Proposal for a Council Regulation amending Regulation (EURATOM) No 2587/1999 defining the investment projects to be communicated to the Commission in accordance with Article 41 of the Treaty establishing the European Atomic Energy Community
Date: 2003-07-23
Institutions: European Commission
Subjects: EAEC, European Commission, decommissioning of power stations, exchange of information, investment, investment project, nuclear fuel, nuclear industry, radioactive waste

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 23.7.2003
COM(2003) 370 final

Proposal for a

COUNCIL REGULATION

amending Regulation (EURATOM) No 2587/1999 defining the investment projects to be
communicated to the Commission in accordance with Article 41 of the Treaty
establishing the European Atomic Energy Community

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. 

INTRODUCTION

The  aim  of  the  Euratom  Treaty,  which  was  signed  in  1957,  was  to  provide  the  European
Community with an alternative source of indigenous energy supply in order to bring a halt to
the growing dependence on oil from the Middle East. The Treaty was meant to enable Europe
to develop its know-how and obtain the means of exploiting nuclear energy for civil purposes
(e.g. the generation of electricity). Pooling resources (know-how, infrastructure, financing and
control) was to translate into faster progress at lower cost.

In this regard, major investment was regarded as necessary to achieve the Treaty aims and in
particular,  to  build  and  maintain  new  nuclear  power  stations.  For  those  purposes,  the
Community,  and  notably  the  Commission,  was  given,  under  Chapter  4  of  Title  II  of  the
Euratom Treaty, the specific task of  stimulating and  facilitating  co-ordinated investments in
the  nuclear  field.  In  order  to  do  so,  the  Commission  first  publishes  illustrative  programmes
indicating in particular nuclear energy production targets and types of investment required for
their attainment. Secondly, the Commission examines the investment plans scheduled in the
Member  States  and  makes  its  views  known  as  to  all  aspects  of  those  investment  projects
which  relate  to  the  objectives  of  the  Euratom  Treaty.  In  this  context,  the  Commission  has
already examined 240 investment projects for which it has checked both their merits and their
compatibility  with  the  Treaty.  These  investments  exceed  EUR  400  billion,  of  which  the
Community  budget  contributed  EUR  2.9  billion.  This  has  contributed  to  the  Community’s
industrial development with the result that nuclear power stations installed on the territory of
the Community cover 35% of its electricity needs.

On 6 November 2002, the European Commission adopted a nuclear package of measures with
a view to finally producing a comprehensive, truly Community approach to nuclear safety and
security  of  supply.  This  package  consisted  of  a  communication  and,  notably,  two  draft
proposals  for  directives,  one  on  safety  and  the  other  on  waste  management.  On
30 January 2003, the Commission adopted these two proposals.

First, the European Commission  proposed a  Community  approach to  safety,  by  adopting its
proposal for a framework directive laying down the basic obligations and general principles
concerning  the  safety  of  nuclear  installations  during  operation  and  decommissioning1.
Amongst other objectives, the directive aims at guaranteeing adequate financial resources for
decommissioning  nuclear  installations.  The  aim  is  to  ensure  that  sufficient  funds  will  be
available  to  carry  out  decommissioning  operations  under  conditions  protecting  the  general
public  and  the  environment  from  ionising  radiation.  As  highlighted  in  the  Commission
Communication  on  nuclear  safety 
the  European  Union,  also  approved  on
6 November 2002, it is also essential to avoid any possibility that the decommissioning of a
nuclear  installation  will  not  be  able  to  start  as  planned,  is  not  carried  out  according  to  the
appropriate procedures or is abandoned before completion due to a lack of resources2.

in 

Secondly, the Commission adopted another proposal for a Council Directive (Euratom) on the
management  of  spent  nuclear  fuel  and  radioactive  waste3.  The  aim  of  this  proposal,  again

1

2

3

COM(2003) 32 final.
COM(2002) 605 final, p. 16.
COM(2003) 32 final.

