CYIL vol. 14 (2023)

MARIANNA NOVOTNÁ CYIL 14 (2023) Given that the operation of nuclear facilities, even when conducted by a State or other public-law entity, does not constitute the performance of public functions, 47 and considering the private-law nature of nuclear liability legal relations, it can be argued that the Brussels I bis Regulation should apply (unless excluded by Article 71(1) of the Regulation) to determine jurisdiction in cases involving nuclear damage compensation. Furthermore, the inclusion of nuclear liability relations within the material scope of the Brussels I bis finds support in the case law of CJEU. The CJEU’s case law interprets the terms “civil and commercial” as autonomous concepts, distinct from the legal systems of Member States and other legal instruments such as the Rome II Regulation, 48 which explicitly excludes nuclear damage issues from its application. 49 However, the theorical possibility of application of the Brussels I bis to nuclear liability issues does not automatically extend to all nuclear damage cases within the EU. According to Article 71(1) of Brussels I bis, 50 the Regulation does not affect conventions to which the Member States are parties and which, in relation to particular matters, regulate jurisdiction, recognition, and enforcement of judgments. Article 71(1) of the Brussels I bis Regulation holds significant relevance for determining court jurisdiction in the event of a nuclear incident involving a State that is both a party to the Vienna Convention and an EU Member State subject to the direct applicability of the Regulation. Discussions could arise concerning the interpretation of the term “particular matters” in the Brussels I bis Regulation, as it lacks a specific definition. Consequently, the determination of this term would be subject to the interpretation of the Regulation itself. 51 The Vienna Convention independently regulates jurisdiction, recognition, and enforcement of decisions in a distinct manner. Given the unique nature of liability relations governed by this convention, they may be considered as falling within the scope of “specific matters.” 52 Although Article 71(1) of the Regulation Brussels I establishes the precedence of other conventions governing specific matters, its interpretation explicitly pertains to conventions to which Member States were parties at the time of the Regulation’s adoption, and does not extend to conventions that Member States may join in the future. 53 This interpretation finds support in the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (1968), which serves as the legal predecessor of the Regulation Brussel I and the Regulation Brussels I bis. The Brussel 47 Compare SANDS, P., GALIZZI, P. The 1968 Brussels convention and liability for nuclear damage in Reform of civil nuclear liability. Budapest symposium (OECD 1999) p. 494. 48 Article 1(2)(f) of the Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). 49 HANDRLICA, J. Channelling of nuclear third party liability towards the operator: jeopardised by the Brussels regulation (2011) 2 Czech Yearbook of Public and Private International Law , p. 77. 50 With a view to the uniform interpretation of the Brussels I bis Regulation, Article 71(1) shall be applied in the manner that the Brussels I bis Regulation shall not prevent a court of a Member State which is party to a convention on a particular matter from assuming jurisdiction in accordance with that convention, even where the defendant is domiciled in another Member State which is not party to that convention. 51 MAGNUS, U., MANKOWSKI, P. Brussels I regulation (Sellier 2012), p. 866. 52 For more details see 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, pp. 37–40. 53 MAGNUS, U., MANKOWSKI, P. Brussels I regulation (Sellier 2012), p. 860.

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