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Focus an key legal aspects in the Member States I. : nuclear s a fety

„European Nuclear Energy Law in a Process of Change“ Institute for Energy and Mining Law, Ruhr University Bochum, Germa n y. Focus an key legal aspects in the Member States I. : nuclear s a fety. Overview on lectures to be held this week (1). Monday , 25. 11. 2013, 14:00 – 15.30:

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Focus an key legal aspects in the Member States I. : nuclear s a fety

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  1. „European Nuclear Energy Law in a Process of Change“Institute for Energy and Mining Law, Ruhr University Bochum, Germany Focus an key legal aspects in the Member States I.: nuclear safety

  2. Overview on lectures to beheldthisweek (1) • Monday, 25. 11. 2013, 14:00 – 15.30: • Introduction - historical background of the nuclear integration in Europe (CERN, OEEC, Euratom) • Tuesday, 26. 11. 2013, 10:15 – 11:30: • European Atomic Energy Community (Euratom) - nature, characteristic features, relation to the European Union, institutions- powers to create binding legislation (regulations, directives) and to issue binding decisions - overview of Euratom 's policies with regard to the decision making ofthe ECJ - Euratom and existing international treaties

  3. Overview on lectures to beheldthisweek(2) • Wednesday, 27. 11. 2013, 10:15 – 11:30: • Focus an key legal aspects in the Member States I.: nuclear safety, competencies of Euratom vs. competencies of member states - key obligations arisingfrom the current Euratom legislation - perspectives of thefuture developments • Thursday, 28. 11. 2013, 10:15 – 11:30: • Focus an key legal aspects in the Member StatesII.: radioactivewaste management: competencies of Euratom vs. competencies of member states - key obligations arising.from the current Euratom legislation - perspectives of thefuture developments • Friday, 29. 11. 2013, 10:15 – 11:30: • Focus an key legal aspects in the Member StatesIII.: nuclear liability, competencies of Euratom vs. competencies of member states - key obligations arising.from the current Euratom legislation - perspectives of thefuture developments

  4. NuclearSafety Focus an key legal aspects in the Member States I.

  5. NuclearSafety (1) 'Safety' is the achievement of proper operating conditions, prevention of accidents and mitigation of accident consequences, resulting in protection of workers, the public and the environment from undue radiation hazards.

  6. NuclearSafety(2) Safety concerns the protection of people and the environment against radiation risks, and the safety of facilities and activities that give rise to radiation risks. Safety concerns both risks under normal circumstances and risks as a consequence of incidents, as well as other possible direct consequences of a loss of control over a nuclear reactor core, nuclear chain reaction, radioactive source or any other source of radiation.

  7. NuclearSafety(3) There are many different types of sources of radiation, and hence safety includes the safety of nuclear installations, radiation safety, the safety of radioactive waste management and safety in the transport of radioactive material; it does not include non-radiation-related aspects of safety.

  8. NuclearSecurity 'Nuclear security' is the prevention and detection of, and response to, theft, sabotage, unauthorized access, illegal transfer or other malicious acts involving nuclear material, other radioactive substances or their associated facilities. The response element of the definition refers to those actions aimed at ‘reversing’ the immediate consequences of unauthorized access or actions (e.g. recovering material).

  9. Safety and Health in Euratom Treaty: BSS (1) Basic standards shall be laid down within the Community for the protection of the health of workers and the general public against the dangers arising from ionizing radiations.

  10. Safety and Health in Euratom Treaty: BSS (2) The expression ‘basic standards’ means: • maximum permissible doses compatible with adequate safety; • maximum permissible levels of exposure and contamination; • thefundamental principles governing the health surveillance of workers.

  11. Safety and Health in Euratom Treaty: BSS (3) The basic standards shall be worked out by the Commission after it has obtained the opinion of a group of persons appointed by the Scientific and Technical Committee from among scientific experts, and in particular public health experts, in the Member States. The Commission shall obtain the opinion of the Economic and Social Committee on these basic standards. After consulting the European Parliament the Council shall, on a proposal from the Commission, which shall forward to it the opinions obtained from these Committees, establish the basic standards; the Council shall act by a qualified majority.

  12. Safety and Health in Euratom Treaty: SpecialobligationsoftheMemberStates (1) Any Member State in whose territories particularly dangerous experiments are to take place shall take additional health and safety measures, on which it shall first obtain the opinion of the Commission. The assent of the Commission shall be required where the effects of such experiments are liable to affect the territories of other Member States.

  13. Safety and Health in Euratom Treaty: SpecialobligationsoftheMemberStates(2) Each Member State shall establish the facilities necessary to carry out continuous monitoring of the level of radioactivity in the air, water and soil and to ensure compliance with the basic standards. The Commission shall have the right of access to such facilities; it may verify their operation and efficiency.

  14. Safety and Health in Euratom Treaty: SpecialobligationsoftheMemberStates(3) Each Member State shall provide the Commission with such general data relating to any plan for the disposal of radioactive waste in whatever forms will make it possible to determine whether the implementation of such plan is liable to result in the radioactive contamination of the water, soil or airspace of another Member State. The Commission shall deliver its opinion within six months, after consulting the group of experts referred to in Article 31.

