Civil Liability for Damage Caused by Waste [1 ed.] 9783428481569, 9783428081561

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ROLAND PAPPEL

Civil Liability for Damage Caused by Waste

Schriften zum Umweltrecht Herausgegeben von Prof. Dr. Mi c ha e I Klo e p fe r, Berlin

Band 49

Civil Liability for Damage Caused by Waste By

Roland Pappel

DUßcker & Humblot . Berliß

Die Deutsche Bibliothek - CIP-Einheitsaufnahme Pappel, Roland: Civilliability for damage caused by waste / by Roland Pappel. Berlin: Duncker illld Humblot, 1995 (Schriften zum Umweltrecht ; Bd. 49) ISBN 3-428-08156-0

NE:GT

Alle Rechte vorbehalten © 1995 Duncker & Humblot GmbH, Berlin Fotoprint: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 0935-4247 ISBN 3-428-08156-0 Gedruckt auf alterungsbestJindigcm (säurefreiem) Papier gemäß der ANSI-Nonn für Bibliotheken

Preface The incentive for this book has been the "Proposal for a Council Directive on Civil Liability for Damage Caused by Waste" which was presented by the Commission of the European Communities in 1989. This study, however, is based on the amended version of the Proposal, which the Commission submitted in 1991 and which remains under consideration by the Council. Whereas the proposed Directive in itself has already been the subject of thorough academic examination, this study attempts to look at it from a comparative point of view, asking what impact the Directive, if implemented as drafted, would have on the law of different Member States of the EC. For this purpose, England (as part of the U. K.) and Germany have been taken as examples. A detailed and comparative outline of the English and German law related to civil liability for waste, therefore, precedes the examination of the proposed Directive. In 1993, the European Commission submitted a "Green Paper on Remedying Environmental Damage" which is no longer confined to damage caused by waste but extends the discussion within the Community on civil environmental liability to all sources of pollution (a step which this book strongly supports). Apart from this important improvement, however, the Green Paper does not contain any substantially new aspects in respect of civilliability for pollution as compared to the waste liability Proposal. This book, therefore, can and should also be read as a contribution to the discussion triggered by the Green Paper. I have added to the main text, which is written in English, an extensive German summary. I hope that I have in this way contributed, however slightly, to the mutual understanding of English and German lawyers. I also hope to have shown that for the further development of environmental civillaw, comparative research is of great value and, in view of the harmonization of the law within the EC, even indispensible. The English part of this work was submitted as a dissertation for the "Diploma in Legal Studies" of the University of Cambridge, England, in December 1992. The text has, of course, been updated and now states the law ofJuly 1994.

6

Preface

I dedicate this book to my parents, without whose support my research in Cambridge would not have been possible. For the same reason I owe thanks to the German National Scholarship Foundation (Studienstiftung des deutschen Volkes). Most of all, however, I am indebted to Prof. J. A. Jolowicz (Trinity College), who supervised my work in Cambridge, for his invaluable help. Königstein, July 1994 Roland Pappel

(Queens' College)

Vorwort Anlaß für die vorliegende Studie war der von der Kommission der Europäischen Gemeinschaften (jetzt: der Europäischen Union) im Jahre 1989 vorgelegte "Vorschlag für eine Richtlinie des Rates über die zivilrechtliche Haftung für die durch Abfälle verursachten Schäden". Dieser Vorschlag wurde im Jahre 1991 mit wesentlichen Änderungen versehen und wird derzeit vom Rat geprüft. Die überarbeitete Fassung liegt dieser Untersuchung zugrunde. Die vorgeschlagene Richtlinie ist bereits Gegenstand eingehender wissenschaftlicher Analyse gewesen, wurde aber bislang meist nur isoliert betrachtet. Demgegenüber versucht dieses Buch, sie rechtsvergleichend zu beleuchten, d. h. unter der Fragestellung, wie sich die Richtlinie auf die Rechtslage in verschiedenen Mitgliedsstaaten der EU auswirken würde, wenn sie in ihrer derzeitigen Fassung in Kraft träte. Hierfür wurden das englische und das deutsche Recht herangezogen. Eine detaillierte und mit rechtsvergleichenden Hinweisen versehene Darstellung dieser beiden Rechtsordnungen in bezug auf die zivilrechtliche Haftung für Abfalle ist daher der Prüfung des Richtlinienvorschlages vorangestellt. Das im Jahre 1993 von der Europäischen Kommission vorgelegte "Grünbuch über die Sanierung von Umweltschäden" stellt die Überlegungen zur Umwelthaftung in der Gemeinschaft auf eine breitere, nicht mehr nur auf Abfallschäden beschränkte Grundlage (ein Schritt, den dieses Buch nachdrücklich unterstützt). Darüber hinaus wirft es jedoch in bezug auf die zivilrechtliche Haftung für Umweltschäden gegenüber dem Richtlinienvorschlag keine wesentlich neuen Aspekte auf. Die vorliegende Untersuchung kann und soll daher auch als Beitrag zu der durch das Grünbuch ausgelösten Diskussion verstanden werden. Dem in englischer Sprache verfaßten HaupUext habe ich eine ausführliche deutsche Zusammenfassung beigegeben. Ich hoffe, auf diese Weise einen kleinen Beitrag zum wechselseitigen Verständnis und Interesse der deutschen und englischen Juristen für die jeweils andere Rechtsordnung zu leisten. Auch hoffe ich gezeigt zu haben, daß rechtsvergleichende Überlegungen für die Fortentwicklung des Umwelthaftungsrechtes von großem Nutzen und, im Hinblick auf die Rechtsangleichung innerhalb der EU, sogar unerläßlich sind.

