OPINION OF ADVOCATE GENERAL

GEELHOED

delivered on 1 July 2004 ( )

Case C-177/03

Commission of the European Communities

v

French Republic

(Failure of a Member State to fulfil its obligations – Failure to take the measures necessary to comply with the obligations arising under Articles 2, 3, 5, 6, 7 and 8 of Council Directive 89/618/Euratom on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency)





I – Introduction

1. In these proceedings, brought under Article 141 EA, the Commission seeks a declaration by the Court that by not taking the necessary measures to comply with Articles 2, 3, 5, 6, 7 and 8 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 ( ) (hereinafter: the directive), the French Republic has failed to fulfil its obligations under that directive.

II – The directive

2. The purpose of the directive is to ensure that the general public likely to be affected in the case of radiological emergencies or actually affected by such an emergency is provided with the information set out in the annexes to the directive. This information is to be provided to the population likely to be affected by a radiological emergency as a matter of course, without any prior request having to be made (Article 5). Where a radiological emergency occurs, the prescribed information is to be provided to the population affected by the incident ‘without delay’ following the incident (Article 6). Persons who may be involved in providing emergency assistance must be given information on the possible effects of their intervention on their health (Article 7). In all these cases, it must be indicated which authorities are responsible for implementing the emergency measures (Article 8). The scope of these information obligations is determined by the term ‘radiological emergency’, which is defined in Articles 2 and 3 of the directive. I will cite the relevant provisions of the directive in summarising the Commission’s complaints. The deadline for transposing the directive expired on 27 November 1991.

III – Procedure

3. Following correspondence between the Commission and the French Government on the measures adopted by the latter to transpose the directive and after considering a number of draft measures, which were notified to the Commission by the French Republic in accordance with Article 33, third paragraph, EA, the Commission reached the conclusion that the directive had not been fully incorporated in French law. Therefore, on 27 July 2000, it addressed a reasoned opinion to the French Government, requesting it to adopt the measures necessary for the full transposition of the directive within a time‑limit of two months of its notification. At the request of the French Government, this time‑limit was extended by one month until 27 October 2000. Considering that at that date the measures adopted by the French Government were still inadequate, the Commission lodged the present application on 16 April 2003.

IV – The Commission’s complaints

4. The Commission’s first complaint relates to the incomplete transposition of the definition of ‘radiological emergency’ in Article 2 of the directive, which provides:

5. ‘For the purposes of this Directive, a “radiological emergency” means any situation:

6. (1) that follows:

(a) an accident in the territory of a Member State involving facilities or activities referred to in point 2 from which a significant release of radioactive material occurs or is likely to occur; or

(b) the detection, within or outside its own territory, of abnormal levels of radioactivity which are likely to be detrimental to public health in that MemberState; or

(c) accidents other than those specified in (a) involving facilities or activities referred to in point 2 from which a significant release of radioactive material occurs or is likely to occur; or

(d) other accidents from which a significant release of radioactive material occurs or is likely to occur;

7. (2).that is attributable to the facilities or activities referred to in point 1(a) and (c), viz.:

(a) any nuclear reactor, wherever located;

(b) any other nuclear‑fuel-cycle facility:

(c) any radioactive‑waste management facility;

(d) the transport and storage of nuclear fuels or radioactive wastes;

(e) the manufacture, use, storage, disposal and transport of radioisotopes for agricultural, industrial, medical and related scientific and research purposes; and

(f) the use of radioisotopes for power generation in space vehicles.’

The Commission states that the scope of the transposition measures adopted by the FrenchRepublic is more restricted than that of the directive. First, they do not cover all the situations envisaged by Article 2(2)(d), (e) and (f) of the directive. Second, they only apply to nuclear reactors with thermal power of over 10 Mw, whereas Article 2(2)(a) of the directive clearly applies to all nuclear reactors. Third, contrary to Article 2(1)(b) and (c) of the directive, they only apply to emergencies involving facilities and activities situated in France.

8. The second complaint concerns the non-transposition of Article 3 of the directive, which provides:

9. ‘For the purposes of applying this Directive, the terms “significant release of radioactive material” and “abnormal levels of radioactivity which are likely to be detrimental to public health” are to be understood as covering situations likely to result in members of the public being exposed to doses in excess of the dose limits prescribed under the Directives laying down basic Community safety standards for radiological protection.’

