19. 12. 83 Official Journal of the European Communities No C 341/21
Opinion on the proposal for a Council Decision adopting new provisions relating to
Chapter VI 'Supplies' of the Treaty establishing the European Atomic Energy
Community
The text referred to the Committee has been published in Official Journal of the Euro-
pean Communities No C 330 of 16 December 1982, page 4.
A. LEGAL BASIS FOR THE OPINION
On 20 December 1982 the Council referred the abovementioned proposal to the
Economic and Social Committee in accordance with Article 170 of the Treaty estab-
lishing the European Atomic Energy Community.
B. OPINION OF THE ECONOMIC AND SOCIAL COMMITTEE
The Economic and Social Committee prepared its opinion on the above matter at its
210th plenary session held in Brussels on 28 and 29 September 1983.
The full text of the opinion is as follows:
THE ECONOMIC AND SOCIAL COMMITTEE, 1. Introduction
Having regard to the Treaty establishing the Euro-
pean Atomic Energy Community, and in particular
Article 170 thereof,
Having regard to the request made by the Council
of the European Communities on 20 December
1982 for an opinion on the proposal for a Council
Decision adopting new provisions relating to Chap-
ter VI 'Supplies' of the Treaty establishing the Euro-
pean Atomic Energy Community ('),
Having regard to the decision taken by its Bureau
on 14 December 1982, instructing the Section for
Energy and Nuclear Questions to draw up an opin-
ion on the matter,
Having regard to the opinion adopted by the above-
mentioned Section at its 82nd meeting on 9 September
1983,
Having regard to the oral report made by the rap-
porteur Mr von der Decken,
Having regard to the proceedings at its 210th plen-
ary session held on 28 and 29 September 1983
(meeting of 28 September),
HAS ADOPTED THE FOLLOWING OPINION
with 69 votes in favour, five votes against and
12 abstentions:
(•) OJ No C 330, 16. 12. 1982, p. 4.
1.1. Article 76 of the Euratom Treaty makes pro-
vision for changes to be made to Chapter VI after a
period of seven years has elapsed, i.e. from 1964
onwards. The Commission has already made two
proposals for changes to the chapter (in 1964 and in
1970). Neither proposal was accepted.
1.2. The current version of Chapter VI gives the
Euratom Commission a monopoly in the trade in
nuclear fuels as shortages of supply were possible at
the time when the provisions were drawn up. In
practice, however, things have turned out com-
pletely differently. This state of affairs is due in
particular to the fact that the initially expected
shortage, particularly of natural uranium, did not
occur.
1.3. As a result, the supply agency responsible for
exercising the rights and carrying out the duties of
this Commission has introduced a simplified proce-
dure which virtually implies in practice that, to a
certain extent, the agency gives its signature to con-
tracts but is generally not involved in negotiating
them. In many cases, nuclear fuels are only regis-
tered by the agency.
1.4. Chapter VI does not give the supply agency a
monopoly for processing contracts (Article 75). A
point of dispute in the past was whether enrichment
contracts were processing contracts. Consequently
No C 341/22 Official Journal of the European Communities 19.12.83
some Member States and undertakings did not sub-
mit contracts to the supply agency in the past.
1.5. For the reasons mentioned above and for var-
ious other reasons the Commission has now submit-
ted a new proposal for amending the provisions of
Chapter VI. This new proposal completely abolishes
the present monopoly but puts all processing con-
tracts on an equal footing with purchasing and sales
contracts, clearly lays down the principle of the mar-
ket economy and the unity of the Community mar-
ket and confirms the important new role of the Sup-
ply Agency based on the practical situation.
2. General comments
2.1. The Committee considers that the aim of any
revision of Chapter VI should be to draw up special
provisions for nuclear fuels, as compared with other
fuels, only in cases where such provisions are abso-
lutely necessary, given the special considerations
involved in nuclear technology. As the particular
issues of surveillance and safety are dealt with in
Chapter VII, Chapter VI can only deal and should
only deal with the provision of supplies, the market
economy and the unity of the market.
