A European Legal Framework for Nuclear Liability

Transcription

1 Tobias Heldt A European Legal Framework for Nuclear Liability Rethinking Current Approaches

2 Ius Commune Europaeum Tobias Heldt A European Legal Framework for Nuclear Liability. Rethinking Current Approaches Intersentia Publishing Ltd. Sheraton House Castle Park Cambridge CB3 0AX United Kingdom Tel.: mail@intersentia.co.uk ISBN D/2015/7849/136 NUR Intersentia Cambridge Antwerp Portland Cover picture: Atucha Nuclear Power Plant (Argentina) Tobias Heldt, October British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library. No part of this book may be reproduced in any form, by print, photocopy, microfilm or any other means, without written permission from the publisher.

3 Tobias Heldt ACKNOWLEDGMENTS When I started this PhD project in October 2011, the day of the finalisation of this book seemed to lie in the very distant future and I felt that I would have plenty of time to delve into the topic of nuclear liability and its different aspects and challenges. Looking back, I must say that the 4 years scheduled for this project went by extremely fast. Reasons for this can certainly be found in the set-up of this project that enabled me to meet and work with very interesting people within Europe and even around the entire world. I will therefore use the following paragraphs to thank those who enabled this journey and set the foundations for this book. The research as presented in this book has been carried out at Maastricht University and the Belgian Nuclear Research Centre (SCK CEN) and was also partially sponsored by GDF Suez S.A. (now Engie S.A.). Conducting this research, I also had the opportunity to visit and speak at plenty of conferences and workshops. The exchange and insights received and experiences made at these occasions were very valuable not only for my research but also for my personal development. I am therefore grateful to the organisations just mentioned that they have given me the opportunity to take this journey during the last 4 years. I am also very thankful to the members of my reading committee, Gerrit van Maanen, Hubert Bocken, Tom Hartlief and Louis Visscher, for having taken the time to read my manuscript and provide additional food for thoughts on the topic of nuclear liability and the regulation of the nuclear sector in the European Union. Being a cooperation between Maastricht University and SCK CEN, this project gave me the unique opportunity to conduct research under the academic supervision of Michael Faure and the creative mentorship of Ludo Veuchelen. It is these two people to whom I want to express my biggest words of thanks. Michael s style of supervision allowed me to conduct my research very independently whilst he always provided guidance when it was needed. Meetings with him were always extremely constructive and there was not a single meeting that I did not leave with a clear focus and new energy and motivation to proceed. Michael, thank you for this and your patience and wit that have helped me to successfully complete this project! v

4 Preface As mentioned in the previous paragraph, the second person that deserves special attention and a separate word of thanks is Ludo Veuchelen. Being the father of this project it is indeed true that without him this project would not have existed. It is equally true, that without him this book would not look as it does now. With his experience and knowledge about the nuclear industry that he has gained during his professional career, he provided invaluable input during the time of my research and triggered me at numerous occasions to rethink approaches that I had chosen and to stay an out-of-the-box thinker. Next to this professional guidance, Ludo was also an important companion on a personal level. I always felt very welcome at his house in Binkom where we spent numerous evenings together enjoying a match of football, good music or the wonderful food of the wonderful Caroline. Ludo, I am sincerely grateful for your support and full acceptance and appreciation of me and my work! I also want to thank a number of other people from the faculty that have supported me on all kinds of levels during my doctoral research. First and foremost this is of course the METRO team. Yleen Simonis, Chantal Kuypers, Elke Hundhausen, Marjo Mullers and Marina Jodogne were always of great assistance and offered friendly support whenever I had a question or needed help. I also want to express my gratitude towards Diana Schabregs and Licette Poll who never got tired of explaining to me all kinds of financial arrangements surrounding the 4 years of my doctoral research. Lastly I also want to thank the non-academic supporters of this project for giving me the strength and balance needed over the last years to finish this project successfully. As much as I enjoyed the international set-up of this project and to meet and discuss with different people at conferences, it has always been the quality time spent with good friends and family that gave me the energy to finish this book. Tobias Heldt vi

5 CONTENTS Acknowledgments v List of Figures and Tables xiii Abbreviations xv General Introduction Background Research questions Structure and brief overview PART I. THE REGULATION OF ULTRA-HAZARDOUS ACTIVITIES Chapter 1. The Regulation of Ultra-hazardous Activities The Theoretical Framework Setting the scene Liability rules and regulation Mutually exclusive or complementary? Features of liability rules Negligence Strict liability Features of regulation Prescriptive regulation Self-regulation Hybrid forms of regulation The role of safety standards The legitimacy of standard-setting bodies Involving the public Towards a participatory democracy How much participation? Theoretical justifications Barriers to public participation Designing effective tools for public participation vii

6 Contents Transparency, public participation and access to justice in environmental law Theoretical considerations and available tools The Espoo Convention The Aarhus Convention The first two pillars Access to information and public participation The third pillar Access to justice in environmental matters Environmental Impact Assessments Transparency, public participation and access to justice in environmental law Some relevant case law Transparency, public participation and access to justice in the nuclear sector An Taisce and Hinkley Point C Decision of High Court London Role of Espoo Implementation Committee Decision Court of Appeal London Borssele Nuclear Power Plant Analysis Summary Chapter 2. The Regulation of Ultra-hazardous Activities Experiences from High Risk Sectors Risk Regulation in the EU The Chemical Sector The Seveso Directives The Seveso accident Seveso I Seveso II and III The REACH Regulation European Chemicals Agency Registration Evaluation Authorisation and restriction The oil sector International Conventions European regime Maritime safety Liability and compensation The nuclear sector Euratom Treaty Convention on Nuclear Safety Case 29/ viii

