CYIL 2012

EUROPEAN ATOMIC ENERGY COMMUNITY AND THE NUCLEAR THIRD PARTY LIABILITY 2.1.2 Differences in nuclear liability regimes and the “renvoi” to national legislations Despite the existence of identical principles, the existing conventions fail to establish a comprehensive nuclear third party liability regime and fall short of covering all liability issues arising from the peaceful use of nuclear energy. To a large extent, nuclear liability conventions build on the existing structures of national legislation of their contracting parties, or they grant power to the contracting parties to define such matters. Both the Paris and Vienna Conventions contain such a renvoi to the national legislation in regulating amounts of liability and the establishment of additional state funds to cover operator liability. 19 Consequently, if analysing the current national regulations covering the limitation of operator liability, we face a real “patchwork” of quite different limits. These are, in several cases, combined with subsidiary state compensation. 20 We face a similar “patchwork” when analysing national rules regarding the extension or restriction of the geographical application of treaties and extensions of prescription or extinction periods for claims. The whole issue becomes far more complex when the process of amendment of both major international nuclear liability conventions is taken into consideration: all of the contracting parties to the Paris Convention 21 signed the 2004 Protocol in order to amend this international convention. The ratification process for this Amendment actually remains pending and it is anticipated that the 2004 Protocol will enter into force in 2012. 22 On the other hand, the 1997 Protocol to Amend the Vienna Convention is already in force, however, only two of the “new” member states are party to this international instrument. 23 Furthermore, some “new” member countries signed this Amendment, but have yet to ratify it. 24 Such a “ two speed ” process of amendment of the existing nuclear third party liability treaties implies the considerable risk that the “2004 Paris” legal framework (created by the 2004 Protocol) will precede the framework created by the 1997 Protocol. Considering the fact that the 2004 Protocol represents a significant shift in nuclear liability regulation ( inter alia through considerably increasing liability limits and enlarging the scope of the term “nuclear damage” etc.) one can expect that, after this Amendment enters into force, the “labyrinth” of rules will become even more complex. 19 Pelzer, N. (2009) ‘Conflict of Laws Issues under the International Nuclear Liability Conventions’ in Baur, J. et al. (eds.): FS Gunther Kühne, p. 826 et seqq., Verlag Recht und Wirtschaft, Frankfurt am Main. 20 Van den Borre, T. (2010) ‘Nuclear Liability: An Anachronism in EU Energy Policy’, in M. Roggenkamp and U. Hammer (eds.): European Energy Law Report VIII, p. 195 et. seqq., Intersentia, Mortsel. 21 Belgium, Denmark, Finland, France, Germany, Greece, Italy, Netherlands, Portugal, Slovenia, Spain, Sweden, United Kingdom. 22 Schwartz, J. (2010) ‘Great Expectations: Where Do We Standwith the International Nuclear Liability Conventions?’ in Pelzer, N. (ed.): Europäisches Atomhaftungsrechtim Umbruch , p. 43 et seqq., Nomos Verlag, Baden Baden. 23 Latvia, Poland and Romania. 24 Czech Republic, Hungary and Lithuania.

47