94/285/Euratom: Commission Decision of 21 February 1994 relating to a procedure in application of the second paragraph of Article 53 of the Euratom Treaty (Only the German text is authentic)

Article 1

The applications made by Kernkraftwerke Lippe-Ems GmbH in its letter of 20 January 1994 are hereby rejected.

Article 2

This Decision is addressed to Kernkraftwerke Lippe-Ems GmbH, Rheinlanddamm 24, D-44139 Dortmund, Federal Republic of Germany.
Done at Brussels, 21 February 1994.
For the Commission
Abel MATUTES
Member of the Commission
(1) OJ No 32, 11. 5. 1960, p. 777/60.
(2) OJ No L 193, 25. 7. 1975, p. 37.
(3) OJ No C 241, 25. 9. 1986, p. 1.
(4) OJ No L 68, 15. 3. 1990, p. 2.
(5) OJ No 27, 6. 12. 1958, p. 534/58.
(6) OJ No L 302, 15. 11. 1985.

Article 113

of the EC Treaty. Such statements show that, in many respects, KLE misjudges the legal scope and independence of the Euratom Treaty. As a sectoral Treaty containing special rules for a common policy, including supplies coming from outside the Community, the Euratom Treaty takes precedence over the general provisions of the EC Treaty. This precedence not only derives from the general legal principle that special rules take precedence over general ones but is expressly stated in Article 232 (2) of the EC Treaty: 'The provisions of this Treaty shall not derogate from those of the Treaty establishing the European Atomic Energy Community'. Moreover, the European Atomic Energy Community and the European Economic Community were established, from a legal, organizational and institutional viewpoint, as two mutually independent Communities and the legal acts of one Community are not subject to the acts of the other. On this basis, any attempt to construe Chapter VI of the Euratom Treaty as lex imperfecta and to make the implementation of the Euratom Treaty's common supply policy subject to Article 113 of the EEC Treaty is to be rejected.
(23) Furthermore, the Commission cannot see in what respect measures taken by the Agency to implement the common supply policy can contravene Article 2 (g) or Articles 92 et seq. of the Treaty.
(d) Alleged contravention of the general principles of Community Law
(24) As its first point of grievance, KLE asserts that the Agency's action contravenes the principle of legal certainty. KLE maintains that its procurement policy is in line with Article 5 bis of the Agency Rules and that it has complied with all the requirements laid down in those Rules. The Agency, according to KLE, never communicated its supply quotas, so that sufficient transparency was not ensured.
In the first place it should be noted that, according to the wording of Article 5 bis of the Agency Rules, notification of the requisite minimum information about the contract does not, of itself, give the contracting parties any right to have their contract concluded by the Agency. As stated in particular in Article 5 bis (f) and (g), the Agency has the right to refuse to conclude contracts if necessary (see point 14 above).
Similarly, KLE must be aware of the basic principles of the common supply policy, particularly as regards the geographical diversification of sources of supply and the observance of market-related prices for supplies coming from the Commonwealth of Independent States (CIS). Quite apart from the legal acts already quoted in points 16 and 21 above, and published in the Official Journal of the European Communities, producers and users of nuclear material in the Community participate, through the Advisory Committee to the Agency, in devising and implementing the common supply policy.
(25) According to Article X of the Statutes of the Euratom Supply Agency of 6 November 1958 (5), as last amended by the Act of Accession of Spain and Portugal (6), which sets up the Advisory Committee to the Agency, 'the members of the Advisory Committee shall be appointed by the Council, acting on a proposal from the Member States and after obtaining the opinion of the Commission, from representatives of producers and users and from highly qualified experts'. According to Article XI(1) of the Statutes, the Advisory Committee acts 'as a link between the Agency on the one hand and users and sectors concerned on the other'. As can be seen from numerous minutes of meetings, questions regarding the common supply policy, relevant for this case, have on more than one occasion been discussed by the Advisory Committee. In addition, the Agency informed users about the common supply policy at a meeting attended by KLE representatives, as is evident from the minutes of that meeting.
(26) As to the rest, there can be no question of supply quotas previously specified and then allocated to different users. Since the Agency alone has the right to conclude contracts for the supply of nuclear material originating outside the Community, it endeavours to meet the orders submitted to it, as far as possible, within the framework of the common supply policy and to refuse or impose conditions upon the conclusion of a contract only when and to the extent that, given the circumstances of the individual case, the conclusion of the proposed contract would secure a privileged position for the user concerned.
(27) KLE further alleges that the Decision of the Agency contravenes the principle of the legality of administrative action. With reference to an example taken from EC agricultural legislation, it puts forward the view that the Euratom Treaty envisages no constitutional, essentially balanced, evenly applied administrative procedures which are transparent for market operators.
The Commission cannot share this view. Indeed, under the simplified procedure provided for in Article 5 bis of the Agency Rules, the Community grants users and producers a maximum of transparency and market economy freedom and limits public intervention to an irreducible minimum which is reasonable under prevailing market conditions. Should it prove, however, that users and producers, within the framework of the Advisory Committee or indeed outside it, are generally in favour of abolishing this simplified procedure and introducing a formal quota system as proposed by KLE along the lines of EC agricultural law, the Agency will be faced with a new situation and will have to consider what appropriate measures to take. In any case, up to now, both the Advisory Committee and users and producers have expressed themselves almost unanimously opposed to such ideas.
(28) KLE then alleges that the Agency's action contravenes the general equality principle by taking an 'automatic quota' for each individual user and not allowing for the user's particular circumstances and the terms of the different supply contracts.
