74 / 350
JAKUB HANDRLICA
CYIL 4 ȍ2013Ȏ
Accordingly, Austria, Ireland and Luxembourg will continue to base themselves
on the Community rules contained in Regulation (EC) No 44/2001 and to
apply them in the area covered by the Paris Convention and by the Protocol
amending that Convention”.
Considering this part of the decision, it is difficult to argue that after the 2004
Protocol’s entry into force, the Brussels Regulation would be directly applicable to all
nuclear liability issues, including those previously governed by the Paris Convention.
Article 1(1) of the Decision expressly provides that ratification or accession to
the 2004 Protocol shall be
“without prejudice to the position of Austria, Ireland and
Luxembourg”
.
29
Such a declaration is in strict contrast to decisions in relation to other international
conventions and which contained a reservation stating that Member States will
continue to apply the Brussels Regulation to the recognition and enforcement of
judgments amongst themselves.
30
On the contrary, the wording of the Decision of 8 March 2004 contains
no
such
reservation. Consequently, one can argue that the rules on exclusive jurisdiction as
laid down in the Amended Paris Convention must to be applied as a
“lex specialis”
in
relation to the provisions of the Brussels Regulation after the Protocol of 2004 will
come into force.
31
3.2.2 Binding time framework for the ratification of the protocol of 2004
Further, the above mentioned decisions
do contain a specific time framework
for ratifying of the Protocol of 2004.
The Member States were required to do so
in a period of two years. More clearly, this is confirmed by the Decision of 8 March
2004. Article 2 of this decision provides:
“Member States which are Contracting Parties to the Paris Convention shall
take the necessary steps to deposit simultaneously their instruments of ratification
of the Protocol, or accession to it, with the Secretary-General of the Organisation
for Economic Cooperation and Development within a reasonable time and, if
possible, before 31 December 2006.”
“Member States which are Contracting Parties to the Paris Convention
shall exchange information with the Commission within the Council before
29
These Member States are neither Contracting Parties to the Paris Convention, nor Signatories to the
Amended Paris Convention.
30
See e.g. Council Decision authorising Member States, in the interest of the Community, to sign, ratify
or accede to the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001
(the Bunkers Convention) (2002/762/EC). Article 2 of the Decision reads:
“When signing, ratifying or
acceding to the Bunkers Convention, Member States shall make the following declaration: ‘Judgments on
matters covered by the Convention shall, when given by a court of (...), be recognized and enforced in (...)
according to the relevant internal Community rules on the subject’.
”
31
Magnus, U.: Jurisdiction and enforcement of judgements under the current nuclear liability regimes
within the EU member states, in Pelzer, N. (ed.):
Europäisches Atomhaftungsrecht im Umbruch
, Nomos
Verlag, Baden Baden, 2010, at p. 118.