Proposal for a Council Decision approving the conclusion of the Convention on Early Notification of a Nuclear Accident
Date: 2004-08-16
Institutions: European Commission
Subjects: International Atomic Energy Agency, UN convention, civil defence, international cooperation, nuclear accident, nuclear safety, ratification of an agreement

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 16.8.2004 
COM(2004) 560 final 

Proposal for a 

COUNCIL DECISION 

approving the conclusion of the Convention on Early Notification of a Nuclear Accident 

Proposal for a 

COUNCIL DECISION 

approving the conclusion of the Convention on Assistance in the case of a Nuclear 
Accident or Radiological Emergency 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

CONVENTION ON EARLY NOTIFICATION OF A NUCLEAR ACCIDENT 

The  Convention  on  Early  Notification  of  a  Nuclear  Accident  (“the  Convention”  in  the 
following)  was  adopted  by  the  General  Conference  of  the  International  Atomic  Energy 
Agency (IAEA) at a special session on 26 September 1986. 

This  Convention  is  designed  to  strengthen  international  cooperation  by  ensuring  that 
information  relating  to  nuclear  accidents  is  communicated  as  early  as  possible  to  the  States 
which are or may be physically affected in order to minimise the transboundary radiological 
consequences.  Article  2  of  the  Convention  stipulates  the  obligation  to  notify  and  provide 
information on accidents involving the installations listed in Article 1 (scope of application), 
while also allowing for the possibility of notifying any other nuclear accident (Article 3). 

The  Convention  contains  several  procedural  provisions  describing  the  role  of  the  IAEA 
(Articles 4 and 8), the information to be provided (Article 5), the response to be given to any 
requests for further information (Article 6) and the designation of competent authorities and 
points of contact (Article 7). 

Other  provisions,  which  are  also  to  be  found  in  other  similar  international  conventions, 
concern the possibility of concluding bilateral and multilateral arrangements (Article 9), the 
dispute settlement procedure (Article 11), the entry into force of the provisions (Articles 12 
and 13), the procedure for amending and denouncing the Convention (Articles 14 and 15), the 
designation  of  the  depositary  (Article  16)  and  the  reference  to  the  authentic  texts  of  the 
Convention (Article 17).  

The Convention is open for accession by international organisations and regional integration 
organisations in accordance with Article 12(5)(a). In this event, Article 12(5)(c) provides that 
"when depositing its instrument of accession, such an organization shall communicate to the 
depositary a declaration indicating the extent of its competence in respect of matters covered 
by this Convention". 

Article  11(1)  and  (2)  of  the  Convention  contains  provisions  relating  to  the  settlement  of 
disputes.  Paragraph  3  of  this  Article  reads  as  follows:  "When  signing,  ratifying,  accepting, 
approving or acceding to this Convention, a State may declare that it does not consider itself 
bound by either or both of the dispute settlement procedures provided for in paragraph 2. The 
other  States  Parties  shall  not  be  bound  by  a  dispute  settlement  procedure  provided  for  in 
paragraph 2 with respect to a State Party for which such a declaration is in force.” 

2. 

COUNCIL DECISION OF 14 DECEMBER 1987 

Under  Article  101  of  the  Euratom  Treaty  "the  Community  may  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." 

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The  Council  approved  the  conclusion  of  the  Convention  on  Early  Notification  of  a  Nuclear 
Accident by a decision (unpublished) of 14 December 1987. 

This decision has two annexes: 

1. 

Annex  I  contains  two  declarations  for  presentation  to  the  depositary  at  the  time  of 
Community accession, namely: 

a)  A  declaration  of  competence  within  the  meaning  of  Article  12(5)(c)  which 

reads as follows: 

“1. 

In accordance with the procedures laid down in the attached exchange of 
letters and pursuant to Articles 1, 2, 5(a), (b), (c) and (d), and Article 6, 
the  Community,  having  obtained  the  agreement  of  the  host  Member 
State,  shall  notify  accidents  occurring  in  an  establishment  of  the  Joint 
Research Centre set up under Article 8 of the Euratom Treaty. 

2. 

3. 

4. 

Such  establishments  exist  at  present  in  Ispra  (Italy),  Karlsruhe  (Federal 
Republic of Germany), Petten (The Netherlands) and Geel (Belgium). 