8

VOIWOrt

Der englische Teil der Arbeit wurde im Dezember 1992 als Dissertation für das "Diploma in Legal Studies" der Universität Cambridge, England, vorgelegt. Der Text wurde seitdem überarbeitet und gibt den Sachstand vom Juli 1994 wieder. Ich widme dieses Buch meinen Eltern, ohne deren Unterstützung mein Forschungsaufenthalt in Cambridge nicht möglich gewesen wäre. Aus dem gleichen Grunde bin ich der Studienstiftung des deutschen Volkes zu Dank verpflichtet. Besonders aber danke ich Herrn Prof. J. A. Jolowicz, Trinity College, der meine Arbeit in Cambridge betreute, für seine unschätzbare Hilfe. Königstein, im Juli 1994 Roland Pappel

(Queens' College)

Table of Contents Chapter 1: Definition ofthe Subject .......................... .................................................................. 13 Chapter 2: The English Law ........................................................................................................ 15 A. Negligence ........................................................................................................................ 15 I.

Foreseeability ..................................................... .. ................ ................. ..................... 15

II. Compliance with Statutory Standards ........................................................................ 16 III. Liability of the Waste Producer .................................................................................. 17 IV. Negligence and "Public Law" ..................................................................................... 18 V. Negligence and Breach of Statutory Duty ................... .. ........................ .. ................... 19

B. Statutory Provisions ........................................................................................................ 20 I.

Environmental Protection Act 1990 ........................................................................... 20

II.

Consumer Proteetion Act 1987 ................. ........................... .......................... .. .......... 22

C. Nuisance ........................................................... .. .............................................................. 23 I.

Nuisance and "Public Law" ........................................................................................ 23

11. Rule in Rylands v. Fleteher ............................................................................ ........... 23 III. Defence of Statutory Authority .................................................................................. 25 IV. Nuisance and Trespass ............................................................................................... 26 V. Public Nuisance ......................................................................................................... 26

D. Causation .............................................................................................................. ........... 27 I.

Multiple Causation ..................................................................................................... 27 1.

Cases where there is Joint and Several Liability .................................................. 27

2.

Cases where there is no Joint and Several Liability ............................................. 31

11. Proof of Causation .......................................................................... .. ......................... 32 E. Miscellaneous Topics ...................................................................................................... 34 I.

Economic Lass ........................................................................................................... 34

11. Protection of Diffuse, Fragmented and Collective Interests ....................................... 34 I.

Representative Actions ........................................................................................ 34

2.

Comrnon Interest Groups .................................................................................... 35

III. Repair of Damage to the Environment ....................................................................... 37 IV. Exemplary Damages .................................................. .. ................ ........ .......... .. ........... 39

10

Table of Contents V. Injunctions ................................................................................................................. 40 VI. Limitation .......................................................................... .. ....................................... 42

Chapter 3: The German Law ....................................................................................................... 43 A. Introduction ..................................................................................................................... 43 B. The Umwelthaftungsgesetz (UmweltHG) ................................ ...... .. .............................. 43 I.

