C-29/99

1. Provisions on international agreements in the Euratom Treaty I-11231

2. Negotiation of the participation of the Community in the Nuclear Safety Convention and the clauses concerning that participation I-11231

3. The Commission proposal for the contested Council Decision I-11232

4. The contested Council decision I -11233

5. Developments after the present proceedings were brought I-11234

IV — 'Health and safety' under the Euratom Treaty I -11235

2. The effects of the Community's subsequent accession to the Convention I-11241

3. The Council's first plea: the application is without purpose I-11242 4. The Council's second plea: the application for partial annulment is directed against a part of the decision which cannot be dissociated from the decision as a whole I -11243 (a) Can the declaration be challenged separately? I -11243

(b)Can the final paragraph of the declaration be challenged separately? I-11245

1 — Original language: English.

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Community possesses competence also in ive powers of the Commission and the the fields covered by Articles 1 to 5, 7 and Council within that procedure, 14 to 19 of the Convention.

— the nature, interpretation and review- ability of a declaration of competence to be submitted by one of the Commu- 2. The Nuclear Safety Convention is a nities in the context of a multilateral 'mixed' agreement to which both the 15 mixed agreement, and Member States and the Community are parties. In the course of the internal pro- cedure which led to the Community's accession to the Convention the Commis- sion and the Council disagreed about the declaration of competence which the Com- — the competence which the Community munity had to submit to the depositary. derives from the health and safety The underlying reason for that disagree- provisions of the Euratom Treaty in ment is a more fundamental dissent about respect of nuclear installations and in the scope of the Community's competence particular of safety assessments, verifi- as regards the safety of the Member States' cations, emergency preparedness, the nuclear installations. The present proceed- establishment of safety requirements ings — in which the parties exchanged and the siting, design, construction sometimes technical and complex argu- and operation of such installations. ments on both the admissibility and the substance of the case — are a provisional culmination of that long-running conflict.

I I — The Convention on Nuclear Safety

3. As will become apparent below I con- sider that the present case requires the Court to examine 4. The Convention on Nuclear Safety ('the Convention') 3 was drawn up between 1992 and 1994 under the auspices of the International Atomic Energy Agency ('IAEA') during a series of meetings at expert level of representatives of Govern- ments, national nuclear safety authorities — the procedure for the conclusion of international agreements under the 3 — The text of the Convention is published in OJ 1999 L 318, Euratom Treaty, as well as the respect- p. 21.

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8. Article 2(i) defines 'nuclear installation' in issue. Article 7(1) requires the contract- as 'any land-based civil nuclear power ing parties to establish a legislative and plant... including such storage, handling regulatory framework to govern the safety and treatment facilities for radioactive of nuclear installations. Under Article 7(2) materials as are on the same site and are that framework must provide inter alia for directly related to the operation of the national safety requirements, a licensing nuclear power plant'. system with regard to nuclear installations, an inspection and assessment system and the enforcement of regulations and the terms of licences.

9. According to Article 3 the Convention applies 'to the safety of nuclear instal- lations'.

13. Section (c) 'General safety consider- ations' (Articles 10 to 16) contains three 10. Chapter 2, entitled 'Obligations', is relevant provisions. subdivided into four sections.

11. In Section (a) 'General provisions' (Articles 4 to 6) there are two relevant provisions. Article 4 ('Implementing meas- 14. Under Article 14 ('Assessment and ures') provides that the contracting parties verification of safety') the contracting must take the legislative, regulatory and parties must ensure that safety assessments administrative measures and other steps and verifications of nuclear installations are necessary for implementing their obli- carried out. gations under the Convention. Article 5 ('Reporting') obliges the contracting parties to submit, prior to each review meeting, a report on the measures they have taken to implement the obligations of the Conven- tion;

20. Under Article 19 ('Operation') the con- 17. Finally, all three provisions of Section tracting parties must ensure that the initial (d) 'Safety of installations' (Articles 17 to authorisation to operate a nuclear instal- 19) are of relevance. lation is based on an appropriate safety analysis and commissioning programme, that operational limits and conditions are defined and revised, that operation, main- tenance, inspection and testing of a nuclear installation are conducted in accordance with approved procedures, that procedures are established for responding to antici- pated operational occurrences and to acci- 18. Under Article 17 ('Siting') the contract- dents, that necessary engineering and tech- ing parties must ensure that there are nical support in all safety-related fields is procedures for evaluating all site-related available, that incidents significant to factors likely to affect the safety of a safety are reported, that programmes to planned nuclear installation, for evaluating collect and analyse operating experience its likely safety impact, for re-evaluating all are established and that the generation of relevant factors so as to ensure its con- radioactive waste is kept to the minimum tinued safety acceptability, and for con- practicable.

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III— Participation of the Community in munity, one or more Member States are the Convention parties, are not to enter into force until the Commission has been notified by all Member States concerned that those agree- ments have become applicable in accord- ance with the provisions of their respective national laws. 1. Provisions on international agreements in the Euratom Treaty

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signature or accession of regional organi- to it, and the extent of its competence sations. in the field covered by those articles.

26. Article 30(4) of the Convention pro- vides: (iv) Such an organisation shall not hold any vote additional to those of its Member States.'

'(i) This Convention shall be open for signature or accession by regional organisations of an integration or other nature, provided that any such organi- sation is constituted by sovereign States 3. The Commission proposal for the con- and has competence in respect of the tested Council Decision negotiation, conclusion and appli- cation of international agreements in matters covered by this Convention.

27. On 8 September 1994 the Commission submitted a document entitled 'Proposal for a Council Decision concerning the approval of the conclusion by the European (ii) In matters within their competence, Atomic Energy Community of the Nuclear such organisations shall, on their own Safety Convention'. 4That document con- behalf, exercise the rights and fulfil the tained inter alia: responsibilities which this Convention attributes to States Parties.

'The following States are presently members of the European Atomic Energy Community: Belgium, Denmark,...

29. The list of Community legislation referred to in the third paragraph of the declaration and attached to it lists 15 legal acts (directives, regulation and decisions) The Community declares that the following which had been adopted by either the Articles of the Convention apply to it: Council or the Commission and which Articles 1 to 5, Article 7, Articles 14 to 35. concern matters related to protection against ionising radiation.