The Community shall receive, by the same right as the States Parties, the 
information referred to in Articles 2 and 4. 

The  Community  shall  be  entitled  to  request  further  information  or 
consultations,  pursuant  to  Article  6,  in  the  event  of  an  accident  which 
could affect the territory of a Member State. 

The  Community,  in  the  same  capacity  as  the  States  Parties,  will  make 
known its competent authorities and point of contact in accordance with 
Article  7;  it  will  receive  the  corresponding  communications  from  the 
other Parties." 

b)  A  declaration  within  the  meaning  of  Article  11(3)  of  the  Convention  which 

reads as follows: 

"Since  only  States  can  be  Parties  in  cases  brought  before  the  International 
Court of Justice, in accordance with Article 34 of its Statutes, the Community 
can be bound only by the arbitration procedure referred to in Article 11(2) of 
the Convention”. 

2. 

Annex II concerns the exchange of letters between the Commission and the Member 
States  in  whose  territories  a  Joint  Research  Centre  (JRC)  establishment  is  located. 
This  exchange  of  letters  is  the  practical  consequence  of  the  declaration  of 
competence, since the latter limits Community competence in the matters covered by 
the Convention to accidents occurring at one of the JRC establishments. In the event 
that such an occurrence leads to action by the Commission and the Member States in 
whose territories a JRC establishment is located, the responsibilities of each party are 
set out in Annex II in the form of an exchange of standard letters. 

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3. 

COMMUNITY ACCESSION TO THE CONVENTION 

Since  the  Convention  was  signed,  the  Community  has  expressed  not  only  its  interest  in 
acceding, but also its intention to apply the provisions in practice even before accession. 

This  intention  was  expressed  in  a  recital  of  Council  Decision  87/600/Euratom  of 
14 December 1987 on Community arrangements for the early exchange of information in the 
event  of  a  radiological  emergency  (ECURIE)1  which  reads  as  follows:  "Whereas,  in 
furtherance  of  international  cooperation,  the  Community  will  participate  in  the  IAEA 
Convention on Early Notification of a Nuclear Accident". 

This  cooperation  was  established  on  the  basis  of  a  letter  of  12  December  1991  from  the 
Director-General  for  External  Relations  to  the  Director-General  of  the  IAEA,  in  which  the 
Commission undertook to apply the Convention provisionally pending Community accession. 
The  Commission  accordingly  designated  the  competent  authorities  and  points  of  contact  in 
conformity with Article 7 of the Convention. 

Subsequent  experience  with  the  exercise  of  Community  powers  in  the  field  covered  by  the 
Convention,  primarily  in  the  framework  of  the  ECURIE  system,  has  revealed  the 
inappropriate nature of the declarations annexed to the Council decision of 14 December 1987 
approving  the  conclusion  of  the  Convention.  This  decision  is  not  an  appropriate  basis  for 
concluding the Convention on behalf of the Community. 

As the Commission is bound by the content of such a decision and its annexes, it is necessary 
to propose to the Council a new decision repealing the 1987 decision. 

4. 

JUSTIFICATION FOR REPEALING THE COUNCIL DECISION OF 14 DECEMBER 1987 

The  Commission  considers,  firstly,  that  the  content  of  Annex  I  to  the  Decision  cannot  be 
regarded  in  the  strict  sense  as  a  declaration  of  competence  within  the  meaning  of  Article 
12(5)(c)  of  the  Convention.  The  declaration  does  not  refer  to  the  powers  conferred  on  the 
Community by the Euratom Treaty in the field covered by the Convention, but merely states 
that the Community will notify any accidents occurring in a JRC establishment after obtaining 
the agreement of the Member State concerned.  

The  Council  decision  approving  the  conclusion  of  the  Convention  does  not  take  account  of 
the  existence  of  Council  Decision  87/600/Euratom,  also  adopted  on  14  December  1987,  on 
Community arrangements for the early exchange of information in the event of a radiological 
emergency (ECURIE system).  

The  ECURIE  system,  which  is  comparable  to  the  arrangements  put  in  place  by  the  IAEA 
Convention,  has  also  been  extended  by  agreement  to  Bulgaria,  Romania,  Switzerland  and 
Turkey. 

