COUNCIL REGULATION (EU) 2021/101

of 25 January 2021

establishing the nuclear decommissioning assistance programme of the Ignalina nuclear power plant in Lithuania and repealing Regulation (EU) No 1369/2013

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the 2003 Act of Accession, and in particular Article 56 thereof and Article 3 of Protocol No 4 attached thereto,

Having regard to the proposal from the European Commission,

Whereas:

(1) In accordance with Protocol No 4 on the Ignalina nuclear power plant in Lithuania (1) (‘Protocol No 4’) attached to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (2) (‘Act of Accession’), Lithuania committed itself to the closure of Unit 1 and Unit 2 of the Ignalina Nuclear Power Plant by 31 December 2004 and 31 December 2009 respectively, and to the subsequent decommissioning of those units.

(2) In line with its obligations under the Act of Accession and with Union assistance, Lithuania shut down the two units within the respective deadlines and made significant progress towards their decommissioning. Further work is necessary in order to continue the decrease in the level of radiological hazard. Based on the available estimates, additional financial resources are required for that purpose after 2020.

(3) The activities covered by this Regulation should comply with applicable Union and national law. The decommissioning of the Ignalina Nuclear Power Plant should be carried out in accordance with Union law on nuclear safety, namely Council Directive 2009/71/Euratom (3), and waste management, namely Council Directive 2011/70/Euratom (4). Pursuant to Articles 4(1) and 7(1) of Directive 2011/70/Euratom, the ultimate responsibility for the safe management of the spent fuel and radioactive waste generated remains with the Member States.

(4) The premature shutdown and subsequent decommissioning of the Ignalina Nuclear Power Plant, with two 1 500 MW RBMK-type reactor units inherited from the Soviet Union, was of an unprecedented nature and represented for Lithuania an exceptional financial burden not commensurate with the size and economic strength of the country. Protocol No 4 states that the Union financial assistance in support of Lithuania’s efforts to decommission and to address the consequences of the closure and decommissioning of the Ignalina Nuclear Power Plant is to be seamlessly continued and extended beyond 2006 for the period of the next Financial Perspectives.

(5) This Regulation lays down a financial envelope for the entire duration of the nuclear decommissioning assistance programme of the Ignalina Nuclear Power Plant in Lithuania (the ‘Programme’), which is to constitute the prime reference amount within the meaning of point 17 of the Interinstitutional Agreement of 2 December 2013 between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management (5) for the European Parliament and the Council during the annual budgetary procedure.

(6) The Programme should be established for a period of seven years to align its duration with that of the multiannual financial framework laid down in Council Regulation (EU, Euratom) 2020/2093 (6).

(7) Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (7) (‘Financial Regulation’) applies to the Programme. The Financial Regulation lays down rules on the implementation of the Union budget, including the rules on grants, prizes, procurement, indirect management, financial instruments, budgetary guarantees, financial assistance and the reimbursement of external experts.

(8) In accordance with the Financial Regulation, Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (8), Council Regulations (EC, Euratom) No 2988/95 (9), (Euratom, EC) No 2185/96 (10) and (EU) 2017/1939 (11), the financial interests of the Union are to be protected by means of proportionate measures, including measures relating to the prevention, detection, correction and investigation of irregularities, including fraud, to the recovery of funds lost, wrongly paid or incorrectly used, and, where appropriate, to the imposition of administrative penalties. In particular, in accordance with Regulations (Euratom, EC) No 2185/96 and (EU, Euratom) No 883/2013, the European Anti-Fraud Office (OLAF) has the power to carry out administrative investigations, including on-the-spot checks and inspections, with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union. The European Public Prosecutor’s Office (EPPO) is empowered, in accordance with Regulation (EU) 2017/1939, to investigate and prosecute criminal offences affecting the financial interests of the Union as provided for in Directive (EU) 2017/1371 of the European Parliament and of the Council (12). In accordance with the Financial Regulation, any person or entity receiving Union funds is to fully cooperate in the protection of the financial interests of the Union, grant the necessary rights and access to the Commission, OLAF, the Court of Auditors and, in respect of those Member States participating in enhanced cooperation pursuant to Regulation (EU) 2017/1939, the EPPO, and ensure that any third parties involved in the implementation of Union funds grant equivalent rights.

(9) This Regulation does not prejudge the outcome of any future State aid procedures that may be undertaken in accordance with Articles 107 and 108 of the Treaty on the Functioning of the European Union (TFEU).

(10) The financing pursuant to this Regulation should concentrate on activities implementing the safety objectives of the decommissioning.

