The Community, through strong, continuous and coordinated Community support from the European Atomic Energy Community (Euratom) research and training programmes, together with the development of knowledge and human resources in the national fusion laboratories, working together notably in the framework of the European Fusion Development Agreement (EFDA), has created a single and fully integrated fusion research programme that has taken a leading international role in the development of fusion as a potentially limitless, safe, sustainable, environmentally responsible and economically competitive source of energy.
(2)
The establishment of the Joint European Torus (JET) fusion research project in 1978 (1), which has met or exceeded all of its design objectives including demonstrating the release of significant amounts of fusion energy in a controlled manner and going on to hold world records for both fusion power and energy, has demonstrated the added value of pooling resources and expertise at Community level in the form of a Joint Undertaking.
(3)
The Community has played a key role in the development of a next step international fusion project, the ITER, starting in 1988 with Conceptual Design Activities (2), continuing in 1992 with Engineering Design Activities (3) which were extended by three years in 1998 (4) and followed by a second agreement in 1994 (5) which, in 2001, produced a detailed, complete and fully integrated engineering design for a research facility aimed at demonstrating the feasibility of fusion as an energy source from which the Community could derive significant benefit, in particular in the context of ensuring the security and diversity of its long-term energy supply.
(4)
The seven parties to the ITER negotiations (Euratom, People's Republic of China, India, Japan, Republic of Korea, Russia and the United States), representing over one half of the world's population, have concluded the Agreement on the Establishment of the ITER International Fusion Energy Organisation for the Joint Implementation of the ITER Project (6) (the ITER Agreement) which establishes the ITER International Fusion Energy Organisation (the ITER Organisation) with headquarters in St Paul-lès-Durance (Bouches-du-Rhône) (France). The ITER Organisation has full responsibility for constructing, operating, exploiting and de-activating the ITER facilities.
(5)
The ITER Agreement requires all parties to provide contributions to the ITER Organisation through appropriate legal entities referred to as ‘Domestic Agencies’. To enable ITER construction to commence without delay and given that Euratom, as host party, will have special responsibilities as a member of the ITER Organisation including bearing the largest share of the contributions and the responsibility for the preparation of the site, the Domestic Agency of Euratom should be established as soon as possible.
(6)
Euratom and Japan have concluded a bilateral Agreement for the Joint Implementation of the Broader Approach Activities (the ‘Broader Approach Agreement with Japan’) setting out complementary joint fusion research activities as part of a ‘Broader Approach’ to the rapid realisation of fusion energy agreed during negotiations on the ITER Agreement. The Broader Approach Agreement with Japan foresees that such Broader Approach Activities should be carried out by Euratom through the Domestic Agency of Euratom as the implementing Agency.
(7)
To achieve maximum synergy and economies of scale, the Domestic Agency of Euratom, in the context of the ‘fast track’ approach to fusion examined by a group of independent experts at the request of the research ministers during the Belgian Presidency, should also implement a long-term programme of activities to prepare the construction of demonstration fusion reactors and related facilities to reinforce European industrial competitiveness in this respect.
(8)
In its Conclusions of 26-27 November 2003, the European Council, by unanimous decision, authorised the Commission to put forward France as the ITER host State and Cadarache as the ITER site and decided that the Domestic Agency for Euratom should be located in Spain.
(9)
The fundamental importance of the ITER Project and Broader Approach Activities for harnessing fusion as a potentially limitless, safe, sustainable, environmentally responsible and economically competitive source of energy makes it necessary to establish the Domestic Agency of Euratom in the form of a Joint Undertaking as provided for in Chapter 5 of the Euratom Treaty.
(10)
The Joint Undertaking, which should be responsible for public research activities of European and international interest, and discharge commitments pursuant to international agreements, should be considered as an international body within the meaning of Article 151(1)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (7), and as an international organisation within the meaning of the second indent of Article 23(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (8), Article 22 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (9), and Article 15 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (10).
(11)
This Decision establishes, for the duration foreseen for the Joint Undertaking, a financial reference amount which illustrates the will of the legislative authority and which will not affect the powers of the budgetary authority as defined in the Treaty.
(12)
The Joint Undertaking should have, subject to prior consultation with the Commission, its own financial regulation based on the principles of Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the Framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (11) (the Framework Financial Regulation) taking into account its specific operating needs arising, in particular, from its international obligations.
(13)
To strengthen international research cooperation, the Joint Undertaking should be open to the participation of countries that have concluded cooperation agreements with Euratom in the field of nuclear fusion that associate their respective programmes with the Euratom programmes.
(14)
The proposal for the Council Decision for the seventh framework programme of the European Atomic Energy Community (Euratom) for nuclear research and training activities (2007 to 2011), and the specific programme implementing that framework programme (FP7) put ITER at the heart of the European strategy for fusion and make provision for the Euratom contribution, through the Joint Undertaking to the ITER Organisation, Broader Approach Activities and other related activities with a view to preparing for demonstration fusion reactors.
(15)
The need to ensure stable employment conditions and equal treatment of staff, taking into account the experience gained from the JET Joint Undertaking, in order to attract specialised scientific and technical staff of the highest calibre, requires the application of the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities, laid down by Regulation (EEC, Euratom, ECSC) No 259/68 (12) (the Staff Regulations) to all the staff recruited by the Joint Undertaking.
(16)
Taking into account that the Joint Undertaking is not designed to fulfill an economic purpose and is responsible for managing Euratom participation in an international research project of public interest, it is necessary for the performance of its tasks that the Protocol on the Privileges and Immunities of the European Communities of 8 April 1965 (13) apply to the Joint Undertaking, its Director and staff.
(17)
In view of the particular nature of the activities of the Joint Undertaking and its importance for the development of fusion research and in order to promote a sound and economic management of the public funding to be provided to the Joint Undertaking, all the advantages provided for in Annex III to the Treaty should be conferred on the Joint Undertaking.
(18)
As a body possessing legal personality, the Joint Undertaking should be accountable for its actions. As regards the resolution of disputes in contractual matters, it should be possible that the contracts concluded by the Joint Undertaking provide that the Court of Justice have jurisdiction.
(19)
Taking into account the rights and obligations of the Community under Title II, Chapter 2 of the Treaty concerning the dissemination of information, the Joint Undertaking should make appropriate arrangements in that regard with the Commission.
(20)
A host agreement should be concluded between the Joint Undertaking and Spain concerning office accommodation, privileges and immunities and other support to be provided by Spain to the Joint Undertaking.
(21)
This Decision takes into account the outcome of the enquiry conducted by the Commission and, in particular, the positive opinion of the Consultative Committee for the Euratom Specific Research and Training Programme in the Field of Nuclear Energy (Fusion) on the proposals,