The Community possesses competences in the fields covered by Articles 1 to 5, Article 7, and Articles 14 to 19 as provided for by the Treaty establishing the European 4. The contested Council decision Atomic Energy Community and by the Community legislation enumerated here- after. 30. On 7 December 1998 — more than four years after the Commission's pro- posal — the Council unanimously adopted the decision which approves the accession of the Community to the Convention and In the future the Community may well take which the Commission attacks in the further responsibilities by adopting more present proceedings.

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31. In the preamble to the decision the Community: the Kingdom of Belgium, the Council states that 'the competence for the Kingdom of Denmark,... design, construction and operation of nuclear installations lies with the Member State in which they are located' and that the accession of the Community to the Con- vention should be approved 'in view of the relevant tasks assigned to the Community by Title II, Chapter 3 "Health and Safety" The Community declares that Articles 15 of the Treaty'. and 16(2) of the Convention apply to it. Articles 1 to 5, Article 7(1), Article 14(ii) and Articles 20 to 35 also apply to it only insofar as the fields covered by Articles 15 and 16(2) are concerned. 32. The sole Article of the operative part of the decision provides:

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of the Community the accession to the States were on the one hand 'resolved to Convention 5 and attached to its decision create the conditions necessary for the both the text of the Convention and the development of a powerful nuclear indus- declaration by the Community according to try', but on the other also 'anxious to create Article 30(4)(iii) of the Convention as for- the conditions of safety necessary to elim- mulated in the attachment to the Council inate hazards to the life and health of the decision of 7 December 1998. public'.

35. On 31 January 2000 the Commission 38. Under Article 2(b) of the Treaty the deposited an instrument of acceptance of Community must 'establish uniform safety the Convention with the Director General standards to protect the health of workers of the IAEA and at the same time com- and of the general public and ensure that municated the declaration according to they are applied'. Article 30(4)(iii) of the Convention as for- mulated in the respective attachments to the Council decision of 7 December 1998 and the Commission decision of 16 No- vember 1999. 6 39. That task is described in more detail in Title II, Chapter 3 (Articles 30 to 39 of the Treaty) which is entitled 'Health and Safety'. 36. On 30 April 2000 the Convention entered into force for the Community pursuant to Article 31(2) of the Conven- tion.

1. The setting of 'basic standards'

IV — 'Health and safety' under the Eura- tom Treaty 40. Article 30 of the Treaty provides:

37. According to the preamble to the Euratom Treaty the contracting Member 'Basic standards shall be laid down within the Community for the protection of the health of workers and the general public 5 —OJ1999 L 318, p. 20. 6 — Information on the status of the ratification can be found on against the dangers arising from ionising the website of the IAEA at www.iaea.org. radiations.

7 — OJ English Special Edition 1959-62 (I), p. 7. 8 — OJ English Special Edition 1959-62 (I), p. 229. 9 — OJ English Special Edition 1965-66 (I), p. 265. 10 — OJ 1976 L 187, p. 1. 11 — OJ 1979 L 83, p. 18. 42. Under Article 32 at the request of the 12 — OJ 1980 L 246, p. 1. Commission or of a Member State the basic 13 — OJ 1984 L 265, p. 4.

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44. In 1996 the basic standards directives monitoring of the level of radioactivity in as revised were replaced by Council Direc- the air, water and soil and to ensure tive 96/29/Euratom of 13 May 1996 laying compliance with the basic standards'. The down basic safety standards for the pro- results of that monitoring must be com- tection of the health of workers and the municated to the Commission so that it is general public against the dangers arising kept informed of the level of radioactivity from ionising radiation ('the Basic Stan- to which the public is exposed. The Com- dards Directive') 14 which repealed the mission has a right of access to the national previously applicable rules with effect from monitoring facilities and may verify their 13 May 2000. 15 operation and efficiency. 16

2. Compliance, monitoring and the Com- mission's powers

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3. Provisions on dangerous experiments V — Admissibility and plans for the disposal of radioactive waste

50. On 12 October 1999 the Council lodged a preliminary objection as to admissibility. By decision of 8 February 2000 the Court reserved its decision for the final judgment. 48. Under Article 34 of the Treaty a Member State in whose territories 'particu- larly dangerous experiments' are to take place must take additional health and safety measures, on which it must first obtain the opinion of the Commission. The 51. In support of its claim that the Com- Commission's assent is necessary where the mission's application is inadmissible the effects of such experiments are liable to Council raises three pleas in law, namely affect the territories of other Member that: States. 17

(1) the application is without purpose;

49. Under Article 37 of the Treaty Member States must provide the Commission with such general data relating to any plan for the disposal of radioactive waste in what- (2) the application is inadmissible because ever form as will make it possible to it is directed against a part of the determine whether the implementation of decision which cannot be considered such plan is liable to result in the radio- separately from the rest of the decision active contamination of the water, soil or and the Commission does not ask for airspace of another Member State. The the annulment of the entire decision; Commission must deliver its opinion within six months. 18

52. Before examining those pleas it will be of the European Atomic Energy Commu- helpful 19 to consider whether the Commis- nity to the Nuclear Safety Convention'. 23 sion's application is directed against a In that decision the approval of the acces- reviewable act within the meaning of sion to the Convention and the reference to Article 146 of the Treaty and whether the the attached declaration are contained in accession to the Convention after the one 'sole' Article. It will also be noted that present proceedings were brought has any the 'sole' Article lists both elements side by bearing on admissibility. side and on an equal footing. The declar- ation in issue was thus intended to be an integral part of the Council decision of 7 December 1998. That interpretation is in line with normal practice in Community law, namely that annexes or protocols attached to a given legal act form an integral part thereof and are of the same legal nature. 24 1. Reviewable act

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the Council and the Commission decided orandum that the Commission 'will' make jointly that the Community should become a declaration, as set out in an Annex; and in a contracting party to the Convention. the operative part of the decision of 7 De- cember 1998 the Council states that the text of the declaration 'by the... Commu- nity' is attached. Since the formulation of such a declaration is an essential part of the process of concluding an international agreement, I consider that the procedure to decide on its content is also governed by Article 101 of the Treaty. It follows that the 'internal' declaration attached to the 56. Under the Court's case-law, which Council decision of 7 December 1998 was takes a broad view of the categories of intended to oblige the Commission to measure which are subject to judicial communicate to the depositary an 'exter- review, 25 there can be no doubt that the nal' declaration with the content prescribed approval of the accession to the Conven- by the Council and was thus also intended tion taken in isolation (first paragraph of to have legal effects. the sole Article of the decision of 7 De- cember 1998) is a reviewable act, since it expresses in definitive terms the Council's consent to the Community's accession and is thus intended to be legally binding in the Council's own operations and its relations with the Commission.

