Opinion of the European Economic and Social Committee on the Proposal for a Council Directive on the supervision and control of shipments of radioactive waste and spent fuel (COM(2004) 716 final — 2004/0249 (CNS))
Date: 2005-06-09
Institutions: European Economic and Social Committee
Subjects: cross-border transport, export monitoring, export of waste, irradiated fuel, nuclear safety, radioactive waste, transport of dangerous goods

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Official Journal of the European Union

17.11.2005

Opinion of the European Economic and Social Committee on the Proposal for a Council Directive
on the supervision and control of shipments of radioactive waste and spent fuel

(COM(2004) 716 final — 2004/0249 (CNS))

(2005/C 286/07)

On 12 November 2004 the Commission decided to consult the European Economic and Social Committee,
under Article 31 of the Treaty establishing the European Atomic Energy Community, on the abovemen-
tioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee's work on the subject, adopted its opinion on 19 May 2005. The rapporteur was
Mr Buffetaut.

At its 418th plenary session, held on 8 and 9 June 2005 (meeting of 9 June 2005), the European Economic
and Social Committee adopted the following opinion by 120 votes with 6 abstentions.

1. Introduction

1.1
Council Directive 92/3/Euratom of 3 February 1992
regulates the supervision and control of shipments of radioac-
tive waste between Member States.

1.2
The Directive applies both to shipments between the
Member States and to import into and export out of the Com-
munity. It ensures that Member States of destination and of
transit are informed about the transfer of radioactive waste to
or through their country. They have the authority to approve
such transfers or reject them.

— examining and clarifying those rules in the Directive which
provide for the refusal to grant approvals for shipments of
radioactive waste;

— simplifying the standard document used for notification;

— replacing the Directive with a Regulation.

1.5.2
At the end of this process, 14 recommendations were
put forward and served as the basis for further consultation on
revising the Directive.

As regards export, the authorities of the third country of

1.3
destination are informed about the transfer.

2. The new Proposal for a Directive

After more than a decade of generally satisfactory appli-
1.4
cation, the Commission reached the conclusion that some revi-
sions were necessary for practical and legal reasons.

1.5
The revision process was initiated in the context of the
fifth phase of the SLIM initiative (Simpler Legislation for the
Internal Market).

1.5.1

Its main objective was to look into the feasibility of:

— incorporating new technical provisions;

— aligning the provisions of the Directive with new Euratom

directives and certain international agreements;

— clarifying and, where appropriate, removing inconsistencies
in those provisions dealing with the right of third countries
to be consulted on the proposed shipment of radioactive
waste in case of export;

The European Commission puts forward four reasons

2.1
for revising Directive 92/3:

— consistency with the latest Euratom directives;

— consistency with international conventions;

— clarifying the procedure in practice: this involves clarifying
certain concepts, amending existing definitions or adding
new ones, eliminating inconsistencies and simplifying the
procedure;

— extension of

fuel: Under
the Directive's scope to spent
Directive 92/3, spent fuel for which no use is foreseen is
considered as ‘radioactive waste’ and shipments of such
materials are subject to the uniform control procedure laid
down in the Directive. Shipments of spent fuel for reproces-
sing are on the contrary not subject to such a procedure.
The Commission wishes to bring spent fuel for reprocessing
within the scope of the Directive since it believes that it is
illogical to apply or not apply legislation according to the
intended use of the spent fuel when the material is iden-
tical.

— extending the scope of the Directive to include irradiated

fuel for reprocessing;

Finally, the Commission wishes to improve the structure

2.2
of the text from the point of view of legislative technique.

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3. General comments

As the Commission points out, the Directive presented
3.1
certain practical problems regarding its application. When
consulted within the framework of the SLIM initiative,
the
nuclear industry drew up recommendations advocating the
clarification and simplification of existing procedures in order
to improve the system's efficiency, increase predictability and
save time.

The Commission is justified in its decision to revise the
3.2
Directive to ensure consistency with the latest Euratom direc-
tives and with international conventions, in particular the Joint
Convention on the Safety of Spent Fuel Management and the
Safety of Radioactive Waste Management, and in order to
simplify it.

3.3
Efforts to simplify existing procedures, e.g. the generali-
sation of automatic approval (Article 6), the introduction of an
acknowledgement of receipt (Article 8), modifications to the
use of languages in the standard document (Article 13), are to
be welcomed. However, the SLIM approach could probably
have been taken further. In fact, several difficulties identified in
practice persist. Furthermore, some of the proposed amend-
ments raise queries regarding their practical
implementation.
Other amendments run the risk of obstructing the efficient
transfer of radioactive waste and spent fuel. Finally, the indus-
trial sector has expressed concern regarding the extension of
the application of Directive 92/3/Euratom to spent fuel for
reprocessing since there is a risk of making transfers more diffi-
cult and increasing administrative procedures without raising
the level of protection for the population and workers, who are
already safeguarded by other legal instruments, viz., the Joint
Convention on the Safety of Spent Fuel Management and the
Safety of Radioactive Waste Management, and existing rules on
the transport of radioactive materials.

