CYIL 2012

EUROPEAN ATOMIC ENERGY COMMUNITY AND THE NUCLEAR THIRD PARTY LIABILITY require action by the Council and can be effected within the limits of the relevant budget shall, however, be negotiated and concluded solely by the Commission; the Commission shall keep the Council informed.” Pursuant to this provision, Euratom’s jurisdiction in external matters goes hand in hand with its internal jurisdiction; it has the power to enter into agreements and arrangements on any matter on which it is entitled to act exclusively within the Community. 26 The European Court of Justice ruled on the exclusive powers of Euratom in three areas: first, with regard to supplies of ores, source materials and special fissile materials coming from outside the Community; secondly with regard to safeguards; and thirdly, Euratom as the exclusive owner of nuclear materials to which the Euratom Treaty applies. 27 Obviously, nuclear liability does not fall under any of these categories. However, this does not mean that Article 101 applies only to these fields of competence. It is more generally worded and refers to all of Euratom’s powers and jurisdiction. Therefore, it is necessary to learn whether there is Community’s competence in the field of nuclear liability pursuant to the provisions of the Euratom Treaty. 2.2.2 Questioning Euratom’s powers in the field of nuclear liability The issue of Euratom jurisdiction over the area of nuclear liability is full of paradoxes. On one hand, nuclear energy is currently the only source of energy to be governed by special integration treaty. Even so, any binding legislation on such an important aspect as the peaceful use of nuclear energy is currently missing. This is in strict contrast to the fact that the “Fathers” of the Euratom Treaty remembered the issue of nuclear liability in their Article 98 and undertook to: “[T]ake all measures necessary to facilitate the conclusion of insurance contracts covering nuclear risks. Within two years of the entry into force of this Treaty, the Council, acting by a qualified majority on a proposal from the Commission, which shall first request the opinion of the Economic and Social Committee, shall, after consulting the European Parliament, issue directives for the application of this Article.” The interpretation of Euratom competencies arising from this provision are both ambiguous and challenging. On one hand, there are the statements made at the time of Treaty negotiations 28 as well as in contemporary literature 29 pointing to the fact that Article 98 of the Euratom Treaty aims at the elimination of barriers in the framework for insurance contracts. According to this restrictive interpretation, the 26 For further details see Macleod, I., Hendry, D. and Hyett, S. (1996) The External Relations of the European Communities: A Manual of Law and Practice , pp. 392 et seqq., Oxford University Press, Oxford. 27 See Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection on Nuclear Material, Facilities and Transports [1978] ECR 2151,paras 13-23 . 28 E.g. Haedrich, H. (1963) ‘Das Zusatzübereinkommen zur Pariser Atomhaftungskonvention’, 8 Die Atomwirtschaft 8, pp. 449 et seqq. 29 E.g. Grunwald , J. (2003) Das Energierecht der Europäischen Gemeinschaften , De Gruyter Recht, Berlin, pp. 293 et seqq.

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