61987J0187

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EAEC - Health protection - Plans for the disposal of radioactive waste - Provision of data to the Commission - Provision of data before the issue by the national authorities of authorization for disposal

( EAEC Treaty, Art . 37 )

Article 37 of the EAEC Treaty must be interpreted as meaning that the general data relating to any plan for the disposal of radioactive waste must be provided to the Commission before any such disposal is authorized by the competent authorities of the Member State concerned .

Article 37 is intended to prevent the risk of radioactive contamination and, in view of that purpose, any guidance which the Commission can give to the Member State concerned is of very great importance, owing in particular to the Commission' s unique overview of developments in the nuclear power industry throughout the Community . It must therefore be possible for the Commission' s opinion to be examined in detail by the Member State concerned, under conditions such that the Commission' s suggestions can still be taken into account by that State, even if it is not legally obliged to conform with the opinion .

In Case 187/87

REFERENCE to the Court under Article 150 of the EAEC Treaty by the tribunal administratif ( Administrative Court ), Strasbourg, for a preliminary ruling in the proceedings pending before that court between

Saarland and Others

and

Ministre de l' Industrie, des Postes et Télécommunications et du Tourisme ( Minister for Industry, Post and Telecommunications and Tourism ) and Others,

on the interpretation of Article 37 of the Treaty of 25 March 1957 establishing the European Atomic Energy Community,

THE COURT

composed of : Lord Mackenzie Stuart, President, G . Bosco and O . Due ( Presidents of Chambers ), T . Koopmans, U . Everling, K . Bahlmann, Y . Galmot, C . N . Kakouris, R . Joliet, T . F . O' Higgins and F . A . Schockweiler, Judges,

Advocate General : Sir Gordon Slynn

Registrar : B . Pastor, Administrator

after considering the observations submitted on behalf of

Saarland and Others, plaintiffs in the main proceedings, by C . Lepage Jessua, avocat,

Association pour la sauvegarde de la vallée de la Moselle and Others, plaintiffs in the main proceedings, by M . Bourghart, avocat,

the City of Luxembourg and Others, plaintiffs in the main proceedings, by F . Herbert, avocat,

the French Government, by J . P . Puissochet and E . Belliard, acting as Agents, assisted by C . Roels, as expert,

the Luxembourg Government, by N . Schmit and J . P . Zens, acting as Agents,

the Irish Government, by L . J . Dockery, Chief State Solicitor, acting as Agent, assisted by E . Fitzsimmons, SC,

the Portuguese Government, by L . Inez Fernandes and R . L . Nogueira Falcão de Campos and A . C . Branco, acting as Agents,

the Commission of the European Communities, by its Principal Legal Adviser, D . Allen, and its Legal Adviser, M . van Ackere, acting as Agents,

having regard to the Report for the Hearing and further to the hearing on 26 April 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 8 June 1988,

gives the following

Judgment

1 By a judgment of 11 June 1987, which was received at the Court on 16 June 1987, the tribunal administratif, Strasbourg, referred to the Court for a preliminary ruling under Article 150 of the EAEC Treaty a question on the interpretation of Article 37 of that Treaty .

2 The question was raised in proceedings brought by Saarland, a number of German local authorities, certain French and Luxembourg associations for the protection of the Moselle valley and of the environment and a number of private individuals against French inter-ministerial orders of 21 February 1986 authorizing the disposal of liquid radioactive waste and of gaseous radioactive waste from the four blocks of the Cattenom nuclear power-station, in the département of the Moselle .

3 Those orders mark the conclusion of an administrative procedure which commenced on 11 October 1978 when the works necessary to establish a nuclear power-station at Cattenom comprising two 900-megawatt blocks and two 1 300-megawatt blocks were declared to be in the public interest (" d' utilité publique "), whereafter, between 6 July 1979 and 31 March 1982, building permits were issued for those blocks, and, between 24 June 1982 and 29 February 1984, decrees were adopted authorizing the installation at Cattenom of four blocks of 1 300 megawatts each .

4 Before the tribunal administratif, Strasbourg, the plaintiffs in the main proceedings claimed, inter alia, that the French Government had infringed Article 37 of the EAEC Treaty by not providing the Commission with general data concerning the disposal of radioactive waste by the Cattenom nuclear power-station until 29 April 1986, that is to say after the adoption of the contested orders, whereas that article requires the Commission to be notified before disposals are authorized by the competent authorities .

5 The defendants in the main proceedings contended that Article 37 of the EAEC Treaty must be interpreted as requiring consultation of the Commission before any disposal of waste is effected, notwithstanding the fact that such disposal might have been authorized before the Commission was notified .

6 In those circumstances, the tribunal administratif, Strasbourg, raised the question whether Article 37 of the Treaty of 25 March 1957 establishing the European Atomic Energy Committee requires the Commission of the European Communities to be notified before the disposal of radioactive waste by nuclear power-stations is authorized by the competent authorities in the Member States, where a procedure for prior authorization is established, or before such disposal is effected by nuclear power-stations .