2

                                                
outlined  in  the  Communication,  gives  priority  to  geological  burial  of  waste  as  the  safest
method of disposal known at  present.  It  further  noted  that  the  funding  allocated  to  research
and waste management is insufficient. Article 6 of this proposal states, for instance, that the
Commission  should  take  into  consideration  the  progress  made  by  Member  States  towards
meeting  the  targets  for  managing  radioactive  waste  when  authorising  a  repository  or
repositories for the different forms of radioactive waste.

This  concern  for  the  safety  and  security  of  nuclear  installations  in  the  context  of  the
increasing public importance attached to waste management and decommissioning of nuclear
installations  should  be  reflected  when  the  Commission  discusses  and  provides  its  point  of
view on investment projects communicated to it in accordance with Chapter 4 of Title  II  of
the Euratom Treaty, and notably Article 43.

In this light, it is increasingly important that the Commission’s examination of investments in
the  nuclear  sector  considers  whether  these  safety  and  security  principles  and  objectives  are
ensured  and  guaranteed  by  persons  or  undertakings  when  carrying  out  the  investment  in
question.

However, the forthcoming accession of new Member States from Central and Eastern Europe
does not exclude the fact that Community or national support to nuclear investment is all the
more relevant with a view to attaining, notably, certain security and safety objectives. In this
light  and  in  order  to  ensure  a  co-ordinated  development  of  investment  activities  within  the
nuclear  field,  it  is  increasingly  important  that  the  Commission’s  examination  in  the  nuclear
sector considers these investment projects in the light of the objectives of the Euratom Treaty.
Should  these  investments  not  be  necessary  for  or  go  beyond  the  objectives  of  the  Euratom
Treaty or should its public financing distort or threaten to distort competition in the internal
market, this Regulation is without prejudice to the application of the EC Treaty.

The  attached  proposal  to  amend  Council  Regulation  No  2587/1999  therefore  introduces  a
provision to facilitate the tasks of the Commission regarding nuclear investment in light of the
rapidly evolving completion of the internal electricity market.

2. 

OBJECTIVES PURSUED

The objective underlined in the new Commission package to introduce a common approach to
the security and safety of nuclear installations also entails an increase in transparency in this
field.  In  the  light  of  its  prerogatives,  the  Commission  therefore  needs  to  examine  whether
these safety and security principles and objectives will be ensured and guaranteed even at an
early stage, eg when the investment project is communicated to the Commission. In this light,
when  communicating  the  investment  project,  the  persons  or  undertakings  concerned  should
also  provide  the  Commission  with  the  decommissioning  plans  for  the  installation  to  be
constructed  and  with  the  plans  for  the  management  of  spent  fuel  or  radioactive  waste
originating from the investment project. At that early stage, the Commission will already be
able to provide its input and, where appropriate, discuss with the nuclear operators all security
and  safety  aspects  linked  to  the  project  in  question.  The  Commission  could  even  suggest
measures to adjust any irregular plans should the need arise.

Secondly,  the  Community  approach  to  nuclear  safety  and  security  will  also  require  the
Commission to be able to discuss with the nuclear undertakings concerned all aspects of the
decommissioning  project  when  this  decommissioning  plan  is  to  be  carried  out  in  light  of
article 42 of the Euratom Treaty. To enhance this objective, all aspects of investment projects

3

aimed  at  decommissioning  installations  should  be  communicated  to  the  Commission  with  a
view  to  ensuring  nuclear  safety.  The  Commission  should  therefore  be  able  to  discuss  these
decommissioning projects as well. This possibility should enhance transparency, and could in
particular  enable the Commission to verify  whether  the  objectives  of  Community safety  are
being fully achieved, before the final phase in the life of the investment is finally completed.

Finally,  the  results  of  the  tasks  exercised  by  the  Commission  regarding  nuclear  investment
over the last four decades are encouraging. To ensure that the Commission carries out its tasks
of  facilitating  and  co-ordination  of  nuclear  investments  in  the  light  of  the  objectives  of  the
Euratom  Treaty  (notably  security  and  safety),  it  is  therefore  necessary  to  increase
transparency  in  this  field.  Thus,  transparency  should  be  reinforced  by  requiring  nuclear
undertakings  in  addition  to  the  information  already  supplied,  to  communicate  to  the
Commission  detailed  data  on  the  methods  of  financing  of  the  investment  projects  and  the
financing by private and public means.

