UK government charts legal route out of Euratom

13 July 2017

The UK government's Department for Exiting the European Union has today published a position paper on nuclear materials and safeguards issues, which the head of the country's Nuclear Industry Association (NIA) says "demonstrates the complexity" of replicating arrangements with the European Atomic Energy Community (Euratom).

The document is part of the UK's Article 50 negotiations with the EU since the government has said Brexit includes leaving Euratom. Its publication was timed to coincide with the government's EU (withdrawal) bill, which makes 13 references to Euratom.

Announcing publication of the position paper, the Department said: "While the UK is leaving Euratom we want to continue working closely with the Euratom Community to help ensure a smooth and orderly exit and to pave the way for a future relationship that benefits the UK and the remaining 27 Member States."

Five principles

It proposes to work with Euratom according to five principles: ensuring a smooth transition to a UK nuclear safeguards regime with no interruption in safeguards arrangements; providing certainty and clarity to industry and others wherever possible; collaborating on nuclear research and development in order to maximise the benefit of shared expertise and resources; minimising barriers to civil nuclear trade for industry in the UK, Euratom and third countries; ensuring mobility of skilled nuclear workers and researchers; and collaborating on areas of wider interest, including regulatory cooperation and emergency preparedness.

The document also gives two "initial issues for discussion" - nuclear safeguards arrangements; and provision of legal certainty on immediate issues related to nuclear material in both the UK and Euratom to "provide certainty to industry and reassurance to all".

As a leader in nuclear safety and with a "proven track record" as a responsible Nuclear Weapons State, the UK has been a "strong and active" member of the International Atomic Energy Agency (IAEA) since 1957, it said. It enjoys a "wide-ranging and successful" partnership with the EU in the civil nuclear sector, which is "rooted in a strong and mutually beneficial trade relationship". Its expertise in nuclear research and development has put it "at the heart of wider EU collaboration to develop the clean energy of the future", it said.

The Treaty establishing Euratom provides the basis for the UK's cooperation with the Euratom Community on civil nuclear issues. It includes the provision of safeguards arrangements for non-proliferation of nuclear materials, cooperation in nuclear research and development, mobility of workers and trade in the nuclear sector and wider nuclear regulatory cooperation, the paper notes.

The UK invoked Article 106(a) of the Treaty establishing Euratom at the same time as Article 50 of the Treaty on European Union (TEU), reflecting the fact the treaties of the EU and Euratom are "uniquely legally joined", it said.

Equipment and material

The document notes the importance of agreeing the future ownership and liabilities for safeguards equipment that is currently owned by the Euratom Community and located in the UK.

"The UK will ensure that all necessary safeguards equipment is in place to comply with its IAEA obligations. As part of this, further consideration will be given to the possibility of the UK taking ownership of existing Euratom-owned equipment. This will need to be rooted in a common understanding of the fair value and liabilities of the equipment concerned, and interactions with the EU budget," it said.

There are legal and contractual issues related to nuclear material in both the UK and EU, for which "early resolution" is important, the paper says, in providing the necessary legal certainty to operators and governments.

The ownership of all special fissile material that is currently with the Euratom Community "by virtue of" Article 86 of the Treaty, and which is present on UK territory on the date of withdrawal, should transfer to the persons or undertakings with the right of use and consumption of the material pursuant to Article 87 of the Treaty, it says. This should apply in relation to all persons or undertakings with the right of use and consumption, whether these are established in the UK, EU or non-EU states, it adds.

Contracts for the supply of nuclear material between operators in the UK and Euratom, which have been approved by the Euratom Supply Agency and European Commission, should remain valid and not require any further approvals, it says.

Appropriate arrangements will also need to be agreed in relation to used fuel and radioactive waste, and this should include ensuring they remain the responsibility of the State in which it was generated, as is currently the case under Community Law, it adds.

This should not affect the right of the UK or an undertaking in the UK to return radioactive waste after processing to its country of origin, it says.

Nuclear Weapons State

The UK remains "firmly committed", the position paper says, to maintaining its role as a responsible Nuclear Weapons State and non-proliferation leader, and to ensuring that a UK nuclear safeguards regime is in place that is commensurate with its international obligations through the IAEA.

To ensure this, it gives five commitments from the UK. These are: to agree a Voluntary Offer Agreement with the IAEA that sets out the UK's primary safeguards arrangements in international law; take responsibility for meeting the UK's safeguards obligations, as agreed with the IAEA; in line with the specific circumstances of the UK and respecting the UK's current obligations, agree Nuclear Cooperation Agreements between the UK and key non-EU/Euratom States, including Australia, Canada, Japan and the USA - these agreements will underline the UK's commitment to upholding the safeguards obligations agreed with the IAEA; work closely with the European Commission to ensure a smooth transition to its new arrangements, including the setup of the new safeguards regime; and seek to ensure that the UK's new regime provides for continued close cooperation with the Euratom Community.

'Very little detail'

Tom Greatrex, NIA chief executive, said: "While containing very little detail, the UK government's position paper demonstrates the complexity of replicating Euratom arrangements in UK regulation and co-operation agreements with third countries which the industry has warned of. The government must therefore make the need for transitional arrangements its starting point in negotiations. Failure to do so will risk precisely the disruption the government state they want to avoid.

"It remains the UK nuclear industry's view that retaining Euratom membership will best serve the national interest. It may also be the most straightforward, seamless and sensible way to achieve the government's stated preferred outcome is through the associated membership the Euratom treaty enables. Exploring that should be a priority in discussions with European institutions.

"The government has also said it wishes to provide "certainty and clarity" to industry. Given the lack of clarity to date, it is imperative now that the government ensures there is regular and ongoing dialogue with industry so there is a full appreciation of the practical, logistical and administrative consequences of these negotiations."

Repeal Bill published

An important part of Brexit is to ensure smooth continuation of all legal matters after the UK leaves the EU. The British government intends to pass a bill to transfer all EU-derived legislation into UK law, effective from the first day outside the EU. After this the UK will be free to make changes as it sees fit.

To leave the European Union the UK must repeal the European Communities Act 1972. This necessarily means leaving Euratom, which is one of the three 'Communities', even though Euratom remains ostensibly separate because it was not incorporated by the Treaty of Lisbon in 2009.

The Secretary of State for Exiting the European Union, David Davis, told the House of Commons in January that the 1957 Euratom Treaty uses the same institutions as the EU, including the European Court of Justice. "That's why," he said, "the 2008 EU Amendment Act makes clear that in UK law membership of the European Union includes Euratom and that's why Article 50 applies both to the European Union and Euratom."

Today the government published the text of the European Union (Withdrawal) Bill that would repeal the European Communities Act and put subsequent EU-derived law into UK statute, ahead of what is expected to be fierce parliamentary debate and numerous proposals for amendment. 

Davis also said in January the UK will seek an alternative agreement with the IAEA if it fails to negotiate "some sort of relationship" with Euratom during Brexit negotiations.

Researched and written
by World Nuclear News