CYIL 2012

JAKUB HANDRLICA CYIL 3 ȍ2012Ȏ legal framework for nuclear liability as a whole (i.e. including the minimum and maximum liability limits, rules on jurisdiction, etc.) does not fall within the scope of this provision, i.e. Euratom does not possess any competence on these core concerns of nuclear liability. However, a more extensive interpretation of Article 98 is also possible and it has been supported currently also by some renowned legal experts. 30 It is a matter of fact that the original intention of the Treaty makers is not concluding: the system of European law has always had a tendency to adopt a more dynamic approach of interpretation. The obligation to “ take all measures necessary to facilitate the conclusion of insurance contracts covering nuclear risks ” could also be interpreted in a way that requires member states to, inter alia, create a nuclear liability framework which would, at the same time, facilitate the insurance of nuclear risks. The argument could be made that this special legal framework for nuclear liability is itself a tool to facilitate the conclusion of insurance contracts covering nuclear risks. The conclusion of insurance contracts may well be more difficult in states where all entities involved in the utilisation of nuclear energy for peaceful uses (operators, suppliers, construction companies, etc.) could theoretically be held liable for nuclear damage, as opposed to states in which liability is assigned exclusively to the operator. Under the first scenario, all entities must purchase insurance from the available insurance market capacity. For some, the cost of such insurance might be more than the business is actually worth. In either case, the situation is much simpler where the operator is exclusively liable for nuclear damage, because insurance capacity can be made available to this single entity. Hence, the conclusion of insurance contracts is facilitated by opting for a system of assigning nuclear liability to the operator of a nuclear installation. Under both limited and unlimited nuclear liability systems, the congruence principle is to be applied,meaning that the operator’s liability must be financially secured by insurance or other form of coverage, subject to the caveat that the operator must pay the difference between the amount of compulsory coverage and the amount of actual claims, from its own assets. Consequently, assigning liability and setting financial security limits have major implications for “ the conclusion of insurance contracts covering nuclear risks ”. According to this extensive interpretation, the obligation of member states, arising from Article 98, entails both the obligation to abolish any barriers with respect to the conclusion of insurance contracts to cover nuclear risks and to establish a nuclear liability legal framework. Currently, some of the authors supported this kind of extensive interpretation However, as there has been virtually no legislative use of Article 98 yet, no final conclusions can be made in this regard. In principle, it will be the European Court of Justice who must deal with the question of which of the interpretations outlined

30 E.g. Wathelet, M. (2010) ‘Clarifying the legal basis for an intervention at EU level in the domain of nuclear liability’, paper presented at the conference “Prospects of a Civil Nuclear Liability Regime in the Framework of the European Union, held on 17-18 June 2010 in Brussels.”

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