Scope of the UmweltHG ............................................................................................ 43

II. The UmweltHG in Relation to the Previous Law ....................................................... 44

III. Analysis of § I UmweltHG ........................................................................................ 47

C. Liability of the Waste Producer ................................................... .. ................................ 49 D. Liability under the Produkthaftungsgesetz .................. ................................................. 51 E. Proof of Causation ......................................................................................... ................. 52 I.

Introduction ................................................................................................................ 52

II.

Assumption ofCausation under § 6 I UmweltHG ...................................................... 52

III. Assumption of Causation in Cases of Multiple Causation ......................................... 54 IV. Defences to § 6 I UmweltHG ..................................................................................... 55 V. Conclusions ................................................................................................................ 57

F. Joint and Several Liability or Proportional Liability in Cases of Multiple Causation? .................................................................................... 58 I.

Introduction ............................................................................. .. ................................ 58

11. Cumulative and Alternative Causation ....................................................................... 58 III. Additive Causation ..................................................................................................... 61

G. Damages ........................................................................................................................... 63 I.

Miscellaneous Provisions ........................................................................................... 63

11. § 16UmweltHG ........................... .. ............................................................................ 64

H. Miscellaneous Topif.:li ...................................................................................................... 66 I.

Limitation ....................................................... ............................................................ 66

11. lnsurance .................................................................................................................... 67

III. Retrospective Application of the UmweltHG ............................................................. 67 IV. Verbandsklage ............................................................................................................ 68

V. Preventive Effect of the UmweltHG ........................................................................... 68

Chapter 4: The Proposed EC-Directive on Civil Liability for Damage Caused by Waste ..... 71 A. Introduction ..................................................................................................................... 71 B. "Exclusivity" of the Directive ........................................................................................ 71 C. Strict Liability ................................................................................................................. 72

Table of Contents I.

11

No-fault Liability ....................................................................................................... 72

11. Compliance with Public Law ................... ................. .. ........ ................ .. ...... ........ ....... 73

D. Definition of Waste .............................. .. .......... ........................ .. .............. .. ..................... 75 I.

The Framework Directive ........................................................................................... 75

11. Occupational Activity ................................................................................................ 76 111. Damage Caused by Waste Disposal ........................................................................... 78 IV. Conclusions ................................................................................................................ 78

E. Persons Liable ................................................................................................................. 79 I.

System of the Directive ................................................................. .. ........................... 79

11. Liability of the Waste Disposer .................................................................... .............. 79 111. Liability of the Original Waste Generator .................................................................. 81

F. Remedies and Plaintiffs .................................................................................................. 84 I.

System of Remedies and Plaintiffs as Envisaged by the Proposed Directive ............. 84

11. Remedies Available to the Victim .............................................................................. 86 I.

Remedies in Respect of "Impairment of the Environment" ................................. 86

2.

Prohibition .......................................................................................................... 86

3.

Preventive Measures ....................................................................... .. ....... .. .......... 87

4.

Reinstatement of the Environment and Restitution in Kind ................................ 88

5.

Summary ............................................................................................................. 89

III. Remedies Available to the State ................................................................................. 90 I.

Prohibition .......................................................................................................... 90

2.

Impact of the Directive on Repairs of Environmental Damage ........................... 91

IV. Remedies Available to Common Interest Groups ....................................................... 93

G. Causation ......................................................................................................................... 94 I.

Proof of Causation .......................................................................................... .. ......... 94

11. Joint and Several Liability .......................................................................................... 95 111. Rights to Obtain Information ................................................................. .. .................. 95

H. Defences .................................................................... .. .................. ................................... 95 I.

Miscellaneous Topics ...................................................................................................... 96 I.

Contractual Exclusion of Liability .................................................................. ........... 96

11. Limitation ................................................................................................................... 97 111. Insurance .............................................................................. ... .............. ..................... 97 IV. Compensation Fund ................................................................................................... 98 V. Retrospection ................................................................................. ............................ 99 VI. Financial Caps on Liability .............. .. ......................... ........ .... ...... ............................. 99

Chapter 5: Summary and Conclusions ........................................ .. ........ .. .................................. 100

Table of Contents

12

Chapter 6: Zusammenfassung in deutscher Sprache .............. ................................................. 103 A. Einleitung ...................................................................... ................................................. 103 B. Das deutsche Recht ............. ............................. ..................................... ........................ 104 I.

Überblick ................................................................................................................. 104

11.

