Proposal for a COUNCIL DECISION to approve on behalf of the European Atomic Energy Community (EURATOM) the "International Joint Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management"

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. Introduction

The "International Joint Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management" (Joint Convention) was opened for signature at the IAEA headquarters in Vienna on 29 September 1997. It entered into force on 18 June 2001. All EU Member States (except Portugal) have already signed the Joint Convention and ratifications are expected before the end of the year.

2. Scope and Objectives of the Joint Convention

The Convention covers the safety of spent fuel management and the safety of radioactive waste management.

The objectives of the Joint Convention are to achieve and maintain a high level of safety world-wide in the management of spent fuel and radioactive waste through the enhancement of national measures and international cooperation and to establish and maintain at all stages of spent fuel and radioactive waste management effective defences against potential hazards so that individuals, society and the environment are protected from harmful effects of ionising radiation.

Contracting Parties are required to provide sufficient levels of protection to ensure that individuals, society and the environment are adequately protected and that during the operating lifetime of a radioactive waste facility, radiation doses to the environment, workers and the public by the facility are kept as low as reasonably achievable. Furthermore they are required to ensure the safety of decommissioning of a nuclear facility, establish emergency plans and regulate transboundary movements.

Each contracting party is required to take, within the framework of its respective laws, the legislative, regulatory and administrative measures and other steps necessary for implementing its obligations under the Convention.

The Joint Convention should help to make sure that also in countries which may have little or no adequate legislation in the area, both the health and safety of people and the environment in future will be protected at the highest practical level.

3. Current situation of radioactive waste management in the EU and Candidate Countries

Spent nuclear fuel management and radioactive waste management, as for all activities involving radioactivity, has been subject for several decades to extensive and specific systems of authorisation and control at international, Community and national level.

The European Atomic Energy Community - through its JRC - and most Member States produce spent nuclear fuel from power and/or research reactors. And all Member States and the Community itself produce radioactive waste to a varying degree. Such waste may result from a variety of human activities including nuclear electricity generation, agriculture, medicine, industry, research and defence programmes. The management of spent fuel and the management and disposal of radioactive waste has achieved very high safety levels within the EU and is continuously further improved.

There is an important need for improvement of safety levels with regard to the situation in most Candidate Countries to achieve the same high safety culture applied in the nuclear field within the EU which is among the best in the world.

Bulgaria, The Czech Republic, Lithuania, Romania, Hungary, Slovakia and Slovenia have nuclear power plants, which are the main sources of radioactive waste in these countries. Cyprus, Estonia, Latvia, Malta and Poland have only research institutions, hospitals and industries, which produce radioactive waste.

Spent fuel management has lately increased in importance in many CEEC countries because shipment back to Russia for reprocessing or storage for most of these countries is becoming difficult, if not impossible. Present radioactive waste repositories in the CEECs were mostly built according to the Soviet standards; some of them would not meet the current western safety requirements.

4. Objectives of the European Atomic Energy Community and the European Community relfected in the Scope and the Objectives covered by the Joint Convention

The Treaty establishing the European Atomic Energy Community in its preamble requests the creation, within the framework of the development of a nuclear industry, of the "conditions of safety necessary to eliminate hazards to the live and health of the public" and expresses the desire "to cooperate with international organisations concerned with the peaceful development of atomic energy.

To this purpose "the Community may, within the limits of its powers and jurisdiction, enter into obligations by concluding agreements or contracts with ... an international organisation ...."(Article 101 EAEC-Treaty)

Within the concept of the European Atomic Energy Community in first place human beings ("workers and the general public") are protected against the dangers arising from ionising radiation and only ancillary aspects of the environment which are conditions for human health as e.g. water, air, soil. The environment as an independent concept, equivalent to human health, is not covered in the Euratom Treaty or, concomitantly, by derived law enacted under it.

