CYIL 2012

EUROPEAN ATOMIC ENERGY COMMUNITY AND THE NUCLEAR THIRD PARTY LIABILITY the Union vis-á-vis commitments of its member states arising from international law. The scope of this study will be as follows: In the first part, I will point out the actual problem of the capacity of the Euratom and its member states to enter international conventions in the area of nuclear third party liability. The question of external competence will be faced, as well as its division among the Community and its member states. Subsequently, the issue of Euratom’s accession to the international conventions governing nuclear third party liability will be discussed and the possible consequences of such a step upon parallel commitments of the member states arising from the conventions in force. In the second part, I will deal with the topic from another perspective and address the question of what relation a legislative action based on the Euratom Treaty will have for the commitment of member states, arising from the existing conventions in the area of nuclear third party liability. In this respect, I will confront the issue of the so called “pre – Community agreements”, which are of major importance for “new” member countries who acceded to the Vienna Convention before they entered into the Union in 2004 and 2007, respectively. Subsequently, I will look at how to deal with potential conflicts arising from overlapping provisions of the nuclear liability directive and international treaties. II. Nuclear liability treaties vis-á-vis Euratom and its member states When the European Commission was exploring the views of differing stakeholders on the future of the nuclear third party liability framework in Europe, 13 the option of accession by the European Atomic Energy Community to the Paris Convention, as Amended by the 2004 Protocol (hereinafter also “Amended Paris Convention” ), was made public. It is a matter of fact that the Euratom Treaty was considered to be lexspecialis in relation to the EC Treaty in the past and the same relation will apply to the EU Treaty and to the Treaty on the Functioning of the European Union. 14 Consequently, Euratom should be primarily in charge of any action which concerns matters of the peaceful use of nuclear energy. The involvement based on the EU Treaty, or on the Treaty on the Functioning of the European Union, is considered of a subsidiary nature . Therefore, the role of Euratom will be stressed in the text and its involvement in matters of nuclear third party liability will be matters for discussion. Last, but not least, such involvement will be in line with the process that has been described as a “ resurrection ” of the Euratom Treaty by some authors. 15 Consequently, the entire 13 For more details see Ameye, E. (2010) ‘Legal study on nuclear third party lability for DG TREN ofthe European Commission’, in Pelzer, N. (ed.): Europäisches Atomhaftungsrechtim Umbruch , p.147 et seqq., Nomos Verlag, Baden Baden. 14 See Ptasekaite, R. (2011) The Euratom Treaty vs. Treaties of the European Union: Limits of competence and interaction , Swedish Radiation Safety Authority, Stockholm, pp. 47 et seqq. 15 E.g. Barnes, P. (2008) ‘The Resurrection of the Euratom Treaty: Contributing to the Legal and Constitutional Framework for Secure, Competitive, and Sustainable Energy in the European Union’, in T. Etty and H. Somsen (eds.): The Yearbook of European Environmental Law, p. 182 et seqq., Oxford University Press, Oxford.

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