79 / 350
THE PROTOCOL OF 1997 TO AMEND THE VIENNA CONVENTION ON NUCLEAR LIABILITY…
Consequently, the “new” Member States are required to ratify the Protocol of
1997 with the following reservation:
“Judgments on matters covered by the 1997 Protocol, when given by the court
of the EU Member State, Contracting Party to the Protocol, shall be recognized
and enforced in other EU Member States which are Contracting Parties to the
Protocol, in accordance with the relevant rules of the European Union on the
subject.”
Thus, in contrast to the Amended Paris Convention, the European Union requires
precedence of application of the Brussels Regulation in relation to the Amended
Vienna Convention. The application of the provisions of the Brussels Regulation
allows the plaintiff to claim in his home country, basically in his own language, with
application of the law of his nation. However, this precedence should be applied
only to those Member States which are a Contracting Party to the Protocol of 1997.
Consequently, the precedence of the Brussels Regulation is not required in relation
to those Member States which are either a Contracting Party to the (Amended) Paris
Convention, or to those which are not Party to any of existing liability treaties at
all.
45
This means,
inter alia
, that the decisions of the courts of the “non-contracting”
Member States cannot be enforced in those Member States which will ratify the
Protocol of 1997.
46
Further, the precedence of the Brussels Regulation will also
obviously not be applied in relation to those Contracting Parties of the Amended
Vienna Convention, which are not Member States to the European Union. In
particular, this can be case of the Russian Federation and of Ukraine in the future.
5. Conclusions
What are the messages of this short overview of the existing “patchwork” in the
area of jurisdiction and enforcement of judgments in nuclear liability matters in the
European Union? Obviously, two contradictory principles regarding jurisdiction are
currently in force within the European Union. On one hand, the nuclear liability
conventions clearly follow the provisions of channelling the liability to the operator
and concentrate all proceedings in one court. On other hand, the Brussels Regulation
obviously enables the plaintiff to choose between submitting his claims to the court
in the country where the incident occurred and to the court in his home country.
45
See recital 5 of the proposed decision: „However, five of the Member States of the European Union,
namely Austria, Ireland, Luxembourg, Cyprus and Malta are not Parties to the Vienna Convention.
Given that the 1997 Protocol amends the Vienna Convention and that Council Regulation (EC)
No 44/2001 authorizes the Member States bound by that Convention to continue to apply the rules
on jurisdiction provided for in it, it is objectively justified that this decision should be addressed only
to those Member States that are Contracting Parties to the Vienna Convention and to allow, on an
exceptional basis, these five Member States not to become Parties to the 1997 Protocol.”
46
For details on this problem, see my contribution in the 2
nd
volume of the Czech Yearbook of Public
& Private International Law, “Channelling the Nuclear Third Party Liability towards the Operator
jeopardised by the Brussels Regulation”, Czech Yearbook of Public & Private International Law
,
Vol. II,
2011, pp. 69
et seq.