In legal terms, the ECURIE system set up by this Decision is a direct consequence of one of 
the  tasks  conferred  on  the  Community  by  the  Euratom  Treaty,  namely  to  establish  uniform 
safety standards to protect the health of workers and of the general public and ensure that they 
are applied (see Article 2(b) and Title II, Chapter 3 of the Euratom Treaty). 

1 

OJ L 371, 30.12.1987, p. 76. 

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In  addition,  Council  Decision  2001/792/EC,Euratom  of  23 October  2001  establishing  a 
Community  mechanism  to  facilitate  reinforced  cooperation  in  civil  protection  assistance 
interventions  provides  for  the  establishment  within  the  Commission  of  a  monitoring  and 
information centre. The Member States may have recourse to this centre to inform the other 
States and request their assistance, irrespective of the type of emergency involved. 

In  practical  terms,  the  ECURIE  system  places  the  Community  at  the  hub  of  the  rapid 
information mechanism as soon as an incident occurs in the territory in which the system is 
applied.  The  Commission  collects  and  transmits  the  information  immediately.  It  also  draws 
any  conclusions  of  a  regulatory  nature  relating  to  health  protection  (particularly  as  regards 
food). 

The Commission has established links with the IAEA and cooperates very closely with that 
body  to  ensure  that  the  two  systems  are  perfectly  coherent  and  that  Member  States  do  not 
receive the same information several times from different sources. 

It is therefore essential that the Community become Party to the Convention in the same way 
as its Member States and the third countries who have entered into an agreement to participate 
in the Community system. 

The  Community  shares  and  exercises  with  its  Member  States  true  competence  in  the  field, 
which cannot be limited solely to the activities of the JRC establishments. According to the 
case law of the Court of Justice, recently confirmed in the judgment of 12 December 2002 on 
accession to the Convention on Nuclear Safety (case C-29/99, Commission v. Council, ECR 
pp  I-11221)  “the  legal  effect  of  approval  by  the  Council  of  accession  to  an  international 
convention, in accordance with the second paragraph of Article 101 of the Euratom Treaty, is 
to authorise the Commission to conclude that convention within the framework established by 
the Council decision. When it approves accession to an international convention without any 
reservation,  the  Council  must  respect  the  conditions  for  accession  laid  down  by  that 
convention, since an accession decision which did not comply with those conditions would be 
in breach of the Community's obligations from the moment it entered into force. In addition, it 
follows  from  the  duty  of  sincere  cooperation  between  the  institutions  (…)  that  the  Council 
decision  (…)  must  enable  the  Commission  to  comply  with  international  law”  (points  67  to 
69).  

5. 

CONTENT OF THE PROPOSAL FOR A COUNCIL DECISION 

For  reasons  of  legal  clarity,  it  is  considered  opportune  to  replace  the  existing  decision  by  a 
new Council decision. This proposal for a Council decision therefore repeals the decision of 
14 December 1987. 

The proposal has the same structure as the existing decision. 

–  Article 1 approves the conclusion of the IAEA Convention. 

–  Article  2  provides  for  the  declaration  in  the  annex  (Declaration  within  the  meaning  of 
Article  12(5)(c)  of  the  IAEA  Convention)  to  be  notified  together  with  the  instrument  of 
Community accession. 

–  Article  3  provides  for  the  repeal  of  the  decision  of  14 December  1987  approving  the 

conclusion of the Convention. 

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Annex  I  to  the  proposal  has  been  revised  to  produce  a  declaration  within  the  meaning  of 
Article  12(5)(c)  of  the  Convention  which  sets  out  in  appropriate  form  the  extent  of  the 
Community's competence in the fields concerned. 

Given the largely procedural nature of the Convention’s provisions, as noted in point 1 of this 
explanatory  memorandum,  it  is  sufficient  simply  to  refer  to  the  existence  of  shared 
competence  with  the  Member  States  in  respect  of  information  in  the  case  of  a  radiological 
emergency. 

With regard to the declaration on dispute settlement in Article 11, it appears that, in view of 
the  Community's  own  mechanisms,  such  a  declaration  is  unnecessary  and  might  even  be 
incomplete.  Moreover,  a  declaration  of  this  type  appears  never  to  have  been  made  in  the 
context of other mixed agreements concluded by the Community in the past. 

The new version of the declaration of competence renders Annex II superfluous. 