59. As a last point I would mention that the decided to approve the accession by the internal declaration attached to the Community to the Convention and decision of 7 December 1998 is not a deposited an instrument of acceptance with non-reviewable purely preparatory meas- the depositary of the Convention. On both ure within the meaning of the Court's occasions the Commission attached a dec- case-law. 26 That case-law applies in par- laration identical to the one drafted by the ticular to decision-making procedures in Council which is at issue in the present which one and the same institution acts in proceedings. several stages. 27 In that situation an action can be brought against the final act, and the legality of the earlier stages can be chal- lenged then. In the present case several institutions were involved in the procedure under Article 101 of the Treaty and the act under review was the 'last word' of the Council. If that act were not reviewable, 62. Some might argue that the Commission the Commission would have no remedy at therefore has no interest in bringing the all. present proceedings because it has already complied with the act which it attacks.

60. The Commission's application is accordingly directed against a reviewable act within the meaning of Article 146 of 63. Others might contest the Commission's the Treaty. interest in bringing proceedings on the ground that internationally the Community has in the meantime become a party to the Convention on the basis of a declaration of competence which is identical to the one under review. A ruling by the Court that the last paragraph of the declaration attached to the internal Council decision is void would therefore come 'too late' and 2. The effects of the Community's sub- not serve any useful purpose. sequent accession to the Convention

65. The Commission has in any event an interest in bringing proceedings since the (partial) annulment of the contested dec- laration would have real practical con- 'The Community possesses competence, sequences. It is true that the annulment shared with the abovementioned Member would concern only the declaration States, in the fields covered by Articles 15 attached to the internal Council decision and 16(2) of the Convention as provided of 7 December 1998. The declaration com- for by the Treaty establishing the European municated by the Commission to the Atomic Energy Community in Article 2(b) depositary of the Convention would thus and the relevant Articles of Title II, Chapter initially remain unaffected. However, as 3 entitled "Health and Safety".' both the Commission and the Council stated at the hearing, nothing in the Con- vention precludes the Community from submitting at a later stage an alternative or modified declaration. That possibility is inherent in the nature of the requirements 67. The Council maintained in its written imposed by Article 30(4)(iii) of the Con- submissions that that paragraph contains vention. Thus for example the list of the only two statements, namely that: Member States might have to be modified in the event of the accession of new Member States to the European Union. The same is true as regards the information about the extent of the Community's competence in the event of an evolution of that competence over time. It follows — the Community shares the competence that in the event of annulment of the which it possesses with the Member declaration the Council and the Commis- States, and sion would have to agree on a new declaration which the Commission would then communicate to the depositary of the Convention.

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Community's accession while annulling the sion to the Convention is in itself intended declaration or parts thereof. Moreover, the and liable to produce legal effects. 33 Court cannot annul the decision itself because that would be ultra petita.

75. The judgment in Jamet must be con- trasted with the judgments in Transocean Marine Paint 34 and in the Kali and Salz cases 35 which concerned applications for 73. In principle an applicant is free to the separate annulment of conditions challenge only a part of a single legal act. 31 attached to decisions favourable to certain The question is therefore only whether the undertakings. The difficulty in those cases application or the act under review presents was that annulment of the conditions might particular features which may render the have affected the nature of the decision Commission's application for partial itself. Nevertheless, the Court did not annulment inadmissible. regard as problematic the admissibility of applications directed against the conditions alone. In the present case therefore there should be even less doubt about the admissibility of the application, since there is no legal link between the declaration and the decision to approve accession to the Convention such that annulment of the declaration would entail annulment of the decision. Even if there might have been a 74. It is true that in Jamet 32 the Court political connection between the two declared an application for partial annul- elements, the legality of the decision to ment inadmissible. In that case however the approve the Community's accession to the challenged part was not severable from the Convention does not depend on the legality decision as a whole: the parts of the of the declaration. decision whose annulment were requested were so essential that in their absence the decision would no longer have been capable of producing legal effects. In the present case a separate annulment of the declaration attached to the Council decision of 7 December 1998 would not 76. The declaration may accordingly be have similar consequences. As I have stated dissociated from the approval decision and above, the decision to approve the acces- challenged separately.

(b) Can the final paragraph of the declar- the Treaty, and in particular on the ques- ation be challenged separately? tion of the Community's competence to conclude such an agreement. None of the provisions of the Euratom Treaty under which the Court may be asked for an o p i n i o n — the C o u n c i l refers to 77. The Council argues that the declaration Articles 103(3), 104(3) and 105(2) of the under review forms a whole and that the Treaty — is applicable in the present case. last two paragraphs thereof may not be The application must therefore be declared separated from one another or considered inadmissible for the reason that it consti- individually. That argument is based on the tutes an abuse of the procedure provided by same understanding of the declaration as Article 146 of the Treaty. the Council's first plea. For the reasons given above 36 it must also be examined together with the substance of the case. 37

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80. The Council's third plea must accord- indicating which States are members ingly also be rejected. thereof, which articles of this Convention apply to it, and the extent of its competence in the field covered by those articles.'

VI — Substance 83. That provision must be interpreted according to customary international law on the interpretation of treaties as embo- 81. The Commission seeks the annulment died in Articles 31 to 33 of the Vienna of the third paragraph of the declaration Convention on the Law of Treaties. attached to the Council decision of 7 De- cember 1998 in so far as, in relation to Community competence, it omits to state that the Community possesses competence in the fields covered by Articles 1 to 5, 7, 14, 16(1) and (3), and 17 to 19 of the Convention. The Commission's application 84. It should also be mentioned that by is based on the ground of infringement of virtue of a further principle of customary the Treaty, and in particular on the international law embodied in Article 24(4) infringement of Article 2(b), the provisions of the Vienna Convention on the Law of contained in Title II, Chapter 3 (Articles 30 T r e a t i e s 41 the o b l i g a t i o n s u n d e r to 39), Article 192 and the Community Article 30(4)(iii) of the Nuclear Safety legislation based on the Treaty. Convention applied to the Community before the entry into force of the latter Convention.

