EU Environmental Law, International Environmental Law, and Human Rights Law : The Case of Environmental Responsibility [1 ed.] 9789004302143, 9789004302136

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EU Environmental Law, International Environmental Law, and Human Rights Law

International Environmental Law Volume 11

The titles published in this series are listed at brill.com/iel

EU Environmental Law, International Environmental Law, and Human Rights Law The Case of Environmental Responsibility By

Armelle Gouritin

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Gouritin, Armelle, editor. Title: EU environmental law, international environmental law, and human rights law : the case of environmental responsibility / Edited by Armelle Gouritin. Other titles: European Union environmental law, international environmental law, and human rights law Description: Leiden : Brill, Nijhoff, 2016. | Series: International environmental law ; volume 11 | Includes bibliographical references and index. | Description based on print version record and CIP data provided by publisher; resource not viewed. Identifiers: LCCN 2015045081 (print) | LCCN 2015041816 (ebook) | ISBN 9789004302143 (E-book) | ISBN 9789004302136 (hardback : alk. paper) Subjects: LCSH: Environmental law—European Union countries. | Environmental law. | Human rights. Classification: LCC KJE6242 (print) | LCC KJE6242.E915 2016 (ebook) | DDC 344.04/6—dc23 LC record available at http://lccn.loc.gov/2015045081

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 1873-6599 isbn 978-90-04-30213-6 (hardback) isbn 978-90-04-30214-3 (e-book) Copyright 2016 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Acknowledgments vii Executive Summary viii 1 Introduction. Methodology, Terminology, Basic Concepts and Tensions 1 1.1 What: Subject, Questions, Thesis and Hypothesis 1 1.2 How: The Comparative Approach Applied in the Book. A Particular Focus on the Human Rights Approach 4 1.3 Introduction to Environmental Responsibility 36 1.4 Foundational Difficulties Encountered by the EU Legislator that are Addressed in the Book 45 2 International Environmental Law and Human Rights Partially Conflict but Mainly Confirm the Anthropocentric Conceptions of the Directives 64 2.1 Gaps in the Directives: Definition of Damage and Harm. The Anthropocentric and Regulatory Approaches 64 2.2 Gaps in the Directives: The Grounds for Responsibility. Limits of the Public and Regulatory Approach 91 2.3 International Environmental Law Partially Conflicts with the Directives: Natural Resources vs. Biodiversity 134 2.4 International Environmental Law and Human Rights Confirm the Directives through Policy Diffusion: Damage and Harm to Natural Resources 151 2.5 Conclusion 173 3 Conflict with Human Rights: Deference to the International Civil Liability Frameworks that Applies to Oil Spills in Directive 2004/35 176 3.1 Limited Scope of Application of the Directive: The Exclusions of Responsibility Mechanisms 177 3.2 Deference to International Law Conflicts with Human Rights: The Case of the Exclusion of Oil-spill Damage 187 3.3 Conclusion 232

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4 Human Rights and Procedural Limitations in the Directives: Complement and Conflict 234 4.1 Gaps in the Directives that have a Procedural Dimension 234 4.2 Impartiality and Independence Requirements and the Discretion of Public Authorities: A Complement Case 290 4.3 The Obligation to Guarantee Access to Environmental Information on Risk and the Boundaries of the Development Risk Defence: A Complement Case 302 4.4 Access to Justice and Prescription: A Conflict Case 330 4.5 Conclusion 336 5 Conclusions 341 5.1 The First Hypothesis is Verified: Gaps in Directives 2004/35 and 2008/99 341 5.2 The Second Hypothesis is Partially Verified: International Environmental Law and Council of Europe Human Rights Law as Limited Gaps-fillers. In between Complement, Confirmation and Conflict 346 5.3 The Thesis is not Verified: The Comparative Approach does not Help to Depart from the Cost-allocation Paradigm 351 5.4 Taking Stock of the Results 361 Annex—Summary of the Findings: Complement, Confirmation and Conflict 369 Bibliography 383 Academic Works 383 Case Law (Chronological Order) 399 Legal Texts (Chronological Order) 403 Reports and Press Releases (Chronological Order) 410 Index 414

Acknowledgments I am much indebted to the supervisors of the thesis which is the origin of this book: Paul de Hert, Harri Kalimo and, particularly, Marc Pallemaerts who has constantly supported me before, during and after the production of the thesis. The reflections, comments and criticisms of the supervisors of the thesis have been invaluable. I also thank the members of the jury of the PhD (Ludwig Krämer, Francesco Francioni, Sari Kouvo and Sebastian Oberthür) for their time and invaluable and challenging comments and criticisms. I thank the FWO for granting me with fellowship that enabled me to stay at the European University Institute (June-September 2009) in very comfortable and supportive conditions. Armelle Gouritin

Visiting Professor Centro de Investigación y Docencia Económicas, A. C.—Sede Región Centro [email protected] www.cide.edu

Executive Summary This book aims to answer the question of whether international environmental law and Council of Europe human rights law (European Convention on Human Rights as interpreted by the European Court of Human Rights) fill gaps identified in EU environmental responsibility law (Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage and Directive 2008/99 on the protection of the environment through criminal law). The answer to the question is, as will be proved: “to some degree, but rather poorly”. Three cases of interplay between EU environmental responsibility law, international environmental law and human rights law are identified. The latters either confirm, complement, or conflict with EU environmental responsibility law. The first part of each chapter is devoted to the critical appraisal of Directive 2004/35 and Directive 2008/99. The book is built upon the premise that tensions initially occurred when the EU legislator adopted the Directives. The hypothesis that tensions resulted in some important gaps in EU environmental responsibility texts is explored and verified. Through legal theory, the critical assessment of the legal constructs enshrined in the Directives enables us to identify a whole series of gaps. Three main lines of analysis reveal and explain the gaps. Firstly, how law approaches the environment. Environmental features are protected and endorsed in the responsibility text for their instrumental or inherent value. Secondly, the impact of the regulatory approach on EU environmental responsibility law, i.e. the consequences of the dependence of EU environmental responsibility law upon EU environmental law. Responsibility or exceptions to the responsibility principle are based upon EU existing regulation of human activities. The greatest weight of significance does not rest upon environmental damage and harm and the corresponding harmlessness obligations are phrased under due diligence or obligation of results. Thirdly, the shift from responsibility (breach of an obligation and of victims’ rights) to cost-allocation. As a consequence of this regulatory approach, which is not centred on the notions of environmental damage and injury, the Directives address cost-allocation matters instead of identifying due diligence or harmlessness obligations towards the environment. These limits are explained and criticised in three chapters: first, environmental damage and harm (chapter 2); second, exceptions to the responsibility principle (chapter 3); and third, procedural aspects of the environmental responsibility mechanisms (chapter 4). The eight gaps that best reflect the three lines of analysis are studied in the second part of each chapter. They are:

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• The limited notion of natural resources (section 2.1) • The limited recognition of the intrinsic value of the environment (section 2.1) • The threshold condition for damage and harm to be legally defined (section 2.1) • The rejection of diffuse pollution from the scope of application of the Directives (section 2.2.2) • Deference to international law that applies to oil-spills (in Directive 2004/35) (section 3.1.5) • The public trust doctrine and more particularly the legal practice that flows from the doctrine (section 4.1.1) • The development risk defence as an exception to the responsibility principle (in Directive 2004/35) (section 4.1.2) • The 30 years prescription (Directive 2004/35) (section 4.4) The second part of each chapter is devoted to the comparison exercise. It is conducted through the analysis of international environmental law and Council of Europe Human Rights Law. The substantive norms of Council of Europe human rights law and international environmental responsibility law are tested in order to identify whether they confirm, complement or conflict with the gaps of EU environmental responsibility law. The second hypothesis, that international environmental law and Council of Europe human rights law can fill the gaps identified in the Directives, is partially verified: the formers are gap-fillers to a limited extent. From the outset, the limits of the approach adopted in order to fill the Directives’ gaps are acknowledged. On the one hand, only a few international environmental law norms are mobilised. The reason is that few norms addressing environmental responsibility of private persons have entered into force. On the other hand, the limits of Council of Europe human rights law in relation to the purpose of filling the Directives’ gaps cannot be ignored. Indeed, Council of Europe human rights law does not guarantee the right to a healthy environment. This law remains largely anthropocentric and individualistic. The comparison exercise nevertheless delivered some outcomes. A first set of five cases of confirmation is identified. International environmental law and Council of Europe human rights law confirm EU environmental responsibility law and the gaps therein. They are:

• The limited notion of natural resources in the Directives and Council of Europe human rights law (section 2.4)

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• The limited recognition of the intrinsic value of the environment in the

Directives and the UN Convention on Biodiversity and Council of Europe human rights law section 2.3.2) The threshold condition for damage and harm to be legally defined in the Directives and international environmental law (Biodiversity Convention, Cartagena and Kuala-Lumpur Protocols) and Council of Europe human rights law (section 2.4) The rejection of environmental harm resulting from damage caused by a diffuse pollution in the Directives and international environmental law (Kuala-Lumpur Protocol) (section 2.4.1)

• •

A second set of two cases of complement is identified. Council of Europe human rights law complement EU environmental responsibility law and the gaps therein. They are:

• The boundaries of the development risk defence in Directive 2004/35 and the Council of Europe human rights law (section 4.3) • The public trust doctrine and the discretion of public authorities that set environmental responsibility into motion in the Directives and Council of Europe human rights law (section 4.2)

A third set of four cases of conflict is identified. International environmental law and Council of Europe human rights law conflict with EU environmental responsibility law and the gaps therein. They are:

• The limited notion of natural resources in the Directives and international environmental law (the UN Convention on Biodiversity) (section 2.3.1) • The rejection of environmental harm resulting from damage caused by a diffuse pollution in the Directives and Council of Europe human rights law (2.4.2) Deference to international law that applies to oil-spills in Directive 2004/35 and Council of Europe human rights law (section 3.2) The 30 years prescription established in Directive 2004/35 and Council of Europe human rights law (section 4.4)

• •

The thesis, that the gap-filling exercise can support a return to the responsibility paradigm which is opposed to the cost-allocation paradigm endorsed in the Directives, is not verified: the comparative approach does not support a return to the responsibility paradigm or the autonomy of environmental responsibility law from environmental law.

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All in all, the results of the gap-filling exercise can be viewed as rather limited. The research started with an open question and this limited result was, to some extent, predictable. Nevertheless, this lacklustre performance is, so the author believes, not entirely unproductive. It can rather be seen as scientific evidence of the current limits of international environmental law and Council of Europe human rights law. Consequently, were international environmental law and Council of Europe human rights law to fulfil the gap-filling exercise, potential paths for improvement are identified.

CHAPTER 1

Introduction. Methodology, Terminology, Basic Concepts and Tensions In this introductory chapter, the author discusses the methodology applied in the book (1.1) and the environmental responsibility concepts used in the analysis of environmental responsibility (1.2). Also, the general difficulties that arise when conceptual aspects are articulated into a legal norm are elaborated on. Tensions arose when the EU legislator operated the concepts in the Directives studied. They are examined at more length (1.3). These tensions and the following trade-offs are the starting point of the hypothesis explored in the book. The tensions are expounded in greater detail when checking the hypothesis against the scope of research: environmental damage, harm, and the grounds for environmental responsibility and exceptions to the responsibility principle. In a final section, the author provides insights on the comparative approach applied in the book, and introduces the “human rights approach” (1.4). 1.1

What: Subject, Questions, Thesis and Hypothesis

The research is concerned with EU environmental law.1 The theme of the research is private persons’ environmental responsibility. This research looks at environmental responsibility as opposed to environmental liability.2 The obligations resulting from responsibility do not fall within the scope of research. The scope of research is limited to environmental damage, harm, grounds for responsibility, and grounds for exceptions to the responsibility principle.3 More specifically, the object of the research is the substantive interplay between EU environmental responsibility law (as regulated in 1  As of 1 December 2009, the European Union succeeded the European Community (Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community). EC law has become EU law. In this book the author refers to EU law, even when referring to law that was adopted before the Lisbon Treaty. 2  Different definitions of responsibility and liability exist. For example, scholars who conduct research into responsibility and liability in international law work with different notions that reflect the peculiarities of international law. The definitions in international law are reported and explained below, see section 1.3.1. 3  On the responsibility principle, see H. Jonas (1984). © koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004302143_002

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Directives 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage and 2008/99 on the protection of the environment through criminal law) on the one hand, and international environmental law and Council of Europe human rights law on the other hand. Council of Europe human rights law refers to the European Convention on Human Rights as interpreted by the European Court of Human Rights, altogether Council of Europe human rights law. The question to be answered in this book is whether international environmental law and Council of Europe human rights law can fill some gaps in the Directives addressed in the book. In order to answer this question, a comparative approach is adopted. Attention is directed to overlapping substantive rules regarding environmental responsibility within three legal systems: EU law, international law and Council of Europe law. The comparative approach is by no means considered a panacea. Inter­ national environmental law itself is limited when it comes to environmental responsibility. This is widely recognised by scholars and will appear in the subsequent developments. Similarly to EU environmental law, international environmental law is the result of compromises and tensions. To some extent, international environmental law is also moved by an integration approach. The human rights approach is not considered to be the ultimate solution to foster environmental protection either. As exposed in the first chapter below at more length and as will be evidenced in subsequent chapters, the protection approach endorsed by human rights mechanisms at the Council of Europe level is not a priori considered the most obvious path to advance environmental protection claims. The comparative approach is not considered as a panacea but is rather the object of the research. Eventually, the outcome of the comparative approach will enable the following theory to be tested. Confronting EU environmental responsibility law—triggered by a regulatory approach—with Council of Europe human rights law and international environmental law—triggered by a protection approach (of both the environment as such and environmental rights)—eventually results in a re-systematisation of EU environmental law and a shift towards the environmental responsibility paradigm, as opposed to the allocation of costs. Two distinct hypotheses are explored in this book. The first hypothesis is that gaps can be found within EU environmental responsibility law as regulated in the Directives. These gaps result from and exemplify three aspects that are considered in the book. The first aspect is EU decision-making process and the object of regulation: the environment. In this regard, attention is directed to how law approaches

Introduction

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the environment. The gaps result, secondly, from the regulatory approach endorsed by EU environmental law. In the framework of this book, the “regulatory approach” is distinct from the broader meaning of regulating, understood as normative activity. In this book, the regulatory approach is defined as the approach whereby the legislator relies upon existing law (“regulation”) in order to provide environmental responsibility with a scope of application and content. In this case, the regulatory approach is more specifically the approach whereby the EU legislator relates back to EU environmental law, i.e. the Directives and Regulations that constitute EU environmental law. This approach eventually results with environmental responsibility’s dependence on EU environmental law. Thirdly, this approach results in a shift of paradigm, from responsibility to cost-allocation. In other words, the responsibility framework is more concerned with the allocation of costs than the obligations and rights associated with environmental responsibility, i.e. matters of fault, due diligence (understood as the duty to prevent, reduce and control environmental harm), obligation of result or “protection obligation” (understood as the duty not to generate environmental damage and harm), or the victims’ rights. In this work it is assumed that Council of Europe human rights law and international environmental law endorse a protection approach that has the potential to fill the gaps identified in the Directives. The protection approach can, on the one hand, support a shift of paradigm towards responsibility, when it comes to EU environmental responsibility law as such. On the other hand, the protection approach triggers a re-systematisation of EU environmental law, in the direction of a protection paradigm. This re-systematisation is rendered possible because of the EU regulatory approach, which refers to EU environmental law. Much literature has been devoted to environmental liability as codified in Directive 2004/35. Less work has been devoted to Directive 2008/99. Authors generally focus on the Directives themselves, their implementation in national law, or look at EU law in a comparative perspective (mainly with US law). Their focus also generally lies on the procedural aspects of environmental responsibility (for example, standing). The “human rights approach” is increasingly being researched. However, the author has not found it applied to assess EU environmental law standards in-depth. When it comes to international environmental law which addresses responsibility, much work has already been devoted to the issue.4 Legal scholars’ works usually focus on State or public bodies’ responsibility and tend to be very critical.

4  More particularly, on the interplay between EU environmental responsibility law and international law, see E. Orlando (2010).

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Against this background, the book aims at treating Directives 2004/35 and 2008/99 equally, and focusing on responsibility. With the view to consistently assess EU environmental responsibility law against Council of Europe human rights law and international environmental law, the starting points for examination are the concepts and regulatory choices made by the EU legislator. 1.2

How: The Comparative Approach Applied in the Book. A Particular Focus on the Human Rights Approach

1.2.1 Identification of Gaps in EU Environmental Responsibility Law The first part of each chapter is devoted to the identification of gaps in Directives 2004/35 and 2008/99. Attention is directed to EU concepts of environmental responsibility and how they are articulated. The objective is to understand the legal treatment of environmental responsibility under Directives 2004/35 and 2008/99. This exercise goes together with a critical approach. More specifically, gaps are identified alongside the following elements: contradictions, lack of coherence and discrepancies between EU environmental responsibility law and EU environmental law. In addition, power struggles that belonged firmly in the integration and harmonisation process can be found in the analysis of the legislative process that resulted in the adoption of the Directives with regards to matters that were contentious (for example, the scope of the Directive, definition matters). Power struggles are also evidenced as they are described and analysed in legal scholars’ works. It is worth emphasising that a functional approach is not adopted. In other words, arguments grounded in the objectives of environmental responsibility or any other functional approach (for example the law and economics approach to environmental law) will not be put forward. References to this kind of arguments will be provided in the footnotes. All of the gaps cannot be covered in the book. The gaps that are most closely linked with the research framework of this book are selected, i.e. three aspects: how law approaches the environment (anthropocentric vs. ecocentric approach: the instrumental, inherent or intrinsic value of the environment),5 the impact of the regulatory approach (dependence of EU environmental responsibility law upon EU environmental law), and the shift from responsibility (breach of an obligation and of victims’ rights) to cost-allocation. The five gaps identified in chapters 2, 3 and 4 which best reflect the three aspects considered in the book are: the limited notion of natural resources, the 5  This is elaborated below, see section 2.1.1.

Introduction

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exclusion of diffuse pollution from the scope of application of the Directives (chapter 2), deference to international law when international law norms regulate private persons’ responsibility (chapter 3), reliance upon public authorities and environmental NGOs in order to bring about responsibility (chapter 4), the permit and development risk defences as exceptions to the responsibility principle and prescription limits (chapter 4). Gaps in EU Environmental Responsibility Law, International Environmental Law, and Human Rights Law: The Gap Filling Exercise. Cases of Accumulation, Complement, Confirmation, and Conflict The research seeks to answer whether and how international environmental law and Council of Europe human rights law can overcome the gaps in EU environmental responsibility law. The articulation test applied to the communication between the legal systems at stake (EU law, international environmental law and Council of Europe human rights law) focuses on the substance of the norms studied. Overall, the legal technique exercise exclusively addresses the content of the norms. The research is devoted to the substantive interplay between these legal systems. In addition, the essentialist approach is applied over the course of the whole book: environmental damage and harm, environmental responsibility, and grounds for responsibility or responsibility defences provisions are identified in substance, even when not literally referred to as such. Regarding the “how” question, i.e. the articulation between international environmental law, Council of Europe human rights law and EU environmental responsibility law can be analised along two scenarios: accumulation and conflict.6 In a first scenario, the rules derived from international environmental law or Council of Europe human rights law accumulate with the rules derived from the Directives. Two cases are distinguished: complement and confirmation. The confirmation case is the simplest of all cases: rules of international environmental law or Council of Europe human rights law merely confirm the rules of the Directives. The second case is the “complement” case. The rules of international environmental law or Council of Europe human rights law complement the Directives without contradicting them. In that case, the rules of international environmental law and Council of Europe human rights law can have two purposes that refer to the interpretation and the application of the rules of the 1.2.2

6  This grid has been elaborated (partly) following J. Pauwelyn (2009), pp. 158–188 and 200–221.

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Directives. On the one hand, if the provisions or terms of the Directives are amibiguous, international environmental law or Council of Europe human rights law can come into play in order to interpret these provisions or terms. On the other hand, international environmental law and Council of Europe human rights law apply in the cases that are not regulated by the Directives. In other words, the Directives are not applied in isolation. In a second scenario the rules of the Directives are in conflict with international environmental law and Council of Europe human rights law: they are either inconsistent, incompatible or contradictory. The hierarchy between the legal systems considered (and the norms that belong to these) is not the object of this research. It will be taken as granted that international environmental law and Council of Europe human rights law are supreme over and bind EU secondary law.7 In short, the Directives that regulate environmental responsibility must conform to international environmental law and Council of Europe human rights law. The latters are considered in this book as setting minimum standards that cannot be derogated from. The sources are manifold. Quite obviously, the analysis of written legal norms constitutes a firm ground and provide precious insights in regards to States’ will. Several other sources are mobilised. The case law of the European Court for Human Rights is utilised as quite a useful second source. The Court’s case law is part of the Council of Europe human rights law.8 General principles of law and the work of scholars are also mobilised.9 7  Legal scholars extensively study this point of law. As a short insight, international environmental law binds EU secondary law insofar as international environmental law is embodied in a Treaty to which the EU is a party, or customary law (as recently reaffirmed in EUCJ C-366/10, Air Transport Association of America, American Airlines Inc., Continental Airlines Inc., United Airlines Inc. v. Secretary of State for Energy and Climate Change, 21 December 2011—Grand Chamber, ECR 2011 I-13755, para. 101: “Under Article 3(5) TEU, the European Union is to contribute to the strict observance and the development of international law. Consequently, when it adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the European Union.” The case is introduced and discussed at length in the subsequent chapters). The relationship between the Council of Europe human rights law and EU secondary norms is slightly more complicated. This issue is addressed in section 1.2.7. 8  As evidenced for example in the Charter of Fundamental Rights of the European Union, Preamble: “the rights as they result, in particular, from (. . .) the European Convention for the Protection of Human Rights and Fundamental Freedoms (. . .) and the case-law (. . .) of the European Court of Human Rights”. 9  To sum up, the variety of sources equally mobilised in the second part of each chapter in order to conduct the (legal technique) lawfulness assessment reflects the sources of law

Introduction

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A Few Norms of International Environmental Law as Potential Gap Fillers In the second part of each chapter, some of the gaps identified in Directives 2004/35 and 2008/99 are challenged against the standards endorsed in international environmental law and Council of Europe human rights law. Assessing EU law against international (environmental) law is anything but original. No further explanation on this approach is required. There is nevertheless the need to highlight that legal technique is applied in the book. De lege lata reasonings are applied. Only international norms that entered into force (or are expected to enter into force) are considered. Scholars commonly report that international norms addressing private persons’ responsibility for environmental damage suffer a shortfall in becoming positive law.10 As a consequence, there are only a few norms that can be scrutinised. Amongst others, the following norms will not be addressed in the book as potential gap fillers: the Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty, Liability Arising from Environmental Emergencies adopted in Stockholm on 17 June 2005, the Basel Protocol on Liability and Compensation adopted on 10 December 1999 (Protocol to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal), the Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, adopted under the auspices of the United Nations Economic Commission for Europe in Kiev on 21 May 2003. In the book, attention will be directed to the Convention on Civil Liability for Oil Pollution Damage adopted on 29 November 1969 (the “Civil Liability Convention”) amended by the Protocol of 1992 to amend the 1969 International Convention on Civil Liability for Oil Pollution Damage adopted on 27 November 1992) and the Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage adopted on 1.2.3

listed in Article 38(1) of the Statute of the International Court of Justice. Article 38(1) of the Statute of the International Court of Justice reads: “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. (. . .) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” 10  See for example A. Daniel (2003), p. 225.

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18 December 1971 (the “Fund Convention”), amended by the 1992 Protocol to amend the 1971 Fund Convention adopted on 27 November 1992. These Conventions were adopted under the auspices of the International Maritime Organisation. The book will also address the UN Convention on Biological Diversity (the “Biodiversity Convention”) adopted on 5 June 1992 and two Protocols to the Biodiversity Convention: the Protocol on Biosafety adopted on 29 January 2000 and the Supplementary Protocol on Liability and Redress to the Cartagena Protocol adopted on 15 October 2010. The human rights approach applied in the book is much more original. It is far less widely applied than the international environmental law approach described above. Accordingly, it is appropriate to explain this approach below. This explanation facilitates the provision of the grid that is applied in the book and is intended to assist the reader in understanding the developments therein. Introduction to the Interplay between Environmental Protection and Human Rights Protection In the first part of each chapter the question is: can some gaps be found in Directives 2004/35 and 2008/99? The author focuses on the notions of environmental damage, environmental harm and the grounds for responsibility and exceptions to the responsibility principle. Can the Council of Europe Convention on Human Rights (the Convention) as interpreted by the European Court of Human Rights (the Court) fill these gaps? Assessing if, and to what extent the Convention as interpreted by the Court can fill the gaps identified in Directives 2004/35 and 2008/99 requires to first expose how the Convention and Court approach environmental affairs, and how the approaches will address the gaps identified in the first part of the book. This is done below and followed in the next section by theoretical developments on the potential and difficulties inherent to this human rights approach. 1.2.4

Once highly challenged, the nexus between human rights claims and environmental protection has been constantly and increasingly recognised at the international, European and national level during the last decades.11 Nevertheless, the nexus between human rights protection and environmental protection is not clear-cut. It would be wrong to assume that human rights law and environmental protection law are in any case mutually supportive. On the contrary, doctrinal works and concrete cases show that human rights 11  On the link between human rights and the environment see for example Boyle A. and Anderson M. (Ed.) (1998); R. Picolotti and al. (2003); D. Shelton (2007); M. Pallemaerts and M. Déjeant-Pons (2002); and N. de Sadeleer (2012).

Introduction

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protection and environmental protection can in some cases conflict. The values protected can be in conflict: sometimes, the interplay does not create mutual support between human rights and environmental protection. The developments currently occurring within the international framework on climate change with regards to the protection of forests are a good example of the conflict between environmental protection and human rights values. The United Nations “Reducing Emissions from Deforestation and Forest Degradation, sustainable forest management, conservation and increasing forest carbon stocks” (REDD+) programme is intended to reduce greenhouse gas emissions through the halting of deforestation and the protection of forests which function as carbon sinks. Financial aid will be granted to the Countries that set REDD+ strategies. The programme has been severely criticised by NGOs and scholars. Basically, these contend that governments have such appetite for financial aid that they may deprive indigenous and local communities of their rights in relation to lands covered by forests in order to receive financial aid. They also shed light on the fact that despite having set up their REDD+ strategies, the governments do not sufficiently consult local and indigenous communities.12 This example clearly illustrates the conflict that can occur

12  For a critical assessment of the REDD+ program and the impact of the program on human rights, see I. Fry (2008), particularly p. 177: “Another concern being expressed regarding an international REDD (Reducing Emissions from Deforestation and Forest Degradation) carbon market is the effects that such a regime may have on the rights of indigenous peoples and local communities. In some situations, the property rights of indigenous peoples and local communities are far from settled, much less the right to benefit from the carbon market. Introducing carbon rights over land occupied and used by these people may have the potential to further compromise their tenure and use of the land. There is a real fear among some indigenous peoples and some NGOs that the establishment of protected areas as a response to REDD (Reducing Emissions from Deforestation and Forest Degradation) could seriously compromise their rights to land. Based on past experience, statements like ‘identifying and promoting alternative sustainable livelihoods near protected areas’, while presumably well intentioned, is cold comfort for some indigenous peoples.”, and S. Lemaitre (2011) who reports on the experience gained so far in Guyana and concludes p. 162: “Indigenous peoples inhabiting forests are particularly concerned with the impact that REDD (Reducing Emissions from Deforestation and Forest Degradation)projects could have on their lives. Given past experiences in which governments have at times disregarded their rights, indigenous peoples have repeatedly stated that they must be involved in the negotiations and conclusions of a REDD (Reducing Emissions from Deforestation and Forest Degradation) agreement. Indigenous peoples’ land rights are recognized by several international instruments. Their rights are also “enforced and strengthened

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when environmental protection eventually clashes with human rights. Scholars have conducted in-depth research on the relationship between environmental protection law and human rights law. Some scholars contend that human rights law and environmental protection law are in conflict with one another. More particularly, some argue that environmental protection law could hinder human rights law, or even that the contrary could occur (human rights law that hinders environmental law, on account of the lack of efficiency of the former).13 Others argue that they are interdependent14 and reinforce one each other.15 In this book the author focuses on instances of mutual support. Attention is directed to instances in which Council of Europe human rights law supports environmental protection law. More specifically, this support is identified in the instances where Council of Europe human rights law fills the gaps identified in Directives 2004/35 and 2008/99. In this respect, three cases are identified in the book. Two are “conflict cases”: Council of Europe human rights law sanctions a choice made by the EU legislator (the exclusion of oilspills from the scope of application of Directive 2004/35 and the prescription mechanism in the same Directive). Two other cases are “accumulation cases”. These cases complement the Directives: they call for a specific interpretation of some legal mechanisms endorsed in the Directives (the development risk defence as an exception to the responsibility principle), or calls for a specific implementation of the legal mechanisms (impartiality and independence of the authorities setting environmental responsibility in motion in the context of the permit defence). Two Human Rights Approaches Applied: Environmental Substantive Rights and Environmental Procedural Rights As reported above, the human rights approach to environmental affairs is increasingly applied in scholars’ works and before adjudicating bodies. 1.2.5

by regional courts. However, these instruments and for a are not legally binding or they do not cover all aspects of indigenous peoples’ land rights. Moreover, there is often a gap between the protection granted by international law and how it is implemented domestically. REDD (Reducing Emissions from Deforestation and Forest Degradation) will potentially increase this difference as large sums of money are at stake.” 13  See for example E. Louka (2002) p. 20. At the same page, the author answers the “why” question (to biodiversity protection). The author concludes p. 180 that “biodiversity protection should not be pursued if it results in human rights violations”. See also C. Miller (1998), particularly pp. 176–187 and S. Joubert (2012). 14  For example see K. Woods (2010) and J. Hancock (2003). 15  See for example R. Maciel Cuiabano (2000), D. Loperena Rota (1999), E. Gaillard (2012) and M. Recio (2012).

Introduction

11

The interplay between a body of law aiming to protect human rights and another body of law aiming to protect the environment needs a roadmap. Human rights law and environmental protection law do not only protect distinct values. They also use different techniques. The increasing application of the human rights approach before adjudicating bodies and the experience gained through this have enabled scholars to reveal several ways to categorise human rights approaches to environmental affairs.16 The author proposes below a systematisation that only partially reflects legal scholars’ categorisation in order to have a clear grid for the following chapters that furthermore best fits with the attempt to systematise the European Court of Human Rights’ case law. The human rights approach to environmental affairs can be systematised under four approaches. 1.2.5.1 Environmental Substantive Human Rights This first approach employs existing substantive human rights to achieve environmental protection needs. Scholars distinguish two ways to utilise existing human rights. On the one hand, the “indirect” application of human rights to environmental affairs undertakes what could be seen as the “traditional” application of human rights. For example, a Court can find freedom of expression to be violated when national authorities hamper an environmental activist from distributing leaflets. The greatest weight of significance rests on the human rights provision itself—the existing right is applied; such case will incidentally have an environmental dimension. The link between the environmental component of the case and human rights is indirect. The question here is whether or not the human rights provision has been infringed. The issue at stake will be found without strong difficulties to fall under the human rights provision’s scope (here, the impossibility to distribute tracts as falling under the scope of the provision for freedom of expression). All in all, existing human rights can 16  See for example M. Anderson (1998), pp. 4–10, K. MacDonald (2008) and D. Shelton (2002) who distinguishes the following approaches. Firstly, the recognition of a healthy environment as a condition for the enjoyment of basic human rights. Secondly, some human rights ground the protection of the environment (the focus is then on procedural rights: access to justice, access to the information, public participation). Thirdly, the recognition of an autonomous right to a healthy environment. Approaching environmental law through the human rights prism is sometimes criticised. For example, some scholars criticise the inherent individual character of the human rights approach. See among others F. Francioni (2010). On that point see section 1.2.7. in the present book.

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per se apply to environmental affairs. The Court has applied this approach in numerous cases, for example in the Chassagnou vs. France case.17 In that case, the applicants claimed that they had suffered an infringement of their freedom of association because pursuant to the relevant provisions of the French Loi Verdeille, they had against their will been made automatic members of an approved municipal hunters’ association, which the Law did not permit them to leave. They relied on Article 11 of the Convention. On the other hand, the “direct” link between human rights and environmental cases stems from the gradual recognition of environmental rights linked to human rights provisions. Quite differently from the indirect application of human rights (discussed above), using existing human rights requires a “stretching” of the scope of existing human rights provisions. Indeed, for environmental protection to fall under this category, the human rights provisions must be found to receive environmental claims. The focus is clearly on the environmental dimension of the claim. For example, an applicant claims that right to life encompasses the right not to suffer the risk created by dangerous or polluting activities, for instance, a waste treatment plant in the Lopez Ostra vs. Spain case.18 In that case, a waste-treatment plant had been built to solve a serious pollution problem in Lorca caused by the concentration of tanneries. Yet as soon as it started up, the plant caused nuisance and health problems to many local people. The human right at stake was the applicant’s right to respect for her home and for her private and family life under Article 8 of the European Convention on Human Rights.19 The link between the environmental dimension of the claim and the human rights provision is more direct: the environmental component of the case triggers the mobilisation and interpretation of existing human rights. The question is whether or not the environmental dimension of the case falls under the scope of application of the human rights provision (here a dangerous, polluting activity putting life at risk). The problems and difficulties encountered when a jurisdiction has to rule are concerned with whether or not the case will fall under the human rights provisions, before assessing whether or not the provision has been infringed in 17  European Court on Human Rights (ECtHR), Chassagnou and Others v. France, 29 April 1999 (GC). 18  ECtHR, Lopez Ostra vs. Spain, 9 December 1994. In the same sense and among others, see ECtHR, 3 May 2011, Apanesewicz v. Poland; and ECtHR, 13 December 2012, Flamenbaum and Others v. France. 19  The claimant also grounded her arguments on Article 3 of the Convention. Article 3 provides “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Introduction

13

the particular case. Overall, human rights provisions apply to environmental affairs per se. This direct link requires an active role of the adjudicative bodies to override the limited wording of the human rights provisions. Indeed, the human rights provisions usually do not expressly recognise environmental rights.20 As seen in the following chapters, the European Court of Human Rights has had such a dynamic role, in gradually extending the European Convention on Human Rights’ provisions to environmental affairs. Operating such broad interpretation of the provisions allowed the direct link between environmental affairs and the European Convention on Human Rights to be made. The first approach is applied in the book. More specifically, the right to property is used in order to challenge the exclusion of oil-spills from the scope of application of Directive 2004/35. 1.2.5.2 Environmental Procedural Rights A second approach links environmental protection and human rights through the lens of procedural rights. The European Court of Human Rights has detailed a broad range of environmental procedural rights. These environmental procedural rights are either specifically guaranteed by the human rights provisions (Articles 6—right to a fair trial and 14 of the European Convention on Human Rights—right to an effective remedy) or unveiled by the adjudicating bodies as flowing from substantive human rights provisions. The Court brought to light environmental procedural rights that pertain to substantive human rights provisions. Procedural requirements were revealed as part of the obligations flowing from Article 8 of the European Convention on Human Rights (right to respect for private and family life—in, among other cases, Taskin and others vs. Turkey).21 Environmental procedural rights found a solid basis with the adoption of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters on 25 June 20  This is true for the oldest human rights norms, such as the European Convention on Human Rights. The Convention was adopted in 1950. At that time the focus was on other issues, such as civil and political rights. On this point see for example K. MacDonald (2008), pp. 213–216. 21  European Court of Human Rights (ECtHR), Taskin and others vs. Turkey 10 November 2004, para. 119 reads as follows: “Lastly, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process”. In the same sense, see among others ECtHR, 25 September 2014, Application No. 29878/09 (admis. Dec.), Karin Andersson and Others v. Sweden.

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1998.22 The Aarhus Convention was signed by 35 member states of the United Nations Economic Commission for Europe (UNECE) and by the European Community. The Aarhus Convention distinguishes three pillars: citizens’ access to information, public participation and access to justice. This distinction is usually adopted in scholars’ works. This second approach is applied in the book. It is applied when attention is directed to the impartiality and independence requirements that apply to public authorities which initiate the responsibility mechanism and to access to information. Two Human Rights Approaches Not Applied: The Autonomous Right to a Healthy Environment and Environmental Technical Standards 1.2.6.1 The Autonomous (Human) Right to a Healthy and Protected Environment The third human rights approach to environmental affairs is the recognition of an autonomous right to a healthy environment. The autonomous human right linked to the environment can be phrased in different ways. Reference can be made to the right to a clean, healthy, safe, ecologically balanced, stable, viable, sustainable, or protected environment. Some scholars contend that this autonomous right should not be understood and articulated as a human right, but as a right in order to allow this right to reflect a biocentric approach: “Shaping the right to a healthful environment so as to adopt a biocentric approach to a healthful environment can benefit both humans and eco-systems: a healthful, clean, toxic free environment will benefit habitats as well as humans.”23 The movements towards the recognition of an autonomous substantial human right to a healthy environment is not unanimous. Indeed, while some scholars reflect on how to conceptualise such right, other scholars reject this recognition.24 This rejection echoes the reluctance of governments to recognise the autonomous right in a binding text. 1.2.6

22  UN Doc. Sales No. E/F/R.98.II.E.27. The text of the Convention is available at http://www .unece.org/env/pp/treatytext.htm. 23  K. MacDonald (2008), p. 216. The limits inherent to the human rights approach to environmental claims are further elaborated below in section 1.2.7. The human rights provisions’ anthropocentrism is further elaborated on in point 3 below (‘conceptual difficulties’). 24  See for example C. Tomuschat (2003), pp. 51–52.

Introduction

15

The autonomous right—and the obligations flowing from it—is unequally recognised by the European Union and the Council of Europe legal systems. The autonomous right is not recognised in a binding EU norm or in EU judicial bodies’ case law. The Council of Europe is regularly discussing the recognition of this autonomous right. The contentious endorsement of the autonomous right in a binding norm is reflected at the Council of Europe level with the discussions on the adoption of an additional Protocol that would add the right to a “healthy and viable” environment in the catalogue of the human rights guaranteed by the European Convention on Human Rights. The Parliamentary Assembly of the Council of Europe adopted in September 2009 a recommendation on a “draft additional Protocol to the European Convention on Human Rights on the right to a healthy environment”.25 The reluctance to adopt the Protocol was expressed as early as one month later at the meeting of the Committee of Experts for the Development of Human Rights (DH-DEV) that took place on 12–14 October 2009 in the following terms: It (the Committee of Experts for the Development of Human Rights, DH-DEV) reiterated the view which both the DH-DEV and the Steering Committee for Human Rights (CDDH) had expressed in the past that such a draft additional protocol should not be prepared at this stage, particularly as there was no clear definition of the content and the scope of this right and because it would impose extra work on the European Court of Human Rights.26 “Reservations” were reiterated during the CDDH meeting that took place on 24–27 November 2009: “the CDDH agreed with the DH-DEV’s reservations about an additional protocol to the ECHR, although it considered it worth continuing to study the question of a right to a healthy environment.”27

25  Recommendation 1885 (2009), Parliamentary Assembly, Council of Europe. Adopted by the Assembly on 30 September 2009 (32nd sitting). Source: . 26  As reported in “Overview of the recent case-law of the European Court of Human Rights and the European Committee of Social Rights on the environment”, DH-DEV(2010)02, Steering Committee for Human Rights (CDDH), Committee of Experts for the Development of Human Rights (DH-DEV), Strasbourg, 26 March 2010, document elaborated by the Secretariat, p. 3. 27  Ibid.

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Such a cautious approach is clearly at odds with the ever-growing recognition of such autonomous right in national laws and constitutions in other regional human rights systems28 and at the global level.29 The Parliamentary Assembly of the Council of Europe acknowledges this discrepancy: Setting out the individual right to a healthy environment in an additional protocol to the European Convention on Human Rights would also be an appropriate way of bringing the content of the rights protected into line with changes in society and in the concept of “human rights” (in accordance with Article 1.b of the Statute of the Council of Europe). As it is now very widely recognised as a fundamental human right, both nationally and internationally, and especially at European level, the human right to a healthy environment should naturally be included in the Convention.30 Contrary to the discussions within the Council of Europe institutions, the autonomous right has been temporarily recognised by the European Court of Human Rights as the right to a healthy and protected environment in the Tatar vs. Romania case in 2009.31 In the Tatar case, the Court refers to the right to a 28  Such as the African regional human rights framework (art. 24, Human Rights Charter, Nairobi, 1981) or the Inter-American regional human rights framework (art. 11-1 of the Additional Protocol (San Salvador Protocol), adopted on 17 November 1988). On the right endorsed in national Constitutions, see M. de Jesús Rodrigues Araujo Heilmann (2008). 29  As reported for example in the Council of Europe Parliamentary Assembly’s “Report on the Drafting an additional protocol to the European Convention on Human Rights concerning the right to a healthy environment”, Committee on the Environment, Agriculture and Local and Regional Affairs (rapporteur: Mr José Mendes Bota), under “II. The gradual recognition of the right to a healthy environment”, Doc. 12003, 11 September 2009, available on 30 June 2010 at . 30  Ibid. para. 13. 31  European Court of Human Rights (ECtHR), Tatar v. Romania case, 27th January 2009, No. 67021/01, paras. 107 and 112. The applicants (Vasile Gheorghe Tătar and Paul Tătar) are Romanian nationals who lived in Baia Mare (Romania) at the time of the Baia Mare accident. On 30 January 2000 an environmental accident occurred at the Baia Mare gold mine. The company S. C. Aurul S. A., obtained a licence in 1998 to exploit the Baia Mare gold mine. The company’s extraction process involved the use of sodium cyanide. Part of its activity was located in the vicinity of the applicants’ home. According to the studies performed by international organizations, a dam had breached, releasing about 100,000 m3 of cyanide-contaminated tailings water into the environment. The incident caused a severe pollution to ground waters, surface waters, soil and air. The substantial pollution

Introduction

17

healthy and protected environment (while, as noted above, the Parliamentary Assembly refers to the right to a healthy and viable environment). However, no obligations binding states have been clearly recognised in that case as specifically resulting from the right to a healthy and protected environment. In addition, the Court returned to its more traditional case law, whereby the recognition of the protection of the environment is not guaranteed.32 Overall, it cannot be said that the Court guarantees the autonomous right. The autonomous right is not recognised in positive law. Accordingly, this approach is not applied in this book. 1.2.6.2 The Setting of Environmental Standards According to a fourth approach not applied in the book, environmental regulation per se creates rights.33 This approach identifies regulation as making a link between environmental affairs and rights. The case law of the European Court of Justice34 and the European Court of Human Rights indirectly back such approach. As seen in the following chapters, this approach was endorsed of the Danube and destruction of aquatic life has been widely reported by the media and studied by a broad range of governmental and non-governmental organizations. S. C. Aurul S. A. had not halted its operations after the incident. The Court sanctioned the lack of appropriate measures and found a violation of Article 8 of the European Convention on Human Rights. 32  See for example ECtHR, 10 February 2011, Dubetska and Others v. Ukraine and ECtHR, 10 January 2012, Di Sarno and Others v. Italy; and ECtHR, 26 November 2013, Application No. 26040/06 (admis. Dec.), Ioana Şchiopu and Tomiţa Verzescu v. Romania. 33  On this approach see for example K. Hectors (2008), p. 165: “In general, four approaches have been used in legal practice”, and in footnote n. 7 p. 166: 4) regulatory approach: integration of environmental protection in many policy fields (this approach is the only non rights-based approach)”; and M. Pallemaerts and A. Gouritin (2011). 34  The link between the EC environmental law direct effect doctrine and environmental rights is made crystal clear in J. H. Jonas (2008), p. 167:  “The Court has also stated many times that individuals are entitled to effective judicial protection of the rights they derive from the European legal order, and that the right to such protection is one of the principles of law (. . .) as far as European environmental law is concerned, one aspect deserves our attention in particular, and that is the question of access to court and legal protection of individuals in case they feel that their ‘environmental rights’ have been infringed.” On the direct effect of environmental provisions as creating environmental rights, see for example cases C-72/95 Kraaijeveld (1996) ECR I-5403; C-287/98 Linster (2000) ECR I-6917; C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee (2004) ECR I-7505; C-431/92 Commission vs. Germany (1995) ECR I-2189; C-126/96 Inter-Environnement (1997) ECR I-7411; C-316/04 Stinchting Zuid-Hollandse Milieufederatie (2005) ECR I-9759; C-201/02

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by the European Court of Human Rights in as much as the Court sanctions the lack of appropriate regulation of dangerous activities (as in the Tatar case),35 the non-enforcement of such regulation when they exist (as in the Öneryildiz Wells (2004) ECR I-723; C-57/89 Commission vs. Germany (1991) ECR I-883; C-355/90 Commission vs. Spain (1993) ECR I-167. 35  European Court of Human Rights (ECtHR), Tatar v. Romania case, 27th January 2009, No. 67021/01, para. 112. Similarly see (ECtHR), Öneryildiz v. Turkey, No. 48939/99, 30 November 2004 (GC), Reports of Judgments and Decisions 2004-XII, paras. 89–90: “89. The positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (. . .) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life (. . .). 90. This obligation indisputably applies in the particular context of dangerous activities, where, in addition, special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks.” In the same sense, see ECtHR, 28 February 2012, Kolyadenko and Others vs. Russia. In the Kolyadenko case the applicants live in Vladivostok near a river and water reservoir. A flood affected them. The flood resulted from an urgent massive evacuation of water from the reservoir. They claimed that national authorities had violated articles 2, 8 and 13 of the Convention and 1 of the first Protocol to the Convention. The Court found that article 2 had been violated “in its substantive aspect, on account of the State’s failure to discharge its positive obligation to protect the first, third and sixth applicants’ right to life”, “in its procedural aspect, on account of the lack of an adequate judicial response as required in the event of the alleged infringement of the right to life, in so far as the first, third and sixth applicants are concerned”, and that article 8 and 1 of the first Protocol had been had been violated. Pp. 157–158 read: “The Court reiterates that the positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (. . .) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life (. . .) The Court considers that this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous. In the particular context of dangerous activities special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks.” (emphasis added)  On positive obligations see D. Xenos (2012), and more particularly pps. 57–141 and 173–203.

Introduction

19

vs. Turkey case),36 including when the infringement by a private person was recognised by a national Court but the national authorities did not act to enforce this national Court’s findings (as in the Lopez Ostra vs. Spain case).37 Ultimately and when taking into account those features, the European Court of Human Rights can conclude on the violation of the European Convention on Human Rights. Potential and Limits of Council of Europe Human Rights Law as a Gap Filler in Environmental Law 1.2.7.1 EU Law before the European Court of Human Rights: Jurisdiction of the Court This book focuses on the substantive (material) interplay between the 2004/35 and 2008/99 Directives of the EU and the Council of Europe human rights system as a public international law autonomous system. Nevertheless, it is not possible to elude the issue of interplay between the different legal systems. The author therefore needs to briefly address the question of to what extent the European Court of Human Rights has jurisdiction over claims that question the conformity of EU texts against the Convention’s requirements.38 The question is: do the obligations of States to secure the rights guaranteed by the Convention extend to the engagements undertaken by States under 1.2.7

36   European Court of Human Rights (ECtHR), Öneryildiz v. Turkey, No. 48939/99, 30 November 2004 (GC), Reports of Judgments and Decisions 2004-XII. Para. 102 reads as follows:  “However, it appears from the evidence before the Court that Istanbul City Council in particular not only failed to take the necessary urgent measures, either before or after 14 March 1991, but also—as the Chamber observed—opposed the recommendation to that effect by the Prime Minister’s Environment Office (. . .). The Environment Office had called for the tip to be brought into line with the standards laid down in regulations 24 to 27 of the Regulations on Solid-Waste Control, the last-mentioned of which explicitly required the installation of a “vertical and horizontal drainage system” allowing the controlled release into the atmosphere of the accumulated gas”. 37  ECtHR, Lopez Ostra vs. Spain, 9 December 1994, Serie A 303-C, para. 56 reads as follows: “It has to be noted that the municipality not only failed to take steps to that end after 9 September 1988 but also resisted judicial decisions to that effect. In the ordinary administrative proceedings instituted by Mrs López Ostra’s sisters-in-law it appealed against the Murcia High Court’s decision of 18 September 1991 ordering temporary closure of the plant, and that measure was suspended as a result”. 38  This is the subject of a whole new book, and will not be studied in-depth. References to such studies will be provided. What is highlighted here is the state-of-the-art, and the latest developments that occurred under the auspices of both the EU and the Council of Europe.

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EU law or international law?39 The answer provided by the Court is affirmative. The answer was given in the T.I. vs. the United Kingdom40 and Bosphorus cases.41 In other words, EU Member States can be liable before the European Court of Human Rights for implementing the acts of an EU institution.42 This is critical since, for the time being, this case law should be acknowledged in the context that the EU is not a party to the Convention and thus action against the EU as such before the European Court of Human Rights is currently not possible. Also, in the Bosphorus case the European Court of Human Rights recognised that compliance by a State with its obligations under EU law can qualify as pursuing the general interest requirement when the European Court of Human Rights performs the fair balance test.43 Once the matter falling under the jurisdiction of the Convention and the competence of the Court was established, another question is: which legal 39  Article 1 of the European Convention on Human Rights governs this question. Article 1 reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” 40  T.I. vs. United Kingdom, admissibility decision of 7 March 2000. 41  Case of Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi vs. Ireland (“Bosphorus case”), application no. 45036/98, European Court of Human Rights Grand Chamber Judgment, 30 June 2005, Reports of Judgments and Decisions 2005-VI; this case concerned a challenge under the European Convention to action taken by Ireland in giving effect to Community Regulation 990/93 concerning trade between the EEC and Federal Republic of Yugoslavia, O.J. 1993, L 102/14. This Community Regulation implemented sanctions imposed by the UN in the UNSC Resolution 820, 24 U.N. Doc S/RES/820 (April 1993). The facts of this case concerned the detention of an aircraft owned by the Bosphorus Airline (a Turkish airline, the claimant) on the Irish territory following a decision to impound by the Irish Minister of Transport. The Court grounded itself on the detention of the aircraft on the Irish Territory following the decision of the Minister of Transport to recognize the complaint to be compatible rationae loci, rationae personae and rationae materiae with Article 1 of the European Convention on Human Rights. On the case, see for example S. Douglas-Scott (2006). 42  Bosphorus case, para 153 reads as follows: “On the other hand, it has also been accepted that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the Convention.” 43  Bosphorus case, para 150: “This Court has accordingly accepted that compliance with Community law by a Contracting Party constitutes a legitimate general-interest objective”. On the fair balance test operated by the Court, see below. Addressing the structural causes of environmental degradation: fair balance requirement and pilot judgments.

Introduction

21

treatment is to be applied to national measures adopted in order to comply with EU obligations? According to the Court’s case law, the control of the Court of the national measure adopted pursuant to EU or international obligations falls under the “equivalent protection” doctrine.44 This doctrine is expressed in the Bosphorus case as follows in para. 155: In the Court’s view, State action taken in compliance with such legal obligations is justified as long as the relevant organisation (EC in this case) is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides (. . .). By “equivalent” the Court means “comparable”; any requirement that the organisation’s protection be “identical” could run counter to the interest of international cooperation pursued (. . .). However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection. From this paragraph, four rules or conditions are distinguished. First, the State can comply with EU obligations in as much the EU protects fundamental rights through substantive means and procedural means. Second, this protection must be at least equivalent to the protection offered by the European Convention on Human Rights. Third, to be equivalent, the protection offered by the EU does not have to be identical but comparable. Fourth, this equivalence is not recognised once and for all but will be reviewed. If the Court finds the “equivalent protection” criteria to be met, the State is presumed not to have departed from the European Convention on Human Rights’ requirements “when it did nothing more than implement the requirements of legal obligations flowing from its membership of the organization”.45 What is at stake here is the discretion left to States when implementing obligations created by the EU legal system. For the “equivalent protection” doctrine to apply, a fifth condition has to be met: the State cannot have discretion when complying with EU obligations. Indeed, otherwise, the “protection guarantee” afforded by the EU for the norms and obligations flowing from the EU legal system would extend to norms and obligations that even partly fall outside the control of the EU.

44  On this doctrine in the Bosphorus case see S. Douglas-Scott (2006), pp. 246–248. 45  S. Douglas-Scott (2006), p. 247.

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In the Bosphorus case, the Court operated the control of human rights’ “equivalent protection” criteria regarding the EU and the Council of Europe European Convention on Human Rights. After having referred to both substantive human rights in the EU and procedural guarantees afforded by the EU legal system, the European Court of Human Rights concluded that “the general of protection of fundamental rights provided for by the ECJ is comparable to that of the ECtHR, so that the ECtHR will only review national measures implementing EU law if ‘the protection of Convention rights was manifestly deficient’”.46 Hence, the equivalent protection doctrine has been found to apply in the EU law context. The conformity presumption applies when states do not enjoy a margin of discretion. When controlling whether the presumption in question had been rebutted in the case at hand, the Court concluded that In the Court’s view, therefore, it cannot be said that the protection of the applicant company’s Convention rights was manifestly deficient, with the consequence that the relevant presumption of Convention compliance by the respondent State has not been rebutted.47 The abovementioned shows that the European Court of Human Rights is competent to assess national measures that are adopted by states in order to comply with their obligations that have their legal source in EU or international law. Meanwhile, the protection of fundamental rights in the EU legal system is reputed equivalent to that of the Council of Europe. Accordingly, the former benefits from the rebuttable presumption that EU law respects

46  As reported in N. Lavranos (2005), p. 219. In the Bosphorus case, para. 165 reads as follows: “In such circumstances, the Court finds that the protection of fundamental rights by Community law can be considered to be, and to have been at the relevant time, ‘equivalent’ (. . .) to that of the Convention system. Consequently, the presumption arises that Ireland did not depart from the requirements of the Convention when it implemented legal obligations flowing from its membership of the European Community (. . .).” 47  Bosphorus case, para 166. The Court has been criticised by several authors for having operated a very light control in this last stage. The Court did mainly ground itself on the ECJ Advocate General’s Opinion and national case law. For a critic of the control operated by the Court, see S. Douglas-Scott (2006), pp. 250–251. The author also refers to concurring judges. In addition, it can be observed that when interpreting and applying the rights enshrined in the Convention, the Court refers to national, European Union, Council of Europe and international law.

Introduction

23

the requirements of the European Convention on Human Rights. Eventually, assessing EU (environmental responsibility) Directives against the European Convention on Human Rights makes sense. Such a case could actually be brought before the European Court of Human Rights. As mentioned above, most of the difficulties when assessing EU norms at the Council of Europe level flow from the fact that the EU is not a party to the European Convention on Human Rights. Consequently, there are “two catalogues” of human rights at the European level: one under the remit of the EU (the EU Charter of Fundamental rights and the rights recognized by the EU Courts), and one under the Council of Europe (the European Convention on Human Rights). The issues of concern are mainly of two kinds. The first one is one of jurisdiction: does the European Court of Human Right have jurisdiction over national norms having their source in EU/international legal systems? It has been seen just above that the Court granted itself such jurisdiction, while granting the EU legal system with a rebuttable presumption that the EU legal system does guarantee fundamental rights consistently with the Council of Europe’s protection. The second concern deals with the substance of the rights. With two legal systems and judicial bodies, scholars contend there is the risk that the European Court of Justice and European Court of Human Rights could grant the same rights with distinct substantive content. This is all the more relevant since the EU Charter of Fundamental Rights was granted a legally binding force by the Lisbon Treaty.48 This binding force could generate a great number of cases to be brought before the European Court of Justice. Finally, the consistent interpretation principle arguably forms a safeguard that such dual fundamental rights protection systems would not contradict one another. The Lisbon Treaty not only recognises the legally binding character of the EU Charter of Fundamental Rights. It also offers the possibility for the EU to 48  Treaty on the EU, Article 6 (1) (ex Article 6 TEU) provides: “The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.”

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be party to the European Convention on Human Rights.49 When the adoption process is completed, the “dual catalogue” problem (rights guaranteed by EU law and Council of Europe law) will eventually be over. 1.2.7.2

The EU’s Accession to the European Convention on Human Rights: Insights for the Interplay between EU Law and the Convention The relationship between the Council of Europe human rights law and EU secondary norms is slightly more complicated. Insofar as the EU has not yet acceded the Council of Europe European Convention on Human Rights, a point of entry for Council of Europe human rights law can be identified in the combined reading of Article 51(1) and Article 52(3) of the Charter of Fundamental Rights of the European Union. According to Article 51(1) the Charter binds EU institutions, including in their legislative functions,50 and Article 52(3) provides with the “consistent interpretation” principle: whenever a right guaranteed by the Charter is guaranteed by the Council of Europe Convention on Human Rights, these rights must be interpreted according to the interpretation given by the Council of Europe Court for Human Rights (for example, right to property).51 Several points of entry for environmental related rights recognised by the European Court of Human Rights can be identified in the EU Charter. 49  Treaty on the EU, Article 6(2) and (3) (ex Article 6 TEU) read as follows: “2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties. 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.” 50  Article 51(1) of the EU Charter reads: “The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.” 51  Article 52(3) of the EU Charter reads: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

Introduction

25

Article 37 directly relates to the environment52 and the EU Charter guarantees the rights through which the European Court of Human Rights has received environmental related affairs (right to property,53 to life,54 to family life,55 freedom of expression56 etc). In this book attention is directed to the interplay between Council of Europe human rights law and EU environmental responsibility law. Cases where Council of Europe human rights law conflicts with, confirm or complement EU environmental responsibility law are identified. Attention to the interplay between EU secondary law and Council of Europe human rights law in those terms (conflict/confirmation/complement) is by no doubt to become very common in literature and EU studies once the EU will have acceded the European Convention on Human Rights.57 In its very recent Opinion 2/13 dated 18 December 2014 the EU Court has elaborated a little bit on the status of the European Convention on Human Rights within the EU legal order.58 The findings of the Court illustrate that the study of the interplay between EU (secondary) law and Council of Europe human rights law is very relevant. In this case, the Court had to assess whether or not the draft agreement providing for the accession of the European Union to the European Convention on human rights is compatible with EU law. The Court found that the draft agreement is not compatible with EU law on several grounds. Of interest for the purpose of that book, the Opinion of Advocate General Juliane Kokott

52  Article 37 of the EU Charter reads: “a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.” 53  EU Charter, art. 17. 54  EU Charter, art. 2. 55  EU Charter, art. 7. 56  EU Charter, art. 11. 57  The purpose of this section is not to provide a detailed analysis of the accession. On the accession see for example V. Kosta, N. Skoutaris, and V. Tzevelekos (Eds) (2014); and more particularly A. Drzemczewski (2014), “The EU Accession to the ECHR: The Negotiation Process”, in V. Kosta, N. Skoutaris, and V. Tzevelekos (Eds) (2014), pp. 17–28 and O. De Schutter (2014), “Bosphorus Post-Accession: Redefining the Relationships between the European Court of Human Rights and the Parties to the Convention”, in V. Kosta, N. Skoutaris, and V. Tzevelekos (Eds) (2014), pp. 177–198. 58  EUCJ Opinion 2/13, 18 December 2014 (Full Court), not yet published. On this Opinion, see A. Gouritin (2015)a and A. Gouritin (2015)b.

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elaborates on the interplay between EU law and the Council of Europe Convention on human rights. The Court recalls its settled case-law on the current legal status of Council of Europe human rights law: in accordance with Article 6(3) TEU, fundamental rights, as guaranteed by the ECHR, constitute general principles of the EU’s law. However, as the EU has not acceded to the ECHR, the latter does not constitute a legal instrument which has been formally incorporated into the legal order of the EU.59 The Court also recalls its settled case-law on the future legal status of Council of Europe human rights law once the EU will have acceded to the Convention: By contrast, as a result of the EU’s accession the ECHR, like any other international agreement concluded by the EU, would, by virtue of Article 216(2) TFEU, be binding upon the institutions of the EU and on its Member States, and would therefore form an integral part of EU law.60 The View of Advocate General Juliane Kokott is (as all her Views) much more elaborated. She reflects on “the future ranking of the ECHR within the hierarchy of norms of the EU legal order.”61 The Advocate General puts forward that in her views Council of Europe human rights law will have an “intermediate ranking”, between primary and secondary law.62 The Advocate General 59  EUCJ Opinion 2/13, 18 December 2014 (Full Court), p. 179. 60  Ibid. p. 180. 61  EUCJ, View of Advocate General Kokott, Opinion Procedure 2/13, delivered on 13 June 2013, p. 200. 62  Ibid., p. 201:  “as an international agreement concluded by the EU, the ECHR will rank between primary law and other secondary legislation. The ECHR will thus have precedence over other secondary legislation, because it is binding upon the institutions of the EU (Article 216(2) TFEU). At the same time, however, it will be subordinate to primary law, because the proposed accession agreement is negotiated by the Commission and approved by the Council, and is therefore subject, as an act of EU institutions, to review by the Court of Justice as to its legality (see the first paragraph of Article 263 TFEU, the first paragraph of Article 267 TFEU and, already at a preliminary stage, Article 218(11) TFEU). That cannot be altered by the fact that this accession agreement requires approval by the Member States in accordance with their constitutional requirements (last part of the second subparagraph of Article 218(8) TFEU).”

Introduction

27

underlines that Council of Europe human rights law will have precedence over secondary law. This is of importance for our purposes. Adding to the current points of entry for Council of Europe human rights law within EU law the validity of the content of EU environmental responsibility law (Directives, i.e. secondary law) will be assessed against Council of Europe human rights law after the accession of the EU to the Convention. 1.2.7.3

The Potential to Address Structural Causes: Fair Balance Requirement and Pilot Judgments In this book the focus is on mutual support between human rights protection and environmental protection. The actual potential for the mutual support hypothesis that is explored in the book remains to be introduced and reflected upon. A recurrent criticism directed towards environmental rights claims is their “symbolic gestures”.63 It has been contended that environmental human rights claims do not address the environmental degradation produced by the everyday operations of the capitalist political economy. (. . .) the legal focus on individual actors reveals a retrospective tendency of law to identify and punish guilty individuals rather than pro-actively address structural, or culturally determined, causes of justice. Thirdly, and most importantly, the function of law will be argued to be to institutionalize, rather than challenge, existing power relations.64 Furthermore, The focus on agents is however inadequate for the task of implementing human rights when rights violations are produced by the cumulative actions of individuals or institutions that together constitute structural The Advocate General then elaborates on the specificities of Council of Europe human rights law. More specifically, she elaborates on the special status of the latter, including in cases where it would conflict with primary law. See pp. 202–206. Among others, the Advocate General argues that  “the fundamental rights protected by the ECHR are to be taken into account in the interpretation and application of EU primary law, and that a careful balance must always be struck between those fundamental rights and the relevant provisions of primary law” (p. 204). 63  This criticism is reported in M. Anderson (1998), p. 22. 64  J. Hancock (2003), p. 82.

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processes which have been internalized as normal by members of the society.65 Without taking position on the accuracy of those statements, two arguments can be put forward to at least nuance the above criticisms. First, the fair balance requirement (or “proportionality” requirement) operated by the European Court of Human Rights can be seen as a mechanism that enables the Court to question the political choices of states triggered by the power relations influenced by the “capitalist political economy”. Here, such power relations result in the adoption of environmental regulations, standards, lack of enforcement of these, or lack of environmental regulation at all. Individual applicants, when questioning these before the Court, contend that they infringe their rights as guaranteed by the European Convention on Human Rights and interpreted by the European Court of Human Rights. The fair balance requirement is, as seen in the following chapters, a test that is performed by the Court. The Court assesses whether a national authority’s action or lack of action respects the European Convention on Human Rights’ requirements. This test is performed for rights that are being interfered with.66 When operating the “fair balance test” the Court assesses whether a fair balance has been reached when considering the objective of the measure on the one hand (for example the social and economic impact resulting from the construction of a road), and the consequences of the interference for the individual’s fundamental rights (for example the loss of aesthetic value of the landscape surrounding the applicant’s home). The European Court of human rights has more room to operate when applying the “fair balance test”, compared with the two other tests performed by the Court (legality and legitimate goal of the national authority’s interference with the rights guaranteed by the Convention). The Court’s case law covering environmental concerns heavily relies on this requirement. By operating the fair balance test, the Court will actually review the outcome of the power relations that lead to the adoption of environmental regulations, standards, lack of enforcement of these, or lack of environmental regulation at all, through the assessment of the national measure’s goal. The second potential for the Court to address structural problems, the “pilot judgment” technique enables the Court to process repetitive cases and freeze 65  Ibid. p. 85. 66  It is this interference that is assessed against the Convention’s requirements. On the contrary, other rights can never suffer any interference. This is the case for example with the prohibition of torture.

Introduction

29

pending cases. This procedure is a tool used by the Court at the service of the Committee of Ministers and states for the better execution of certain cases. It does not modify the obligation of national authorities to adopt general measures following a judgment.67 The added value in addressing the structural problem noted above is twofold. On the one hand, the “pilot judgment” technique is used when the individual applications derive from the same structural cause as an earlier application that has led to a judgment. A judgment that has found a breach of the Convention and large-scale problems might generate a rash of cases.68 Hence, the structural problems eventually resulting in environmental wrongs are actually addressed. On the other hand, the “pilot judgment” technique “is an extension of the Court’s practice of making recommendations”.69 In pilot judgments, the Court specifies the general measures to be adopted by the state70 and can go as far as specifying the time period for the state to implement the general measures specified.71 The indication of measures was an exception and relates to the existence of large-scale systemic problems. The practice continued and is no longer seen as an exception.72 This technique, just like the fair balance requirement, enables the Court to go beyond the “symptoms” and to address the roots of environmental protection affairs. Still, for the time being, no such judgment has (to the knowledge of the author) been delivered in a case with environmental related matters. 1.2.7.4 Questioning the Potential: Four Structural Difficulties Despite the potential of the court and the human rights approach, its limits cannot be ignored. At least three structural problems can be identified. First, no reference is made to the environment in the text of the European Convention on Human Rights. It has been seen above that the Court had a very dynamic approach going as far as the recognition of the right to a healthy and protected environment. Yet at the same time, the temporary recogni67  E. Lambert Abdelgawad (2008), p. 53. 68  Ibid. p. 51. 69  Ibid. p. 48. 70  See for example Broniowski vs. Poland ECtHR, Grand Chamber, 22 June 2004. On this case see the references given by E. Lambert Abdelgawad (2008), p. 48. 71  E. Lambert Abdelgawad (2008), p. 50. 72  While some criticise that this practice conflicts with the principle that states were free to choose the means of executing judgments. As reported in E. Lambert Abdelgawad (2008), pp. 52–53.

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tion of such right in an additional Protocol to the Convention is, as has been seen, highly debated. At the time of writing, the Convention and Court do not overridde this limit. A second reason to doubt the European Court of Human Rights as a relevant forum to advance environmental claims is the heavy workload of the Court that eventually results in very long time delays before a case is heard (provided that the case passes the admissibility stage). Long delays conflict with the nature of environmental cases that to an ever-greater extent raise issues of risk of infringement of human rights73 and require a prompt outcome of the proceedings. The increasing workload of the Court is a symptomatic problem that could at least partly be solved with the adoption of Protocol 14 which entered into force on June 1st 2010.74 Protocol 14 raises a third doubt. It adds a supplementary admissibility requirement, that the applicant must have suffered a significant damage.75 For the time being it remains unclear whether the significant damage requirement will limit the possibility of bringing cases that have an environmental dimension before the Court. In the recent Borg and Vella Decision the Court has presented the critera implied by the requirement.76 First, the Court states that it is the responsibility of the Court to establish the criteria implied by the requirement: The main element contained in the new admissibility criterion is the question of whether the applicant has suffered a “significant disadvantage”. It is common ground that these terms are open to interpretation and that they give the Court some degree of flexibility, in addition to that already provided by the existing admissibility criteria. In the Court’s view, these terms are not susceptible to exhaustive definition, like many other terms used in the Convention. The High Contracting Parties thus expected 73  For example wind turbines threatening nearby houses or risk on health created by an operating plant polluting ambient air. 74  Council of Europe, Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, Strasbourg, 13 May 2004. 75  Article 35(3)(b) of the Convention states that  “The Court shall declare inadmissible any individual application (. . .) if it considers that (. . .) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.” 76  ECtHR 3 February 2015, Application No. 14501/12 (admis. Dec.), Borg and Vella v. Malta

Introduction

31

the Court to establish objective criteria for the application of the new rule through the gradual development of the case-law.77 The Court then sets out the criteria established so far. They depend on the circumstances of each case. The minimum level of severity of violation of a right should be assessed, taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case (. . .). Thus, the absence of any such disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (. . .). Moreover, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting pecuniary interests.78 In the case at hand the applicants were complaining that the expropriation of parts of their lands with a view to incorporating them into a protected green area had violated, among other things, their rights to property and to a fair trial. The Court concluded that the case at hand did not meet the significant disadvantage requirement. Further research and screening might establish if the new requirement would limit the possibility of bringing cases that have an environmental dimension before the Court. It is only possible to note that this requirement (whose content is left at the discretion of the Court) could seriously limit the role of the Court in environmental cases. It would depend on the application of the criteria applied to environmental cases, that is to say to the importance given by the Court to environmental nuisances and pollution and to the development of the Court’s case law that applies to cases that have an environmental dimension. A fourth structural difficulty lies in the expertise the judges have. Some authors question whether the judges have sufficient expertise. Is the European Court of Human Rights the correct forum to advance environmental claims? It is also questionable whether the ECtHR is the right forum for environmental litigation. Modern dispute settlement systems and compliance mechanisms already enable individuals and particularly NGOs to play a role in environmental protection. The ECtHR, on the other hand, might be said to lack sufficient expertise to litigate complex environmental

77  Ibid., para. 39. 78  Ibid., para. 40.

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problems, as the selection of judges focuses on human rights rather than environmental expertise.79 This doubt is not only expressed towards the judges sitting in the European Court of Human Rights, but is a basic and recurrent problem that emerges before all judicial bodies at national, European and international levels.80 While not denying the issue, it can nevertheless be highlighted that the issue is broad and refers to the relationship between the legal system and the scientific, technical expertise in the area of environmental law. Also, this criticism would ultimately lead to the denying of any role for judicial bodies to play in assessing environmental regulation and standards that affect individuals and the community. This assumption would not only create a whole regulatory area that would escape the control of judicial bodies, it would also clash with the possibility offered to citizens to advance environmental rights. More specifically, it would hamper environmental procedural rights such as access to justice that are recognized in the Aarhus Convention. As for the criticism expressed against the European Court of Human Rights, it can be expected that the information presented before the Court and inferred from the proof requirements lying on both the applicant’s and the State’s shoulders would ease the task of the Court. Furthermore, the Court has already shown the ability to capture the complex nature of environmental affairs (dealing with for example, ambient air pollution by toxic substances). The Court has already had to take on board reports and scientific studies, for instance to establish causality between pollution and health problems. The more serious concerns on the appropriateness to advance environmental claims before the European Court of Human Rights seem to be of a conceptual nature. 1.2.7.5

Questioning the Potential: The Anthropocentric and Individual Nature of the Rights Guaranteed Next to structural problems, there are also serious conceptual problems with Council of Europe human rights law. The first conceptual difficulty relates to the anthropocentric nature of the rights guaranteed by the European Convention on Human Rights as interpreted by the European Court of Human Rights. The issue at stake here is a dilemma of the place of human beings in ecosystems, and whether human beings are a part of nature or not. When seen 79  C. Schall (2008), p. 446. 80  On the proposal to create “specialist environmental courts” and the criticisms of such proposals, see T. Hayward (2005), pp. 110–119.

Introduction

33

through the rights prism, the questions are for example: do the rights encompass the intrinsic value of the environment? Must any right be deduced from such value? To whom can this right be applied? The matter is first of all one of legal definition. It can only be agreed, together with some scholars, that the Court has a very anthropocentric reading of the rights already phrased with a greatest weight of significance on humans. C. Schall pointed out a “categorisation” of the environment: In determining how the applicant must be affected in order to be a victim, the Court holds on to a particular categorisation of the environment: some parts of the environment, like forests, are more important than others such as wetlands. Generalising the Court’s arguments, individuals may have a legitimate interest in certain types of environmental resource if this environmental resource has an objective use value (such as a forest) and a direct impact on the individual. Mere existence values of resources that are more widely shared (like wetlands or biodiversity) can thus not be protected by the ECtHR even if the applicants, as in Kyrtatos, have a special interest in that particular part of the environment.81 This anthropocentrism can be explained by the lack of reference to the environment in the Convention. Consequently, the Court has had to wonder whether an environment protection case falls under the scope of a right guaranteed by the Convention, not only for admissibility matters as is highlighted in the extract above, but also when elaborating on the mere substance of the rights guaranteed by the Convention.82 Indeed, environmental protection affairs do not have an autonomous basis: “A violation of these norms (the norms guaranteed by the Convention, for example right to life) is not one of ‘environmental norms’, but of human rights.”83 This could evolve if the Court was to elaborate on the right to a healthy and protected environment as it did in the Tatar vs. Romania case and provide such a right with material content (i.e. rights and obligations flowing from such a right). 81  C. Schall (2008), pp. 428–429 82  Ibid. p. 445:  “Another problem is that rights protected by human rights courts are entirely anthropocentric. In Europe and America it is not only the procedural law requiring the applicant to be a victim that presents a problem. Some of the battleground also lies in the substantive law which obviously affects the notion of ‘victim’: if there is no sufficiently qualified victim, there is no violation of the respective human rights provisions and vice versa”. 83  Ibid.

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The second conceptual difficulty is the individual nature of some rights enshrined in the Convention that conflicts with the intrinsic collective dimension of environmental claims. Indeed, the rights guaranteed and usually canvassed to advance environmental claims (for example life, private life, property) are regularly criticised for having an individual dimension that does not fit, prima facie, with the collective dimension of environmental protection claims, and more particularly the collective dimension of environmental harm.84 The individual dimension can be opposed to “absolute” or “relative” collective human rights and environmental rights dimension. This collective dimension deserves to be further explored. Concentrating first on the absolute collective dimension, when reference is made in this book to the absolute collective dimension of human rights and environmental rights (or “universal human interest” elaborated on by J. Hancock),85 the reference does not cover the universal interest shared by all, but grounding a cause of action when in concreto an individual has to put forward such a right. An example of such “absolute collective interest” would be, for example, when a plant causes toxic air pollution. A resident who suffers asthma advances that his right to health has been unduly infringed. This does not reflect a collective dimension in as much as this rather reflects an interest that is shared by all but finds an application in a particular case. The individual advancement of such interest reflects an individual dimension. In other words, the interest shared by all to enjoy an environment free from toxic air pollution can only have an individual application. This is opposed to the universal human interest canvassed in the substance of a right that grounds a cause of action for the human community. Examples of such rights are to be found for instance in jus cogens rules, the right not to suffer hunger or the right to water. The difficulty with “human community” rights lies specifically in the “human community” dimension, its implementation in law and application in environmental affairs. Such problems appear when considering for example the human community right not to witness species disappearing because of anthropogenic factors (for example, a species under the threat of extinction being hunted). Understood in that way, one is confronted with universal human interests vested as human community rights. This human community dimension echoes the current (and recurrent) debates surrounding the recognition of future generations’ rights, the effective implementation of intra and intergenerational justice, and the works related to climate change.86 84  As demonstrated in chapter 2 of the book. 85  J. Hancock (2003), p. 133. 86  See S. Humphreys (2010).

Introduction

35

Between this absolute human community dimension and the individual dimension, it is possible to distinguish what can be labelled the relative collective dimension. It refers to the rights vested in a particular group. This group can be seen as a fraction of the human community or as the aggregate of several individuals. This relative dimension finds numerous applications in environmental claims, for example, a lake’s pollution affects not only an individual, but also all the neighbours of the lake. Another example would be the pollution of ambient air in a particular neighbourhood by a plant. Here, the collective dimension is to be found in the application of the right (as opposed to the substance of the right, see above).87 The distinction between the individual dimension and the relative collective dimensions seems to lie in the affected environment and the type of harm to the environment which leads to consequences for the affected portion of the collective dimension. This aspect is linked with the categorisation of the environment performed by the Court. Nevertheless, the analogy is limited insofar as the issue here is not to determine if a collective dimension hinders the case from falling under the scope of a human rights provision, solely because of this collective dimension. In fact, the issue at stake here is precisely the contrary: the recognition of the relative collective dimension results in the stretching of the effective application of the rights infringed, not the opposite. The recognition of legal consequences attached to the collective dimension finds numerous concrete applications in environmental affairs before the Court, as seen in the following chapters. However, the human community or some individuals as a community being recognised as rights-holders and subjects of law raises another issue. Can the relative or human community collective dimension be put forward and recognised by the Court? Who is to be regarded as competent to claim and exercise the collective rights concerned?88 The issue of identifying the human community or group’s rights-holders is extremely difficult and controversial.89 This issue is reflected, amongst others, in the admissibility requirements before the Court. It is settled case law that the Court refuses actio popularis and, accordingly, the applicant must prove a special interest. In short, environmental rights require a communal rather than an individual basis. That is precisely where the problems arise with the European Convention on Human Rights and the rights canvassed when advancing 87  With the exception of the substance of the right to a healthy and protected environment that would de lege ferenda allow for the collective dimension of the right to be enshrined both by its substance and application. 88  See for example J. G. Merrills (1998), p. 33. 89  Ibid. pp. 31–34.

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environmental claims. These rights mostly have an individual dimension.90 The recognition of an autonomous right to a healthy and protected environment could have an added value in the move towards a collective dimension of environmental rights, not only for its substantive collective dimension, but also to fill the Convention’s admissibility requirements.91 Depicting the obstacles and difficulties in linking environmental rights and an intrinsic collective dimension despite the individual capture of human rights should not be over-estimated. For example, the Inter American system of Human Rights defined the right to life as having an initial individual dimension with a collective dimension through the vector of water.92 Legal scholars also propose solutions.93 There remains to draw a quick panorama regarding environmental responsibility. The overview in the two sections that follow introduces the basic concepts and methods used in this book. 1.3

Introduction to Environmental Responsibility

Research Limited to Environmental Responsibility: Fault, Due Diligence and Obligation of Result Unlike the Latin vocabulary, the English vocabulary distinguishes between responsibility and liability. In this book, the responsibility paradigm is the focal point. The book does not deal with restoration or compensation obligations. Responsibility refers to the subject of law and the relation between the subject of law and the obligation compelling the subject of law (primary rules and 1.3.1

90  With the obvious exception of rights whose substance and application have a collective dimension, such as the freedom of assembly and association. European Convention on Human Rights, Article 11(1) provides:  “Article 11—Freedom of assembly and association. 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.” 91  However, if admissibility requirements were also conceived to have a collective dimension, another problem would appear: the dilution of the individual interest within the public interest. 92  On this Ecuadorian case dealing with the Huaoranis’ rights and the references see A. Fabra (1998), and more particularly p. 261: “According to the IACHR (Inter American Commission on Human Rights), ‘water is life’ and, in so far as water negatively affects life and health, government inaction could result in a violation of the right to life as guaranteed in the American Convention.” 93  See for example M. Peña Chacón (2013)a y (2013)b.

Introduction

37

obligations). These obligations can be framed as the obligation not to be at fault (for example, not to be breach existing regulations), the due diligence obligation (understood as the duty to prevent, reduce and control environmental harm), and the obligation of result (understood as the duty not to generate environmental damage and harm, or the “protection obligation”).94 Some scholars claim autonomy follows from this notion of responsibility. Responsibility is not only concerned with a breach of an obligation, but also encompasses the obligation itself (i.e. its content, its scope).95 Liability refers to the legal situation created by a breach of obligations binding the subject of law (secondary rules and obligations). Pragmatically, the definition used in the book is useful in order to clearly delineate the object of research: the book does not deal with restoration and compensation obligations understood, for the author’s purposes, as secondary obligations. Responsibility is also to be distinguished from accountability: the latter relates back to governance matters and is more specifically used by political scientists. In order to avoid any confusion, the definition of responsibility and liability used in the book is to be carefully distinguished from the definition of responsibility and liability used by scholars who retain the definition used in international law. The definitions of responsibility and liability used in international law reflect the specificities of international law. In principle, a State could be responsible only provided that an illicit act could be attributed to the State, or to its authorities. International law has evolved, because this requirement was an obstacle to having States or national authorities held responsible for environmental damage. It appeared very clearly that environmental damage generated by States or their authorities were not caused by wrongful acts but by the mere operation of dangerous activities (for example, the fumes of a plant). As a result, international law distinguishes between responsibility based on wrongful acts (i.e. based on fault and potentially extending to the due diligence obligation or obligation of result) on the one hand and liability (cost-allocation) for non-wrongful acts on the other hand. Liability refers to cases in which 94  On environmental responsibility and fundamental obligations (“dever”), see T. Antunes (2006): “Vejamos, então, o que é que—em concreto—o dever fundamental de respeitar o ambiente acrescenta face ao direito fundamental homónimo. Daquilo que temos vindo a afirmar resulta que a consideração autónoma do dever fundamental em apreço permite enquadrar e compreender melhor uma série de realidades relativas ao ambiente, as quais nunca poderiam caber no âmbito do respectivo direito fundamental. Nestes termos, importa verificar que realidades são essas”. 95  See for example P. Gautier (1996), pp. 385–387.

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the State or national authorities must answer for acts that are not wrongful. Typically, this would be the case when liability is researched in the context of dangerous activities.96 The distinction is not hermetic: if a reparation obligation that follows from liability is not respected, the State can be held responsible for breaching the reparation obligation. In this book the definitions used in international law are not used for several reasons. These definitions reflect the specificities of international law, but the starting point of the book is EU environmental responsibility law endorsed in EU secondary law (Directives 2004/35 and 2008/99). In addition, Directive 2004/35 does not reflect the distinction that is put forward by other scholars: responsibility schemes that reflect tort law vs. liability schemes (a regulatory-administrative model). Directive 2004/35 does not correspond with this distinction because, as will be seen at more length below, the Directive was inspired by a civil law mechanism (the Council of Europe Lugano Convention on civil responsibility for damage resulting from activities dangerous to the environment) but then turned to mainly reflect the administrative approach. Some “tort” elements nevertheless remain in Directive 2004/35. The distinction between tort and administrative model cannot, therefore, be of help in order to clearly limit the scope of application of the book. (In)Dependence of Environmental Responsibility: From Environmental Law and Responsibility Law to Environmental Responsibility Law Some scholars raise the autonomy of environmental responsibility as an issue to be tackled.97 These aspects are developed at more length in the concluding chapter. For the time being, it can be mentioned that this issue relates back to the relationship between EU environmental responsibility frameworks and other legal branches (for example EU environmental law, EU law or other responsibility rules). This aspect is recurrent in the book. 1.3.2

96  This distinction has been recognised by the International Law Commission that has codified Draft articles on Responsibility of States for Internationally Wrongful Acts adopted in 2001 on the one hand and Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities adopted in 2006 on the other hand (emphasis added). For studies on international responsibility and liability in the context of environmental damage, see among others F. Francioni and T. Scovazzi (Eds.) (1991), E. Orlando (2010) and A. V. S. Besalu Parkinson (2005), pp. 355–366. 97  See for example F.-G. Trébulle (2009), pp. 18–19 and the references he gives regarding the conditions for autonomy to be recognized.

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The autonomy of environmental responsibility can be seen firstly in terms of the specificities of the mere concepts at stake.98 The specificity of these concepts calls for the independent legal treatment of the concepts.99 For example, if the concept of environmental damage is autonomous, the concept does not have to conform to or reflect “traditional” notions of damage. The traditional legal notions do not have to be broadly defined in order to incorporate the legal notion of environmental damage and harm: the latter have their own legal standing.100 Also, environmental responsibility law is specific from other responsibility rules. Environmental responsibility rules can be set without relying on or reproducing the reasoning and constructions set for other responsibility frameworks (for example with regard to the causal link requirement or prescription). Eventually, EU environmental responsibility law is specific when it is compared to EU environmental law. This regularly appears in the book. The term used by scholars is independence rather than autonomy or specificity. Some authors, such as M. Faure, hold that EU environmental responsibility law is not independent from EU environmental law.101 Other scholars claim that this dependence tends to lower EU environmental law standards and requirements.102 Some scholars do not discuss the relationship between EU environmental responsibility law and EU environmental law, but rather tackle this matter in terms of coordination.103 In this respect, one could try to delimitate where environmental responsibility law begins and ends. Is EU environmental law constructed as a legal sui generis framework? If it were a sui generis framework, it would exclusively deal with one category of object: environmental damage and harm. Accordingly, the legal definition of environmental damage would delimitate where environmental damage stops and other responsibility frameworks apply. Concretely, where does environmental damage as defined 98  For example the specificity of environmental damage and harm. 99  For example environmental damage/harm being distinct from the so-called “traditional” damage and harm, typically, harm to property. For the definition of “traditional damage”, see Directive 2004/35, Preamble, Recitals 11 and 14. 100  This will be elaborated on in chapter 2. 101  This will be discussed and criticised at length in all the following chapters. 102  See for example F. Comte (2003), pp. 153–156. 103  In that sense, see Accompanying document to the Proposal for a directive on the protection of the environment through criminal law, Impact Assessment, COM(2007) 51 final SEC(2007) 161, 9 February 2007, p. 39, and L. Neyret (2009), pp. 71–78, who call for a “coexistence” between common rules and special rules from the 2004/35 directive, and F.-G. Trébulle (2008), pp. 37–45.

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in Directives 2004/35 and 2008/99 begin? What are the rules to be applied in order to know whether a “traditional damage” with an environmental aspect in a given case (for example property harm having an environmental source) begs the application of “traditional rules” and excludes the application of the Directives? Is a responsibility framework covering “traditional damage” applicable, insofar as the Directives do not define the damage at hands as an “environmental damage” and hence calls for “traditional rules” to apply? Or do they both apply concomitantly?104 The question is then phrased in terms of exclusion, coordination, and articulation. Another example is the Directives’ scope of application regarding other environmental responsibility frameworks, for example the international regime for the compensation of oil-pollution damage. The question is then phrased in terms of ad-hoc responsibility frameworks vs. “generic” responsibility rules.105 The Directives answer to these matters of articulation.106 Three Functions of Environmental Responsibility: Compensation, Prevention and Sanction Environmental responsibility rules are seen as one of the four “principal domains” of pollution regulation.107 Much has already been written on the rationale of environmental responsibility law and its three dimensions: criminal, civil and administrative.108 In a simplistic manner, one could say that criminal responsibility law primarily fulfils a repression function: the aim is to void the social trouble caused by a criminal illegal act. Civil responsibility law primarily fulfils a compensation function: the aim being to compensate 1.3.3

104  Factors that can call for the legal definition of environmental damage as covering a given factual event (pollution among others) and accordingly excluding the application of “traditional rules” can be: the difficulty to prove the causal relationship, the scale of damage (for example catastrophic one), the difficulty to identify a “polluter” or a “victim”, etc. On the issue of environmental damage, see L. Neyret (2009), pp. 72–75 who calls for “coexistence” between common rules and special rules from Directive 2004/35. 105  In French: “droit spécial” vs. “droit commun”. 106  For Directive 2004/35, see Preamble, Recitals 10–12, 14, Articles 3(3), 4(2), 4(3), 4(4); and for Directive 2008/99 see Preamble, Recitals 3, 11. 107  The three others are purely co-operation rules (for example information exchange, notification, consultation), substantive rules (for example what is required from a State in terms of pollution control, reduction and prevention: means of control to be imposed on individuals, tax measures), and jurisdictional rules (for example competence of States to adopt national rules). See for example J. Ebbesson (1996), p. 28. 108  The specific rationale of Directives 2004/35 and 2008/99 will be touched upon later, regarding competence matters.

Introduction

41

the damage suffered by the victim. Public (hereafter “administrative”) responsibility law fulfils a prevention function (some scholars refer to the notion of organisation).109 This view is much too simplistic and does not reflect that each environmental responsibility system fulfils more that just one function. In the following, the author does not compartmentalise the functions of civil, administrative, and criminal environmental responsibility. Distinctions are made below as to the three functions generally identified: restoration, prevention, and sanction,110 and these functions are then elaborated on in the civil, administrative and criminal contexts.111 It is possible to identify where the gravity of the Directives lies. The functions of environmental responsibility law are not to be considered mutually exclusive, but rather as a whole: all the functions complement each other while remaining independent from each other.112 1.3.3.1 Restoration and Compensation Legal scholars and positive law largely endorse the restoration and compensation function of environmental responsibility. L. Bergkamp puts it very clearly regarding the civil responsibility system: 109  G. Dellis (1997), p. XIX: “le droit administratif est organisation, le droit pénal est répression”. 110  Many more functions have been described by legal scholars but we will focus on the three most endorsed by legal scholars and positive law. For more functions, see L. Bergkamp (2001), p. 70. 111  Since this book does not focus on the functions of responsibility, the author does not devote lengthy developments to the issue. The author provides references for such indepth studies. In addition and as stated above, this book is not meant to elaborate some normative statements. In the following developments the author doe not justify the claims on the instrumental analysis of environmental responsibility. When the author refers to the functions of environmental responsibility, it is exclusively to report on scholars who question the Directives’ substance. For an instrumental analysis, see L. Bergkamp (2001), pp. 67–69, p. 67: “Throughout this chapter, the key question is what objectives we are (and, given the nature of the responsibility instrument, should be) trying to pursue through our responsibility system and whether responsibility is the best way to pursue these objectives”, and ibid. p. 70: “Responsibility law is generally viewed as a ‘human artefact’, a social institution which exists not for its own sake but for the achievement of human goals and the performance of social functions”, footnotes omitted. On the notion of “ecocrime” and responsibility for ecocrime, see L. Westra (2004), more particularly pp. 145–190. See also C. Pérez Vaquero (2009) who defines the notion of “ecocide” (“ecocidio”) and reports on developments of this notion at the national and international level and A. V. S. Besalu Parkinson (2005), pp. 361–364. 112  As for the complementarities between reparation and prevention, see for example N. de Sadeleer (2006), pp. 91–92. See also R. Pereira (2007), p. 257, footnote n° 26.

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Responsibility rules shift a loss from the person initially suffering it to another person that is responsible for it (. . .) An important feature of a responsibility rule is that it channels the obligation to bear a loss to a specifically identified category of persons.113 Thus, a responsibility rule has two functions: the person that initially suffered loss is made whole and the liable person must pay the former an amount equal to the loss, as a result of which the liable person will bear the loss.114 As for criminal environmental responsibility, the justification lies on retributive grounds: repression constitutes compensation. The compensation function is linked with fairness concepts. Fairness (or justice) triggers environmental responsibility: it would guarantee the victims’ protection.115 Some authors believe victims’ protection is a goal of civil responsibility.116 In addition, the compensation function relates back to the debate regarding the identification of the liable person: should this identification reflect a “deep pocket” approach? Or should responsibility be based upon, for example, risk spreading? The question then becomes: who is liable for the risk created and the subsequent costs?117 Some authors challenge the compensation function in the environmental responsibility context on several accounts. For instance, the difficult and debated issue of who should receive compensation for environmental damage is yet to be solved.118 Do NGOs or individuals have any 113  L. Bergkamp (2001), p. 70, ibid. p. 73: “In the environmental context, cost internalization requires that currently ‘externalized’ environmental costs (possibly including natural resource damage) caused by activities are imposed on those activities”. 114  L. Bergkamp (2001), pp. 70–71. 115  On this aspect see for example K. De Smedt (2007), p. 56. On the fairness debate see also E. Brown-Weiss 1989), pp. 47–89, 188–190, 212, and 270–278. One could nevertheless claim that in such an approach, victims are not protected but compensated: see L. Bergkamp (2001), p. 72. The “deep pocket” approach is linked to the redistribution of income and wealth. Law and economics scholars usually consider such a redistributive function as being “better accomplished through taxation and social benefit schemes, rather than responsibility law. See for example L. Bergkamp (2001), p. 109. As shown by the author, the law and economics school is subdivided into distinct branches. We will not go in-depth with those specificities, for such a “panorama” see K. De Smedt (2007), p. 21. 116  “Slachtofferbescherming”. See G. Viney (1995), n°36. 117  The issue of grounds for responsibility and responsibility exonerations is addressed in chapters 3 and 4. 118  For example the scholars debated on that issue that occurred in the aftermath of the Erika judgment, Tribunal de Grande Instance de Paris, 11ème Chambre, 4è section,

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entitlement to receive monetary compensation for environmental damage and harm? Also, compensation can be fraught with the mere exercise of valuing environmental damage since the evaluation exercise can prove very difficult. Other scholars claim that restoration is to be preferred to compensation. Eventually, compensation can be perceived as a consequence of tort law rather than as an objective of tort law.119 In other words, the frontier between primary and secondary obligations would become blurred, and reverse the paradigm: secondary obligations (liability matters) would steer primary obligations (responsibility matters). 1.3.3.2 Prevention and Deterrence Legal scholars (law and economics scholars included) commonly perceive prevention and deterrence as a function of environmental responsibility law.120 For some scholars, prevention is the primary function of environmental responsibility law.121 Law and economics scholars rely among others on the assumption that “cost internalization would encourage polluters to take preventive measures and conduct research into (and develop) methods or proc­ esses that are less harmful to the environment”.122 In addition, they assume that “the threat of a responsibility claim and the duty to pay compensation deter from engaging in damage-causing activities”:123 threatening to take some of the polluters’ assets124 would prevent the polluter from generating harm to the environment.125 The defendant’s behaviour is central: in order to fully 16 January 2008, n° 9934895010, JCP G 2008, act. 88 and the scholars referenced by L. Neyret (2009), p. 71, footnote n° 1. 119  Ibid. p. 71. See also L. Bergkamp (2001), p. 84 footnote n°85. 120  See for example G. j. Martin (1976) who is nevertheless not to be seen as a law and economics scholars, p. 169. 121  See for example A. Guégan (2000), pp. 147–158. There is a clear link between the restoration/compensation function and the deterrence/prevention function. On the link between compensation/restoration and prevention/deterrence, Directive 2004/35 (for example Recital 2) also endorses complementarity. It is possible to distinguish “general prevention” from “specific prevention”. According to L. Bergkamp (2001), p. 87, footnote n° 100, “general prevention” is operated through responsibility while “specific prevention” is operated through regulation. The author, while elaborating on civil responsibility, uses the word ‘deterrence’. See also R. Pereira (2007) p. 258. 122  Hence the label: “incentive/influencing function”: see L. Bergkamp (2001), p. 68. 123  L. Bergkamp (2001), p. 87. As shown by L. Bergkamp, the law and economics school is subdivided into distinct branches. The author will not go in-depth with those specificities. 124  Ibid. p. 68. This statement is elaborated in the context of civil environmental responsibility. 125  Ibid. footnote 7 “Radix malorum est cupiditas”: the love of money is the root of all evil. “Thus, the love of money is turned into the root of good, rather than evil”.