4. Specific comments

The drafting of the proposal raises important points of prin-
ciple.

4.1 The new Directive and the free movement of spent fuel intended

for reprocessing

One of the new proposal's major innovations is the
4.1.1
extension of the Directive's scope to all spent fuels, irrespective
of whether they are to be reprocessed or stored permanently.

At present, spent fuel intended for reprocessing, which unlike
radioactive waste is considered as goods awaiting further use,
does not fall within the scope of Directive 92/3.

This distinction between spent

4.1.2
to be stored
permanently, which is considered as radioactive waste, and
spent fuel for reprocessing has been explained by the Commis-

fuel

sion on several occasions and in clear terms (answers to Euro-
pean Parliament Written Questions E-1734/97 and P-1702/02).
Furthermore,
it reflects the right of each Member State to
formulate and implement its own management policy for spent
fuel as well as the different strategies that exist in this area.

4.1.3
The Commission cites radiation protection and logic
(the materials are the same, only the destination changes) as
arguments for extending the scope of application to spent fuels
for reprocessing. If radioactive materials are to be subject to the
same system irrespective of their destination, then it is vital to
ensure that the new Directive is not misapplied in order to
obstruct the transfer of spent fuel. For this reason, the auto-
matic approval procedure serves to balance the document and
should be retained. Another point that would further balance
the document would be to define more precisely the grounds
for a transit State's refusal to authorise a transfer.

4.2 State of transit considerations

4.2.1
The new proposal defines a country of transit as ‘any
country other than the country of origin or the country of
destination, through which territory a shipment is planned or
takes place’. How should the word ‘territory’ be defined? Does
it include land, territorial waters, the exclusive economic zone
and airspace?

These concepts must be clearly defined since the
4.2.2
consequences of
these provisions could vary considerably
depending on whether, for instance, the exclusive economic
zone is considered as an integral part of the country's territory.
It is important to bear in mind that under international law, a
State's powers vary according to the part of its territory in
question.

their

territorial waters, but not over

International public law grants States full sovereignty
4.2.3
over
their exclusive
economic zone and the continental shelf, where their rights are
restricted. The EESC believes that a State of transit's territory
should be interpreted as the State's land territory, airspace and
territorial waters, but should exclude its exclusive economic
zone.

4.2.4
This position is all the more justified by the fact that
exclusive economic zones do not exist in the Mediterranean
since its size does not allow for them. The European Union
includes many Mediterranean countries, which would not
benefit from the same rights as other Member States if the
exclusive economic zone were to be included. Furthermore, the
EESC recommends that this more precise definition of a transit
State's territory should be applied in the light of internationally
recognised navigation rights and freedoms,
in particular, the
right of innocent passage through territorial waters, as expli-
citly specified under Article 27(3)(i) of the Joint Convention.

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4.3 Defining a State of transit's rights

4.3.1
conferred upon States of transit under this Directive.

is appropriate to examine the extent of rights

It

4.3.2
The proposal foresees prior authorisation by States of
transit, irrespective of whether they are EU Member States or
third States.

4.3.3 When Member States are required to request prior
transit authorisation through a third State, they should ensure
that
in the
Convention.

the State respects the safety standards set out

4.4 Conditions governing the exercise of rights conferred upon a

State of transit

4.4.1
Article 27(3)(i) of the IAEA Joint Convention stipulates
that nothing in the Convention's provisions ‘prejudices or
affects the exercise, by ships and aircraft of all States, of mari-
time, river and air navigation rights and freedoms, as provided
for in international law’.

4.4.2
advisable to include such a provision in the Directive.

In fact, the SLIM team had suggested that it would be

4.4.3
At all events, it would be necessary to specify more
precisely the grounds that would entitle a Member State of
transit to refuse transit authorisation. Directive 92/3 established
a derogation system to the principles of the nuclear common
market and, as a consequence, this derogation system must be
strictly applied. Thus, under this Directive, States of transit can
only refuse transit authorisation on grounds of non-compliance
with international and Community transport rules. However,
the current Commission proposal merely adopts the loose
phrase ‘the relevant legislation applicable’.

Its pertinence and clarity would be enhanced if a
4.4.4
distinction were made between Member States of transit and
Member States of destination. The main concern for Member
States of transit would be to ensure that the proposed transfer
satisfied international and EU regulatory conditions for the
transport of radioactive materials. The main areas of concern
would be far broader for Member States of destination and
would include not only transport but also the management of
radioactive material.

