The history of the directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage goes back some 15 years. After a long period of discussion generated by the Green Paper on Remedying Environmental Damage (COM (93) 47 final, Brussels, 14 May 1993), the White Paper on Environmental Liability (European Commission, COM (2000) 66 final, Brussels, 9 February 2000) appeared in 2000; this was followed by the Legislative Proposal for a Directive (COM (2002) 17 final, Brussels, 23 January 2002), and, finally - after an astonishingly short period, which might give rise to many points of debate in the future-, the directive entered into force by its publication in the Official Journal of the EU on 30 April 2004. This publication was preceded by studies of the directive's wording throughout the EU. From a Hungarian aspect, the all occurred at the dawning of Hungary's joining the EU (on 1 May 2004). Three years are now left for the member states to implement this directive, and possible modification of the text is foreseen by competent publicists in light of the French, Austrian, German, etc. opinions concerning the directive. The Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (Lugano, 21 June 1993) should also be mentioned here, though it has never entered into force.
At the time I am putting down these lines, the text of the directive is still not to be found in the languages of the new-coming countries on the eur-lex homepage.
The Dutch version differs to a certain extent from the other translations in Section 31 of the Preamble. It says: ...te beoordelen of deze richtlijn binnen zeven jaar moet worden herzien... - The Dutch version provides that in seven years the directive must be revised. In the English version: ...whether any review of this Directive is appropriate... In German: ...ob eine Überarbeitung dieser Richtlinie erforderlich ist... In French: ...examiner...l'opportunité d'une révision éventuelle de la présente directive. The Dutch version includes in Section 31 of the Preamble what is to be found in Article 14: The Commission, before 30 April 2010 shall present a report on the effectiveness of the Directive in terms of actual remediation of environmental damages, on the availability at reasonable costs and on conditions of insurance and other types of financial security for the activities covered by Annex III. The report shall also consider in relation to a ceiling for the financial guarantee and the exclusion of low-risk activities. In the light of that report, and of an extended impact-assessment, including a cost-affected analysis, the Commission shall, if appropriate, submit proposals for a system of harmonised mandatory financial security.
All this recalls the thoughts of Cesare Beccaria in Dei delitti e delle pene (On crimes and their punishment): ...e lo sarà grandissimo, se le leggi sieno scritte in una lingua straniera al popolo, che lo ponga nella dipendenza di alcuni pochi, non potendo giudicare da se stesso qual sarebbe l'esito della sua libertà, o de' suoi membri... (BECCARIA, V. Oscurità delle leggi, p. 21.) Its approximate meaning in English: .if law is written in a language that people cannot understand, that makes them dependent on the few, not being able to judge why the people or one of its members is marked out by fate.
I do not intend to enter into details as concerns ambiguities in the official translation, I would rather consider the most important points of the directive.
The basic principle of the directive is the principle of the polluter-pays (das Verursacherprinzip; het beginsel dat de vervuiler betaalt; el principio de quien contamina paga; principio chi inquina paga; etc.); state liability, which appeared in the preparatory versions of the legal material, has been substantially reduced. The right is retained, i. e. the mere possibility for the state to take the necessary preventive measures in the event of an imminent threat to the environment, and also to cover damage. In consequence of the motions put forward by Austria and Great Britain - the
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subsidiary state liability for environmental damage caused by an operator, previously included in the white paper and in the proposal is now absent: Article 16 1. This Directive shall not prevent Member States from maintaining or adopting more stringent provisions in relation to the prevention and remedying of environmental damage, including the identifiaction of additional activities to be subject to the prevention and remediation requirements of this Directive and the identification of additional responsible parties.
2. This Directive shall not prevent Member States from adopting appropriate measures, such as the prohibition of double recovery of costs, in relation to situations where double recovery could occur as a result of concurrent action by a competent authority under this Directive and by a person whose property is affected by environmental damage. In the editorial of the Austrian journal Recht der Umwelt (Environmental Law, Vienna, Edition MANZ, No.
3, 2004, p. 1), Ferdinand Kerschner and Bernhard Raschauer point out: Zwar bleibt - leider - trotz österreichischer Bemühungen die Atomhaftung draußen. Id est: unfortunately, despite the Austrian will, atomic energy liability does not fall within the confines of the directive. In connection with this topic, the reader may find an enumeration of international conventions in Annex 5. E.g.: the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage. The authors also promise to discuss this directive again and again in the following numbers of their journal.
