AND THE CHAPTER RELATING TO PROPERTY OWNERSHIP . ALL THESE ASPECTS MUST BE TAKEN INTO ACCOUNT BY THE COURT IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 103 .
FIRST PART . ANALYSIS OF THE DRAFT CONVENTION
7THE AIM OF THE CONVENTION IS, IN THE TERMS OF ITS PREAMBLE, TO DEAL WITH THE RISK OF THEFT AND MISUSE OF NUCLEAR MATERIALS PUT TO CIVIL USES . IT IS INTENDED TO PROTECT THE STATES AND THEIR INHABITANTS AGAINST THE GRAVE DANGERS, BOTH NATIONAL AND INTERNATIONAL, WHICH MIGHT THREATEN THEM IN THE EVENT OF SABOTAGE OF ATOMIC INSTALLATIONS AND IF NUCLEAR MATERIALS FELL INTO THE HANDS OF UNAUTHORIZED PERSONS . IT IS THAT AIM WHICH IS SERVED BY THE PROVISIONS INTENDED TO ENSURE THE ' ' PHYSICAL PROTECTION ' '
OF NUCLEAR INSTALLATIONS AND MATERIALS, INCLUDING THE MEASURES INTENDED TO RECOVER MATERIALS WHICH HAVE BEEN LOST, STOLEN OR MISAPPROPRIATED .
8ARTICLES 1 AND 2 OF THE DRAFT CONVENTION DEFINE THE SUBJECT-MATTER AND THE SCOPE OF THE CONVENTION .
ARTICLE 1 DEFINES WHAT IS TO BE UNDERSTOOD UNDER ' ' NUCLEAR MATERIALS ' '
AND ' ' SOURCE MATERIALS ' '
ALTHOUGH THE PROVISIONS OF THE CONVENTION ARE CONCENTRATED SOLELY ON ' ' NUCLEAR MATERIALS ' '
IN THE STRICT SENSE OF THE TERM, THAT IS TO SAY PLUTONIUM, URANIUM 233, URANIUM ENRICHED IN THE ISOTOPES 233 OR 235 AND ANY MATERIAL CONTAINING ONE OR MORE OF THE FOREGOING . THE SAME PROVISION ALSO DEFINES WHAT IS TO BE UNDERSTOOD BY ' ' NUCLEAR FACILITY ' ' ; IT SHOULD BE NOTED THAT THAT EXPRESSION IS TO BE INTERPRETED WIDELY AS IT INCLUDES ANY INSTALLATION WHICH STORES OR USES NUCLEAR MATERIAL, IN PARTICULAR ANY INSTALLATION FOR THE PRODUCTION OR ENRICHMENT OF NUCLEAR MATERIALS, THE PRODUCTION OF ENERGY OR SCIENTIFIC RESEARCH .
ARTICLE 2 SERVES TO LIMIT THE FIELD OF APPLICATION OF THE CONVENTION BY EXCLUDING FROM IT INSTALLATIONS, MATERIALS OR TRANSPORT USED FOR MILITARY PURPOSES .
9ARTICLES 3 TO 11 OF THE DRAFT CONVENTION CONCERN THE OBLIGATIONS ENTERED INTO BY THE PARTIES .
ARTICLE 3 OBLIGES EACH PARTY TO TAKE ALL APPROPRIATE MEASURES IN ORDER TO PREVENT THE LOSS, THEFT, MISUSE OR DAMAGE OF NUCLEAR MATERIAL WITHIN ITS TERRITORY, UNDER ITS JURISDICTION OR UNDER ITS CONTROL ANYWHERE . THE ARTICLE ALSO MAKES REFERENCE TO A DOCUMENT OF THE INTERNATIONAL AGENCY ENTITLED ' ' THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL ' '
( INFCIRC/225 ( CORRECTED )) WHICH CONTAINS A NUMBER OF ADDITIONAL INDICATIONS WITH REGARD TO THE SCOPE OF THE DRAFT CONVENTION AND ON THE HARMONIZATION OF THE PROVISIONS OF THE CONVENTION WITH THE PROTECTIVE MEASURES ADOPTED IN A NATIONAL CONTEXT .
ARTICLE 4 DEFINES THE PRECAUTIONS TO BE TAKEN ON THE IMPORT, EXPORT, STORAGE, TRANSPORT AND TRANSIT OF NUCLEAR MATERIALS . THE ARTICLE DIVIDES SUCH MATERIALS INTO DIFFERENT CATEGORIES AND LAYS DOWN THE MINIMUM MEASURES OF PHYSICAL PROTECTION APPLICABLE TO EACH OF THE CATEGORIES . THE MEASURES CONSTITUTE A VERY DETAILED STATEMENT OF MATERIAL, TECHNICAL AND PERSONAL PROVISIONS .
ARTICLE 5 DEFINES THE RESPONSIBILITY OF THE NATIONAL AGENCIES RESPONSIBLE FOR THE PROTECTION AND POSSIBLE RECOVERY OF NUCLEAR MATERIALS ; IN ADDITION IT MAKES ARRANGEMENTS FOR CO-OPERATION AND MUTUAL ASSISTANCE BETWEEN THE VARIOUS NATIONAL AGENCIES .
UNDER ARTICLE 6 THE STATES PARTIES UNDERTAKE TO ADOPT THE NECESSARY MEASURES TO MAKE CERTAIN ACTS PUNISHABLE OFFENCES UNDER THEIR CRIMINAL LAW ; SUCH ACTS INCLUDE THEFT, MISUSE, DAMAGE OR DESTRUCTION OF NUCLEAR MATERIAL, ACTS DIRECTED AGAINST INSTALLATIONS AND THE PROTECTIVE MEASURES AND CONSPIRACY TO COMMIT ANY OF THE AFORESAID OFFENCES . THE SAME ARTICLE INTRODUCES THE CONCEPT OF ' ' INTERNATIONAL OFFENCE ' '
IN THIS RESPECT .
ARTICLES 7 TO 11 RELATE MORE PARTICULARLY TO THE ARREST OF AN ALLEGED OFFENDER AND INTERNATIONAL MUTUAL AID FOR THE PROSECUTION AND POSSIBLE EXTRADITION OF OFFENDERS . IN THIS CONTEXT THE OBJECT OF ARTICLE 9 IN PARTICULAR IS TO ESTABLISH THE LEGAL BASIS FOR EXTRADITION TAKING ACCOUNT OF THE VARIOUS LEGAL PRINCIPLES APPLICABLE IN THE DIFFERENT MEMBER STATES .
10ARTICLES 12 TO 19 OF THE DRAFT CONTAIN A BODY OF PROVISIONS OF AN ADMINISTRATIVE AND FORMAL NATURE INCLUDING THE FORMAL CLAUSES WHICH ARE CUSTOMARY IN INTERNATIONAL CONVENTIONS .
ARTICLE 12 PROVIDES FOR THE INTERNATIONAL EXCHANGE OF INFORMATION RELATING TO THE LAWS AND REGULATIONS PROMULGATED TO GIVE EFFECT TO THE CONVENTION AND THE FINAL OUTCOME OF PROCEEDINGS IN THE EVENT OF A CRIMINAL PROSECUTION .
ARTICLE 13 SETS OUT A PROCEDURE FOR THE SETTLEMENT OF DIFFERENCES BETWEEN THE CONTRACTING PARTIES BY MEANS OF NEGOTIATION AND ARBITRATION OR, IN DEFAULT THEREOF, BY PROCEEDINGS BROUGHT BEFORE THE INTERNATIONAL COURT OF JUSTICE .
