CYIL vol. 11 (2020)

MARIANNA NOVOTNÁ – VERONIKA TROJČÁKOVÁ CYIL 11 (2020) In the context of exoneration of the nuclear facility operator this system raises a question of possibility of the subsidiary application of para. 432 of the Civil Code in the scope of liberation grounds as well as the application of § 428 of the Civil Code defining the liberation grounds of the operator of particularly dangerous operation. In accordance with the above mentioned provisions the operator of a particularly dangerous operation cannot be relieved from his liability if the damage was caused by circumstances originating in the operation itself (so-called internal damaging event). Circumstances originating in the operation are to be understood as circumstances related to the organization, management and implementation of the operation and are causally related to the damage. Circumstances originating in the operation also include deficiencies or defects of materials and equipment including hidden and unrecognizable defects (R 9/1972), as well as unforeseeable failure of persons used in particularly dangerous operations (e.g. an employee’s heart attack). Liberation of the operator of a particularly hazardous operation is only possible if the damage was caused by circumstances not originated in the operation (so-called external damaging event – e.g. earthquake 33 , flood, lightning strike), and at the same time the damage could not have been prevented even with all the effort that could be required. The required effort shall be understood as all objectively possible care which the operator of a particularly dangerous operation may have taken under the circumstances. The question whether the operator has made all the efforts that could have been required to divert the damage is assessed strictly objectively which means that given the circumstances of the particular case no one else in the operator’s position could have diverted the damage. The use of this liberation ground for legal liability-for-nuclear-damage relations as a special subtype of liability for damage caused by particularly dangerous operations needs to be reconsidered within the context of other sources of nuclear liability legislation. The theory of atomic law is inclined to the conclusion that the enumeration of the liberation grounds established in the Vienna Convention is exhaustive, i.e. their scope cannot be extended by the national legislation of the Contracting States. The relation between nuclear liability legislation and the regulation of liability for damage caused by particularly dangerous operations shall be understood as a lex specialis to legi generali, hence liability for damage legislation caused by particularly dangerous operation should be applied exclusively to nuclear damage liability only in those matters not covered expressis verbis by the Atomic Act or the Vienna Convention or in those governed by the Vienna Convention in the form of blanket standards. For the purpose of liberating the nuclear installation operator circumstances such as acts of armed conflict, hostility, civil war, insurrection or a grave natural disaster of an exceptional character 34 may be considered in the relevant nuclear legislation as non-operational circumstances. Other so-called external damaging events should have no effect on the liberation of the operator.

33 HANDRLICA, Jakub “Underground repositories, reprocessing facilities and floating nuclear power plants: Liability issues revisited” (2019) 37 Journal of Energy and Natural Resources Law 263. 34 HANDRLICA, Jakub, SANCIN, Vasilka “Earthquakes in nuclear liability conventions: a study in international disaster law”, Avaliable at: https://www.tandfonline.com/doi/full/10.1080/02646811.2020.1795387.

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