Proposal for a Council Decision approving the conclusion by the Commission of an Agreement for Co-operation in the Peaceful Uses of Nuclear Energy between the European Atomic Energy Community (Euratom) and the Cabinet of Ministers of Ukraine
Date: 2003-04-23
Institutions: European Commission
Subjects: EAEC, Ukraine, cooperation agreement, nuclear energy, peaceful use of energy

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 23.4.2003
COM(2003) 129 final

COMMUNICATION FROM THE COMMISSION

concerning the conclusion of an Agreement for Co-operation in the Peaceful Uses of
Nuclear Energy between the European Atomic Energy Community (EURATOM) and
the Cabinet of Ministers of Ukraine

Proposal for a

COUNCIL DECISION

approving the conclusion by the Commission of an Agreement for Co-operation in the
Peaceful Uses of Nuclear Energy between the European Atomic Energy Community
(EURATOM) and the Cabinet of Ministers of Ukraine

(presented by the Commission)

COMMUNICATION FROM THE COMMISSION

concerning the conclusion of an Agreement for Co-operation in the Peaceful Uses of
Nuclear Energy between the European Atomic Energy Community (EURATOM) and
the Cabinet of Ministers of Ukraine

Since the independence of Ukraine in 1991 nuclear issues have been high on the agenda in the
relationship between the EU and Ukraine. Significant progress has been achieved in specific
matters related  to  nuclear  safety,  in  particular  the  closing  down  of  the  Chernobyl  NPP,  and
Ukraine gradually rid itself of its nuclear weapon inheritance and joined the Non-Proliferation
Treaty as non-nuclear weapon state.

The precarious energy situation in Ukraine, due to a heavy dependence on oil and gas imports
and  inefficient  coalmining  have  left  the  country  vulnerable  to  energy  supply  disruptions.
Nuclear  energy  is  thus  a  key  industry  for  the  country  as  reflects  its  important  share  in
Ukraine’s electricity supply.

Having adressed more urgent matters in the past, it is now time for a general agreement on the
peaceful  uses  of  nuclear  energy  which  will  provide  a  framework  for  a  strengthened  co-
operation between the EU and Ukraine in the peaceful uses of nuclear energy to the benefit of
both parties in this area of mutual interest. The areas of co-operation include nuclear safety,
controlled  nuclear  fusion,  nuclear  research  and  development,  trade  in  nuclear  materials  and
the prevention of illicit trafficking of nuclear material. In this context, on 13 November 2002,
two  research  agreements  on  nuclear  safety  and  controlled  nuclear  fusion  have  entered  into
force, for which the present legal text constitutes a framework.

The  legal  basis  of  the  relationship  between  the  EU  and  Ukraine  is  the  Partnership  and  Co-
operation  Agreement.  The  specific  legal  basis  of  the  Agreement  for  Co-operation  in  the
Peaceful  Uses  of  Nuclear  Energy  between  the  European  Atomic  Energy  Community
(EURATOM) and the Cabinet of Ministers of Ukraine is article 62 of the the Partnership and
Co-operation Agreement.

On 30 April 1999, the Council adopted a decision directing the Commission to negotiate an
agreement  for  co-operation  in  the  peaceful  uses  of  nuclear  energy  between  the  European
Atomic Energy Community (EURATOM) and the Cabinet of Ministers of Ukraine pursuant
to the second paragraph of Article 101 of the Euratom Treaty.

The  negotiations  between  the  Commission  and  the  Ukrainian  authorities  were  completed
without  running  into  any  particular  difficulties  and  the  resulting  text  complies  with  the
negotiating directives the Council issued to the Commission.

The Commission calls on the Council to adopt the annexed proposal approving the conclusion
of the agreement.

2

1.

2.

3.

4.

EXPLANATORY MEMORANDUM

In  its  communication  to  the  Council  of  28  July  1994,  the  Commission  proposed  a
Council decision issuing directives to the Commission for the negotiation of bilateral
agreements  for  nuclear  co-operation  between  Euratom  and  several  CIS  countries,
among them Ukraine.

On  30  April  1999  the  Council  issued  these  directives,  which  have  allowed  the
negotiation  of  an  Agreement  between  the  European  Atomic  Energy  Community
(EURATOM)  and  the  Cabinet  of  Ministers  of  Ukraine  for  Co-operation  in  the
Peaceful Uses of Nuclear Energy.