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Proposal for a 

COUNCIL DECISION 

approving the conclusion of the Convention on Early Notification of a Nuclear Accident 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Atomic  Energy  Community,  and  in 
particular the second subparagraph of Article 101 thereof, 

Having regard to the proposal from the Commission2, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

A  Convention  on  Early  Notification  of  a  Nuclear  Accident  (“the  Convention”  in  the 
following) was adopted by the General Conference of the International Atomic Energy 
Agency at a special session on 26 September 1986. 

This  Convention  is  open  for  accession  by  international  organisations  and  regional 
integration  organisations  under  Article  12(5)(a),  in  which  case  a  declaration  of 
competence  within  the  meaning  of  Article  12(5)(c)  must  be  communicated  on 
accession. 

The  Council  decision  of  14 December  1987  approving  the  conclusion  of  the 
Convention  on  the  basis  of  the  second  subparagraph  of  Article  101  of  the  Treaty 
establishing  the  European  Atomic  Energy  Community  has  two  annexes.  Annex  I 
contains  two  declarations  in  application  of  Article  12(5)(c)  and  Article  11(3)  of  the 
Convention,  while  Annex  II  sets  out,  in  the  form  of  an  exchange  of  standard  letters 
between the Commission and the Member States in whose territory a Joint Research 
Centre  (JRC)  establishment  is  located,  the  rules  governing  the  exchange  of 
information between the Commission and the Member State concerned in the event of 
an  accident  in  one  of  the  JRC  establishments;  this  decision  thus  limits  the  extent  of 
Community competence to the activities of the JRC. 

Contrary  to  what  the  above-mentioned  Council  Decision  may  suggest,  the  European 
Atomic  Energy  Community’s  competence  in  the  field  covered  by  the  Convention  is 
based on Article 2(b), Articles 30 et seq. and Article 203 of the Euratom Treaty, and 
has  been  exercised  mainly  through  Council  Decision  87/600/Euratom3,  also  of 
14 December  1987,  on  Community  arrangements  for  the  early  exchange  of 
information  in  the  event  of  a  radiological  emergency,  and  Council  Decision 

2 
3 

OJ C […], […], p. […]. 
OJ L 371, 30.12.1987, p. 76. 

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(5) 

(6) 

(7) 

2001/792/EC,Euratom  of  23 October  2001  establishing  a  Community  mechanism  to 
facilitate reinforced cooperation in civil protection assistance interventions4. 

In  view  of  the  above-mentioned  provisions  of  the  Euratom  Treaty  and  of  Decisions 
87/600/Euratom and 2001/792/EC,Euratom, Annexes I and II to the Council Decision 
of  14 December  1987  approving  the  conclusion  of  the  Convention  do  not  properly 
express the extent of Community competence in the field of early information in the 
event of a nuclear accident, as this competence cannot be limited to accidents that may 
occur in one of the Joint Research Centre establishments. 

The  International  Atomic  Energy  Agency  and  the  European  Atomic  Energy 
Community have a long history of close mutual cooperation, particularly with regard 
to  early  notification  of  a  nuclear  accident,  and  the  Commission  has  undertaken  to 
apply  the  Convention  provisionally  pending  actual  Community  accession  to  the 
Convention. 

It  is  therefore  necessary  to  adopt  a  new  decision  approving  the  conclusion  of  the 
Convention which takes full account of the existence of shared competence on the part 
of  the  European  Atomic  Energy  Community  and  its  Member  States  in  the  field 
covered by the Convention, and to repeal the Council decision of 14 December 1987, 

HAS DECIDED AS FOLLOWS: 

The  conclusion  by  the  Commission  of  the  Convention  on  Early  Notification  of  a  Nuclear 
Accident is hereby approved. 

Article 1 

The  Commission  shall  communicate  the  declaration  in  the  annex  to  this  decision 
simultaneously with its deposit of the Community's instrument of accession. 

Article 2 

Article 3 

The Council decision of 14 December 1987 approving the conclusion by the Commission of 
the Convention on Early Notification of a Nuclear Accident is hereby repealed. 

Done at Brussels, […] 

For the Council 
The President 

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OJ L 297, 15.11.2001, p.7. 