In Liability and Environment: Private and Public Law Aspects of Civil Liability for Environmental Harm in an International Context by Lucas Bergkamp, published in 2001, the author discusses the reluctance to ascribe civil liability to states and regulators, as compared with private operators. As part of this general theme, calls may be seen for a reduction in state immunity or other procedural safeguards that favour the state, and an extension of Frankovich type liability (Frankovich v. Italy, Cases C-6/90 and C-9/90) to increase the liability of state organs.
Shortly after their publication, numerous books, studies, etc. become outdated by virtue of the catalytic movements in European environmental law. This rapidly-changing character of European environment protection may well leave white spots in the relevant legislation. It would perhaps be better to devote slightly more time to reflection of legal material before its adoption, thereby avoiding the necessity for correction in the relatively close future.
F. Kerschner and B. Raschauer underline: unterschiedlicher nationaler Gebrauch der Freistellungsmöglichkeit wird auch nicht zu gleichen Wettbewerbsbedingungen führen (ibidem). I.e.: the variety of the possible overtaking of payment of torts and damages by the state results in various circumstances in the economic competition at a state level. These two experts optimistically expect a reduction in environmental damage caused by the firms; this is based on the mere possibility (not a duty) that the state will assume responsibility (ein freiwilliges System). The operator shall bear the costs for the preventive or remedial actions taken pursuant to directive 2004/35/EC. The competent authority shall recover, inter alia, via security over property or other appropriate guarantees from the operator who has caused the damage, or the imminent threat of damage, the costs it has incurred in relation to the preventive or remedial actions taken under this directive. However, the competent authority may decide not to recover the full costs where the expenditure required to do so would be greater than the recoverable sum or where the operator cannot be identified.
The required environmental security system has still not been set up in Hungary, as in other member states of the European Union. However, the statute (the text of the relative governmental decree) is in the preparatory phase according to Article 14 of the Directive pronouncing that Member States shall take measures to encourage the development of financial security instruments and markets by the appropriate economic and financial operators, including enabling opetators to use financial guarantees to cover their responsibilities.
An operator shall not be required to bear the costs of preventive or remedial actions when he can prove that the environmental damage, or the imminent threat of such a damage was caused by a third party, and occurred despite the fact that appropriate safety measures were in place, or resulted from compliance with a compulsory order or instruction emanating from a public authority other than an order or instruction consequent upon an emission or incident caused by the operator's own activities.
Martina Kisslinger (Johannes Kepler Universität, Linz) calls it eine genehmigte Emission (unabwendbares Ereignis) oder dem Stand der Technik entsprechende Emission (erlaubte Tätigkeit). I.e.: a permitted or authorized emission or an emission that is up to the current level of technology (Recht der Umwelt, Vienna, Edition MANZ, 2004, No. 3, p. 98). Sections 1293 and the following of the ABGB (Allgemeines Bürgerliches Gesetzbuch, id est the Austrian Civil Code) categorize environmental damage to the harm of a person on the level of normal delictual liability. Many Austrian civilists consider that this is not enough and are in favour of an extension towards an objective kind of liability. An elevated level of liability is included in laws on Water Economy, Atomic Energy, etc. Die erlaubte Tätitgkeit, i. e. permitted faultiness is a
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basic notion. Die unabwendbare Ereignisse (inevitable events) exclude the author's liability for harm arising this way, except in the case of atomic harm.
(Article 4) The directive shall not cover environmental damage or an imminent threat of such damage caused by an act of armed conflict, hostilities, civil war or insurrection; by a natural phenomenon of exceptional, inevitable and irresistible character. This directive shall not apply to environmental damage or to any imminent threat of such damage arising from an incident in respect of which liability or compensation falls within the scope of the following international conventions: (Annex 4) the International Convention of 27 November 1992 on Civil Liability for Oil Pollution Damage, the International Convention of 27 November 1992 on the Establishment of an International Fund for Compensation for Oil Pollution Damage, the International Convention of 23 March 2001 on Civil Liability for Bunker Oil Pollution Damage, the International Convention of 3 May 1996 on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by the Sea, and the Convention of 10 October 1989 on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels.
