3 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 3.6 below)
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| Department | Trade and Industry
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| Basis of consideration | Minister's letter of 30 October 2003 and oral evidence of 2 December 2003[5]
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| Previous Committee Report | HC 63-xxix (2002-03), paragraph 8 (10 July 2003)
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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; further information awaited
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Background
3.1 In November 2002, the Commission produced a Communication,
Nuclear safety in the European Union, in which it argued
that the conditions needed to establish a greater Community involvement
in nuclear safety matters had now been met.[6]
It followed up that Communication in January 2003 by producing
two legislative proposals, one concerned with the management of
radioactive waste,[7] and
the current document which deals with the safety of nuclear installations.
3.2 The Commission's rationale for its proposal on
nuclear installations was set out in its Communication (and summarised
in our Report of 10 July 2003), though it also cited a subsequent
judgement[8] by the European
Court of Justice, in which the Court had 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.
3.3 The proposal itself, which would apply to all
nuclear installations, addresses three aspects of nuclear safety
— the setting of minimum standards, 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 maintain effective
arrangements against potential radiological hazards and nuclear
accidents; to ensure that due priority is given to nuclear safety;
to require nuclear installations to be operated in accordance
with common safety standards; and to ensure that nuclear safety
experts are available, and the necessary inspections carried out.
The proposal would also require Member States to ensure that adequate
decommissioning funds, with their own legal personality, are generated
during the operation of a nuclear installation to ensure its safety
and in particular to cover decommissioning costs.
3.4 In our Report, we noted that, 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) had expressed a number of concerns
about the proposal. These related to the Commission's competence,
where he suggested that the recent Court ruling, cited by the
Commission, had 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 proposal, and where the Council's Atomic
Questions Group had asked the Council's Legal Service for an opinion;
the possible use of Article 203[9]
of the Euratom Treaty as a further legal base; the need
to clarify the way in which certain of the obligations imposed
by the proposal would apply in the UK; and concerns on subsidiarity
grounds as to whether the proposal would add any value to
the existing nuclear regime, which involves national regulation
within the framework of the International Atomic Energy Agency
(IAEA). The Minister doubted whether there was any benefit in
taking further legislative action, but said that the possibility
of a non-binding instrument, such as a Council Resolution or Recommendation,
had found favour with a number of Member States, including the
UK.
3.5 Our own conclusion was that, since the proposal
not only dealt with a subject of intrinsic importance, but also
raised a number of material questions, particularly as regards
the Commission's competence in this area and the subsidiarity
principle, we were minded to recommend it for debate in European
Standing Committee C. However, we said that we wished first to
take oral evidence from the Minister.
Minister's letter of 30 October 2003
3.6 We subsequently received a copy of a letter of
30 October from the Minister to the Chairman of the House of Lords
Committee, in which he said:
- That, so far, discussions in
the Council's Atomic Questions Working Group had focussed on whether
it would be appropriate to move forward on the basis of a Directive,
or whether any Community intervention should be limited to some
kind of non-binding instrument, as the UK would prefer. Together
with Finland and Sweden, the UK had drafted the text of such an
instrument, which had been circulated as a Council document, whilst
the Italian Presidency had made two attempts at revising the draft
Directive to make it more appealing to all Member States.
- That the latest version of the Directive gave
the impression of having watered down the original Commission
draft, with national responsibility for nuclear safety now being
recognised amongst the "whereas" clauses, there being
no specific references to the development of common Community
safety standards. However, the draft still included a series
of specific requirements, based on the Convention on Nuclear Safety,
which would arguably give the Commission considerable scope for
interfering with national regulatory decisions on nuclear safety,
and there was nothing in the latest text to change the UK's view
that it would not be appropriate for the Community to introduce
legislation in this field.
- That the Atomic Questions Group had yet to embark
on an article-by-article discussion of either the Presidency draft
or the text of the non-legally binding instrument, though the
Presidency had indicated that discussions in the November meetings
of the Group would continue to revolve around the respective merits
of these two approaches. The non-legislative approach tabled by
the UK, Finland and Sweden had also attracted support from Germany
and Belgium, but the issue was unlikely to be resolved until much
closer to the end of the Italian Presidency.
3.7 The Minister also said that, should an article-by-article
discussion ensue later in the year, he would submit a supplementary
Explanatory Memorandum covering the version of the draft Directive
current at that time, and that this would include the results
of the Government's formal consultation on the proposal.
Oral evidence
3.8 When he appeared before us on 2 December 2003,
the Minister began by saying that two further versions of the
Presidency's compromise text had been considered, and that, as
a result, the draft now on the table differed considerably from
the one submitted with his Explanatory Memorandum in June (Q2).[10]
Thus, specific references to the development of common Community
safety standards had been removed; uranium mines and holders of
sealed sources, such as hospitals and research institutions, would
not now be treated as nuclear installations for the purposes of
the Directive; and an additional article had been inserted confirming
the national responsibility for the safety of nuclear installations.