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fulfil the deterrence function, how badly the defendant behaved should be duly considered, beside the plaintiff’s loss or suffering.126 Accordingly, (A) responsibility regime indeed can be, and often is, aimed at deterring operators from exposing other persons to excessive (or ‘unreasonable’) risks and, thus, at promoting safety and preventing damage. Deterrence prevents damage and reduces cost by increasing the degree of care people take when engaging in an activity, or by decreasing the level at which the activity is conducted. As a result, deterrence would prima facie appear to be plausible and loadable goal of responsibility rules.127 Other authors nevertheless deny the importance of prevention and deterrence in the context of civil responsibility frameworks.128 They argue that public law instruments and executive decision-making better suit the deterrence function: “the executive government possesses superior knowledge and experience with respect to environmental protection”.129 Another argument is the “wide range of administrative and criminal sanctions”.130 Administrative and criminal sanctions have the added value that, contrary to civil responsibility sanctions, they do not depend on the “assets or creditworthiness” of the polluter.131 More specifically, the deterrence effect of environmental criminal law can be linked with the utilitarian theory that recognizes deterrence as the main goal of criminal law.132 This opinion is nevertheless challenged.133 In addition, some scholars doubt that criminal sanctions have a practical utility.134

126  Ibid. p. 89. The author will further elaborate on that point chapter 3 (grounds of responsibility). 127  Ibid. (2001), pp. 87–89. 128  Ibid. pp. 90–96. 129  Ibid. p. 91, in support of this we can underline that the European Court on Human Rights underlined in the Öneryildiz vs. Turkey case (30 November 2004, Grand Chamber, para. 84) that such a knowledge could be requested from the State’s authorities: a lack in seizing risks can ground the Court’s finding that the State did not fill its obligations. 130  L. Bergkamp (2001), p. 91. 131  Ibid. As for the sanctions, R. Pereira (2007) writes p. 258:  “Unlike civil and administrative law, the arsenal of sanctions available in criminal law may include the threat of incarceration, which provides a strong incentive for compliance with environmental regulations”. 132  Ibid. pp. 257–258. 133  Ibid. 134  Ibid. pp. 258–259.

Introduction

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1.3.3.3 Sanction and Punishment The third function of environmental responsibility frameworks is to inflict a punishment and a sanction. This function reflects a moral condemnation and gives a clear message: polluting is wrong. The moral condemnation is less served by the compensation and prevention functions. The sanction function is particularly contested in the administrative and civil contexts.135 As for criminal environmental responsibility, there is no such heated debate on effectiveness grounds.136 1.4

Foundational Difficulties Encountered by the EU Legislator that are Addressed in the Book

Introduction to the Nature of the Directives: The Public-Private Law Divide A recurrent issue appearing in scholars’ work is the identification of the type of responsibility framework governing environmental responsibility which is chosen by the legislator. This is concerned with the following question: are the Directives public or private law instruments? Environmental responsibility is traditionally classified among three kinds of instruments: civil environmental responsibility, administrative environmental responsibility and criminal environmental responsibility. The latter two of these are usually classified as public law instruments, while civil environmental responsibility is usually classified as a private law instrument. Regarding the classification of the Directives: are they public law or private law instruments? It can be seen below that this classification exercise is very much appreciated by lawyers but might not be particularly useful. Nevertheless, the exercise is useful for the purposes of this book. The public nature of Directive 2004/35 is one of the three aspects that trigger the identification of gaps. Consequently, the classification exercise is not useless: it is 1.4.1

135  G. Viney (2008) explains p. 14:  “(during Ancien Régime) l’importance grandissante attachée à l’argent dans une civilisation de plus en plus orientée vers la recherche de l’aisance et des profits matériels ont contribué à favoriser l’apparition et l’essor d’une responsabilité purement civile dont l’aspect patrimonial a eu tendance à concurrencer puis à supplanter l’aspect punitif”. 136  Contra, see for example R. Pereira (2007), pp. 254–268, and more particularly p. 256; the stigma associated with criminal sanctions will be dealt with later in the course of the book.

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demonstrated below that Directive 2004/35 is largely of a public nature. The same findings apply to Directive 2008/99, but this is far less surprising. When operating environmental responsibility, three main types of regimes can be used: an administrative regime, a civil regime and a criminal regime.137 The following criteria are usually used: the substantive and organic criteria, and the nature of the breach of law.138 137  That is why, when analysing the EU texts and when relevant, the author will highlight when a spill-over occurs in these texts and when the spill-over leads to the application of legal constructs proper to the legal system identified. As can be seen in positive law and as underlined by legal scholars, some spill-over does occur and the criterion therefore cannot apply to EU environmental responsibility texts, for no clear-cut criterion is suitable. Basically, this spill-over can be of three types: functional spill-over, substantive spillover and organic spill-over (competence). In this respect some scholars have devoted lots of work on the “decriminalisation process”, i.e. that some fields that used to be covered by criminal law are being transferred to other legal systems (mainly the administrative one) and are then governed by those legal systems act of constraint. See also M. de las Heras y Ojeda (2008), who conducts a similar exercise. The following developments are not aimed at deeply elaborating on this distinction. This is not the main purpose of this book, although it could be the subject of a book in isolation. References are given for such an in-depth analysis. Some authors have argued (rightly according to this research) that the exercise was of no added value with environmental law. See for example F.-G. Trébulle (2009), pp. 15–25. In footnote n°8 p. 15, François-Guy Trébulle refers to Community and International environmental laws that do not worry about distinctions between public and private law. They rather claim their autonomy and pragmatism. They do not pretend or even perform a classification exercise. François Ost calls for overriding the separation, distinction claim between public and private spheres and rather calls for attention to be paid to the tension between those two sides of social life in F. Ost (1995)b, p. 97. 138  The material criterion can be used to distinguish administrative from civil and criminal environmental responsibility. This criterion has three sub-criteria. The first sub-criterion is the subjects of responsibility law and of the sanctions that were chosen. In this respect, see G. Dellis (1997) p. 35 and P. Brun (2005), p. 2. The second sub-criterion of the material criterion is the function of responsibility law and the sanctions. As seen above (section 3.3), three main functions are outlined as far as responsibility is concerned: repression, prevention and compensation. At first, and for a long period of time, criminal responsibility law was seen as fulfilling the repression function, civil responsibility law as fulfilling the compensation function, and administrative responsibility law as fulfilling the prevention function. Neither scholars nor positive law sustain such a clear-cut vision any longer. Indeed, positive law no longer holds such a distinction to be valid. For example, we saw that Directive 2008/99 Preamble refers to different functions: prevention (Preamble, Recital 5), repression (Preamble, Recital 3) and reparation (Article 3), plus implementation of EU environmental law. Legal scholars generally share the view that spill-over also occurs in regard to the aim of the legal frameworks chosen and the inherent sanc-

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Most commentators of the 2004/35 Directive apply the organic criterion and assume that Directive 2004/35 is of an administrative (public) nature.139 tions. For example, G. Viney (2008) underlines such a spill over between civil and criminal responsibility law and G. Dellis (1997) pp. 44–45 underlines the same spill over between criminal and administrative responsibility law. The remaining debate is rather if and to what extent a function prevails over the others within a legal system, and to what extent they exactly fit when a spill over is identified. Finally, the third sub-criterion of the material criterion is the severity of the sanction. The European Court on Human Rights (hereinafter the Court) uses such a criterion to determine whether a matter can be qualified as a criminal one, hence falling under the scope of article 6(1) (fair trial). See Oztürk vs RFA, August 25th 1987. The other criteria to qualify a matter as being criminal are the very nature of the breach and the dissuasive and repressive effect of the sanction. As for the severity of sanctions, the thesis put forward by German law is that the criterion should not be a qualitative but a quantitative one. Indeed, from a qualitative point of view, administrative and criminal law can share the same nature (for example a fine, seizure etc). Another criterion proposed by some scholars is the moral one: more particularly, some scholars have underlined the “stigmatisation” effect of criminal law. The second criterion to distinguish administrative from civil and criminal environmental responsibility legal systems is an organic one. This criterion refers to the nature of the authority issuing a sanction: a criminal judge can only issue a criminal sanction, a civil judge can only issue a civil sanction, and an administrative authority (or judge) can only issue an administrative sanction. The third criterion to distinguish between administrative, criminal and civil responsibility is to look at the very nature of the infringement of the legal norm. What is looked for here is the “proximity degree” of each particular matter with a given legal system (administrative, civil or criminal). The following criteria can be used for the “justice principle” in order to determine the seriousness of the breach and the adequacy of the sanction for the breach: the breach (for example intentional vs. unintentional), the importance of the protected interest, and damage. On environmental damage that triggers the criminal nature of a legal norm, see for example J. Reátegui Sánchez (2004). As for the “utility principle” (defined by J. Bentham as the principle of the welfare of the most numerous), what is at stake is the efficiency of the sanctions. The breach criterion leads to an evaluation of necessity. The EU operates this evaluation through the subsidiarity prism while the European Court on Human Rights operates the evaluation through the proportionality lens. See G. Dellis (1997), p. 106. 139  See for example K. De Smedt (2007), p. 188 on Directive 2004/35:  “Yet, the term ‘environmental responsibility’ has been criticised as confusing because the ELD does not offer a real civil responsibility regime, but a mainly public law regime to be enforced by competent (administrative) authorities, combined with private law aspects as strict responsibility and fault-based responsibility”, emphasis added. Similarly, see L. Krämer (2006)b, p. 34 “3.1 Public Law Approach”, and commenting on Directive 2004/35, M. Prieur (2004) states p. 140:  “La nouvelle directive institue simplement un régime spécifique de police administrative en donnant aux autorités publiques une base légale nouvelle pour leur permettre,

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This seems to be a valid stance.140 This is evidenced by Recital 15 of the Preamble and Article 11(1) that enshrines the obligation of Member States to designate a public competent authority and Article 11(2) and (3) regarding what the competent authority is responsible for, in the framework of the Directive. Hence, Directive 2004/35 can be a priori said to set a public (administrative) environmental responsibility framework. However, the Directive was also initially designed to reflect a civil law approach and some civil law features remain in Directive 2004/35 (for example the development risk defence). Directive 2004/35 is thus a hybrid text, having features that belong to both administrative and civil legal techniques. Directive 2008/99 is (quite obviously) of criminal nature.141 Nevertheless, the Directive does not elaborate on the role of criminal judges. It may result from the institutional conflict denying any competence to the EU legislator to set the quantum of the sanctions.142 Consequently, the Directive on the protection of the environment through criminal law mainly refers to the function of criminal environmental responsibility and the dissuasive function of criminal sanctions. Nevertheless, a reference is made in Recital 3 of the Preamble to the necessity to have criminal penalties available. Such penalties can only be obtained as a result of criminal proceedings.143 The organic criterion can also be used to qualify Directive 2008/99 as setting a criminal environmental responsibility framework. Here again, it will be seen in the following chapters that the situation is not clear-cut: the Directive has a very strong administrative dimension that results from the regulatory approach. Overall, in the context of this book, an administrative environmental responsibility framework is a framework of responsibility that is reliant on administrative authorities to judge, sanction and enforce rules of administrative responsibility as applied to private individuals. Such sanction and enforcement can be done at the initiative of a private person (the responsibility case

de manière préventive et curative, d’intervenir face à des menaces ou des dégradations affectant certaines ressources naturelles”.  See also B. Lozano Cutanda (2005). 140  While acknowledging that some features of civil law remain in Directive 2004/35, the author will further elaborate on the civil law features that remain in the core of the book. 141  This is quite undisputed, in as much as we do not enter the debate on the dependence of criminal environmental law towards environmental administrative/public law. The author will turn to that debate later. 142  The institutional share of competence between the first and third pillar awarding the latter competence for procedural matters and the quantum of sanctions. 143  Those environmental criminal offences are listed in Article 3, while penalties are dealt with in Articles 5 and 7.

Introduction

49

has a horizontal effect), or at the initiative of a State authority (the responsibility case has a vertical effect).144 It will be assumed that Directive 2004/35 sets administrative environmental responsibility with some civil law features. A criminal environmental responsibility framework is a framework for responsibility which relies on criminal authorities to judge, sanction and enforce criminal responsibility rules as applied to private persons. It will be considered that Directive 2008/99 sets criminal environmental responsibility, with some administrative law features. After having presented the operation of environmental responsibility concepts in Directives 2004/35 and 2008/99, the author now elaborates on the first hypothesis to be tested in the book: the lines of tension that occurred when operating the environmental responsibility concept at the EU level, those lines of tension justifying to look for more dynamic approaches in international environmental law and human rights law as settled by the case law of the European Court on Human Rights. Introduction to Conflicts of Competence at the EU Level: Explaining the Economy and Gaps of Directives 2004/35 and 2008/99 Creating a legal framework for those responsibility frameworks that aim towards preventing, compensating and sanctioning environmental damage “or environmental-related damage”145 at the EU level has proven particularly difficult. Tensions have arisen at all stages of the law-making process.146 Those 1.4.2

144  The European Court of Human Rights applies such a distinction between private and vertical effect, see for example Lopez Ostra vs. Spain, December 9th 1994 and Algür vs. Turkey, October 22nd 2002. The distinction according to this criterion is relevant in the context of this book for the following reasons: firstly, a significant part of this book will be devoted to the European Convention and Court on Human Rights. It is settled-case law that the Court interprets the civil criminal notions as autonomous notions, i.e. independently of what the label of a national, community or international norm could be. Secondly, as mentioned above, the scope of this book is limited to responsibility of private persons. Applying the horizontal/vertical distinction allows to locate the centre of gravity of the norms studied on the private person and the persons/institutions that can potentially question the private person’s responsibility. It should be kept in mind that the private individuals who are granted the competence to challenge other private individuals’ responsibility range from legal persons, physical persons and associates of NGOs—those who have distinct capacities to do so. Nevertheless, this point does not fall within the scope of this book. On the standing issue, see for example G. Winter, J. H. Jans, R. Macrory and L. Krämer (2008), pp. 174–175. 145  L. Krämer (2006)b, p. 29. 146  It is quite remarkable that as early as 1985 Eckard Rehbinder and Richard Stewart had already underlined and foreseen the difficulties frameworks such as responsibility would face in the Europeanisation process in E. Rehbinder and R. Stewart (2003), p. 45.

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tensions and obstacles may explain the three decades that elapsed between the first proposals to set environmental responsibility regimes and the actual adoption of EU texts on environmental responsibility (21 April 2004 for Directive 2004/35 Directive and 19 November 2008 for Directive 2008/99).147 For the sake of simplicity, the tensions can be reduced to two problems: institutional and content related matters. In the following developments tensions and the lobbying of different interest groups in that respect are discussed.148 1.4.2.1 Competence Justified on EU Environmental Law Rationale Regarding tensions that are institutional in nature,149 the competence issues that arose during the process of adopting the EU environmental Directives form the focal point, with the view to explaining the tensions.150 The first institutional issue that gave rise to tensions relates back to the principle of subsidiarity and the strain between national and EU competence. Some specific rationales for EU environmental responsibility norms that add to the above-mentioned functions (restoration-compensation, preventiondeterrence, and sanction-punishment) have been advanced to justify EU normative activity. They can be schematised as follows: firstly, Directives 2004/35 and 2008/99 are meant to support a greater application, compliance and

147  Commission proposal for a directive on dangerous waste (1976) OJ C 194 p. 2; Commission proposal for a regulation on the shipment of waste (1983) OJ C 186 p. 3; Council directive on the supervision and control within the European Community of the transfrontier shipment of hazardous waste (1984) OJ L 326 p. 31 Article 31; Commission proposal for a directive caused by waste (1989) OJ C 251 p. 3 and (1991) OJ C 192 p. 6; Commission’s Greenbook on remedying environmental damage (1993) OJ C 149 p. 12; Commission’s White paper on environmental responsibility, COM(2000) 66 of 9 February 2000, all referenced in L. Krämer (2006)b, p. 29, footnote n°2. 148  On the necessity to take into account the “influence of lobbying of different interest groups in the law making process”, see K. De Smedt (2007), p. 124:  “Firms might therefore try to influence the law-making process to their advantage. Moreover, it would be naïve to presume that the legislators who enact environmental laws are exclusively concerned to protect the public interest”,  and pp. 135–136. 149  The institutional context can help understand how tensions arose when scrutinising Directives 2004/35 and 2008/99. 150  On the EU legal basis to regulate environmental law, see among others E. Rehbinder and R. Stewart (2003), pp. 6–10 on the degree of harmonisation: total harmonisation, minimum harmonisation, partial harmonisation, optional harmonisation, alternative harmonisation, and on the subsidiarity and proportionality principles (general tension between harmonisation and centralisation) see also K. Lenaerts (2003), pp. 158–165.

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implementation of EU environmental legislation.151 Secondly, the Directives are said to be devices for better integration of environmental requirements.152 Thirdly, the Directives are believed to ensure a level playing field in the internal market.153 According to the market access argument, harmonisation of environmental regulation would be justified in order to ease the tensions created by the differences in the stringency of environmental regulations of various jurisdictions.154 Ensuring a level playing field in the internal market would also 151  See for example Directive 2004/35 Preamble, Recital 1; Directive 2008/99 Preamble, Recital 8; the explanatory memorandum of the proposal for a directive on environmental responsibility with regard to the prevention and remedying of environmental damage, Com (2002) 17 final, 23 January 2002, p. 6; Commission staff working document accompanying the proposal for a directive on the protection of the environment through criminal law (Impact assessment), SEC(2007) 160, 9 February 2007, pp. 23–24, 35, 38; Commission’s White Paper on environmental responsibility, COM(2000) 66 final, 9 February 2000, pp. 14 and 17. See also for example K. Inglis (2004), p. 135:  “The tensions between national sovereignty and other (economic) priorities, on the one hand, and EC competences and the goals of an effective environmental policy, on the other, are particularly strained at policy and law-making levels, as well as in implementation and enforcement”, similarly see K. De Smedt (2007) underlined pp. 52–53 that environmental responsibility can be seen as an “enforcement tool”. The author then elaborates on that point by pointing out the “complementary function between responsibility and environmental regulation”. This complementarity is then grounded on the fact that responsibility devices are more flexible than regulation in as much as new risks emerge, and on the fact that regulation devices do not always contain compensation-restoration dispositions. Similarly, see for example E. Fisher (2006), p. 227. 152  See for example the Commission staff working document accompanying the proposal for a directive on the protection of the environment through criminal law (Impact assessment), SEC(2007) 160, 9th February 2007, p. 23, and See for example the Commission’s White Paper on environmental responsibility, COM(2000) 66 final, 9th February 2000, p. 14. 153  E. Fisher (2006), p. 234. See for example the Commission staff working document accompanying the proposal for a directive on the protection of the environment through criminal law (Impact assessment), SEC(2007) 160, 9th February 2007, pp. 24, 29–30; and See for example the Commission’s White Paper on environmental responsibility, COM(2000) 66 final, 9th February 2000, p. 15. 154   The argument consists of two strands: “harmonisation of marketing conditions”. Proponents of harmonisation argue that harmonisation would create a ‘level playing field’, and ease the various competitiveness and market access concerns arising from the intersection of trade liberalisation and safety regulations, such as environmental protection policies. See for example the Commission staff working document accompanying the proposal for a directive on the protection of the environment through criminal

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serve environmental protection in putting an end to the relaxation of state regulatory standards. This relaxation would be caused by inter-state competition to attract industry (the race-to-the-bottom argument). If differences in environmental standards (and thus differences in environmental costs) induce firms to relocate to states with the lowest environmental standard, a race to the bottom might occur.155 In environmental cases this is referred to as the ‘pollution havens’ phenomenon. In addition, harmonisation would be justified in order to guarantee a minimum level of protection (the minimum level of protection argument): unacceptably low environmental standards in one State could present negative externalities to citizens in other States. For other authors, environmental protection needs to be understood as a human right, freed from economic justification. Hence, the reason for harmonisation would not be based on economic efficiency, but on the desire to provide a minimum level of protection against environmental impairments.156 The minimum level of protection argument guarantees all citizens minimum quality standards through the harmonisation of regulation.157

law (Impact assessment), SEC(2007) 160, 9th February 2007, p. 24. The second strand is the “reduction of transaction costs through harmonisation of legal rules”. The differences in legal rules might cause high transaction costs, and hence this might equally hamper market access. See also E. Rehbinder and R. Stewart (2003), pp. 21–22. See also the Commission’s White Paper on environmental responsibility, COM(2000) 66 final, 9th February 2000, pp. 37–45. 155  This relaxation of regulatory standards would result in a reduction of social welfare below the social welfare level that would exist in the absence of this race. If there is a risk that this destructive competition would arise, centralised standard setting might be advanced as a remedy to prevent States from engaging in this welfare-reducing race to the bottom. Kristel De Smedt (2004), p. 168. On the safe-havens phenomenon, see the Commission staff working document accompanying the proposal for a directive on the protection of the environment through criminal law (Impact assessment), SEC(2007) 160, 9 February 2007, pp. 24, 38. 156  As for the tension between the market access and minimum protection arguments, see Ibid. pp. 7–8. This tension refers to the delicate balance between the competing claims of economic growth at any cost and, accordingly, the politically unattractive arguments for environmental responsibility. See for example the Commission staff working document accompanying the proposal for a directive on the protection of the environment through criminal law (Impact assessment), SEC(2007) 160, 9 February 2007, p. 23. 157  See for example the explanatory memorandum of the proposal for a directive on environmental responsibility with regard to the prevention and remedying of environmental damage, Com (2002) 17 final, p. 5. Some authors doubt about such a justification to be adequate to justify harmonisation of responsibility rules law. They think that minimum quality standards to be achieved before and after an accident would be more efficient

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All of these rationales were put forward during the law-making process as justifications for elaborating the EU environmental responsibility Directives (for example to meet the subsidiarity and proportionality tests).158 1.4.2.2

Directive 2008/99: Conflict between the Commission and the Council The second institutional issue that gave rise to tensions relates back to the correct legal basis of Directive 2008/99. An institutional conflict took place between the Council and the Commission regarding the pillar under which the text on the protection of the environment through criminal law was to be adopted (1st pillar: community method or 3rd pillar: intergovernmental method). The question to be resolved was whether the text should be adopted as a 3rd pillar norm, as it was of a criminal nature, or whether, even though touching upon criminal law, the text should be adopted as a 1st pillar text given its environmental nature. The competence to regulate at the EU level in criminal law matters used to be perceived as follows: given the silence of the Maastricht Treaty regarding which pillar is relevant in criminal law matters, the competence of the 3rd pillar was taken for granted. In that sense, the European Court of Justice had recognised that criminal law and criminal procedure did not fall, as a principle, under the remit of the Community.159 Such a competence falls, as a principle, under the 3rd pillar.160 than harmonising responsibility rules in the different jurisdictions, see L. Bergkamp (2001), at 378. 158  See for example the Commission staff working document accompanying the proposal for a directive on the protection of the environment through criminal law (Impact assessment), SEC(2007) 160, 9 February 2007, p. 39, Directive 2004/35, Preamble, Recital 3, and Directive 2008/99, Preamble, Recital 14. See for example the Commission’s White Paper on environmental responsibility, COM(2000) 66 final, 9 February 2000, p. 28. Some authors and Members of the European Parliament nevertheless challenge those rationales as justifying the competence or opportunity for the EC legislator to do so. Contra and challenging the reasons why the EC legislator does not make use of his competence and weakens the EC environmental acquis communautaire, see for example K. Inglis (2004), p. 146. 159  See for example European Court of Justice, Casati, 203/80, 11 November 1981, ECR 2595, and Lemmens, C-226/97, 16 June 1998, ECR I-3711. It can be highlighted that determining which pillar is competent is not left at the discretion of the EU institutions: Articles 29 and 47 of the European Union Treaty state the primacy of community law. In other words, the competences used in the framework of the 3rd pillar shall not impinge on the recognised competences of the community legislator. If this was the case, the European Court of Justice would annul the adopted text under the 3rd pillar. 160  Accordingly, when a norm deals with a matter that falls under the Community competence it is adopted under the 1st pillar while the criminal sanction linked with the

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The reason for the institutional conflict between the Council and 11 (out of the then 15) Member States on the one hand, and the Commission supported by the European Parliament on the other hand is mainly twofold. Firstly, a text being adopted in the framework of the 1st pillar follows the Community method (co-decision) and requires a qualified majority vote in the Council, whereas the 3rd pillar intergovernmental method requires unanimity in the Council (providing each Member States with a ‘veto’). The unanimity requirement can be perceived as requiring the legislator to lower ambitions and to provide Member States with options and exemptions. On the contrary and as a principle, no derogation is possible under a 1st pillar text.161 Secondly, the regime of the norms adopted under the 1st and 3rd pillar was quite different. The European Court of Justice has a limited role in the context of the 3rd pillar.162 The opportunity for the citizens of a Member State to seize the European Court of Justice for a preliminary ruling was conditioned by the acceptance by this Member State of such a facility of the Court. Similarly, the competence of the Commission and private persons to seize the European Court of Justice for judicial review is not recognised under the 3rd pillar.163 Furthermore, under the 1st pillar the European Parliament is a real co-legislator, extensive consultations are conducted and impact assessments accompany the proposed texts. Denmark proposed in 2000 a framework-decision on the protection of the environment through criminal law in the context of the 3rd pillar (inter­ governmental method) based upon articles 29, 31(e) and 34(2)(b) of the European Union Treaty.164 The European Commission, contending that the legal basis of such a text should be the 1st pillar (community method), proposed in 2001 a Directive on the protection of the environment through criminal law based upon article 175(1) of the European Community Treaty.165 violation of that norm is dealt with by a 3rd pillar text. The Community and criminal aspects are disconnected, this is called the ‘double text’. On that issue, see among others J.-P. Jacqué (2002), pp. 255–256; M. Wasmeier and N. Thwaites (2004), p. 614; J. F. Castillo Garcia (2005), pp. 27–29; and M. Hedemann-Robinson (2008), pp. 281–284. 161  More specifically, the rules of the directive are minimum rules, the Member States can adopt or maintain more stringent measures on the protection of the environment through criminal law, see Directive 2008/99, Preamble, Recital 12. Those more stringent measures must, nevertheless, be in conformity with the European Community Treaty. 162  Among others, see A. Weyembergh, P. de Hert and P. Paepe (2007), pp. 269–292 and M. Faure (2004), pp. 18–29. 163  On this issue see among others M. Hedemann-Robinson (2007), and P. Wenneras (2007). 164  OJ C 39, 11/02/2000, pp. 4–7. On this proposal see X. Loubert-Davaine (2004), pp. 148–149. 165  Proposal adopted by the Commission on 13 March 2001, COM(2001) 139, JO 2001/ C 180 E, pp. 238–243, the two proposed texts were also different in their substance, among others regarding the definition of incriminations and the sanctions.

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Despite the objections of the Commission, the Council adopted the framework-decision on 23 January 2003.166 The Commission then initiated legal proceedings before the European Court of Justice on 15 April 2003, requesting the annulment of the framework-decision. The Court issued its judgment on the validity of the above-mentioned framework-decision on 13 September 2005.167 The Court annulled the framework-decision adopted in the framework of the 3rd pillar. It recognised the Community legislator’s competence to adopt the Directive on the protection of the environment through criminal law in the context of the 1st pillar. To do so, the Court first recalled the principle: criminal law measures do, as a principle, fall under the 3rd pillar and are adopted as framework decisions.168 Nevertheless, the Court continued, this principle does not hamper the Community legislator in adopting the necessary measures to guarantee the complete effectiveness of the measures adopted by that same Community legislator under the 1st pillar in environmental matters.169 Accordingly, the correct legal basis of the text, which has as a main objective and content the protection of the environment, was to be found in the 1st pillar. In a later case of 23 October 2007, the European Court of Justice had the opportunity to specify the extent of the Community legislator’s competence in environmental criminal law.170 The Court had to pronounce on the validity of the Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, as the Commission claimed it impinged on the competences of the Community. This text had been adopted under the 3rd pillar.171 In this decision the Court confirmed the Community legislator “exceptional competence”172 and the application of this exception to the case at hand.173 The Court then added that while the obligation binding Member States to prescribe criminal sanctions for some behaviours falls under the 1st pillar (in this case, article 80 of the European Community Treaty), setting the type and 166  Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law, OJ L 29, 5.2.2003, p. 55. 167  European Court of Justice, Case C-176/03, Commission v. Council, 13 September 2005 (Grand Chamber), ECR I-7879. 168  Ibid. point 47. 169  Ibid. point 48. 170  Case C-440/05, Commission v Council, 23 October 2007 (Grand Chamber). 171  Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution as it also impinged on the competences of the Community, OJ 2005 L 255, p. 164. 172  Ibid. point 66. 173  Ibid. points 67 until 69.

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level of sanctions (the quantum of sanctions) does not fall under the 1st pillar, but under the 3rd pillar.174 In this case, the definition of incriminations and quantum of the sanctions were inseparable. Therefore, the Court annulled the framework decision adopted under the 3rd pillar in its entirety.175 In other words, the decision dated 23 October 2007 did not overrule the former decision but limited the competence awarded in the first judgment to the Community legislator. All in all, the competence of the Community legislator to oblige Member States to sanction by criminal law environmental incriminations defined by the same Community legislator by a 1st pillar norm is recognised as an exception to the competence awarded in principle to the intergovernmental procedure under the 3rd pillar.176 But this competence does not go as far as the definition of the type and level of the sanctions. This latter definition remains under the 3rd pillar. In the aftermath of the European Court of Justice’s ruling dated 15 April 2003, the Commission proposed on 9 February 2007 the Directive on the protection of the environment through criminal law based upon article 175(1) of the European Community Treaty, i.e. under the 1st pillar.177 The Ministers of Justice informally discussed the consequences of the decision of the European Court of Justice dated 23 October 2007 on 9 November 2007. They agreed to delete from the proposed Directive the provisions on the quantum of the sanctions. During and following a meeting of the European Parliament’s Legal 174  Ibid. point 70. Accordingly, the community legislator can only rely on the ‘common rules’ regarding the obligations on Member States regarding the sanctions by Member States of breaches of community law: despite the principle that Member States remain competent as to which sanctions are necessary and the nature of those sanctions, such sanctions must be equivalent to the sanctions provided for in national law for breaches of national law (European Court of Justice, 21 September 1989, Commission/Greece, n°68/88, ECR 2965), the sanction must be effective, proportionate and dissuasive (European Court of Justice, Nunes Matos case, C-186/98, ECR I-4883), and the Member States can be bound to make disappear the illicit consequences of community law’s breach in the limit of their procedural autonomy (European Court of Justice, Wells case C-201/02, 7 January 2004, ECR I-723, points 64–65). 175  European Court of Justice, Case C-176/03, Commission v Council, 13 September 2005 (Grand Chamber), ECR I-7879, point 74. 176  The recognition of such competence by the European Court of Justice has been criticised by many scholars. See for example M. Hedemann-Robinson (2008), pp. 286–287, and R. de Bellescize (2008), pp. 8–11. 177  Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law, COM/2007/0051 final—COD 2007/0022, OJ C/2007/138, p. 9.

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Affairs Committee, the Commission informed its acceptance of the deletion. The Committee’s Rapporteur hence integrated the modifications. Accordingly, Directive 2008/99 does not comprise the articles submitted on 9 February 2007 dealing with the quantum of the sanctions. 1.4.2.3 Directive 2004/35: Conflict within the European Parliament A third type of institutional tension concerns internal tensions within the European Parliament. Once the European Parliament receives a legislative Proposal, a Committee is awarded the responsibility of appointing a Rapporteur and of drafting a Report on the Proposal. The Report will propose amendments; the full European Parliament then votes on the Report and subsequent amendments to the Proposal during a plenary session.178 The relevant Committee and Rapporteur have an extremely important role for the procedure at the level of the European Parliament: In practice, the Committees have not only drawn up reports for parliamentary debates but also maintained contact with the Commission and the Council, thus ensuring cohesion and continuation of the Community process, a flow of information as well as well as the effectiveness of parliamentary control.179 An environmental proposal is usually assigned to the “Committee on Environment, Public Health and Food Safety” (hereinafter Environment Committee).180 A conflict occurred between the Environment Committee and Legal Affairs Committee in the context of Directive 2004/35: they both claimed to be competent. What was at stake was the perceived inclination of 178  See for example K. P. E. Lasok (2001), pp. 220–222. 179  Ibid. p. 222. 180  See the Rules of Procedure of the European Parliament, ANNEX VI: Powers and responsibilities of standing committees, VIII. Committee on the Environment, Public Health and Food Safety, 16th edition, March 2009, http://www.europarl.europa.eu/sides/getDoc. do?pubRef=-//EP//TEXT+RULES-EP+20090309+RESP-ENVI+DOC+XML+V0//EN&langu age=EN&navigationBar=YES, page visited 7 May, 2009: “VIII. Committee on the Environment, Public Health and Food Safety Committee responsible for: 1. environmental policy and environmental protection measures, in particular concerning: (a) air, soil and water pollution, waste management and recycling, dangerous substances and preparations, noise levels, climate change, protection of biodiversity, (b) sustainable development, (. . .) (d) restoration of environmental damage, (e) civil protection (. . .)”

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the Environment Committee towards environmental concerns as opposed to the Legal Affairs Committee’s inclination towards industry concerns.181 The Legal Affairs Committee claimed to deal with environmental responsibility as it had taken the lead on consideration of the White Paper, while the Environment Committee claimed it should take responsibility for environmental responsibility since the proposed Directive was an entirely new instrument to prevent and restore environmental damage based on Article 175 of the Treaty.182 For the first time, the European Parliament had to vote in plenary session on which Committee was competent. In July 2002 and with a small majority, the Members of the European Parliament referred the dossier to the Legal Affairs Committee. Applying the “Hughes procedure”,183 the views of the Environment Committee had to be incorporated into the Legal Affairs Committee’s Report to the plenary.184 As a result it has been argued in the European Parliament’s Report that “the Legal Affairs Committee proposed a much narrower regime than the Commission proposal, whereas the Environment Committee widened the Commission proposal”.185 Introduction to the Tensions Concerning the Directives’ Content which Explain the Economy and Gaps of Directives 2004/35 and 2008/99 Tensions also arose regarding substantive matters.186 Attention is drawn to the necessary compromises and subsequent political tensions. Directive 2004/35 was initially meant to follow the Lugano Convention on civil responsibility for damage resulting from activities dangerous to the 1.4.3

181  K. De Smedt (2007), p. 279. 182  Ibid. 183  Rule 179 of the EP’s rules of Procedure, then rule 162bis. 184  K. De Smedt (2007), footnote n°164. 185  Ibid. p. 279. Other points discussed were the option taken between minimal and partial harmonisation, and the legal basis to be chosen (Article 175 EC or 95 (4) to (7)). On these points, see L. Krämer (2006)b, pp. 34–36. In the following chapters, inter-committee tensions re. the content of the Directives will also be be reported. 186  See the conceptual difficulties of environmental responsibility presented above. As they are set out by J. Ebbesson (1996), p. 9:  “The given factors—diffuse pollution sources, indirect introductions, buffering capacity, synergism, bioaccumulation, geographical extension and temporal delays in the occurrence of damage—all complicate legal and political control of polluting activities”.

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environment.187 However, the text adopted retains a public law approach.188 The EU legislator took position on environmental responsibility as an instrument of environmental policy and the tension between private and public law:189 the legislator favoured the public law approach. The publicisation of EU environmental law has been widely recognised by scholars190 and has two illustrations. The publicisation movement led to the modification of the Directive’s whole approach and was driven by the reference to EU environmental law 187  Convention on Civil Responsibility for Damage Resulting from Activities Dangerous to the Environment, Lugano, 21 June 1993, available 30 August 2008 at http://conventions .coe.int/Treaty/EN/Treaties/Html/150.htm and explanatory report available the same day at: http://conventions.coe.int/Treaty/EN/Reports/Html/150.htm, on this initial approach see for example the Commission’s White Paper on environmental responsibility, COM(2000) 66 final, 9 February 2000, pp. 25–26. 188  See for example L. Krämer (2006)b, p. 34 “3.1 Public Law Approach”; commenting on the 2004/35 Directive, M. Prieur (2004) stated p. 140; M. G. Faure (2005), p. 3; A. Waite (2006), p. 69; N. De Sadeleer (2006), p. 91; C. Clarke (2003), p. 260 “Both the civil law and responsibility for the so-called ‘traditional damage’ were dropped. The (consultation) paper (dated July 2001) described an entirely public-law regime”; and G. Winter, J. H. Jans, R. Macrory and L. Krämer (2008), pp. 163–165: “1. Historical Background: From Civil to Administrative Law”. 189  M. Wilde (2003), pp. 293–294. 190  See for example E. Fisher (2006), p. 216: “EC environmental law is thus first and foremost about public law”, p. 219 “As such, EC environmental law has resulted in the evolution of administrative institutions at all levels of government through the need to adapt Member State administrations to a “common” environmental law”. We will not express here some reflections on the legitimacy of administrative institutions, labelled by scholars as “administrative constitutionalism” matters. For such an appraisal, see E. Fisher (2006), pp. 215–242. Similarly on the publicisation movement see D. Shelton (2007). The author highlights the legal approaches’ historical evolution: “Private law was probably the first approach used”. The second regulatory approach took place in the 1960’s: “environmental law rapidly shifted from a reliance on property and tort law to one of public regulation. General environmental protection statutes were enacted along with specific laws to ensure clean water, clean air, and the survival of endangered species.” The third regulatory generation occurred in the 1980’s, with “market-based approaches changing human behaviour (emerging) as an alternative to command-and-control and other approaches.” Finally the fourth regulatory generation, the “rights-based approach”, is meant to describe “situations not simply in terms of human needs, or of development requirements, aim in terms of society’s obligations to respond to the inalienable rights of individuals”, “Environment is thus an essential instrument subsumed in the effort to secure the effective enjoyment of human rights.” Conversely, the exercise of certain human rights is also essential to achieving environmental protection.

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(the “regulatory approach”). Accordingly, EU environmental law, which is of an administrative and public nature, triggers environmental responsibility frameworks. This is evidenced in the Directives. Directive 2004/35 sets two types of responsibility according to the perceived risks to human health or to the environment.191 Annex III lists activities regulated at the EU level that are deemed to present such risks for human health or to the environment that they fall under the scope of Article 3(1)(a). There, responsibility is based on risk. Activities perceived as posing lesser risks are not listed in Annex III and fall under Article 3(1)(b), where responsibility is based on fault. The two responsibility regimes are distinct with respect to the ground for responsibility (risk-strict responsibility, fault-negligence based responsibility) and the scope of environmental damage. Directive 2008/99 relies more obviously on EU environmental law. Some authors have labelled this reference “dependence”. Indeed, Directive 2008/99 contains definitions of the incriminations to the unlawful character of the conducts covered by the Directive. The unlawful conduct is itself defined by reference to EU environmental legislation listed in Annex A of the Directive. There is no autonomous or objective incrimination in the Directive as it has been adopted: the European Parliament deleted it during the law-making process.192 Tensions with regards to the content of the Directives not only concerned the choice of the type of responsibility framework, but also the very rules endorsed in the Directives. These tensions were somehow overshadowed by the institutional tensions discussed above regarding the law-making process of Directive 2008/99 on the protection of the environment through criminal law.193 Things were very different regarding Directive 2004/35: strong disagreements took place. The tensions led to a conciliation procedure. The actors involved in this tension can be broadly identified as follows: the European Commission, the European Parliament, the Council,194 environmental NGOs 191  As for a clear expression of this self-reference, see the Directive 2004/35, Preamble, Recitals 8 and 9. 192  This autonomous incrimination does not refer to an existing text: this will be further identified, studied and criticised in all the following chapters. 193  At the outcome of the institutional conflict between the Commission and the Council granting competence to the EC legislator, the Commission proposed a Directive that was very similar to the annulled Council Framework Decision. See A. Gouritin and P. de Hert (2009)a. Accordingly, no real conflict took place regarding the content of the Directive. 194  In that respect, some authors underline the tensions and dynamic of EU environmental law would be steered by Member States. See for example E. Rehbinder and R. Stewart (2003), pp. 5–6: for example, Eckard Rehbinder and Richard Stewart list as for the “Disincentives to integration”: “Variations in preferences”, “Differences in

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and lobby groups, and industry lobby groups.195 These debates have been widely commented on.196 As put by M. Hedermann-Robinson, From a purely political perspective, moves to adopt environmental protection measures have faced resistance from a number of quarters, public and private. Concerns are constantly raised about the impact of the perceived level of ‘economic cost’ of environmental measures intended to introduce enhanced systems for the protection of the environment, particularly from certain industrial lobby groups and Member States governments.197 A “battle of ideas and interests over priorities or improving the welfare of the community”198 occurred when determining the extent to which regulation was required in order to prevent, minimise and restore society’s impact on the state of the environment. Similarly, a debate took place on whether the goal of environmental regulations was to manage the environment (reflecting an anthropocentric vision) or to protect and preserve the environment (reflecting an ecocentric vision). Some authors see this tension as particularly important within the EU institutional and legal regulatory process199 because of the geographic, ecological, and industrial conditions”, “Resentment of centralized direction”, and “Differences among legal and administrative systems in member States”, and p. 21. See also M. Soveroski (2004), pp. 127–134. 195  K. De Smedt (2007), p. 270. 196  See for example K. De Smedt (2007), p. 285:  “Indeed, the existence and content of the ELD (Environmental liability Directive) clearly shows the influence of lobbying activities, both by industry and environmental NGOs as the influence of Member States”,  and C. Clarke (2003), pp. 254–268. 197  M. Hedemann-Robinson (2007), p.2; as for such struggles in the environmental field, see M. Wilde (2003), pp. 284–294; p.293 the author relates the industrial sectors fierce opposition against the role of individuals and NGOs in the enforcement process in the decision-making process of Directive 2004/35. 198  M. Hedemann-Robinson (2007), p.2. 199  Amongst others, see R. Macrory (2003), p. 180, and pp. 190–193. See also E. Rehbinder and R. Stewart (2003), p. 6. More generally see R. Macrory and M. Hession (1996), and the existing literature on retained measures conflicting with the general principle of freedom of trade. These retained measures being based amongst on environmental protection grounds and the constitutionalization of economic rights; E. Rehbinder and R. Stewart (2003) p. 39, and p. 40: “Consequently, the struggle among competing interests is more complex than that normally existing in a nation state”. Those issues will be dealt at length in the following chapters.

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“multi-level organization of the political process” and the “filtering of interests” (particularly the one performed by the European Commission).200 In the context of Directive 2004/35, the following eight features were disputed:201 the inclusion of activities related to Genetically Modified Organ­ isms (GMOs)202 and compulsory insurance,203 guaranteed remedial action for orphan damage (subsidiary state responsibility),204 the notions of damage and biodiversity,205 access to justice for NGOs, the possibility of operators limiting their responsibility in accordance with international conventions, cost allocation in case of multiple party causation regarding remediation measures206 and the permit and state-of-the-art defences.207 The very clear-cut and opposing views from lobby groups and EU institutions could have caused a deadlock.208 Directive 2004/35 had to be agreed upon in the conciliation procedure that started on 27 January 2004. On 19 February 2004, the Parliament and the Council reached agreement by exchange of letters. On 30 March 2004, the Council adopted by qualified majority the Directive, following the agreement with the European Parliament under the conciliation procedure. The Irish, German and Austrian delegations voted against. On 31 March 2004, the Parlia­ ment held its third vote to adopt the conciliation text. On 21 April 2004, the Council and the European Parliament finally formally adopted Directive 2004/35. Given the numerous conflicts on the substance of the Directive and 200  Ibid. p. 40. 201  The positions held by one or other actor will not be reported. The concepts listed here in the core of the book will be developed in as much as they fall under the scope of the research. 202  E. Rehbinder and R. Stewart (2003), p. 35. 203  Ibid. p. 36. 204  Ibid. p. 37, on the same issue see M. Wilde (2003)b, pp. 279–289. 205  L. Krämer (2006)b, pp. 38–40; see also E. H. P. Brans (2006), pp. 196–198 and 202–209; and C. Pirotte (2006), pp. 660–664. 206  L. Krämer (2006)b, pp. 45–46. 207  Ibid. p. 43. 208  Some authors believe this has not been the case thanks to the then approaching 2004 enlargement. See for example K. De Smedt (2007), pp. 280–281:  “Momentum was regained in January 2003 under the leadership of the Greek Presidency. The Greek government hoped that the Council would reach a political agreement by the end of its presidency in June 2003. This timing was important to allow enough time for a Second Reading in the European Parliament and to complete a possible conciliation process between the Parliament and the Council before the enlargement of the Union with 10 eastern European Countries on 1st May 2004, otherwise the whole adoption process had to be redone with a new Parliament and a new Council”.

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as another form of compromise, discretion has been left to national authorities regarding a number of issues (“opt-in” and “opt-out”).209 Despite this room for discretion left to Member States, they faced particularly strong difficulties regarding the implementation of Directive 2004/35 (or were reluctant to implement the Directive), as is evidenced by the number of infringement proceedings launched by the European Commission. The European Commission started infringement procedures against 23 Member States. The European Court of Justice delivered judgments against seven Member States in 2008 and 2009.210 Directive 2008/99 faces similar implementation problems. On 6 June 2011, the Commission sent reasoned opinions to ten Member States, asking them to implement the Directive.211 209  Articles 2(3)(c), 2(6), 5(2), 8(4), 9, 12(5) and Annex III (2). For the description of those options (that will be further developed in the core of the book) see C. Pirotte (2007), p. 244. 210  As reported by the European Commission in its “Report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions. Under Article 14(2) of Directive 2004/35/CE on the environmental liability with regard to the prevention and remedying of environmental damage”, COM(2010) 581 final, Brussels, 12.10.2010, p. 3. 211  These States are Cyprus, Czech Republic, Germany, Greece, Italy, Lithuania, Malta, Portugal, Romania and Slovenia. As reported in the European Commission’s Press Release dated 16 June 2011, entitled “Environmental crimes: Commission asks 12 Member States to implement EU rules” and available at , page visited 12 December 2011.

CHAPTER 2

International Environmental Law and Human Rights Partially Conflict but Mainly Confirm the Anthropocentric Conceptions of the Directives 2.1

Gaps in the Directives: Definition of Damage and Harm. The Anthropocentric and Regulatory Approaches

The first section of this chapter answers two questions. Firstly, what is an environmental wrong, according to Directives 2004/35 and 2008/99? Secondly, how do the Directives identify who is the victim of the environmental wrong? Answering these questions will allow us to identify some gaps. These gaps will be tested against international environmental law and Council of Europe human rights requirements in the third and fourth sections of the chapter. In the following developments, environmental damage and harm are introduced. The author then identifies what is an environmental wrong according to Directives 2004/35 and 2008/99 and identify gaps using the distinctions between water, air and land, living species, habitats and ecosystems and natural resource services. After having identified which damages and harms are covered by the Directives, the author elaborates on which damage and harms are not endorsed by the Directives, or do not fall under the Directives’ scope of application. 2.1.1 Introduction to Environmental Damage and Harm The purpose of this section is to identify gaps in the provisions of the Directives that define both the environmental wrong itself and the victim of the environmental wrong. This requires mapping the elements addressed under the generic term “environment”. The legal appraisal of these elements is done through some approaches that reflect the relationship between people and these elements. The following developments are dedicated to introduce the elements of the environment seized by law and the distinct approaches that can be adopted when any legislator adopts environmental law. These developments will prove useful to understand that nothing is given: against this theoretical overview, it will be possible to identify that the EU legislator did make some choices that are reflected in the Directives and criticise them. Gaps will be identified accordingly.

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A difficulty faced by the legislator when he articulates environmental responsibility concepts into legal norms relates back to the tension between reality and legal constructions. What is at stake is the perception of the field to be regulated: the environment.212 This perception will influence how the environment is legally defined, qualified, and the legal treatment that follows. In the framework of the book the author tries to be particularly cautious with legal definitions and regimes when assessing Directives 2004/35 and 2008/99. This is in attempt to avoid the confusion between law and reality. Even though legal constructs do stem from reality, they do not have to coincide with reality. Law is not a mere reflection of reality at a given time; it is an action that results from a political choice, eventually expressed in a legal norm. One can say that legal reality is constructed. Legal reality cannot follow a reality exterior to law, this reality being furthermore largely subjective.213 Law does not reproduce a given natural norm, but creates its own realities and hence, invents a “new world”.214 As a first consequence and when articulating the reasoning, being particularly cautious with regard to legal definitions and statutory regimes matters will prove to be particularly important in the environmental field.215 As a second 212  On the concept of environment and its tensions, see A. Waite (2006), pp. 78–85, and R. Macrory (2003) p. 192 where the author underlines the peculiar character of the environment and the importance of the conception of the field to be regulated:  “The economic market in which the freedom to trade or to enjoy other economic rights is a purely human construction, and demands a certain unity of conditions for its effective operation; this reinforces the attraction of a legally and universally applicable right. In contrast, the environment is not of course an artificial concept, but a physical and heterogeneous reality. Effective and efficient environmental management frequently has to be sensitive to very differing natural conditions in the receiving environment, demanding different responses and hardly consistent with the legal concept of universally invocable rights. Furthermore, the apparent absence of any truly objective standard of environmental protection means that it is all the more difficult to construct an enforceable right”. 213  See for example M. A. Chardeaux, (2006), pp. 127–128; J. Dabin (1969), n°175, p. 201: le droit tout entier est “construit”, les faits ne sont que des données préalables. Aussi la solution juridique n’est-elle “donnée nulle part: la discerner, (. . .) c’est la juger comme juste”. 214  Ibid. p. 131, and F.-G. Trébulle (2009), pp. 17–19; and D. Amirante (2007), p. 3. 215  For example concerning res communes: as for their legal definition, the criterion is the fact that the things are not appropriable while the statutory regime is governed by the common access principle. Some writers tend to confuse between res communes and public goods, maybe because of a misunderstanding regarding the common access element that is either taken as the legal definition criterion, or the un-appropriable criterion

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consequence, environmental law does not follow the exchange value of environmental assets. This exchange value does not belong to the legal definition exercise: environmental law does not depend upon the exchange and monetary value attributed at a given time.216 For example, this tension between the “real” economic value of the environment and the regulation of the environment will be particularly obvious when dealing with environmental damage and harm in this chapter. It will be seen that environmental “damage” reflects damage in reality, and environmental “harm” refers to the impairment of a legally protected interest or right.217 Firstly, it must be recalled that law has its own reality. Accordingly, damage pertains to the legal capture of facts and is distinct from harm that reflects the rights infringed by damage. Secondly, an overview of environmental features (water, land, air, living species, habitats, natural resources services and ecosystems) is provided, together with the legal approaches to these elements (from the most anthropocentric to the most ecocentric approaches). These doctrinal and conceptual developments will be used in subsequent sections and chapters. They cross and guide the whole book. In addition, two common features which are shared by the Directives are highlighted: the risk of damage falls under the scope of the Directives, and Member States retain the freedom to adopt or maintain more stringent measures.

being purely and simply erased, which leads to an expansion of the public goods category while emptying the res communes category. One such misunderstanding can be found for example in L. Bergkamp (2001), p. 104: “res communes (. . .) these resources are owned by all of us”. On the criterion applied to identify res communes, see M. A. Chardeaux (2006), see also M. Dépincé (2009), p. 6. 216  Ibid. pp. 130–131, and p. 67 footnote n°6:  “Some commentators maintain that environmental law is not simply about internalizing cost and reflects public values and the product of citizens articulating a vision of a desirable society”. 217  A good example of the consequences of the legal definitions of the notions at stake is the distinction between environment and ecosystems. On the “Ecosystem Approach”, see O. McIntyre (2004), p. 1. Another concrete example of this tension is “the apparent absence of any truly objective standard of environmental protection means that it is all the more difficult to construct an enforceable right”: see R. Macrory (2003), p. 192 and M. Wilde (2003), p. 289 the author mentions this reluctance in the tort field; on environmental damage see L. Burlington (2004), p. 77; E. H. P. Brans (1996), pp. 297–304, Dec 1996; P. Sands R. B. Stewart (1996), pp. 290–296.

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2.1.1.1

The Environmental Wrong: Damage is Distinct from Harm. Both are Addressed in the Book The term environmental wrong can be perceived as referring to two legal concepts: damage and harm. Until quite recently, the distinction between environmental harm and damage was not (or only occasionally) made: damage and harm were used synonymously. It has been said in the previous pages that law is an artefact.218 Similar considerations arise when considering the distinction between damage and harm. Even though doctrine is still debated on this distinction, the distinction tends to be increasingly applied by legal scholars219 and is not new.220 This distinction proves most useful for the first part of the book, devoted to the critical analysis of Directives 2004/35 and 2008/99. It will enable us to draw lines between the object of the Directives (environmental damage) and the cause of action (environmental harm) that the Directives establish. The core of the distinction lies on the difference between facts as law enshrines them on the one hand, and the legal consequences at stake, as attached to these facts on the other. Damage refers to reality that belongs to the factual world. As such, it refers to the material, physical and concrete impairment. On the other hand, harm belongs to the legal world: as such, it refers to the legal regime that applies to environmental damage.221 In other words, environmental harm provides for the legal consequences of environmental damage. The distinction between environmental damage and harm is applied when the following question is answered in the present section: what are environmental damage and harm according to Directive 2004/35 and 2008/99? The answer given by the Directives are criticised.222 For example, it will appear 218  See the first paragraphs under section 2.1.1. 219  As reported for example by P.-A. Deetjen (2009), pp. 39–50; L. Neyret (2006), pp. 26, 27, 84 and 104; and Report CDES (2008), pp. 127–135. 220  For its use under Roman law, see P.-A. Deetjen (2009), p. 40. 221  P.-A. Deetjen (2009), p. 41. 222  The necessity of performing the exercise of this chapter and revealing the boundaries of environmental damage can be underlined. Legal scholars commonly report such a necessity. See for example A. Boyle (2005)b, pp. 17–26, and M. Bowman, “The Definition and Valuation of Environmental Harm: An Overview”, pp. 1–2, Ibid., E. H. P. Brans (2001), pp. 1–22, L. Krämer (2006)b, pp. 38–39, and M.-J. Littman and C. Lambrechts (1992), pp. 46–48. Still, the exercise is very complex for many of the above-mentioned tensions can be found. Indeed, the issues of for example evaluation, assessment, relationship between science and law, or discovering ‘baselines’ are commonly seen as many obstacles rendering the definition exercise difficult and highly controversial as reported by

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that when the Directives recognise environmental damage, they can refuse to recognise environmental harm. In other words, the recognition of the impairment of environmental elements does not automatically entail the breach of a right. There can therefore be damage without responsibility because no harm is recognised. 2.1.1.2

“What”: The Environmental Elements Captured by Law, and “How”: Legal Approaches to the Environmental Elements The environmental features referred to as the biosphere223 provide the necessary conditions for life. They are often reported to be water, soil and air.224 They are the physical environment. Animal, vegetal or biological living species are usually referred to as the forms of life on earth (for example, fauna, flora).225 It could be seen as the “organic” aspect of “biodiversity”. Ecosystems cover living organisms (biocenosis) and non-living elements (biotope) that are not separable, interdependent and interact (for example a forest, a site). In other words: ecological processes. They are all addressed in the book.226 In this book, the purpose of the distinction is to highlight the choices of the legislator. As appears in the following developments, environmental damage and harm are not legally seized in a similar fashion. The EU legislator tends to recognise damage and harm to the environmental media more easily than it does regarding damage and harm to living species and ecosystems. This is particularly true for Directive 2008/99. Bearing in mind the distinctions—between damage and harm—the protection of these features unveils distinct interests. These distinct interests trigger and infiltrate all the developments that follow. If these interests were to be perceived on a spectrum going from the most anthropocentric approach to the most ecocentric approach, the instrumental value would be on the left, followed by the inherent value in the middle, and the intrinsic value would be on the right. legal scholars who emphasise the necessity to operate the definition exercise. In turn, these limitations are assessed against international environmental law and European Convention on Human Rights’ requirements in the second part of each chapter. 223  “Contenant” in French. 224  L. Neyret (2006), pp. 143–145. 225  Ibid. 226  It is possible to classify these values according to a distinction between environmental and ecological values. This classification echoes the distinction between environmental law that is concerned with environmental media (water, law, land) and ecological law that is concerned with living species and their interactions, as articulated by W. Howarth (2006), pp. 3–5.

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On the left of the spectrum, assessing the effects of the impairment of environmental features according to the instrumental value approach relates back to the practical purpose environmental features have for humans or other environmental elements, and these are assessed accordingly. The human interests and/or rights concerned range from health protection to property. In the middle, the environmental features are assessed according to their inherent value.227 In this case, the environmental feature is assessed according to the worth the feature has for its very existence rather than its utility.228 The interests/rights concerned range from aesthetic considerations to religious ones. The instrumental and inherent approaches require that an external valuer or beneficiary interferes with the view to either identifying the practical purposes rendered by the environmental feature, or granting the environmental features with a particular value to be assessed if impaired. In turn, this begs that the valuer or beneficiary (a human one) must understand and be able to represent—himself or herself—the environmental feature at stake. The situation is completely different when moving to the right of the spectrum towards environmental features’ intrinsic value. In this case, the environmental features possess a value “of themselves” and “for themselves”.229 Such value does not have to be assessed by an external valuer or beneficiary. They are said to have a “good of their own”.230 Impairment of those environmental elements which have intrinsic value requires taking into account the elements’ autonomous value to exist. Indeed, environmental features that are recognised as having intrinsic value “should not be destroyed or prevented from existing”. They have a “prima facie claim”231 to our consideration: they are acknowledged for the mere fact that they exist. In the subsequent sub-sections the chosen approach of the EU legislator when identifying damage and harm, and the holder of the interests and rights are pinpointed. These choices will be criticised. 2.1.1.3

The Directives’ Definitions as Baselines: They Extend to Risk of Damage and Harm and More Extensive Definitions at the National Level Directives 2004/35 and 2008/99 share a first common feature. Their scope of application extends to risk of damage. Directive 2008/99 covers not only 227  As explained in M. Bowman (2005), pp. 42–44. 228  Ibid. p. 43. 229  Ibid. 230  Ibid. 231  Ibid. See also M. W. García (2009).

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environmental damage, but also the risk of damage.232 In Directive 2008/99, “substantial damage” “likely” to be caused applies to the quality of air, the quality of soil, the quality of water, animals or plants. The risk of damage is covered in the following offences: the discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water (Article 3(a)), collection, transport, recovery or disposal of waste, including the supervision of such operations and the aftercare of disposal sites, and including action taken as a dealer or a broker (waste management) (Article 3(b)), the operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are stored or used (Article 3(d)), and the production, processing, handling, use, holding, storage, transport, import, export or disposal of nuclear materials or other hazardous radioactive substances (Article 3(e)). When it comes to the offences related to protected wild fauna and flora species and habitat within a protected site,233 risk of damage is not covered. The risk is not covered in unlawful shipment of waste (Article 3(c)) and unlawful activities related to ozone-depleting substances (Article 3(i)). These crimes are not conditioned by damage and, consequently, risk of damage. Since the recognition of damage is not a prerequisite to have the offence constituted, risk of damage is not considered. Damage is not a condition to engage responsibility; this is a peculiarity of the Directive.234 The greatest weight of significance rather rests on the “unlawfulness” component, i.e. on the regulatory approach.235 There can be responsibility without damage in respect of these two “abstract endangerment crimes”, i.e., cases where the conduct is “merely” unlawful, i.e. the violation of administrative regulations potentially creates danger per se.236 Similarly, Article 3(1) of Directive 2004/35 extends its scope of application to the imminent threat of damage defined in Article 2(8) as meaning “a sufficient likelihood that environmental damage will occur in the near future”.237 232  See Recital 5 of Directive 2008/99 Preamble. 233  Directive 2008/99, Article 3(f), (g) and (h). 234  To what extent environmental damage is not the feature that triggers the criminal environmental responsibility Directive is further determined in chapter 3. As such, the Commission’s proposal for a Directive of the European Parliament and of the Council on the Protection of the Environment through Criminal Law, COM(2001) 0139 final dated 13 March 2001, OJ C 180E, 26.6.2001, pp. 238–243, did not mention environmental damage at all. 235  This aspect is described at length and assessed in the following chapters. 236  On the distinction between ‘concrete endangerment crimes’ and ‘abstract endangerment crimes’, see M. Faure (2008), p. 69, and Faure (2005), pp. 9–13. 237  Reference to the risk of environmental damage can be traced back in many provisions of the Directive. See the Preamble, Recitals 2, 7, 9, 18, 20, 25 and 28; and among others Articles 3 and 4.

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A second feature shared by the Directives is that they preserve Member States’ room for discretion to adopt or maintain more stringent measures. Both texts have been adopted under article 175(1) of the Treaty establishing the European Community (EC Treaty). Article 176 provides the general possibility for Member States to adopt or maintain more stringent provisions than those provided for by the Directives in as much those national provisions respect the EC Treaty requirements.238 The Directives confirm this possibility. Directive 2004/35 provides with this possibility in the Preamble’s Recital 29, Article 3(2) and 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”.239 Directive 2008/99 also provides the possibility for Member States to adopt or maintain more stringent provisions in the Preamble, Recital 12: Member States are enabled to “adopt or maintain more stringent measures regarding the effective criminal law protection of the environment”.240 To be fair with the Directives’ actual potential (and not to merely focus on the limitations) one has to bear in mind the margin of appreciation left to the Member States, when this margin of appreciation could enable the Member States to fill the gaps identified when transposing the Directives. These common features should be kept in mind when researching on the rights’ holder on the one hand, and environmental damage and harm on the other. Water, Air and Land: Criticising the Choices made by the EU Legislator Regarding the Definition of Environmental Damage and Harm. Directive 2004/35 2.1.2.1 Generic Definition. Art. 2(2) and 2(12) Directive 2004/35 provides a generic definition of environmental damage in Article 2(2). Article 2(2) defines “damage” as a “measurable adverse change in 2.1.2

238  On the possibility for Member States to adopt or maintain more stringent provisions when a Directive is adopted under Article 175(1) EC Treaty, see for example L. Krämer (2007), pp. 60–61. 239  On Directive 2004/35, see G. Betlem (2006)b, pp. 183–186 and L. Bergkamp (2001), p. 39. On this aspect see also the very didactic and extremely clear Opinion of Adocate General Kokott delivered 22 October 2009 re. Directive 2004/35 in the ERG case, EUCJ (Grand Chamber) of 9 March 2010, C-378/08, Raffinerie Mediterranee (ERG) SpA, Polimeri Europa SpA and Syndial SpA v Ministero dello Sviluppo economico and Others. Reference for a preliminary ruling. OJ C 301, 22.11.2008. See more particularly paras. 47–51. 240  Directive, Preamble, recital 12. As for Directive 2004/35 and as exposed above, these provisions may be found to be ‘merely declaratory’ as Directive 2008/99’s legal basis already enables Member States to do so.

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a natural resource”, and Article 2(12) defines natural resource as meaning protected species and natural habitats, water and land. Damage refers to a “measurable impairment of a natural resource service which may occur directly or indirectly”, so Article 2(2) provides the generic definition of damage to water, land, air, living species, habitats, natural resources services and ecosystems. In these developments devoted to damage to water, the legal treatment reserved by the Directive to the measurable adverse change of “water”, “land” and “air” is of interest. With regards to waters, Article 2(5) refers to all waters covered by Directive 2000/60/EC,241 the Water Framework Directive. Article 1 of the Directive (purpose) refers to inland surface waters, transitional waters, coastal waters and groundwater.242 When it comes to land, no specific definition is provided for. Still, Article 2(1)(c) refers to land contamination resulting directly or indirectly from the introduction in, on, or under land of substances, preparations, organisms or micro-organisms. This is slightly different from the definition of land damage as it was provided for by the Commission’s Proposal dated 2002 in Article 2(11): reference was specifically made to “soil and subsoil contamination”.243 The measurable adverse change of air quality is not covered as such by the Directive. Rather, air is considered in the Preamble (Recital 4) as a vector of environmental damage to land, water and protected species or natural habitats.

241  Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L 327, 22.12.2000, p. 1. Directive as amended by Decision No. 1455/2001/EC (OJ L 331, 15.12.2001, p. 1). 242  For the definition of inland surface waters, transitional waters, coastal waters and groundwater, see Article 2 of Directive 2000/60. 243  Commission proposal for a directive on environmental liability with regard to the prevention and remedying of environmental damage (2002) OJ C 151 p E/132, explanatory memorandum in COM(2002) 17 of 23 January 2002. Article 2(11) read as follows:  “ ‘land contamination’ or ‘soil and subsoil contamination’ means the direct or indirect introduction, as a result of human activity, of substances, preparations, organisms or micro-organisms harmful to human health or natural resources into soil or subsoil contamination”. On the issue of land (soil) definition in the Directive and the various changes during the legislative process, see A. Layard (2006), pp. 129–147, esp. pp. 134–138, when pp. 133–134 the author underlines the particularly broad range of land contamination’s effects. See also A. Shields (2009), pp. 57–71, see also G. Winter, J. H. Jans, R. Macrory and L. Krämer (2008), pp. 173–174. On EU law and policy in soil protection, see G. Van Calster (2004), pp. 3–17, and particularly pp. 16–17 re-environmental responsibility.

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2.1.2.2 Damage Excluded in the Dual Approach. Art. 3(1)(b) Environmental damage to water and land will not be taken into account in all instances. Directive 2004/35 applies a “dual approach”244 to environmental responsibility. Two parallel regimes come into play, depending upon the risk inherent to the activity that generated environmental damage. This is further studied in the section 2.2.3. It is sufficient at this stage to mention that damage to land and water will not be covered when damage is caused by an activity that is reputed to present fewer risks (Article 3(1)(b)). In these cases, only damage to living species, habitats, natural services and ecosystems will be covered. This has been highly commented and criticised by NGOs and scholars.245 2.1.2.3 Harm to Water Resources: An Intrinsic Approach. Art. 2(1)(b) When the Directive covers damage to water, there remains to be identified harm to water, i.e. the wrong. In turn, identifying harm allows us to identify the victim of the wrong. Environmental harm flowing from damage to water is recognised as harm by reference to waters’ qualitative and quantitative status. To begin with harms that flow from water damage, the Directive provides the status conditions in Article 2(1)(b). Harm is constituted when damage adversely affects the qualitative status of waters: their ecological, chemical status and/or ecological potential. Alternatively, harm is constituted when the quantitative status of water is adversely affected. It is important to emphasise that from the literal reading of this provision, the qualitative and quantitative statuses that must be interfered with for harm to be legally defined are not cumulative: either the former or the latter imply the recognition of environmental harm. To identify the value of the quantitative and qualitative status referred to, Article 2(1)(b) relates back to Directive 2000/60. Accordingly, careful reading of this Directive is necessary with the view to identifying the approach undertaken and the value protected: instrumental, inherent or intrinsic. It appears from Directive 2000/60, Article 4, Annex V, and more particularly under point 1.2 of this Annex “Normative definitions of ecological status classifications”, that the approach endorses water’s intrinsic value. Indeed, water’s value is protected irrespective of the functions and purposes it can serve. Similarly, its value is not assessed according to what is perceived as being worth protecting. Instead, water’s intrinsic value is protected. In other words, water’s values as such are taken on board and protected despite any scaling exercise.

244  As labelled by E. H. P. Brans (2001), p. 183. 245  See for example E. H. P. Brans (2006), pp. 190–191, 195–196, N. De Sadeleer (2006), pp. 98–99, see also M. Hinteregger (2008), p. 641, and L. Bergkamp (2001), p. 41.

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This is commonly underlined in legal literature246 and criticised accordingly.247 W. Howarth contends that the ecological standards are not achievable.248 Second, he criticises the “naturalness” myth, because the existence of truly pristine ecosystems, i.e., free from any human interference, cannot be found anywhere on Earth.249 Third, the author criticises the “naturalness” myth for eventually excluding humans from the water system.250 Provided that harm to abiotic resources’ qualitative and/or quantitative status is legally constituted, a severity requirement has to be met for harm to water status to fall under the scope of the Directive. The threshold requirement is discussed in the next paragraph. 2.1.2.4 Harm to Waters and the Threshold Condition. Art. 2(1)(b) The threshold issue refers to the factual importance of environmental harm caused by environmental damage. A given level has to be attained for environmental harm to give ground to a cause of action. As such, the threshold issue 246  W. Howarth (2006), pp. 19–24. 247  Ibid. pp. 24–34. 248  Ibid. p. 25:  “However, the idea that nature, free from human interference, adheres to the unshifting equilibrium that is suggested by the paradigm has become increasingly difficult to reconcile with the mounting body of ecological evidence, suggesting dramatic oscillations in populations of species for reasons that may have no necessary connection with human interference.” 249  Ibid. p. 28:  “The ecological keystone of the Water Framework Directive is that the best ecosystems are those that show no signs of human intervention or only minimal anthropogenic impact. So far as it is possible to do so, waters should be maintained at, or restored to, this natural state. The golden age for aquatic ecosystems, it might be speculated, was some time before human activities first began to impact upon them, and the strategic ecological objective seems to be that of returning waters to this state insofar as this is feasible.” 250  Ibid. p. 32:  “The issues concerning ‘naturalness’ prompt the broader question of the extent to which human beings should be seen as a part of, or apart from, natural ecosystems. On this, it is notable that the minimal anthropogenic impact requirement under the Water Framework Directive takes the extreme position that the best ecosystems are those in which human beings play no part, or almost no part. Depending upon what view is taken of the concept of ‘naturalness’, it is at least arguable that the all-pervasiveness of human impacts is such that an ecosystem that genuinely met this criteria does not exist, for the reasons given previously. However, defining high-status ecosystems out of existence seems a rather pointless exercise, and it may be more productive to focus attention upon the exact meaning of ‘minimal’ in the context of minimal anthropogenic impact.”

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sets the nexus between environmental damage and the harm to the environment and/or to people resulting from environmental damage, which grounds a cause of action. The threshold requirement for water is phrased in Article 2(1)(b): “significant” impairment of water qualitative and quantity status. Harm to waters will be covered, as foreseen in Article 2(1)(b) in as much it “significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, as defined in Directive 2000/60/EC, of the waters concerned”. Directive 2000/60/EC provides in its Annex V for criteria and definitions. The status referred to ranges from high, good, moderate to poor and bad. Hence, the “significant” threshold will most probably be solidly assessed against the status change (for example from moderate to bad). It can be specified that the threshold specification “significant” is common to all damage and harms covered by Directive 2004/35 (harm to abiotic resources, biotic resources and ecosystems). 2.1.2.5 Harm to Land: An Anthropocentric Approach. Art. 2(1)(c) Similarly to the above regarding waters, if damage to land is legally constituted (i.e. a measurable adverse change is identified), there remains a need for investigation into the legal consequences of such adverse change in terms of protected interests or rights. Harm related to land quality is codified in Article 2(1)(c). Reference is made to human health that is or may be adversely affected. The value protected is of a purely anthropocentric inspiration. The approach does not recognise the inherent or the intrinsic value of land. Land is taken as a vector to the impairment of a purely anthropocentric interest, harm: human health. Only insofar as land contamination poses a significant risk to adversely affect human health, will such land contamination be covered by the responsibility liability mechanisms of the Directive. What “adversely affects” human health is not defined. For the threshold to be met and for the harm to be considered, the risk to impair human health must be significant. Here again, no indication is given as to what is to be understood by “significant”. The lack of instrumental, inherent or intrinsic value of land and clear definitions can be explained by the lack of EU law addressing land protection issues as such. All attempts have failed so far.251 251  Regarding the latest attempt, the European Commission withdrew on 21 May 2014 the Proposal for a Directive of the European Parliament and of the Council establishing a framework for the protection of soil and amending Directive 2004/35/EC (COM/2006/0232 final), Withdrawal of obsolete Commission Proposals, OJ C 153, 21 May 2014, pp. 3–7.

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2.1.3 The Definition Given by the EU Legislator in Directive 2008/99 Besides protected habitats and wild flora and fauna species, the Directive refers to “substantial damage” to the “quality of air, the quality of soil or the quality of water, or to animals and plants” in Article 3(a), (b), (d) and (e).252 Hence, the criteria are of a quantitative and qualitative nature.253 This attracts two criticisms. Firstly, when it comes to “damage to the quality”, no details are given on how to define quality. The provisions of the Directive are vague. Questions such as “against which baseline should damage be assessed?” are left without answer. At least some data should be available, following from Member States’ obligations according to other Community texts (such as, for example, impact assessment procedures). Similarly, for when it comes to damage to animals or plants, some very specific questions can be raised. Definition matters are also left unanswered regarding “damage to plants”. What is the quality of a plant? Such a basic question could raise quite some problems, moreover if some GMOs activities are to be challenged (for example, under Article 3(a)). Can the impairment of a plant’s genetic characteristics by contamination from a genetically modified plant be qualified as damage to the quality of the plant? Even though the Directive provides with “minimum rules”, this lack of precision could hamper the self-claimed objective of protecting the environment “more effectively”254 through “measures relating to criminal law”.255 Secondly, when it comes to terms such as air, soil, water, animals or plants, the Directive falls short of defining them, or at least giving precision in this respect. The only details are provided by in the Preamble, recital 5. In the recital, it can be read that air includes the stratosphere. It is most probable that Member States will hence rely on the definitions provided at national level. Given that EU environmental law largely influences such definitions, the discrepancies between Member States’ definitions could be not that important. One could hence wonder to what extent the Directive eventually sets a framework for the “protection of the environment as defined in national law”. Uniform definitions are crucial for assistance between Member States in

252  Italics added. What constitutes “substantial damage” refers to the thresholds. Just as for Directive 2004/35 the thresholds issue is touched upon below in sub-section 2.1.4. 253  When Directive 2004/35 refers to both qualitative and quantitative criteria, as exposed above. 254  Directive 2008/99, Article 1. 255  Ibid.

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criminal matters.256 Nevertheless, the Directive’s greatest weight of significance rests on the conduct or serious negligence—“unlawfulness”—regarding EU environmental law. When reading the list of such EU environmental law,257 it would be unfair not to mention that this (very comprehensive) list encompasses norms that make the link with the environmental features at stake.258 As such, the very definition of environmental features could be looked after based on the EU environmental law norms infringed. It is possible to give as an example the Directive on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture.259 Still, one could wonder whether this could weaken the whole responsibility framework by transposing the EU environmental texts’ weaknesses into the responsibility framework. That aspect is addressed in chapter 3, section 3.1.2. Critical Assessment of the Definition of Damage and Harm to Water, Air and Land: Limited Definition, the Threshold Condition and the Largely Anthropocentric Approach 2.1.4.1 Limited Application to Water, Air and Land260 To determine which features do not fall within the Directives’ definition of environmental damage gives answer to the question “what does the word “environment” not encompass?” This is a very problematic, debated and central issue for any environmental law study.261 This section exposes some 2.1.4

256  This aspect being referred to in the Directive’s Preamble, Recital 4. 257  The list is provided by Annexes A and B. 258  As is the case for example with “water”, since the Water Framework Directive is listed in the Annex into question. 259  Council Directive 86/278/EEC of 12 June 1986 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture, OJ L 181, 4 July 1986, p. 6. 260  The Lugano Convention adopts the same distinction between biotic and abiotic natural resources in Art. 2§10. See Council of Europe, Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano, June 21st 1993, available August 30th 2008 at and explanatory report available the same day at: . Art. 2(10) reads as follows: “Environment” includes: (. . .) natural resources both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors”. 261  See for example J. Ebbesson (2003), pp. 153–174, E. Fisher, B. Lange, E. Scotford and C. Carlane (2009), pp. 213–250. See also Marc Pallemaerts (2009).

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environmental elements that could have been explicitly covered by the Directives but are missing.262 As has been seen above, Directive 2004/35 defines water fairly broadly. The same applies to Directive 2008/99: even though the definitions are missing in the Articles of the Directive, the definitions can be found indirectly through EU legislation listed in the Annexes, the infringement of which constitutes unlawful conduct to constitute an offence. The same goes for the term soil, even though one could regret here that Directive 2008/99 eventually dropped an explicit reference to the bedrock and rock.263 Air is mainly referred to in

262  For quite obvious reasons the author cannot list all the environmental features one could think about, but rather pays attention to some specific features that are criticised for they do not fall under the scope of the Directives. 263  See the European Parliament’s Report in first reading, Report on the proposal for a directive of the European Parliament and of the Council on the protection of the environment through criminal law, A6-0154/2008, 15 April 2008, (COM(2007)0051—C6-0063/2007— 2007/0022(COD)), available 6 September at http://www.europarl.europa.eu/oeil/Find ByProcnum.do?lang=2&procnum=COD/2007/0022. Amendments 3, 22, 23, 24 and 26 are relevant here, for the sake of illustration amendments 3 and 22 and their justification read as follows:  “Amendment 3 (6) In order to achieve effective protection of the environment, there is a particular need for more dissuasive sanctions for environmentally harmful activities, which typically cause or are likely to cause substantial damage to the landscape, the air, including the stratosphere, bedrock, soil, water, animals or plants, including to the conservation of species. Justification In connection with environmentally harmful activities, no mention is made of bedrock (the lithosphere). Soil (where it exists) is merely an outer layer—up to 1.5 metres deep—which forms on the parent rock. Rubbish dumps and waste stockpiles (which may contain hazardous or radioactive waste) can be found in old mines or quarries (and therefore in the bedrock itself).” “Amendment 22 (b) the discharge, emission or introduction of a quantity of materials or ionising radiation onto the Earth’s surface, or into air, bedrock, soil or water, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, rock or water or to animals or plants; Justification Unlawfulness as a defining element of an offence has already been included in the introductory part of Article 3 and need not, therefore, be mentioned in the individual lettered points.

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Directive 2004/35 Preamble, Recital 4, as a vector of damage.264 The assessment of damage to air in Directive 2008/99 calls for the same comments as those expressed for water: a specific definition is lacking, but can nevertheless be found in the EU texts listed in annexes A and B. Hence, some criticisms can be formulated against the Directives for their rather limited list of environmental features expressly mentioned (for example bedrocks). 2.1.4.2 The Threshold Requirement: Two Criticisms Two criticisms can be put forward regarding the requirement that harm fulfils a threshold to fall under the Directives’ scope of application. Firstly, the high threshold requirements severely limit the scope of application of the Directives. This has been criticised by some Member States as reported in the questionnaires filled by national experts upon request by the European Commission services and relating to specific questions on the application of Directive 2004/35.265 One third of the Member States that answered the questionnaire pointed out that the very high thresholds are a limitation to the Directive’s application, as these call for national legislation to be applied, in instances of damage that does not meet the threshold requirement.266 Secondly, some scholars have severely criticised Directive 2008/99 for requiring harm thresholds: the mere existence of these thresholds is found to be at odds with EU environmental law. Some authors have pointed out (rightly according to the author) that setting thresholds transform “absolute” prohibitions in Community legislation into “relative” prohibitions.267 Ultimately, adding “new conditions for the implementation of Community law” could be seen as “important amendments” of “substantial” parts of The provision fails to mention the outermost layer of the lithosphere, where topography (relief, exposure) directly influences the spread of ionising radiation and other materials.” 264  Some authors have underlined that practically, such “mere” reference was not so crucial, for practical reasons. See for example L. Krämer (2007), p. 188. 265  Copy with the author. 266  Such high thresholds have been acknowledged by the United Kingdom, Slovakia, the Netherlands (“The absence of cases is due to the high level of thresholds for environmental damage in the Directive”), Estonia, Cyprus. In the same sense, see BIO Intelligence (2014), p. 64 and pp. 125–126. 267   F. Comte, “Criminal Environmental Law and Community Competence”, European Environmental Law Review, May 2003, pp. 147–156, and particularly pp. 153–156. Even though this article analyses the annulled Framework-decision on the protection of the environment through criminal law (OJ 05.02.03 L29/55) the criticisms apply to Directive 2008/99.

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Community environmental law.268 Indeed, as demonstrated by F. Comte, such condition requires the proof of (risk of) substantial damage to the environment in order for a criminal offence to be constituted and recognised by national courts.269 One could argue that the criminal nature of the offence and subsequent penalty (for example stigmatisation) justifies such thresholds. It is not the author’s purpose to take position on this debate. The author will rather describe which thresholds Directive 2008/99 foresees. Regarding “any person”,270 the threshold of damage is that it must eventually lead to “death” or “serious injury.” “Serious injury” is not defined. Turning to damage to “air”, “soil”, “water”, damage to their “quality” must be “substantial”.271 When it comes to damage to “animals” or “plants”, damage must also be “substantial”.272 Here it can be regretted that no definition is given of what “substantial” means, or against which criteria such a substantial damage is to be assessed. When defining the threshold applicable to damage to “specimens of protected wild fauna and flora species”,273 the impact on the “conservation status of the species” must be “non-negligible”.274 Even though no specific definition is provided for, one could expect the “non-negligible” effect on the conservation status to be defined according to the criteria provided for by the Wild Birds and Habitat Directives since these Directives define the protected species that fall under Directive 2008/99 scope. 2.1.4.3 Directive 2004/35 and Harm to Land: Two Criticisms Two criticisms can be formulated regarding harm to land in Directive 2004/35. N. de Sadeleer points out a possible gap that could result from discrepancies between EU environmental law and EU responsibility law. Indeed, EU waste law applied to cases where damage to land occurred is more stringent than Directive 2004/35 concerning liability obligations and has a wider scope of application: EU waste law obligations on operators are not limited to cases

268  Ibid. p. 153. The same criticism applies to the “unlawful” condition. This issue is further elaborated in chapter 3, section 3.1.2. 269  Ibid. pp. 154–156. 270  Directive 2008/99, Article 3(a), (b), (d), and (e). 271  Ibid. 272  Ibid. 273  Directive 2008/99, Article 3(f) and (g). 274  Ibid. a contrario.

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where there is an impact on human health.275 If this was the case, Directive 2004/35 provides in Article 3(2) that waste law should prevail. Also, the purely anthropocentric formulation of harm related to damage to land could be criticised. This anthropocentric approach ignores the “societal value” of land and the extremely important environmental function of land, and corresponding environmental harm.276 Harm to soil quality standards could have been either introduced or left to the discretion of Member States with regards to the application of criteria, in the absence of an EU harmonising regime in the field. The adoption of the proposed Directive establishing a framework for the protection of soil and amending Directive 2004/35277 could fill this loophole. Finally, this loophole is not consistent with what Member States reported in the questionnaires filled by national experts upon request by the European Commission services and relating to specific questions on the application of Directive 2004/35.278 In these questionnaires, damage and harm to land appear to be overwhelming.279 The strong occurrence of damage and harm to land does not only demonstrate that the loopholes in Directive 2004/35 are at odds. The same is true for Directive 2008/99, since the latter applies the same thresholds.

275  N. de Sadeleer (2006)b, p. 759. 276  See for example M. Everard and T. Appleby (2009), pp. 18 and 21. 277  Proposal for a Directive of the European Parliament and of the Council establishing a framework for the protection of soil and amending Directive 2004/35/EC (COM/2006/0232 final). 278  Copy with the author. 279  As appears from the questionnaires re. the cases of environmental damage treated pursuant to Directive 2004/35 between 1 May 2007 and 31 October 2009, among damage to “nature (sic), water, land”. Damage to land, together with damage to water, seem to have been the mostly concerned environmental damages categories. The United Kingdom reports one incident of damage to land and one damage to water. Sweden refers to “Mainly land and water damages”, Portugal mentions four cases, all concerned with damage to water. Lithuania reports two cases re. land and one case re. groundwater. Spain refers to damage to superficial waters or groundwaters and/or land as the mostly affected natural resources. For Belgium, the Flemish Region refers to a case of water damage. From these questionnaires it appears that in the responding Member States damage to protected species and habitats, together with ecosystems, has not appeared once. Nevertheless, there is bear in mind that only 15 Member States answered.

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Damage and Harm to Living Species, Habitats and Ecosystems: The Choices made by the EU Legislator 2.1.5.1 Damage: The Definition Given by the EU Legislator in Directive 2004/35 As seen above under 2.1, Directive 2004/35 provides a generic definition of environmental damage in Article 2(2) which defines “damage” as a “measurable adverse change in a natural resource”, Article 2(12) defines natural resource meaning protected species and natural habitats, water and land in Article 2(12). Damage refers to a “measurable impairment of a natural resource service which may occur directly or indirectly”. For the current developments, the Directive lists in Article 2(3) which species and habitats are understood as “protected species and habitats”. Protected species and natural habitats are defined according to the Wild Birds280 and Habitat281 Directives (Article 2(3)). More precisely and regarding species, environmental damage encompasses damage to the species mentioned in Article 4(2) and Annex 1I of the Wild Birds Directive (migratory birds and particularly threatened bird species), and species listed in Annexes II and IV of the Habitat Directive.282 When it comes to habitats, those that are covered by the notion of environmental damage are the habitats of the migratory birds and particularly the threatened species mentioned above, the habitats listed in Annex I of the Habitat Directive, the habitats of fauna and flora species listed in Annex II of the Habitat Directive, and the breeding or resting places of the species listed in Annex IV of the Habitats Directive.283 In earlier drafts of the Directive, reference was made only to the Special Areas of Conservation (SAC) referred to in the Habitat Directive, and the Special Protection Areas (SPAs) referred to in the Wild Birds Directive, SAC and SPAs forming the so-called “Natura 2000 network”.284 Reference to this network to 2.1.5

280   Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, OJ L 103, 25.04.1979, p. 1. Directive as last amended by Regulation (EC) No. 807/2003 (OJ L 122, 16.5.2003, p. 36). 281  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22.7.1992, p. 7. Directive as last amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1). 282  See L. Krämer (2006)b, p. 40. 283  Ibid. 284  As mentioned above, provisions of the habitat Directive to which reference is made in Article 4(4) are Annex I that refers to natural habitat types of Community interest whose conservation requires the designation of Special Areas of Conservation (herein after SACs), Annex II that refers to animal and plant species of Community interest whose conservation requires the designation of special areas of conservation (SACs), and Annex IV

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define the scope of protected species and habitats falling under the notion of “natural resources” covered by the Directive has been criticised.285 Indeed, the Natura 2000 network is reported to cover more or less 20% of total EU territory.286 It can be questioned if this percentage fits with the claimed objective of avoiding a “greater loss of biodiversity”.287 Such an exclusive reference has been abandoned in the later versions of the draft Directive, and in the adopted version of the Directive.288 Indeed, the adopted Directive provides with the possibility for Member States to broaden the scope of species or habitats covered by Directive 2004/35 in Article 2(3)(c).289 The extent to which Member States will be willing to broaden the scope of protected species and habitats could be triggered by the willingness of Member States to have “the polluter paying”, instead of public money being spent to prevent, restore damage to those sites.290 Still, such a possibility is left to Member States’ discretion.

that refers to animal and plant species of Community interest in need of strict protection. Provisions of the wild birds to which reference is made are Annex 1 providing for a list of 74 species, and Article 4(1) and (2). 285  As reported for example by L. Krämer (2006)b, pp. 39–40, E. H. P. Brans (2001), pp. 20–21, 199–202. 286  One can read on the website of the European Commission, DG environment, and more specifically on the page introducing the Natura 2000 network, “Nature & Biodiversity”, page visited August 29th 2009 (emphasis added):  “European society, our immense cultural diversity and our economies are reflected in our landscapes, agriculture and natural spaces. We are stewards of a wonderful natural legacy that we can pass on hopefully in tact to future generations. Over the last 25 years together we have built up a vast network of over 26,000 protected areas covering all the Member States and a total area of around 850.000 km2, representing more than 20% of total EU territory. This vast array of sites, known as the Natura 2000 network—the largest coherent network of protected areas in the world, is a testament to the importance that EU citizens attach to biodiversity”, page available at . Still, the exact percentages of the EU territory covered are not available on the website. Nevertheless, given that it is not possible to add the SPAs and SAC for some of those sites overlap, it can be contended that the percentage cannot be superior to around 23% (according to the data available by August 29th 2009). 287  Directive 2004/35, Preamble, Recital 1. 288  See E. H. P. Brans (2006), pp. 193–194. See also N. de Sadeleer (2007), pp. 36–75. 289  In this respect, L. Krämer (2006)b p. 40 points out that this provision is ‘merely declaratory’, as ‘under Article 176 EC Treaty the Member States already have the possibility to extend the application of the liability system to areas, events or activities which are not covered by the Directive. 290  As underlined E. H. P. Brans (2001), p. 199.

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Furthermore, the protected species and habitats extend to the species and habitats that meet the criteria set by the Habitats and Birds Directives to receive a particular protection under EU law, but nevertheless do not appear on the Natura 2000 lists.291 These species and habitats also fall under the scope of Directive 2004/35. 2.1.5.2

Harm: The Definition Given by the EU Legislator in Directive 2004/35 Article 2(1)(a) of Directive 2004/35 requires an environmental damage to be significant to be covered. Damage to protected species and habitats must have “significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species”. Significant adverse effects will be assessed, as provided for by Annex I, by reference firstly to the conservation status “at the time of damage”, secondly to the services provided by the amenities they produce, and thirdly to their capacity for natural regeneration”: in other words, the baseline condition. The Annex then lists the “measurable data” that can (this list is not exhaustive, as expressed by the words “such as”) determine whether the threshold of “significant adverse effects” is reached.292 It can already be highlighted that “damage with a proven effect on human health must be classified as significant damage”.293 “Damage to species or habitats for which it is established that they will recover, within a short time and without intervention, either to the baseline condition or to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition”294 can not be classified as significant damage, therefore not 291  See N. de Sadeleer (2006)b, pp. 747–748 and P. Steichen (2009), pp. 250–252. 292  Those are, as listed in Annex I: the number of individuals, their density or the area covered; the role of the particular individuals or of the damaged area in relation to the species or to the habitat conservation, the rarity of the species or habitat (assessed at local, regional and higher level including at Community level); the species’ capacity for propagation (according to the dynamics specific to that species or to that population), its viability or the habitat’s capacity for natural regeneration (according to the dynamics specific to its characteristic species or to their populations); the species’ or habitat’s capacity, after damage has occurred, to recover within a short time, without any intervention other than increased protection measures, to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition. 293  Ibid. That point is further elaborated on in Chapter 3. 294  Annex I.

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falling under the scope of the Directive. Some legal scholars (and scientists) have criticised this, for it is not in line with the prevention and sanction functions of the responsibility schemes.295 The requirement of a threshold to be met can trigger criticisms. They hinder the responsibility mechanisms in fulfilling their preventive or corrective functions. In addition, the thresholds can also be criticised for being too technical, hence raising doubts as for the ability of those who have a role to play when assessing or questioning responsibility (public authorities, judges, citizens, environmental NGOs). On the other hand, one threshold is left undefined: adverse affect to human health (in the context of land damage). 2.1.5.3

Damage: The Definition Given by the EU Legislator in Directive 2008/99 In Directive 2004/35, the definitions of “protected wild fauna and flora species” and “habitat within a protected site” are given with reference to similar texts when turning to the killing, destruction, possession or taking of specimens of protected wild fauna or flora species (Article 3(f)): the Wild Birds296 and Habitat297 Directives. Indeed, according to Article 2(b) of Directive 2008/99 “protected wild fauna and flora species” encompass the species mentioned in Article 4(2) and Annex I of the Wild birds Directive (migratory birds and particularly threatened bird species), and species listed in Annex IV of the Habitat Directive.298 When it comes to habitats, the habitats covered in Directive 2008/99 are those classified as Special Protection Areas or Special Conservation 295  For a detailed explanation of the threshold determination and criticism, see for example M. Hinteregger (2008), pp. 15–16; L. Krämer (2006)b pp. 38–39 according to whom, even though “The natural damage is assessed with reference to a ‘baseline condition’ ”, “What is ‘significant’ is not defined”; and A. Layard (2006), pp. 135–136. See also M. L. Wilde (2001), p. 32; and L. Neyret (2006), pp. 501–503. Concerning damage to waters, see N. de Sadeleer (2006)b, p. 756: the author points out that national authorities may apply such criterion quite differently from one State to another one, which could also lead to difficulties when approaching transfrontier waters. 296   Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, OJ L 103, 25.04.1979, p. 1. Directive as last amended by Regulation (EC) No 807/2003 (OJ L 122, 16.5.2003, p. 36). 297  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22.7.1992, p. 7. Directive as last amended by Regulation (EC) No. 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1). 298  But Directive 2004/35 also covers the species listed in Annex II. This is not the case with Directive 2008/99.

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Areas (Article 2(c)), in other words the Natura 2000 habitats.299 The criticisms raised when analysing the 2004/35 Directive regarding the restricted scope of application apply to Directive 2008/99.300 The author will not repeat them. It is sufficient to stress that the limited definition of “natural resources” against the broader term “biodiversity” will be further elaborated in the second section. Directive 2008/99 refers to one text not referred to in Directive 2004/35: Regulation No. 338/97 on the protection of species of wild fauna and flora by regulating trade of those species,301 mentioned in the offence foreseen in Article 3(g).302 As for damage to those protected species and habitats and the criteria used to identify damage, when Directive 2004/35 refers to adverse effect or impairment, Directive 2008/99 states that for protected wild fauna and flora species, in the case of a non-negligible impact (on the conservation status) and a non-negligible quantity of specimens (Article 3(f) a contrario), the same criteria apply for offences relating to trade of protected species or parts or derivatives thereof (Article 3(g) a contrario). The criterion applied for the definition of damage to habitat is the “deterioration” of a habitat within a protected site (Article 3(h)). 2.1.5.4

Harm: The Definition Given by the EU Legislator in Directive 2008/99 Similarly to the above with regards to environmental harm in Directive 2004/35, harm requires a threshold to be attained in order to be covered by the Directive. More specifically, the thresholds are similar to the thresholds described above. With regards to animals and plants, it has been seen that Directive 2008/99 refers to “substantial damage” to the “animals and plants” in Article 3(a), (b), (d) and (e).303 The criterion is of a quantitative and qualitative nature,304 which attracts two criticisms that have been elaborated upon above.

299  On this network, see above section 2.1.5, under “The definition given by the legislator in Directive 2004/35. Damage to living species, habitats and ecosystems”. 300  See paras. 144–146. 301  Regulation (EC) No. 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, OJ L 61, 3 March 1997, p. 1. 302  According to Article 2(b)(iii), the species covered are those listed in Regulation (EC) No. 338/97 on the protection of species of wild fauna and flora by regulating trade of those species, Annexes A and B. 303  Italics added. What constitutes “substantial damage” refers to the thresholds. Just as for the 2004/35 Directive, the thresholds issue is touched upon above in sub-section 2.2.3. 304  When Directive 2004/35 refers to both qualitative and quantitative criteria, as exposed above.

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Regarding the protected species in Article 3(f) and (g), reference is made to a “non-negligible quantity” and “non-negligible impact”, and Article 3(h) refers to habitats and requires the deterioration of a protected site to be significant. Above, the author has already elaborated on the very fluid and imprecise character of this reference. They will not be repeated here. Unlike Directive 2004/35, no definition of the damage and threshold requirement is provided in Directive 2008/99. Critical Assessment of Damage and Harm to Species, Habitats and Ecosystems 2.1.6.1 Features not Covered by the Directives: Three Common Criticisms The first criticism refers to the identification of the protected species. The criticisms are similar to those expressed above relating to protected habitats. Secondly, habitats are only partially covered by the Directives: they will be covered in as much they are recognised as “protected habitats”, be it according to EU law, or national law.305 The Directives do not cover all habitats. Besides the fact that EU habitats do not cover such an important percentage of the EU territory, granting Member States with such a margin of discretion for elements of the Directives’ scope will largely influence how environmental responsibility functions and its efficiency. Finally, minerals and forests are not covered as such by the Directives.306

2.1.6

2.1.6.2

Directive 2004/35 and Damage to Protected Species and Habitats: Two Criticisms Regarding Directive 2004/35 and damage to protected species and habitats, and despite the criticisms that follow, the added value of Directive 2004/35 should be emphasised. As commonly highlighted by scholars, The impact of the ELD (Directive 2004/35) should not be underestimated, for it has changed the playing field considerably. Before the ELD, species and habitats were generally protected by human ownership, exclusively, because if damaged, only the lawful owner could sue for damages. This was not obligatory, and difficult if ownership could not be established. (. . .) Generally speaking, liability was from one human owner (generally, 305  Ibid. Particularly and as exposed in section 1, Member States are left with the possibility to extend the percentage of “protected” habitats within their own territory, as provided by Article 176 EC Treaty and some specific provisions in both Directives 2004/35 and 2008/99. 306  For a criticism, see N. de Sadeleer (2006)b, p. 744.