The text resulting from this negotiation fully complies with the directives issued by
the Council.

The objective of this Agreement is to provide a framework for co-operation between
the  Parties  in  the  peaceful  uses  of  nuclear  energy  with  a  view  to  strengthening  the
overall  co-operation  relationship  between  the  Community  and  Ukraine.  Its  scope
comprises the areas of nuclear safety, controlled nuclear fusion, nuclear research and
development,  international  transfers,  including  trade  in  nuclear  materials  and
provision of nuclear fuel cycle services, as well as prevention of illicit trafficking of
nuclear material.

Ukraine has joined the NPT (Treaty on the Non-Proliferation of Nuclear  Weapons)
and has signed with the IAEA a safeguards agreement currently in force.

The  Commission  therefore  proposes  to  the  Council  to  adopt  the  attached  decision
approving  the  conclusion  of  the  abovementioned  Agreement  between  EURATOM
and Ukraine for Co-operation in the Peaceful Uses of Nuclear Energy.

3

Proposal for a

COUNCIL DECISION

approving the conclusion by the Commission of an Agreement for Co-operation in the
Peaceful Uses of Nuclear Energy between the European Atomic Energy Community
(EURATOM) and the Cabinet of Ministers of Ukraine

THE COUNCIL OF THE EUROPEAN UNION,

Having  regard  to  the  Treaty  establishing  the  European  Atomic  Energy  Community,  and  in
particular Article 101, paragraph 2 thereof,

Having regard to the proposal from the Commission1,

Whereas:

(1) 

In accordance with Council directives, adopted by Council Decision of 30 April 1999,
the Commission has negotiated an Agreement for Co-operation in the Peaceful Uses of
Nuclear Energy between the European Atomic Energy Community (EURATOM) and
the Cabinet of Ministers of Ukraine.

(2) 

The Commission should be authorised to conclude the Agreement.

HAS DECIDED AS FOLLOWS:

Sole article

The  Commission  is  hereby  authorised  to  conclude  an  Agreement  for  Co-operation  in  the
Peaceful  Uses  of  Nuclear  Energy  between  the  European  Atomic  Energy  Community
(EURATOM) and the Cabinet of Ministers of Ukraine.

The text of the Agreement is attached to this Decision.

Done at Brussels,

1

OJ C …, …, p. …

For the Council
The President

4

                                                
ANNEX

AGREEMENT
BETWEEN THE EUROPEAN ATOMIC ENERGY COMMUNITY
AND THE CABINET OF MINISTERS OF UKRAINE
FOR CO-OPERATION IN THE PEACEFUL USES OF NUCLEAR ENERGY

The EUROPEAN ATOMIC ENERGY COMMUNITY (EURATOM), hereinafter referred to
as “the Community”,

and the CABINET OF MINISTERS OF UKRAINE,

both also generally referred to hereinafter as the “Party” or “Parties”, as appropriate.

MINDFUL  that  the  Partnership  and  Co-operation  Agreement  between  the  European
Communities  and  their  Member  States  and  Ukraine  (hereinafter  referred  to  as  “Partnership
and  Co-operation  Agreement”),  which  entered  into  force  on  1  March  1998,  establishes  that
the Parties shall co-operate in the civil nuclear sector on the basis of specific agreements to be
concluded between the Parties,

WHEREAS all Member States of the Community and Ukraine are Parties to the Treaty on the
Non-Proliferation  of  Nuclear  Weapons,  hereinafter  referred  to  as  “the  Non-Proliferation
Treaty”,

WHEREAS the Community, its Member States and Ukraine are committed to ensuring that
the research, development and use of nuclear energy for peaceful purposes are carried out in a
manner consistent with the objectives of the Non-Proliferation Treaty,

WHEREAS  safeguards  are  applied  in  the  Community  both  under  Chapter  7  of  the  Treaty
Establishing  the  European  Atomic  Energy  Community  (hereinafter  referred  to  as  “Euratom
Treaty”)  and  under  safeguards  agreements  concluded  between  the  Community,  its  Member
States and the International Atomic Energy Agency, hereinafter referred to as “the IAEA”,