THE FORMAL CLAUSES RELATING TO THE FORMALITIES FOR THE CONCLUSION OF THE CONVENTION ARE CONTAINED IN ARTICLES 15 TO 19 .
11IT SHOULD BE NOTED THAT AS REGARDS ITS WHOLE STRUCTURE AND THE STYLE OF DRAFTING THE DRAFT CONVENTION IS CONCEIVED IN SUCH A WAY AS TO BE CONCLUDED AND IMPLEMENTED BY THE ' ' STATES ' '
WHICH, IN THE TERMS OF ARTICLE 14 ARE IDENTICAL TO THE STATES PARTIES TO THE STATUTE OF THE INTERNATIONAL AGENCY . IN ITS PRESENT FORM THE DRAFT THUS MAKES NO PROVISION FOR THE PARTICIPATION OF OTHER SUBJECTS OF INTERNATIONAL LAW WHICH HAVE POWERS AND RESPONSIBILITIES WITHIN THE FIELD COVERED BY THE CONVENTION . THE COURT HAS HOWEVER BEEN INFORMED THAT THE BELGIAN GOVERNMENT HAS ALREADY TAKEN THE INITIATIVE IN SUBMITTING TO THE INTERNATIONAL AGENCY A DRAFT AMENDMENT DESIGNED TO MAKE SUCH PARTICIPATION POSSIBLE .
SECOND PART . PROVISIONS OF THE DRAFT CONVENTION CONCERNING MATTERS WITHIN THE PURVIEW OF THE EAEC TREATY
12IT IS UNDENIABLE THAT THE DRAFT CONVENTION ' ' CONCERNS ' '
IN VARIOUS WAYS MATTERS WITHIN THE PURVIEW OF THE EAEC TREATY ACCORDING TO THE EXPRESSION USED IN THE FIRST PARAGRAPH OF ARTICLE 103 .
ON THE ONE HAND IT MAY BE STATED THAT THE FIELD OF APPLICATION OF THE CONVENTION AND THAT OF THE TREATY COINCIDE IN THE SENSE THAT IN SUBSTANCE THEY BOTH CONCERN THE SAME MATERIALS AND THE SAME NUCLEAR FACILITIES : THE DEFINITION OF THE MATERIALS PROTECTED IS THE SAME, AS IS EVIDENT FROM A COMPARISON OF ARTICLE 1 OF THE CONVENTION AND ARTICLE 197 OF THE EAEC TREATY ; IN ADDITION THE CONCEPT OF NUCLEAR FACILITIES IS THE SAME ALTHOUGH HERE ACCOUNT SHOULD BE TAKEN OF THE DIFFERING INTENSITY OF COMMUNITY CONTROL AS REGARDS MATERIALS AND FACILITIES, AS WILL BE SHOWN HEREAFTER ; MATERIALS AND FACILITIES FOR MILITARY PURPOSES ARE EXCLUDED FROM THE SCOPE OF THE CONVENTION AS WELL AS FROM THAT OF THE TREATY ( ARTICLE 2 OF THE CONVENTION AND ARTICLES 84 AND 86 OF THE EAEC TREATY ). IT MAY THEREFORE BE STATED THAT THE CONVENTION CONCERNS MATERIALS AND FACILITIES TO WHICH, WITHIN THEIR OWN AMBIT, THE PROVISIONS OF THE EAEC TREATY ARE FULLY APPLICABLE .
ON THE OTHER HAND A COMPARISON SHOULD BE MADE BETWEEN THE DRAFT CONVENTION AND THE OBJECTS OF THE EAEC AS DEFINED BY ARTICLE 2 OF THE TREATY . THAT ARTICLE ASSIGNS TO THE COMMUNITY VARIOUS TASKS WHICH IT SHOULD BE NOTED INCLUDE, IN PARTICULAR, THAT OF ESTABLISHING UNIFORM SAFETY STANDARDS TO PROTECT THE HEALTH OF WORKERS AND OF THE GENERAL PUBLIC ( SUBPARAGRAPH ( B )), MAKING CERTAIN, BY APPROPRIATE SUPERVISION, THAT NUCLEAR MATERIALS ARE NOT DIVERTED TO PURPOSES OTHER THAN THOSE FOR WHICH THEY ARE INTENDED ( SUBPARAGRAPH ( E )), THE EXERCISE OF THE RIGHT OF OWNERSHIP CONFERRED UPON THE COMMUNITY WITH RESPECT TO FISSILE MATERIALS COMING UNDER THE TREATY ( SUBPARAGRAPH ( F )), AND FINALLY THE ESTABLISHMENT WITH OTHER COUNTRIES AND INTERNATIONAL ORGANIZATIONS OF SUCH RELATIONS AS WILL FOSTER PROGRESS IN THE PEACEFUL USES OF NUCLEAR ENERGY ( SUBPARAGRAPH ( H )). REFERENCE TO THESE OBJECTS IS SUFFICIENT TO ENABLE IT TO BE STATED WITH CERTAINTY THAT THE DRAFT CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIALS, FACILITIES AND TRANSPORTS CONCERNS FROM VARIOUS ASPECTS MATTERS WITHIN THE PURVIEW OF THE EAEC TREATY .
IT IS FURTHER NECESSARY TO EXAMINE WHETHER THE PROVISIONS OF THE DRAFT MAY IMPEDE THE PROPER APPLICATION OF THE EAEC TREATY IF THE COMMUNITY AS SUCH IS NOT A PARTY TO THE CONVENTION ON THE SAME LINES AS THE STATES . THAT QUESTION MUST BE ANALYSED WITH REGARD TO THE DIFFERENT CHAPTERS OF THE TREATY WHICH RELATE TO THE PROBLEM RAISED .
1 . THE SUPPLY ARRANGEMENTS AND THE NUCLEAR COMMON MARKET
13IT WAS PRIMARILY FROM THE ASPECT OF THE PROVISIONS RELATING TO THE SUPPLY ARRANGEMENTS AND THE NUCLEAR COMMON MARKET ( CHAPTERS VI AND IX OF THE EAEC TREATY ) THAT THE QUESTION WAS PRESENTED BY THE COMMISSION TO THE COUNCIL AND SUBSEQUENTLY IN THE CONTEXT OF THE PRESENT PROCEEDINGS . THE QUESTION IS WHETHER THE COMMUNITY EXERCISES, IN THE FIELDS OF SUPPLY AND THE NUCLEAR COMMON MARKET, JURISDICTION AND POWERS WHICH GIVE IT THE RIGHT TO PARTICIPATE IN THE PROPOSED CONVENTION .
14IN THE FIELD OF THE SUPPLY AND MOVEMENT OF NUCLEAR MATERIALS THE COMMISSION IS ENDOWED WITH A NUMBER OF PREROGATIVES WHICH ARE DEFINED IN DETAIL BY ARTICLES 52 TO 76 ON THE ONE HAND AND ARTICLES 92 TO 100 ON THE OTHER, THE EXERCISE OF WHICH WILL BE AFFECTED BY THE OBLIGATIONS TO BE ENTERED INTO WITHIN THE CONTEXT OF THE CONVENTION .
