COUNCIL REGULATION (Euratom) 2021/100 of 25 January 2021 establishing a dedicated financial programme for the decommissioning of nuclear facilities and the management of radioactive waste, and repealing Regulation (Euratom) No 1368/2013

(1)

In line with the Rome Declaration of the Leaders of 27 Member States and of the European Council, the European Parliament and the European Commission of 25 March 2017, the Union budget should enable a safe and secure Europe. Nuclear decommissioning programmes have already contributed in this respect and can further contribute. After the shutdown of a nuclear facility, the main positive impact to be achieved is the progressive reduction of radiological risk for the workers, the public and the environment in the Member States concerned as well as in the Union as a whole.

(2)

A dedicated financial programme can bring additional EU added value by becoming a benchmark within the Union for the safe management of technological issues in nuclear decommissioning and the dissemination of knowledge. Financial assistance under such a financial programme should be provided on the basis of an ex ante evaluation identifying the specific needs and demonstrating the EU added value, with the aim of supporting the decommissioning of nuclear facilities and the safe management of radioactive waste.

(3)

The activities covered by this Regulation should comply with applicable Union and national law. Financial assistance under this Regulation should remain exceptional, without prejudice to the principles and objectives stemming from Union law on nuclear safety, namely Council Directive 2009/71/Euratom (2), and waste management, namely Council Directive 2011/70/Euratom (3). Pursuant to Articles 4(1) and 7(1) of Directive 2011/70/Euratom, the ultimate responsibility for the safe management of the spent fuel and radioactive waste generated remains with the Member States.

(4)

In accordance with the Protocol concerning the conditions and arrangements for admission of the Republic of Bulgaria and Romania to the European Union (4) annexed to the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union (5) (‘Treaty of Accession’), Bulgaria committed to the closure of Units 1 and 2 and Units 3 and 4 of the Kozloduy Nuclear Power Plant by 31 December 2002 and 31 December 2006 respectively, and to the subsequent decommissioning of those units. The decommissioning has resulted in a significant financial burden of direct and indirect cost for Bulgaria. In line with its obligations, Bulgaria shut down all units concerned within the respective deadlines.

(5)

In accordance with Protocol No 9 on unit 1 and unit 2 of the Bohunice V1 nuclear power plant in Slovakia attached to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (6) (‘Act of Accession’), Slovakia committed itself to the closure of Unit 1 and Unit 2 of the Bohunice V1 Nuclear Power Plant by 31 December 2006 and 31 December 2008 respectively, and to the subsequent decommissioning of those units. The decommissioning has resulted in a significant financial burden of direct and indirect cost for Slovakia. In line with its obligations, Slovakia shut down all units concerned within the respective deadlines.

(6)

In line with their obligations under, respectively, the Treaty of Accession and the Act of Accession, and with Union assistance, Bulgaria and Slovakia have made significant progress towards the decommissioning of the Kozloduy and Bohunice V1 nuclear power plants. Further work is necessary in order to safely achieve the decommissioning end state. Based on the current decommissioning plans, the decommissioning work is scheduled to be completed by the end of 2030 for Kozloduy Nuclear Power Plant and by 2025 for the Bohunice V1 Nuclear Power Plant.

(7)

The Joint Research Centre (‘JRC’) of the European Commission was established by Article 8 of the Treaty establishing the European Atomic Energy Community (‘Euratom Treaty’). In application of that Article, site agreements were signed during the period 1960-1962 between the Community, Germany, Belgium, Italy and the Netherlands. In the cases of Italy and the Netherlands, national nuclear installations were transferred to the Community. An infrastructure geared to nuclear research and comprising new installations was put in place at the four sites. Some of those installations are still in use today, while others have been shut down, in some instances more than 20 years ago, and have mostly become obsolete.

(8)

On the basis of Article 8 of the Euratom Treaty, and pursuant to Article 7 of Directive 2011/70/Euratom, the JRC, as a licence holder, is to manage its historical nuclear liabilities and decommission its nuclear installations that have been shut down in accordance with the relevant national legislation. Accordingly, the Nuclear Decommissioning and Waste Management Programme at the JRC was launched in 1999 with a communication to the European Parliament and the Council, and since then the Commission has provided regular updates on the progress of that programme.

