C-187/87

This reference under Article 150 of the Treaty establishing the European Atomic Energy Community raises an important question as to the interpretation of Article 37 of the Treaty. The question has arisen in proceedings brought to challenge the In the present case, after a preliminary feasi- legality of certain decrees made, and auth- bility study and the lodging of plans with orizations given, by the French Government the French authorities, the building of in respect of a nuclear power-station to be Cattenom was declared to be a work of operated by Electricité de France ('EDF') at public utility by French decree dated 11 Cattenom — one of the largest in Western October 1978. On 29 November 1978 the Europe and situated near to the Moselle in Commission was supplied, in accordance northern France, a short distance from the with Article 41 of the Treaty, with infor- Luxembourg and the German frontiers. The mation relating to the investment project for applicants in those proceedings are the Cattenom. In reply, in its statement of Saarland, communes, municipal authorities, position dated 6 September 1979, the associations and individuals in the region; Commission regretted the absence of the Governments of Luxembourg, Portugal important information relating to safety and Ireland have intervened to support the aspects and expressed the hope that the case of the applicants on this reference. project would be developed in close colla- boration with the neighbouring Member States. Between 1979 and 1982, building permits were granted by the French auth- orities for the various blocks and by decrees of 24 June 1982 and 29 February 1984, the 'creation' of the four blocks was authorized by the French authorities. To design, obtain approval for and construct a nuclear power-station of this size — ultimately four blocks each consisting of a pressurized water reactor with a rated power generation of 1 300 megawatts — takes a long time. The construction is of concern not only to The generation of nuclear energy, which in national authorities of the State where the turn produces electricity to be supplied to station is to be built, but, where the station the national grid, is accompanied by the is close to national frontiers, to neigh- emission of radioactive waste in gaseous, bouring States and to the Community as a liquid and solid form once the nuclear chain

On 31 July 1984, EDF asked the French authorities for authorization to dispose of liquid and gaseous radioactive effluent from On 22 October 1986 (within the six-month each of the four blocks. On 21 February period provided for in Article 37 of the 1986, two orders were issued by the Euratom Treaty), the Commission issued its responsible Ministers authorizing the Opinion (C(86) 1954 final). In general disposal respectively of gaseous and liquid terms, that Opinion was favourable; but in waste. Annual radiation limits were it the Commission made two specific recom- prescribed: 60 curies in total, (i. e. 15 curies mendations— firstly that the responsible per block) for all radio-elements in liquid authorities in the neighbouring Member waste other than tritium, 4 kilocuries for States be linked in to the automatic alarm tritium; and 90 kilocuries for gases generally system and be given access to control data from the four blocks, with 3 curies for automatically and on a permanent basis, and gaseous halogens and aerosols. The orders secondly that a re-examination be made of laid down detailed conditions governing the existing procedure, in particular as to the treatment and discharge of such waste, time recommended between the giving of provided for the monitoring of the level of the opinion and the power-station's entry radiation in the surrounding environment into service. The following day, on 23 and required there to be a round-the-clock October 1986, the responsible ministry watch to check for any departure from wrote to the Director-General of EDF auth- normal operating procedures which might orizing nuclear power generation to start in lead to an increase in radioactive emissions the first block of Cattenom, together with and further required that in such a case progressive testing up to 9 0 % of nominal appropriate measures should be taken kilowattage. On 25 October 1986, the first (JORF, 11.3.1986, pp. 3724 and 3726). nuclear chain reaction began in Block 1 of Cattenom.

Article 38 requires the Commission to make recommendations to Member States with regard to the level of radioactivity in the air, Article 37 comes in Chapter III of the water and soil and empowers the Treaty, headed 'Health and Safety', Commission in case of urgency to issue a adopted to give effect to the fourth recital directive requiring the Member State to thereto that the Member States (whilst take, within a period laid down by the resolved to create the conditions necessary Commission, 'all necessary measures to for the development of a powerful nuclear prevent infringements of the basic standards industry) were 'anxious to create the and to comply with regulations'. If a conditions of safety necessary to eliminate Member State fails to comply the hazards to the life and health of the public'. Commission or any Member State may Thus Member States were, by Article 33, 'forthwith' bring the matter before this required to ensure compliance with the basic Court. standards laid down by the Commission under Articles 30 to 32. Council Directive 80/836/Euratom of 15 July 1980 (Official Journal 1980, L 246, p. 1) (made under Articles 31 and 32 of the Euratom Treaty) It is plain that the effects of building a amends earlier directives laying down the nuclear power-station cannot be seen simply basic safety standards for the health in the context of one Member State or one protection of the general public and workers national territory. Where a power-station is against the dangers of ionizing radiation. built near to a frontier, the interests of neighbouring States are as great as those of the State in which the power-station is built.

