CYIL 2012

EUROPEAN ATOMIC ENERGY COMMUNITY AND THE NUCLEAR THIRD PARTY LIABILITY by victims in the territory of a contracting state to the Vienna Convention and to the Joint Protocol (e.g. the Czech Republic). Those victims must claim damages in the competent court, as laid down in the provisions of the Paris Convention. Vice versa, the court exclusively competent under the Vienna Convention will be in charge of all claims by victims suffering damages in the territory of a contracting state to the Paris Convention and to the Joint Protocol (e.g. the Netherlands), resulting from a nuclear incident that occurred in the territory of a contracting state of the Vienna Convention and to the Joint Protocol (e.g. Hungary). However, while all member states that belong to the Vienna regime of nuclear liability 52 acceded to the Joint Protocol, not all “old members” did so. Thus, some of the most important nuclear countries, such as the United Kingdom, France, Belgium and Spain, have not yet ratified the Joint Protocol. It is undisputed that ratifying the Joint Protocol in all member states will clearly be a step towards further harmonisation of rules in the Union. Most recently, the legal report on “Accession of Euratom to the Paris Convention” pointed out that if progress on the Joint Protocol were discontinued, it would have political consequences in member state relations with non-contracting parties. It further emphasised the role of the Joint Protocol as a „necessary “link” between the Paris and Vienna Conventions. Given that none of the EU member states is a member of both conventions, Lithuania views adherence to the Joint Protocol as a “must” to solve the current lack of unity, which causes legal uncertainty and negatively interferes with the effective implementation of the conventions…“ 53 Consequently, we question whether there is any means to back such a process through legislation issued under the competencies laid down in the Euratom Treaty. The reason that major Paris Convention parties 54 failed to join the Joint Protocol is primarily the limits to operator liability, as laid down in the legislation of parties to the Vienna Convention. 55 Obviously, the contracting parties to the Paris Convention are not willing to share the advantages of their higher limits of compensation, which would be – in the case of ratification of the Joint Protocol – available to victims under the authority of the Vienna Convention as well. While the minimum financial limit is set to the anachronistic amount of five million (gold) dollars, 56 the Vienna regime 52 Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia. 53 TREN/CC/01 – 2005, at p. 81. 54 France, Belgium, Great Britain, Spain. 55 See Van den Borre, T. (2010) ‘Nuclear Liability: An Anachronism in EU Energy Policy’, cit sub. 20. p. 209. 56 The dollar referred to in the Vienna Convention is a unit of account equivalent to the value of the US dollar in terms of gold on 29 April, 1963, that is to say US $ 35 per one troy ounce of fine gold. Consequently, it is a „floating“ limit, which depends on the development of the price of gold on the world markets. The liability limit amount is generally considered today to have a value of approximately USD 160 million. However, it is a matter of fact that some of the contracting parties to the Vienna Convention do not comply even with these requirements.

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