CYIL vol. 10 (2019)

MARIANNA NOVOTNÁ CYIL 10 ȍ2019Ȏ injury or damage to a tangible object) in the form of usually classified as “ pure economic loss ” 37 (economic loss suffered by a party that itself did not suffer any loss of property, health or life from which its pure economic loss could be derived). In general, compensation of pure economic loss is complicated both from the technical and a policy point of view. The policy issue regards the fact that it is thought that compensating pure economic loss on a general basis would open the floodgates to claim. 38 Due to concerns and fears of excessive damages, the nuclear legislation translated these policy considerations into limitation of pure economic loss compensation referring only to loss of income deriving from a direct economic interest in any use or enjoyment of the environment, incurred as a result of a significant impairment of that environment, and insofar as this loss of income is not included in the category of primary „loss of or damage to property“. It may be, for example, lost profits incurred by farmers, wholesalers or retailers whose turnover decreased due to public concern about contaminated food despite the fact that the level of products contamination did not exceeded the set limits and thus the entities did not suffer the direct economic loss or lost profits of an owner of a hotel whose occupancy will decreases due to tourists’ concerns about the contamination of a public beach next to the hotel (so called rumour damages ). 39 The amended Vienna Convention allows within the “pure economic loss” category also compensation for any other economic loss which did not arise following an impairment of environment, but only if compensation for such pure economic loss is allowed by the general law on civil liability of the competent court 40 (for example, if as a consequence of a nuclear incident, an enterprise is destroyed resulting not only in production stoppage but also in dismissal of all employees, the loss (loss of earnings) of these employees may be included into the category of newly established pure economic loss). The actual object of this amended Vienna Convention provision (such provision did not appear in the amended Paris Convention) was never clear enough (it may have been an attempt to have a “catch- all” type of clause 41 ), and leaving this matter to „the law of the competent court“ (either the national nuclear law legislation or general tort law provisions) does not seem to contribute to the struggle for a unified international nuclear liability regime. Even in the general tort law, pure economic loss is to be considered as one of the main problems in expanding 37 Issues of liability for a so-called pure economic loss are not limited solely to the field of the nuclear law. On the contrary, generally formulated postulates of this legal concept resulting from the law of torts found their expression in the revised nuclear liability legislation. The general law of torts in particular countries is still inconsistent with regard to the question of compensation as well as the definition of essential elements of pure economic loss, although the trend heads towards the gradual finding a place for pure economic loss within the law of torts. 38 VAN DAM, C. European Tort Law . Oxford: Oxford University Press, 2013, p. 209. 39 In questionnaires prepared by individual state delegations participating in the “Indemnification of Damage in the Event of Nuclear Accident” workshop which took place on 18-20 May 2005 in Bratislava under the auspices of the OECD/NEA, most states (e. g. Austria, the Czech Republic, Germany, Finland, Latvia, Spain, Switzerland, the Netherlands, Sweden) replied that a so-called “pure economic loss” arisen as a consequence of a nuclear incident cannot be considered under their national law as compensable damage. 40 Cf. BOULANENKOV, V. Main Features of the Convention on Supplementary Compensation for Nuclear Damage – an Overview. In: Reform of civil nuclear liability. Budapest symposium. OECD, Paris 1999. 41 DUSSART-DESART, R. The Reform of the Paris Convention on Third Party Liability in the Field of Nuclear Energy and of the Brussels Supplementary Convention: An Overview of the Main Features of The Modernisation of the two Conventions. In: Nuclear Law Bulletin , No. 75, 2005, p. 14.

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