On the contrary, the Treaty establishing the European Community, in parallel to the objective of "protecting human health", stipulates the equivalent concept of the protection of the environment. It requires that "Community policy on the environment shall contribute to pursuit the "... objectives" of "preserving" and "protecting ... the quality of the environment". And further: "promoting measures at international level to deal with regional or worldwide environmental problems" (Article 174 paragraph 1 EC-Treaty).

To achieve these objectives "within their respective spheres of competence, the Community and the Member States shall cooperate with third countries and with the competent international organisations" (Article 174 paragraph 4 EC-Treaty).

In the area of radioactive waste management important aspects of environmental protection are included that go beyond the scope of the Euratom Treaty. Therefore, there is a major environmental dimension, which, as it has not been included in the Euratom Treaty, requires reference to the environmental provisions both in and resulting from the EC-Treaty.

Spent fuels and radioactive waste present potential hazards and have to be managed in ways that ensure the protection of people and the environment, now and in the future, against the dangers arising from the ionising radiation which they emit.

Technical solutions exist that meet these objectives and are based on shared common principles of a high level of safety. The continuing improvement and implementation of these solutions and principles by Member States should ensure that a uniformly high level of protection within their respective territories is reached.

Therefore, pursuant to the two treaties establishing the European Atomic Energy Community and the European Community, there is Community competence in several of the areas covered by the Convention. This competence has been exercised at internal level through the enactment of Community legislation.

For this reason, it is important that the two Communities become a member of the Convention together with the Member States.

In this way the Communities can pursue the objectives of the Treaties to protect the health of the public and the environment in the framework of the Joint Convention by exercising their responsibilities in those areas of their competencies covered by the Joint Convention. And also ensure compatibility of their own legislation on matters covered by the Joint Convention.

Another important aspect is that, being a full party of the Joint Convention, the Communities, represented through the Commission, would participate in the reporting meetings.

This would give the Commission on the one hand direct and full access to all information available at these meetings on the situation of the management of spent fuels and radioactive waste in all countries which are parties of the Joint Convention. And, on the other hand, enable the Commission to participate actively within the competencies of the two Communities in the "peer review process". With regard to the enlargement of the EU towards CEEC, the participation in the peer review process would enable the Commission to enhance the transfer of the EU safety culture, as this culture is reflected in the rules of the Joint Convention, in the field of spent fuel and radioactive waste management to these Countries. At the same time, through the reports, the Commission would receive a better overview of the results already achieved.

5. Declarations attached to the proposed decisions

Article 39 para. 4 (iii) of the Joint Convention provides that accession by an international organisation shall be accompanied by communication to the Depository of a declaration of

- which States are members thereof;

- which Articles of the Convention apply to it and

- the extent of its competence in the field covered by these articles.

The Draft Declaration attached to each Draft Decision is designed to meet this requirement. Where it is declared (third paragraph in each text) that the relevant Community possesses competence it follows that the Articles of the Joint Convention cited are automatically included in the list of Articles declared to be applicable to that Community; the converse is not however necessarily the case. This means effectively that the Articles in Chapters 6 (Meetings of the Contracting Parties) and 7 (Final and other provisions) of the Joint Convention are included in this latter list following the precedent set in the Declaration attached to the Council's Decision of 7 December 1998 approving accession to the Convention on Nuclear Safety.

Finally, with regard to the Declarations as to the competences of the respective Communities, it will be noted that in accordance with the Ruling of the Court of Justice (cited below under 6, "Conclusion") "...it is not necessary to set out and determine, as regards other parties ... the division of powers ... between the Community and the Member States ..." (Paragraph 35). Accordingly no mention is made either of "shared powers" or "exclusive competence". This omission is deliberate and is in conformity with Community law.

6. Compliance of Community Law

The Community legislation complies with the principles and requirements of the Joint Convention.

There is one exception with regard to Article 27, paragraph 1 (1) on transboundary movements where the relevant Directive 92/3/Euratom on the supervision and control of shipments of radioactive waste between Member States and into and out of the Community [1], does not stipulate for export authorisations the "consent" of the state of destination as does the Joint Convention.

