CYIL 2012

JAKUB HANDRLICA CYIL 3 ȍ2012Ȏ in case C-62/98 Commission v Portugal. There, the Commission took the position that the subordination clause contained in Article 307 of the then existing EC Treaty, which was basically identical to the recent wording of Article 105 of the Euratom Treaty, must be interpreted in a restrictive manner, because it had the effect of making an exception to the principle of the supremacy of Community law. 45 Thus, member states are obliged to take such steps which will ensure compliance with obligations under international treaties to which they are parties, as well as commitments arising from Community law. The European Court of Justice stressed that: “Furthermore, although, in the context of (…) the Treaty, the Member States have a choice as to the appropriate steps to be taken, they are nevertheless under an obligation to eliminate any incompatibilities existing between a pre-Community convention and the EC Treaty. If a Member State encounters difficulties which make adjustment of an agreement impossible, an obligation to denounce that agreement cannot therefore be excluded. (…) As regards the argument that such denunciation would involve a disproportionate disregard of foreign-policy interests of the (…) Republic as compared with the Community interest, it must pointed out that the balance between the foreign-policy interests of a Member State and the Community interest is already incorporated in (…) the Treaty, in that it allows a Member State not to apply a Community provision in order to respect the rights of third countries deriving from a prior agreement and to perform its obligations thereunder. That article also allows them to choose the appropriate means of rendering the agreement concerned compatible with Community law.” 46 Member states thus have the obligation to align their international treaty commitments with the commitments arising from the law of the European Union. 3.3 “Labyrinth” of nuclear liability conventions and the competencies of the European Union The issue of Euratom competence arising from the Article 98 of the Euratom Treaty has already been discussed above. It is a matter of fact that, by the extensive interpretation of these competencies, a directive based on this provision can govern those matters recently regulated in nuclear liability treaties. In strict contrast to the unanimity rule, which applies to negotiating and amending international treaties, Article 98 calls for a qualified majority in the Council. There are several persuading arguments in favour of governing matters of nuclear liability by means of European law, rather than reliance upon international treaties. Obviously, the timeframe for such a scenario may be more optimistic, compared to ratification procedures required under international treaties. Those follow domestic legal procedures and depend entirely on the political willingness of member states. Furthermore, there are considerably more effective enforcement measures with regard 45 See Manzini, P. (2001) ‘The Priority of Pre – Existing Treaties of EC – Member States within the Framework of International Law’, 12 European Journal of International Law 4, pp. 788 et seqq. 46 See Case 62/98 Commission v Portugal [2000] ECR I – 5171, para. 49-52.

56