Directive 2004/35/CE shall not apply to such nuclear risks or environmental damage or imminent threat of such damage as may be caused by the activities covered by the Treaty establishing the European Atomic Energy Community or caused by an incident or activity in respect of which liability or compensation falls within the scope of any of the international instruments listed in Annex 5 (see there).
All legislators should perhaps take the following lines of the Bible into account: Numbers, 5.7 And they must confess their sin that they have done, and he must return the amount of his guilt in its principal, also adding a fifth of it to it, and he must give it to the one against whom he did wrong. 5.8 But if the latter has no near relative to whom to return the amount of the guilt, the amount of the guilt that is being returned to Jehovah belongs to the priest... If we substitute the word priest by the word state, we arrive at an existing Hungarian civil liability and indemnity system, to be found in the Hungarian Civil Code. Objective liability was thus adopted within the framework of directive 2004/35/CE, which, naturally, includes guilt (vorsätzliches bzw fahrlässiges Verhalten), although the cumulation mentioned in the above-quoted sentences from the Bible (plus 20%) cannot be tracked down in the directive. From a cumulative aspect, fault-based (delictual) damages should be paid to the victim of the damage or to the state, furnishing a financial background to the operator and to its company. This latter only in the event that the victim's interests were hurt to a lesser measure than those of the state.
It is another important factor to survey and control the final end of those sums of money which should be turned to environmental recovery. A defective controlling system would result in a both illegal and immoral abuse of confidence (embezzlement) to the detriment of the environment.
(Article 17) The directive shall not apply to damage caused by an emission, event or incident that took place before the implementation of the directive by the member state, or to damage caused by emission, event or incident which takes place subsequent to the date of implementation when it derives from a specific activity that took place and finished before the said date. (Article 19) Member states shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive by 30 April 2007. (Article 17) If more than 30 years had passed since the emission, event or incident, resulting in the damage, there will be no indemnity duty on the part of the author to cover the thus occurred damage.
We can find in the EU Case Law cases such as C-309/02 (14 December 2004), C-420/02 (18 November 2004), C-169/89, C-379/92, C-284/95, C-341/95 and C-232/97. The four latter illustrate that there is a possibility for a member state to adopt more stringent measures than those provided for in directives in the matter of environment protection and indemnity.
The principle of de minimis praetor non curat comes through in cases C-209/89, C-105/91 and C-404/99. All this meaning that the EU Court of Luxembourg is not to be expected make judgments in cases of lesser importance (en cas des affaires banales).
In C-420/02 (which ended on 18 November 2004) it was found that Greece failed to take the necessary measures to ensure that waste deposited at the Pera Galini site in the prefecture of Heraklion would be recovered or disposed of without endangering human health, without risk to water, air, soil, plants and animals, and without causing a nuisance through noise or odours, and by granting a permit to operate that installation which does not contain the necessary information. The Hellenic Republic failed to fulfil its obligations under Articles 4 and 9 of Council Directive 75/442/EEC on waste, as amended by Council Directive 91/156/EEC.
Another case may be mentioned in which the notion of environmental information was at stake. In C-321/96, it was declared on the part of the Court of Justice of the European Union that any data available in written or visual form or contained in databanks which concerns the following shall be regarded as information relating to the environment:
1. the state of water, air, soil, fauna and flora and
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natural sites,
2. activities, including those which give rise to nuisances such as noise, or measures which affect them or are likely to affect them,
3. activities or measures designed to protect such sectors of the environment, including administrative measures and environmental management programmes.
In case C-209/84, the EC Court of Luxembourg repondered on the application of community rules in cases of economic competition.
The question always arises: common law or statute law would answer more perfectly the questions of environmental civil liability? Which system of methods can dilute ambivalences of the topic? First, I should state that there is no panacea, although both systems (after a long procedure of decyphering) may provide certain solutions. We may see this mirrorred by recent USA, British and continental case laws.
A recent case report (Harvard Law Review, Vol. 117, p. 2753; Lombardo v. Warner Case, 353 F. 3d 774; 9[th] Circuit 2003) contains the following assertion by a USA Court: .Though it is clear that the typical state goals underlying sign regulation - for example, preserving the aesthetic beauty of a neighbourhood or limiting the., it is equally clear that sign regulations that excessively restrict a protected medium of social communication cannot stand... Such cases with a similar ratio decidendi may likewise be found in Hungary: Case 58/1985 before the Supreme Court of Hungary. In France, in the Case of 29 November 1995 (published in the Bulletin Civil, No. 298), the court declared: ...l'esthétique de l'environnement n'entre pas dans le domaine de la responsabilité de droit privé pour trouble anormal du voisinage... I. e.: the environmental aesthetic cannot touch upon indemnity regulation for neighbourhood damage.