The Commission observes that the terms ‘significant release of radioactive material’ and ‘abnormal levels of radioactivity which are likely to be detrimental to public health’ have not been defined in French legislation. Together with the term ‘radiological emergency’, these terms determine in which situations the information obligations apply. It is therefore essential that they be laid down in the national transposition measures.

10. The third complaint is connected to the previous two and concerns the transposition of Article 5, which provides:

‘1. Member States shall ensure that the population likely to be affected in the event of a radiological emergency is given information about the health‑protection measures applicable to it and about the action it should take in the event of such an emergency.

2. The information supplied shall at least include the elements set out in Annex I.

3. This information shall be communicated to the population referred to in paragraph 1 without any request being made.

4. Member States shall update the information and circulate it at regular intervals and whenever significant changes in the arrangements that it describes take place. This information shall be permanently available to the public.’

As Articles 2 and 3 of the directive have not, in the Commission’s view, been correctly transposed, it follows that the measures taken for the transposition of Article 5 do not apply to all the facilities and activities listed in Article 2. This means that certain sections of the population likely to be affected in the event of a radiological emergency are not covered by the national transposition measures.

11. The fourth complaint relates to the transposition of Article 6, which provides:

‘1. Member States shall ensure that, when a radiological emergency occurs, the population actually affected is informed without delay of the facts of the emergency, of the steps to be taken and, as appropriate to the case in point, of the health‑protection measures applicable to it.

2. The information provided shall cover the points contained in Annex II which are relevant to the type of radiological emergency.’

The Commission asserts that Article 6 of the directive has not been properly transposed as the measures adopted by the FrenchRepublic do not guarantee that the population actually affected by a radiological emergency is informed ‘without delay’. According to the relevant provisions in Decree No 90‑394 concerning the national alert code the public is informed within the time‑limits prescribed by the minister or the prefect.

12. The fifth complaint is aimed at the transposition of Article 7, which provides:

‘1. Member States shall ensure that any persons who are not on the staff of the facilities and/or not engaged in the activities defined in Article 2(2) but who might be involved in the organisation of emergency assistance in the event of a radiological emergency are given adequate and regularly updated information on the health risks their intervention might involve and on the precautionary measures to be taken in such an event; this information shall take into account the range of potential radiological emergencies.

2. As soon as a radiological emergency occurs, this information shall be supplemented appropriately, having regard to the specific circumstances.’

According to the Commission, Article 7 of the directive has not been fully transposed into French law. A circular dating from 1987 is insufficient in order to achieve the objectives of this provision, as it does not meet the requirement of legal certainty established in settled case‑law of the Court.

13. The subject of the sixth and final complaint is the transposition of Article 8, which provides:

‘The information referred to in Articles 5, 6 and 7 shall also mention the authorities responsible for implementing the measures referred to in those Articles.’

The Commission admits that, since 2002, Article 8 has been properly transposed in relation to Article 5, but that that still is not the case in relation to Articles 6 and 7. The practice in France to indicate the authorities responsible in the media through which information is transmitted (e.g. brochures) cannot be regarded as sufficient in this regard.

V – The FrenchRepublic’s defence

14. In its defence, the French Government refers to a variety of measures which were adopted with a view to transposing the directive into French law. All of these measures were adopted after 27 October 2000, i.e. after the expiry of the prolonged time-‑limit set in the Commission’s reasoned opinion of 27 July 2000. The French Government does not contest the fifth complaint and declares that it intends to amend Article R.1333‑85 of the Code de la santé publique (Public Health Act) to fully comply with Article 7 of the directive.

15. As to the first complaint, the French Government points out that the definition of ‘radiological emergency’ has now been incorporated in the Code de la santé publique by Decree No 2003‑295, adopted on 31 March 2003, and that the facilities and activities to which it relates correspond to those named in the directive, as is evidenced by decree No 2002‑367 of 20 March 2002, amending Decree No 88‑622 on emergency plans in order to fully transpose the directive. Where this decree provides (in Article 6) for special intervention plans (plans particuliers d’intervention; hereinafter: PPI) being drawn up for certain facilities, Article 12 complements this by providing for specialised assistance plans (plans de secours specialisées or PSS) in relation to technological risks not covered by a PPI. In this context it further refers to new provisions adopted by an order (arrêté) of 2 June 2003.

