Propects towards a Nuclear Liability Directive

Transcription

1 Propects towards a Nuclear Liability Directive 30 November 2012 Ius Commune, Amsterdam 1 Overview i. Introduction ii. International nuclear liability conventions iii. EU Member States vs these conventions iv. Possible legal basis in Euratom v. Developments since 2009 vi. Conclusions 1

2 EU rules on nuclear energy Euratom Treaty Also lots of secondary legislation Non-proliferation Nuclear safety: radiation protection, safety of nuclear installations, high activity sources, Radioactive waste: management of spent fuel, supervision and control of radioactive waste, But NOT on nuclear liability WHY? + NEED TO CHANGE THIS OR NOT? Nuclear liability rules in international conventions Nuclear Energy Agency (NEA): Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960 Brussels Supplementary Convention to the Paris Convention on Third Party Liability in the Field of Nuclear Energy of 31 January 1963 Funds from Installation State or at least international mechanism International Atomic Energy Agency (IAEA): Vienna Convention on Civil Liability for Nuclear Damage of 21 May

3 Conventions have same principles strict liability of nuclear operator all liability is channelled to nuclear operator liability is limited compulsory insurance coverage up to liability limit ( congruence principle ) only one court per country is competent Chernobyl initiated revision September 21 st, 1988: Joint Protocol September 12 th, 1997: Protocol of Vienna Convention Convention on Supplementary Compensation for Nuclear Damage Protocol to Paris and Brussels Supplementary Convention signed on February,12 th,

4 Revision of NEA-regime Protocol to Paris Convention: liability of nuclear operator: 700 million possibility to have unlimited liability Broader definition of nuclear damage economic loss and loss of income costs of preventive measures costs of reinstatement of impaired environment Protocol to Brussels Supplementary Convention: second tier: 500 million third tier: 300 million total: million available once this will be in force Complex situation 1st generation 2nd generation NEA Paris Conv 1960 Protocol Paris Conv 2004 Brussels Supplementary Conv 1963 Protocol Brussels Supplementary Conv 2004 IAEA Vienna Conv 1963 Protocol Vienna Conv Joint Protocol Conv on Supplementary Compensation

5 EU MS vs conventions Large majority of EU MS is part of one of the conventions Result: Harmonisation of major principles of nuclear liability in various MS But, is there real harmonisation? Several regimes in EU Vienna Convention 1963 Paris Convention 1960 Not member of any 5

6 Even more complicated Not Party Paris 1960 Paris&Br Vienna 1963 Vienna rev Austria, Cyprus, Ireland, Luxemburg, Malta Greece, Portugal Belgium, Denmark, Finland, France, Germany, Italy, Netherlands, Slovenia, Spain, Sweden, UK Bulgaria, Czech Republic, Estonia, Hungary, Lithuania, Poland, Slovakia Latvia, Romania Moreover, important differences MS Liability insur. State funds Intern. funds Austria Unlimited million - - Belgium 1,2 billion million Bulgaria 49 million - - Denmark 165 million 125 million 136 million Estonia Unlimited - - France 91 million 99 million 136 million Germany Unlimited 2,5 billion million Italy 5 million 185 million 136 million Netherlands 340 million 1,93 billion 136 million Spain 700 million million UK 157 million 34 million 136 million 6

7 Result Despite harmonisation of principles of international conventions Position of victim of a nuclear accident quite different from one EU MS to another EU One of most nuclearised regions in the world At forefront in trying to address climate change But so far, not with regard to nuclear liability Overview i. Introduction ii. International nuclear liability conventions iii. EU Member States vs these conventions iv. Possible legal basis in Euratom v. Developments since

8 Article 98 Euratom Member States shall take all measures necessary to facilitate the conclusion of insurance contracts covering nuclear risks. Within two years of the entry into force of this Treaty, the Council, acting by qualified majority on a proposal from the Commission ( ) shall after consulting the European Parliament, issue directives for the application of this Article Why never used? In 50-ies: no liability if no insurance and vice versa MoU 29 May 1958 between Euratom and US covered TPL shortly thereafter: US presented studies that had important impact on nuclear liability principles parallel: negotiations international nuclear liability conventions + setting up nuclear insurance scheme Some proposals to harmonise e.g