2.2. The Committee fully endorses the general aim
of the new provisions. A number of additional pow-
ers are however sought which were not contained in
the original text of the Treaty. The Committee pro-
poses to deal with these points and a number of spe-
cific amendments individually below.
2.3. The Committee hopes that it will soon be pos-
sible to reach agreement between all the parties con-
cerned, taking into account its specific comments
set out below, so that a new version of Chapter VI
of the Euratom Treaty can be adopted.
3. Specific comments
3.1. Article 52
This Article takes into account the fact that some
Member States possess nuclear weapons and makes
it clear that the role of the Community does not
cover supplies for military or explosive purposes.
The Committee does not see any possibility of
resolving this problem by a different proposal. It
would however stress that all materials for civil, non-
explosive purposes must be subject to the same rules
in all the Member States; otherwise there would be
unacceptable discrimination.
3.2. Article 53
The Committee welcomes the explicit confirmation
of the unity of the Community market given in
Article 53 (1). It does, however, recognize that this
applies only to the civil part of the market.
The Committee is unable to take a definitive stand
on the second paragraph of Article 53 until an offi-
cial version of such a Regulation is available. It con-
sequently requests that the text of this Regulation be
submitted to it for an opinion.
3.3. Article 57
The Committee wonders whether it would not be
sufficient, rather than requiring express authoriza-
tion for exports, for the supply agency simply to
take note of export contracts. In the Commission's
view it is anyway only in very rare exceptional cases
that export authorization would be refused. It
should therefore be sufficient for the supply agency
to check whether a particular contract is not con-
trary to the interests of the Community, rather than
considering whether it is in conformity with the gen-
eral interests of the Community.
3.4. All forms of contract processing must, in the
Committee's view, at all events be expressly
excluded as this type of work does not affect the
supply situation of the Community.
3.5. Article 58
The Committee considers that the wording of this
Article is too vague. The intention, stated in the
explanations given by the Commission, that only
investments involving international participation
are to be covered is not clear from the text of
Article 58. The Committee is also unable to see why
an enterprise involving international participation
should in general be dealt with differently from
purely national undertakings. Proposed large-scale
investments in the field of enrichment and repro-
cessing will anyway be well known throughout the
Community. The Committee therefore considers
that the whole of Article 58 is superfluous, particu-
larly as investors are not to be obliged to work
together and indeed could not be so obliged.
3.6. Article 60
The Committee holds the view that the establish-
ment of stocks should primarily be considered in the
case of natural uranium as it is only in respect of
supplies of this product that the Community is
19.12.83 Official Journal of the European Communities No C 341/23
necessarily dependent on non-EC countries. Even
in the case of this product, however, the Committee
is unable to see any practical reason for the estab-
lishment of such stocks by the Commission in the
foreseeable future.
3.7. Article 61
The Committee sees a fundamental contradiction in
endeavouring, on the one hand, to implement the
principle of the market economy — based as it is on
the free interplay between supply and demand —
and in introducing, on the other hand, measures to
bring about an enforced balance. Furthermore, it is
hardly possible to give a sufficiently clear definition
of what is meant by an imbalance between supply
and demand.
3.8. For the abovementioned reasons the Com-
mittee proposes that the proposed version of
Article 61 be deleted and replaced by the following
provision which only applies in the event of crisis:
'Article 61
In the event of serious threat of crisis the Com-
mission shall make all appropriate recommen-
dations to the Member States, persons and
undertakings on ways of overcoming such a
crisis.'
3.9. Article 62
3.10. Articles 63 to 71 inclusive
In the past the supply agency has earned a high
reputation, particularly because of the fact that it
has seen its basic role as one of giving support to
industry. The Committee therefore considers that
the agency should continue to be strengthened as
far as possible. One way in which its role should be
consolidated is by making express provision for
export contracts to be included in its field of respon-
sibility. The very fact that export contracts affect the
supply situation of the Community justifies their
notification to the Commission. The powers of the
supply agency should be adjusted accordingly. In
the Commitee's view it is absolutely essential to lay
down clear provisions in this matter.