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the ‘operator’) to another human owner (of the damaged ‘goods’). With the ELD in place, some elements of nature at least have some direct intrinsic protection and must be restored upon damage irrespective of ownership.307 As for a critical assessment of Directive 2004/35 provisions dealing with protected species and habitats, they provide for a rather limited scope of protected species and habitats falling under the scope of the Directive, even though such a limit is potentially solved by Member States’ implementation. What is at stake here is the huge difference between natural resources and ‘biodiversity’ as defined, for example, by the UN Convention on Biodiversity.308 This difference has been emphasised and criticised by many legal scholars.309 As is examined below in greater detail, the difference between the “natural resources” of Directive 2004/35 and “biodiversity” in international environmental law is not limited to the more limited scope of natural resources, but also to what is taken into account when assessing the “adverse change in a natural resource” or “impairment of a natural resource service”. Definition of Damage and Harm to Natural Resource Services: The Choices made by the EU Legislator and Critical Assessment 2.1.7.1 Definition Given by the EU Legislator in Directives 2004/35 and 2008/99 Directive 2008/99 does not endorse damage to ecosystems or harm to ecosystems. Even though the 9 February 2007 Impact Assessment, accompanying document to the Proposal for a directive on the protection of the environment through criminal law, referred to ecosystems (“The notion of environment is a very broad one and is commonly considered to encompass the complex of physical, chemical, and biotic factors that surround and act upon an organism or ecosystem”), the notion of ecosystems is absent from all the proposed Directives and the Directive adopted.310 On the contrary, Directive 2004/35 2.1.7

307  H. Aiking, A. H. P. Brans, E. Ozdemiroglu (2010), p. 5. 308  UN Convention on Biological Diversity (CDB), 5 June 1992, Rio De Janeiro. The EC adhered to that Convention by Decision 93/626 (1993) OJ L 309 p. 1. 309  For example L. Krämer (2006)b, pp. 39–40; E. H. P. Brans (2006), pp. 192–195; see also M. Hinteregger (2008), p. 641. 310  Accompanying document to the Proposal for a directive on the protection of the environment through criminal law, Impact Assessment, COM(2007) 51 final SEC(2007) 161, 9th February 2007, p. 4.

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does endorse the notion of natural resource service, as well as damage to natural resource service and harm to natural resource service. Accordingly, the following developments focus on Directive 2004/35. The author already mentioned earlier that in order to define damage, Directive 2004/35 refers to both “measurable adverse change in a natural resource” and “measurable impairment of a natural resource service”. The definition of “services” is given in Article 2(13) as follows: “ ‘services’ and ‘natural resources services’ mean the functions performed by a natural resource for the benefit of another natural resource or the public”. Hence, not only changes in quantity or quality of natural resources will be considered to constitute an environmental damage. The Directive also covers environmental damage understood as impairment of the “functional diversity”,311 for the benefit of another resource or for the benefit of the public. This has commonly been welcomed as a great progress in the legal appraisal of environmental matters. The “measurable” aspect will be further elaborated below, when considering the threshold requirement: an environmental damage, to fall under the Directive and to trigger responsibility, must attain a threshold. The author will rather devote here a couple of lines to the difference between the Directive 2004/35 definition of ‘damage’ and the “authoritative and generally accepted interpretation of the term biodiversity”.312 Whereas the Directive tends to refer to the quality and quantity of ‘natural resources’ on the one hand, and to functional diversity on the other, such a definition leaves aside quite some damage, such as “genetic diversity within a species, the variability among species, (. . .) and ecosystem diversity”.313 The author further elaborates on that below under the critical sub-section. 2.1.7.2

Critical Assessment: The Services and Ecological Services not Covered What is referred to could be seen as the “functional” aspect of biodiversity.314 In other words, the universal aspect of the environment encompasses the relationship between the “individual” features identified above. As seen in the previous section, whereas the Directive tends to refer to the quality and 311  E. H. P. Brans (2001), p. 193 where the author defines this function as “referring to the variety of biological functions of ecosystems”. 312  E. H. P. Brans (2001), p. 193. 313  Ibid. On ecosystems damage and harms in Directive 2004/35, see I. Doussan (2009), pp. 125–141. 314  L. Neyret (2006), pp. 145–148.

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quantity of ‘natural resources’ in one respect, and the functional diversity in another, such definitions leave aside a non-negligible amount of damage such as “genetic diversity within a species, the variability among species, (. . .) and ecosystem diversity”.315 Also, changes in quantity or quality of natural resources will not be considered exclusively to constitute an environmental damage by Directive 2004/35. The Directive also covers environmental damage understood as impairment of the “functional diversity”,316 for the benefit of another resource or for the benefit of the public. Even though this notion is not as broad as the one understood by the UN Convention on Biodiversity and reveals that the environmental and ecological services do not equal ecosystems,317 it is still very broad. This broad coverage is to be welcomed. In this respect, the author regrets that Directive 2008/99 does not include the services mentioned in Directive 2004/35. Finally, landscapes are not covered by the two Directives or have been deleted in the process of the legislative decision-making. On the contrary, the Council of Europe Lugano Convention and Convention on the protection of the environment through criminal law do cover landscapes.318

315  E. H. P. Brans (2001), p. 193. 316  Ibid. where P. Brans defines this function as “referring to the variety of biological functions of ecosystems”. 317  UN Convention on Biological Diversity (CDB), 5 June 1992, Rio De Janeiro. The EC adhered to that Convention by Decision 93/626 (1993) OJ L 309 p. 1. 318  In this respect and relating to Directive 2008/99, see A. Gouritin, and P. De Hert, (2009). The Council of Europe Convention on the protection of the environment through criminal law does cover landscape in Article 4(f). The explanatory report provides: “Paragraph f has no reference to Article 2. It includes in the Convention illegal behaviour related to specific areas in nature which deserve special protection. Examples are on the one hand national parks and nature reserves, as well as water conservation areas such as water protection zones, including drinking water reservoirs. ‘Other protected areas’ are those which need protection due to their environmental quality, i.e. particular beautiful landscapes or biotopes or due to certain dangers like smog-zones or the preservation of certain high standards as in spa resorts.” Also, the Lugano Convention does cover landscape and historical monuments in Article 2(10), 2nd and 3rd indents: “Environment” includes: (. . .) property which forms part of the cultural heritage; and the characteristic aspects of the landscape.” The European Landscape Convention adopted under the auspices of the Council of Europe in Florence on 20 October 2000 defines a landscape in Article 1 a) as “an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors”.

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Gaps in the Directives: The Grounds for Responsibility. Limits of the Public and Regulatory Approach

The question answered in this chapter is whether EU environmental responsibility mainly reflects and flows from a regulatory approach or a protective approach. More specifically, does the weight of environmental responsibility lie in the polluter’s behaviour, hence referring to the behaviour’s regulation? Or does the weight rather lie rather in environmental damage and harm, in other words, in the protection or guarantee that such damage is to be prevented and sanctioned?319 Regarding primary obligations, does environmental responsibility derive from risk, fault, profit, or guarantee? This will enable us to identify whether the primary obligations breached are protective obligations not to infringe environmental rights or instead, preventative obligations.320 The grounds for environmental responsibility prove crucial with a view to challenging the EU regulatory approach in itself, and its inconsistencies. Broadly speaking, there are two possible approaches to regulate environmental responsibility. In one approach, the first step is to grant a right or interest (for example a right to clean water from the river). The second step is the protection of that right through responsibility. The focus is therefore on rights. In the other approach, the first step is to set obligations (for example not to emit substances into the river). The second step is to sanction the failure to respect that obligation through responsibility. The focus is therefore on obligations. Both Directives 2004/35 and 2008/99 only partially rely on rights granted to citizens. They rather rely on obligations (both positive obligations—obligations to follow EU environmental requirements—and negative obligations— obligations not to do something or to be negligent).321 It is contended in this book that Directive 2004/35 is more concerned with cost-allocation than with responsibility as such. Consequently, it could be contended that by regulating cost-allocation,322 Directive 2004/35 does not preclude the application of other responsibility regimes that regulate 319  On this distinction, see chapter 1, and N. De Sadeleer (2002), pp. 38–41. L. Neyret (2006), p. 390 refers to the “objective fact of created damage” (translation mine). 320  See G. Viney, (1995), pp. 155–158. 321   See for example Directive 2008/99 Preamble, Recital 9 and See for example the Commission’s White Paper on environmental responsibility, COM(2000) 66 final, 9 February 2000, p. 13. 322  I.e. focusing on liability, based upon the “guarantee for created risk”, and setting secondary rules.

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responsibility.323 It could be envisaged that the consequences are by far less loaded in Directive 2008/99 than Directive 2004/35, given that criminal responsibility is largely autonomous from civil or administrative legal systems and the relationship between these responsibility regimes is highly regulated in national law. It will be seen below that this assumption is incorrect when it comes to EU environmental criminal law regulated in Directive 2008/99. With a view to answering whether EU environmental responsibility law mainly reflects and flows from a regulatory or protection approach, the author first elaborates on the importance to research on grounds for environmental responsibility (2.2.1) and identifies the impact of the regulatory approach on Directives 2004/35 and 2008/99 with respect to the grounds for responsibility (2.2.2 to 2.2.4). At the subsequent stage, the author focuses on the responsible person (2.2.5 to 2.2.6). Having identified the influence of the regulatory approach in terms of grounds for responsibility and responsible persons, the discussion progresses to the gaps of the Directives in terms of grounds for responsibility, i.e., breach of primary obligations, and persons bound by these primary obligations (2.2.7 to 2.2.9). Introduction: Grounds for Responsibility Trigger the Application and the Regulatory Approach of the Directives 2.2.1.1 A Mitigating Factor in Case of Interplay or Concurrence between Parallel Responsibility Regimes Reflecting on the grounds for responsibility (and the gaps therein) is not a matter of purely doctrinal activity. It has important practical consequences when parallel responsibility systems exist. Identifying the grounds for responsibility is an instrumental exercise with regard to the interaction and coexistence of distinct responsibility regimes. Grounds for responsibility are key to the communication between responsibility regimes. The relationship between distinct responsibility regimes is essential for victims faced with a choice between responsibility regimes to invoke in order to have the most favourable rules applied to their cause of action. As a rule,324 the European Court of Justice condemns national laws that maintain a general responsibility system parallel to an EU responsibility 2.2.1

323  I.e., primary rules and the breach of these in terms of risk or fault. 324  See for example European Court of Justice C-52/00, European Commission v. French Republic, ECR I-3856, point 21: “Article 13 of the Directive cannot be interpreted as giving Member States the possibility of maintaining a general system of product liability different from that provided for by the Directive”; C-402–03 (Grand Chamber), preliminary ruling, 10 January 2006, ECR I-223.

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regime implemented into national law.325 Nevertheless, a national regime can be maintained and coexist with a responsibility regime that has its source in EU law when the former relies on distinct grounds of responsibility.326 The scope of application of a responsibility regime is also a crucial element regarding the coexistence of parallel regimes.327 In this respect, legal definitions prove instrumental. Inasmuch as national regimes for environmental responsibility has grounds for responsibility and a scope of application distinct from Directives 2004/35 and 2008/99, these regimes will not be precluded by the Directives. This is reflected in the Directives themselves.328 2.2.1.2 The Directives: Instrumental to Enforce EU Environmental Law The choice of grounds for responsibility is related to the objectives pursued by the Directives. In this respect, Directive 2004/35 is perceived by the EU legislator as a tool to enforce EU environmental law and ensure its implementation. The Directive reflects this role in its Preamble, Recital 3. The link between environmental responsibility and EU environmental law is meant to justify fulfilment of the subsidiarity requirement.329 The preparatory documents also reflect this implementation objective. In the European Commission’s White Paper on Environmental Responsibility, environmental responsibility is referred to as having an “integrating effect of common enforcement”.330 325  As was for example the case for Directive 85/374 on responsibility for dangerous products. 326  European Court of Justice, C-52/00 European Commission v. French Republic, ECR I-3856, point 22:  “the system of rules put into place by the Directive (. . .) does not preclude the application of others systems of contractual or non-contractual liability based on other grounds, such as fault or a warranty in respect of latent defects”, in the same sense see European Court of Justice, C-183/00, preliminary ruling, Gonzales Sanchez, 25 April 2002, ECR I-3905, point 31; and C-402/03, Skov and Bilka, 2006, ECR I-199, point 47. 327  As the European Court of Justice ruled in the Société Moteurs Leroy Somer case, C-285/08, 4 June 2009, ECR I-04733, points 26 and 27. The legal definition of environmental damage in the 2004/35 and 2008/99 Directives will also prove to be a crucial element, as will be seen below. 328  For Directive 2004/35, see Article 3(4). For Directive 2008/99, see the Preamble, Recital 11. 329  In this respect, Recital 3 refers back to the Habitat Directive, the Wild Birds Directive, and the Water Framework Directive. 330   Commission’s White Paper on environmental responsibility, COM(2000) 66 final, 9th February 2000 p. 7. Also, ibid. p. 22, under “4.7 Access to Justice”, the White Paper relates back to the Commission’s Communication to the Council and Parliament entitled ‘Implementing Community environmental law’ whereby access to justice is believed to address EU environmental law implementation and enforcement. NGOs are granted

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In a Communication, the European Commission contends that access to justice sheds light and solves problems of EU law implementation, including by relying on individual cases. Also, the European Commission emphasises access to justice’s “general effect of improving practical application and enforcement of EU environmental law” since potentially responsible actors are expected to strive for compliance with EU environmental law with the view to avoiding responsibility and litigation.331 In the White Paper, under the section (3.3) entitled “Boosting the implementation of EC Environmental Law”,332 the European Commission contends that environmental responsibility “should also improve compliance with EC environmental legislation.” Directive 2008/99 on environmental criminal law is also perceived as an instrument to ensure compliance with, and enforcement of EU environmental law. This role is referred to in the Directive itself and the two cases delivered on environmental criminal law: the C-176/03333 and C-440/05 discussed at length in chapter 1.334 Directive 2008/99 refers in its Preamble, Recital 3, to the existing systems of penalties (administrative or compensation mechanisms) that insufficiently achieve “complete compliance with the laws for the protection of the environment”. Recital 8 refers to EU environmental legislation that should be subject to criminal law measures “in order to ensure that the rules on environmental protection are fully effective.” Cases C-440/05 and 176/03 do also emphasise this role that grounds the EU legislator’s competence to regulate environmental criminal responsibility. The European Court of Justice, when ruling on whether or not the EU legislator had competence to regulate environmental criminal law, found that the EU legislator’s competence to regulate such law follows from the recognised competence of the legislator to regulate environmental law. Implied powers result from the “necessity test” and the need to ensure effectiveness of EU environmental law. The link between environmental criminal law and EU environmental law is made crystal-clear.

a specific access to justice under the 2004/35 Directive, as seen at length in chapter 4, section 4.1.1. 331   European Commission, Communication to the Council and Parliament entitled ‘Implementing Community environmental law’, COM(96) 500 final, p. 12. 332  White Paper on environmental liability mentioned above, p. 14. 333  ECJ, C-176/03, Commission v. Council, 13 September 2005 (Grand Chamber), ECR I-7879. 334  ECJ, C-440/05, Commission v. Council, 23 October 2007 (Grand Chamber). See section 1.4.2 under “Directive 2008/99: conflict between the Commission and the Council”.

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2.2.1.3

Effects of Enforcement Matters on the Regulatory Approach and Responsibility Paradigm Grounds for responsibility do not just have a role to play regarding the application of the Directives or another responsibility framework. The grounds for responsibility in the Directives also provide crucial insights regarding the overall questions answered in the book. Acknowledging EU environmental responsibility law as striving for EU environmental law enforcement, compliance and implementation brings up several issues and hypotheses that are addressed in the framework of the book. These hypotheses are examined in the following developments. On the one hand, this enforcement function is meant to be decisive with regards to the relationship between EU environmental responsibility law and EU environmental law.335 What is at stake is the dependence of the former with regard to the latter. This dependence shaped under the regulatory approach is identified and criticised below. On the other hand, the weight of significance resting on EU environmental law could operate a shift in the environmental responsibility paradigm: the focus would be on breaching EU environmental law, rather than on private persons’ breach of primary obligations towards environmental values. EU environmental law could potentially be a screen between obligations towards environmental values and private persons’ primary obligations. The greatest effects of the regulatory approach are identified in this chapter on the grounds for environmental responsibility. Directive 2004/35: The Polluter Pays Principle is not a Ground for Environmental Responsibility 2.2.2.1 Directive 2004/35 and the Polluter Pays Principle, an Economic Principle Turning to the grounds for responsibility chosen by the EU legislator, the first ground discussed and rejected is the polluter pays principle. The principle is referred to in EU prmary law, at Article 191(2) of the TFEU.336 2.2.2

335  As reflected in the White Paper on Environmental Liability mentioned above, p. 14:  “Therefore, the link between the provisions of the EC liability regime and existing environmental legislation is of great importance.” 336  The EU Court has delivered a series of cases on the principle. On the principle and the scheme for greenhouse gas emission allowance trading see EUGC T-370/11, Republic of Poland v. European Commission, 7 March 2013, published in the electronic Reports of Cases (Court Reports—general), para. 90. On the interplay between the principle and the burden entailed for a federal budget by the rehabilitation at a mining site

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This principle was originally conceived as an economic principle.337 It strives for the internalisation by the “polluter” of the external environmental costs created by him. The internalisation of costs to realise an environmental objective (compensation, restoration) is to be economically sound. In other words, the costs must reflect the environmental objective to be attained: they must be economically effective. This internalisation stems from economics.338 In a stricter version, the polluter pays principle prohibits states from offering subventions to the “polluter”: it is for the polluter to cover the costs, not for the state through public money. Under this strict version, the goal is mainly to ensure fair competition, as was expressly stated by the OECD in 1972: The polluter should bear the expenses of carrying out the (pollution prevention and control) measures decided by public authorities to ensure that the environment is in an acceptable state. In other words, the cost of these measures should be reflected in the cost of goods and services which cause pollution in production and/or consumption. Such measures should not be accompanied by subsidies that would create significant distortions in international trade and investment.339 An intermediate version of the principle makes it compulsory for the “polluter” to partially internalise the costs that follow from his activity on the environment.

where radioactive waste is stored see EUCJ C-5/14, Kernkraftwerke Lippe-Ems GmbH v. Hauptzollamt Osnabrück, 4 June 2015, not yet published, para. 78. On the interplay between the principle and the concept of charges normally brought by the budget of an undertaking see EUGC T-538/11, Kingdom of Belgium v. European Commission, 25 March 2015, not yet published, appeal case before the EUCJ, C-270/15P, paras. 84–85. 337  The principle’s soundness from an economic point of view will not be discussed here. For such analysis and justification by Law and Economics’ scholars, see K. De Smedt (2007); and L. Bergkamp (2001), pp. 73–86. 338  On the polluter pays principle as initially an economic principle, see E. de SabranPontevès (2007); and N. De Sadeleer (2002), p. 21: “The polluter-pays principle is an economic rule of cost-allocation whose source lies precisely in the theory of externalities”. 339  “Guiding principles concerning the international economic aspects of environmental policies”, Recommendation adopted by the OECD Council on 26th May 1972 [C(72)128]. For a complete survey OECD texts and analysis of the Polluter Pays Principle, see “The Polluter-pays-principle”, OECD Monograph, OEC Paris 1992.

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The wider version of the principle extends the costs to be internalised to include the full costs generated by the “polluter”: this encompasses both prevention and restoration measures. The wide version also covers accidental pollution.340 When reading from the Commission White Paper on environmental responsibility and provisions of Directive 2004/35, it clearly appears that the EU legislator chose the polluter pays principle as a ground for responsibility in Directive 2004/35. One can read in the Commission’s White Paper on environmental responsibility:341 Environmental liability is a way of implementing the main principles of environmental policy enshrined in the EC Treaty (Article 174(2)), above all the ‘polluter pays’ principle.342 Similarly, reference to the principle as grounding responsibility in Directive 2004/35 is made clear in the Preamble, Recital 2, where it is foreseen that the principle is to be furthered. Equally, Article 1 states that [t]he purpose of this Directive is to establish a framework of environmental liability based on the ‘polluter-pays’ principle, to prevent and remedy environmental damage. The EU Court has the same reading in the FIPA case: It should be noted, however, that the ‘polluter pays’ principle is capable of applying in the main proceedings to the extent that it is implemented by Directive 2004/35.343

340  E. de Sabran-Pontevès (2007), pp. 193, 194, 271, 237–244, 261, 257, 259, 262, 256, and 260. On the tensions between the preventive and restorative functions, see more particularly pp. 206–207, 241–242, and 253. 341   European Commission’s White Paper on environmental responsibility, COM(2000) 66 final, 9th February 2000. 342  Ibid. p. 14, under “3.1. Implementing the Key Environmental Principles of the EC Treaty”. 343  EUCJ C-534/13, Ministero dell’Ambiente e della Tutela del Territorio e del Mare and Others v. Fipa Group Srl and Others, 4 March 2015, not yet published, para. 42. In this case the question referred for a preliminary ruling is whether a national law cannot require the owner of a land that has been polluted by a former owner to adopt preventive and remedial measures. The Court concludes that national law cannot require the current owner to adopt preventive and remedial measures.

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The Opinion of the Advocate General Juliane Kokott in this case is even clearer: Directive 2004/35 is a lex specialis regarding the “polluter pays” principle.344 2.2.2.2 Explaining the Polluter Pays Principle’s Overwhelming Presence This overwhelming presence of the reference to the principle can be explained in two ways. At the very beginning of the legislative process Directive 2004/35 was meant to set a civil liability mechanism covering purely environmental damage345 inspired by the Council of Europe Lugano Convention on Civil Responsibility for Damage Resulting from Activities Dangerous to the Environment.346 In 2001, the Directive’s design changed and moved towards a “public law approach”.347 While this change occurred, some civil liability mechanisms features remain in Directive 2004/35. As a formerly civil liability mechanism, legal scholars and the EU legislators had perceived the polluter pays principle as a tool which would solve the problems inherent to the civil liability mechanisms. These problems (like, for example, the causal link demonstration in the case of diffuse pollution) are perceived as great difficulties in attempts to compel the “polluter” to actually prevent, restore and compensate for environmental damage. These limits are criticised as ultimately resulting in the polluter’s immunity. The principle is hence presented as a solution through what the simple label implies: the polluter must pay. The author argues in the sub-section that follows that this conception may be misleading and overly simplistic. A second explanation refers to the “public law approach” adopted by Directive 2004/35 and the actors involved in this approach. The ultimate effect of the principle is to make sure that the costs incurred from environmental damage (including the prevention of damage) lie on the polluter’s shoulders rather than collectively on the State, and eventually on the taxpayer’s shoulders. The European Commission explicitly formulates this view as follows:

344  EUCJ C-534/13, Ministero dell’Ambiente e della Tutela del Territorio e del Mare and Others v. Fipa Group Srl and Others, Opinion of the Advocate General, 20 November 2014, para. 21. 345  See section 1.4.1. 346  Convention on Civil Responsibility for Damage Resulting from Activities Dangerous to the Environment, Lugano, June 21st 1993, available August 30th 2008 at and explanatory report available the same day at: . On this Convention as a source of inspiration for Directive 2004/35, see section 1.4.1. 347  See C. Clarke (2003); and section 1.4.1.

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If this principle (the polluter pays principle) is not applied to covering the costs of restoration of environmental damage, either the environment remains unrestored or the State, and ultimately the taxpayer, has to pay for it.348 Hence, it is for the national authority to identify the polluter (under the possible review of citizens and NGOs),349 and it is the responsibility of this authority to make sure that the polluter, and not the taxpayer, will pay. The preceding paragraphs show that a superficial and misleading reading of Directive 2004/35 would lead to the assumption that environmental responsibility is grounded on the polluter pays principle. All other features (risk, fault, etc.) would be “technical details” of environmental responsibility: they would articulate the principle as a ground for responsibility. Environmental responsibility mechanisms would flow from and be consistent with the principle.350 Nevertheless, this reading is strongly contested. This reading is critically assessed in the following. 2.2.2.3

Rejecting the Polluter Pays Principle as Grounding Environmental Responsibility Some legal scholars strongly challenge the Polluter Pays Principle as grounding environmental responsibility, for this would translate an economic principle into a legal principle. The transposition of an economic principle as a legal responsibility principle is challenged for several reasons: inappropriateness,351 inconsistency,352 infeasibility and lack of usefulness from a legal point of view.353 The endorsement of the principle as a ground for responsibility is 348  European Commission’s White Paper on environmental responsibility, COM(2000) 66 final, 9th February 2000, p. 14 under “3.1. Implementing the Key Environmental Principles of the EC Treaty”. 349  Directive 2004/35, Articles 12 and 13. This aspect has been elaborated at length in the previous chapter. 350  On this aspect see for example N. De Sadeleer (2002), pp. 49–59. 351  E. de Sabran-Pontevès (2007) questions the accuracy of reducing law to an economic efficiency language and the individuals’ subordination to this economic efficiency at pp. 298–299. N. de Sadeller (2002) contends at p. 22:  “With its origins in economic theory, the polluter-pays principle has progressively moved beyond the sphere of good intentions and scholarly commentary to become a frame of reference for law-makers.” 352  See for example L. Krämer (1994), p. 618. 353  For example, it has been contended that the Polluter Pays Principle is useless when it comes to the very identification of the polluter: the Polluter Pays Principle does not

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also criticised for having negative effects that could ultimately contradict the initial economic meaning of the principle.354 Indeed, the principle is initially meant to address the issue of diffuse pollution.355 A clear inconsistency in the Directive appears in this respect: on the one hand, the Directive refers to the principle as the underlying justification for the Directive, but on the other hand, diffuse pollutions are expressly excluded from the scope of application of Directive 2004/35 as appears from the Preamble, Recital 13, and article 4(5).356 The transposition of the economic principle as a legal principle has also been highly criticised as establishing a “right to pollute”.357 More specifically, the polluter pays principle as ground for responsibility can be criticised for shifting from the responsibility paradigm to an exercise concerned with the allocation of costs. Many scholars have criticised this shift of paradigm from environmental responsibility to cost-allocation.358 They submit that Directive 2004/35 applies procedures, methodologies and categories provide any indication on who is the polluter. This is all the more obvious when the whole chain of actors is screened. For example, who is to be understood as the operator of an activity? The actual registered person, or the person who owns the substance manipulated? Or the producer of the substance manipulated? On this issue, see among others E. de Sabran-Pontevès (2007), pp. 335, 336, 342, 358, 359, 362, 380; and N. De Sadeleer (2002), p. 55. Similarly, the question “how much does the polluter have to pay” is left unanswered by the Polluter Pays Principle itself. This issue falls outside the cope of research of the book. On this point, see N. De Sadeleer (2002), pp. 42–44. 354  E. de Sabran-Pontevès (2007) criticises the “denaturising” of the economic principle initially meant by the OECD to address public authorities and improve legal rules, the creation of new legal rules when existing rules are found to be at p. 299. In other words, the Polluter Pays Principle was initially meant to cooperate, collaborate with the legal creation and interpretation process rather than substituting itself to legal norms. The same author criticises judges and law’s “self-restraint” in favour of economic experts or the economy as such, ibid. pp. 297–298. 355  In this respect, see E. de Sabran-Pontevès (2007), pp. 343–346. The author contends that mention to the Polluter Pays Principle in Directive 2004/35 is a mere formal reference p. 346, footnote no. 905. 356  Ibid. 357  See for example E. de Sabran-Pontevès (2007), p. 324 and N. De Sadeleer (2002), pp. 22 and 59–60:  “(T)he principle contains neo-liberal overtones that appear to countenance the idea that the right to pollute can be purchased for the monetary equivalent of the environmental cost sustained.” 358  See for example G. Cottereau and G. J. Martin (2009), pp. 415–417; and G. Winter, J. H. Jans, R. Macrory and L. Krämer (2008), pp. 163–191, more particularly p. 165 where the authors mention that

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that do not belong to the responsibility paradigm, with the notable exception of the causal link requirement.359 What is criticised is the shift from primary obligations calling for the application of secondary obligations to the “mere” bringing into play of secondary obligations. In other words, the focus is on who will be holding secondary obligations rather than which primary obligations have been breached by whom. This is everything but a theoretical debate. The nature of the primary obligations breached can have consequences not only for the nature of secondary obligations that apply, but also for the defences available. Indeed, defences relate to the breach of primary obligations, the breach being nonetheless found not to entail responsibility.360 Eventually, weakening the responsibility paradigm bears the inherent danger not only that secondary obligations will not be consistent with the primary obligations breached, but also that defences will not be consistent with the primary obligations breached.361 The underlying overall question lies in whether there is a primary obligation not to damage the environment—a protection obligation. Putting the issue in the broader context of the book that contrasts EU environmental responsibility law having a regulation approach362 to Council of Europe human rights law having a protection approach and international law having both a regulation and a protection approach (protection of the environment as such and protection of the rights infringed), it follows that the EU (regulation) approach is to be challenged, not only in itself, but also for its inconsistencies.

 “the Commission even considered deleting the word ‘liability’ from the title of the proposal, but decided retain the term because of the political attractiveness of the notion of ‘environmental liability’ ”,  and p. 191:  “Even the final title of the Directive does not really reflect its eventual legal focus on public law remediation powers”. 359  See G. Cottereau and G. J. Martin (2009), p. 415. 360  On the distinction between primary obligations and secondary obligations, see chapter 1. Contra this distinction, see G. Winter, J. H. Jans, R. Macrory and L. Krämer (2008), p. 169, where the authors endorse primary and secondary obligations within the liability realm: primary duty of the operator to act, and secondary duty of bearing the cost. The shift of paradigm is elaborated on at more length below, when scrutinising the 2004/35 Directive grounds for environmental responsibility. See section 2.2.3. 361  Secondary obligations and environmental liability fall outside the scope of research. On inconsistencies and incoherencies regarding defences, see chapter 3, section 3.1.2 and chapter 4, section 4.1.4. 362  In the sense that public authorities authorise access to environmental resources.

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All together, the polluter pays principle may be considered more as a function (that reflects the instrumental analysis of environmental responsibility) than a ground for responsibility. The author does not mean that the principle has no role to play when it comes to the substance of responsibility rules. Some authors have explored the role of the principle in that respect, but their analysis tends to either reflect a law and economics approach or focus on other aspects of environmental responsibility (for example the burden of proof for liability obligations) rather than on the grounds for responsibility. Similarly, in the context of the ERG case,363 the Advocate General and Court of the EU referred substantially to the Polluter Pays Principle, but as a “guiding principle” of particular importance when interpreting Directive 2004/35,364 or given “concrete expression in the field of environmental responsibility” by Directive 2004/35.365 For the reasons exposed above, the polluter pays principle must be left aside as grounds for environmental responsibility in Directive 2004/35. There is to search for other, real grounds. The two following sections scrutinise Directives 2004/35 and 2008/99 with the aim of identifying grounds for environmental responsibility, focusing on risk and fault. Indeed, risk and fault are the grounds for environmental responsibility in Directive 2004/35 and Directive 2008/99. Directive 2004/35: Risk as the Main Ground and Fault as a Subsidiary Ground for Responsibility 2.2.3.1 The Dual Approach to Environmental Responsibility: Risk and Fault As seen above,366 Directive 2004/35 endorses a “dual approach” with regard to environmental responsibility: the Directive differentiates environmental damage according to the activity that has caused (or threatened to cause) it. First, Article 3(1)(a) covers damage caused by the dangerous occupational activities listed in Annex III, and applies to water damage, land damage and protected species and natural habitats. Second, Article 3(1)(b) covers damage caused by any occupational activity not listed in Article III, i.e. “less dangerous” activities, and applies to protected species and natural habitats. Directive 2004/35 does not cover damage to water and land in the latter case. Not only does the legal 2.2.3

363  EUCJ (Grand Chamber), C-378/08, Preliminary Ruling, 9 March 2010. This case is (for the time being) the only case where the Court has had to interpret Directive 2004/35. This case is elaborated on at length in section 3.1.1. 364  Advocate General Opinion, point 46. 365  Ruling of the Court, point 34. 366  Chapter 2, section 2.1.2.

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definition of environmental damage depend upon whether or not the activity is reputed as one of the most dangerous ones and listed in Annex of the Directive. The grounds for responsibility are also different. For this later type of activity, responsibility is based on risk while the responsibility for environmental damage and injury resulting from the activities not listed—because considered as less dangerous—is governed by fault. The following developments focus on risk as grounding environmental responsibility in the context of the activities listed in Annex III of Directive 2004/35, the reputedly most dangerous activities. 2.2.3.2

Risk as Grounding Environmental Responsibility: General Theoretical Aspects Elaborating on the theories related to risk would fall outside the scope of the book. Risk as a ground for environmental responsibility is studied at length elsewhere.367 Basically, and as reported by L. Bergkamp: (T)he danger creation theory in essence holds that the one who has created danger should be liable if the danger materialises. The person who created danger voluntarily and knowingly exposed another person to a chance that harm will result, and should therefore bear the consequences. This “danger-creation” grounds a duty for the injurer to compensate the victim if the danger materializes, irrespective of whether the injurer was negligent.368 The first part of the quote links danger and control. The person who knowingly creates risk inherently controls that risk. This will prove crucial for the developments that follow, and more particularly with regard to the causal link requirement. The last part of the quote links risk as grounds for responsibility with strict responsibility, i.e. no-fault responsibility. Some scholars criticise this ground for responsibility for eventually resulting in absolute responsibility.369 Scholars have also underlined that risk as a basis for responsibility is nothing

367  For such studies, see for example L. Bergkamp (2001), pp. 122–127; D. Tapinos (2008), pp. 128–133; G. Viney (1995), pp. 108–114; and L. Neyret (2006), pp. 389–390; and N. De Sadeleer (2002), pp. 3–4, 36–37, and 50–52. 368  L. Bergkamp (2001), pp. 122–123. On a side note, the underlying assumption that it is for the person who exposed the collectivity to risk to be responsible for the consequences that arise from this risk resonates with the polluter pays principle. 369  L. Bergkamp (2001), p. 123.

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but the traditional neminem laedere rule.370 In addition, scholars distinguish non-reciprocal risks (the victim did not create danger) from reciprocal risks (the victim created danger). Only non-reciprocal risks would provide grounds for responsibility.371 This distinction relates back to the notion of “abnormal” risk.372 Eventually, some scholars consider risk as an appropriate ground for environmental responsibility insofar as risk reflects the peculiarities of environmental damage and injury: the focus lies on the very risk of creating environmental damage and harm. The risk is inherent to the activities regulated and listed. It reflects the ultimate goal to be pursued by environmental responsibility: avoiding environmental damage and targeting the source of damage, which is very peculiar. Once environmental damage occurs, it is highly difficult to erase its effects per nature (this is because many environmental damages are irreversible and have long term negative effects).373 It is also often very difficult for the victim, holder of the right, to identify the source of pollution.374 This is quite distinct from traditional damage, where the consequences can be more easily compensated, and where pecuniary compensation has a huge role to play. 2.2.3.3

EU Environmental Law Framing the Application of the Risk-based Responsibility Since the early days of the legislative process of Directive 2004/35, risk was endorsed as a foundation for grounding environmental responsibility. For example, one can read in the Directive’s Preamble, Recital 6: This Directive should apply, as far as environmental damage is concerned, to occupational activities which present a risk for human health and the environment. Those activities should be identified, in principle, by reference to the relevant Community legislation which provides for regulatory requirements in relation to certain activities or practices considered as posing a potential or actual risk for man or the environment. 370  Ibid. 371  Ibid. p. 124. 372  Reference to the “abnormality” of either risk or damage is condemned by some scholars who underline that ecology quashes such notions. See for example J. Untermaier (2009), pp. 5–15, and more particularly p. 10 where the author refers to “abnormality’s pseudo scientific grounds” (translation mine). 373  P. Cane (2001), and more particularly pp. 6, and 7–9. 374  In the same sense, see P. Cane (2001), and particularly p. 5.

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The activities reputed as the most hazardous ones are listed in Annex III. These are activities regulated under EU environmental law, as appears in Article 3(1)(a). Risk grounds responsibility for these activities. Consequently, the regulatory approach clearly appears when defining risk. Moreover, the EU law referred to is of administrative (or public) nature. It is possible to contend that Directive 2004/35 grounds responsibility for the activities reputed the most hazardous by having a public law regulatory approach. Risk as triggerring responsibility is also evidenced insofar as the imminent threat of damage falls under the scope of application of the Directive. Threat of damage in defined in Article 2(9) as “a sufficient likelihood that environmental damage will occur in the near future”. In all these cases, fault does not have to be proved. But a causal link still has to be established between the activity that generated damage and the damage itself. Accordingly, Directive 2004/35 retains a strict responsibility mechanism for the activities reputed to be the most hazardous. The greatest weight of significance rests on the activities and their inherent risk. 2.2.3.4 EU Environmental Law: Three Forms of Prevention Obligations Having identified the public and regulatory approach to risk as grounding environmental responsibility, it is useful to provide an overview of the primary obligations binding the operator. The regulatory approach relates back from the possibility of engaging in an activity up to the actual operation of the activity. These requirements are prevention obligations, information requirements, production processes requirements and notifications obligations.375 More specifically, the regulatory approach is shaped under three different forms. Firstly, the regulatory approach is enshrined in Directive 2004/35 and limits responsibility by relating back exclusively to the definitions provided by EU environmental law. This is the case for dangerous substances (Annex III, point 7a), dangerous preparations (Annex III, point 7b), plant protection products (Annex III, point 7c), biocidal products (Annex III, point 7d), dangerous or polluting goods (Annex III, point 7e), and GMOs (Annex III, points 10 and 11). For these, the risk is presumed to be inherent to the activities, regulated by EU environmental law, and the definitions provided in EU environmental law are endorsed by Directive 2004/35. Secondly, the regulatory approach as enshrined refers to bans, permits, registration, or authorisation required in order to run an activity. This applies to 375  A. Boyeau-Jenecourt (2009), p. 9.

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integrated pollution prevention and control installations (Annex III, point 1), waste management operations (Annex III, point 2), all discharges into the inland surface waters (Annex III, point 3), discharges of substances into groundwater (Annex III, point 4), the discharge or injection of pollutants into surface water or groundwater (Annex III, point 5), water abstraction and impoundment of water (Annex III, point 6), transboundary shipment of waste (Annex III, point 12), installations covered by the Directive on the combating of air pollution from industrial plants in relation to the release into air of any of the polluting substances covered by this Directive (Annex III, point 9), the management of extractive waste (Annex III, point 13), and the operation of storage sites pursuant to Directive 2009/31 on the geological storage of carbon dioxide (Annex III, point 14). Thirdly, the regulatory approach relates back to the activities. On the one hand, all the operations of an activity are concerned: the whole sector’s operations as listed by Directive 2004/35 are concerned. On the other hand, some operations of activities are limited. In the later case, some activities are expressly excluded. This is the case, for example, of Member States having discretion in deciding that those operations shall not include the spreading of sewage sludge from urban waste water treatment plants, treated to an approved standard, for agricultural purposes (Annex III, point 2). Similarly, integrated pollution prevention and control installations or parts of installations used for research, development and testing of new products and processes are excluded from Annex III (Annex III, point 1). Also, for some activities, the list of operations is limited: the Directive limitedly enumerates which operations do fall under the regulatory approach: this is the case for instance of waste management operations “including the collection, transport, recovery, and disposal of waste and hazardous waste” (Annex III, point 2). For all other activities creating an environmental damage or threat of such damage, fault on behalf of the operator will have to be proved. That is why fault is seen as subsidiary grounds for environmental responsibility. Directive 2008/99: Unlawfulness Grounding Environmental Responsibility 2.2.4.1 Grounds for Environmental Criminal Responsibility: Three Models Following most authoritative legal scholars’ work in the field,376 it is possible to identify three models of environmental criminal law. This classification does not apply to all environmental offences and there can be overlaps between distinct models. This classification is meant to provide a framework that will be applied to Directive 2008/99 assessment below and relates back to 2.2.4

376  See for example M. Faure and Günter Heine (2005).

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the relationship between administrative environmental law and environmental criminal law. In a first model, the criminal charge depends only on one element: the conduct (action or omission) must infringe administrative law (administrative unlawfulness). The criminal charge is not conditioned by breach of an environmental criminal law component, for example impairment of environmental or human values (environmental damage, damage to health, property etc.). Administrative unlawfulness is itself sufficient to have the conduct criminalised. This model is referred to as “environmental administrative criminal responsibility”. Under this model, no endangerment of the environment has to be proved. In other words, it will not be necessary to establish a causal link between administrative unlawfulness and impairment of environmental or human, traditional individual values. The identification of a violation of an administrative duty is sufficient. The advantage of this model for environmental responsibility is obvious: in practice, establishing a causal link is extremely difficult (for example in cases of widespread or diffuse pollution or damage that materialises much after the administrative unlawfulness).377 In a second model, the criminal charge is conditioned by two elements. Firstly, administrative unlawfulness (for example, a waste transporter does not respect an administrative license) must be seen to have taken place. Secondly, there must be unlawfulness with regard to a criminal norm (criminal unlawfulness). This unlawfulness will usually be identified with regard to a material offence or endangerment. Endangerment that results for example from an emission or discharge can be concrete (impairment of environmental or human values occurred) or abstract (impairment did not occur yet, but there is risk of impairment). Under this second model, establishing a causal link between unlawfulness and environmental endangerment is a prerequisite. Criminal unlawfulness can also be identified by relying on a breach of a duty of care as a general environmental criminal norm. Such a general (or “vague”) criminal norm is nevertheless only rarely endorsed in environmental criminal law. Under a third model, administrative unlawfulness is not a requirement for a criminal charge. Criminal unlawfulness is required. This model is opposite to the former model where administrative unlawfulness is the criminal charge’s only component. This model is referred to as “purely criminal environmental responsibility”. Bearing in mind these three models, it is now possible to identify the choice of the EU legislator and the models endorsed (or rejected) by Directive 2008/99. 377  This is underlined for example in P. V. Boss (2008), p. 107 and G. Adinolfi (2006).

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2.2.4.2

Unlawfulness as a Ground for Environmental Responsibility: Rejection of the Autonomous Offence Directive 2008/99 obliges Member States to provide that most serious infringements of EU environmental law are criminalised. To constitute a criminal offence, all the conducts (actions or omissions) covered by the Directive must be unlawful. The Directive targets crimes that are committed intentionally or with “at least serious negligence” (Article 3). Inciting, aiding and abetting of such conducts will also be considered a criminal offence (Article 4). Two annexes accompany the Directive. Annex A lists environmental Community legislation adopted pursuant to the EC Treaty. Annex B lists Community legislation adopted pursuant to the Euratom Treaty. The “unlawfulness” condition is common to all the offences listed in Directive 2008/99. To fulfil the “unlawfulness” condition and be qualified as an offence in the sense of the Directive, the conduct in question must infringe the legislation listed in the annexes, or “a law, an administrative regulation of a Member State or a decision taken by a competent authority of a Member State that gives effect to the Community legislation referred to” in the annexes (article 2(a)).378 In other words, the third model identified above is not endorsed in Directive 2008/99. It can be observed that an autonomous offence was provided in the Directive’s Proposal, but was rejected after the Trialogue between the Council’s Presidency, European Commission and European Parliament. In its Opinion of 27 February 2008, the European Parliament Committee on the Environment, Public Health and Food Safety retained the autonomous offence. However, the European Parliament Committee for Legal Affairs’ Draft Legislative Resolution of 15 April 2008 and Committee on Civil Liberties, Justice and Home Affairs’ Opinion of 27 March 2008 had wiped out the autonomous offence without giving any justification. It is quite hard to identify the exact moment at which the autonomous offence was wiped out. In the note from the Council’s Presidency to Permanent Representatives Committee (Part II) dated 16 May 2008,379 it is reported that 378  This way of giving substance to the requirement of “unlawfulness” has been characterized as the “administrative dependence of environmental criminal law”. See, among others, M. Faure (2008), p. 68 and the same author, M. Faure (2005), pp. 9–13. See also M. Faure and A. Gouritin, (2014). Both the Framework Decision and the proposed Directive contained an autonomous crime, but it was no longer foreseen after the European Parliament’s first lecture of the proposed Directive. 379  Note from the Council’s Presidency to Permanent Representatives Committee (Part II), 9271/08, Brussels, 16 May 2008. Available on the website of the Council, at , page accessed on 16 March 2011. 380  The introduction of the unlawfulness requirement is deduced from the word “unlawful” in bold in the compromise text, whereas Ibid. p. 2:  “In the course of the Trialogue meetings, the three Institutions were able to reconcile their positions. The final compromise text as it arose from those meetings is set out in the Annex to this note. Modifications with regard to the initial Commission proposal are highlighted in bold.” 381  Ibid. It should be stressed that this distinction is not a purely theoretical matter: this distinction between abstract and concrete endangerment does have practical consequences for the sanctions. See, for example, M. Faure (2005), pp. 9–13.

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had been endorsed in the Directive. The author identifies below382 the gaps that result from the regulatory approach whereby the substantial weight lies in behaviour rather than on environmental damage, after having described in more details these environmental offences. 2.2.4.3 Nine Environmental Offences Firstly, Directive 2008/99 criminalises the unlawful operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are used or stored (Article 3(d)). The unlawful operation of a plant is criminalised if the unlawful conduct causes or is likely to cause damage (“death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants”). Secondly, the unlawful “manipulation” of waste is criminalised. Unlawful collection, transport, recovery or disposal of waste (including the supervision of such operations and the aftercare of disposal sites and action taken as a dealer or a broker) is criminalised if such an unlawful conduct causes or is likely to cause “death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants” (Article 3(b)). Reference should be made here to the broad interpretation by the European Court of Justice of the notion of waste,383 and to the recently adopted Waste Framework Directive 2008/98.384 Thirdly, the unlawful shipment of waste falling within the scope of Article 2(35) of Regulation 1013/2006 is criminalised: “the shipment must be undertaken in a non-negligible” quantity, this quantity can be appraised in a single shipment or in several shipments which appear to be linked (Article 3(c)). No condition related to damage has to be met. Fourthly, the unlawful production, processing, handling, use, holding, storage, transport, import, export or disposal of nuclear materials or other radioactive substances is criminalised when it causes or is likely to cause damage (death or serious injury to any person or substantial damage to the quality of the air, the quality of soil or the quality of water, or to animals or plants— Article 3(e)).

382  See sections 2.2.7 to 2.2.9. 383  For example, see ECJ, Commune de Mesquer case, C-188–07 (Grand Chamber), preliminary ruling, 24 June 2008, points 38–45, and M.-C. Desjardins (2006), pp. 145–152. 384  Waste Framework Directive 2008/98/CE, 19 November 2008, OJ L 312, 22 November 2008, pp. 3–30.

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Fifthly, the unlawful discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water is criminalised when the conduct causes or is likely to cause damage (death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants—Article 3(a)). Sixthly, the unlawful production, importation, exportation, placing on the market or use of ozone-depleting substances is criminalised, independently of any damage. Only the unlawful conduct is criminalised (Article (3)(i)). Seventhly, the killing, destruction, possession or taking of specimens of protected wild fauna or flora species is criminalised (Article 3(f)). The condition for such a conduct to be criminalised is that it must concern a non-negligible quantity of such specimens and have a non-negligible impact on the conservation status of the species (Article 3(f) a contrario). Eighthly, the unlawful trading in specimens of protected wild fauna or flora species or parts or derivatives thereof is criminalised (Article 3(g)). The notion of protected wild fauna and flora species are the species listed in Annex A or B to the Regulation on the protection of species of wild fauna and flora by regulating trade therein (Article 2(b)(ii)).385 Similarly to the above, the condition for such a conduct to be criminalised is that it must concern a nonnegligible quantity of such specimens and have a non-negligible impact on the conservation status of the species (Article 3(g) a contrario), calling for the same comments. Ninthly and finally, any conduct causing the significant deterioration of a habitat within a protected site is criminalised (Article 3(h)). The notion of habitat within a protected site refers to the special protection area according to the “birds” Directive, or any natural habitat or a habitat of species for which a site is designated as a special area of conservation according to the Habitats Directive (Article 2(c)). It should be noted here that the offences relying on the “birds” and “habitat” Directives could prove to lead to distinct approaches between member States since those Directives call for administrative measures (cf. above on the dependence of environmental criminal law on administrative law). But it should be stressed that the Court of Justice’s settled case law limits the Member States’ margins of appreciation for implementing the Directives in question.386 385  Council Regulation No. 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, OJ L 61, 3 March 1997, p. 1. 386  See, for example ECJ, C-508/04, Commission v Austria, 10 May 2007, points 76–89; and more recently, Court of Justice of the EU, C-240/09 (Grand Chamber), preliminary

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2.2.4.4

Definition of Unlawfulness: EU Environmental Law and Obligations Binding Private Persons It has been seen that the offences listed in Directive 2008/99 require a conduct to be “unlawful”. It can therefore be useful to quickly review the legislation referred to in terms of primary obligations having their source in EU environmental law. The book is not meant to provide an in-depth analysis of EU environmental law, but rather identify the primary obligations at stake.387 First, EU law bans some conducts.388 Second, some emissions limits have to be respected.389 Third, some activities have to be authorised.390 Fourth, some activities are subject to restrictions, control and notifications conditions.391

ruling, 8 March 2011, Lesoochranárske zoskupenie VLK v. Ministerstvo životného prostredia Slovenskej republiky, Opinion of the Advocate General Sharpston dated 15 July 2010, point 71. 387  For more elaborated developments in this respect, see for example J. H. Jonas (2008). 388  For example, Article 18 of Directive 2008/98 bans mixing hazardous waste. Council Directive 86/278/EEC of 12 June 1986 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture, OJ L 181, 4 July 1986, pp. 6–12. 389  For example, Article 4(2) of Regulation 715/2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles and on access to vehicle repair and maintenance information provides that  “the technical measures taken by the manufacturer must be such as to ensure that the tailpipe and evaporative emissions are effectively limited, pursuant to this Regulation, throughout the normal life of the vehicles under normal conditions of use.”  Regulation (EC) No. 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (Text with EEA relevance), OJ L 171, 29 June 2007, pp. 1–16. 390  For example Article 4 a of the 2006/11 Directive of the European Parliament and of the Council of 15 February 2006 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community provides that  “all discharges into the waters referred to in Article 1 which are liable to contain any such substance, shall require prior authorisation by the competent authority of the Member State concerned”. Directive 2006/11/EC of the European Parliament and of the Council of 15 February 2006 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (Codified version), OJ L 64, 4 March 2006, pp. 52–59. 391  For example, Article 6(1) of Directive 96/82 on the control of major-accident hazards involving dangerous substances requires that the operator to send the competent authority a notification. Council Directive 96/82/EC of 9 December 1996 on the control of majoraccident hazards involving dangerous substances, OJ L 10, 14 January 1997, pp. 13–33.

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Fifth, EU environmental law can impose obligations, for example recycling obligations.392 Sixth, EU environmental law can prohibit environmental damage, endorsing a protection approach.393 2.2.4.5 Mens Rea: Intention and EU Definition of “Serious Negligence” As already specified above, to be defined as an environmental offence, the mental elements (mens rea) requirements are that the potential offender must have acted (or omitted to act, Recital 6) intentionally or at least with serious negligence (Article 3). In the Intertanko case, organisations representing substantial proportions of the maritime shipping sector brought an action before the High Court of Justice of England and Wales regarding the implementation in the United Kingdom of Directive 2005/35 on ship-source pollution and the introduction of penalties for infringements.394 The fourth question lodged by the national Court was whether or not using the term ‘serious negligence’ in Article 4 of the Directive infringed the principle of legal certainty, and if so, whether Article 4 was to be held invalid to that extent. The EU Court concluded that the use of the term serious negligence in Article 4 is not in conflict with the general principle of legal certainty. It follows that Article 4 is valid. In this ruling, the European Court of Justice gave the definition of “serious negligence”. Serious negligence is defined as “an unintentional act or omission by which the person responsible commits a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge,

392   For example, Article 11 of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directive OJ L 312, 22 November 2008, pp. 3–30. 393  For example, Article 13 of Directive 2008/98 on waste:  “Member States shall take the necessary measures to ensure that waste management is carried out without endangering human health, without harming the environment and, in particular a) without risk to water, air, soil, plants or animals, b) without causing a nuisance through noise or odors; and c) without adversely affecting the countryside or places of special interest.” 394  Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005, OJ L 255, 30 September 2005, pp. 11–21.

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abilities and individual situation”.395 The diligence obligation is considered in concreto.396 So that in terms of mens rea, and as was made clear both in the European Parliament’s Report on the proposal for a directive of the European Parliament, and in the Council on the protection of the environment through criminal law in Amendment 10:397 the mental element for the criminal offences to be created by the Member States pursuant to this Directive should be intention or at least serious negligence. Accordingly, the prosecuting authorities and the courts in the Member States should have discretion not to prosecute for offences (. . .) where the person or persons concerned were unaware. All in all, this notion of awareness will be pivotal when applying Directive 2008/99. This pivotal role is criticised below as a gap. Identification of the Responsible Persons. Directive 2004/35: The Operator’s Responsibility In the developments above, attention was directed to the grounds for environmental responsibility. The focus was on risk, fault and unlawfulness. The author identified the influence of the regulatory approach in this respect. Attention now turns to the identification of the responsible person, i.e. the person bound by the primary obligations. Under the responsibility paradigm, the underlying issue with identifying the person responsible is identifying the body of primary obligations that bind this person.398 The tension is whether the notion of holder of the obligation reflects the legal translation of factual elements. Does law identify and channel responsibility towards a formerly legally identified person399 2.2.5

395  ECJ, The Queen on the application of International Association of Independent Tanker Owners (Intertanko), International Association of Dry Cargo Shipowners (Intercargo), Greek Shipping Co-operation Committee, Lloyd’s Register, International Salvage Union v Secretary of State for Transport (“Intertanko” case), ECJ, C-308/06 (Grand Chamber), preliminary ruling, 3 June 2008, point 77. 396  The author criticises this definition below as a gap. Nevertheless, it can be already underlined that this definition does not refer to the impairment caused by the serious negligence in the framework of Directive 2008/99: ecological values. 397  European Parliament’s Report on the proposal for a directive of the European Parliament and of the Council on the protection of the environment through criminal law, (COM(2007)0051—C6-0063/2007—2007/0022(COD))A6-0154/2008, 15 April 2008. 398  And the person who will, accordingly, be bound by secondary liability obligations. 399  On channelled responsibility and the Polluter Pays Principle, see N. De Sadeleer (2002), pp. 54–55.

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or is the responsible person identified according to the actual control the person has on the activity that generated the damage? As underlined by scholars, the holder of an activity’s authorisation may not be actually running the activity.400 2.2.5.1

Operation or Control of the Activity or Legally Delegated Decisive Economic Power Directive 2004/35 identifies the responsible person as being the “operator”. Directive 2004/35 defines in Article 2(6) the operator as meaning any natural or legal, private or public person who operates or controls the occupational activity or, where this is provided for in national legislation, to whom decisive economic power over the technical functioning of such an activity has been delegated, including the holder of a permit or authorisation for such an activity or the person registering or notifying such an activity.401 An ‘occupational activity’ is defined in Article 2(7) as any activity carried out in the course of an economic activity, a business or an undertaking, irrespectively of its private or public, profit or nonprofit character.402 2.2.5.2 Requirement to Establish the Causal Link Directive 2004/35 requires in Article 3(1) the establishment of a causal link between the activity run by the responsible person and damage. The responsibility mechanism endorsed in Directive 2004/35 is therefore strictly qualified responsibility. The causal link requirement is essential insofar as proving a causal link conditions the effective bringing into play of responsibility and liability rules. This is made clear in the Directive’s Preamble, Recital 13: Not all forms of environmental damage can be remedied by means of the liability mechanism. For the latter to be effective, there need to be one or 400  See for example E. de Sabran-Pontevès (2007), p. 380. 401  Article 2(9) of the Directive’s Proposal read as follows when defining the operator:  “any person who directs the operation of an activity covered by this Directive including the holder of a permit or authorisation for such an activity and/or the person registering or notifying such an activity”. 402  In the Directive’s Proposal, ‘occupational activity’ was defined in Article 2(13) as to “include non-profit-making activity and the rendering of services to the public”.

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more identifiable polluters, the damage should be concrete and quantifiable, and a causal link should be established between the damage and the identified polluter(s). Liability is therefore not a suitable instrument for dealing with pollution of a widespread, diffuse character, where it is impossible to link the negative environmental effects with acts or failure to act of certain individual actors. The requirement is also made clear in the EU Court’s case-law that is subsequent to the adoption of the Directive. For example, the Court ruled in the FIPA case that the Court has held that the competent authority’s obligation to establish a causal link applies in the context of the system of strict environmental liability of operators (. . .) that obligation also applies in the context of the fault-based liability system. (. . .) Where no causal link can be established between the environmental damage and the activity of the operator, the situation falls to be governed by national law (. . .).403 Still in the FIPA case, the question referred for a preliminary ruling was not phrased in a way that enabled the Court to answer whether or not the Italian implementing measures of Directive 2004/35 could make use of the possible adoption of more stringent rules with a view to identifying additional responsible parties. In that case, the referring question was related to the compatibility with Directive 2004/35 of the impossibility of obliging the owner of a land polluted by a former owner to adopt preventive and remedial measures. The question was not whether holding the “new” owner responsible was compatible with Directive 2004/35. The court held that the impossibility of holding the new owner of land responsible for the pollution is not incompatible with Directive 2004/35.404

403  EUCJ C-534/13, Ministero dell’Ambiente e della Tutela del Territorio e del Mare and Others v. Fipa Group Srl and Others, 4 March 2015, not yet published, Reference for a preliminary ruling, paras. 55–59. See also EUCJ C-478/08 and C-479/08, Buzzi Unicem SpA and Others v. Ministero dello Sviluppo economico and Others, and Dow Italia Divisione Commerciale Srl v. Ministero Ambiente e Tutela del Territorio e del Mare and Others, Order, 9 March 2010, ECR 2010 I-00031, para. 39 (translation mine):  “the establishment of a causal link by the competent authority is necesary with a view to imposing reparation measures onto operators”. 404  EUCJ C-534/13, Ministero dell’Ambiente e della Tutela del Territorio e del Mare and Others v. Fipa Group Srl and Others, 4 March 2015, not yet published, paras. 62–63. Reference for a preliminary ruling.

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However, the Court did not completely close the door regarding the identification of a responsible person. The Court states that Admittedly, Article 16 of Directive 2004/35 allows Member States, in accordance with Article 193 TFEU, to maintain and to adopt more stringent measures in relation to the prevention and remedying of environmental damage, including the identification of additional responsible parties, provided that such measures are compatible with the Treaties.405 Accordingly, the identification of responsible parties not specified in the Directive is a priori possible (i.e. a responsible person who is not an operator as defined in the Directive). However, this is provided that the requirement of establishing the causal link requirement is met. 2.2.5.3

Causal Link, Presumption and Diffuse, Widespread Pollution: The ERG Case Scholars usually agree that proving the causal link is the fundamental issue for those trying to have environmental responsibility of the operator recognised.406 Directive 2004/35 preserves Member States’ discretion on how the causal link has to be established.407 A particularly crucial question is whether a causal link can be established by making use of rebuttable presumptions. In one of the very few cases that appeared before the EU Court regarding the interpretation of Directive 2004/35, the ERG case, the EU Court of Justice (Grand Chamber) ruled on 9 March 2010 on the possibility for Member States to endorse such presumptions.408 The EU Court ruled that Directive 2004/35 does not preclude national legislation which allows the competent authority acting within the framework of the directive to operate on the presumption, also in cases involving diffuse pollution, that there is a causal link between operators and the pollution found on 405  Ibid., para. 61. 406  See for example L. Bergkamp (2011), p. 8. 407  Unlike Directive 2004/35, the Council of Europe Lugano Convention contains a provision that regulates this matter, Article 10:  “When considering evidence of the causal link between the incident and the damage or, in the context of a dangerous activity as defined in Article 2(1)(d), between the activity and the damage, the court shall take due account of the increased danger of causing such damage inherent in the dangerous activity.” 408  EUCJ (Grand Chamber) of 9 March 2010, C-378/08, Raffinerie Mediterranee (ERG) SpA, Polimeri Europa SpA and Syndial SpA v Ministero dello Sviluppo economico and Others. Reference for a preliminary ruling.

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account of the fact that the operators’ installations are located close to the polluted area. However, in accordance with the ‘polluter pays’ principle, in order for such a causal link thus to be presumed, that authority must have plausible evidence capable of justifying its presumption, such as the fact that the operator’s installation is located close to the pollution found and that there is a correlation between the pollutants identified and the substances used by the operator in connection with his activities. Two aspects of the ruling can be highlighted. Firstly, the EU Court asserted the possibility for member states to operate on presumptions, when Directive 2004/35 remains silent on this point. Second, this presumption has the potential to substantially reduce the scope of application of the diffuse pollution exception. Diffuse pollution bears two aspects that should not be confused. Diffuse pollution can result from several persons having the same activity and who are identified (for example agricultural activities that pollute water). Diffuse pollution can also result from several persons having distinct activities, or from unknown activities. The first hypothesis questions the sharing of responsibility among several operators whose activity is identified as having caused damage. As a rule, the Directive excludes from the responsibility and liability rules diffuse pollution where no causal link can be proven. As an exception, Article 4(3) provides that This Directive shall only apply to environmental damage or to an imminent threat of such damage caused by pollution of a diffuse character, where it is possible to establish a causal link between the damage and the activities of individual operators. This is where the ruling of the Court in the ERG case proves crucial: presumptions also have a role to play in case of diffuse pollution (“to operate on the presumption, also in cases involving diffuse pollution”). The baseline here is that in order for such a causal link thus to be presumed, that authority must have plausible evidence capable of justifying its presumption, such as the fact that the operator’s installation is located close to the pollution found and that there is a correlation between the pollutants identified and the substances used by the operator in connection with his activities. It is for national law and national courts to regulate this aspect.

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2.2.5.4 Several Responsible Persons: Multiple Party Causation The author has explored above the hypothesis where no responsible person can be identified. At the opposite end of the spectrum, there can be several identified responsible persons. Directive 2004/35 does not provide any rule on the sharing of responsibility, as appears from the Directive’s Preamble, Recital 20: Member States may establish national rules covering cost allocation in cases of multiple party causation. Member States may take into account, in particular, the specific situation of users of products who might not be held responsible for environmental damage in the same conditions as those producing such products. In this case, apportionment of liability should be determined in accordance with national law. Identification of the Responsible Persons. Directive 2008/99: Natural and Legal Responsible Persons 2.2.6.1 Corporate Environmental Criminals as Main Environmental Offenders Directive 2008/99 applies to both natural and legal persons. The latter play a prominent role in environmental criminal offences. The impact assessment accompanying the Directive refers to a study conducted in 2003 which found that in 73% of the cases, enterprises or “corporate-like structures” were implied.409 Correctly identifying the corporation as the offender is therefore crucial in as much as it will at a later stage allow the avoidance of insolvency or other situations where corporations are out of reach. The well-known corporate veil can be seen as encumbering the identification of the offender. The balance between the characterising of corporations as legal persons (as a fiction) and the reality of corporations compels analysis of the realities of corporations and actual centres of decisions (such as shareholders). Endorsing legal persons’ criminal responsibility goes against the principle societas delinquere non potest, but the Directive nevertheless does it and retains legal persons’ criminal responsibility. Nevertheless, the nature of the penalties applied to corporate environmental offenders is left to the discretion of Member States. The penalties to be applied are provided for in Article 7 of the Directive: “legal persons held liable pursuant to Article 6 are punishable by effective, proportionate and dissuasive penalties”. What was at stake was whether or not Member States could be 2.2.6

409  Impact Assessment SEC(2007) 160, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri =celex:52007SC0161 (accessed 30 October 2015), p. 11.

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bound to impose criminal penalties to legal persons. Indeed, some Member States’ legal systems do not foresee this possibility (for example Germany). In article 6, the Directive leaves the choice of the nature of the sanctions (criminal or administrative) to the Member States. 2.2.6.2

Definitions of Legal Persons and Conditions to have them Criminally Responsible Article 2(d) of the Directive defines ‘legal person’ as “any legal entity having such status under the applicable national law, except for States or public bodies exercising State authority and for public international organisations.” Public organisations do not fall within the scope of Directive 2008/99. Criminal liability of legal persons is foreseen in Article 6 of the Directive. Article 6(1) enumerates three conditions. Firstly, an offence according to Articles 3 or 4 of the Directive must have been committed. Secondly, the offence must have been committed “for their benefit”. Thirdly, the offence must have been committed “by any person who has a leading position within the legal person, acting either individually or as part of an organ of the legal person”, based on a power of representation of the legal person (a), an authority to take decisions on behalf of the legal person (b), or an authority to exercise control within the legal person (c). Article 6(2) restricts the ability to engage the responsibility of legal persons by the requirement that the natural person susceptible to engaging the legal person’s liability must have “a leading position” within the legal person. The possibility to identify such a leading position “either individually or as part of an organ of the legal person” could mean that this leading role could be determined by relying on law (for example the statutes of the legal person) or by identifying a de facto leading role. This could attenuate the obstacle of the “leading position” requirement. Article 6(2) covers the responsibility of legal persons on the grounds of a lack of supervision or control by the (natural) person in a leading position when this lack of supervision or control had “made possible the commission of an offence referred to in articles 3 and 4”. Finally, Article 6(3) allows for the aggregation of responsibilities, i.e. the potential to engage in criminal proceedings against both legal persons and natural persons “who are perpetrators, inciters or accessories in the offences”. Impact and Limits of the Regulatory Approach Regarding the Grounds for Responsibility and Identification of the Responsible Person In the preceding developments the Directives have been screened in terms of grounds for responsibility and identification of the responsible person. 2.2.7

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The author now proceeds with a critical analysis of the provisions of the Directives in these respects. 2.2.7.1

Shift of Paradigm: Negative Effect for the Protection and Prevention Approaches As seen above, the environmental responsibility Directives do not formulate primary obligations that add to obligations already contained in EU environmental law. They merely relate back to EU environmental law. One can wonder whether the protection approach is fulfilled by doing so. The author elaborates at length on that aspect below. It is furthermore worth asking whether the Directives, which both claim to reflect a prevention approach, do actually add to the preventive approach when compared to EU environmental law. Doubts about such added value appear from the questionnaires relating to specific questions on the application of Directive 2004/35, filled by national experts upon request by the European Commission services.410 In their answers to the question “May the relatively low number of ELD (Environmental Liability Directive) cases in your view be a consequence of the preventive effect of the ELD?”, the answers of Sweden, Slovakia, the Netherlands, Ireland, Estonia, Denmark, Spain, Estonia, Czech Republic, and Cyprus were negative or doubtful. Some Member States claim that the existing network of EU environmental law as implemented into national law already fulfils the preventive function, leaving little added value to Directive 2004/35. Only the UK, Bulgaria, Slovakia, Lithuania, Belgium (Brussels and Wallonie), either answered partially positively or believed that the answer should be (partially) positive, once more information had been gathered. All in all, the preventive added value of Directive 2004/35 is at least doubtful. This finding can be applied by analogy to Directive 2008/99 which also applies a regulatory approach. 2.2.7.2

Gaps in EU Environmental Law Mirrored in EU Environmental Responsibility Law: The “Boomerang” Effect Adding to the doubtful added value of the Directives in terms of preventive approach, the regulatory approach also mirrors in EU environmental responsibility law EU environmental law’s weaknesses. As seen above, EU environmental responsibility law relates back to EU environmental law in order to identify the activities concerned and obligations related to these activities (these activities are listed in the Directives’ Annexes). Consequently, the gaps of EU environmental law infiltrate EU environmental responsibility law. The gaps of EU environmental law have been studied at length elsewhere. This is not the 410  Copy with the author.

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purpose of this book. Nevertheless, some of the gaps of EU environmental are particularly important for EU environmental responsibility law: these are limits in terms of scope, definitions, compliance, EU environmental law’s lack of regulation of activities, and the lack of reference to a body of EU environmental law in the Annexes of the Directives, the economic interests underpinning EU environmental law and tensions that arise in the legislative process. They are discussed in the following sections. 2.2.7.3

The “Boomerang Effect”: Limits of Substantive EU Environmental Law The first disadvantage of EU environmental law that has been mirrored in EU environmental responsibility law is that EU environmental law also suffers severe limitations in terms of scope. Indeed, some activities are not covered or EU environmental law provides derogations. For example, the recently modified Directive on waste411 excludes from its scope the hypothesis that appeared before the ECJ in the Commune de Mesquer case,412 precisely as a reaction to the fact that this case concluded with the application of responsibility as endorsed in the former waste Directive to oil spills. Second, some activities posing a risk to environmental features are not regulated. For example, nanotechnology activities are not regulated under EU law. Also, in a Legislative Briefing prepared by the NGO ClientEarth, it is demonstrated that the regulation of offshore installations, including oilrigs, is seriously lacking at EU level.413 This means that unregulated activities would not be covered by environmental responsibility provisions at all under Directive 2008/99 or under a fault-based approach under Directive 2004/35, even in the hypothesis that the responsibility paradigm had its fundamental centre in impairment of environmental values together with a protection obligation (for example under a standard of duty of or the autonomous criminal offence). 2.2.7.4

EU Environmental Law Underpinned by Economic Interests of Lobby Groups The second set of gaps to EU environmental law that have been mirrored in EU environmental responsibility law concern the taking on board of logic based 411  Waste Framework Directive 2008/98/CE, 19 November 2008, OJ L 312, 22 November 2008, pp. 3–30. 412  European Court of Justice, C-188/07, Commune de Mesquer v. Total France SA, Total International Ltd (reference for a preliminary ruling), Judgment of 24 June 2008. 413  Client Earth Legislative briefing (2010).

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on economic interests of lobby groups. This infiltration can be identified in EU environmental responsibility law, as is the case with EU environmental law. The economic interests influence the regulatory approach and EU environmental law primary obligations.414 This influence eventually weakens the responsibility paradigm. Indeed, the scope of application of risk-based responsibility is limited to those activities and operations restrictively limited. For example, in Directive 2004/35, by not targeting a sector without limiting the particular activities operated (for example transport), the regulatory approach leads to exclude some operations from the no fault based responsibility and strict liability. This is despite the fact that the activity itself has been identified as particularly hazardous, as pinpointed in Annex III. This is the case for instance with GMOs and has been very strongly criticised by scholars415 and environmental groups.416 The influence of lobby groups that protect the economic interests of their sector is particularly clear in this example. The protection of economic interests has infiltrated the decisionmaking process regarding responsibility for activities involving GMOs and creating damage. Directive 2004/35 does not cover these activities specifically. Accordingly, if it happened that a GMO-related activity or a particular organism did not fall within the scope of EU law that applies to activities related 414  A. Boyeau-Jenecourt (2009), p. 17. 415  On the 2004/35 Directive and GMos, see M. Wilde (2003)a, pp. 269–299. For a critical assessment in this respect, see L. Krämer (2006)b, pp. 35–36. 416  See for example on Gene watch UK website, “GMOs and liability for environmental harm: Implementing the Environmental Liability Directive in UK law MPs Briefing No. 1, Inconsistencies with EU GMO risk rules”, available on 30 October 2015 at https:// www.rspb.org.uk/Images/eldgm_tcm9-153633.pdf:  “The limited scope of the basic ELD is at odds with the protection of the environment required for GMOs under the Deliberate Release Directive and the Food and Feed Regulations (1829/2003). These rules require an assessment of all risks to the environment, including all species (not only those sufficiently harmed already to require special protection), land and water. Therefore, for example, the use of a GMO could lead to genetic pollution of a native plant which led to its becoming a pest or to its decline, but remediation of the damage would not required. This is even though the release of the GMO would not have been allowed if the potential harm has been predicted.”  See also WWF and Birdlife International, “The European Directive on Environmental Liability—“Polluter Pays”: from principle to practice? An Environmental NGO commentary on the Environmental Liability Directive: its adoption at EU level and what it means for the future”, July 2004, available on 04 February 2011 at .

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to GMOs or organisms and listed in Annex III,417 responsibility mechanism would be fault-based. Very few such situations may occur. If they did, the difficulties highlighted above in terms of the difficulty in identifying a fault on behalf of the operator would come into play.418 The European Parliament reminded in its First Reading Report419 to the European Commission that the latter had committed itself to provide responsibility rules addressing the GMOs sector.420 Lobby groups representing the interests of the industries involving GMOs had strongly applied pressure during the legislative process of Directive 2001/18, with a view to bringing about the deletion of a responsibility clause. The European Parliament had strongly fought against the omission of this clause by the European Commission. Eventually, the European Commission argued that EU environmental responsibility law would cover the responsibility associated to damages caused by GMO-related activities. The European Parliament gave up its requests. As is apparent from the European Parliament’s First Reading Report, the European Parliament introduced Amendment 54 that called for the introduction of an Article 20, which would provide that, supplementary to reference to GMOs activities as listed in the Annex, an additional legislation broadly covering GMOs activities should be proposed by the European Commission.421 417  I.e. Directive 90/219/EEC of 23 April 1990 on the contained use of genetically modified micro-organisms, OJ L 117, 8 May 1990, p. 1, as last amended by Regulation (EC) No. 1882/2003; and Directive 2001/18/EC on the deliberate release into the environment, transport and placing on the market of genetically modified organisms, OJ L 106, 17 April 2001, p. 1, as last amended by Regulation (EC) No 1830/2003 (OJ L 268, 18 October 2003, p. 24). 418  It can be underlined that the very contentious character of responsibility for GMOs activities, triggered by the economic interests at stake, also appeared when negotiating on Directive 2004/35. 419  European Parliament legislative resolution on the proposal for a European Parliament and Council directive on environmental liability with regard to the prevention and remedying of environmental damage (COM(2002) 17—C5–0088/2002—2002/0021(COD)) P5_TA(2003)0211, 14 May 2003. 420  Amendment 22 reads as follows:  “Considering recital 16 of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, and given that the Commission undertook to bring forward, before the end of 2001, a legislative proposal on environmental liability covering, inter alia, damage from genetically modified organisms, the Commission should submit such a proposal without delay”. 421  European Parliament legislative resolution on the proposal for a European Parliament and Council directive on environmental liability with regard to the prevention and

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The Position of the European Commission on this amendment (supported by the Council in its Common Position) was not to accept it, calling for a responsibility regime aimed at targeting modern biotechnology itself.422 This is fully in line with what the GMO-related industry (as represented by EuropaBio) was calling for, grounding its arguments upon economic arguments.423 All in all, the infiltration of economic interests put forward by lobby groups into the responsibility paradigm is made clear.

remedying of environmental damage (COM(2002) 17—C5-0088/2002—2002/0021(COD)) P5_TA(2003)0211, 14 May 2003. Amendment 54 reads as follows:  “Additional legislation regarding damage caused by genetically modified organisms. The Commission shall present a proposal to supplement the regulatory framework on liability for damage caused by genetically modified organisms with a view to completing the legislation necessary for development in the field of modern biotechnology. The proposal will, in particular, address damage caused by the presence of genetically modified organisms in products in cases where the producers did not make use of such organisms”. 422  As appears in the Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the Common Position of the Council on the adoption of a Directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage, SEC/2003/1027 final—COD 2002/0021, dated 19 September 2003. 423   EuropaBio, position on the European Parliament’s First Reading Report, available 4 February 2001 at , page not available anymore.  “Protect the Environment—Don’t Stigmatise GMOs. MEPs voted to single out the biotechnology industry by calling for additional sector-specific liability legislation. This is surprising because GMOs are already fully covered by the proposed legislation, along with the other targeted activities in Annex I. Now that the complete set of new GM legislation and guidelines is nearing completion, additional GMO-specific liability legislation is not required. This would only result in more years of lost opportunity and outright disinvestment in European biotechnology. Member States will send an important signal to researchers, innovators, entrepreneurs, and other governments around the world when they develop a Common Position on the Commission’s Environmental Liability proposal. The more radical parts of the opinion voted by the European Parliament would disadvantage European biotechnology industries compared to the dynamic growth exhibited in other parts of the world. Member States must find solutions that are safe for the environment whilst ensuring a sound legal base on which industry can rely for the development of safe products that benefit all Europeans.”

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2.2.7.5 Structural Gaps of EU Environmental Law. Four Issues Next to the two sets of gaps of EU environmental law that are mirrored in EU environmental responsibility law discussed above, structural deficiencies are also mirrored in EU environmental responsibility law. A first issue concerns compliance. Even though EU law articulates the prevention obligations as regulatory requirements (authorisation, permit, registration), this body of law largely depends upon Member States’ application of and compliance with EU environmental law.424 This proves to be extremely problematic. The European Commission’s regular Reports on infringement proceedings are very clear on the fact of the lack of proper implementation of EU environmental law.425 Also, once the legislation is implemented, it is for Member States to ensure that operators do comply with the obligations which have their origin in EU law and are implemented at the national level.426 This is a bit more nuanced when it comes to some specific substances.427 This reliance on Member States’ compliance with EU environmental law is also the case when it comes to the protection approach identified in Directive 2004/35. Secondly, tensions on the very approach adopted can infiltrate EU environmental responsibility law (eco-centric versus anthropocentric approach). Scholars have shown that EU environmental law is largely anthropocentric. 424  In the same sense, see A. Boyeau-Jenecourt (2009), pp. 11–13. 425  See for example the European Commission website, “Legal enforcement” page, available on 4 February 2011 at . 426  There is no EU body that assesses national inspection bodies. As a notable exception, the Seveso Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, OJ L 010, 14 January 1997 pp. 13–33 provides in its Preamble, Recital 16:  “Whereas differences in the arrangements for the inspection of establishments by the competent authorities may give rise to differing levels of protection; whereas it is necessary to lay down at Community level the essential requirements with which the systems for inspection established by the Member States must comply”. See also Recommendation of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States, OJ L 118, 27 April 2001, pp. 41–46. 427  As underlined by A. Boyeau-Jenecourt (2009), p. 8, this is the case with Art. 55–57 of Regulation (EC) No. 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restric­ tion of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No. 793/93 and Commission Regulation (EC) No. 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC, OJ L 396, 30 December 2006, pp. 1–849.

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This approach is endorsed in EU environmental responsibility law because of the “boomerang effect”. The Directives do not depart from this approach, in as much as their focal point of application lies in the activities that generate risk rather than on the impairment of environmental values.428 Thirdly, EU environmental law is also crossed by very strong tensions that have their origins with the actors involved—institutions and lobby groups— and the interests they represent.429 Two recent examples can illustrate this. In the aftermath of the Mexican Gulf oil spill, much attention was paid to whether or not EU environmental law covers this kind of event in terms of prevention and responsibility. Some NGOs demonstrated that EU environmental law and EU environmental responsibility law did not address this issue. However, and in the aftermath of meetings between the Energy Commissioner, the oil industry and Member States’ competent public authorities, the European Commission had another reading, and contended in October 2010 that EU environmental law already partly governed oil-drilling matters.430 This shows that lobbyists do have a strong influence on the decision-making process. This is everything but a discovery, and will not be elaborated on at length. The European Commission conceded that “if the highest safety standard should be assured”, there was the need for an “overhaul and more coherent legal framework”. The legislative process is ongoing. On 27 October 2011, the European Commission launched the Proposal for a Regulation of the European Parliament and of the Council on the safety of offshore oil and gas prospection, exploration and production activities.431 On the whole, this example illustrates that whereas 428  This has been elaborated at length above and will not be repeated. See for example section 2.2.4. 429  This has been commented at length by scholars and will not be further demonstrated. 430  European Commission, Press Release “Offshore oil drilling: European Commission envisages EU safety rules”, 13 October 2010, available at , available 30 October 2015, where one can read:  “Certain safety aspects are also governed by existing EU legislation, such as the EU environmental Liability Directive (. . .). The analysis showed however that an overhaul and a more coherent legal framework is needed, if the highest safety standard should be assured”. The European Commission reviews existing EU environmental law applicable to oil-drilling activities in its Communication to the European Parliament and the Council entitled “Facing the challenge of the safety of offshore oil and gas activities”, COM/2010/0560 final, 12 October 2012, at pp. 6–8. 431  Proposal for a Regulation of the European Parliament and of the Council on safety of offshore oil and gas prospection, exploration and production activities, Explanatory Memorandum, 27 October 2011, COM(2011) 688 final. The Proposal is not filling EU envi-

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Directive 2004/35 heavily relies upon EU environmental law, EU environmental law itself can suffer loopholes. Fourthly, the whole system relies on the information available to the public, NGOs, public authorities and prosecutors’ offices. The issue is important because the Directives do not provide any rule on access to environmental information. EU environmental law regulates this aspect through for example Directive 2003/4.432 But access to information held by private companies (for example studies on the risks associated to a substance) can remain in the hands of the private companies. This information can also be protected as a commercial interest and be an exception to the principle of access to information.433 This issue is extremely important insofar as it can hamper the application of responsibility rules. Specific Gaps of Directive 2008/99: Dependence of Environmental Criminal Law Upon Administrative Law and Lack of Details in Relation to “Serious Negligence” 2.2.8.1 Dependence of Environmental Criminal Law Upon Administrative Law Two gaps are specific to Directive 2008/99. First of all, EU environmental criminal law is dependent upon administrative law. As seen above, the autonomous 2.2.8

ronmental law loopholes but rather aims at setting a comprehensive regulatory framework (in terms of licensing, ex ante emergency planning, independent verifiers who are expected to review the technical solutions submitted by the operator, inspections by independent national authorities, transparency and sharing of information, emergency response plans, and liability). Regarding environmental responsibility, it is worth noting that the proposed Regulation does widen the geographical scope of application of Directive 2004/35 for damage and harm to waters (from 22 kilometers from the coasts—territorial waters—to 370 kilometers—the exclusive economic zone). The definition of operator under Directive 2004/35 is also provided in the proposed Regulation. Nevertheless, the activities related to oil-drilling are not to be governed by non-fault responsibility but are rather meant to be fault-based. Indeed, the proposed Regulation does not amend Directive 2004/35 so as to include oil-drilling activities in Annex III. Also of interest, the proposed Regulation requires Member States to impose penalties in case of breach of the Regulation’s requirements in Article 33: “Member States shall establish penalties applicable to infringements of this Regulation by the industry and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.” The act adopted is Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil and gas operations and amending Directive 2004/35/EC. OJ L 178, 28 June 2013, pp. 66–106. 432  Directive 2003/4 of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC. 433  Ibid. Article 4(2)(d).

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offence has been removed from the Directive. As reported by Faure, under the second model where the criminal charge contains two components,434 even though the criminal component (for example endangerment) is met, the conduct will not be criminalised if no administrative unlawfulness can be identified. This dependence has been criticised at length by several scholars.435 This dependence not only places the criminal judge as a “slave” to administrative technique, but also formulates in fine an exoneration if the conduct is not defined as administratively unlawful, either because the conduct does not fall under the scope of application of EU environmental law, is not defined or regulated therein, or because EU environmental law is not implemented at the national level. Indeed, it will not be possible for the prosecutor to trigger the criminalisation process regarding an operator’s behaviour that is unlawful under EU environmental law but lawful under national law because of a failure on behalf of the State to properly implement EU environmental law into national law. If within the allowed time, the Member State has not assured the full transposition of a Directive which is being relied upon with a view to launching criminal proceedings, a public authority of that State may not rely on that Directive. This is settled case law.436 2.2.8.2 “Serious” Negligence: A Useless and Contested Specification The second specific gap of Directive 2008/99 refers to the mental component that relates back to awareness. As seen above, to be criminalised, the conduct must be intentional or at least seriously negligent, while the ECJ defined serious negligence in the Intertanko case as an unintentional act or omission by which the person responsible commits a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge, abilities and individual situation.

434  Administrative and criminal unlawfulness, as seen above. See section 2.2.4. 435  See for example M. Faure (2005), and M. Faure (2007), p. 68. 436  See for example ECJ, C-168/95, Arcaro, 26 September 1997, ECR 1996 I-04705, para. 37:  “In that same line of authority the Court has also ruled that a directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive”.

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This definition is assessed in concreto, which implies that a professional’s breach of the duty of care when conducting his activities will be assessed against stronger standards than a “lay” citizen. What can be criticised is the mere notion of “patent breach of the duty of care”. If this notion is replaced within the context of Directive 2008/99 and its definition of environmental damage, the environmental values impaired are damage to protected species and habitats, water and soil. When considering the high thresholds applied in the Directive regarding the quality of environmental damage437 and the quantitative condition of the conduct,438 one can doubt whether reaching such a high threshold is possible without breaching the duty of care. Also, one can criticise that the in concreto assessment will, when applied, imply taking into account whether the rules that apply (to for example Natura 2000 networks) are promoted on the protected sites. Such in concreto assessment can lead to discrepancies. For the same conduct and damage, one potential offender may be charged while another may not. Specific Gaps of Directive 2004/35: Grounds for Responsibility Ignored and the Ambiguous Notion of Operator 2.2.9.1 Rejection of Profit and Guarantee as Grounds for Responsibility Similarly to Directive 2008/99, the author can identify two specific gaps in Directive 2004/35. The first one is related to the rejection of profit and guarantee as grounds for responsibility. The link between profit, material gain, financial benefits and liability is more obvious than the link between profit and responsibility. For example, some scholars defend setting higher levels of criminal fines according to the profit made.439 Still, profit also has a role to play with regard to responsibility, i.e., the primary obligations violated. Indeed, profit can interfere as a vector in many aspects: first, the primary obligation can be presumed infringed by relying on the profit made. Second, profit can also interfere when it comes to the level of breach, the threshold: from negligence to serious negligence. For example, simple negligence instead of serious negligence can be brought into play when the negligence was triggered by the search to realise profits. Similarly, the rights infringed can be given all the more weight when infringed so as to realise vast, significant profits. Also, proving 2.2.9

437  “Substantial damage”, Article 3(a), (b) and (d); non negligible impact on the conservation status of species, Article 3(f) and (g); “significant deterioration of a protected site”, Article 3(h). 438  “Non-negligible quantity”, Article 3(c); non-negligible quantity of specimens, Article 3(f) and (g). 439  See for example M. Faure and Günter Heine (2005), p. 57.

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the causal link can be alleviated. All things considered, the level of profits and their significance can be seen as connected vessels. In other words, with greater profit comes heavier primary obligations and also greater emphasis and value to be placed on either traditional individual values or environmental values. Profit as grounds for responsibility is everything but new. Scholars have been researching this for more than a century.440 The link between profit and risk is made clear under French doctrine, which labels this ground for responsibility as “risque-profit”. Current scholars also shed light on this link. For instance, L. Bergkamp insists on the link between profit and creation of risk.441 Indeed, and this is all the more true when it comes to Directive 2008/99 as shown in preparatory documents, potential responsible persons and offenders will in most cases create impairment of environmental values by striving for making economies (for example, regarding waste treatment) or realising profits (for instance, regarding trade of protected species or using substances for which no proper risk assessment studies have been conducted while the commercial activity generates huge profits). Hence, it can be perceived as inconsistent that EU environmental responsibility law does not clearly enshrine profit as a ground for responsibility. 2.2.9.2 The Ambiguous Notion of Operator As a second specificity of Directive 2004/35, the notion of operator is far from being free from any ambiguity. As demonstrated for example by N. De Sadeleer,442 the application in practice will raise several issues and legal questions. Some legal questions have been answered by the European Court of Justice, others have not. One point of discussion could be the notions formulated in Article 2(6), such as that of “control” over the occupational activity or “decisive economic power over the technical functioning” of an activity when the power at stake has been delegated and when the delegation is provided in national legislation. This formulation raises several questions. For example, who should be legally defined as exercising control over GMO-related activities? The enterprise that brings them onto the market? Or the person who uses them after having bought them? A first issue to be resolved is how to define “decisive economic power”— in concreto or in abstracto? Reference to the legal delegation could deduce that economic control would be assessed in abstracto. Another reading would 440  See for example L. Josserand (1897). 441  L. Bergkamp (2001), pp. 125–127. 442  N. de Sadeleer (2006)b, pp. 760–762.

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interpret the legal delegation as a condition, whereby the economic control would be assessed in concreto. Clearly, issues such as who has the relevant information on the products used will arise. In the case described above, information is retained by the enterprises and protected under commercial interest rules. Nothing precludes from interpreting the notion of control in concreto. If the responsibility paradigm is triggering the whole process, the pertinent question is “who is bound by primary obligation”? It can be contended that the whole body of EU case law issued regarding waste could apply. Another point to mention would be the link between the notion of “decisive economic power” and profit. The judiciary and national authorities could have to assess the respective power of the actors involved in an activity, and the extent to which each one operates control and generates profit. For example, do agricultural operators have a choice in the type of seed they use? To what extent do the markets allow for room for discretion? Or to what extent does agri-business operate a de facto constraint over agriculture operators? Similarly, in case of multiplicity of operators on a same plant, how can “control” or “economic decisive power” be defined? French case law on the issue of the owner’s responsibility of land polluted by former activities is highly debated. This shows concretely that plenty of problems will arise when the Directives’ rules are applied. In that respect, the Directive relates back to national law in the Preamble, Recital 22 (“apportionment of liability should be determined in accordance with national law”). Overall, these issues will no doubt appear before judges and national authorities who will have to fully take into account the reality of the facts they will be faced with. It is clear that they may be faced with distinct authorisations. For example, the judge will be faced with several holders of authorisations or notifying entities: taking on the one hand the enterprise that holds original authorisation to commercialise a GMO and on the other, the ultimate user of the GMO will also be a holder of authorisation. The economic reality could have a huge role to play when applying and interpreting legal definitions. Despite an apparent simplicity and clarity, the notion of operator will be highly problematic, and interpreting the notion of (economic) control relates back to notions such as property, constraint, and in concreto assessment as opposed to administrative reality. Ultimately, this will have everything to do with piercing the veil of the economic chain in order to identify the person who holds control and is bound by corresponding primary obligations. As specified in chapter 1, the intention of the book is not to address all the gaps identified in the previous sections. Four gaps identified in Directives 2004/35 and 2008/99 that relate to the definitions of environmental damage

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and harm are assessed in the subsequent section. Let us briefly recall these five gaps. Firstly, when it comes to the ecosystem approach, Directive 2004/35 refers to the quality and quantity of ‘natural resources’ on the one hand, and the functional diversity on the other hand (services for another natural resource or the public). This definition leaves aside quite some damage. This is why Directive 2004/35 eventually refers to “natural resources”. Initial versions of the Directive referred to “biodiversity”, but references to “biodiversity” have been dropped in the decision-making process. Directive 2008/99 just ignores the ecosystem approach. Some limitations can be found when setting not only the definition, but also the type of damage that will meet the requirements of the Directives in order to fall within their scope of application. As a second gap, the threshold condition (i.e. severity condition) for harms to be legally defined is itself criticised, as well as for the lack of precision of the thresholds.443 As a third gap, the Directives will most probably not apply to an environmental harm resulting from pollution having a “diffuse character” (i.e., where the causal link between damage and activities of individual operators cannot be established). The issue of ambient air that has potentially disastrous effects on human health, the environment, and historical monuments has been underlined. Fourth and finally, it has been highlighted that the definitions of environmental damage in the Directives retain a strong anthropocentric and instrumental approach. The intrinsic value of environmental elements is not recognised (with the notable exception of harm to water). In the developments below, the standards defined in the Directives are challenged with two-step reasoning. As a first step, the Directives’ notion of natural resources are compared with the broader notion of biodiversity (2.3). As a second step the focus will lie on the notion of damage and harm to natural resources in the Directives. This notion will be compared with the broader notion of damage and harm to biodiversity (2.4). In the subsequent sections the attention is directed to the Biodiversity Convention, the Protocols to the Convention, and the European Court of Human Rights’ case law.

443  “Significant adverse effects”, “significant”, “significant risk”, “significantly adversely affects” in Directive 2004/35, and “serious injury”, “substantial”, “non-negligible effect” in Directive 2008/99.

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International Environmental Law Partially Conflicts with the Directives: Natural Resources vs. Biodiversity

Directive 2004/35 refers to the quality and quantity of natural resources on the one hand, and the services of natural resources on the other hand. The latter is defined as services for another natural resource or for the public. In the developments below the author challenge this notion of natural resource against the wider notion of biodiversity. The notion of ecosystem service is particularly discussed. In the developments that follow it is established that the Biodiversity Convention partially conflicts with with the gaps of the Directives. Biodiversity and International Environmental Law: The Biodiversity Convention As a first step to challenge the Directives’ notions of natural resources and ecosystem service, the author directs her attention to international environmental law for several reasons. The Directives’ notions against the will be tested for several reasons. Firstly, the Convention on Biological Diversity (hereinafter the “Biodiversity Convention”) targets the conservation and sustainable use of biological diversity as objectives. Second, the Convention has a global dimension and a very high number of Parties. Thirdly, the Convention has been complemented by two Protocols, including one on liability and redress matters. A brief presentation of the Biodiversity Convention may prove useful before going into the assessment.444 2.3.1

2.3.1.1 The Biodiversity Convention: A Brief Presentation The Biodiversity Convention is commonly presented as one of the five global Conventions related to biodiversity conservation.445 The Biodiversity 444  These developments are meant to provide a brief presentation to the biodiversity. For indepth presentation and analysis of the Convention, see for example P. Birnie, A. Boyle and C. Redgwell (2009), pp. 583–649; N. de Sadeleer and C.-H. Born (2004), pp. 91–135; A. Kiss and J. P. Beurrier (2004), pp. 360–371; D. M. McGraw (2002); V. Koester (2002); P. Herkenrath (2002); C. Lasén Diaza (2006); A. Jóhannsdóttir, I. Cresswell; and P. Bridgewater (2010). 445  The four other Conventions are the Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat (1971), the UN Educational, Scientific and Cultural Organisation Convention concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES, 1973), and the Bonn Convention on the Conservation of Migratory Species of Wild Animals (1979). Besides these Conventions,

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Convention was adopted on 22 May 1992, opened for signature on 5 June 1992 (in Rio, during the UN Conference on Environment and Development— UNCED), and entered into force on 29 December 1993. The Biodiversity Convention currently has 193 Parties, including the EU (the EC became a Party on 21 December 1993).446 It is a Framework Convention: it calls for Protocols that are aimed at furthering the operations of its basic principles and objectives (the “Framework-Protocol” approach).447 Being a framework agreement, the Biodiversity Convention was not meant to harmonise nor codify international environmental law related to biodiversity (while taking into account and not affecting existing agreements, Article 22). It is worth emphasising that the Biodiversity Convention is the result of a compromise of the extremely diverging views and interests put forward by the negotiating Parties.448 The Biodiversity Convention pursues three objectives: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the use of genetic resources (Article 1). The two first objectives are relevant for the following analysis. The Biodiversity Convention is based on three central principles: “national implementation, cooperation with other agreements and post-agreement negotiation of annexes and legally binding protocols, as well as non-binding work programmes”.449 2.3.1.2 Definition of Biodiversity: Article 2 At this point, what is of particular interest in the Biodiversity Convention for the purpose of the book is the definition it provides for “biodiversity” in Article 2. Indeed, the purpose of this section is to focus on the definitions of environmental values in frameworks for legal responsibility. This enables to assess the definitions of natural resources in the Directives against international law standards. This section heavily relies on the studies performed by E. H. P. Brans.450 The definitions of damage and harm are addressed later in section 2.4. a whole series of Conventions do address biodiversity related issues (for example the Montego Bay Convention on the Law of the sea—UNCLOS, 1982). 446  The list of Parties is available on the Biodiversity Convention website, at , page accessed 26 July 2011. 447  On that aspect, see D. M. McGraw (2002) who specifies the differences between Framework and Umbrella Conventions and the relationship between framework agreements and subsequent protocols. 448  As reported by several authors, see footnote n. 421. 449  D. M. McGraw (2002), p. 18. 450  E. H. P. Brans (2001) and E. H. P. Brans (2006).

