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of 1997.
42
Of course, we have to bear in mind that a ratification of the Protocol of
1997 will constitute a major change in the nuclear liability framework of most of
the “new” Member States. In particular, such a step will mean
inter alia
the need to
increase the liability limits of the operator and to enlarge the scope of compensated
damages. The proposed decision merely constitutes an approval to accede or to
ratify to the Protocol of 1997 for the “new” Member States,
43
without setting them
a concrete time schedule for doing so. Consequently, it will be upon those states
to decide on the time framework of the accession, or ratification of the Protocol
according to the rules laid down in this international treaty. By this, the European
Commission also gave up the possibility to control the ratification process and to
initiate infringement proceedings against those states who failed to comply with an
exact time framework. So, on one hand, the “new” Member States were granted
freedom to proceed in ratification; on the other hand, the wording of the proposed
decision will lead
de facto
to another gap among the existing nuclear liability regimes
in the European Union. While the Union will have competencies to intervene into
the ratification proceedings of the Protocol of 2004, it will have no similar powers in
relation to the Protocol of 1997.
Further, the proposed decision does also not contain any requirement for
a
simultaneous
deposit of ratification instruments.
44
This is the second difference of the
proposed decision, if compared with the existing authorisation decision. It is a matter
of fact that a requirement for a simultaneous deposit of ratification instruments would
have no reason in relation to the Protocol of 1997, as in contrast to the Amended Paris
Convention, the Amended Vienna Convention already did enter into force.
Last, but not least, in contrast to the existing authorisation decisions, the
proposed decision states in its recital 9, that:
“The rules on recognition and enforcement of judgments laid down in Article XII
of the Vienna Convention, as amended by Article 14 of the 1997 Protocol, should
not take precedence either over the relevant rules established in Regulation (EC)
No 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, or in the Lugano
Convention on jurisdiction and the Recognition and Enforcement of Judgments
in Civil and Commercial Matters of 30 October 2007. Therefore, when ratifying
or acceding to the 1997 Protocol, the Member States must make the declaration
with the aim of ensuring continued application of the relevant EU rules.”
42
In its very early proposal, the European Commission required ratification of the Protocol of 1997 by
the end of 2016, which caused a strict refusal from the representatives of the “new” Member States.
43
This authorisation is issued ex post also for Poland. See details in note 40.
44
In its very early proposal, the European Commission also required a simultaneous deposit of ratification
instruments. This requirement too caused a strict refusal from the representatives of the “new” Member
States.