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The Euratom Treaty V. Treaties of the European Union: Limits of Competence and Interaction

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The Euratom Treaty V. Treaties of the European Union: Limits of Competence and Interaction Authors: Rasa Ptasekaite 2011:32The Euratom Treaty v. Treaties of the European Union: limits of competence and interaction Report number: 2011:32 ISSN: 2000-0456 Available at www.stralsakerhetsmyndigheten.se Abstract Generally regulation under the Euratom Treaty could be divided into two main groups: areas explicitly regulated by the Euratom Treaty (pro- motion of research and dissemination of knowledge; health and safety; encouragement of investment; supplies; safeguards; the nuclear common market) and areas which are in the competence of the Euratom Commu- nity, but are not laid out in the Euratom Treaty (nuclear safety; manage- ment of spent fuel and radioactive waste. The Euratom Treaty in comparison with other international treaties and the EU Treaties (TEU and TFEU) has some special features, distinguis- hing it from all others: special enforcement procedure, stagnant material law and new areas of competence. Perception of their existence is es- sential in order to understand the secondary legal system based on the Euratom Treaty and to implement Euratom Treaty provisions correctly on the national level. After the Lisbon Treaty amendments, implementation of new provisions in the Euratom Treaty on ordinary legislative procedure and role of national parliaments is considered to be quite problematic. The interac- tion between the Euratom Treaty and the TFEU in the specic elds is presented in the table below. No. Field Relation between treaties 1. Environmental Compensation and remediation of damage to the nuclear liability environment in case of nuclear incident is not regulated by any of these treaties. If would be in the future, the Euratom Treaty should be the legal ground and the TFEU would not be applied here. 2. Transport of The Euratom Treaty and its secondary legal acts radioactive mostly regulate the authorising, notication and substances other similar processes that build grounds for the physical transportation and control the movement of radioactive substances in Europe to be possible, while the TFEU and its secondary legislation focus on the safety of the actual transfer of the radioactive substances from place A to place B. 3. Free movement The nuclear common market and “nuclear” goods of radioactive is exceptional competence of the Euratom Treaty goods and provisions of the TFEU are not applicable here. Applicability of the TFEU rules to movement of “non-nuclear” radioactive goods under the Euratom Treaty depends on the purpose of usage of the latter goods. If the objective purpose of activity that includes “non-nuclear” radioactive goods is related to the market, then the TFEU rules should be applied. However, if goods are used in other activities not related to the market, the TFEU rules and secondary legal acts cannot be applied. SSM 2011:32 No. Field Relation between treaties 4. Competition law In the eld of competition law the provisions of the Euratom Treaty always prevail over the parallel provisions of the TFEU. The EU competition rules can be applied in cases when the Euratom Treaty does not regulate the question and such application does not contravene with the objectives of the Euratom Treaty. 5. State aid in General rules on state aid in the TFEU and nuclear sector Community Framework for State Aid for R&D&I are not applied for research and investment in the nuclear energy sector. Other elds of nuclear energy sector that are not regulated by the Euratom Treaty fall under the general EU state aid rules. 6. Common energy Nuclear energy belongs to the EU common energy policy policy, which means that it has to follow the goals and comply with obligations set by the EU. Background In the eld of nuclear energy the Treaty establishing the European Atomic Energy Community (Euratom Treaty) is binding primary law for all Member States of the European Union. However, the European Union itself is based on to primary laws – the Treaty on European Union (the TEU) and the Treaty on Functioning of the European Union (the TFEU). From the rst sight it might seem that the Euratom Treaty and the EU treaties are completely autonomous and regulate dierent areas, howe- ver the reality dictates dierently. The substantive law and legislative procedures of these treaties dier and that implies the necessity to understand the interaction between the treaties. I addition to this, national regulatory authorities in nuclear energy sector work under both primary legal acts – the Euratom Treaty and the TFEU – which means that the borders and application eld of each of them is important in order to implement the national legal acts eectively. Objectives of the project The main aim of this research was to analyse the interaction between the Euratom Treaty and the TFEU in certain specic elds – environmental nuclear liability, transport of radioactive substances and common mar- ket (free movement of goods, competition law and state aid). Results Results presented in the table provided above. Conclusions In areas regulated by and under the Euratom Treaty the latter provisions always prevail before the treaties of the EU. Application of the TFEU in the nuclear energy sector is only possible if it does not infringe the ob- jectives and main principles of the Euratom Treaty. There is no tendency of interaction between the Euratom Treaty and the TFEU – specic rela- tion between them depends upon the area. SSM 2011:32 Authors: Rasa Ptasekaite 2011:32The Euratom Treaty v. Treaties of the European Union: limits of competence and interaction Date: July 2011 Report number: 2011:32 ISSN: 2000-0456 Available at www.stralsakerhetsmyndigheten.se This report concerns a study which has been conducted for the Swedish Radiation Safety Authority, SSM. The conclusions and view- points presented in the report are those of the author/authors and do not necessarily coincide with those of the SSM. SSM 2011:32 Table of Contents Preface ...................................................................................................... 2 1 Introduction to the Euratom Treaty .................................................. 3 1.1 Areas of regulation of the Euratom Treaty ................................. 3 1.1.1 The promotion of research and dissemination of knowledge ........................................................................................ 4 1.1.2 Health and Safety ............................................................... 5 1.1.3 Encouragement of investment ............................................ 9 1.1.4 Supplies .............................................................................. 9 1.1.5 Safeguards ........................................................................ 13 1.1.6 The Nuclear Common Market .......................................... 16 1.2 Special features of the Euratom Treaty.................................... 18 1.2.1 Special enforcement procedure ........................................ 18 1.2.2 Stagnant material law ....................................................... 18 1.2.3 New areas of competence ................................................ 20 1.3 The changes in the Euratom Treaty after the amendments of the Lisbon Treaty ................................................................................ 22 1.3.1 Objectives of the “new Treaty” .......................................... 22 1.3.2 Main amendments of the Treaty of Lisbon ....................... 25 1.3.3 Lisbon amendments of the Euratom Treaty ..................... 28 2 The assessment of the interaction between the Euratom Treaty and the Treaties of the European Union ............................................. 36 2.1 Environmental Law ................................................................... 36 2.1.1 Regulation of Environmental Nuclear Liability .................. 37 2.1.2 The Euratom Treaty and the TFEU interaction in the field of environmental nuclear liability.................................................... 43 2.2 Transport .................................................................................. 50 2.2.1 Transport regulation under the Euratom Treaty ............... 52 2.2.2 Transport regulation under the TFEU ............................... 60 2.2.3 The Euratom Treaty and the TFEU interaction in the field of transport of radioactive substances ........................................... 62 2.3 Common Market ....................................................................... 67 2.3.1 Free movement of goods .................................................. 67 2.3.2 Competition Law ............................................................... 79 2.3.3 State Aid............................................................................ 88 2.4 Common Energy Policy ............................................................ 96 2.4.1 Nuclear energy as a part of common energy policy ......... 96 2.4.2 Nuclear energy in common energy policy - consequences . .......................................................................................... 96 General Conclusions of the Research ................................................ 99 Summary ............................................................................................... 100 SSM 2011:32 Preface In the field of nuclear energy the Treaty establishing the European Atomic Energy Community (Euratom Treaty) is binding primary law for all Member States of the European Union. However, the European Union itself is based on to primary laws – the Treaty on European Union (the TEU) and the Trea- ty on Functioning of the European Union (the
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