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Article 2 of the Biodiversity Convention provides authoritative definitions.451 Biodiversity is referred to as meaning the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part: this includes diversity within species, between species and of ecosystems. Biological resources are defined as including genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity. Ecosystem is defined as meaning a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.452 With this definition, the term biodiversity is understood broadly. It refers to three aspects: the number, variety and variability of all species of plants, animals and micro-organisms as well as the ecosystems of which they are part.453 451  These definitions are perceived as being “authoritative” and “generally accepted”, E. H. P. Brans (2006), p. 192. 452  On a side-note and still in Article 2 of the biodiversity Convention, “ ‘Genetic material’ means any material of plant, animal, microbial or other origin containing functional units of heredity”, “Genetic resources” means genetic material of actual or potential value”, “ ‘In-situ conditions’ means conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties”, “ ‘In-situ conservation’ means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties”, “ ‘Habitat’ means the place or type of site where an organism or population naturally occurs”, and “ ‘Protected area’ means a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives”. 453  E. H. P. Brans (2006), p. 192.

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The assessment of biodiversity is not only of a purely quantitative nature. Indeed, biodiversity is assessed at four levels: genetic biodiversity within a species, the variability among species, functional diversity (which refers to the variety of biological functions of ecosystems), and ecosystem diversity (which refers to the variety of communities of organisms within particular habitats).454 2.3.1.3

EU Notion of Habitats, Services and Natural Resources: A Portion of Biodiversity To what extent does the definition of natural resources embodied in Directive 2004/35 match the definition of biodiversity enshrined in the Biodiversity Convention? Only partly. The notion of biodiversity does not appear in the operative part of Directive 2004/35 but in the Preamble.455 Regarding Directive 2008/99, the term does not appear in the operative part or in the Preamble of the Directive. The situation of Directive 2004/35 is peculiar: the term biodiversity did appear in both the Preamble and operative part of the Directive. In the first stages of the legislative process, biodiversity was defined in the European Commission’s Proposal (2002) in Article 2(1)(2) as meaning natural habitats and species listed in Annex I to Directive 79/409/EEC, or in Annexes I, II and IV to Directive 92/43/EEC, or habitats and species, not covered by those Directives, for which are as of protection or conservation have been designated pursuant to the relevant national legislation on nature conservation.

The definition slightly changed after the European Parliament’s first reading (May 2003).456 Reference to biodiversity in Article 2 (definitions) eventually disappeared with the Council’s first reading. “Environmental damage” was 454  E. H. P. Brans (2001), pp. 192–193. 455  Recital 1 provides: “There are currently many contaminated sites in the Community, posing significant health risks, and the loss of biodiversity has dramatically accelerated over the last decades. Failure to act could result in increased site contamination and greater loss of biodiversity in the future. Preventing and remedying, insofar as is possible, environmental damage contributes to implementing the objectives and principles of the Community’s environment policy as set out in the Treaty. Local conditions should be taken into account when deciding how to remedy damage.” 456  European Parliament position, first reading, 14 May 2003, Biodiversity was defined in Article 2(1)(2) as

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preferred to “biodiversity”, the former meaning damage to protected species, natural habitats, water damage, and land damage. This definition is complemented by the notion of “service” and “natural service”, defined in Directive 2004/35 Article 2(13) as meaning the functions performed by a natural resource for the benefit of another natural resource or the public.457 E. H. P. Brans concludes that the definition provided by Directive 2004/35 which refers to protected species, habitats, water and land, together with services and conservation status, does not match the definition of biodiversity provided by the Biodiversity Convention.458 The Biodiversity Convention’s definition of biodiversity would be broader than the definition provided by  “ ‘biodiversity’ means all species and the protected sites they live in and all habitats protected under Community law, and all habitats and species not covered by Community law for which areas of protection or conservation have been designated pursuant to the relevant equivalent national legislation on nature conservation, including both existing law and subsequent amendments thereto, as well as relevant future legislation”. 457  Some scholars underline the strong link between the notion of service and the notion of ecosystem. See for example I. Doussan (2009). The definition of “conservation” is also crucial with the view to fully understanding which and how resources fall within the scope of application of the Directive. Conservation is defined in Article 2(4) as meaning, when it comes to habitats (a):  “[T]he sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the longterm survival of its typical species”  and  “The conservation status of a natural habitat will be taken as ‘favourable’ when: its natural range and areas it covers within that range are stable or increasing, the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and the conservation status of its typical species is favourable, as defined in (b).”  Regarding species, conservation means (b):  “[T]he sum of the influences acting on the species concerned that may affect the longterm distribution and abundance of its populations (. . .). The conservation status of a species will be taken as ‘favourable’ when population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis.” 458  E. H. P. Brans (2001), pp. 195–196, E. H. Brans (2006), pp. 192–193, and R. MacKenzie (2004), p. 82.

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Directive 2004/35. It is true that the definitions provided mainly refer to quantitative criteria.459 In this respect, the author can remark that, somewhat similarly, the definition of biodiversity provided by the European Commission’s Proposal in 2002 did refer to quantitative criteria too. No explicit reference is made to the whole four “levels” of biodiversity identified by E. H. P. Brans: genetic biodiversity within a species, the variability among species, functional diversity (which refers to the variety of biological functions of ecosystems), and ecosystem diversity (which refers to the variety of communities of organisms within particular habitats). In addition, Directive 2004/35 does not make an explicit reference to ecosystems.460 Nevertheless, it may be appropriate to nuance the statement made by E. H. P. Brans if one adopts an essentialist rather than a nominalist approach.461 Indeed, Directive 2004/35 does embody the notion of natural resource service (for the first time in EU environmental law). As seen in section 2.1.7, scholars have welcomed the appearance of this notion, while also expressing doubts regarding its actual meaning. This notion could be the implicit recognition of ecosystems’ variability and functions in Directive 2004/35.462 There is a link between the services of natural resources (defined in Directive 2004/35 as “meaning the functions performed by a natural resource for the benefit of another natural resource or 459  See for example the definition of conservation status reported above. Reference is made to distribution, abundance, large habitat. 460  Similarly, the Habitat and Wild Birds Directives do not make an explicit reference to ecosystems. The Water Directive does refer to ecosystems in various occasions (Preamble, Recitals 17, 20 and 23; Articles 1(a); 2(21), (27) and (33); Article 11(3)(L); Annex II points 2.1, 2.2 and 2.4; Annex V points 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 2.1.2, and 2.3.2), but does not define the notion of ecosystem. On the distinction between ecosystems and species according to conservation biology, see M. E. Soulé (1994). 461  Having an essentialist approach, N. de Sadeleer and C.-H. Born (2004), pp. 57–58 similarly identify a partial recognition of the ecosystem notion in the Habitat Directive: Article 1(b) defines natural habitats as meaning “terrestrial or aquatic areas distinguished by geographic, abiotic and biotic features, whether entirely natural or semi-natural”. They nevertheless emphasise that this definition of habitat does not have a meaning as broad as the one retained in the Biodiversity Convention. Furthermore, the latter distinguishes habitats from ecosystem. 462  With respect to ecosystems, there is to distinguish ecosystem management (vertical strategy aimed at promoting conservation and sustainable use of specific ecosystems— for example forests) from ecosystem approach (horizontal technic of conservation and integrated management of resources—specie, ecosystem, landscape), N. de Sadeleer and C.-H. Born (2004), p. 57 (translation mine).

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the public”) and ecosystems (defined in the Biodiversity Convention as meaning “a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit”).463 In support to their claim, scholars rely upon work done with respect to the United Nations’ “Millenium Ecosystem Assessment” international work program.464 In the framework of this initiative, four ecosystem services have been identified: supporting (such as soil formation and nutrient cycling), provisioning (such as food and water), regulating (such as regulation of floods, drought, land degradation and disease), and cultural services (such as recreational, spiritual, religious).465 The scheme below represents these services and their link regarding human well-being.466 Directive 2004/35 refers not only to the services of natural resources with respect to humans (“the public”), but also to other natural resources. Here again, the work achieved under the UN initiative proves useful in understanding the notion of service rendered by a natural resource for another natural resource. The scheme below illustrates this relationship.467 463  See for example I. Doussan (2009). 464   This initiative is aimed at evaluating ecosystem deterioration: “The Millennium Ecosystem Assessment assessed the consequences of ecosystem change for human wellbeing. From 2001 to 2005, the MA involved the work of more than 1,360 experts worldwide. Their findings provide a state-of-the-art scientific appraisal of the condition and trends in the world’s ecosystems and the services they provide, as well as the scientific basis for action to conserve and use them sustainably”, Millenium Assessment webpage, available at , page accessed 30 October 2015. 465  The following definitions are provided by the Millenium Assessment Glossary, available at , page accessed 4 August 2011: “Provisioning services are: The products obtained from ecosystems, including, for example, genetic resources, food and fiber, and fresh water”, “Regulating services are: The benefits obtained from the regulation of ecosystem proc­ esses, including, for example, the regulation of climate, water, and some human diseases”, “Cultural services are: The non-material benefits people obtain from ecosystems through spiritual enrichment, cognitive development, reflection, recreation, and aesthetic experience, including, for example, knowledge systems, social relations, and aesthetic values”, “Supporting services are: Ecosystem services that are necessary for the production of all other ecosystem services. Some examples include biomass production, production of atmospheric oxygen, soil formation and retention, nutrient cycling, water cycling, and provisioning of habitat”. For a critical assessment of the initiative, see A. K. Duraiappah (2011). 466  Millenium Assessment Statement from the Board of Directors (2005), p. 7. 467  Millennium Ecosystem Assessment (2005), p. 16.

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FIGURE 1  Services.

From the schemes above and below, it appears very clearly that the notion of service is interrelated to the notion of ecosystem. Indeed, services of natural resources do implicitly acknowledge the “dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit” (Biodiversity Convention, definition of ecosystem). The Directive does not provide any guidance regarding the specific content and scope of the “service” notion. The exact boundaries and content of the notion could be provided by the EU Member States’ transposition of the Directive, application of the Directive legal mechanisms or by EU Courts’ interpretation. Overall, the definition of damage in Directive 2004/35 could cover, at least partly, the notion of an ecosystem and the functional dimension embodied in the definition of biodiversity of the Biodiversity Convention. This nuance left aside, the fact remains that the reference to natural resources and to the services of natural resources in Directive 2004/35 is not equal to the notion of biodiversity as defined in the Biodiversity Convention. The latter is broader. Directive 2004/35 only covers a portion of biodiversity as defined in the Biodiversity Convention.

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FIGURE 2  Biodiversity and ecosystems.

2.3.1.4

The Biodiversity Convention does not Recognise Biodiversity’s Intrinsic Value Considering the very notion of biodiversity in the Biodiversity Convention as a standard, and one not covered by Directive 2004/35, a question remains: does the Biodiversity Convention embody and impose an intrinsic approach to environmental elements?

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Earlier in this chapter the distinct approaches to environmental elements were detailed.468 The protection of these values relates back to distinct interests. If these interests were to be perceived on a spectrum going from the most anthropocentric approach to the most ecocentric approach, the instrumental value would be on the left, followed by the inherent value in the middle, and the intrinsic value would be on the right.469 The instrumental value approach refers to the practical purposes that environmental elements can have for humans or other environmental elements, and that are assessed accordingly. Under the inherent value approach, the environmental values are assessed according to the worth of their very existence, rather than their utility. The instrumental and inherent approaches require that an external valuator or beneficiary interfere with a view to either identifying the practical purposes rendered by the environmental value, or granting 468  See section 2.1.1, under “What: the environmental elements captured by law” and “How: legal approaches to the environmental elements”. 469  Conservation Biology has the recognition of biodiversity’s intrinsic value as one of its postulates. See for example M. E. Soulé (1985), p. 731:  “Biotic diversity has intrinsic value, irrespective of its instrumental or utilitarian value. This normative postulate is the most fundamental. In emphasising the inherent value of nonhuman life, it distinguishes the dualistic, exploitive world view from a more unitary perspective: Species have value in themselves. A value neither conferred nor revocable, but springing from a species’ long evolutionary heritage and potential or even from the mere fact of its existence”.  Contra, see L. A. Maguire and J. Justus (2008), who mainly articulate opportunity arguments:  “Conservation requires decision-making, and here intrinsic value falls short. Decision making requires trade-offs” (p. 910), “Proponents of intrinsic value as a basis for conservation action hope that it will take precedence over competing claims and guarantee conservation. This rarely happens, even for decisions relatively insulated from the pressures of competing demands” (p. 910), “When protection of species and ecosystems conflicts with economic development or with immediate human needs, intrinsic value is even less likely to be an effective basis for conservation” (p. 910), “Undoubtedly, arguing that instrumental value is more useful for conservation decisions than intrinsic value will not satisfy everyone. The essential tension between the emotional appeal of intrinsic value, and the trade-offs required by conservation decisions is probably irreconcilable. Using instrumental value to bring aesthetic, spiritual, and cultural values of biota into conservation decision-making will not satisfy deep ecologists and others who find weighing one form of value against another abhorrent. But those defending conservation against competing uses and allocating scarce resources among conservation actions are better served by building their decisions on a strong foundation of instrumental value rather than on the weak concept of intrinsic value” (p. 911).

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the environmental values with a particular value to be assessed if impaired. This is completely different from the environmental elements’ intrinsic value. In this case, the environmental values possess a value “of themselves” and “for themselves”. This value does not have to be assessed by an external evaluator or beneficiary.470 They have a “prima facie claim”: they are acknowledged for the mere fact that they exist. In the first part of the chapter, the author found that the definitions of harms retained in Directives 2004/35 and 2008/99 retain a mostly instrumental approach, with the exception of harm to waters. Does this approach embodied in EU secondary law clash with the Biodiversity Convention? At first reading, the Biodiversity Convention seems to advocate the intrinsic value of environmental features. Indeed, the first Recital of the Preamble provides: Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components. Nevertheless, several scholars contend that the operative parts of the Biodiversity Convention do not reflect an intrinsic approach. Scholars highlight, for example, that Annex I of the Biodiversity Convention relates back to ecosystems, habitats and species that are threatened together with ecosystems, habitats and species that have an instrumental value.471 Annex I refers in the first point to ecosystems and habitats that are of social, economic, cultural or scientific importance; or, which are representative, unique or associated with key evolutionary or other biological processes. Similarly, point 2 of Annex I echoes an instrumental value with respect to species and communities, referring to species and communities which are of medicinal, agricultural or other economic value; or social, scientific or cultural importance: or importance for research into the conservation and sustainable use of biological diversity, such as indicator species. 470  They are said to have a “good of their own”: impairment of these environmental values having an intrinsic value requires taking into account the values’ autonomous value to exist. Indeed, environmental values that are recognised an intrinsic value should not be destroyed or prevented from existing. 471  N. de Sadeleer and C.-H. Born (2004), p. 87.

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Point 3 of Annex I does not depart from such instrumental approach, while referring to genomes and genes “of social, scientific or economic importance.”472 Other scholars emphasise that the Biodiversity Convention puts forward different approaches in its very Preamble.473 Indeed, Recitals 2,474 12,475 18,476 20477 and 23478 do advocate an instrumental or inherent approach to biodiversity rather than an intrinsic approach. Overall, the author can conclude that the Biodiversity Convention does not create an obligation to adopt an intrinsic approach to biodiversity.

472  In addition, other evidences of the instrumental/inherent approaches can be traced back in the Convention. See Article 2, definition of biological resources (“or any other biotic component of ecosystems with actual or potential use or value for humanity”), definition of ecosystems (“interacting as a functional unit”), definition of genetic material (“containing functional units of heredity”), definition of genetic resources (“of actual or potential value”), definition of sustainable use (“thereby maintaining its potential to meet the needs and aspirations of present and future generations”), Article 7 Identification and monitoring (b) (“and those which offer the greatest potential for sustainable use”), Article 8 In-Situ conservation, with respect to LMOs (g) (“taking also into account the risks to human health”), Article 10 Sustainable Use of Components of Biological Diversity (“Protect and encourage customary use of biological resources in accordance with traditional cultural practices”), Article 15(2) Access to Genetic Resources (“Each Contracting Party shall endeavour to create renditions to facilitate access to genetic resources for environmentally sound uses”), Article 16(1) Access to and Transfer of Technology (“make use of genetic resources”) and Article 16(3) (“access to and transfer of technology which makes use of those resources”), Article 19(2) Handling of Biotechnology and Distribution of its Benefits (“to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources”), and Article 20(6) Financial Resources (“special conditions resulting from the dependence on, distribution and location of biological diversity within developing country Parties”). 473  P. Birnie, A. Boyle and C. Redgwell (2009), p. 618. 474  “Conscious also of the importance of biological diversity for evolution and for maintaining life sustaining systems of the biosphere”. 475  “Recognizing the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources”. 476  “Acknowledging that substantial investments are required to conserve biological diversity and that there is the expectation of a broad range of environmental, economic and social benefits from those investments”. 477  “Aware that conservation and sustainable use of biological diversity is of critical importance for meeting the food, health and other needs of the growing world population (. . .)”. 478  “Determined to conserve and sustainably use biological diversity for the benefit of present and future generations”.

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Consequently, the EU was not bound to adopt an intrinsic approach in secondary norms (the Directives that regulate environmental responsibility law). In the section that follows the attention is directed to the European Convention and Court on Human Rights and approach of the Court regarding the definition of environmental elements. It turns out that the Council of Europe Human Rights Law is not conflicting with the (mainly) instrumental approach of the Directives nor the limited definition of natural resources. 2.3.2 Biodiversity and the European Court of Human Rights 2.3.2.1 The European Convention on Human Rights: Limited Potential Regarding Natural Resources and Biodiversity When challenging the Directives’ notion of natural resources against the European Convention on Human Rights and European Court of Human Rights standards, one has to bear in mind the limits of this approach. As seen in section 1.2.7, the Convention does not guarantee the right to a clean, healthy, safe, ecologically balanced, stable, viable, sustainable, or protected environment.479 This did not hamper the Court from elaborating a whole body of case law related to affairs having an environmental dimension. Nevertheless, the Court retains a largely anthropocentric and individualist approach: damage to the environment has to be linked to the rights 479  On the opposite, the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, “Protocol of San Salvador” guarantees the Right to a Healthy Environment in Article 11:  “1. Everyone shall have the right to live in a healthy environment and to have access to basic public services. 2. The States Parties shall promote the protection, preservation, and improvement of the environment”; the African Human Rights Charter also recognises that “all peoples shall have the right to a general satisfactory environment favourable to their development” (art. 24). As the Court itself put it, it is “well-established case-law that neither Article 8 (right to private life) nor any other provision of the Convention guarantees the right to preservation of the natural environment as such” (ECtHR, Dubetska and Others v. Ukraine, 10 February 2011, para. 105). The Court put it even more clear in a recent case (28 June 2011, Application No. 38197/03 (dec.), Ioan Marchiş and Others v. Romania, para. 28):  “The Court reiterates that there is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise, smells or other pollution, an issue may arise under Article 8”. For a recent decision regarding noise induced by an airport, see ECtHR 25 November 2014, Application No. 25194/08 (admis. Dec.), Elżbieta Płachta v. Poland.

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guaranteed by the Convention. Consequently, the Court cannot investigate natural resources insofar as the legal treatment of res communes (i.e. common enjoyment) is at stake in a case. There is a prima facie obstacle for the Court in dealing with (purely) biodiversity related matters: the link between biodiversity and the human rights guaranteed by the Convention appears to be very loose. When screening the Court’s case law concerned with environmental affairs, it appears that environmental features are dealt with in three hypotheses. Firstly, the states that appear before the Court justify national interference in the human rights guaranteed on protection measures for environmental features. In this hypothesis, the states put forward the protection of environmental features as the legitimate end of the national measure that interferes with the rights guaranteed by the Convention. In this respect, it appears that the Court has mainly had to deal with water, air, and land.480 The Court has had to deal with animal, vegetal or biological living species in a few cases. Secondly, the claimants have put forward that the states brought before the Court have failed to adopt measures that would have prevented the impairment of environmental features. This impairment has, in turn, interfered with the rights guaranteed by the Convention. Under the third hypothesis, the claimants contend that states have adopted national measures that have impacted on environmental features. In turn, this impact has interfered with the rights guaranteed by the Convention. When screening the Court’s case law in these two last hypotheses, it appears that the Court has had to deal with water, air, and land.481 For the time being, 480   See for example ECtHR, Depalle v. France, 29 March 2010 and Brosset v. France, 29 March 2010, Grand Chamber. In these cases, the applicants submitted that the obligation imposed on them to demolish the houses located within the French maritime territory at their own expense and without compensation was not compatible with their rights under Article 1 of Protocol No. 1 (protection of property) to the Convention and of Article 8 (right to respect for home). This obligation was grounded on coastal areas’ protection grounds. According to the Court, the obligation was part and parcel of a consistent and rigorous application of the law given the growing need to protect coastal areas and their use by the public, and also to ensure compliance with planning regulations. 481  See for example ECtHR, Fadeyeva v. Russia, 9 June 2005. In this case, the applicant lived in the town of Cherepovets, an important steel-producing centre approximately 450 metres from the site of the Severstal steel plant. The claimant contended that air pollution had caused severe health problems. See also ECtHR, Dubetska and Others v. Ukraine,

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the Court has not had the opportunity to pronounce itself in cases where ecosystems were at stake.482 This may result from the fact that claimants contending that damage or harm being done to ecosystems was infringing

(10 February 2011) where air, soil and waters were polluted. In this case, the applicants are 11 Ukrainian nationals. A State-owned coal mine started to operate in the vicinity of the applicants’ houses. A mine spoil heap was built around 100 metres from the applicants’ homes. 19 years later, e coal processing factory was opened by the State. A 60 metre spoil heap was built about 400 metres from the applicants’ homes. Governmental and nongovernmental studies found that the operation of the mine and factory had had adverse effects (flooding, polluted ground water, polluted air and polluted soil subsidence). The studies did conclude that the persons leaving in the vicinity of the mine and factory were exposed to a higher risk of cancer, respiratory and kidney diseases. The applicants initiated proceedings at the national level, arguing they had suffered from chronic health problems, irregular and insufficient access to drinking water (having a negative effect on relations and communication in the families), and that their houses had suffered from soil subsidence. The applicants launched a case before the Court, grounding their case on violation of Article 8 (right to protection of family and private life). The Court found that Ukraine had violated Article 8. Similarly, in the Giacomelli v. Italy case (ECtHR 2 November 2006), the applicant’s house was located 30 meters away from a plant for the storage and treatment of “special waste”, classified as either hazardous or non hazardous waste. The local health authority acknowledged air pollution, soil pollution. For a case where water pollution was at stake, see ECtHR, Zander v. Sweden, 25 November 1993. 482  With one notable and fairly “anecdotic” exception in the S. v. France case (Dec. 17 May 1990, Application No. 13728/88). In this case, the applicant owned a house located on the banks of the Loire. A rural area “opposite this property, less than 300 meters away and separated from it only by the Loire became the site” for a nuclear power station. One of the harms resulting from the industrial environment was “microclimate changes”, inluding “loss of direct sunlight and a large increase in humidity, caused by the plumes of water vapour rising from the cooloing towers”. The Commission eventually declared the application inadmissible, for the intereference suffered by the applicant did not go beyond what is necessary in a democratic society. To be very specific, the Court has had to adjudicate re. ecosystems, but very indirectly. For example, in the Koretskyy and Others v. Ukraine case (3 April 2008), the Court held unanimously that there had been a violation of Article 11 (freedom of assembly and association) of the Convention on account of the Ukrainian authorities’ refusal to register the applicants’ association, the “Civic Committee for the Preservation of Wild (Indigenous) Natural Areas in Bereznyaky”. According to its aim and tasks, the Committee shall perform its activities in (among others) “lobbying of issues connected with the preservation of natural ecosystems with the national and local authorities”.

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the rights guaranteed by the Convention have systematically been refused access to the Court.483 Indeed, as seen above, the Court has systematically recalled that it is “well-established case-law that neither Article 8 (right to private life) nor any other provision of the Convention guarantees the right to preservation of the natural environment as such”.484 Taking due account of the structural limit of human rights (the text of the Convention does not guarantee environmental rights) and the Court’s interpretation and application of the Convention (that has been very dynamic but remains largely anthropocentric and individualist regarding environmental affairs) the question answered in this section is whether the dynamism of the Court goes so far as to enable human rights law to fill the gaps of the Directives in terms of biodiversity. 2.3.2.2 The Purely Instrumental Value of Environmental Elements Unlike the Biodiversity Convention, the Court does not presume to recognise the intrinsic value of the environment. The Court’s approach rather recognises the environment’s instrumental or inherent values. Firstly, the Court cannot recognise environmental values per se. This stems from the individual and anthropocentric character of the Convention: no provision of the Convention guarantees the right to preservation of the natural environment as such. Secondly, the instrumental approach is evidenced in the aims put forward by states when they have to argue that “environmental protection” is a legitimate aim to interfere with the rights guaranteed by the Convention. In these cases, the vocabulary used by the Court reflects a mainly instrumental or sometime inherent approach to natural resources. For example, states have put forward agriculture rationalisation,485 safeguarding of fish stocks,486 fair

483  See for example ECtHR 22 May 2003, Kyrtatos v. Greece. 484  ECtHR, Dubetska and Others v. Ukraine, 10 February 2011, para. 105. With one exception discussed above: the Tatar case. See section 1.2.6, under “The autonomous (human) right to a healthy and protected environment”. 485  ECtHR, Hankansson and Sturesson v. Sweden, 23 January 1990, para. 27:  “creation and preservation of viable family holdings so as to strengthen the connection between cultivation and ownership, and also the promotion of a continuous structural rationalisation of agriculture and forestry”. 486  ECtHR, Posti and Rahko v. Finland, 24 September 2002, para. 26: “its loss of income from leasing out those waters”.

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management of hunting resources’,487 protection of forests,488 sustainable energy measures489 and land planning.490

487  ECtHR, Baudinière v. France (Dec.), 6 December 2007, in para. 2 reference is made to a “fair management of hunting resources”, “offering to the widest number of persons access to hunting leisure”, “game stock management” (translation mine). See also ECtHR, Herrmann v. Germany, 20 January 2011 para. 48:  “The Court notes, at the outset, that the aim of the impugned provisions are laid down in Section 1(2) of the Federal Hunting Law, providing that the management of the game stock is aimed at maintaining varied and healthy game populations at a level compatible with land care and cultural conditions and at avoiding game damage. The Court accepts that these aims are in the general interest”,  and point 50:  “As regards the necessity of the measure at issue, the Court takes note of the Government’s submissions that the specific situation in Germany as one of the most densely populated areas in Central Europe made it necessary to allow area-wide hunting on all suitable premises. The Court further observes that the German law applies nationwide”. 488  ECtHR, Papastavrou v. Greece, 10 March 2003. 489  ECtHR, Fägerskiöld v. Sweden (admis. Dec.), 26 February 2008. In this case, the Court had for the first time to assess a situation where wind turbines were concerned. Building permits were awarded to erect wind turbines located 371, 430 and 620 meters from the applicants’ house. According to the applicants, the wind turbines emitted a constant and pulsating noise, in addition to (sometimes) a light effect. They found the noise and the light to be very intrusive and disturbing. The measured noise level did not reach the maximum regulatory level of 40 db. The applicants submitted that the wind turbines’ operation allowed by national authorities constituted an infringement with their right to property on the one hand, and their right to family and private life on the other hand. Their application was found inadmissible. The Court did acknowledge the environment’s instrumental and inherent values. Indeed, the Court acknowledges these values that are embodied into national law as is evidenced in some parts of the Decision under “the law”, point 1 (emphasis added):  “As concerns the Code, Chapter 1, Article 1 states, inter alia, that its purpose is to promote sustainable development which will ensure a healthy and sound environment for present and future generations. It shall ensure that human health and the environment are protected against damage and inconvenience, whether caused by pollutants or other sources, and that the use of land, water and the physical environment in general is such as to secure long-term good management in ecological, social, cultural and economic terms”. 490  ECtHR, Vergos v. Greece, 24 June 2004. See also ECtHR, Trevor Allen and Others v. United Kingdom, 6 October 2009 (Dec.), para. 62 (under “Legitimate aim”):  “[T]he Court recalls its previous findings regarding the link between night flights and the benefit to the general economy of maintaining competitiveness” (emphasis added).

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All in all, the Court does not endorse an intrinsic approach nor impose it. The European Convention on Human Rights as interpreted and applied by the Court does not conflict, complement or confirm the Directives. 2.4

International Environmental Law and Human Rights Confirm the Directives through Policy Diffusion:491 Damage and Harm to Natural Resources

In this section, two gaps identified in the Directives are addressed. Firstly, the author addresses the threshold condition for damage and harm to be legally defined (“significant adverse effects”, “significant”, “significant risk”, “significantly adversely affects” in Directive 2004/35, and “serious injury”, “substantial”, “non-negligible effect” in Directive 2008/99). More specifically, the author addresses the thresholds’ level and their lack of precision. Second to be addressed is environmental harm resulting from damage caused by pollution that has a “diffuse character”, i.e. where the causal link between damage and activities of individual operators cannot be established. In these instances there is no harm according to Directive 2004/35. Damage and Harm to Biodiversity and International Environmental Law: The Biosafety Protocols In this section, the Directives are challenged against international environmental law requirements. Attention is directed to two Protocols to the biodiversity Convention: the Biosafety Protocols. A brief presentation of these usefully precedes this assessment.492 2.4.1

491  Political scientists who pay attention to this kind of phenomenon label it “policy diffusion”. See for example K. Biedenkopf (2012), p. 3:  “Policy diffusion is the process through which policy originating in one jurisdiction affects policy in other jurisdictions. This process takes place in the absence of a negotiated agreement to transfer the respective policy between the jurisdictions. The jurisdiction that first introduced the policy also does not explicitly force other jurisdictions to adopt the policy. Policy diffusion occurs through one or a combination of three distinct mechanisms, which are learning, emulation and adjustment. Learning and emulation both rely on the communication of information about the pioneering policy to other jurisdictions while adjustment is based on the alteration of some situational factors in jurisdictions other than the pioneer”. 492  As was the case above regarding the Biodiversity Convention, the following developments are not meant to be comprehensive. For comprehensive developments on the Cartagena protocol, see among others S. W. Burgiel (2002); R. MacKenzie (2004); D. Langlet (2005);

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2.4.1.1 A Brief Presentation As mentioned earlier, the Biodiversity Convention is a Framework Convention. Protocols are meant to complement the Convention. For the time being, three Protocols have been adopted: the Cartagena Protocol on Biosafety, the Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety, and the Nagoya Protocol on Access and Benefit-sharing (adopted by the 10th Conference of the Parties to the Convention on Biological Diversity on 29 October 2010 in Nagoya, Japan). These first two are useful for the following analysis, since access and benefitsharing matters clearly fall outside the scope of the book as they do not relate to damage and harm to environmental values. The Cartagena Protocol on Biosafety to the Convention on Biological Diversity (hereinafter “the Cartagena Protocol”) was adopted on 29 January 2000 and entered into force on 11 September 2003. There are currently 168 Parties to the Cartagena Protocol, including the EU.493 The Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (hereinafter “the Liability and Redress Protocol”) was adopted on 15 October 2010. The Liability and Redress Protocol was opened for signature on 7 March 2011. The Protocol will enter into force on the 90th day after the date of deposit of the 40th instrument of ratification, acceptance, approval or accession. For the time being, there are 27 such instruments (including EU’s approval) and 51 signatories.494 Even though the Liability and Redress Protocol has not entered into force yet, the author will make use of it as a source in the developments that follow.495

D. Bevilacqua (2007); O. Outhwaite (2010); P. Birnie, A. Boyle and C. Redgwell (2009), pp. 640–649; N. de Sadeleer and C.-H. Born (2004), pp. 331–336; and A. Kiss and J. P. Beurrier (2004), pp. 257–360. For developments on the Liability and Redress Protocol, see P. Birnie, A. Boyle and C. Redgwell (2009), pp. 647–648; and S. Jungcurt and N. Schabus (2010). 493  The list of Parties is available on the Biodiversity Convention’s website on the webpage dedicated to the Cartagena Protocol, available at , page accessed 1st December 2014. 494  The list is available on the Biodiversity Convention’s website on the webpage dedicated to the Liability and Redress Protocol. Page available at , page accessed 1st December 2014. 495  Scholars are usually quite optimistic on the Liability and redress Protocol entering into force. See for example S. Jungcurt and N. Schabus (2010).

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2.4.1.2 Objectives, Definitions and Scope of Application The objective of the Cartagena Protocol is expressed in Article 1.496 The Protocol is aimed at contributing to ensuring an adequate level of protection with regard to the transfer, handling and use of living modified organisms that result from modern biotechnology and which may have adverse effects on “the conservation and sustainable use of biological diversity, taking also into account risks to human health”, and “specifically focusing on transboundary movements”.497 The objective of the Liability and Redress Protocol is also expressed in Article 1. The objective, just like the Cartagena Protocol and in line with the Biodiversity Convention’s objectives, is to “contribute to the conservation and sustainable use of biological diversity”, taking also into account “risks to human health, by providing international rules and procedures in the field of liability and redress relating to living modified organisms.” Turning to the definition of Living Modified Organisms (LMOs), it should be kept in mind for the following developments that LMOs equal Genetically Modified Organisms (GMOs).498 The Cartagena Protocol defines LMOs in Article 3(g) and (h): (g) “Living modified organism” means any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology; (h) “Living organism” means any biological entity capable of transferring or replicating genetic material, including sterile organisms, viruses and viroids.499 496  It is worth emphasising that the Protocols are the expression of a compromise of the very diverging views put forward by the negotiating Parties. The authors referred to in n. 421 report on the difficulties that arose during the negotiations. The numerous compromises materialise in the Protocols and explain, according to the same authors, the weaknesses, loopholes and inconsistencies that they identify in the Biosafety protocols. 497  On the risks created by biotechnology and GMOs, see for example T. O. McGarity (1991), pp. 325–329 and R. MacKenzie (2004), pp. 66–72, and M. Wilde (2003), pp. 272–273. 498  D. Langlet (2005) reports p. 291 that the terms are equivalent. The choice to use the term LMOs was the result of a compromise. The Report is available on the Biodiversity Convention website, webpage dedicated to national Reports re. the Cartagena Protocol, available at http://www.cbd.int/doc/world/eur/eur-nr-cpb-01-en.pdf, page accessed 27 July 2011. 499  An important feature of this definition is that the Cartagena Protocol does not apply to products of LMOs. The same exclusion applies for the Liability and Redress Protocol insofar as the latter relates back to the definition of the former regarding LMOs. For an overview of exemptions, see D. Langlet (2005), p.297.

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In addition, the Cartagena Protocol defines “Modern biotechnology” in Article 3(j): Modern biotechnology” means the application of: a. In vitro nucleic acid techniques, including recombinant deoxyribonucleic acid (DNA) and direct injection of nucleic acid into cells or organelles, or b. Fusion of cells beyond the taxonomic family, that overcome natural physiological reproductive or recombination barriers and that are not techniques used in traditional breeding and selection. With regards to definition issues, the Liability and Redress Protocol refers to the Cartagena Protocol and Biodiversity Convention (Article 2) and provides definitions not provided in the Cartagena Protocol or the Biodiversity Convention insofar as terms are specific to the Liability and Redress Protocol purpose. Consequently, the above definitions provided by the Cartagena Protocol do apply mutatis mutandis to the Liability and Redress Protocol. When it comes to the scope of the Biosafety Protocols, the Cartagena Protocol provides in Article 4 that it applies to the transboundary movement, transit, handling and use of all living modified organisms that may have adverse effects on the conservation and sustainable use of biological diversity, also taking into account risks to human health.500 The Protocol applies to intentional, unintentional501 and illegal502 transboundary movements. The Protocol also addresses transboundary movements of LMOs with non-State Parties in Article 24. Article 24(1) provides that Parties to the Protocol can enter into “bilateral, regional and multilateral agreements and arrangements” regarding transboundary movements of LMOs with non500  Article 3(k) of the Cartagena Protocol defines transboundary movement as meaning  “the movement of a living modified organism from one Party to another Party, save that for the purposes of Articles 17 and 24 transboundary movement extends to movement between Parties and non-Parties”,  and Article 3(b) defines contained use as meaning  “any operation, undertaken within a facility, installation or other physical structure, which involves living modified organisms that are controlled by specific measures that effectively limit their contact with, and their impact on, the external environment”. 501  Cartagena Protocol, Article 17. 502  Cartagena Protocol, Article 25.

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Parties to the Protocol. Such transboundary movement must be consistent with the objective of the Protocol. The Liability and Redress Protocol’s scope is provided in Article 3. The Protocol applies to “damage resulting from living modified organisms which find their origin in a transboundary movement”. More specifically, the LMOs referred to are LMOs intended for direct use as food or feed, or for processing (Article 3(1)(a)), destined for contained use (Article 3(1)(b)), or intended for intentional introduction into the environment (Article 3(1)(c)). The Liability and Redress Protocol distinguishes four hypotheses where the Protocol will apply: first, the damage results from authorised use of LMOs in the context of an intentional transboundary movement (Article 3(2)); second, damage results from an unintentional transboundary movement (Article 3(3)); third, damage results from an illegal transboundary movement (Article 3(3)); and fourth, the national law that implements the Protocol must apply to damage resulting from transboundary movements of living modified organisms from non-Parties to the Protocol (Article 3(7)). The Liability and Redress Protocol then specifies rationae temporis and rationae loci conditions: the Protocol applies to damage resulting from a transboundary movement of LMOs that began after the entry into force of the Protocol for the Party into whose jurisdiction the transboundary movement was made (Article 3(4)), and the application of the Protocol is limited to damage that occur in areas within the limits of the national jurisdiction of Parties (Article 3(5)).503 The Liability and Redress Protocol addresses damage (Article 3) and sufficient likelihood of damage (Article 5, “Response Measures”).504 The Protocol enshrines the primary responsibility of private persons. The primarily responsible person is identified as being the operator (Articles 5(2), (3), (5) and (6)).505 The notion of operator is defined in Article 2(2)(c) as

503  Article 3(6) specifies:  “Parties may use criteria set out in their domestic law to address damage that occurs within the limits of their national jurisdiction.” 504  Article 5(3) provides:  “Where relevant information, including available scientific information or information available in the Biosafety Clearing-House, indicates that there is a sufficient likelihood that damage will result if timely response measures are not taken, the operator shall be required to take appropriate response measures so as to avoid such damage” (Emphasis added). 505  In this respect, the similarity with Directive 2004/35 is striking.

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any person in direct or indirect control of the living modified organism which could, as appropriate and as determined by domestic law, include, inter alia, the permit holder, person who placed the living modified organism on the market, developer, producer, notifier, exporter, importer, carrier or supplier.506 As for the nature of responsibility, the Protocol does not provide for a civil liability responsibility framework. The Protocol rather opts for the administrative approach, thereby awarding a pivotal role to the competent national (administrative) authority.507 Nevertheless, the Protocol leaves room for the Parties to rely on domestic civil responsibility mechanisms as an option or a complement to the administrative approach (Article 12).508 Because of the nature of the responsibility mechanism set up by the Liability and Redress Protocol, it proves useful with a view to challenging the gaps identified in Directive 2004/35, but useless in ascertaining the gaps identified in Directive 2008/99. Indeed, Directive 2008/99 is concerned with environmental criminal law.509 Consequently, the developments below exclusively address the gaps identified in Directive 2004/35. Eventually, there are two important features for the exercise performed below since they concern the scope of obligations arising from the Protocols. First, no reservations can be made to the Protocols (Cartagena Protocol, Article 38; and Liability and Redress Protocol, Article 19). Second, Parties 506  Contra and on State responsibility added value, see T. O. Mc Garity (1991), p. 359:  “The treaty (possible elements of a multilateral Treaty regarding GMOs) should provide for State liability for any damage that results from a breach by one State of its obligations under the treaty. This will act as an inducement for countries to exercise the control over domestic companies in accordance with the substantive duties established by the treaty”.  During the negotiation process, State liability has been fiercely contested. Ibid. p. 260:  “Any treaty on biotechnology regulation should address the liability of such nongovernmental entities (multinational corporations). The treaty should provide that a corporation may be sued in either the sending state or the receiving state at the election of the plaintiff.” 507  Here again, the similarity with Directive 2004/35 is striking. 508  The choice between a civil responsibility mechanism or the administrative approach was the object of a fierce debate and opposition during the negotiation. This is reported in S. Jungcurt and N. Schabus (2010). 509  There is not, for the time being, an international norm having a global dimension that deals with environmental criminal law, except the Council of Europe Convention on the protection of the environment through criminal law. This Convention has not entered into force (and is not expected to ever do so) and has been discussed at length in the first part of the book for comparative matters.

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can enact more protective measures with respect to the Cartagena Protocol (Article 2(4)), and rely on the criteria set out in their domestic law to address damage that occurs within the limits of their national jurisdiction (Liability and Redress Protocol, Article 2(6)). Their provisions as minimum standards nevertheless bind Parties to the Biosafety Protocols.510 Bearing in mind this background information, it is now possible to proceed with the analysis of the provisions of the Biosafety Protocols regarding damage and harm to environmental values. The goal is to find whether the Biosafety Protocols’ provisions regarding damage and harm to environmental values can fill the gaps in the Directives. 2.4.1.3 Definition of Damage and Harm As a first stage of analysis, attention turns to the provisions of the Biosafety Protocols which define damage. This definition is to be found in the Liability and Redress Protocol, Article 2(2)(b): “Damage” means an adverse effect on the conservation and sustainable use of biological diversity, taking also into account risks to human health, that: (i) Is measurable or otherwise observable taking into account, wherever available, scientifically-established baselines recognised by a competent authority that takes into account any other human induced variation and natural variation; and (ii) Is significant as set out in paragraph 3 below. Some preliminary remarks can be formulated. First, reference to “socioeconomic considerations” in Article 26 of the Cartagena protocol511 does not have any impact on the definition of damage under the Liability and Redress Protocol. Including the “socio-economic considerations consistent with 510  Provided, obviously, that the obligations provided by the Protocols are legally binding (i.e. not invitations) and that the Protocols themselves do not grant Parties with discretion with respect to specific provisions (see for example Liability and Redress Protocol, Article 6(2)). 511  Article 26(1) of the Cartagena Protocol provides:  “The Parties, in reaching a decision on import under this Protocol or under its domestic measures implementing the Protocol, may take into account, consistent with their international obligations, socio-economic considerations arising from the impact of living modified organisms on the conservation and sustainable use of biological diversity, especially with regard to the value of biological diversity to indigenous and local communities.”

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Article 26” of the Cartagena Protocol within the definition of damage was purposefully avoided at the fourth meeting of the Conference of the Parties serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety (Bonn, 12–16 May 2008).512 This is consistent with the fact that the Liability and Redress Protocol is not meant to address economic damage.513 Indeed, and as a second remark, the definition provided in Article 2(2)(b) excludes from 512  The Executive Secretariat had included the following definition to be further discussed: “Damage to conservation and sustainable use of biological diversity also includes any socio-economic considerations consistent with Article 26 of the Protocol”, in Conference of the Parties to the Convention on Biological Diversity serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety, “Final Report of the Open-Ended Ad Hoc Working Group of Legal and Technical Experts on Liability and Redress in the context of the Cartagena Protocol on Biosafety. Note by the Executive Secretary”, UNEP/CBD/BS/ COP-MOP/4/11, 7 April 2008, p. 9. This does not appear in Decision BS-IV/12 adopted at the fourth meeting of the Conference of the Parties serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety (Bonn, 12–16 May 2008). 513  “Socio-economic damage, especially in relation to indigenous and local communities” is identified as encompassing the following features (the list is not exhaustive): loss of income; loss of cultural, social and spiritual values; loss of food security; loss of competitiveness. In Conference of the Parties to the Convention on Biological Diversity serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety, “Report of the OpenEnded Ad Hoc Working Group of Legal and Technical Experts on Liability and Redress under the Cartagena Protocol on Biosafety”, UNEP/CBD/BS/COP-MOP/2/11, 27 May 2005, p. 11. The Executive Secretary of the Intergovernmental Committee for the Cartagena Protocol wondered in 2001 without answering the question whether reference to “socioeconomic considerations” in Article 26 of the Cartagena protocol could have any impact on the definition of damage under the Liability and Redress Protocol (Intergovernmental Committee for the Cartagena Protocol, “Liability and redress for damage resulting from the transboundary movements of living modified organisms. Review of existing relevant instruments and identification of elements”, Note by the Executive Secretary. UNEP/CBD/ ICCP/2/3, 31 July 2001, p. 23). This exclusion seems consistent. Indeed, Article 26 refers to “reaching a decision on import under this Protocol or under its domestic measures implementing the Protocol”. And yet, the Liability and Redress Protocol is not meant to supplement the Cartagena Protocol with regards to decision on import nor the implementation of the Cartagena Protocol. Instead, and as expressed under Article 1 (objective), the Liability and Redress Protocol is meant to provide “international rules and procedures in the filed of liability and redress relating to living modified organisms” (Similarly, the Liability and Redress Protocol does not address the issue of decision on import nor implementation of the Cartagena Protocol in its Preamble, but rather refers to “the need to provide for appropriate response measures where there is damage or sufficient likelihood of damage” in Recital 4). In addition, Article 26 of the Cartagena protocol does not oblige the Parties to take into account socio-economic considerations. The Cartagena Protocol rather allows Parties to do so.

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its scope what is commonly referred to as “traditional damage”, i.e. personal injury, loss or damage to property or economic interests. The definition addresses adverse effects for two components: biological diversity and human health.514 This is a common point with Directive 2004/35. What is of interest to us in this definition is the notion of the “conservation and sustainable use of biological diversity”515 bearing in mind that, as mentioned earlier, the Liability and Redress Protocol relates back to the Cartagena Protocol and Biodiversity Convention for definition matters in Article 2(1). Three aspects are to be identified: first, the notion of biological diversity itself; second, the notion of adverse effect on the sustainable use of this biological diversity; and third, the notion of adverse effect on the conservation of biological diversity.516 It has already been established above that the Biodiversity Convention defines “Biological diversity” in Article 2 as meaning the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part: this includes diversity within species, between species and of ecosystems. This notion has been discussed at length in the preceding sections. It was concluded that the Biodiversity Convention’s definition encompasses environmental values, integrates a quantitative and qualitative approach, and has an instrumental and inherent approach to environmental values. Turning to the notion of “sustainable use”, the Biodiversity Convention defines it in Article 2 as meaning 514  A remark can be formulated with regards to the identification of adverse effects. The identification and measurement of adverse effect could be eased by the information that has to be made available subsequently to the whole range of risk assessment and advance informed agreement procedures that are required under the Biodiversity Convention and Biosafety Protocols all together. See for example Annex III of the Cartagena Protocol. 515  The threshold requirement is addressed below under “The threshold requirement”. 516  It can be underlined that in Intergovernmental Committee for the Cartagena Protocol, ”Liability and redress for damage resulting from the transboundary movements of living modified organisms. Review of existing relevant instruments and identification of elements”, Note by the Executive Secretary. UNEP/CBD/ICCP/2/3, 31 July 2001, p. 23, the Executive Secretary himself underlines the difficulties arising with the interpretation to be given to this definition. For example does the definition equal to “damage to biodiversity”?

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the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations. From the outset, this definition is very vague and leaves a considerable margin of appreciation to States.517 The reference point seems to be the “long-term decline of biological diversity”. This is a fairly weak target. Indeed, whereas the Biodiversity Convention and Biosafety Protocols do acknowledge the current scale and rate of biodiversity loss, it seems quite inappropriate to have as a reference point the “long-term decline”.518 More specifications are provided in Article 10 “Sustainable Use of Compo­ nents of Biological Diversity”. This Article may provide with more workable information with respect to the notion of adverse effect on the sustainable use of biological diversity. It provides: Each Contracting Party shall, as far as possible and as appropriate: (a) Integrate consideration of the conservation and sustainable use of biological resources into national decision-making; (b) Adopt measures relating to the use of biological resources to avoid or minimise adverse impacts on biological diversity. Article 10 is not very useful for the purposes of this book.519 The Article provides with two obligations (or, rather, invitations) addressed to States: the integration of sustainable use and the adoption of measures related to the use 517  As contended by N. de Sadeleer and C.-H. Born (2004), p. 99. 518  One could argue that this definition is not meant to address short or mid-term decline of biodiversity. Thisinterpretation would with no doubt not be upheld, for contradicting with both the spirit and letter of the Biodiversity Convention. A series of provisions of the biodiversity Convention do address biodiversity conservation in both short and medium term perspectives. See for example Article 7 (“urgent measures”), Article 8 (In-Situ Conservation), and Article 14 (Impact Assessment and Minimising Adverse Impacts). All in all, conservation measures do contradict such a reading. 519  In this respect, it can be remarked that a more specific definition was still discussed in 2008, but was eventually not retained by Decision BS-IV/12 adopted at the fourth meeting of the Conference of the Parties serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety (Bonn, 12–16 May 2008). The proposed definition did read as follows in Conference of the Parties to the Convention on Biological Diversity serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety, “Final Report of the OpenEnded Ad Hoc Working Group of Legal and Technical Experts on Liability and Redress

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of biological resources. Hence, this provision addresses States and does not provide any insight on what is to be understood as adverse effect on sustainable use of biological diversity (except from a redundant reference to “adverse effect”). Adverse effect on the conservation of biological diversity may provide more insights with a view to having information on what “adverse effect” is actually meant to refer to. As in the above, the author may look for insights in the definitions provided in the Biodiversity Convention. The Biodiversity Convention provides with the conservation of biological diversity as an objective, but does not define the notion of conservation. Rather, the meaning of the notion of “conservation” is to be traced back in the operative provisions of the Convention. The Preamble provides with useful insights with a view to understanding what conservation encompasses.520 The 10th Recital (“Noting further that the fundamental requirement for the conservation of biological diversity is the in-situ conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings”) and the 11th Recital (“Noting further that ex-situ measures, preferably in the country of origin, also have an important role to play”) refer to insitu and ex-situ measures as means to attain the conservation objective. These Recitals actually provide insights on what conservation is meant to cover by relating back to the measures that articulates the notion. Nevertheless, they do not provide insights regarding what “damage to the conservation of biological diversity” is meant to encompass. Hence, the Biosafety Protocols read in conjunction with the Biodiversity Convention do not provide much guidance as to what exactly is to be understood by “damage to biodiversity”, and more specifically whether damage to biodiversity’s intrinsic value is to be covered by environmental responsibility frameworks. No answer is given to the question of whether the Liability and Redress Protocol addresses “impairment of the environment” as opposed to in the context of The Cartagena Protocol on Biosafety. Note by the Executive Secretary”, UNEP/CBD/BS/COP-MOP/4/11, 7 April 2008:  “To constitute damage to the [conservation and sustainable use of] biological diversity, there must be a change to the conservation and sustainable use of biological diversity that is adverse [, significant] and measurable [, within a timescale meaningful in the particular context, from a baseline established by a competent national authority] [considering previous diagnosis/studies of biodiversity available for the affected area acknowledged or undertaken by the competent national authority] that takes into account natural variation and human-induced variation.” 520  As underlined in N. de Sadeleer and C.-H. Born (2004), p. 98.

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“depletion of natural resources”.521 The issue is not addressed. Instead, reference is made to the more generic notion of “conservation and sustainable use of biological diversity, taking also into account risks to human health”, which is not given any operational definition. This is no surprise and is in line with the Biodiversity Convention. Indeed, the latter refers to the intrinsic value of “biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components” in its Preamble (Recital 1) but does not articulate this value in its operative parts. The threshold requirement may provide more guidance regarding what is to be understood by “adverse effect”.522 2.4.1.4 The Threshold Requirement For this second stage of examination of the gaps of Directive 2004/35, the author’s attention is directed to the threshold requirement. As seen in section 2.1, the threshold requirement has been identified as a gap in the Directive on several grounds. Amongst others, the lack of clarity and severity of the thresholds have been recognised as gaps. The Liability and Redress Protocol requires the threshold requirement to be met in the definition of damage (Article 2(2)(b)(ii)). The Protocol defines the thresholds to be met by providing a list of factors to be taken into account in Article 2(3): A “significant” adverse effect is to be determined on the basis of factors, such as: (a) The long-term or permanent change, to be understood as change that will not be redressed through natural recovery within a reasonable period of time; (b) The extent of the qualitative or quantitative changes that adversely affect the components of biological diversity; 521  As mentioned in Intergovernmental Committee for the Cartagena Protocol, ”Liability and redress for damage resulting from the transboundary movements of living modified organisms. Review of existing relevant instruments and identification of elements”, Note by the Executive Secretary. UNEP/CBD/ICCP/2/3, 31 July 2001, p. 23. 522  This is acknowledged by the Executive Secretary in Conference of the Parties to the Convention on Biological Diversity serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety, UNEP/CBD/BS/COP-MOP/1/9/Add.1/, 4 December 2003, “Liability And Redress (Article 27). Update on developments in national, international and regional legal instruments on liability and redress. Note by the Executive Secretary”, p. 3 point 4.

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(c) The reduction of the ability of components of biological diversity to provide goods and services; (d) The extent of any adverse effects on human health in the context of the Protocol. As a first remark, it can be underlined that the “threshold language” is also found in the Biodiversity Convention523 and Cartagena Protocol.524 The threshold issue does not appear for the first time in the Liability and redress Protocol. As a second remark, it should be noted that the list of “factors” is not exhaustive. Parties retain discretion when defining these factors. Regarding the lack of precision and severity of the threshold requirement (which triggers the application of the Protocol), the author can only acknowledge the similarity in the terms used. Indeed, “significant adverse effect” is referred to by the Liability and Redress Protocol while Directive 2004/35 refers to “significant adverse effects”, “significant”, “significant risk”, and “significantly adversely affects”. With regards to the level of precision, the Protocol is less precise than Directive 2004/35. Indeed, the latter provides a much more elaborated list of factors that have to be taken into account in its Annex I.525 To sum up, the Protocol’s provisions do not conflict with Directive 2004/35: the provisions of the Protocol are not clearer or setting lower thresholds. The comparison exercise rather illustrates a confirmation case.

523  See Articles 8(L), 14(1)(a), (b) and (c), 7 (c), and 16(1). 524  See Article 17(1) and (4). 525  A more detailed list of factors was discussed until the very last stages of the negotiations. For example, in the Annex to Decision BS-IV/12 adopted in the aftermath of the fourth meeting of the Conference of the Parties serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety (Bonn, 12–16 May 2008), under III. Damage, A. Definition of damage, point 4, the following factors were listed: (a) The long term or permanent change, to be understood as change that will not be redressed through natural recovery within a reasonable period of time; (b) The extent of the qualitative or quantitative changes that adversely or negatively affect the components of biological diversity; (c) The reduction of the ability of components of biological diversity to provide goods and services; [(b and c alt) A qualitative or quantitative reduction of components of biodiversity and their potential to provide goods and services;]; [(d) The extent of any adverse or negative effects on human health;]; [(d alt) The extent of any adverse or negative effects of the conservation and sustainable use of biological diversity on human health.

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2.4.1.5 Pollutions having a “Diffuse Character” The third and last stage of the comparison of the gaps of the Directives with international law requirements addresses the “diffuse pollution” issue. It was seen earlier that Directive 2004/35 does not cover damage and harm that result from a pollution having a diffuse character.526 The causal link requirement precludes such damage from falling within the scope of application of the Directive. The Liability and Redress Protocol provides in article 4 (“causation”) that a causal link shall be established between the damage and the living modified organism in question in accordance with domestic law. Accordingly, the causal link requirement enshrined in the Liability and Redress Protocol impedes the application of the Protocol to damage and harm if no causal link can be established between these and the pollution with a diffuse character. The Protocol provides with the same limitation as the gap identified in Directive 2004/35. Consequently, the Liability and Redress Protocol does not contradict Directive 2004/35. Here again the comparison exercise concludes with a confirmation case. 2.4.1.6 The Biosafety Protocols: Confirmation through Policy Diffusion From all the above developments, it is possible to conclude that the Biosafety Protocols mainly confirm the gaps of the Directive. Highlighted above are the very similar mechanisms of Directive 2004/35 and the Liability and Redress Protocol. Overall, the Liability and Redress Protocol’s standards are aligned on Directive 2004/35 standards.527 Consequently, the Biosafety Protocols regarding responsibility in the context of activities related to GMOs cannot fill the gaps identified in Directive 2004/35 with regards to the definition of environmental damage and harm. These similarities induced by confirmation render the gap-filling exercise impossible. 526  See section 2.2.2, under “Rejecting the Polluter Pays Principle” and section 2.2.5, under “Requirement to establish the causal link”. 527   With the notable exception of the permit and development risk defence: these defences retained by Directive 2004/35 have been considered during the Liability and Redress Protocol’s negotiation process (as evidenced in Conference of the Parties to the Convention on Biological Diversity serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety, “Report of the Open-Ended Ad Hoc Working Group of Legal and Technical Experts on Liability and Redress under the Cartagena Protocol on Biosafety”, UNEP/CBD/BS/COP-MOP/2/11, 27 May 2005, p. 14) but are not enshrined in the adopted Protocol.

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It could be argued that the alignment is not peculiar to EU law standards enshrined in Directive 2004/35: the alignment would result from the negotiation process that involved a plethora of Parties and would consequently “dilute” the EU’s influence on the whole process. Nevertheless, it can be contended that the EU has actually advocated the alignment of the Protocol’s standards on Directive 2004/35 law. This is evidenced in the Protocol’s working documents. As an example, the note of the Executive Secretary in the “Review of existing relevant instruments and identification of elements”528 refers to the White Paper on Environmental Liability and describes the options considered by the European Commission.529 The Executive Secretary puts emphasis on the threshold issue (“Only significant damage to biodiversity would trigger the operation of the liability regime”), liability of the operator, and the framework nature of the EU norm: the dual approach (fault-based and strict liability).530 Additionally, the Executive Secretary refers to the EU legislative process under the heading “Overview of on going initiatives in other relevant forums”. Reference to EU developments is the only reference to any negotiating Party’s “domestic” initiatives.531 In the same document, the Executive Secretary relates back to the European Community’s position with respect to the concept of damage: “For example, as has been pointed out, the European Community White Paper underlines that damage to biological diversity ‘could take the form of damage to habitats, wildlife or species of plants”.532 Similarly, reference is made to the White Paper with regards to the threshold requirement

528  Intergovernmental Committee for the Cartagena Protocol, “Liability and redress for damage resulting from the transboundary movements of Living Modified Organisms. Review of existing relevant instruments and identification of elements”, Note by the Executive Secretary. UNEP/CBD/ICCP/2/3, 31 July 2001. 529  Ibid. pp. 18–19. 530  Ibid. p. 19. 531  The draft Directive (after the first reading process) is also exposed in Conference of the Parties to the Convention on Biological Diversity, “Liability and redress (Article 27). Update on developments in national, international and regional legal instruments on liability and redress. Note by the Executive Secretary”, UNEP/CBD/BS/COP-MOP/1/9/Add.1/, 4 December 2003, pp. 11–14. 532  Intergovernmental Committee for the Cartagena Protocol, “Liability and redress for damage resulting from the transboundary movements of living modified organisms. Review of existing relevant instruments and identification of elements”, Note by the Executive Secretary. UNEP/CBD/ICCP/2/3, 31 July 2001, p. 22. But, immediately after having referred to the European Community’s point, the Executive Secretary emphasises that this definition does not correspond to the Biodiversity’s definition of Biodiversity.

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and dual approach (strict and fault-based).533 The influence and numerous interventions of the EU representatives during the negotiations are evidenced in several other working documents.534 Scholars also acknowledge the overwhelming role of the European Union as a negotiating Party. Having determined that the Biosafety Protocols do not have any added value in filling the gaps identified in Directive 2004/35 since they confirm the rules of Directive 2004/35 with regards to the threshold issue and diffuse pollution, the author now proceeds by scrutinising the European Court of Human Rights (“the Court”)’s case law in this respect. Damage and Harm to Biodiversity and the European Court of Human Rights 2.4.2.1 Damage and Harm to Environmental Values: Confirmation As already put forward several times, the Convention does not guarantee the right to a clean environment. To fall within the scope of application of the Convention (for example, right to property, health, private life), deterioration of the environment must attain a certain threshold. Does the Court’s definition of the thresholds fill the gaps of the Directives? Does the Court’s case law conflict, confirm or complement the Directives? 2.4.2

533  Ibid. pp. 23 and 26. 534  See for example Intergovernmental Committee for the Cartagena Protocol on Biosafety, “Report of the Intergovernmental Committee for the Cartagena Protocol on Biosafety on the work of its third meeting”, UNEP/CBD/ICCP/3/10, 27 May 2002, p. 25 that evidences the overwhelming number of statements of the EC. Similarly, two representatives of the European Union were Members of the “Group of the Friends of the Co-Chairs” (out of 26 representatives). The Group was set-up in Decision BS-IV/12 adopted at the fourth meeting of the Conference of the Parties serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety (Bonn, 12–16 May 2008). The Group was aimed at further negotiating the rules and procedures on liability and redress in the context of the Cartagena Protocol on Biosafety. The Group met three times. In addition, the EU did specifically put forward Directive 2004/35 as a reference point and reported on the standards enshrined in Directive 2004/35, for example in Conference of the Parties to the Convention on Biological Diversity serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety, “Report of the Open-Ended Ad Hoc Working Group of Legal and Technical Experts on Liability and Redress in the context of the Cartagena Protocol on Biosafety on the work of its second meeting”, UNEP/CBD/BS/COP-MOP/3/10, 24 February 2006, pp. 36–37 (“we thought it would be useful to provide an example of the EC Environmental Liability Directive . . .”), p. 49 (“By way of an example, the EU notes that in the EC Environmental Liability Directive . . .”), and p. 75 (“it might be useful to share experience of the EC Environmental Liability Directive . . .”).

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From the outset, a particular case can be referred to as it endorses a subjective perception of damage. The seriousness of environmental damage was brought into play in the Mangouras v. Spain case.535 The Court applied two distinct lines of reasoning: on the one hand, the court outlined the pollution’s “objective” dimension (“marine pollution on a seldom-seen scale causing huge environmental damage”, the “national and international disaster caused by the oil spill”).536 On the other hand, the Court underlined the “public outcry” (“subjective” or “contingent” dimension).537 Reference to the “public outcry” is not to be found in any other case. The Court usually refers to environmental values’ impairment in an objective fashion, as appears from the developments below. With respect to the threshold issue, here again the Court’s case law is fairly disappointing. The Court does not provide specific and clear criteria. Whether the threshold is attained will be determined on a case-by-case basis. The threshold criteria are set in concreto: the Court does not provide threshold criteria that can be relied upon in abstracto. This is settled case-law and was reiterated by the Court in the recent Grimkovskaya case: Referring to its well-established case-law . . . the Court reiterates that, where, as in the present case, the case concerns an environmental hazard, an arguable claim under Article 8 may arise only where the hazard at issue attains a level of severity resulting in significant impairment of the applicant’s ability to enjoy her home, private or family life. The assessment of that minimum level is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects on the individual’s health or quality of life.538 535  ECtHR, Mangouras v. Spain case, 28 September 2010, Grand Chamber. In November 2002, the Prestige oil tanker registered in Liberia for a specific (and last) trip sunk at about 250 kilometres from Spanish coasts. Oil spilled over Spanish, Portuguese and French coasts. This case concerns the bail applied to the Prestige’s Master, Mr Mangouras. In this instance, the level of environmental damage did interfere when the Court assessed whether the State could justify the setting of the bail ground on the disastrous and large scale effects caused by the oil spill disaster. The underlying question was whether environmental damage, as a fact, could be held as a solid basis to be one of the qualifying elements when setting the amount of the bail. 536  ECtHR, Mangouras case, para. 88. 537  Ibid. para. 85. 538  ECtHR, Grimkovskaya v. Ukraine, 21 July 2011, para. 58 (emphasis added). Similarly, see ECtHR, Trevor Allen and Others v. United Kingdom 6 October 2009 (Dec.), para. 47:

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As for the triggering criteria, the Court applies the following ones on a case-bycase basis: environmental deterioration’s physical or mental effects, the intensity and duration of the nuisance and the general context of the environment (for example, whether the applicant lives in a city or whether the area at stake is protected).539 When it applies these criteria, the Court relies upon a wide range of sources provided by the findings of national authorities, judicial and administrative authorities, and documents provided by the applicant.540  “The Court recalls that there is no explicit right in the Convention to a clean and quiet environment. However, where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8 (. . .)” (emphasis added)  and ECtHR, Dubetska and Others v. Ukraine, 10 February 2011, para. 105:  “The Court refers to its well-established case-law that neither Article 8 nor any other provision of the Convention guarantees the right to preservation of the natural environment as such (. . .) Likewise, no issue will arise if the detriment complained of is negligible in comparison to the environmental hazards inherent in life in every modern city. However, an arguable claim under Article 8 may arise where an environmental hazard attains a level of severity resulting in significant impairment of the applicant’s ability to enjoy his home, private or family life. The assessment of that minimum level is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects on the individual’s health or quality of life”. The Court’s case law has been exposed in ECtHR, Fägerskiöld v. Sweden (admis. Dec.), 26 February 2008 under “the law”, point 1 in the following terms:  “Thus (. . .) the Court reiterates that, in order to raise an issue under Article 8, the interference must directly affect the applicant’s home, family or private life and the adverse effects of the environmental pollution must attain a certain minimum level of severity. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance, and its physical or mental effects. The general context of the environment should also be taken into account. There would be no arguable claim under Article 8 if the detriment complained of was negligible in comparison to the environmental hazards inherent in life in every modern city.” 539  ECtHR, Dubetska and Others v. Ukraine, 10 February 2011, para. 105. 540  Ibid. para. 107:  “Taking into consideration the evidentiary difficulties involved, the Court will primarily give regard to the findings of the domestic courts and other competent authorities in establishing the factual circumstances of the case (. . .) As a basis for the analysis it may use, for instance, domestic legal provisions determining unsafe levels of pollution (. . .) and environmental studies commissioned by the authorities (. . .) Special attention will be paid by the Court to individual decisions taken by the authorities with respect to an applicant’s particular situation, such as an undertaking to revoke a polluter’s operating licence (. . .) or to resettle a resident away from a polluted area (. . .) However, the Court cannot rely blindly on the decisions of the domestic authorities, especially when they are obviously inconsistent or contradict each other. In such a situation it has to assess the

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In summation, the Court’s case law does not provide any specific definition of the thresholds. The Directives do not, consequently, breach the standards of the Convention interpreted and applied by the Court. The Court’s case law partially proves more useful with regard to the causal link requirement in the context of diffuse pollutions. 2.4.2.2 Pollutions having a “Diffuse Character”: (Partly) Conflict Just like the Biodiversity Convention and the Directives, the Court does require a causal link to be established between the pollution and damage, mainly damage to health. The Court has recently had the opportunity to elaborate its rules regarding the causal link. This issue is specifically related to health issues (and sometimes to private and family life matters) since, once again, the Court only acknowledges matters of environmental degradation if they relate to rights guaranteed by the Convention. These rights are typically anthropocentric. In the Tatar case, the Court reaffirmed that a causal link has to be established between the incident that caused environmental degradation and the claimant’s health. The Tatar case is specific regarding the diffuse pollution at stake. The Court pointed out that, unlike other cases, the claimants could not rely upon national judicial decisions that recognise the risk created for human health or administrative decisions that recognise the activities to be in violation of national environmental regulations, nor reports available to the public and reporting on the pollution threshold or severity.541 Consequently, the Court could not rely upon national judicial decisions nor any official document that would specify clearly enough the level of danger that the activity was posing to human health and the environment. With regards to the causal link requirement, the Court adopts a three stage approach. First, the Court did not doubt the reality of the claimant’s medical condition (who was diagnosed with asthma in 1996), nor the reality of the toxicity of sodium cyanide and of the pollution detected in the vicinity of the applicants’ home following the industrial and environmental accident.542 Second, the Court found that the claimants had failed to prove the existence of a causal link between exposure to sodium cyanide and asthma.543 Nevertheless, the

evidence in its entirety (. . .) Further sources of evidence for consideration in addition to the applicant’s personal accounts of events, will include, for instance, his medical certificates (. . .) as well as relevant reports, statements or studies made by private entities (. . .)”. 541  Tatar case, para. 93. 542  Ibid. para. 103. 543  Ibid. paras. 104–106.

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Court did shift its attention as a third stage to risk management obligations binding States.544 What is of most interest to us is the second stage. The Court contends that the claimant has been unable to prove the causal link between the incident and deterioration of his health. The Court firstly analysed the scientific studies that were at its disposal. It underlines that it is difficult for specialists to recognise a dose-effect link with the substance that was concerned in the case (sodium cyanide) or to establish the level of exposure that creates a risk for health.545 In other words, the state of scientific knowledge was insufficient in abstracto. The Court then specified that a probabilistic reasoning could be advocated before it, since “modern pathologies are characterised by a plurality of causes”.546 In other words, in case of scientific uncertainties in the context of diffuse pollution, the Court could be satisfied that the causal link requirement was met provided that “sufficient and convincing statistical data” was available.547 The Court then wondered whether such data was available in the case at hands, i.e., in concreto. The Court concluded that the claimants had only been able to provide a study released by the Baia Mare Hospital. This study acknowledged a rising number of illnesses related to breathing functions but could not, on its own, satisfy the probabilistic causality test.548 Consequently, the Court found that the claimant had not established a causal link between their illness and the incident.549 From this case, it results that the Court can in principle accept probabilistic reasoning when establishing whether the causal link requirement is

544  Ibid. para. 107. This point is further discussed in the sections 3.1.2 and 4.1.2 on the development risk defence. 545  Ibid. para. 104 (translation mine). 546  Ibid. para. 105 (translation mine). 547  Ibid. 548  Ibid. para. 106. 549  Ibid. On the contrary, in ECtHR, 10 February 2011, Dubetska and Others v. Ukraine the Court considered that the applicant had submitted sufficient data:  “While agreeing with the Government that the statutory definitions do not necessarily reflect the actual levels of pollution to which the applicants were exposed, the Court notes that the applicants in the present case have presented a substantial amount of data in evidence that the actual excess of polluting substances within these distances from the facilities at issue has been recorded on a number of occasions” (para. 115, emphasis added). For another rigorous application of the causal link requirement, see for example ECtHR 24 March 2015, Application No. 43961/09 (admis. Dec.), Giuseppina Smaltini v. Italy.

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met. In case of scientific uncertainties in the context of diffuse pollution, the Court can be satisfied that the causal link requirement is met provided that “sufficient and convincing statistic data” is available. Nevertheless, the Court has not provided any guidance as to what are the qualitative or quantitative criteria to be met by the statistical data in question. It is worth underlining that in their partly dissenting opinion in the Tatar case, judges Zupančič and Gyulumyan have been critical of the Court’s severity with regards to the causal link requirement. According to these judges, the causal link requirement was met in this case. They contend that the Court has applied a “traditional approach” to the requirement, even though the Court claimed it retained a probabilistic approach. In other words, the Court has not taken into account scientific uncertainty. This traditional approach is criticised as reflecting the “habit of a causal link”.550 This habit is not, according to the judges, adequate to handle cases that have a toxic pollution dimension. They criticise the in concreto and individual assessment performed by the Court.551 Turning then to the difficulty for the claimants to bring forward sufficient statistical data, the judges point out that 550  Tatar case, partly dissenting opinion of judges Zupančič and Gyulumyan:  “Des sociologues ont souligné que « la manie du lien causal » est « une caractéristique forte de la mentalité primitive mystique et prélogique », particulièrement active dans la sorcellerie (décrite comme une théorie des causes) et qui s’oppose à la mentalité « civilisée », bien plus sereine à envisager la causalité dans un cadre probabiliste (P. PerettiWatel, Sociologie du risque, Paris, A. Colin, 2000)”. The judges then underlined the causal link requirement’s inadequacy to handle with diffuse pollutions:  “Quant aux effets à tirer de la probabilité, les études scientifiques existantes ont remis en cause l’approche que donnait le sens commun lorsque plusieurs facteurs sont à l’origine d’un dommage: alors que l’approche « de bon sens » envisage une « répartition » entre chaque facteur, la science établit que ces facteurs ne s’additionnent pas, mais se multiplient. On peut parler d’une potentialisation des effets”. 551  Ibid.:  “As soon as there is not a clear presence of a causal factor, the “individual by individual” approach turns to be obsolete, inappropriate in the case of the pathologies mentioned above (impairment of health caused by toxic substances); it is impossible to demonstrate with certainty that a person suffers from a specific illness because this person has been exposed to a toxic source. But it is possible to demonstrate that a population exposed to this toxic source is going to develop, when compared to another population that was not exposed to the toxic source, an increasing occurrence of health problems or the aggravating of health problems, this being supported by statistical significant data (. . .) Toxic damage may not be immediate and, moreover, remain invisible for many years. This kind of damage can be attributed to a whole series of factors and not to one sole cause. It

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[i]n general (and unfortunately), with respect to “new risks” (public health/environment), the repetition of past events is missing to the point that it is impossible to define a statistical frequency before a long timespan has elapsed. (translation mine) In this respect, the judges regret that the Court did not satisfy itself with the studies and reports issued by governmental and non-governmental institutions and organisations.552 The judges advocate that the burden of proof should have shifted from the claimant’s shoulders to the State.553 They argue that this is all the more relevant in cases (like the one at hand) where the claimants challenge States for the lack of access to relevant information. The judges contend that this situation eventually leads to an “inequality of arms”. The judges conclude by emphasising: respect for private life is of incremental value, the defence of this value by the European Judge should not be limited by the lack of absolute certainty. This is all the more true when it comes to modern sicknesses.554 Overall, the Court requires a causal link to be established between the diffuse pollution which creates damage (deterioration of air, soil or waters) and the claimed harm (violation of the rights guaranteed by the Convention: health, family life, private life, private property, life etc.). The Court has nevertheless loosened this requirement by admitting, in principle, a probabilistic reasoning. This could have a role to play with a view to filling the gap identified in Directives 2004/35 and 2008/99 (diffuse pollutions being excluded from their is well known that modern pathologies’ specificity lies in the absence of causal agent ‘signature’ ” (translation mine). 552  Ibid.:  “Obviously, exposure to a given product does not constitute a sufficient condition of damage. But an absolutely sufficient cause is almost not possible in actual reality: most of causes require, in order to produce their effects, other factors that do not always concern civil liability. The mere presence of an easing factor together with the absence of an identifiable cause renders, for the judge, causality sufficiently probable to be taken as granted. The contrary would have two gaps: firstly, it would affirm by a judicial decision the absence of causality whereas there is a probability scientifically speaking. In other words, the judge would renounce to make use of the presumption technic, a classical legal technic. Secondly, the victim would be deprived from any compensation, whereas the victim is almost always considered as the weakest party” (translation mine). 553  The burden of proof lying on the claimants’ shoulders is referred to as probatio diabolica. 554  Translation mine.

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scope of application provided that no causal link requirement can be met). Nevertheless, the probabilistic reasoning may not be perceived to be as efficient as the mechanism admitted by the EU Court itself in the ERG case. In section 2.2.5 the author discussed at length this case which recognises the possibility for EU Member States to rely upon rebuttable presumptions. Rebuttable presumptions may be much more workable than a probabilistic reasoning based upon “sufficient and convincing statistic data” when the Court does not provide any guidance as for what is to be considered “sufficient and convincing statistic data” from a qualitative or quantitative point of view. In addition, it is possible to arguably contend that the legal certainty requirement (which is all the more stringent with respect to criminal law) is not met with the probabilistic reasoning. In summary, even though the Court has attempted to loosen the causal link requirement in the context of diffuse pollutions, the Court’s case law does not fully counterbalance the gaps identified in Directives 2004/35 and 2008/99 in this respect. 2.5 Conclusion In this chapter the author has assessed the standards of the Directives against international environmental law and Council of Europe human rights law and looked for cases of conflict, complement or confirmation. The gap filling exercise has not been particularly fruitful. Attention has been directed to four gaps previously identified in Directives 2004/35 and 2008/99. These are: reference to natural resources instead of biodiversity and partial coverage of ecosystems, the threshold condition (i.e., severity condition) for its lack of precision, environmental harm resulting from pollution having a “diffuse character” that remains out of the Directives’ scope because of the causal link requirement, and eventually the refusal to recognise the intrinsic value of environmental features. Challenging these gaps against the European Court of Human Rights’ case law has proven fruitless. The difficulty lies in the fact that the European Convention on Human Rights does not guarantee the right to a clean and quiet environment. After doubts in this regard in the aftermath of the Tatar case in 2009, the Court has returned to its traditional approach in the subsequent cases. This refusal to recognise an autonomous right to a clean environment has consequences regarding the way the Court will receive cases with an environmental dimension. A link has to be made between the environmental dimension of the case and the rights guaranteed by the Convention. The Court

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endorses an anthropocentric and individual dimension of the rights guaranteed. Consequently, the Convention interpreted and applied by the Court’s case law has proven of almost no use in filling the gaps in the Directives. Firstly, the Court’s case law has been identified as being below the standards of the Directives and international Biodiversity Convention with regards to the notion of biodiversity and the covering of environmental features, including ecosystems. As a second consequence of the individual and anthropocentric approach, damage and harm to environmental features is largely anthropocentric. The Court endorses an instrumental and inherent approach to the deterioration of environmental features and does not impose an intrinsic approach. Nevertheless, the author identified an interesting feature in the Court’s case law regarding the acknowledgment of the deterioration of environmental features. Contrary to the Directives, the Court has acknowledged a subjective dimension to this deterioration in the Mangouras case. In this case, the Court took due account of the “public outcry” caused by the pollution that followed the sinking of the Prestige and the oil that subsequently spoiled European coasts and impaired the marine environment. A second set of findings relate back to structural reasons. The Court’s approach to the rights guaranteed by the Convention is largely casuistic. The court largely relies upon the specific contexts of the cases that appear before it. Accordingly, the court does not always provide a very specific set of criteria but rather relies on the facts with a view to determining which criteria will be applied. This is what happens with the threshold issue. The Court’s criteria in this respect are not more specific than those of the Directives. As a third line of findings, the author focused on diffuse pollutions causing environmental damage and harm. In this respect, the Court’s case law is ambiguous as a gap-filler. The Court does require (just like the Directives) that a causal link be proven between a diffuse pollution, the damage that results and the alleged harm. It appears at first reading that the Court’s case law cannot prove useful with regards to diffuse pollutions. However, the Court has loosened the proof requirements in the Tatar case: the Court admits a probabilistic reasoning, since “modern pathologies are characterised by a plurality of causes”. In case of scientific uncertainties the Court can, in principle, be satisfied that the causal link requirement is met, provided that “sufficient and convincing statistic data” is available. Nevertheless, the Court’s loosening proof requirements may prove very difficult to meet in practice. For example, the author found in the Tatar case that the Court’s requirements regarding “sufficient and convincing statistic data” were very high. The author concluded that,

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if the Court was to maintain such high requirements, the ERG case with regards to Directive 2004/35 might prove more workable: the EU Court has accepted that the causal link requirement could be established by relying on rebuttable presumptions. Overall, the European Court of Human Rights has the potential to overcome the causal link requirement obstacle in the context of diffuse pollutions. This potential could be fully realised if the Court loosened its current requirements regarding “sufficient and convincing data”. When focusing on the capacity of international environmental law to fill gaps in the Directives, attention was initially directed to the Biodiversity Convention. The author then found that the Directives’ notion of natural resources and natural resources’ services cannot be considered as corresponding to the notion of biodiversity enshrined in the Biodiversity Convention. The Biodiversity Convention was also found not to impose an intrinsic approach to biodiversity (or natural resources). The author next discussed two protocols to the Biodiversity Convention: the Cartagena Protocol and Liability and Redress Protocol (the Biosafety protocols). These Protocols apply to Living Modified Organisms (this notion is similar to the notion of Genetically Modified Organisms referred to by the Directives). When analysing the Biosafety Protocols, the author found that the Liability and Redress Protocol’s standards have been aligned alongside the standards of Directive 2004/35. Consequently, the Protocol does not provide more specific guidance on thresholds than Directive 2004/35 does. Similarly, the Liability and Redress Protocol requires a causal link without more specification: the Protocol also fails to fill this gap of Directive 2004/35. Nevertheless, from the study of the Biodiversity Convention considered together with the Biosafety Protocols, it results that Directive 2004/35 cannot be considered as implementing the Convention and the two Protocols at the EU level. With regards to damage and harm resulting from activities related to GMOs, the Biodiversity Convention’s definition of biodiversity is broader than the definitions in Directive 2004/35 of natural resources and natural resources’ services. Overall, this is the only instance the author identified in this chapter a clear case of conflict. Filling the limitations identified in Directive 2008/99 has proven particularly difficult since there is currently no international norm regulating environmental criminal law. The only norm that has been adopted is the Council of Europe’s Convention on the protection of the environment through criminal law. But, as has been seen in the first chapter of the book, this Convention cannot be considered as positive law since it has not entered into force and will most probably never enter into force.

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Conflict with Human Rights: Deference to the International Civil Liability Frameworks that Applies to Oil Spills in Directive 2004/35 The purpose of this chapter is to challenge an exception to the responsibility principle. In order to enable the reader to have a sense of the numerous cases of no responsibility in the Directives, the exceptions to the responsibility principle that are provided in the Directives are examined in a first section. In the subsequent section one of these exceptions is challenged against Council of Europe human rights law: oil spills that generate environmental damage and harm and which are regulated by an international regime. It is contended that Council of Europe human rights law conflicts with this exception. Exceptions to the responsibility principle are crucial to the economy of a responsibility regime. The European Commission asserts in the White Paper on Environmental Liability: The effectiveness of a liability regime depends not only on the basic character of the regime but also on such elements as the allowed defences and the division of the burden of proof. The positive effects of strict liability should therefore not be undermined by allowing too many defences, or by an impossible burden of proof on the plaintiff.555 Provisions by which a responsible person may exempt himself from responsibility have to be interpreted strictly.556 In the following developments, the exceptions to the responsibility principle endorsed in the Directives are presented.

555  White Paper on environmental liability COM(2000) 66 final, 9 February 2000, presented by the Commission, p. 18. In the same sense, see J. Jordano Fraga (2005). 556  As reaffirmed by the European Court of Justice in the Sanofi Pasteur case, C-127/04, 9 February 2006, ECR I-1330, para. 25: “Such an interpretation seeks to protect the interests of the victims of damage.”

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Limited Scope of Application of the Directive: The Exclusions of Responsibility Mechanisms

In this section the attention is directed to the exceptions to the responsibility principle. The purpose is to distinguish and identify the EU regulatory approach from a protective approach. The shift of paradigm, from environmental responsibility concentrating on primary obligations to cost-allocation that gives flesh to secondary obligations, is particularly emphasised. The author first explains what are the exceptions to the responsibility principle in Directives 2004/35 and 2008/99. Not all the exceptions are introduced. The exceptions that have a procedural dimension are exposed at more length in the subsequent chapter (permit and development risk defence and temporal limitations). To identify the gaps related to the exceptions, direct sources are relied upon when identifying tensions in the legislative process, discrepancies between Directives 2004/35 and 2008/9, and discrepancies between the Directives and EU environmental law and EU primary law as underpinning coherence and consistency matters. There is also information from indirect sources and (when available) elements of legal doctrine that support or contradict the identification of gaps. The paradigm shift implied by the regulatory approach is highlighted throughout these developments. 3.1.1 Directive 2004/35 and “Diffuse” Environmental Damage. Art. 4(5) Diffuse environmental damage is a case where responsibility does not echo environmental damage. For environmental damage resulting from pollution with a diffuse character to fall within the Directive’s scope, it must be “possible to establish a causal link between the damage and the activities of individual operators” under the Preamble, Recital 13 and article 4(5). The rationale of the exclusion lies on the fact that the cause of the pollution cannot be identified. It is not that no risk inherent to a given activity can be identified, but rather that too many risks inherent to too many activities are at stake. Ultimately, the rationale for this exclusion seems to be more of a political than of a legal nature: indeed, Member States were afraid to be the ultimate actor having to financially cover very large scale pollutions resulting in environmental damage falling under the Directive’s scope.557 This exclusion has been highly criticised.558 For example, it has been highlighted that some damage

557  See for example L. Krämer (2007), p. 189. 558  For example in the field of GMOs causing diffuse damage, see R. Mackenzie (2005), p. 81, relating to waters, see D. Grimeaud (2004), p. 28 where the author underlines the link

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had less to do with “a few severe accidents” and more to do with “widespread infrastructural problem of varying intensity and significance”.559 A problematic case in this respect is ambient air: no causal link can be established between ambient air pollution and an individual operator, except in case of a particular and identifiable release of air pollution (for example release of particular fumes from a plant).560 3.1.2 Directive 2004/35 and Previously Identified Damage. Art. 2(1) In Article 2(1), Directive 2004/35 excludes from its scope environmental damage that fits with the definitions and criteria set by the same Directive, in as much as the effects dealt with have been previously identified and the activity nevertheless authorised. Damage to protected species and habitats that meet all the other criteria will nevertheless not fall under the Directive’s scope in four cases. Firstly, the “previously identified adverse effects” resulting from an act of the operator authorised according to article 6(3) and (4) of the Habitat Directive (Directive 92/43/EEC) or according to article 9 of the Birds Directive (Directive 79/409/EEC) do not fall under the Directive’s scope. These articles refer to the cases where, following an assessment, the adverse impacts identified should have prevented the operator from conducting the activity. Some exceptions allow that activity to take place. The state must nevertheless justify the authorisation. In the context of the Habitat Directive, the authorisation that prevails over the negative impacts assessed has to be justified by “imperative reasons of overriding public interest, including those of a social or economic nature” and by the interest of protecting wild fauna and flora and conserving natural habitats. In the context of the Birds Directive, the justification is assessed against the prevention of serious damage, in particular between diffuse pollution of waters by agricultural practices. More generally, see I. H. Goldenberg and N. A. Caffretta (2001), pp. 28–33. 559  See for example A. Layard (2006), p. 136. L. Krämer seems to have the same reading when underlining, in L. Krämer (2007), p. 190: “The overall impression of the Directive is that it has a rather limited field of application. It aims more at the restoration of the environment after an industrial accident—with the exception of the most important cases, oil transport and nuclear accidents—than of restoring the damaged environment, despite the fact that the environment does not suffer mainly from accidents, but from the fact that it is sick.” 560  Ambient air pollution is highly problematic because this pollution can have critical consequences not only for human health, species and habitats, water and environmental ecosystems, but also historical monuments and agriculture.

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to crops, livestock, forests, fisheries and water and other types of property; the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment; and for the purpose of research and education, of repopulating and reintroducing these species and for the breeding operations necessary for these purposes, including the artificial propagation of plants. A second type of environmental damage that fits with the definitions and standards set by Directive 2004/35 and that had previously been identified does not fall under the Directive’s scope. The “previously identified adverse effects” resulting from the actions of an operator, under authorisation of the Member State despite the previously identified possible negative affects, have to be justified. The following grounds that justify this authorisation are provided by Article 16 of the Habitat Directive: on the basis of the interest of protecting wild fauna and flora and conserving natural habitats; the prevention of serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property; the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment; for the purpose of research and education, of repopulating and reintroducing these species and for the breeding operations necessary for these purposes, including the artificial propagation of plants; and to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities. The third type of environmental damage that fits with the definitions and criteria set by Directive 2004/35 and that had previously been identified does not fall under the Directive’s scope. The “previously identified adverse effects” resulting from the action of the operator, who was authorised by the Member State despite those previously identified possible negative effects, must be justified. The following grounds that justify an authorisation are provided by the water framework Directive, Directive 2000/60561 in Article 4(7): firstly, the failure to achieve good groundwater status, good ecological status or, where relevant, good ecological potential or to prevent deterioration in the status of a body of surface water or groundwater is the result of new modifications to 561  Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L 327, 22 December 2000, pp. 1–73.

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the physical characteristics of a surface water body or alterations to the level of bodies of groundwater. Secondly, the failure to prevent deterioration from high status to good status of a body of surface water is the result of new sustainable human development activities provided that some cumulative conditions are met.562 Fourthly, environmental damage to species and habitats covered by national law that meets all the environmental damage criterion set by Directive 2004/35 and results from previously identified effects of an activity (following for example an impact assessment) but that is nevertheless authorised and justified by the Member States will not fall under the Directive’s scope. These exceptions beg the very important issues of correct implementation of the Birds and Habitat Directives by Member States on the one hand, and respect for the assessment provisions by Member States, national authorities, the operator, and the European Commission on the other. The underlying issues here are, amongst others, fault and illicitness. Responsibility exceptions and defences do not only have common gaps. They also each have gaps that are specific to them. To begin with, exception mechanisms were themselves highly problematic during the legislative proc­ ess as mentioned above with regards to the Water Framework Directive. In this context, the regulatory approach can be questioned, for it enshrines par ricochet the contentious and highly disputed563 provisions of the Wild Birds, Habitats and Water Directives into the environmental responsibility Directives when grounding the impossibility to activate the responsibility and liability mechanisms. Similarly, one could question whether EU environmental law is relevant to set the applicable standards of care. This “deference to the legislature”564 can be challenged on several grounds. A first argument would be that EU environmental law itself is generated by tensions and trade-offs that can ultimately result in gaps. A second argument could be that the EU legislator or national authorities do not possess substantial amounts of information that is kept confidential, privately owned, and sometimes protected by industrial secrecy.565 Access to information is key to both grounds for 562  They are spelled out in Article 7 (a)–(d). 563  The derogations provision was indeed one of the issues to be settled under the conciliation procedure, the most contentious legislative process level and proof of the very disputed character of the issue. 564  As labelled by L. Bergkamp in Liability And Environment, Kluwer Law International, 2001, p. 271. 565  Access to environmental information is addressed in the subsequent chapter, section 4.3.

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responsibility and grounds for responsibility exceptions and defences. These gaps result from the “boomerang effect” described in chapter 2, and will not be examined twice.566 Directive 2004/35. The Facts and Activities that Generate Damage: Six Exceptions. Art. 4(1), (4), (6), and 8(3) A first set of two exception concerns the episode that generates the damage. Directive 2004/35 contains three such exceptions. Article 4(1) provides two of them. They are environmental damage or imminent threat of such damage caused by: an act of armed conflict, hostilities, civil war or insurrection (Article 4(1)(a)); and by a natural phenomenon of exceptional, inevitable and irresistible character (Article 4(1)(b)). This later case is the typical case of force majeure.567 A second set of exceptions relates to the activity that generated the environmental damage. Their effects are either excluded from the notion of environmental damage (Article 2), or they do not fall under the scope of application of the Directive (Article 4), or they constitute responsibility and liability exceptions as such (Article 8). Article 4(6) excludes from the scope of application of the Directive “activities the main purpose of which is to serve national defence or international security” as well as “activities the sole purpose of which is to protect from natural disasters.”568 In addition, Article 4(4) excludes nuclear activities from the scope of application of the Directive, in as much as these activities are 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 the international instruments listed in Annex V. These activities do not fall within the scope of application of the Directive. According to Article 8(1) of Directive 2004/35, the operator must bear the costs for the preventative and remedial actions taken. Paragraphs 3 and 4 provide with exceptions to this rule. When the exceptions apply, the operator will not be bound by the obligation to bear the above-mentioned costs. The difference from Article 4(6) exposed above is that these activities fall under 3.1.3

566  See section 2.2.7. 567  In Roman law, casus cui resisti non potest. For the force majeure defence justified in the 2004/35 Directive when having a law and economics analysis see K. De Smedt (2007), p. 225. 568  In Chapter 1 it has been seen that Article 4(2) to (5) provides a list of environmental damage that are excluded from the scope of application of the Directive.

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the scope of the Directive, but if the conditions of the exceptions are met, the operator will be freed from the obligation to pay the costs. Pursuant to Article 8(3) Member States cannot provide in national law that the operator bears the costs if environmental damage or the threat of environmental damage “was caused by a third party and occurred despite the fact that appropriate safety measures were in place” (Article 8(3)(a)), 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” (Article 8s(3)(b)). It is for the operator to prove that the environmental damage or threat of environmental damage was caused by these factors. 3.1.4 Directive 2008/99. No Responsibility if no Illicitness. Art. 3 Directive 2008/99 does not provide with defences. Nevertheless, the “unlawfulness” requirement may be seen as a defence that can be put forward by the potential offender. As seen earlier in section 2.2.4, for an act or failure to act to be legally defined as an offence, it is necessary that the act or failure to act is illicit. The act or failure to act must infringe EU environmental legislation listed in Annexes A and B or national legislation giving effect to EU law (Article 3). If an act or failure to act does meet the threshold criteria set in the Directive but cannot be found to be illicit,569 this act or failure to act cannot be legally defined as an offence and thus cannot trigger the criminal responsibility mechanisms set in the Directive. Consequently, there cannot be responsibility. Properly speaking, this is not an exception to the responsibility principle, since responsibility cannot be found in the first place.570 Directive 2004/35. Environmental Damage already Covered by International Conventions. Art. 4(2) to 4(4) As a fifth case where damage does not entail responsibility, Directive 2004/35 defers to international environmental law and does not apply when damage falls within the scope of application of an international environmental law framework. The rationale for excluding damage covered by international Conventions can be found in the Directive’s Preamble, Recital 12: 3.1.5

569  Be it because the act does not fall under the scope of a particular legislation or because the act is not regulated (for example if the act or failure to act is linked to unregulated nanotechnologies activities). 570  The limits inherent to the regulatory approach have already been exposed at length in the chapter 2; they will not be repeated here. This is fairly different from most of the exceptions to the responsibility principle enshrined in Directive 2004/35.

