CYIL 2011

JAKUB HANDRLICA CYIL 2 ȍ2011Ȏ the past. 34 Due to the fact that since the 1960s, issues of nuclear liability have been dealt with through the means of international civil liability and taking in account the fact that the industrial use of nuclear energy is widely considered to be an activity of a commercial nature, there seems to be currently no doubt about the civil nature of nuclear liability matters. However, the nature of liability relationships arising from the operation of nuclear installations for military purposes, which are basically excluded from the scope of application of existing international nuclear liability conventions, hasn’t been clarified in a definite manner as yet. 35 Taking of all the issues presented above into consideration, it can be argued that the provisions of the Brussels Regulation are, unless expressly stipulated otherwise in the wording of the Regulation, applicable directly to the issues of damages arising from the operation of nuclear installations in the member states of the European Union. Therefore, if a nuclear incident occurs in a nuclear installation situated in the Czech Republic, which is a contracting party to the Vienna Convention, and causes damages in the territory of neighbouring Austria, the provisions of the Brussels Regulation as lex generalis will be applicable for jurisdiction and enforcement of judgements. An Austrian plaintiff will have the possibility to choose between making use of the actor sequitur forum rei provision, which means claiming abroad at the Czech court as provided in Article 2 (2) of the Brussels Regulation and using the provision of Article 5 of the Regulation, which enables him to claim against the operator in “ the place where the harmful event occurred”, meaning claiming in his home country and according to his own law. 36 2. Question of enforcement of judgements issued by the courts of non- contracting states Consequently, if a plaintiff makes use of the possibility to claim for damages at home, the judgments are to be executed as provided in the relevant provisions of the Brussels Regulation in the country where the operator, or perhaps another liable entity, is domiciled. The enforcement of such judgments, which via facti torpedoes 34 See Sands, P. and Galizzi, P., op. cit., on pp. 18 et seqq ., Magnus, U. ‘Probleme des internationalen Atomhaftungsrecht’, in Baetge, P., Von Hein, J. and Von Hinden, M. (eds.), Die Richtige Ordnung, Mohr Siebeck: Thübingen 2008, on p. 604 and Magnus, U. op. cit., on p. 108. 35 Consequently, the direct application of the Brussels Regulation to liability relations caused through the military use of nuclear technologies (unless they are to be considered as “acts of a public authority in the exercise of its powers”) can also be the subject of discussion. See Magnus, U. op. cit., on p. 109. 36 It is true that the 1997 Protocol will provide for an enlarged geographical scope of the revised Vienna Convention, once it has entered into force in the Czech Republic. Consequently, plaintiffs from a non contracting-state will be entitled to claim with the court competent in the country where the nuclear incident occurred under the same circumstances as plaintiffs from the contracting parties to the treaty which is in force in that state. However, the possibility to claim at home, as the Brussels Regulation provides for, will clearly remain.

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