1. The requirements under the Convention as regards the contested declaration 85. It follows from the wording of Article 30(4)(iii), first, that:

— a statement about 'the extent of its — it must communicate the declaration at competence in the field covered by the same time as it submits its instru- those articles'. ment of accession ('when becoming party').

88. The first of those three requirements is not contentious.

86. Both the wording and the context suggest that the declaration must be both accurate and complete. That may be inferred in particular from Article 30(4)(ii) of the Convention: if the Community is to 89. The Council argued in its written sub- exercise the rights and fulfil the responsi- missions that it is the second requirement bilities which the Convention attributes to which obliges the Community to indicate States parties in all 'matters within [its] the fields of the Convention in which the competence' the Community cannot 'pick Community possesses competence. The and choose' and declare only some of its third requirement therefore concerns only competences. the question whether that competence is shared or exclusive.

87. Moreover, it follows also from the 90. That reading conflicts in my view with wording of Article 30(4)(iii) that a regional the ordinary meaning of the terms used. organisation must submit a declaration The scope of the second requirement is with three elements, namely: defined by the word 'apply' which means that a given provision is of legal relevance for a given actor. The relatively indeter- minate statement that a provision applies to an actor is to be distinguished from the much more specific statement that the actor in question possesses competence (of a — a list of the Member States of the legislative, administrative or other nature) organisation, in the fields covered by that provision. For

91. The provisions to be indicated under the second requirement include therefore, first, the substantive obligations under the Convention applicable to a regional organi- sation which require implementing meas- ures of a legislative, regulatory, adminis- trative or other nature within that organi- 93. Article 30(4)(ii) provides that '[i]n sation's domestic legal order (Articles 4 matters within their competence, such and 6 to 19). A second group of provisions organisations shall, on their own behalf, which 'apply' to a regional organisation are exercise the rights and fulfil the responsi- those which establish formal and/or pro- bilities which this Convention attributes to cedural rights and obligations related to the S t a t e P a r t i e s ' . ' C o m p e t e n c e ' in administration and effectiveness of the Article 30(4)(iii) must thus be read as Convention (e.g. the right to denounce the referring to the competence of a regional Convention under Article 33(1) or the organisation to exercise the rights and fulfil obligation to deposit instruments of ratifi- the obligations under the Convention. cation with the d e p o s i t a r y under Article 30(5)). I would also classify within that category the reporting requirements (Article 5) and the other obligations which arise in the context of the peer review mechanism (Articles 20 to 28). Finally, there are the general provisions which do not as such create rights or obligations but have to be taken into account in the 94. As to the term 'extent' of competence it interpretation and application of the Con- must be borne in mind that where a vention. An obvious example are the regional organisation and its Member provisions which define the objectives (Ar- States are parties to an international agree- ticle 1 of the Convention), central concepts ment the other contracting parties wish to (Article 2), scope of application of the know 'to whom they owe their obligations,

96. At first sight it might seem strange to limit the obligation to reveal the extent of 98. It follows that the third requirement of an organisation's competence to a prede- Article 30(4)(iii) of the Convention obliges termined group of articles of the Conven- a regional organisation to indicate the tion which 'apply' to that organisation. It follows however from the foregoing analy- 43 — See C. Lindemann 'Die Nukleare Sicherheitskonven- tion — Bestätigung deutschen und Fortschreibung inter- nationalen Rechts?' in N. Pelzer (ed.), Neues Atomenergierecht — Internationale und nationale Ent- 42 — See Maurits J.F.M. Dolmans 'Problems of Mixed Agree- wicklungen, Nomos, Baden-Baden, 1995, at p. 66. The ments: Division of Powers within the EEC and the Rights author seems to have participated in the negotiation of the of Third States', Asser Institute, The Hague 1985, at p. 52. Convention.

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100. It will be recalled that the parties disagree on the question whether that paragraph contains a statement that the 103. It follows that the third paragraph of Community possesses competence only in the contentious declaration must be inter- the fields covered by Articles 15 and 16(2) preted as stating inter alia that the Com- of the Convention. munity possesses competence only in the

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fields covered by Articles 15 and 16(2) of 3. May an incomplete declaration of com- the Convention. petences constitute an infringement of Community law within the meaning of Article 146 of the Treaty?

108. Under Article 146 of the Treaty an action for annulment may be brought on the ground of 'infringement of this Treaty 106. Secondly, the information contained or any rule of law relating to its appli- in the third paragraph of the declaration cation'. That ground for annulment covers (extent of the Community's competence) is infringements of any binding and superior legally distinct from the information con- provision of Community law. tained in the second paragraph thereof (provisions of the Convention which apply to the Community) and the legality of both elements may be reviewed independently of one another. The Commission's application is therefore directed against a part of the declaration which can be dissociated from the declaration as a whole. The second 109. The Court has consistently held that a branch of the Council's second plea of provision of an international agreement admissibility must therefore also be concluded by one of the Communities — rejected. such as Article 30(4)(iii) of the Conven-

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44 —Case 181/73 Haegeman v Belgium [1974] ECR 449, 45 — Ruling 1/78 [1978] ECR 2151, paragraph 35 of the paragraphs 3, 4 ana 5 of the judgment; for an application of that principle in an action for annulment see Case 30/88 Ruling. Greece v Commission [1989] ECR 3711, paragraphs 12 to 46 — Paragraph 11. 14. 47 —At p. 2162.

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signed a year and a half after the Ruling, infringe Article 30(4)(iii) of the Convention required the Community to communicate and an incomplete 'internal' declaration by to the depositary a declaration indicating the Council would infringe the Euratom all the Articles of the Convention which did Treaty and — since it is liable to lead to an not apply to it. infringement of the Convention — infringe Article 192 of the Treaty.

115. Accordingly, an incomplete 'external' 48 — Articles 1, 2, 4(1)(a), 6, 7, 9, 13, 38, 43, 44, 46, 47, and declaration by the Community would JO.