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Many Member States are party to international agreements dealing with civil liability in relation to specific fields. These Member States should be able to remain so after the entry into force of this Directive, whereas other Member States should not lose their freedom to become parties to these agreements, and recital 10: Express account should be taken of the Euratom Treaty and relevant international conventions and of Community legislation regulating more comprehensively and more stringently the operation of any of the activities falling under the scope of this Directive. On the contrary, Directive 2008/99 does not contain any provision excluding damage covered by international Conventions. The only reference to “other systems of liability” can be found in the Preamble, Recital 11. The Recital mentions that the Directive “is without prejudice to other systems of liability for environmental damage under Community law or national law”. There is no reference to any international norm. Still, one could argue that if the (by then) Community was to be party to an international Convention, this Convention would be considered as Community law.571 For the time being, only one international norm deals with protection of the environment through criminal law: the Council of Europe convention.572 But the convention is not expected to enter into force, for the three necessary ratifications are not expected to take place.573 Accordingly, in the subsequent developments the author addresses deference to international environmental law Directive 2004/35 as a case where damage is found, but no responsibility can be found on the basis of Directive 2004/35.

571  On this point of EU law, see L. Krämer (2007), p. 191. 572  Council of Europe Convention on the protection of the environment through criminal law, Strasbourg, 4 November 1998, CETS No 172, available on the Council of Europe’s website, page visited 5 September 2009: . 573  Given the EU Member states reluctance to have the Convention entering into force, having the European Community signing such a Convention is less than hypothetical. Hence, the exclusion of environmental damage for they already fall within the scope of international conventions will be particularly studied as they are enshrined in Directive 2004/35.

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3.1.5.1 Maritime Accidents Environmental damage that fits with the definitions exposed above, attains the required threshold, and falls under the Directive’s scope rationae temporis will be excluded from the scope of application of Directive 2004/35 if this environmental damage is already covered by international conventions regulating liability with respect to “maritime disasters” listed in Annex IV.574 Article 4(2) of Directive 2004/35) provides: 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 any of the International Conventions listed in Annex IV, including any future amendments thereof, which is in force in the Member State concerned.575 There are five such international conventions: 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 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. Environmental damage caused by a “maritime disaster” does not fall under the Directive. Furthermore, the Directive leaves intact limits to liability in the field of civil liability relating to such “maritime disasters”, as provided by Article 4(3): This Directive shall be without prejudice to the right of the operator to limit his liability in accordance with national legislation implementing the Convention on Limitation of Liability for Maritime Claims (LLMC), 1976, including any future amendment to the Convention, or the 574  The words are taken from the Commission, “MEMO/04/78”, Brussels, 1 April 2004, “Questions and Answers Environmental Liability Directive”. Website of the Commission, page available 29 August 2009 at . 575  Article 4(2) must be read together with Article 4(3) that provides a list of Conventions that regulate and foresee the possibility or operators to limit their responsibility in maritime affairs.

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Strasbourg Convention on Limitation of Liability in Inland Navigation (CLNI), 1988, including any future amendment to the Convention. 3.1.5.2 Nuclear Accidents Similarly to the above, an environmental damage that nevertheless fits with the definitions exposed above, attains the required threshold and falls under the Directive’s scope rationae temporis is also excluded from the scope of application of Directive 2004/35 if environmental damage is caused by activities covered by the Treaty establishing the European Atomic Energy Community,576 or environmental damage is already covered by international conventions regulating liability with respect to “nuclear incidents”577 listed in Annex V (Article 4(4) of Directive 2004/35). There are five such international instruments: the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy and the Brussels Supplementary Convention of 31 January 1963, the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage, the Convention of 12 September 1997 on Supplementary Compensation for Nuclear Damage, the Joint Protocol of 21 September 1988 relating to the Application of the Vienna Convention and the Paris Convention, and the Brussels Convention of 17 December 1971 relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material. 3.1.5.3

Critical Appraisal of Deference to International Environmental Law The exclusions discussed above were highly controversial during the legislative process leading to the adoption of the Directive.578 Legal scholars have also

576  The rationale for such exclusion is exposed in the Directive’s Preamble, recital 10, reproduced above. 577  The words are taken from the Commission, “MEMO/04/78”, Brussels, 1 April 2004, “Questions and Answers Environmental Liability Directive”, see above footnote no 62. 578  See for example the European Parliament delegation to the Conciliation Committee’s “Report on the joint text approved by the Conciliation Committee for a European Parliament and Council directive on environmental liability with regard to the prevention and remedying of environmental damage”, 11 March 2004, Final A5-0139/2004 (PE-CONS 3622/2004—C5-0079/2004—2002/0021(COD)), p. 7, available 6 September 2009 at . “Limitation of liability in accordance with international conventions Parliament sought to eliminate the operators’ possibility to limit their liability in accordance with the Convention on Limitation of Liability for Maritime Claims (LLMC),

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been highly critical regarding these exclusions.579 They mainly underline the gaps of international norms.580 The Directive could have been the occasion to fill those gaps by relying on a more stringent, “complete” responsibility framework.581 The EU legislator itself acknowledges those limits: these exclusions are expressly mentioned in the list of features that the Commission had to assess in a report to be submitted by 20 April 2014582 and based upon Member states’ reports on their “experience gained”.583 In this report, the Commission had to “include any appropriate proposals for amendment”. The report has to encompass the limits and exclusions described above and enshrined in Article 4(2) to (4).584 The purpose of this section was to identify gaps with regards to the grounds for exceptions to the responsibility principle. The responsibility exceptions endorsed in Directives 2004/35 and 2008/99 were exposed before the gaps were identified. As a matter of principle, it is apparent that the provisions allowing a prima facie responsible private person to exempt himself (herself) from responsibility and liability obligations must be interpreted strictly. of 1976, or the Strasbourg Convention on Limitation of Liability in Inland Navigation (CLNI), of 1988. The compromise reached with the Council foresees that this right shall in principle be maintained, but the Commission shall review the application of the relevant provision, including any appropriate proposals for amendment, in a report to be submitted to Parliament and the Council ten years after the entry into force of the Directive. In this report the Commission shall also pay particular attention to the differences between the liability levels in Member States.” 579  See for example L. Krämer (2007), p. 190, and L. Krämer (2006)b, pp. 41–42. 580  E. H. P. Brans (2001), pp. 229–232, describes the international conventions at stake and their gaps, for such an overview of the international norms’ gaps see also M. Hinteregger (2008), pp. 26–32, and for the criticism relating to the exclusion of “The important environmental concern of oil pollution by tankers”, see pp. 13 and 23, and in “Summary and conclusions”, of the same author and ibid. see pp. 637–641, particularly p. 640: “this selfrestraint of the Directive is problematic” see also G. Winter, J. H. Jans, R. Macrory and L. Krämer (2008), p. 173. 581  When it comes to the sometimes claimed impossibility for the EC legislator to cover these excluded damage for legal reasons, see contra European Court of Justice, Case C-188/07, Commune de Mesquer v. Total France SA, Total International Ltd (reference for a preliminary ruling), Judgment of 24/06/2008, Commune de Mesquer (Rec. 2008, p. I-4501), and on this case N. de Sadeleer (2009)a, pp. 299–307. 582  Article 18(1). At the time of writing (1st December 2014), the European Commission has not issued this Report. 583  Ibid. 584  Article 18(3)(a).

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The author identified one feature of Directive 2008/99 that can be seen as an exception to the responsibility principle: lawfulness of the potential offender’s action or omission. As results from the regulatory approach elaborated on at length in the previous chapter, Directive 2008/99 conditions the criminalisation of actions and omissions upon their unlawfulness. An action or omission that fulfils all other requirements to be criminalised but is nevertheless lawful will not be legally defined as an offence and trigger criminal responsibility. Many more exceptions to the responsibility principle were found in Directive 2004/35. In the subsequent section the attention is directed to one exception: deference to international law, and more particularly the case of international law that applies to maritime accidents. It is argued that deference to the international regime that applies to oil-spills conflicts with Council of Europe human rights law. 3.2

Deference to International Law Conflicts with Human Rights: The Case of the Exclusion of Oil-spill Damage

As seen in the preceding section, Article 4(2) of Directive 2004/35 excludes from its scope of application environmental damage covered by the international conventions regulating liability with respect to “maritime disasters” listed in Annex IV: 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 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. The author identified this exclusion as a gap: the Directive leaves intact limits to liability in the field of civil liability relating to those maritime disasters (Article 4(3)). Also, the author discussed the tensions that appeared during the legislative process when opting for deference to the international law conventions listed above. This deference has been perceived by the legislator in Article 8(3)(a) as a choice to be reviewed in the report to be submitted by the Commission to the European Parliament and to the Council before 30 April 2014 (Article 8(2)), on the basis of reports sent by Member States concerning the experience gained in the application of the Directive by 30 April 2013 at the

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latest (Article 8(1)). The Report submitted by the Commission “shall include any appropriate proposals for amendment” (Article 8(2)).585 In the developments below, this deference to international law is challenged. Within the context of the research question to be answered in this book, this approach is peculiar. In the former chapter the Directives are challenged for not complying with international environmental law. This is as opposed to this chapter, which is aimed at challenging the gaps identified in EU secondary law that have their source within international environmental law and conflict with Council of Europe human rights law. In other words, the gaps are challenged for deferring to international environmental law: the gaps of the international law legal framework that infiltrate Directive 2004/35 “par ricochet” or indirectly. The latter leave intact the former’s gaps. In this section it is argued that this deference conflicts with a human rights approach. The Right to Property is Mobilised to Challenge the International Regime that Applies to Oil-spills With a view to challenging the deference of Directive 2004/35 to international environmental law that applies to oil-spills, the author mobilises a specific human right: the right to property.586 In the developments below, the author mobilises the right to property with a view to determining the potential of 3.2.1

585  More specifically: “The Commission shall take into account experience gained within the relevant international fora, such as the IMO and Euratom and the relevant international agreements, as well as the extent to which these instruments have entered into force and/or have been implemented by Member States and/or have been modified, taking account of all relevant instances of environmental damage resulting from such activities and the remedial action taken and the differences between the liability levels in Member States, and considering the relationship between ship-ownership-owners’ liability and oil receivers’ contributions, having due regard to any relevant study undertaken by the International Oil Pollution Compensation Funds.” (Article 8(3)(a)). 586  Opting for right to property with a view to challenging limited responsibility regulated in international Conventions could seem paradoxical. Indeed, it was seen in the first part of the book that res communes exclude property rights and refer to interests and rights of the public at large, while rights to property have a strong individual dimension. Similarly, the protection (or security) obligation within the responsibility paradigm could be perceived as going against the property regime. The relationship between environmental protection and property is very complex and does not fall under the scope of research of this book as such. In the context of this book the author limits herself to mentioning that property can both go against the protection obligation (can the owner damage the environmental values falling under his private property?) and generate complex legal issues (can the owner be bound by protection obligations of environmental values, even though these values fall within his property remit?).

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the human rights approach, extending to rights that could (prima facie) be perceived to be at the opposite from the protection paradigm pursued in this book. The developments below reflect the right to property’s ambivalence. Within the Council of Europe human rights law system, right to property has been canvassed as both challenging environmental protection measures adopted by national authorities (for example, with a view to challenging an expropriation aimed at protecting a forest) and challenging national authorities’ action or lack of action that caused pollution which, in turn, interfered with a private person’s property (for instance, pollution that reduces a house’s value). The developments below apply the later hypothesis: oil spills as interfering with right to property. The question dealt with in this section is: to what extent does the responsibility scheme for the compensation of oil-pollution damage set by the international regime fulfil the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms587 and the European Court of Human Rights case law with regards to the right to property guaranteed by Article 1 of Protocol No. 1 to the Convention (Article 1 of the first Protocol)? Is the responsibility scheme for the compensation of oil-pollution damage set by the international regime and preserved by Directive 2004/35 compatible with the right to property? Or do they conflict? The question to be answered—whether the responsibility scheme for the compensation of oil-pollution damage set by the international regime and preserved by Directive 2004/35 is compatible with the right to property—is prompted by criticisms formulated by scholars against the international regime in question588 and by the actions taken by victims of oil spills who have been willing to circumvent the international regime in order to have national general rules of criminal law or the transposition of EU waste legislation applied.589 587  European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950). 588  On the international liability mechanism see for example E. H. P. Brans (2001), C. De La Rue (1993), R. Wolfrum and C. Langenfeld (1999), D. Wilkinson (1993), A. E. Boyle (2005)b, G. M. Gauci (1999), Xia Chen (2001). On the critical appraisal of the international regime See, for instance, K. Le Couviour, (2002), p. 2271; A. Daniel (2003), p. 225; D. Ibrahima (2005), p. 63; E. Duruigbo (2000), pp. 65–88; M. Faure and Wang Hui (2003), pp. 242–253, and Xia Chen (2001), pp. xv–xviii and 138–148; and J. Harrison (2008). 589  Legal answers can seem inappropriate to address maritime disasters not only because legal frameworks have failed to fill their preventive function, but also because legal answers are not able to fully address the social disarray felt when facing such disaster (as appeared, for example, in the aftermath of the Gulf of Mexico Oil Spill589 following the explosion

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Some of the victims of the 1999 Erika oil-spill590 circumvented the international regime in order to have national general rules of criminal law591 or the transposition of EU waste legislation applied.592 It is quite revealing that and fire aboard a British Petroleum mobile offshore drilling unit on 20 April 2010). Legal answers are also often criticised for being too slow. Discussing the aptness of relying on legal answers to these environmental, social and economical disasters is not the purpose of this chapter. The author rather focuses on positive law. 590  On 12 December 1999, the oil tanker Erika broke in two off the coast of Brittany, France, whilst carrying approximately 30,000 tones of heavy fuel oil. Some 19,800 tones of oil were spilled. The Erika tanker was built in 1975. Giuseppe Savarese (Principal Shareholder of Tevere Shipping) had owned the Erika since 1996. The money available to compensate the victims of the Erika accident amounted to approximately 185 million Euros. See ‘Erika— France, 12 December 1999, Report updated 9 January 2009—The compensation system: who is paying?’ (IOPC Fund, 9 January 2009), found at . 591  On 16 January 2008, Total SA, Giuseppe Savarese (the ship-ownership-owner), Antonio Pollara (the handler) and Rina (the export company) were sentenced in solidum to pay indemnities of 192 millions €, plus individual penalties. The judgment, while recognizing the risks inherent to oceangoing vessels, reckons Total SA was ‘guilty of imprudence’, rom the fact that Total SA did not take into account ‘the age of the ship’, (nearly 25 years), and ‘the discontinuity of its technical handling and maintenance’. See Tribunal de Grande Instance de Paris, 11th Chamber, 4th Section, appeal No. 9934895010, found at . 592  In the Commune de Mesquer case, the European Court of Justice had to pronounce itself on the legal definition to be given to oil spilled and mixed with seawater and sediment in the aftermath of the Erika accident. The claimant (Commune de Mesquer) argued that such oil could be defined as waste, with the view to having the producer or holder of waste (Total) held responsible, hence quashing with the international regime that holds the ship-ownership-owner responsible. The European Court of Justice answered the claim positively. The European Court of Justice quashed the international regime’s limitations in the Commune de Mesquer case as follows, ECJ, Case C-188/07, Commune de Mesquer v. Total France SA, Total International Ltd (reference for a preliminary ruling), Judgment of 24 June 2008. In this respect, the European Court of Justice ruled (3rd indent): “If it happens that the cost of disposing of the waste produced by an accidental spillage of hydrocarbons at sea is not borne by the International Oil Pollution Compensation Fund, or cannot be borne because the ceiling for compensation for that accident has been reached, and that, in accordance with the limitations and/or exemptions of liability laid down, the national law of a Member State, including the law derived from international agreements, prevents that cost from being borne by the ship-ownership-owner and/or the charterer, even though they are to be regarded as ‘holders’ within the meaning of Article 1(c) of Directive 75/442, as amended by Decision 96/350, such a national law will then, in order to ensure that Article 15 of that directive is correctly transposed, have to make provision for that cost to be borne by the producer of the product from which the

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victims tried to avoid the regime that was supposed to ‘ensure that adequate compensation is available to persons who suffer damage caused by pollution resulting from the escape or discharge of oil from ships’.593 Also, recent EU legal developments question the effectiveness of the international civil liability regime to appropriately address the harms caused by oil spills.594 In the following developments, the gaps in the international regime are first identified (3.2.2). The author then introduces the right to property as guaranteed by the Council of Europe human rights system (3.2.3). Later, these gaps are tested against human rights requirements that flow from the right to property. The outcome is that the international regime does not meet the human rights .

waste thus spread came. In accordance with the ‘polluter pays’ principle, however, such a producer cannot be liable to bear that cost unless he has contributed by his conduct to the risk that the pollution caused by the shipwreck will occur.” 593  See Liability and Fund Conventions, Preambles. 594  The international regime is also strongly challenged by the European Commission. This appeared, for example during the third Erika package legislative process. The third ‘Erika Package’ has as its main objective ‘to restore the competitiveness of the sector while benefiting only those operators who respect the safety standards, in particular by increasing the pressure on owners of sub-standard ships’. See Erika Package, Proposal for a directive of the European Parliament and the Council on the civil liability and financial guarantees of ship-owners, COM(2005) 593, Preamble, Recitals 3, 5 and 9. See also Explanatory Memorandum of the Proposal for a directive of the European Parliament and the Council on the civil liability and financial guarantees of ship-owners COM(2005) 593 final, at 3, where the European Commission stated: “International schemes only have a very limited preventative and dissuasive effect. (. . .) the almost complete limitation of operator liability. (. . .) The legitimacy of the principle of limited liability is being increasingly contested”. An example outside the maritime transport sector is the adoption, in 2004, of the Directive on environmental liability which deals with the principle of operators’ unlimited liability (Directive 2004/35/EC, OJ L 143, 30.4.2004, p. 56),” and at p. 4 (of the explanatory memorandum): “Modernising these international Conventions will involve revising them. The revision process is underway for the 1992 Convention on Civil Liability for Oil Pollution Damage. The Commission intends to work for improvements to be made to this convention, such as removing the ceiling on civil liability” (emphasis added). On this issue see E. H. P. Brans (2001), at pp. 229–232; and see ‘Adoption of the Third Maritime Safety Package’ (European Commission, 23 November 2005), found at . See more particularly the Communication from the Commission of 23 November 2005, ‘Third package of legislative measures on maritime safety in the European Union”, COM(2005) 585 final, at p. 7.

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requirements. A “conflict case” is identified (3.2.4). The effects of the outcome with regards to Directive 2004/35 are discussed (3.2.5). The International Regime for the Compensation of Oil Pollution Damage: A Classic Example of Limited Responsibility 3.2.2.1 General Overview of the International Civil Liability Regime The international civil liability regime for the compensation of oil-pollution damage is meant to establish equilibrium between the needs of the victims (to be compensated for the harm they have suffered) and the needs of the oil industry (to be able to continue its activities).595 Almost all EU Member States with a coastline are parties to the international regime.596 The international regime on civil liability for damage caused by oil spills consists of two international conventions: the 1992 Civil Liability Convention597 and the 1992 Fund Convention.598 The Conventions were adopted in the wake 3.2.2

595  See for example the Fund Convention’s preamble, which states: “Convinced of the needs to elaborate a compensation and indemnification system supplementary to the International Convention on Civil Liability for Oil Pollution Damage with a view to ensuring that full compensation will be available to victims of oil pollution accidents and that the ship-owners are at the same time given relief in respect of the additional financial burdens imposed on them by the said Convention”. On the limitation of liability in the international regime, see Xia Chen (2001), pp. xiii– xviii, and for example p. xiii: “The original rationale for such a system (limitation of liability for maritime claims) is to encourage the shipping enterprise. (. . .) By setting up certain limits, the system alleviates the ship-owner’s burden of liability, which provides an important incentive for people to stay in the shipping industry. (. . .) It (the limitation liability system) has made positive contributions to the well-being of the maritime enterprise.” 596  W. Oosterveen (2006), p. 245. 597  International Convention on Civil Liability for Oil Pollution Damage (Brussels, 29 November 1969, hereinafter “Civil Liability Convention”), amended by the Protocol of 1992 to amend the 1969 International Convention on Civil Liability for Oil Pollution Damage (London, 27 November 1992). 598   International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Brussels, 18 December 1971, hereinafter “Fund Convention”), amended by the 1992 Protocol to amend the 1971 Fund Convention (London, 27 November 1992). There are 114 States that are party to the two conventions as at 30 October 2015.

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of the 1967 Torrey Canyon disaster599 with the purpose of establishing a compensation regime that would process the victims’ claims as quickly and simply as possible.600 The Conventions apply to claims for damages arising from harm caused by persistent oil pollution in the territory601 of a State party.602 The Civil Liability Convention is the ‘first layer’ of the international regime. It sets channelled603 and strict604 liability on the polluter identified as the registered owner of the tanker that has released oil.605 However, a limited list of exceptions enables the registered owner of the ship to be exempted from liability.606 The owner’s liability is further limited to an amount proportionate to the tonnage of the vessel: the so-called “ceiling”.607 The ship-owner must maintain insurance (Civil Liability Convention, Articles 3 and 7). The second layer’608 of the international regime is the Fund Convention. The Fund, an intergovernmental organisation, provides additional protection for victims who are unable to obtain full compensation under the 599  In March 1967 the Torrey Canyon, a crude carrier grounded on a reef off England. About 60,000 tonnes of oil were released and carried onto the shores of England and France. 600  See Civil Liability Convention, Preamble. For a more detailed overview of the international responsibility and liability regime, see among others E. H. P Brans (2001), pp. 315–318. 601  The concept includes the territorial sea, the exclusive economic zone–EEZ, and territory. See Civil Liability Convention, Article 2(a)(iii). 602  Ibid. Article 1(6). 603  A channelled liability is the process by which the liable person is designated, in other words there is a pre-defined liable person. 604  A strict liability does not require any fault to be established for responsibility to be recognised. 605  See Civil Liability Convention, Article 3(4). 606  Ibid. Article 3. See also The International Regime for Compensation for Oil Pollution Damage—Explanatory note prepared by the Secretariat of the International Oil Pol­ lution Com­­pensation Funds (IOPC, January 2008), at n. 8 above, found at . It states: “He (the owner) is exempt from liability under the 1992 Civil Liability Convention only if he proves that: a) the damage resulted from an act of war or a grave natural disaster, or b) the damage was wholly caused by sabotage by a third party, or c) the damage was wholly caused by the negligence of public authorities in maintaining lights or other navigational aids.” 607  The owner must obtain insurance coverage. See Civil Liability Convention, ibid. Article 7. 608  See W. Oosterveen (2006), p. 248.

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Civil Liability Convention.609 The Fund only compensates for pollution damage that has occurred in a State that is member to the Fund Convention.610 In 2003, a Supplementary Fund Protocol (SFP) to the Fund Convention was adopted.611 It provides for supplementary compensation up to a level of US$1.2 billion per accident, less the compensation paid by the ship-owner and the 1992 Fund.612 The international regime is commonly presented as setting a “limited liability regime”.613 There are at least six key weaknesses to the regime. They relate to the burden of proof for proving damages; the timeframe for assessing claims and awarding payments; the definition of damage; the awarding of compensation; the channelling of liability; and exceptions to the rules. Each is reviewed below. 3.2.2.2 First Limit: The Victim’s Burden of Proof The first weakness is that the Civil Liability Convention, Fund Convention and Supplementary Fund Protocol place the burden of proof on the claimant to establish his loss and entitlement to compensation under the international oil pollution regime.614 The claimant can challenge the Fund’s decision before a 609  This is usually the case when the damage exceeds the limit of the ship-owner’s insurance. For other cases, see Art 4, Fund Convention. It is worth noting that the fund is not financed by governments, but by contributions from persons receiving ‘contributing oil’ in a Member State after carriage by sea: art 1(3), Fund Convention. In other words, the Oil Industry funds the Fund. 610  It should be noted here that while the Fund Convention is found to be attractive to both developing States and industrialised States, one notable exception is the United States which decided in the late 1980s not to join the international regime and rather develop a national legislation on the issue: the Oil Pollution Act (OPA) 1990, 33 USC (United States Code). 2701–2720, together with the Comprehensive Environmental response, Compensation and Liability Act (CERCLA), 42 USC, paragraphs 9601–9616. 611  A separate inter-governmental organisation was also established: the International Oil Pollution Compensation Supplementary Fund (Supplementary Fund). 612  See IOPCF, ‘Compensation limits’ (IOPCF, undated), found at , page visited 30 October 2015. 613  See for example Xia Chen (2001). 614  This is commonly the case under civil liability regimes, as emphasised by W. Oosterveen (2006), p. 251. As for the practical steps to be taken, see the International Oil Pollution Compensation Funds, Claims Manual (International Oil Pollution Compensation Funds, December 2008), at 17–18, available at .

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competent Court, usually of the State where the damage occurred, and the decision of this court binds both the Fund and the claimant.615 The burden of proof is alleviated insofar as responsibility is channelled to the owner of the ship (as described below). The claimant nevertheless has to identify the ship’s owner and establish the link between the incident involving a vessel and the spilling of oil. If the source of the oil-spill cannot be identified, the Conventions cannot be brought into play.616 3.2.2.3

Second Limit: The Timeframe for Considering Claims and Awarding Payments The issue of the time period that it takes for payments under the international regime to be processed and awarded is another of the weaknesses of the regime. The Erika accident which occurred in December 1999 gives us a good example. The page dedicated to the Erika accident on the Fund’s website stated in 2007 that [T]he total claims arising out of this incident by far exceeded the amount of compensation available (. . .) Initially, as a result of the uncertainty as to the total amount of the admissible claims, the Fund had to limit its payments to a certain percentage of the loss or damage actually suffered by the respective claimants.617 On the same webpage, one could later read in 2009 that As at 24 September 2008, 7130 claims for compensation, other than those made by the French Government and Total SA, had been submitted for a total of €211 million (£201.8 million). By that date 99.7% of these claims had been assessed. Some 1,014 claims, totalling €31.8 million (£30.4 million), had been rejected.618 615  On this point, see Fund Convention, Article 7(6). 616  This is not theoretical. Identification matters have often arisen. See E. H. P. Brans (2001), pp. 316–317, and more particularly footnotes nn. 36–37 therein. 617  This was found on the International Oil Pollution Compensation Funds website at on 04 September 2007 (emphasis added). This page is no longer accessible. 618  International Oil Pollution Compensation Funds, ‘Erika—France, 12 December 1999, Report updated 9 January 2009—Erika Claims Handling Office’ (IOPCF, 1999), found at . This page is no longer accessible.

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In other words, almost 10 years after the accident, all the claims still had not been screened or assessed. Around 20 claims were still left unscreened in 2008 and payments for the decided cases were made as late as four years after the accident in 2003.619 This problem did not only emerge in the context of the Erika oil-spill but also emerged in other cases of oil-spills. The timeframe issue can therefore be considered as endemic and structural.620 3.2.2.4

Third Limit: Definition of Damage. Article 1(6) of the Civil Liability Convention The third weakness concerns the damage considered recoverable by the international oil pollution regime. Article 1(6) of the Civil Liability sets the criteria to define pollution damage. The damage must have been caused outside the ship, must be caused by contamination by oil, and must have occurred within the territory of a State party. As for what is recoverable, costs that are admissible for recovery can be grouped under four headings.621 The first of these would be clean-up (or restoration) costs which are reasonable and justified from a technical and scientific point of view, as well as 619  Since the Erika accident occurred almost 10 year ago, it proves to be rather hard to get data on the number of claims that had not be assessed for example 5 years after the accident. For the sake of illustration, it can be referred to the more recent oil-spill caused by the Prestige. All information are available on the website of the IOPCF, page devoted to the Prestige accident that occurred on 13 November 2002 IOPCF, ‘Prestige, Spain, 13 November 2002—Report updated 9 January 2009’ (International Oil Pollution Compensation Funds, November 2002), found at . As for the level of assessment of the claims assessed by French claimants, one can read under ‘Claims situation’: “France. As at 20 August 2008, 481 compensation claims totalling €109.6 million (£104.8 million) have been received by the Claims Office in Lorient (. . .) Of the 481 claims submitted to the Claims Handling Office, 92% had been assessed by 20 August 2008.” [Emphasis added].  In other words and regarding France, more than 5 years and a half after the incident, some 40 claims were left unscreened. As a comparison and when considering the Gulf of Mexico oil spill mentioned in the introduction, out of the 23,000 claims filed, 9,000 were paid within six weeks. See British Petroleum, Gulf of Mexico Response (British Petroleum, undated), found at . 620  See the International Oil Pollution Compensation Funds website for data on the time frame issue for other oil-spills. See more particularly the International Oil Pollution Compensation Funds, Prestige: Spain—13 November 2002, ibid.; and see International Oil Pollution Compensation Funds, Hebei Spirit: Republic of Korea—7 December 2007 (IOPCF, undated), found at . 621  Ibid. Article 2. On this issue, see W. Oosterven (2006), pp. 255–260.

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costs of preventive measures aimed at preventing or minimising recoverable damage under the regime, as long as they are both reasonable.622 The “reasonableness” test applied to reinstatement measures is operated according to five criteria, as established by the 2002 Working Group that focused on admissibility criteria and reported by W. Oosterveen.623 Secondly, personal injury related to health, provided that the claimant can prove the causal link between the oil-spill and injury to health.624 Thirdly, property damage—with a deduction for wear and tear (for example, a boat that cannot be used anymore). Fourthly, losses consequential upon damage to property (such as loss of income), together with pure economic loss that can be quantifiable in economic terms625 and where “there is a reasonable degree of proximity between the contamination and the loss”626 (for instance, fishing activities being rendered impossible by the pollution of the sea, guests not remaining in or not coming to a hotel because the beach is polluted), and also by way of environmental impact assessments/studies likely to provide reliable and useful information on damage recoverable under the regime.627 Loss of amenities (i.e., the public loss of use and enjoyment) of the damaged natural resource does not

622  See E. H. P. Brans (2001), p. 324. 623  They are: (1) the measures should be likely to significantly accelerate the natural process of recovery; (2) the measures must seek to prevent further damages as a result of the oil-spill; (3) the measures must, as far as possible, not result in the degradation of other habitats or in adverse consequences for other natural or economic resources; (4) the measures must be technically feasible; and (5) the costs of the measures should not be out of proportion to the extent and duration of the damage and benefits likely to be achieved. See W. Oosterven (2006), p. 258. 624  The Fund refused to indemnify “health risks” and “anxiety”. See E. H. P. Brans (2001), p. 321. The Fund found these injuries not to fall within the definition of pollution damage. The Fund retains a very objective definition of pollution damage and related injury. There is little room for subjectivity or contingency. On the subjective assessment recognised as grounding an injury, see E. H. P. Brans (2001), p. 322. To be taken into account, subjectivity must be linked with a pure economic loss that does not extend to loss of amenities. 625  On this aspect see E. H. P. Brans (2001), pp. 322–323. 626  E. H. P. Brans (2001), p. 323. This reflects that the international regime has a strong individual dimension as opposed to considering the public at large. 627  On all the conditions to be met with the view to having the costs of studies to be recovered, see E. H. P. Brans (2001), p. 354. And see ibid. pp. 254–255 on the uncertainties regarding whether costs linked to studies and impact assessments focusing on oil spill impact on environmental and ecological values when this impact does not fall within the legal definition of pollution damage according to the international regime.

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fall as such within the definition of recoverable damage for suffered harm.628 Similarly, the Fund rejects claims for “stigma damage” defined by E. H. P. Brans as “damages for negative perceptions associated with the contamination”.629 From the outset, this definition of “pollution damage” in the Civil Liability Convention has been criticised for its vagueness.630 Also, the word “environment” is not defined. The boundaries of “pollution damage” are particularly challenged. In the Patmos and Haven cases, Italian jurisdictions did argue that the definition was wide. Italian jurisdictions interpreted the notion of pollution damage extensively, so as to include damage to the environment per se, even though this damage cannot be assimilated to a financial loss. The Fund opposed this wide interpretation.631 The definition of pollution damage is seriously limited. However, Directive 2004/35 preserves the international regime mechanisms and, in addition, environmental damage and harm are one of the aspects researched in this book. The international regime is a good case to show the confrontation between two requirements regarding environmental damage and science. On the one hand, the pollution damage definition requires immediate scientific information to be available with the view to determining the nature of environmental damage, and also whether the particular environmental damage falls within the scope of application of the conventions, once the “reasonableness” test is passed. On the other hand, there remain strong uncertainties regarding the effectiveness of attempts to scientifically assess environmental damage. As shown, for example, in the Erika case that occurred in 1999, “[T]he long-term effects of the spill are unknown yet”.632 In other words, the necessity to have immediate knowledge is confronted with incomplete scientific knowledge and long-term effects that are particularly difficult to foresee. As far as environmental damage per se (i.e., impairment of the environment) is concerned, compensation is limited to the costs of reasonable measures of reinstatement633 actually undertaken or to be undertaken.634 The reluctance 628  See E. H. P. Brans (2001), pp. 321–322. 629  E. H. P. Brans (2001), p. 320. 630  See E. H. P. Brans (2001), p. 219. 631  Ibid. p. 334. 632  Ibid. p. 313. 633  On the concept of ‘reasonable measures of reinstatement’, see the International Oil Pollution Compensation Fund 1992, ‘Claims Manual’, December 2008 Edition, adopted by the Assembly in October 2004 and amended in June 2007, at 23–27 and 35–36, found at . 634  On the issue of the impossibility to attribute an economic or market value to environmental goods or resources and on the environmental prejudice as such, see L. Burlington

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to compensate “pure ecological damage” (for instance, the irreversible loss of biodiversity) and to refer to the “ecosystem approach” can be explained by the period in which the Conventions were drafted and adopted. In the early 1970s, these notions were clearly not endorsed in binding texts. Endorsing the ecosystem dimension of the marine environment is fairly recent.635 Some authors have also explained this reluctance by the civil responsibility nature of the international regime that “get into trouble in areas where realistically no economic or market value can be attributed to the goods or resources affected.”636 While it is true that civil law remains largely inadequate to assess pure environmental damage, recent developments that took place precisely as consequences of oil spills cases cannot be ignored. French law in this respect should not be ignored. A judicial movement towards the recognition of pure environmental damage has clearly taken place within national civil jurisdictions.637 Regarding the treatment of “pure ecological damage”, it has been seen above that loss of amenities (i.e., the public loss of use and enjoyment) of the damaged natural resource does not fall as such within the definition of recoverable damage. This is at odds with the legal treatment of res communes. Bridging the international regime with the res communes legal nature of some environmental values has been dealt with by the Fund and Italian national Courts in the 1985 Patmos case.638 The Fund denied the Italian government any property right. The latter grounded property rights on its sovereignty over its territorial sea with the view to having harm to marine flora and fauna indemnified.639 The Fund based its refusal on the non-economic loss character of damage to marine flora and fauna and the abstract model used to calculate the required compensation. Later, the case was brought before Italian national Courts. The Tribunal of Messina and Court of Appeal of Messina elaborated on the grounds to reject the Italian Government’s claim relying on sovereignty and res communes matters. In the decision of the Tribunal of Messina in 1986, the Tribunal argued that sovereignty did not amount to private property. Instead, the State’s (2004), p. 77; D. A. French (2003), p. 266; E. H. P. Brans (1996), p. 297; P. Sands and R. B. Stewart (1996), p. 290; D. Ibrahima (2005), p. 63; W. Pfennigstorf (1979), p. 347. 635  See for example O. McIntyre (2004), p. 2 where the author refers to the 1992 Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes, and the 1997 Helsinki Declaration as an illustration of the ecosystems approach. 636  W. Oosterveen (2006), p. 257. 637  On this movement see for example B. Parance (2008), L. Neyret (2008), and more particularly L. Neyret (2010) and references therein. 638  For facts on the Patmos incident and ensuing oil-pill, see E. H. P. Brans (2001), pp. 326–327. 639  On the legal proceedings regarding the Patmos case, see E. H. P. Brans (2001), pp. 326–331.

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territorial sea was qualified as res communes, and marine fauna and flora as res nullius. This meant that no legal harm (i.e., interference with a legally protected interest or right) could be identified. As a consequence, “a private person cannot injure the public right of sovereignty over territorial seas”.640 The Italian government appealed against the Tribunal’s decision. In its 1993 interim conclusion, the Messina Court of Appeal went against the Tribunal’s decision and found the Italian government’s claim to be admissible. Of interest to us for this book, the Court relied, amongst others, on the res communes legal nature of marine flora and fauna. It argued that “pollution damage” under the International regime was to include “the damage suffered by the community which benefits from natural resources present in the area”.641 The Court referred to “the public’s loss of use and enjoyment of natural resources”.642 In other words, the Court referred to res communes’ legal definition and legal treatment in a manner which was much more consistent than the Tribunal, which legally defined marine fauna and flora—diversity—as res nullius. As for the valuation of damage and harm, the Court referred to the “reduction of the possibility to use and enjoy the environment by the community”.643 The Court put forward that the difficulty in evaluating the values at stake in economic terms did not preclude the Italian government’s standing as such. It is worth stressing that the res communes legal definition and legal treatment was argued by the Italian government to ground its claim. The infringed interest the Italian government was seeking compensation for was precisely res communes’ integrity being damaged. The Italian government’s argument was perfectly in line with the public trust doctrine endorsed in Directive 2004/35. In its 1989 interim decision, the Messina Court of Appeal found the Italian government’s claim to be admissible in principle. In its final judgment in 1993, the Messina Court of Appeal awarded an indemnity to the Italian government. This is contrary to the practice of the Fund, which always reject claims that relate back to non-quantifiable losses that “are not quantifiable on the basis of a market-price”. The Fund rejects any method of calculation based upon “shadow-pricing” techniques for being “theoretical, abstract, and highly arbitrary”.644 640  Decision of the Tribunal of Messina, as reported in E. H. P. Brans (2001) p. 327. A contrario, had the Italian government claimed compensation for harm to the State’s public domain (such as coastline), the conclusion of the Tribunal may have differed. 641  As reported in E. H. P. Brans (2001), p. 328. 642  Ibid. 643  As reported in E. H. P. Brans (2001), p. 328. 644  E. H. P. Brans (2011), p. 350.

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As a last remark, the requirement that restoration measures must be reasonable has the effect of excluding irreparable damage and harm to the environment from the application of the international regime.645 The primary obligation phrased in terms of the protection obligation that relates back to the integrity or security of environmental values is quashed. As a result, the international regime grants what could be called a right to destroy. This is completely absurd. The pollution in the aftermath of an oil spill calls for liability obligations to be brought into play (paying for the costs). On the contrary, complete destruction in the aftermath of an oil-spill, i.e. where damage is irreparable, does not call for liability obligations to be brought into play. This mechanism clearly ignores a rights approach which recognises environmental values’ inherent and intrinsic dimension phrased under a rights language. The values are destroyed, damage is irreparable, but there are neither victims nor responsible persons.646 3.2.2.5

Fourth Limit: The Awarding of Compensation. Article 4(5) of the Fund Convention A fundamental principle applied by the Fund is the equal treatment of claimants. As mentioned above, the amount available to compensate all the victims is limited (the so-called “ceiling”). All claimants are paid the same percentage of their claims if the total amount of admissible claims exceeds the finances available in the Fund. This ‘pro-rating’ exercise means that ”once a risk of “overpayment” becomes clear, the Fund must determine the estimated total costs of the incident, and pay only the corresponding percentage.”647 In such a case, 645  For a criticism regarding this aspect and proposed solutions, see E. H. P. Brans (2001), pp. 355–358. 646  In the same sense but not in the context of the regime studied in this chapter, see on the Liability and Redress Protocol to the Biodiversity Convention: Intergovernmental Committee for the Cartagena Protocol, “Liability and redress for damage resulting from the transboundary movements of living modified organisms. Review of existing relevant instruments and identification of elements”, Note by the Executive Secretary. UNEP/CBD/ ICCP/2/3, 31 July 2001, p. 27, point n. 94: “As regards damage to biological diversity, there are conceivably many situations where restoration or reinstatement may not be feasible. The cases of endemic species or unique ecosystems are good examples. In such cases, it would be manifestly unjust not to pay monetary compensation for the loss suffered, especially if the species or ecosystems played an important role in the socio-economic life of the inhabitants of the affected State in general, and of indigenous and local communities, in particular.” 647  See W. Oosterveen (2006), p. 252. Concretely, and taking the Prestige accident to illustrate this principle, it can be referred to the more recent oil-spill caused by the Prestige. All

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governments usually choose to ‘stand last in the queue’. Their claims usually are of such an amount that small and private claimants would otherwise not receive much of the total available funds. The bottom line is that victims are not assured to receive compensation for the whole damage they suffer. 3.2.2.6

Fifth Limit: Responsibility Channelled to the Owner of the Ship. Article 3(4) of the Civil Liability Convention Article 3(4) of the Civil Liability Convention defines the channelling648 of the ship-owner’s liability as follows: No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with this Convention. Subject to paragraph 5 of this Article, no claim for compensation for pollution damage under this Convention or otherwise may be made against: (a) The servants or agents of the owner or the members of the crew; (b) The pilot or any other person who, without being a member of the crew, performs services for the ship; (c) Any charterer (howsoever described, including a bareboat charterer), manager or operator of the ship; (d) Any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority; (e) Any person taking preventive measures; information is available on the website of the IOPCF page devoted to the Prestige accident that occurred on 13 November 2002, available on 24th August 2009. See ‘Prestige, Spain, 13 November 2002—Report updated 9 January 2009’ (IOPCF, undated), found at . As for the level of payments, one can read:  “Level of payments (. . .) Under the 1992 Conventions, the Fund has to give all claimants equal treatment. The Executive Committee therefore decided in May 2003 that the 1992 Fund’s payments should be for the time being limited to 15% of the loss or damage actually suffered by each individual claimant as assessed by the 1992 Fund’s experts. The Committee reconsidered the payment level several times but decided, as late as in June 2005, that the level of 15% should be maintained. The level of the 1992 Fund’s payments has in the past generally been determined on the basis of the total amount of claims already presented and possible future claims against the Fund, and not on the basis of the Fund’s assessment of the admissible amounts. (. . .) In view of the magnitude of the Prestige incident and the exceptional circumstances surrounding it, the Executive Committee agreed to the Director’s proposal to increase the level of payments from 15% to 30% of the actual losses suffered by claimants. (. . .).” 648  As defined earlier, a channelled liability is the process by which the liable person is designated, in other words there is a pre-defined liable person.

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(f) All servants or agents of persons mentioned in subparagraphs (c), (d) and (e). The channelling of responsibility is the counterpart of the ship-owner’s strict liability. No fault has to be proven. Responsibility is based upon risk. Shipowners’ channelled responsibility significantly restricts the extent to which the victims of pollution may claim compensation against a broad range of actors in the chain of events leading to the harm, hence limiting the money available for compensation. Some authors have labelled the channelling of liability the “de-responsibilisation” of “many other persons such as employees, the charterer or other third parties (. . .) Hence, their incentives for prevention are diluted”.649 3.2.2.7

Sixth Limit: Exceptions to Override the Owner’s Limited Compensation and Channelled Liability The sixth limit is the exceptions to channelled liability, i.e. the possibility to question other actors’ responsibility. A ship-owner cannot have his liability limited if is it proved (by the claimant or any interested party) that the pollution damage resulted from his personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. [emphasis added]650 Also, the liability of the persons listed in Article 3(4) of the Civil Liability Convention can be challenged if “the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result”.651 However, these exceptions are largely theoretical in nature: wrongs committed either with intent or recklessly are difficult to prove. Judges and academics commonly recognise that maritime transport bears intrinsic dangers and risks.652 This proportionally reduces the margin of appreciation of fault. It is also necessary to have highly technical skills to fully understand the whole chain of causation that eventually leads to the oil spill. Would the victims have such knowledge? All in all they have to, since the burden of proof is on their 649  See M. Faure and W. Hui (2003), p. 250; K. Le Couviour (2002), p. 2271; on limited liability for maritime claims, see Xia Chen (2001), particularly at pp. 138–152. 650  See Civil Liability Convention, Article 5(2). 651  Ibid. Article 3(4), last sentence. 652  On this issue see for example E. Terzic (2009), pp. 5, 7 and 9.

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shoulders. It is therefore likely that the application of these exceptions to the limitations regarding the compensation that can be requested from the shipowner and to the immunity of a series of maritime actors would be very rare.653 3.2.3 Right to Property under the European Convention of Human Rights In this section the limits of the international regime are assessed against the right to property as guaranteed by the European Convention on Human Rights and interpreted by the European Court for Human Rights under the hypothesis that the claim would be brought by a private person would bring the claim before the European Court of Human Rights. Article 1 of the first Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms provides: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.654 The notion of property under the framework of European Convention on Human Rights as interpreted by the European Court for Human Rights is autonomous.655 In other words, it does not depend on the definitions in the State parties’ legal systems. The notion of property has been interpreted extensively by the Court: the legal definition of property is recognised for almost anything with a property value as long as there is a ‘legitimate expectation’ that the claim or debt may be realised. Nevertheless, the claim must have

653  Please note that searching for a greater compensation from the ship-owner is highly theoretical because of the corporate constructions (and veils) that render the ‘actual’ owner hard to identify, the ‘registered’ owner being in some cases an ‘ad hoc’ entity possessing nothing else but the vessel that caused the damage. 654  See First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, Paris, Article 1. 655  ECtHR, 30 November 2004 (GC), Öneryildiz v. Turkey, para. 124.

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sufficient grounds in national law.656 This condition is met for example when the property value is well settled by the national courts. It is settled case law that Article 1 of the first Protocol contains three norms, as highlighted in the Sporrong and Lönnroth v. Sweden case: the principle of peaceful enjoyment of property; deprivation of possessions and subjecting possession to certain conditions; and State’s control of the use of property.657 Even though those three norms are said to be independent, the Court tends to consider them together within Article 1 of the first Protocol.658 The first norm establishes the principle of peaceful enjoyment of property.659 The European Court for Human Rights has specified that this first norm applies exclusively to expropriations, in cases where compensation is not determined or if compensation is not actually awarded.660 Similarly, the Court has found that the first norm applies when ‘fluidity’ and ‘uncertainty’ are a result of the interference and the aim of the questioned national measure.661

656  ECtHR 28 September 2004 (GC), Kopecky v. Slovakia, para. 52; ECtHR 6 October 2005 (GC), Draon and Maurice v. France, para. 66. 657  ECtHR 23 September 1982, Sporrong and Lönnroth v. Sweden, para. 61 (emphasis added) (Sporrong and Lönnroth case): “That Article (Article 1 of the first Protocol) comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph. The Court must determine, before considering whether the first rule was complied with, whether the last two are applicable.” (Emphasis added) 658  ECtHR 21 February 1986, James and Others v. UK, para. 37 ( James and Others case): “The three rules are not, however, ‘distinct’ in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule.” 659  This norm has also been labelled “norme floue” (blurred norm), “norme balai” (sweeping norm) (see L. Rozakis and P. Voyatzis (2006), p. 7) or “catégorie résiduelle” (residual category) (see T. Allen (2005), p. 107) because it seems, at first sight, to be defined negatively. 660  ECtHR 4 November 2004, Geraldes Barba v. Portugal Application No. 61009/00, paras. 46–47. 661  This ‘fluidity’ or ‘uncertainty’ criterion is also a feature used when qualifying property (for example intangible property), see Ch. L. Rozakis and P. Voyatzis (2006), pp. 12–13.

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Moving from the first to the second and third norms, the distinction between the latter two is made along two criteria. The first and main criterion is quantitative (the consequence of the interference), the second and complementary criterion is qualitative (the aim pursued by the interference). The consequence of the deprivation of property (second norm) is the definitive and complete dispossession of a possession right or interest. There must be a complete and irreversible rupture in the legal relationship that links the object of the right or interest (the possession) and the entitled person. On the contrary, when some elements of the right that result from the possession are infringed but not left entirely without substance, the interference is qualified as control of use of property (third norm). The same applies when the person entitled to the right still retains a legal link with the property. When the aim pursued is of general interest, the norm to be applied is the second one, whereas when the aim pursued by the State’s interference is part of social and economic policies run by the State, the third norm applies.662 The International Liability Regime is not Compatible with the Right to Property: A Conflict Case 3.2.4.1 Two Cases on Limited Responsibility and Oil-spills: The Pressos and Mangouras Cases The author has introduced the international regime at stake and Article 1 of the first Protocol of the European Convention on Human Rights above. In this section, the author proceeds with assessing the international liability regime against the right to property. Two cases are worth mentioning from the outset. First, matters relating to oil-spills have already appeared before the European Court for Human Rights. The Mangouras v. Spain case663 relates to the bail applied to the master of the Prestige, Mr Mangouras. In this instance, the level of environmental damage interfered when the Court assessed whether the State could justify the setting of the bail on the disastrous and large scale effects caused by the oil spill disaster. The underlying question was whether environmental damage, as a fact, could be one of the triggering elements when setting the amount of the bail. The Court has applied two distinct lines of reasoning. 3.2.4

662  H. Vanderberghe (2006), p. 35. Françoise Tulkens elaborates on this point, stating that the distinction between the dispossession and regulation of property seems to be of a quantitative nature (the degree of the State’s interference) rather than of qualitative nature (the nature of the State’s interference). See F. Tulkens (2006) pp. 65–66, where she quotes ECtHR 19 June 2006 (Grand Chamber), Hutten-Czapska v. Poland, para. 160. 663  ECtHR 28 September 2010 (GC), Mangouras v. Spain.

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The court has underlined the “marine pollution on a seldom-seen scale causing huge environmental damage” (para. 88), the “national and international disaster caused by the oil spill” and the “public outcry” (para. 85). These factors have been found crucial to recognise as a “primary objective” the presence of the applicant and hence, one element of the fair balance equation. In this respect, the Court has been particularly eloquent and clear when referring to the protection of the environment as an emerging demand, as the Court repeatedly mentions in environmental affairs, but also to the emerging demand in Europe and internationally “in relation to environmental offences” (para. 86). A “tendency can also be observed to use criminal law as a means of enforcing the environmental obligations imposed by European and international law” (para. 86). These “new realities” (para. 87) have to be taken into account when interpreting the Convention’s provisions, Article 5(3) in this case (para. 87). Furthermore, the Court recognises that using environmental offences as a means of enforcing environmental obligations reflects “fundamental values of democratic societies” (para. 87). This means that the enforcement of environmental obligations is of particular importance in the fair balance equation. However, the Court limited these factors as factual data influencing the level of bail, since “the judicial authorities should adjust the amount required by way of bail in line with the level of (civil and criminal) liability incurred” (para. 88), and in this case “large sums of money are at stake” (para. 88). Accordingly, the amount of bail did guarantee the effectiveness of environmental offences provisions. Overall, this case is not very useful in the subsequent developments: the case was mainly concerned with Article 5(3) of the European Convention on Human Rights, where as in the subsequent developments the focus is on Article 1 of the first Protocol. The second case is much more relevant. In assessing the international regime against the requirements of Article 1 of the first Protocol, the Pressos Compania Naviera S.A. and Others v. Belgium case (Pressos case)664 is relevant since limited responsibility regarding maritime activities was challenged. Pursuant to the Belgian Act of 3 November 1967 on the piloting of sea-going vessels (1967 Act) and the treaties concluded between Belgium and the Netherlands, merchant ships that enter the Scheldt estuary must have on board a pilot with a license issued by the Belgian or Dutch authorities. In Belgium, the piloting of sea-going vessels is a public service organised by the State in the interest of shipping. In practice, pilot services 664  ECtHR 20 November 1995, Pressos Compania Naviera S.A. and Others v. Belgium (Pressos case).

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for maritime and river navigation are provided either directly by the State or by private companies acting under a license.665 The 1988 Act exempted the State and other organisers of pilot services from liability for negligent acts for which they could have been answerable, while the liability of a staff member of the Belgian pilot service, for damage caused by his gross negligence, was limited to five hundred thousand francs for each incident giving rise to such damage.666 The applicants in the Pressos case were ship-owners, mutual shipping insurance associations and insolvency administrators. They claimed that through the above-quoted requirement, Belgium imposed on them an excessive burden. They argued that exempting the organiser of a pilot service from liability for negligence on the part of its staff, limiting the liability of the latter and retrospectively extinguishing without consideration any claims for compensation which the applicants may have had against the Belgian State or against private companies offering pilot services for casualties occurring before 17 September 1988, did upset the fair balance between the demands of the general interest and the requirements of the protection of their right to the peaceful enjoyment of their possessions. The government claimed that the Act was not only inspired by financial considerations, but also harmonisation considerations. The government claimed that bringing Belgian law in line with the law of neighbouring countries could warrant prospective legislation in this area to derogate from the general law of tort. The Court concluded that the objective of this national interference could not justify “depriving the applicants of their claims for compensation”. Accordingly, 665  Ibid. paras. 9–10. 666  Act of 3 November 1967 on the piloting of sea-going vessels, Section 3 bis. reproduced in the Pressos Judgment, para. 16 provides: “The organiser of a pilot service cannot be held directly or indirectly liable for damage sustained or caused by the ship under pilotage, where such damage is the result of the negligence of the organiser himself or one of his staff acting in the performance of his duties, irrespective of whether the negligence in question consists of an act or omission. Nor can the organiser of a pilot service be held directly or indirectly liable for damage caused by a malfunction or defect in the equipment owned or used by the pilot service for the purpose of supplying information or instructions to the sea-going vessels. (. . .) The ship shall be liable for the damage referred to in the first paragraph. A member of staff (of the pilot service) who, by his act or omission, caused the damage referred to in the first paragraph above shall be liable only in the event of a deliberately tortuous act or gross negligence. The liability of a member of staff for damage caused by his gross negligence shall be limited to five hundred thousand francs for each incident giving rise to such damage.”

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[s]uch a fundamental interference with the applicants’ rights is inconsistent with preserving a fair balance between the interests at stake. As a consequence, the national interference “infringed the second sentence of the first paragraph of that Article (Article 1 of the first Protocol).”667 In this significant case, the Court did conclude on the violation of Article 1 of the first Protocol. The case is significant since it covers limited liability matters and, more specifically, limited liability in the maritime field. It is interesting to note that in his dissenting Opinion, Judge Thor Vilhjalmsson acknowledged that the applicants were questioning the conformity to limited liability rules, when they themselves benefitted from such limited liability rules. He agreed with the majority of the Court that the claims presented by the applicants were possessions within the meaning of Article 1 of the first Protocol. But he disagreed with the conclusion drawn from applying the proportionality test. In his dissenting Opinion he exposed that in his view it is significant that maritime law (and its rules on damages) is a branch of law in which many specific considerations apply. Very high sums of money are often involved in disputes in this field and insurance cover plays a major role. Ship-owners are also protected by rules on limited liability. Ironically, it is precisely these latter rules that are challenged below against right to property. A conflict is identified. Before analysing which norm would apply in an oil pollution claim and questioning the horizontal effect (i.e. cases that arise between private parties, as opposed to a case having a vertical effect, i.e. between a State and a private person) of Article 1 of the first Protocol, the author assesses in the subsequent sub sections whether the European Court of Human Rights would legally define a claim for compensation in the framework of the international civil liability regime as a possession, and whether the Court would recognise the interference.

667  Ibid. at para. 43 (emphasis added).

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3.2.4.2

The Application of Article 1 of the First Protocol: Legal Definition of Possession and Horizontal Effect Tackling firstly the issue of how the European Court of Human Rights addresses the issue of possession with regards to compensation claims668 with a view to having a case falling within the jurisdiction of the Court, the Court ruled in Pressos that: The rules in question are rules of tort, under which claims for compensation come into existence as soon as the damage occurs. A claim of this nature ‘constituted an asset’ and therefore amounted to ‘a possession within the meaning of the first sentence of Article 1 (of the first Protocol). This provision (Article 1 of the first Protocol) was accordingly applicable in the present case.669 For an oil pollution claim, the rules in question are those set by the international civil liability regime. This regime establishes a liability mechanism under which, just like in the Pressos case, “claims for compensation come into existence as soon as the damage occurs”.670 Hence, the Court would, mutatis mutandis, recognise the legal definition of possession in an oil pollution claim. Another aspect related to the definition of property is whether compensation for damage to res communes would be qualified as falling within the scope of application of right to property as guaranteed by Article 1 of the first Protocol. It has been seen in section 1.2.6 that the Court reaffirmed in its later case law that the European Convention on Human Rights does not guarantee the right to an environment free from pollution as such. Nevertheless, the question addressed in this chapter is slightly distinct. The question is not whether the Court sanctions States party to the European Convention on Human Rights that do not sufficiently regulate activities which can harm environmental values, do not ensure compliance with existing regulations, or ensure compliance with judicial authorities’ decisions that either sanction a lack of compliance with environmental regulations or call for preventive 668  It has been seen above that this is an autonomous notion in the context of the European Convention on Human Rights. 669  See ECtHR 20 November 1995, Pressos case, para. 31. 670  See Civil Liability Convention, Article 3(1) provides: “Except as provided in paragraphs 2 and 3 of this Article, the owner of a ship at the time of an incident, or, where the incident consists of a series of occurrences, at the time of the first such occurrence, shall be liable for any pollution damage caused by the ship as a result of the incident.”

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measures to be adopted. The question addressed in this chapter is rather whether the Court legally defines harms resulting from damage to res communes as falling within the scope of Article 1 of the first Protocol. Would there be a violation of the European Convention on Human Rights if national law were to exclude the application of liability rules in case of harm to res communes? As has been seen in chapter 1, this is not the case. Which means that the following developments will stem from right to property’s “traditional” approach, i.e. “property value”. In this case, the focus will be on monetary compensation, which in turn will call for attention to be directed to the Fund’s management of claims. The second issue with regards to the application of right to property in the framework of compensation claims is the question of whether Article 1 of the first Protocol would apply given the horizontal character of the case, i.e. between private persons. As the Court stated in the Sovstransavto case, Article 1 of the first Protocol applies also in horizontal relationships. The horizontal effect does not preclude the application of the requirements that flow from Article 1 of the first Protocol.671 3.2.4.3

From being Party to an International Convention to the Recognition of Interference on Behalf of a State That being said, would the Court would recognise the existence of interference with the right to property. If an oil pollution claim was made in France—as was the case for example regarding the Erika accident, the national measure in play would be French law No. 94-478 (which permitted France to become party to the Civil Liability Convention).672 671  See ECtHR 25 July 2002, Sovtransavto Holding, para. 96 (emphasis added): “As regards the right guaranteed by Article 1 of Protocol No. 1, those positive obligations may entail certain measures necessary to protect the right of property (. . .), even in cases involving litigation between individuals or companies. This means, in particular, that the States are under an obligation to afford judicial procedures that offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any disputes between private persons.” 672  Law No. 94-478 dated 10 June 1994, JORF n°134, 11 June 1994, p. 8450, found at . Its unique article reads as follows: “Article unique.—Est autorisée l’approbation du protocole modifiant la convention de Bruxelles du 29 novembre 1969 sur la responsabilité civile pour les dommages dus à la pollution par les hydrocarbures, fait à Londres le 27 novembre 1992, et dont le texte est annexé à la présente loi.”

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First, one must determine if and how interference can be found under the European Convention on Human Rights on the basis of the exemption of some actors of maritime activities from liability: would the Court legally define the substance of the French national law as interference? Second, one must determine if, beyond the international nature of the international civil liability framework, the French law allowing France to become a party to the Convention falls under the jurisdiction of the Court. What is at stake is the source of the national interference: would the Court recognise a French interference even though the French law has its source in an international treaty? As for the legal definition of the interference itself, once again the Pressos case clarifies the applicable principles. Paragraph 34 of the decision reads as follows: The Court notes that the 1988 Act exempted the State and other organisers of pilot services from their liability for negligent acts for which they could have been answerable. It resulted in an interference with the exercise of rights deriving from claims for damages which could have been asserted in domestic law up to that point and, accordingly, with the right that everyone, including each of the applicants, has to the peaceful enjoyment of his or her possessions.673 As mentioned earlier, the Civil Liability Convention sets the channelled liability of the ship-owner in Article 3(4).674 It follows from this article that none of the maritime actors listed in that section can be held civilly liable for pollution on grounds of “the Convention or otherwise.” This clearly provides an exemption from liability, which was found as interference by the Court in the Pressos case. Consequently, there are grounds to assume that the Court would recognise the interference in this case if it applied the reasoning it had in the Pressos case. Questions must be asked regarding the jurisdiction of the Court to consider national interference (and therefore questioning the nature of the relevant law). What could be difficult in an oil pollution claim is the fact that the measure in question allows, for example, France (in the Erika case) to become a contracting party to an international treaty. It is the substantive content of this international treaty that has to be applied in the national legal system that would be challenged by the claimant as infringing the European Convention 673  ECtHR 20 November 1995, See Pressos case, para. 34. 674  See Civil Liability Convention, Article 3(4).

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on Human Rights. Does such a national measure fall under the jurisdiction of the Court? Under the text of the European Convention on Human Rights, “[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”.675 As for the issue of jurisdiction, the Bosphorus case676 sets out the principle that jurisdiction is primarily of a territorial nature.677 In assessing whether an international measure can be considered to fall under the Court’s jurisdiction, it is useful to recall that an international treaty to which France is a party is binding under the French legal system. The French Constitution recognises the primacy of international law over national law678 and this primacy binds national judges. In addition, the rules set up by the European Court of Human Rights regarding its own jurisdiction when dealing with international law were confirmed in the Bosphorus case,679 where the Court concluded that a State party to the Convention has to respect the Court’s requirements, including the “treaty commitments subsequent to the entry into force of the Convention (the European Convention on Human Rights)”.680 675  See European Convention of Human Rights, Article 1. 676  ECtHR 30 June 2005 (GC), Bosphorus Hava Yollari Turizm ve Ticaret Anonim irketi v. Ireland; on this ruling see C. Eckes, (2007). 677  ECtHR 30 June 2005 (GC), Bosphorus,,Hava Yollari Turizm ve Ticaret Anonim irketi v. Ireland, (2006), para. 136. 678  French Constitution dated 4 October 1958, Article 55 found at . (page visited on 23.08.2009), reads: “Les traités ou accords régulièrement ratifiés ou approuvés ont, dès leur publication, une autorité supérieure à celle des lois, sous réserve, pour chaque accord ou traité, de son application par l’autre partie.” 679  See ECtHR 30 June 2005 (GC), Bosphorus case, where it was EC law resulting from international commitments. 680  See Bosphorus case, para. 154. More particularly, the ECtHR stated at paras. 152–153: “The Convention does not, on the one hand, prohibit Contracting Parties from transferring sovereign power to an international (including a supranational) organisation in order to pursue cooperation in certain fields of activity. (. . .) On the other hand, it has also been accepted that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s ‘jurisdiction’ from scrutiny under the Convention.” (Emphasis added)

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Applying these principles to an oil pollution claim brought in France, it can be concluded first that treaty commitments resulting from the Civil Liability Convention are enforced and applied in French territory, given the French recognition of the primacy of international law over national law. Second, despite the international nature of the norm in question and the international source of the commitments questioned (indirectly) because of the national law allowing for ratification on behalf of France, the question of validity of French law No. 94-478 ought to fall under the jurisdiction of the Court. The Court could therefore consider French law No. 94-478 which allows France to become party to the Civil Liability Convention as a national interference with the rights guaranteed by the European Convention on Human Rights, despite the international dimension of the legal norm considered. Before performing the assessment exercise as such there remains to determine which norm applies in an oil pollution claim.681 In the Pressos case, the Court stated: The Court notes that the 1988 Act exempted the State and other organisers of pilot services from their liability ( . . . .) It resulted in an interference with the exercise of (. . .) the right that everyone . . . has to the peaceful enjoyment of his or her possessions.682 From this paragraph, it can be deduced that the first norm of Article 1 of the first Protocol (peaceful enjoyment of property) should apply because the exemption of liability constituted an interference with the exercise of rights deriving from claims for damages that could have been asserted in domestic law. Thus, arguably, the first norm would apply. The author can now go through the assessment of the conformity of national interferences against Article 1 of the first Protocol. Right to property 681  As seen above, Article 1 of the first Protocol contains three norms (rules). The ECtHR established this amongst others in ECtHR 23 September 1982, Sporrong and Lönnroth v. Sweden in para. 61: “Article (1 of the first Protocol) comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph. The Court must determine, before considering whether the first rule was complied with, whether the last two are applicable.” 682  See ECtHR 20 November 1995, Pressos case, para. 34.

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is not an absolute right: it can be limited as long as the national interference respects these three tests: lawfulness, general interest and fair balance (or proportionality).683 Procedural guarantees also have a role to play. In the Air Canada case,684 the Court developed and specified the procedural requirements for control of the use of property. Those settled requirements are also clearly set out in Jokela v. Finland, where the Court stated: Although Article 1 of Protocol No. 1 contains no explicit procedural requirements, the proceedings at issue must (. . .) afford the individual a reasonable opportunity of putting his or her case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision. In ascertaining whether this condition has been satisfied, a comprehensive view must be taken of the applicable procedure.685 This procedural requirement goes together with the positive obligation of the State to take measures in order to protect property in cases that arise between private persons (both natural and legal persons). Article 1 of the first Protocol can have a horizontal effect.686 3.2.4.4 The “Lawfulness Test”: Presumption of Conformity The first test applied by the Court against national measures endorsing the international regime is the “lawfulness test” (or legality requirement). The Court’s case law in respect of the legal basis and quality of law687 is applied to right to property. The State’s interference must have a legal basis in the 683  Whereas for an absolute right (such as provided for by European Convention on Human Rights, Article 3—prohibition of torture) to be infringed, the mere national interference constitutes an infringement of the ECHR’ requirements. When assessing national measures against Article P1-1 requirements, Schutte (2006) states p. 226 that “[b]oth the ECtHR (European Court on Human Rights) and the ECJ (European Court of Justice) have repeatedly emphasised that the right to property is not an absolute right, limitations to that right can be justified under certain conditions. In its Beyeler judgment, the Court allowed such limitations on the condition that they pass the ‘lawfulness test’, the ‘general interest test’, and the ‘fair balance test’.” 684  ECtHR 5 May 1995, Air Canada v. UK. 685  ECtHR 21 May 2002, Jokela v. Finland, para. 45. 686  ECtHR 25 July 2002, Sovtransavto Holding v. Ukraine, para. 96 (Sovtransavto Holding case). 687  This case law was developed by the European Court of Human Rights in the context of the Convention’s Article 8—right to respect for private and family life; Article 9— freedom of thought, conscience and religion; Article 10—freedom of expression; and Article 11—freedom of assembly and association, see F. Tulkens (2006), p. 79.

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national order and that this legal basis must be in line with the norms that are superior to it.688 The law must be accessible, precise, predictable and clear.689 This body of requirements goes together with a procedural requirement: there must be the possibility in the national legal system for the claimant to effectively challenge the national interference. The claimant must have access to a procedure that enables him or her to defend his or her economic interests.690 In order to be legitimate the State’s interference must have a legal basis in the national order. This legal basis must be in line with the norms that are superior to it. If the author takes the example of an oil pollution claim which commenced in France in the aftermath of the Erika oil-spill, the interference (law No. 94-478) was adopted in line with Article 53 of the French Constitution. Hence, law No. 94-478 has a legal basis in the national order and is in line with the Constitution—a superior norm. Second, the law must be accessible, precise, predictable and clear.691 The author will take those requirements as fulfilled in order to focus on the ‘fair balance test’. Indeed, most cases in which the Court has found a European Convention on Human Rights violation are grounded on this test, as that is where the Court assesses the substance of national authorities’ interference. Also, this enables the author to focus on the substance of the international liability rules. Finally, Article 1 of the first Protocol contains a procedural requirement: there must be the possibility in the national legal system for the claimant to effectively challenge the regulation by having access to a procedure that enables the claimant to defend his or her economic interests. Does the international liability regime provide sufficient guarantees in this regard? To what extent does this system reflect the requirements for such a review, and for a balanced assessment of all the interests at stake? The claimant must be in a position to effectively challenge the measures and be enabled to defend his or her economic interest.692 The applicants could bring such an argument before the Court and defend the claim that the international liability framework does not fulfil the European Court of Human Rights’ requirements when it comes to right to a fair trial. However, the focus of this chapter is not on that aspect, but 688  ECtHR 30 June 2005 (GC), Jahn and Others v. Germany, para. 81 ( Jahn and Others case). 689  C. Ovey and R. White in Jacobs and White (2006), p. 360; amongst others ECtHR 22 September 1994, Hentrich v. France, para. 42. 690  ECtHR 12 December 2002, Wittek v. Germany, 12 December 2002 (2005), para. 55. 691  See for example ECtHR 26 October 2000, Hassan and Tchaouch v. Bulgaria (2000), para. 84. 692  ECtHR 12 December 2002, Wittek v. Germany, para. 55.

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rather on right to property’s substantive content, the general interest test and the fair balance test. Overall, and even though this test could be elaborated on and challenged at more length, the author considers the lawfulness test passed in order to focus on the tests that discuss the substance of the international environmental liability norms. 3.2.4.5 The “General Interest Test”: Presumption of Conformity The second test to be fulfilled by the rules contained in the international regime is the “general interest test”. To fulfil the general interest test, the State must ground the interference on a reasonable basis.693 A State may invoke a measure in line with a legitimate policy (be it social or economic).694 When it operates the general interest test (or legitimate aim test), the Court’s discretion is limited,695 particularly when dealing with issues regarding the use of property (Article 1 of the first Protocol, 3rd norm). Any objective satisfying the general interest test is sufficient for the State to pass the test.696 The Preamble of the Civil Liability Convention provides:697 The States Parties to the present Convention, Conscious of the dangers of pollution posed by the worldwide maritime carriage of oil in bulk,

693  It can be pointed out here that the notions of public interest and general interest are considered to be the same under the Court’s settled case law. See, amongst others, James and Others case, para. 43; ECtHR 20 July 2004, Bäck v. Finland, para. 53; quoted by F. Tulkens (2006), p. 70. 694  These include granting a license for the sake of economic and technologic development (4 October 1990, Application No. 12633/87 (dec.), Smith Kline and French Laboratories Ltd. v. Netherlands (unreported)), measures ensuring the economic welfare of the state (ECtHR 20 November 1995, Pressos case, para. 37), social measures broadly understood (30 November 1992, Application No. 18969/91 (dec.), Ollila v. Finland), measures regarding public works, land planning and the environment, agricultural policy, public health, public security, artistic and cultural patrimony. 695  ECtHR 30 June 2005 (GC), Jahn and Others v. Germany, paras. 45 and 91; ECtHR 6 October 2005 (GC), Draon and Maurice v. France, paras. 75–83. 696  Nature protection: ECtHR 18 February 1991, Fredin v. Sweden, para. 48; housing policy: ECtHR 19 December 1989, Mellacher and Others v. Austria, para. 47; measures fighting drugs traffic: ECtHR 5 May 1995, Air Canada v. UK, 5 May 1995, para. 42. 697  See Fund Convention, Preamble.

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Convinced of the need to ensure that adequate compensation is available to persons who suffer damage caused by pollution resulting from the escape or discharge of oil from ships, Desiring to adopt uniform international rules and procedures for determining questions of liability and providing adequate compensation in such cases, Have agreed as follows. One can expect the Court to consider the measure’s goal expressed in the Civil Liability Convention Preamble as being justified on a reasonable basis and, accordingly, as fulfilling the general interest test.698 3.2.4.6

General Functioning of the “Proportionality Test”: Rule, Principles, and Application Criteria The third test to assess the conformity of an interference with Article 1 of the first protocol is the “proportionality test”. The author devotes more developments to this test for this is where the Court would scrutinise the substance of the international regime at more length. When it applies the fair balance test (or proportionality requirement), the Court answers the following questions: has a fair balance been reached when considering the objective of the measure and the interference’s consequences for the individual’s fundamental rights? Until the Sporrong case, the Court’s role was limited to addressing issues of legality and legitimacy. In the Sporrong case, this changed. The Court highlighted clear and important features that have since then become guiding factors for the Court regarding Article 1 of the first Protocol: [T]he Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (. . .). The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of Article 1 (of the first Protocol).

698  Even though the community as a whole does not get from the national measure any direct advantage: see ECtHR 24 June 2003, Allard v. Sweden, para. 52. See also ECtHR 26 March 1979, Sunday Times v. the United Kingdom, para. 62; ECtHR 24 November 1986, Gillow v. the United Kingdom, para. 55 and ECtHR 22 October 1981, Dudgeon v. the United Kingdom, para. 51.

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The Agent of the Government recognised the need for such a balance. At the hearing on the morning of 23 February 1982, he pointed out that, under the Expropriation Act, an expropriation permit must not be issued if the public purpose in question can be achieved in a different way; when this is being assessed, full weight must be given both to the interests of the individual and to the public interest.699 The intensity of this proportionality requirement differs depending on which norm of Article 1 of the first Protocol applies.700 Indeed, in respect of the 3rd norm (control of the use of property) and parallel to the States’ wider discretion as to the determination of a legitimate goal when dealing with the control of the use of property (as seen above), the role of the Court is reduced when dealing with the fair balance requirement. States enjoy a wide margin of discretion in order to assert the adequacy of the interference in light of the purpose to be reached. Accordingly, the width of compensation would be less scrutinised.701 When assessing national interference in terms of the 2nd norm (deprivation of possession and subjection of possessions to certain conditions) or the 1st norm (peaceful enjoyment of property) the Court’s role in assessing whether the interference is proportional to the purpose of the interference is wider. With a view to schematising, proportionality is assessed according to five criteria. They are: 1. 2.

The seriousness of the State’s interference and the interests that are at stake. The seriousness of the measure must be proportionate with the interests at stake, the interests being globally assessed by the Court. In order to fully assess the interests, the Court keeps in mind that the European Convention on Human Rights is meant to protect concrete and effective rights. The Court must assess the concrete reality of the situation.702

699  See Sporrong and Lönnroth case, para. 69; for a similar approach, see James and Others case, para. 50. 700  T. Allen, Property and the Human Rights Act 1998 (2005), p. 107, quoted in Ch. L. Rozakis and P. Voyatzis (2006), p. 24. 701  The Chassagnou case (ECtHR 29 April 1999—Grand Chamber), Chassagnou and Others v. France, para. 85) was the first one to realise the proportionality requirement’s potential for interference regulating the use of property. 702  ECtHR 19 June 2006 (Grand Chamber), Hutten-Czapska v. Poland case, para. 168 and ECtHR 22 June 2004 (Grand Chamber), Broniowski v. Poland, para. 151.

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With regards to the first norm of Article 1 of the first Protocol, the assessment of proportionality is stricter if the property at stake becomes unstable.703 3.1 As a form of the instability giving ground to the applicability of the first norm, uncertainty is another element considered by the Court in assessing whether or not proportionality is respected. Uncertainty can be found when an unreasonable amount of time elapsed before definitive compensation was awarded704 or before the legal situation of the property was clarified (for example will my property be expropriated?). Uncertainty can also be found when the State does not take the measures that would have effectively protected the property.705 3.2 The Court also takes the social function of the property into account. In this respect, the Court has not only produced a body of case law in the field of social welfare, but also in the field of human rights law related to possession issues. Indeed, in Dogan and Others v. Turkey,706 the Court recognised the right to earn a living by work through the protection of the working means or tools. The fifth criterion applied by the Court relates back to the harm suffered, together with the possibility to obtain compensation. 4.1 The reasonable compensation requirement is assessed according to whether the compensation is in line with the property’s value.707 In this respect, the State is entitled not to compensate for the full value of the property if the interference takes place in the context of a political or economic reform. 4.2 Compensation must take place within a reasonable time period (hence applying a link with procedural requirements).708 National courts must take into account the whole process of awarding compensation when they grant compensation. When the whole process is excessively long, the national Courts must raise compensation

703  See H. Vanderberghe (2006), pp. 25–28. 704  ECtHR 11 January 2000, Almeida Garrett, Mascarenhas Falcao and Others v. Portugal, paras. 54–55. 705  ECtHR 29 June 2004, Dogan and Others v. Turkey, para. 154. 706  Ibid. 707  See James and Others case, para. 54; ECtHR 29 March 2006 (Grand Chamber), Scordino v. Italy (n°1), para. 96. 708  ECtHR 9 July 1997, Application No. 19263/92, Akkus v. Turkey, para. 29.

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accordingly. A particularly long delay in paying the compensation makes the financial burden heavier and places the victim in a situation of uncertainty.709 As a consequence, the time between the moment when the compensation was awarded and when it was effectuated constitutes a distinct prejudice.710 4.3 National law’s lack of clarity or its uncertainty: if the national law lacks clarity,711 this—together with a wide margin of discretion left by the law to public authorities—will be taken into account when assessing whether the law is in line with the fair balance requirement.712 4.4 The Court established in the Papachela case is that if the internal norm is excessively rigid, the State cannot properly take into account the diversity of the private persons’ situations. The Court concluded in that case that the internal norm lacked both legal bases and proportionality.713 4.5 In the Biozokat case, the Court estimated that since the affected owners had to multiply the national procedures in order to qualify for compensation, the fair balance was broken. As far as the first norm is concerned, the main rule to operate the fair balance test is articulated as follows. First, the severity and gravity of the State’s interference must be taken into account and compared with the interests at stake. The gravity of the measure must be proportionate with the interests at stake, those interests being globally assessed by the Court. To do this, the Court must go beyond mere appearances and look for the reality of the situation to be dealt with. In this respect, the Court may find that the international liability regime does not pay sufficient attention to the particular interests of the victims of an oil spill. Since the outcome of this confrontation is subjective, unpredictable, 709  ECtHR 19 May 2004, Application No. 42432/98, Koçak v. Turkey, para. 14. 710  ECtHR 10 April 2001, Application No. 19282/92, Günal v. Turkey, para. 30. 711  As long as this feature does not constitute interference qualified as unpredictable nor arbitrary and ipso facto contrary to the Court’s requirements. 712  ECtHR 5 January 2000 (Grand Chamber), Beyeler v. Italy, paras. 109–110; ECtHR 22 June 2004 (Grand Chamber), Broniowski v. Poland, para. 154; ECtHR 21 July 2005, Strain v. Roumania, para. 49; ECtHR 24 May 2005, Application No. 61302/00, Buzescu v. Romania, 24 May 2005, para. 92. The cases are quoted by H. Vanderberghe (2006), p. 44. 713  ECtHR 25 March 1999, Papachelas v. Greece, para. 53; ECtHR 15 November 1996, Katikaridis v. Greece, para. 49; ECtHR 15 November 1996, Application No. 20680/92, Tsomtsos v. Greece, para. 40; ECtHR 9 October 2003, Application No. 61582/00, Biozokat v. Greece, paras. 28–32.

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and depend too much on the circumstances of each specific case. The author will focus solely on the harm suffered together with the possibility to obtain compensation. These criteria are more objective and reliable. 3.2.4.7

Considering the Harm Suffered and the Possibility to Obtain Compensation in an Oil Pollution Claim The Court must assess the harm suffered together with the possibility for the victim to obtain compensation. As seen above, the interference cannot be proportional when there is no reasonable compensation.714 Compensation is adequate as long as it reasonably reflects the value of the property715 and is awarded within a reasonable time frame.716 Furthermore, when assessing whether compensation is adequate and in establishing the stringency of the assessment it operates, the Court takes two features into account: the Court’s assessment is stricter if (a) the property at stake becomes precarious or uncertain, and (b) the possession in question has a social function. Since these two criteria (uncertainty and social function) restrict the States’ discretion in setting the compensation and accordingly allow the Court to operate a more stringent assessment, one may wonder whether they can be found in an oil pollution case. Regarding uncertainty, one must look at the design and actual functioning of the international liability regime to assess whether an applicant for compensation can reasonably expect the stringent assessment of the Court. First of all, as mentioned earlier and as stated on the Fund’s website, some 8 years after the Erika spill took place, not all the claimants had seen their claims screened. Second, the Fund itself recognises uncertainty as to the total number of admissible claims. Such uncertainty justifies (according to the Fund) the limitation of the payments to a percentage of the loss or damage actually suffered, and uncertainty diminished the payments that in the Erika case were completed by April 2003, that is to say more than 3 years after the accident.717 Thus, the level of compensation was determined by the number of admissible complaints and based on the total amount of money available to compensate all the 714  See James and Others case, para. 54; ECtHR 8 July 1986, Lithgow and Others v. UK, para. 120. 715  ECtHR 29 March 2006 (Grand Chamber), Scordino v. Italy (n°1), paras. 93, 96, 101, 102. 716  ECtHR 14 November 2000, Piron v. France, para. 43. 717  See IOPCF, International Oil Pollution Compensation Fund, ‘Erika France, 12 December 1999’ (IOPCF, undated): “Initially, as a result of the uncertainty as to the total amount of the admissible claims, the Fund had to limit its payments to a certain percentage of the loss or damage actually suffered by the respective claimants. However, as that uncertainty diminished, the level of payments for claimants other than the French Government and Total SA was increased to 100% in April 2003.”

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complainants. Also, the exact boundaries of “pollution damage” are vague. This vagueness raises concerns in terms of uniform application and, accordingly, uncertainties.718 National Courts do retain a wide interpretation, while the Fund retains a strict interpretation. Such strict interpretation is put forward in one of the Fund’s Resolutions: Resolution no. 3 dated 1980. Here again, some uncertainties arise: what is the exact legal nature of the Fund’s Resolutions? This issue is discussed by E. H. P. Brans.719 The same author highlights that these particular uncertainties mostly vanished with the 1992 Protocols to the Civil Liability and Fund Conventions. Nevertheless, and still as put forward by E. H. P. Brans, some uncertainties do remain.720 Based upon all these elements, the Court may find uncertainty in the way that the international liability regime grants and determines compensation. As for the social function, an oil pollution claimant can seek to have this value attached to his possession since what is at stake here would likely be the claimant’s working tools and loss of income (for instance, for a fisherman affected by oil pollution this would include fishing nets, boat, and pure economic loss suffered because of the pollution of the sea and the impossibility to fish). From these developments the author can reasonably conclude that the Court may recognise both uncertainty and the property’s social function. Therefore, the Court’s discretion would be wider than it is, in principle, in the context of Article 1 of the first Protocol. The next question to ask is: does the compensation awarded by the international liability regime qualify as adequate, and hence fulfil the Court’s requirements regarding proportionality? Compensation is adequate as long as it reasonably reflects the value of the property and is awarded within a reasonable timeframe. As noted 718  On a side note, some authors do welcome such uncertainty labelled as “flexibility” that “enabled the Fund to develop to a large extent its own doctrine in respect of liability and compensation for oil pollution damage”, as advocated by W. Oosterveen (2006), p. 254. On flexibility, see also ibid. p. 253. 719  E. H. P. Brans (2001), pp. 340–344. 720  Ibid. p. 346: “Although the new definition is of damage is more specific, when the Fund rejects a claim and the claimant brings his claim to a national court, it is up to the court to decide on the interpretation and application of the wording of the definition. In this regard, courts will be confronted with difficult issues in some cases. For example, what is the ultimate goal of the restoration measures, what are reasonable measures of reinstatement and what about claims for irreparable harm?”

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above, the author can highlight the fact that not all complainants had seen their cases screened by the Fund after almost 10 years. Moreover, for those who have seen their cases screened by the Fund, there has been a delay in the receipt of compensation because of the limited amount available for compensation. The lengthy process of awarding compensation has not been taken into account by the Fund when awarding compensation, nor has the time elapsed between the award of compensation and its effective payment. Furthermore, claimants are not allowed to challenge the liability of maritime actors listed in the Civil Liability Convention’s Article 3(4) on the grounds of common rules of tort, even though this could enable them to get full compensation for their loss or damage. Finally, the compensation mechanism is rigid: no account is taken of the diversity of situations because of the equal treatment and pro-rata exercises. Considering these findings against the requirements of the Court in respect of compensation together with the expected wide margin of discretion of the Court and the States’ reduced discretion indicates that compensation may be found to be inadequate. Hence, there would be reasonable grounds for the Court to find that law No. 94-478, which enables France to be party to the international liability regime, does not fulfil the proportionality requirement. This case is therefore a conflict case: the international regime deferred to in Directive 2004/35 conflicts with Council of Europe human rights requirements. The consequences of the conflict are presented in the subsequent section. (No)Compatibility of the International Regime with Right to Property: Consequences for Directive 2004/35 3.2.5.1 The (No)Compatibility Finding Extended to the Other Conventions Deferred to The conclusions of the former section can be applied by analogy to the other international law regimes that endorse similar mechanisms of limited responsibility listed in Annex IV of Directive 2004/35 and deference is also devoted to these five Conventions (Directive 2004/35 preserves their application and will not apply in as much as these Conventions do apply).721 3.2.5

The first Convention is the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous 721  See E. H. P. Brans (2001), p. 311, and more specifically footnote no. 3 therein. Nuclear related liability instruments are not listed and described below, with the view to focusing on fields related to the maritime transport.

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and Noxious Substances by Sea. An International Conference organised by the International Maritime Organisation in London in May 1996 adopted the Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea. The Convention has not entered into force yet, because of an insufficient number of ratifications. With a view to addressing the problems that prevented some States from ratifying the Convention, a second International Conference held in April 2010 adopted a Protocol to the Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (2010 Protocol).722 The Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea as amended by the 2010 Protocol endorses mechanisms similar to those of the international regime assessed above. Strict responsibility is channelled to the ship-owner (Article 7—1st tier). The ship-owner’s liability is limited financially (Article 9(1)). The ship-owner will be obliged to maintain insurance to cover his liabilities under the Convention (Article 9(3)). A compensation fund (the Fund) will be established once the amended Convention enters into force. The Fund will provide additional compensation when the victims do not obtain full compensation from the ship-owner or his insurer (2nd tier). The Fund will be financed by contributions paid by receivers of hazardous and noxious substances by sea, transported by sea to the ports and terminals of Member States (2nd tier). The Convention will apply to the following heads of damage (Article 3): loss of life or personal injury on board or outside the ship carrying the hazardous and noxious substances, loss of or damage to property outside the ship, economic losses resulting from contamination, for example in the fishing, mariculture and tourism sectors, costs of preventive 722  According to Article 21 of the 2010 Protocol, the 2010 Protocol will enter into force 18 months after the date on which it is ratified by at least twelve States, including four States each with not less than 2 million units of gross tonnage, and having received during the preceding calendar year a total quantity of at least 40 million tonnes of cargo that would be contributing to the general account. Once the 2010 Protocol will enter into force, the 1996 Convention, as amended by the 2010 Protocol will be called: “the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010” (2010 Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea). On the signature by Denmark (dated 14 April 2011) see A. Gouritin (2011). It can be specified that when considering which modifications to Directive 2004/35 should be proposed, the European Commission is to take into account, inter alia, the fact that some international regimes have not entered into force (Article 8(3)(a)).

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measures to prevent or minimise damage, for example clean-up operations at sea and onshore, and costs of reasonable measures of reinstatement of the environment.723 Uncertainty regarding the Fund’s functioning is complete, since “The Fund is expected to function similarly to the International Oil Pollution Compensation Funds” (emphasis added).724 The 1989 Convention on Civil Liability for Damage Caused During Carriage of Dangerous Goods by Road, Rail and Inland Transport Vessels adopted under the auspices of the Economic Commission for Europe of the United Nations is also listed in Annex IV of the 2004/35 Directive. The Convention was opened for signature on 1 February 1990. The Convention has not entered into force yet.725 Here again the mechanisms are very similar to the mechanisms studied and assessed above. Pollution damage is defined in Article 1(10) as meaning loss of life or personal injury on board or outside the vehicle carrying dangerous goods and caused by those goods; loss of or damage to property outside the vehicle carrying the dangerous goods caused by those goods, to the exclusion of any loss of or damage to other vehicles in the same train of vehicles or any loss of or damage to property on board such vehicles; loss or damage by contamination of the environment caused by the dangerous goods, provided that compensation for impairment of the environment other than for loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; the costs of preventive measures and further loss or damage caused by preventive measures. Article 1(10) specifies that “[w]here it is not reasonably possible to separate damage caused by the dangerous goods from that caused by other factors, all such damage shall be deemed to be caused by the dangerous goods”. Strict responsibility is in principle channelled to the carrier (Article 5). The carrier’s liability is financially limited (the so-called “ceiling”, Article 9). The carrier’s liability “shall be covered by insurance or other financial security” (Article 13) and “[a]ny claim for compensation under articles 5 or 6 may be brought directly against the insurer or other person providing financial security for the carrier’s liability or, in the case of a road vehicle to which the green 723  As clearly schematised in the International Maritime Organisation brochure dated September 2010 on the Convention, as modified by the 2010 Protocol, p. 3. The brochure is available on the HNS Convention website at http://www.hnsconvention.org/en/HNS%20 2010_e.pdf, page visited on 8 June 2011. 724  Ibid. 725  The Convention has two signatories (Germany and Morocco) and one party (Liberia).

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card system applies, against the insurer or the green card bureau of the State where the incident occurred” (Article 15). No Fund similar to the International Oil Pollution Compensation Funds or hazardous and noxious substances Fund is constituted. This is the main difference from the regimes described above. In this respect, the answers provided by some States to the 2001 questionnaire, sent by the Secretariat of the Convention on Civil Liability for Damage Caused During Carriage of Dangerous Goods by Road, Rail and Inland Transport Vessels with a view to exploring the reasons why States do not sign or ratify the Convention, provide useful insights in seizing States’ perception on the compulsory insurance scheme principle, channelled liability, and pollution damage.726 As appears from the answers received by the Secretariat, the absence of the second tier (i.e. a Fund) is crucial to understand the reluctance of States to sign and ratify the Convention.727 726  The questionnaire and the answers are available on the United Nations Economic Commission for Europe (UNECE) website at http://live.unece.org/trans/danger/publi/ crtd/crtddoce.html, accessed 8 June 2011. 727  In its answer (Economic Commission for Europe, Inland Transport Committee, Working Party on the Transport of Dangerous Goods, TRANS/WP.15/2001/17/Add.1, 23 February 2001, p. 2), Switzerland underlined that “the majority of insurance contracts concluded by Swiss road hauliers provide for unlimited liability. Should the Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea be revised, it would be useful to consider the possibility of establishing guaranteed minimum amounts for claims for damage, leaving the contracting parties with the possibility of establishing higher or even unlimited levels of compensation in their national law.” Switzerland was hence calling for the partial withdrawal of the ceiling mechanism. Switzerland also mentioned “the concept of “damage” is not very precise”. Other countries (The Netherlands and the Czech Republic, Economic Commission for Europe, Inland Transport Committee, Working Party on the Transport of Dangerous Goods, TRANS/ WP.15/2001/17/Add. 2, 23 February 2001, pp. 2–3; Finland and Lithuania, Economic Commission for Europe, Inland Transport Committee, Working Party on the Transport of Dangerous Goods, TRANS/WP.15/2001/17/Add. 4, 20 July 2001, p. 4; Turkey, Economic Commission for Europe, Inland Transport Committee, Working Party on the Transport of Dangerous Goods, TRANS/WP.15/2001/17/Add. 5, 16 August 2001, p. 2) do on the contrary criticise the compulsory insurance mechanism, the ceiling being too high to meet the insurance market capacities. Lithuania also criticises the too high limits of liability prescribed in Article 9 (Ibid. p. 2). Austria’s position is somehow ambiguous in this respect: “There are at present provisions in our national legislation stating levels of compulsory insurance below the liability limits. To lower the level of compulsory insurance may facilitate the process of accession but should not go so far as to be in apparent contradiction to the principle of full compensation” (Economic Commission for Europe, Inland

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The third Convention listed in Annex IV of Directive 2004/35 is the 2001 Bunker Fuel Oil Convention adopted under the auspices of the International Maritime Organisation on 23 March 2001 and entered into force on 21 November 2008. Here again, the liability and responsibility mechanisms are very similar to those of the international regime studied in this chapter. The Convention is available to persons who suffer damage caused by spills of oil when carried as fuel in ships’ bunkers. The purpose of the Convention is to fill a legal vacuum: the international regime studied in this chapter “applies to tankers only and covers pollution from persistent oil carried as cargo and from persistent oil carried in the form of bunkers but only if the tanker was laden at the time of the incident”.728 Once again, the responsibility and liability mechanisms are very similar to those applicable for oil pollution damage. Pollution damage is defined in Article 1(9) as meaning loss or damage caused outside the ship by contamination resulting from the escape or discharge of bunker oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken (Article 1(9)(a)); and the costs of preventive measures and further loss or damage caused by preventive measures (Article 1(9)(b)). Strict responsibility is channelled to the ship-owner (Article 3), while financial liability is limited (the “ceiling”, Article 6). The registered owner of a vessel must maintain compulsory insurance cover (Article 7). Transport Committee, Working Party on the Transport of Dangerous Goods, TRANS/ WP.15/2001/17/Add. 7, 13 September 2001, p. 2). Belgium’s answer is very interesting. On the one hand, the very principle of channelled liability to the carrier is severely criticised (Economic Commission for Europe, Inland Transport Committee, Working Party on the Transport of Dangerous Goods, TRANS/ WP.15/2001/17/Add. 8, 13 September 2001, p. 2). Among other arguments, “The carrier’s strict liability isn’t balanced regarding the economic interests in presence. On the one hand, the producers of dangerous products are the only ones able to know these products’ exact content. On the other hand, the carriers, despite their high qualifications, are not chemists and do not really control the risk. The risk generated by dangerous substances is to be replaced in their commercial background. The person who beneficiates from the risk must also bears the consequences of the risk” (translation mine). In other words, Belgium was criticising the mere principle of channelled liability and was advocating for the producer’s liability, based upon profit. On the other hand, Belgium points out that the carrier’s ceiling is problematically very high. But in the mean time Belgium contends that lowering down the ceiling could contradict the victim’s adequate compensation principle (Ibid. p. 4), meeting Austria’s answer mentioned above. 728  P. Griggs (2001), under “Background”. See also E. H. P. Brans (2001), p. 368.

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The (No)Compatibility Finding: Matters of Legality and Legal Coherence The consequences for Directive 2004/35 of the conflict between the international regime that applies to oil-spills and the Council of Europe human rights law can be grouped under two headings: legality and legal coherence. Non-compliance with Article 1 of the first Protocol to the European Convention on Human Rights triggers at least two consequences. First, Directive 2004/35 should not preserve these international regime mechanisms and their gaps. This is the case not only for the international regime for the compensation of oil-spill damage, but also for the three Conventions listed in Annex IV: the 1996 Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, the 2001 Bunker Fuel Oil Convention, and the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea. Second, when the European Commission reviews Directive 2004/35, it should not add Conventions that endorse mechanisms that are similar to the international regime that applies to oil-spills.729 729  Two sets of Conventions can be mentioned. First, the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal and 1999 Liability Protocol to the Basel Convention that has not entered into force yet. The Protocol on Liability and Compensation for Damage resulting From Transboundary Movements of Hazardous Wastes and their Disposal (Basel, 10 December 1999) will enter into force when 20 Parties will have ratified it. As a principle, strict responsibility is channelled in Article 4 to “the person who notifies in accordance with Article 6 of the Convention.” The disposer enjoys limited financial liability (the “ceiling”, Article 12(1)). The disposer must maintain “insurance, bonds or other financial guarantees” covering as a minimum the “ceiling” (Article 14). As a difference with the international regime studied in this chapter, the channelled liability does not exclude liability from other persons, who can be responsible on a fault basis (Article 5). Responsible persons under Article 5 do not enjoy limited financial liability (Article 12(2)). Damage is defined in Article 2(2)(c) as covering: “[l]oss of life or personal injury; loss of or damage to property other than property held by the person liable in accordance with the present Protocol; loss of income directly deriving from an economic interest in any use of the environment, incurred as a result of impairment of the environment, taking into account savings and costs; the costs of measures of reinstatement of the impaired environment, limited to the costs of measures actually taken or to be undertaken,” and “the costs of preventive measures, including any loss or damage caused by such measures, to the extent that the damage arises out of or results from hazardous properties of the wastes involved in the transboundary movement and disposal of hazardous wastes and other wastes subject to the Convention.”

