CYIL 2012

EUROPEAN ATOMIC ENERGY COMMUNITY AND THE NUCLEAR THIRD PARTY LIABILITY to obligations under the Euratom Treaty than under international law. Community legislation in the field of nuclear liability may be considered a better guarantee that states will transform and execute its provisions to protect potential victims of a nuclear incident in their legal systems. Consequently, the recent tensions over how to proceed further in the matter of nuclear liability can be described as being at a crossroad between regional and global legal frameworks. Such tensions also exist over the impact of the use of competencies to govern nuclear liability through the means of European law. While the Euratom Treaty offers a legal basis for decision-making over the entire area of nuclear liability, there are also potential competencies that arise from the Treaty on Functioning of the European Union. These are, however, rather partial and limited only to specific areas, such as competition policy, environmental policy and enforcement of judgements. Taking the nature of the Euratom Treaty into consideration as a lexspecialis, the legislative initiative to govern nuclear liability issues should clearly be derived primarily from this treaty. However, use of these competencies is not only an issue pertaining to interpreting the provisions of the Euratom Treaty. The political viability of such a solution is also an issue. Therefore, the competencies of the European Union, anchored in the Treaty on the Functioning of the European Union, may be of use to harmonise the rules, either in specific areas governed by the international conventions, or in those areas which remain outside the coverage of those treaties The area of environmental liability serves as an example of the first possible “sectoral” regulation. Neither the Paris nor the Vienna Conventions address liability for environmental damages caused by a nuclear incident, while the 1997 Protocol, as well as 2004 Protocol, modified the definition of “nuclear damage” to cover certain environmental damage. 47 Even so, matters governed by nuclear liability conventions are explicitly excluded from the scope of application to the Directive on environmental liability. 48 Therefore, depending on progress made in the ratification process, there will be yet another labyrinth of rules –this time a labyrinth of environmental liability rules – established in addition to existing differences. 49 Consequently, including the nuclear liability matters into the application scope of the Directive may increase the possibility of reaching a uniform standard of rules. (e.g. liability arising from military use of nuclear energy). 3.3.1 Nuclear liability rules and environmental law 47 E.g. Wagstaff, F. (2005) ‘The Concept of Nuclear Damage in the revised Paris Convention’, in N. Pelzer (ed.) Die Internationalisierung des Atomrechts , at pp. 197 et seqq., Nomos Verlgas, Baden Baden. 48 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L 143/56. 49 Furthermore, not all current member states that are contracting parties to the Vienna Convention are contracting states to the 1997 Protocol. This is the case of Bulgaria, Estonia and Slovakia. Consequently, even by ratifying both the 1997 and 2004 Protocols, this problem will not be resolved.

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