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117. Second, in the Commission's view in laying down 'maximum permissible Articles 30 et seq. of the Treaty and the doses' and 'maximum permissible levels of Convention pursue the same basic objec- exposure and contamination' (Article 30(2) tive, namely the protection of persons and of the Treaty) and in ensuring that those the environment against ionising radiation. doses or levels are applied (Article 2(b) of the Treaty). The disputed provisions of the Convention, however, concern directly the planning, construction and operation of nuclear installations and therefore fall within the exclusive competence of the 118. Third, the scope of application of Member States. Articles 30 et seq. of the Treaty includes and goes beyond the scope of the Con- vention, which applies only to the safety of nuclear installations (Article 3 of the Con- vention). That is because the Treaty applies to the protection against ionising radiation whatever its source 49 and the concept of 121. Third, competence of the Community 'source emitting ionising radiation' as cannot be derived from the Basic Standards defined in Article 1 of the Basic Standards Directive since pursuant to Article 30(2) of Directive expressly includes installations. the Treaty that directive may only lay down the basic standards for radiation protection and thus 'maximum doses compatible with adequate safety' and 'maximum levels of exposure and contamination'. It follows moreover from Article 2(1) of the Basic Standards Directive that its scope of appli- 119. The Council replies, first, that as cation is limited to 'practices' and that it regards Articles 1 to 5 of the Convention does not therefore cover 'installations'. a delimitation of competence is not needed.

124. High doses of radiation will cause 127. The discipline of radiation protection, inevitable detrimental effects (deterministic on the one hand, is primarily concerned effects) if the dose exceeds a threshold with the protection of the health of people value. Examples of deterministic effects against exposure to ionising radiation or include erythema and acute radiation syn- radioactive materials. It is dominated by drome (radiation sickness). The higher the public health experts and focuses on per- dose, the greater the severity of those sons and the radiation doses to which they effects. The primary protection objective should be exposed. Radiation protection is then to prevent high radiation doses started as a subdiscipline of medical radi- which occur for example on the site of a ology, because the radiation doses delivered major nuclear accident. by the first X-ray generators were so high that the medical personnel involved soon suffered from deterministic radiation 50 — See B. Lindell, H. Dunster, J. Valentin 'International effects. Later its field was extended to Commission on Radiological Protection: History, Policies, Procedures', website of the ICRP, www.icrp.org. protection against ionising radiation from

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all types of sources (e.g. sources in the radiation doses are kept below prescribed nuclear energy sector, in medical institu- limits and as low as reasonably achievable. tions or in research facilities). In the 1950s There is moreover evidence that the bor- radiation protection experts still assumed derlines between both disciplines are that exposure to radiation below certain becoming more blurred. dose limits would not have any harmful health effects at all. From 1977 onwards, in the light of long-term studies of the stoch- astic effects of radiation, the ICRP recom- mended the combination of dose limits with the ALARA principle.

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lishing and maintaining in nuclear instal- sources of radiation such as nuclear instal- lations effective defences against radiologi- lations. cal hazards' is 'complemented' by a 'radi- ation protection objective' and a 'technical safety objective'. The three most important publications of the IAEA Safety Standards programme ('Safety Fundamentals') which in the past dealt separately with 'The Safety of Nuclear Installations', 'Radiation Pro- tection and the Safety of Radiation Sources' and 'The Principles of Radioactive Waste (b) 'Health and safety' in the Euratom Management' are currently merged into a Treaty single publication entitled 'Objectives and Principles of Nuclear, Radiation, Radio- active Waste and Transport Safety'. In organisational terms the Department of Nuclear Safety now coordinates both the Nuclear Installations Safety Division and 133. The priority of the authors of the the Radiation and Waste Safety Division. Euratom Treaty was to create the con- ditions necessary for the speedy establish- ment and growth of nuclear industries (Article 1 of the Treaty). They were how- ever also aware that workers and the general public had to be protected against the dangers of ionising radiation.

— the day-to-day monitoring of nuclear installations by the authorities of the Member States under the control of the Community.

— monitoring not directly of nuclear installations, but of control facilities (Article 35 of the Treaty), 135. The authors of the Treaty however gave the Community more limited powers: 54

— recommendations (Articles 33 and 38(1) of the Treaty) and legally binding — the laying down of basic standards for directives in cases of urgency (Ar­ the protection of the health of people, ticle 38(2) of the Treaty).

138. On the one hand, I consider that despite the subsequent developments of — the objectives of those provisions; the disciplines of nuclear safety and radi- ation protection outlined above the basic decision of the authors of the Treaty must be respected. The Member States clearly wished to retain technological control over the installations on their territories. As — the possibility to 'revise' and 'supple- Community law stands, they therefore ment' the basic standards under possess in my view exclusive (or virtually Article 32 of the Treaty; exclusive) competence over the technologi- cal aspects of nuclear safety as it is under- stood today. In that regard it is significant that the Community has never adopted legislation on the technological aspects of nuclear safety and that the main Commu- — the evolution over time of the scientific nity instruments in that field are two and international legal background of non-binding Council resolutions. 55 It those Articles; should however be borne in mind that externally, notably in Central and Eastern Europe and the New Independent States, 56 — See, for example, Council Decision 1999/25/Euratom of 14 December 1998 adopting a multiannual programme the Community undertakes many activities (1998 to 2002) of actions in the nuclear sector, relating to safe transport of radioactive materials and to safeguards and industrial cooperation to promote certain aspects of the safety of nuclear installations in the countries currently participating in the Tacis programme, OJ 1999 L 7, p. 31; 55 — See OJ 1975 C 185, p. 1 and OJ 1992 C 172, p. 2; see also see in that context also the Resolution of the European the Commission report on the implementation of those Parliament of 11 March 1999, OJ 1999 C 175, p. 288. Council Resolutions: 'Towards a System of Safety Criteria and the Proposal of 31 August 2001 for a Council and Requirements Recognised throughout the Community Decision approving the signing by the Commission of a and a Genuine Safety Culture throughout Europe, Cooperation Agreement between tne Euratom Community COM(93) 649. and Russia in the field of nuclear safety, COM(2001) 474.

— justification of exposure: all classes and types of practice (e.g. the operation of a nuclear installation) resulting in expo- 141. Second, under Article 32 of the Treaty sure to radiation must be justified the basic standards may be not only before being first adopted or first 'revised', but also 'supplemented'. The approved by their benefits in relation authors of the Treaty thus wanted to ensure to the health detriment they may cause that the Community would be able not 58 — See above at paragraph 43. 59 — See for example Recital 3 of the preamble to Council 57 — Ruling 1/78, cited in note 45, paragraph 20. Directive 76/579/Euratom, cited in note 10.

