8. Safety of nuclear installations
| (24577)
8990/03
COM(03) 32
| Part I: Draft Council Directive (Euratom) setting out basic obligations and general principles on the safety of nuclear installations.
|
| Legal base | Articles 31, 32 and 187 Euratom; consultation; QMV (but see paragraph 8.6 below)
|
| Document originated | 30 January 2003
|
| Deposited in Parliament | 3 June 2003
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| Department | Trade and Industry
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| Basis of consideration | EM of 26 June 2003
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| Previous Committee Report | None, but see paragraph 8.1 below
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; oral evidence requested
|
Background
8.1 As we have reported in paragraph 18 below, the Commission
produced in November 2002 a Communication, "Nuclear safety
in the European Union", in which it argued that the legal
and political conditions to establish a greater Community involvement
in nuclear safety matters had now been met. More specifically,
it suggested the need for coordinated action in two areas —
the safety of nuclear installations, and the management of spent
nuclear fuel and radioactive waste — particularly in the
light of the forthcoming enlargement. It has now followed up
that Communication by producing two legislative proposals. The
one concerned with waste management is reported upon in paragraph
4 above, whilst this paragraph deals with the safety of nuclear
installations.
The current proposal
8.2 The Commission's rationale for this proposal is essentially
contained in its Communication (and summarised in paragraphs 18.3
to 18.5 below), though it also cites a subsequent judgement[22]
by the European Court of Justice, in which the Court said that,
even though the Euratom Treaty does not grant the Community competence
to authorise the construction or operation of nuclear installations,
the Community possesses legislative competence under Articles
30 to 32 of that Treaty to establish, for the purpose of health
protection, an authorisation system which must be applied by the
Member States.
8.3 The proposal, which would apply to all nuclear installations,
addresses three aspects of nuclear safety, in the form of a framework
Directive based on the Nuclear Safety Convention[23]
of the International Atomic Energy Agency (IAEA), setting out
a number of basic obligations and general principles. The three
aspects are the need to set minimum standards, the importance
of independent verification of the actions of Member States in
this area, and the continuing need for radiological protection
after the active life of a nuclear installation. More specifically,
it would require Member States:
- to establish an independent nuclear authority to supervise
and regulate safety in nuclear installations, to grant licences,
and to monitor the application of regulations regarding their
siting, design, construction, commissioning, operation and decommissioning;
- to take the measures necessary to establish and maintain effective
arrangements against potential radiological hazards, to prevent
nuclear accidents (and to mitigate the consequences of any which
do occur), and to ensure the long-term management of all materials,
including radioactive waste and spent nuclear fuel, produced in
the course of decommissioning, in order to protect workers and
the general public;
- to ensure that due priority is given to nuclear safety in
the course of all practices directly related to nuclear installations;
- to require those responsible for nuclear installations to
operate them in accordance with common safety standards, to establish
quality assurance programmes, and to allocate responsibility for
any decommissioning;
- to ensure that nuclear safety experts are available, and that
the necessary inspections are carried out by the relevant authority;
- to take steps to ensure that adequate financial resources
are available to ensure the safety of nuclear installations, and
in particular that these are sufficient to cover the decommissioning
costs of each installation: in particular, funds for decommissioning
should be based on contributions during their operation from those
responsible for nuclear installations, and have their own legal
personality, in order to ensure that they are used only for the
intended purpose;
- to establish procedures to deal with operating incidents and
accidents, and (where significant) for these to be notified to
the responsible authority, together with any corrective measures
taken.
8.4 These measures could be revised using the procedure laid down
in the Euratom Treaty,[24]
and would be backed up by a verification system operated by the
Commission, which would be able to call upon nominated national
experts, and which would send its report to the Member State concerned
(which would then have three months to indicate how it intends
to remedy any shortcoming).
The Government's view
8.5 In his Explanatory Memorandum of 26 June 2003, the Minister
of State for Energy, E-Commerce and Postal Services at the Department
of Trade and Industry (Mr Stephen Timms) has expressed a number
of concerns about the proposal.
8.6 First, he says that the recent ruling of the European Court
of Justice, cited by the Commission to support its view that it
has competence to make this proposal, has not made it possible
to reach a clear view as to whether the competence or powers available
to the Commission are wide enough to introduce Community legislation
in all the areas covered by the draft Directive, especially as
regards the detailed rules envisaged for managing decommissioning
funds. He adds that the Commission has also sought to include
provisions based upon aspects of the International Convention
on Nuclear Safety, for which competence was not claimed in the
Court case. In view of this, the Council's Atomic Questions Group
has asked the Council's Legal Service for an opinion. The Minister
also says that, if the Commission is considered to have insufficient
powers, the question arises as to whether Article 203[25]
of the Euratom Treaty could be used as a further legal base, though
he points out that this would not assist in areas where the Community
has no competence at all. It would also mean that, instead of
the Council acting by qualified majority, unanimity would be required.
8.7 Secondly, the Minister says that the obligations which the
proposal would impose are, for the most part, already reflected
in UK law, but that there are some areas which need to be clarified.
These include whether the Environment Agency (which does not have
a wider safety role in this area) would be able to license nuclear
installations; the possible need for specific provisions to allow
the establishment of quality assurance programmes; and the difficulties
which the proposals on separate decommissioning funds would create,
where, in accepting responsibility for public sector nuclear liabilities,
the Government is proposing to establish a statutory segregated
account, which provides a rolling commitment to ensure the necessary
funds are available as decommissioning falls due.
8.8 Thirdly, the Minister has serious doubts on subsidiarity
grounds as to whether the proposal will add any value to the
existing nuclear regime, which involves national regulation within
the framework of the International Atomic Energy Agency (IAEA).
He says that much of what is proposed would duplicate existing
mechanisms, and that, since the Commission has no technical expertise
in this field, it would need to rely on experts from Member States,
who would have to be taken away from their current duties, thereby
reducing their effectiveness. He also points out that the Council
has already analysed nuclear safety in the candidate countries,
and that several of these have made legally binding commitments
to ensure that they reach levels comparable with those in the
existing Member States, and he doubts whether there is any benefit
in taking further legislative action. However, he says that the
possibility of a non-binding instrument, such as a Council Resolution
or Recommendation, has found favour with a number of Member States,
including the UK.
8.9 Finally, the Minister says that, although the Government's
informal consultation exercise earlier this year elicited only
a very small response, concerns were raised over the expertise
available to the Commission, the proposed legal base, and, more
particularly, the suggestion that the proposals should be implemented
by May 2004, which was seen as totally unrealistic. He adds that
his department is also discussing with the companies concerned
the implications of the proposal for decommissioning funds, and
that, if it seems that the additional costs of this would be significant,
a Regulatory Impact Assessment will be prepared.
Conclusion
8.10 It is evident that this proposal not only deals with
a subject which is intrinsically important (and which gives rise
to a number of policy and practical implications within the UK),
but also raises a number of important questions, particularly
as regards the Commission's competence in this area and the subsidiarity
principle. We are therefore minded to recommend it for debate
in European Standing Committee C, but wish first to take oral
evidence from the Minister.
22 Case C-29/99. Back
23
This differs from the proposal in one respect, in that it applies
only to nuclear power stations. Back
24
This provides for basic standards to be worked out by the Commission
after obtaining the opinion of a group of scientific experts appointed
by the Scientific and Technical Committee.The Council then establishes
the basic standards following a proposal from the Commission,
and after consulting the European Parliament. Back
25
This allows the Community to act in areas where it has competence,
but insufficient powers to act in the way proposed. Back
|