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Turning to legal coherence, the two regimes (Directive 2004/35 and the international regime that applies to oil-spills) do coexist. The international regime compensates “traditional damage” and does not apply to “pure ecological damage”, while Directive 2004/35 does not apply to “traditional damage” but to “pure ecological damage”. The deference of Directive 2004/35 to the international regime implies that compensation for “traditional damage” has been given preference over “pure ecological damage”. Some scholars defend this preference to “full” recovery for “traditional damage”.730 The rules of the international regime that endorse limited recovery for preventive and reinstatement measures that are themselves severely framed do apply, while the international regime rules regarding responsibility for “traditional damage” have been found to potentially infringe right to property’s requirements. This begs the “alignment issue” regarding responsibility for environmental damage. The two regimes are clearly very different. Taking stock of the international regime’s non-compliance with Article 1 of the first Protocol and coherence requirements (i.e. for the two regimes to align), two options are possible. On the one hand, the international regime could align its standards on Directive 2004/35’s standards. But this seems highly problematic. The two regimes have strong differences regarding the legal nature of the liability regime, recognition of damage and harm to environmental values, their objectives in Second, the 2007 Nairobi International Convention on the Removal of Wrecks adopted under the auspices of the International Maritime Organisation (Nairobi, 18 May 2007). It will enter into force on 14 April 2015. The Convention retains the liability of the owner, who has to pay for the costs of locating, marking and removing ships and wrecks (Article 10(1)). The ship-owner can limit his liability (Article 10(2)). The ship-owner must maintain insurance or any financial security with the view to covering liability (Article 12). According to Article 2, “A State Party may take measures in accordance with this Convention in relation to the removal of a wreck which poses a hazard in the Convention area.” In turn, hazard relates back to “any condition or threat that (a) poses a danger or impediment to navigation; or (b) may reasonably be expected to result in major harmful consequences to the marine environment, or damage to the coastline or related interests of one or more States” (Article 1(5)). While “related interests” means “the interests of a coastal State directly affected or threatened by a wreck, such as: (a) maritime coastal, port and estuarine activities, including fisheries activities, constituting an essential means of livelihood of the persons concerned; (b) tourist attractions and other economic interests of the area concerned; (c) the health of the coastal population and the wellbeing of the area concerned, including conservation of marine living resources and of wildlife; and (d) offshore and underwater infrastructure” (Article 1(6)). Environmental considerations are clearly not put forward as a main reason for action. 730  W. Oosterveen (2006), p. 262.

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terms of protection obligation, grounds for responsibility, the identified responsible person, compulsory insurance, the limited financial amount available (the “ceiling”), and the management of claims. On the other hand, Directive 2004/35 could drop its deference to the international regime studied in this chapter. This would mean that Directive 2004/35 would not restrain its application to oil-spills, which in turn raises another issue: which rules of Directive 2004/35 would apply? In section 2.2.3 it has been seen that Directive 2004/35 retains a “dual approach”. A first set of responsibility mechanisms grounds responsibility in risk (for the activities reputed to be the most dangerous) and a second set grounds responsibility in fault. For the time being, operators involved in transport by sea of persistent oil not listed in Annex III and damage do not fall within the scope of application of EU waste law.731 In this respect, the Commune de Mesquer case732 provides useful rules regarding the application of the fault-based responsibility mechanisms endorsed in Directive 2004/35. The Court ruled in para. 89, 1st indent, regarding the framework of the polluter pays principle and the “seller of hydrocarbons and charterer of the ship carrying them”, that responsibility is to be assessed by national Courts “in the light of the elements which it alone is in a position to assess”. The national Court is to determine whether “th[e] seller-charterer contributed to the risk that the pollution caused by the shipwreck would occur, in particular if he failed to take measures to prevent such an incident, such as measures concerning the choice of ship”. In other words, the choice of the ship is to be considered as an element to determine whether a fault has been done. It results that the flag of convenience phenomenon could be tackled. The roots of the problems related to oil-spills lie in the choices made by operators for cheap ships run by crew who have to suffer terrible working conditions, with a view to lowering expenses. As made clear in the Commune de Mesquer case, choosing such a ship could be a fault that would then trigger responsibility and liability. In summary, the flag of convenience plea would be addressed, if Directive 2004/35 were to apply.733 731  Following the repeal of Waste Framework Directive 2008/98/CE, 19 November 2008 and contra EU case-law: European Court of Justice, Case C-188/07, Commune de Mesquer v. Total France SA, Total International Ltd (reference for a preliminary ruling), Judgment of 24/06/2008, (Rec. 2008, p. I-4501). 732  See footnote above. 733  W. Oosterveen (2006), p. 266 refers to the “structural defect” of the ship.

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3.3 Conclusion In this chapter the author focused on three issues: who is liable for oil-spill damage, under which conditions they are liable and under which heads of damages. The chapter scrutinised the answers to these questions provided by the international legal regime for the compensation of oil-spill damage. There are six key liability limitations to the international regime. These relate to (1) the burden of proof that is used, (2) the timeframe for assessing claims and awarding payments, (3) the definition of damage, (4) the awarding of compensation, (5) the channelling of liability, and (6) exceptions to the liability rules. The chapter assessed these limitations in light of the human rights requirements enshrined in the European Convention on Human Rights as interpreted and applied by the Court. The specific ground that is used in the chapter to analyse the situation is the right to property as guaranteed by Article 1 of the first Protocol of the Convention. It has been established that claimants for compensation following an oil-spill could have their case recognised as falling under Article 1 of the first Protocol’s scope of application. The rules endorsed in Article 1 of the first Protocol, as well as their interpretation and assessment by the Court, have been described. The chapter then focused on the right to property’s substantive content and the particular interests at stake. The liability limitations were assessed against the ‘fair balance’ requirements. These requirements assess the goal of the State’s interference (here being party to the international regime and applying it) against the interests of the applicant. This assessment was operated after having demonstrated that the first norm of Article 1 of the first Protocol applies: right to the peaceful enjoyment of property. The Court’s assessment might be all the more stringent and hence reduce States’ margin of appreciation on several grounds (including property instability, uncertainty). When applying the fair balance assessment criteria, it has been shown that the severity or seriousness of the interference, together with adequate compensation requirements and property’s social function could lead to the conclusion that the international regime could not meet the Court’s requirements. The deference to the international regime studied in this chapter equals preference given to recovery for “traditional damage” over the responsibility for environmental damage and harm regulated in Directive 2004/35. This deference is inconsistent inasmuch as the international regime and Directive 2004/35 do not apply to the same category of damage and harm: Directive 2004/35 does not cover “traditional damage”. More specifically, it has been demonstrated in this chapter that recovery for “traditional damage” is far from being complete.

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This gap has been assessed against right to property as guaranteed by Article 1 of the first Protocol interpreted and applied by the Court. Serious doubts have been expressed regarding the international regime’s fulfilment of the requirements of Article 1 of the first Protocol. This means that denying responsibility for environmental damage and harm with a view to giving priority to recovery for “traditional damage” is not in line with human rights requirements nor is it coherent. Directive 2004/35 should preserve its application to “non traditional damage”. Turning to the human rights approach in isolation, the right to property proves a good basis to challenge a liability system that ignores the responsibility paradigm where emphasis would be on obligations and the corresponding rights. In this chapter is has been found that human rights having an individual dimension can, quite paradoxically, prove useful to challenge EU environmental responsibility standards. Indeed, the right to property has an individual dimension and is prima facie at the antipodes of some of the values at stake in the book that are res communes. Nevertheless, this right having an individual dimension proves a useful and relevant human rights approach to challenge EU and international environmental responsibility standards and unveil a conflict case between the international regime that applies to oil-spills and Council of Europe human rights law.

CHAPTER 4

Human Rights and Procedural Limitations in the Directives: Complement and Conflict 4.1

Gaps in the Directives that have a Procedural Dimension

Identifying the Victim of the Wrong: Critical Assessment of the Public Nature of the Directives 4.1.1.1 Introduction. The Victim of an Environmental Wrong: Who Can be the Holder of Environmental Rights This section provides insights on the way law can identify the victim of the environmental wrong. Under the most conventional approach, trees do not have standing. Nevertheless and accordingly, several paths are envisaged regarding the possibility of having the wrong recognised in law. The notion of environmental wrong has been discussed in chapter 2 (section 2.1). In this section the notion of victim of the wrong is addressed: a legally recognised damage that interferes with rights or interests begs the question of whose rights or interests have been interfered with. Before analysing how the Directives answer this question, it is necessary to provide the theoretical background that enables to understand the answers provided by the Directives and the choices of the EU legislator, assess these answers and identify gaps in that regard. The affirmation in both the Directives studied that no individual rights should be inferred from the Directives’ provisions is challenged.734 The first set of theoretical issues focuses on the specificities entailed by environmental harms and more particularly on the shifting from environmental features as objects of law to these values as subjects of law. In this respect, two doctrines have elaborated on this shift of legal treatment. The purpose of this book is not to elaborate at length on this issue or the related doctrine. For more in-depth doctrinal works, references are provided in the footnotes. The author can recall that in this book the analysis is not limited to “environmental quality law” that focuses on the contamination or pollution of environmental media (water, air and land). The analysis extends to the relationships and interrelationships between environmental media and 4.1.1

734  This affirmation can be found in Directive 2004/35, in the Preamble, Recitals 11, 14, 25, and more clearly in Article 3(3). This affirmation is expressed in the Preamble of Directive 2008/99, Recital 10.

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components of these media.735 This choice echoes Directive 2004/35 that endorses the notion of ecosystem services (whereas Directive 2008/99 does not, as seen in section 2.1). Doctrine has a crucial role to play in this section related to the identification of the victims of harms. Some movements build (or are aimed at building) law around the notion of “earth community”. All members of this community are to have recognised mutual rights. This doctrine is based upon a rights language. An essential question of this doctrine is: what does “earth community” encompass?736 The doctrine answers the broad question of the extent to which human beings are a part of or do not belong to ecosystems. It contends that humans are a part of natural systems. The other question prompted by this answer is: which legal status should be given to natural (or wild) components of the overall ecosystem, comprising humans and wilderness (or naturalness)?737

735  On the distinction between environmental quality law and ecological law, see W. Howarth (2006), pp. 3–4: “ ‘(T)he environment’ is used hereafter in a narrow sense, encompassing only issues relating to the media of air, water and land. ‘Environmental quality law’, therefore, is normally concerned with the contamination or pollution of these physical media by substances that are present through human intervention and perceived to be capable of being harmful. By contrast, the living components of the ambience, their interrelationships and relationships with the environmental media can be seen as parts of a global ecosystem, or biosphere, and the law relating to this is characterised as ‘ecological law’.” 736  See B. Pontin (2009), pp. 239–240. See also I. Mason and B. Filgueira (2009), pp. 260–269; I. Mason (2007), pp. 87–92; and C. Cullinan (2003). The theories expressed in the book are summarised by L. M. Warren (2006) under seven principles: humans are integral and inseparable from the Earth system, so social systems are inextricably embedded in the Earth community, governance must be consistent with this context because otherwise human fulfillment is unattainable, transforming societies and legal systems requires a jurisprudence that recognises these points and to develop this, we need wild laws to foster one’s connection to nature, and social structures based on natural communities for their effective implementation. See also C. D. Stone (2010). 737  Humans are “residents” and not “intruders” upon natural systems. This “residents” notion has the merit of highlighting that the relationship between humans and natural ecosystems is one of interdependence and mutual effects that are not always negative. Indeed, some human activities can benefit the environment (such as forestry activities can have an added-value in terms of supporting the range of biodiversity). Contending that humans only have negative effects over the natural environment is blunt and not supported by facts. Hence, the inclusive aspect inherent to the notion of “resident” is to be kept in mind.

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Rights can be granted to natural elements without recognising an equality or similarity of status between humans and natural elements.738 Another issue is the environment’s intrinsic value. As seen in chapter 2 (section 2.1), issues regarding intrinsic value arise when the environment and ecosystems are recognised as having a value that is not defined according to their capacity to provide benefit to humans.739 The environment and ecosystems are recognised as having an “inherent worth”.740 On the whole, “(t)he new concern is with variability among living organisms and the ecological complexes of which they are a part, and this includes diversity within species, between species and ecosystems.”741 Within the context of this chapter, the question is: whether and to what extent is this intrinsic value endorsed under a rights based language. The focus is on the legal implications of turning damage into harm. This clearly resonates with the wild law doctrine. In the sections that follow, it appears that the progressive theories have been endorsed to a limited extent. The Directives (mainly Directive 2004/35) do

738  As phrased by W. Howarth: “Put another way, the key legal choice to be made is about the allocation of rights and duties that distinguish humans from other components of ecosystem and determine how individuals are allowed to act in relation to other kinds of biodiversity. Humans, therefore, are part of nature, but have powers and obligations that distinguish their position from the rest of nature.” W. Howarth (2006), p. 33. It somehow echoes what the International Court of Justice ruled regarding subjects of international law in the 11 April 1949 “Advisory Opinion on the question of reparations for injuries suffered in the service of the United Nations” case. International Court of Justice, 11 April 1949, “Advisory Opinion on the question of reparations for injuries suffered in the service of the United Nations.” The relevant conclusions read as follows: “The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community.” 739  As explained in W. Howarth (2006), p. 7. 740  As worded under the OSPAR Convention for the marine environment, Convention for the Protection of the marine Environment of the North-East Atlantic, Oslo, 22 September 1992. Such inherent worth of the marine environment is mentioned in the Convention’s Preamble, Recital 2; and given flesh for example in Articles 1d, 2(1)a and 2(2)a. The Convention for the Protection of the marine Environment of the North-East Atlantic (the ‘OSPAR Convention’) was open for signature at the Ministerial Meeting of the Oslo and Paris Commissions in Paris on 22 September 1992. It was adopted together with a Final declaration and an Action Plan. The Convention entered into force on 25 March 1998. The Convention is available at the OSPAR Convention website, at . The Convention on Biological Diversity also endorses such intrinsic value of biodiversity in Article 2. 741  W. Howarth (2006), p. 8.

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recognise the intrinsic value of some environmental elements. Nevertheless, traces of the conventional thesis exposed below remain largely predominant. Doctrine also addresses the identification of the body, institution or individual that voices environmental rights or interests and brings answers to the issue of identifying the “voicer”. The public trust doctrine is rooted on the notion of public rights. The public trust doctrine has expanded its scope of application and evolved as to provide the trustee—the state, the government—with the duty to “protect and maintain natural resources, to prevent pollution and to halt environmental activities”742 for the benefit of the “general public”.743 All in all, the public trust doctrine is commonly used in cases where the government (the trustee) invokes this doctrine to launch proceedings against private parties who are believed to have caused damage to “trust resources”.744 This trustee function also encompasses a positive duty to act in order to fulfil the function.745 The trustee cannot remain passive if the trust resources are damaged or impaired. Consequently, the trustee’s (government’s) responsibility can be questioned if the government does not comply with this duty to protect by adopting positive measures to fulfil the protection mission.746 So far, an important element to bear in mind is that the trustee’s duty to protect and preserve trust natural resources is not founded in the state or government’s ownership. The competence is rather grounded on the trustee’s 742  Ibid. p. 51. Initially, the trust doctrine was meant to ensure that the trustee, the king, did not restrict the enjoyment of res communes. 743  The public trust and parens patriae doctrines are clearly explained by E. H.-P. Brans, E. H-P. Brans (2001), pp. 50–58 and footnotes therein. Such responsibility is exercised through the use of injunctive relief, or “the possibility to bring suit for recovery of damages for harm done to the trust resources.” Ibid. p. 51. 744  Ibid. p. 52. 745  “Droit-fonction” under French doctrine wording. 746  The duty to seek for compensation falls under secondary obligations (liability rules) that fall outside the scope of the book. On the “affirmative fiduciary obligation”, see E. H-P. Brans, Liability For Damage to Public Natural Resources—Standing, damage and damage assessment, Kluwer Law International, 2001, pp. 52–53. Ibid. p. 53, the author quotes the In re Steuart Transp. Co. case, 495 F.Supp. 38 (E.D. Va. 1980). The doctrine was made clear by a US Court in the In re Steuart Transp. Co. case as follows: “the state has the ‘the right and the duty to protect and preserve the public’s interest in natural wildlife resources’, and that such a right ‘does not derive from the ownership of the resources but from a duty owing to the people’.”

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very duty to protect and preserve trust resources, and make sure that trust resources are neither owned747 nor impaired by private parties. This appears at first stake to be fully in line with the res communes legal definition and legal treatment. It is indeed crucial to bear in mind that trust resources stand firstly on their legal definition and legal treatment as res communes. The trust doctrine applies to these res communes. In other words, the public trust doctrine should not overshadow the res communes legal definition and treatment, nor steer any legal development that would contradict the essential features of the res communes. Res communes748 can be defined as things that cannot be owned. They fall outside any property regime. They are things, not goods.749 They are to be distinguished from the public domain that falls under the public property regime. As for the res communes legal treatment, the use and enjoyment of res communes must be guaranteed for all people. This is the notion of public rights referred to earlier. So that, under the res communes regime, identifying the holder of environmental rights or interests is identifying the body, institution or individual responsible for guaranteeing the common enjoyment of res communes. It is only at that point that the public trust doctrine has a role to play. This responsibility to guarantee enjoyment for all people of res communes can flow from a previously ad-hoc identified responsibility (for instance, a public authority responsible for the protection of protected sites) or be attributed more generally (for example, a public authority having a general duty to protect natural resources under the jurisdiction of a state). Under the public trust doctrine, the responsibility is awarded to the government that has the duty to protect and preserve the trust resources. As already appears from these developments, the public trust doctrine does not automatically flow or impose itself from the res communes legal definition or legal treatment. Applying the doctrine is a choice made by the regulator and, as such, it can be criticised. Indeed, as and is seen below, this choice can be criticised for slightly shifting from the 747  In this respect and on a side-note the author can mention philosophical works that assimilate pollution to property: the polluter forcedly acquires property by excluding others from the use of the polluted resource. See M. Serres (2008). 748  On res communes, see M.-A. Chardeaux (2006). 749  Ibid. pp. 115–117 the author carefully distinguishes two hypothesis: res communes that can not be owned in fact, per nature (for example light) from res communes that are legally defined as such resulting from a regulatory choice. Pp. 16–17, 56 and 122–131 the author takes the position that res communes should not be identified according to facts but result from a regulatory choice shaped under legal provisions. This echoes the above distinction between factual reality and legal “reality”. Law should not be subjected to the factual perception of nature. The author agrees with this position.

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res communes legal features: from a right to enjoy guaranteed to all the people, this right is legally enforceable by the government. In the subsequent sections it appears that the EU legislator chose to endorse this traditional approach: the protection of the environment remains largely dependent on the willingness of identified public authorities to claim respect for the environmental interest vested in them. As seen in more depth in the subsequent developments, this choice can be criticised on account of the fact that it does not reflect the legal definition and legal treatment of res communes. This is all the more true when considering that the environmental interest vested in public authorities goes together with the recognition of the almost exclusive competence of public authorities to set responsibility in motion, as explained below. This shift from a right to enjoy guaranteed for all the people to a right legally enforceable by the government is rendered possible by the parens patriae doctrine. This doctrine allows states to launch proceedings with the view to redressing for injuries to “quasi-sovereign interests”.750 These interests are the interests “that the State has in the well-being of its citizens”.751 These interests range from health and welfare of citizens, the State’s environment and natural resources and the State’s general economy.752 The following sections demonstrate that the choice of the EU legislator to adopt the public trust doctrine can be criticised. The gaps identified are assessed in the second part of the chapter against impartiality and independence requirements (section 4.2.1). These requirements could attenuate the pitfalls inherent to the public trust doctrine.

750  E. H-P. Brans (2001), p. 55. 751  Ibid. 752  To launch proceedings maintaining a parens patriae action on behalf of its citizens to protect its quasi-sovereign interests, the State must fulfil some requirements. They are exposed ibid. pp. 55–56. Among others, the State must demonstrate a specific interest distinct from private parties’ interests and the harm must concern the public at large in quantitative or spatial terms. The distinction with the public trust doctrine lies on the fact that the public trust doctrine provides States or governments with a cause of action (which falls under the remit of this book), where as the parens patriae doctrine provides States or governments with standing to seek redress (which does not fall under the scope of this book), be it with a view to applying the public trust doctrine once the standing requirements are met.

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4.1.1.2

Choice of the EU Legislator: Environmental Rights Holders without a Direct Cause of Action Bearing in mind the public trust doctrine and res communes legal definition and treatment of the resources covered by the Directives, the author now pinpoints which rights-holders are identified in the Directives. Both Directives uphold an “indirect approach”, by relying on trustees in Directive 2004/35 and remaining largely dependent upon prosecutors’ willingness to launch criminal proceedings in Directive 2008/99. To begin with the latter, Directive 2008/99, the EU legislator did not have any competence to legislate on the margin of discretion of prosecutors regarding launching criminal proceedings or not launching them.753 The Directive does provide a series of conducts that have to be criminalised, but the Directive does not restrain the prosecuting bodies’ practice. In other words, no rights holders can be identified in Directive 2008/99. Common literature usually identifies the community as a whole holding the interests protected and this is sanctioned by criminal law. In this respect, no specific provision can be found the Directive. Consequently, attention is directed to Directive 2004/35. More can be said about Directive 2004/35. Directive 2004/35 clearly endorses the public trust doctrine. This endorsement was already announced in the European Commission’s White Paper on environmental responsibility describing the “two-tier” system.754 The Directive articulates the “two-tier” approach in Articles 11, 12 and 13. 753  As flows from the competence repartition among EU pillars. The European Court of Justice made clear that Community competence in the field of environmental criminal law did not extend beyond to the definition of criminal offences in Case C-440/05, Commission v Council, 23 October 2007 (Grand Chamber), and as reflected also in the Directive’s Preamble, Recital 10. 754  Commission’s White Paper on environmental responsibility, COM(2000) 66 final, 9th February 2000, pp. 21–22: “The case of damage to the environment is different from the case of traditional damage, where victims have the right to raise a claim with the competent administrative or judicial bodies to safeguard their private interests. Since the protection of the environment is a public interest, the State (including other parts of the polity) has the first responsibility to act if the environment is or threatens to be damaged. However, there are limits to the availability of public resources for this, and there is growing acknowledgement that the public at large should feel responsible for the environment and should under certain circumstances be able to act on its behalf. (. . .) An important legal instrument in this field is the Åarhus Convention. It includes specific provisions on access to justice that form a basis for different actions by individuals and public interest groups. These actions include the following: to challenge a decision of a public authority before a court of law or another independent and impartial body established by law (the right of

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Article 11 provides public authorities with a pivotal role as the “first tier”. Member States must designate the competent authority or authorities that will make use of the procedures provided for in the Directive (Article 11(1)). More specifically, the Directive phrases the procedures to have damage and harm prevented and restored as a duty. The relevant authority/authorities must take action by identifying the operator who has caused the damage or imminent threat of damage, assessing the significance of damage, and determining which remedial measures should be taken (Article 11(2)). Opting for the remedial measures to be adopted falls under liability rules that are not covered by the book. Nevertheless, the competent authority has to assess the significance of damage. As seen in chapter 2 (section 2.1), the threshold issue conditions the legal definition of harm. It is therefore for the competent public authority to take position on whether or not there is harm, establish it and justify such findings.755 This is a clear endorsement of the public trust doctrine. Regarding the information available to the competent authority, it is worth underlining that the competent authority is entitled to require the operator to carry out himself his own assessment and to supply any information and data necessary (Article 11(2)). Articles 12 and 13 regulate the second tier role administrative and judicial review); to ask for adequate and effective remedies, including injunctions; and to challenge acts and omissions by private persons and public authorities which contravene environmental law. An EC environmental liability regime could contribute to the implementation of the Convention in Community law, along the following lines. (. . .) Member States should be under a duty to ensure restoration of biodiversity damage and decontamination in the first place ( first tier) by using the compensation or damages paid by the polluter. Public interest groups promoting environmental protection (and meeting the relevant requirements under national law) shall be deemed to have an interest in environmental decision-making. In general, public interest groups should have the right to act on a subsidiary basis, i.e. only if the State does not act at all or does not act properly (second tier). This approach should apply to administrative and judicial review and to claims against the polluter.” On the refusal to endorse class-actions, see for example M. Peña Chacón (2005): “No otorga legitimación activa a los particulares u organizaciones no gubernamentales, ni se les permite entablar reclamos económicos por el daño acaecido. En su lugar, mediante la creación de la figura jurídica de “solicitud de acción”, únicamente los faculta a ejercer un control de legalidad, sea ante la autoridad administrativa competente, o bien ante la autoridad judicial superior, con el fin de impulsar o bien enderezar, los procedimientos. Con ello evita los problemas propios que acarrean las acciones populares, las class actions, las indemnizaciones masivas, el daño moral ambiental y las sentencias con eficacia erga omnes.” 755  Article 11(4) provides that the competent authority must state the exact grounds on which it bases its decisions.

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awarded to natural or legal persons. They can submit to the competent authority observations relating to environmental damage or threat of environmental damage they are aware of and request the competent authority to take action (Article 12(1)). The competent authority is then obliged to inform these natural or legal persons who submitted observations of the decision, to accede to the request for action or refuse it. The competent authority must provide this information as soon as possible (and in accordance with national law in this respect) and provide the reasons why the request is accepted or refused (Article 12(4)). Member States are free to restrict this possibility for natural or legal persons to submit observations and request for action to actual damage. In other words, Member States may opt not to grant this possibility to natural and legal persons in cases of imminent threat of damage (Article 12(5)). There are three alternative conditions that have to be met by the natural or legal persons who to submit observations and request action from the competent authorities. First, the natural or legal person must prove to be affected or likely to be affected by environmental damage (Article 12(1)(a)). Or second, the natural or legal person must prove to have sufficient interest in environmental conservation related to the damage (Article 12(1)(b)). Or, third and as an alternative to the sufficient interest requirement, the natural or legal person must allege the impairment of a right which national administrative law requires is under procedural rules as a precondition to introduce observations or request for action (Article 12(1)(c)). The “sufficient interest” and “impairment of a right” criteria are not defined by the Directive and left to be determined by Member States (Article 12(1)). Nevertheless, the Directive does regulate the specific legal situation of NGOs promoting environmental protection and meeting any national law requirements. Such an NGO is deemed to have sufficient interest or to have rights capable of being impaired (Article 12(1)). NGOs have a favourable situation: unlike natural or other legal persons, they do not have to demonstrate that they are affected by environmental damage and are reputed to have sufficient interest or rights that can be impaired by environmental damage (or threat of imminent damage). The choice to leave a role for NGOs to play is grounded on the fact that they are reputed to “have sufficient expertise” according to the European Commission’s White Paper on environmental responsibility.756 A contrario, this means that individual 756   Commission’s White Paper on environmental responsibility, COM(2000) 66 final, 9th February 2000, p. 22: “Only interest groups complying with objective qualitative criteria should be able to take action against the State or the polluter. Restoration of the environment should be carried out in cooperation with public authorities and in an optimal and cost-effective way.

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citizens are not “expert enough” to be able to build a cause of action upon breach of their collective rights. When they request action from the competent authority, the natural or legal persons referred to in Article 12 must provide relevant information and data supporting their observations (Article 12(2)). The competent authority gathers information provided both by the operator (see above, Article 11(2)) and by NGOs. Eventually, Article 13(1) regulates the possibility for natural and legal persons to launch proceedings before a court or other independent and impartial public body competent to review the procedural and substantive legality of the decisions, acts or failure to act of the competent authority. Analysing the preceding according to the public trust doctrine and res communes definition and legal treatment, two remarks can be made. Firstly, the public trust doctrine is clearly endorsed by Directive 2004/35. The two-tier approach clearly provides the competent authority—public authority—with a pivotal role. This is reinforced by the mechanism of channelling the observations or requests for mechanisms for action from natural or legal persons towards public authorities. Provided that these natural or legal persons meet the conditions described above, they cannot directly initiate these actions towards the operator through a Court (be it in the form of a collective action seeking for injunctive relief). They have to go through the competent authority filter. Secondly, while bearing in mind that environmental harm to res communes does endorse a collective dimension, the Directive clearly endorses an individual dimension of environmental damage or threat thereof: Article 12(1) (a) which requires the legal or natural persons to prove that they are affected or likely to be affected is clear in this respect.757 This means that res communes’ The availability of specific expertise and the involvement of independent and recognised experts and scientists can play a fundamental role.” 757  This wording echoes the requirements for individuals to launch action under TFEU article 263(4) (ex TEC art. 230(4)) cases before the EU Courts. Such wording is strongly contested on conceptual grounds for not reflecting the collective dimension of environmental protection and impairment issues. This wording is also challenged for not meeting the UNECE Aarhus Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters (signed by 35 member states of the United Nations Economic Commission for Europe and by the European Community at the “Environment for Europe” ministerial conference in the Danish city of Aarhus on 25 June 1998. It entered into force on 30 October 2001). The Aarhus Compliance Committee is currently concerned by a complaint launched by NGOs contending that EU primary law as interpreted by EU Courts does not comply with the Convention’s requirements. The draft findings of the Committee support the NGOs’ claims and arguments. See the

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legal definition and treatment is not reflected, insofar as individuals cannot directly build a cause of action against the operator. On the other hand, they have to show they are individually affected by damage, or the impairment of an individual interest or right in order to fulfil the conditions with a view to being entitled to submit observations or requests for actions before the competent authority. As an exception, environmental NGOs benefit from preferential treatment. It can be contended that such preferential treatments is akin to recognising environmental NGOs as “sub-trustees”. In summary and even though res communes’ legal treatment refers to all the people’s right of enjoyment, the individuals and groups whose objective is to protect the environment cannot directly ensure respect for their right/ interests in the former, and can only do it indirectly for the latter. The public authorities and prosecuting services steer the cause of action. 4.1.1.3 Criticising the Choice of the EU Legislator: The Trustee as a Screen This steering role devoted to the competent authority (and NGOs) and prosecuting services can be criticised mainly under two headings: substantial concerns and institutional concerns. First and regarding “substantial” matters, the competent authorities, NGOs and prosecuting services can be perceived as screens between impairment to res communes, environmental harms and corresponding rights or interests on the one hand and responsibility on the other hand. The interests or rights of the trustee, sub-trustee and prosecuting services can in some instances not reflect the community interests or rights impaired. This trustee mechanism, by filtrating the rights or interests, operates as a screen that renders impossible the identification and possibility for individuals and the community to put forward their rights or interests. The criticism refers to “substantial” matters for it relates back to the actual operation of the Directive’s mechanisms for environmental damage occurrences, and is to be assessed on a case-bycase basis. Indeed, a danger of arbitrariness and selectivity is inherent to the “screen effect”. The criticism also applies to NGOs. One should not forget that NGOs have their own political agenda that may not necessarily fit with the damage and harm in the balance. Turning to the prosecuting services, the very low number or prosecutions related to environmental offences exemplifies this selection process and is commonly highlighted.758 Providing common Compliance Committee website, page devoted to this complaint, available 12 April 2011 at . 758  See among others M. Faure and G. Heine (2005), pp. 81–84; T. Hitchcock and N. Trounson (2007), pp. 119–122, at pp. 121–122; and F. Comte (2006), pp. 195–198; and the Accompanying

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definitions of environmental offences does not automatically imply that prosecuting services will apply them and launch criminal proceedings, as expressed by M. Faure: “the European Commission apparently assumes that the simple imposition of criminal penalties in legislation will also guarantee its application, which is, of course, hardly the case.”759 Indeed, legal practice does not automatically follow nor reflect the definition of environmental criminal offences. Second and regarding “institutional” matters, several comments can be made. On the one hand, competent authorities may be under-resourced. This means that they may be lacking the human and financial resources to fulfil their duties. This is where NGOs can have a role to play, sharing their information and expertise. The sharing exercise is often even compulsory, as seen above, insofar as NGOs do request action from competent authorities. On the other hand, the independence and impartiality of the competent authority designated under Directive 2004/35 can be questioned. The European Commission itself questions competent authorities’ impartiality in its proposal for a directive on the protection of the environment through criminal law dated 9 February 2007: Finally, there is an additional guarantee of impartiality because investigating authorities, i.e., other authorities than those administrative authorities that have granted exploitation licences or authorisations to pollute, will be involved in a criminal investigation.760 Several stakeholders have criticised this potential conflict of interest.761 Also, corruption of competent authorities’ officers should not be played down.762 document to the Proposal for a directive on the protection of the environment through criminal law, Impact Assessment, COM(2007) 51 final SEC(2007) 161, 9th February 2007, p. 18. 759  M. Faure (2004), p. 21. 760  Commission’s proposal for a directive on the protection of the environment through criminal law, COM(2007) 51 final 2007/0022 (COD), 9 February 2007. 761  See for example BirdLife International’s and WWF’s five key recommendations for the Environmental Liability Directive, “Making the polluter pay. The environmental liability Directive”, p. 6, available 12 April 2011 at . 762  See for example the recent corruption accusations related to Mr Berlusconi regarding the Agency for the protection of the environment of Campania reported on Courrier

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Affairs of corruption do occur and it is all the more critical that the competent authorities do, upstream, provide permits and authorisations to conduct activities and are expected, downstream, to fulfil duties regarding prevention and restoration of environmental impairment. Here again, NGOs have a crucial role to play as watchdogs. In section 4.2.1 the “structural” or institutional impartiality or independence problems are assessed against Council of Europe human rights requirements. In the following two sections two exceptions that have a procedural dimension are addressed: the development risk defence and the permit defence. They are endorsed in Article 8(4) and optional: Member States have discretion on whether or not to implement them into national law.763 The exceptions are limited to remediation costs and do not extend to prevention costs.764 The “permit defence” is provided in Article 8(4)(a): the emission or event was “expressly authorised by, and fully in accordance with the conditions of, an authorisation conferred by or given under applicable national laws and regulations which implement those legislative measures adopted by the Community specified in Annex III, as applied at the date of the emission or event”. The “development risk” or “state of the art” defence is provided in Article 8(4)(b): the “emission or activity or any manner of using a product in the course of an activity” that “was not considered likely to cause environmental damage according to the state of scientific and technical knowledge at the time when the emission was released or the activity took place.” On condition that the operator demonstrates that he was not at fault or negligent, he may not have to pay remediation costs in these two instances. It will be for the operator to show not only that he was not at fault or negligent but

International at (page visited on 11 April 2011); on the relationship between corruption, protection of the environment and natural resources see for example the website of the Anti-Corruption Resource Centre, page entitled “Corruption risks in environmental cooperation programmes”, available 11 April 2011 at . See also Transparency International’s Report entitled Corruption and The Environment dated 2006 and available 11 April 2011 at . 763  On the implementation of the defences at the national level, see BIO Intelligence (2014), pp. 135–136 (permit defence) and pp. 140–142 (on the development risk defence). 764  In practice, the distinction will be hard to distinguish, as underlined by N. de Sadeleer (2006)b, p. 775.

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also that the defences apply, i.e., that all the conditions are met and that his activity falls under the scope of the defences.765 4.1.2 The Development Risk Defence. Directive 2004/35, Art. 8(4)(b) The development risk clause is provided as a defence mechanism under Article 8(4)(b) of Directive 2004/35. In the following sections and with a view to fully understanding how the development risk defence operates in Directive 2004/35, it is necessary to analyse the conceptual foundations of this defence. To then describe the operation of the defence in Directive 2004/35, the relevant provision of the Directive and at the rationale of the defence provided for in the Directive as well as in the preparatory documents are analysed. Turning later to the interpretation and application of the defence, it is necessary to take on board Directive 85/374 on liability for defective products766 that has enshrined the defence in EU law since 1985 and EU case law on that Directive. The analogy between Directives 85/374 and 2004/35 is discussed. This eventually enables us to conclude on how the defence enshrined in Directive 2004/35 operates by relating to the text of the Directive, its rationale and relevant EU case law. 4.1.2.1

Introduction to Development Risks: Either Grounding Responsibility or Grounding Exceptions to the Responsibility Principle The development risk clause as a defence endorsed in Directive 85/374 has only rarely appeared before Courts as reported in the European Commission Reports and the studies mandated by the European Commission. This could be explained by the settling out of Courts of the cases where the development risk clause is at stake. It could also result from the exceptional character of the clause and the facts to which it applies, and that it is meant to apply in only very extreme and rare events.767 765  This proof requirement has been referred to as “probatio diabolica” given the difficulty for the operator to prove that he was not at fault or negligent. See C. Pirotte (2006), p. 675. For a criticism of the burden of proof lying exclusively on the operator, see L. Bergkamp (2001), p. 270. 766  Council Directive on the approximation of laws, regulations and administrative provisions of the Member States concerning liability for defective products 85/374/EEC of 25 July, amended by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999, consolidated version, OJ L 141, 4 June 1999, p. 20. 767  See for example the Final Report of the Fondazione Rosselli (“the Fondazione Rosselli Report”) mandated by the European Commission, “Analysis of the Economic Impact

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In principle, the development risk clause could find many applications in the short to medium term. One can think, for example, about nanotechnologies, GMOs and biotechnologies. These fields could cause damage or generate risks of damage that would eventually have to be dealt with by regulators or settled by Courts. The development risk clause has the potential to apply and wipe out any possible application of the Directive in such cases. This potential is at odds with the hitherto little application and research on the defence. Compared with the literature devoted to responsibility for defective products or environmental responsibility and liability in general, not much literature can be found on the development risks concept. Researching on the development risks and grounds for development risks as a defence enshrined and applied in Directives 85/374 and 2004/35 nevertheless requires devoting some attention to the concept. As seen below, development risks as enshrined in the Directives result from a regulatory choice with regard to their content, function and application. With a view to identifying those regulatory choices, three distinct features are elaborated on: development risks, the development risk clause, and the development risk clause as a defence. 4.1.2.2

Two Components of the Legal Definition of Development Risk: Risk Inherence and Indiscernibleness Development risks can be “generically” defined as risks that become apparent only when a new product is used, a new manner to use a product is conducted, a new emission is released or an activity takes place for the first time.768 Scholars usually agree to legally define development risks according to two components: inherence and indiscernibleness. of the Development Risk Clause as provided by Directive 85/374/EEC on Liability for Defective Products, 2004. The Report is available on the European Commission’s website at , page visited 28 July 2010, p. 37 and p. 130, in the conclusions, one can read: “The first point we would like to stress is the apparent paradox by which the development risk clause is perceived to be of utmost importance in the mind of stakeholders’ although its practical is still extremely limited”. 768  The classical example provided by scholars is Thaladomide, a medicine that was taken by pregnant women for morning sickness, and in most cases caused abnormalities to the foetus, As reported in the Final Report of the Fondazione Rosselli (“the Fondazione Rosselli Report”) mandated by the European Commission, “Analysis of the Economic Impact of the Development Risk Clause as provided by Directive 85/374/EEC on Liability for Defective Products, 2004, p. 22. The Report is available on the European Commission’s website at , page visited 28 July 2010.

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The first component to legally define development risks is inherence: the defect or danger is undetectable, inherent and inevitable to the product, activity or emission. The inherence feature enables us not to confuse development risks with force majeure. Directive 2004/35 acknowledges this distinction by endorsing those two as defences under distinct provisions.769 The distinction criteria lie in the endogenous as opposed to the exogenous origins of the risk. While force majeure does not flow from a process or activity, development risks do result from an activity or process. For example, the risk is endogenous when considering the impossibility for responsible persons in a meteorological service to foresee a tornado or, to give an example closer to Directive 2004/35, when considering the use of a particular molecule or nano-particle.770 The risk in the context of development risks is entropic, whereas the risk is natural in the context of force majeure.771 From this inherence it follows that development risks are concerned with the fact that generates damage, but are not concerned with the damage per se or the causal link. Accordingly, the absence of damage does not preclude development risks from being invoked.772 A contrario, if the risk is not considered inherent to the product, manner to use the product, new emission or activity, the risk cannot be defined as a development risk: the defence cannot be brought into play. The second component of the legal definition of development risks is their indiscernible nature, being identified according to given scientific and technical knowledge at a particular moment773 together with qualitative and quantitative criteria. These qualitative and quantitative requirements are meant to echo the relative and provisional natures of scientific and technological knowledge. These requirements are also meant to ensure that the person invoking those relative and provisional qualities could not actually predict the risk flowing from his activity or product. Development risks can be legally defined only if they are absolutely unpredictable. The detectable quality lies in the “unstable”, “fluid” and “provisional” character of knowledge.774 Scientific

769  As seen above, the force majeure exoneration is provided as a defence in a distinct Article: Article 4(1)(b). 770  This is why some scholars assimilate development risks with “cas forfuit” (in Roman law: casus quem nullum humanum concilium praevedere potest). See for example P. Oudot (2005), pp. 105–125. 771  P. Oudot (2009), p. 166. 772  As a defence or a ground for responsibility, as is seen below. 773  On the notion of “invisible” risks, see H. Yamashita (2009). 774  P. Oudot (2009), p. 167.

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and technological knowledge is not immutable or unwavering.775 A development risk “threatens during the period of time when knowledge is considered as true, valid, before it (this knowledge) is rejected, invalidated, considered as false by the scientific community. Unveiling the scientific error, development risks belong to the accidental phenomenon”.776 Requirements surrounding the quantities of knowledge in consultation relate back to whether information was available at a particular moment,777 raising the issue of public accessibility (for example, through publication). In turn, accessibility raises the question of accessibility’s temporal scale: once knowledge is accessible, a given time is necessary to have it fully considered (and possibly verified). Can the defence be put forward during this period of time, given that knowledge would be, as yet, reputed and not fully understood? The length of time during which the defence can be invoked raises questions and uncertainties: when assessing the quantity requirement, if the Court or competent authority finds that knowledge of the risk was accessible, the risk is no longer considered a development risk. Consequently, the defence is no longer available to the operator. This is based upon the presumption that the operator has accessed this knowledge. This reflects the objective reading of the development risk clause.778 With regards to the requirements for quantity of knowledge, the main question is: can a study using proper methodology be seen as reliable and qualify as scientific and technical knowledge? The focus is on validity. Scholars usually agree that knowledge refers to data largely agreed upon, but also to isolated dissident data insofar as this data cannot be currently refuted.779 4.1.2.3

Legal Treatment: A Regulatory Choice. The Clause as a Defence or Grounding Responsibility A crucial point to bear in mind is the dual application of the development risk clause: the clause can be operated either as grounds for responsibility

775  F. Ewald (1993), p. 9: development risk is “a risk of the knowledge, of the perception and changes in its perception” (translation mine). 776  P. Oudot (2009), p. 167 (translation mine). 777  The moment enshrined in the legal text. In Directive 2004/35, the moment when the emission was released or the activity took place. 778  P. Oudot (2009), p. 167. 779  This echoes scientific knowledge that can remain not understandable for a long period of time even though it cannot be scientifically refuted, Ibid. p. 168.

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or grounds for responsibility defence, resulting from a regulatory choice.780 The application of the development risk clause as a defence in Directives 85/374 and 2004/35 must be seen as the outcome of a regulatory choice. With regards to the rationale of the inclusion of the clause as a defence mechanism, it is intended to establish equilibrium between the interests of the industry on the one hand and consumers, or society in general, on the other hand. Besides reaching equilibrium between these interests, a crucial issue is innovation, which is supposedly stifled if development risks are not enshrined as grounds for responsibility exception, or if they are enshrined as grounds for responsibility.781 The grounding factor for the development risk clause as a defence is fault. Indeed, when invoking the occurrence of a development risk, the operator must establish that he could not foresee the damage, nor a fortiori take preventive or precautionary measures. His control on the risk inherent to the activity, emission or product does not exist. No fault can be apportioned to the operator. Some scholars argue that the grounding for the clause as a defence additionally lies on the lack of “moral imputation” (or moral attribution):782 the operator’s conscience is at the centre of the development risk clause. Following this reading, the clause operates a return to subjectivity. On the contrary, if the operator cannot prove that the requirements for the invoking of the development risk defence are met, it would infer that he was at fault. It would follow that the operator had access to the knowledge demonstrating the existence of development risks but nevertheless did not adopt preventative or precautionary measures. It further follows that the two components of the “traditional subjective fault” would be met in that case: a breach of requirements regarding prevention and precaution emerging from the acknowledged risks that cease to be development risks (objective element); and the implication of the operator (subjective component). 780  For example, in the first draft of Directive 85/374 on liability for defective products (1975) the producer’s responsibility was extended to development risks. For an overview of instances where development risks ground responsibility, see for example P. Oudot (2005), pp. 142–147. On development risks as grounds for responsibility see for example A. V. S. Besalu Parkinson (2005), p. 523. 781  This is expressed in the European Commission’s Reports, during the legislative process of both Directives and the studies mandated by the Commission. See for example the above mentioned 2004 Fondazione Rosselli Report, pp. 54–58 and A. V. S. Besalu Parkinson (2005), p. 523. 782  See for example P. Oudot (2009), p. 173.

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4.1.2.4

Choice of the EU Legislator: Development Risks Ground an Exception to the Responsibility Principle Now, let us return to Directive 2004/35. First, concerning the EU legislator’s regulatory choice, the development risk clause is enshrined as a defence mechanism in Article 8(4)(b) of Directive 2004/35. In Directive 2004/35 and in the European Commission’s Proposal several reasons are advanced for the inclusion of the defence.783 A first argument is control, and more specifically the lack of control of risk on the part of the operator (as appears for example in the Preamble, Recital 20). Similarly, in the explanatory memorandum accompanying the proposed Directive in January 2002, one can read: “This Directive should not cover damage or imminent threat thereof which is the result of certain events beyond his (the operator’s) control”.784 A second line of justification relies on a “cost-benefit analysis”.785 According to the European Commission, this analysis has been performed. The defence results from this cost-benefit analysis and overrides the problems identified in USA environmental responsibility frameworks.786 Second, Directive 85/374 on liability for defective products787 endorses the development risk clause as a defence. Article 7 of Directive 85/374 makes clear

783  The tensions during the legislative process are elaborated on in section 4.1.3 below. 784  Proposal for a Directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage, Explanatory Memorandum, COM/2002/0017 final—COD2002/0021, O.J. 151 E, 25/06/2002 P. 0132–0145, Brussels, 23.1.2002, p. 21, under “6.9. Article 9—Exemptions and defences”. 785  This analysis is not used or assessed in this book. For such an analysis, see the instrumental analysis on the development risk defence operated in L. Bergkamp (2001), pp. 276–278 and the law and economics analysis on the development risk defence in the 2004/35 Directive in K. De Smedt (2007), pp. 231–232. 786  European Commission’s explanatory memorandum above cited, pp. 7 and 13. It can be noted here than defining the equilibrium reached in the 2004/35 Directive by arguing among others that account has been taken of the deficiencies of the USA system has been contested in the 2004 Fondazione Rosselli report on the Development Risk Clause. Indeed, it has been contended that the problems witnessed in the USA (“liability crisis”) do not result from the regulations, but rather from some “structural problems” that have more to do with the judicial processes. See the 2004 Fondazione Rosselli Report above cited, pp. 39–40. 787  In the following developments reference will be made to Directive 85/374 on liability for defective products and Directive 2004/35 because both Directives enshrine the development risk defence. This analogy will be relative but will prove useful as will be seen below.

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that the defence is a responsibility (as opposed to a liability) defence.788 In other words, the producer is exonerated from the breach of primary rules. The situation is a bit more complex in Directive 2004/35. From the wording of Article 8(4)(b), the defence is clearly a liability defence in as much as it refers to the exoneration from paying the restoration measures costs. Hence, it would logically follow that while the defence enshrined in Directive 2004/35 exonerates the operator from the application of secondary obligations (i.e. liability rules), he would not be exonerated from responsibility: primary obligations still apply. In other words, the operator would be responsible but not liable.789 This reading is nevertheless questionable. Directive 2004/35 endorses blurred frontiers between responsibility and liability obligations, as a result of the shift of paradigm from responsibility to cost-allocation. This appears, for example, in the Preamble, Recital 2: “The fundamental principle of this Directive should therefore be that an operator whose activity has caused the environmental damage or the imminent threat of such damage is to be held financially liable”. Blurred frontiers appear more clearly in Article 1: “The purpose of this Directive is to establish a framework of environmental liability based on the ‘polluter-pays’ principle”. The Directive is more concerned with cost-allocation for preventive and restoration measures than responsibility for environmental damage as such, relying on responsibility mechanisms and theories (for example, fault, negligence, risk). As a result, exoneration from liability obligations can be assimilated into exoneration from responsibility obligations. Third, turning to the scope of application of the development Risk Defence in Directive 2004/35 requires us to reflect on the person who is enabled to invoke the defence. It has been seen above that the development risk clause is based upon the lack of moral imputation for the person invoking the defence. The criterion is the lack of control. This is coherent with Directive 2004/35 insofar as the Directive designates the responsible person as being the operator, defining the operator by making reference to control in Article 2(6), and expressly grounding the development risk clause on control in Directive 2004/35, in the

788  Article 7 of Directive 85/374 reads as follows: “The producer shall not be liable as a result of this Directive if he proves: (e) that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered.” 789  It can be reminded here that this book is concerned with responsibility. Liability falls outside the scope of research. See chapter 1, section 1.1.

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Preamble, Recital 20.790 As for the expected field of application of the defence, it can be identified relying on the “dual” responsibility system articulated by the Directive. It has been seen that the Directive preserves distinct responsibility regimes according to the danger inherent to the relevant activities. The activities regulated in Annex III are reputedly more dangerous, and fall under the strict responsibility regime (i.e. no proof of fault or negligence is required for the operator’s responsibility to be engaged). On the other hand, non-listed activities fall under the responsibility regime based on fault. If it is contended that Annex III correctly identifies the most dangerous activities, their operation in practice could a posteriori reveal development risks and bring them into play. Indeed, if an activity is not dangerous there is a prima facie assumption that, a fortiori, no development risk can be at stake. Therefore, it can be assumed that the primary field of application of the development risk defence would be in those dangerous activities regulated in Annex III which bear a greater potential regarding risk.791 4.1.2.5

Legal Definitions: Inherence and Indiscernibleness in Directive 2004/35 With a view to understanding how the defence operates it has been seen above that the defence results from a regulatory choice, exonerating the operator from the breach of primary and secondary obligations; while it is expected that the defence would be mainly invoked by operators conducting activities listed in Annex III (i.e. the activities reputedly more dangerous). In order to complete the picture, the author needs to elaborate on the legal notion put forward in the defence. As seen above, the operator will be exonerated from remediation costs if he can prove two things. First, he must prove that he was not at fault or negligent. Second, he must prove that the emission, activity or manner of using the product that caused damage was not “considered likely to cause environmental/ecological damage according to the state of scientific and technical knowledge at the time when the emission was released or the activity took place” (the “State of the Art”). The development risk clause 790  Directive 2004/35, Preamble, Recital 20: “An operator should not be required to bear the costs of preventive or remedial actions taken pursuant to this Directive in situations where the damage in question or imminent threat thereof is the result of certain events beyond the operator’s control. Member States may allow (operators to invoke the development risk defence)”. 791  Nevertheless, the author does not fully agree with the EU legislator who assumes that all dangerous activities are listed in Annex III or are not regulated at all. One has to think for example about nanotechnologies that are not currently regulated at the EU level. The author elaborates on that aspect below in section 4.1.4 when identifying gaps in Directive 2004/35 with regards to the defence.

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as a defence mechanism in Directive 2004/35 retains the two components of the legal definition underlined above: inherence and indiscernibleness. Moreover, the drafting reflects the objective dimension of knowledge: knowledge access is assessed in objective terms, not according to the knowledge accessible to the operator subjectively, or according to his particular competences, capacities or his field of activity. This legal definition raises certain questions. The European Court of Justice has answered some of them when dealing with the defence as endorsed in Directive 85/374. 4.1.2.6

Legal Definitions: The Defence before the European Court of Justice Before elaborating on the European Court of Justice’s case law on the development risk defence as enshrined in Directive 85/374, a couple of lines have to be devoted to the question on whether or not this case law is applicable to Directive 2004/35. In other words, is the analogy possible? Can the case law on the interpretation and application of the defence enshrined in Directive 85/374 be at least partly applied to the defence enshrined in Directive 2004/35? The two obligations binding the operator (not being at fault or negligent concerning the emission, activity or manner of using a product; not creating environmental damage according to the state of the art) have been specified and elaborated on by the European Court of Justice in the context of Directive 85/374 on liability for defective products792 in Article 7(e): The producer shall not be liable as a result of this Directive if he proves: (. . .) (e) that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered. Directive 85/374 on liability for defective products endorses the two components described above in Directive 2004/35: inherence and indiscernibleness.793 Given that the Directives endorse the same legal definition as far as develop792  Council Directive of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (85/374/EEC), OJ L 210, 7 August 1985, p. 29; as amended by the Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999, OJ L 141, 4 June 1999, p. 20. 793  One could wonder what is the interplay between Directives 85/374 and 2004/35. In this respect the scope of application of a responsibility regime is a crucial element as the European Court of Justice ruled in the Société Moteurs Leroy Somer case, C-285/08, 4 June 2009, ECR I-04733, para. 26. Following, the legal definition of damage is instrumental in drawing frontiers in parallel responsibility systems as the European Court of Justice rules in the same case, para. 27. In the following developments the focus is more on analogy in

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ment risks are concerned, the analogy is possible in as much as these two criteria (inherence and indiscernibleness) are at issue before the European Court of Justice.794 The European Court of Justice case law regarding inherence and indiscernibleness in the context of Directive 85/374 will provide useful insights regarding inherence and indiscernibleness in the context of Directive 2004/35. 4.1.2.7

Knowledge Quality Requirement: The Most Advanced Level of Scientific and Technical Knowledge: The European Commission v. UK Case Regarding the qualitative knowledge requirements, the European Court of Justice specified in the European Commission v. UK case that the knowledge must be, inter alia, “the most advanced level of such knowledge”.795 The European Court of Justice has specified what exactly this “most advanced level of knowledge” entails with regards to quantitative aspects along three lines. Performing an objective test identifies the state of existing knowledge requirements. In the European Commission v. UK case, the European order to identify rules that could be applied to the development risk defence in the 2004/35 Directive. 794  C. Pirotte also concludes to the analogy being possible in C. Pirotte (2006), p. 682. This analogy is not meant to underestimate strong differences between Directives 85/374 and 2004/35. Indeed, Directives 85/734 and 2004/35 do not have the same scope of application and do not identify the same responsible person. First, Directive 85/734 covers liability for products in Article 2 whereas Directive 2004/35 refers in Article 8(4)(b) to environmental damage or threat of environmental damage caused by an emission, activity or any manner of using a product. Article 3(1) refers to environmental damage caused by occupational activities and to imminent threat of such damage occurring by reason of any of those activities, while Article 17 refers to events, incidents and emissions. Even more specifically, and when referring to damage to land, Directive 2004/35 specifies the following: the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms in Article 2(1)(c). Second, Directive 85/734 sets in Article 1 the responsibility of the producer whereas Directive 2004/35 establishes the responsibility of the operator. Another difference is the risk covered in the two Directives. The development risk defence in Directive 85/374 is concerned with the existence of the defect and is hence broader than development risks in the 2004/35 Directive, as contended by J. Stapleton (1994), p. 236. The cornerstone issue is the safeness of the product. On the contrary, the development risk defence in Directive 2004/35 is triggered by the discoverability of the likeliness to cause environmental damage. The consequences from the Directives’ distinct legal basis for Member States’ room for discretion will be elaborated in the following section. 795  European Court of Justice, European Commission v. United Kingdom of Great Britain and Northern Ireland, C-300/95, 29 May 1997, ECR I-02649, para. 29.

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Commission argued “the test in Article 7(e) of the Directive is objective in that it refers to a state of knowledge, and not to the capacity of the producer of the product in question, or to that of another producer of a product of the same description”.796 Accordingly, the quantitative scientific and technical knowledge that the producer is presumably informed of is objective knowledge, independent from a particular producer’s capacity, competence or field of activity. In the same case, the Advocate General’s Opinion formulated as follows the knowledge to be considered in terms of quantity in point 24: “More generally, the ‘state of knowledge’ must be in construed so as to include all data in the information circuit of the scientific community as a whole, bearing in mind, however, on the basis of the reasonableness test the actual opportunities of the information to circulate.” (Emphasis added) This interpretation has been endorsed by the European Court of Justice, which further specifies the following two aspects. The European Court of Justice specified the rule that in order to fall within the knowledge requirement, knowledge must be accessible. This is referred to as the “Manchurian exception”. Regarding first the quantitative criteria of the scientific and technological knowledge according to which the undetectable criterion is assessed, the European Court of Justice has set a limit in the European Commission v. UK case: the relevant knowledge is the accessible knowledge. That raises the issue of knowledge dissemination.797 The Advocate General’s Opinion gave the following example: it cannot be contended that the scientific findings published in a local Manchurian Journal are as accessible as the findings published in an international English-language journal. Academics name this restriction the “Manchurian exception”. The criteria will be the opportunities for the information to circulate. It also applies to unpublished or privately owned knowledge. Clearly, an operator will be able to invoke the development risk defence if he can demonstrate that even though there was scientific or technical knowledge unveiling the risks inherent to his activity, emission or manner of using a product, this knowledge was nevertheless objectively not accessible. The test being performed objectively, it can be contended that the costs incurred when researching the infor796  Ibid. para. 17. The UK did not challenge such reading identifying an objective instead of a subjective test, Ibid. para. 19. L. Bergkamp (2001), p. 271, labels such system as an “objective fault liability system”. 797  European Court of Justice, European Commission v. United Kingdom of Great Britain and Northern Ireland, 29 May 1997, ECR I-02649, para. 29.

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mation on technical and scientific knowledge should not be taken on board and considered as a possible justification for the operator not to have acknowledged the risk.798 The European Court of Justice also specified that general knowledge is of relevance: the second consequence emerging from the European Commission v. UK case, and as reflected in the Advocate General’s Opinion, is that the relevant knowledge is general knowledge. Accordingly, an operator in a given sector (for example GMOs) cannot limit himself to the knowledge relevant only to his specific sphere of activity, or particular knowledge. This also reflects the objectivity highlighted above. The quantity of objective knowledge accessible is determined by reference to general scientific and technological knowledge.799 4.1.2.8

Additional Obligations Binding the Operator to Successfully Invoke the Defence: Not Possible with Directive 85/374: The European Commission v. France Case Case law also gives insights regarding the possibility of having additional obligations which bind the operator and also condition the possibility of invoking the development risk defence. What is at stake is the applicability of the defence, and more particularly, supplementary conditions that add to the ones outlined above (the operator is not at fault or negligent, and risk is inherent to the activity and indiscernible). Those supplementary conditions can be shaped as another set of “primary obligations”. More specifically, in the case discussed below, the supplementary conditions can be seen as “precaution obligations” that extend to indiscernible risks. The Court has severely condemned Member States that had added conditions or obligations binding the responsible person invoking the defence. In the European Commission v. France case dated 2002 on the implementation of the defence in Directive 85/374 on liability for defective products800 the French Republic had attached to the national law implementing the defence an additional condition for the responsible person (the producer under Directive 85/374) to invoke the defence. He had to prove that he had taken appropriate 798  Contra, see L. Bergkamp (2001), p. 270: “The state of the art defense typically requires that the injurer prove that, given to the ‘state of the art’ at the time he acted, he could not, or not at reasonable cost, have prevented the damage”. 799  European Court of Justice, European Commission v. United Kingdom of Great Britain and Northern Ireland, 29 May 1997, ECR I-02649, para. 26. 800  European Court of Justice, C-52/00 European Commission v. French Republic, 25 April 2002, ECR I-3856, para. 47.

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steps to avert the consequences of a defective product. France had grounded this producer’s obligation to monitor products (that did not appear in Article 7(e) of Directive 85/374) on Directive 92/59 on general product safety. This Directive provides with such obligations binding Member States.801 To condemn the French implementation that foresaw an additional obligation binding the operator, the European Court of Justice argued that EU consumer protection law (Directive 92/59 on general product safety) could not be invoked as a ground to preclude the conditions under which the defence is applied since Directive 92/59 does not concern liability. Accordingly, whereas EU environmental law proves instrumental to distinguish which activities are governed either by a strict liability regime (not based upon fault) or by a responsibility regime based on fault on behalf of the operator, EU consumer protection law does not constitute a ground for a particular interpretation, application or amendment of responsibility mechanisms, including defence mechanisms. The European Court of Justice added that neither the discretion left for Member States to implement the defence, nor the current activity of the Commission reflecting on whether or not to maintain the defence in the Directive, can ground or allow Member States to free themselves from the obligation to implement the defence as provided by the Directive in force.802 The onus lies on Member States’ room for discretion and competence. 4.1.2.9

Additional Obligations Binding the Operator to Successfully Invoke the Defence: Possible with Directive 2004/35 The room for discretion left to Member States when implementing responsibility is the central issue when one wonders whether Member States can add supplementary conditions for the defence to be invoked. It is crucial to consider the application of the above rule precluding supplementary obligations being applied in the context of Directive 2004/35. The analogy may not be possible since Directives 85/374 and 2004/35 do not have the same legal basis. Directive 85/374 on liability for defective products was adopted under Article 100 of the EEC Treaty803 concerning the approximation of laws, regulations or administrative provisions of the Member States as they directly 801  The French Republic grounded the producer’s obligation to monitor products that did not appear in Article 7(e) of Directive 85/374/EEC on Directive 92/59 on general product safety that provides with such obligations imposed on Member States. 802  European Court of Justice, C-52/00 European Commission v. French Republic, 25 April 2002, ECR I-3856, paras. 46–47. 803  Article 100 EEC was amended to Article 100 of the EC Treaty and 94 EC, now Article 115 of the Treaty on the Functioning of the European Union.

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affected the establishment or functioning of the common market. This legal basis did not provide the possibility for Member States to maintain or establish provisions departing from Community harmonising measures. In that context, “the margin of discretion available to the Member States in order to make provision for product liability is entirely determined by the Directive itself and must be inferred from its wording, purpose and structure”.804 In that respect, the European Court of Justice noted that no clause allowing Member States to adopt or maintain more stringent provisions could be found in the Directive.805 Accordingly, Member States are allowed to depart from the Directive only in cases where this possibility is expressly provided, for matters exhaustively specified, and the possibility must be narrowly defined.806 The situation is completely different for Directive 2004/35. Not only does Directive 2004/35 have a legal basis (Article 175(1) EC Treaty) that allows Member States to adopt or maintain more stringent protective measures as provided in Article 176 EC Treaty, but this possibility is also enshrined in Directive 2004/35 itself in Recital 29 of the Preamble and Article 16(1). Nevertheless, this possibility is not absolute as results from Article 176: “Such measures must be compatible with this Treaty”. The European Court of Justice has framed Member States’ margin of discretion in adopting or maintaining more stringent provisions. Among others, the more stringent provisions must be consistent with the objective of the Directive.807 This requirement could prove instrumental for the possibility left to Member States to add supplementary conditions for the responsible person to invoke the defence. The objective of the defence was stated as follows in the Directive’s Proposal: The proposal has indeed been developed consistently with principles of economic efficiency and social fairness. The proposal does not apply to emissions allowed in permits and damage that cannot be predicted on

804  European Court of Justice, C-52/00 European Commission v. French Republic, 25 April 2002, ECR I-3856, para. 16. 805  Ibid. para. 18. 806  Ibid. para. 20. This also applies to progressive harmonisation instances (an assessment process with a view to further harmonise is provided in the Directive) as enshrined in Directive 85/374. 807  See for example European Court of Justice, C-232/97 Nederhoff (1999), ECR I-6385, para. 58. Additionally, the national measure must not impair the effectiveness of the Directive, see C-365/88 Hagen (1990) ECR I-1845, para. 20.

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the basis of the state of scientific and technical knowledge at the time emissions are released or activities take place. (emphasis added)808 Accordingly, the European Commission could possibly argue before the Court that allowing additional conditions for the defence to be invoked would upset the equilibrium that is established in the defence as set in the Directive.809 In a case before the European Court of Justice concerned with Directive 2004/35, the ERG case,810 the Court clearly relies on settled case-law when recalling the competence left to Member States to adopt more stringent provisions when implementing the Directive’s provisions into national law when the Directive does not regulate some aspects (like the causal link establishment) itself.811 The European Court of Justice equally reaffirms, in line with settled case law, that the national legislator remains competent to adopt national legislation in fields not regulated by the EU legislator. Also, the Court reiterates that Community policy on the environment aims for a high level of protection, which grounds the discretion left to Member States to adopt or maintain more stringent provisions.812 Accordingly, it can be contended that providing additional conditions and obligations for the defence to apply (for example, conditioning the defence’s scope of application with a monitoring obligation) could be found to fall within Member States’ discretion or competence and hence depart from or preclude the defence endorsed in the Directive.813 808  Proposal for a Directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage, Explanatory Memorandum, COM/2002/0017 final—COD 2002/0021, OJ 151 E, 25 June 2002 P. 0132–0145, Brussels, 23 January 2002, p. 7, under “4. The economic assessment of the Proposal, its benefits and costs”. 809  The European Court of Justice referred to such equilibrium as the “principle of fair apportionment of risk”, in European Commission v. UK, C-300/97, 29 May 1997, ECR 1997 I-02649, para. 24. Such principle is enshrined in Directive 85/374, Preamble, Recitals 2 and 7 specifically addressing fair apportionment of risk in the context of responsibility defences. 810   Judgment of the Court (Grand Chamber) of 9 March 2010, C-378/08, Raffinerie Mediterranee (ERG) SpA, Polimeri Europa SpA and Syndial SpA v. Ministero dello Sviluppo economico and Others. Reference for a preliminary ruling. OJ C 301, 22 November 2008. 811  Ibid. para. 55. 812  Ibid. para. 45. 813  Going into greater details would fall outside the scope of this book that is not directly aimed at researching on Member States implementation of the Directive. On the issue of the margin of discretion of Member States when implementing Directive 2004/35, see for example K. De Smedt (2007), pp. 171–175 and 193–194.

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Overall, the development risk clause has been endorsed in Directive 2004/35 as a defence. This is the outcome of a regulatory choice, since development risks can also be enshrined as grounds for responsibility. The development risk defence endorsed in the Directive focuses on the operator’s activity and the risks inherent to it, while the subjective character of the defence is reinforced by the reference to the operator’s control (or rather lack of it) of risk. Similarly to what the author found in chapter 2, the greatest weight of significance clearly rests on the behaviour of the operator of occupational—rather than in environmental damage and harm. The defence is criticised in section 4.1.4 and challenged against human rights requirements in section 4.3. 4.1.3 The Permit Defence. Directive 2004/35, Art. 8(4)(a) 4.1.3.1 The EU Legislator Endorses and Justifies the Permit Defence Besides the development risk defence, the permit defence is a second peculiarity of Directive 2004/35. The permit defence is provided in Article 8(4)(a) of Directive 2004/35: The Member States may allow the operator not to bear the cost of remedial actions taken pursuant to this Directive where he demonstrates that he was not at fault or negligent and that the environmental damage was caused by: (a) an emission or event expressly authorised by, and fully in accordance with the conditions of, an authorisation conferred by or given under applicable national laws and regulations which implement those legislative measures adopted by the Community specified in Annex III, as applied at the date of the emission or event. The permit defence is justified in the Directive’s Preamble (Recital 20): An operator should not be required to bear the costs of preventive or remedial actions taken pursuant to this Directive in situations where the damage in question or imminent threat thereof is the result of certain events beyond the operator’s control. Member States may allow that operators who are not at fault or negligent shall not bear the cost of remedial measures, in situations where the damage in question is the result of emissions or events explicitly authorised. Scholars refer to this defence as a case for “non moral attribution” of responsibility onto the operator. A second line of justification relies on a “costbenefit analysis” that is also brought into play for the development risk defence.

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4.1.3.2

The Permit Defence Rationae Materiae: Scope of Application and Legal Treatment The notion of “emission” used in Article 8(4) is defined in Article 2(8).814 The Directive does not define the notion of event. This definition could have proved useful for answering questions that could arise in the application of Article 2(8). Indeed, does the term “event” cover accidental or sudden occurrences? Similarly, does “event” refer to an incident that spreads over time?815 Secondly, the defence allows the operator not to bear restoration costs, but does not exempt the operator from prevention costs. In practice, the distinction between the two kinds of cost might turn out to be difficult to operate (as stressed above regarding the development risk defence). Thirdly, the permit defence refers to the permits granted under the legislation referred to in Annex III, i.e., the most dangerous activities, and does not extend to the permits granted for activities not listed in Annex III. This is an expression of the regulatory approach elaborated on in chapter 3 on the grounds for responsibility and the dual approach regarding environmental responsibility. Fourthly, the defence refers to authorisations (“permit”).816 Authorisations must be distinguished from “registrations”, as used under Article 26 of Directive 2008/98 on waste and repealing certain Directives.817 This raises the question: is the permit defence to be interpreted as limiting its scope of application to authorisations? Interpreted literally, the defence only applies to authorisations. This interpretation is also backed by the 814  Article 2(8) reads as follows: “ ‘emission’ means the release in the environment, as a result of human activities, of substances, preparations, organisms or micro-organisms.” 815  According to an authoritative author, the answer should be positive and also apply to “emissions”, see C. Pirotte (2006), p. 676. 816  Legal literature refers to the defence as the “permit defence” despite reference in Directive 2004/35 to “authorisation”. The “permit defence” wording is also used in this book. 817  Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (Text with EEA relevance), OJ L 312, 22.11.2008, pp. 3–30: “Article 26. Registration. Where the following are not subject to permit requirements, Member States shall ensure that the competent authority keeps a register of: (a) establishments or undertakings which collect or transport waste on a professional basis; (b) dealers or brokers; and (c) establishments or undertakings which are subject to exemptions from the permit requirements pursuant to Article 24. Where possible, existing records held by the competent authority shall be used to obtain the relevant information for this registration process in order to reduce the administrative burden.”

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principle that defences should be strictly interpreted. Extending the scope of application of the defence to other administrative acts that have similar functions (endorsement of an activity or emission)—like, for example, a registration—would contradict the strict interpretation principle. The legal treatment of the permit defence is similar to that of the development risk defence. By exonerating the operator from his liability when it comes to restoration costs, the defence ultimately leads to having liability resting upon the shoulders of public authorities. The author will further elaborate on this aspect below.818 4.1.4 Critical Assessment of the Permit and Development Risk Defences 4.1.4.1 The Permit and Development Risk Defences were Highly Contested during the Legislative Process: Outcome of the Trade-offs As has been seen in chapter 1,819 tensions during the legislative process can evidence trade-offs. Endorsing the development risk and permit defences has created tensions during the legislative process between the European Parliament and the Council, and between European Parliament Committees. The defences were clearly perceived by several actors as gaps and calling for concessions. Below, the author briefly reports on these tensions. In the legal history of the drafting of the two defences, several moments can be identified. The first important step occurred between the European Commission’s Proposal and the European Parliament’s first Report. In the 21 February 2002 Commission’s Proposal, the development risk and permit defences were provided in Article 9(1): [T]his Directive shall not cover environmental damage or an imminent threat of such damage caused by: (c) an emission or event allowed in applicable laws and regulations, or in the permit or authorisation issued to the operator; (d) emissions or activities which were not considered harmful according to the state of scientific and technical knowledge at the time when the emission was released or the activity took place.820

818  It has been seen above in chapter 1 at section 1.3.1 that the boundaries between liability and responsibility obligations are pretty blurred in Directive 2004/35. The author will not repeat these remarks. 819  See chapter 1, section 1.4. 820  Proposal for a Directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage,

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In the Proposal, the development risk defence and permit defence did not ground responsibility or exception to responsibility. Development risks merely fell outside of the scope of the Directive. This is extremely important in terms of the competence of Member States to adopt or maintain more stringent provisions, as seen above: the matter was entirely left to Member States’ discretion. A second key step occurred with the European Parliament’s first Report. The shift gave rise to internal tensions within the European Parliament. On 2 May 2003, the first reading Report of the European Parliament drafted by Toine Manders (Committee on Legal Affairs and the Internal Market), regulated the defences as grounds for responsibility and defences and mitigating factors as follows in Article 10(3).821 The justification for this shift reads as follows: An emission or event and its foreseeable effects, specifically and explicitly allowed in applicable laws and regulations, or in the permit or authorisation issued to the operator, shall be considered as a factor to mitigate the level of financial compensation with respect to liability. Explanatory Memorandum, COM/2002/0017 final—COD 2002/0021, Brussels, 23 January 2002, OJ 151 E, 25 June 2002, pp. 0132–0145. 821  Report on the proposal for a European Parliament and Council directive on environmental liability with regard to the prevention and remedying of environmental damage (COM(2002) 17—C5-0088/2002–2002/0021(COD)) Committee on Legal Affairs and the Internal Market, Final A5-0145/2003, 2 May 2003. Rapporteur: Toine Manders, Amendment 39: “Subject to the preceding paragraph, when deciding the level of responsibility and the amount of financial compensation in respect of liability to be recovered from an operator, the competent authority and a reviewing court or tribunal shall take into account the following mitigating factors: (a) an emission or activity specifically allowed in applicable laws and regulations, or in the permit or authorisation issued to the operator. An emission or event and its foreseeable effects, specifically and explicitly allowed in the permit or authorisation issued to the operator, can be considered as an exemption, so far as the usual risks within the framework of the authorisation are concerned. In case of damage, the responsibility then lies with the issuing authority; (b) emissions or activities which were not considered harmful according to the state of scientific and technical knowledge at the time when the emission was released or the activity took place and were addressed and managed in accordance with an environmental audit and management system of the operator concerned, reflecting the operator’s environmental performance and that complies with the requirements of applicable international standards for risk assessment of operational and accidental releases from sites. If such a system cannot be established in a reasonable and workable way, especially for SMEs, the state-of-the-art can be an exemption.”

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A permit is only a true and full exclusion if the permit is based on the highest risk-level an operator may face. Therefore, the permit will be extremely detailed and over-regulated in its character and narrow in its scope. The risk level on which the regulation in the permit is based, may not always reflect the actual risk-level of the operators’ activities. This, in turn, may lead to a disproportionate administrative burden for operators. Therefore, a differentiated system of responsibility is proposed. According to that system, operators can opt for a level of responsibility following a continuum of a highly regulated and strict permit, leading to frequent and intensive control by the government on the one side and, on the other side, an open permit system, tailor-made to the actual risk-level of the operator’s activities. With the first option, the full responsibility lies at the issuer of the permit, in most cases the government. With the second option, the responsibility to supervise and control environmental performance shifts to the operators and the government will control by random checks analogue to the financial accounting system. (. . .) An incentive and reward for using ERAM (Environmental Risk Assessment Management system) is that only users of ERAM are permitted to use the state-of-the-art defence. If it is not possible to establish such a system in a reasonable way, especially for farmers and SMEs, the state-of-the-art can be considered as an exemption.822 To that point, the development risk clause and permit defences as enshrined did not fall outside the scope of application of the Directive and were accordingly not left to the complete discretion of Member States, as the European Commission had initially envisaged it. Instead, the development risk clause and permit defence were meant not only to justify and set the standards for the level of responsibility and liability (i.e., the level of breach of primary obligations and the resulting level of secondary obligations and financial compensation). The development risk clause and permit defence were also meant to justify responsibility as is clear from the emphasis added. The permit defence and development risk clause were contested as mitigating factors in the Opinion of the Committee on the Environment, Public Health and Consumer Policy: The scope and effectiveness of a strict liability regime very much depend on the nature and extent of the defences allowed. The “compliance with permit” and the “state of the art” exceptions currently included in the text of the proposed Directive must be completely removed, to ensure that 822  Ibid. (emphasis added).

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the costs of remediation are borne by those causing environmental damage. These exceptions should not be admitted as defences, thus restricting the scope of the liability regime. This would undermine the effective implementation of the “polluter pays” principle. The Commission’s legal study (. . .) clearly states that none of the 10 EU-states and the 5 OECD countries that were surveyed allows for either the permit defence or the state of the art defence in their environmental liability regimes.823 The justification for such a strong opposition to the amendment proposed by the Committee on Legal Affairs and the Internal Market is provided under the 53th amendment proposed by the Committee on the Environment, Public Health and Consumer Policy: If this defence is maintained, it will undermine the precautionary and the “polluter pays” principles and would allow operators to escape liability. Also, the limited provision of strict liability is further eroded and the proposed regime is de facto turned into a fault-based liability regime leading to potentially serious environmental damage not being covered.824 Despite this quarrel between the Committees, the permit defence and development risk clause were maintained in the European Parliament opinion at first reading on 14 May 2003.825 The shift in the status of the permit defence and the development risk clause from being mitigating factors to “full” defences occurred on the impetus of the Council, supported by the European Commission. The European Parliament eventually accepted the shift. In the Council Common Position dated 18 September 2003,826 the permit defence and development risk clause clearly reflect the regulatory choice according to which development 823  Ibid. p. 74 (emphasis in the text). 824  Ibid. pp. 109–110. 825  European Parliament legislative resolution on the proposal for a European Parliament and Council directive on environmental liability with regard to the prevention and remedying of environmental damage (COM(2002) 17—C5–0088/2002—2002/0021(COD)) (Co-decision procedure: first reading) dated 14 May 2003, OJ C 067 17 March 2004, p. 0137– 0185 E. 826  Common position adopted by the Council with a view to the adoption of a Directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage, C5–0445/2003, OJ C 277 18 November 2003, p. 0010–0030 E.

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risks ground exception to the responsibility principle in Article 8(4).827 The European Commission, in its Communication concerning the Common Position of the Council, claimed that the European Parliament’s drafting and the Council’s drafting of the development risk clause and permit defences “seemed” to be similar.828 The author can only disagree with the European Commission regarding the permit defence and development risk clause. Even though development risks and the permit defence definition are similar, three main differences cannot be ignored. First, in the view of the European Parliament, the defences were to be taken into account when deciding the level of responsibility and liability. The defences were not absolute, but could trigger the level of responsibility to be apportioned on the grounds that development risks caused environmental damage or that a permit had been granted. In the Council’s Common Position, the defences become absolute defences. Second, in the Council’s Common Position, whether or not the defences would be implemented into national 827  “The Member States may allow the operator not to bear the cost of remedial actions taken pursuant to this Directive where he demonstrates that he was not at fault or negligent and that the environmental damage was caused by: (a) an emission or event expressly author­ ised by, and fully in accordance with the conditions of, an authorisation conferred by or given under applicable national laws and regulations which implement those legislative measures adopted by the Community specified in Annex III, as applied at the date of the emission or event; (b) an emission or activity or any manner of using a product in the course of an activity which the operator demonstrates was not considered likely to cause environmental damage according to the state of scientific and technical knowledge at the time when the emission was released or the activity took place.” Whereas, as seen above (at section 4.1.2) in the analytical grid, development risks can also ground responsibility. 828  Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the Common Position of the Council on the adoption of a Directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage, SEC/2003/1027 final—COD 2002/0021: “Amendment 91: the thrust of Parliament’s amendment seems to be reflected in Article 8(4), dealing with ‘Prevention and remediation costs’, which provides that Member States may allow the operator not to bear the costs when the damaging emission or event is expressly authorised under Community law (Article 8(4)(a)) or was not considered likely to cause environmental damage according to the state of scientific and technical knowledge (Article 8(4)(b)). Article 8(4) replaces Article 9(1)(c) and (d) of the Commission proposal, which were “exceptions”. One should also bear in mind the difference in wording between paragraphs 3 and 4 of Article 8. That said, parts of the amendment on the liability of competent authorities and on the use of an environmental audit and management system by operators have not been incorporated in the Common Position.”

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law is left to Member States to decide. This was not the case in the European Parliament’s position. Third, when the European Parliament refers to both responsibility and liability (the operator bearing the costs), the Council’s Common Position refers to liability, but no longer to responsibility. The Recommendation for Second Reading of the European Parliament on the Council common position (5 December 2003) endorses the Council’s regulatory choice to consider permit and development risk defences to be “full” defences.829 This was not going to be modified and is enshrined in the adopted Directive.830 On the whole, signs of tensions with regards to the development risk and permit defences during the legislative process of Directive 2004/35 were obvious, and this signals that some trade-offs could have occurred.831 829  European Parliament Recommendation for Second Reading on the Council common position for adopting a European Parliament and Council directive on environmental liability with regard to the prevention and remedying of environmental damage (10933/5/2003— C5-0445/2003—2002/0021(COD)), Committee on Legal Affairs and the Internal Market, Final, A5-0461/2003, 5 December 2003. Rapporteur: Toine Manders, Amendment 16. 830  As a remark, this European Parliament’s amendment creates confusion when contending in its justification that “The wording of the common position risks undermining the current permit system and the development of appropriate financial security instruments. The downgrading of the exceptions originally provided for by the Commission to factors that would diminish the costs would introduce an unacceptable element of uncertainty into production related costs” (emphasis added). It was the European Parliament that advocated the development risk clause to mitigate responsibility and liability in its first reading, while on the contrary the Council retained in its Common Position an absolute function, just as the European Commission did in its Proposed Directive. 831  As an evidence of similar tensions, the derogation conditions in the 2000/60 Water Framework Directive referred to by Directive 2004/35 where one of the key issues to be agreed upon at the conciliation level. As expressed for example in the European Parliament’s third report on the joint text approved by the Conciliation Committee for a European Parliament and Council directive establishing a framework for Community action in the field of water policy: European Parliament’s third report on the joint text approved by the Conciliation Committee for a European Parliament and Council Directive establishing a framework for Community action in the field of water policy (C5–0347/2000—1997/0067(COD)), European Parliament delegation to the Conciliation Committee, final A5-0214/2000, Brussels, 29 August 2000, pp. 9–10: “Derogations and timetables. The derogation conditions were tightened according to the principles of the EP amendments, but the EP delegation had to make concessions in order to succeed in its demands for legally binding objectives.”

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4.1.4.2

Three Common Criticisms to the Development Risk Defence and Permit Defence: Deficits in Harmonisation, Coherence and Consistency In the above, tensions during the legislative process of Directive 2004/35 regarding the development risk and permit defences were clear. Below, checks will be performed as to whether these tensions resulted in trade-offs that can be identified as some of the gaps shared by the development risk and permit defences. To begin with the room left to Member States as to whether or not to implement the defences. This has been criticised by several authors. They result in the abandoning of the “attempt to establish a common system of liability within the European Community”.832 The lack of uniform application matter is also stressed in the Fondazione Rosselli Report concerned with Directive 85/374 on liability for defective products, this Directive leaving a similar option for Member States in implementing the development risk clause. Among the concerns that have to be addressed without delay, they underline that “Since the present disparity in applying the clause in different Member States and industries no longer seem to be acceptable, steps should be taken to harmonise its application”.833 Scholars also highlight this gap in harmonisation.834 The European Commission itself acknowledges this problem in its Report on Directive 2004/35 dated 12 October 2010, when identifying the “uneven application of the permit and state of the art defences by Member States” as calling for immediate attention, anticipating the 2014 review of the Directive.835 In this respect, a particular point should be mentioned: the cases where national law did not allow these defences to be brought into play by the operator, but

832  L. Krämer (2006)b, p. 44. For law and economics authors, see for example K. De Smedt (2007), p. 190 and references in footnote n. 200. The author agrees with Pr. Faure that “allowing these defences would seriously undermine the regime of the Directive”. Similar tensions arose regarding the derogations but will not be reported at length. 833  Final Report of the Fondazione Rosselli (“the Fondazione Rosselli Report”) mandated by the European Commission, “Analysis of the Economic Impact of the Development Risk Clause as provided by Directive 85/374/EEC on Liability for Defective Products, 2004. The Report is available on the European Commission’s website at , page visited 28 July 2010, p. 5. 834  See for example M. Wilde (2006), p. 288. 835  Report from the Commission Under Article 14(2) of Directive 2004/35/CE on the environmental liability with regard to the prevention and remedying of environmental damage, COM(2010) 581 final, 12 October 2010, p. 11.

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defences were later introduced into national law when implementing the Directive. Aside from the deficit in harmonisation, the development risk and permit defences can be criticised in terms of coherence.836 Some authors regret that the permit and development risk defences reintroduce the fault component of the Directive.837 It is unfortunate that these defences have been made subject to a fault qualification and this could prove to be a fundamental flaw in the legislation; it is a messy solution which is redolent of compromise. (. . .) This is antipathetic to the concept of strict liability in that the parties should not have to engage in this debate (whether the operator is at fault) at all. (. . .) The fault qualification is an entirely superfluous and potentially costly complication which serves no real purpose.838 On the contrary, other scholars perceive the fault component as a mere “exception” to the no-fault responsibility principle.839 For others, the fault component in the defences, by changing responsibility regimes from “strict liability statutes” to “fault liability schemes that impose a high standard of care and reverse the burden of proof”, is to be welcomed.840 It is possible to add to this debate that the no-fault responsibility is founded upon the risk inherent to the activity, which is an objective component. By introducing the fault component, the weight of significance shifts onto the operator’s behaviour, a much more subjective component. All in all, whether welcome or not, the incoherence is fairly obvious.

836  The no-fault based responsibility regime set in the Directive has been described in chapter 2, section 2.2. 837   Contra, see P. Oudot (2009), p. 171. The author thinks the responsibility mechanism enshrined in Directive 2004/35 as implemented in France is grounded on the theory of “risk-warrantee”. 838  M. Wilde (2006), p. 288 (emphasis added). In the same sense see N. De Sadeleer (2006)a, pp. 95–96. 839  C. Pirotte (2006), p. 676. 840  L. Bergkamp (2001), pp. 269–270. It should be reminded that, while not taking position on the accurateness of the positions of positions of L. Bergkamp, this author applies another approach than the approach operated in this book. The author applies a functional and law and economics approach.

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A third criticism of common to the development risk and permit defences has to do with consistency matters with EU environmental law. The consistency requirement is acknowledged by the European Commission in the White Paper on Environmental Liability: In the framework of an environmental liability regime, consistency should be ensured with other Community policies and measures implementing these policies.841 The third criticism addressed against the development risk and permit defences relates back to the specific objective of, and the specific damage endorsed in Directive 2004/35. Without playing down damage to health that is addressed in Directive 2004/35, this damage has already been considered in other EU legal texts.842 The particularity with Directive 2004/35 that also gave rise to very heated debates lies on environmental damage. In chapter 2 the pivotal role of the notion of environmental service was highlighted.843 In the following development, the focus is on damage and harm to natural resources, and more particularly on the Wild Birds844 and Habitats845 Directives that are instrumental to define damage in Directive 2004/35. From the outset, the author can underline that the two defences endorsed result from the legislative process of the Directive, reflecting the shift from civil responsibility to the public law approach. Substantial changes in the approach undertaken by the Directive have been described in chapter 1.846 The author identifies below six matters of coherence.

841  European Commission, White Paper on environmental liability COM(2000) 66 final, 9 February 2000, p. 18. 842  Be it, for example, the Directive on liability for defective products. 843  See section 2.1.7. 844  Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, OJ L 020, 26 January 2010, pp. 0007–0025 (codified version), the “Wild Birds Directive”. 845  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206, 22.7.1992, p. 7), codified version (2007) available on the Eurlex webpage at , page visited 11 August 2010, the “Habitats Directive”. 846  The Directive was initially meant to encompass a civil responsibility mechanism. These defences were consistent with this initial approach. While retaining a public law, regulatory approach, these defences remained in the final text. See section 1.4.1.

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First, the Directive’s central focus supposedly rests on environmental damage,847 not on the behaviour of operators.848 In turn and resulting from the regulatory approach, environmental damage is defined according to the Wild Birds, Habitats and Water framework Directives. This implies par ricochet that some provisions of the wild birds and Habitats Directives have to be taken into account when interpreting the development risk defence. This link is also made in the Directives themselves, for example, in the Preamble of the Habitats Directive: Whereas the improvement of scientific and technical knowledge is essential for the implementation of this Directive; whereas it is consequently appropriate to encourage the necessary research and scientific work. The distinctiveness of terminology between this provision and the development risk clause is striking.849 All in all, the interplay between environmental responsibility defences and EU environment protection law has to be brought to the fore. In this respect, one can see tension between the development risk defence that endorses knowledge’s “crystallisation” and insufficiencies as grounding responsibility defence on the one hand; and the need for improvement of scientific and technical knowledge on the other hand. Second, changing the fact of biodiversity loss is an objective of EU natural resources law. Biodiversity loss is perceived as of incremental importance,850 which means that this loss of biodiversity is to be taken into account when 847  As appears from the Preamble, Recital 3: “Since the objective of this Directive, namely to establish a common framework for the prevention and remedying of environmental damage at a reasonable cost to society” (emphasis added). We saw above that this may not be the case. 848  Like in the development risk defence where focus on the nature of the risks incurred by an activity. 849  Similarly, see the habitats Directive, Article 12(4). 850  Wild Birds Directive, Preamble, Recital 3: “A large number of species of wild birds naturally occurring in the European territory of the Member States are declining in number, very rapidly in some cases. This decline represents a serious threat to the conservation of the natural environment, particularly because of the biological balances threatened thereby.” In the Preamble of the Habitats Directive, reference is made to the preservation, protection and improvement of the quality of the environment, including the conservation of natural habitats and of wild fauna and flora, as an essential objective of general interest pursued by the Community.

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specifying details of environmental responsibility mechanisms, and more particularly when endorsing and applying some responsibility defences. Biodiversity loss could hence carve out the interpretation and application of the defences. Third, conservation of biodiversity is another objective of EU natural resources law. The conservation of biodiversity is set as an objective and detailed within the Community’s objectives in the Wild Birds Directive: the obligations set in the Directive are meant to address “the preservation, maintenance or restoration of a sufficient diversity and area of habitats” as essential to the “conservation of all bird species”.851 Additionally, to ensure the survival and reproduction of certain species, some positive measures are to be undertaken by Member States. As for the scope of these conservation measures, they are meant to apply to the various factors which may affect the numbers of birds, namely the repercussions of man’s activities and in particular the destruction and pollution of their habitats, capture and killing by man and the trade resulting from such practices (emphasis added).852 The link is made between human activities (with a particular attention on destructive and polluting activities) on the one hand, and the conservation objective and measures on the other hand. The link is also made explicit in the Habitats Directive’s Preamble: Whereas, the main aim of this Directive being to promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements, this Directive makes a contribution to the general objective of sustainable development; whereas the maintenance of such biodiversity may in certain cases require the maintenance, or indeed the encouragement, of human activities. Overall, the conservation objective calls for management obligations that are meant to extend to human activities which destroy or pollute natural resources. Turning back to the responsibility paradigm and primary obligations, this implies that defences should not apply when such management obligations have been infringed. The permit defence could be found to reflect the management obligations in as much as these management obligations would 851  Wild Birds Directive, Preamble, Recital 8. 852  Wild Birds Directive, Preamble, Recital 6.

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be perceived as fulfilled by the actions of public authorities (the “public law approach”): the regulatory approach, by endorsing conservation obligations which are binding to public authorities, would eventually be in line with the management and conservation objective. Indeed, management obligations have been respected insofar as the permit conditions have been respected. Similarly, the development risk defence can be analysed as endorsing management obligations by having them void in as much as the risk is reputed to be “unmanageable”. Concluding that the development risk defence and permit defence are in line with the natural resources conservation objective must nevertheless be nuanced, since the primary obligations binding operators are not defined according to objectives of environmental conservation. They rather have, as their most central concern, risk (the non fault responsibility mechanism endorsed for the most dangerous activities listed in Annex III— the “regulatory approach”) or the operator’s behaviour (respecting the permit conditions). The improvement of the environmental situation is another objective of EU natural resources law and a fourth potential inconsistency between the defences and EU environmental law. It is worthwhile to highlight that the conservation objective is not limited to conservation, management and control measures as seen above.853 The conservation objective does not call for a “status quo” in the loss of biodiversity. The improvement of the current situation in terms of biodiversity is also provided for as an objective, as appears in the Wild Birds Directive’s Preamble: “The conservation of the species of wild birds (. . .) is necessary in order to attain the Community’s objectives regarding the improvement of living conditions and sustainable development” (emphasis added).854 The situation is all the more clear in the Habitats Directive’s Preamble: “Whereas the preservation, protection and improvement of the quality of the environment, including the conservation of natural habitats and of wild fauna and flora, are an essential objective of general interest pursued by the Community, as stated in Article 130r of the Treaty” (emphasis added).855 853  As provided in the Wild Birds Directive, Article 1. 854  Wild Birds Directive, Preamble, Recital 5. This is made crystal clear in for example Article 3 of the Wild Birds Directive, Article 3(1): “In the light of the requirements referred to in Article 2, Member States shall take the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats” (emphasis added). 855  And also later, still in the Preamble: “restoration or maintenance of natural habitats and species of Community interest at a favourable conservation status”.

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As a fifth matter of concern, environmental values’ protection is also an objective of EU natural resources law. Protection is phrased in absolute terms, i.e., not relative ones that would have to be balanced against any kind of economic interests, unless specifically provided.856 This appears clearly in the above quotation: “essential objective of general interest”, and in another Recital of the Habitats Directive: “Whereas, in view of the threats to certain types of natural habitat and certain species, it is necessary to define them as having priority” (emphasis added). On the other hand, protection objectives are phrased in relative terms in the Habitats Directive under the sustainable development concept, as in Article 2(3): Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics. Still, the margin of discretion left to Member States for derogation measures and the assessment of the fair balance requirement under the sustainable development concept is highly restricted, as appears both in the European Court of Justice’s case law and in the Wild Birds and Habitat Directives’ provisions. Precedence is implicitly given to the protection of habitats, as appears, for example, in Articles 6(3): the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public

The improvement of environmental quality calls for positive obligations that are brought into play mainly when liability (secondary) obligations are canvassed. These fall outside the scope of the book and will not be further discussed. 856  See for example the Wild Birds Directive, Recital 7: “Conservation is aimed at the long-term protection and management of natural resources as an integral part of the heritage of the peoples of Europe. It makes it possible to control natural resources and governs their use on the basis of the measures necessary for the maintenance and adjustment of the natural balances between species as far as is reasonably possible” (emphasis added). See above on the “apportionment of risks” and the weighting of social and economic interests.

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and (4): If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected (emphasis added). It results that apportionment of responsibility should be awarded by giving loss of biodiversity and improvement due weight. It should also be noted that when the protection objective gives flesh to primary obligations (for example not to damage a particular habitat), whether these obligations are relative or absolute will prove crucial. The defences could be challenged when due weight has not be given to protection objectives. Similarly, the defences could be challenged when the protection obligations are phrased in absolute terms. In other words, the primary protection obligations have as a prerequisite that the obligation is defined according to the environmental feature, not according to risk or to the operator’s behaviour. This is clearly at odds with the two defences assessed, the development risk and permit defence. As a sixth matter of potential discrepancy, Directive 2004/35 covers among other environmental elements those that are res communes.857 The res communes legal nature of birds,858 habitats and water means that they are not subject to form a support of any claim of property rights, and the whole community must enjoy the use of these res communes. Indeed, granting “permits to pollute” (permit defence) or, more generally, granting defences despite an environmental damage having occurred and having its origin in an operator’s activity, could be seen as supporting or even approving the pollution. Some authors contend that the polluters, by the very pollution, grant themselves with property rights on the polluted environment.859 Consequently, the defence 857  See chapter 2 for res communes’ legal definition, treatment and articulation in Directives 2004/35 and 2008/99, section 2.1. 858  As is made explicit for example in the wild birds Directive, Preamble, Recital 4: “The species of wild birds naturally occurring in the European territory of the Member States are mainly migratory species. Such species constitute a common heritage” (emphasis added). Similarly, see Recital 7 of the same Directive. The Preamble of the habitats Directive refers to the “Community’s natural heritage”. 859  M. Serres (2008).