7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

8 Article 37 of the EAEC Treaty provides as follows :

"Each Member State shall provide the Commission with such general data relating to any plan for the diposal of radioactive waste in whatever form as will make it possible to determine whether the implemention 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 ."

9 For the interpretation of that provision, the French Government relied, in its observations, upon the Commission Recommendation of 3 February 1982 ( Official Journal 1982, L 83, p . 15 ), according to which the general data for a plan like the one at issue should be submitted "whenever possible one year but not less than six months before the planned date of commencement of disposal of radioactive waste ". That recommendation, which ranks lower than the Treaty, cannot, however, determine the interpretation to be given to Article 37 of the EAEC Treaty .

10 The expression "plan for the disposal of ... waste" used in Article 37 appears to indicate that that article refers to a phase prior to any decision authorizing disposal . However, in order to define its terms with precision, it is necessary to interpret Article 37 in the light of its context and its purpose within the system of the EAEC Treaty .

11 In that regard, it must be noted that the article appears in Chapter III of the EAEC Treaty, entitled "Health and Safety", the provisions of which form a coherent whole conferring upon the Commission powers of some considerable scope in order to protect the population and the environment against the risks of nuclear contamination .

12 Among the provisions of Chapter III of the EAEC Treaty, Article 37 appears as a provision to which recourse must be had in order to forestall any possibility of radioactive contamination, whereas other provisions, such as Article 38, are applicable where a risk of contamination is imminent or even where contamination has already occurred .

13 In the light of that purpose of Article 37, the guidance which the Commission, assisted by highly qualified groups of experts, can give to the Member State concerned is of very great importance, owing, in particular, to the Commission' s unique overview of developments in the nuclear power industry throughout the territory of the Community .

14 In order to prevent the risk of radioactive contamination, it must therefore be possible for the Commission' s opinion, particularly in those cases where it suggests a modification to the plan or the adoption of safety measures involving collaboration between two or more Member States, to be examined in detail by the Member State concerned, under conditions such that the Commission' s suggestions can still be taken into account by that State, even if it is not legally obliged to conform with the opinion .

15 That requirement is in no way put in doubt by the procedure for cases of urgency provided for in Article 38 of the Treaty, which must be reserved for exceptional circumstances and cannot relieve the Member States of their duty to comply scrupulously with their obligations under Article 37 .

16 Consequently, it must be acknowledged that, where a Member State makes the disposal of radioactive waste subject to authorization, the Commission' s opinion must, in order to be rendered fully effective, be brought to the notice of that State before the issue of any such authorization .

17 If a decision has already been adopted, it becomes more difficult to take account of an unfavourable Commission opinion, which would oblige the public authority to repudiate the action of the departments or bodies which inspired that decision . Furthermore, it is possible that, in certain Member States, an authorization for the disposal of radioactive waste might confer rights upon the person to whom it was granted and could not easily be withdrawn . Finally, knowledge of the Commission' s opinion may be of use for the purpose of enabling any person concerned to assess the merits of a possible legal action against the decision granting authorization .

18 All the foregoing factors lead to the view that the Commission' s opinion has no real chance of being examined in detail and of having any effective influence on the attitude of the State concerned unless it is issued before the adoption of any decision definitively authorizing disposal, which a fortiori implies that the opinion must be sought before such authorization is granted .

19 Only if Article 37 is interpreted as meaning that the Commission must be provided with general data relating to a plan for the disposal of radioactive waste before definitive authorization for such disposal is granted can that article achieve its purpose . It is to an interpretation to that effect, which is such as to ensure that the provision retains its effectiveness, that preference must be given, in accordance with a line of decided cases ( judgment of 6 October 1970 in Case 9/70 Grad v Finanzamt Traunstein (( 1970 )) ECR 825; judgment of 31 March 1971 in Case 22/70 Commission v Council (( 1971 )) ECR 263; judgment of 5 May 1981 in Case 804/79 Commission v United Kingdom (( 1981 )) ECR 1045 ).

20 It must therefore be stated in reply to the question submitted by the national court that Article 37 of the Treaty of 25 March 1957 establishing the European Atomic Energy Community must be interpreted as meaning that the Commission of the European Communities must be provided with general data relating to any plan for the disposal of radioactive waste before such disposal is authorized by the competent authorities of the Member State concerned .

Costs

21 The costs incurred by the governments of the French Republic, Ireland, the Grand Duchy of Luxembourg and the Portuguese Republic, and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT,

in reply to the question submitted to it by the tribunal administratif, Strasbourg, by judgment of 11 June 1987, hereby rules :

Article 37 of the Treaty of 25 March 1957 establishing the European Atomic Energy Community must be interpreted as meaning that the Commission of the European Communities must be provided with general data relating to any plan for the disposal of radioactive waste before such disposal is authorized by the competent authorities of the Member State concerned .