(9)

The Commission has concluded that the best option to satisfy requirements stemming from point (f) of Article 5(1) and Article 7 of Directive 2011/70/Euratom is to pursue a strategy combining decommissioning and waste management activities while initiating the discussions between the JRC and host Member States regarding a potential transfer of the decommissioning and spent fuel and radioactive waste management liabilities in the case of mutual agreements between the Commission and the host Member States. The JRC should provide for and maintain adequate resources to fulfil its obligations with respect to decommissioning and the safety of spent fuel and radioactive waste management.

(10)

This Regulation responds to the needs identified for the Multiannual Financial Framework for the period from 1 January 2021 to 31 December 2027 and lays down a financial envelope for the entire duration of the nuclear decommissioning assistance programmes of Units 1 to 4 of the Kozloduy Nuclear Power Plant in Bulgaria (‘Kozloduy programme’) and Units 1 and 2 of the Bohunice V1 Nuclear Power Plant in Slovakia (‘Bohunice programme’), and for the decommissioning and spent fuel and radioactive waste management of the Commission’s nuclear installations at the JRC sites, namely JRC-Geel in Belgium, JRC-Karlsruhe in Germany, JRC-Ispra in Italy and JRC-Petten in the Netherlands (‘JRC decommissioning and waste management programme’). That financial envelope is to constitute the prime reference amount within the meaning of point 17 of the Interinstitutional Agreement of 2 December 2013 between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management (7) for the European Parliament and the Council during the annual budgetary procedure.

(11)

Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (8) (the ‘Financial Regulation’) applies to the dedicated financial programme for the decommissioning of nuclear facilities and the management of radioactive waste (the ‘Programme’). The Financial Regulation lays down rules on the implementation of the Union budget, including the rules on grants, prizes, procurement, indirect management, financial instruments, budgetary guarantees, financial assistance and the reimbursement of external experts.

(12)

In accordance with the Financial Regulation, Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (9), Council Regulations (EC, Euratom) No 2988/95 (10), (Euratom, EC) No 2185/96 (11) and (EU) 2017/1939 (12), the financial interests of the Union are to be protected by means of proportionate measures, including measures relating to the prevention, detection, correction and investigation of irregularities, including fraud, to the recovery of funds lost, wrongly paid or incorrectly used, and, where appropriate, to the imposition of administrative penalties. In particular, in accordance with Regulations (Euratom, EC) No 2185/96 and (EU, Euratom) No 883/2013, the European Anti-Fraud Office (OLAF) has the power to carry out administrative investigations, including on-the-spot checks and inspections, with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union.

The European Public Prosecutor’s Office (EPPO) is empowered, in accordance with Regulation (EU) 2017/1939, to investigate and prosecute criminal offences affecting the financial interests of the Union as provided for in Directive (EU) 2017/1371 of the European Parliament and of the Council (13). In accordance with the Financial Regulation, any person or entity receiving Union funds is to fully cooperate in the protection of the financial interests of the Union, grant the necessary rights and access to the Commission, OLAF, the Court of Auditors and, in respect of those Member States participating in enhanced cooperation pursuant to Regulation (EU) 2017/1939, the EPPO, and ensure that any third parties involved in the implementation of Union funds grant equivalent rights.

(13)

This Regulation does not prejudge the outcome of any future State aid procedures that may be undertaken in accordance with Articles 107 and 108 of the Treaty on the Functioning of the European Union (TFEU).

(14)

The amount of the appropriations allocated to the Programme, as well as the programming period and the distribution of funds among the activities, may be reviewed based on the results of the interim and final evaluation reports. It should be possible for additional budgetary flexibility to be obtained by redistributing funds among activities where and when needed, while giving priority to the activities contributing to addressing safety challenges in respect of the decommissioning and radioactive waste management of Units 1 to 4 of the Kozloduy Nuclear Power Plant in Bulgaria and of Units 1 and 2 of the Bohunice V1 Nuclear Power Plant in Slovakia, without prejudice to other activities carried out under this Regulation and in accordance with the Financial Regulation.