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mechanisms would endorse such illicit property rights and illicit hampering of the community as a whole in their enjoyment of the res communes. For it to be consistent with its regulatory approach, there should have been due consideration to EU environmental conservation law in the rules set in Directive 2004/35 and more particularly, in regards to how EU environmental law defines the scope of application of the Directive. Also, due account should have been given to Directive 2004/35’s objectives, definition of environmental damage, and both the rationale and content of EU environmental law referred to by Directive 2004/35, since the latter endorses a regulatory approach based on public law. EU environmental resources law should have initiated the definition of the primary obligations that trigger the responsibility mechanism when breached. On the contrary, preference has been given to responsibility mechanisms without taking into account Directive 2004/35’s objectives, the environmental damage addressed in it or EU environmental resources law rationale or content. In other words, the emphasis lies on risk management rather than on environmental responsibility. EU judicial bodies could nevertheless solve these problems. For example, in the ERG case,860 the Court and Advocate General heavily refer to EU environmental law objectives when they interprete Directive 2004/35. 4.1.4.3

The Development Risk Clause as a Defence: Questioning the Regulatory Choice The development risk defence also has five specific gaps concerning the legal treatment of the defence. Firstly, the defence has been introduced when the effect and efficiency of the defence are as yet unknown. It can seem quite questionable to endorse into a Directive a defence for which very little data is available in relation to its effect and efficiency.861 30 years after its endorsement into Directive 85/374, doubts are still raised on its actual efficiency. Hence, in light of the “unknown” added value of the mechanism, one can wonder whether it was appropriate to endorse it in the Directive in 2004, taking into account all the heated debates that occurred on its adoption, questions on its consistency with EU law, and the potential for the defence to wipe out any application of Directive 2004/25.

860  EU Court of Justice (Grand Chamber) of 9 March 2010, C-378/08, Raffinerie Mediterranee (ERG) SpA, Polimeri Europa SpA and Syndial SpA v Ministero dello Sviluppo economico and Others. Reference for a preliminary ruling. OJ C 301, 22 November 2008. 861  It has been seen above that very few cases were brought to Courts, both national and European Courts.

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Second, adding supplementary conditions for the defence to be applicable can be advocated: it has been seen above that the defence is meant to reflect a “fair apportionment of risk”, taking into account demands for environmental protection, industry demands and the social value of the activities concerned by the defence. It has also been demonstrated that Member States adding supplementary conditions (for example, obligations lying on the operator regarding access to information, or monitoring of the risks created) for the defence to perform could arguably be found to infringe EU law, if the distinct legal basis of Directive 2004/35 was not taken into account. Here, one could wonder whether the fair balance was reached at all. This would potentially upset the constraints binding Member States if they wanted to add supplementary conditions for the defence to be applicable. The third, fourth and fifth inconsistencies refer to EU Primary law, and particularly to the EC Treaty862 and EU Charter of Fundamental Rights.863 The third inconsistency is between the development risk defence and EU primary law, more specifically Article 174(1) ECT. Article 174(1) refers to the following objectives to be attained by the Community policy (Union policy after the Lisbon Treaty): preservation, protection and improvement of the quality of the environment, protection of human health, and prudence and rational utilisation of natural resources. Reference to the preservation, protection and improvement of the quality of the environment echoes the Charter of Fundamental Rights of the European Union, Article 37 (environmental protection).864 Environmental protection and the improvement of environmental quality standards can be considered as clashing with the objectives of the development risk defence. As seen above, the development risk defence is concerned with the “fair apportionment of risks” as remembered by the European Court of Justice. One can wonder to what extent the development risk defence does acknowledge protection, preservation and improvement of the environmental quality as triggering factors considered when setting the “fair apportionment of risks”. Environmental damage in its most explicit definition provided by the Directive does not appear in the development risk defence as a mitigating factor. Moreover, the scope of damage and harmful 862   Treaty establishing the European Community (consolidated text), OJ C 325 of 24 December 2002. 863  Charter of Fundamental Rights of the European Union, OJ C 83 of 30 March 2010. 864  The Charter has binding force since the Lisbon Treaty. Article 37 provides: “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”.

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effects (such as irreversibility) are absolutely ignored in the clause. Hence, the protection and preservation of the environment are not predominant in the “fair apportionment of risks”. The fourth inconsistency relates back to Article 174(2) ECT. The development risk defence seems to conflict with the principles aimed at guiding environmental policy.865 The “polluter pays principle”866 is clearly infringed since the development risk clause eventually results in the polluter not paying.867 Nevertheless, given the very heated debates on the legal value of the polluter pays principle as a ground to challenge EU environmental legislation, the author will not elaborate on this principle. Similarly, the principle of rectification at the source is clearly infringed with the development risk defence in Directive 2004/35. The Directive is meant to regulate the operator’s responsibility while the operator is identified as the person who is in control of the damaging activity and hence the most appropriate person to rectify the operation of the activity, emission or manner of using a product. If this person is not held responsible, it is in contradiction of the “rectification at the source” principle. The precautionary principle and prevention principle could prove to be very solid grounds on which to challenge the development risk defence. These principles are elaborated on in the following section when addressing the development risk defence legal regime. In this part concerned with the legal definitions endorsed in the development risk defence, the precautionary and prevention principles raise similar questions when it comes to their respective scope of application. It is commonly contended that the prevention principle and corresponding prevention obligations apply to risks that are certain, while the precaution principle and obligations flowing from it applies to risks that

865  Article 174(2) EC Treaty reads as follows: “2. Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a Community inspection procedure”. 866  On the “polluter pays principle” not being instrumental for providing with responsibility rules see chapter 2, section 2.2.2. 867  See for example N. De Sadeleer (2006)a, pp. 95–96 and J. J. Bautista Romero (2009).

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are uncertain.868 The development risk clause is concerned with a third category or risks: unknown risks. Reflecting on the legal definitions and boundaries between these three categories of risk suggests the benefits of the exercise of qualifying risks. More specifically, is a risk unknown, and does it hence fall under the scope of the development risk clause (and defence)? Or is this qualification mistaken? In this later case, the risk is not unknown, but instead either uncertain or certain, and must escape from the development risk clause and instead fall under the scope of application of the prevention or precautionary principles. Some scholars focus on the interpretation of the development risk clause. Overall, the underlying premises and results are the same: an operator not being able to invoke the development risk defence for this interpretation or application would conflict with the precautionary principle.869 An illustration has been provided with GMOs as being an example of the interpretation/ application exercise.870 Clearly, the assessment would be done on a case-bycase basis. This question is linked to other issues, for example, knowledge that is privately owned and unveils certain or uncertain risks. This knowledge is not available for the regulators or authorities taking positions on responsibility. They will not be able to regulate the risk that falls outside the scope of the development risk clause, but should instead see it fall under the scope of the precaution and prevention principles and their following obligations. This point will be elaborated on below in the context of Article 174(3). The fifth and last gap relates to the legal definition of the development risk defence and Article 174(3) ECT. Article 174(3) ECT refers to the Community having the responsibility to take due account of “available scientific and technical data”, amongst other sources, when preparing its policy.871 The issue is that companies operating in particular sectors (for example nanotechnologies) can privately own some data (knowledge). Nothing obliges the companies to come forth with such knowledge, some of which can even be protected by 868  See for example Commission of the European Communities, Communication from the Commission on the precautionary principle, COM(2000) 1 final, Brussels, 2 February 2000; N. De Sadeleer (2002); N. De Sadeleer (2004). 869  See for example M. Wilde (2006), pp. 284–287. 870  Ibid. pp. 285–286. 871  Article 174(3) EC Treaty provides that “In preparing its policy on the environment, the Community shall take account of available scientific and technical data, environmental conditions in the various regions of the Community, the potential benefits and costs of action or lack of action, the economic and social development of the Community as a whole and the balanced development of its regions”.

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industrial secrecy.872 Following from this, the responsibility of the Community (Union after the adoption of the Lisbon Treaty) can hardly be fulfilled when critical data is not accessible to EU institutions. The development risk defence endorses this situation since the development risk clause endorsed in Directive 2004/35 does not provide any obligation binding the operator to release critical data or at least acknowledge that this data is privately owned. Nothing is done to have critical data released when the release could preclude the application of the defence. Ultimately, this could constitute a fault that would not only preclude the application of the development risk defence, but also have significant consequences for the responsibility rules of Directive 2004/35 (for activities that fall under the fault based responsibility rules), but also at national level (contractual responsibility or non contractual responsibility) where fault is a crucial component for having responsibility recognised.873 4.1.4.4

Application and Interpretation of Development Risks: Concerns that Relate Back to the Temporal Dimension and Precautionary Principle The second series of gaps of the development risk defence relate back to the legal definitions of the defence. Two matters are addressed. As seen above, the European Court of Justice has set a limit to the quantitative knowledge to be invoked by the operator with a view to being exonerated from responsibility. The knowledge considered is “objectively accessible knowledge”. This introduces an element of subjectivity that is initially not retained in the development risk clause as a defence. The operator is not expected to prove that he could not know about the risks involved with his activity, emission or manner of using a product, but only that it was absolutely and objectively impossible to predict the risk and following damage or threat of damage: the development risk defence is literally drafted in objective terms. The first gap concerns the temporal limitations of the defence. It is emphasised in the following section that environmental damage have the potential 872  On an example of EU environmental law engaging into the fight of such secrecy in health and environmental matters see for example Article 25 of Directive 2001/18/EC of the European Parliament and of the Council on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, OJ L 106/1, 17 April 2001. More particularly, Article 25(4) reads as follows: “4. In no case may the following information (. . .) be kept confidential: (. . .) methods and plans for monitoring of the GMO or GMOs and for emergency response; environmental risk assessment”. 873  It has been seen above that national responsibility systems do not conflict with the 2004/35 Directive in as much they are based on distinct grounds and have other fields of application (such as “traditional damage”).

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to be latent for a long period, and potentially only reveal themselves or their effects after much time has passed. Bearing in mind this aspect, together with the development risk defence, it appears that Directive 2004/35 limits the application of responsibility and liability rules. Not only for the risks that fall under the application of precaution and prevention rules (all the more important for the activities governed by a fault-based regime), but also for the risks governed in the development risk defence (i.e. unknown risks). Unknown risks could have required a specific temporal treatment, but this is not the solution upheld in Directive 2004/35.874 To be fair, the lack of any temporal limitation could amount to an infringement of the legal certainty, as contended by the European Court of Justice.875 A second problem relates back to the articulation between development risks as a defence and the precautionary principle (and corresponding obligations). Scholars acknowledge the tension between the precautionary principle and the development risk clause as a defence.876 A particular attention can be paid to the relationship between the precautionary principle and the “Manchurian Exception”. As seen above, the Manchurian exception refers to knowledge’s accessibility. The author also elaborated above on the critical issue related to the boundaries between the precautionary principle and the development risk clause. One could wonder: to what extent could the precautionary principle have the legal effect to require that “privately owned data” be disclosed to the public? If it was the case, and if the data released did reveal that the risk was not unknown but rather uncertain, these findings would hamper the application of the development risk clause. They would instead trigger the application of the rules stemming from the precautionary principle and precaution obligations. In other words, the precautionary principle could restrict the field of application of the development risk clause and impose its own rules on the risks at stake and the obligations binding operators in the conduct of their activity, use 874  On the strict application of temporal limitations in EU responsibility frameworks, see for example European Court of Justice, C-358/08, Aventis Pasteur, 2 September 2009, not yet published, and particularly paras. 40–46. 875  As was argued by the European Court of Justice, ibid. para. 47. 876  See for example E. Brans (2001), p. 188: “Because the ‘state of the art’ defense enables the defendant to escape liability if an investigation into the possible dangerous effects of the activity concerned would not have produced sufficient information on the dangers, a certain tension exists between this defense and the precautionary principle”.

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of products or release of emissions.877 In addition, the precautionary principle could require the operator to actually perform research in order to advance knowledge on the potential risks. Operators would no longer be able to rely on their ignorance, which can be, in some instances, voluntary. Concretely, this could be assessed against the funding devoted to research and evaluated against the current or potential profit following the activity. Rationae Temporis Matters that Limit the Possibility to Set Environmental Responsibility into Motion Temporal limitations that restrict the scope of application of the Directive can be found in Article 10 of Directive 2004/35. As a general principle, one can read in the Preamble, recital 30 that “Damage caused before the expiry of the deadline for implementation of this Directive should not be covered by its provisions”. Two distinct temporal limitations can be identified.878 4.1.5

4.1.5.1 Two Temporal Limitations: Non-retroactivity and Prescription The first temporal limitation sets a general temporal limitation, irrespective of the implementation deadline. Article 17, 3rd indent, provides that Directive 2004/35 shall not apply to: (. . .) damage, if more than 30 years have passed since the emission, event or incident, resulting in the damage, occurred. Many commentators have criticised this provision,879 not as much for the mere idea of setting a general temporal limitation, but rather for how the 877  In the same sense, see M. Faure (2009), p. 262; M. Stallworthy (2003), pp. 18–19; and F. Ost (1995)a, pp. 296–297. 878  Once again and as seen above, due account should be taken of the possibility to adopt or maintain more stringent provisions. 879  See for example D. Earnhart (2004), pp. 97–122; L. Collins (2007), and partic. p. 330: “Thus, on the whole, the EU employs a relatively short time horizon in its environmental decision making, contrary to the tenets of the doctrine of IGE”. As such, these temporal limitations have been severely criticised. See for example P. Thieffry (2008), p. 617: “La directive 2004/35 se distingue par un encadrement temporal qui paraît incohérent avec ses objectifs de protection de l’environnement et de mise en oeuvre du principe pollueur-payeur affichés. Les législations dont c’est la finalité s’affranchissent généralement de telles limitations, à la différence des régimes classiques de responsabilité civile auxquels de telles caractéristiques sont empruntées par la directive, qui s’écarte ainsi de la logique qui lui est sous-jacente, faisant une concession aux lobbies industriels et aux Etats-Membres qui y sont sensibles”.

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30 years period is initiated: the starting point. The EU legislator chose to set the starting point of the limitation period as the time of the “emission, event or incident”. It is however commonly underlined by environmental lawyers and backed by scientists that a very long period can elapse between the causal “emission, event or incident” of damage and realisation of the damage (some authors mention “consolidation”).880 It is one of environmental damage’s peculiarities.881 Such a long period has various explanations. The environment does not react “mechanically” to an “emission, event or incident”: many factors interfere and explain why it can take a while before damage occurs. This is the “environmental” or “ecological” aspect. Once damage occurs, it can take a while before scientists and society even discover it. Not to mention that some of the emissions, events or incidents are caused by activities which oddly but intrinsically involve long-range effects, when there is not a mere lack of knowledge of the potential effects.882 This is the “human” aspect. In this respect some authors have expressed their preference for the starting point of the limitation period being the actual realisation of damage.883 Overall, alongside the setting of a limitation period which can be challenged and seen as one of the limitations of the Directive itself, the starting point enshrined by the Directive is at least very controversial and criticised.884 880  See for example Report CDES (2008), p. 290. 881  See for example P. Cane (2001), pp. 8–9; and L. Neyret (2006), pp. 298–300. 882  One can think here about nanotechnology activities. 883  Nevertheless, others claim that such a starting point could lead to “uncertainty”, an unbearable burden for industries. Eventually, this could be an obstacle to technical progress or the right to development. Such a line of argument has been largely expressed when questioning the precautionary principle. Those are opportunity statements that we will not further elaborate. For an overview of those tensions, see A. Waite (2006), pp. 80–81; and contra this argument, see H. Zandvoort (2005); see also J. Similä (2002). 884  See for example M. Peña Chacón (2009): “En cuanto al inicio del cómputo del plazo para todas aquella acciones ambientales prescribibles tratándose de daños ambientales cuyos efectos negativos son perceptibles y apreciables concomitantemente a la fecha de ocurrencia de la acción u omisión contaminadora o degradadora del medio ambiente, este empieza a correr desde el mismo momento en que aconteció el hecho dañoso o desde su primera manifestación. Mientras que el reclamo de los daños ambientales cuyos efectos negativos aparecen y son perceptibles con posterioridad al hecho dañoso, el plazo inicia a partir de que el o los damnificados conocen, o debieron conocer mediante una razonable posibilidad de información, actuando con la debida diligencia (due diligence) el daño sufrido, pues es hasta ese instante que el interesado se encuentra en posibilidad jurídica de ejercer su acción.

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The second limitation relates to the implementation deadline. Article 17, 1st and 2nd indents, provides that the Directive does not apply to “damage caused by an emission, event or incident that took place before the date referred to in Article 19(1)” and “damage caused by an emission, event or incident which takes place subsequent to the date referred to in Article 19(1) when it derives from a specific activity that took place and finished before the said date”. The date referred to is 30 April 2007. Reference to “emission, event or incident” has already been criticised above. What the Directive provides for is no retroactivity. Two distinct hypotheses do not fall within the Directive’s scope. Firstly, the damage is caused by an emission, event or incident that took place before 30 April 2007. Secondly, damage caused by an emission, event or incident that takes place after 30 April 2007, but the emission, event or incident derives from a specific activity that took place and finished before 30 April 2007. An example that this last exclusion could cover would be a leakage of stored waste that occurs on 1st May 2007, the storing activity having ceased on 27th April 2007. These temporal limitations have been largely commented and criticised by legal scholars.885 The “division of damage” is not precise enough in the Directive: it concerns the emission, event or incident that began before 30 April 2007 but continues after 30 April 2007.886 Also, the question of burden of proof is not dealt with: is it for the public authority or environmental NGO to demonstrate that the emission, event or incident occurred after 30 April 2007? Or is it for the operator to demonstrate that the emission, event or incident occurred before 30 April 2007?887

Respecto al daño ambiental continuado, el cómputo de la prescripción debe iniciarse a partir del último acto de violación repetitiva, continua e ininterrumpida, sea cuando cesa y se produce su verificación total y definitiva. En este último caso, en el tanto la conducta ilícita se siga desarrollando, la prescripción queda interrumpida cada vez que se repite la acción dañosa, y por tanto su plazo de prescripción vuelve a correr una y otra vez, lo que lleva a concluir que mientras la acción se siga generando, la prescripción no corre. Interpretar y aplicar el instituto de la prescripción de la forma aquí planteada, evitaría que la incertidumbre inherente a la cuestión ambiental y el transcurso del tiempo, se conviertan en factores que favorezcan al contaminador, haciéndolo inmune de recomponer el ambiente degradado e indemnizar los daños y perjuicios ocasionados.” 885  For example and relating to the non-retroactivity effect for damage to soils, see A. Layard (2006), pp. 138–139; M. Hinteregger (2008), pp. 641–642. Contra E. H. P. Brans (2001) p. 191 welcomes the non-retroactive nature of the regime. See also M. L. Wilde (2001), pp. 25–26. 886  E. H. P. Brans (2001), p. 191. 887  Ibid. p. 19; see also L. Bergkamp (2001), p. 42 for a more fundamental critic.

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4.1.5.2 The Specific Temporal Limitation Clarified in the ERG Case The ERG case888 concerns the interpretation of Directive 2004/35. The EU Court of Justice (Grand Chamber) ruled on 9 March 2010 on several aspects of Directive 2004/35, including the Directive’s temporal application. The Tribunale administrativo regionale della Sicilia referred a number of questions to the Court of Justice for a preliminary ruling concerning the application of the 2004/35 Directive. Even though the referring Court did not raise questions on the applicability rationae temporis of the Directive, the Court found it necessary to determine the requirements for the applicability rationae temporis of the Directive in light of the facts in the main proceedings.889 The Italian, Greek and Netherlands governments, together with the European Commission, referred to this aspect. In paragraphs 38 to 43, the Court holds that Article 17 sets out the types of situation where the Directive is not applicable. These are determined in “negative terms”. From this “negative terms” phrasing, it follows that any other temporal situation does as a principle fall under the scope of application of the Directive (paragraph 39). The Court then relates back to the letter of Article 17, 1st and 2nd indent. Damage caused before the expiry of the deadline for implementation of Directive 2004/35 and not falling under the Directive’s scope of application encompasses both damage caused by an emission, event or inci888  EUCJ (Grand Chamber) of 9 March 2010, C-378/08, Raffinerie Mediterranee (ERG) SpA, Polimeri Europa SpA and Syndial SpA v Ministero dello Sviluppo economico and Others. Reference for a preliminary ruling. The facts of the case are very clearly reported in the Court’s press release. In this case, the Italian legislation was questioned. The Augusta roadstead, situated in the Priolo Gargallo Region (Sicily), has been affected by recurring incidents of environmental pollution dating back to the 1960s, when the Augusta-PrioloMelili site was established as a hub for the petroleum industry. Since that time, numerous undertakings operating in the hydrocarbon and petrochemical sectors have been set up and succeeded one another in that region. By various successive decisions, the Italian administrative authorities required the undertakings bordering the Augusta roadstead to carry out measures to remedy the pollution found in the Priolo region, which had been declared a ‘Site of National Interest for the purposes of decontamination’. Raffinerie Mediterranee (ERG) SpA, Polimeri Europa SpA, Syndial SpA and ENI SpA brought actions against those administrative decisions before the Italian courts. The Tribunale amministrativo regionale della Sicilia (Regional Administrative Court, Sicily, Italy), which must give a decision in those cases, referred a number of questions to the Court of Justice for a preliminary ruling concerning the application of the ‘polluter pays’ principle. The Italian referring Court did seek to ascertain whether the ‘polluter pays’ principle precluded Italian national legislation that allows the authorities to require private undertakings to implement rehabilitation measures, irrespective of whether or not any investigation has been carried out to identify the party responsible for the pollution in question. 889  Ibid. para. 35.

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dent which took place before 30 April 2007 or to damage caused after that date which derives from an activity that was carried out and finished before that date (paragraph 40). A contrario, when first, the damage was caused by an emission, event or incident which took place after 30 April 2007, and second, either deriving from an activity carried out after 30 April 2007 or deriving from an activity that was carried out before 30 April 2007 but not finished by 30 April 2007, damage falls under the scope of application of the Directive (paragraph 41). The Court then specifies that it will be for the national Courts to ascertain facts put before them with a view to determining whether the situation falls under or outside of the scope of application of the Directive on rationae temporis grounds (paragraphs 42–43). If Directive 2004/35 does not apply, national rules on the prevention or remediation of damage apply and are not precluded by the Directive’s rules. Advocate General Kokott’s opinion delivered on 22 October 2009 is much more instructive. She differentiates between two aspects not distinguished in the Court’s ruling. The pollution that starts before 30 April 2007 and continues after that date is distinguished from the activity that begins before 30 April 2007 and continues after that date. This reflects what can actually happen: an initial pollution (i.e. the emission, event or incident—first element)890 that causes damage (second element). The third element is the activity that generated the pollution. In reality, it happens that the pollution caused damage after a long time-span, as stressed above. So it can be that the pollution occurred before 30 April 2007, the activity ceased by 30 April 2007, but the damage is only revealed (i.e. either acknowledged by people or happening after an environmental inertia) after 30 April 2007. Would this situation fall under the scope of application of the Directive? The Advocate General does not answer this question, but rather considers the situation of cumulative damage and propagated damage. Cumulative damage refers to a situation where the majority of the damage occurred before 30 April 2007 but the pollution occurred after that date (paragraph 57). This can happen in a situation where an operator caused a part of damage before 30 April 2007 (“old damage”), and another operator or the same operator created another part of damage (“new damage”) after 30 April 2007 on the same site. According to Advocate General Kokott, the part of damage that occurred after 30 April 2007 falls under the scope of appli890  “Fait générateur” in French.

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cation of the Directive (paragraphs 68–71). She adds that distinguishing the “old” from the “new” damage is highly difficult in practice (paragraph 71). Under the propagated damage situation,891 there is an initial pollution (for example escape of polluting substances from a waste dump) that later, after 30 April 2007, generates another pollution (for example polluting substances contaminating ground waters, this contamination being legally defined as a subsequent emission) while the activity that caused pollution is continued after 30 April 2007. According to Advocate General Kokott, Article 17, 2nd indent is meant to cover such situations and exclude them from the scope of application of the Directive (paragraphs 60–61). To reach this conclusion the Advocate General seems at first to unveil from Article 17, 1st indent that, as a rule, the occurrence of pollution is a foundation with a view to identifying the rationae temporis applicability of the Directive. In this respect, pollution occurring before 30 April 2007 is to be viewed as a “pre-existing situation” which does not fall under the scope of application of the Directive (paragraph 65). The centre of focus hence lies on the emission, event or incident rather than on damage to the environment or the activity as such. Nevertheless, Advocate General Kokott later rejects this interpretation that allows the application of Directive 2004/35: she applies an a contrario interpretation of this rule. It could be contemplated that an activity ceased before 30 April 2007, but the pollution occurred after 30 April 2007 or propagated after 30 April 2007, hence calling for the situation to fall under the scope of application of the Directive. Advocate General Kokott clearly rejects this interpretation in paragraphs 67–76 and relies on the general dynamics of the Directive. Operators have the obligation to take preventive actions or remediation measures. Acknowledging the central focus resting on the activity in paragraph 75 (“the prevention of further damage in the future as a result of an activity focuses precisely on the activity”), no prevention or remediation obligation can bind the operator for neither pollution nor “old” damage that occurred before the Directive’s implementation deadline, 30 April 2007, and propagated “autonomously”, i.e. created a “new damage” when the successive pollution is not directly related to the activity continuing after 30 April 2007. The Court followed the Advocate General’s conclusions by strictly rejecting “old damage” or “old pollution” from the scope of application of the Directive. In the following sections the author focuses on the interplay between environmental procedural rights guaranteed by the Council of Europe human rights law and EU environmental responsibility law. Relating to the first 891  “Weiterfressen” in German, as reported by Advocate General Kokott in paragraph 61; “fait générateur en cascade” in French.

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section of the chapter of the book, three elements found in Directives 2004/35 and 2008/99 are addressed: the permit defence, the public trust doctrine, and more generally speaking the administrative nature of environmental responsibility. Attention is directed to the procedural requirements of independence and impartiality that apply to public authorities who have a pivotal role in the practical application of the Directives (4.2), the boundaries of the development risk defence framed by the requirement to diffuse environmental information on risks (4.3), and the inconsistencies of rationae temporis limitations (4.4). 4.2

Impartiality and Independence Requirements and the Discretion of Public Authorities: A Complement Case

Two questions are answered in this section. Firstly, to what extent can the public nature of the responsible authorities be challenged in terms of impartiality and independence? This question is addressed under the second sub-section. Secondly, to what extent can these requirements have a role to play? The author answers this question in the third sub-section and relies upon a concrete example: the French implementation of the Directives and, accordingly, the designated competent authorities. The “French case” is introduced below. 4.2.1 An Illustration: The French Implementation of the Directives With a view to understanding why there can be impartiality and independence concerns in practice, the author relies in the following developments upon concrete examples where these requirements may not be fulfilled. The illustrations are taken from French implementation of Directives 2004/35 and 2008/99. More specifically, the illustration focuses on water law. Directive 2004/35 requires that Member States designate the competent authority that will set environmental responsibility in motion in Article 11(1). As an application of the public trust doctrine, this authority is the pivotal institution regarding environmental responsibility (Article 11(2)). When implementing the Directive, France has designated the Prefect of the Department where the facilities, structures, works and activities that have generated damage or the imminent risk of damage are located as the competent authorities in the field of water.892 It appears that the Prefect of the Department is also 892  French Environmental Code, Article R162-2, II (created by Décret n° 2009-468 du 23 avril 2009 relatif à la prévention et à la réparation de certains dommages causés à l’environnement, Article 1). The Prefect is the central government representative in the department and region.

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competent to deliver the authorisations to these same facilities, structures, works and activities.893 Thus, the Prefect of Department is competent to both grant authorisations and set in motion environmental responsibility, including the permit defence mechanism. Directive 2008/99 does not provide any guidance regarding the prosecution of environmental offences. In French water law, “classical” prosecution services are competent, together with some administrative authorities that have been granted criminal competence. Law n°2006–1772 (dated 30 December 2006) introduced the possibility for the administrative authority (the Prefect) to block public prosecution. The administrative authority has the competence to propose to the offender a criminal settlement for a broad range of water-related offences. Article 216–4 of the Environmental code stipulates two conditions that must be fulfilled for the proposed criminal settlement to be valid: first, the public prosecution cannot be in motion. Second, the Public Prosecutor (“Procureur de la République”) must agree with the proposal. Application of (Environmental) Procedural Rights Requirements to Public Authorities that Set Environmental Responsibility in Motion The purpose of this section is to determine to what extent (environmental) procedural rights requirements apply to the competent authorities (Directive 2004/35) and the prosecution services (Directive 2008/99) with a view to setting environmental responsibility in motion. Attention is directed to the “classical” procedural human rights (guaranteed by Articles 6 and Article 13 of the European Convention on Human Rights) that provide with the impartiality and independence requirements as well as environmental procedural rights.894 4.2.2

The “classical” procedural rights are the right to a fair trial (guaranteed by Article 6 of the Convention)895 and the right to an effective remedy (guaranteed

893  Pursuant to Article R.214–6 of the same Code. 894  To do so, there is to screen the Court’s case law. As has been seen in chapter 1, section 1.2.5, the Court has unveiled environmental procedural rights independently from Articles 6(1) and 13. Indeed, it was seen that these environmental procedural rights pertain to “substantive rights” (for example right to property, to family life). 895  Article 6(1) of the Convention provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

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by Article 13 of the Convention).896 They both apply to criminal prosecution services, as flows from the letter of Article 6(1). These rights apply to the prosecution services that set environmental criminal responsibility in motion, pursuant to Directive 2008/99. Can administrative authorities’ decisions initiate the application of the fair trial and effective remedy requirements? The text of Articles 6 seems to call for a negative answer. Article 6 refers to civil rights and criminal matters. Nevertheless, the Court has developed an extensive notion of what is meant to encompass a “civil right”, and hence triggers the application of the requirements of Article 6. This dynamic interpretation has concerned a wide range of legal fields (from social to tax matters), including administrative matters. In the recent Micallef v. Malta case (2009)897 the Court first recalled that as a principle for a matter to fall under the scope of application of Article 6(1) in 896  Article 13 of the Convention provides: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” In practice, the Court has recognised that Article 6 embodies a “right to Court”. This renders the boundaries between Article 6 and 13 fairly blurred. The right to court embodied by Article 6 is made crystal-clear in the Cudak v. Lithuania case (23 March 2010, Grand Chamber), at para. 54: “The Court reiterates that the right to a fair hearing, as guaranteed by Article 6(1) of the Convention, must be construed in the light of the principle of the rule of law, which requires that all litigants should have an effective judicial remedy enabling them to assert their civil rights (. . .) Everyone has the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way Article 6(1) embodies the ‘right to a court’, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect only . . .”. 897  ECtHR, Micallef v. Malta, 15 October 2009 (GC). The applicant is Joseph Micallef. The neighbour of his sister (who has since died) had been brought before civil Courts by her neighbour. The presiding judge of the Court hearing this case granted the neighbour an injunction in the absence of the applicant’s sister, who had not been informed of the date of the hearing. Later, the civil court concluded against the applicant’s sister on the merits. Concomitantly, the applicant’s sister had initiated civil proceedings with the view to challenging the injunction had been granted in her absence and without giving her the opportunity to testify. The competent civil Court found that the injunction had been issued in violation of the adversarial principle and declared it null and void. This finding has been subsequently upheld by an appeal initiated by the neighbour of the applicant’s sister. The Court of Appeal set aside the judgment of the Civil Court in favour of the applicant’s sister. The latter then lodged a constitutional appeal with the Civil Court, in its constitutional jurisdiction, contending that the Chief Justice sitting in the appeal court had not been impartial given his family ties with the lawyers representing the other

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its civil aspect, there must be a genuine and serious dispute over a civil right. The civil right must be arguably recognised under domestic law. The dispute must be over an actual right or the scope or exercise of a right. As a last condition, the “result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6(1) into play”.898 These elements condition the application of Article 6. A contrario, the administrative nature of the legislation and authorities in the balance does not a priori preclude the application of Article 6 in its civil function.899 But the application of “classical” procedural rights to the administrative authorities designated by Member States pursuant to Directive 2004/35 would not be automatic. Accordingly, it is necessary to investigate the application of environmental procedural rights requirements to these authorities with a view to determining whether the impartiality and independence requirements will apply. party (the Chief of Justice was the brother and uncle of the lawyers who had represented her neighbour). The constitutional appeal (taken over by the applicant after his sister’s death) was dismissed in 2004. In 2005 another appeal brought before the Constitutional Court was also dismissed. The applicant lodged a case before the ECtHR, arguing that Article 6(1) of the Convention had been violated. He contended that the Court of Appeal had not been impartial because of the family ties between the presiding judge and the lawyers for the other party. In the judgment of 15 January 2008, the Court concluded (by four votes to three) that there had been a violation of Article 6(1) of the Convention on account of the lack of objective impartiality of the Court of Appeal. At the government’s request, the case has been referred to the Grand Chamber on 7 July 2008. On 15 October 2009, the Court concluded by 11 votes to six that there had been a violation of Article 6(1) of the Convention on account of the lack of impartiality of the Court of Appeal. 898  Ibid. para. 74: “(f)or Article 6§1 in its ‘civil’ limb to be applicable, there must be a dispute (‘contestation’ in the French text) over a ‘civil right’ which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is also protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6§1 into play”. 899  Ibid. “The character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, and so on) and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, and so forth) are therefore of little consequence”. See also ECtHR, J.S. and A.S. v. Poland, 24 May 2005, paras. 45 and 46.

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Adding to the application of “classical” procedural rights to administrative authorities, environmental procedural rights also apply to the administrative competent authorities designated pursuant to Directive 2004/35. In fact, in most cases where environmental procedural rights were at stake, the decisions of administrative judicial authorities were involved.900 Do environmental procedural rights endorse the impartiality and independence requirements guaranteed by “classical” procedural rights? In other words, the “classical” procedural rights apply to the prosecution services that set environmental criminal responsibility in motion and to the competent authorities designated pursuant to Article 11 of Directive 2004/35. The application of the impartiality and independence requirements flowing from Articles 6 and 13 of the Convention is not automatic. In turn, this potentially limited application of the classical procedural rights to the authorities designated pursuant to Directive 2004/35 serves to direct the attention to environmental procedural rights with a view to identifying whether the concomitant application of classical procedural rights and environmental procedural rights can apply in the case addressed and, hence, fulfil the framing function scrutinised in this chapter: complement, confirmation or conflict. The focus now turns to the case law of the Court in order to determine whether environmental procedural rights endorse the impartiality and independence requirements that would bind the prosecution services.901 With a view to finding out whether environmental procedural rights do encompass the impartiality and independence requirements, it is appropriate to compare the wording of the environmental procedural rights with the wording of “classical” procedural rights. Here, the author can identify an analogy between the terms employed. As appears, for example, in the Taskin case: The Court reiterates that, according to its settled case-law, whilst Article 8 contains no explicit procedural requirements, the decisionmaking process leading to measures of interference must be fair and such as to afford due respect for the interests of the individual as safeguarded by Article 8 . . . It is therefore necessary to consider all the procedural aspects, including (. . .) the procedural safeguards available,902 900  See for example, the Giacomelli v. Italy case. 901  As has been seen in chapter 1 at section 1.2.5, the Court has unveiled the environmental procedural rights that pertain to “substantive rights” (for example right to property, to family life . . .). They do not, accordingly, rely upon the “tribunal” or “remedy” notions as triggering the application of the procedural requirements. 902  ECtHR, Taşkin and Others v. Turkey, 24 November 2004, para. 118, emphasis added.

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and in the Giacomelli case: Lastly, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process.903 The analogy also appears in the Dubetska case: The Court will likewise examine to what extent the individuals affected by the policy at issue were able to contribute to the decision-making, including access to the relevant information and ability to challenge the authorities’ decisions in an effective way904 and in the Tatar case: Eventually, the individuals concerned must also be enabled to initiate legal proceedings before tribunals against any decision, any act or failure to act if the individuals consider that their interests or observations have not been sufficiently taken into account in the decision making process.905 Hence, by analogy, the impartiality and independence requirements guaranteed by “classical” procedural rights do apply within the framework of environmental procedural rights. Consequently, if the “classical” procedural rights are found not to apply because of the “civil” aspect requirement, the environmental procedural rights do require the available courts to be independent and impartial. The abovementioned shows that the “competent authority” designed pursuant to Directive 2004/35 has to meet the independence and impartiality requirements on account of both “classical” procedural rights and environmental procedural rights. The prosecution services which set environmental 903  ECtHR, Giacomelli v. Italy, 2 November 2006, para. 83, emphasis added. 904  ECtHR, Dubetska and Others v. Ukraine, 10 February 2011, para. 143, emphasis added. 905  ECtHR Tatar v. Romania, 27 January 2009, translation mine. Para. 88: “Enfin, les individus concernés doivent aussi pouvoir former un recours contre toute décision, tout acte ou toute omission devant les tribunaux s’ils considèrent que leurs intérêts ou leurs observations n’ont pas été suffisamment pris en compte dans le processus décisionnel” (emphasis added).

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criminal responsibility in motion have to comply with the impartiality and independence requirements enshrined in the “classical” procedural rights. Questioning and Ensuring Public Authorities’ Impartiality and Independence With a view to establishing what the impartiality and independence requirements encompass, one has to turn to the Court’s case law. The impartiality requirement has given rise to a whole series of judgments. In the recent Micallef v. Malta case mentioned above, the Court recalled its settled case law regarding the content of the impartiality requirement.906 4.2.3

From the outset, impartiality is defined as “the absence of prejudice or bias”907 and is assessed according to two tests: an objective one and a subjective one. When applying the subjective test, “regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case”.908 As a principle, impartiality on account of a judge is presumed “until there is proof of the contrary”.909 When applying the objective test, one must ascertain “whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality”.910 The difference with the subjective test is made clear: As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or 906  ECtHR, Micallef v. Malta, 15 October 2009 (Grand Chamber). 907  Ibid. para. 93. 908  Ibid. 909  Ibid. para. 94. 910  Ibid. para. 93. The Court has emphasised that in practice the distinction between the objective and subjective test is not always very workable: “However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (. . .) Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee”, ibid. para. 95.

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a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified.911 The content of the objective test has been specified by the Court and is now settled case law. The Court mostly directs its attention to hierarchical “or other links” between the judge and “other actors” in the proceedings that would “objectively justify misgivings as to the impartiality of the tribunal, and thus fail to meet the Convention standard under the objective test”.912 More specifically, the Court takes into account the nature and degree of the hierarchical or other links between the judge and other actors in the proceedings as indicators of a lack of impartiality.913 In the following developments, the author focuses on the objective test since the subjective test very much depends upon the circumstances of the case and upon the conduct of the judge. Similarly to the above, one has again to turn to the case law of the Court in order to determine the content of the independence requirement. The independence requirement applies to the parties concerned and to the executive. Indeed, and quite relevantly for the following developments, the independence requirement also focuses on hierarchical links, and does more particularly focus on the nature of the hierarchical authority. As a rule, if a judicial authority or prosecuting service is subordinate to the executive, the independence requirement is presumably not fulfilled. This settled case law was recalled, for example, in the Pantéa v. Romania case: since prosecutors in Romania act as members of the Prosecutor-General’s Department, subordinate firstly to the Prosecutor-General and then to the Minister of Justice, they do not satisfy the requirement of independence from the executive.914 911  Ibid. para. 96. 912  Ibid. para. 97. 913  Ibid. In addition, the appearance of objective impartiality also has a role to play: “[E]ven appearances may be of a certain importance or, in other words, ‘justice must not only be done, it must also be seen to be done’ . . . What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw”, ibid. para. 98. 914  ECtHR, Pantea v. Romania, 3 June 2003, para. 238. In this case, the applicant (Alexandru Pantea) had been involved in an altercation. He has been prosecuted and remained

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Independence of prosecuting services from the executive was also at stake in the Moulin v. France case.915 In this case, the Court had been very cautious in making clear that it was not meant to take position regarding the debate that was (by then) taking place in France regarding the ties of dependency between the Minister of Justice and the prosecuting authorities in France. As the Court put it at the time, this matter was to be determined by the French national authorities. In this case, the Court concluded that public prosecutors in France did not satisfy the independence requirement from the executive. More particularly, the Court took on board three criteria regarding the public prosecutors. Firstly, they depend from a hierarchical superior who is a member of the government, and hence the executive power. Secondly, they are not irremovable, and thirdly, they are placed under the supervision and control of an authority within the State Council Office (“parquet”), and under the authority of the ministry of Justice.916 In the following developments, the author will focus on independence from the executive and apply the three criteria applied by the Court in this respect.

in custody until being released on the account that his detention had been unlawful. The applicant lodged a complaint regarding the prison warders and his fellow-prisoners. The complaint was dismissed by the Oradea military prosecution service. In another action the applicant sought damages for his unlawful detention. This action has also been also dismissed by the Timiş Court of First Instance on the ground that it was time-barred. The applicant lodged a case before the ECtHR, arguing among others that the public prosecutor who ordered the applicant’s detention was not a judge for the purposes of Article 5(3). Accordingly, this provision had been violated. The Court followed the applicant on this point. 915  ECtHR, Moulin v. France, 23 November 2010. The applicant, Mrs. France Moulin, was arrested on the basis of instructions issued in connection with a prosecution for drug trafficking and was placed in police custody. The following day her police custody was extended by an investigating judge of the Toulouse tribunal de grande instance, who did not hear evidence from her in person. Later, two investigating judges went to the police station to examine the conditions of the applicant’s custody. Mrs Moulin brought a case before the Court, arguing that she had not been “brought promptly” before “a judge or other officer authorised by law to exercise judicial power” as required by Article 5(3) (right to liberty and security). The Court’s ruling concerned the notion of “competent legal authority” for the purposes of Article 5(3) of the Convention. The Court found that Article 5(3) had been violated. On this case, see A. Gouritin (2010). 916  ECtHR, Moulin v. France, 23 November 2010, para. 56. In the recent Kolyadenko case (ECtHR, 28 February 2012, Kolyadenko and Others v. Russia) the Court has reiterated its former case law that requires independent, impartial and effective official criminal investigations, notably in the context of dangerous activities (at pps. 190–191).

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4.2.4 Challenging the French Implementation 4.2.4.1 Challenging the French Implementation of Directive 2004/35 When implementing the Directive, France has designated the Prefect as the competent authority regarding water. It appears that this authority is also competent to grant authorisations. There are reasonable grounds to wonder whether these authorities will be impartial and independent in their handling of environmental responsibility. The Prefect both awards the permits that allow an operator to escape responsibility and also has to initiate the responsibility mechanisms. To what extent will this authority be impartial when assessing whether a permit has been legally granted to and respected by an operator? With a view to assessing the independence of the prefect, four criteria are taken into account. First, consideration must be given to the appointment of the Prefect. The Prefect is appointed by a Decree signed by the President of the Republic and following a decision adopted by the Council of Ministers.917 Hence, the executive is responsible for the appointment of the prefect. Second, the duration of the Prefect’s office: the Prefect is not irremovable. Third, guarantees against outside pressures: there are no guarantees that the Prefect will not suffer pressures. The prefect remains under the supervision of the executive. Fourth, an appearance of independence: this subjective element is appreciated on a case-by-case basis. Nevertheless, there are good grounds to believe that any NGO or citizen contesting the decision of the prefect not to set the responsibility in motion or to allow the potentially responsible person to rely on the permit defence would not perceive the Prefect as being independent from the executive. In summation, there are reasonable grounds to consider that the prefect is not independent from the executive when he has to handle environmental responsibility. It is interesting to point out that the Commission’s Proposal for a Directive on the protection of the environment through criminal law dated 9 February 2007 did also mention that relying on criminal authorities to set liability in motion was a guarantee of independence, when compared to the 917  Article 13 of the Constitution of the French Republic dated 1958 reads as follows: “The President of the Republic shall sign the Ordinances and Decrees deliberated upon in the Council of Ministers. He shall make appointments to the civil and military posts of the State. Conseillers d’État, the Grand Chancelier de la Légion d’Honneur, Ambassadors and Envoys Extraordinary, Conseillers Maîtres of the Cour des Comptes, Prefects, State representatives in the overseas communities to which article 74 applies and in New Caledonia, highestranking Military Officers, Recteurs des Académies and Directors of Central Government Departments shall be appointed in the Council of Ministers”.

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administrative authorities that also “grant exploitation licences and discharge authorisations”.918 When assessing the impartiality of the Prefect, it is important to stress that the prefect is the responsible authority to both grant the authorisations (“permit”) and set responsibility in motion (including the permit defence). It has been seen above that the Prefect must offer the sufficient guarantees with a view to excluding any doubt regarding his impartiality. NGOs or citizens could argue that the Prefect is not impartial when assessing whether the operator can successfully claim not to be responsible, on the basis that he respected the authorisation that the prefect had granted. Indeed, studies and case law at the national level report that the departmental Prefects tend to largely favour the operators. Administrative judicial authorities have cancelled huge proportions of authorisations granted to farmers in Brittany (in 2007, 54% of livestock farming authorisations were voided).919 Accordingly, there are good grounds to believe that the Prefect will not be impartial neither when handling the responsibility affairs nor, and more particularly, in the application of the permit defence.

918  European Commission Proposal for a Directive on the protection of the environment through criminal law, COM(2007) 51 final, 9 February 2007. Recital 5 provides: “By entrusting judicial authorities, rather than administrative authorities, with the task of imposing sanctions, responsibility for investigating and enforcing the respect of environmental regulations falls to authorities which are independent of those which grant exploitation licences and discharge authorisations”. This Recital has been deleted as a compromise during the first informal trilogue (European Commission—Council—European Parliament) dated 24 April 2008, as appears from the document entitled “Table of amendments—(amendments adopted by JURI Committee). Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law. Co decision procedure—First Reading (COM(2007) 51 final, internal document” (copy with the author). On a side note, the European Commission expressed that it “would prefer to keep this recital but could in the spirit of compromise accept its deletion—the content is not essential” (Ibid.). This deletion had been initially required by the European Parliament’s Report in first reading dated 15 April 2008 (2nd amendment, Committee on Legal Affairs. Rapporteur: Hartmut Nassauer). 919  V. Inserguet-Brisset (2011), p. 292: the author reports, among other issues, utterly insufficient impact assessments and the bias of some departmental authorities that clearly favour farmers.

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4.2.4.2 Challenging the French Implementation of Directive 2008/99 The author saw above that in French water law, “classical” prosecution services are competent, together with the prefect who has been granted criminal competence: he can engage in criminal settlements with the potential offender. The Public Prosecutor has to agree the settlement. Similarly to the above, are impartiality and independence guaranteed on account of the “classical” prosecution services and the administrative authorities that concomitantly grant permits and organise the declaration procedures? Regarding the Public Prosecutor, it has been seen above that the European Court of Human Rights has condemned these for their lack of independence in the Moulin v. France case, on account of the Public Prosecutor’s relationship with the executive. Impartiality concerns could be similarly advanced regarding the relationship between States’ Counsel and the executive. The European Court of Human Rights has never assessed the situation of the Prefect as an authority having criminal competence. As in the preceding, one has to reflect on the independence and impartiality of the Prefect in the handling of the criminal settlement procedure. The previous findings also apply here. The independence of the Prefect is not less questionable than the Public Prosecutor’s independence exposed above: the appointment of the Prefect, the duration of the Prefect’s office, guarantees against outside pressures, and whether the Prefect presents an appearance of independence (this subjective element is appreciated on a case-by-case basis). Regarding the Prefect’s impartiality, as seen above, practices evidenced by studies and case law at the national level report that the departmental Prefects tend to largely favour the operators when granting authorisations. The Prefect’s impartiality can similarly be questioned acting according to the criminal competences he has been granted by law n°2006–1772. In this section it has been established that impartiality and independence requirements frame the discretion of the public authorities that are granted the pivotal role to set environmental responsibility into motion in Directive 2004/35 and Directive 2008/99 and the application of the permit defence. These requirements complement the Directives in as much as they limit the gaps identified regarding the public trust defence. In the following section attention is directed to access to environmental information as a frame to the development risk defence.

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4.3

The Obligation to Guarantee Access to Environmental Information on Risk and the Boundaries of the Development Risk Defence: A Complement Case

Interplay between the Development Risk Defence and the Obligation to Diffuse Information on Risk: The Anticipation Doctrine The object of this section (development/unknown risks) is to be considered within its overall frame: the anticipation doctrine. The anticipation doctrine is directed towards the future, and strives for a proactive approach aimed at avoiding environmental damage, rather than reactively regulating environmental damage.920 The focus is no longer on damage but rather on risk per se.921 Anticipating relates back to “the action for someone to project himself towards the future and to represent the risks that could be triggered by an action or an activity and the strategies to put into place with a view to avoiding and eliminating these risks”.922 4.3.1

The anticipation doctrine covers ab initio risks, i.e. noxious substances and activities. The doctrine also addresses ex ante and ex post risks, where the doctrine then focuses on the causal link between the substance, activity and damage. In this section the attention is directed to the ab initio dimension of the anticipation doctrine. The focus is on the identification of risk. What is implicitly at stake is whether law can regulate the unknown. Should the unknown character of risk be translated into, and justify, a legal vacuum? Should this unknown character justify the non-application of legal rules, for this discussion, the responsibility principle? In this section legal deference to unknown risk is contested. The author contends that scientific, descriptive arguments (“is there a risk?”) can be articulated alongside law that is descriptive and normative (“risk should have been identified”). The anticipation doctrine is relied upon and applied to the development risk boundaries. When assessing whether development risks are unduly defined as development risks because information existed but was not shared, development risks’ “unknown” features is questioned. As has been seen in section 4.1.2, one of the essential components of the development risk clause is access to information. The operator can invoke the defence if research and studies had acknowledged the risk, but the infor920  M. M. Mbengue (2009), p. 3. 921  On the risk society, see C. M. Hanse and C. Calgaro (2010) and U. Beck (1992). 922  M. M. Mbengue (2009), p. 6 (translation mine).

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mation was nevertheless objectively inaccessible (for example when the information was published in a Chinese language journal). The requirement that knowledge must be accessible by the operator is referred to as the “Manchurian exception”.923 The purpose of this section is to challenge the boundaries of the development risk defence. More specifically, the focus is on the obligation to diffuse information on risks held by public authorities and operators. This obligation would limit the scope of application of the defence: risks would not be defined anymore as “unknown” risks. The diffusion of information regarding the results of research and studies has to be ensured. If operator A conduct research but nevertheless keep it from being disclosed to operator B and public authorities, the information will not be deemed accessible to operator B, who will be able to invoke the defence and escape responsibility.924 The same happens if public authorities do not or cannot diffuse the information. The right of access to information held by operators and public authorities is broader than the right to have documents disclosed: the right of access to information obliges the public authority to gather information. The right to the disclosure of information held by public authorities does not cover this upstream aspect of information-gathering. The specific aspect of information gathering by public authorities is dealt with in the first sub-section. In the subsequent sub-section the obligation to diffuse information or risks is researched and a solid basis is found in the Aarhus Convention and Council of Europe human rights law. Consequently, the scope of application of the development risk defence is framed by the obligation to guarantee access to environmental information on risk. Human rights complement the development risk defence and frame the corresponding gaps. 923  European Court of Justice, European Commission v. United Kingdom of Great Britain and Northern Ireland, 29 May 1997, ECR I-02649, para. 29. 924  On a side-note, it can be mentionned that the issue of disclosure related to responsibility defences emerged during the negotiation of the Kuala-Lumpur Protocol on Liability and Redress in the context of genetically modified organisms (LMOs), as reported in G. Singh Nijar, S. Lawson-Stopps, and G. Pei Fern (2008). The Norwegian delegation argued: “[n]ot all risks will be disclosed prior to the transboundary movement of LMOs”. Similarly, this delegation opposed the “permit defence” on the ground that “the permission is given by an authority based on information from the operator. The risk of this information not being correct would then be passed on to the authority”(G. Singh Nijar, S. Lawson-Stopps, and G. Pei Fern (2008), p. 234). Similarly, the Washington Biotechnology Action Council argued: “[s]trict liability is common for new technologies due to the information disparity between producers and possible victims of damage” (ibid. p. 202).

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Public Authorities have the Obligation to Gather Information on Risk In Council of Europe human rights law, States have to regulate potentially damaging activities. In order to perform this obligation, States have to monitor and research on risks, and gather relevant information on risks. 4.3.2

Risk regulation is meant to foresee and avoid future damage, thereby reflecting the anticipation doctrine. It is settled case law that national authorities have the duty to regulate activities that may interfere with citizens’ rights. This obligation not only applies to activities conducted by national authorities, but also applies to “private-sector activities”.925 The regulation must take into account the specifications of the activities. This obligation governs the licensing, setting up, operation, security and supervision of the activity. The obligation also encompasses the requirement for national authorities to adopt practical measures which aim to ensure the effective enjoyment of the rights guaranteed by the Convention.926 This duty “indisputably applies in the particular context of dangerous activities”.927 The obligation to monitor risks stems on the obligation binding States to regulate activities that create a potential risk for human health and the environment. The State’s regulation of these activities must take due account of the potential risks. The bridge between the obligation to regulate potentially damaging activities and the obligation to gather information on risks is built upon the issue of matters of proof.928 The proof requirement binds States in the form 925  See for example ECtHR, Giacomelli case, para. 78: “Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate privatesector activities properly.” 926  See for example ECtHR Tatar case, para. 88 and the Öneryildiz case, paras. 89–90: “The positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (. . .) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. (. . .) This obligation indisputably applies in the particular context of dangerous activities, where, in addition, special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks.” 927  See for example ECtHR Tatar case para. 88 and Öneryildiz case para. 90. 928  Proof requirements are a cornerstone issue in environmental affairs. The Court acknowledges it in the ECtHR 26 October 2006, Ledyayeva, Dobrokhotova, Zolotareva and

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of the requirement to have environmental impact assessments in place. Environmental impact assessments are crucial to ensure that States have all relevant information in situations when they regulate activities that could have an impact on human health or the environment.929 Environmental impact assessments are perceived by the Court as guarantees that the State has acknowledged the environmental potential effects of an activity and, consequently, has given due weight to the interests of the applicant. Romashina v. Russia case. In this case, the Court also clearly presents its approach in this respect at paras. 89–90: “89. At the outset, the Court recalls that in assessing evidence it uses the standard of proof ‘beyond reasonable doubt’. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention—to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention—conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (. . .). 90. Whereas in many cases the existence of an interference with a Convention right is evident and does not give rise to any discussion, in other cases it is a subject of controversy. The present, four applications belong to this second category. There is no doubt that serious industrial pollution negatively affects public health in general. However, it is often impossible to quantify its effects in each individual case, and distinguish them from the influence of other relevant factors, such as age, profession etc. The same concerns possible worsening of the quality of life caused by the industrial pollution. The ‘quality of life’ is a very subjective characteristic which hardly lends itself to a precise definition. Therefore, taking into consideration the evidentiary difficulties involved, the Court has no other choice than to repose thrust primarily, although not exclusively, in the findings of the domestic courts and other competent authorities in establishing factual circumstances of the case (. . .). However, the Court cannot rely blindly on the decisions of the domestic authorities, especially when they are obviously inconsistent or contradict each other. In such situation it has to assess the evidence in its entirety.” (Emphasis added) 929  Environmental Impact Assessments are also recognised as crucial to operate the precautionary principle in international environmental law. This is acknowledged by scholars (see for example Trowborst (2007), p. 189) and international Conventions, Protocols and Annexes (see e.g. the Biolodiversity Convention Article 14, the Cartagena Protocol Article 15, and Annex IV to the “OSPAR” Convention).

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In this respect, obligations binding States regarding environmental impact assessments are settled case law. The Court requires “appropriate investigations and studies” to be conducted so that “the effects of activities that might damage the environment and infringe individuals’ rights may be predicted and evaluated in advance”.930 The Court has specified that such studies must be relevant, accurate, and kept up-to-date.931 In turn, the requirement to correctly regulate risk would be supported by the environmental investigations and studies’ findings. If investigations and studies provide evidence of a risk (even if this evidence is uncertain), the Court sanctions the States’ insufficient reaction or lack of reaction.932 Nevertheless, the requirement is not absolute: the Court held in the Taskin case that the data to be gathered does not necessarily have to be comprehensive on all aspects which are potentially at stake in relation to an activity.933 Overall, the obligations to gather information on risks are assessed, in essence, through the environmental investigations and studies that must be conducted by national authorities. 930  See e.g. ECtHR, Giacomelli v. Italy, 2 November 2006, para. 83 and ECtHR 8 July 2003 (Grand Chamber), Hatton and Others v. the United Kingdom, para. 128: “On the procedural aspect of the case, the Court notes that a governmental decisionmaking process concerning complex issues of environmental and economic policy such as in the present case must necessarily involve appropriate investigations and studies in order to allow them to strike a fair balance between the various conflicting interests at stake.” 931  ECtHR Taskin case, para. 119. 932  The Court’s sanction of public authorities’ inadequate reaction or lack or reaction when they knew (or should have known) about the risks evidenced in investigations and studies is evidenced by numerous cases, among others the López Ostra v. Spain case (9 December 1994), Öneryildiz v. Turkey case (30 November 2004), Tatar v. Romania case (27 January 2009), Dubetska and Others v. Ukraine case (10 February 2011), Fadeyeva v. Russia case (9 June 2005), Giacomelli v. Italy case (2 November 2006), and Budayeva v. Russia case, 22 March 2008. In this latter case, following a death caused by a mudslide, the ECtHR found there had been a violation of Article 2 of the ECHR in its substantive aspect because there had been nothing to justify the authorities’ failure to implement regional planning and emergency relief policies in the hazardous area. For the application of the requirement in the context of natural disasters, see also ECtHR 24 March 2015, Application No. 9713/13 (admis. Dec.), Rodolfo Viviani v. Italy. This Decision concerns the risks associated with the Vesuvius volcano that could become active. 933  ECtHR, Taskin and others vs. Turkey, 10 November 2004, para. 118: “However, this does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided”.

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The added-value of Council of Europe human rights law lies in the fact that this obligation to regulate and gather information on risk is general and goes beyond EU environmental law. This obligation applies irrespective of whether or not EU environmental law provides for the obligation to gather information in specific pieces of legislation. In other words, if specific pieces of EU legislation do not regulate an activity, process or product and do not impose an obligation to gather information on risk, or if specific pieces of EU legislation regulate an activity, process or product but do not provide for the obligation to gather information on risk, the obligation to gather information on risk set by Council of Europe human rights law nevertheless applies. Operators and Public Authorities have the Obligation to Diffuse Information on Risk In this section the attention is directed to the right of access to information. The author will screen the European Court of Human Rights’ case law and the Aarhus Convention on access to information, public participation in decisionmaking and access to justice in environmental matters.934 The Aarhus Convention firmly sets the right of the public to access environmental information in Article 3(9): “Within the scope of the relevant provisions of this Convention, the public shall have access to information”. The right of public access to environmental information is also settled case law of the European Court of Human Rights. This is confirmed, among others, in the Taskin case: 4.3.3

The importance of public access to the conclusions of such studies and to information which would enable members of the public to assess the danger to which they are exposed is beyond question.935 934  United Nations Economic Commission for Europe, Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters Aarhus, Denmark, 25 June 1998. The Convention entered into force on 30 October 2001 and the EU approved the Convention on 17 February 2005. 935  ECtHR, Taskin and others vs. Turkey, 10 November 2004, para. 119: “The importance of public access to the conclusions of such studies and to information which would enable members of the public to assess the danger to which they are exposed is beyond question (. . .)”. See also ECtHR 19 February 1998 (Grand Chamber), Guerra and Others v. Italy, para. 60: “In the instant case the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory”.

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In the Vilnes case that will be discussed in greater details in section 4.3.5, the Court specified that the public’s right to information is not confined to information concerning risks that “have already materialised.” To the author’s knowledge, the Court has not dealt with cases whereby private parties have not disclosed information concerning the danger or the risk inherent to their activities, but has had to address cases where public authorities have not disclosed information to citizens. Nevertheless, the obligation to disclose environmental information to citizens does also concern operators. When public authorities disclose environmental information concerning danIn the same sense, see ECtHR, 5 December 2013, Vilnes and Others v. Norway, p. 235, and ECtHR, 28 February 2012, Kolyadenko and Others v. Russia, p. 159. The right of access to environmental information is also firmly endorsed by EU law. See Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, OJ L 264, 25/09/2006, pp. 13–19, Article 4: “Collection and dissemination of environmental information. 1. Community institutions and bodies shall organise the environmental information which is relevant to their functions and which is held by them, with a view to its active and systematic dissemination to the public (. . .). Community institutions and bodies shall make all reasonable efforts to maintain environmental information held by them in forms or formats that are readily reproducible and accessible by computer telecommunications or by other electronic means. 2. The environmental information to be made available and disseminated shall be updated as appropriate. (. . .) [T]he databases or registers shall include the following: (a) texts of international treaties, conventions or agreements, and of Community legislation on the environment or relating to it, and of policies, plans and programmes relating to the environment; (b) progress reports on the implementation of the items referred to under (a) where prepared or held in electronic form by Community institutions or bodies; (c) steps taken in proceedings for infringements of Community law from the stage of the reasoned opinion pursuant to Article 226(1) of the Treaty; (d) reports on the state of the environment as referred to in paragraph 4; (e) data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment; (f) authorisations with a significant impact on the environment, and environmental agreements, or a reference to the place where such information can be requested or accessed; (g) environmental impact studies and risk assessments concerning environmental elements, or a reference to the place where such information can be requested or accessed. (. . .)”.

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ger and risk, the operators can no longer invoke the “Manchurian” exception referred to above. In the subsequent sub section the attention is directed to the obligation binding public authorities to disseminate environmental information on danger and risk inherent to an activity. This obligation does have an “upstream” dimen­ sion (gathering information on danger and risk) and a “downstream” dimen­sion (disclosing the information to the public, including to operators conducting similar activities). Do Public Authorities have to Gather Environmental Information of Their Own Motion? Do national authorities have to gather environmental information of their own motion? Does the onus in relation to the obligation to gather information (this is the “upstream” aspect) lie on the rules binding States and public authorities in terms of risk management? 4.3.4

In the developments above, the attention was directed to national authorities’ obligation to conduct appropriate investigations and studies in the context of dangerous activities. In this section, the author addresses the obligation of national authorities to gather environmental information of their own motion as a general principle based upon Article 10 of the European Convention of Human Rights (Freedom of expression). The Court’s case law seems to be clear on this point: there is no general obligation binding national authorities to gather information. This has been asserted in the Guerra and Others v. Italy case, para. 53:936 The Court reiterates that freedom to receive information, referred to in paragraph 2 of Article 10 of the Convention, “basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him” (. . .). That freedom cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion. (Emphasis added)

936  ECtHR, Guerra and others v. Italy, 19 February 1998 (Grand Chamber). In this case, a chemical factory located nearby the applicants’ house was classified as high-risk. In the past, several incidents occurred. In this case, the applicants complained that public authorities had failed to inform the public on the hazards of the factory and about the procedures to be followed in case of a major incident. They grounded their case on Article 10.

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Nevertheless, the Court has established two exceptions to the principle that the State does not have to collect information of its own motion in the Tatar v. Romania case. Firstly, national authorities are bound by the obligation to collect and diffuse detailed information on present, past and future consequences for the environment and human health resulting from an ecological accident. Secondly, national authorities are bound by the obligation to collect and diffuse information on prevention measures and recommendations of ways to manage any future ecological accident.937 The Aarhus Convention also firmly sets the obligation to gather environmental information. Recital 16 of the Preamble recognises that public authorities must have “accurate, comprehensive and up-to-date environmental information” with a view to “fully integrating environmental considerations in governmental decision-making”. Information on development dangers falls within the scope of application of the Aarhus Convention. Environmental information is defined in Article 2(3) as any information in written, visual, aural, electronic or any other material form on: (a) The state of elements of the environment (. . .) (b) Factors, such as substances, energy, noise and radiation, and activities or measures (. . .) affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above (. . .)

937  ECtHR Tatar v. Romania, 29 January 2009, paras. 120–122. Para. 121 reads as follows (translation mine): “The Court notes that the positive obligations inherent to an effective enjoyment of private life or family life binding national authorities also and even a fortiori extended to the period following January 2000 (i.e. after the accident)” (Emphasis added). Para. 122 reads as follows (translation mine): “Given the sanitary and environmental consequences of the ecological accident, as recognised in the international studies and reports, the Court finds that the population of the Baia Mare city, including the applicants, has had to live in a state of anxiety and uncertainty accentuated by the national authorities’ passivity, when national authorities had the duty to provide the sufficient and detailed information as to past, present and future consequences of the ecological accident on their health and the environment, and as to prevention measures and recommendations for the caring of populations that would be subject to the same events in future. Adding to this is the fear caused by the activity continuing its operation, and by the possible reoccurring of the same accident in the future.” (Emphasis added)

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(c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above. The obligation to gather information on development risks is embodied in Article 5(1): Each Party shall ensure that: (a) Public authorities possess and update environmental information which is relevant to their functions; (b) Mandatory systems are established so that there is an adequate flow of information to public authorities about proposed and existing activities which may significantly affect the environment; (c) In the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected. In addition, the obligation to gather environmental information is supported in the context of particularly dangerous activities. Article 5(6) provides: Each Party shall encourage operators whose activities have a significant impact on the environment to inform the public regularly of the environmental impact of their activities and products, where appropriate within the framework of voluntary eco-labelling or eco-auditing schemes or by other means. Do Public Authorities have to Disclose Information on Danger and Risk? 4.3.5.1 Disclosure as a Principle The “downstream” aspect relates to the diffusion of information on dangers and risks once national authorities have gathered the information. Above it has been seen that the Aarhus Convention applies to information on danger and risk. The Aarhus Convention provides that national authorities must disclose this information upon request in Article 4(1): 4.3.5

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Each Party shall ensure that, subject to the following paragraphs of this article, public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation, including, where requested and subject to subparagraph (b) below, copies of the actual documentation containing or comprising such information (. . .) Without an interest having to be stated.938 Under the Aarhus Convention, disclosure of information on danger and risk is the principle. As a principle, Article 10(1) of the European Convention of Human Rights guarantees the right to receive and impart information and ideas on environmental matters.939 Regarding environmental matters, the Court found that there is a strong public interest in enabling individuals and groups to contribute to the public debate by disseminating information and ideas on matters of general public interest, such as in the context of the environment. This strong public interest is particularly relevant for campaign groups.940 This seems to be the settled case law recalled in the Guseva v. Bulgaria case dated 17 February 2015.941 In the Guseva case, the Court specifies that granting access to (environmental) information is the “preparatory stage of the process of informing the public.”942

938  A number of exceptions are foreseen. They will be listed and analysed in the next section. 939  Article 10(1) of the European Convention of Human Rights provides: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” 940  See for example ECtHR 15 February 2005, Steel and Morris v. the United Kingdom, para. 89: “[I]n a democratic society even small and informal campaign groups, such as London Greenpeace, must be able to carry on their activities effectively and that there exists a strong public interest in enabling such groups and individuals outside the mainstream to contribute to the public debate by disseminating information and ideas on matters of general public interest such as health and the environment.” 941  ECtHR 17 February 2015, Guseva v. Bulgaria. The applicant is a member of the Board of Directors of the Animal Protection Society in Vidin. She lodged three requests for information before the mayor of Vidin. The mayor denied access to information in the three cases. Two subsequent rulings condemned the refusal to give access to the information requested and a third ruling partly condemned the refusal in the third request for access to information. The mayor refused to enforce the rulings. 942  Ibid. para. 55.

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This right is nevertheless not absolute: as an exception, public authorities can restrain the right to receive and impart information and ideas on environmental matters. The limit to the right is endorsed in Article 10(2) of the European Convention of Human Rights.943 This restriction of capacity to receive and impart information and ideas on environmental matters is itself limited. In order to respect the European Convention on Human Rights, national authorities must respect three conditions. Firstly, law must prescribe the restrictions: there must be a legal basis for the public authorities’ action, law must be accessible, and its effects, foreseeable. Secondly, the restrictions must follow a legitimate aim, as set out in Article 10(2). Thirdly, the restrictions must be proportionate. In other words, the interference must be proportionate with the aim pursued, and there must be a fair balance between the interests of the individual and the interests of the community as a whole.944 943  Article 10(2)of the European Convention of Human Rights provides: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 944  See for example ECtHR 27 May 2004, Vides Aizsardzibas Klubs v. Latvia, para. 40. In the Vides case, the applicant was an environmental association claiming that a local mayor had not halted building works, which were causing damage to the coastline. The mayor sued the association. The Latvian Court found that the association had not proven its allegations and condemned the association to publish apologies and pay damages to the mayor. The Court noted several relevant aspects in this particular case. First, the Court underlined that the association had been fulfilling its role of “watchdog”, being specialised as an environmental association. Second, the Court underlined that in a democratic society, public authorities are, on principle, exposed to permanent scrutiny by citizens. Everyone should be able to draw the public’s attention to situations that they consider unlawful, provided they act in good faith. See also the Steel and Morris v. the United Kingdom case, para. 87: “The central issue which falls to be determined is whether the interference was ‘necessary in a democratic society’. The fundamental principles relating to this question are well established in the case-law and have been summarised as follows (. . .): ‘(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmind­

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The “downstream” aspect of environmental information dissemination is also addressed by the European Court of Human Rights under the headings of the right to life (Article 2 of the European Convention of Human Rights) and right to private and family life (Article 8 of the European Convention of Human Rights). Accordingly, were Article 10 found not to apply in a case, the applicants could nevertheless ground their case in Articles 2 and 8. It is settled case law that States bear edness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which (. . .) must, however, be construed strictly, and the need for any restrictions must be established convincingly (. . .) (ii) The adjective ‘necessary’, within the meaning of Article 10 §2, implies the existence of a ’pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ (. . .) In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (. . .) In its practice, the Court has distinguished between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. Where a statement amounts to a value judgment the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive.” (Emphasis added) The role of environmental NGOs as watchdogs is firmly set in the Court’s case law. See also ECtHR 22 April 2013 (GC), Animal Defenders International v. the United Kingdom, para. 103: “In the present context, it must be noted that, when an NGO draws attention to matters of public interest, it is exercising a public watchdog role of similar importance to that of the press.” In this case the NGO had been banned from broadcasting an advertisement on the grounds that the objectives of the applicant were “wholly or mainly of a political nature.” The Court (Grand Chamber) ruled that Article 10 of the Convention had not been violated. It should be emphasized that a very slim majority held that there had not been a violation of Article 10 (9 votes to 8).

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the positive obligation to provide an effective and accessible procedure enabling the applicant to have access to all relevant and appropriate information that would allow him to assess any risk to which he had been exposed.945 This right applies in the remit of the right to respect for private and family life (Guerra and others v. Italy case) and the right to life (Öneryildiz v. Turkey case). Public authorities must provide information on the risks and dangers individuals suffer if their rights guaranteed in Articles 8 and 10 are threatened. The Court has specified that the procedures to access information are not only to be available in the context of litigation before domestic courts.946 The Court also specified that disclosure of the information must not be partial but comprehensive.947 In sum, the right to access environmental information is well settled by the European Court of Human Rights, under freedom of expression and the right to life and to private and family life. 4.3.5.2

Commercial and Industrial Confidentiality as Precluding the Disclosure Principle? In the context of the obligation to (proactively) disclose information on environmental danger and risk, exceptions to the disclosure principle may be brought into play. Exclusions to the disclosure principle are clearly set at the international level and at the EU level.

945  ECtHR, Roche v. the United Kingdom, 19 October 2005 (Grand Chamber), para. 167. 946  ECtHR, Roche case, para. 165: “The Court’s judgment in McGinley and Egan did not imply that a disclosure procedure linked to litigation could, as a matter of principle, fulfil the positive obligation of disclosure to an individual, such as the present applicant, who has consistently pursued such disclosure independently of any litigation. Consistently with judgments in Guerra and Others and Gaskin and as the applicant argued, it is an obligation of disclosure (. . .) not requiring the individual to litigate to obtain it.” 947  ECtHR, Roche case, para. 166: “The Government also relied more generally upon the disclosure that had been made through the ‘medical’ and ‘political’ channels and upon the other information services and health studies (. . .). However, the Court does not consider that, either individually or collectively, these could constitute the kind of structured disclosure process envisaged by Article 8. In any event, it is evident that those processes resulted in partial disclosure only given the later disclosure of relevant records, notably during the present application and the PAT appeal.” (Emphasis added)

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The Aarhus Convention lists the exceptions to the disclosure principle in Article 4(4).948 These exceptions have to be “interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment” (Article 4(4)). At the EU level, Regulation 1049/2001 of 30 May 2001, regarding public access to European Parliament, Council and Commission documents, and Regulation 1367/2006 of 6 September 2006, on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters to Community institutions and bodies, provide a limited number of exceptions to the disclosure principle.949 Of particular interest to us is the exception to the disclosure 948  Article 4(4) provides: “A request for environmental information may be refused if: (a) The public authority to which the request is addressed does not hold the environmental information requested; (b) The request is manifestly unreasonable or formulated in too general a manner; or (c) The course of justice, the ability of a person to receive a fair or the ability of a public authority to conduct an enquiry of a criminal trial or disciplinary nature; (d) The confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest. Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed; (e) Intellectual property rights; (f) The confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for in national law; (g) The interests of a third party which has supplied the information requested without that party being under or capable of being put under a legal obligation to do so, and where that party does not consent to the release of the material; or (h) The environment to which the information relates, such as the breeding sites of rare species.” 949  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, 31 May 2001, pp. 43–48 provides with 6 exceptions. In these cases, access to documents shall be refused. They are based on the following grounds: disclosure would seriously undermine the institution’s decision-making process (1), international relations, defence and military matters, public security; financial, monetary or economic policy of the EU and of Member States (2), Court proceedings and legal advice; the purpose of inspections, investigations and audits (3), commercial interests of a natural or legal person (4), intellectual property rights (5), and privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data (6). On the other hand, Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters to Community institutions and

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principle based upon “confidentiality of commercial and industrial information in order to protect a legitimate economic interest”. This exception can prove particularly relevant in the context of the development risk defence. Indeed, operators could argue that the studies on their activities’ inherent dangers and risks cannot be distinguished from documents exposing the activities’ core characters. In turn, they would invoke commercial and industrial confidentiality (for example regarding a process). All in all, this would deprive the disclosure principle of any effect and would, in addition, render the development risk defence applicable in an almost “mechanical” fashion. Under EU law, the exceptions to the disclosure principle are to be interpreted narrowly. More particularly, EU law provides that “whether the information requested relates to emissions into the environment” and “the public interest served by disclosure” shall be taken into account when considering whether to refuse access to documents (Regulation 1367/2006, Article 6(1)). In the particular context of the commercial interests of a natural or legal person (including intellectual property) and inspections and audits, “an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment” (Regulation 1367/2006, Article 6(1)). The “exception to the exception” to the disclosure principle (i.e. a return to the disclosure principle) based upon emissions into the environment is particularly relevant for the present purposes. Indeed, operators whose activities involve emissions into the environment could invoke the development risk defence.950 In turn, this exception based upon emissions into the environment in EU law raises the following question: does the Court uphold similar reasoning?

bodies, OJ L 264, 25/09/2006, pp. 13–19 provides with 7 cases where access to documents may be refused. These are confidentiality of proceedings of public authorities, where provided for under EU law (1), international relations, national defence or public security, unless overriding public interest in disclosure (2), the course of justice, fair trial and ability to conduct an enquiry of a criminal or disciplinary nature (3), confidentiality of commercial and industrial information in order to protect a legitimate economic interest, where protected by EU law, but information on emissions shall be disclosed (4), intellectual property rights (5), confidentiality or personal data relating to a natural person (6), and disclosure would adversely affect the protection of the environment to which the information relates (7). 950  This is, for example, the case with nanotechnologies that are further elaborated on in sub section 4.4.6.

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The purpose of this section is to unveil Council of Europe human rights rules that conflict with, confirm or complement EU environmental responsibility law with regards to the boundaries of the development risk defence. Directive 2004/35 applies a regulatory approach that relies upon EU environmental law. As was demonstrated in chapter 2 and as will be evidenced in the section below, this regulatory approach suffers from severe limitations in situations where EU environmental law itself is limited (or does not exist, as is the case, for example, regarding nanotechnologies). Overall, the purpose of unveiling Council of Europe rules regarding the limitation to the exception of the disclosure rule is intended to provide the limitation with a wider scope of application, irrespective of whether or not EU environmental law addresses a specific activity and specific emissions. 4.3.5.3 Disclosure Serving the Public Interest The European Court of Human Rights has elaborated a whole body of case law regarding the “public interest served by disclosure”. In the Court’s language and reasoning, this has been addressed through the lens of proportionality.951 In short, when operating the proportionality test, the Court assesses whether a fair balance has been reached when considering the objective of the national measure (or lack of measure) on the one hand, and the interference’s consequences for the individual’s fundamental rights on the other hand. Accordingly, the Court checks whether the applicant’s interests have been given due weight. As a good illustration of this reasoning, the Court held in the Giacomelli case that “regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole”,952 and “the Court must ensure that the interests of the community are balanced against the individual’s right.”953 The recent Vilnes954 case brings useful information regarding States’ obligation to guarantee access to and provide information that “enables individu951  The Court’s proportionality reasoning has been elaborated on in chapter 1, sub section 1.2.7. 952  ECtHR, Giacomelli v. Italy, 2 November 2006, para. 78. 953  Ibid. para. 82. 954  ECtHR, 5 December 2013, Vilnes and Others v. Norway. The applicants have been working as divers in the context of drilling activities for the petroleum industry in the Norwegian Continental Shelf. They have been working during what is called the “pioneer period” (1965–1990). It later appeared that this work had caused them permanent disabilities. They received compensation from the State. They lodged compensation proceedings in order to have additional compensations. The State was found responsible and liable on objective grounds. The State and the applicants lodged an appeal. The High Court

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als to assess risks to their health and lives”955 when the information at stake is kept confidential for competitive reasons. In the Vilnes case, diving companies had kept confidential decompression tables “that offered competitive advantages serving their own business interests.”956 The diving companies had been allowed to “deal with the tables as their business secrets.”957 The analogy with environmental emissions, events or incidents is clear. Operators can be tempted to keep information related to a substance or process secret if this information provides the operator with a competitive advantage. One can think, for example, about nanotechnologies. The commercial interest exception to disclosure is precisely meant to cover this possibility. In the Vilnes case, the Court upholds an approach that clearly departs from the approach adopted in EU law. The Court’s reasoning is triggered by the obligation of States to guarantee access to and provide the information that enables individuals to assess risks to their health and lives. The Court acknowledged that the national authorities had not undertaken two distinct actions: “requiring the diving companies to assume full openness about the table”958 and informing “the applicants and other divers of their concerns about the differences between tables and the problem this posed with regard to divers’ health and safety.”959 Against this background, the Court underlined that that the State had an obligation to adopt a very cautious approach because of the scientific doubts and lack of scientific knowledge in the case at stake (regarding decompression). From this obligation flows another: the obligation to take the precaution of ensuring that the companies observe full transparency about the diving tables used and that the applicants, and other divers like them, receive information on the differences between tables, as well as on their concerns for the divers’ safety and health, which constituted found that the State could not be hold liable on strict liability grounds, employer’s liability grounds, or on grounds of human rights violations. Two applicants appealed to the Supreme Court. This Court rejected their appeals. The applicants brought their case before the European Human Rights Court. They argued that Norway had violated article 2, 3 and 8 of the Convention. The Court found a violation of article 8 “on account of the failure for the respondent State to ensure that the applicants received essential information enabling them to assess the risks to their health and lives.” 955  Ibid. p. 235. 956  Ibid. p. 238. 957  Ibid. 958  Ibid. p. 242. 959  Ibid.

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essential information that they needed to be able to assess the risk to their health and to give informed consent to the risks involved. This the authorities could have done when, for example, granting authorisation of diving operations and upon inspections. Had they done so they might conceivably have helped to eliminate sooner the use of rapid tables as a means for companies to promote their own commercial interests, potentially adding to the risks to divers’ health and safety. By failing to do so the respondent State did not fulfil its obligation to secure the applicants’ right to respect for their private life, in violation of Article 8 of the Convention.960 Applied by analogy to Directive 2004/35, this case law complements Directive 2004/35: commercial and industrial confidentiality as an exception to the disclosure principle must be balanced and limited by the public interest to have access to this information in order to assess the risks generated by a substance, emission or process. This is directly relevant for many activities; for example nanotechnology-related actions. They are taken as an illustration in section 4.3.6. In sum, under the hypothesis that public authorities would have refused disclosure of environmental information on the grounds that the operators invoked the confidentiality of the information transmitted to public authorities, it can be argued that the Court would sanction this refusal to disclose the information (including to other operators) on the ground that the refusal hampered the public interest. Public interest requires that citizens must be aware of the risks that they are open to. In other words, when balancing the operator’s guarantee of confidentiality against the public interest in knowing the dangers at hand, the Court could give preference to the latter. 4.3.5.4 Disclosure in the Context of Emissions into the Environment Turning to emissions into the environment as triggers to the disclosure principle, the Court has not, up until this point, elaborated a rule as consistent as the rule provided in EU law (Regulation 1367/2006, Article 6(1)). As a judicial body, the Court adjudicates on a case-by-case basis. Accordingly, the Court cannot set a rule on emissions into the environment without taking into account all the particularities of the case (including regarding the emission and the endangered environment). When screening the Court’s case law, some rules can nevertheless be distinguished. 960  Ibid. p. 244 (emphasis added).

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Firstly, the Court has emphasised in (amongst others) the Tatar v. Romania case that citizens’ access to environmental information on emissions is meant to fulfil both objective and subjective purposes. The objective assessment is described in the following developments. As for the subjective purpose, the Court recalled its settled case law in the Tatar v. Romania case: the purpose of granting the public with access to environmental data on emissions into the environment is to enable the public to evaluate the risks it faces.961 In this respect, the importance of access to information for individuals has been constantly highlighted as allowing individuals to allay their fears. The Court accordingly endorses a very subjective control by paying due attention to the individuals’ fears, uncertainties, anxiety and stress in the context of each case.962 In other words, and departing from the development risk clause, which by definition relies on an objective assessment,963 access to environmental information regarding emissions into the environment is also meant to fulfil 961  ECtHR, Tatar v. Romania, 27 January 2009, para. 88: “(L)a réalisation des enquêtes et études appropriées, de manière à prévenir et évaluator à l’avance les effets des activités qui peuvent porter atteinte à l’environnement et aux droits des individus, et à permettre ainsi l’établissement d’un juste équilibre entre les divers intérêts concurrents en jeu (Hatton et autres, précité, §128). L’importance de l’accès du public aux conclusions de ces études ainsi qu’à des informations permettant d’évaluer le danger auquel il est exposé ne fait pas de doute.” In the same sense, see the Fadeyeva v. Russia case (9 June 2005), para. 120: “Moreover, due to the relative scarcity of environmental information at that time, the applicant may have underestimated the seriousness of the pollution problem in her neighbourhood.” 962  See for example ECtHR, Mc Ginley and Egan v. the United Kingdom, 9 June 1998, para. 99: “In this respect the Court observes that, given the fact that exposure to high levels of radiation is known to have hidden, but serious and long-lasting, effects on health, it is not unnatural that the applicants’ uncertainty as to whether or not they had been put at risk in this way caused them substantial anxiety and distress.” The applicants were soldiers in the Pacific (Christmas Island) when the British Government carried out nuclear test programme there. They were present at a distance of 25 and 60 miles from several detonations. During each explosion, the applicants were ordered to take part in a line-up procedure in the open. In the absence of any individual monitoring, they were left in doubt as to whether or not they had been exposed to radiation at levels engendering risk to their health. The applicants argued that non-disclosure of records relating to these tests violated their rights under Article 8 because the records would have enabled them to assess whether or not they had been exposed to nuclear radiations and to risk for their health. 963  As seen in this chapter, section 4.1.2.

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a subjective function: allowing the public to assess the dangers it faces on account of the emissions. This is recognised in settled case law as an essential function. Access to information despite industrial or technical confidentiality is thus given support. Secondly, the Court links the monitoring of emissions with the due diligence obligation in the Fadeyeva v. Russia case.964 As reported in the Ledyayeva v. Russia case, the Court concluded that national authorities had not demonstrated to what extent they had monitored the environmental pollution.965 The assessment of national authorities’ measures (or lack of measures) against the data available in reports and studies regarding emissions is of importance to this discussion. This data is meant to reflect national authorities’ monitoring obligation. Accordingly, it is all the more crucial for citizens to have access to this data with the view to assessing whether national authorities have actually monitored the emissions in question. Thirdly, the Court takes into account not only current emissions, but also past industrial emissions (toxic substances)966 that constitute a “continuous” interference with the applicant’s right. In the Ledyayeva v. Russia case, the Court not only takes current emissions into account, but also past emissions. This is crucial for the purpose of this section. The right to have access to environmental information would extend to past emissions and, by analogy, products that have been previously put on the market. Overall, the Court should acknowledge the danger created by emissions when balancing the operator’s guarantee of confidentiality against the public’s interest in being aware of the dangers and risks created. Nevertheless, the Court has not elaborated a settled rule that addresses emissions as such in an objective fashion, but rather assesses the emissions on a case-by-case basis, i.e. 964  ECtHR, 9 June 2005, Fadeyeva v. Russia, para. 128: “whether the Government approached the problem with due diligence and gave consideration to all the competing interests.” 965  ECtHR 26 October 2006, Ledyayeva v. Russia, para. 104: “They (national authorities) did not show that the effects of the operation of the plant on public health and well-being were regularly monitored and the information obtained was shared with the population concerned.” 966  ECtHR 26 October 2006, Ledyayeva v. Russia, para. 96: “Although at the relevant time all of them lived at different addresses, their flats were located within the sanitary security zone (. . .) The Court is thus prepared to accept that she is no longer exposed to dangerous levels of pollution. However, the interference complained of was of a continuing nature and lasted almost two years, if counted from 5 May 1998 (. . .). Therefore, her moving outside the zone did not by itself eradicate the adverse effects of her living there, and for a certain period of time she was in the same situation as other applicants.” (Emphasis added)

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in concreto.967 It is possible to assert that the Court would take emissions into the environment into account when considering whether information should be left undisclosed on account of commercial and industrial confidentiality. Nevertheless, it is not possible to contend that the Court would systematically sanction non-disclosure on the account that emissions into the environment had occurred. 4.3.6 An Illustration: Nanotechnology 4.3.6.1 Nanotechnology: A Short Presentation Nanotechnologies are very good candidates to advocate the framing of the application of the development risk defence. Nanotechnology is “the science of designing, producing, and using structures and devices having one or more dimensions of about 100 millionth of a millimetre (100 nanometres) or less.”968 As a point of comparison, a human hair is approximately 80 000 nm wide.969 Nanotechnologies are widely applied: in information and communications sectors (data storage devices), cosmetics and sunscreens, dyes, paints, textiles, coatings, some food and energy technologies, some medical products and medicines. Nanotechnology “could also be used in reducing environmental pollution.”970 4.3.6.2

Nanothechnology and the Potential to Apply the Development Risk Defence Nanotechnology can be perceived on several grounds as a good candidate to have the development risk defence applied and framed by human rights requirements. The first reason is that while the use of nanotechnologies is already extremely widespread, the properties of the technology and nanoparticles’ potential negative impact for the environment and human health are still largely 967  The casuistic character of the Court’s reasoning also applies to the assessment of the severity of the infringement caused by environmental degradation, as repeated very clearly in the Dubetska v. Ukraine case, para. 105: “an arguable claim under Article 8 may arise where an environmental hazard attains a level of severity resulting in significant impairment of the applicant’s ability to enjoy his home, private or family life. The assessment of that minimum level is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects on the individual’s health or quality of life”. 968  GreenFacts. Facts on Health and the Environment, , page accessed on 8 November 2011. 969  Ibid. 970  Ibid.

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unknown.971 This lack of knowledge is contended by environmental NGOs,972 industry973 and EU official documents.974 971  Ibid. “What are the physical and chemical properties of nanoparticles? Nanoparticles often have physical and chemical properties that are very different from the same materials at larger scales. The properties of nanoparticles depend on their shape, size, surface characteristics and inner structure. They can change in the presence of certain chemicals. The composition of nanoparticles and the chemical processes taking place on their surface can be very complex. Nanoparticles can remain free or group together, depending on the attractive or repulsive interaction forces between them.” 972  See for example European Environmental Bureau, “Nanomaterials—health and environmental concerns: Issue 2”, July 2009, available at , page visited on 8 November 2011, p. 26: “While the use of nanomaterials promises consumer goods with new and perhaps useful properties, studies are starting to identify the potential health risks of these materials. One of the greatest challenges in the coming years will be how to successfully assess the potential of nanomaterials to cause harm before many more products containing such materials are available on the market. It is already becoming obvious that in vitro testing may not be sufficient to predict hazards accurately, but to date only a few in vivo studies have been performed and are notoriously difficult to replicate. For most nanomaterials it has not been established whether safe thresholds exist or what these could be. Little or no detailed information is available on nanomaterials safety assessment either in research phase or in production, distribution and use in consumer products and hence no full exposure assessment can yet be performed. Nanomaterials are difficult to assess and monitor as often new testing methods are needed to gauge their impacts on human health and the environment. This does not necessarily mean that only new tests are needed, rather it may also require that existing tests be assessed to ensure they are relevant and effective at the nano level. Environmental and biological exposure pathways for many nanomaterials are still largely unknown as they have not been observed” (emphasis in the text). 973  See for example the position of the European Chemical Industry Council (CEFIC), “Practical nanomaterials definition needed to push forward next great innovation breakthroughs”, 18 October 2011, available at , page visited on 8 November 2011, where one can read that whereas “(a) common definition for nanomaterials is important to help research and innovation make the next great breakthroughs to meet societal needs and ensure the right level of safety”, “(t)he chemical industry is also concerned by the lack of standardised measurement techniques”. 974  See for example Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee, “Regulatory Aspects of Nanomaterials”, Brussels, 17 June 2008, COM(2008) 366 final, pp. 8–9.

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A second reason is that there is currently a regulatory loophole. Indeed, the EU had not targeted nanotechnology as a field to be regulated until very recently. At the time of writing, no EU legal text regulating nanotechnologies as such is in existence. The European Commission released a Recommendation on the definition of nanomaterials on 18 October 2011.975 This Recommendation is both the result of a legislative process aiming to assess the regulatory framework that applies to nanotechnologies and providing rules concerning risk assessment, and the first stage of the path towards nanotechnologies’ regulation. The process was initiated in 2005 with the Communication of the Commission 975  See for example Commission Recommendation of 18 October 2011 on the definition of nanomaterial, 2011/696, OJ L 275, 20 October 2011, pp. 38–40 and European Parliament Resolution of 24 April 2009 on regulatory aspects of nanomaterials (2008/2208(INI)), OJ C 184 E, 8 July 2010, under D. p. 84: “whereas nanomaterials on the other hand potentially present significant new risks due to their minute size, such as increased reactivity and mobility, possibly leading to increased toxicity in combination with unrestricted access to the human body, and possibly involving quite different mechanisms of interference with the physiology of human and environmental species” and under F. p. 84: “whereas the current discussion about nanomaterials is characterized by a significant lack of knowledge and information”, under H. pp. 84–85: “whereas there is no clear information about the actual use of nanomaterials in consumer products, for instance while inventories by renowned institutions list more than 800 manufacturer-identified nanotechnology-based consumer products currently on the market, trade associations of the same manufacturers question these figures, on the basis that they are overestimations, without providing any concrete figures themselves, while companies happily use ‘nano-claims’, as the term ‘nano’ seems to have a positive marketing effect, they are strictly opposed to objective labelling requirements”, and under K p. 85: “whereas there is a major debate about the possibility of assessing the safety of nanomaterials; whereas the scientific committees and Agencies of the European Union point to major deficiencies not only in key data, but even in methods of obtaining such data; whereas the European Union thus needs to invest more into adequate assessment of nanomaterials to close the knowledge gaps and to develop and implement as fast as possible, and, in collaboration with its agencies and international partners, methods of evaluation and an appropriate and harmonised metrology and nomenclature”, the lack of appropriate data is clearly contended under P. p. 85: “whereas the value of the above-mentioned Commission Communication entitled ‘Regulatory aspects of nanomaterials’ is rather limited due to the absence of information about the specific properties of nanomaterials, their actual uses, and potential risks and benefits, and thus no consideration of the legislative and policy challenges that result from the specific nature of nanomaterials, resulting in only a general legal overview that shows that there are no nano-specific provisions in Community legislation for the time being”.

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to the Council, the European Parliament and the Economic and Social Committee entitled “Nanosciences and nanotechnologies: An action plan for Europe 2005–2009”.976 The Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee of 17 June 2008 “Regulatory Aspects of Nanomaterials”,977 and the European Parliament Resolution of 24 April 2009 on regulatory aspects of nanomaterials are in the same vein.978 In addition, the EU Scientific Committee on Emerging and Newly Identified Health Risks (SCENIHR) delivered its report “Scientific Basis for the Definition of the Term ‘nanomaterial’” on June 2010.979 All in all, for the time being, there is no EU legislation specifically targeting nanotechnology activities. Until this is rectified it is more than doubtful that existing legislation can cover all potential effects of nanotechnology on human health or the environment. In 2008, the European Commission tried to argue that existing legislation did “in principle” cover “potential health, safety and environmental risks in relation to nanomaterials”.980 The European Parliament did not have the same reading. In its 2009 Resolution on regulatory aspects of nanomaterials,981 the Parliament reviewed existing legislation and came to quite different conclusions. The Parliament rather argued that, in the context of the Regulation on chemicals and their safe use (EC 1907/2006) that deals with the Registration, Evaluation, Authorisation and Restriction of Chemical substances, there is 976  European Commission, Communication from the Commission to the Council, the Euro­ pean Parliament and the Economic and Social Committee, “Nanosciences and nano­ technologies—an action plan for Europe 2005–2009”, Brussels, COM(2005)243 final, 7 June 2005. 977  Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee, “Regulatory Aspects of Nanomaterials”, Brussels, 17 June 2008, COM(2008) 366 final. 978  European Parliament Resolution of 24 April 2009 on regulatory aspects of nanomaterials (2008/2208(INI)), OJ C 184 E, 8 July 2010, pp. 82–89. 979  EU Scientific Committee on Emerging and Newly Identified Health Risks (SCENIHR), Report “Scientific Basis for the Definition of the Term “nanomaterial”, on June 2010, available at , page accessed on 7 November 2011. 980  Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee, “Regulatory Aspects of Nanomaterials”, Brussels, 17 June 2008, COM(2008) 366 final, p. 11. 981  European Parliament Resolution of 24 April 2009 on regulatory aspects of nanomaterials (2008/2208(INI)), OJ C 184 E, 8 July 2010, pp. 82–89.