3. 

A SUMMARY OF THE EXISTING LEGISLATION

3.1. 

The provisions in the Euratom Treaty

Article 1 of the Euratom Treaty states that it shall be the task of the Community to contribute
to the raising of the standard of living in Member States and to the development of relations
with  other  countries  by  creating  the  conditions  necessary  for  the  speedy  establishment  and
growth  of  nuclear  industries.  Article  2  specifies  further  objectives,  including  facilitating
investment and ensuring, particularly by encouraging ventures on the part of undertakings, the
establishment of the basic installations necessary for the development of nuclear energy in the
Community.

Chapter IV of the Euratom Treaty (Articles 40 to 44) provides for a set of instruments aimed
at guaranteeing compliance with such tasks and objectives.

In particular, Article 40 entrusts the Commission with the task of stimulating and facilitating
co-ordinated development of investment in the nuclear field. For these tasks, the Commission
shall  periodically  publish  illustrative  programmes  indicating  in  particular  nuclear  energy
production targets and all the types of investment required for their attainment.

Articles 41 to 44 then allow the  Commission to  examine  the  investment  plans  scheduled  in
the Member States and make its views known.

In particular, Article 41 requires, in this respect, persons or undertakings engaged in nuclear
activities to communicate investment projects to the Commission.

Articles  42  and  43  lay  down  procedural  rules.  According  to  Article  42  of  the  Treaty,  these
investment projects will be communicated to the Commission and, for information purposes,
to  the  Member  State  concerned  in  a  prescribed  time-limit.  Article  43  states  that  the
Commission  examines 
the  undertakings  and
communicates its views to the Member State concerned.

these  projects,  discusses 

them  with 

Finally,  Article  44 allows the Commission, with the  consent  of  the  Member  States,  persons
and undertakings concerned, to publish any investment projects communicated to it.

4

3.2. 

Secondary legislation

In order to carry out these tasks, procedural Regulations provide for appropriate information
to be forwarded to the Commission.

First,  in  1999,  Council  Regulation  (Euratom)  No  2587/1999  simplified  existing  regulations
and  updated  the  types  of  nuclear  investments  to  be  communicated  to  the  Commission.  It
requires:

i.

ii.

iii.

persons  or  undertakings  engaged  in  nuclear  activities  to  communicate  to  the
Commission  investment  projects  when  the  costs  of  these  projects  exceed  certain
threshold values attached in the Annex of the Regulation.

that the communication of the projects should include certain  specified information
(e.g. type of products, total amount of expenditure directly chargeable to the project,
the length of time, etc.).

persons  or  undertakings  concerned  to  communicate  the  essential  characteristics  of
investments  projects  aiming  at  decommissioning  installations  when  their  costs
exceed certain  threshold values; in  this case,  communication  to  the  Commission  of
the detailed information as referred to in point (ii) is not mandatory. Furthermore, in
such cases, the Commission does not need to discuss these projects as specified by
Article 43 of the Euratom Treaty.

In  addition,  Commission  Regulation  1209/2000  further  determined  the  procedures  for
notifying  investment  projects  to  the  Commission  pursuant  to  Article  41  of  the  Euratom
Treaty. This Regulation requires the relevant information to be notified to the Commission by
means of a prescribed form which is  attached in  an Annex to that Regulation.  In particular,
this  requires  that  the  communication  to  the  Commission  should  include  the  total  amount  of
expenditure directly attributable to the project as well as its methods of financing.

4. 

THE PROPOSALS

In order to provide increased transparency and to enable the Commission to properly examine
nuclear investment projects in relation to the objectives of the Treaty (particularly safety and
security), the following information, not presently required by Council Regulation 2587/1999,
needs to be provided to the Commission:

1. 

2. 

Communication to the Commission of the plans for the management of spent fuel or
radioactive  waste  originating  from  the  notified  investment,  at  the  stage  where  the
investment  is  envisaged  in  light  of  Article  42  of  the  Euratom  Treaty.  This
communication shall also include the plans of the  person or  undertaking  concerned
for the decommissioning of the projected investment.