(11) The Programme should also involve the creation of knowledge and the sharing of experience. Knowledge and experience gained and lessons learnt under the Programme with regard to the nuclear decommissioning process should be disseminated in the Union, in coordination and synergy with the other relevant Union programmes for decommissioning activities in Bulgaria, Slovakia and the Commission’s nuclear installations at the Joint Research Centre (JRC) sites, as such measures bring the greatest EU added value and contribute to the safety of the workers and the general public as well as protection of the environment. The scope, procedure and economic aspects of cooperation should be detailed in the multiannual work programme and could also be subject to agreements between the Member States and/or with the Commission.

(12) The JRC should facilitate the dissemination of knowledge among different Union stakeholders in a coordinated way, for example by carrying out market analysis, reviews and assessments of knowledge needs in the Union, identifying potential directions for cooperation, interested stakeholders and spheres in which knowledge created in the implementation of the Programme would bring the greatest added value, and developing formats for knowledge sharing. The dissemination of knowledge created should be financed by the JRC. Any Member State should be able to initiate the development of ties and exchanges for knowledge dissemination.

(13) The decommissioning of the Ignalina Nuclear Power Plant should be carried out with recourse to the best available technical expertise, and with due regard to the nature and technological specifications of the installations to be decommissioned, in order to ensure safety and the highest possible efficiency, thus taking into account international best practices.

(14) Effective monitoring and control of the evolution of the decommissioning process should be ensured by Lithuania and the Commission in order to assure the highest EU added value of the funding allocated under this Regulation, although the ultimate responsibility for the decommissioning rests with Lithuania. This includes effective measurement of progress and performance, and the enacting of corrective measures where necessary. To that end, a committee with monitoring and information functions should be established and co-chaired by a representative of the Commission and of Lithuania.

(15) Pursuant to paragraphs 22 and 23 of the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (13), the Programme should be evaluated on the basis of information collected in accordance with specific monitoring requirements while avoiding an administrative burden, in particular on Member States, and overregulation. Those requirements, where appropriate, should include measurable indicators as a basis for evaluating the effects of the Programme on the ground.

(16) It should be possible to review the amount of the appropriations allocated to the Programme as well as the programming period based on the results of the interim evaluation report.

(17) Activities co-financed under this Regulation should be identified within the boundaries defined by the decommissioning plan submitted by Lithuania in accordance with Council Regulation (EU) No 1369/2013 (14). That plan defines the scope of the Programme, as well as the decommissioning end state and end-date. It also covers the decommissioning activities, their associated schedule, costs and required human resources. When relevant, Lithuania should submit updated versions of the decommissioning plan to the Commission for its consideration while preparing the work programmes.

(18) Activities under the Programme should be conducted with a joint financial effort of the Union and Lithuania. A maximum Union co-financing threshold should be established in line with the co-financing practice established under the predecessor programmes. Taking into account the practice of comparable Union programmes and the strengthened Lithuanian economy, from the inception of the Programme until the end of the implementation of the activities financed under this Regulation, the Union co-financing rate should be 86 % of eligible costs. The remaining financing should be provided by Lithuania and sources other than the Union budget, such as international financial institutions and other donors.

(19) Regulation (EU) No 1369/2013 should therefore be repealed.

(20) Due account has been taken of the Special Report No 22/2016 of the Court of Auditors entitled ‘EU nuclear decommissioning assistance programmes in Lithuania, Bulgaria and Slovakia: some progress made since 2011, but critical challenges ahead’, its recommendations and the reply from the Commission.

(21) Note has been taken of the European Parliament legislative resolution of 17 January 2019 on the proposal for a Council regulation establishing the nuclear decommissioning assistance programme of the Ignalina nuclear power plant in Lithuania (Ignalina programme); and repealing Council Regulation (EU) No 1369/2013.

(22) The Programme falls within the scope of the Lithuanian national programme for the implementation of spent fuel and radioactive waste management policy established pursuant to Directive 2011/70/Euratom.

(23) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (15).

(24) Horizontal financial rules adopted by the European Parliament and the Council on the basis of Article 322 TFEU apply to this Regulation. Those rules are laid down in the Financial Regulation and determine in particular the procedure for establishing and implementing the budget through grants, procurement, prizes and indirect implementation, and provide for checks on the responsibility of financial actors. Rules adopted on the basis of Article 322 of the TFEU also concern the general regime of conditionality for the protection of the Union’s budget.

(25) The methods of implementation and forms of Union funding laid down in this Regulation should be chosen on the basis of their ability to achieve the specific objectives of the activities and to deliver results, taking into account, in particular, the costs of controls, the administrative burden, and the expected risk of non-compliance. This should include consideration of the use of lump sums, flat rates and unit costs, as well as financing not linked to costs as referred to in point (a) of Article 125(1) of the Financial Regulation,

HAS ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1 Subject matter and scope 1. This Regulation establishes the nuclear decommissioning assistance programme of the Ignalina Nuclear Power Plant in Lithuania (‘the Programme’) for the period from 1 January 2021 to 31 December 2027. 2. It lays down the objectives of the Programme, its budget for the period from 1 January 2021 to 31 December 2027, the methods of implementation and the forms of Union funding.

