CYIL vol. 11 (2020)

MARIANNA NOVOTNÁ – VERONIKA TROJČÁKOVÁ CYIL 11 (2020) The dividing line between the two stages of intent lies in the intensity of the escalation of the will element. While in the case of direct intention the existence of direct will is required (expressed as “wanted”), in the case of indirect intention the existence of indirect will (expressed as “understood”) is sufficient. Assessing the legal nature of gross negligence as the only acceptable degree of negligence of the harmed person that results in the liberation of the nuclear facility operator is much more complex compared to the legal classification of intention. This is also indicated by the fact that the very essence of this institute is questionable in the civil law theory. While some opinions consider gross negligence to be a subjective category (as the highest degree of negligence), other opinions consider it to be a category of objective nature (as a particularly serious breach of duty or gross illegality). In legal (especially judicial) praxis the prevailing view is that gross negligence must be considered a particularly serious breach of due diligence (standard of care), which can cover both cases of conscious negligence but exceptionally even serious cases of unconscious negligence associated with a breach of professional duty, the status of the wrongdoer, or directly from law. However, the nature of due diligence (standard of care) like the gross negligence itself is in theory highly disputable. In particular, the question arises as to whether the nature of the due diligence is to be understood in an objective or subjective way, i.e. whether it is considered by taking into account the individual circumstances and personal characteristics of the entity (subjective approach) or whether it is considered equally against all entities in the same position and with the same requirements (objective approach). Based on the broader context of assessing the nature of negligence, in the doctrine we may identify a slight inclination towards objective criteria for assessing negligence as an objectified view of the assessment of negligence is inherent in the civil law theory of most European legal systems. Objectively assessed and proven degree of fault reaching a degree of gross negligence or proven intent of the harmed person shall lead, on the part of the nuclear facility operator, to the release of liability in accordance with Art. 4 par. 2 of the Vienna Convention and on the part of the harmed person an obligation to bear all or part of the nuclear damage caused to him by himself. Due to gross negligence or the intention to cause nuclear damage of the person suffering damage the nuclear facility operator may be relieved from liability (partly or completely) only in relation to the harmed person that caused or contributed to the damage. In relation to other persons suffering damage his liability remains in full, of course, provided that there is no other liberation ground of relevant nuclear legislation present. 3.4 „On-site“ property Art. IV par. 5 of the Vienna Convention similarly to Art. 3 letter (a) (ii) of the Paris Convention relieves the operator from liability for nuclear damage caused to the nuclear installation itself or to any property on the site of that nuclear installation which is used or to be used in connection with that installation (so-called “ on-site “ property). Unlike the Paris Convention, the Vienna Convention does not explicitly address situations in which nuclear damage occurs at another nuclear facility, 31 e.g. at a nuclear installation in the

31 The Paris Convention from the operator‘s liability directly excludes damage caused to any other nuclear installation including a nuclear installation under construction.

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