CYIL vol. 14 (2023)

CYIL 14 (2023) UNRAVELING THE ENIGMA OF THE INTERPLAY BETWEEN THE VIENNA CONVENTION … the regulation’s scope. 26 This exclusion of nuclear liability matters from the regulatory framework (however not envisaged in the 2002 Proposal) 27 was justified in the Rome II Explanatory memorandum, 28 citing the significance of economic and State interests, as well as acknowledging the Member States’ contributions towards establishing liability measures for nuclear damage compensation within the existing international system governed by conventions specifically tailored to address nuclear liability issues. 29 Moreover, it is important to note that the Rome II Regulation does not encompass cases of damage that are subject to pre-existing international conventions. This limitation is expressly stated in Article 28 of the regulation, which safeguards the application of international conventions that involve conflict-of-law rules pertaining to non-contractual obligations and have been ratified by one or more Member States prior to the adoption of the Regulation. 30 Since the Vienna Convention was adopted long before the adoption of the Rome II Regulation and some of the Member States were parties to this convention at the time when the Rome II Regulation was adopted, the Regulation acknowledges and respects the primacy of the Vienna Convention in governing nuclear damage cases. On the other hand, vague formulation, and insufficient effectivity 31 of the exclusion clause wording have created ample room for interpretation. In particular, it is not possible to identify from the present structure of Rome II rules (and with the reference to explanatory memorandum) the exact boundaries between the Rome II Regulation and Vienna Convention regulating the matters of nuclear damage compensation (“non-contractual obligations arising out of nuclear damage”). 26 The exclusion of nuclear damage from Rome II has been criticised. Although international conventions exist to address this matter, it is worth noting that these conventions were formulated over fifty years ago in the context of the Cold War. Given this historical backdrop, it would have been relevant to at least reference the conflict of law rule established by these conventions within a European text. See EUROPEAN COMMISSION, DIRECTORATE-GENERAL FOR JUSTICE AND CONSUMERS, MIGLIORINI, S., LEIN, E., BONZÉ, C. et al. (2021) Study on the Rome II Regulation (EC) 864/2007 on the law applicable to non-contractual obligations – , Publications Office of the European Union, p. 220, available at https://data.europa.eu/doi/10.2838/399539. 27 See GOMEZ, K., F. Environmental Liability (2016) European Encyclopedia of Private International Law , available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2787334. 28 Commission of the European Communities, Explanatory Memorandum to the Proposal for a regulation of the European parliament and the Council on the law applicable to non-contractual obligations (Rome II), COM (2003) 427 final, 2003/0168 (COD), available at https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CO M:2003:0427:FIN:EN:PDF. 29 “[N]on-contractual obligations arising out of nuclear damage: this exclusion is explained by the importance of the economic and State interests at stake and the Member States’ contribution to measures to compensate for nuclear damage in the international scheme of nuclear liability established by the Paris Convention of 29 July 1960 and the Additional Convention of Brussels of 31 January 1963, the Vienna Convention of 21 May 1963, the Convention on Supplementary Compensation of 12 September 1997 and the Protocol of 21 September 1988. These being exceptions, the exclusions have to be interpreted strictly.” Commission of the European Communities, Explanatory Memorandum to the Proposal for a regulation of the European parliament and the Council on the law applicable to non-contractual obligations (Rome II), COM (2003) 427 final, 2003/0168 (COD), p. 9, available at https:// eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2003:0427:FIN:EN:PDF. 30 However, the Rome II regulation shall, as between Member States, take precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by the regulation. (Article 28(2) of the Rome II Regulation). 31 NOCERA, F. Recent European Union Legislation and the International Nuclear Third Party Liability Regime – Conflicts, Problems and Solutions (2004) 1 Uniform law review , p. 92.

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