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
Date: 2003-04-25
Institutions: European Commission
Subjects: EAEC, International Atomic Energy Agency, accession to an agreement, international convention, nuclear safety, powers of the institutions (EU)

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 25.4.2003
COM(2003) 206 final

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

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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”.

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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

Whereas:

(1) 

(2) 

(3) 

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.

In its judgement of 10 December 2002 in Case C-29/992, 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.

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,

1

2

OJ C …, …, p. …
Commission v/ Council; [2002] ECR I-0000

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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

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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”.

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