EU establishes binding framework on nuclear safety

On 25 June 2009, the European Council adopted the Nuclear Safety Directive (the “Directive”). The adoption of the Directive is timely given the revived interest in nuclear new build expressed by a number of member states and the prospect of extending the life of a number of existing nuclear power stations in the EU.

The concept of common EU nuclear safety standards has been under discussion for a number of years. Previous proposals which sought to harmonise nuclear safety standards met with resistance because certain member states (including the UK and Germany) were concerned that the proposals reduced the powers of national regulators in a strategically important industry for those member states. The European Commission subsequently revised its proposals towards the end of 2008 to create a legislative framework for nuclear safety which preserves the role of national regulators, paving the way for the adoption of the Directive yesterday.

The Directive aims to address the desire of many EU citizens for binding nuclear safety legislation, particularly in the context of an enlarged EU, and it is hoped that the Directive will improve public confidence in the nuclear sector across Europe.

The Directive gives legal force to the main international nuclear safety standards developed by the International Atomic Energy Agency (IAEA), the Fundamental Safety Principles, Safety Standards Series No. SF-1, and the obligations contained in the Convention on Nuclear Safety.

While all EU member states are contracting parties to the Convention on Nuclear Safety, the Convention is only an incentive instrument which obliges the parties to hold review meetings at the IAEA and produce reports at least every 3 years on the implementation of their obligations for peer review. As such, there is no enforcement mechanism under the Convention for Nuclear Safety for compliance with recommendations. However, now it will be possible to ensure that the laws of a relevant member state comply with the Directive’s provisions through the enforcement mechanics of the Euratom Treaty.

Under the Directive, member states will be required to report regularly on implementation of the Directive and national regulators will be subject to regular international peer group review to assess how they are implementing performance standards nationally. The Directive also reinforces the independence and resources of the national nuclear regulators.

In addition, for new nuclear power reactors, member states are required to aim to develop additional safety requirements in line with the principle of continuous improvement of safety, on the basis of the safety levels developed by Western European Nuclear Regulators Association and in close association with the High Level Group on Nuclear Safety and Waste Management. It is envisaged that the High Level Group on Nuclear Safety and Waste Management will become "the focal point of cooperation” between national regulators.

Member states will now have two years to transpose the Directive into national legislation.