THUS ARTICLE 52 OF THE TREATY PROVIDES THAT THE SUPPLY OF ORES, SOURCE MATERIALS AND SPECIAL FISSILE MATERIALS SHALL BE ENSURED ' ' BY MEANS OF A COMMON SUPPLY POLICY ' ' . FOR THIS PURPOSE AN AGENCY IS ESTABLISHED POSSESSING ' ' A RIGHT OF OPTION ON ORES, SOURCE MATERIALS AND SPECIAL FISSILE MATERIALS PRODUCED IN THE TERRITORIES OF MEMBER STATES AND AN EXCLUSIVE RIGHT TO CONCLUDE CONTRACTS RELATING TO THE SUPPLY OF ORES, SOURCE MATERIALS AND SPECIAL FISSILE MATERIALS COMING FROM INSIDE THE COMMUNITY OR FROM OUTSIDE ' ' . AS REGARDS ORES, SOURCE MATERIALS OR SPECIAL FISSILE MATERIALS COMING FROM OUTSIDE THE COMMUNITY THE SUPPLY AGENCY HAS AN EXCLUSIVE RIGHT, UNDER ARTICLE 64, TO ENTER INTO AGREEMENTS OR CONTRACTS RELATING TO THE SUPPLY OF SUCH PRODUCTS ' ' ACTING WHERE APPROPRIATE WITHIN THE FRAMEWORK OF AGREEMENTS CONCLUDED BETWEEN THE COMMUNITY AND A THIRD STATE OR AN INTERNATIONAL ORGANIZATION ' ' . IT FOLLOWS FROM ARTICLE 60 IN CONJUNCTION WITH ARTICLE 65 THAT THE SUPPLY AGENCY MUST BE USED AS THE INTERMEDIARY BETWEEN USERS OF ORES, SOURCE MATERIALS AND SPECIAL FISSILE MATERIALS AND SUPPLIERS WHO ARE OUTSIDE THE COMMUNITY . EVEN WHERE THE SUPPLY OF PRODUCTS FALLING WITHIN THE JURISDICTION OF THE SUPPLY AGENCY IS PROVIDED ' ' INTER ALIA ' '
BY AGREEMENTS OR CONTRACTS BETWEEN A MEMBER STATE, A PERSON OR AN UNDERTAKING ON THE ONE HAND AND A THIRD STATE, AN INTERNATIONAL ORGANIZATION OR A NATIONAL OF A THIRD STATE ON THE OTHER, THE PRIOR CONSENT OF THE COMMISSION IS NECESSARY - IN THE TERMS OF ARTICLE 73 - FOR THE CONCLUSION OR THE RENEWAL OF THE AGREEMENT OR CONTRACT . THESE PROVISIONS, AMONGST OTHERS, SHOW THE CARE TAKEN IN THE TREATY TO DEFINE IN A PRECISE AND BINDING MANNER THE EXCLUSIVE RIGHT EXERCISED BY THE COMMUNITY IN THE FIELD OF NUCLEAR SUPPLY IN BOTH INTERNAL AND EXTERNAL RELATIONS .
15WITH REGARD TO THE NUCLEAR COMMON MARKET IT IS TRUE THAT ARTICLE 92 ET SEQ . RELATE EXCLUSIVELY TO THE TECHNICAL DETAILED RULES FOR THE ELIMINATION OF BARRIERS TO TRADE IN SUCH A WAY THAT AT FIRST SIGHT THAT CHAPTER MAY APPEAR TO BE SOMEWHAT FAR REMOVED FROM THE OBJECT OF THE DRAFT CONVENTION . HOWEVER, REINSERTED IN THE CONTEXT OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY THESE PROVISIONS APPEAR TO BE NOTHING OTHER THAN THE APPLICATION, IN A HIGHLY SPECIALIZED FIELD, OF THE LEGAL CONCEPTIONS WHICH FORM THE BASIS OF THE STRUCTURE OF THE GENERAL COMMON MARKET ; IN OTHER TERMS IT RELATES TO THE LIBERALIZATION OF TRANSFERS OF NUCLEAR MATERIALS AND OF SPECIALIZED MATERIALS AND EQUIPMENT WITHOUT THESE MOVEMENTS BEING OBSTRUCTED BY BARRIERS RESULTING DIRECTLY OR INDIRECTLY FROM NATIONAL LEGISLATION ON FISCAL, COMMERCIAL OR TECHNICAL MATTERS . LIKE THE EEC TREATY THE EAEC TREATY SEEKS TO SET UP, WITH REGARD TO MATTERS COVERED BY IT, A HOMOGENEOUS ECONOMIC AREA ; IT IS WITHIN THIS AREA FROM WHICH BARRIERS HAVE BEEN REMOVED THAT THE COMMISSION AND THE SUPPLY AGENCY ARE CALLED UPON TO EXERCISE THEIR EXCLUSIVE RIGHTS IN THE NAME OF THE COMMUNITY .
IT THUS APPEARS THAT IT WOULD NOT BE POSSIBLE FOR THE COMMUNITY TO DEFINE A SUPPLY POLICY AND TO MANAGE THE NUCLEAR COMMON MARKET PROPERLY IF IT COULD NOT ALSO, AS A PARTY TO THE CONVENTION, DECIDE ITSELF ON THE OBLIGATIONS TO BE ENTERED INTO WITH REGARD TO THE PHYSICAL PROTECTION OF NUCLEAR MATERIALS IN SO FAR AS ITS FUNCTIONS IN THE FIELDS OF SUPPLY AND THE NUCLEAR MARKET WERE AFFECTED .
16IT APPEARS FROM THE FILE ON THE CASE THAT IN THE COURSE OF THE PRELIMINARY EXCHANGES BETWEEN THE COMMISSION AND THE COUNCIL THE QUESTION WAS RAISED IN THIS CONTEXT, ON THE ONE HAND, OF THE GENERAL RESERVATION MADE BY ARTICLE 195 OF THE TREATY - IN THE TERMS OF WHICH THE INSTITUTIONS OF THE COMMUNITY ARE, IN APPLYING THE TREATY, TO COMPLY ' ' WITH THE CONDITIONS OF ACCESS TO ORES, SOURCE MATERIALS AND SPECIAL FISSILE MATERIALS LAID DOWN IN NATIONAL RULES AND REGULATIONS MADE FOR REASONS OF PUBLIC POLICY OR PUBLIC HEALTH ' '
- AND, ON THE OTHER, OF THREE SPECIFIC EXCEPTIONS WHICH HAVE THE EFFECT OF REMOVING CERTAIN SPECIFIC CATEGORIES OF NUCLEAR MATERIALS FROM THE AMBIT OF THE PROVISIONS RELATING TO THE SUPPLY SYSTEM . THIS IS THE CASE IN FACT FOR MATERIALS LEFT IN THE POSSESSION OF THE PRODUCER UNDER ARTICLE 62 ( 2 ), QUANTITIES USED FOR RESEARCH IN ACCORDANCE WITH ARTICLE 74 AND FINALLY MATERIALS INVOLVED IN OPERATIONS IN CONNEXION WITH CONTRACT WORK WITHIN THE MEANING OF ARTICLE 75 .
17IN THE OPINION OF THE COURT NEITHER THE GENERAL RESERVATION OF ARTICLE 195 NOR THE SPECIFIC PROVISIONS ABOVE ARE SUCH AS TO INVALIDATE THE ABOVE CONSIDERATIONS .