Die wirtschaftliche Bedeutung des Umwe\tHG ........................................................ \05

C. Das englische Recht im Vergleich zum deutschen ...................................................... \06 I.

Die wichtigsten Haftungstatbestände und ihre Grundprobleme: Haftung für Verschulden, bestimmungsgemäßen Normalbetrieb und Entwicklungsrisiken ........ \06

11.

Die Rechtsfolgenseite der Abfallhaftung .................................................................. \08

III. Klagen im öffentlichen Interesse: public nuisance und Verbandsklage ........... ........ 110 IV. Kausalitätsfragen: Mehrere Verursacher und Beweisprobleme ................................ III

D. Der Vorschlag für eine EG-Richtlinie über die zivil rechtliche Haftung für die durch Abfälle verursachten Schäden .......................................................................... 113 I.

Auswirkungen der Richtlinie auf das nationale Recht im Falle ihres Inkrafttretens. 113

11.

Insbesondere: Klagebefugnis des Staates und von Verbänden ................................. 114

III. Versäumnis der Regelung wichtiger Kausalitätsfragen im Richtlinienvorschlag ..... 115

IV. Gesamtbewertung des Richtlinienvorschlags ........................................................... 117

References .................................................................................................................................... 118 Appendix I: The English Legislation ......................................................................................... 120 Appendix 11: The German Legislation ...................................................................................... 129 Appendix 111: The EC-Legislation ................................... .......................................................... 138

Chapter 1: Definition of the Subject A discussion of civil liability for damage caused by waste first requires a definition of waste. For the purpose of this book, waste is, first of all, defined as any object or substance of which its possessor seeks to be rid or which he may not legally retain in his possession. An object or substance which has thus become waste remains waste until it is legally put into use again, or legally reenters a manufacturing process (recycling). According to this definition, "waste" includes solids, liquids and gases but not energy even in the form of noise or radiation emitted from the possessor's premises.\ Since nuclear waste is so comrnonly the subject of speciallegislation, this book will not deal with that, but it will deal with all other forms of waste, household as weil as industrial or comrnercial. Waste may cause damage in innumerable ways. It regularly contains pollutants or poisonous substances which enter the environment in various ways. From the air, the water or the ground the poisonous substances get into plants, animaIs and other things. Man absorbs the pollutants either directly from the environment or by taking food. Waste can harm unowned parts of nature, cause damage to land and goods and endanger the health and even the Ii ves of human beings. Apart from such drastic results, waste mayaIso cause offence to the senses, particularly, of course, by smel\. Much environmental pollution is not caused by waste, but by the escape of something useful, such as crude oil. Despite the broad definition of waste adopted here, therefore, this thesis does not purport to deal with the bearing of private law on environmental protection as a whole. Furthermore, ci viI liability for damage caused by waste will be confined to tortious liability. Contractual relations will only be discussed where they are relevant to the law of tort. On 1st September 1989, the EC-Comrnission submitted a Proposal for a Council Directive on civil Iiability for damage caused by waste,2 of wh ich an

\ However, if a factory uses the water of a river as cooling water and pumps it back uncontaminated but much warmer than before (see, e. g., Pride of Derby v. British Celanese [1952]1 All E. R. 1326), this sewage must probably be called waste, too. 2 OJ 1989 C 251, 3

Chapter I: Definition of the Subject

14

amended version was published on 27th June 1991. 3 In October 1991, the Commission announced that it would not progress the amended Proposal for the time being in order to enter into a more broad-based discussion on civil environmental liability in the Community. To this end, the Commission submitted a "Green Paper on Remedying Environmental Damage" in 1993. Apart from being no longer confined to waste,4 however, the Green Paper does not contain any substantially new aspects in respect of civil Iiability for pollution as compared to the waste liability Proposal. Consequently, the amended Proposal remains under consideration by the Council. The Member States of the EC, amongst them the United Kingdom and Germany, will have to make their law conform to the Directive if it is adopted. An examination of the merits of the proposed Directive therefore calls for an assessment of its impact, if implemented, on the national law of the Member States, that is to say its impact on the operation of the law in practice, not simply on the actual wording of the relevant legal texts. It is necessary first of all, therefore, to consider how existing national law responds to the problem of civilliability for damage caused by waste. For this purpose, the English and the German law will be taken as examples.

3 OJ 1991 C 192,7 4 The problems created by the restriction of the Directive Proposal to waste will be discussed in Chapter 4, D., below.