3.11. Article 72
Provided that Article 57 is amended to specify that
it also covers export contracts, since they affect sup-
plies, the Committee has no objections to Article 72.
It hopes that its provisions will not prove too
unwieldy in practice.
3.12. Article 73
The Committee is unable to see the need for further
measures of surveillance, over and above those set
out in Chapter VII, 'Safeguards', and elsewhere.
In the Committee's view it cannot be disputed that
the Council must have the right to adopt, by unani-
mous decision and acting on a proposal from the
Commission, any appropriate measures to deal with
crisis situations.
3.13. Article 75
Contract processing should be expressly excluded as
it does not affect the supply situation in the Com-
munity.
Done at Brussels, 28 September 1983.
The Chairman
of the Economic and Social Committee
Francois CEYRAC
APPENDIX
to the opinion of the Economic and Social Committee
Rejected amendments
The following amendments, tabled in accordance with the Rules of Procedure, were rejected by
the Committee during the debate.
No C 341/24 Official Journal of the European Communities 19. 12. 83
Page 4, Item 3.1, Article 52
Delete the text of this item and replace by the following:
"The phrase "for civil and non-explosive purposes" in the first sentence of Article 52 should
be deleted.'
Reasons
Uniform conditions of supply for the 'materials' and a ban on all forms of discrimination, irres-
pective of the use to be made of the 'materials' (civil or military), are cornerstones of the Euratom
Treaty. These basic requirements must be maintained, given the need to afford the same treat-
ment to all markets in the Community. Some Member States have introduced de facto discrimina-
tion in the application of the rules set out in the Treaty by refusing to accept the unity of the
supply market and refusing to apply the control measures laid down in the Treaty to a considera-
ble number of their installations and/or those of their nationals. We must therefore avoid a situa-
tion whereby a new legal instrument legalizes a case of de facto discrimination.
The unity of the supply market is also confirmed in Chapter VII (Safeguards) where Article 84
states that 'in the application of the safeguards, no discrimination shall be made on grounds of
the use for which ores, source materials and special fissile materials are intended' and indicates in
its last paragraph that application of the safeguards ceases only when the materials are being spe-
cially processed for defence requirements or after such processing.
It is inadmissible for the Community to accept in its laws discrimination contrary to the unity of
the market as a result of the fact that certain 'materials' are 'non-allocated' either to civilian or
military programmes. This is particularly the case with regard to France which classifies over 80 %
of its materials as 'non-allocated' as a result of which they are not covered by the Euratom Treaty.
With a few exceptions the 'materials' of all the installations are thus regarded as having 'no fixed
utilization'. These are the 'materials' which are currently used to produce almost half — and it
will soon be more than half — of the total electricity produced in France. These 'materials',
which are obviously of considerable significance to Community energy production, are therefore
not covered by the provisions of the Euratom Treaty. The legalization of such a situation by the
proposed text is unacceptable and, furthermore, by no means necessary as is demonstrated by the
case of the United Kingdom, which is also a country which has nuclear arms but which has
agreed to deal with materials classified as military materials in accordance with both the spirit
and tlje letter of the abovementioned Article 84.
The application of sanctions (Article 74 of the new provisions) becomes an additional discrimi-
natory measure if all Member States are not subject to the same conditions.
Voting
For: 12, against: 49, abstentions: 19.
Page 9
Insert a paragraph on Article 74:
'The Committee feels that to give the Commission regulatory powers in this area is a particu-
larly delicate matter, especially as the new provisions would cover breaches of international
agreements. These powers should be vested in the Council'.
Reasons
This recognizes the importance of the fact that the application of sanctions or penalties is an
essential part of Chapter VI.
Voting
For: 7, against: 51, abstentions: 18.
Full & Egal Universal Law Academy