Avis juridique important

Order of the Court of 7 December 1990. - Advanced Nuclear Fuels GmbH v Commission of the European Communities. - Commission Decision 90/413/Euratom of 1 August 1990 relating to a procedure in application of Article 83 of the Euratom Treaty and Commission Dcision 90/465 of 20 August 1990 for enforcement - Application by the Commission to the Court for an order for the immediate enforcement of those decisions. - Case C-308/90. European Court reports 1990 Page I-04499

Parties Grounds Operative part

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EAEC - Safety monitoring - Sanctions imposed on undertakings - Placing under administration - Suspensory effect of appeals to the Court - Examination by the Court of an application for immediate enforcement

( EAEC Treaty, Art . 83(2 ), second paragraph )

In Case C-308/90,

Advanced Nuclear Fuels GmbH, a company incorporated under German law, whose registered office is at Lingen ( Federal Republic of Germany ), represented by Dieter Sellner, of the Bonn Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 4 avenue Marie-Thérèse,

applicant,

v

Commission of the European Communities, represented by its Legal Adviser, Juergen Grunwald, acting as Agent, with an address for service in Luxembourg at the office of Guido Berardis, a member of its Legal Department, Wagner Centre, Kirchberg,

defendant,

concerning an application by the Commission under Article 83(2 ) of the Treaty establishing the European Atomic Energy Community for an order for the immediate enforcement of Commission Decision 90/413/Euratom of 1 August 1990 relating to a procedure in application of Article 83 of the Euratom Treaty ( Official Journal L 209, p . 27 ) and Commission Decision 90/465/Euratom ( 1 ) of 20 August 1990 concerning the appointment of the persons responsible for implementing Commission Decision 90/413/Euratom, relating to a procedure in application of Article 83 of the Euratom Treaty ( Official Journal L 241, p . 14 )

THE COURT

composed of : O . Due, President, G . F . Mancini, T . F . O' Higgins, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias, M . Díez de Velasco ( Presidents of Chambers ), Sir Gordon Slynn, C . N . Kakouris, R . Joliet, F . A . Schockweiler, F . Grévisse, M . Zuleeg, P . J . G . Kapteyn, Judges,

Advocate General : F . G . Jacobs

Registrar : J.-G . Giraud

after hearing the Advocate General

makes the following

Order

1 By application lodged at the Court Registry on 6 October 1990 Advanced Nuclear Fuels GmbH, which has its registered office at Lingen in the Federal Republic of Germany ( hereinafter referred to as "ANF Lingen "), brought an action pursuant to Article 146 of the Treaty establishing the European Atomic Energy Community ( hereinafter referred to as "the EAEC Treaty ") for the annulment of Commission Decision 90/413/Euratom of 1 August 1990, relating to a procedure in application of Article 83 of the EAEC Treaty ( Official Journal L 209, p . 27 ), and of Commission Decision 90/465 of 20 August 1990, concerning the appointment of the persons responsible for implementing Commission Decision 90/413/Euratom, relating to a procedure in application of Article 83 of the Euratom Treaty ( Official Journal L 241, p . 14 ).

2 Article 83(1 ) and ( 2 ) of the EAEC Treaty provides that :

"1 . In the event of an infringement on the part of persons or undertakings of the obligations imposed on them by this chapter, the Commission may impose sanctions on such persons or undertakings .

These sanctions shall be in order of severity :

( a ) a warning;

( b ) the withdrawal of special benefits such as financial or technical assistance;

( c ) the placing of the undertaking for a period not exceeding four months under the administration of a person or board appointed by common accord of the Commission and the State having jurisdiction over the undertaking;

( d ) total or partial withdrawal of source materials or special fissile materials .

2 . Decisions taken by the Commission in implementation of paragraph 1 and requiring the surrender of materials shall be enforceable . They may be enforced in the territories of Member States in accordance with Article 64 .