As already stated in points 26 and 27 above, we are not at present concerned with the introduction of a general and rigid quota system for all users but with a case-by-case examination by the Agency of the terms of each individual contract (see part IV of the recital of Decision No 1/94).
(29) KLE further alleges that the principle of proportionality has been infringed. According to KLE, the conditional signing of an intra-Community supply contract is unnecessary since, to achieve its objectives, the Agency need only refuse to conclude supply contracts for materials coming from outside the Community, as is its exclusive right. KLE also considers that the refusal to conclude a contract unconditionally is also disproportionate, since the Treaty provides for less injurious supply policy instruments such as building up emergency stocks and taking steps to promote prospecting. KLE further considers that forcing users to purchase supplies of urannium at excessive prices for the sake of a diversification policy is foreign to the purposes of the Treaty, and that it is questionable whether the desired objectives can be achieved only by imposing a ceiling of 20 to 25 % on imports from the CIS.
(30) First, for the sake of maintaining confidence and fair play between contracting parties, the Commission does not believe that the Agency, knowing the origin of the materials in question, should have unconditionally concluded the supply contract between KLE and BNFL and instead refused to conclude the supply contract between BNFL and its supplier.
(31) As regards the building-up of emergency stocks pursuant to the second paragraph of Article 72 of the Treaty and financial support for prospecting programmes pursuant to Article 70 of the Treaty, KLE's argument does not affect the legality of the Agency's actions, as these are responsibilities of the Commission and of the Council and not of the Agency. Pursuant to the first paragraph of Article 72, the Agency is responsible only for building up commercial stocks, and in any case in view of the current supply situation the conditions for the application of this provision are not met.
(32) As regards the claim that the Agency is forcing the user to purchase uranium at 'excessive prices', part II of the recital of the Agency's decision does not defend purchasing at excessive prices, but refers to 'market-related prices', that is prices which reflect production costs and are consistent with the prices charged by producers in market-economy countries.
(33) As regards the doubt about the appropriateness of deliveries from the CIS States accounting for 20-25 % of total deliveries, the Commission would point out that the Community has concluded multiannual supply agreements with a number of third countries. The common supply policy must also take account of relations with these trading partners and with other supplier countries, so a further increase in the proportion of supplies coming from the CIS States would be difficult to reconcile with the Community's long-term supply interests.
(e) Alleged abuse of powers
(34) KLE's allegation on this point relies on polemical assertions regarding the Agency's motives, which the Commission firmly rejects. Insofar as KLE makes specific claims in this respect, these have already been refuted and rejected (see in particular points 14, 15, 16 and 22).
(f) Allegation that a 'preferential position vis-à-vis other users' would not be established as a result of unconditional conclusion of the contract
(35) This final complaint by KLE comprises a series of separate complaints, which KLE summarizes under the following headings:
(i) Ensuring fair distribution by means of freedom to conclude contracts in accordance with Article 5 bis of the Agency Rules,
(ii) No competence to act based on illegal Agency practice vis-à-vis other users,
(iii) Invalidity of the isolated application of Article 52 (2) (a) of the Treaty,
(iv) Historically incorrect application of Article 52 (2) (a) of the Treaty,
(v) No infringement of the right to equal access,
(vi) Failure by the Agency to implement its 'diversification policy' throughout the Community.
(36) The assertions made at (i) and (ii) essentially repeat claims made earlier, which have been rejected at points 14 ff above. However, where KLE concedes that 'Article 52 (2) (a) of the Treaty, in addition to the provisions enumerated in Article 5 bis of the Agency Rules, allows a margin for monitoring abuse of the system', it approaches the interpretation of the Agency and also of the Commission in one important respect (see point 26 above). Likewise, KLE's observation that the Agency may in the past have been able, 'by exercising its right to conclude contracts, to impose on a single user or a substantial proportion of all users the "diversification policy" which it is allegedly pursuing,' shows that there is in practice no basis for KLE's claim that the Agency's role is 'quasi notarial' (see (iii)). That this claim has no legal basis has been demonstrated above (see in particular point 14).
Whether and to what extent Aricle 52 (2) (a) refers, 'by virtue of its legal origin, to a quite different case', as KLE claims at (iv), is irrelevant, as pursuant to Article 208 the Treaty is concluded for an unlimited period and its provisions remain binding under changing conditions.
The claim made at (v) likewise repeats an earlier complaint which has been rejected at point 30 above.
At (vi) KLE admits that it 'would secure a privileged position only to the extent that the Agency was able to impose its "diversification policy" on all users under identical conditions'. Insofar as 'individual users established in the Community are bypassing the Agency', as KLE claims without elaborating any further, KLE cannot rely on the purported illegal behaviour of third parties in its complaint against the Agency.
The CIS States' 20-25 % share of supplies, which is criticized as being imprecise, is in the Commission's opinion beyond reproach, as it allows the circumstances of individual cases to be taken into account more easily than would be the case with a fixed percentage.
III. CONCLUSION (37) As is demonstrated above, none of the complaints made against Agency Decision No 1/94 is founded. As the examination of the case has revealed no grounds for questioning the validity of Decision No 1/94, KLE's application cannot be granted,
HAS ADOPTED THIS DECISION:

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