CYIL Vol. 4, 2013

THE PROTOCOL OF 1997 TO AMEND THE VIENNA CONVENTION ON NUCLEAR LIABILITY… Community nor the European Union has the right to interfere with the obligations arising from this international treaty. Creating a liability framework, which would be in contradiction with the legal framework of the Vienna Convention (e.g. abandoning of the legal channelling), would not be possible under these circumstances. However, this “grandfather clause” does not apply to the Protocol of 1997, 39 as it does not apply also to the Protocol of 2004 . Ratification of both these new international treaties needs to be authorised by the European Union, which may consequently impose specific requirements towards these conventions. It is a matter of fact that there are several “new” Member States which signed the Protocol of 1997 before their accession to the Union but have not yet ratified it (e.g. the Czech Republic, Hungary and Poland). 40 As the ratification of this Protocol would clearly interfere with the existing exclusive competence of the European Union in the area of jurisdiction and enforcement, these Signatories of the Protocol of 1997 would be basically entitled to ratify this convention only after authorisation by competent Union’s authorities. 4.2 Authorisation needed vis-à-vis “Vienna” Member States In September 2012 the European Commission presented its “Proposal for a Council Decision, authorising the Member States which are Contracting Parties to the Vienna Convention on Civil Liability for Nuclear Damage of 21 May 1963 (“Vienna Convention”) to ratify the Protocol amending that Convention in the interest of the European Union, or to accede to it.“ 41 By drafting this proposal, the European Commission de facto approved the co-existence of two parallel existing nuclear liability regimes in Europe. Consequently, it can be assumed that also the forthcoming development of nuclear liability law in the European Union will be linked to the liability regimes created under the (Amended) Paris Convention and the (Amended) Vienna Convention. In strict contrast to the authorisation decisions issued in relation to the ratification of the Protocol of 2004, the final version of the proposed decision does not contain any reference to a binding time framework for the accession or ratification of the Protocol 40 Poland was one of the signatories of the Protocol of 1997 and it ratified this international instrument on 21 September 2010. Consequently, the Protocol will enter into force in this state on 21 December 2010. However, Poland took this step without having any authorization to do so from the European Union. This step has some important consequences for both Poland and the European Union. From the point of view of public international law, the Poland’s accession to the Protocol of 1997 must be considered as valid, and, consequently, the provisions of the Protocol became binding and applicable in the country. However, Poland obviously infringed against the law of the European Union, which can lead to an infringement procedure with all the consequences arising from the primary law of the European Union. However, it would be basically possible to approve the ratification ex post in an authorization procedure. 41 COM (2012) 550 final. On 26 th September 2012, this proposal has been forwarded to the Council and to the Parliament. 39 With the exception of Latvia and Romania, which entered into the European Union as contracting parties to the Protocol of 1997.