By way of derogation from Article 157, appeals brought before the Court of Justice against decisions of the Commission which impose any of the sanctions provided for in paragraph 1 shall have suspensory effect . The Court of Justice may, however, on application by the Commission or by any Member State concerned, order that the decision be enforced forthwith .

There shall be an appropriate legal procedure to ensure the protection of interests that have been prejudiced ."

3 In its defence and in a separate document lodged at the Court Registry on 7 and 15 November 1990 respectively, the Commission of the European Communities, pursuant to the second sentence of the second paragraph of Article 83(2 ) of the EAEC Treaty requested the Court to order the immediate enforcement of Decisions 90/413 and 90/465 .

4 By its Decision 90/413 the Commission, acting pursuant to Article 83(1)(c ) of the EAEC Treaty, placed the undertaking ANF Lingen under administration for a period of four months, and only as regards aspects connected with the safeguards mentioned in Chapter VII, Title Two, of the EAEC Treaty . By its Decision 90/465 the Commission appointed the persons responsible for performing that administrative task between 21 August and 21 December 1990 .

5 The Commission adopted Decisions 90/413 and 90/465 after being informed by ANF Lingen on 16 May 1990 that during the month of May 1990 the company had exported nuclear materials from the Federal Republic of Germany to its parent company, Advanced Nuclear Fuels based in Richland in the United States of America ( hereinafter referred to as "ANF Richland "), without previously declaring the exportation .

6 The exportation occurred owing to a combination of circumstances which are not contested and which are described in the preamble to Decision 90/413 as follows :

"On 8 May 1990, a loading pallet with two containers, each containing two boxes, was moved from the storage area to the material entry lock at the plant for the purpose of removing the box containing uranium pallets enriched to 3.3 %.

Once this operation had been completed,the pallet, together with its two containers, was mistakenly placed outside, close to the storage area for empty containers and forgotten about . The two containers on the pallet now only contained three boxes : one with 49.84 kilograms of uranium oxide ( UO2 ) enriched to 2.7% and the two others, weighing 49.86 and 47.29 kilograms respectively, with uranium enriched to 3.95 %.

On the morning of 11 May 1990, during preparation of a shipment of 72 empty containers for ANF Richland, the pallet in question was loaded by mistake by another employee on to a lorry belonging to a normal goods transport company .

The employee in charge of the operation observed that the containers on the pallet were marked with the labels stipulated by national law indicating the presence of radioactive materials . Since the containers were standing in this area, he believed them to be empty and destined for shipment, and removed the labels, replacing them with ones indicating that the containers were empty . On the same day, at 7 p.m ., the lorry was unloaded at Luxembourg-Findel Airport and the consignment packed for transport by air .

On 12 May 1990, the containers were transported by cargo plane to Seattle ( USA ), where they arrived at 9.10 p.m . local time .

On 14 May 1990, the containers were transported by road to ANF Richland, arriving on 15 May 1990 .

ANF Lingen was informed that same day by ANF Richmond that, after carrying out a routine dosimetric check, they had established the presence of nuclear material in the two containers which were supposed to be empty . An examination of the seals carried out immediately thereafter revealed that no material could have been removed from the three boxes concerned .

On 16 May 1990, ANF Lingen notified the Safeguards Directorate at the Commission of the occurrence .

On 17 May 1990, ANF Lingen also notified the Euratom supply agency of the occurrence ."

7 According to the parties, there was at no time any radiological risk for the undertaking' s personnel or for the environment, even during the transport operations .

8 In Article 1 of Decision 90/413 the Commission found that ANF Lingen "has infringed Article 79 of the EAEC Treaty as defined in Articles 10, 11 and 24 of Regulation ( Euratom ) No 3227/76 of the Commission of 19 October 1976 [concerning the application of the provisions on Euratom safeguards ( Official Journal L 363, p . 1 ) ] and in code 3.1.2 of the Commission Decision of 5 June 1985 on particular safeguards provisions, through : ( a ) its failure to give advance notification of an export; ( b ) its breach of the regulations on recording inventory changes; ( c ) its breach of the regulations on operating records regarding changes in quantities, and changes in the composition of nuclear material ". Pursuant to Article 83 of the Treaty, the Commission then went on to impose a sanction of placing the undertaking under administration .