Chapter 2: The English Law Cases in which damage is caused by waste are common 1 but are not treated by English law as a special category. It is necessary, therefore, to examine those principles of English law which may lead to liability for such damage, whether the word "waste" is actually employed or not. A full restatement of those principles is, however, unnecessary: It is sufficient to consider only those aspects of their application in which the fact that waste is involved may be important.

A. Negligence I. Foreseeability Liability in negligence requires that the damage was reasonably foreseeable. What, then, is reasonably foreseeable in cases of damage caused by waste? Damage may, for instance, be caused by waste that was deposited in a landfill site many years ago. In such a case, chemical reactions and other developments of the waste over long periods of time and their resulting emissions are often unpredictable (development risks).2 It may be that the chain of causation leading to the damage can be explained afterwards, and we are certainly learning more and more about the chemistry of waste disposal depots. But if at 1 For instance, many nuisance cases qualify as waste cases as defined in Chapter 1 (see, e. g., Pride of Derby v. British Celanese [1952] 1 All E. R. 1326; Manchester Corp. v. Famworth [1930] A. C. 171). Other cases of damage caused by waste which have occurred in England include - one bungalow destroyed by a methane gas explosion and a number of other properties blighted; - a tanker driver killed by fumes while landfiJling hazardous waste; - local pol1ution of rivers and groundwater at some 20 sites; and - clean up costs of illegal deposits incurred by local authorities, estimated at 100m pounds annually, but, according to the Department of the Environment, none of them actually went to court: See Report, p. 92. 2 Report, p. 22, para. 73

16

Chapter 2: The English Law

the time of the allegedly negligent act of the defendant, e. g. at the time when the waste in question was landfilled, the risks leading to the damage were according to the "state of the art" unknown, the defendant will escape liability in negligence. 3 Thus, as foreseeability must be judged by the knowledge available at the time of the allegedly negligent act, a "state of the art" defence is under the fault-based law of negligence not needed.

11. Compliance with Statutory Standards

In waste cases where the damage is caused by an industrial plant, the defendant's compliance with statutory standards, limits and other requirements set for his activity may be an important consideration in determining whether he has been negligent or not. Two cases must be distinguished: First, let us assurne a situation where pollutants escape from "special waste"4 kept in a landfill site and cause damage. Further, let us assurne that the regulations issued by the Secretary of State for the keeping of this kind of special waste in landfill sites require that precautions A, Band C be taken by the operator of a landfill site for this kind of special waste. In our case, the operator of the landfill site has complied with these prescriptions, but the escape of pollutants has taken place nonetheless. This could have been prevented by taking precaution D. If the operator could have reasonably been expected to take precaution D, he has been negligent despite his compliance with all the relevant statutory regulations. This means that these regulations can only be regarded as setting a minimum standard, so that it may weIl be that the law expects more of a defendant in a particular situation than the regulations prescribe. The regulations do not cover each and every possible situation, and in our case the defendant's negligent act was outside their scope. 5 Secondly, let us consider a case where a chemical plant regularly emits pollutants which finally cause some damage. The daily amount of pollutants emitted, however, remains within the limits prescribed by regulations issued by the Secretary of State according to section 3 of the Environmental Protection Act 1990. Here, English law will regard the standards set in the regulations as absolute, so that the defendant's compliance with these standards will automati3 Nor will he be Iiable in nuisance or under the rule in Rylands v. Fletcher: Cambridge Water Co. Ltd. V. Eastem Counties Leather plc. [1994] 1 All ER 53, 62 (HL).

4 I. e. waste which is so dangerous or difficult to treat that the Secretary of State issues particular regulations for its treatment: See section 62 (1) of the Environmental Proteetion Act 1990. 5 Winfield, p. 118; Rogers, p. 61

A. Negligence

17

cally mean that he has not been negligent, the reasons being as follows: If it were held in our case that the defendant was negligent although he complied with the statutory standards, this would mean that there would be two different standards according to which the defendant would have to perform his activity: One to comply with the statutory regulations, and one to avoid civil liability. Apart from the confusion caused by such double standards, the standard to avoid civil liability would, of course, be stricter, so that it would in practice replace the statutory standard. This would mean that the jurisdiction would overrule the (probably expert) judgment of the legislator as to what the defendant should and should not do. 6 Regarding such standards set by statutory regulations as absolute is important in the area of damage caused by waste, for in many waste cases the damage is caused by gradual pollution resulting from the normal and lawful operation of industrial plants.