In Great Britain, in the Case Dennis v. Ministry of Defence (2003, EWHC 793, Queen's Bench Division, Justice Buckley, 16 April 2003) the claimant submitted that the effect of noise from Harrier jet fighters at a Royal Air Force base, two miles from its property, was a nuisance at common law and/or infringed his human rights and those human rights of his wife. Justice Buckley dismissed the claim. The noise was clearly a nuisance. The use of Harriers is not an ordinary use of land - activities which generate extreme noise or other pollution are extraordinary use of land. The surrounding area was essentially rural with villages and individual residences. The essential exercise was to assess the public interest in the nuisance continuing. The common law requires that the operator exercises reasonable care pursuing its undertaking and if due care is exercised, the nuisance may continue. The greater the public interest, the greater can be the interference. There was an interference with Article 8 and Article 1 of the First Protocol of the European Convention on Human Rights but an appropriate assessment of damages at common law could provide the just satisfaction required in these circumstances. With regards to the enormous costs of establishing such training premises for pilots and the fact that around 2012 Harriers are to be phased out, an injunction was refused, but significant damages were awarded.
To make matters clear, an additional case may be presented for a better understanding. In the Case Marcic v. Thames Water Utilities Limited (2003, United Kingdom House of Lords, 66) sewer flooding as a nationwide environmental problem is considered. This problem largely arises from the building of ever more houses to meet the housing demand. Sewers and drains, sufficient when laid in the 19[th] century or later, are no longer adequate to cope with the volume of surface water entering the public drainage system in times of heavy rainfall. Overloaded surface water sewers spill into the foul water sewers. As a result, all too often water and untreated sewage overflow at the lower levels of the drainage system, causing misery for the people living there. Mr. Marcic is one of those persons who has endured serious and repeated external sewer flooding arising from overloaded sewers. Thames Water operates its sewerage system under statutory powers and subject to statutory duties. In these proceedings, Mr Marcic has not sought to rely directly on any alleged contraventions by Thames Water of its statutory obligations. Instead, Mr. Marcic asserts a common law claim in nuisance and a claim under the Human Rights Act 1998 that Thames Water as a public authority has acted incompatibly with his Convention rights under Article 8 (respect for family life and home) and Article 1 of the First Protocol (protection of property). The parties who fight cases to final injunction are unlikely to bargain with one another and, as such cases continue, acrimony grows between the parties, so that they end up refusing to bargain even when they would have bargained originally. On the other hand, if there were a clear new rule, companies would tend to admit liability readily, thus leaving open the possibility of friendly negotiation. The central argument of the House of Lords appeals to is, The existence of a parallel common law right, whereby individual householders who suffer sewer flooding may themselves bring court proceedings when no enforcement order has been made, would set at nought the statutory scheme. (LJ Nicholls) On the part of the Thames Water Company, the Director Gen-
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eral's duties appear in Part 1 of the Water Industry Act. They are, to cite the main ones, to ensure that water and sewerage services are properly delivered throughout the country, to ensure that the companies make a reasonable return on capital to allow them to carry out their duties, to protect the interests of customers by keeping prices down, to prevent undue discrimination in those prices, to protect the interests of customers in the quality of service and other conditions of service, to promote economy and efficiency in the companies and to promote competition. The argument for the House of Lords' position in the Marcic Case is that the Director General has to balance the conflicting duties of ensuring that the companies obtain a reasonable return, keeping prices down, keeping quality up and avoiding undue discrimination, and that flood victim liability would improve the service to some customers at the expense of either water company shareholders or other customers. Water companies are private, for-profit companies, not public authorities, so their decisions are not at policy or discretionary decisions of a public authority. As for the human rights approach, the House of Lords came to a decision in light of the Case Hatton v. United Kingdom before the Grand Chamber of the European Court of Human Rights, in which environmental policy is treated as a matter of ordinary political conflict in which individual rights can be created as a matter of the ordinary political interplay of democratic forces. The approach of the House of Lords was that the Marcic Case lies within the realm of ordinary politics, not the realm of fundamental rights.
