Political, constitutional and administrative restraints
In the political debate in the wake of the Fukushima accident European leaders strongly demanded a complete risk assessment (“Stress test“) of the European NPP. Those plants that would not meet the requirements would have to be closed.36 This was nothing less than a political claim for a European authority to regulate nuclear power even though EU Commissioner Oettinger indicated that the Commission had no power to enforce the shutdown of nuclear power plants.37
This political claim does until now not coincide with the reality of the European structures in the field of nuclear safety.38 Soon it became clear that the national regulators represented in the ENSREG neither wanted to follow that wide scope of a European risk assessment, nor accepted the claim of a European regulatory competence. They refused a comprehensive risk assessment; in particular refusing to investigate the consequences of aeroplane crashes on nuclear power plants.39
Until now nuclear safety is regarded as an indispensable part of national responsibility. This national responsibility for nuclear safety has well founded reasons. Nuclear safety and the question ‘how safe is safe enough?’ are questions that are of the utmost importance for a society that has decided to use nuclear power. Against all earlier attempts of the Commission, the EU Council adopted a Directive on Nuclear Safety that practically does not contain safety rules for nuclear power plants.40
Only in the national legislative and administrative frame exists a chain of democratic responsibility that enables the Parliament as highest representative of the people to control the actions of a nuclear authority and to decide on whether or not nuclear power is used. The European Union until now has not developed equivalent or similar democratic structures. A European Constitution does not yet exist. The role of the European Parliament is rather restricted and has practically no means to control the actions of the Commission. The European Union therefore is politically and constitutionally not yet ready to take a leading role in nuclear safety.41
A further judicial restraint is the limited competence of the European Union that is given by the Euratom Treaty. In a principle decision the European Court only acknowledged the competence of the EU to regulate the general frame in the nuclear field. Not comprised is a supervisory practice of the European Commission as European regulator in the role to give a license or to regulate the operation of nuclear power plants.42
Moreover the European Union by its organizational structures is not yet ready to take direct responsibility for nuclear safety. As member of the Convention on Nuclear Safety the Commission is obliged to be independent from all bodies that promote Nuclear Energy:
“Each Contracting Party shall take the appropriate steps to ensure an effective separation between the functions of the regulatory body and those of any other body or organization concerned with the promotion or utilization of nuclear energy.”43
Corresponding to the organizational chart of the Commission the responsibilities for nuclear safety and promoting nuclear energy lie within the same Commissioner.44 The Commission therefore is - under the current organizational structure - not independent in the case of the Nuclear Convention especially as far as it takes regulatory competences. This is the result of an organizational change within the Commission in the 2002. Before then the Commissioner for Environment was responsible for nuclear safety.
Another practical reason precludes a direct responsibility of the Commission for Nuclear Safety. The Commission has no independent technical expertise to supervise the member states in questions of nuclear safety. It relies on the technical competence of the member states’ authorities. Therefore a strict supervisory independence of a European nuclear “Stress test“ from national authorities cannot be realised.
To improve this situation a fundamental change of the structures of the EU would be needed.45
On the other hand the European Union can support a European Harmonization Process as done by creating the European Nuclear Regulators Group supported by the WENRA-Group.
The ENSREG is free to define common assessment and acceptance criteria for nuclear safety investigations in consensus with its members and corresponding to their national legislative frames. The ENSREG could in the same way agree on transparent procedures that could partly compensate the lack of independence.
36 See Fn.3
37 See id.
38 Berthelemy, Leveque, Harmonizing Nuclear safety Regulation in the EU: Which Priority?, Intereconomics 2011, 132
39 Fn. 6, Declaration of ENSREG, 13.05.2011
40 European Council, Council Directive 2009/71/Euratom, 25.06.2009, Official Journal of the European Union, L 172/18
41 In detail: Renneberg, Regulating Nuclear Safety on the European Level in the view of the Federal Ministry for Environment (German Text, Die europäische Regulierung des Atomsektors aus Sicht des Bundesumweltministeriums), 12. Deutsches Atomrechtssysmposium, Baden Baden 2004, 89
42 European Court of Justice, Judgment of the Court, C-29/99, I-11310, 10.12.2002
43 Convention on Nuclear Safety, Art. 8 II, IAEA, INFCRC/449, 5 July 1994
44 EU Commission for Energy, Directorate for Energy, Organizational Chart, http://ec.europa.eu/dgs/energy/doc/dg_energy_organigram_en.pdf
45 This is not the topic of the present study.