The EU ‘Stress Tests’: The Basis for a New Regulatory Framework for Nuclear Safety

• Author: Milagros Álvarez‐Verdugo
• DOI: http://doi.org/10.1111/eulj.12114
• Date: 01 March 2015
• Published date: 01 March 2015

The EU ‘Stress Tests’: The Basis for

a New Regulatory Framework for

Nuclear Safety

Milagros Álvarez-Verdugo*

Abstract: Among the constitutional tensions at the heart of the European integration

process, the relationship between ‘mainstream’ EU Law (framed by the Treaty on

European Union) and Euratom Law has often been overlooked. Nonetheless, the EU’s

response to the nuclear power plant accident in Fukushima provides an opportunity to

revisit this relationship. This article specifically aims to highlight the dysfunctions of the

prevailing understanding of the Euratom’s provisions on nuclear safety matters as well as

to identify, under a joint interpretation of all EU Treaties, how to develop a European

nuclear safety regime that reinforces the compensatory role of EU law and contributes

to enhance the EU’s legitimacy.

I Introduction

In a global world, the impact of an event on one side of the planet can be felt many

thousands of miles away. This article examines why and how the Fukushima power

plant accident in Japan1has led to dramatic changes in European energy policies, and

in the process, has come to highlight constitutional tensions at the heart of European

law, specifically in the relationship between ‘mainstream’ EU law (constitutionally

framed by the Treaty on European Union) and Euratom law (as contained in the

often overlooked treaty establishing the European Atomic Energy Community—

EAEC—of 1957 and heavily influenced by international conventions and standards

on nuclear energy).

* Associate Professor, Departament de Dret i Economia Internacionals, Facultat de Dret, Universitat de

Barcelona, Avinguda Diagonal, 684, 08034 Barcelona, Spain, Email: malvarez@ub.edu. This work was

conducted in the framework of research projects DER2011-23492, ECO2012-38004 and 2014SGR1151.

The author wishes to thank Mathew Evangelista and ELJ’s reviewers and the editor for providing useful

comments on earlier drafts of this paper. All responsibility for remaining errors lies with the author.

1For an overview of the international community’s reaction to the Fukushima accident, see M. Bunn and

O. Heinonen, ‘Preventing the Next Fukushima’, (2011) 333 Science; L.L. Davies, ‘Beyond Fukushima:

Disasters, Nuclear Energy, and Energy Law’, (2011) Brigham Young University Law Review 1937;

S. Kus, ‘International Nuclear Law in the 25 Years between Chernobyl and Fukushima and Beyond . . .’,

(2011) Nuclear Law Bulletin 7; Q. Wang and X. Chen, ‘Regulatory Failures for Nuclear Safety—The bad

Example of Japan—Implication for the Rest of World’, (2012) 16 Renewable and Sustainable Energy

Reviews 2610, and World Energy Council, ‘World Energy Perspective: Nuclear Energy One Year After

Fukushima’, March 2012 (at http://www.worldenergy.org/publications/3863.asp).

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Unsurprisingly, the Fukushima accident has fostered demands not only for new

safety regulations but also for the new ‘governance’ of international nuclear safety

policy (a discussion with close ties to the debate on global public goods and the

democratic deficit of the decision-making processes of the state matrix),2challenging

in the process the current understanding of one of the policy’s guiding principles: the

national responsibility of States for the safety of nuclear installations.3Less obviously,

but just as significantly, the Japanese nuclear accident has made explicit the many

tensions that lie at the heart of European nuclear law and the European integration

process in general.

At the time of the accident in 2011, nuclear safety had been only slightly

‘Europeanised’, reflecting the zeal with which Member States have striven to hold

onto their nuclear energy competences since the creation of Euratom. Indeed the

political will that had led to the signing of the EAEC Treaty had not been particularly

resolute and, as a result, nuclear safety remained de facto an intergovernmental

matter. The 1986 Chernobyl disaster served to stress the peculiar nature of nuclear

risks and generated considerable pressures to establish common norms and organi-

sational structures, both at the international and the European levels. Yet, with the

passing of the years, any momentum for change gradually petered out. In this respect,

the European Court of Justice (ECJ), which has taken a leading integrative role in

many policy fields (including the creation of the single market through its rulings on

economic freedoms), was less bold when it came to Euratom law, and no substantial

changes were introduced.

When the Fukushima plant became the focus of world attention in the late winter

of 2011, the EU seemed ill-equipped to lead a policy response to the heightened

awareness of nuclear risk among European citizens. Notwithstanding, the European

Council opted to implement a series of inspections (or ‘stress tests’) of the nuclear

plants, in a decision that seemed to represent a watershed in its normative, institu-

tional and procedural standards.4Further, the safety shortcomings identified by these

2See J. Bohman, Democracy across Borders: From Dêmos to Dêmoi (MIT Press, 2007) and R. Forst,

‘Transnational Justice and Democracy’, RECON On-Line Working Paper 2011/12, April 2011, at 10–11

(http://www.reconproject.eu/main.php/RECON_wp_1112.pdf?fileitem=5456467). On the EU’s ability to

articulate the democratic representation of the wills present and the ‘potential’ of European law to

compensate this democratic deficit, see F. Cheneval and F. Schimmelfennig, ‘The Case for Democracy in

the European Union’, (2013) 51 Journal of Common Market Studies 334; A. J. Menéndez, ‘The European

Democratic Challenge: The Forging of a Supranational Volonté Générale’, (2009) 15 European Law

Journal 277, 288–289; C. Joerges, ‘Unity in Diversity as Europe’s Vocation and Conflicts Law as

Europe’s Constitutional Form’, TransState Working Papers no. 148, 2011 (at http://econstor.eu/

bitstream/10419/45182/1/656846933.pdf); and M. Everson and C. Joerges, ‘Reconfiguring the Politics–

Law Relationship in the Integration Project through Conflicts–Law Constitutionalism’, (2012) 18

European Law Journal 644.

3For detailed information about the international nuclear safety regime, see T. Findlay, Nuclear Energy

and Global Governance: Ensuring Safety, Security and Non-Proliferation (Routledge, 2011); International

Atomic Energy Agency, Effective Nuclear Regulatory Systems: Further Enhancing the Global Nuclear

Safety and Security Regime, Proceedings of an International Conference (Department of Nuclear Safety

and Security, Sep. 2010); R. Meserve, ‘The Global Nuclear Safety Regime’, (2009) 138 DAEDALUS 100;

J. Rautenbach, W. Tonhauser and A. Wetherall, ‘Overview of the International Legal Framework

Governing the Safe and Peaceful Uses of Nuclear Energy—Some Practical Steps’, in International

Nuclear Law in the Post-Chernobyl Period (Joint Report by the OECD/NEA and the IAEA, 2006), at

7–36.

4Apparently, in a similar way to that in which other exogenous factors have had a centralising impact on

the recent evolution of the EU system, eg the impact of the 2007 financial crisis on financial market

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