9 In support of its application for the immediate enforcement of Decisions 90/413 and 90/465 the Commission argues that it is essential to avoid the recurrence of an undeclared exportation of nuclear materials, especially in view of the frequency with which ANF Lingen dispatches containers and intends to do so in the future . The Commission also states that the placing of ANF Lingen under administration from 21 August to 21 December 1990 is necessary in order to enable the setting up, in cooperation with the persons charged with the task of administration, of a computerized monitoring system, the operational results of which will be decisive for the assessment report to be submitted to the Commission by the persons responsible, pursuant to Article 3(3 ) of Decision 90/413 within eight days of the completion of their task of administration .

10 ANF Lingen states that, as well as informing the Commission and the Euratom Supply Agency, it also notified to the Ministry of Environment of Lower Saxony the facts surrounding the undeclared exportation of nuclear materials . After visiting the company' s premises at Lingen on 29 May 1990, representatives of the Ministry ordered the security arrangements applying to the operation of its plant at Lingen to be augmented . Not only had the company immediately complied with the order, but in addition and on its own initiative it ordered further measures to avoid the repetition of an exportation similar to that which gave rise to Decisions 90/413 and 90/465 . ANF Lingen declares that it has decided that the emptied boxes will be marked "empty" before being placed in the transport containers and that a dosimetric check will be made whenever empty transport containers are loaded . It also asserts that the working out and setting up of a computerized monitoring system in cooperation with the Commission does not have the importance attached to it by the Commission and that the system was to be completed and operational from October 1990 . In view of those circumstances, the Commission could, for example, pursuant to Article 81 of the EAEC Treaty, have sent inspectors into the territories of Member States in order to make inspections rather than imposing the sanction of placing the undertaking under administration .

11 ANF Lingen concludes, however, that it is not opposed to the continuation, until the end of the four-month period, of enforcement of the sanction imposed on it . It therefore considers that there is no need for an express order from the Court requiring the immediate enforcement of Decisions 90/413 and 90/465 .

12 It should be noted first of all that the parties are essentially in agreement as to the truth of the facts as reported in the preamble to Decision 90/413 .

13 Furthermore, it appears from the documents in the case that ANF Lingen has been in operation since 1979, has around 200 employees and since 1979 has received over 350 consignments of uranium from ANF Richland, to whom it returned the empty transport containers in each case . During none of those transport operations was any error like the one called into question by Decision 90/413 committed .

14 It must be observed, however, that the undeclared exportation was brought to the attention of ANF Lingen by third parties and that in the mean time it had not become aware of the fact that nuclear materials had disappeared from its premises and that those radioactive substances were in containers which had been labelled "empty" by mistake and had been dispatched in breach of the security measures applying to the transport of radioactive materials from the Federal Republic of Germany to the United States .

15 In view of those facts it must be acknowledged - and indeed this is not contested by ANF Lingen - that the measures for monitoring the security of the operations at the Lingen plant must be appropriately augmented in order to avoid a repetition of undeclared exports of nuclear materials, in particular to ANF Richland .

16 In view of the fact that ANF Lingen has recognized such a need by itself ordering supplementary monitoring measures and that it is not opposed to the continuation of the task of administering the undertaking for a period of four months, it is appropriate to order the immediate enforcement of Decisions 90/413 and 90/465 until the expiry of the four-month period .

On those grounds,

THE COURT

hereby orders as follows :

( 1 ) Commission Decision 90/413/Euratom of 1 August 1990 relating to a procedure in application of Article 83 of the EAEC Treaty and Commission Decision 90/465 of 20 August 1990 concerning the appointment of the persons responsible for implementing Commission Decision 90/413/Euratom, relating to a procedure in application of Article 83 of them EAEC Treaty, shall be enforced forthwith .

( 2 ) The costs are reserved .

Luxembourg, 7 December 1990 .