Proposal for a COUNCIL DECISION approving the conclusion of the Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency

The Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency ("the Convention" in the following) was adopted by the General Conference of the International Atomic Energy Agency (IAEA) at a special session on 26 September 1986.

This Convention establishes an international cooperation framework between the States Parties and with the IAEA to facilitate rapid assistance in the event of a nuclear accident or of a radiological emergency and to minimise the consequences. Provision is also made for bilateral and multilateral arrangements to facilitate this cooperation.

Article 1 of the Convention requires the States Parties to cooperate between themselves and with the IAEA, and provides for the possibility to conclude bilateral and multilateral arrangements to facilitate prompt assistance in the event of a nuclear accident or radiological emergency.

The Convention contains several provisions that stipulate the procedure to be followed when providing assistance (Article 2), the responsibility for direction and control of assistance (Article 3), the designation of competent authorities and points of contact (Article 4), the functions of the IAEA (Article 5), the confidentiality rules (Article 6), the reimbursement of costs (Article 7), the privileges, immunities and facilities -- and their limitations -- granted to the persons providing the assistance (Article 8), the measures to facilitate transit of personnel, equipment and property (Article 9), the exemptions from civil liability -- and their limitations -- of the party providing the assistance (Article 10) and the termination of assistance (Article 11).

Other provisions, which are also to be found in other similar international conventions, concern the dispute settlement procedure (Article 13), the entry into force of the provisions (Articles 14 and 15), the procedure for amending and denouncing the Convention (Articles 16 and 17), the designation of the depositary (Article 18) and the reference to the authentic texts of the Convention (Article 19).

The Convention is open for accession by international organisations and regional integration organisations in accordance with Article 14(5)(a). In this event, Article 14(5)(c) of the Convention provides that "when depositing its instrument of accession, such an organization shall communicate to the depositary a declaration indicating the extent of its competence in respect of matters covered by this Convention".

Article 13(1) and (2) of the Convention contains provisions relating to the settlement of disputes. Paragraph 3 of this Article reads as follows: "When signing, ratifying, accepting, approving or acceding to this Convention, a State may declare that it does not consider itself bound by either or both of the dispute settlement procedures provided for in paragraph 2. The other States Parties shall not be bound by a dispute settlement procedure provided for in paragraph 2 with respect to a State Party for which such a declaration is in force."

2. Council Decision of 27 November 1989

Under Article 101 of the Euratom Treaty "the Community may enter into obligations by concluding agreements or contracts with a third State, an international organization or a national of a third State. Such agreements or contracts shall be negotiated by the Commission in accordance with the directives of the Council; they shall be concluded by the Commission with the approval of the Council, which shall act by a qualified majority".

The Council approved the conclusion of the Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency by a decision (unpublished) of 27 November 1989.

This decision has two annexes:

1. Annex A contains two declarations for presentation to the depositary at the time of Community accession, namely:

a) A declaration of competence within the meaning of Article 14(5)(c) which reads as follows:

"1. In accordance with the procedures laid down in the attached exchange of letters and pursuant to the Convention, with the exception of Article 8(1), (2), (3) and (5), the Community, having obtained the agreement of the host Member State, will be entitled to make a request for assistance in the event of an accident's occurring at an establishment of the Joint Research Centre (JRC) set up under Article 8 of the Euratom Treaty.

Such establishments exist at present in Ispra (Italy), Karlsruhe (Federal Republic of Germany), Petten (Netherlands) and Geel (Belgium).

2. The Community may respond to a request for assistance, pursuant to the Convention, by using the resources of the JRC.

3. The Community, in the same capacity as the States Parties, will make known its competent authorities and point of contact in accordance with Article 4; it will receive the corresponding communications from the other Parties."

b) A declaration within the meaning of Article 13(3) of the Convention which reads as follows:

"Since only States can be Parties in cases brought before the International Court of Justice, in accordance with Article 34 of its Statutes, the Community can be bound only by the arbitration procedure referred to in Article 11(2)."

