73 / 350
THE PROTOCOL OF 1997 TO AMEND THE VIENNA CONVENTION ON NUCLEAR LIABILITY…
do contain requirement of simultaneous deposit of the ratification instruments by all
Member States.
3.2.1 Relation between the Amended Paris Convention
and the Brussels Regulation
The main implication of the existing decision making with regard to the ratification
of the Protocol of 2004 concerns the
relation between the Amended Paris Convention
and the Brussels Regulation.
Basically, Article 71 (1) of the Brussels Regulation contains
an exclusion clause which grants priority to the special conventions.
25
Pursuant to this
provision, the Brussels Regulation
“shall not affect any conventions to which the member states are parties and
which in relation to particular matters, govern jurisdiction or recognition or
enforcement of judgments”.
The purpose of the exception is to ensure compliance with the rules of jurisdiction
laid down in such specialised conventions, “
since when those rules were enacted, account
was taken of the specific features of the matters to which they relate”
.
26
Since the very
earliest beginnings of the efforts to harmonise the rules on international jurisdiction
and enforcement on the European level, the international nuclear liability treaties
have been considered as legal instruments of a special nature, having priority
anchoring the principle of jurisdictional unity, are such types of conventions.
27
However, Article 71 of the Brussels Regulation
does not contain
any guarantee to
any further international convention.
28
It is arguable that the revision of a convention
justifies its classification as a “
new
” convention, not falling under Article 71 of the
Regulation. More clearly, this is confirmed by the Decision of 8 March 2004. Point 8
of this Decision provides:
“Three of the Member States, namely Austria, Ireland and Luxembourg, are
not Parties to the Paris Convention. Given that the Protocol amends the Paris
Convention, that Regulation (EC) No 44/2001 authorises Member States bound
by that Convention to continue to apply the rules on jurisdiction provided for in
it and that the Protocol does not substantially amend the rules on jurisdiction
of the Convention, it is objectively justified that this Decision should be
addressed only to those Member States that are Parties to the Paris Convention.
25
For further details see Sands, P., Gallizzi, P
.
The 1968 Brussels Convention and liability for nuclear
damage,
Nuclear Law Bulletin,
No. 64, 1999, pp. 18
et seq
. Here, the authors deal with the mutual
relationship between the Brussels Convention of 1968, which used to be predecessor of the current
Brussels Regulation and the Paris Convention.
26
See ECJ [1994] ECR I – 5439 (C-406/92
Tatry v. Maciej Rataj
) ECR [1994], at paragraph 46.
27
For further details see Vanden Borre, T., Bonotto, O
.
Problèmes de compétence judiciaire dans les
procédures de droit pénal relatives aux accidents nucléaires. Les principes du droit pénal et l’article 13
de la Convention de Paris,
in AIDN/INLA (ed.) Nuclear Inter Jura
1997, Société de Législation
Comparée, Paris, 1998, pp. 467
et seq
.
28
See Kennett, W. The Brussels I Regulation,
International and Comparative Law Quarterly
, Vol. 50,
2001, at p. 736
.