The Euratom aspects of the EU draft withdrawal treaty
Posted in Energy
The European Commission and the UK Government are progressing negotiations on the draft of the withdrawal treaty, which sets out the proposed terms of the UK’s withdrawal from the EU (the Draft Withdrawal Treaty), with the latest published version dated 19 March 2018 including a significant number of agreed provisions. When the UK commenced the Article 50 withdrawal process on 29 March 2017 by formally serving notice of its intention to leave the EU, it also initiated in parallel its withdrawal from the European Atomic Energy Community (Euratom) and the associated treaty (the Euratom Treaty). As a consequence, the Draft Withdrawal Treaty includes the European Commission’s proposed treatment of Euratom related issues in Articles 75 – 81 (available here). Agreement has already been reached on most of the Euratom separation issues, however further discussion is needed in relation to ownership and control over special fissile materials located in the UK (article 79). The Draft Withdrawal Treaty anticipates a transition period, ending on 31 December 2020, prior to which EU law, including the Euratom Treaty, will continue to apply in the UK.
We have highlighted some of the key aspects of the Draft Withdrawal Treaty relating to Euratom below.
- Transfer of responsibility for nuclear matters: As expected, after the transition period the UK will have sole responsibility for ensuring that all nuclear materials covered by the Euratom Treaty, and present on the territory of the UK, are handled in accordance with international treaties and conventions, and for compliance with the UK’s international obligations, including those arising as a consequence of the UK’s membership of the International Atomic Energy Agency (IAEA) and under the Treaty on the Non-Proliferation of Nuclear Weapons. The UK will also be responsible for ensuring that it continues to fulfil any specific obligations relating to nuclear equipment, material or other nuclear items present in the UK under agreements concluded between Euratom and third countries or international organisations– or for concluding alternative agreements.
- Nuclear safeguards: The UK is to implement a safeguards regime offering equivalent protection to the Euratom Treaty in the territory of the UK in line with the agreement between the UK, Euratom and the IAEA for the Application of Safeguards in the United Kingdom of Great Britain and Northern Ireland in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons [INFCIRC/263] as amended. This appears to be in line with the UK government’s previous assurances that the UK’s withdrawal from Euratom will not affect the robust nuclear security and safety requirements currently in place. The Nuclear Safeguards Bill introduced to Parliament in October 2017 (available here), will set the framework for achieving this objective, by amending the Energy Act 2013. Practically speaking, the new safeguards regime is likely to result in increased responsibility and oversight for the Office for Nuclear Regulation (ONR), who will play an even more important role in ensuring the UK’s new nuclear safeguards regime meets international safeguard, and nuclear non-proliferation, standards. For more information, see our blog The plan for nuclear safeguarding post Brexatom.
- Special fissile materials: The UK and EU are still negotiating arrangements in relation to special fissile materials (as defined in the Euratom Treaty and comprising primarily plutonium and enriched uranium isotopes). The EU proposal is that, following the end of the transition period, special fissile materials present in the UK will cease to be the property of Euratom and will become property of the persons or undertakings that hold the unlimited right of use and consumption of those materials. However, Euratom will retain rights of ownership where the right of use and consumption referred to above lies with an EU member state (or persons or undertakings established in their territory). As such, the Draft Withdrawal Treaty envisages the continuation of the Euratom Supply Agency’s (ESA) remit in relation to certain special fissile materials, whereby the ESA will have the right to:
a) require that the materials concerned be deposited with the Euratom Supply Agency;
b) approve the sale of the materials concerned to any person in the UK or third country before that sale takes place; and
c) approve the transfer of the material concerned to a third country before the transfer takes place.
- Equipment: Euratom equipment and other property, relating to the provision of safeguards under the Euratom Treaty located in the UK at the end of the transition period will become the property of the UK. However, the UK must reimburse to the Euratom for the value of that equipment and other property.
- Spent fuel and radioactive waste: : Aspects of the regime under article 4 of the Directive 2011/70/Euratom, requiring Member States to establish and maintain national policies on spent fuel and radioactive waste management and retain ultimate responsibility for spent fuel and radioactive waste generated by it, will be preserved meaning the UK will have ultimate responsibility for management of the spent fuel and radioactive waste generated in the UK and present in a Member State at the end of the transition period.
Whilst the Draft Withdrawal Treaty is expected to be finally agreed in October 2018, UK government officials are understood to be seeking to conclude Euratom related provisions earlier, in advance of Austria taking up the presidency of the European Council in July 2018, due to Austria’s previous complaint in relation to Hinkley Point C.