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the need for “further guidance and advice on nanomaterials, in particular on substance identification, as well as an adaptation of risk assessment methods”. The Parliament concluded that “several further deficiencies” could be pinpointed within the Registration, Evaluation, Authorisation and Restriction of Chemicals Regulation in terms of applicability to nanomaterials.982 The Parliament also assessed whether EU waste law could apply to nanomaterials and concluded that the need exists for “nano-specific provisions” in order for waste law to be applicable to nanomaterials.983 Similarly, the European Parliament reported on the need to amend existing legislation with a view to having existing EU law deemed applicable to nanomaterials (such as the cosmetics Directive and the Regulation on novel food). This regulatory loophole has several consequences. Firstly, nanotechnology regulation does not appear in the annexes to Directives 2004/35 and 2008/99 and accordingly, does not fall under their scope of application (Directive 2008/99) or trigger the non-fault responsibility mechanisms based upon risk (Directive 2004/35). Secondly, it would prove extremely hard to establish a fault on behalf of nanotechnology operators. If their activity is unregulated, the operators cannot be held to have infringed a primary obligation. Risk remains the most accurate ground for responsibility in the context of responsibility for environmental damage and harm. It is useful to scrutinise the current path being taken by regulatory bodies. The European Commission’s first regulatory step (towards the definition of nanomaterials) was quite puzzling. Indeed, in its 18 October 2011 Resolution on the definition of nanomaterials,984 the European Commission rejected risk as a component of nanomaterials’ definition. This appears very clearly in the Preamble, Recital 4: “The definition of the term “nanomaterial” in Union legislation should be based solely on the size of the constituent particles of a material, without regard to hazard or risk. This definition, based only on the size of a material, covers natural, incidental or manufactured materials”. This seems to be slightly contradictory to the European Scientific Committee on Emerging and Newly Identified Health Risks Report “Scientific Basis for the Definition of the Term ‘nanomaterial’ ”.985 982  Ibid. p. 86, under S. 983  Ibid. p. 86, under T. 984  Commission Recommendation of 18 October 2011 on the definition of nanomaterial, 2011/696, OJ L 275, 20 October 2011, pp. 38–40. 985  EU Scientific Committee on Emerging and Newly Identified Health Risks (SCENIHR), Report “Scientific Basis for the Definition of the Term “nanomaterial”, on June 2010, available at , page accessed on 7 November 2011.

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The Committee advocates that the size of constituent parts categorises nanomaterials,986 which is exactly what the European Commission acknowledged. Nevertheless, the European Commission seems to have omitted the subsequent sentence of the Report of the Committee, whereby the Committee acknowledges that size itself could trigger risks.987 The foregoing shows that there is currently a regulatory loophole regarding nanomaterials, while the first steps taken to fill this loophole deliberately do not take into account the “hazard or risk” dimensions. While risk appears to be (in the context of a regulatory loophole) the appropriate basis on which to contend the breach of a primary obligation, nanotechnology is a very good candidate to invoke the defence. The nanotechnology operators can argue that at the time of conducting their activity, the effects of nanotechnologies were (and are still) unknown. This applies to nanomaterials previously or currently put on the market. This defence is all the more important for the nanotechnology operators because of the fact that the technology is widely used. The scale of damage could follow the scale of uses. The latter is huge.988 In the meantime, the European Parliament acknowledges the lack of appropriate regulation of responsibility.989 Nanotechnology is a very good candidate for the application of the defence, but also for the application of human rights rules that complement the defence, namely the obligation to diffuse environmental information on risks elaborated on above. All in all, the nanotechnology case demonstrates that the obligation to diffuse information on risks could hamper an operator from successfully invoking responsibility exception based upon the development risk defence. The obligation to diffuse information on risks as a primary obligation 986  Ibid. p. 6. 987  Ibid. p. 6 the Committee goes on arguing that “there is sufficient evidence to indicate that there can be a change in some properties of the material when it or its constituent parts are at the nanoscale which is, for instance, due to the increased surface-to-volume ratio. These nano-specific properties raise concerns over their potential to cause harm to humans and the environment”. 988  This is acknowledged, among others, by the European Parliament in its Resolution of 24 April 2009 on regulatory aspects of nanomaterials (2008/2208(INI)), OJ C 184 E, 8 July 2010, at p. 86 under R: “[T]he almost infinite application of nanotechnologies to such diverse sectors as electronics, textiles, biomedicals, personal care products, cleaning products, food or energy”. 989  European Parliament Resolution of 24 April 2009 on regulatory aspects of nanomaterials (2008/2208(INI)), OJ C 184, 8 July 2010, p. 88 under point 15: the European Parliament calls for “a clear assignment of liability to producers and employers arising from the use of nanomaterials”.

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would fill the regulatory gap by fleshing-out the standard of care. This is demonstrated in the subsequent paragraphs. 4.3.6.3

Nanotechnology and Diffusion of Research and Monitoring Information on Dangers The author underlined above the human rights requirements in terms of dissemination of the information on danger and risk. Diffusion requirements complement the development risk defence: they condition and limit the application of the defence. Disclosure of information on dangers and risks associated with nanotechnology is particularly relevant. On the one hand, an operator could choose not to disclose this information to other operators. On the other hand, an operator could choose not to disclose this information to public authorities (who, in turn, would not be able to regulate the activity according to the dangers and risks, or be in a position to diffuse this information to other operators). The result would be the same: if an operator’s responsibility was questioned, he could argue that he did not have access to information on the dangers and risks associated with his activity. In this hypothesis, research and monitoring did take place. But the lack of diffusion of information nevertheless enables the application of the development risk defence to apply. This is everything but an academic hypothesis. Nanotechnology is confined mainly to the hands of large private entities. The technology is not shared990 and information on this technology is, accordingly, exclusively held by a small number of entities. In practice, and without going so far as to say that the industry conducting activities with a dimension of inherent danger or risk is not always willing to disclose internal studies on this dimension, there have been cases that have shown the industry’s reluctance to reveal information concerning danger and risk. This has been evidenced, for example, in the recent Mediator scandal that occurred in France in the field of pharmaceutical products.991 990  The European Parliament addresses this issue from the perspective of patents in European Parliament, Resolution of 24 April 2009 on regulatory aspects of nanomaterials (2008/2208(INI)), OJ C 184 E, 8 July 2010, at p. 89 point 24: “recognises that it is essential to remove the obstacles preventing very small businesses and SMEs in particular from accessing patents (. . .)”. 991  In this affair, the Mediator (a medicine put on the market by the SERVIER laboratories) is believe to have caused the death of several hundred citizens. The scandal gave rise to a study conducted by the “Inspection Générale des Affaires Sociales” (IGAS—the website of the service is available at , website accessed on 14 November 2011). The IGAS is an interministerial service aimed at controlling, auditing

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In summary, nanotechnology is an ideal candidate for the application of the obligation to diffuse environmental information on risks that complements the development risk defence. The operators would no longer be able to maintain the ignorance that could eventually allow them to shirk responsibility. They would be bound by the obligation to diffuse the information they had gathered in the aftermath of their investigations and studies. They would not be able to rely on the confidentiality governing industrial and technological information. In turn, this would allow not only the public, but also other operators conducting similar activities to acknowledge the dangers they face, so that, eventually, the development risk defence would not be invoked. 4.4

Access to Justice and Prescription: A Conflict Case

As seen in section 4.1.5, Directive 2004/35 does not apply to damage “if more than 30 years have passed since the emission, event or incident, resulting in the damage, occurred” (Article 17, 3rd indent). The prescription as such and its starting point are criticised by many commentators. In this section the attention is directed to case law of the European Court of human Rights (the Court) in order to answer the following question: does the case-law of the Court confirm, complement or conflict with the prescription mechanism of the Directive?

and evaluating social policies in order to provide input to public policy decision-makers. In its definitive report “Enquête sur le MEDIATOR®” dated January 2011 (“the report”, available at , page visited 14 November 2011) and written by Members of the IGAS (Dr Anne-Carole Bensadon, Etienne Marie and Dr Aquilino Morelle), it appears that the laboratories knew about the dangers created by the medicinal product for more than 33 years but did not diffuse this information. The report, p. V of the executive summary: “Le benfluorex doit donc être considéré comme le précurseur de la seule substance véritablement active: la norfenfluramine. Pour le dire autrement: pendant 33 ans (1976– 2009), tous les patients traités par le MEDIATOR ont en réalité absorbé de la norfenfluramine à des doses efficaces. Une des études consacrées à la norfenfluramine en 1974 considérait ainsi la norfenfluramine « as a mediator » of the actions of fenfluramine ». On ne saurait mieux dire. (. . .) Cet « aveu » de ce que le benfluorex ne serait qu’un précurseur, c’est-à-dire une molécule n’ayant en elle-même aucune activité pharmacologique, les laboratoires Servier ont cherché, après l’avoir reconnu, à le faire oublier en retirant une phrase évoquant cette caractéristique d’un document communiqué à l’AFSSAPS (Agence française de sécurité sanitaire des produits de santé) en 1999”.

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The following developments rely on a recent case of the Court that is (to the author’s knowledge) the only case of the Court that addresses the issue of prescription in environmental cases: the Howald Moor case.992 In this case the applicants are the widow and two daughters of Hans Moor. He had been exposed to asbestos in the course of his work as a mechanic and died because of this exposure. The widow and daughters could not get compensation because of the ten years prescription that applies in the Swiss law According to the Swiss law and case law, the starting point for the limitation period began to run with the exposure to asbestos, i.e. not with the beginning of the sickness or the awareness of the sickness. The Court concluded that article 6(1) of the Convention (right to a fair trial) had been violated. In order to understand that case, its specificities, and input in the framework of the 30 years prescription set in Directive 2004/35, it is useful to expose the reasoning of the Court. According to the Court, the principle is access to a tribunal. The exceptions are allowed, provided that they have a legitimate aim and respect the proportionality requirement. The exceptions cannot impair the very essence of the right to access a tribunal. States enjoy a wide margin of appreciation in that regards. More specifically, the Court has already established that prescriptions can, in theory, respect the requirements of the right to access a tribunal. They must nevertheless not impair the very essence of the right, have a legitimate aim, and also be proportional. The Court has already established that prescriptions have the legitimate aim of securing legal certainty, protecting defendants from belated claims and preventing injustice that could occur if a tribunal had to adjudicate on the basis of proofs where accuracy could be questioned.993 992  ECtHR, 11 March 2014, Howald Moor and Others v. Switzerland. 993  Ibid. pp. 70–73. The Court’s case law related to time limitations has been established among others in ECtHR, 22 October 1996, Stubbings and others v. the United Kingdom (art 6 and 8—time limitation to initiate proceedings to seek redress for alleged assaults), ECtHR, 7 July 2009, Stagno v. Belgium (art. 6—application of time limitations to minors who could not bring an action before Courts while being minors), ECtHR, 12 January 2006, Mizzi v. Malta (art. 6—the applicant had not had the possibility of bringing an action for disavowal, practical impossibility of denying paternity), ECtHR, 20 December 2007, Phinikaridou v. Cyprus (art. 8—the right of a child to institute proceedings for judicial recognition of paternity in the domestic legal system is subject to a three-year time-limit which starts to run from the moment the child reaches the age of majority), ECtHR, 8 July 2004, Vo v. France (art. 2—time limitation to apply to Courts regarding medical negligence), ECtHR, 29 June 2012, Sabri Güneş v. Turkey, Grand Chamber, ECtHR, 24 May 2011, Sabri Güneş v. Turkey (art. 6—temporal limitations that apply to a claim in respect of per-

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This case law applies to prescriptions that are assessed under the heading of right to a fair trial and under the heading of non-procedural rights, among others’ right to family life. This approach echoes the direction of the Court regarding environmental rights that are made under the heading of procedural rights and substantive rights for which the Court unveiled a procedural component.994 The Howald case is specific for the time limitation is assessed against the specificities of the environmental-related asbestos pollution. The Courts puts forward four lines of arguments that can generally apply to any environmentalrelated damage. Together with former case law of the Court, those four lines of arguments ground the identification of a conflict case between the prescription provided in Directive 2004/35 and Council of Europe human rights law. The latency period of the sicknesses caused by asbestos can last several decades while the staring point for the prescription is exposure to asbestos. Accordingly, the time-limitation period can never be met.995

manent disability), ECtHR, 17 September 2013, Eşim v. Turkey (art. 6—fact that appeared after the calculating disability pension not taken into account), ECtHR, 24 November 2005, Shofman v. Russia (art. 8—limitation period for an action to contest paternity). As an illustration, the Court’s case law is clearly recalled in the Stubbings case at pps. 50–51: “50. The Court recalls that Article 6 para. 1 (art. 6–1) embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect. However, this right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 para. 1 (art. 6–1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (. . .). 51. It is noteworthy that limitation periods in personal injury cases are a common feature of the domestic legal systems of the Contracting States. They serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time”. 994  See section 1.2.5. 995  ECtHR, 11 March 2014, Howald Moor and Others v. Switzerland, p. 74.

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The analogy with other environmental-related damage covered by the 30 years prescription of Directive 2004/35 can be made. For example, GMOs and nanotechnologies can generate damage on human health or the environment that will be acknowledged only after a very long time.996 The lack of scientific knowledge on the effects of GMOs or nanotechnologies or other processes or substances can only reinforce that statement.997 Similarly to what happened in the Howald case, it could be that the very acknowledgement of the impairment occurs after the time limitation period (30 years) that starts to run with the “emission, event or incident, resulting in the damage” (Directive 2004/35, Article 17, 3rd indent). Similarly to the asbestos-related claims barred with the 10 years limitation period, it could be that any claim related to the damage generated by the GMOs, nanotechnologies, or any “emission, event or incident” would be, a priori, deemed to fail.998 The Court also acknowledges that the prescription set into Swiss legislation does not foresee any flexibility regarding the time limitation.999 The analogy with Directive 2004/35 is not completely possible: the Directive allows for more stringent implementation measures (in that case, shorter time limitation periods). Nevertheless, if attention is directed to Directive 2004/35, it is only possible to consider that the 30 years prescription is not flexible: no specification is made regarding the possibility for the judge or administrative authorities to preclude the prescription. Also, the Court raises the compensation issue in the context of time limitations that bar access to a tribunal. In the Howald case the applicants had received a monetary compensation. The Court doubts that in this case the compensation actually compensates the applicants’ lost of their rights.1000 Furthermore, the Court also established that the absence of compensation meant to counterbalance the denial of access to a Court impairs the “very essence of the applicants’ right of access to a court.”1001

996  Other examples could be the emission of a given particule in the air and the effect of the emission for human health or environmental integrity (impairment of an ecosystem . . . ) or the effects of a waste treatment plant for human health or environmental integrity. 997  On that point, see section 4.1.2 and section 4.3 on the development risk defence. 998  ECtHR, 11 March 2014, Howald Moor and Others v. Switzerland, p. 74: “Par conséquent, toute action en dommages-intérêts sera a priori vouée à l’échec, étant périmée ou prescrite avant même que les victimes de l’amiante aient pu avoir objectivement connaissance de leurs droits”. 999  Ibid. p. 75. 1000  Ibid. p. 76. 1001  ECtHR, 22 October 1996, Stubbings and others v. the United Kingdom, p. 52.

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Here again this argument fully applies to the 30 years prescription set in Directive 2004/35. If the Court condemns a compensation that does not fully compensate the lost of the right to access to a tribunal, the Court a fortiori condemns a prescription period that is not complemented by compensation. Access to compensation is critical. Indeed, Directive 2004/35 does not provide any monetary compensation that would flow from damage. In Directive 2004/35 the priority is remediation, not monetary compensation.1002 Finally, the Court raises the issue of latency. This issue is directly relevant for environmental-related damage and the object of the section. The Court underlines the “exceptional circumstances” of the case. It underlines that the systematic application of the prescription to sicknesses caused by asbestos for which the diagnostic can only be discovered after many years after exposure can deprive the applicants from their right to have their case adjudicated.1003 The Court specifies that [W]hen it is scientifically proved that someone cannot know that (s)he suffers from a given sickness, this circumstance should be taken into account in the setting of (. . .) prescription.1004 Those findings of the Court are particularly relevant for the purposes of this section. Relying on the Howald case and former case law, the analogy with the application of the prescription set in Directive 2004/35 is made possible for environmental-related damage to human health and to the environment as such. In the Howald case, the Court sanctions the starting point of the prescription period: exposure to the contamination (asbestos in the Howald case). In its Article 17 (3rd indent) Directive 2004/35 has a similar starting point than the starting point established in the sanctioned Swiss law: the event, emission or incident. By analogy, this starting point would also be sanctioned by the Court. The analogy is made possible because of the specificities of environmental-related damage: the latency period. As mentioned in section 4.1.5, a peculiarity of environmental degradation caused by an emission, event or incident is the latency period. The core issue at stake of the prescription period (a legal mechanism)

1002  As appears in Directive 2004/35, Annex II and the description in there of primary, complementary and compensatory remediation. 1003  ECtHR, 11 March 2014, Howald Moor and Others v. Switzerland, p. 77. 1004  Ibid. p. 78 (translation mine).

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is that it does not reflect biological reality.1005 The Court has spelt it out in the Shofman case: According to the Court’s case-law, the situation in which a legal presumption is allowed to prevail over biological and social reality, without regard to both established facts and the wishes of those concerned and without actually benefiting anyone, is not compatible, even having regard to the margin of appreciation left to the State, with the obligation to secure effective “respect” for private and family life.1006 The case law of the Court in the context of prescription periods is clearly introducing the requirement to take into account unknown biological reality. The Court has extensively reiterated the requirement to take due account of biological reality over legal mechanisms in the context of cases concerned with contestation of paternity. Among other cases, the Court is extremely clear in the Mizzi case: According to the Court’s case-law, a situation in which a legal presumption is allowed to prevail over biological reality might not be compatible, even having regard to the margin of appreciation left to the State, with the obligation to secure effective “respect” for private and family life.1007 In another series of cases the Court has underlined that knowledge of biological reality must be taken into account when setting the starting point of time limitations. As underlined for example in the Phinikaridou case: While performing the “balancing of interests test” in the examination of cases concerning limitations on the institution of paternity claims, the Court has taken a number of factors into consideration. For instance, the particular point in time when an applicant becomes aware of the biological reality is pertinent, that is, the Court will examine whether the circumstances substantiating a particular paternity claim are met before or after the expiry of the applicable time-limit (. . .). Furthermore, the Court looks into whether or not an alternative means of redress exists in the event the proceedings in question are time-barred. This would include for 1005  The discrepency between legal reality and biological reality has been introduced in section 2.1.1. 1006  ECtHR, 24 November 2005, Shofman v. Russia, p. 44 (emphasis added). The issue at stake in that case was a limitation period for an action to contest paternity. 1007  ECtHR, 12 January 2006, Mizzi v. Malta, p. 113.

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example the availability of effective domestic remedies to obtain the reopening of the time-limit (. . .) or exceptions to the application of a timelimit in situations where a person becomes aware of the biological reality after the time-limit has expired.1008 In the Eşim case, the Court specified that in cases of personal injury compensation, “the right of action must be exercised when the litigants are actually able to assess the damage that they have suffered.”1009 The determination of harm must be taken into account.1010 In other words, legal reality cannot ignore nor preclude the reality of the determination of damage. Applied to the prescription in Directive 2004/35, the case law of the Court and corresponding requirements trigger a modification of Article 17 (3rd indent). The starting point should be the event, emission or incident, or knowledge of the harm caused by environmental damage. From the above, it is possible to conclude that the condemnation of the prescription period in the Howald case and other cases before the Court also applies to the prescription set in Directive 2004/35. Council of Europe human rights law conflicts with the Directive. There is nevertheless the need to nuance this conflict: it very much depends on the circumstances of each case. As the Court establishes it, whether or not there is a conflict between the prescription period and right to a fair trial will depend on the circumstances of each case. In some cases the prescription period will be found to infringe the requirement to take into account the latency period and specificities of the emission, event or incident for human health and the environment. In other cases, the 30-years limitation period will be found to be long enough and not deprive the victim from the right to a fair trial. 4.5 Conclusion The first part of this chapter was aimed at identifying gaps regarding legal practice and procedural aspects. The purpose was to identify whether human rights could also have a role to play in this regard in the second part. 1008  ECtHR, 20 December 2007, Phinikaridou v. Cyprus, p. 54, emphasis added. 1009  ECtHR, 17 September 2013, Eşim v. Turkey, p. 25. 1010  Ibid. In the same sense, see ECtHR, 24 May 2011, Sabri Güneş v. Turkey, p. 66: “En matière d’indemnisation du dommage corporel, le droit de recours doit s’exercer à partir du moment où les justiciables peuvent effectivement évaluer le dommage qu’ils ont subi.”

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In the second part of the chapter the public nature of both Directives 2004/35 and 2008/99 has been addressed and challenged. Both Directives rely on public bodies to set environmental responsibility in motion. With regards to the 2004/35 Directive, this choice reflects the “public trust doctrine”. This public nature can prove problematic on several accounts. The permit defence provided by Directive 2004/35, which allows an operator to escape responsibility provided that he respected the permit he was awarded by a public authority illustrates the problems of the public trust doctrine. To assess the gaps identified, the choice was made to focus on procedural human rights, a particular set of rights mentioned in chapter 1. More specifically, the author mobilised both “classical” procedural rights (right to a fair trial and to an effective remedy) and environmental procedural rights. Two specific requirements have been mobilised: impartiality and independence. After having exposed what these requirements stand for and which criteria are applied, the author checked whether the classical and environmental procedural rights could be applied to a case analysis. The author chose to focus on the French implementation of Directives 2004/35 and 2008/99 and direct attention to water law. In its implementation of the Directives, French law has recognised the Prefect as the pivotal administrative institution not only regarding Directive 2004/35, but also, and more surprisingly, regarding Directive 2008/99. When applying the impartiality and independence requirements to the authorities that set environmental responsibility mechanisms in motion in France with regards to water law, the author found serious concerns of incompatibility on account of both the prefect and “traditional” prosecuting services with the impartiality and independence requirements. In turn, this incompatibility allows establishing that human rights do have a role to play with regards to environmental responsibility also with respect to legal practice. They complement environmental responsibility. Human rights can be seen as a safety net not only regarding the substantive aspect of environmental responsibility, but also regarding legal practice, i.e., the actual setting in motion of environmental responsibility mechanisms. All in all, assessing environmental responsibility against procedural rights requires the public nature of the Directives to be framed with a view to fulfilling human rights requirements. The second part of the chapter was also dedicated to the obligation to guarantee access to information on risks in international environmental law and Council of Europe human rights law. This obligation restricts the scope of application of the development risk defence. Distinguishing risk from damage relates back to risk as the essence, the cause of damage. This allows recognising environmental responsibility’s specificity. The author saw that the Directives’

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regulatory approach shifts the centre of gravity to the operator’s behaviour and the regulation of the activity. Focusing on danger and risk as the cause of damage rather than on the effects of damage allows us to focus on environmental damage’s intrinsically environmental dimension. When questioning the interplay between the development risk defence and the obligation to guarantee access to environmental information on risk, the author explored in a first step the obligation that binds public authorities to regulate potentially damaging activities. This obligation encompasses the obligation to gather information on risk. This is firmly settled in Council of Europe human rights law. As a second step, the author explored the obligation to make known the results of environmental investigations and studies as a requirement firmly settled in the European Court of Human Rights’ case law. This applies to information held by public authorities and private persons. More specifically, the author found that the confidentiality protecting technical and industrial information may be precluded by the requirement to diffuse the information on two grounds: the public interest and emissions into the environment. Accordingly, an operator A could be bound to disclose information and not to maintain the level of ignorance of the public, national authorities and operator B regarding the potential effects of a product or technology for the environment and public health. The author then considered an example: nanotechnology. The author established that the development risk defence could be an invaluable route for nanotechnology operators by which to escape responsibility. Indeed, there is currently an obvious regulatory loophole regarding nanotechnologies. In addition, knowledge on the technology’s potential affects on the environment and public health is currently lacking, while the technology is widely utilised. All the previous findings could then be applied to the operators concerned: they would have to diffuse the information gathered, thereby filling the knowledge gap. In turn, the development risk defence might not apply: the effects of the technology would be acknowledged and their responsibility would be incurred for environmental damage and harm. The obligation to guarantee access to information on risk also complements the Directives. Indeed, Directives 2004/35 and 2008/99 rely on the notion of fault. On the one hand, Directive 2004/35 endorses a non-fault based responsibility for the activities reputed to be the most dangerous and listed in Annex III. However, it has been seen that, contrary to the assumption put forward by the legislator, EU environmental law is far from being comprehensive (for example, nanotechnologies are not, for the time being, regulated by EU environmental law). As a result, activities which are not specifically regulated by EU environmental law would fall under the second responsibility approach,

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i.e. fault-based responsibility. In this respect, the Directive provides no general obligation in terms of standard of care. The Directive merely refers to “negligence” in articles 3(1)(b), without giving any definition of the term. In other words, it is most probable that fault (and hence responsibility) will be triggered by the breach of statutory requirements. Indeed, it is quite doubtful that the Directive as interpreted by EU Courts is to be understood as setting any standard of care requirement. This aspect was examined at length in chapter 3. This is exactly where the obligation to guarantee access to information on risk intervenes. The obligation fills the lack of “standard of care” requirement by fleshing-out the standard of care requirement. Accordingly, if this standard of care requirement were breached, responsibility would be set in motion. More specifically, and provided that the other criteria are met (e.g. damage threshold), the development risk defence cannot be invoked by the operator. The operator would be considered to be at fault or negligent if he had not made public information on risk. The development risk defence expressly excludes the application of the defence if the operator is at fault or negligent (article 8(4)). On the other hand, the situation is a bit simpler regarding Directive 2008/99. The Directive also endorses the regulatory approach. The Directive requires fault on the part of the potential offender and fault is defined according to the breach of the EU law listed in Annex A. As has been seen in chapter 2, the standard of care has been purposely rejected with the autonomous defence. There only remains reference to “serious negligence”, as mentioned in the bottom line of Article 3. The author saw that this standard of care is not defined in the Directive, but the EU Court defined it in the Intertanko case1011 as meaning “an unintentional act or omission by which the person responsible commits a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge, abilities and individual situation”.1012 In addition, the standard of care is to be defined according to national law.1013 In other words, the standard of care is not defined according to 1011  ECJ, The Queen on the application of International Association of Independent Tanker Owners (Intertanko), International Association of Dry Cargo Shipowner (Intercargo), Greek Shipping Co-operation Committee, Lloyd’s Register, International Salvage Union v Secretary of State for Transport (“Intertanko” case), ECJ, C-308/06 (Grand Chamber), preliminary ruling, 3 June 2008. 1012  Ibid. para. 77. 1013  Ibid. para. 73: “It is, however, to be pointed out, first of all, that those various concepts, in particular that of ‘serious negligence’ referred to by the national court’s questions, correspond to tests for the incurring of liability which are to apply to an indeterminate number of situ-

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EU law and there is no harmonised definition of the standard of care. Similarly to the above, the obligation to diffuse information on risk would complement the Directive and fill this gap. Were the operators found not to have complied with the obligation to diffuse environmental information, the operators would be at fault. Consequently, and provided that the other conditions to set in motion criminal responsibility are met, responsibility could be brought into play. The third case approached in the second part of this chapter that focuses on procedural aspects relates back to temporal matters, and more particularly prescription matters. It was established that Council of Europe human rights law conflicts with the Directive. The starting point of the prescription in Directive 2004/35 should be the event, emission or incident, or knowledge of the harm caused by environmental damage. ations that it is impossible to envisage in advance and not to specific conduct capable of being set out in detail in a legislative measure, of Community or of national law”, para. 74: “Next, those concepts are fully integrated into, and used in, the Member States’ respective legal systems”, para. 75: “In particular, all those systems have recourse to the concept of negligence which refers to an unintentional act or omission by which the person responsible breaches his duty of care”, and para. 78: “Finally, in accordance with Article 249 EC, Directive 2005/35 must be transposed by each of the Member States into national law. Thus, the actual definition of the infringements referred to in Article 4 of that directive and the applicable penalties are those which result from the rules laid down by the Member States”.

CHAPTER 5

Conclusions In the following developments, the results of the research are presented. To begin with, the first hypothesis (namely that some gaps can be identified in EU environmental responsibility law) has been verified in this book (5.1). Further, the second hypothesis (namely, that international environmental law and Council of Europe human rights law partially fill the gaps identified and selected) has been partially verified: the comparative approach has partially delivered results grouped under cases of confirmation, complement, or conflict (5.2). The thesis (namely that the comparative approach could sustain a return to the responsibility paradigm) has not been verified. This is evidenced if one thinks in terms of the autonomy of EU environmental responsibility law from EU environmental law (5.3). Despite the limited outcomes of the research in terms of gap-filling and the shift towards the responsibility paradigm, the comparative approach could apply to additional routes for research. A few paths are reported in the last section (5.4). 5.1

The First Hypothesis is Verified: Gaps in Directives 2004/35 and 2008/99

A Shift of Paradigm: From Responsibility to Liability and Cost-allocation This research was concerned with the environmental responsibility of private persons that is regulated at EU level by Directives, i.e. EU secondary law. This book addressed Directive 2004/35 on environmental liability and Directive 2008/99 on the protection of the environment through criminal law. The overall research question was: can a comparative approach be applied to EU secondary law with a view to filling the gaps identified in the two Directives? The comparative approach is understood as assessing these gaps against international environmental law and Council of Europe human rights law and identifying cases of complement, confirmation or conflict. The scope of the research has been limited to three aspects: environmental damage and harm, the grounds for environmental responsibility, and the grounds for exceptions to the responsibility principle. Environmental damage has been distinguished from environmental harm. The former refers to the factual impairment of 5.1.1

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004302143_006

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the environment (for example pollution of groundwater). The latter refers to the legal consequences that flow from the factual impairment of the environment (for example interference with the right to health of the people in the vicinity of the groundwater). The critical approach applied to the Directives in the first part of each chapter aimed to determine whether the author could identify a shift of paradigm with regard to the discourse between responsibility law and liability law. As was exposed in chapter 1, the former (responsibility) relates to the subject of law and the relationship between the subject of law and the obligation that he is bound by. Reference is made to primary rules and obligations (these are phrased in terms of obligations that result from EU environmental law, due diligence obligations and obligations of result). The breach of primary rules entails responsibility (for example, the breach of the conditions endorsed in a permit). In other words, matters of responsibility encompass both the obligation itself and the breach of the obligation. The latter, liability, refers to the legal situation created by the breach of the obligations which the subject is bound by: The focus is on secondary obligations (for example, compensating victims of wrongs that resulted from the breach of the conditions of a permit). This book is exclusively concerned with environmental responsibility. Restoration or compensation obligations have not been addressed. Since responsibility was the object of research, attention has been focussed on the responsibility paradigm. The shift of paradigm regarding environmental responsibility has been identified and criticised. Attention has been directed to the primary obligations which bind operators with regards to environmental damage. The shift from primary obligations to secondary obligations has been identified. Instead of endorsing the obligation not to cause environmental damage, the Directives studied are more concerned with the allocation of losses (Directive 2004/35) or the identification of the person who is designated responsible and, accordingly, should be bound by liability obligations (Directive 2008/99). In short, the Directives preside over a shift from responsibility to liability. As a result of the critical assessment of the Directives which was conducted in the first part of each chapter, it has been found that the regulatory approach of the Directives (defined as the approach whereby the legislator relies upon existing law—“regulation”) in order to provide environmental responsibility with a scope of application and content is particularly crucial: It explains and provides evidences of the shift of paradigm from responsibility to liability. This shift of paradigm is not the only consequence of the regulatory approach. The regulatory approach also explains another shift of paradigm: the centre of gravity of environmental responsibility does not lie in the specifics of

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environmental damage and harm, but rather on human activities. Several limitations result from this shift. Among others, the approach of the Directives remains largely anthropocentric. The Directives adopt an instrumental and inherent approach to responsibility, and do not endorse the most eco-centric approach: the recognition of the environment’s intrinsic value. The regulatory approach of the Directives also has a fundamental weakness: the limitations of EU environmental law are mirrored into EU environmental responsibility law. This finding is elaborated at more length in the following section. The Gaps under the Comparative Approach: The Legal Definition of the Environment, the Regulatory Approach and the Shift of Paradigm In the first part of each chapter, a wide range of limitations has been identified in the Directives. Not all of the limitations relate to the abovementioned shift of paradigm. Limitations have been identified on several grounds. These include the inconsistency with EU (environmental) law and the bargaining process that occurred at EU level during the legislative process. Existing academic works that have largely covered Directive 2004/35 and (to a lesser extent) Directive 2008/99 have been relied upon. Not all of the limitations were addressed in the second part each chapter. Eight limitations were selected and addressed. The limitations selected are believed to best reflect the three lines of analysis exposed in chapter 1. They are: 5.1.2

• How •

•

law approaches the environment (anthropocentric vs. ecocentric approach: the instrumental, inherent or intrinsic value of the environment). The impact of the regulatory approach (dependence of EU environmental responsibility law upon EU environmental law) on EU environmental responsibility law: when they ground responsibility or exceptions to the responsibility principle, the Directives have their greatest weight of significance on EU existing regulation of human activities. The greatest weight of significance does not rest upon environmental damage and harm and the corresponding harmlessness obligations phrased under due diligence or obligation of results. The shift from responsibility (breach of obligation and of victims’ rights) to cost-allocation: as a consequence of the regulatory approach not being centred on the notions of environmental damage and injury, the Directives address cost-allocation matters instead of identifying due diligence or harmlessness obligations towards the environment.

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The eight limitations that were selected are:

• The limited notion of natural resources (section 2.1) • The limited recognition of the intrinsic value of the environment (section 2.1) • The threshold condition for damage and harm to be legally defined (section 2.1) • The rejection of diffuse pollution from the scope of application of the Directives (section 2.2.2) • Deference to international law that applies to oil-spills (in Directive 2004/35) (section 3.1.5) • The public trust doctrine and more particularly the legal practice that flows from the doctrine (section 4.1.1) • The development risk defence as an exception to the responsibility principle (in Directive 2004/35) (section 4.1.2) • The 30 years prescription (Directive 2004/35) (section 4.4) In more details, the limited scope of the Directives in terms of damage and harm rationae materiae was identified as a limitation. The limitations of the Directives with regards to ecosystems and natural resources, as opposed to biodiversity, have been particularly emphasised. The deference to international law in Directive 2004/35 can also be perceived as a limitation. The Directive preserves the application of some international responsibility frameworks, even though several EU institutions have been very critical regarding the international frameworks in question. More specifically, deference to the international conventions that apply to damage caused by oil-spills has been identified as particularly problematic. Also, the “public” or administrative approach in the Directives can be seen as a limitation, and this was addressed in the second part of this book. More particularly, it has been demonstrated that the trustee (competent public authorities in Directive 2004/35, prosecuting services in Directive 2008/99) acts as a screen between damage and harm to res communes and citizens. Serious doubts have been expressed regarding the trustee’s impartiality and independence. The shift of paradigm from responsibility to liability indicates responsibility does not lie on the primary obligation not to infringe upon rights related to environmental damage, but rather relies on administrative environmental law and its inherent techniques. EU environmental responsibility is too dependent

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on EU environmental law. Responsibility derives from the infringement of EU environmental law (for example, not respecting the conditions of a permit), or damage resulting from those activities identified by EU environmental law as the most potentially dangerous for the environment and public health. In addition, environmental responsibility will be all the more difficult to put in motion when EU environmental law does not specifically address an activity (for example, nanotechnologies). It follows that the loopholes identified in EU environmental law will be mirrored in EU environmental responsibility law (or example in terms of EU environmental law’s limited scope of application). Access to information has also been identified as a pivotal issue for getting the wheels of responsibility in motion. Two exceptions to the responsibility principle endorsed in Directive 2004/ 35 were particularly scrutinised: the permit defence and the development risk clause. It was shown that these defences raised serious concerns in terms of coherence and consistency with EU (environmental) law and the object of responsibility: environmental features legally defined as res communes. As another consequence of the regulatory approach adopted by the Directive, the centre of attention shifts from damage and harm to environmental values to the perception of risk. More specifically, the perception of risk is based either on the perception of public authorities (permit defence) or of the operator (development risk defence). The shift is from an objective lens with which to view responsibility (i.e. impairment of environmental values), to a subjective lens (i.e. risk perception). The onus is not on the protection or security of environmental values, but on the management of these values. The development risk contains several essential features that raise specific questions. The development risk defence encompasses notions that are essential for the whole issue addressed in this book, namely, the access to and diffusion of information that refers to (risks to) the environment. This aspect was considered to be potentially very instructive for the comparative approach in the second part of this book. In the second part of each chapter, the comparative approach was applied to the eight limitations chosen, and these limitations were assessed against international environmental law and Council of Europe human rights law. The purpose of the research was to identify whether these limitations identified in EU secondary law could be usefully assessed against the requirements endorsed in international environmental law and Council of Europe human rights law and reveal a complement, confirmation, or conflict case.

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The Second Hypothesis is Partially Verified: International Environmental Law and Council of Europe Human Rights Law as Limited Gaps-fillers. In between Complement, Confirmation and Conflict

The outcome of this book in terms of interplay is reported in the annexed table with greater details than in the sub-sections that follow. 5.2.1 Five Cases of Confirmation International environmental law and Council of Europe human rights law confirm EU environmental responsibility law and the gaps therein in five cases. They are:

• The limited notion of natural resources in the Directives and Council of Europe human rights law (section 2.4) • The limited recognition of the intrinsic value of the environment in the • •

Directives and the UN Convention on Biodiversity and Council of Europe human rights law section 2.3.2) The threshold condition for damage and harm to be legally defined in the Directives and international environmental law (Biodiversity Convention, Cartagena and Kuala-Lumpur Protocols) and Council of Europe human rights law (section 2.4) The rejection of environmental harm resulting from damage caused by a diffuse pollution in the Directives and international environmental law (Kuala-Lumpur Protocol) (section 2.4.1)

5.2.2 Two Cases of Complement A second set of two cases of complement is identified. Council of Europe human rights law complement EU environmental responsibility law and the gaps therein. They are:

• The boundaries of the development risk defence in Directive 2004/35 and the Council of Europe human rights law (section 4.3) • The public trust doctrine and the discretion of public authorities that set environmental responsibility into motion in the Directives and Council of Europe human rights law (section 4.2)

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5.2.3 Four Cases of Conflict A third set of four cases of conflict is identified. International environmental law and Council of Europe human rights law conflict with EU environmental responsibility law and the gaps therein. They are:

• The limited notion of natural resources in the Directives and international environmental law (the UN Convention on Biodiversity) (section 2.3.1) • The rejection of environmental harm resulting from damage caused by • •

a diffuse pollution in the Directives and Council of Europe human rights law (2.4.2) Deference to international law that applies to oil-spills in Directive 2004/35 and Council of Europe human rights law (section 3.2). The 30 years prescription established in Directive 2004/35 and Council of Europe human rights law (section 4.4)

As a second case, EU environmental responsibility law has influenced international environmental law. Understanding the Limited Outcome: Dynamics and Limits of the Gap Fillers The dynamics and limits of international environmental law and Council of Europe human rights law explain the eleven cases reported above, which result from the comparative analysis applied in this book. First, similarly to EU secondary law, international environmental law clarifies the outcome of tensions between competing interests: environmental protection on the one hand, and the economic interests of those whose conduct could potentially damage the environment on the other. Some limits result from this tension, as was evidenced when analysing the international framework that applies to oil spills. Despite these limits being acknowledged by a range of EU institutions (the European Commission, European Parliament and Court of Justice), EU secondary law deferred to the international framework that applies to oil-spills. In the comparative analysis, the international framework has consequently been challenged against human rights requirements. Greatest weight of significance of the latter rests in the rights guaranteed by the European Convention on Human Rights, rather than a compromise between competing interests. In fact, the European Court of Human Rights actually reviews the compromise when it performs the “fair balance test” according to the rights guaranteed.

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Second, international environmental law instruments are influenced (or rather infiltrated) by the legal systems adopted at the national (EU) level by the parties that negotiate these instruments. The EU has put forward EU secondary law as a benchmark in the negotiating process that lead to the adoption of the Kuala-Lumpur Protocol to the Biodiversity Convention. Consequently, a mirror effect occurs: international environmental law reflects the law of some negotiating parties and does not fulfil a triggering function whereby it could create and motivate higher standards in terms of environmental protection. This tendency is regrettable: the mirror effect also applies to the limits that can be identified in the legal systems that were taken as “models”. From the opposite perspective, one could argue that international environmental law is meant to codify existing standards. This codification would lead to a “level playing field” at the global level, while these standards would be enforceable by the mechanisms available at the international level (for example, arbitration, International Court of Justice, ad hoc implementation mechanisms). Third, international environmental law remains a benchmark against which EU secondary law (Directives 2004/35 and 2008/99) can be assessed. EU secondary law should respect international law. The requirement that EU secondary law should respect international environmental law has been recalled in the recent Air Transport Association of America case adjudicated by the EU Court.1014 In the analysis conducted in this book, respect of international 1014  EU Court (Grand Chamber), C-366/10, 21 December 2011, Air Transport Association of America, American Airlines Inc., Continental Airlines Inc., United Airlines Inc. v. Secretary of State for Energy and Climate Change, Preliminary Ruling, ECR 2011 I-13755. In this case, the Court had to adjudicate whether the validity of Directive 2008/101/EC 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community (and its implementing measures adopted by the United Kingdom) could be assessed against the Convention on International Civil Aviation signed in Chicago on 7 December 1944, the Convention on International Civil Aviation, signed in Chicago (United States) on 7 December 1944, the United Nations Framework Convention on Climate Change, adopted in New York on 9 May 1992, the Air Transport Agreement between the European Community and the United States concluded in April 2007 (“the Open Skies Agreement”), and customary international law. The Court concluded that the Chicago Convention and Kyoto Protocol couldn’t be relied upon to assess the validity of the Directive. On the contrary, the Open Skies Agreement (Article 7, Article 11(1) and (2)(c), Article 15(3)) could be relied upon as a benchmark to assess the validity of the Directive. Similarly, the principles of customary international law (the principle that each State has complete and exclusive sovereignty over its airspace, the principle that no State may validly purport to subject any part of the high seas to its sovereignty, and the principle which guarantees freedom to fly over the high seas) can be relied upon in order to contest the validity of the Directive. The Court

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environmental law proved crucial when comparing the notion of natural resources endorsed in the Directives with the notion of biodiversity endorsed in international Conventions. Fourth, regarding human rights law, the comparative analysis conducted allows us to verify and acknowledge the dynamics and limits of Council of Europe human rights law. The potential of Council of Europe human rights law has been established with regards to environmental procedural rights in chapter 4. In this chapter, the impartiality and independence requirements that apply to public authorities together with the obligation to diffuse environmental information and requirements regarding prescription periods have proved crucial to justify a specific interpretation and requirements in terms of legal practice. The limits of Council of Europe human rights law were exposed in chapter 1. They have been verified in this book. The European Court of Human Rights concluded that the Directive was not infringing any of the international norms relied upon. Some of the relevant paragraphs read as follows. Para. 50: “It should also be pointed out that, by virtue of Article 216(2) TFEU, where international agreements are concluded by the European Union they are binding upon its institutions and, consequently, they prevail over acts of the European Union”,  para. 51: “It follows that the validity of an act of the European Union may be affected by the fact that it is incompatible with such rules of international law. Where such invalidity is pleaded before a national court, the Court of Justice ascertains, as is requested of it by the referring court’s first question, whether certain conditions are satisfied in the case before it, in order to determine whether, pursuant to Article 267 TFEU, the validity of the act of European Union law concerned may be assessed in the light of the rules of international law relied upon”,  para. 52: “First, the European Union must be bound by those rules”, para. 53: “Second, the Court can examine the validity of an act of European Union law in the light of an international treaty only where the nature and the broad logic of the latter do not preclude this”,  para. 54: “Finally, where the nature and the broad logic of the treaty in question permit the validity of the act of European Union law to be reviewed in the light of the provisions of that treaty, it is also necessary that the provisions of that treaty which are relied upon for the purpose of examining the validity of the act of European Union law appear, as regards their content, to be unconditional and sufficiently precise”,  and para. 101: “Under Article 3(5) TEU, the European Union is to contribute to the strict observance and the development of international law. Consequently, when it adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the European Union”.

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is the dynamic element of Council of Europe human rights law regarding environmental substantive and procedural rights. Even thought the European Convention on Human Rights does not guarantee environmental rights as such, the Court has continuously extended the scope of application of the rights guaranteed by the Convention to include environmental issues. It is reflected in the cases distinguished above and has been evidenced in this book and is largely acknowledged by scholars. Scholars and judges of the Court (in their dissenting opinion) also acknowledge the limits of environmental rights before the Court, but the limits have never (as far as the author knows) been pointed out in a systematic fashion. In this book, the human rights approach has been applied in a systematic way when analysing environmental responsibility. Consequently, the limits of environmental rights before the Court appear in a comprehensive way and are not only evident after a case or series of cases have been read together. Several limits have been detected in this book. Some reasonings of the Court have not been very dynamic. For example, the Court applies a rather traditional and strict approach to matters of proof and causality. It is a clear obstacle to the full achievement of environmental responsibility’s potential (for example, regarding diffuse pollutions). The dynamism of the Court is also severely limited by a structural deficiency regarding environmental issues: the Convention does not guarantee environmental protection as such, and the Court has refused to go so far as to interpret the Convention as guaranteeing this right. The Court appeared to do so in the Tatar case (2009), but in subsequent cases the Court returned to its more traditional approach: environmental protection is not guaranteed by the Convention as interpreted by the Court. Other limits result from this structural limit. The more the Court has to deal with cases that have an anthropocentric dimension, the more the Court can mobilise the Convention and existing case law to complement or conflict with EU environmental law. For example, the Court’s case law was found to be comprehensive and useful for the purposes of this book when attention was directed to the right to property in the aftermath of an environmental disaster (oil-spills), and to environmental procedural rights. Conversely, the more the Court has to deal with cases that have an ecocentric dimension, the less the Court can mobilise the Convention and existing case law. It was made clear in the chapter on the limits of the Directives regarding the definition of environmental features that fall within the scope of application of environmental responsibility law (chapter 2). In the same chapter it has been made clear that international environmental law does endorse a legal notion of biodiversity that is broader than the Directives’ definition of natural resources. It has been found that the Court is currently ill-equipped to address the Directives’ limited

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definition. There appears to be a red line that the Court cannot (or does not want to) cross. Consequently, the Court cannot address a whole body of issues that bear an ecocentric and collective dimension: these issues still escape the Court’s jurisdiction. Regarding the cases where it was identified that Council of Europe human rights law fills the gaps of the Directives, an explanation of why it does so can be proposed. A possible reason could be that the legal systems do not have the same purposes. EU law is driven by integration: the Directives are meant to harmonise EU Member States’ law regarding environmental responsibility. Council of Europe human rights law is not meant to result in integration but rather aims to protect the rights guaranteed in the European Convention on Human Rights. In other words, the distinction between integration and protection is reflected in the distinct rules provided by these legal systems.1015 In order to deliver results, the comparative approach applied in this book relies and depends upon these differences. 5.3

The Thesis is Not Verified: The Comparative Approach does not Help to Depart from the Cost-allocation Paradigm

Limited Outcome of the Comparative Approach in Terms of Shift of Paradigm As has been seen above, the outcome of the comparative approach can be phrased under hypotheses that reveal the dynamics and limits of the legal systems mobilised (international environmental law and Council of Europe human rights law). The outcome of the comparative analysis also provides input regarding the regulatory approach that the Directives endorse. In the first chapter, the regulatory approach was defined as an approach whereby the legislator relates back to existing law (“regulation”) in order to provide environmental responsibility law with a scope of application and content. 5.3.1

1015  A recent case before the EU Court illustrates this argument. See EUCJ Opinion 2/13, 18 December 2014 (Full Court), p. 172: “The pursuit of the EU’s objectives, as set out in Article 3 TEU, is entrusted to a series of fundamental provisions, such as those providing for the free movement of goods, services, capital and persons, citizenship of the Union, the area of freedom, security and justice, and competition policy. Those provisions, which are part of the framework of a system that is specific to the EU, are structured in such a way as to contribute—each within its specific field and with its own particular characteristics—to the implementation of the process of integration that is the raison d’être of the EU itself.”

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In the first part of each chapter a number of gaps that have their roots in the regulatory approach were identified in the Directives. The regulatory approach endorsed in the Directives explains the shift of paradigm from responsibility (primary obligations) to liability obligations (secondary obligations). It is therefore relevant to report on the outcome of the comparative analysis regarding the regulatory approach. Does the comparative approach operate a (re-)shift of paradigm from liability to responsibility? From the shift of paradigm and the limits identified in this book, it is possible to reformulate this question before elaborating on the input of the comparative analysis. It has been seen in this book that the regulatory approach entails a instrumental approach to the environment. In turn, the prevention of environmental damage and harm is thus regulated in this frame. This instrumental approach can be opposed to the prevention of environmental damage and harm in the context of an obligation to protect the environment. In turn, environmental protection can relate back to environmental security. Environmental security can be defined as the protection of the environment so that environmental integrity is not impaired. Environmental integrity encompasses the functions fulfilled by the environment, together with the environment’s inherent and intrinsic values and functions.1016 Regarding environmental functions for humans and the environment’s inherent value and function, these are to be understood as having a collecting dimension both in terms of rights holders and duty holders. The obligation not to impair environmental integrity is independent from environmental protection measures. In other words, the environmental security obligation applies in the absence of, before or even against the adoption of environmental protection measures if these measures do not guarantee environmental security and integrity. 1016  The proposal of this definition builds upon the works conducted by the “Millennium project”. See the webpage on environmental Security, available at , page accessed 3 January 2012. The definition proposed does not have humans as a centre of gravity for definition purposes. Contra, the following defintion would have such a centre of gravity: “Environmental security is human security from threats that come from adverse changes in the environment.” The definition proposed is also to be distinguished from the notion of “environmental safety” that can be understood as relating back to the safety of specific industrial facilities that benefit humans and that can impair human safety when these facilities do affect humans through environmental pollution (air pollution, water pollution, soil pollution etc). This definition revolves around environmental standards set by environmental protection measures. This is exactly what the author’s definition is meant to avoid. In addition, the definition proposed does not address military aspects. The link between environmental security and military aspects (conflicts etc) is explored by the Millennium Project.

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Starting from the eco-centric and collective dimension of this obligation which relates back to environmental security and integrity, the question is: does the comparative approach that is applied in this book support a shift of paradigm towards environmental security and environmental integrity? Can a primary obligation not to impair environmental security and integrity (i.e. an obligation of result) be identified autonomously from any regulation? The answer to this question is complex and blurred in the context of this book. On the one hand, international environmental law and Council of Europe human rights law do not support the security obligation. International environmental law’s approach is similar to the approach adopted by the Directives: the focus is on the issue of who is to pay for what. The onus is on the management of damage. For example, environmental and economic interests are balanced regarding the thresholds that must be met and the costs of liability obligations (the costs must be reasonable). Similarly, Council of Europe human rights law suffers from structural deficiencies that hamper the Court from addressing eco-centric issues. The obligation not to impair environmental security and integrity clearly has an eco-centric and collective dimension. Consequently, Council of Europe human rights law is of no added value in the unveiling of the primary obligation not to impair environmental security and integrity.1017 On the other hand, a potential route for the recognition of the primary obligation not to impair environmental integrity and security has been identified in this book. In chapter 4 the development risk defence was addressed. A due diligence obligation that is independent from environmental law has been identified: the obligation to gather and diffuse environmental information on risks. The obligation is autonomous in as much as its boundaries and content are not defined according to existing regulation. Limited Outcome of the Comparative Approach in Terms of Autonomy 5.3.2.1 The Cost-allocation Paradigm and Regulatory Approach vs. Autonomy Overall, it has been seen above that the comparative approach does not deliver solid results in terms of a return to the responsibility paradigm. This is further evidenced if one thinks in terms of autonomy. Were environmental responsibility law autonomous, substantive environmental responsibility law would depart from the regulatory approach. In addition, environmental responsibility law would be centred on obligations

5.3.2

1017  In the following section the potential of the autonomous right to a healthy environment is touched upon in this respect.

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towards the environment and fully acknowledge the specificities of damage and harm: environmental damage and harm. Autonomy can be perceived as a sign of the potential for environmental responsibility not to shift to liability and cost-allocation matters. In the developments that follow, it is demonstrated that the comparative approach does not support such autonomy and, accordingly, the return to the responsibility paradigm. Doctrinal debates on how (and whether) to identify a branch of law and the autonomy of a branch of law are vivid. Without taking a position on these debates, the regulatory approach applied by the Directives requires to discuss these issues. It was reported in chapters 2 to 4 that scholars have been highly critical regarding the regulatory approach of the Directives in terms of the autonomy of environmental responsibility. The author came to the same conclusions, and identified a range of indices that demonstrate the lack of autonomy of environmental responsibility. EU environmental responsibility law largely depends upon environmental law, and the latter is largely of a public nature. In his book on French water law, A. Saout reports on doctrinal works regarding autonomy of law and the identification of branches of law.1018 A. Saout defines a branch of law as being a “discipline where the normative system is adapted to its specific goals.”1019 Several criteria can help in the identification of a branch of law.1020 Among these criteria is the existence of a specific judicial body. The majority of doctrinal works tend to rely on the existence of a degree of autonomy when compared to a more general discipline. In order to be identified as a branch of law, EU environmental responsibility law would have to be autonomous from environmental law. Regarding autonomy, A. Saout refers to Georges Vedel, who identifies two signs that help to identify a discipline’s autonomy.1021 The application of general principles and reasoning borrowed from another existing discipline to the discipline under consideration would lead to a lack of correctness. Also, the application of existing principles and methods borrowed from another discipline does actually result in a “kind of chemical combination”1022 that appears as novel. As A. Saout puts it, “autonomy appears as soon as a normative set develops its own instruments or borrows them and adapts them according to

1018  A. Saout (2011). 1019  Ibid. p. 51. 1020  Ibid. pp. 58–60. 1021  Ibid. p. 58. 1022  Ibid. translation mine.

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its own goals.”1023 In addition, A. Saout distinguishes specificity from autonomy: the adoption of successive pieces of legislation may lead to specificity but may not build up to autonomy. In this case, the discipline at stake is said to be an “accessory”. A sign of specificity can be the lack of cohesion, for example, when the provisions that give substance to the discipline are scattered among different norms. Against this background, is EU environmental responsibility law autonomous from EU environmental law? The first criterion is the lack of exactitude when existing principles and reasonings are borrowed from another discipline. A number of inconsistencies and incoherencies that flow from the regulatory approach (and hence EU environmental law) were identified and outlined at length, in the first part of each chapter. EU environmental responsibility law can be deemed to be autonomous. Nevertheless, when applying the second criterion (“emergence” of new principles based upon existing principles and methods borrowed from other EU environmental law), EU environmental responsibility law is not autonomous. The application of the regulatory approach in the Directives does not result in the emergence of specific principles and methods: the regulatory approach does not just lead to damage and harm being defined according to EU environmental law. The regulatory approach also provides the grounds for responsibility (for example, risk as the rationale of EU environmental regulations and the ground for responsibility, fault found in non compliance with EU environmental law) and triggers the exceptions to the responsibility principle (this is very clear regarding the so-called “permit defence”). Overall, EU environmental responsibility law cannot be considered as autonomous or, accordingly, as a branch of environmental law. EU environmental responsibility law is an accessory to EU environmental law.1024 As appears from the abovementioned first criterion, the emergence of autonomy through specific principles and methods is expected to answer the correctness issue. It is necessary to reflect on whether or not the comparative approach applied in this book actually triggers a movement towards autonomy. When wondering whether Council of Europe human rights law and international environmental law do support a movement towards autonomy, attention can be paid to two aspects: specific goals of the discipline and the emergence of new principles and methods built upon existing principles and methods. 1023  Ibid. p. 59, translation mine. 1024  Other authors come to the same conclusion without having explored the issue of criteria. See e.g. T. Hitchcock and N. Trounson (2007), p. 122 and J. Adshead (2005), p. 256.

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5.3.2.2

The Functions of Environmental Responsibility. Potential Added Value of the Comparative Approach The functions of environmental responsibility have been shortly touched upon in chapter 1. They have not been elaborated at length, since the method applied in this book is not a functional analysis. However, at this stage, it is necessary to elaborate a little further on the functions of environmental responsibility in order to identify whether or not Council of Europe human rights law and international environmental law have added value in this respect. As seen in chapter 1, the three generally recognised functions of environmental responsibility are: restoration, prevention, and sanction. The functions of environmental responsibility are not to be considered mutually exclusive, but rather as a whole. The first main function fulfilled by environmental responsibility frameworks is the restoration and compensation function.1025 Both Directives endorse this function. Directive 2004/35 relates back to the restoration and compensation function in its Preamble (Recitals 2, 16, 18) and Articles 1, 2(11), and 2(16). It is more difficult to find references to the restoration—compensation function in Directive 2008/99. This can be explained by the legislator’s restricted margin of action when elaborating the Directive (the legislator had no competence in the quorum of criminal sanctions and criminal procedure matters). The directive endorses the general requirements regarding Member States sanctioning the violation of EU law in Article 5: “Member States shall take the necessary measures to ensure that offences (. . .) are punishable by effective, proportionate (. . .) criminal penalties”.1026

1025  “Responsibility rules shift a loss from the person initially suffering it to another person that is responsible for it”, L. Bergkamp (2001), p. 70. 1026  In the proposal dated 09 February 2007 which still contained more detailed rules regarding sanctions for legal and physical persons committing an offence, the obligation to reinstate the environment was foreseen beside among others imprisonment and fines in Article 5(5)(c), Commission’s proposal for a directive on the protection of the environment through criminal law dated 9 February 2007, COM(2007) 51 final 2007/0022 (COD). More specifically and with regards to legal persons, the following was mentioned in Article 7(2) of the 2007 Proposal: “Member States may apply a system whereby the fine is proportionate to the turnover of the legal person, to the financial advantage achieved or envisaged by the commission of the offence, or to any other value indicating the financial situation of the legal person”.

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The second main function fulfilled by environmental responsibility law is that of prevention and deterrence.1027 According to some scholars, the prevention and deterrence function is the primary function of environmental responsibility.1028 This function is clearly endorsed in the Directives. Directive 2004/35 endorses the prevention and deterrence function in its Preamble (Recitals 2 and 13). The Directive also addresses the issue of prevention, not only from the angle of prevention as a goal, but also with regards to the operator or potential polluter’s change of behaviour so as to avoid damages. The Directive also addresses the issue of preventive measures to be taken once the threat of environmental damage has been identified in Article 2(10).1029 Similarly to the compensation function, it is rather difficult to find statements on the prevention and deterrence function in the directive, even though there is a rather strong agreement among legal scholars on the legitimacy and accuracy of this function. The directive refers to the general requirements regarding the sanction by Member States of violation of EU law in Article 5, referring to “dissuasive criminal penalties”.1030 The third main function of environmental responsibility law is that of sanction and punishment. This function reflects a moral condemnation and gives a clear message that polluting is wrong. The sanction function is particularly

1027  According to law and economics scholars, as for example in L. Bergkamp (2001), p. 87: “[a] responsibility regime indeed can be, and often is, aimed at deterring operators from exposing other persons to excessive (or ‘unreasonable’) risks and, thus, at promoting safety and preventing damage. Deterrence prevents damage and reduces cost by increasing the degree of care people take when engaging in an activity, or by decreasing the level at which the activity is conducted. As a result, deterrence would prima facie appear to be plausible and loadable goal of responsibility rules”. 1028  See for example A. Guégan (2000), pp. 147–158. 1029  On the law and economics influence with respect to the prevention function as enshrined by the Commission, see the explanatory memorandum of the proposal for a directive on environmental responsibility with regard to the prevention and remedying of environmental damage, COM(2002) 17 final, p. 6. 1030  The Commission’s Proposal for a Directive on the protection of the environment through criminal law dated 9 February 2007, COM(2007) 51 final 2007/0022 (COD), was a little bit more explicit for Recital 6 read of the Preamble provides: “In order to achieve effective protection of the environment, there is a particular need for more dissuasive sanctions for environmentally harmful activities, which typically cause or are likely to cause substantial damage to the air, including the stratosphere, soil, water, animals or plants, including to the conservation of species”.

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contested in the administrative and civil contexts.1031 No trace of this function can be identified in Directive 2004/35. As for criminal environmental responsibility, there was no such heated debate.1032 This acceptance is reflected in the impact assessment which accompanied the proposed Directive on the protection of the environment through criminal law, 9 February 2007.1033 This function can be traced back to Directive 2008/99, Recital 3 of the Preamble: “(t)he availability of criminal penalties, which demonstrate a social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law”. This may be the recognition by Directive 2008/99 of the sanction function as a peculiarity of criminal frameworks. Overall, the Directives endorse the specific goals of environmental responsibility. Consequently, environmental responsibility can be recognised as a branch of law. While Directive 2004/35 largely endorses the restoration and prevention functions, Directive 2008/99 mainly endorses the prevention and sanction functions. As has already been exposed at length, the EU legislator relies upon the regulatory approach and EU environmental law to fulfil these functions., The limits of this approach were identified in the first part of each chapter. These limits may diminish the specific functions of EU environmental responsibility law and, in turn, hamper the realisation of the functions 1031  G. Viney (2008) explains p. 14: “(During Ancien Régime) l’importance grandissante attachée à l’argent dans une civilisation de plus en plus orientée vers la recherche de l’aisance et des profits matériels ont contribué à favoriser l’apparition et l’essor d’une responsabilité purement civile dont l’aspect patrimonial a eu tendance à concurrencer puis à supplanter l’aspect punitif”. 1032  Contra, see for example R. Pereira (2007), pp. 254–268, and more particularly p. 256. 1033  Accompanying document to the Proposal for a directive on the protection of the environment through criminal law, Impact Assessment, COM(2007) 51 final SEC (2007) 161, 9 February 2007, p. 24: “The Directive on Environmental Responsibility (Directive 2004/35) focuses on the physical prevention and remedying of environmental damage; it does not aim at sanctioning the responsible operator and any financial responsibility resulting from the Directive is linked to measures of prevention and remediation of the environment actually taken. Such responsibility rules are in principle of a civil or administrative nature. Criminal sanctions are of a different character in that they primarily aim at sanctioning a past illegal behaviour and preventing the repetition of the same illegal behaviour in the future. Admittedly, there may be some connection between the two instruments since civil and administrative responsibility may have some deterrent effect while criminal courts may sometimes enjoin the wrongdoer to make good the damage he caused. Whatever it may be, the fact that criminal law may entail jail sentence makes it in any case essentially different than civil or administrative law”.

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of EU environmental responsibility law. This may hamper the recognition of EU environmental responsibility as a branch of law. In this context, do international environmental law and Council of Europe human rights law support the identification of a branch of law and counteract the effects of the regulatory approach adopted in the Directives? Turning first to international environmental law, the international Conventions and Protocols studied in this book have no added value when it comes to the functions fulfilled by environmental responsibility regarding the principles and methods applied (i.e. the regulatory approach). These Conventions and Protocols are reliant on the obligations they provide with a view to fulfilling damage and harm prevention. The Cartagena and Liability Protocols to the Biodiversity Convention are good examples. Conversely, Council of Europe human rights law may be seen to have an added value. Moving beyond the text and paying attention to the fulfilment of these functions, it is possible to fruitfully rely on the questionnaires filled out by experts from 15 Member States.1034 The outcome of the questionnaires indicates that the Directives do not fulfil the prevention function that is nevertheless enshrined in the Preambles of the Directives.1035 In these questionnaires concerned with Directive 2004/35 and as seen in chapter 3, some respondents contend that the prevention function is not fulfilled by the Directive, but is rather fulfilled by EU environmental law. This conclusion is expected to apply to Directive 2008/99 by analogy. The Member States argue that the thresholds applied in Directive 2004/35 hamper the Directive in its fulfilment of its preventive function. Similar thresholds are endorsed in Directive 2008/99. The European Court of Human Rights could have a role to play: the Court sanctions national authorities’ lack of appropriate supervision of potentially damaging activities, irrespective of (or at least not exclusively based on) environmental law. A potential exists for the European Court of Human Rights to trigger a more important role to environmental responsibility in terms of dam1034  Questionnaires filled by national experts upon request by the European Commission services and relating to specific questions on the application of Directive 2004/35 (copy with the author). The questionnaires are not dated, but refer to the application of Directive 2004/35 between 1 May 2007 and 31 October 2009. The 17 questionnaires refer to the following 15 Member States: Belgium (3), Bulgaria, Cyprus, Czech Republic, Denmark, Germany, Spain, Estonia, Ireland, Lithuania, Netherlands, Portugal, Slovakia, Sweden and the United Kingdom. 1035  See for example Directive 2008/99, Preamble, Recital 5 and Directive 2004/35, Preamble, Recital 3.

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age and harm prevention in cases where the prevention of damage and harm is not solely based upon environmental law. For example, this could be seen to be the case were the Court to sanction a lack of damage and harm prevention, either because of a regulatory void (i.e. law does not exist), or because environmental law was not applicable to a case (for example, because a case does not fall within environmental law’s scope of application). Overall, if environmental law cannot be brought into play (contrary to the Directives), some prevention obligations that bind national authorities regarding the behaviour of private individuals can still be brought into play. 5.3.2.3

Specific Principles and Methods. No Added Value of the Comparative Approach Adding to the specific goals of environmental responsibility, the emergence of new principles and methods which are built upon existing principles and methods is the second sign of movement towards autonomy. With regards to the added value of the comparative approach in this respect, attention is paid to Council of Europe human rights law and international environmental law in terms of emerging specific principles and methods. As a first added value, from all the Conventions screened, the recognition of the environment’s intrinsic value can be identified. As mentioned in chapter 2, the UN Biodiversity Convention refers to biodiversity’s intrinsic value in its Preamble (“Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components”). Nevertheless, it has also been seen that this reference seems to be merely formal, since the Convention adopts an instrumental and inherent approach to biodiversity. The author also saw that environmental procedural rights applied by the European Court of Human Rights do have specific added value. They complement the Directives. The reasoning of the Court relies upon the requirement that the interests of the applicants should be taken into account. This could flesh out the argument that protecting the environment from damage and harm should not be a matter left to the hands of a “competent authority” of a public nature (Directive 2004/35) or to prosecuting services (Directive 2008/99). The requirement for recognition of the direct and individual interests of citizens could emerge as a specificity of environmental responsibility law that could use the path of the requirement to take citizens’ (applicants’) interests into account. Nevertheless, this route seems to be closed. The European Convention on Human Rights does not recognise these interests in protecting the environ-

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ment (as seen in chapter 1 and verified in the second part of chapter 2). The European Court of Human Right rejects the right to a healthy and protected environment. The protection of the environment against damage and harm cannot, for the time being, be the appropriate route to recognise citizens’ interests if the citizen cannot establish a link between damage/harm and the rights guaranteed by the Convention (for example private life, health). Overall, the possibility of bypassing the competent authority or prosecution services’ decision (for example, not to pursue criminal proceedings) on the grounds of citizens’ interest in protecting the environment is severely limited. In summary, the comparative approach applied in this book (which has a scope of research limited to damage, harm, the grounds for responsibility and grounds for exceptions to the responsibility principle) is not very useful for granting EU environmental responsibility law autonomy from EU environmental law or, the status of a branch of law that would support the move towards responsibility, as opposed to cost-allocation. Despite this fairly negative conclusion, taking stock of the results of the comparative approach does nonetheless shed light on necessary regulatory (and research) developments. It also opens doors and new routes in this respect. 5.4

Taking Stock of the Results

One Step Further: The Limits of International Law on Private Persons’ Responsibility The limitations identified in this book show that there is still plenty of room for international law to further regulate the environmental responsibility of private persons and to fill the gaps identified. In turn, this room for manoeuvre calls upon international law to go one step further and address issues that are not (or not appropriately) addressed in regional systems. The issue of diffuse pollution is one illustration of this potential. It has been seen that international environmental law does not fill this gap. This lacuna illustrates that for the comparative approach to deliver results, it is necessary to have international environmental law “showing the way”, and not to be over-influenced by national or regional conceptions (for example regarding the Kuala Lumpur Protocol to the Biodiversity Convention). Nevertheless, this path is not very promising. When international law goes one step further than the “traditional” or “minimalist” approach, conventions do not enter into force. The tendency (or preference) to codify the respon5.4.1

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sibility of private persons at the national or regional level is evidenced by the EU attitude. The EU provides traces of the reluctance of States to enter into international binding agreements. For example, neither the EU nor the Member States have ratified two Council of Europe Conventions on environmental responsibility: the 1992 Lugano Convention on civil liability for damage resulting from activities dangerous to the Environment (only ratified by Portugal), and the 1998 Convention on the protection of the environment through criminal law (only ratified by Italy). The EU (and its Member States) rather opted for the EU as the appropriate forum to negotiate and harmonise rules. Directive 2004/35 took the Lugano Convention as a source of “inspiration” and Directive 2008/99 took the Council of Europe Convention on the protection of the environmental through criminal law as a source of “inspiration”. The way to assure that international environmental law fulfils its role could lie in institutional structures: if an international environmental organisation with clear competences and strong powers existed (similar to the World Trade Organisation), States might be more inclined to harmonise environmental responsibility rules.1036 Another route for the harmonisation and creation of rules regarding the environmental responsibility of private persons could be the creation of a world court with jurisdiction over environmental matters. One Step Further: Potential of the Human Right to a Healthy Environment The comparative approach applied in this book did not only unveil the limits of international law regarding the responsibility of private persons. The comparative approach also unveiled a potential route to filling the gaps identified in the Directives: the recognition of the right to a healthy environment. The recognition of the (human) right to a healthy environment could fill some of the gaps identified to a greater extent. The human rights approach is severely limited when taking into account Council of Europe human rights law: the European Convention on Human Rights does not recognise the right to have the environment protected. The attempts to establish an additional Protocol recognising the autonomous right to a healthy environment have all failed. The European Court of Human Rights refuses to bypass this structural limit. The right to a healthy environment nevertheless has strong potential. It could be applied in cases where the “traditional” human rights approach fails, i.e., when the intrinsic dimension of the environment or the collective dimension of issues related to environmental damage and harm are at stake. Scholars commonly underline the current deficiencies of traditional approaches and 5.4.2

1036  Contra, see S. Oberthür and T. Gehring (2004).

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the potential of the autonomous right to a healthy environment.1037 Even though this right may not be the panacea and research is still necessary in order to provide the autonomous right with clear boundaries and a clear substantive content, relying upon this right nonetheless has the potential to fill some of the gaps identified in this book. This potential can be assessed bearing in mind that if the autonomous right was guaranteed, the Court would assess the proportionality of an interference with this right when articulating the fair balance requirement. In performing the proportionality assessment, the Court would take into account the intrinsic value of the environment as part of the fair balance assessment. The recognition of environmental protection and the inherent, intrinsic and collective dimensions would have many implications. Among others, the greatest weight of significance would rest on the integrity of the environment and, accordingly, on damage and harm to the environment. The focus would be on environmental integrity. This focus would clearly operate a shift of paradigm towards a primary obligation not to impair environmental integrity. This obligation is very distinct from the Directives’ focus on secondary obligations that are themselves triggered by EU environmental law. Another implication would be of a purely procedural nature. The European Court of Human Rights would find that the cases brought before it by NGOs and citizens who claim that States have infringed the autonomous right to a healthy environment would be admissible. Citizens and NGOs would no longer have to demonstrate that they were individually and directly concerned with the impairment of the environment that impacted the rights guaranteed by the Convention.1038 In turn, the Court would be able to adjudicate whether the States had infringed the obligations that flow from the European Convention on Human Rights if the States had not sanctioned the impairment of environmental integrity. The Court could also adjudicate on whether the severity thresholds that apply to environmental damage and harm in order to entail responsibility are so high that they do not guarantee the effective enjoyment of the autonomous right. A last example relates back to the issue of diffuse pollution. Let us consider the case in which the impairment of the environment (for example, pollution of waters) is caused by an economic sector that can be identified (for exam1037  See e.g. F. Francioni (2010), D. L. Shelton (2011), and contra see Boyle (2010). 1038  This would not be so far from the environmental procedural rights already endorsed e.g. in the Aarhus Convention. Put simply, this Convention requires sufficient interest to be presumed regarding environmental NGOs that initiate legal proceedings.

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ple, agricultural activities). Currently, responsibility cannot be entailed on the grounds that individual operators cannot be identified. This current exception to the responsibility principle could be fought on the grounds that the autonomous right to a healthy environment requires States to ensure that the primary obligation (not to interfere with environmental integrity) is respected, and to impose sanctions if this is not the case. Interestingly enough, this collective responsibility (which is not a new mechanism in law)1039 would echo the collective enjoyment of the right to a healthy environment. The autonomous right to a healthy environment definitively has the potential to fill a high number of the gaps identified in the Directives, whereas current international environmental law and Council of Europe human rights law are ill-equipped to do so. However, this finding needs to be nuanced: The autonomous right to a healthy environment may not be the panacea, and (for the time being) this right has no clear boundaries or defined content. In the legislative (or jurisdictional) process of providing this right with boundaries and content, some trade-offs could occur. The autonomous right to a healthy environment could be given a limited scope of application and a minimalist content. In such circumstances, the potential of the autonomous right as a gap-filler would diminish accordingly. Going the Other Way Round: Pathways to International Responsibility of States 5.4.3.1 Environmental Responsibility of Public Persons in International Law: The Limits The comparative approach applied in this book allows us to take stock of the limits of this approach. It is possible to go one step further and suggest potential changes to international environmental law and Council of Europe human rights law which would enable the comparative analysis regarding the gaps identified in EU secondary law to be more fruitful. This was touched upon above. The outcome of the comparative analysis does not stop there: the comparative analysis could be done the other way round. The findings also expose the fact that international environmental law can be assessed according to a similar analysis regarding environmental responsibility. Scholars commonly acknowledge that if attention was shifted from the responsibility of private persons to the responsibility of public persons, inter5.4.3

1039  See, for example, the mechanisms endorsed in several national legal systems which endorse the collective responsibility of hunters if they hurt someone passing by. The claimant does not have to identify the hunter who shot and impaired the ir rights. Hunters are collectively held responsible.

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national law in relation to the responsibility of public persons for environmental damage and harm would be severely limited.1040 5.4.3.2 Grounds for Responsibility in EU Law Taking stock of the limits of international environmental law, it is possible to wonder whether EU environmental responsibility law could be of any use within the framework of a comparative analysis. A comparative approach to EU environmental responsibility law and the international responsibility of public persons raises questions. For example, which features can be applied to (or can at least inspire) the responsibility of public persons for environmental damage and harm? Could this approach be seen to have any added value? The purpose of a concluding chapter is clearly not to engage in further research, but the potential this “reversed” comparative approach is worth mentioning. The Directives could prove instructive regarding the responsibility of States for acts or lack thereof that can be attributed to them. More specifically, to what extent the responsibility of States for environmental damage and harm could be entailed for damaging and harming activities run by private persons, when States retain some degree of control over the activities of these private persons? The case considered is the situation whereby States retain a margin of control or influence over the activities of transnational corporations. For example, States facilitate the extra-territorial activities of private persons, or have a role in the decisions adopted by private persons. It has been seen in this book that the Directives define the criteria that trigger the responsibility of legal persons: the Directives retain the notion of control. It has been found that the notion of control is assessed in concreto. Article 6(1) of Directive 2008/99 provides that the environmental criminal offence must have been committed “by any person who has a leading position within the legal person, acting either individually or as part of an organ of the legal person”. This is assessed against the power of representation of the legal person, the authority to take decisions on behalf of the legal person, or the authority to exercise control within the legal person. In addition, Article 6(3) allows for the aggregation of liabilities, i.e. the possibility to engage in criminal proceedings against both legal persons and natural persons “who are perpetrators, inciters or accessories in the offences”. Consequently, a State or the authorities of a State could be held responsible if the facts revealed one of several cases: For example if a State or State authorities representing the transnational corporation (for example, by engaging in 1040  See for example X. Hanqin (2003) and A. E. Boyle (2005)a.

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negotiations on the content of liability obligations that will apply to damage with the State where the damage occurred) and having a de facto authority to take decisions on behalf of the legal person or exercising control within the legal person (for example, by negotiating the possibility for the legal person to run its activities in another State). Directive 2004/35 also retains the notion of control in its definition of the notion of operator. Article 2(6) endorses the notion of “control” over the occupational activity or “decisive economic power over the technical functioning” of an activity when the power at stake has been delegated. If economic control was assessed in concreto, the State responsibility could be entailed as long as the State was an influential stakeholder of the legal person. The factual review would assess the respective power of the actors involved (more specifically the State) in the activity of the transnational corporation. It would also assess the extent to which each one of these actors operates a control and generates profit. All in all, a comparative analysis whereby EU secondary law would influence international environmental law could support States’ responsibility as including the activities of private persons run in another State, which generate damage and harm to environmental values in that (other) State. 5.4.3.3

Human Rights Law: Contesting the Impunity of National Authorities Private persons are not the only actors who could potentially generate environmental damage and harm. State authorities can also create damage and harm to environmental values. One can for example refer to the lack of (or deficient) regulation that applies to dangerous activities run by private persons. When shifting the attention to public persons, it is possible to refer to dangerous activities run by State authorities themselves (for example, nuclear activities). It is also possible to relate back to activities that have a relationship with the authorities of States, even though they are not run by State authorities but by private persons. For example, transnational corporations that run activities in States that are weak in terms of governance, and cause damage and harm to environmental values (for example, in the case of oil pollution in Nigeria).1041 The link to national authorities whose responsibility is questioned rests 1041  On oil pollution in Nigeria, see the United Nations Environment Programme’s Report “Environmental Assessment of Ogoniland report”, 4 August 2011, available on the UNEP’s website at , page accessed 14 December 2011.

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upon the nationality of private persons, or place of registration for legal persons. This issue is pivotal in regards to the responsibility of States for the behaviour of their national private persons in other countries. In the context of human rights, the crux is the extra-territorial dimension of human rights law. To what extent do human rights requirements that bind States apply to private persons’ activities that are run outside the territory of these States? Matters of extra-territoriality have already been scrutinised at length.1042 Without taking position on this debate, it is possible to underline the potential of this approach. Just to give one example, the European Court of Human Rights has ruled against impunity in the case of interference with right to life caused by an environmental disaster. In the Onerlyidiz case,1043 the Court recalled its settled case-law regarding the room for discretion left to States in terms of the nature of the remedy that must be at the disposal of private persons.1044 Nevertheless, as a rule, breaches of the right to life must be repressed and punished (para. 91), which entails the obligation to conduct an official investigation. The Court then applies this rule to the circumstances of the case, i.e. dangerous activities (para. 93). The conclusions in paragraph 93 are worth reproducing for they are straightforward in terms of impunity (emphasis added): [I]t should be pointed out that in cases of homicide the interpretation of Article 2 as entailing an obligation to conduct an official investigation is justified not only because any allegations of such an offence normally give rise to criminal liability (. . .), but also because often, in practice, the true circumstances of the death are, or may be, largely confined within the knowledge of State officials or authorities (. . .). In the Court’s view, such considerations are indisputably valid in the context of dangerous activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents.

1042  See for example D. Augenstein (2010). 1043  ECtHR 30 November 2004 (GC), Öneryildiz v. Turkey. 1044  Ibid. para. 92: “[I]f the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation to set up an ‘effective judicial system’ does not necessarily require criminal proceedings to be brought in every case and may be satisfied if civil, administrative or even disciplinary remedies were available to the victims”.

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Where it is established that the negligence attributable to State officials or bodies on that account goes beyond an error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, failed to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity (. . .), the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2, irrespective of any other types of remedy which individuals may exercise on their own initiative (. . .). This excerpt strongly condemns the de facto impunity of public authorities, and clearly illustrates the potential of a comparative approach. The comparative approach applied in this book is an approach that gives scholars and decision-makers a tool to evade “self-reference”. Applying an approach that relates back to other legal systems (and could be applied to other fields of law) can provide extremely interesting and useful outcomes in terms of learning, and of assessing positive law against the standards of other legal systems or the creation of common principles of law, whereby international environmental law would create its own normativity.

Annex—Summary of the Findings: Complement, Confirmation and Conflict 8 gaps in the Directives

1. Limited notion of “natural resources”  See section 2.1  Directive 2004/35 art. 2(4), 2(13)  Directive 2008/99 art. 2 and 3

• • •

2. Limited recognition of the intrinsic value of the environment  See section 2.1

•

International law

Council of Europe Human Rights law

Confirmation/ complement/conflict

Ground

Confirmation/ complement/conflict

→ Conflict (partly) Limited notion of “natural resources” vs. notion of biodiversity: “Overall, the definition of damage in Directive 2004/35 could cover, at least partly, the notion of an ecosystem and the functional dimension embodied in the definition of biodiversity of the Biodiversity Convention.” (Section 2.3.1, concluding paragraph under “EU notion of habitats, services and natural resources: a portion of biodiversity”)

UN Convention on Biological Diversity (adopted in 1992, entered into force in 1993) Art. 2

Limited recognition of the intrinsic value of the environment vs. no recognition of the intrinsic value of the environment:

UN Convention on Biological Diversity

→ Confirmation Limited notion of “natural resources” vs. notion of biodiversity, and limited recognition of the intrinsic value of the environment vs. no recognition of the intrinsic value of the environment: the Court is ill equipped to address those issues. “When screening the Court’s case law concerned with environmental affairs, it appears that environmental features are dealt with in three hypotheses. Firstly, the states that appear before the Court justify national interference in the human rights guaranteed on protection measures for environmental features.

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004302143_007

Ground

• Case law of the ECtHR

ECtHR: European Court of Human Rights

• ECHR ECHR: European Convention on Human Rights

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Annex—Summary of the Findings

(cont.) 8 gaps in the Directives

International law

Confirmation/ complement/conflict

• Directive

2004/35 art. 2(1)(b)— waters  Directive 2008/99 art. 3— mentions to waters, and art. 2 in conjunction with Annex A (for the unlawful conduct— mentions to EU water law)

•

→ Confirmation The Biodiversity Convention does not recognise the environment’s intrinsic value in its operative articles “Overall, the author can conclude that the Biodiversity Convention does not create an obligation to adopt an intrinsic approach to biodiversity. Consequently, the EU was not bound to adopt an intrinsic approach in secondary norms (the Directives that regulate environmental responsibility law.” (Section 2.3.1, concluding paragraph under “The Biodiversity Convention does not recognise biodiversity’s intrinsic value”)

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Council of Europe Human Rights law

Confirmation/ complement/conflict In this hypothesis, the states put forward the protection of environmental features as the legitimate end of the national measure that interferes with the rights guaranteed by the Convention. In this respect, it appears that the Court has mainly had to deal with water, air, and land. The Court has had to deal with animal, vegetal or biological living species in a few cases. Secondly, the claimants have put forward that the states brought before the Court have failed to adopt measures that would have prevented the impairment of environmental features. This impairment has, in turn, interfered with the rights guaranteed by the Convention. Under the third hypothesis, the claimants contend that

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371

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International law

Confirmation/ complement/conflict

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Council of Europe Human Rights law

Confirmation/ complement/conflict states have adopted national measures that have impacted on environmental features. In turn, this impact has interfered with the rights guaranteed by the Convention. When screening the Court’s case law in these two last hypotheses, it appears that the Court has had to deal with water, air, and land. For the time being, the Court has not had the opportunity to pronounce itself in cases where ecosystems were at stake. This may result from the fact that claimants contending that damage or harm being done to ecosystems was infringing the rights guaranteed by the Convention have systematically been refused access to the Court. Indeed, as seen above, the Court has systematically recalled that it is

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372

Annex—Summary of the Findings

(cont.) 8 gaps in the Directives

International law

Confirmation/ complement/conflict

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Council of Europe Human Rights law

Confirmation/ complement/conflict

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“well-established case-law that neither Article 8 (right to private life) nor any other provision of the Convention guarantees the right to preservation of the natural environment as such”. (Section 2.3.2, under “The European Convention on human rights: limited potential regarding natural resources and biodiversity”, footnotes omitted) “All in all, the Court does not endorse an intrinsic approach nor impose it. The European Convention on Human Rights as interpreted and applied by the Court does not conflict, complement or confirm the Directives.” (Section 2.3.2, concluding paragraph) 3. The threshold condition for damage and

→ Confirmation “Policy diffusion” of EU norms

UN Convention on Biological Diversity

→ Confirmation “In summation, the Court’s case law does

• Case law of the ECtHR

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harm to be legally defined: level and lack of precision of the thresholds  See section 2  Directive 2004/35 art. 2(1)(a), (b) and (c)

• •

International law

Council of Europe Human Rights law

Confirmation/ complement/conflict

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Confirmation/ complement/conflict

“Regarding the lack of precision and severity of the threshold requirement (which triggers the application of the Protocol), the author can only acknowledge the similarity in the terms used. Indeed, ‘significant adverse effect’ is referred to by the Liability and Redress Protocol while Directive 2004/35 refers to ‘significant adverse effects’, ‘significant’, ‘significant risk’, and ‘significantly adversely affects’. With regards to the level of precision, the Protocol is less precise than Directive 2004/35. Indeed, the latter provides a much more elaborated list of factors that have to be taken into account in its Annex I.” (Section 2.4.1, under “The threshold requirement”, footnotes omitted)

(adopted in 1992, entered into force in 1993) Art. 2 Cartagena Protocol on Biosafety (adopted in 2000, entered into force in 2004) Art. 17(1) and (4) Art 26 Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (adopted in 2010) Art 2(2)(b) Art 2(3)

not provide any specific definition of the thresholds. The Directives do not, consequently, breach the standards of the Convention interpreted and applied by the Court.” (Section 2.4.2, concluding paragraph under “Damage and harm to environmental values: confirmation”)

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• ECHR

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(cont.) 8 gaps in the Directives

International law

Confirmation/ complement/conflict

• Directive

2008/99 art. 3

“Hence, the Biosafety Protocols read in conjunction with the Biodiversity Convention do not provide much guidance as to what exactly is to be understood by ‘damage to biodiversity’, and more specifically whether damage to biodiversity’s intrinsic value is to be covered by environmental responsibility frameworks. No answer is given to the question of whether the Liability and Redress Protocol addresses ‘impairment of the environment’ as opposed to ‘depletion of natural resources’. The issue is not addressed. Instead, reference is made to the more generic notion of ‘conservation and sustainable use of biological diversity,

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Council of Europe Human Rights law

Confirmation/ complement/conflict

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375

Annex—summary Of The Findings 8 gaps in the Directives

International law

Confirmation/ complement/conflict

Council of Europe Human Rights law

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Confirmation/ complement/conflict

Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (adopted in 2010) Art. 4

→ Partly conflict “In summary, even though the Court has attempted to loosen the causal link requirement in the context of diffuse pollutions, the Court’s case law does not fully counterbalance the gaps identified in Directives 2004/35 and 2008/99 in this respect.” (Section 2.4.2, concluding paragraph under “Pollutions having a “diffuse character”: (partly) conflict”)

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taking also into account risks to human health’, which is not given any operational definition.” (Section 2.4.1, under “Definition of damage and harm”, footnotes omitted) 4. Rejection of environmental harm resulting from damage caused by pollution that has a “diffuse character”, i.e. where the causal link between damage and activities of individual operators cannot be established  See section 2.2.2 (under “Rejecting the Polluter Pays Principle as grounding environmental responsibility”)

•

→ Confirmation “Policy diffusion” of EU norms “Accordingly, the causal link requirement enshrined in the Liability and Redress Protocol impedes the application of the Protocol to damage and harm if no causal link can be established between these and the pollution with a diffuse character. The Protocol provides with the same limitation as the gap identified in Directive 2004/35. Consequently, the Liability and Redress Protocol does not contradict Directive 2004/35. Here again

• Case law of the ECtHR  ECHR

•

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(cont.) 8 gaps in the Directives

International law

Confirmation/ complement/conflict

• See section

2.2.5 (under “Requirement to establish the causal link”)  Directive 2004/35 art. 4(5)  Directive 2008/99 art. 3

•

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Council of Europe Human Rights law

Confirmation/ complement/conflict

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the comparison exercise concludes with a confirmation case.” (Section 2.4.1, under “Pollutions having a ‘diffuse character’ ”)

•

5. Deference to international law that applies to oil-spills  Section 3.1.5  Directive 2004/35, art. 4(2)

• •

→ Conflict The international regime that applies to oil-spills does not meet the requirements of right to property “In this chapter is has been found that human rights having an individual dimension can, quite paradoxically, prove useful to challenge EU environmental responsibility standards. Indeed, the right to property has an individual dimension and is prima facie at the antipodes of some of the values at stake in

• Case law of the ECtHR  ECHR Art. 1 of the first Protocol

•

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International law

Confirmation/ complement/conflict

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Council of Europe Human Rights law

Confirmation/ complement/conflict

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the book that are res communes. Nevertheless, this right having an individual dimension proves a useful and relevant human rights approach to challenge EU and international environmental responsibility standards and unveil a conflict case between the international regime that applies to oil-spills and Council of Europe human rights law.” (Section 2.3, last paragraph of the conclusions) 6. Public trust doctrine: Questioning legal practice  Directive 2004/35: the permit defence (art. 8(4) (a)—see sections 4.1.3 and 4.1.4) and public trust doctrine

•

→ Complement Impartiality and independence requirements frame the identification of the public authorities that set environmental responsibility into motion and the discretion of those authorities

• Case law of the ECtHR  ECHR Art. 6, 13, 8

•

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(cont.) 8 gaps in the Directives

International law

Confirmation/ complement/conflict

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Council of Europe Human Rights law

Confirmation/ complement/conflict

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(Art. 11, 12 and 13—see section 4.1.1)  Directive 2008/99: public authorities that set criminal environmental responsibility into motion See section 4.1.1

•

7. Development risk defence: Questioning the boundaries of the defence  See section 4.1.2 and 4.1.4  Directive 2004/35: art. 8(4)(b)

• •

→ Complement Access to environmental information frames the boundaries of the development risk defence “Overall, the obligations to gather information on risks are assessed, in essence, through the environmental investigations and studies that must be conducted by national authorities.” (Section 4.3.2) “In sum, the right to access environmental

• Case law of the ECtHR  ECHR Art. 2, 8, and 10

•

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International law

Confirmation/ complement/conflict

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Council of Europe Human Rights law

Confirmation/ complement/conflict information is well settled by the European Court of Human Rights, under freedom of expression and the right to life and to private and family life.” (Section 4.3.5) “In sum, under the hypothesis that public authorities would have refused disclosure of environmental information on the grounds that the operators invoked the confidentiality of the information transmitted to public authorities, it can be argued that the Court would sanction this refusal to disclose the information (including to other operators) on the ground that the refusal hampered the public interest. Public interest requires that citizens must be aware of the risks that they are open to. In other words, when balancing the operator’s

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380

Annex—Summary of the Findings

(cont.) 8 gaps in the Directives

International law

Confirmation/ complement/conflict

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Council of Europe Human Rights law

Confirmation/ complement/conflict guarantee of confidentiality against the public interest in knowing the dangers at hand, the Court could give preference to the latter.” (Section 4.3.5, under “Disclosure serving the public interest”) “Overall, the Court should acknowledge the danger created by emissions when balancing the operator’s guarantee of confidentiality against the public’s interest in being aware of the dangers and risks created. Nevertheless, the Court has not elaborated a settled rule that addresses emissions as such in an objective fashion, but rather assesses the emissions on a case-by-case basis, i.e. in concreto. It is possible to assert that the Court would take emissions into the

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Annex—summary Of The Findings 8 gaps in the Directives

International law

Confirmation/ complement/conflict

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Council of Europe Human Rights law

Confirmation/ complement/conflict

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environment into account when considering whether information should be left undisclosed on account of commercial and industrial confidentiality. Nevertheless, it is not possible to contend that the Court would systematically sanction non-disclosure on the account that emissions into the environment had occurred.” (Section 4.3.5, under “Disclosure in the context of emissions into the environment”, footnotes omitted) 8. Prescription: Questioning the 30 years prescription that starts running from the event, emission or incident  Directive 2004/35: art. 17, 3rd indent

•

→ Conflict “From the above, it is possible to conclude that the condemnation of the prescription period in the Howald case and other cases before the Court also applies to the prescription set in Directive 2004/35. Council of Europe

• Case law of the ECtHR  ECHR Art. 6 and 8

•

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(cont.) 8 gaps in the Directives

International law

Confirmation/ complement/conflict

• See section 4.1.5

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Council of Europe Human Rights law

Confirmation/ complement/conflict human rights law conflicts with the Directive. There is nevertheless to nuance this conflict: it very much depends on the circumstances of each case. As the Court establishes it, whether or not there is a conflict between the prescription period and right to a fair trial will depend on the circumstances of each case. In some cases the prescription period will be found to infringe the requirement to take into account the latency period and specificities of the emission, event or incident for human health and the environment. In other cases, the 30-years limitation period will be found to be long enough and not deprive the victim from the right to a fair trial.” (Section 4.4, concluding paragraph)

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Bibliography Academic Works

BDEI EEELR ELM ELR EPL JEL RECIEL REDA REDE RJE

List of Abbreviations—Journals and Reviews

Bulletin Du Droit De L’environnement Industriel European Energy and Environmental Law Review Environmental Law and Management European Law Review European Public Law Journal of Environmental Law Review of European Community and International Environmental Law Revista Electrónica de Derecho Ambiental, available at Revue Européenne de Droit de l’Environnement Revue Juridique de l’Environnement

Adinolfi, G. (2006), “La tutela penale dell′ambiente in italia. Limitazioni legali e necessitá materiali”, REDA, Num. 14. Adshead, J. (2005), “The UK contaminated land regime and European provisions on liability for soil pollution: a marriage made in Brussels?”, ELM, Vol. 17 issue no. 6, pp. 254–262. Aiking, H., Brans, E. H. P., Ozdemiroglu, E. (2010), “Industrial risk and natural resources: The EU Environmental Liability Directive as a watershead?”, Env. Liability, 2010, Vol. 1, pp. 3–10. Allen, T. (2005), Property and the Human Rights Act 1998, Hart Publishing, Oxford. Amirante, D. (2007), “L’autonomie scientifique du droit de l’environnement”, in Pour un droit commun de l’environnement, Mél. En l’honneur de M. Prieur, Dalloz, Paris, pp. 3–19. Anderson, M. (1998), “Human rights approaches to environmental protection: an overview”, in A. Boyle and M. Anderson (eds.) (1998), pp. 1–23. Anton, D. K. and Shelton, D. L. (2011), Environmental Protection and Human Rights, Cambridge, University Press, Cambridge, New York. Antunes, T. (2006), “Ambiente: um direito, mas tambén um dever”, REDA, No. 14. Bautista Romero, J. J. (2009), “El sistema de responsabilidad por daños al medio ambiente”, REDA, Num. 18. Beck, U. (1992), Risk Society: Towards a New Modernity, Sage, London. Bergkamp, L. (2000), “The Commission’s White Paper on Environmental Liability: A Weak Case for an EC Strict Liability Regime”, available at SSRN on 6 February 2011 at .

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