WITH REGARD TO ARTICLE 195 IT MAY BE POINTED OUT THAT THAT PROVISION IS NOT INTENDED TO SETTLE THE QUESTION OF POWERS IN RELATIONS BETWEEN THE COMMUNITY AND THE MEMBER STATES . THE PURPOSE OF THE ARTICLE IS TO REQUIRE THE INSTITUTIONS OF THE COMMUNITY AS WELL AS THE SUPPLY AGENCY AND JOINT UNDERTAKINGS TO COMPLY WITH THE REQUIREMENTS LAID DOWN BY THE MEMBER STATES IN THEIR NATIONAL TERRITORY FOR REASONS OF PUBLIC POLICY OR PUBLIC HEALTH WITH REGARD TO THE CONDITIONS OF ACCESS TO FISSILE MATERIALS . ARTICLE 195 AS SUCH THEREFORE DOES NOT HAVE THE EFFECT OF LIMITING THE COMMUNITY ' S RIGHT AND OBLIGATION TO TAKE MEASURES TO GUARANTEE THE SECURITY OF THE MATERIALS AND INSTALLATIONS FOR WHICH IT IS ITSELF RESPONSIBLE, OR THE COMMUNITY ' S ABILITY TO ENTER INTO INTERNATIONAL COMMITMENTS TO THE SAME END .
WITH REGARD TO THE EXCEPTIONS REFERRED TO IT MAY BE POINTED OUT THAT EVEN FOR THE QUANTITIES OF FISSILE MATERIALS WHICH DO NOT FALL WITHIN THE MONOPOLY OF THE SUPPLY AGENCY THE TREATY MAKES PROVISION FOR CLOSE SUPERVISION BY THE COMMUNITY WHICH, DEPENDING ON THE CIRCUMSTANCES, TAKES THE FORM OF AN AUTHORIZATION, A RIGHT OF PURSUIT OR A RIGHT OF RECOVERY OF PROPERTY . EVEN WHERE THE AGENCY DOES NOT EXERCISE ITS EXCLUSIVE RIGHT THE COMMUNITY ' S REAL INTEREST IN ALL THINGS RELATING TO MATERIALS FALLING WITHIN THE DEFINITIONS OF THE TREATY MUST BE RECOGNIZED . THIS IS CLEAR FROM THE ACTUAL PROVISIONS SET OUT ABOVE NAMELY :
- ARTICLE 62 ( 2 ) RELATING TO QUANTITIES LEFT IN THE POSSESSION OF THE PRODUCER, WHICH ARE STILL SUBJECT TO THE RIGHT OF THE AGENCY TO INSPECT THEM ;
- ARTICLE 74 RELATING TO SMALL QUANTITIES OF FISSILE MATERIALS NORMALLY USED IN RESEARCH, THE USE OF WHICH MUST BE NOTIFIED TO THE AGENCY ; AND
- ARTICLE 75 THE SECOND AND THIRD PARAGRAPHS OF WHICH PROVIDE FOR CLOSE SUPERVISION BY THE COMMUNITY OF THE MATERIALS WHICH ARE SUBJECT TO OPERATIONS CONNECTED WITH CONTRACT WORK .
18THUS THESE EXCEPTIONS LEAVE INTACT THE PRINCIPLE OF THE EXCLUSIVE JURISDICTION CONFERRED ON THE COMMUNITY WITH REGARD TO NUCLEAR SUPPLIES AND ITS GENERAL RESPONSIBILITY FOR THE NORMAL FUNCTIONING OF THE NUCLEAR COMMON MARKET . CONSEQUENTLY IF THE MEMBER STATES, WITHOUT THE PARTICIPATION OF THE COMMUNITY, WERE TO ENTER INTO OBLIGATIONS SUCH AS ARE CONTAINED IN PARTICULAR IN ARTICLE 4 OF THE DRAFT CONVENTION AND IF THEY WISHED TO IMPLEMENT SUCH OBLIGATIONS THEY WOULD NECESSARILY INTERFERE WITH THE SCOPE OF THE JURISDICTION OF THE COMMUNITY AND THEY WOULD THUS IMPEDE THE APPLICATION OF THE EAEC TREATY .
2 . SAFEGUARDS
19THE EXCHANGES OF VIEWS TO WHICH THESE PROCEEDINGS HAVE GIVEN RISE HAVE REVEALED AN UNDENIABLE LACK OF CERTAINTY AS TO THE SCOPE OF THE ' ' SAFEGUARDS ' '
LAID DOWN BY THE TREATY . ON A RESTRICTIVE INTERPRETATION, THE SECURITY PROVISIONS LAID DOWN BY THE TREATY ARE NOTHING MORE THAN A CHECK ON ' ' CONFORMITY ' '
OR ' ' DESTINATION ' '
THAT IS TO SAY A CHECK WITH A VIEW TO ENSURING THAT THE NUCLEAR MATERIALS ARE NOT DIVERTED, BY THE PERSON IN POSSESSION OF THEM, TO A PURPOSE OTHER THAN THAT WHICH HE HIMSELF DECLARED . CONSEQUENTLY THIS CONCEPT WOULD BEAR NO RELATION TO THE MEASURES OF PHYSICAL SECURITY ENVISAGED IN THE DRAFT CONVENTION INASMUCH AS THE LATTER SERVE TO AVOID EXTERNAL ACTION, IN OTHER WORDS, THE INTERVENTION OF UNAUTHORIZED THIRD PARTIES . THE QUESTION MAY BE ASKED WHETHER THAT INTERPRETATION TAKES FULL ACCOUNT OF THE WORDING AND THE AIMS OF THE TREATY .
20FROM A HISTORICAL POINT OF VIEW IT MUST BE ADMITTED THAT THE DANGERS WHICH THE DRAFT CONVENTION SEEKS TO COUNTER WERE WITHOUT A DOUBT LESS REAL TO THE NEGOTIATORS AND TO THE GENERAL PUBLIC AT THE TIME WHEN THE EAEC TREATY WAS DRAWN UP AND IMPLEMENTED ; IT IS ALSO TRUE THAT THE ARRANGEMENTS FOR SUPERVISION MADE BY THE COMMUNITY UNDER THE RULES OF THE TREATY RELATING TO SAFEGUARDS ARE NOT CAPABLE OF COPING FULLY WITH THE NEW RESPONSIBILITIES DEFINED BY THE CONVENTION . NEVERTHELESS THESE CONSIDERATIONS DO NOT JUSTIFY THE VERY RESTRICTIVE INTERPRETATION OF SAFEGUARDS WHICH IS EXPRESSED IN THE THEORY OF THE SUPERVISION OF ' ' CONFORMITY ' '
OR ' ' DESTINATION ' ' .
21IN THIS RESPECT IT MAY BE NOTED THAT IN THE PREAMBLE TO THE EAEC TREATY THE PARTIES SHOWED THEMSELVES ANXIOUS ' ' TO CREATE THE CONDITIONS OF SAFETY NECESSARY TO ELIMINATE HAZARDS TO THE LIFE AND HEALTH OF THE PUBLIC ' ', THAT ARTICLE 2 ( E ) GIVES THE COMMUNITY THE TASK OF MAKING CERTAIN, BY APPROPRIATE SUPERVISION, THAT NUCLEAR MATERIALS ' ' ARE NOT DIVERTED TO PURPOSES OTHER THAN THOSE FOR WHICH THEY ARE INTENDED ' ', WITHOUT MAKING ANY DISTINCTION WITH REGARD TO THE NATURE OF SUCH DIVERSIONS AND THE CIRCUMSTANCES IN WHICH THEY MIGHT TAKE PLACE AND FINALLY THAT THE VERY EXPRESSION ' ' SAFEGUARDS ' '
WHICH THE TREATY USES TO CHARACTERIZE THE PROVISIONS OF CHAPTER VII HAS A WIDER SCOPE THAN THE MERE SUBSTITUTION OF A DIFFERENT DESTINATION FOR THE ONE DECLARED BY A USER OF NUCLEAR MATERIALS . THE TREATY HERE ENVISAGES ALL DIVERSIONS OF NUCLEAR MATERIALS ENTAILING A SECURITY RISK THAT IS TO SAY THE DANGER OF INTERFERENCE WITH THE VITAL INTERESTS OF THE PUBLIC AND THE STATES . CONSEQUENTLY THERE CAN BE NO DOUBT THAT THE CONCEPT OF ' ' SAFEGUARDS ' '
WITHIN THE MEANING OF THE TREATY IS SUFFICIENTLY COMPREHENSIVE TO INCLUDE ALSO MEASURES OF PHYSICAL PROTECTION .
