The primary legislation governing the nuclear sector in the European Union is the Treaty establishing the European Atomic Energy Community (“the Euratom Treaty”). Whilst the Euratom Treaty takes precedence over more general European laws established under the Treaty of the Functioning of the European Union (“TFEU”), general EU law still applies to areas that fall outside the scope of the Euratom Treaty such as public procurement, state aid and environmental protection.
As things stand there is a huge amount of uncertainty surrounding the UK’s exit from EU but below are a few points on the potential implications for UK nuclear law (in the order they appear in the Euratom Treaty) which deliberately exclude possible commercial implications:
Withdrawal from the Euratom Treaty – Article 106a of the Euratom Treaty provides that the Article 50 procedure under the Treaty of European Union also applies to the Euratom Treaty. As a result Brexit will mean the UK leaving the Euratom Community at which point it will no longer be governed by the Euratom Treaty or any of the Directives or Regulations adopted under it.
Implementing UK legislation and the origin of UK nuclear law – UK legislation will remain in force following Brexit until repealed and/or amended by the UK government. The only immediate impact following Brexit is that directly effective EU regulations will cease to have legal effect. Most nuclear law in the UK is ultimately derived from International Treaties (typically IAEA/NEA/UN Treaties) or internationally accepted standards and best practice, rather than originating from EU law. As a result the withdrawal from the Euratom Treaty and any Directives or Regulations will only impact those provisions of the treaty itself (eg Article 37 below) or any directly applicable EU Regulation. Some (non-exhaustive) examples are below.
Research and development and dissemination of technical information – in recent years the UK has benefited from grant funding from the Joint Nuclear Research Centre established under Article 8 of the Euratom Treaty. Brexit could mean such funding is withdrawn and that new arrangements will possibly have to be agreed regarding, for instance, the Joint European Torus project based at Culham.
Basic Safety Standards – Article 30 of the Euratom Treaty provides authority for the adoption of the Basic Safety Standards Directive (“BSS Directive”) which itself provides the legal basis for justification and radiation protection within EU law. On withdrawal from the EU, the BSS Directive will cease to apply but it is likely that the current UK legislation will remain substantially the same in order to maintain UK compliance with IAEA Fundamental Safety Principles and best practice published by the International Council for Radiation Protection.
Article 37 of the Euratom Treaty – the UK government is currently obliged to submit ‘general data’ to the Commission in relation to any plan for the disposal of radioactive waste in the UK, to enable the Commission to consider whether such a plan is liable to result in the radioactive contamination of the water, soil or airspace of another Member State. In practice this covers many new nuclear developments. Whilst UK planning authorities may no longer require a positive opinion from the Commission under Article 37 prior to granting planning permission for nuclear developments, the UK may retain legislation requiring developers to undertake transboundary environmental impact assessment under its general environmental laws and/or to secure compliance with its obligations under the Convention on Environmental Impact Assessment in a Transboundary Context.
Articles 41 and 43 of the Euratom Treaty – developers of certain nuclear projects in the UK are currently obliged to notify the Commission in advance of any investment. Given this notification requirement originally related to pre-qualification for EURATOM loans it could disappear once the UK withdraws from the Euratom Treaty.
Nuclear Fuel Supply contracts – Chapter 6 of the Euratom Treaty governs the supply of ores, source materials and special fissile materials to or from a member of the European Union as well as providing a legal right of option for the Euratom Supply Agency over such materials entering or leaving the Community. On its withdrawal the UK is likely to need to enter a specific agreement with the Euratom Community regarding its ongoing supply of ores, source materials and special fissile materials to members of the European Union. The terms of this agreement will obviously dictate the extent to which UK suppliers remain bound by Chapter 6 of the Euratom Treaty and the impact that withdrawal will have on existing supply contracts. Existing fuel contracts between UK suppliers and operators based outside the EU will no longer be subject to Chapter 6 of the Euratom Treaty and the implications of which will depend on the terms and conditions of existing contractual arrangements between the parties.
Safeguards – although Commission Regulation (Euratom) 302/2005 has direct effect and has not been specifically implemented into UK law, wider UK legislation on safeguards will remain in force in some form to ensure the UK complies with various obligations under international law including the Treaty on the Non-Proliferation of Nuclear Weapons and the voluntary offer safeguards agreement and additional protocol in place between the UK, Euratom and the IAEA. We can probably expect some changes here.
Nuclear Common Market – Chapter 9 of the Euratom Treaty provides for the establishment of a nuclear common market which effectively guarantees the free movement of people, goods, services and capital within the Euratom Community. The extent to which the UK retains access to the EU single market (including the nuclear common market) has already been highlighted as a key area of debate for the UK in its exit negotiations with the EU. Depending on the outcome of these negotiations, any restrictions on the UK’s access to the nuclear common market could be one of the most significant impacts on the UK nuclear sector following the UK’s withdrawal from the Euratom Community.
Export Controls – although the Dual Use Regulation (428/2009) has direct effect and has not been specifically implemented into UK law, the substance of domestic legislation is unlikely to change as the UK remains subject to other obligations such as those associated with its membership of the Nuclear Suppliers Group.
Bilateral Co-operation Agreements – to date the UK has entered a number of co-operation agreements with non EU states such as China, Japan and the USA. Following withdrawal from the Euratom Community the UK may seek to amend these existing arrangements and / or enter similar agreements with certain EU member states.