2. Annex B concerns the exchange of letters between the Commission and the Member States in the territories of which a Joint Research Centre (JRC) establishment is located. This exchange of letters is the practical consequence of the declaration of competence, since the latter limits Community competence in the matters covered by the Convention to accidents occurring at one of the JRC establishments. In the event that such an occurrence leads to action by the Commission and the Member States in whose territories a JRC establishment is located, the responsibilities of each party are set out in Annex B in the form of an exchange of standard letters. Among other things, it is clearly stated that requests for assistance in relation to a JRC establishment are subject to the prior agreement of the government concerned.

3. Community accession to the Convention

Since the Convention was signed, the Community has expressed not only its interest in acceding, but also its intention to apply the provisions in practice even before accession.

This intention was explicitly stated in a letter of 12 December 1991 from the Director-General for External Relations to the Director-General of the IAEA. In this letter, the Commission undertakes to apply the Convention provisionally pending Community accession. The Commission accordingly designated the competent authorities and points of contact in conformity with Article 4 of the Convention.

Subsequent experience with the exercise of the powers conferred on the Commission by the provisions of Title II, Chapter 3 of the Euratom Treaty in the field covered by the Convention has revealed the inappropriate nature of the declarations annexed to the Council decision of 27 November 1989 approving the conclusion of the Convention.

The concept of mutual assistance by Member States is inherent in the rules on preparing for radiological emergencies. Moreover, several provisions of the Community acquis originating in Title II, Chapter 3 of the Euratom Treaty provide for such assistance. For example, the existence of agreements in this area is referred to in the recitals of Council Directive 89/618/Euratom of 27 November 1989 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency [1]. An obligation to provide assistance is explicitly mentioned in Article 51(5) of Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation [2]. Article 11 of Council Directive 2003/122/Euratom of 22 December 2003 on the control of high-activity sealed radioactive sources and orphan sources also stipulates the need for international cooperation [3].

[1] OJ L 357, 7.12.1989, p. 31.

[2] OJ L 159, 29.06.1996, p. 1.

[3] OJ L 346, 31.12.2003, p. 57.

In view of the nature of Community competence in the field in question, the Council decision of 27 November 1989 does not constitute an appropriate basis for concluding the Convention on behalf of the Community.

As the Commission is bound by the content of this decision and its annexes, it is necessary to propose to the Council a new decision repealing the 1989 decision.

4. Justification for repealing the Council decision of 27 November 1989

The Commission considers, firstly, that the content of Annex A to the Decision cannot be regarded in the strict sense as a declaration of competence within the meaning of Article 14(5)(c) of the Convention. The declaration does not refer to the powers conferred on the Community by the Euratom Treaty in the field covered by the Convention, but merely states that the Community will be entitled to make a request for assistance in the event of an accident occurring at a JRC establishment and that it may respond to a request for assistance by using the resources of the JRC.

The Council decision approving the conclusion of the Convention does not take account of the existence of Community competence resulting from the provisions on health protection contained in Title II, Chapter 3 of the Euratom Treaty.

In addition, Council Decision 2001/792/EC,Euratom of 23 October 2001 establishing a Community mechanism to facilitate reinforced cooperation in civil protection assistance interventions provides for the establishment within the Commission of a monitoring and information centre. The Member States may have recourse to this centre to inform the other States and request their assistance, irrespective of the type of emergency involved.

The Community shares and exercises with its Member States true competence in the field, which cannot be limited solely to the JRC establishments. According to the case law of the Court of Justice, recently confirmed in the judgment of 12 December 2002 on accession to the Convention on Nuclear Safety (case C-29/99, Commission v. Council, ECR pp I-11221) "the legal effect of approval by the Council of accession to an international convention, in accordance with the second paragraph of Article 101 of the Euratom Treaty, is to authorise the Commission to conclude that convention within the framework established by the Council decision. When it approves accession to an international convention without any reservation, the Council must respect the conditions for accession laid down by that convention, since an accession decision which did not comply with those conditions would be in breach of the Community's obligations from the moment it entered into force. In addition, it follows from the duty of sincere cooperation between the institutions (...) that the Council decision (...) must enable the Commission to comply with international law" (points 67 to 69).

5. Content of the proposal for a Council decision

For reasons of legal clarity, it is considered opportune to replace the existing decision by a new Council decision. This proposal for a Council decision therefore repeals the decision of 27 November 1989.

The proposal has the same structure as the existing decision.

- Article 1 approves the conclusion of the IAEA Convention.