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ANNEX 

Declaration referred to in Article 12(5)(c) of the Convention 

The Community  shares  competence with  its Member States in respect of the notification of 
radiological emergencies on the basis of Article 2(b) and of the relevant provisions of Title II, 
Chapter  3  "Health  and  Safety"  of  the  Treaty  establishing  the  European  Atomic  Energy 
Community.

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EXPLANATORY MEMORANDUM 

1. 

CONVENTION  ON  ASSISTANCE  IN  THE  CASE  OF  A  NUCLEAR  ACCIDENT  OR 
RADIOLOGICAL EMERGENCY 

The Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency 
(“the  Convention”  in  the  following)  was  adopted  by  the  General  Conference  of  the 
International Atomic Energy Agency (IAEA) at a special session on 26 September 1986. 

This  Convention  establishes  an  international  cooperation  framework  between  the  States 
Parties and with the IAEA to facilitate rapid assistance in the event of a nuclear accident or of 
a  radiological  emergency  and  to  minimise  the  consequences.  Provision  is  also  made  for 
bilateral and multilateral arrangements to facilitate this cooperation. 

Article 1 of the Convention requires the States Parties to cooperate between themselves and 
with  the  IAEA,  and  provides  for  the  possibility  to  conclude  bilateral  and  multilateral 
arrangements to facilitate prompt assistance in the event of a nuclear accident or radiological 
emergency. 

The Convention contains several provisions that stipulate the procedure to be followed when 
providing  assistance  (Article  2),  the  responsibility  for  direction  and  control  of  assistance 
(Article  3),  the  designation  of  competent  authorities  and  points  of  contact  (Article  4),  the 
functions of the IAEA (Article 5), the confidentiality rules (Article 6), the reimbursement of 
costs (Article 7), the privileges, immunities and facilities — and their limitations — granted 
to  the  persons  providing  the  assistance  (Article  8),  the  measures  to  facilitate  transit  of 
personnel, equipment and property (Article 9), the exemptions from civil liability — and their 
limitations  —  of  the  party  providing  the  assistance  (Article  10)  and  the  termination  of 
assistance (Article 11). 

Other  provisions,  which  are  also  to  be  found  in  other  similar  international  conventions, 
concern  the  dispute  settlement  procedure  (Article  13),  the  entry  into  force  of  the  provisions 
(Articles 14 and 15), the procedure for amending and denouncing the Convention (Articles 16 
and 17), the designation of the depositary (Article 18) and the reference to the authentic texts 
of the Convention (Article 19). 

The Convention is open for accession by international organisations and regional integration 
organisations  in  accordance  with  Article  14(5)(a).  In  this  event,  Article  14(5)(c)  of  the 
Convention provides that "when depositing its instrument of accession, such an organization 
shall communicate to the depositary a declaration indicating the extent of its competence in 
respect of matters covered by this Convention". 

Article  13(1)  and  (2)  of  the  Convention  contains  provisions  relating  to  the  settlement  of 
disputes.  Paragraph  3  of  this  Article  reads  as  follows:  "When  signing,  ratifying,  accepting, 
approving or acceding to this Convention, a State may declare that it does not consider itself 
bound by either or both of the dispute settlement procedures provided for in paragraph 2. The 
other  States  Parties  shall  not  be  bound  by  a  dispute  settlement  procedure  provided  for  in 
paragraph 2 with respect to a State Party for which such a declaration is in force.” 

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2. 

COUNCIL DECISION OF 27 NOVEMBER 1989 

Under  Article  101  of  the  Euratom  Treaty  "the  Community  may  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  Council  approved  the  conclusion  of  the  Convention  on  Assistance  in  the  case  of  a 
Nuclear  Accident  or  Radiological  Emergency  by  a  decision  (unpublished)  of  27 November 
1989. 

This decision has two annexes: 

1. 

Annex A contains two declarations for presentation to the depositary at the time of 
Community accession, namely: 

a)  A  declaration  of  competence  within  the  meaning  of  Article  14(5)(c)  which 

reads as follows: 

“1. 

In accordance with the procedures laid down in the attached exchange of 
letters and pursuant to the Convention, with the exception of Article 8(1), 
(2),  (3)  and  (5),  the  Community,  having  obtained  the  agreement  of  the 
host Member State, will be entitled to make a request for assistance in the 
event of an accident’s occurring at an establishment of the Joint Research 
Centre (JRC) set up under Article 8 of the Euratom Treaty.  

