Proposal for a Council Decision issuing directives to the Commission for the negotiation of the amendments to the Convention on the Physical Protection of Nuclear Material
Date: 2005-05-20
Institutions: European Commission
Subjects: international convention, international negotiations, nuclear fuel, nuclear safety, radioactive materials, the EU's international role

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 20.5.2005 
COM(2005) 199 final 

Proposal for a 

COUNCIL DECISION 

issuing directives to the Commission for the negotiation of the amendments to the 
Convention on the Physical Protection of Nuclear Material 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

INTRODUCTION 

The  Convention  on  the  Physical  Protection  of  Nuclear  Material  (“the  CPPNM” 
thereinafter)  was  signed  in  1980  and  entered  into  force  in  1987.  106  states  and  the 
European  Atomic  Energy  Community  (“Euratom”  thereinafter)  are  parties  to  the 
CPPNM1. All the Member States of the European Union are parties of the CPPNM. 

In  accordance  with  Article  18.4a)  of  the  CPPNM,  Euratom  signed  the  CPPNM  on 
13. 6. 1980 and acceded to it on 6.10 19912. 

The  objective  of  the  CPPNM  is,  in  particular,  to  apply  the  measures  of  physical 
protection during the international transport of nuclear materials. 

In 1999 a number of countries indicated that the CPPNM was not comprehensive and 
in  need  of  a  revision,  mainly  because  it  did  not  cover  certain  major  aspects  of 
physical  protection.  Shortcomings  were  identified  in  the  protection  of  material  in 
domestic  use,  storage,  and  transport.  Moreover  the  convention  does  not  deal 
adequately with the protection of nuclear facilities against malicious acts. In order to 
answer  these  concerns  the  Director  General  of  the  International  Atomic  Energy 
Agency (IAEA) set up in June 2001 an “Open-Ended Group of Legal and Technical 
Experts to Prepare a draft Amendment of the CPPNM” to discuss, whether there is a 
need to revise the CPPNM”. 

The  group  met  six  times  in  Vienna  (the  first  meeting  took  place  on  3rd  December 
2001). The European Commission (“the Commission” thereinafter) participated in all 
the meetings of the group. The group concluded its work in March 2003 establishing 
a  final  report  to  which  the  draft  amendment  was  enclosed.  It  was  circulated  to  all 
Parties  to  the  CPPNM,  including  also  the  Commission  on  behalf  of  Euratom. 
However, as this first proposal for the amendment contained a number of bracketed 
clauses  on  which  no  common  agreement  was  achieved  during  the  discussions,  no 
majority of Parties was found to convene the Amendment Conference. 

Therefore, in the meantime, a group of 25 parties to the CPPNM under the lead of 
Austria, established in June 2004 a new proposal to amend the CPPNM. This revised 
proposal could be described as a “consensual” text. 

The  main  revision  is  that  in  this  new  proposal  a  list  of  fundamental  principles  of 
physical  protection  of  nuclear  material  and nuclear  facilities, which was previously 
attached in an annex, was inserted verbatim to the text. 

This  revised  proposal  was  also  circulated  to  all  the  Parties  of  the  CPPNM  by  the 
IAEA  secretariat,  in  order  to  initiate  the  procedure  for  the  convening  of  the 
Amendment Conference in accordance with the Article 20 of the CPPNM. 

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Latest status 08.11.2004 
Council  Decision  of  9  June  1980  approving  the  conclusion  by  the  Commission  of  the  International 
Convention on the physical protection of nuclear material, Official Journal L 149, 17.06.1980 p. 0041 

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The  Commission  received  this  revised  proposal  in  September  2004.  In  order  to 
convene  an  Amendment  Conference  the  IAEA  has  to  receive  a  request  from  the 
majority  of  States  Parties  to  the  CPPNM.  The  needed  majority  will  probably  be 
reached in the first semester of 2005. 

2. 