- Article 2 provides for the declaration in the annex (Declaration within the meaning of Article 14(5)(c) of the IAEA Convention) to be notified together with the instrument of Community accession.

- Article 3 provides for the repeal of the decision of 27 November 1989 approving the conclusion of the Convention.

The annex to the proposal has been revised to produce a declaration within the meaning of Article 14(5)(c) which sets out in appropriate form the extent of the Community's competence in the field concerned.

Given the largely procedural nature of the Convention's provisions, as noted in point 1 of this explanatory memorandum, it is sufficient simply to refer to the existence of shared competence with the Member States in respect of assistance in the event of a radiological emergency.

With regard to the declaration on dispute settlement in Article 13, it appears that, in view of the Community's own mechanisms, such a declaration is unnecessary and might even be incomplete. Moreover, a declaration of this type appears never to have been made in the context of other mixed agreements concluded by the Community in the past.

The new version of the declaration of competence renders Annex B superfluous.

Proposal for a COUNCIL DECISION approving the conclusion of the Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular the second subparagraph of Article 101 thereof,

Having regard to the proposal from the Commission [4],

[4] OJ C [...], [...], p. [...].

Whereas:

(1) A Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency ("the Convention" in the following) was adopted by the General Conference of the International Atomic Energy Agency at a special session on 26 September 1986.

(2) This Convention is open for accession by international organisations and regional integration organisations under Article 14(5)(a), in which case a declaration of competence within the meaning of Article 14(5)(c) must be communicated on accession.

(3) The Council decision of 27 November 1989 approving the conclusion of the Convention on the basis of the second subparagraph of Article 101 of the Treaty establishing the European Atomic Energy Community has two annexes. Annex A contains two declarations in application of Article 14(5)(c) and Article 13(3) of the Convention, while Annex B sets out, in the form of an exchange of standard letters between the Commission and the Member States in whose territories a Joint Research Centre (JRC) establishment is located, the rules governing a request for assistance in the event of an accident in one of the JRC establishments; this decision thus limits the extent of Community competence to the activities of the JRC.

(4) Contrary to what the above-mentioned Council decision may suggest, the European Atomic Energy Community's competence in the field covered by the Convention is based on Article 2(b), Articles 30 et seq. and Article 203 of the Euratom Treaty, and has been exercised in several instruments of secondary legislation on preparing for radiological emergencies, including Council Decision 2001/792/EC,Euratom of 23 October 2001 establishing a Community mechanism to facilitate reinforced cooperation in civil protection assistance interventions [5] and Title IX of Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation [6].

[5] OJ L 297, 15.11.2001, p.7.

[6] OJ L 159, 29.06.1996, p. 1.

(5) In view of the above-mentioned provisions of the Euratom Treaty and of secondary legislation, Annexes A and B to the Council decision of 27 November 1989 approving the conclusion of the Convention do not properly express the extent of Community competence in the field of mutual assistance in the event of an accident, as this competence cannot be limited to accidents that may occur in one of the Joint Research Centre establishments.

(6) The International Atomic Energy Agency and the European Atomic Energy Community have a long history of close mutual cooperation, particularly in the field of mutual assistance in the event of a radiological accident, and the Commission has undertaken to apply the Convention provisionally pending actual Community accession to the Convention.

(7) It is therefore necessary to adopt a new decision approving the conclusion of the Convention which takes full account of the existence of shared competence on the part of the European Atomic Energy Community and its Member States in the matters covered by the Convention, and to repeal the Council decision of 27 November 1989,

HAS DECIDED AS FOLLOWS:

Article 1

The conclusion by the Commission of the Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency is hereby approved.

Article 2

The Commission shall communicate the declaration in the annex to this decision simultaneously with its deposit of the Community's instrument of accession.

Article 3

The Council decision of 27 November 1989 approving the conclusion by the Commission of the Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency is hereby repealed.

Done at Brussels, [...]

For the Council

The President

ANNEX

Declaration referred to in Article 14(5)(c) of the Convention

The Community shares competence with its Member States in respect of assistance in the event of a radiological emergency on the basis of Article 2(b) and of the relevant provisions of Title II, Chapter 3 "Health and Safety" of the Treaty establishing the European Atomic Energy Community.