Nuclear critics on the retreat

Date: 12/10/1995

By Michael Mann

THE European Commission will hold a special meeting later this month to decide once and for all whether to risk a political storm by taking France to court over nuclear testing, amid signs that the battle may already be lost.

Opponents of the tests within the Commission fear they may have manoeuvred themselves out of any chance of taking action against the French government under Article 34 of the Euratom Treaty.

Commission President Jacques Santer's announcement of the meeting planned for 23 October took European parliamentarians, many of whom had been bristling to attack the Commission, by surprise.

Santer said another letter would be sent to France today (12 October) requesting all the data the Commission believes it needs to complete its evaluation report on the impact of the tests and confirmed that France would be asked to reply “as soon as possible” to the Commission's requests. Environment Commissioner Ritt Bjerregaard, who sat beside Santer but did not address the Parliament, later insisted that a five-day deadline had been set.

Santer stressed that the “Commission must be convinced scientifically and technically of the existence of an infringement. We are not here to judge whether or not the tests are advisable, but we do have an important role in the area of health”.

The accepted logic within the institutions is that the Commission will step back from taking the French government to the European Court of Justice. This is despite heavy lobbying from Bjerregaard and her allies in the Commission.

The Commission's ability to act hinges on the applicability of the Euratom Treaty's Article 34, requiring member states to ensure additional health and safety measures for “particularly dangerous experiments”.

It has now become clear that the Commission's legal services are advising strongly against taking action against France.

An internal document addressed to Commissioners admits that Article 34 can apply “to both civil and military experiments”, but pours cold water on Bjerregaard's call for France to halt its tests until the Commission has completed its deliberations.

The legal advice suggests that the Commission has no such right and that Euratom's Article 35, which refers to the Commission's right to monitor radioactivity levels, does not give any right of access to “installations covered by national legislation concerning military secrets”.

Bjerregaard also appears to have pinned her hopes on using the general loyalty and cooperation provisions of Article 192 of Euratom.

However, tactics employed up until now may have undermined the chances of bringing Paris to book under this legal basis. Sources suggest an understanding was reached in a letter from Laurens Brinkhorst, the former head of the Directorate General for the environment, to the then French ambassador on 11 June 1992. It is understood to have set out agreed ground rules for dealing with any cases of this sort which may arise in future.

The Commission is believed to have made three tactical errors during the recent crisis which expressly went against the terms set out in this understanding. The first letter to France in June was sent off unsigned, sources maintain. Secondly, the Commission attempted to publicise the results of its interim report before proper consultation with the French authorities. Finally, insufficient notice was given before the verification mission left for French Polynesia in September.