22EVEN IF IT IS ADMITTED THAT SAFEGUARDS AS SPECIFICALLY LAID DOWN BY CHAPTER VII OF THE TREATY DO NOT GO ANY FURTHER THAN A CHECK ON THE INTENDED USE OF NUCLEAR MATERIALS, NEVERTHELESS THERE ALREADY EXISTS AN AREA OF CONFLICT BETWEEN THE PROVISIONS OF THE TREATY AND CERTAIN RULES IN THE CONVENTION, IN PARTICULAR ARTICLE 3 RELATING TO PREVENTIVE MEASURES . INDEED THE COMMUNITY MUST BE ABLE TO EXERCISE, IN ACCORDANCE WITH THE RULES WHICH IT HAS ITSELF DETERMINED - AND WHICH ARE SET OUT IN PARTICULAR IN COMMISSION REGULATION ( EURATOM ) NO 3227/76 OF 19 OCTOBER 1976 CONCERNING THE APPLICATION OF THE PROVISIONS ON EURATOM SAFEGUARDS ( OFFICIAL JOURNAL L 363 ) - CENTRAL SUPERVISION OF THE USE TO WHICH NUCLEAR MATERIALS FOR WHICH IT IS RESPONSIBLE ARE PUT ; FURTHERMORE IN THE TERMS OF ARTICLE 77 ( B ) IT MUST BE IN A POSITION TO GIVE TO THIRD PARTIES ALL THE GUARANTEES RESULTING FROM THE OBLIGATIONS WHICH IT HAS ASSUMED IN AGREEMENTS CONCLUDED WITH OTHER STATES OR INTERNATIONAL ORGANIZATIONS . THE EXERCISE OF THESE POWERS WOULD BE HINDERED AND ITS RESPONSIBILITY WOULD BE SET AT NAUGHT IF THE MEMBER STATES UNDERTOOK, WITHOUT THE PARTICIPATION OF THE COMMUNITY, TO TAKE, IN LINE WITH THE OBJECTIVES OF THE CONVENTION, AN INDETERMINATE AND EXTENSIVE BODY OF PREVENTIVE MEASURES WHICH MAY ALSO INCLUDE MEASURES OF SUPERVISION OF USERS OF FISSILE MATERIALS WHICH ARE SUBJECT TO THE AUTHORITY OF THE COMMUNITY .
23THE RESULT OF THE FOREGOING IS THAT THE EXCLUSION OF THE COMMUNITY FROM THE DRAFT CONVENTION WOULD HAVE THE EFFECT NOT ONLY OF HINDERING, IN CERTAIN RESPECTS, THE FUNCTIONING OF THE SAFEGUARDS AS LAID DOWN BY CHAPTER VII OF THE TREATY AND THE IMPLEMENTING MEASURES BASED THEREON, BUT IT WOULD ALSO COMPROMISE THE SUBSEQUENT DEVELOPMENT OF THAT SYSTEM TO ITS FULL SCOPE IMPLIED BY THE VERY CONCEPT OF ' ' SAFEGUARDS ' ' . FROM THIS ASPECT THE POWER OF THE COMMUNITY TO PARTICIPATE IN THE PROPOSED CONVENTION WOULD CONSEQUENTLY ALSO APPEAR TO BE UNDENIABLE .
3 . PROPERTY OWNERSHIP
24THE EFFECTS WHICH THE SYSTEM OF PROPERTY OWNERSHIP, SET UP BY THE EAEC TREATY IN ARTICLE 2 ( F ) AND DEFINED IN DETAIL IN CHAPTER VIII ( ARTICLE 86 ET SEQ .), MAY HAVE ON THE SOLUTION OF THE QUESTION RAISED HAVE APPARENTLY HARDLY BEEN CONSIDERED IN THE EXCHANGES BETWEEN THE COMMISSION AND THE COUNCIL . IN THESE PROCEEDINGS, HOWEVER, THE COMMISSION HAS REPEATEDLY DRAWN ATTENTION TO THE SYSTEM OF PROPERTY OWNERSHIP AND TO ITS CLOSE CONNEXION WITH THE SUPPLY ARRANGEMENTS AND SAFEGUARDS .
THE COURT, FOR ITS PART, TAKES THE VIEW THAT THE SYSTEM OF PROPERTY OWNERSHIP IS DIRECTLY RELEVANT TO THE PROBLEMS RAISED BY THE DRAFT CONVENTION .
25IT IS WELL KNOWN THAT THE IDEAS CONTAINED IN CHAPTER VIII WERE ONE OF THE MAJOR ISSUES IN THE NEGOTIATIONS WHICH LED TO THE CREATION OF THE EAEC ; IT IS ALSO WELL KNOWN THAT THE DIFFERENCES OF OPINION WHICH INITIALLY EXISTED BETWEEN THE PARTIES WERE SURMOUNTED IN THE CONTEXT OF A COMPROMISE WHICH IS REFLECTED IN ARTICLES 86 AND 87 OF THE TREATY THE WORDING OF WHICH MAY BE RECALLED HERE :
' ' ARTICLE 86
SPECIAL FISSILE MATERIALS SHALL BE THE PROPERTY OF THE COMMUNITY .
THE COMMUNITY ' S RIGHT OF OWNERSHIP SHALL EXTEND TO ALL SPECIAL FISSILE MATERIALS WHICH ARE PRODUCED OR IMPORTED BY A MEMBER STATE, A PERSON OR AN UNDERTAKING AND ARE SUBJECT TO THE SAFEGUARDS PROVIDED FOR IN CHAPTER VII .
ARTICLE 87
MEMBER STATES, PERSONS OR UNDERTAKINGS SHALL HAVE THE UNLIMITED RIGHT OF USE AND CONSUMPTION OF SPECIAL FISSILE MATERIALS WHICH HAVE PROPERLY COME INTO THEIR POSSESSION, SUBJECT TO THE OBLIGATIONS IMPOSED ON THEM BY THIS TREATY, IN PARTICULAR THOSE RELATING TO SAFEGUARDS, THE RIGHT OF OPTION CONFERRED ON THE AGENCY AND HEALTH AND SAFETY ' ' .
26FOR THE PURPOSES OF THESE PROCEEDINGS IT IS NOT NECESSARY TO DETERMINE THE DIVIDING LINE BETWEEN THE POWERS RESERVED TO THE COMMUNITY, AS OWNER OF THE SPECIAL FISSILE MATERIALS, BY ARTICLE 86 AND THE ' ' RIGHT OF USE AND CONSUMPTION ' '
GUARANTEED TO THE MEMBER STATES AND TO OTHER PERSONS OR UNDERTAKINGS UNDER ARTICLE 87 . IN THIS CONTEXT IT IS SUFFICIENT TO NOTE THE FOLLOWING FACTORS .