This was an interesting example for Common Law and Statute Law approaches to civil liability for environmental damage.
In Austria, according to §§ 364 ff of the ABGB (Austrian Civil Code), in the Case of 30 October 2002 before the Oberstergerichtshof, I read that the owner of a property from where Immissionen (Vermüllung), so contamination passes to a neighbouring property was obliged to pay indemnity. In the Case of 28 November 2002 before the Obersterlandgerichtshof of Vienna, following § 364, Paragraph 2 of the ABGB on Beweislast (id est the charge of proving), it was declared: für allfällige Gesundheitsstörungen ist freilich der Klager beweispflichtig, weil hier die Nähe zum Beweis durchschlägt. I.e.: any kind of health damage is to be proven by the Plaintiff.
The conclusion must be drawn from the above cases that Common Law institutions may be as pragmatic as Statute Law-based regulations in the proper application of law. Common Law applies a ceratin number of statutes, thus mixing up the two of the legal systems. It is clear that in a country where jurisprudence is impregnated with Constitution-based process methods (e.g. in the USA), the role of justices is much more emphasized than in a land where judges stay statute-applying machines, having no impact on the creation of laws. In a country where the jurisdiction has no significant effect on legal dogmatism and parliamentarism, the civil liability for environmental dmage remains only regulated and influenced by political parties. I think it is better to leave this work of law-interpretation and law-amendment to the layer of lawyer-technocrates; these latter ones making use of their perfect legal formation and experience in the practice of law, unless biased by a background of politico-economical tectonics.
Prevention and remediation are the key-words in the 2004/35/CE directive. Legal materials have made use of these two categories for ages, so the real meaning of these words seam to be clear by now. However, a Brandeis amicus curiae brief ought to be written and sent to the Luxembourg Court of the EU precising it on a community level what exactly these terms intend to express. All that to obtain a better understanding. Prevention is always about an active measure (or measures) targeting to impede the generation of a negative effect in the future (sooner or later). Remediation reflects something negative, supposes an existing harm to be recovered. In the latter case, post factum, a given situation pushes the state authorities (the EU administration) to be keen on eliminating those negative, harmful effects and to obtain an in integrum restitution, in the best possible manner, by means of the BAT (Best Available Technology or Technics), of the offended environment and its owner's original rights. To get it short, in the first hand, in case of prevention, there is never a physically existing harm. If there is, even in a non-physical manner, we cannot consider it a preventive but a remedying measure to repair the original environment. In the second hand, BAT is the nature sciences side of the problem, whilst the owner's rights restitution constitute the legal side. These explanations ought to be taken into consideration for a better jurisdiction.
Besides the anomalies due to the official translation, a true implementation of the Directive 2004/35/CE remains the most difficult point. Implementation (as seen in cases against Spain, Portugal, Greece, etc. before the EU Court) is achievable only if practice seems to be well prepared for it. Nevertheless, as concerns the lines of the Bible quoted above, a cumulative aspect still appears to be missing from the Directive.
Beccaria, Cesare: Dei delitti e delle pene (On the crimes and on their punishment), V. Oscurità delle leggi (Obscurity of law), p. 21, Biblioteca Universale Rizzoli, March 1950, Milan, Italy
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Bergkamp, Lucas: Liability and Environment: Private and Public Law Aspects of Civil Liability for Environmental Harm in an International Context, Kluwer Law International, The Hague, The Netherlands, 2001
Harvard Law Review, Vol. 117, p. 2753, Cambridge, USA
http://www.curia.eu.int/jurisp (for EU Case Law)
http://www.europa.eu.int/eur-lex (for the texts of laws)
Journal Juridique de l'Environnement, Paris, France
Journal of Environmental Law, No. 2, Vol 16, 2004, p. 294, pp. 304-306, pp. 233-260; No. 3, 2003, pp. 427-431, London, Great Britain
Recht der Umwelt, No. 3, 2004, p. 1, p. 98-99; No.2, 2003, pp. 68-69, Vienna, Austria
Recht und Natur, Berlin, Germany ■
Lábjegyzetek:
[1] The Author is a research fellow, Budapest.
Visszaugrás