Treaty and Article 203 of the Euratom Whether that period was sufficient was Treaty, refers (sixth recital) to considered doubtful and on 20 November Community-wide consultation existing 'only 1980, the European Parliament adopted a in respect of plans for the discharge of resolution relating to the construction of radioactive effluents likely to cause radio- nuclear power plants in frontier zones active contamination of the water, soil or air (Official Journal 1980, C 327, p. 34). It space of another Member State' and, inter called on the Commission to urge Member alia, would require a Member State, where States to comply fully with Articles 37 and the consultation procedure has been 41 of the Euratom Treaty and to operate invoked, to provide data enabling an within time-scales sufficiently great to make assessment to be made of the likely environ- the procedure there provided for an mental effects and potential risks 'at the effective one. It stressed the pre-eminent l a t e s t . . . when the competent national auth- role of the Commission in ensuring the orities receive a request for permission to correct application of those Treaty articles. build or extend a power-station' (Article 3 (2)). So far, however, the Council has not adopted the draft regulation.

Subsequently, Commission Recommen- dation 82/181/Euratom of 3 February 1982 (Official Journal 1982, L 83, p. 15) ('the More recently, Council Directive 1982 Recommendation') replaced the 1960 85/337/EEC of 27 June 1985 (Official Recommendation with more detailed Journal 1985, L 175, p. 40), which comes listings. Recital 5 to that recommendation into full effect on 3 July 1988, provides for observes that, a detailed assessment of the environmental effects of certain projects. For nuclear power-stations this assessment is obligatory for Member States.

Paragraph 7 recommends that, Beyond that it seems to me that the express wording of the article is neutral between the two positions contended for — notification prior to authorization and prior to actual disposal. There is no express indication 'the Commission be notified, before authori- either way and there are arguments in each zation is granted, of any modification of a direction. plan for disposal of radioactive waste, which has already been submitted for its opinion, if such modification could cause any appre- ciable increase in the effect of such disposal Thus it is said, on the one hand, that if the on the exposure of the population'. opinion was meant to be received before authorization, the article could have said so easily. That seems to me to be an argument of little or no weight. It could equally well have specified 'before disposal began' if that Against this background I turn to the was intended. precise question asked — does Article 37 require the Commission to be notified: (a) before disposal of radioactive effluent is authorized where a procedure for prior authorization is set in motion, or (b) before Then it is said that in both the 1960 and the such disposal is effected, i. e. begins? 1982 Recommendations, the Commission recommended that plans be communicated a period before 'the planned date for the execution of the waste disposal' (1960) or 'the planned date of commencement of disposal of radioactive waste' (1982). There The question thus turns on whether there is no reference, in paragraph 3, to the data has to be notification (rather than whether being given before the authorization of the the Commission's opinion has to be plan. On the other hand, in paragraph 4, for received) before the authorization or the plans involving category 1 operations the commencement of disposal. That formu- preliminary 'general data' listed in Annex 2 lation by the national court is justified by have to be submitted to the Commission the wording of Article 37 which itself has before permission for construction is no express provision that the opinion must granted by the competent authorities. be received before anything further is done Therefore, the argument runs, the first (whether authorization or the commence- disposal of the waste must be the key date. ment of disposal).

curious, since an original unmodified plan should be applied, it does not seem to me may have equal risk, that the recommen- that the statements in the recommendations dation did not specify a period prior to can govern the proper interpretation of the authorization in both cases. It is curious that article. is, unless the underlying intention was that the 'disposal' referred to in paragraph 3 should have been a disposal which took account of the Commission's opinion. Moreover, it does not seem to me that it can possibly be said that the preliminary Reliance is then placed on Article 38 to general data referred to in paragraph 4, justify the narrower interpretation of Article which have to be submitted before authori- 37 (that it is sufficient to give the data zation, are sufficient to allow the before disposal begins). I accept the Commission an adequate overview of plans argument that, if the Commission knows for the discharge of effluent so that future that disposal measures have been or are notification is not necessary before authori- about to be put into effect which infringe zation. Annex 2 makes it clear that the data the basic standards or the relevant regu- are both very preliminary and very general. lations, it may issue a directive under Article The existence of this provision does not 38 and, if necessary, apply to this Court. seem to me to affect the question in this Such a situation could constitute 'a case of reference. urgency' within the meaning of Article 38. That, however, is not in my view a conclusive answer against the more extensive interpretation of Article 37. The purpose of Article 37 is to seek to avoid situations of urgency arising with possibly great risk to neighbouring communities. The Commission apparently adopted the The Commission with its overview of period of six months as the minimum period Community developments, aided by the of notice because of the provision in Article view of the group of experts, is in a position 37 that it should have six months to deliver to give guidance so as to prevent situations its opinion. In other words the recommen- of urgency, as distinct from dealing with dation was that disposal should not begin them as they arise under Article 38. until the opinion was given. That seems to me to be running together two different periods which relate to different purposes — i.e. the giving of the Commission's opinion on the one hand and the consideration of the opinion, coupled On the other side much emphasis is laid on with putting into effect any modifications the words 'any plan' in Article 37. It is said proposed in the interests inter alia of neigh- that a 'plan' is in effect no more than a bouring States and the Community as a proposal, and that a proposal once auth- whole, on the other. orized ceases to be a 'plan': if definitive measures for its implementation have been taken, it is no longer a plan. For my part, I am not persuaded by this argument. I am not satisfied that as a matter of ordinary language a plan once approved ceases to be a plan. T o turn to the language of planning In any event, despite the weight of the authorities a 'town plan' even when adopted Commission's view as to how the Treaty is still properly described as a plan.