Communication to the Commission of all the necessary information with respect to
investments made in the entire fuel cycle, and in particular for those projects aimed
at  decommissioning  installations.  Under  the  current  Regulation  2587/1999,  the
declaration of these investment projects aimed at decommissioning installations only
needs to refer to their essential characteristics. Furthermore, they do not need  to be
discussed with the persons or undertakings concerned pursuant to the procedure laid
down  in  Article  43  of  the  Treaty.  As  a  consequence,  the  Commission  has  not
examined  in  the  past  these  decommissioning  projects  in  full  detail.  However  as

5

decommissioning  plans  will  acquire  a  growing  significance  in  the  next  decades,  it
appears also important for the Commission to examine in full detail these investment
projects  in  the  light  of  the  objectives  of  the  Euratom  Treaty.  It  is  therefore
appropriate  that  investment  projects  aimed  at  decommissioning  installations  should
be  examined  under  the  same  rules  and  requirements  as  projects  aimed  at  other
activities in the fuel cycle.

3. 

Communication  of  the  methods  of  financing  of  the  investment  projects  including
both  private  and  public  financing  .  There  are  various  reasons  for  requesting  this
information:

to allow the Commission (i) to facilitate co-ordinated development of investment in
the nuclear field under Article 40 of the Euratom Treaty and (ii) to illustrate the types
of investment required for the attainment of the nuclear energy production targets. In
this  respect,  the  Commission  needs  to  know  if  and  how  Member  States  are
supporting  investment  and  how  this  support  would  fit  in  with  the  existing  support
loans,  research  aid,  Joint
level  (e.g.  Euratom 
mechanisms  at  Community 
Undertakings).  It  is  thus  important  that  the  Commission  facilitates  co-ordinated
development  of  investment  ensuring  interaction  between  national  and  Community
support.  In  addition,  pursuant  to  such  information,  the  Commission  may  make
specific  recommendations  in  its  periodical  illustrative  programmes  regarding  the
methods of financing.

5. 

CONCLUSION

It  is  therefore  proposed  to  amend  Council  Regulation  No  2587/1999.  The  amendments
proposed will:

1.

2.

3.

require  that  declarations  of  investments  refer  to  the  plans  for  the  management  of
spent fuel or radioactive waste originating from the projected investment  as well as
the plans for the decommissioning of the installation in question;

require  that  declarations  of  investments  projects  aimed  at  decommissioning
installations contain  all  the  details  and  information  required  for  discussion  of  other
investment projects made in the rest of the entire fuel cycle;

require persons  and  undertakings  to  include  in  their  communication  of  investments
pursuant  to  Article  43  of  the  Euratom  Treaty  information  regarding  public  and
private financing.

6

Proposal for a

COUNCIL REGULATION (EC) No .../...

amending Regulation (EURATOM) No 2587/1999 defining the investment projects to be
communicated to the Commission in accordance with Article 41 of the Treaty
establishing the European Atomic Energy Community

THE COUNCIL OF THE EUROPEAN UNION,

Having  regard  to  the  Treaty  establishing  the  European  Atomic  Energy  Community,  and  in
particular Article 41 thereof,

Having regard to the proposal from the Commission1,

Whereas:

(1) 

(2) 

(3) 

Council  Regulation  (Euratom)  No  2587/19992  defines  the  investment  projects  to  be
communicated  to  the  Commission  in  accordance  with  Article  41  of  the  Euratom
Treaty.  Commission  Regulation  (EC)  No  1209/20003  determines  the  procedures  for
carrying out the obligations imposed on persons and undertakings by Article 41 of the
Euratom Treaty.

In  order  to  attain  the  Community  objectives  regarding  safety,  it  is  essential  to  allow
the  Commission  to  examine  the  undertakings’  plans  for  decommissioning  and  the
plans for fuel and waste management linked to the designed installation. This should
allow the Community to follow closely the objective of safety from an early stage.

