CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ NUCLEAR LIABILITY: OLD FEARS AND NEW PERSPECTIVES ON THE CONCEPT … About the Author : Doc. JUDr. Marianna Novotná, PhD. is an associate professor of civil law at the Law Faculty of the University of Trnava (Slovakia). In her academic work, she focuses on tort law, both in national and European contexts. She is a member/rapporteur of international and national commissions and study groups dealing with contract law and tort law. 1. Introduction 1 Nuclear damage as an immanent part of the concept of civil liability for nuclear damage is a legal concept that holds a specific position within the system of general law of torts. Despite their essentially private nature, the relationships of the nuclear liability for damage are not governed by the (national) general law of torts since general liability-related provisions are not and never have been designed to deal sufficiently with consequences, specific in nature, of possible nuclear incidents whose occurrence has not been taken into consideration at all when creating the general tort law provisions. Activities underlying the liability for nuclear damage are generally viewed as activities whose performance bears an increased risk of harmful effects and a higher level of danger compared to “conventional” forms of abnormally dangerous activities governed by the general law of torts. Both these attributes gave rise to a special legal regime (at the level of international legislation and following international commitments being implemented, at the level of national legislations as well) that would allow compensation for nuclear damage – as a specific type of damage. Nuclear damage as a prerequisite for establishing civil liability for damage (i.e. liability- related legal relationship between a nuclear installation operator 2 and an injured party, i.e. between private-law parties) does not have any distinctive connotations within the international law as far as nature of this relationship is concerned. Nonetheless, the international law still has a substantial impact on the definition of its content, extent and its development within the process of historical evolution as its fundamentals were laid down in the first-generation international conventions on nuclear liability (Vienna Convention on Civil Liability for Nuclear Damage 3 and Paris Convention on Third Party Liability in 1 This study was prepared as the outcome of the research project VEGA Nr. 1/0535/19 “ Monetary satisfaction for non-pecuniary loss of surviving relatives “. 2 Unlike typically constructed international conventions regulating the compensation of damages, the nuclear liability conventions are not based on direct and exclusive international liability of the nuclear countries, however they impose the exclusive and strict civil liability onto the operator of nuclear installation. While constructing this so-called legal channelling of liability the position of international „lawmaker“ was based on the proposition that shifting the liability for nuclear damage solely to the operator of the nuclear installation is in accordance with the principles of civil law liability (to the general concept of vicarious liability see Trojčáková, V. Pričítanie škody spôsobenej pomocníkom. Zodpovednosť na pomedzí porušenia zmluvnej povinnosti a deliktu [The attribution of damages caused by agent; The liability on the border between breach of contractual obligation and delict]. In: Porušenie zmluvných povinností v súkromnom práve a jeho následky . Trnava : Právnická fakulta Trnavskej univerzity v Trnave, 2018, since while using the nuclear energy as activity which is organized, managed and controlled by the operator and the operator makes profit out of it, there are certain processes of using certain types of technology or forces of nature which alone bear relatively high risk of harmful consequences. The operator is an entity which, due to its position of organizing and managing entity, has the most considerable influence on the safest method of using of these dangerous sources and thus an opportunity to avert and prevent the damages. (Novotná, M., Handrlica, J. “Act on civil liability for nuclear damage and its financial coverage as a new source of the Slovak liability nuclear and civil legislation”, Societas et iurisprudentia , No. 3, 2015, p. 47. 3 Hereinafter as the „ Vienna Convention”. For further details see: Novotná, M., Handrlica, J. Zodpovednosť za

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