Report from the Commission to the Council and the European Parliament - Report on the application of Article 37 of the Euratom Treaty, July 1994 to December 2003 {SEC(2005)343}
Date: 2005-03-14
Institutions: European Commission
Subjects: budgetary assessment, environmental protection, nuclear power station, radioactive effluent, report

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 14.3.2005 
COM(2005) 85 final 

REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN 
PARLIAMENT 

Report on the application of Article 37 of the Euratom Treaty,  
July 1994 to December 2003 

{SEC(2005)343} 

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TABLE OF CONTENTS 

1. 

2. 

2.1. 

2.2. 

2.3. 

2.4. 

3. 

3.1. 

3.2. 

4. 

5. 

Introduction .................................................................................................................. 3 

Procedure for application of article 37......................................................................... 3 

Background .................................................................................................................. 3 

The different stages of the procedure........................................................................... 4 

Structure of the experts’ report .................................................................................... 5 

Time limits ................................................................................................................... 6 

Implementation of the procedure ................................................................................. 6 

Timetable for submissions and opinions...................................................................... 6 

Contents of the opinions............................................................................................... 7 

Infringements ............................................................................................................... 7 

Conclusion.................................................................................................................... 7 

ANNEXES   Commission staff working document SEC(2005)343 

ANNEX I 

Commission Recommendation 1999/829/Euratom 

ANNEX II 

The group of experts in Article 37 

ANNEX III 

Activities submitted during the period in question 

ANNEX IV 

Details of submissions 

ANNEX V 

Specific points arising from the opinions 

ANNEX VI 

Overview of infringements of Article 37 

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1. 

INTRODUCTION 

In  its  Resolution  of  20  November  1980  on  the  siting  of  nuclear  power  stations  in  frontier 
regions,1 the European Parliament calls on the Commission to submit an annual report on the 
application of Article 37 of the Euratom Treaty. 

This  Article  imposes  the  following  obligation  on  Member  States  concerning  radioactive 
waste: 

Article 37 

“Each  Member  State  shall  provide  the  Commission  with  such  general  data  relating  to  any 
plan  for  the  disposal  of  radioactive  waste  in  whatever  form  as  will  make  it  possible  to 
determine  whether  the  implementation  of  such  plan  is  liable  to  result  in  the  radioactive 
contamination of the water, soil or airspace of another Member State.  

The  Commission  shall  deliver  its  opinion  within  six  months,  after  consulting  the  group  of 
experts referred to in Article 31.” 

The  decrease  in  the  number  of  plans  submitted  by  the  Member  States  and,  since  1986,  the 
systematic publication of Commission opinions pursuant to Article 37 in the Official Journal, 
have lead to the interval between reports to the Parliament being changed.  

This report summarises the current procedure taking account of  the amendments introduced 
by the Commission Recommendation of 6 December 1999 on the application of Article 37.2 

2. 

PROCEDURE FOR APPLICATION OF ARTICLE 37 

2.1.  Background 

The Commission Recommendation of 12 December 19903 on the application of Article 37 in 
particular  introduced  certain  points  concerning  the  submission  of  new  general  data  in  the 
event  of  the  modification  of  a  plan  for  the  disposal  of  radioactive  waste  which  has  already 
been submitted and which was liable to cause an appreciable increase of the exposure of the 
population  of  another  Member  State.  Furthermore,  the  Recommendation  emphasised  the 
importance  for  the  Commission  of  being  informed  by  the  Member  States  about  how  they 
implement  any  Recommendations  given  by  the  Commission  and  about  authorisations  for 
radioactive waste disposal granted by the Member States. 

The  experience  gained  since  this  Recommendation  was  adopted,  but  especially  the  closure 
and imminent decommissioning of a large number of nuclear power plants in the enlarged EU 
prompted  the  Commission,  from  1997,  to  start  revising  its  Recommendation.  This  revision 
resulted in the drafting of a new Recommendation, which was adopted on 6 December 1999, 
the complete text of which is in Annex I. 

