A tale of two treaties: An assessment of the Euratom Treaty in relation to the EC Treaty

Introduction:

In the forty-odd years that have elapsed since the two Treaties of Rome came into force, the attention of learned authors has tended to be overwhelmingly focused on one of them, the EC Treaty and subsequent up-datings of it, to the detriment of the other, the Euratom Treaty, which has been correspondingly neglected. Not only that, the question of whether or to what extent the Euratom Treaty may or may not be supplemented by application of rules of the EC Treaty appears never to have been comprehensively or very satisfactorily addressed.

It has been contended, for example, that as the Euratom Treaty contains no rules on State aids (this is not so in the case of the ECSC Treaty; see Arts. 4 and 67), those of the EC Treaty can be applied in the nuclear domain. Opinions have been advanced, furthermore, to the effect that the competition rules of the EC Treaty apply to the nuclear-fuel cycle industry. It will be contended here that this is wrong in that it overlooks the existence of (albeit lighter) competition rules in Chapter 6 of the Euratom Treaty. Again, some commentators appear to fall into the trap of failing to distinguish between the market in nuclear materials and that in radioactive products; others cite Commission decisions taken pursuant to Article 81 (ex 85) EC which bear upon vertical transactions which are not supply contracts within the meaning of Chapter 6 Euratom and are not, accordingly, subject to it.

Finally, a recent Opinion of the Court of Justice seems to raise a measure of doubt as to the possible application, in the nuclear domain (that of the nuclear fuel-cycle industry) of the external trade rules of the EC Treaty. This aspect is briefly dealt with below (section 5.4). What follows will, it is hoped, go some way towards redressing the imbalance described above.