WHEREAS safeguards are applied in Ukraine according to the Agreement between Ukraine
and the International Atomic Energy Agency for the Application of Safeguards in Connection
with the Treaty on the Non-Proliferation of Nuclear Weapons,

WHEREAS  the  Community,  its  Member  States  and  Ukraine  reaffirm  their  support  of  the
IAEA and of its strengthened safeguards system,

WHEREAS it is appropriate to strengthen the basis for co-operation between the Parties in the
civil nuclear sector by a framework agreement,

5

HAVE AGREED AS FOLLOWS:

Article 1
DEFINITIONS

For the purpose of this Agreement

a)

“nuclear material” means any source material or special fissionable material as
those terms are defined in Article XX of the Statute of the International Atomic
Energy Agency;

b)

“Community” means both:

i)

the legal person created by the Treaty establishing the European Atomic
Energy Community, Party to this Agreement;

ii)

the territories to which this same Treaty applies;

c)

“appropriate authorities of the Parties” means:

i)

ii)

for the Community, the European Commission;

for Ukraine, the Ministry of Fuel and Energy of Ukraine.

or such other authority as the Party concerned may at any time notify to the other Party.

Article 2
OBJECTIVE

The  objective  of  this  Agreement  is  to  provide  a  framework  for  co-operation  between  the
Parties  in  the  peaceful  uses  of  nuclear  energy  with  a  view  to  strengthening  the  overall  co-
operation  relationship  between  the  Community  and  Ukraine  on  the  basis  of  mutual  benefit
and reciprocity and without prejudice to the respective powers of each Party.

Article 3
SCOPE OF CO-OPERATION

1.

The  Parties  may  co-operate  in  the  way  as  specified  in  Articles  4  to  8  of  this
Agreement below in the peaceful uses of nuclear energy in the following areas:

a)

b)

c)

d)

nuclear safety (Article 4);

controlled nuclear fusion (Article 5);

nuclear  research  and  development  in  other  areas  than  those  foreseen  under
subparagraph a) and b) above (Article 6);

international transfers, trade in nuclear materials and provision of nuclear fuel
cycle services (Article 7);

e)

prevention of illicit trafficking of nuclear material (Article 8);

6

f)

other relevant areas of mutual interest;

2.

The  co-operation  referred  to  in  this  Article,  as  between  the  Parties,  may  also  take
place between persons and undertakings established in the Community and Ukraine.

Article 4
NUCLEAR SAFETY

The  co-operation  in  the  field  of  nuclear  safety  shall  be  implemented  according  to  the
Agreement  for  Co-operation  between  the  European  Atomic  Energy  Community  and  the
Cabinet of Ministers of Ukraine in the Field of  Nuclear  Safety,  which entered into  force on
13 November 2002.

Article 5
CONTROLLED NUCLEAR FUSION

The co-operation in the field of controlled nuclear fusion shall be implemented according to
the  Agreement  for  Co-operation  between  the  European  Atomic  Energy  Community  and  the
Cabinet of Ministers of Ukraine in the Field of Controlled Nuclear Fusion, which entered into
force on 13 November 2002.

Article 6
OTHER AREAS OF NUCLEAR RESEARCH AND DEVELOPMENT

1.

2.

Co-operation shall  extend  to  nuclear research  and  development  activities  of  mutual
interest to the Parties other than those been provided for in Articles 4 and 5 of this
Agreement  above,  as  agreed  between  the  Parties,  insofar  as  they  are  covered  by
respective research and development activities undertaken by the Parties.

On  the  Community  side,  the  co-operation  may  include  in  particular  the  following
areas:

a)

b)

c)

applications of nuclear energy in the fields of medicine and industry, including
generation of electricity;

environmental impact of nuclear energy; ;

areas  of  co-operation  in  the  civil  nuclear  sector  outlined  in  paragraph  2  of
Article 62 of the Partnership and Co-operation Agreement, as far as they can be
implemented under the Euratom Treaty.

3.

The co-operation shall be implemented in particular through:

– 

– 

– 

exchange  of  technical  information  by  means  of  reports,  visits,  seminars,
technical meetings, etc.;

exchange  of  personnel  between  laboratories  and/or  bodies  involved  on  both
sides, including for training purposes;

exchange  of  samples,  materials,  instruments  and  apparatus  for  experimental
purposes;

7

4.

