Keywords

Summary



Keywords

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1. EAEC ° Supply rules ° Right of option and exclusive right of the Community ° Conditions of exercise ° Supply Agency under no obligation to ensure disposal of Community production ° Application of the principle of preference in favour of Community producers ° Conditions ° Discretion of the institutions ° Judicial review

(EAEC Treaty, Arts 52 to 76; Rules of the Euratom Supply Agency determining the manner in which demand is to be balanced against the supply of ores, source materials and special fissile materials, Art. 5bis)

2. Non-contractual liability ° Conditions ° Unlawfulness ° Damage ° Causal link

(EAEC Treaty; Arts 151 and 188, second para.)

Summary

1. Under the system of the EAEC Treaty, offers from Community producers are generally in competition with those from outside the Community. It follows that the Euratom Supply Agency has no power, in the absence of exceptional circumstances which might jeopardize attainment of the aims of the Treaty, to exercise its right of option when the price sought by the Community producer is too high to secure outlets on the market. In any case, "save where exceptions are provided for in the Treaty", the price-fixing system established by Chapter VI of the Treaty does not in principle require users to purchase ores coming from the Community at a price higher than the market price, resulting from the balancing of supply and demand.

Specifically, it follows that the Agency could not, in some cases, in the absence of legal obstacles preventing an order from being met in application of the first paragraph of Article 61 of the Treaty, have Community preference given to Community producers and for this purpose oppose imports, unless the price sought by those producers was equivalent to, or lower than, that specified either in the order notified to the Agency by the user in accordance with the procedure laid down in the first five paragraphs of Article 60 of the Treaty or, in practice, in the contract previously submitted to the Agency for signature for the purposes of its conclusion pursuant to Article 5bis of the Rules of the Agency determining the manner in which demand is to be balanced against supply, or unless their offers carried advantages for the user such as to offset any price difference.

Even where the Agency has the power to exercise its right of option on ores produced in the Community, it is not, however, obliged to favour the disposal of Community output, since the system governing supplies established by the Treaty does not lay down any principle of Community preference for producers. In particular, the Agency may exercise its exclusive rights so as to dispose of natural uranium offered by a Community producer and thus ensure that it continues its activities on Community territory only where this is combined with the pursuit of the objectives laid down by the Treaty. In this regard, and where decisions concerning economic and commercial policy and nuclear policy are concerned, the Agency has a broad discretion when exercising its powers, so that the Court' s review must, in any event, be confined to identifying any manifestly wrong assessment or misuse of power.

Given that legal framework, an undertaking, producing approximately 1.5% of Community consumption of natural uranium, which, owing to its proposed price being too high, does not manage to dispose of its production on the Community market, is not justified, in the absence of particular circumstances justifying a derogation from the system of supply, in requesting the Commission to require the Supply Agency to exercise its right of option and exclusive right to conclude supply contracts so as to enable it to dispose of its production.

2. In order for the Community to incur non-contractual liability, a set of conditions must be fulfilled: the conduct alleged against the Community institutions must be unlawful, actual damage must have been incurred and a causal link must exist between the conduct and the alleged damage.