CYIL vol. 14 (2023)

CYIL 14 (2023) UNRAVELING THE ENIGMA OF THE INTERPLAY BETWEEN THE VIENNA CONVENTION … consistency in the resolution of similar disputes. Furthermore, the potential for conflicting judgments and the increased costs associated with parallel proceedings across different jurisdictions can exacerbate the challenges faced by the parties involved. Moreover, the option of the injured party to opt between several jurisdictions in cases of nuclear incident of greater extent or radioactive contamination during transport of nuclear material through the territory of more EU Member States, would be in contradiction with the aims of nuclear liability legislation – i.e., the concentration of decisions regarding the nuclear damage, coupled with the narrowing down of broadly specified jurisdictional rules, giving rise to concerns related to forum shopping . This conflict between the Brussels I bis Regulation and the Vienna Convention provisions necessitates clarifications regarding the application of the Brussels I bis in matters of nuclear liability in determination whether Brussels I bis can be applicable in nuclear liability matters, and if so, under what conditions its application would be appropriate. 3.2 Core dilemmas explored The substantive scope of the Brussels I bis Regulation is laid down in Article 1. According to Article 1(1), the regulation shall apply in civil and commercial matters irrespective of the nature of the court or tribunal. Regarding the definition of a relationship falling within the scope of civil and commercial matters, the same principles discussed in relation to the interpretation of this term in the context of the Rome II Regulation apply. However, exclusion of public law relations does not automatically exempt public administrative institutions from the application of the Brussels I bis Regulation. These institutions are only excluded when acting in their capacity as public entities, exercising their authority. If they engage in private relationships of a civil or commercial nature, Brussels I bis would apply. The nature of the legal relationship, rather than the nature of the court in which the claim is filed, is crucial. 44 Considering that legal nuclear damage relationships, governed by both international and national legislation, can be characterized as non-contractual civil law obligations, the civil law nature of these relationships could justify the application of Regulation Brussels I. However, certain factors, such as nuclear equipment operators being States or State controlled companies, or the presence of public-law elements in the operation of nuclear facilities, may raise concerns about the applicability of Regulation Brussels I in matters of nuclear damage. CJEU has affirmed that the material scope of Regulation Brussels I extends to relationships involving a public-law entity and a private-law entity. 45 However, this application is contingent upon the public-law entity acting as a private entity in private-law relationships. The determining factor lies not in the entity’s status as a public authority, but rather in the nature and character of the legal relationship and the laws governing that relationship (no civil or commercial matter in situation of performing public powers). 46 44 MAGNUS, U., MANKOWSKI, P. Brussels I regulation (Sellier 2012) p. 55. 45 NOVOTNÁ, M., VARGA, P. The relation of the EU law and the nuclear liability legislation: Possibilities, limits and mutual interaction (2014) 3 Societas et iurisprudentia , p. 110; KOSNÁČOVÁ, M. ‘Občianskoprávna zodpovednosť za jadrovú škodu v práve EU’ [Civil liability for nuclear damage in EU law] (2004) 11 International and Comparative Law Review , p. 39. 46 Compare with the case 29/76 LTU v Eurocontrol (14 10 1976); case C-265/02 Frahul SA v Assitalia SpA .

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