1 
2 
3 

OJ C 327, 5.12.1980, p.34. 
1999/829/Euratom, OJ L 324, 16.12.1999, p 23 
91/4/Euratom, OJ L 6, 9.1.1991, p 16 

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The main changes made as compared to the previous Recommendation are as follows. 

•  A  clear  definition  of  the  situation  regarding  different  types  of  operations  which  do  not 
require general data to be submitted, and incorporation of the processing industries which 
emit  natural  radioactivity,  in  accordance  with  the  basic  standards  (Council  Directive 
96/29/Euratom). 

•  Clarification of the requirements for general data when existing installations are modified, 
particularly when these have not previously been subject to procedures pursuant to Article 
37 as the host country was not a Member State at the time in question. 

•  Simplification  of  the  general  data  regarding  changes  to  existing  plants  when  these  have 

previously been subject to the procedures pursuant to Article 37.  

•  More detailed requirements in terms of general data for decommissioning operations and 

for the disposal of radioactive waste in geological formations. 

•  Stricter requirements for the data sent to the Commission by Member States regarding the 

annual discharges of radioactive effluents into the environment. 

2.2.  The different stages of the procedure 

In  chronological  order,  the  different  stages  leading  to  the  delivery  of  an  opinion  by  the 
Commission are as follows: 

–  general data are submitted by the Member State concerned to the Secretariat-General of the 

Commission;  

–  the  competent  Commission  department  which  provides  the  Secretariat  of  the  group  of 
experts  carries  out  an  initial  examination  (Annex  II).  The  purpose  of  this  initial 
examination is to check that the data given in the Recommendation are submitted and that 
they form a sufficient basis for an in-depth examination of the plan; 

–  the  Secretariat  sends  the  experts  and  associated  Commission  departments  the  original 

version and the English translation of the general data; 

–  the Secretariat draws up a study or a draft report by the Commission experts (see below) 
based  on  the  general  data,  and  an  inventory  of  any  data  missing  and  any  further  details 
required; 

–  the  group  of  experts  confers  and  develops  its  conclusions  and  the  group’s  opinion.  The 
group’s consultation procedure varies according to the category of operations (within the 
meaning of paragraph 1 of the Recommendation) under which the plan comes: 

(1) 

for  the  first  two  categories  of  operation  (the  operation  of  nuclear  reactors  and  the 
reprocessing of irradiated nuclear fuel), the Secretariat sends the study it has prepared, 
in English or French, to the experts and the associated Commission departments, and 
then invites the experts and the associated  Commission  departments  to  a  meeting.  A 
delegation from the Member State which submitted the plan is also invited to take part 
in the meeting in order to provide any further information and details requested by the 

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Commission  experts.  Once  the  delegation  has  left,  the  experts,  assisted  by  the 
Secretariat, make any necessary changes to the study and add a paragraph entitled “the 
experts’  conclusions  and  opinions”.  They  then  approve  the  “Commission  experts’ 
report” which consists of the finished study; 

(2) 

for all the other categories, the Secretariat compiles its own questions and those sent 
by  the  experts  after  reading  the  general  data,  sends  the  questions  in  writing  to  the 
Member State concerned and draws up a “draft report of the Commission’s group of 
experts”.  This  document,  which  also  contains  the  experts’  draft  conclusions  and 
opinion, is submitted in English or French to the members of the group for comments 
and  approval.  If  necessary,  the  Secretariat  then  adds  the  replies  received  from  the 
Member State to the draft report and, where appropriate, consults the members of the 
group  again  on  the  modified  draft  report.  It  is  then  approved  as  the  “Commission 
experts’ report”; 

–  the experts’ report is translated into English, French and German as well as the language of 

the Member State concerned;  

–  the draft opinion is drawn up by the Secretariat; 

–  there  is  an  inter-service  consultation  on  the  Commission’s  draft  opinion  (to  which  the 

group of experts’ report is attached for information); 

–  the  opinion  is  translated  into  all  official  languages  and  the  Commission  adopts  the  draft 

opinion by written procedure; 

–  the  Commission  sends  a  letter  setting  out  its  opinion  and  the  group  of  experts’  report 

(explaining the grounds for the opinion) to the Member State concerned;  

–  the Commission’s opinion is published in the Official Journal of the European Union. 