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(Recital 10 of the preamble and standards (Recital 13 of the preamble Article 6(1) and (2)); and Articles 43 to 46);

— optimisation of protection: all expo- — the concepts of potential exposure and sures must be kept as low as reasonably emergency preparedness (Recital 14 of achievable, economic and social factors the preamble and Articles 48 to 53). being taken into account (Recital 10 of the preamble and Article 6(3)(a));

143. Moreover, after the nuclear accident at the Chernobyl nuclear power station on 26 April 1986 the Council supplemented — dose limitations: the sum of doses from the basic standards by several measures all relevant practices must not exceed which are based on either Article 31 alone certain dose limits (Recital 10 of the or Articles 31 and 32 of the Treaty and preamble and Article 6(3)(b)); which cover issues most probably not directly envisaged by the authors of the Treaty. Those measures concern for example:

145. Today, however, it is clear that the stochastic effects of radiation can only be — the supervision and control of ship- limited if radiation exposure is optimised ments of radioactive waste between and kept as low as reasonably achievable. Member States and into and out of the The ICRP therefore focuses mainly on Community; 64 and 'optimisation of exposure'. Where the wording of a provision of the Treaty necessarily reflects the state of scientific knowledge at a given time and where that knowledge evolves, it would in my view be wrong to attach too much importance to — shipments of radioactive substances that wording. The Council and the Com- between Member States. 65 mission were therefore wholly justified in following and incorporating the evolution of scientific knowledge in the field of radiation protection when they revised and supplemented the basic standards over the years. 144. Third, it follows in my view from the evolution of the scientific and international background that the definition of 'basic standards' in Article 30(2) of the Treaty cannot be relied on for the determination of the current scope of Articles 30 to 32 of the 1 4 6 . F o u r t h , the c o n c o r d a n t and consistent practice of the Member States 62 — Council Regulation (Euratom) No 39S4/87 of 22 De- (mainly via the Council) and of the institu- cember 1987, OJ 1987 L 371, p. 11. 63 — Council Directive 90/641/Euratom of 4 December 1990, OJ 1990 L 349, p. 21. 64 — Council Directive 92/3/Euratom of 3 February 1992, 66 — According to the Spaak Report, cited in note 53, the OJ 1992 L 35, p. 24. negotiators of the Treaty attached particular importance to 65 — Council Regulation (Euratom) No 1493/93 of 8 June a report from the ICRP on the maximum radiation doses 1993, OJ 1993 L 148, p. 1. which the human body could sustain.

148. Interpretation in the light of sub- sequent practice is a common feature of the interpretation both of international treaties 68 and of national constitutions. 150. Finally, the p r o p o s i t i o n t h a t An interpretation in the light of subsequent Articles 30 et seq. of the Treaty should be practice is particularly legitimate and interpreted broadly is also confirmed by the appropriate where the provisions in ques- Court's case-law. In Saarland v Minister for tion were drafted long ago, where they Industry, which concerned the nuclear have not been amended since and where power plant at Cattenom in France, the Court ruled that those provisions formed 'a coherent whole conferring upon the Com- 67 — Case C-327/91 France v Commission [1994] ECR I-3641, mission powers of some considerable scope paragraph 36 of the judgment; see for a critique of that reasoning P.J. Kuijper, 'The Court and the Tribunal of the EC and the Vienna Convention on the Law of Treaties' 1969, Legal Issues of European Integration, 1998, p. 1. 68 — See Article 31(3)(b) of the Vienna Convention; see also 69 — See on those two chapters and the impact of subsequent I. Sinclair, The Vienna Convention on the Law of Treaties practice, W. Manig, Die Änderung der Versorgungs- und 2nd edition, Manchester University Press, Manchester Sicherheitsvorschriften des Euratom-Vertrages durch die 1984, p. 135. nachgfolgende Praxis, Nomos, Baden-Baden, 1993.

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6. The extent of the Community's com- petence in the fields covered by the Con- vention 154. Both parties agree on the proper method of proceeding, namely to start with the obligations (or rights) arising under the 152. Under Article 101(1) of the Treaty the contentious provisions of the Convention Community may conclude international and to examine whether the Community agreements 'within the limits of its powers has powers to implement those obligations and jurisdiction'. Euratom's external com- (or to exercise those rights).

70 — Case 187/87, cited in note 18, paragraph 11. 73 — I. MacLeod, I.D. Hendry, S. Hyerr. The External Relations 71 — Cited in note 62. of the European Communities, Clarendon Press, Oxford, 72 — Case 70/88, cited in note 49, paragraph 14 of the 1996, p. 392. judgment. 74 — See above at paragraph 98.

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155. Both parties agree also that the Com- necessary to pursue that question. Where it munity must include a provision of the is not clear whether a statement on the Convention in its declaration indepen- nature of the Community's competence dently of whether its competence is exclus- (exclusive or shared) is required, it may ive or shared with the Member States. A however be appropriate to follow the provision of the Convention must thus be Court's recommendation in Ruling 1/78 included in the declaration even where the and to consider the issue as an internal Community shares the implementing matter. power with the Member States and even where the Community's power consists merely in taking certain 'other' steps necessary for implementation within the meaning of Article 4 of the Convention.

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the measures it has taken to implement the (ii) a system of licensing with regard to obligations of the Convention. nuclear installations;

161. I agree with the Council that the (iii) a system of regulatory inspection and obligations contained in Articles 4 and 5 assessment of nuclear installations; are general in nature and apply by defini- tion to any contracting party, including the organisations referred to in Article 30(4). Those Articles do not therefore require a delimitation of the respective competence of the Community and its Member States. (iv) the enforcement of regulations and of the terms of licences.

(c) Article 7 of the Convention 164. The Commission maintains that the Community possesses competence in those matters according to Articles 2(b), 30, 31, 32 a n d 35 of t h e T r e a t y a n d 162. Article 7(1) of the Convention Articles 4(1)(a), 38(1) and 46 and Title VI requires the contracting parties to establish of the Basic Standards Directive. and maintain a legislative and regulatory framework to govern the safety of nuclear installations.

