37 Liability in the field of nuclear
energy
| (24776)
11609/03
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| Draft Council Decision authorising the Member States to sign the Protocol to the Paris Convention of 29 July 1960 on third party liability in the field of nuclear energy and for a Council Decision authorising the Member States to ratify that Protocol.
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| Legal base | Article 61(c), Article 67(5) and the first sub-paragraph of Article 300(2) EC; co-decision; QMV
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| Document originated | 9 July 2003
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| Deposited in Parliament | 28 July 2003
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| Department | Trade and Industry
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| Basis of consideration | EM of 15 August 2003
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
37.1 The Paris Convention of 29 July 1960 on third-party liability
in the field of nuclear energy, concluded under the auspices of
the OECD, establishes a legal framework for the provision of compensation
for victims in the event of a civil nuclear accident. The United
Kingdom, Belgium, Denmark, Finland, France, Germany, Greece, Italy,
the Netherlands, Norway, Portugal, Slovenia, Spain, Sweden and
Turkey are parties to the Convention.
37.2 The legal framework established by the Paris
Convention differs from the rules which would apply under the
laws of Member States in relation to non-contractual liability
in a number of important respects. First, the liability of the
operator of a nuclear installation is strict, so that it is not
necessary to show fault for liability to ensue. Secondly, the
liability of the nuclear operator is exclusive and must be covered
by insurance or some other financial guarantee. Finally, the Convention
provides for the exclusive jurisdiction of the courts for the
place where the nuclear incident occurred.
37.3 Negotiations were commenced in 1998 to increase
the liability amounts and to widen the definition of nuclear damage
and the geographical scope of the Convention with a view to providing
higher compensation levels to a greater number of victims. These
negotiations led to the conclusion of a Protocol in May 2002.
The proposed Council Decisions
37.4 The document proposes a Council Decision to
authorise Member States to sign the Protocol to the Paris Convention
and a Decision to authorise ratification of that Protocol. The
need for such authorisation arises from the adoption by the Council
of Council Regulation (EC) No. 44/2001 of 22 December 2000[79]
on jurisdiction and the recognition and enforcement of judgments
in civil and commercial matters. This Regulation (which is binding
in all Member States except Denmark) provides a general code of
rules for allocating civil jurisdiction. In relation to actions
for tort, delict or quasi-delict the Regulation provides that
a person domiciled in a Member State may be sued in the courts
for the place of his domicile, or in the place where the harmful
event occurred. This has been interpreted to mean both the place
of the act giving rise to the harmful event or the place where
the damage occurred.[80]
In matters relating to insurance, an insurer domiciled in a Member
State may be sued in the courts of his domicile or in those of
the claimant's domicile and, in respect of liability insurance,
in the courts for the place where the harmful event occurred.
37.5 By contrast, the Paris Convention and its amending
Protocol provide for a more limited range of courts to have jurisdiction
over claims arising from a nuclear accident. The jurisdiction
of the courts for the place where the nuclear incident occurred
is exclusive under the Paris Convention. If the accident occurs
outside the territory of the Contracting Parties, or if the place
of the accident cannot be determined with certainty, the courts
having jurisdiction are those for the place where the nuclear
installation is situated.
37.6 By reason of the doctrine of exclusive external
competence,[81] the adoption
of Council Regulation (EC) No 44/2001 has the consequence that
the Member States are no longer free to derogate from the rules
contained in that Regulation or to conclude obligations with third
states which affect those rules. To resolve this conflict, the
Council instructed the Commission to negotiate, on behalf of the
Community, the provisions of the Protocol which affected the operation
of the Regulation. The Commission subsequently informed the depositary
of the Paris Convention that the Community would accept the proposed
amendments contained in the Protocol. As the Paris Convention
contains no provision allowing the participation of regional organisations,
the Community will not accede to the Convention, but must exercise
its powers through those Member States which are parties. (Of
the Member States, Austria, Ireland and Luxembourg are not party
to the Paris Convention.)
37.7 The draft Council Decisions set out the formal
authorisation for the Member States which are currently parties
to the Paris Convention to sign and to ratify the Protocol amending
that Convention.
The Government's view
37.8 In her Explanatory Memorandum of 15 August 2003
the Minister of State for Industry and the Regions and Deputy
Minister for Women and Equality (Jacqui Smith) welcomes the proposed
draft Council Decisions and explains that the revised Paris Convention
will significantly improve the arrangements for the compensation
of victims in the event of a civil nuclear accident.
37.9 The Minister also explains the relationship
between the rules of jurisdiction contained in Council Regulation
(EC) No. 44/2001 and those of the Paris Convention, and the consequent
need for a Council Decision authorising Member States to become
parties to the amending Protocol to the Paris Convention.
Conclusion
37.10 We thank the Minister for her helpful and
clear Explanatory Memorandum. We agree with the Minister in welcoming
these draft Council Decisions, which will enable the Member States
to sign and ratify the Protocol to the Paris Convention.
37.11 We have no further questions to put to the
Minister on these proposals, but we draw attention to the extremely
wide effect the adoption of Regulation (EC) No. 44/2001, with
the consequent conferring of exclusive external competence on
the Community, is having on the freedom of Member States to
negotiate international agreements on jurisdiction in specialised
areas.
37.12 We clear the document.
79 OJ L No 12, 16.1.2001, p.1. Back
80
See Bier v. Mines de Potasse d'Alsace [1976] ECR 1735,
a case decided by the ECJ on the similarly worded provisions of
Article 5(3) of the Brussels Convention which was converted into
an EC Regulation by Regulation (EC) No 44/2001. Back
81
Derived from the judgment of the ECJ in AETR [1971] ECR
263. Back
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