27THE SYSTEM OF PROPERTY OWNERSHIP BY THE TREATY SIGNIFIES THAT, WHATEVER THE USE TO WHICH NUCLEAR MATERIALS ARE PUT, THE COMMUNITY REMAINS THE EXCLUSIVE HOLDER OF THE RIGHTS WHICH FORM THE ESSENTIAL CONTENT OF THE RIGHT OF PROPERTY . THUS, IN THE FINAL ANALYSIS, THE COMMUNITY RETAINS THE RIGHT TO DISPOSE OF SPECIAL FISSILE MATERIALS ; THAT CONCEPT IS THE BASIS OF THE SUPPLY ARRANGEMENTS AS DESCRIBED ABOVE . IN CONTRAST TO THE RIGHT OF USE AND CONSUMPTION WHICH, FOR THE PURPOSES OF ECONOMIC EXPLOITATION, IS DIVIDED BETWEEN MANY DIFFERENT HOLDERS, THE RIGHT OF OWNERSHIP OF FISSILE MATERIALS WAS CONCENTRATED BY THE TREATY IN THE HANDS OF A COMMON PUBLIC AUTHORITY, NAMELY THE COMMUNITY ; THEREFORE, IT IS THE COMMUNITY, AND THE COMMUNITY ALONE, WHICH IS IN A POSITION TO ENSURE THAT IN THE MANAGEMENT OF NUCLEAR MATERIALS THE GENERAL NEEDS OF THE PUBLIC ARE SAFEGUARDED IN ITS OWN FIELD . MOREOVER ARTICLE 87 EXPRESSLY RECOGNIZES THIS STATE OF AFFAIRS BY MAKING AN EXPRESS RESERVATION AS REGARDS USERS - MEMBER STATES, PERSONS AND UNDERTAKINGS - IN RESPECT OF COMPLIANCE WITH THE OBLIGATIONS UNDER THE TREATY INCLUDING ALL MATTERS REGARDING THE RIGHTS OF THE SUPPLY AGENCY AND SAFEGUARDS .
28AS A RESULT OF THE SYSTEM DESCRIBED ABOVE, WHEN A NEW REQUIREMENT OF GENERAL INTEREST APPEARS IT IS PRIMARILY FOR THE OWNER OF THE NUCLEAR MATERIALS, THAT IS TO SAY THE COMMUNITY, TO MEET IT . THE CONFERMENT OF OWNERSHIP OF FISSILE MATERIALS ON THE COMMUNITY, BY ARTICLE 86, HAS THE PURPOSE INTER ALIA, OF PREVENTING THE CREATION OF A LEGAL VACUUM IN THE FACE OF SUCH NEEDS . THEREFORE IT IS THE COMMUNITY WHICH, BY VIRTUE OF ITS RIGHT OF OWNERSHIP, HOLDS THE POWER TO DEAL WITH UNFORESEEN SITUATIONS IN A COHERENT MANNER . CONSEQUENTLY IN SO FAR AS THE DRAFT CONVENTION IS INTENDED TO MEET NEW RISKS, THE COMMUNITY IS CONCERNED AS THE OWNER OF THE MATERIALS WHICH ARE TO BE PROTECTED .
29IT THUS BECOMES APPARENT THAT BY RESERVING TO THE COMMUNITY THE RIGHT OF OWNERSHIP OF SPECIAL FISSILE MATERIALS THE TREATY SOUGHT TO PLACE THE COMMUNITY IN A STRONG POSITION TO ENABLE IT TO ACCOMPLISH FULLY ITS TASK OF GENERAL INTEREST . THE COURT CAN THEREFORE ONLY CONFIRM THE VIEW ADVOCATED BY THE COMMISSION THAT THE SUPPLY ARRANGEMENTS AND THE SYSTEM OF SECURITY MUST BE REGARDED IN CLOSE CONNEXION WITH THE SYSTEM OF PROPERTY OWNERSHIP UNDER ARTICLE 2 ( F ) AND ARTICLES 86 AND 87, WHICH ARE THE LEGAL BASIS THEREOF . CONSEQUENTLY THE COMMUNITY HAS A WELL-FOUNDED TITLE TO PARTICIPATE IN A CONVENTION WHOSE OBJECT IS TO REINFORCE THE PHYSICAL PROTECTION OF MATERIALS OF WHICH IT IS THE OWNER IN THE SENSE DESCRIBED ABOVE .
30IT IS NEVERTHELESS NECESSARY IN THIS CONTEXT TO DRAW ATTENTION TO ONE LIMITATION RESULTING FROM ARTICLE 91 OF THE EAEC TREATY . UNDER THAT ARTICLE, ' ' THE SYSTEM OF OWNERSHIP APPLICABLE TO ALL OBJECTS, MATERIALS AND ASSETS WHICH ARE NOT VESTED IN THE COMMUNITY UNDER THIS CHAPTER SHALL BE DETERMINED BY THE LAW OF EACH MEMBER STATE ' ' . THE DRAFT CONVENTION CONCERNS THE PHYSICAL PROTECTION NOT ONLY OF FISSILE MATERIALS BUT ALSO OF NUCLEAR FACILITIES WHICH HAVE TO BE DEFENDED AGAINST SABOTAGE AS IS EXPLAINED AT GREATER LENGTH IN THE DOCUMENT REFERRED TO IN ARTICLE 3 OF THE DRAFT CONVENTION . IT APPEARS THEREFORE THAT FROM THE POINT OF VIEW OF THE RIGHT OF OWNERSHIP, THE CONVENTION RELATES BOTH TO OBJECTS FALLING UNDER COMMUNITY OWNERSHIP - SPECIAL FISSILE MATERIALS AND ANY JOINT UNDERTAKINGS SET UP UNDER ARTICLES 45 TO 51 OF THE EAEC TREATY - AND TO OTHER MATERIALS AND INSTALLATIONS FALLING WITHIN THE SYSTEMS OF OWNERSHIP DEFINED BY THE MEMBER STATES .
THIRD PART . CONCLUDING REMARKS ON THE DIVISION OF JURISDICTION AND POWERS BETWEEN THE COMUNITY AND THE MEMBER STATES
31IN THE LIGHT OF AN ANALYSIS OF THE DRAFT CONVENTION AND A COMPARISON OF ITS PROVISIONS WITH THOSE OF THE EAEC TREATY THE FACT MUST BE RECOGNIZED THAT THE MEASURES LAID DOWN IN ORDER TO ENSURE THE PHYSICAL PROTECTION OF NUCLEAR MATERIALS, FACILITIES AND TRANSPORTS CONCERNS IN PART THE JURISDICTION OF THE MEMBER STATES AND IN PART THAT OF THE COMMUNITY .
THERE IS NO DISPUTE WITH REGARD TO THE PROVISIONS OF THE DRAFT CONVENTION RELATING TO CRIMINAL PROSECUTION AND EXTRADITION ; IT IS QUITE CLEAR THAT THE ARTICLES IN QUESTION RELATE TO MATTERS FALLING WITHIN THE JURISDICTION OF THE STATES . NEVERTHELESS AS IS SAID AT POINT 3.2.1.5 . OF THE DOCUMENT OF THE INTERNATIONAL AGENCY REFERRED TO IN ARTICLE 3 OF THE DRAFT CONVENTION THE PENALTIES DO NOT IN THEMSELVES CONSTITUTE A NECESSARY ELEMENT IN THE SYSTEM OF PHYSICAL PROTECTION ALTHOUGH THEY SERVE TO REINFORCE IT . IN OTHER WORDS THE CENTRE OF GRAVITY OF THE DRAFT CONVENTION LIES IN THE PREVENTIVE MEASURES AND IN THE ORGANIZATION OF EFFECTIVE PHYSICAL PROTECTION ; IT IS PRECISELY ON THIS PLANE THAT THE CONVENTION, DIRECTLY AND IN VARIOUS RESPECTS, CONCERNS MATTERS WITHIN THE PURVIEW OF THE TREATY . INDEED WITH REGARD TO THESE PROVISIONS, NAMELY ARTICLES 3 TO 5 OF THE DRAFT CONVENTION, A CLOSE INTERRELATION BETWEEN THE POWERS OF THE COMUNITY AND THOSE OF THE MEMBER STATES IS EVIDENT .
