The failure of Euratom to harmonize the EU nuclear safety and environmental regulation. Can a recent ECJ judgment become a breakthrough, beneficial for EU’s quest for a sustainable, renewable-driver future?

Abstract

The Treaty Establishing the European Atomic Energy Community (known as the Euratom Treaty), which was signed on 25 March 1957, contained commitments to promote nuclear energy technology and to integrate financial and technical efforts to develop that technology in the six signatory countries, in order to enhance wealth creation and the wellbeing of their citizens. The 66 year history of the Euratom Treaty undoubtedly shows that it didn’t fulfil its promises and worse, it became completely obsolete in the light of the European integration efforts contained in the Treaty on the Functioning of the European Union (TFEU). This article examines its fundamental shortcomings, whereby national interests in nuclear energy were at the forefront and whereby the harmonization of Nuclear Safety Standards and the protection of the environment and the health of the EU citizens became secondary, when confronted with industrial interests and the promotion of nuclear technologies (promotion which still continues for an industrial nuclear sector which is fully mature). This provoked a painful discord between nuclear counties and non-nuclear EU Member States, still the Achilles’ heel of Euratom as can be concluded from the discussion regarding nuclear energy as part of the EU Green Taxonomy. Euratom can be seen as the flagship of the pro-nuclear countries, albeit that the content of the Treaty is obsolete, as will be explained below from a legal angle. Because the EU Commission is the executive body of the Euratom Community, it is to blame for the failure to harmonize the safety standards as foreseen in the Euratom Treaty and for the unwillingness to integrate the EU legal environmental principles into nuclear law. It will be argued that the Nuclear Basic Safety Standards, as foreseen by the Euratom Treaty and the secondary Euratom Directives, are ‘empty shells’ and should no longer stand in isolation from the EU environmental acquis. The Justification and the ALARA principles should be informed by the Precautionary Principle and the Polluter Pays Principle. This entails that with the risks of global warming (such as heat waves, floodings, cooling water, wildfires, terrorism etc.) and the many caveats on nuclear decommissioning and disposal of high-level nuclear waste, the equation between the advantages of nuclear power (e.g., minor CO2 emissions) and its major risks should be reconsidered, not leaving this justification process to the nuclear industry, as in Belgium. The EU national governments should undertake this justification process at every stage of their political decisions regarding nuclear energy (e.g., life time extension), in full transparency and giving access to justice, as foreseen in the AARHUS Convention. A specialized EU Nuclear Safety Agency should receive a mandate by the EU Commission to harmonize such a justification process in the EU Member States and to harmonize the Nuclear Basic Safety Standards. The elementary decisions on the future of (nuclear) energy should be taken in a democratic way and not based on the promotional Euratom Treaty, in the light of the EU Green Deal and the energy transition towards renewable energy sources.