At the end of the day it seems to me that, in 37 in the most useful and satisfactory way, the absence of clear express guidance, one is that which requires the Commission's must ask. what is the fundamental object and opinion to be obtained and considered purpose of the procedure prescribed in before the plan for disposal of radioactive Article 37. The answer in my view clearly is effluent is finally authorized. Counsel for that it is to give the Commission, after France stressed that in this sort of area consulting its experts, and in the light of its neither the Commission nor the Member experience in the Community and its States are infallible — the more necessary knowledge of the building of nuclear and useful is it, in my view, for the power-stations, actual or projected, a real Commission's opinion to be considered opportunity to comment on the plans before authorization, since, after authori- submitted to it and to make proposals zation : (a) there may well be a possibility of primarily with the health and safety of those who gave the authorization taking people who may be affected by the disposal entrenched positions and (b) those to whom of radioactive effluent, but also with the the authorization is given may have effect on the environment, in mind. acquired rights at law, and others may have, by reason of the intervening time-period, lost any right to challenge the authorization. In an area of such potential risk this should That answer is not to be qualified by the be avoided: the opinion should be seen and fact that the Commission can only issue an considered before the final legislative or opinion, which under Article 161 of the administrative measure concerning the Treaty is said not to have binding force or disposal of radioactive effluent is adopted. that in Article 34 by contrast the Commission's assent rather than its opinion is required where the effects of particularly dangerous experiments are likely to affect the territories of other Member States. It seems to me inconceivable in a matter with such potentially serious consequences that a Member State would not give the fullest There is, it seems to me, force in the and most careful consideration to the argument that the authorization should Commission's opinion even if in the end it come after the opinion has been given, the decided not wholly to comply with it. In my authorization being the last act which can view it has a duty to do so. Indeed counsel be challenged in a national court. For the for France, as I understood him, whilst authorization to come after the opinion is reserving a right to depart from the opinion, likely also to give the Commission a more accepted, as one would have expected, that realistic period in which to consider either pursuant to Article 192 of the measures under Article 38 and, if necessary, Euratom Treaty or under its general obli- to apply to this Court. gations as a Member of the Community, France would comply with its obligations and would give full consideration to the opinion of the Commission before continuing.

(4) that there has been divergence between what were considered to be acceptable levels of discharge of liquid radioactive waste from Cattenom: the order autho- In considering these questions, I have left rizing discharge specified 15 curies per out of account the particular facts of this block for all radioactive elements other case. The construction of Article 37 cannot than tritium; the Convention between be affected by the consideration that in this France and Luxembourg of 12 March case the Commission's opinion was largely 1986 specified not more than 3 curies favourable. It is, however, to be noted, post per block and in the Decision of the hoc: Commission of the Moselle of 27 March 1986, France undertook not to exceed this level; the group of experts, in their report, considered that the higher limits were acceptable but 'noted with satisfaction' the lower limit (1) that the practice of Member States in adopted in the Convention and in the the absence of a clear ruling has been Decision of the Commission of the varied — out of 20 notifications to the Moselle: yet the order authorizing the Commission under Article 37, six were discharge was not amended.

OPINION OF SIR GORDON SLYNN — CASE 187/87

These factors seem to me to indicate the [1981] ECR 1045, at p. 1074, paragraph 23) need for a clear and firm rule to be and of Community solidarity (e. g. Joined followed under Article 37. Cases 6 and 11/69 Commission v France The principles of 'effet utile' (accepted in [1969] ECR 523, at p. 540, paragraph 16, Community law — e.g. Case 9/70 Grad v and Case 39/72 Commission v Italy [1973] Finanzamt Traunstein [1970] ECR 825, at p. ECR 101, at p. 116, paragraph 25) seem to 837, paragraph 5; Case 22/70 Commission v me to require in the interests of health and Council [1971] ECR 263, at pp. 274 and safety, efficiency and the protection of the 275 (paragraphs 15 and 28), p. 280 environment, whilst not unduly encroaching (paragraph 72) and p. 281 (paragraph 77); on national procedures, that the question Case 804/79 Commission v United Kingdom referred be answered on the lines that: