CYIL 2012

JAKUB HANDRLICA CYIL 3 ȍ2012Ȏ swiftly and uniformly applied at EU level… In addition, it should be noted that this approach would presuppose that the member states which are contracting parties to the 1996 Convention denounce it in good time and, at the latest, by the end of the transposition period for this Directive… Action at the level of the International Maritime Organization has limitations… In addition, the objectives of the conventions may not correspond to citizens’ current expectations and do not follow the trends of modern law... The approach is therefore to establish a new, uniform legal framework at European Union level, which will fully enforce the internationally recognized principles and will adapt them where necessary.” 40 All these current developments in the field of shipowner liability can be considered as a precedent, although the application of lessons learned from this field is limited. In comparison to nuclear liability, no major jurisdictional conflicts in matters of shipowner liability have been established in the Community. 41 Furthermore, the Community must deal with only one international organisation involved in these matters, while in the case of nuclear liability it faces two organisations as guardians of the treaties: the Organisation for Economic Co-operation and Development and the International Atomic Energy Agency. 42 Consequently, similar nuclear liability legislation under the authority laid down in the Euratom Treaty cannot expect energetic support from these international players. Furthermore, there is another player in the field, the United States, who recently favours accession to the Convention on Supplementary Compensation as a world-wide solution to nuclear liability issues. 3.2 Questioning the Vienna Convention as a “pre-Community agreement” Obviously, a first potential legal problem will arise from the fact that “new” member states joined the international nuclear liability convention before their entrance into the European Union. Consequently, the protections that relate to “ pre-Community agreements ” 43 should also apply to the nuclear third party liability conventions. In this regard, Article 105 of the Euratom Treaty should be kept in mind, in that it deals with the pre-existing treaties of the member states: “The provisions of this Treaty shall not be invoked so as to prevent the implementation of agreements or contracts concluded before 1 January, 1958 or, for acceding States, before the date of their accession, by a Member State, a person or an undertaking with a third State, an international organisation or a national of a third State, where such 40 COM (2005) 593 final, sub paras. 230, 324 and 325. 41 Currently, Belgium, Estonia, the Netherlands and Poland are contracting parties to the 1976 Convention on Limitation of Liability for Maritime Claims. Furthermore, Bulgaria, Cyprus, Denmark, Finland, France, Germany, Hungary, Latvia, Lithuania, Luxembourg, Malta, Norway, Romania and the United Kingdom are parties to both the 1976 Convention and to the 1996 Protocol. 42 See Neuwahl, N. (1991) ‘Joint Participation in International Treaties and the Exercise of Power by the EEC and its Member States’, 28 Common Market Law Review 4, p. 717 et seqq. 43 Tothe „ pre-Community agreements “ in general, see Pache, E. and Bielitz, J. (2006) ‘Das Verhältnis der EG zu den völkerrechtlichen Verträgen ihrer Mitgliedstaaten’, Europarecht 3, pp. 316 et seqq.

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