THE PROPOSED AMENDMENTS TO THE CPPNM 

The  aim  for  amending  the  CPPNM  is  mainly  to  extend  its  scope,  which  is  now 
focussing  mainly  on  international  transport  of  nuclear  material,  to  cover  more 
extensively  domestic  use  of  nuclear  material,  storage  and  transport,  as  well  as 
protection of nuclear material and facilities from sabotage. Furthermore the proposed 
amendment stresses the importance of national responsibility for physical protection 
and  of  protection  of  confidential  information.  Finally  in  order  to  strengthen  the 
physical protection regime a list of fundamental principles of physical protection of 
nuclear materials and nuclear facilities were inserted. 

The main points of the envisaged amendment of the CPPNM are the following: 

In particular a new Article 1A is included identifying the objectives of the CPPNM. 
Reflecting  the  extension  of  the  scope  of  the  CPPNM,  Article  2  is  updated  and  two 
new definitions of “sabotage” and “nuclear facility” are inserted in Article 1. 

Furthermore  the  importance  of  national  responsibility  for  the  physical  protection  is 
set out in an amended Article 2 Para 2 of the Convention. 

Article 6 of the Convention concerning the protection of confidential information is 
complemented accordingly and updated considering the extension of the scope of the 
CPPNM. 

A new Article 2A is added setting up legal commitments including the establishment, 
implementation  and  maintenance  of  the  appropriate  physical  protection  regime  to 
answer the physical protection objectives, the establishment and maintenance of the 
legislative  and  regulatory  framework,  and  the  establishment  and  designation  of  the 
competent authority or authorities. 

In the same article a legal commitment is introduced to apply insofar as is reasonable 
and practicable the inserted fundamental principles of physical protection of nuclear 
materials and nuclear facilities.  

Furthermore, the CPPNM is strengthened through the introduction of new measures 
of co-operation addressing the case of credible threat of sabotage of nuclear material 
or nuclear facility, or of sabotage thereof (Article 5) and through the introduction of 
new  offences  relating  to  sabotage,  contributing  to  and  organising  or  directing  the 
commission of an offence and smuggling (Article 7). 

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3. 

THE  ROLE  OF  THE  COMMUNITY  ALONGSIDE  WITH  THE  MEMBER  STATES  IN  THE 
INTERNATIONAL NEGOTIATION PROCESS TO AMEND THE CPPNM 

Article 101 paragraph 1 Euratom Treaty foresees that “the Community may, within 
the  limits  of  its  powers  and  jurisdiction,  enter  into  obligations  by  concluding 
agreements with a third state, …”. 

The role and competences of the Community within the framework of the CPPNM 
have been clearly defined in 1978 by the Court of Justice3: 

Para  21:  “…Article  2(e)  (of  the  Euratom  Treaty)  gives  the  Community  the  task  of 
making certain, by appropriate supervision, that nuclear materials are not diverted to 
purposes other that those for which they are intended, without making any distinction 
with  regard  to  the  nature  of  such  diversions  and  the  circumstances  in  which  they 
might take place and finally that the very expression “safeguards” which the Treaty 
uses  to  characterize  the  provisions  of  chapter  VII  has  a  wider  scope  than  the  mere 
substitution  of  a  different  destination  for  the  one  declared  by  a  user  of  nuclear 
materials.  The  Treaty  here  envisages  all  diversions  of  nuclear  materials  entailing  a 
security  risk  that  is  to  say  the  danger  of  interference  with  the  vital  interests  of  the 
public  and  the  states.  Consequently  there  can  be  no  doubt  that  the  concept  of 
“safeguards”  within  the  meaning  of  the  Treaty  is  sufficiently  comprehensive  to 
include also measures of physical protection.” 

Para 27: “…Therefore, it is the Community, and the Community alone, which is in a 
position to ensure that in the management of nuclear materials the general needs of 
the public are safeguarded in its own field.” 

Para 28: “…Therefore it is the Community which, by virtue of its right of ownership, 
holds  the  power  to  deal  with  unforeseen  situations  in  a  coherent  manner. 
Consequently  in  so  far  the  draft  convention  is  intended  to  meet  new  risks,  the 
Community is concerned as the owner of the materials which are to be protected.”  

