Proposal for a COUNCIL DECISION amending the Council Decision of 7 December 1998 approving the accession of the European Atomic Energy Community to the Nuclear Safety Convention with regard to the Declaration attached thereto

(presented by the Commission)

EXPLANATORY MEMORANDUM

Under the procedure in Article 101 of the Euratom Treaty, "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. 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 Nuclear Safety Convention, adopted on 17 June 1994 in Vienna under the auspices of the International Atomic Energy Agency of the United Nations, lays down special features for the accession to the Convention by international organisations. In particular, such organisations must present a declaration indicating which States are Members of it, which articles of the Convention apply to it and the extent of its competence in the field covered by these articles.

On 15 September 1994 the Commission submitted to the Council a proposal for the accession to the Convention. The proposal included the text of a Declaration to be communicated under Article 30 of the Convention, which referred to the Community's competence in the fields covered by Articles 1 to 5, Article 7 and Articles 14 to 19 of the Convention.

On 7 December 1998, the Council adopted a Decision (not published) approving the accession of the European Atomic Energy Community to the Convention. Attached to this Decision was the following Declaration:

"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 15 and 16(2) of the Convention apply to it. Articles 1 to 5, Article 7(1), Article 14(ii) and Articles 20 to 35 also apply to it only insofar as the fields covered by Articles 15 and 16(2) are concerned.

The Community possesses competences, shared with the abovementioned Member States, in the fields covered by Articles 15 and 16(2) of the Convention as provided for 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'".

On 5 February 1999 the Commission lodged an application with the Court of Justice to annul the third paragraph of the Declaration attached to the Council Decision to the extent that it omitted some Articles in the Convention under which the Community possesses competence. It considered that the terms of this Declaration infringed the provisions of Title II, Chapter 3, of the Euratom Treaty on Health and Safety. In the light of these provisions, the Community's competence in the fields covered by the Nuclear Safety Convention could not, in the view of the Commission, be restricted to Articles 15 and 16(2). In order to give practical effect to the provisions in Title II, Chapter 3, of the Euratom Treaty, the Court has interpreted them broadly on several occasions. The Court found that it is not appropriate, in order to define the Community's competences, to draw an artificial distinction between the protection of the health of the general public and the safety of sources of ionising radiation. Those considerations should inform the determination as to whether the Community possesses competences in the fields covered by Articles of the Convention other than Articles 15 and 16(2).

The Community acceded to the Convention by Commission Decision 1999/819/Euratom of 16 November 1999 concerning the accession to the 1994 Convention on Nuclear Safety by the European Atomic Energy Community (Euratom) (OJ L 318, 11.12.1999, p. 20). On 31 January 2000 the instruments of accession were deposited with the Director General of the International Atomic Energy Agency, including the Declaration under Article 30(4)(iii) of the Convention.

In its judgement of 10 December 2002 in case C-29/99 Commission v Council, the Court of Justice annulled the third paragraph of the Declaration attached to the Council Decision of 7 December 1998 approving the accession of the European Atomic Energy Community to the Nuclear Safety Convention, in so far as it fails to state that the Community is competent in the fields covered by Articles 7, 14, 16(1) and (3) and 17 to 19 of the Convention.

This Declaration is an integral part of the Council Decision of 7 December 1998 and it seeks to ensure that the Community communicates to the depositary, and thus to the other parties to the Convention, both the fields covered by the Convention in which it has competence to fulfil the obligations and exercise the rights which flow from it and the extent of that competence It is therefore necessary to modify this Declaration according to the findings of the Court.

Since the reference in its third paragraph to the competence of the Community in the fields covered by Articles 7, 14, 16(1) and (3) and 17 to 19 of the Convention implies that these Articles are also applicable to the Community, the second paragraph of the Declaration shall also be modified accordingly. This follows from paragraph 50 of the Court of Justice judgement, according to which: "If consideration of the present application were to indicate that the Council failed to mention in the third paragraph of the declaration certain articles which are also not mentioned in the second paragraph thereof, it would imply that the second paragraph is also incomplete".

Proposal for a COUNCIL DECISION amending the Council Decision of 7 December 1998 approving the accession of the European Atomic Energy Community to the Nuclear Safety Convention with regard to the Declaration attached thereto

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission, [1]

[1] OJ C ..., ..., p. ...

Whereas:

(1) Council Decision of 7 December 1998 approved the accession of the European Atomic Energy Community to the Nuclear Safety Convention. Attached to this Decision was a Declaration by the European Atomic Energy Community in accordance with the provisions of Article 30(4)(iii) of that Convention.

(2) In its judgement of 10 December 2002 in Case C-29/99 [2], the Court of Justice annulled the third paragraph of this Declaration in so far as Articles 7, 14, 16(1) and (3) and Articles 17 to 19 of the Convention are not referred to therein.

[2] Commission v/ Council; [2002] ECR I-0000

(3) The second paragraph of the Declaration is also incomplete because it fails to mention all the Articles that apply to the Community.

(4) It is therefore necessary to amend the Decision of 7 December 1998 accordingly,

HAS DECIDED AS FOLLOWS:

Sole Article

The Declaration to be submitted by the European Atomic Energy Community under Article 30(4)(iii) of the Nuclear Safety Convention, which is attached to the Council Decision of 7 December 1998 approving the accession of the Community to the Nuclear Safety Convention, is replaced by the Declaration set out in the Annex.

Done at Brussels,

For the Council

The President

ANNEX

Declaration by the European Atomic Energy Community according to the provisions of Article 30(4)(iii) of the Nuclear Safety Convention

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 5, Article 7 and Articles 14 to 35 of the Convention apply to it.

The Community possesses competences, shared with the above-mentioned Member States, in the fields covered by Article 7 and Articles 14 to 19 of the Convention as provided for 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".