165. The Council submits that the Com- mission's argument is fundamentally 163. Under Article 7(2) that legislative and flawed. Whereas the overall objective of regulatory framework must provide for: the Treaty and the Convention, namely protection against the harmful effects of radiation, may be similar, the means of achieving that objective are very different. While the Convention is concerned with the safety of nuclear installations as such, the Community measures are only con- (i) the establishment of national safety cerned with laying down minimum require- requirements and regulations; ments for the protection of persons against

the dangers of ionising radiation. The incorporate radiation protection aspects of Treaty thus entitles the Community to safety (e.g. Article 15 of the Convention). impose only 'obligations of result' on the Member States, but not to specify how those results are to be achieved and in particular how nuclear installations should be designed or operated. 167. I consider therefore that the Commu- nity has certain limited regulatory compet- ence in the matters covered by Article 7 of the C o n v e n t i o n , which flow from Articles 2(b), 30, 31 and 32 of the Treaty as they must now be understood. That regulatory competence is exercised for example by Articles 3 to 5 (reporting and authorisation) and Articles 43 to 47 (oper- ational protection of the population in normal circumstances) of the Basic Stan- dards Directive. The fact that the Member States retain exclusive competence over the 166. In my view, it must first be borne in technological aspects of nuclear safety does mind that whilst not all ionising radiation not prevent the Community from adopting emanates from nuclear installations, all legislation which establishes certain safety nuclear installations are a potential source requirements, authorisation requirements, of ionising radiation and thus necessarily inspection and assessment requirements or also of concern for radiation protection. enforcement mechanisms. There is no provision of Community law which immunises nuclear installations from the scope of radiation protection. Second, it is true that both the Treaty and the Con- vention seek on their own terms to deal with the fact that all nuclear activity 168. The Council argues more specifically involves a potential radiation risk for the that: population. But even if their respective fields of application do not coincide, they overlap significantly. In the light of current scientific knowledge, it is neither possible nor desirable to maintain artificial barriers between the disciplines of radiation pro- — it referred to Article 7(1) in the second tection and nuclear safety. From a legal paragraph of the declaration; perspective it is also evident that modern radiation protection systems such as the Basic Standards Directive are increasingly source-oriented and therefore necessarily also regulate aspects of the safety of installations. Conversely modern systems — subparagraph (i) of Article 7(2) is of safety legislation such as the Convention inapplicable to the Community since at issue follow an integrated approach and it refers to 'national' requirements and

— in any event the competence of the Community could not be deduced from Article 4(1 )(a) of the Basic Standards Directive which is purely incidental and, in addition, subject to the con- — nuclear installations within the mean- siderable exceptions of Article 4((3) ing of the Convention do not fall thereof. outside the scope of the Basic Stan- dards Directive: that directive applies to all practices which involve a risk from radiation emanating from an artificial or natural radiation source 169. As to those specific arguments I and thus inter alia to the production, consider that: processing, handling, use, holding, storage and disposal of radioactive substances (Article 2(1)); 'source' is moreover expressly defined as an apparatus, a radioactive substance or an installation capable of emitting — the second paragraph of the declar- radiation or radioactive substances ation is not at issue in the present case; (Article 1);

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— Article 4(1 )(a) of the Basic Standards 172. The Commission maintains that the Directive which subjects the operation Community possesses competence in those and decommissioning of any facility of matters according to Articles 35, 36 and 38 the nuclear fuel cycle to prior auth- of the Treaty and Articles 44, 38 and 46 of orisation is a central provision of the the Basic Standards Directive. directive.

173. The Council submits that: 170. Article 7 should accordingly have been included in the declaration.

— it referred to Article 14(ii) in the sec- ond paragraph of the declaration since the Community possesses powers as regards the monitoring of continued (d) Article 14 of the Convention conformity with safety requirement;

— the second paragraph of the declar- 174. I consider that under Articles 2(b) and ation is not at issue in the present case; 30 to 32 of the Treaty the Community has regulatory powers, albeit limited, in the matters covered by Article 14 of the Con- vention which are exercised for example by Articles 44, 38 and 46 of the Basic Stan- dards Directive. Article 44(1)(a) of that directive requires the Member States to examine and approve plans for installations and of the proposed siting of such instal- — the fact that the Community has (al- lations from the point of view of radiation legedly) no powers to carry out evalu- protection, Article 44(1)(b) requires them ations prior to the construction and the to accept such new installations into service putting into effect of individual nuclear only if adequate protection is provided and installations does not mean that it has Articles 38(1) and 46(1) require them to no legislative powers to oblige the establish systems of inspection in respect of Member States to establish such a the protection of exposed workers and of system of prior assessment; paragraph the health of the population. (i) of Article 14 of the Convention refers moreover not only to assess- ments before construction but also to assessments throughout the life of a nuclear installation;

175. Under Article 37 of the Treaty (as interpreted by the Court in the Cattenom judgment 76) and Article 38 of the Treaty the Community also has its own powers to — it is true that under Article 35(2) the monitor nuclear installations which partly Commission has only the power to overlap with the matters covered by control monitoring facilities, but that Article 14 of the Convention. 77 has no bearing on its regulatory powers to prescribe assessments or verifi- cations by the Member States or its 76 — Case 187/87, cited in note 18. own m o n i t o r i n g powers under 77 — See below at paragraphs 201 to 207. Articles 37 and 38 of the Treaty;

179. Under Article 16(2) the contracting parties must take the appropriate steps to 182. The Commission maintains that the ensure that, in so far as they are likely to be Community possesses competence in the

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186. Article 16(1) and (3) should accord- (iv) consulting contracting parties in the ingly have been included in the declaration. vicinity of a proposed installation, and on request providing the necessary information to such contracting parties, in order to enable them to evaluate and make their own assess- ment of the likely safety impact on their own territory of the nuclear installation.

