Explanatory Memorandum to COM(2012)550 - Authorisation of the Member States which are Parties to the Vienna Convention on Civil Liability for Nuclear Damage for amending that Convention - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2012)550 - Authorisation of the Member States which are Parties to the Vienna Convention on Civil Liability for Nuclear Damage for ... |
|---|---|
| source | COM(2012)550  |
| date | 26-09-2012 |
Currently, the international nuclear liability regime is governed primarily by two instruments: the 'Vienna Convention' as amended by the 1997 Protocol and the 'Paris Convention' on Third Party Liability in the Field of Nuclear Energy of 1960 which was amended by several protocols and supplemented by the Brussels Convention of 31 January 1963 (hereinafter 'Brussels Convention'). Both these Conventions share similar main principles on substance. However, some of the EU Member States are Contracting Parties to the Paris Convention, others to the Vienna Convention.
Articles 12 to14 of the 1997 Protocol include provisions on the jurisdiction and on recognition and enforcement of judgments relating to the application of the Vienna Convention. These rules affect provisions contained in the European Union law, in particular, in Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The Union therefore has exclusive competence over those provisions set up in the 1997 Protocol. Consequently the Member States cannot become Contracting Parties to the 1997 Protocol as far as those provisions are concerned. In a similar situation concerning the Protocol of 12 February 2004 amending the Paris Convention, Council Decisions were adopted in order to authorise the concerned Member States to sign and ratify or accede to the Protocol in the interest of the Union. A similar solution is suggested in this case.
The Commission proposes that the Council authorizes the Member States which are Contracting Parties to the Convention of 21 May 1963 on Civil Liability for Nuclear Damage ("Vienna Convention") – i.e. Bulgaria, the Czech Republic, Estonia, Hungary, Lithuania, Poland (ex post) and Slovakia - to ratify or conclude, in the interest of the European Union, the Protocol [1]amending the Convention, which was adopted on 12 September 1997 under the auspices of the International Atomic Energy Agency.
Finally, while it would be preferable to apply a single system for nuclear liability in the European Union, flexibility is nevertheless possible given that the systems established in the Vienna Convention and in the Paris Convention are compatible.
The Vienna Convention was adopted in order to provide adequate and fair compensation to victims of damage caused by nuclear accidents. It sets up a special system of civil liability in the field of nuclear energy based on the following basic principles: (a) “absolute” liability, i.e. liability without fault; (b) exclusive liability of the operator of the nuclear installation; (c) limitation of liability in amount and/or limitation of liability cover by insurance or other financial security; (d) limitation of liability in time.
The Vienna Convention was amended by the 1997 Protocol (which entered into force on 4 October 2003) in order to improve the system of compensation for nuclear damage.
Inter alia, the 1997 Protocol contains a new definition of nuclear damage (now also addressing the concept of environmental damage and preventive measures), extends the geographical scope of the Vienna Convention, extends the period during which claims may be brought for loss of life and personal injury and substantially raises the minimum limits of compensation. It also encompasses new provisions on jurisdiction which have implications in cases where the nuclear incident occurs during the transport of nuclear material to or from an installation situated in the territory of a State which is Party to the Vienna Convention.
Under Article 19(1) of the 1997 Protocol, a State which is a Party to the Protocol but not to the 1963 Vienna Convention, is bound by the provisions of that Convention as amended by the Protocol, in relation to other States which are Party to the Protocol, and failing an expression of a different intention by that State at the time of deposit of its instrument of ratification, acceptance, approval or accession, will be bound by the 1963 Vienna Convention in relation to States which are only Parties thereto.
On 21 September 1988 the Conference on the relationship between the Paris Convention and the Vienna Convention adopted the Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention ("the 1988 Joint Protocol"), since the Paris Convention, the Brussels Convention and the Vienna Convention share the same principles. The primary goal was to coordinate application of the Conventions.
The 1988 Joint Protocol links the two Conventions in two main ways.
First, it provides for a mutual extension of the operator’s liability under the Paris and Vienna systems (Article II). Thus, if a nuclear incident occurs for which an operator is liable under both the Vienna Convention and the Joint Protocol, the operator will be liable in accordance with the Vienna Convention for nuclear damage suffered not only in the territory of Parties thereto, but also in the territory of Parties to both the Paris Convention and the Joint Protocol. Conversely, if an incident occurs for which an operator is liable under both the Paris Convention and the Joint Protocol, reciprocity will apply.