2.3.  Structure of the experts’ report 

For  any  new  plan  or  any  modification  of  an  existing  plan  on  which  no  opinion  has  already 
been given, the report contains a brief description of the site, the installations, the monitoring 
and safety provisions, the emergency plans, the environmental monitoring programmes and an 
analysis of the possible radiological consequences of:  

–  discharging gaseous and liquid radioactive effluents in normal operating conditions 

–  disposing of solid radioactive waste in normal operating conditions 

–  unplanned releases of radioactive waste which could occur in the event of an accident. 

Information  available  on  discharge  authorisations  requested  by  the  operator  is  taken  into 
account in so far as this already exists when the experts’ report is drawn up. 

For  any  modification  of  an  existing  plan  on  which  an  opinion  has  already  been  given  and 
which  requires  simplified  general  data  to  be  submitted  pursuant  to  paragraph  4.1.a)  of  the 
Recommendation, the report contains the references of the experts’ report and the opinion on 
the existing plan as well as a brief description of the changes planned, the authorised annual 

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discharge limits in the existing plan, the new discharge limits proposed following the changes, 
and a brief analysis of the radiological consequences of these changes on:  

–  the discharges of gaseous or liquid radioactive effluents in normal operating conditions; 

–  accidents considered; 

–  emergency plans and environmental monitoring. 

The  report  concludes  by  stating  whether  or  not  making  the  changes  are  likely  to  cause 
significant  contamination  in  terms  of  health  to  the  territory  of  another  Member  State  in 
normal  operating  conditions  or  in  the  event  of  an  accident  and  the  extent  of  any  such 
contamination. 

2.4.  Time limits  

The  general  data  are  usually  sent  to  the  Commission  in  the  language  of  the  Member  State 
sending  them.  The  time  required  for  these  data  and  any  documents  resulting  from  them 
(studies  or  draft  experts’  reports,  experts’  reports,  requests  for  additional  data  from  the 
Secretariat or experts and additional data received from the Member States, the Commission’s 
opinion) to be translated represents a significant part of the total duration of the procedure for 
issuing a Commission opinion (6 months). 

3. 

IMPLEMENTATION OF THE PROCEDURE 

The data which Member States must send the Commission are set out in Annexes 1-4 of the 
Recommendation,  paragraph  5  of  which  provides  that  these  must  be  submitted,  in  general, 
wherever  possible  one  year  but  not  less  than  six  months  before  any  authorisation  for  the 
disposal  of  radioactive  waste  is  granted  by  the  competent  authorities  or  before  start-up  of 
operations for which no disposal authorisation is required.  

In total, the Commission issued fifty-two opinions between July 1994 and December 2003. 

The opinions it issued concern plans from eight Member States. The operations involved in 
these plans are listed in the table in Annex III and described in detail in Annex IV. 

3.1.  Timetable for submissions and opinions 

Regarding plans for which an opinion has been given during the period in question, the six-
month deadline which the Commission is allowed has generally been adhered to. Occasional 
slight delays resulted for the most part from the excessively long time taken by the competent 
authorities  to  reply  to  the  Secretariat’s  requests  for  further  information.  This  is  often 
information  which,  in  accordance  with  the  Recommendation,  should  have  been  included  in 
the general data, or details which were required for the submitted data to be understood. The 
average period allowed for the authorities is three weeks. However, in many cases the actual 
time taken for replies to be sent to the Commission is longer. This is why the Commission’s 
opinion generally indicates the date on which the additional data was submitted to it by the 
Member State concerned. The six-month deadline set by the Euratom Treaty is very short, in 
particular  in  view  of  the  numerous  stages  leading  to  the  adoption  of  an  opinion  by  the 
College. It should be noted that, when the Member State needs 4 to 8 weeks or even longer to 
submit  the  additional  data  requested  by  the  Commission,  it  becomes  very  difficult,  if  not 
impossible, to adhere to the six-month deadline provided in the Treaty. The Commission will 

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raise the possibility of considering the date on which this information is submitted as the new 
date from which the six-month deadline stipulated in the Treaty begins in cases when the time 
taken to submit essential additional data is out of all proportion.  

