CYIL 2012

EUROPEAN ATOMIC ENERGY COMMUNITY AND THE NUCLEAR THIRD PARTY LIABILITY agreements or contracts have been communicated to the Commission not later than 30 days after the aforesaid dates.” Consequently, the Vienna Convention and the Joint Protocol are to be considered as “ grandfathered treaties ” under the Euratom Treaty. Also the Amended Vienna Convention is to be considered, at least in the case of Romania and Latvia, which acceded to the European Union already as contracting parties to this convention. In the case of other states, this status will clearly depend on the content of their communication pursuant to Article 105 of the Euratom Treaty. However, the Euratom Treaty lacks any provision concerning possible conflicts arising from pre-Community agreements and commitments to European law. Does such a fact mean that matters governed by those international conventions that were concluded by “new” member states before their accession to the European Union, can never be subject to differing legislation under the Euratom Treaty? This is a very sensitive issue and the legal and political feasibility of any action in this regard differs considerably. Taking into account the relation between the Treaty on Functioning of the European Union and the Euratom Treaty as lexgeneralis and lexspecialis, provisions on the “ pre-Community agreements ” of the first of the treaties must also apply to matters governed by the Euratom Treaty. Article 351 of that Treaty provides for a quite similar protection of “ pre-Community agreements .” 44 Even so, in contrast to the Euratom Treaty, Article 351 of the Treaty on Functioning of the European Union also provides a method to deal with potential conflicts between commitments towards the Union and those arising from international treaties: “To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude. In applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages accorded under the Treaties by each Member State form an integral part of the establishment of the Union and are thereby inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same advantages by all the other Member States.” Therefore, one may suggest that the obligations laid down in the Treaty on Functioning of the European Union to eliminate incompatibilities are also subsidiary in relation to matters governed by the Euratom Treaty. Relating to matters of nuclear liability, such an interpretation has considerable implications, as it enables the Community to set its own nuclear liability rules and obliges member states to renegotiate international treaties in order to ensure compliance with the law of the Community. Such an interpretation can also be supported by existing case law, e. g. 44 Schmalenbach, K. (1999) ‘Art. 307 (ex – Art. 234)’, in Calliess, C. and Ruffert, M. (eds.), Kommentar zum Vertragüber die Europäische Union und zum Vertrag zur Gründung der Europäischen Gemeinschaft , pp. 2533 et seqq., Luchterhand Literaturverlag, Neuwied.

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