32TO THESE CONSIDERATIONS, CONCERNING THE FUNCTIONS CARRIED OUT BY THE COMMUNITY WITH REGARD TO THE VARIOUS OBJECTIVES OF THE EAEC TREATY, THERE MUST BE ADDED AN OBSERVATION WHICH IS MORE SPECIFICALLY LEGAL IN NATURE AND WHICH APPEARS NO LESS DECISIVE . THE SYSTEM OF PHYSICAL PROTECTION ORGANIZED BY THE DRAFT CONVENTION COULD ONLY FUNCTION IN AN EFFECTIVE MANNER, WITHIN THE AMBIT OF COMMUNITY LAW, ON CONDITION THAT THE COMMUNITY ITSELF IS OBLIGED TO COMPLY WITH IT IN ITS ACTIVITIES . TO THE EXTENT TO WHICH JURISDICTION AND POWERS HAVE BEEN CONFERRED ON THE COMMUNITY UNDER THE EAEC TREATY THE MEMBER STATES, WHETHER ACTING INDIVIDUALLY OR COLLECTIVELY, ARE NO LONGER ABLE TO IMPOSE ON THE COMMUNITY OBLIGATIONS WHICH IMPOSE CONDITIONS ON THE EXERCISE OF PREROGATIVES WHICH THENCEFORTH BELONG TO THE COMMUNITY AND WHICH THEREFORE NO LONGER FALL WITHIN THE FIELD OF NATIONAL SOVEREIGNTY . THEREFORE TO THE EXTENT TO WHICH THE COMMUNITY IS TO BE BOUND TO COMPLY WITH THE CONVENTION IT IS NECESSARY THAT IT SHOULD ASSUME SUCH OBLIGATIONS ITSELF ; THAT IS THE SENSE OF ARTICLE 101, WHICH STATES THAT IT IS ' ' THE COMMUNITY ' '
WHICH MAY ENTER INTO OBLIGATIONS BY CONCLUDING AGREEMENTS OR CONTRACTS, AND OF ARTICLE 184 WHICH CONFERS LEGAL PERSONALITY UPON IT .
33THUS THE EXCLUSION OF THE COMMUNITY FROM PARTICIPATION IN THE CONVENTION WOULD DETRIMENTALLY AFFECT THE POWERS CONFERRED UPON IT BY THE TREATY WITH REGARD TO SUPPLY AND THE NUCLEAR COMMON MARKET, THE RESPONSIBILITIES BORNE BY IT WITH REGARD TO SECURITY AND THE COMPREHENSIVE NATURE OF ITS RIGHT OF OWNERSHIP . MOREOVER SUCH A COURSE OF ACTION WOULD CALL IN QUESTION ITS CAPACITY FOR INDEPENDENT ACTION AS IT IS ALSO THE COMMUNITY WHICH MUST BE ABLE TO PARTICIPATE, AS SUCH, THROUGH ITS OWN INSTITUTIONS, IN THE DRAWING UP AND IMPLEMENTATION OF THE MEASURES PROVIDED IN THE DRAFT CONVENTION IN SO FAR AS IT IS TO AFFECT THE AFORESAID SYSTEMS . THE MEMBER STATES ARE NOT TO INTERVENE IN THE EXERCISE OF THOSE PREROGATIVES ; IN ACCORDANCE WITH THE DIVISION OF POWERS SET OUT IN ARTICLE 101 OF THE TREATY THAT RIGHT IS CONFERRED UPON THE COMMON INSTITUTIONS ALONE .
IN THIS RESPECT SPECIAL EMPHASIS SHOULD BE PLACED ON THE GENERAL UNDERTAKING IN ARTICLE 192 WHEREBY : ' ' MEMBER STATES SHALL TAKE ALL APPROPRIATE MEASURES, WHETHER GENERAL OR PARTICULAR, TO ENSURE FULFILMENT OF THE OBLIGATIONS ARISING OUT OF THIS TREATY OR RESULTING FROM ACTION TAKEN BY THE INSTITUTIONS OF THE COMMUNITY . THEY SHALL FACILITATE THE ACHIEVEMENT OF THE COMMUNITY ' S TASKS . THEY SHALL ABSTAIN FROM ANY MEASURE WHICH COULD JEOPARDIZE THE ATTAINMENT OF THE OBJECTIVES OF THIS TREATY ' ' . THERE CAN BE NO DOUBT THAT UNILATERAL ACTION BY THE MEMBER STATES IN THIS REGARD, EVEN IF IT WERE COLLECTIVE AND CONCERTED ACTION, WOULD HAVE THE EFFECT OF CALLING IN QUESTION CERTAIN OF THE ESSENTIAL FUNCTIONS OF THE COMMUNITY AND IN ADDITION OF AFFECTING DETRIMENTALLY ITS INDEPENDENT ACTION IN EXTERNAL RELATIONS .
34IT FOLLOWS FROM ALL THE FOREGOING THAT THE DRAFT CONVENTION PUT FORWARD BY THE INTERNATIONAL AGENCY CAN BE IMPLEMENTED AS REGARDS THE COMMUNITY ONLY BY MEANS OF A CLOSE ASSOCIATION BETWEEN THE INSTITUTIONS OF THE COMMUNITY AND THE MEMBER STATES BOTH IN THE PROCESS OF NEGOTIATION AND CONCLUSION AND IN THE FULFILMENT OF THE OBLIGATIONS ENTERED INTO . THIS SITUATION WAS FORESEEN BY THE EAEC TREATY . WHERE IT APPEARS THAT THE SUBJECT-MATTER OF AN AGREEMENT OR CONTRACT FALLS IN PART WITHIN THE POWER AND JURISDICTION OF THE COMMUNITY AND IN PART WITHIN THAT OF THE MEMBER STATES THERE ARE STRONG GROUNDS FOR USING THE PROCEDURE ENVISAGED BY ARTICLE 102 OF THE TREATY WHEREBY SUCH OBLIGATIONS MAY BE ENTERED INTO BY THE COMMUNITY IN ASSOCIATION WITH THE MEMBER STATES . FOR THE COMMUNITY ' S PART AGREEMENTS OR CONTRACTS OF THIS KIND ARE TO BE CONCLUDED IN ACCORDANCE WITH THE ORDINARY PROCEDURE LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 101 : AS REGARDS THE COMMUNITY THEY ARE TO BE NEGOTIATED BY THE COMMISSION IN ACCORDANCE WITH THE DIRECTIVES OF THE COUNCIL AND CONCLUDED BY THE COMMISSION WITH THE APPROVAL OF THE COUNCIL . HOWEVER, ACCORDING TO THE SPECIFIC REQUIREMENTS OF ARTICLE 102 THEY ARE NOT TO ENTER INTO FORCE UNTIL THE COMMISSION HAS BEEN NOTIFIED BY ALL THE MEMBER STATES CONCERNED THAT THOSE AGREEMENTS OR CONTRACTS HAVE BECOME APPLICABLE IN ACCORDANCE WITH THE PROVISIONS OF THEIR RESPECTIVE NATIONAL LAWS .