2. 

3. 

Such  establishments  exist  at  present  in  Ispra  (Italy),  Karlsruhe  (Federal 
Republic of Germany), Petten (Netherlands) and Geel (Belgium). 

The Community may respond to a request for assistance, pursuant to the 
Convention, by using the resources of the JRC.  

The  Community,  in  the  same  capacity  as  the  States  Parties,  will  make 
known its competent authorities and point of contact in accordance with 
Article  4;  it  will  receive  the  corresponding  communications  from  the 
other Parties." 

b)  A  declaration  within  the  meaning  of  Article  13(3)  of  the  Convention  which 

reads as follows: 

"Since  only  States  can  be  Parties  in  cases  brought  before  the  International 
Court of Justice, in accordance with Article 34 of its Statutes, the Community 
can be bound only by the arbitration procedure referred to in Article 11(2).” 

2. 

Annex B concerns the exchange of letters between the Commission and the Member 
States  in  the  territories  of  which  a  Joint  Research  Centre  (JRC)  establishment  is 
located.  This  exchange  of  letters  is  the  practical  consequence  of  the  declaration  of 
competence, since the latter limits Community competence in the matters covered by 
the Convention to accidents occurring at one of the JRC establishments. In the event 
that such an occurrence leads to action by the Commission and the Member States in 
whose territories a JRC establishment is located, the responsibilities of each party are 

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set  out  in  Annex  B  in  the  form  of  an  exchange  of  standard  letters.  Among  other 
things,  it  is  clearly  stated  that  requests  for  assistance  in  relation  to  a  JRC 
establishment are subject to the prior agreement of the government concerned. 

3. 

COMMUNITY ACCESSION TO THE CONVENTION 

Since  the  Convention  was  signed,  the  Community  has  expressed  not  only  its  interest  in 
acceding, but also its intention to apply the provisions in practice even before accession. 

This intention was explicitly stated in a letter of 12 December 1991 from the Director-General 
for  External  Relations  to  the  Director-General  of  the  IAEA.  In  this  letter,  the  Commission 
undertakes  to  apply  the  Convention  provisionally  pending  Community  accession.  The 
Commission  accordingly  designated  the  competent  authorities  and  points  of  contact  in 
conformity with Article 4 of the Convention. 

Subsequent experience with the exercise of the powers conferred on the Commission by the 
provisions of Title II, Chapter 3 of the Euratom Treaty in the field covered by the Convention 
has revealed the inappropriate nature of the declarations annexed to the Council decision of 
27 November 1989 approving the conclusion of the Convention. 

The concept of mutual assistance by Member States is inherent in the rules on preparing for 
radiological emergencies. Moreover, several provisions of the Community acquis originating 
in  Title  II,  Chapter  3  of  the  Euratom  Treaty  provide  for  such  assistance.  For  example,  the 
existence  of  agreements  in  this  area  is  referred  to  in  the  recitals  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 
emergency5.  An  obligation  to  provide  assistance  is  explicitly  mentioned  in  Article  51(5)  of 
Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the 
protection  of  the  health  of  workers  and  the  general  public  against  the  dangers  arising  from 
ionizing radiation6. Article 11 of Council Directive 2003/122/Euratom of 22 December 2003 
on  the  control  of  high-activity  sealed  radioactive  sources  and  orphan  sources  also  stipulates 
the need for international cooperation7. 

In view of the nature of Community competence in the field in question, the Council decision 
of 27 November 1989 does not constitute an appropriate basis for concluding the Convention 
on behalf of the Community. 

As the Commission is bound by the content of this decision and its annexes, it is necessary to 
propose to the Council a new decision repealing the 1989 decision. 

4. 

JUSTIFICATION FOR REPEALING THE COUNCIL DECISION OF 27 NOVEMBER 1989 

The  Commission  considers,  firstly,  that  the  content  of  Annex  A  to  the  Decision  cannot  be 
regarded  in  the  strict  sense  as  a  declaration  of  competence  within  the  meaning  of  Article 
14(5)(c)  of  the  Convention.  The  declaration  does  not  refer  to  the  powers  conferred  on  the 
Community by the Euratom Treaty in the field covered by the Convention, but merely states 

5 
6 
7 

OJ L 357, 7.12.1989, p. 31. 
OJ L 159, 29.06.1996, p. 1. 
OJ L 346, 31.12.2003, p. 57. 