4.4.5

Thus Article 6(3) could read as follows:

management of spent fuel or international, Community and
national rules relevant to the transport of radioactive mate-
rials.’

4.4.6
Finally, the so-called automatic approval procedure,
which prevents States from adopting delaying or foot-dragging
procedures, is extremely useful and should not be called into
question (Article 6(2) of the proposal).

4.5 Practical difficulties in implementing certain procedures

4.5.1
The proposal introduces welcome and genuine simpli-
fications to existing procedures. Nevertheless, some difficulties
and queries persist regarding the practical application of certain
amendments.

4.6 Clarifying the rules for imports and exports (Articles 10, 11 and

12)

4.6.1.
The structure of the Directive has been changed to
identify more clearly the different stages in the procedure.
Specific provisions apply to imports and exports, but just how
they tie in with the general rules specifying the stages of the
procedure needs to be clarified.

4.6.2
Thus, reading Article 10(1) in combination with the
proposal's general provisions would lead a Member State of
destination to submit a request
for authorisation to itself,
which seems rather odd.

4.6.3
Under Article 10(2), the ‘person who has the responsi-
bility for managing the shipment’ is unclear, and could refer to
a variety of operators. If this refers to legal responsibility, then
should it be defined contractually and/or/by regulation or law?

4.6.4
Reconciling Article 10(2) with Article 12 specifying
the conditions for prohibiting exports also presents difficulties.
Is the Member State of transit expected, in addition to other
concerns, to assess with certainty the ability of a third State of
destination to manage radioactive waste (Article 12(1)(c))?
What would be the outcome if a State of transit were to decide
that a third State of destination did not have the appropriate
resources?

‘Reasons shall be given for any refusal to grant authorisation,
or for conditions attached to authorisation:

i) for Member States of transit, on the basis of international,
Community and national rules relevant to the transport of
radioactive materials;

ii) for Member States of destination, on the basis of existing
legislation on radioactive waste management and the

4.6.5
In order to ensure that precise requirements are laid
down for exports of radioactive waste and spent fuel outside
the borders of the EU,
it is proposed that Article 12(1)(c)
should be amended by inclusion of a provision to the effect
that the authorities of Member States shall not authorise ship-
ments to any third country in which technical,
legal and
administrative resources, and the channels for public involve-
ment in decision-making are insufficient to guarantee the safe
management of radioactive waste, at least to the standards
applying in EU countries

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4.6.6
Article 11 on rules for exports outside the Community
does not in any way specify the form in which a request for
authorisation by a third State is to be submitted and/or
obtained. Moreover, the application of the proposal's general
rules cannot be reconciled with the extraterritoriality of third
States of destination, which do not fall within the Community's
jurisdiction.

Refusal of authorisation by the State of destination. As
4.6.7
already stated with reference to States of transit, it would be
preferable to specify more clearly the reasons that could justify
a refusal of authorisation (Article 6(3) applies to both categories
of States).

4.7 Clarification and standardisation of terminology

4.7.1
‘Radioactive waste’: Article 3(1) provides a new defini-
tion of radioactive waste. Although it is supposed to be based
on the Joint Convention definition, it contains some differences.
This is particularly so in the case of identifying the country that
is to categorise the radioactive waste. It would be preferable to
apply the Joint Convention definition.

‘Technical specifications’: Article 9 refers to ‘technical
4.7.2
specifications under which the
approved’
without defining the term. Since this term is often used in legis-
lation on the transport of radioactive waste and spent fuel, the
term should be clearly defined in order to avoid any risk of
confusion.

shipment was

4.7.3
‘Authorisation’ — ‘approval’ — ‘acceptance’ —
‘consent’: Several articles in the proposal (Articles 4 to 7 and

Brussels, 9 June 2005.

Articles 10, 11 and 13) make indiscriminate use of these terms.
Standardising terminology would facilitate reading and inter-
preting the document. The EESC recommends retaining two
this term
terms: authorisation and consent. Authorisation:
would refer to the agreement of the State of origin. Consent:
this would refer to the agreement given by the State of destina-
tion and/or transit. This distinction would make it possible to
distinguish between the two major phases in the control proce-
dure laid down in the Directive.

5. Conclusions

5.1
The EESC agrees that the Directive should be revised to
ensure consistency with Euratom's latest directives and with
international conventions, as well as to simplify and clarify
existing procedures. It welcomes the introduction of an auto-
matic approval procedure that prevents States from employing
delaying tactics.

Nevertheless,

5.2
it would draw attention to the need to
redefine the rules on transit in order to ensure that their appli-
cation does not cause undue interference with the transport of
spent fuel for reprocessing within the European Union, which
would be contrary to the principles of the nuclear common
market.

5.3
Finally, it is necessary to clarify the rules on imports and
exports and to redefine more precisely the grounds entitling a
State of transit or destination to refuse authorisation.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND