Nuclear Package

EUROPEAN COMMISSION TO REVISE ‘NUCLEAR PACKAGE’

(Last updated: 23/03/04.)

The European Commission has made public its decision to revise, by Easter 2004, its proposals for the ‘nuclear package’. The Commission - the EU’s executive and permanent bureaucracy, which formulates policy and proposes legislation – initiated the so-called ‘nuclear package’ of proposed legislation as a measure to cover the future use of nuclear energy in the enlarged European Union (EU).

The Commission’s announcement, on 5 February 2004, was coupled with its indication that its revised proposals of ‘the package’ should take into account the position of the European Parliament (EP), as well as that of the European Council. It is understood that these revisions may include reintroducing a ‘softened’ proposal on decommissioning financing, which has sparked controversy at European Council level. In addition, the revisions are expected to take into consideration research issues concerning radioactive waste management.

(Please click here: to link to the explanation of decommissioning, featured on the EU website, EUROPA.)

The EP, acting in a consultative capacity only, gave its assessment of the proposed legislation, in a series of votes, on 13 January 2004. In parallel with the EP’s debates in the run-up to its votes, the European Council had been discussing the Commission’s proposals at the level of its Atomic Questions Group.

The Atomic Questions Group comprises delegates from the EU member states’ Brussels-based permanent representatives (i.e. civil servants from the offices of member states’ national ambassadors to the EU). This Group has also had subsequent meetings at which the ‘package’ has been discussed. What has remained apparent is that there is a deadlock in the European Council regarding the proposed legislation.

(As regards the European Council, further consideration of the ‘package’ will be by the Committee of Permanent Representatives, COREPER, comprising national high representatives and ambassadors. It is possible that this will take place in spring 2004. Following this, the General Affairs Council, made up of national ministers, will consider the proposed legislation.)

Adoption by enlargement day unlikely

The Commission had hoped that the ‘package’ would be adopted and in place before the EU enlargement on 1 May, but this now looks unlikely.

It was back on 6 November 2002, that the Commission launched the ‘nuclear package’. It aims at EU-wide legislation for safety, decommissioning funds and radioactive waste management. Specifically, the parts of the ‘package’ which the Commission has announced it is revising comprise:

• a draft Proposal for a Council Directive (Euratom), Setting out basic obligations and general principles on the safety of nuclear installations; and

• a draft Proposal for a Council Directive (Euratom), on the management of spent nuclear fuel and radioactive waste.

Note: Directives are binding in the result to be achieved, but each member state shall decide on the form and method of implementation.

Please click here: for the Communication from the Commission to the Council and the European Parliament on Nuclear safety in the
European Union, of 6 November 2002.

Please click here: for the Commission Directorate-General for Energy and
Transport Memo ‘Towards a Community approach to nuclear safety’.

Please click here: for the Commission Proposal for a Council (Euratom) Directive Setting out basic obligations and general principles on the safety of nuclear installations, of 30 January 2003, and for the Commission Proposal for a Council Directive (Euratom) on the management of spent nuclear fuel and radioactive waste, dated 30 January 2003.

The legal basis for the proposed Directives

Article 2(b) of the Euratom Treaty provides for establishing uniform safety standards and for ensuring their application. (This Treaty is one of two founding treaties of the European Union and provides for the establishment of the European Atomic Energy Community, Euratom. The second founding treaty is the Treaty of Rome.) Article 30 of the Euratom Treaty makes specific mention that basic standards are to be laid down for protection against ionising radiations. Whereas Article 32 provides for supplementing basic standards, Article 31 lays down the procedure for this.

European Court of Justice ruling

In December 2002, the European Court of Justice (ECJ) confirmed the Community’s legislative powers with regard to the safety of nuclear facilities. The Court ruled that the technical competence of national authorities with responsibility for safety does not preclude the Community from legislating in this connection.

Please click here: for an overview of the nuclear package’s progressive
stages through the EU bodies and institutions.

Disagreement – the contentious issues

The basic principle of establishing, at EU level, a common frame of reference for nuclear safety has not been widely contentious and is, indeed, supported by the European nuclear industry at large.

For the trade association for the European nuclear industry, the European Atomic Forum, FORATOM, Position Papers on:

• nuclear safety in the enlarged EU, please click here.

• the financing of decommissioning of nuclear installations, please click here.

• the management of spent nuclear fuel and radioactive waste, please click here.

As far as the interests of the EU member states and their national nuclear sectors are concerned, major issues of contention have arisen over the Commission’s proposals as they presently stand (i.e. the proposals dated 30 January 2003). These have centred on such questions as:

• which form the ‘nuclear package’ should take – and if it should be legally binding at all;

• whether the proposed legislation would boost the nuclear sector – a concern of certain member states pursuing nuclear phase-out;

• whether the proposed legislation undermines the principle of ‘subsidiarity’. In terms of this principle, laid down in the Treaty on European Union (also known as the Maastricht Treaty), signed in 1992, the European Community is to “take action … only if and insofar as the objective of the proposed action cannot be sufficiently achieved by the Member States,” and can, “by reason of its scale and effects, be better achieved by the Community”. (The European Community constitutes the first pillar of the EU and is more supranational in nature than the other two pillars); and

• the Commission’s proposed model of decommissioning financing

Deadlock and non-binding alternative

At present the European Council has reached a serious deadlock between the pro- and anti-Directive countries. Four member states, which are against the Directive for differing reasons – Finland, Germany, Sweden and the United Kingdom – support a non-legally binding alternative to the nuclear safety Directive. The latest version of this proposal was published on 30 January 2004. Notably, this alternative does not have backing from the EP.

The Council Presidencies, formerly the Italian Presidency, currently the Irish Presidency have, in co-operation with the European Commission, issued several new proposals. These are, in effect, ‘watered down’ versions of the Commission’s proposal and, as such, have been a serious attempt to end the deadlock in the European Council.

An additional development, in September 2003, took the form of a joint letter by British Prime Minister, Tony Blair, and the German Chancellor, Gerhard Schröder. This, sent to the Commission President, Romano Prodi, rejected the approach taken by the Commission and advocated a non-legally binding, harmonisation process as an alternative.

Please click here: for the proposed non-legally binding alternative – a
proposal for a Council resolution on nuclear safety jointly tabled by Finland, Germany, Sweden and the United Kingdom.

Please click here: for the European Council’s Proposal for a Council (Euratom) Directive setting out the basic obligations and general principles on the safety of nuclear installations, as at 30 January 2004.

Please click here: for the European Council’s Proposal for a Council Directive (Euratom) on the management of spent nuclear fuel and radioactive waste, as at 30 January 2004.

Existing international standards

During parliamentary debates, the efficiency and added value of the Commission's proposal on the safety of nuclear installations in particular were called into question. All of the current EU member states and most of the EU accession states are parties to the Convention on Nuclear Safety, which comes under the aegis of the International Atomic Energy Agency (IAEA). Estonia and Malta – neither of which has nuclear power plants – are the accession states which are currently not party to this Convention.

Nevertheless, the Commission does point out that the Convention on Nuclear Safety, which entered into force in October 1996 and to which Euratom acceded in January 2000, reflects an international consensus but is not legally binding. In view of the enlargement, and to address its claims about discrepancies in safety standards among member states, the Commission had set its sights on binding legislation.

Stronger focus on member states

The European Parliament made clear, when it assessed the ‘nuclear package’ in its vote, in January 2004, that the monitoring of rules related to the new legislation should be carried out by a peer review mechanism involving national safety authorities and not through checks made directly by the Commission.

Reflecting this, the European Council proposal for a Directive, under Article 13, makes provision for a Committee of Regulatory Authorities to comprise representatives designated by the member states. It is this Committee that, under Article 14 of the European Council’s proposal for a Directive, would conduct peer reviews of the national regulatory bodies and would, by consensus, draw up reports.

Under Article 15, the Committee of Regulatory Authorities would act in consultation with the Commission in establishing guidelines for reports and member states “may indicate which parts of the report shall be considered confidential”.

Decommissioning proposal backed by EP – despite controversy

The decommissioning of nuclear installations - covered under Article 9, Financial resources, Point 2, of the Commission’s proposal for the safety Directive (dated 30 January 2003) and further elaborated in an annex to this - has been one of the most controversial topics of the ‘nuclear package’. The reasons for this controversy are covered under the heading ‘Unique system’ below. Notwithstanding this, the European Parliament gave this aspect of the ‘package’ its support, in its plenary vote on 13 January 2004.

The parliament’s assessment was despite the lack of support from the European Economic and Social Committee (EESC) – the EU institution representing organised civil society – in March 2003; the European Parliament advisory committee for Industry, Trade and Energy (ITRE) in November 2003; and from the nuclear industry at large.

Please click here: for the European Economic and Social Committee (EESC) Opinion.

Article 9, Financial resources, of the Commission’s proposal of 30 January 2003, broadly sets out the need for EU member states to ensure that sufficient financial resources are available for decommissioning, at the time these are required. It states that the responsibility for creating the funds, during the lifetime of the nuclear power plant (NPP), is to be borne by the operator.

Unique system

The controversy is that further criteria for the funds, set out in an annex to the proposed Directive, call for a unique system to be adopted by all EU member states, notwithstanding the prevailing circumstances in each member state. Notably, this annex does not appear at all in the European Council’s proposal of 30 January 2004.

Point 4 of the annex to the Commission’s proposal spells out that the assets of the funds are to be used for the unique purpose of covering the costs of decommissioning and spent fuel management. Furthermore, they are to be separate from the operator, and have “their own legal personality”. This would mean that the funds would be excluded from operators’ mainstream financial accounting and their balance sheets, and would be audited by regulators.

The decommissioning criteria set out by the Commission were especially taken up in the guidance given to the EU institutions, by the European Economic and Social Committee (EESC).

In its Opinion issued in March 2003, the EESC pointed out that most of the EU member states already had effective systems for establishing appropriate decommissioning funds. The committee also recommended that plant operators should be allowed to choose the most economical method of securing funding. Moreover, it stated that the Commission’s proposal does not give governments and plant operators the flexibility to decide for themselves which financing system is most suitable in their own national context.

One of the major issues raised in the context of separate accounting is the need for a ‘level playing field’ – i.e. fair conditions – in the internal market. During the parliamentary debates, it was pointed out that if funds set up for decommissioning and waste management were often used for other purposes, that would constitute market distortion. This argument was challenged on the basis that, by separating the funds from the balance sheets of the companies involved, they would be severely penalised as their business rating would decrease.

Radioactive waste – opinion poll

The radioactive waste proposal was motivated by what the Commission saw as a lack of progress from governments in moves towards the disposal of high-level waste. Furthermore, an opinion poll (Eurobarometer), published in April 2002, showed that a substantially high percentage of EU citizens feel poorly informed about radioactive waste. While this could not be attributed to a lack of information, it reflects a lack of public trust in the sources of that information. In fact, the survey showed that the nuclear industry is not perceived as a well-trusted source of information in this regard. The general view is also that there is not enough transparency from the nuclear industry in providing information about radioactive waste.

In the same survey, a 2:1 majority of EU citizens would be in favour of maintaining nuclear as an energy option, provided that all radioactive wastes were managed. (Twenty-four percent of respondents did not have an opinion on this.)

In overview, the Commission’s proposal for a Council Directive on the management of spent nuclear fuel and radioactive waste:

• sets out requirements for each member state to have a clearly defined programme for the ultimate disposal of all categories of radioactive waste, and requires them to prepare reports on this.

• would require EU member states to authorise the development of disposal sites by 2008, with their operation being authorised by 2018 for facilities taking spent nuclear fuel and high-level waste.

• states that member states’ programmes should include milestones for the identification, authorisation, construction and use of final waste repositories.

• provides that member states’ decisions on disposal would have to be made by certain milestone dates.

• in the context of exporting radioactive waste, states that these should be “in compliance with existing EU legislation”.

The Council’s proposal of 30 January 2004:

• provides for a broader timescale – 2010 – for authorisation of the development of disposal sites for low level waste. It does not provide a date for high level waste and low and intermediate level long-lived waste. The date by which authorisation for operation of disposal facilities should be granted is 2018, in the case of low level waste, and 10 years “after the date on which authorisation was granted for the development of the site”, in the case of high level waste. It should be noted that the annex in which these dates appear may be deleted at a later stage.

• geological disposal is mentioned as an “appropriate solution for long-term management of long-lived radioactive waste”.

• radioactive waste can only be exported if the member state receiving it has authorised it.

  Last updated: 23/03/04.