3.2.  Contents of the opinions 

For  all  the  plans  examined  during  the  period  in  question,  the  Commission  delivered  the 
opinion that “the plan for the disposal of radioactive waste in whatever form, both in normal 
operating conditions and in the event of an accident of the type and extent considered in the 
general data, is not likely to result in significant contamination in terms of health, water, soil 
or airspace of another Member State". 

Some  opinions  do,  however,  contain  specific  points  regarding  both  normal  operating 
conditions and accidents:  

On  the  subject  of  solid  radioactive  waste  from  decommissioning  operations,  the 
Commission  notes  that,  as  a  general  rule,  solid  non-radioactive  waste  or  residual 
matter  which  is  no  longer  subject  to  regulatory  control  will  be  disposed  of  as 
conventional  waste  or  reused  or  recycled  in  accordance  with  the  criteria  set  out  in 
Community legislation. The Commission has twice deemed it necessary to reiterate 
that the levels for release of materials no longer subject to regulatory control must be 
fixed so as to ensure that the criteria defined in Community legislation are respected. 
In  two  other  cases  the  Commission  requested  the  competent  authorities  of  the 
Member States to provide it with information on the quantities and types of materials 
which will be recycled as solid waste.  

In the context of potentially hazardous situations, the Commission has in two cases 
recommended that bilateral intergovernmental cooperation regarding information be 
strengthened by implementing existing agreements and, if necessary, by concluding 
new ones.  

Details of the specific points arising from these opinions are found in Annex V. 

4. 

INFRINGEMENTS 

Since July 1994 the Commission has launched twelve infringement procedures concerning the 
application of Article 37 (see Annex VI). In eight cases the dialogue during the preliminary 
procedure between the Commission and the Member State concerned allowed matters to be 
resolved. Three infringement procedures were referred to the Court of Justice. These cases are 
still before the Court. 

5. 

CONCLUSION 

During the period July 1994 to December 2003 the Commission delivered fifty-two opinions. 
These opinions concern plans from eight Member States and cover almost the entire nuclear 
fuel  cycle.  A  significant  rise  in  the  number  of  submissions  to  the  Commission  by  Member 
States  can  be  seen  from  1997,  in  particular  concerning  plans  directly  or  indirectly  linked  to 
the decommissioning or dismantling of nuclear power stations and research reactors. 

In  all  these  opinions,  the  Commission  concluded  that  the  disposal  of  radioactive  waste  was 
not likely to result in significant radioactive contamination in terms of health of the territory 
of  another  Member  State.  The  Commission  has,  however,  on  several  occasions  included 

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observations or recommendations concerning two important aspects resulting from the plans 
submitted  to  it.  These  are,  firstly,  the  coherent  application  of  the  clearance  criteria  for 
releasing  solid  waste 
from  decommissioning  operations  and  secondly, 
intergovernmental  bilateral  cooperation  in  respect  of  potentially  hazardous  situations.  The 
Commission  furthermore  twice  recommended  that  the  competent  authorities  extend  their 
planned environmental monitoring programme.  

resulting 

It should be noted that the judgment of the Court in case C-29/994 introduces a new approach 
regarding the aspects linked to safety under Chapter 3 of the Euratom Treaty. Until now the 
experts have not been asked to give their assessment of the appropriateness of the accidents 
taken  into  consideration  in  the  general  data  for  evaluating  the  unplanned  discharges  of 
radioactive effluents. This judgment opens up new prospects, including in the context of the 
application of Article 37. 

Finally, the Commission ensures that Article 37 is strictly applied, and this has led it to launch 
twelve infringement procedures.  

4 

Judgment of the Court of Justice of 10 December 2002, Commission v Council, Case C-29/99.  

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