5.

6.

1.

2.

3.

4.

– 

balanced participation in joint studies and activities.

To the extent necessary, the scope, terms and conditions for co-operation in concrete
projects will be laid down in implementing arrangements, entered into by the Parties
acting  through  their  competent  institutions  which  will  proceed  according  to  their
respective legislative and regulatory requirements.

Such  implementing  arrangements  may,  inter  alia,  cover  financing  provisions,
assignment of management responsibilities and detailed provisions on dissemination
of information and intellectual property rights.

Costs  resulting  from  co-operation  activities  shall  be  borne  by  the  Party  that  incurs
them, unless otherwise specifically agreed by the Parties.

Article 7
INTERNATIONAL TRANSFERS,
TRADE IN NUCLEAR MATERIALS AND
PROVISION OF RELEVANT SERVICES

Nuclear material transferred between the Parties, whether directly or through a third
country,  shall  become  subject  to  this  Agreement  upon  its  entry  into  the  territorial
jurisdiction of the receiving Party, provided that the supplying Party has notified the
receiving Party in writing prior to,  or  at the  time of,  shipment, (in  accordance with
procedures  defined  in  an  Administrative  Arrangement  to  be  established  by  the
appropriate authorities of the Parties).

Nuclear material referred to in paragraph 1 of this Article shall remain subject to the
provisions of this Agreement until

– 

it  is  determined  in  accordance  with  the  provisions  for  the  termination  of
safeguards  in  the  relevant  agreement  referred  to  in  subparagraph  b)  of
paragraph  6  of  this  Article  below,  that  it  is  no  longer  usable  for  any  nuclear
activity  relevant  from  the  point  of  view  of  safeguards,  or  has  become
practicably irrecoverable;

– 

it  has  been  transferred  beyond  the  jurisdiction  of  the  recipient  Party  in
accordance with subparagraph e) of paragraph 6 of this Article below; or

– 

the Parties agree that it should no longer be subject to this Agreement.

Any  nuclear  transfers  carried  out  pursuant  to  the  co-operation  activities  shall  be
made in accordance with the relevant international and multilateral commitments of
the Parties and of the Member States of the European Union in relation to peaceful
uses of nuclear energy as listed in paragraph 6 of this Article.

Trade  in  nuclear  materials  and  provision  of  relevant  services  between  the  Parties
shall be carried out at market-related prices.

8

5.

The  Parties  shall  try  to  avoid  conflict  situations  requiring  commercial  safeguard
measures in their mutual trade in nuclear materials. If problems nevertheless arise in
their mutual trade in nuclear materials which would seriously jeopardise the viability
of  the  nuclear  industry,  including  uranium  mining,  of  the  Community  or  Ukraine,
either Party may request consultations which shall be held as soon as possible in the
framework of an ad hoc Committee.

If  no  mutually  acceptable  solution  to  these  problems  can  be  found  in  the
consultations, the Party having requested the consultations may take the appropriate
commercial safeguard measures to solve them or mitigate their effects in accordance
with its internal legislation and with the relevant principles of international law.

The implementation of the first and second provisions of this paragraph above shall
be without prejudice to the Euratom Treaty and secondary legislation thereunder.

6.

Transfers of nuclear material shall be subject to the following conditions:

a)

the nuclear material shall be used for peaceful purposes and not for any nuclear
explosive device or for research on, or development of, any such device;

b)

the nuclear material shall be subject:

i)

in  the  Community,  to  the  Euratom  safeguards  pursuant  to  the  Euratom
Treaty and to the IAEA safeguards pursuant to the following safeguards
agreements, as relevant, and as they may be revised and replaced, so long
as coverage as required by the Non-Proliferation Treaty is provided for:

– 

– 

– 

the  Agreement  between  the  Community’s  non-nuclear  weapon
Member  States,  European  Atomic  Energy  Community  and  the
International Atomic  Energy  Agency, which  entered into  force  on
21 February 1977 (published as INFCIRC/193);

the  Agreement  between  France,  European  Atomic  Energy
Community  and  the  International  Atomic  Energy  Agency,  which
into  force  on  12  September  1981  (published  as
entered 
INFCIRC/290);

the  Agreement  between  the  United  Kingdom,  European  Atomic
Energy Community  and the  International  Atomic  Energy  Agency,
which  entered  into  force  on  14  August  1978  (published  as
INFCIRC/263);

supplemented by Additional Protocols concluded on 22 September
1998  on  the  basis  of  the  document  published  as  INFCIRC/540
(Strengthened Safeguards System, Part II).