[1] OJ L 35 of 12.2.1992, p. 24

Therefore, when acceding to the Joint Convention, the Euratom Community will have to put forward a reservation with regard to the non-compliance of Community law with this specific requirement in Article 27, paragraph 1 (1) of the Joint Convention.

7. Conclusions

The European Court of Justice ruled in Opinion 1/78 [2], (recital 34): "where it appears that the subject-matter of an agreement or contract falls in part within the power and jurisdiction of the Community [3] and in part within that of the Member States there are strong grounds for using the procedure envisaged by Article 102 of the Treaty [4] 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 ... concluded by the Commission with the approval of the Council".

[2] Ruling no. 1/78 of the Court of Justice of the European Communities of 14/11/1978, (1998)ECR 2151.

[3] European Atomic Energy Community

[4] EAEC-Treaty

For the environmental objectives the EC-Treaty stipulates that "the arrangement for Community cooperation may be the subject of agreements between the Community and the third parties concerned which shall be negotiated and concluded in accordance with Article 300" (Article 174 paragraph 4 2. Sentence).

Accordingly it is proposed;

that the Council approves on behalf of the European Atomic Energy Community under Article 101, paragraph 2 of the Treaty establishing the European Atomic Energy Community;

and

that the Council concludes under Article 174 paragraph 4 and Article 300 paragraph 2 first subparagraph and paragraph 3 first subparagraph of the Treaty establishing the European Community on behalf of the European Community,

the Joint Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management as regards matters falling within the competence of one of these two Communities.

Proposal for a COUNCIL DECISION to approve on behalf of the European Atomic Energy Community (EURATOM) the "International Joint Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management"

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission;

Whereas:

(1) The International Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management was open for signature from 29 September 1997 until its entry into force on 18 June 2001.

(2) This Convention is now open for accession by regional organisations of an integration or other nature, provided that any such organisation is constituted by sovereign States and has competence in respect of the negotiation, conclusion and application of international agreements in matters covered by this Convention and the Community has chosen to accede.

(3) In view of the tasks assigned to the Community by Chapter 3 "Health and Safety" of the Treaty establishing the European Atomic Energy Community, the accession of the European Atomic Energy Community to the Joint Convention should be approved.

(4) When acceding to this Convention the Euratom Community will have to put forward a reservation with regard to the non-compliance of Article 12 (1) of the Directive 92/3/Euratom on the supervision and control of shipments of radioactive waste between Member States and into and out of the Community [5] with the specific requirement in Article 27, paragraph 1 (i) of the Joint Convention which requires the consent of the state of destination in the framework of transboundary movements.

[5] OJ L 35 of 12.2.1992, p. 24

(5) When becoming party to this Convention, Art. 39 (4)(iii) of this Convention obliges such an organisation to communicate to the Depositary a declaration indicating which States are members thereof, which Articles of this Convention apply to it, and the extent of its competence in the field covered by those articles.

HAS DECIDED AS FOLLOWS:

Sole article

1. The accession to the International Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management is hereby approved.

2. The text of the Joint Convention is attached to the present Decision.

3. The text of the declaration by the European Atomic Energy Community according to the provisions of Article 39 4 (iii) of the International Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management is attached to the present Decision.

Done at Brussels,

For the Council

The President

ANNEX

Draft Declaration by the European Atomic Energy Community According to the provisions of Article 39 4 (iii) of the International Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management

The following States are presently members of the European Atomic Energy Community: the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland.

The Community declares that Articles 1 to 16, 18, 19,21 and 24 to 44 of the Joint Convention apply to it.

The Community possesses competence in the fields covered by Articles 4 to 16, 18, 19,21 and 24 to 28 of the Joint Convention as provided by the Treaty establishing the European Atomic Energy Community in Article 2(b) and the relevant Articles of Title II Chapter 3 entitled "Health and Safety".