Article 2 Definitions For the purposes of this Regulation, the following definitions apply: (1) ‘decommissioning’ means administrative and technical measures in accordance with national law which allow the removal of some or all of the regulatory controls from a nuclear facility and which aim to ensure the long-term protection of the public and the environment, including the reduction of the levels of residual radionuclides in the materials and on the site of the nuclear facility; (2) ‘decommissioning plan’ means a document that contains detailed information on the proposed decommissioning and covers the following: the selected decommissioning strategy; the schedule, type and sequence of decommissioning activities; the waste management strategy applied, including clearance; the proposed end state; the storage and disposal of the waste from decommissioning; the timeframe for decommissioning; the cost estimates for the completion of decommissioning; and the objectives, expected results, milestones, target dates, as well as the corresponding key performance indicators, including, where appropriate, earned-value-based indicators. The decommissioning plan is prepared by the nuclear facility licence holder and is reflected in the multiannual work programmes of the Programme.

Article 3 Objectives of the Programme 1. The general objective of the Programme is to assist Lithuania in implementing the decommissioning of the Ignalina Nuclear Power Plant, with specific emphasis on managing the safety challenges in respect thereof, while creating knowledge with regard to the nuclear decommissioning process and the management of radioactive waste resulting from the decommissioning activities. 2. The specific objective of the Programme is to carry out the dismantling and decontamination of the equipment and reactor shafts of the Ignalina Nuclear Power Plant in accordance with the decommissioning plan, including the management of radioactive waste resulting from the decommissioning activities, and to continue with the safe management of the decommissioning and legacy waste. 3. A detailed description of the specific objectives of the Programme is set out in Annex I. The Commission may amend, by means of implementing acts, Annex I, in accordance with the examination procedure referred to in Article 13(2).

Article 4 Budget of the Programme 1. The financial envelope for the implementation of the Programme for the period from 1 January 2021 to 31 December 2027 shall be EUR 552 000 000 in current prices. 2. The amount referred to in paragraph 1 may cover expenses, beyond activities described in Annex I, related to technical and administrative assistance for the implementation of the Programme, such as preparatory, monitoring, control, audit and evaluation activities, including corporate information technology systems. Such expenses shall be documented. 3. Budgetary commitments for activities extending over more than one financial year may be broken down into annual instalments over several years.

Article 5 Dissemination of knowledge 1. Knowledge created in the implementation process of the Programme shall be disseminated at the Union level. 2. Activities for accomplishing the activity referred to in paragraph 1 shall be financed under the JRC decommissioning and waste management programme, as defined in point 5 of Article 2 of Council Regulation (Euratom) 2021/100 (16). The JRC shall coordinate the structuring and dissemination of knowledge to Member States. 3. The process of dissemination of knowledge shall be included and defined in the work programme referred to in Article 9.

Article 6 Methods of implementation and forms of Union funding 1. The Programme shall be implemented under direct management in accordance with the Financial Regulation or under indirect management with entities listed in point (c) of Article 62(1) of the Financial Regulation. 2. Union funding under the Programme may be provided in any form laid down in the Financial Regulation.

CHAPTER II

ELIGIBILITY

Article 7 Eligible activities Only activities implementing the objectives set out in Article 3 shall be eligible for Union funding.

Article 8 Co-financing rates Every effort shall be made to continue the co-financing practice established under the pre-accession assistance and the assistance provided over the previous multiannual financial programmes for the decommissioning efforts of Lithuania, as well as to attract co-financing from other sources as appropriate. The overall maximum Union co-financing rate applicable under the Programme shall be 86 %. The remaining financing shall be provided by Lithuania and additional sources other than the Union budget. The activities necessary for the dissemination of knowledge referred to in Article 5 shall be funded by the Union at a rate of 100 %.

CHAPTER III

PROGRAMMING, MONITORING, EVALUATION AND CONTROL

Article 9 Work programme 1. The Programme shall be implemented by a multiannual work programme referred to in Article 110 of the Financial Regulation. The multiannual work programme shall be adopted in accordance with the procedure referred to in Article 13(2). 2. The multiannual work programme referred to in paragraph 1 shall reflect the decommissioning plan that serves as baseline for monitoring and evaluation of the Programme. 3. The multiannual work programme referred to in paragraph 1 shall specify the current state, the objectives, the expected results, the related performance indicators and the timeline for the use of funds and shall define the details for the dissemination of knowledge.

