Habitualidad en venta de inmuebles

One of the most important attributes of a regulatory body is its freedom from unwarranted interference in its regulatory functions; this concept has been developed in a number of IAEA documents (e.g. Ref. [4]) and in relevant international conventions (e.g. the Convention on Nuclear Safety [2] and the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (the Joint Convention) [5]). Article 8.2 of the Convention on Nuclear Safety [2] states that:

“Each Contracting Party shall take the appropriate steps to ensure an effective separation [emphasis added] between the functions of the regulatory body and those of any other body or organization concerned with the promotion or utilization of nuclear energy.”

It is understood that “any other body or organization” includes private and commercial entities. Article 20.2 of the Joint Convention [5] states that:

“Each Contracting Party… shall take the appropriate steps to ensure the effective independence of the regulatory functions [emphasis added] from other functions where organizations are involved in both spent fuel or radioactive waste management and in their regulation.”

No single approach can ensure effective independence and separation of the functions of the regulatory bodies in all States. An essential first step in determining the best approach is a careful assessment of the regulatory body’s independence of judgement and decision making in the safety area. A sound regulatory structure presupposes legislation covering both the powers and capabilities of the regulatory body and also its relationships with other governmental bodies, the regulated industry and the public.

The first factor is the regulatory body’s basic structure and composition. States with different governmental organizations and legal traditions will obviously structure their regulatory bodies in different ways. Some may designate a single director for a fixed term of office, others a board of directors who have staggered terms of office. Perhaps the head of the regulatory body can be removed only for a cause, or can be removed at the discretion of the

president, the cabinet or a minister without the showing of a cause; in the latter case, the real and perceived independence of that person will be affected. The process of designating and removing the head of a regulatory body is not determinative of the body’s independence, but it is an indication of how the safety function is viewed in the State concerned.

Some States may place the regulatory body under the supervision of a parent organization, such as a government department or a ministry. The fact that the regulatory body is located within the administrative structure of another organization, or is supervised by it, does not necessarily mean that the regulatory body lacks independence. The question is whether the necessary effective separation or effective independence of key regulatory functions and decision making exists. That question can be answered only after an evaluation of the detailed provisions determining how the practical work of the two organizations is conducted.

If the parent organization has responsibilities regarding the conduct or promotion of nuclear related activities, the fact that it is supervising the regulatory body will raise issues of “independence” or “separation of regulatory functions”. If it is responsible for nuclear energy development, situations could arise in which the parent organization is called upon to take decisions, for example, about the establishment of facilities using nuclear techniques. In such situations, administrative measures would have to be taken in order to ensure that safety related decisions of the regulatory body are effectively independent of or separate from developmental or promotional decision making.

One element related to organizational structure is the regulatory body’s reporting arrangements. If a regulatory body cannot provide information on its safety judgements or about safety related incidents at licensed facilities without the approval of another organization, issues of independence and transparency will arise. The reporting arrangements should therefore be such that the regulatory body can provide safety related information to the government and the public with the maximum degree of directness and openness.

A second element concerns the need for an appeals process for disputes concerning regulatory judgements. A process must be provided for resolving such disputes that does not give the appearance that regulatory judgements are subject to a reversal for extraneous reasons. The national legal system should include a process whereby appeals are dealt with either through a hierarchy of administrative bodies or through the judiciary.

Crucial to the independence of the regulatory body are its technical capabilities. An organization charged with making complex technical judgements must have access to expert personnel who can make such judgements or who can assess those of others. If a regulatory body must rely entirely on the assessments of others, its independence may be compromised.

A related crucial factor is financial resources, which must be sufficiently predictable and reliable, adequate and not subject to undue control by external bodies. Therefore, to the extent feasible given the State’s budgetary process, the regulatory body should have the ability to develop its own budget and make the case vis-à-vis the legislature or the government for the level of funding necessary for implementing its responsibilities.

Finally, a factor sometimes overlooked but that is important for the independence of the regulatory body is leadership. If the head(s) of the regulatory body is (are) recognized as having the highest level of competence (in nuclear technology, law, public administration or some other relevant discipline), the right kind of experience and a sound character, the judgements made by the regulatory body are likely to be respected and implemented. Regulatory bodies headed by persons who are perceived as lacking competence or as holding their position for purely political reasons will have difficulty in maintaining internal employee morale and external confidence.