Second, the 1988 Joint Protocol is meant to eliminate conflicts which might otherwise arise, especially in the case of transport cases from the simultaneous application of the two Conventions (Article III).
The 1988 Joint Protocol was signed by five Member States and entered into force for 17 more following ratification, accession, approval, or acceptance.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- LEGAL ELEMENTS OF THE PROPOSAL
- 1.1. Purpose of the proposal
- 1.2. Protocol to Amend the 1963 Vienna Convention on Civil Liability for Nuclear Damage
- The 1997 Protocol
- The Joint Protocol of 1988
- 3.1. The Member States concerned
- 3.2. Council Regulation (EC) No 44/2001
- 3.3. Union competence with respect to the 1997 Protocol
- 3.4. Authorization of the Member States
- 3.5. Reservation on rules on the recognition and enforcement of judgments
The amendments to the Vienna Convention contain aspects that are beneficial to potential victims of a nuclear accident, i.e. an increase in the amounts of liability and a wider definition of nuclear damage. Therefore, in line with the conclusions of a study published in 2009 and a workshop held in June 2010 on nuclear liability[2], it is recognized, after consultation with the stakeholders, that any initiative in the field of nuclear liability must not hamper the accession by Member States to any international convention improving the situation of potential victims in the European Union. Adherence to the 1997 Protocol is therefore beneficial for improving victim compensation across the European Union.
The following nine Member States of the European Union have ratified or acceded to the Vienna Convention: Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, Poland and Romania. The United Kingdom and Spain signed but have not ratified the Convention (these two countries became Contracting Parties to the Paris Convention). The Convention has ceased to apply to Slovenia.
The 1997 Protocol was signed by the Czech Republic, Hungary, Lithuania and Italy (the latter is a Contracting Party to the Paris Convention). The Protocol was ratified by Romania and Latvia (before their accession to the EU) and by Poland (after accession to the EU).
The Council decision should therefore be addressed to the Member States which are Contracting Parties to the Vienna Convention, i.e. Bulgaria, the Czech Republic, Estonia, Hungary, Lithuania, Poland (ex post) and Slovakia. Given that Italy, the United Kingdom and Spain, while signatories to the Vienna Convention, are Contracting Parties to the Paris Convention which establishes a similar system of nuclear liability, these countries should not be covered by the Council decision.
Council Regulation (EC) No 44/2001 of 22 December 2000[3] lays down rules on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The Regulation binds all the Member States (special arrangements exist with regard to Denmark).
The rules on jurisdiction provided for by Council Regulation (EC) No 44/2001 apply when the defendant is domiciled in one of the Member States bound by the Regulation. Defendants not domiciled in a Member State may be brought before the courts of each Member State in accordance with the national rules on jurisdiction of that State, subject to Articles 22 (exclusive jurisdiction) and 23 (choice of forum clauses).
Jurisdiction is based, in the first place, on the domicile of the defendant. In addition, in matters relating to tort, delict or quasi-delict, a person domiciled in a Member State may be sued in the Member State where the harmful event occurred or may occur. The place where the harmful event occurred is understood by the Court's case law to mean the place of the act giving rise to the harmful event or the place where the damage occurred. In matters relating to insurance, an insurer domiciled in a Member State may be sued (a) in the courts of the Member State where insurer is domiciled, or (b) in the Member State where the plaintiff is domiciled, in the case of actions brought by the policyholder, the insured person or a beneficiary, or (c) if he is a co-insurer, in the courts of a Member State in which proceedings are brought against the leading insurer. In respect of liability insurance, the insurer may, in addition, be sued in the courts of the place where the harmful event occurred, and also, if the law of the court so permits, be joined in proceedings brought by the injured party against the insured person.
Council Regulation (EC) No 44/2001 stipulates that a judgment given in one Member State must be recognized and enforced in the others without any special procedure being required. However, a limited number of grounds for non-recognition are permitted to take account of public policy considerations, respect for the rights of the defense and the existence of certain irreconcilable judgments.
There is no Union legislation governing nuclear third party liability. Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the applicable law to non-contractual obligations ("Rome II") excludes nuclear liability from its scope.
