1. „European Nuclear Energy Law in a Process of Change“ Institute for Energy and Mining Law, Ruhr University Bochum, Germany Focus an key legal aspects in the Member States III.: nuclear liability

2. Overview on lectures to be held this week (1) Monday, 25. 11. 2013, 14:00 – 15.30: Introduction - historical background of the nuclear integration in Europe (CERN, OEEC, Euratom) Tuesday, 26. 11. 2013, 10:15 – 11:30: European Atomic Energy Community (Euratom) - nature, characteristic features, relation to the European Union, institutions- powers to create binding legislation (regulations, directives) and to issue binding decisions - overview of Euratom 's policies with regard to the decision making ofthe ECJ - Euratom and existing international treaties

3. Overview on lectures to be held this week (2) Wednesday, 27. 11. 2013, 10:15 – 11:30: Focus an key legal aspects in the Member States I.: nuclear safety, competencies of Euratom vs. competencies of member states - key obligations arising from the current Euratom legislation - perspectives of the future developments Thursday, 28. 11. 2013, 10:15 – 11:30: Focus an key legal aspects in the Member States II.: radioactive waste management: competencies of Euratom vs. competencies of member states - key obligations arising.from the current Euratom legislation - perspectives of the future developments Friday, 29. 11. 2013, 10:15 – 11:30: Focus an key legal aspects in the Member States III.: nuclear liability, competencies of Euratom vs. competencies of member states - key obligations arising.from the current Euratom legislation - perspectives of the future developments

4. Nuclear liability Focus an key legal aspects in the Member States III.

5. Nuclear liability coventions of the „first generation“ 1960 Paris Convention (OECD) 1962 Brussels Convention (IMO) 1963 Vienna Convention (IAEA) 1963 Brussels Supplementary Convention (OECD) 1972 Convention on Liability in Maritime Transport (IMO)

6. Basic principles (1) a nuclear installation must have a person in charge: the operator. In the nuclear liability conventions, the operator is the person designated or recognised as the operator of a nuclear installation by the state. The operator of a nuclear installation is exclusively liable for nuclear damage. No other person may be held liable, and the operator cannot be held liable under other legal provisions. Liability is legally channelled solely to the operator of the nuclear installation.

7. Basic principles (2) there are limits of minimum and maximum liability under the Paris Convention, or only minimum liability limits under the Vienna Convention for damages caused by a nuclear incident. Consequently, the liability of the operator for nuclear damages must be limited by national legislation.

8. Basic principles (3) the nuclear liability conventions require that the operator maintains or provides other financial securities covering its liability for nuclear damage in such amounts, of such types and in such terms, as the installation state specifies. The congruence principle ensures that the liability of the operator is always covered by an equal amount of money.

9. Basic principles (4) at the same time, the courts of the contracting party where the nuclear incident occurred will have exclusive jurisdiction over actions brought for damages caused by a nuclear incident occurring in their territory. In a case where nuclear material in transport causes damage within the territory of a contracting party, the court where the nuclear material was situated at the time of damage will be exclusively competent.

10. Basic principles (5) furthermore, both the Paris and Vienna Conventions provide for very limited liability relief. The operator will be exonerated from liability only if he proves, for example, that the nuclear incident was directly due to armed conflict, hostilities, civil war or insurrection, or that it resulted wholly or partly either from gross negligence of the victim of from an act or omission of the victim with intent to cause harm.

11. Nuclear liability coventions of the „second generation“ 1987 Joint Protocol (OECD/IAEA) 1997 Protocol to Amend the Vienna Convetion (IAEA) 1997 Convention on Supplementary Compensation (IAEA) 2004 Protocol to Amend Paris Convention (OECD) 2004 Protocol to Amend Brussels Supplementary Convention (OECD)

12. Nuclear Liability and the Euratom Community From Patchwork to a Harmonisation?

13. Nuclear Liability Patchwork (1) Most of the “old” (pre-2004) Member States are contracting parties to the Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960. Most of the “new” (post-2004) Member States are contracting parties to the Vienna Convention on Civil Liability for Nuclear Damage of 21 May 1963.

14. Nuclear Liability Patchwork (2) Only some of the contracting parties to the Paris Convention are contracting parties to the Joint Protocol relating to the Application of the Vienna Convention and Paris Convention of 21 September 1988 (thereinafter “the Joint Protocol”) which provides a link between the Paris Convention and the Vienna Convention; on the contrary, all Member States that are contracting parties to the Vienna Convention are at the same time contracting parties to the Joint Protocol.

15. Nuclear Liability Patchwork (3) Most, but not all of the contracting parties to the Paris Convention are contracting parties to its companion convention, Convention of 31 January 1963 Supplementary to the Paris Convention of 29th July 1960

16. Nuclear Liability Patchwork (4) Some “new” Member States have joined the The Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Liability of 12 September 1997, and only three Member States have actually ratified it.

17. Nuclear Liability Patchwork (5) Very few Member States have signed the Convention on Supplementary Compensation for Nuclear Damage of 12 September 1997 and only one (Romania) has ratified it.

18. Nuclear Liability Patchwork (6) Most of the “old” Member States have signed the Protocol to Amend the Paris Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960 and of those, most have signed also the Protocol to Amend the Convention of 31 January 1963 Supplementary to the Paris Convention of 29th July 1960.

19. Nuclear Liability Patchwork (6) Among the various problems regarding nuclear liability, the situation of several non contacting countries cannot be passed over. As of today all Member States are not contracting parties to existing nuclear liability treaties. Indeed some of them saw no necessity take up international obligations in this field, because of their geographic distance from other states. Aside from this reason, other Member States openly expressed their reservations as to international treaties on nuclear liability. This is the case with Ireland, Austria and Luxembourg, all of which are non-nuclear states, surrounded by mighty nuclear nations. In general, the non contracting parties tend to view the provisions of existing international nuclear liability treaties as essentially developed to nurture nascent nuclear industries and thus not sufficiently considerate of the interests of victims.

20. Nuclear Liability: A challenge for Euratom? (1) While hesitating to make explicit declarations on this issue for some decades after signing the Treaty establishing the European Atomic Energy Community in 1957 (Euratom), the attitude of European institutions concerning the issue of nuclear liability to have changed dramatically after the 2004 and 2007 enlargements. Discussion over the existence of a ‘patchwork situation’ opened under the aegis of the European Commission in 2005, after contracting parties to the Vienna Convention joined the EU.

21. Nuclear Liability: A challenge for Euratom? (2) Further activity by the Community in the area of nuclear liability was announced by the former EU Commissioner. Some months later, in December, 2007, the European Commission selected a law firm to develop and distribute a questionnaire, exploring the views of stakeholders on the current nuclear liability regime within the European Union. The study was finally published on 1 December, 2009 and described as merely a legal report on ‘Accession of Euratom to the Paris Convention on Third Party Liability in the Field of Nuclear Energy’.

22. Nuclear Liability: A challenge for Euratom? (3) In March 2011, the European Commission established a Group of Experts on Nuclear Third party Liability to tackle the issues of the existing ‘patchwork situation’ and to advise the Commission how to deal with this situation. Consequently, the issue of harmonisation of nuclear liability rules is of major importance for the European Union, in particular after the Fukushima accident.

23. Nuclear Liability: Why a harmonisation? (1) Nevertheless and notwithstanding the existence of identical principles, the treaties fail to establish a comprehensive nuclear liability framework. They fall short of covering all liability issues arising from the peaceful use of nuclear energy. To a large extent, nuclear liability conventions build on the existing structures of national legislation between their contracting parties, or they grant power to the contracting parties to define such matters.

24. Nuclear Liability: Why a harmonisation? (2) Both the Paris and Vienna Conventions contain such a renvoi to national legislation to regulate amounts of liability and the establishment of additional state funds to cover operator liability. Consequently, when analysing national regulations covering the limitation of operator liability, we face a very real ‘labyrinth’ of quite different limits. These are, in several cases, combined with subsidiary state compensation.

25. Nuclear Liability: Harmonisation options (1) The European Commission’s activity in the field moved forward in December, 2007 when it commissioned solicitors to prepare a questionnaire, a so-called Impact Assessment Study, to then send it out to Member States, industries and other bodies within the Community. The questionnaire proposed to collate attitudes of the nuclear sector towards legal regulations in the field of nuclear third party liability within all 27 Member States. The following options were offered: preservation of the status quo, where 13 Member States would remain parties to the Paris Convention, 9 Member States remain parties to the 1963 Vienna Convention and 5 Member States would remain entirely outside the scope of existing convention regimes; accession of all Member States to the Amended Paris Convention; accession of all current ‘Vienna States’ to the Amended Paris Convention, 5 Member States remaining outside the scope of existing convention regimes, as before; accession of the European Atomic Energy Community to the Amended Paris Convention; a European Nuclear Liability Directive based on provisions of the Euratom Treaty.

26. Nuclear Liability: Harmonisation options (2) preservation of the status quo, where 13 Member States would remain parties to the Paris Convention, 9 Member States remain parties to the 1963 Vienna Convention and 5 Member States would remain entirely outside the scope of existing convention regimes;

27. Nuclear Liability: Harmonisation options (3) accession of all Member States to the Amended Paris Convention;

28. Nuclear Liability: Harmonisation options (4) Accession of all current ‘Vienna States’ to the Amended Paris Convention, 5 Member States remaining outside the scope of existing convention regimes, as before;

29. Nuclear Liability: Harmonisation options (5) accession of the European Atomic Energy Community to the Amended Paris Convention;

30. Nuclear Liability: Harmonisation options (6) a European Nuclear Liability Directive based on provisions of the Euratom Treaty. “take all measures necessary to facilitate the conclusion of insurance contracts covering nuclear risks. Within two years of the entry into force of this Treaty, the Council, acting by a qualified majority on a proposal from the Commission, which shall first request the opinion of the Economic and Social Committee, shall, after consulting the European Parliament, issue directives for the application of this Article.“

31. Thank you for your attention! In case of any questions, remarks, comments: jakub.handrlica@prf.cuni.cz