Nuclear catastrophe in Japan triggers new debate on nuclear energy
Former Japanese Prime Minister Kan publicly contemplates the abandoning of nuclear power by his country; meanwhile, in Germany the Atomic Energy Act has been amended, with a date for abandoning nuclear power set for 2022 at the latest; the Netherlands plans to build a new reactor...
Debates on the pros and cons of nuclear power take different forms. There are demands for such discussions to be conducted at European level. Fourteen of the 27 EU Member States have nuclear reactors.
The legal basis for joint action
It should be noted that this relates to the energy mix in the individual Member States, for which they alone have responsibility. Even after the entry into force of the Treaty of Lisbon with its new title concerning Energy (Article 194 TFEU), nothing has changed here. The Treaty explicitly gives the EU competence for energy policy for the first time.
In the field of nuclear energy, however, the Treaty establishing the European Atomic Energy Community (the Euratom Treaty) is decisive. The European Atomic Energy Community (Euratom) was not integrated into the Treaty of Lisbon and thus continues to have the status of a separate international organisation with a legal personality alongside the European Union.
The objective of establishing Euratom was to create suitable conditions for the formation and development of the nuclear industry. The intention was to achieve this through such measures as joint utilisation of resources to ensure the protection of the general public and inclusion of other countries and international organisations (COM(2007) 124 final).
The Euratom Treaty, the content of which has hardly changed since it was signed in 1957, can clearly be set primarily in the context of the times, including increased demand, the requirements of the Member States for cost-effective energy and the Suez crisis. However, in the light of the lessons learned over the years regarding the (‘side-‘) effects of this technology, from the question of disposal of the resultant radioactive waste, to the reactor disasters at Chernobyl in 1986 and at Fukushima in 2011, it may be asked whether the wording chosen for the Preamble to the Euratom Treaty “that nuclear energy represents an essential resource for the development and invigoration of industry and will permit the advancement of the cause of peace” or the task as envisaged in Article 1 – “creating the conditions necessary for the speedy establishment and growth of nuclear industries” – are still appropriate.
The European Council still preoccupied with the Japanese earthquake and tsunami
At its meeting on 24–25 March 2011, the European Council not only announced EU aid for Japan but also stressed the need for Europe to draw lessons from the events, although the Member States did not fail to emphasise their competence with respect to the energy mix. Accordingly, the safety of all nuclear power plants in the EU is to be tested by means of a comprehensive and transparent safety assessment (‘stress test’). The Council would like to have already evaluated the initial findings by the end of 2011, on the basis of a Commission report. Beyond this, the EU will request that comparable stress tests are carried out in neighbouring countries and worldwide. In the EU, the highest standards for the nuclear sector should be implemented and continuously improved. Hence the Commission will review the existing legal and regulatory framework and then propose any improvements that may prove necessary by the end of the year. Furthermore, the Council announced that the proposed Directive on the management of spent fuel should be adopted as swiftly as possible.
Stress tests under way
After agreement with the European Nuclear Safety Regulators Group (ENSREG) on the content and modalities of the comprehensive risk and safety assessment of the 143 plants in the EU, Günther Oettinger, EU Commissioner for Energy and also responsible for Euratom, announced at a press conference at the end of May that the stress tests would begin on 1 June 2011. These tests relate to the resistance of the reactors to natural disasters like earthquakes, flooding, etc. The testing will cover not only technical failures (e.g. technical provision in the plants for emergency power generators, etc.), but also possible human error. Accordingly, the spotlight will be put on the training of technical personnel as well as on the quality of operations. Possible accidents, such as aircraft crash impacts, should be given a central place in the investigations. Regarding the danger of terrorist attacks, however, Commissioner Oettinger emphasised that testing in this field is not part of the mandate of most ENSREG members. Nevertheless, the Commission would contact the Member States for clarification regarding which national authorities are responsible in each case and whether in this area any EU advice and examination is required. The testing procedure itself is to be carried out in three stages. In the first stage, the power plant operators will be required to respond to a questionnaire and to provide supporting documentation, studies and plans. This will then be followed, at the second stage, by a country report prepared by the relevant national supervisory authority, in which the details given by the power plant operators will be checked for reliability. At the third stage, the individual country reports will then be checked in the framework of peer reviews, i.e. by multinational teams. The results of the assessments are to be available by the end of April 2012.
The Council gives the green light for the Directive on radioactive waste
On 19 July 2011, the Council accepted Directive 2011/70/EURATOM establishing a Community framework for the responsible and safe management of spent fuel and radioactive waste (‘the Directive’). The legal basis is the Euratom Treaty. The Directive relates to the second part of the ‘Nuclear Package’ presented by the Commission in 2003 and initially rejected in 2004. It thus supplements Directive 2009/71/EURATOM of the Council establishing a Community framework for the safety of nuclear installations. In addition to the creation of a Community framework for the responsible and safe management of spent fuel and radioactive waste, the Directive aims to ensure that appropriate measures are taken within the Member State to ensure a high level of safety in waste management, in order to protect workers and the general public from the dangers of ionising radiation. It also seeks to ensure the necessary training and participation of the public in connection with waste management. Moreover, the International Atomic Energy Organisation (IAEO) safety standards are incorporated.
The Directive requires the Member States to set up national waste management programmes and to submit details to the Commission by 23 August 2015 at the latest. These will be checked by the Commission and must include, inter alia, concepts or plans and their technical solutions for the management of spent fuel and radioactive waste, from production through to permanent disposal, together with cost estimates and financial regulations. The Member States are also obliged to establish competent regulatory authorities. Consequently, the final responsibility for the spent fuel and radioactive waste lies with the Member State on whose territory they are generated.
The Commission was not, however, successful in introducing a prohibition, as contained in its draft directive, on the export of radioactive waste for the purpose of permanent disposal in third-countries. The European Parliament had favoured the same approach in its legislative resolution of 23 June 2011. The compromise reached in the Council now provides that, prior to shipment of radioactive waste to a third-country, the Commission must be informed of the content of the agreement between the third-country concerned and the exporting state and may then check whether equivalent safety standards exist there. Therefore, nuclear waste exports will in future only be possible under very strict conditions.
Member States now have to consider difficult questions when it comes to determining locations for permanent disposal – not only with an eye to the necessary geological requirements but also in relation to what will be feasible in political terms.
Confining the energy-policy debate to nuclear energy – is this enough?
With its new energy strategy ‘Energy 2020’, the EU has set itself ambitious goals. Given the multiple challenges which the EU faces in the field of energy policy (cf. europeinfos no. 136), reducing the public debate to the pros and cons of nuclear power may not be enough. Would it not, rather, be appropriate to broaden the discussion to encompass a holistic view of the energy field, as already anticipated by Pope Benedict XVI in his encyclical “Caritas in Veritate”?
Translated from the original German