ii)

in Ukraine, to the  IAEA safeguards pursuant to the Agreement between
Ukraine and the International Atomic Energy Agency for the Application
of Safeguards in Connection with the Treaty on the Non-Proliferation of
Nuclear  Weapons,  which  entered  into  force  on  22  January  1998
(published  as  INFCIRC/550);  supplemented  by  an  Additional  Protocol
concluded on 15 August 2000 on the basis of the document published as
INFCIRC/540 (Strengthened Safeguards System, Part II) if it is in force.

9

c)

d)

e)

In  the  event  of  the  application  of  any  of  the  Agreements  with  the  IAEA
referred  to  in  subparagraph  b)  of  this  paragraph  above  being  suspended  or
terminated for any reason within the Community or Ukraine, the relevant Party
shall enter into an agreement with the IAEA which provides for  effectiveness
and coverage equivalent to that provided by the safeguards agreements referred
to in provisions i) or ii) of subparagraph b) of this paragraph, or, if that is not
possible,

the Community, as  far  as it is concerned, shall apply safeguards based on the
Euratom  safeguards  system,  which  provides  for  effectiveness  and  coverage
equivalent  to  that  provided  by  the  safeguards  agreements  referred  to  in
provision i) of subparagraph b) of this paragraph or, if that is not possible,

the  Parties  shall  enter  arrangements  for  the  application  of  safeguards,  which
provide  for  effectiveness  and  coverage  equivalent  to  that  provided  by  the
safeguards agreements referred to in provisions i) or ii) of subparagraph b) of
this paragraph.

to 

to 

set  out 

the  criteria 

in  Annex  C 

the  Member  States  of 

Application  of  physical  protection  measures  at  levels  which  satisfy  as  a
IAEA  document
minimum 
INFCIRC/254/Rev.5/Part  1  (Guidelines  for  Nuclear  Transfers)  as  it  may  be
revised;  supplementary 
the
this  document, 
Community, the European Commission, as appropriate, and Ukraine will refer
when applying physical protection measures to the recommendations in IAEA
document  INFCIRC/225/Rev.4  corrected  (Physical  Protection  of  Nuclear
Material)  as  it  may  be  revised.  International  transport  shall  be  subject  to  the
provisions  of  the  International  Convention  on  the  Physical  Protection  of
Nuclear Material (IAEA document INFCIRC/274/Rev.1), as it may be revised
and,  as  soon  as  possible,  to  the  IAEA  Regulations  for  the  Safe  Transport  of
Radioactive Materials (IAEA Safety Standards Series n. ST-1), as they may be
revised.

Retransfers  of  any  items  subject  to  this  Article  outside  the  jurisdiction  of  the
Parties  shall  only  be  made  under  the  framework  of  the  commitments
undertaken by individual Member States of the Community and Ukraine within
the group of nuclear supplier countries known as the Nuclear Suppliers Group.
In  particular,  the  Guidelines  for  Nuclear  Transfers,  as  set  out  in  IAEA
document  INFCIRC/254/Rev.5/Part  1,  as  it  may  be  revised,  shall  apply  to
retransfers of any items subject to this Article.

7.

The Parties shall facilitate trade in nuclear materials between themselves or between
persons or undertakings established in the respective territories of the Parties in the
mutual interest of producers, the nuclear fuel cycle industry, utilities and consumers.

Authorisations,  including  export  and  import  licences  as  well  as  authorisations  or
consents  to  third  parties,  relating  to  trade,  industrial  operations  or  nuclear  material
movements on the territories of the Parties shall not be used to restrict trade or hinder
the commercial  interests of  either Party on the  peaceful  use of nuclear  energy both
internationally  and  domestically.  The  relevant  authority  shall  act  upon  applications
for  such  authorisations  as  soon  as  possible  after  submission  and  without
unreasonable  expense.  Appropriate  administrative  provisions  shall  be  in  place  to
ensure respect of this provision.