35IT IS FURTHER IMPORTANT TO STATE, AS WAS CORRECTLY POINTED OUT BY THE COMMISSION, THAT IT IS NOT NECESSARY TO SET OUT AND DETERMINE, AS REGARDS OTHER PARTIES TO THE CONVENTION, THE DIVISION OF POWERS IN THIS RESPECT BETWEEN THE COMMUNITY AND THE MEMBER STATES, PARTICULARLY AS IT MAY CHANGE IN THE COURSE OF TIME . IT IS SUFFICIENT TO STATE TO THE OTHER CONTRACTING PARTIES THAT THE MATTER GIVES RISE TO A DIVISION OF POWERS WITHIN THE COMMUNITY, IT BEING UNDERSTOOD THAT THE EXACT NATURE OF THAT DIVISION IS A DOMESTIC QUESTION IN WHICH THIRD PARTIES HAVE NO NEED TO INTERVENE . IN THE PRESENT INSTANCE THE IMPORTANT THING IS THAT THE IMPLEMENTATION OF THE CONVENTION SHOULD NOT BE INCOMPLETE . IT WAS IN THAT SPIRIT THAT AN ANALOGOUS PROBLEM WAS ENVISAGED IN POINT 3.2.1.3 OF THE INTERNATIONAL AGENCY ' S DOCUMENT REFERRED TO IN ARTICLE 3 OF THE DRAFT CONVENTION ; THAT PASSAGE OF THE DOCUMENT, WHILST RECOGNIZING THE DIVISION OF POWERS WITHIN CERTAIN MEMBER STATES WITH REGARD TO THE RESPONSIBILITIES ARISING OUT OF THE CONVENTION, PLACES THE EMPHASIS ON THE CO-ORDINATION OF THE PROTECTIVE MEASURES AS A WHOLE . THIS CONCEPTION MAY EASILY BE TRANSPOSED TO THE CASE OF A BODY SUCH AS THE COMMUNITY .
36IT IS STILL NECESSARY TO GIVE AN ANSWER TO THE QUESTION RAISED BY THE BELGIAN GOVERNMENT WITH REGARD TO THE IMPLEMENTATION OF THE CONVENTION . THAT QUESTION SHOULD BE RESOLVED ON THE BASIS OF THE SAME PRINCIPLES AS GOVERN THE DIVISION OF POWERS WITH REGARD TO THE NEGOTIATION AND CONCLUSION OF THE CONVENTION . ONCE THE CONVENTION HAS ENTERED INTO FORCE, ITS APPLICATION WILL ENTAIL CLOSE CO-OPERATION BETWEEN THE INSTITUTIONS OF THE COMMUNITY AND THE MEMBER STATES . THE TASKS TO BE CARRIED OUT BY THE COMMUNITY WILL RELATE IN ESSENCE TO THE SUPPLY ARRANGEMENTS AND THE MANAGEMENT OF THE NUCLEAR COMMON MARKET, THE IMPLEMENTATION OF SECURITY PROVISIONS WHICH COVER THE WHOLE OF THE COMMUNITY AND FINALLY THE MANAGEMENT OF THE RIGHT OF PROPERTY OWNERSHIP . THE RELEVANT PROVISIONS OF THE TREATY, TOGETHER WITH THE PROVISIONS OF THE CONVENTION ITSELF, WHICH, ONCE IT HAS BEEN CONCLUDED BY THE COMMUNITY, WILL FORM AN INTEGRAL PART OF COMMUNITY LAW, WILL PROVIDE AN APPROPRIATE LEGAL BASIS FOR THE NECESSARY IMPLEMENTING MEASURES . MORE PARTICULARLY IT MAY BE STATED IN THIS RESPECT THAT ARTICLE 124 OF THE EAEC TREATY ENABLES ALL THE NECESSARY IMPLEMENTING POWERS TO BE CONFERRED ON THE COMMISSION . FOR THE REST IT WILL BE FOR THE MEMBER STATES TO ADOPT THE APPROPRIATE IMPLEMENTING PROVISIONS, EACH IN ITS OWN TERRITORY, ESPECIALLY IN THE FIELD OF THE INTERVENTION OF THE PUBLIC AUTHORITIES, CRIMINAL PROSECUTIONS AND EXTRADITION . UNDER THE SECOND PARAGRAPH OF ARTICLE 115 OF THE TREATY THE COUNCIL WILL ARRANGE FOR THE CO-ORDINATION OF THE ACTIONS OF THE MEMBER STATES AND OF THE COMMUNITY .
IT THEREFORE APPEARS THAT THROUGHOUT THE COMMUNITY THE IMPLEMENTATION OF THE CONVENTION MAY BE UNDERTAKEN IN ACCORDANCE WITH THE SAME PRINCIPLES AS GOVERN THE DISTRIBUTION OF POWERS BOTH AS REGARDS EXTERNAL RELATIONS AND WITHIN THE COMMUNITY . HERE THERE IS TO BE FOUND ONCE MORE THE NECESSITY FOR HARMONY BETWEEN INTERNATIONAL ACTION BY THE COMMUNITY AND THE DISTRIBUTION OF JURISDICTION AND POWERS WITHIN THE COMMUNITY WHICH THE COURT OF JUSTICE HAD OCCASION TO EMPHASIZE IN ITS CASE-LAW ORIGINATING WITH THE JUDGMENT OF 31 MARCH 1971 ( CASE 22/70 COMMISSION V COUNCIL ( 1971 ) 1 ECR 263 ON THE EUROPEAN AGREEMENT ON ROAD TRANSPORT ). THE STRUCTURE OF THE EAEC TREATY, CONTEMPLATED IN THIS SPIRIT, WILL MAKE IT POSSIBLE FOR ALL THE RESPONSIBILITIES ARISING FOR THE COMMUNITY FROM THE DRAFT CONVENTION TO BE MET .
Operative part
ON THOSE GROUNDS,
THE COURT,
ADJUDICATING UPON THE APPLICATION FROM THE GOVERNMENT OF THE KINGDOM OF BELGIUM UNDER ARTICLE 103 OF THE EAEC TREATY, HEREBY RULES AS FOLLOWS :
1 . THE PARTICIPATION OF THE MEMBER STATES IN A CONVENTION RELATING TO THE PHYSICAL PROTECTION OF NUCLEAR MATERIALS, FACILITIES AND TRANSPORTS SUCH AS THE CONVENTION AT PRESENT BEING NEGOTIATED WITHIN THE INTERNATIONAL ATOMIC ENERGY AGENCY IS COMPATIBLE WITH THE PROVISIONS OF THE EAEC TREATY ONLY SUBJECT TO THE CONDITION THAT, IN SO FAR AS ITS OWN POWERS AND JURISDICTION ARE CONCERNED, THE COMMUNITY AS SUCH IS A PARTY TO THE CONVENTION ON THE SAME LINES AS THE STATES .
2 . THE FULFILMENT OF THE OBLIGATIONS ENTERED INTO UNDER THE CONVENTION IS TO BE ENSURED, ON THE COMMUNITY ' S PART, IN THE CONTEXT OF THE INSTITUTIONAL SYSTEM ESTABLISHED BY THE EAEC TREATY IN ACCORDANCE WITH THE DISTRIBUTION OF POWERS BETWEEN THE COMMUNITY AND ITS MEMBER STATES .