However, the 1997 Protocol contains provisions which affect Council Regulation (EC) No 44/2001. In contrast to the multiple grounds of jurisdiction available under the Regulation, Article XI of the Vienna Convention, as amended by the 1997 Protocol, provides, as a general rule, for the exclusive jurisdiction of the courts of the State Party within whose territory the nuclear incident occurred.
In particular, Article XI of the Vienna Convention assigns exclusive jurisdiction to the courts of the Contracting State on whose territory a nuclear incident has occurred over claims for compensation for damage caused by the incident. If the incident occurred outside the territory of the Contracting Parties or if the place of the accident cannot be determined with certainty, the relevant courts are those of the Installation State of the operator liable.
The 1997 Protocol also provides for the exclusive jurisdiction of the courts of the Contracting Coastal Party for nuclear incidents which occur in its exclusive economic zone. This jurisdiction is granted on condition that the Depositary of the Convention received notification of the zone prior to the nuclear incident.
As regards the rules on the recognition and enforcement, under Article XII of the Vienna Convention, as amended by the 1997 Protocol, any judgement by the competent court that is no longer subject to ordinary forms of review benefits from specific provisions relating to the recognition and enforcement of judgements. With some exceptions i Article XII provides that the judgement must be recognized within the territory of all Contracting Parties and is enforceable as if it were the judgement of a national court. Reconsideration of the merits of the case is never allowed.
The European Union has exclusive jurisdiction over the provisions on jurisdiction and the recognition and enforcement of the judgments contained in the 1997 Protocol, as these affect, as defined by the ECJ case law[5], the corresponding rules of Council Regulation (EC) No 44/2001. The Member States therefore no longer have the right either to derogate from these rules among themselves or to contract obligations with non-member countries which affect these rules.
However, the Vienna Convention and the 1997 Protocol have no regional economic organization clause allowing the European Union to become Contracting Party to the Protocol. Consequently, the European Union is not in a position to become a Contracting Party to the 1997 Protocol.
The 1997 Protocol, improving protection for victims in the event of nuclear incidents is particularly important for the European Union and its Member States. On an exceptional basis, it is therefore justified for the Union to exercise its powers through its Member States which are Parties to the Vienna Convention.
However, disregarding those Member States which are already Contracting Parties to the amended Paris Convention, five Member States of the European Union, namely Austria, Ireland, Luxembourg, Malta and Cyprus are not Parties neither to the amended Paris Convention nor to the 1963 Vienna Convention. Consequently, it is considered objectively justified, on an exceptional basis, to allow these five Member States not to become Parties to the 1997 Protocol and therefore to continue to apply the rules of Council Regulation (EC) No 44/2001 in the area covered by the Vienna Convention and the 1997 Protocol. This difference in the application of the rules on jurisdiction within the European Union is justified given that:
- the 1997 Protocol amends a Convention to which these five Member States are not Contracting Parties;
- Council Regulation (EC) No 44/2001 does not affect Conventions to which the Member States are Parties.
As a result, only the Member States which are currently Parties to the Vienna Convention should ratify or accede to the 1997 Protocol in the interest of the European Union. Poland ratified the 1997 Protocol after its accession to the EU. The decision should therefore be addressed to Poland ex post. Latvia and Romania had already signed and ratified the 1997 Protocol prior to their accession to the European Union.
For these reasons, the Commission recommends that the EP and the Council adopt the Decision authorizing the Member States which are Parties to the Vienna Convention to ratify, in the interest of the European Union, the 1997 Protocol, or to accede to it.
As regards to the rules on recognition and enforcement of judgments, established in Article XII, as amended by Article 14 of the 1997 Protocol, it is necessary to ensure continued application of the relevant rules of Regulation 44/2001, as extended to Denmark by the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters[6], or of the Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters of 30 October 2007[7]. Limiting application of Article XII of the Vienna Convention in this way would ensure unity in the Union judicial area and the free circulation of judgments within the EU, without having repercussions on the effective implementation of the Convention, as amended by the Protocol, nor fundamental implications for non-EU States Parties to it.
The 1997 Protocol is silent on the question of permissible reservations. Under Article 19 of the 1969 Vienna Convention on the Law of Treaties, a reservation would be permissible if compatible with “the object and purpose” of the Convention, as is the case here.
In conclusion, when acceding to the 1997 Protocol, Member States must ensure the application of the relevant EU rules on the recognition and enforcement of judgments pronounced by the court of another Member State (including Denmark) or by a non-EU state bound by the Lugano Convention.