16. As far as the second complaint is concerned, the French Government refers to Article R.43‑71 (now Article R.1333‑76) of the Code de la Santé Publique which was introduced by Decree No 2003‑295 of 31 March 2003 and to Article 16 of the arrêté of 2 June 2003. Both provisions include, in slightly different terms, the notions of ‘significant release of radioactive material’ and ‘abnormal levels of radioactivity which are likely to be detrimental to human health’.

17. The French Government reacts to the third complaint by stating that under Articles 9 and 12 of Decree No 88‑622 on emergency plans, as amended in 2002, all facilities are now covered permitting the population to be informed and measures taken in accordance with the directive. In addition, Article L 125‑2 of the Code del´environnement (Environment Act) recognises the right of citizens to be informed of major technological risks to which they are subject in certain zones and of the safety measures which apply to them.

18. In response to the fourth complaint the French Government indicates that under an arrêté of 30 November 2001, emergency alert systems (sirens) are to be deployed in the surroundings of nuclear facilities to which PPI’s apply. As the sounding of the sirens in an emergency situation triggers the application of the PPI, it deems that, on the whole, it complies with its obligation to inform ‘without delay’ the population actually affected by an emergency. It also refers to Decree No 2001‑368 of 25 April 2001, amending Decree No 90‑394 on the code de l’alerte national (national alert code), which transposes Article 6 of the directive by identifying three types of information to be provided to the public in case of an emergency.

19. Finally, as to the sixth complaint, the French Government maintains that an arrêté of 21 February 2002 now transposes Article 8 of the directive.

VI – Assessment

20. As was pointed out above, the main measures referred to by the French Government as measures designed to complete the transposition of the directive into French law were all adopted after the expiry of the time‑limit set in the Commission’s reasoned opinion of 27 July 2000. As the French Government asserts that these measures now ensure full transposition, it concludes in its defence that the Commission should withdraw its case, not that the Court should reject the Commission’s application. This would seem to imply that the French Government does not contest the complaints raised by the Commission. However, in its rejoinder, it does conclude that the separate complaints (with the exception of the fifth complaint) be rejected, although its overall conclusion is that it maintains the conclusions of the statement in defence in their entirety, i.e. that the Commission should withdraw its application.

21. The Commission emphasises that the measures referred to by the French Government were adopted after the time-limit in the reasoned opinion had expired. Although this is sufficient to establish the infringement by the FrenchRepublic of its obligation to transpose the directive fully, the Commission maintains that the measures adopted belatedly are still not adequate. It therefore uses its reply to comment on these measures with a view to inciting the French Government to comply fully and properly with the provisions of the directive.

22. It is apparent from the regulations and documents submitted to the Court that a certain amount of progress has been made in the three years since the end of the period set in the reasoned opinion and that this was also recognised by the Commission. Without commenting on whether or not this progress was sufficient to ensure full compliance with the directive, it would seem that the difference of opinion between the FrenchRepublic and the Commission has been much reduced. The problem of non-compliance with the directive, in other words, is fading away. Although the Commission enjoys discretion in deciding whether or not to instigate and to continue infringement proceedings against a MemberState, it would seem to me that this discretion should be exercised in a way which is functional in relation to the problem at hand. In the circumstances of the present case, I am not entirely convinced that a formal declaration of the Court that the directive was not complied with as of 27 October 2000 is particularly helpful, except for creating a basis for possible proceedings under Article 228(2) EC.

23. Be that as it may, it is settled case‑ law that the question whether a Member State has failed to fulfil its Treaty obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes. ( ) The Court cannot, therefore, be drawn into the debate between the FrenchRepublic and the Commission on the adequacy of the measures adopted after 27 October 2000. These measures are irrelevant for determining the outcome of this case.

24. As it is clear that at the end of the period laid down in the reasoned opinion, prolonged by one month, French legislation did not guarantee that the information obligations laid down in the directive were fully respected in the FrenchRepublic, it must be concluded that the declaration sought by the Commission must be allowed.

VII – Conclusion

25. I am therefore of the opinion that the Court should:

– declare that, by not taking the necessary measures to comply with Articles 2, 3, 5, 6, 7 and 8 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, the French Republic has failed to fulfil its obligations under that directive;

– order the FrenchRepublic to pay the costs.