Article 10 Reporting and monitoring 1. Indicators to report on the progress of the Programme towards the achievement of the objectives set out in Article 3 are laid down in Annex II. 2. The performance reporting system shall ensure that data for monitoring the implementation and the results of the Programme are collected efficiently, effectively and in a timely manner. To that end, reporting requirements proportionate to the overall costs and Programme-related risks shall be imposed on recipients of Union funds and, where appropriate, on Member States. 3. At the end of each year, the Commission shall draw up a progress report on the implementation of the work carried out in the previous years, including the rate of activities resulting from calls for tenders, and shall present it to the European Parliament and to the Council.

Article 11 Evaluation 1. Evaluations shall be carried out in a timely manner to feed into the decision-making process. 2. The interim evaluation of the Programme shall be performed once there is sufficient information available about the implementation of the Programme, but no later than four years after the start of the period specified in Article 1(1). The interim evaluation shall also address the scope for modification of the multiannual work programme referred to in Article 9. 3. At the end of the implementation of the Programme, but no later than five years after the end of the period specified in Article 1(1), a final evaluation of the Programme shall be carried out by the Commission. 4. The Commission shall communicate the conclusions of the evaluations, together with its observations, to the European Parliament and to the Council.

Article 12 Audits Audits on the use of the Union and national contribution carried out by persons or entities, including persons or entities other than those mandated by the Union institutions or bodies, shall form the basis of the overall assurance within the meaning of Article 127 of the Financial Regulation.

Article 13 Committee 1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. 2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply. Where the opinion of the committee is to be obtained by written procedure, that procedure shall be terminated without result if, within the time limit for delivery of the opinion, the chair of the committee so decides or a simple majority of committee members so requests.

CHAPTER IV

TRANSITIONAL AND FINAL PROVISIONS

Article 14 Information, communication and publicity 1. The recipients of Union funds shall acknowledge the origin of those funds and ensure the visibility of the Union funding, in particular when promoting the activities and their results, by providing coherent, effective and proportionate targeted information to multiple audiences, including the media and the public. 2. The Commission shall implement information and communication actions relating to the Programme, to activities carried out pursuant to the Programme and to the results obtained. 3. Financial resources allocated to the Programme shall also contribute to the corporate communication of the political priorities of the Union, insofar as those priorities are related to the objectives set out in Article 3.

Article 15 Repeal Regulation (EU) No 1369/2013 is repealed.

Article 16 Transitional provisions 1. This Regulation shall not affect the continuation of or modification of the activities initiated pursuant to Regulation (EU) No 1369/2013, which shall continue to apply to those activities until their closure. 2. The financial envelope for the Programme may also cover the technical and administrative assistance expenses necessary to ensure the transition between the Programme and the measures adopted pursuant to the Regulation (EU) No 1369/2013. 3. If necessary, appropriations may be entered in the Union budget beyond 2027 to cover the expenses provided for in Article 4(2) to enable the management of activities not completed by 31 December 2027.

Article 17 Entry into force This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 1 January 2021.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 25 January 2021. For the Council The President J. BORRELL FONTELLES

(1) OJ L 236, 23.9.2003, p. 944.

(2) OJ L 236, 23.9.2003, p. 33.

(3) Council Directive 2009/71/Euratom of 25 June 2009 establishing a Community framework for the nuclear safety of nuclear installations (OJ L 172, 2.7.2009, p. 18).

(4) Council Directive 2011/70/Euratom of 19 July 2011 establishing a Community framework for the responsible and safe management of spent fuel and radioactive waste (OJ L 199, 2.8.2011, p. 48).

(5) OJ C 373, 20.12.2013, p. 1.

(6) Council Regulation (EU, Euratom) 2020/2093 of 17 December 2020 laying down the multiannual financial framework for the years 2021 to 2027 (OJ L 433 I, 22.12.2020, p. 11).

(7) Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).

(8) Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1).

(9) Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ L 312, 23.12.1995, p. 1).

(10) Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2).

(11) Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ L 283, 31.10.2017, p. 1).

(12) Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ L 198, 28.7.2017, p. 29).

(13) OJ L 123, 12.5.2016, p. 1.

(14) Council Regulation (EU) No 1369/2013 of 13 December 2013 on Union support for the nuclear decommissioning assistance programme in Lithuania, and repealing Regulation (EC) No 1990/2006 (OJ L 346, 20.12.2013, p. 7).

(15) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

(16) Council Regulation (Euratom) 2021/100 of 25 January 2021 establishing a dedicated financial programme for the decommissioning of nuclear facilities and the management of radioactive waste and repealing Regulation (Euratom) No 1368/2013 (see page 3 of this Official Journal).