(15)

The Programme should also involve the creation of knowledge and the sharing of experience. Knowledge and experience gained and lessons learnt under the Programme with regard to the nuclear decommissioning process should be disseminated in the Union, in coordination and synergy with the Union programme for decommissioning activities in Lithuania, as such measures bring the greatest EU added value and contribute to the safety of the workers and the general public as well as protection of the environment. The scope, procedure and economic aspects of cooperation should be detailed in the multiannual work programme and could also be subject to agreements between the Member States and/or with the Commission.

(16)

The JRC should facilitate the dissemination of knowledge among different Union stakeholders in a coordinated way, for example by carrying out market analysis, reviews and assessments of knowledge needs in the Union, identifying potential directions for cooperation, interested stakeholders and spheres in which knowledge created in the implementation of the Programme would bring the greatest added value, and developing formats for knowledge sharing. The dissemination of knowledge created should be financed by the JRC. Any Member State should be able to initiate the development of ties and exchanges for knowledge dissemination.

(17)

The decommissioning of the nuclear facilities and radioactive waste management covered by this Regulation should be carried out with recourse to the best available technical expertise, and with due regard to the nature and technological specifications of the installations to be decommissioned, in order to ensure safety and the highest possible efficiency, thus taking into account international best practices.

(18)

Effective monitoring and control of the evolution of the decommissioning process should be ensured by Bulgaria, Slovakia and the Commission in order to assure the highest EU added value of the funding allocated under this Regulation, although the ultimate responsibility for the decommissioning rests with the two Member States concerned. This includes effective measurement of progress and performance, and the enacting of corrective measures where necessary. To that end, a committee with monitoring and information functions should be established and co-chaired by a representative of the Commission and of the Member State concerned. Similarly, a group of independent experts from the Member States appointed by the Commission assists the JRC decommissioning and waste management programme.

(19)

Pursuant to paragraphs 22 and 23 of the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (14), the Programme should be evaluated on the basis of information collected in accordance with specific monitoring requirements while avoiding an administrative burden, in particular on Member States, and overregulation. Those requirements, where appropriate, should include measurable indicators as a basis for evaluating the effects of the Programme on the ground.

(20)

The activities under the Kozloduy programme and Bohunice programme should be identified within the boundaries defined by the decommissioning plans submitted by Bulgaria and Slovakia in accordance with Council Regulation (Euratom) No 1368/2013 (15). Those plans define the scope of those programmes, as well as the decommissioning end states, target dates and end-dates. They also cover the decommissioning activities, their associated schedule, costs and required human resources.

(21)

Activities under the Kozloduy programme and Bohunice programme should be conducted with a joint financial effort of the Union and Bulgaria and Slovakia respectively, in line with the co-financing practice established under the predecessor programmes.

(22)

Regulation (Euratom) No 1368/2013 should therefore be repealed.

(23)

Due account has been taken of the Special Report No 22/2016 of the Court of Auditors entitled ‘EU nuclear decommissioning assistance programmes in Lithuania, Bulgaria and Slovakia: some progress made since 2011, but critical challenges ahead’.

(24)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (16).

(25)

Horizontal financial rules adopted by the European Parliament and the Council on the basis of Article 322 TFEU apply to this Regulation. Those rules are laid down in the Financial Regulation and determine in particular the procedure for establishing and implementing the budget through grants, procurement, prizes and indirect implementation, and provide for checks on the responsibility of financial actors. Rules adopted on the basis of Article 322 of the TFEU also concern the general regime of conditionality for the protection of the Union’s budget.

(26)

The methods of implementation and forms of Union funding laid down in this Regulation should be chosen on the basis of their ability to achieve the specific objectives of the activities and to deliver results, taking into account, in particular, the costs of controls, the administrative burden, and the expected risk of non-compliance. This should include consideration of the use of lump sums, flat rates and unit costs, as well as financing not linked to costs as referred to in point (a) of Article 125(1) of the Financial Regulation,