(g) Articles 17, 18 and 19 of the Conven- tion

188. In respect of Article 17 of the Con- vention the Commission submits that the Community possesses competence accord- 187. Under Article 17 the contracting ing to Articles 2(b), 30 to 32 and 37 of the parties must take the appropriate steps to Treaty and Article 44(1)(a) and (b) of the ensure that procedures are established and Basic Standards Directive. The Commission implemented for: refers also to C o u n c i l D i r e c t i v e 85/337/EEC of 27 June 1985 on the assess- ment of the effects of certain public and private projects on the environment 78 as amended by Council Directive 97/11/EC, 79 which requires 'nuclear power stations and other nuclear reactors' to be made subject (i) evaluating all site-related factors likely to an environmental impact assessment. to affect the safety of a nuclear instal- lation for its projected lifetime;

189. Under Article 18 the contracting parties must take the appropriate steps to ensure that: (ii) evaluating the likely safety impact of a proposed installation on individuals, society and the environment;

190. In respect of Article 18 of the Con- vention the Commission submits that the design and the construction of a nuclear installation must guarantee that it can be operated in compliance with the Basic (iv) procedures are established for respond- Standards. In that regard for example ing to anticipated operational occur- Article 18 (establishment of supervised rences and to accidents; and controlled areas), Articles 9 and 13 (dose limits for workers), Article 43 (oper- ational protection of the public) and Article 6(3)(b) of the Basic Standards Directive must be complied with. (v) necessary engineering and technical support in all safety-related fields is available throughout the lifetime of a nuclear installation; 191. Under Article 19 the contracting parties must take the appropriate steps to ensure that:

(vi) incidents significant to safety are reported in a timely manner by the (i) the initial authorisation to operate a holder of the relevant licence to the nuclear installation is based on an regulatory body;

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(vii) programmes to collect and analyse Articles 18 and 19 of the Convention or operating experience are established, any such competence is so insignificant that the results obtained and the con- it should not be declared to the other clusions drawn are acted on and contracting parties. experience is shared with international bodies and with other operating organisations and regulatory bodies;

193. In my view, either the Community has no competence in the matters covered by 195. However, as Community law stands, the Member States retain, as I have already stated, exclusive competence for the tech- 80 — See above at note 18. nological side of nuclear safety. Even if

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radiation protection must be understood a nuclear installation must be chosen on the broadly and the wording of Article 30(2) of basis of an assessment of both technologi- the Treaty is to a certain extent outdated, it cal 'safety' aspects (for example seismo- is nevertheless clear that the authors of the logical, meteorological and hydrologicai Treaty did not intend the Community to features of the site) and 'radiation protec- interfere with safety of nuclear installations tion' aspects (for example demographical stricto sensu. features of the site or the foodstuffs grow- ing in the region). Those radiation pro- tection aspects seem to be envisaged by Article 17(ii) of the Convention which mentions the 'likely safety impact of a proposed nuclear installation on individ- uals, society and the environment'. 196. The Council was accordingly right not to include Articles 18 and 19 of the Con- vention in the declaration.

extend beyond the perimeter, taking 203. According to Commission Recom- into account, if relevant, demographic, mendation 1999/829/Euratom of 6 De- meteorological, geographical, hydro- cember 1999 on the application of logical and ecological conditions. Article 37 of the Euratom Treaty 81 the term 'disposal of radioactive waste' covers any planned disposal or accidental release of radioactive substances associated with operations such as the operation of nuclear reactors, the reprocessing of irradiated fuel or the storage of irradiated nuclear fuel in gaseous, liquid or solid form in or to the 200. It follows that the Community has a environment. It thus encompasses both r e g u l a t o r y c o m p e t e n c e based on planned liquid and gaseous effluent dis- Articles 31 and 32 of the Treaty and charges of nuclear installations under nor- exercised by the Basic Standards Directive mal operating conditions and unplanned to require the Member States to examine effluent discharges which could result from and approve the proposed site of an an accident. installation from a radiation protection point of view and to take the siting into account when they accept new installations into service

204. According to the same recommen- dation 'general data' within the meaning of Article 37 should be understood, in the context of the operation of a nuclear 201. Second, Article 37 of the Treaty reactor, as including data on the site and requires each Member State to provide the the surroundings of the planned installation Commission with such general data relat- and in particular data on the geographical, ing to any plan for the disposal of radio- topographical, geological, seismological, active waste in whatever form as will make hydrological, meteorological features of it possible to determine whether the imple- the site and region, on the natural resources mentation of such plan is liable to result in and foodstuffs of the region and on other the radioactive contamination of the water, activities in the vicinity of the site. soil or airspace of another Member State.

power plant, the Court interpreted radioactive contamination of the water, Article 37 as meaning that the Commission soil or airspace of another Member State. must be provided with such 'general data' before a 'disposal of radioactive waste' is authorised by the competent Member State and that the Commission's opinion must, in order to be rendered fully effective, be brought to the notice of that State before the issue of any such authorisation. 207. It follows that under Article 37 of the Treaty the Commission possesses compet- ence to draw up Opinions on the siting of nuclear installations from a radiation pro- tection point of view. That type of non- binding measure might be meant by Article 4 of the Convention which refers in addition to legislative, regulatory and administrative measures also to 'other steps necessary for implementing' the obligations 206. It is thus constant practice under of the Convention. Article 37 of the Treaty that the Member States provide 'general data' to the Com- mission inter alia on the site and the surroundings of a planned facility in the course of the national authorisation pro- cedures for the operation of nuclear power plants, 83 reprocessing facilities, 84 and stor- 208. It should perhaps also be noted that age facilities. 85 On the basis of those the Council did not mention the siting of notifications and following consultation nuclear installations when it stated in the with the group of national experts referred preamble to the contested decision of to in Article 31 of the Treaty the Commis- 7 December 1998 that the competence for sion has already drawn up a considerable the 'design, construction and operation' of number of Opinions. 86 In those Opinions nuclear installations lay with the Member the Commission examines in particular the States in which they were located. Aspects features of the site of the planned instal- of siting are in my view within the Com- lations (e.g. distance to the nearest other munity's competence, so that the declar- Member State, natural features of the site). ation should have referred to Article 17 of It assesses primarily whether the planned the Convention. installations are liable to lead to an expo- sure, significant from the point of view of health, of members of the population of another Member State or to significant

212. Since the Commission has failed in its arguments as regards Articles 1 to 5, 18 and 19 of the Convention each party should bear its own costs. I - 11279

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213. Accordingly the Court should in my opinion:

( 1 ) annul the third paragraph of the Declaration by the European Atomic Energy Community according to Article 30(4)(iii) of the Nuclear Safety Convention, attached to the Council decision of 7 December 1998 approving the accession of the European Atomic Energy Community to the Nuclear Safety Con- vention, in so far as it fails to state that the Community is competent in the fields covered by Articles 7, 14, 16(1) and (3) and 17 of the Convention;

(2) order each party to bear its own costs.

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