In addition, all the detailed provisions on financial resources
had been removed, including the proposed requirement for the segregation
of decommissioning funds; as a result, the proposal would now
simply require Member States to ensure adequate financial resources
were available to ensure the safety of nuclear installations,
including during decommissioning, in line with the advice of the
Council Legal Service that the Euratom Treaty does not provide
an adequate legal base for detailed rules in this area. Lastly,
the Commission would not be empowered to undertake verifications
of the national safety authorities using experts from Member States:
instead, reviews of the national regulatory bodies would be undertaken
by a regulatory authorities' committee, comprising representatives
of the national regulatory bodies, and that committee, rather
than the Commission, would draw up a review programme.
3.9 However, the Minister went on to stress that,
although a number of these amendments had been helpful, they
did not — and could not — resolve the UK's fundamental
concerns about adopting a legally binding instrument, which would
open the way to Community involvement in decisions on nuclear
safety, which the Government considers can properly be taken only
by the Member States and national regulators. In particular,
a Community approach would run counter to the key principle enshrined
in the Convention on Nuclear Safety that nation states should
be responsible for the safety of nuclear installations within
their jurisdiction. The Minister also said that, on 26 November,
the Italian Presidency had asked COREPER for a political decision
on whether to pursue a legally binding or non-legally binding
approach. The UK, Germany, Sweden and Finland had opposed the
Commission's approach, as had Lithuania and the Czech Republic.
Consequently, the Presidency had concluded that, whilst most
could accept an approach based on a Directive, some could not,
and it had therefore left it to the incoming Irish Presidency
to decide how to take the matter forward.
3.10 We pursued a number of points raised by the
Minister in more detail. On the opinion of the Council Legal
Service, the Minister said that this had confirmed the competence
of the Community to make general rules in the area of nuclear
installation safety for the purpose of protecting workers and
the general public from the effects of ionising radiation. In
particular, the areas covered by the Directive fell within the
legislative competence of the Community by virtue of Articles
31 and 32 of the Euratom Treaty (Q3). On whether Article 203
of that Treaty could be used as a legal base, he confirmed that
the Article provided a suitable base for Community legislation
where the Euratom Treaty did not provide sufficient powers for
the Community to legislate, but he said that the Council Legal
Service's opinion was very clear that Article 203 was not necessary
in the areas covered by the proposal, because the combination
of Articles 31 and 32(2)(b) of the Euratom Treaty already provided
sufficient powers for the Community to legislate in the areas
proposed (Q4).
3.11 On support for a non-legally binding alternative
to a Directive, he said that, in addition to the Member States
he had referred to, there were some others, such as Denmark, and
possibly the Netherlands, which might be able to support the UK
position, but that all the other existing Member States had indicated
their support for a Directive. Consequently, although there was
at the moment a blocking minority, it was not clear whether other
Member States would join it (Q5).
3.12 As regards some of the practical implications
of the proposal, the Minister said that the UK supported the principle
that nuclear generators should ensure that there are sufficient
resources to meet decommissioning requirements, and that the biggest
operator in the UK (British Energy) already have segregated funds,
separately managed. However, he added that, where the Government
has undertaken to fund the cost of decommissioning, it must be
free to arrange for this to be met in the most cost-effective
way. We were also told that the UK operates a very non-prescriptive
regime in this area, which would be at risk if a legally-binding
Directive were to be introduced, and that this might also increase
the pressure for a harmonisation of the very different systems
currently in place in the different Member States (Q6). It was
also suggested that it would be perfectly possible to spread best
practice among Member States by means of a non-legally binding
instrument, particularly as all Member States have signed the
Nuclear Safety Convention and contribute to the development of
standards through the International Atomic Energy Agency (Q7).
3.13 Finally, it was confirmed that the current
proposals were not concerned with nuclear security against a terrorist
threat, and moreover that, in the view of the UK, this was a matter
best dealt with nationally (Q11).
Conclusion
3.14 We are grateful to the Minister for this
further information, from which we have noted that the Council
is unlikely to return to this subject until the New Year, at the
earliest. We have also noted that opinion remains divided on
the central issue of whether there should be a legislative or
a non-binding instrument. In view of this, we think it right
to continue to hold the document under scrutiny pending further
developments, and also to reserve judgement on whether a debate
in European Standing Committee C is necessary.
5 To be published as HC 70-i. Back
6
(24146) 14875/02; see HC 63-xxix (2002-03), paragraph 18 (10 July
2003). Back
7
(24704) 8990/03; see HC 63-xxix (2002-03), paragraph 4 (10 July
2003). Back
8
Case C-29/99. Back
9
This allows the Community to act in areas where it has competence,
but insufficient powers to act in the way proposed. Back
10
'Q' indicates questions and answers in the oral evidence from
the Minister. Back
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