1992 and Accountability Gaps: the Transnuklear Scandal: A Case Study in European Regulation
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01833.x |
| Date | 01 September 1990 |
| Published date | 01 September 1990 |
| Author | Leigh Hancher |
1992
and Accountability Gaps: the Transnuklear Scandal:
A Case Study in European Regulation
Leigh Hancher”
Introduction
On 21 January,
1988
the European Parliament established a committee of inquiry into
the so-called Transnuklear scandal which involved alleged illegalities in the transport of
radioactive waste to and from West Germany and the reprocessing centre at Mol in Belgium.
This article will examine some of the issues surrounding the inquiry to illustrate a number
of ‘accountability gaps’ which can arise in European regulation. This particular case study
has been selected on the grounds that it provides a number of useful insights: first, into
the nature of the legal problems which can arise when responsibility for the regulation
of a particular activity is effectively shared between national authorities and the EC
Commission; and second, into problems which can arise when the lines of demarcation
between the respective authorities are by no means clear. In particular, the article will
examine the potential for European institutions, and especially the European Parliament
(EP), to exert control over the joint or shared exercise of regulatory powers, that is, powers
shared between national administrations and the EC institutions.
It is submitted that although the Transnuklear-Mol scandal concerned only a single instance
of accountability problems in cases of shared or joint responsibility, the questions which
the whole affair raises are indicative of the type of issues which might well become more
common, as increased powers to regulate in a wider variety of social and economic spheres
are gradually transferred to the Communities. In the first place, it is surely unlikely that
the Commission will ever enjoy sufficient resources and manpower to perform the combined
functions of regulator and administrator; a continued delegation of powers to national
authorities is inevitable. In the second place, the Community has become more committed
to the principle of ‘subsidiarity’
-
that is, that Community action should only be initiated
where certain objectives can
be
better attained at the Community than at the level of national
Member States.’ Although this concept is perhaps more political than legal in nature, it
implies that certain regulatory tasks should be shared between the Community and the
national levels, and regulatory implementation should be to some extent co-ordinated
between the EC Commission and the national bureaucracies.
As
scope for the joint or
shared exercise of regulatory power increases, problems of demarcation of responsibilities
are likely to become more, rather than less, acute in the future.
In
this respect the Commission’s experience with the implementation
of
certain provisions
of the Euratom Treaty is particularly apposite. It will hopefully become evident from what
follows that these issues have in fact been central to the implementation of that Treaty
for some years.
The article begins with a short account of the Transnuklear affair and then goes on to
examine the regulation of radioactive waste in Community law. This involves a brief
discussion of Chapters I11 and VII of the Euratom Treaty, and the relevant secondary
legislation. This section examines the assumed division of responsibility between the
Commission and the relevant national authorities, and highlights some of the shortcomings
of the existing system of control. The following section assesses the general control functions
~~
*International Institute of Energy Law, University of Leiden.
1
The principle
of
subsidiarity
is
enshrined, for example, in Article
130R(4)
EEC on environmental policy.
The
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of the EP and the nature, role and functioning of its Committees of Inquiries. The setting
up of the Transnuklear inquiry was in itself rather unusual: it was the first such committee
to consider allegations of maladministration on the part of the Commission. The scope
of the Parliament’s powers to summon witnesses, however, and to call for documents
both from the Commission and from the national authorities was by no means settled law
or practice at the time the inquiry was set up. The final section offers some conclusions
on the potential of this particular method of control of joint or shared regulatory powers.
The Transnuklear-Mol Scandal
The Transnuklear-Mol affair in fact involved two central issues
-
corruption at national
level and the illegal diversion of nuclear waste materials, allegedly containing plutonium
in significant quantities, in breach of international and European law. First, employees
from the German Transnuklear company, and its parent company, Nukem, were alleged
by state prosecutors in the Federal State of Hesse, where the company was situated, to
have organised and subsequently covered up over a period of years a widespread bribery
ring running right through the German nuclear energy industry. Transnuklear had been
responsible for removing and transporting some
50
%
of nuclear waste from German power
stations to various reprocessing, conditioning and storage facilities. As there are no such
facilities in Germany, some
90%
of the country’s nuclear waste goes to Belgium and
Sweden.
In March
1987
routine checks of the accounts of the radioactive waste division of
Transnuklear (TN) by internal auditors revealed certain financial irregularities dating back
to
1981.
Further internal investigations, instigated by TN’s supervisory board, established
that bribes amounting to DM
21
million had been paid out by TN employees, and that
further sums of around DM
5
million had been embezzled through the creation of dummy
companies and fake invoices. These funds were then used to bribe employees in nuclear
power plants and electricity utility companies to facilitate TN’s acquisition of orders in
the area of low radioactive waste management.
Following a number of ‘management changes’ further internal investigations revealed
a number of irregularities in dealings between TN and CEN-Mol
-
the public sector nuclear
research centre in Belgium to which TN sent waste from German nuclear power plants
for treatment (volume reduction and conditioning). Certain of the illicit payments were
alleged by the state prosecutors to have been made in connection with the consignments
from Germany to Belgium of more than
2,400
drums of nuclear waste, which had been
falsely designated as containing low-level waste. Some of
this
material was found, following
so-called ‘destructive tests,’ to be illegally contaminated with higher-level waste resulting
from the burning of nuclear fuel. Such false declarations were in breach
of
German safety
regulations.
A
total of
321
drums turned up at West German storage sites containing small
traces of plutonium and cobalt-60. Plutonium is of course the raw material of nuclear
warheads.
Second, and running parallel to the corruption affair, the state prosecutors further alleged
that Transnuklear and Nukem officials had been involved in smuggling nuclear bomb-
making materials to Pakistan and Libya in contravention of the Non-Proliferation Treaty
(NPT) of
1968.
It was suggested that TN had shipped fissile material from the nuclear
centre at Mol, via the north German port of Lubeck to Pakistan and Libya. Suspicion
centred on the apparent loss of two drums of waste which left Belgium in
1984,
but whose
subsequent whereabouts remained unclear. No clear proof that this material had in fact
been diverted for military use emerged, however.
Although no direct link between the corruption affair and the illegal diversion of waste
was established, there was widespread public suspicion that the corruption money had
been used to ‘oil’ the whole cycle of illegal shipment. The extent of the scandal and more
670
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