Dangers  from  ionising  radiation  may  also  arise  as  a  result  of  decommissioning
operations. In order to introduce transparency on how these decommissioning projects
are to be implemented, the Commission should also have detailed data with respect to
the  investment  projects  aimed  at  decommissioning  installations.  The  Commission
should  be  able  to  discuss  these  projects  with  the  undertaking,  and  communicate  its
views  thereon  to  the  Member  State  concerned.  This  should  also  permit  the
Commission to verify whether the safety objectives and Community safety rules are in
the  process  of  being  fully  achieved,  before  the  final  phase  in  the  active  life  of  the
installation.

(4) 

Investments  made  in  the  entire  fuel  cycle,  including  waste  management  and
decommissioning,  are  integrally  necessary  for  a  correct  and  responsible  operation  of
the nuclear industry.

1

2

3

OJ C
OJ L 315, 9.12.1999, p. 1.
OJ L138, 9.2.2000, p. 12.

7

                                                
(5) 

(6) 

The financing of investment projects in the nuclear sector is an important element of
the Commission's examination in the context of the objectives of the Euratom Treaty.
Such information  has,  in  the  past,  not  always  been  available  or  has  not  always  been
sufficiently detailed in the communications from persons or undertakings pursuant to
Regulation (Euratom) No 2587/1999. In order to ensure the assessment of all aspects
of the investment projects that are relevant under the Euratom Treaty, the Commission
must  have  the  necessary  information.  This  entails  defining  in  further  detail  the
conditions for introducing further transparency in the examination and assessment of
those projects.

Furthermore,  pursuant  to  Article  40  of  the  Euratom  Treaty,  it  is  the  task  of  the
Commission to stimulate and facilitate co-ordinated development of investment in the
nuclear  field.  For  this  purpose,  the  Commission  publishes  illustrative  programmes
indicating  in  particular  nuclear  energy  production  targets  and  all  the  types  of
investment required for their attainment.

(7)  With  a  view  to  facilitating  the  co-ordinated  development  of  investment,  the
Commission  also  needs  to  know  how  the  investment  projects  are  financed.  This  is
important to ensure the necessary interaction between national and Community public
support. It is therefore necessary for the Commission to have detailed data with respect
to  the  methods  of  financing  of  the  investment  projects.  Such  information  should
identify  as  regards  both  private  and  public  financing  the  amounts  and  the  details  of
methods of financing.

(8) 

Should  the  investments  not  be  necessary  for  or  go  beyond  the  objectives  of  the
Euratom Treaty or should its public financing distort or threaten to distort competition
in the internal market, this Regulation is without prejudice to the application of the EC
Treaty.

(9) 

Regulation (Euratom) No 2587/1999 should therefore be amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (Euratom) No 2587/1999 is amended as follows:

(1)

Article 1 is replaced by the following:

“Article 1

1.

Persons or undertakings engaged in the industrial activities listed in Annex II to
the  Treaty  shall  communicate  to  the  Commission,  within  the  time  limits  laid
down in Article 42 of the Treaty, their investment projects aimed at:

(a)

creating a production capacity;

(b) maintaining quantitative and qualitative production capacity;

(c )

directly increasing production capacity;

8

(d)

directly increasing productivity;

(e)

improving the quality of production;

(f)

creating facilities for the management of spent fuel or radioactive waste,
including treatment, interim or final storage and/or disposal;

(g)

decommissioning installations.

Projects  referred  to  in  points  (a)  to  (f)  of  the  first  subparagraph  shall  be
communicated when, in the industrial activities listed in column I of the table
in the Annex,  the  cost exceeds the corresponding amount in  column  II of the
table in the Annex for new installations and that in column  III  of the table in
the Annex for replacements and conversions.

Projects  referred  to  in  point  (g)  of  the  first  subparagraph  shall  be
communicated when the costs exceed the corresponding amount in column III
of the table in the Annex.