Finally  the  Court  concluded  that  “the  participation  of  the  Member  States  in  the 
CPPNM …. is compatible with the provisions of the Euratom Treaty only subject to 
the  conditions  that,  in  so  far  as  its  own  powers  and  jurisdiction  are  concerned,  the 
Community  as  such  is  a  party  to  the  CPPNM  on  the  same  lines  as  the  Member 
States”. 

When acceding to the CPPNM the Commission declared to the depository, as Article 
18.4.c)  requires  from  an  international  organisation  which  accedes  to  the  CPPNM, 
which  articles  do  not  apply  to  it.  The  Declaration  states  that  Articles  7-134  are  not 
applicable to the Community as opposed to individual Member States.” 

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Court Ruling 1/78 of 14 November 1978, ECR 1978, p. 02151 
Articles  7-13  of  the  CPPNM  deal  with  the  definition  of  criminal  offences,  pursuit  and  extradition  of 
offenders and related matters 

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4. 

CONCLUSIONS 

In view of the above described proposed amendments to the CPPNM and the cited 
ruling of the Court of Justice, it is necessary that the Community continues to fully 
participate  in  the  international  negotiating  process  to  amend  this  Convention, 
particularly  with  the  view  to  ensuring  compatibility  between  the  provisions  of  the 
CPPNM and of the Euratom Treaty and its secondary legislation. 

Therefore  the  Commission  proposes  to  the  Council  to  adopt,  in  accordance  with 
Article 101 paragraph 2 of the Euratom Treaty the enclosed Decision authorising the 
Commission  to  negotiate,  with  regard  to  matters  covered  by  the  Community 
competence,  in  the  framework  of  the  up-coming  Amendment  Conference  of  the 
CPPNM, the amendments to the CPPNM in conformity with the directives attached. 

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Proposal for a 

COUNCIL DECISION 

issuing directives to the Commission for the negotiation of the amendments to the 
Convention on the Physical Protection of Nuclear Material 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Atomic  Energy  Community 
(“Euratom” thereinafter) , and in particular Article 101, paragraph 2 thereof, 

Having regard to the proposal from the Commission5, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

Article 2 e) of the Euratom Treaty requests from the Community that it shall “make 
certain, by appropriate supervision, that nuclear materials are not diverted to purpose 
other than those for which they are intended”. 

The Convention on the Physical Protection of Nuclear Material (“the CPPNM” in the 
following) was signed in 1980 and entered into force in 1987. 106 states and Euratom 
are  parties  to  the  CPPNM.  All  the  Member  States  of  the  European  Union  are  the 
Parties to the CPPNM. 

An  Amendment  Conference  in  accordance  with  Article  20  of  the  CPPNM  will  be 
convened soon. 

The  Court  of  Justice6  decided  that  “the  participation  of  the  Member  States  in  the 
CPPNM …. is compatible with the provisions of the Euratom Treaty only subject to 
the  conditions  that,  in  so  far  as  its  own  powers  and  jurisdiction  are  concerned,  the 
Community as such is a party to the CPPNM on the same lines as the Member States” 
and  that  “certain  commitments  of  the  CPPNM  can  only  be  implemented,  where  the 
Community is concerned, by means of close association between the Community and 
the Member States, both in negotiation and conclusion process and in fulfilment of the 
commitments assumed.” 

(5) 

The  Community  shall  therefore  fully  participate  in  the  negotiating  process  to  amend 
the  CPPNM,  particularly  with  the  view  to  ensuring  compatibility  between  the 
provisions of the Convention and of the Euratom Treaty and its secondary legislation. 

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OJ C , , p. . 
Court Ruling 1/78 of 14 November 1978, ECR 1978, p. 02151 

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HAS DECIDED AS FOLLOWS:  

Sole Article  

The Commission shall negotiate, with regard to matters covered by the Community 
competence,  in  the  framework  of  the  up-coming  Amendment  Conference  of  the 
CPPNM, the amendments to the CPPNM in conformity with the directives attached 
hereto. 

Done at Brussels,  

For the Council 
The President 

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ANNEX  

Negotiation Directives 

During the negotiations the Commission takes care to ensure the compatibility of amendments 
made to the CPPNM with the policies and provisions of the Euratom Treaty and its secondary 
legislation. 

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