9 Recent developments 2009: Study on accession of Euratom to Paris Convention June 2010: Workshop on the prospects of a civil nuclear liability regime in the framework of the EU A strategy for competitive, sustainable and secure energy, 10 November 2010 Priority No 3, Action No 2: "The legal framework for nuclear safety and security will be further enhanced through ( ) a proposal for a European approach on nuclear liability regimes. Creation of expert group March 2011 EC seems to be willing to improve the legal situation of potential victims of a nuclear accident within the Community, taking into account the global regime Aim: recommendations to EC in view of a legal proposal under Article 98 Euratom Treaty on (1) practical aspects of insurance (e.g. claims handling), (2) amounts of insurance cover and (3) other possible areas 9

10 Communication on results of stress tests, 4 October 2012 Compensation of victims in case of nuclear is not covered at all by the current EU legislative framework EC will analyse to what extent the situation of potential victims of a nuclear accident in Europe should be improved, within the limits of EU competence. The Commission intends to propose binding legislation in the area of nuclear insurance and liability Which are real issues? Channelling of liability to nuclear operator Limitation of liability Public funding 10

11 Legal channelling of liability Article 6 PC: The right to compensation for damage caused by a nuclear incident may only be exercised against an operator ( ) No other person shall be liable for damage caused by a nuclear incident The operator shall incur no liability outside this Convention for damage caused by a nuclear incident two consequences: operator can only be held liable according to the provisions of Paris Convention operator is ONLY person liable: no actions against any other person legal channelling = exclusive liability Official reasons for channelling In Exposé des Motifs of PC avoiding difficult and lengthy questions of complicated legal cross-actions to establish who is legally liable obviates necessity for all those who might be associated with the construction of operation of a nuclear installation to take insurance cover thus allows concentration of insurance capacity available therefore only limited right of recourse in order to avoid costly duplication of insurance with no benefit to victims 11

12 Real reason 50-s: US nuclear industry had monopoly on know-how and equipment studied European liability law which resulted in Harvard report (1959): arguments unfair to hold suppliers liable since, after delivery of goods, they lose control thereover unreasonable to hold supplier of a small part liable for the entire damage of a nuclear accident avoid pyramiding insurance costs action against atomic suppliers should be made impossible legal channelling dealt with in chapter on liability of suppliers Legal channelling is misleading legal channelling was introduced for protecting the interests of the US nuclear suppliers legal channelling remains controversial still today Cfr. problems in Doel 3 and Tihange 2 RDM, Krupp 12

13 Limitation of liability Estimates damage Fukushima: 130 billion Based on revised NEA-conventions: 1,5 billion would be available So roughly 1% of damage covered Why only for nuclear energy? Why not other industries? Conclusion: Subsidy to nuclear industry No full internalisation of costs Public funding Is it normal that State takes part in compensating damage of nuclear accident? Also here: Subsidy Why nuclear energy? 13

14 It comes down to one question Nuclear liability provisions in various MS reflect a balance and values from sixties Limited liability, State intervention, channelling, Hardly any evolution BE liability to 1,2 billion, but still Can that balance still be defended today? In times of modern energy policy, nuclear liability provisions seem to be an anachronism Framework: existing conventions Conventions leave much freedom Euratom-proposal could narrow down options and hence contribute to harmonisation and to better position for victims unlimited liability set minimum amount of insurance shifting part of Installation State to nuclear operator Step forward if set at federal level like in US 14

15 Claims handling issues Claims registration Claims handling Other issues Assessment of insurers technical abilities for claims management Claims settlement Steps to take All MS to join PC? Euratom becomes party to Conventions? Euratom sets minimum standards Conclusions Majority of EU MS are part of international nuclear liability conventions Still: quite some differences Different regimes Important difference in available amounts Some principles themselves are problematic EC seems determined to come-up with proposal Balance to respect existing conventions What will be outcome of expert group and what will be content of EC proposal? 15