  15. Safety and Health in Euratom Treaty: SpecialobligationsoftheMemberStates(4) The Commission shall make recommendations to the Member States with regard to the level of radioactivity in the air, water and soil. In cases of urgency, the Commission shall issue a directive requiring the Member State concerned to take, within a period laid down by the Commission, all necessary measures to prevent infringement of the basic standards and to ensure compliance with regulations. Should the State in question fail to comply with the Commission directive within the period laid down, the Commission or any Member State concerned may forthwith, by way of derogation from Articles 141 and 142, bring the matter before the Court of Justice.

  16. Chapter III: Evaluation • No explicit powersof Euratom in the area ofnuclearsafety • No controlpowersof Euratom • No competenciesof Euratom to enter intothefacilities

  17. Post-Chernobyl period ofdevelopment (1) Historically, two legislative “eras” can be distinguished: on the one hand, the post-Chernobyl era of the late 1980s, during which a number of essential secondary legislation was passed quickly to cope with imminent dangers related to the catastrophe. Hence, the urgent need for a Europe-wide warning system, how to deal with potentially contaminated food, the way to warn the general public and questions on the protection of professionals lead to the adoption of the following acts:

  18. Post-Chernobyl period ofdevelopment(2) • 1987 ECURIE Decision • 1987 Foodstuffs Regulation • 1989 Public Information Directive • 1990 Outside Workers Directive • 1996 Basic SafetyStandards • 1997 MedicalExposuresDirective • 2003 “HASS” Directive

  19. Post-Chernobylperiod ofdevelopment(3) Commission Recommendation 2004/2/Euratom of 18 December 2003 on standardised information on radioactive airborne and liquid discharges into the environment from nuclear power reactors and reprocessing plants in normal operation. Commission Recommendation 2000/473/Euratomof 8 June 2000 on the application of Article 36 of the Euratom Treaty concerning the monitoring of the levels of radioactivity in the environment for the purpose of assessing the exposure of the population as a whole

  20. Chapter III. and thedecisionmakingofthe ECJ (1) • Militarynuclearinstallations • Civil nuclearinstallations

  21. Militarynuclearinstallations and the Euratom Treaty (1) C-61/03 (Jason) “It is necessary, however, to emphasise that the fact that the Treaty is not applicable to uses of nuclear energy for military purposes and that, accordingly, the Commission is not justified in relying on Article 37 EA in order to require Member States to provide it with information on the disposal of radioactive waste from military installations does not by any means reduce the vital importance of the objective of protecting the health of the public and the environment against the dangers related to the use of nuclear energy, including for military purposes. In so far as that Treaty does not provide the Community with a specific instrument in order to pursue that objective, it is possible that appropriate measures may be adopted on the basis of the relevant provisions of the EC Treaty (see, to that effect, Case C-62/88 Greece v Council [1990] ECR I-1527).“

  22. Militarynuclearinstallations and the Euratom Treaty(2) C-65/04 (Tireless) „Whether the provisions of that Treaty applied to activities within the military sphere would thus depend on the nature and scope of the obligations which those provisions impose on Member States. It would therefore be necessary to assess in each case the damage which performance of those obligations may cause to the essential national defence interests of those States.“

  23. Civil nuclearinstallations and the Euratom Treaty (1) OpinionoftheAdvocate General Jacobs in the case C-29/99: „I consider therefore that the Community has certain limited regulatory competence in the matters covered by Article 7 of the Convention, 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 (operational protection of the population in normal circumstances) of the Basic Standards Directive. The fact that the Member States retain exclusive competence over the technological aspects of nuclear safety does not prevent the Community from adopting legislation which establishes certain safety requirements, authorisation requirements, inspection and assessment requirements or enforcement mechanisms.“

  24. Civil nuclearinstallations and the Euratom Treaty(2) C-29/99: Even though the Euratom Treaty does not grant the Community competence to authorise the construction or operation of nuclear installations, under Articles 30 to 32 of the Euratom Treaty the Community possesses legislative competence to establish, for the purpose of health protection, an authorisation system which must be applied by the Member States. Such a legislative act constitutes a measure supplementing the basic standards referred to in that article.

  25. Subsequentlegislativemakingofthe Euratom • 2006 Shipments Directive • 2009 Nuclear Safety Directive • 2011 RadioactiveWasteDirective

  26. NuclearSafetyDirective • Relation to theNuclearSafetyConvention • Controlpowersremains in thehandsofnationaladministrativeauthorities • Specialframeworkforseveraltypesofactivities (location, permitting, control, sanctios)

  27. European Nuclear Safety Regulators Group (1) The European Nuclear Safety Regulators Group (ENSREG) is an independent, authoritative expert body created in 2007 following a decision of the European Commission.It is composed of senior officials from the national nuclear safety, radioactive waste safety or radiation protection regulatory authorities and senior civil servants with competence in these fields from all 27 Member States in the European Union and representatives of the European Commission.

  28. European Nuclear Safety Regulators Group(2) ENSREG’s role is to help to establish the conditions for continuous improvement and to reach a common understanding in the areas of nuclear safety and radioactive waste management.

  29. Discussing a newnuclearsafetydirective • The Commission has proposed to amend the 2009 nuclear safety directive. The proposal: • introduces new EU-wide safety objectives; • sets up a European system of peer reviews of nuclear installations; • establishes a mechanism for developing EU-wide harmonised nuclear safety guidelines; • strengthens the role and independence of national regulators; • increases transparency on nuclear safety matters; • includes new provisions for on-site emergency preparedness and response.

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