Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.
Date: 2005-04-12
35. In that connection it should be stated that several provisions of the EAEC Treaty confer on the Commission substantial powers which enable it to intervene actively, by means of legislation or in the form of an opinion containing individual decisions, in various spheres of activity which, in the Community, are concerned with the use of nuclear energy. By way of example it is sufficient to mention, apart from the provisions of Title II, Chapter 3, of that Treaty, on health and safety, in particular Articles 34 EA, 35 EA and 37 EA, the provisions of Title II, Chapter I, on promotion of research. The text of those provisions does not in any way specify whether the activities thus governed are exclusively civil.
36. However, it is clear that the application of such provisions to military installations, research programmes and other activities might be such as to compromise essential national defence interests of the Member States. Consequently, as the United Kingdom and the French Republic have rightly argued, the absence in the Treaty of any derogation laying down the detailed rules according to which the Member States would be authorised to rely on and protect those essential interests leads to the conclusion that activities falling within the military sphere are outside the scope of that Treaty.
39. It should be pointed out that, as the Court has already ruled in Case 187/87 Land de Sarre and Others  [1988] ECR 5013, Article 37 EA must be interpreted as meaning that the Commission must be provided with general data relating to any plan for the disposal of radioactive waste before such disposal is authorised by the competent authorities of the Member State concerned. The Court held that, in order to maintain the effectiveness of that provision, whose objective is to prevent radioactive contamination, and given the very great importance of the guidelines that the Commission can give to the Member State concerned, it was essential that the Commission be aware in good time of the general data relating to any plan for the disposal of radioactive waste in order, after consulting the group of experts, to be able to deliver an opinion which could be examined in detail by that State in circumstances such that the Commission’s suggestions may be taken into account before the authorisation is issued.
44. It is necessary, however, to emphasise that the fact that the Treaty is not applicable to uses of nuclear energy for military purposes and that, accordingly, the Commission is not justified in relying on Article 37 EA in order to require Member States to provide it with information on the disposal of radioactive waste from military installations does not by any means reduce the vital importance of the objective of protecting the health of the public and the environment against the dangers related to the use of nuclear energy, including for military purposes. In so far as that Treaty does not provide the Community with a specific instrument in order to pursue that objective, it is possible that appropriate measures may be adopted on the basis of the relevant provisions of the EC Treaty (see, to that effect, Case C-62/88 Greece  v Council  [1990] ECR I-1527).