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that  the  Community  will  be  entitled  to  make  a  request  for  assistance  in  the  event  of  an 
accident occurring at a JRC establishment and that it may respond to a request for assistance 
by using the resources of the JRC. 

The  Council  decision  approving  the  conclusion  of  the  Convention  does  not  take  account  of 
the  existence  of  Community  competence  resulting  from  the  provisions  on  health  protection 
contained in Title II, Chapter 3 of the Euratom Treaty. 

In  addition,  Council  Decision  2001/792/EC,Euratom  of  23 October  2001  establishing  a 
Community  mechanism  to  facilitate  reinforced  cooperation  in  civil  protection  assistance 
interventions  provides  for  the  establishment  within  the  Commission  of  a  monitoring  and 
information centre. The Member States may have recourse to this centre to inform the other 
States and request their assistance, irrespective of the type of emergency involved. 

The  Community  shares  and  exercises  with  its  Member  States  true  competence  in  the  field, 
which cannot be limited solely to the JRC establishments. According to the case law of the 
Court of Justice, recently confirmed in the judgment of 12 December 2002 on accession to the 
Convention on Nuclear Safety (case C-29/99, Commission v. Council, ECR pp I-11221) “the 
legal  effect  of  approval  by  the  Council  of  accession  to  an  international  convention,  in 
accordance with the second paragraph of Article 101 of the Euratom Treaty, is to authorise 
the Commission to conclude that convention within the framework established by the Council 
decision. When it approves accession to an international convention without any reservation, 
the Council must respect the conditions for accession laid down by that convention, since an 
accession  decision  which  did  not  comply  with  those  conditions  would  be  in  breach  of  the 
Community's  obligations  from  the  moment  it  entered  into  force.  In  addition,  it  follows  from 
the  duty  of  sincere  cooperation  between  the  institutions  (…)  that  the  Council  decision  (…) 
must enable the Commission to comply with international law” (points 67 to 69).  

5. 

CONTENT OF THE PROPOSAL FOR A COUNCIL DECISION 

For  reasons  of  legal  clarity,  it  is  considered  opportune  to  replace  the  existing  decision  by  a 
new Council decision. This proposal for a Council decision therefore repeals the decision of 
27 November 1989. 

The proposal has the same structure as the existing decision. 

–  Article 1 approves the conclusion of the IAEA Convention. 

–  Article  2  provides  for  the  declaration  in  the  annex  (Declaration  within  the  meaning  of 
Article  14(5)(c)  of  the  IAEA  Convention)  to  be  notified  together  with  the  instrument  of 
Community accession. 

–  Article  3  provides  for  the  repeal  of  the  decision  of  27 November  1989  approving  the 

conclusion of the Convention. 

The  annex  to  the  proposal  has  been  revised  to  produce  a  declaration  within  the  meaning  of 
Article 14(5)(c) which sets out in appropriate form the extent of the Community's competence 
in the field concerned. 

Given the largely procedural nature of the Convention’s provisions, as noted in point 1 of this 
explanatory  memorandum,  it  is  sufficient  simply  to  refer  to  the  existence  of  shared 

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competence  with  the  Member  States  in  respect  of  assistance  in  the  event  of  a  radiological 
emergency. 

With regard to the declaration on dispute settlement in Article 13, it appears that, in view of 
the  Community's  own  mechanisms,  such  a  declaration  is  unnecessary  and  might  even  be 
incomplete.  Moreover,  a  declaration  of  this  type  appears  never  to  have  been  made  in  the 
context of other mixed agreements concluded by the Community in the past. 

The new version of the declaration of competence renders Annex B superfluous. 

EN 

14 

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Proposal for a 

COUNCIL DECISION 

approving the conclusion of the Convention on Assistance in the case of a Nuclear 
Accident or Radiological Emergency 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Atomic  Energy  Community,  and  in 
particular the second subparagraph of Article 101 thereof, 

Having regard to the proposal from the Commission8, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

A  Convention  on  Assistance  in  the  case  of  a  Nuclear  Accident  or  Radiological 
Emergency  (“the  Convention”  in  the  following)  was  adopted  by  the  General 
Conference  of  the  International  Atomic  Energy  Agency  at  a  special  session  on 
26 September 1986. 

