Proposal for a COUNCIL DECISION approving the conclusion of the Convention on Early Notification of a Nuclear Accident

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. Convention on Early Notification of a Nuclear Accident

The Convention on Early Notification of a Nuclear Accident ("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 is designed to strengthen international cooperation by ensuring that information relating to nuclear accidents is communicated as early as possible to the States which are or may be physically affected in order to minimise the transboundary radiological consequences. Article 2 of the Convention stipulates the obligation to notify and provide information on accidents involving the installations listed in Article 1 (scope of application), while also allowing for the possibility of notifying any other nuclear accident (Article 3).

The Convention contains several procedural provisions describing the role of the IAEA (Articles 4 and 8), the information to be provided (Article 5), the response to be given to any requests for further information (Article 6) and the designation of competent authorities and points of contact (Article 7).

Other provisions, which are also to be found in other similar international conventions, concern the possibility of concluding bilateral and multilateral arrangements (Article 9), the dispute settlement procedure (Article 11), the entry into force of the provisions (Articles 12 and 13), the procedure for amending and denouncing the Convention (Articles 14 and 15), the designation of the depositary (Article 16) and the reference to the authentic texts of the Convention (Article 17).

The Convention is open for accession by international organisations and regional integration organisations in accordance with Article 12(5)(a). In this event, Article 12(5)(c) 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 11(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 14 December 1987

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 Early Notification of a Nuclear Accident by a decision (unpublished) of 14 December 1987.

This decision has two annexes:

1. Annex I 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 12(5)(c) which reads as follows:

"1. In accordance with the procedures laid down in the attached exchange of letters and pursuant to Articles 1, 2, 5(a), (b), (c) and (d), and Article 6, the Community, having obtained the agreement of the host Member State, shall notify accidents occurring in an establishment of the Joint Research Centre set up under Article 8 of the Euratom Treaty.

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

2. The Community shall receive, by the same right as the States Parties, the information referred to in Articles 2 and 4.

3. The Community shall be entitled to request further information or consultations, pursuant to Article 6, in the event of an accident which could affect the territory of a Member State.

4. The Community, in the same capacity as the States Parties, will make known its competent authorities and point of contact in accordance with Article 7; it will receive the corresponding communications from the other Parties."

b) A declaration within the meaning of Article 11(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) of the Convention".

2. Annex II concerns the exchange of letters between the Commission and the Member States in whose territories 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 II in the form of an exchange of standard letters.

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 expressed in a recital of Council Decision 87/600/Euratom of 14 December 1987 on Community arrangements for the early exchange of information in the event of a radiological emergency (ECURIE) [1] which reads as follows: "Whereas, in furtherance of international cooperation, the Community will participate in the IAEA Convention on Early Notification of a Nuclear Accident".

[1] OJ L 371, 30.12.1987, p. 76.

This cooperation was established on the basis of a letter of 12 December 1991 from the Director-General for External Relations to the Director-General of the IAEA, in which the Commission undertook to apply the Convention provisionally pending Community accession. The Commission accordingly designated the competent authorities and points of contact in conformity with Article 7 of the Convention.

Subsequent experience with the exercise of Community powers in the field covered by the Convention, primarily in the framework of the ECURIE system, has revealed the inappropriate nature of the declarations annexed to the Council decision of 14 December 1987 approving the conclusion of the Convention. This decision is not an appropriate basis for concluding the Convention on behalf of the Community.

As the Commission is bound by the content of such a decision and its annexes, it is necessary to propose to the Council a new decision repealing the 1987 decision.

4. Justification for repealing the Council decision of 14 December 1987

The Commission considers, firstly, that the content of Annex I to the Decision cannot be regarded in the strict sense as a declaration of competence within the meaning of Article 12(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 notify any accidents occurring in a JRC establishment after obtaining the agreement of the Member State concerned.

The Council decision approving the conclusion of the Convention does not take account of the existence of Council Decision 87/600/Euratom, also adopted on 14 December 1987, on Community arrangements for the early exchange of information in the event of a radiological emergency (ECURIE system).

The ECURIE system, which is comparable to the arrangements put in place by the IAEA Convention, has also been extended by agreement to Bulgaria, Romania, Switzerland and Turkey.

In legal terms, the ECURIE system set up by this Decision is a direct consequence of one of the tasks conferred on the Community by the Euratom Treaty, namely to establish uniform safety standards to protect the health of workers and of the general public and ensure that they are applied (see Article 2(b) and 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.

In practical terms, the ECURIE system places the Community at the hub of the rapid information mechanism as soon as an incident occurs in the territory in which the system is applied. The Commission collects and transmits the information immediately. It also draws any conclusions of a regulatory nature relating to health protection (particularly as regards food).

The Commission has established links with the IAEA and cooperates very closely with that body to ensure that the two systems are perfectly coherent and that Member States do not receive the same information several times from different sources.

It is therefore essential that the Community become Party to the Convention in the same way as its Member States and the third countries who have entered into an agreement to participate in the Community system.

The Community shares and exercises with its Member States true competence in the field, which cannot be limited solely to the activities of 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 14 December 1987.

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 12(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 14 December 1987 approving the conclusion of the Convention.

Annex I to the proposal has been revised to produce a declaration within the meaning of Article 12(5)(c) of the Convention which sets out in appropriate form the extent of the Community's competence in the fields 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 information in the case of a radiological emergency.

With regard to the declaration on dispute settlement in Article 11, 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 II superfluous.

Proposal for a COUNCIL DECISION approving the conclusion of the Convention on Early Notification of a Nuclear Accident

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 [2],

[2] OJ C [...], [...], p. [...].

Whereas:

(1) A Convention on Early Notification of a Nuclear Accident ("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 12(5)(a), in which case a declaration of competence within the meaning of Article 12(5)(c) must be communicated on accession.

(3) The Council decision of 14 December 1987 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 I contains two declarations in application of Article 12(5)(c) and Article 11(3) of the Convention, while Annex II sets out, in the form of an exchange of standard letters between the Commission and the Member States in whose territory a Joint Research Centre (JRC) establishment is located, the rules governing the exchange of information between the Commission and the Member State concerned 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 mainly through Council Decision 87/600/Euratom [3], also of 14 December 1987, on Community arrangements for the early exchange of information in the event of a radiological emergency, and Council Decision 2001/792/EC,Euratom of 23 October 2001 establishing a Community mechanism to facilitate reinforced cooperation in civil protection assistance interventions [4].

[3] OJ L 371, 30.12.1987, p. 76.

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

(5) In view of the above-mentioned provisions of the Euratom Treaty and of Decisions 87/600/Euratom and 2001/792/EC,Euratom, Annexes I and II to the Council Decision of 14 December 1987 approving the conclusion of the Convention do not properly express the extent of Community competence in the field of early information in the event of a nuclear 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 with regard to early notification of a nuclear 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 field covered by the Convention, and to repeal the Council decision of 14 December 1987,

HAS DECIDED AS FOLLOWS:

Article 1

The conclusion by the Commission of the Convention on Early Notification of a Nuclear Accident 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 14 December 1987 approving the conclusion by the Commission of the Convention on Early Notification of a Nuclear Accident is hereby repealed.

Done at Brussels, [...]

For the Council

The President

ANNEX

Declaration referred to in Article 12(5)(c) of the Convention

The Community shares competence with its Member States in respect of the notification of radiological emergencies 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.