10

Provisions  of  this  Agreement  shall  not  be  used  to  impede  the  free  movement  of
nuclear material within the territory of the Community.

8.

Notwithstanding  the  suspension  or  termination  of  this  Agreement  for  any  reason,
subparagraphs a) and b) of paragraph 6 of this Article shall continue to apply so long
as any nuclear material subject to these provisions remains under the jurisdiction of
either Party or until a determination is made in accordance with paragraph 2 of this
Article.

Article 8
PREVENTION OF ILLICIT TRAFFICKING
OF NUCLEAR MATERIAL

Co-operation in the field of prevention of illicit trafficking of nuclear material shall relate to
the promotion of methods and techniques of control of nuclear material.

Article 9
OTHER AREAS OF MUTUAL INTEREST

1.

2.

The  Parties  may  agree  within  the  scope  of  their  respective  competencies  to  co-
operation in other activities in the field of nuclear energy.

On  the  Community’s  side,  the  activities  would  have  to  be  covered  by  relevant
programmes of action and correspond to the conditions specified for it, e. g. in areas
such as the safe transport of nuclear material, safeguards or industrial co-operation to
promote certain aspects of the safety of nuclear installations.

3.

The paragraphs 4, 5 and 6 of Article 6 of this Agreement are equally applicable.

Article 10
APPLICABLE LAW

Co-operation  under  this  Agreement  shall  be  in  accordance  with  the  laws  and  regulations  in
force within the Community and Ukraine as well as with the international agreements entered
into  by  the  Parties.  In  the  case  of  the  Community  the  applicable  law  includes  the  Euratom
Treaty and secondary legislation thereunder.

Article 11
INTELLECTUAL PROPERTY

The  utilisation  and  diffusion  of  information  and  intellectual  property  rights,  patents  and
copyrights  connected  with  the  co-operation  activities  under  this  Agreement  shall  be  in
accordance  with  the  Annexes  to  the  Agreements  for  Co-operation  between  the  European
Atomic Energy Community and the Cabinet of Ministers of Ukraine in the Field of Nuclear
Safety  and  Controlled  Nuclear  Fusion  as  referred  to  above  in  Articles  4  and  5  of  this
Agreement, respectively.

11

1.

2.

1.

2.

3.

Article 12
CONSULTATION AND ARBITRATION

The Parties will hold regular consultations within the framework of the Partnership
and  Co-operation  Agreement  to  monitor  the  co-operation  under  this  Agreement
unless specific consultation mechanisms are foreseen by the Parties.

Any  dispute  relating  to  the  application  or  interpretation  of  this  Agreement  may  be
dealt with according to the procedure established by Article 96 of the Partnership and
Co-operation Agreement.

Article 13
ENTRY INTO FORCE AND DURATION

The Agreement shall enter into force on the date the Parties, through an exchange of
diplomatic notes, specify its entry into force and shall remain in force for an initial
period of five years.

Thereafter  this  Agreement  shall  be  automatically  renewed  for  five-year  periods,
unless  either  Party,  by  written  notice,  requests  the  termination  or  renegotiations  of
the Agreement not later than six months prior to the expiry date.

If either Party or any Member State of the  Community  violates  any  of the material
provisions  of  this  Agreement,  the  other  Party  may,  on  giving  written  notice  to  that
effect, suspend or terminate co-operation under this Agreement in whole or in part.

Before either Party takes action to that effect the Parties shall consult with a view to
reaching  agreement  on  the  corrective  measures  to  be  taken  and  on  the  time-scale
within which such measures shall be taken.

Action under the first provision of this paragraph shall be taken only if there has been
failure to take the agreed measures within the agreed time or, in the event of failure
to  reach  agreement  as  provided  in  the  foregoing  paragraph,  after  the  lapse  of  a
reasonable period of time having regard to the nature and gravity of the violation.

This  Agreement  shall  be  drawn  up  in  duplicate  in  the  Danish,  Dutch,  English,
Finnish,  French,  German,  Greek,  Italian,  Portuguese,  Spanish,  Swedish  and
Ukrainian languages, each text being equally authentic.

Done at ____________________ on _____________________.

For the European Atomic Energy
Community

For the Cabinet of Ministers of Ukraine

12