7 Contents The Nuclear Safety Directive(s) The 2009 Safety Directive The proposal for a revised Safety Directive The 2014 amendment Liability and compensation Comparative analysis Regulation at stake Compensation limits and financial coverage Public choice considerations PART II. THE REGULATION OF NUCLEAR ACCIDENTS THE EUROPEAN DIMENSION Chapter 3. The Current Situation within the European Union Overview of the International Conventions One Union, two main systems Joint Protocol Convention on Supplementary Compensation Resulting liability regimes Core principles of the international conventions Strict liability of the nuclear operator Legal channelling Amounts and limitation of liability Compulsory insurance and the principle of congruence The European dimension A comparative overview Austria Germany France United Kingdom Comparative summary of the status of the core principles of the international conventions in the national regimes Types of damage covered Limitations of liability and amounts Channelling General principles of EU environmental law and nuclear liability The Precautionary Principle The Precautionary Principle stricto sensu A precautionary approach The Precautionary Principle and its role on decision-making The Polluter Pays Principle The Polluter Pays Principle and Euratom Application and consequences of the Polluter Pays Principle The need for a new system ix

8 Contents Chapter 4. Re-examining the Competences of the European Union Euratom Treaty versus TFEU Lex specialis derogat lex generalis Environmental protection Environmental law and nuclear law Allies or enemies? Environmental protection under the Euratom Treaty The role of the European Parliament A legal basis for a European nuclear liability regime Criteria for an appropriate legal basis The principles of conferral of competences and subsidiarity Euratom Article 98 A dormant source of legislative power? Article TFEU Article 194 on Energy Article 192 on the Environment Article 114 on the Internal Market The Titanium Dioxide case law A dual legal basis A European nuclear liability regime Aligning nuclear energy and environmental protection Personal injury versus environmental damage Advantages of a more comprehensive regime Chapter 5. Harmonisation at the European Level A Desirable Option? The economics of Federalism The call for harmonisation Race to the bottom Economies of scale Transboundary externalities Public choice considerations Alternatives to harmonisation Extra-territorial application of national law The role of mutual recognition Analysis Nuclear Safety Regulation Nuclear liability Conclusion Path dependence x

9 Contents PART III. THE WAY FORWARD Chapter 6. Nuclear Liability in the European Union Rethinking Current Principles The need for a European system Strict liability and beyond Ensuring deterrence Strict liability versus negligence Criminal law Legal channelling Necessity or obstruction? Reasons and justifications for legal channelling Disadvantages of legal channelling and alternatives Liability amounts Current nuclear liability amounts Limitation of liability Unlimited liability Different ways of financing Insurance and re-insurance markets Public funding Operator pooling European wide pooling Preliminary observations Coverage and available amounts Mutual monitoring and risk diversification Concluding remarks Competition law Applicability of European competition rules to the nuclear sector State aid Nuclear pools and article 101 TFEU Proposal for a European regime Chapter 7. The Future of the Nuclear Sector in the European Union Challenges on the way towards a European liability system for nuclear accidents A European initiative in the area of nuclear liability Chances and challenges in the light of existing international obligations Degree of harmonisation at the international level The relation between international law and European law Compatibility of the proposal with the international nuclear liability conventions Strict liability of the operator Liability limits The role of legal channelling xi

10 Contents Summary A European nuclear liability system and existing obligations towards non-member States of the European Union From proposal to implementation Improving multi-level governance Member States European institutions Civil society Legitimacy concerns Inclusiveness of regulation The role of Corporate Social Responsibility (CSR) CSR and public choice CSR and corporate interests Getting the nuclear industry on board The Porter Hypothesis Foundations of the Porter Hypothesis Reception of the Porter Hypothesis Three versions of the Porter Hypothesis Relevance of the Porter Hypothesis in the nuclear sector Nuclear safety Nuclear liability An independent European Nuclear Agency Potential and limits of European agencies A European Nuclear Agency and multi-level governance Conclusion Policy Documents, Guidelines, Reports Legislation Bibliography Valorisation Addendum Curriculum Vitae xii

11 LIST OF FIGURES AND TABLES Figure 1: Overview Nuclear Energy Countries in the EU Table 1: Overview NPPs in the EU Table 2: Overview of the different regimes in the European Union Table 3: Schematic overview of the different liability limits xiii

12 ABBREVIATIONS ABGB ALARP CDCIR CJEU CLC CSC CSR ECH EIA ENSREG EPZ EU HPC IAEA IBER ICJ IPPC MAPP MARPOL MARS NEA NGO NPP OECD ONR OPA SDR SOLAS SOS TEU TFEU UK US Allgemeines Bürgerliches Gesetzbuch As Low As Reasonably Practicable Community Documentation Centre on Industrial Risks Court of Justice of the European Union Convention on Civil Liability for Oil Pollution Damage Convention on Supplementary Compensation Corporate Social Responsibility European Chemicals Agency Environmental Impact Assessment European Nuclear Safety Regulators Group Elektriciteits Produktiemaatschappij Zuid-Nederland European Union Hinkley Point C International Atomic Energy Agency Insurance Block Exemption Regulation International Court of Justice Integrated Pollution Prevention and Control Major Accident Prevention Policy International Convention for the Prevention of Pollution From Ships Major Accident Reporting System Nuclear Energy Agency Non-Governmental Organisation Nuclear Power Plant Organisation for Economic Co-operation and Development Office for Nuclear Regulation Oil Pollution Act Special Drawing Rights International Convention for the Safety of Life at Sea Sudden Oil Spills Treaty on European Union Treaty on the Functioning of the European Union United Kingdom United States xv

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