2.

the 

concerning 

and  projects 

Projects  for  new  installations  for  nuclear  reactors  of  any  type  and  for  any
transformation
purpose, 
modernisation  or  power  increase  of  such  installations,  where  the  costs  are
lower  than  the  threshold  values  of  the  table  in  Annex,  and  concerning  the
decommissioning of installations, where the costs are lower than the threshold
values in column III of the table in the Annex, may be notified on a voluntary
basis  through  a  simple  declaration  giving  only  their  essential  characteristics.
The procedure laid down in Article 43 of the Treaty need not be applied.”

replacement, 

(2)

Article 3 is amended as follows:

(a)

point (b) is replaced by the following:

“(b)

the total amount of expenditure  directly chargeable  to  the  project  under
consideration as well as the method of financing, including both private
and public funding or financing of the investment project in question; the
communication shall also refer to the amount or modalities of application
thereof.”

(b)

the following point (e) is added:

“(e)

the  plans  for  the  management  of  spent  fuel  or  radioactive  waste
originating  from  the  notified  investment  as  well  as  the  plans  for  the
decommissioning of the installation.”

9

This Regulation shall enter into force on the twentieth day following that of its publication in
the Official Journal of the European Union.

Article 2

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, [...]

For the Council
The President
[...]

10

IMPACT ASSESSMENT FORM

THE IMPACT OF THE PROPOSAL ON BUSINESS, WITH SPECIAL REFERENCE
TO SMALL AND MEDIUM-SIZED ENTERPRISES( SMEs)

Proposal  for  a  Regulation  amending  Council  Regulation  (Euratom)  No  2587/1999  of
2 December 1999 definiting the investment projects to be communicated to the Commission
in  accordance  with  Article  41  of  the  Treaty  establishing  the  European  Atomic  Energy
Community.

DOCUMENT REFERENCE NUMBER

COM(…) … final of

THE PROPOSAL

1.

Taking  account  of  the  principle  of  subsidiarity,  why  is  Community  legislation
necessary in this area and what are its main aims?

It envisages various objectives:

– 

The  introduction  of  further  transparency  in  the  examination  by  the  Commission  of
investment projects in  the nuclear sector  in  the  light  of  the  safety  objectives  of  the
Treaty;

The  Regulation  refers  to  an  exclusive  competence  of  the  Euratom  Community.  It  therefore
needs to be achieved at the Community level. This Regulation confines itself to the minimum
required  in  order  to  achieve  those  objectives  and  does  not  go  beyond  what  is  necessary  for
that purpose.

THE IMPACT ON BUSINESS

2.

Who will be affected by the proposal?

According  to  Chapter  IV  of  the  Euratom  Treaty  (Articles  40  to  44),  which  constitutes  the
main legal basis of the Regulation, persons or undertakings engaged in the industrial activities
listed in Annex II to the Euratom Treaty will be affected by the proposal. They are required to
communicate to the Commission the investment projects in question.

– 

which sectors of business

Pursuant to Article 41, all persons and undertakings engaged in the industrial activities listed
in  Annex  II  to  the  Euratom  Treaty  and  carrying  out  investment  projects  relating  to  new
installations and also replacements or conversions as listed out in the table in the Annex to the
Council Regulation.

– 

which sizes of business (what is the concentration of small and medium-sized firms)

Persons and undertakings engaged in the nuclear sector. Experience shows that there are  no
small and medium-sized firms involved in the communication of the projects.

11

– 

No

3.

are there particular geographical areas of the Community where these businesses are
found

What will business have to do to comply with the proposal?

The persons and undertakings obliged to communicate the investment projects as laid down in
Article  41  will  communicate  to  the  Commission  the  amount  and  methods  of  financing  of
those investment projects, explicitly identifying any public funds, including direct or indirect
subsidies made available to the investment project in question.

4.

What economic effects is the proposal likely to have?

The proposal will not have any effects on employment, nor on investment and the creation of
new businesses or on the competitiveness of businesses

Does the proposal contain measures to take account of the specific situation of small
and medium-sized firms (reduced or different requirements etc)?

5.

No

CONSULTATION

6.

List the organisations which have been consulted about the proposal and outline their
main views.

The  proposal  from  the  Commission,  before  being  laid  before  the  Council,  will  first  be
forwarded to the Economic and Social Committee for its opinion.

12