This  Convention  is  open  for  accession  by  international  organisations  and  regional 
integration  organisations  under  Article  14(5)(a),  in  which  case  a  declaration  of 
competence  within  the  meaning  of  Article  14(5)(c)  must  be  communicated  on 
accession. 

The  Council  decision  of  27 November  1989  approving  the  conclusion  of  the 
Convention  on  the  basis  of  the  second  subparagraph  of  Article  101  of  the  Treaty 
establishing  the  European  Atomic  Energy  Community  has  two  annexes.  Annex  A 
contains  two  declarations  in  application  of  Article  14(5)(c)  and  Article  13(3)  of  the 
Convention,  while  Annex  B  sets  out,  in  the  form  of  an  exchange  of  standard  letters 
between the Commission and the Member States in whose territories a Joint Research 
Centre (JRC) establishment is located, the rules governing a request for assistance in 
the event of an accident in one of the JRC establishments; this decision thus limits the 
extent of Community competence to the activities of the JRC. 

Contrary  to  what  the  above-mentioned  Council  decision  may  suggest,  the  European 
Atomic  Energy  Community’s  competence  in  the  field  covered  by  the  Convention  is 
based on Article 2(b), Articles 30 et seq. and Article 203 of the Euratom Treaty, and 
has  been  exercised  in  several  instruments  of  secondary  legislation  on  preparing  for 
radiological  emergencies,  including  Council  Decision  2001/792/EC,Euratom  of 
23 October  2001  establishing  a  Community  mechanism  to  facilitate  reinforced 
cooperation  in  civil  protection  assistance  interventions9  and  Title  IX  of  Directive 

8 
9 

OJ C […], […], p. […]. 
OJ L 297, 15.11.2001, p.7. 

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15 

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96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection 
of  the  health  of  workers  and  the  general  public  against  the  dangers  arising  from 
ionizing radiation 10. 

In  view  of  the  above-mentioned  provisions  of  the  Euratom  Treaty  and  of  secondary 
legislation, Annexes A and B to the Council decision of 27 November 1989 approving 
the  conclusion  of  the  Convention  do  not  properly  express  the  extent  of  Community 
competence  in  the  field  of  mutual  assistance  in  the  event  of  an  accident,  as  this 
competence cannot be limited to accidents that may occur in one of the Joint Research 
Centre establishments. 

The  International  Atomic  Energy  Agency  and  the  European  Atomic  Energy 
Community have a long history of close mutual cooperation, particularly in the field of 
mutual  assistance  in  the  event  of  a  radiological  accident,  and  the  Commission  has 
undertaken  to  apply  the  Convention  provisionally  pending  actual  Community 
accession to the Convention. 

It  is  therefore  necessary  to  adopt  a  new  decision  approving  the  conclusion  of  the 
Convention which takes full account of the existence of shared competence on the part 
of  the  European  Atomic  Energy  Community  and  its  Member  States  in  the  matters 
covered by the Convention, and to repeal the Council decision of 27 November 1989, 

(5) 

(6) 

(7) 

HAS DECIDED AS FOLLOWS: 

The conclusion by the Commission of the Convention on Assistance in the case of a Nuclear 
Accident or Radiological Emergency is hereby approved. 

Article 1 

The  Commission  shall  communicate  the  declaration  in  the  annex  to  this  decision 
simultaneously with its deposit of the Community's instrument of accession. 

Article 2 

Article 3 

The Council decision of 27 November 1989 approving the conclusion by the Commission of 
the Convention on Assistance in the case of a Nuclear Accident or Radiological Emergency is 
hereby repealed. 

Done at Brussels, […] 

For the Council 
The President 

10 

OJ L 159, 29.06.1996, p. 1. 

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ANNEX 

Declaration referred to in Article 14(5)(c) of the Convention 

The  Community  shares  competence  with  its  Member  States  in  respect  of  assistance  in  the 
event of a radiological emergency on the basis of Article 2(b) and of the relevant provisions 
of  Title  II,  Chapter  3  "Health  and  Safety"  of  the  Treaty  establishing  the  European  Atomic 
Energy Community. 

EN 

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   EN