111. Liability of the Waste Producer Let us assurne the following case: Some waste is transferred from its producer, e. g. an industrial plant, to an independent disposal contractor, e. g. a landfill site. After the transfer, pollutants escape from the landfilled waste and cause damage. Normally, the waste disposer will be liable for this damage (provided he has been negligent etc.), because the damage proceeded from his plant. When, however, will the waste producer face liability in such a case? First, he will be liable if he negligently selected an unreliable disposal contractor. 7 Secondly, he will be liable if, for instance, he negligently failed to inform the waste disposer about the true character and composition of the waste transferred, and if this failure caused the damage suffered by the plaintiff. 8 There are thus basically two types of case under existing English law where the waste producer is liable for damage caused by his waste although it was no longer in his possession when it caused the damage.

6 Winfield, ibid.; Rogers, ibid. 7 See Phil/ips v. Britannia Hygienic Laundry Co. [1923]1 K. B. 539.

8 Apart from the question of negligence, the producer's failure must in the latter case be regarded as a causa causans, for the production and the transfer of the waste in themselves merely are conditiones sine qua non which alone would even under a system of strict liability not be sufficient to hold the producer liable (unless the waste producer's liability is a "continuing" one; see Chapter 4, below). 2 Pappel

18

Chapter 2: The English Law

IV. Negligence and "Public Law" Let us assurne the following case: The waste disposed of in the waste disposal depot X causes damage to A. Under section 68 (2),(3) of the Environmental Protection Act 1990, the responsible waste regulation authority has appointed an inspector, who, under section 69 of the same Act, has the statutory power to inspect, inter alia, plant X. Can A sue the waste regulation authority, alleging that their inspector negligently failed to inspect X at all, or failed to inspect it properly, so that measures preventing the damage suffered by A were not taken? The inspector's decision not to inspect X at all is likely to be regarded by the judges as a matter of "policy",9 which A will only be able to attack by showing that the inspector acted ultra vires. 1O The possibilities of doing this, however, are so restricted ll that A will hardly have a chance of winning on that point. If Aalleges that the inspector did carry out an inspection but failed to carry it out properly, this will probably be treated by the judges as an "operational matter", for which it is not necessary to show ultra vires. 12 If, therefore, the ordinary law of negligence is sufficient, did the inspector owe a duty of care to A? In Murphy v. Brentwood District Council,13 it was ruled that neither a statutory power nor even a statutory duty of a public authority to inspect a third party's activity suffice to create a common law duty of care to protect a victim of the third party's activity from economic IOSS,14 but this case could, of course, be distinguished if A had suffered physical damage. However, in Murphy's case it was affirmed in general that a duty of care may be excluded for reasons of "public policy" despite sufficient proximity between plaintiff and defendant,15 and such a reason of policy could in our case be that the inspector's work might be seriously hampered by the threat of ci vii liability forcing hirn to exercise excessive caution. 16 9 For the distinction between "policy" and "operationaI matters" see Anns v. Merton London Borough Council [1978] A. C. 728, 754, per Lord Wilberforce.

IOFor the concept of ultra vires in general see Horne Office v. Dorset Yacht Co. [1970] A. C. 1004, 1059, per Lord Diplock. 11 See Winfield, p. 99. 12The contrary passage in Lord Wilberforce's speech in Anns, ibid., at p. 755, has apparently been largely ignored by the courts: Winfield, p. 101, with references. 13 [1990]2 All E. R. 908 (H. L.)

14 Ibid., at p. 937, per Lord Oliver

15 Ibid., at p. 915, per Lord Keith 16 See Hili v. ChiefConstable ofWest Yorkshire [1987]1 All E. R. 1173, 1183, per Glidewell L. J.; Yuen Kun Yeu v. Att.-Gen. of Hong-Kong [1988] A. C. 175.

A. Negligence

19

If it is true that the inspector in our case failed to inspect plant X properly, so that measures which could have prevented the causation of physical damage to A were not taken, to deny a duty of care for "policy reasons" will be the only way to exempt the waste regulation authority from liability in negligence: Although section 68 (4) of the Environmental Protection Act 1990 attempts to provide a special defence for waste inspectors, it does not add anything to the ordinary law of negligence, for if the inspector can show that "there were reasonable grounds for doing" what he did (or not doing what he did not do), he was not negligent. However, section 68 (4) as weIl as the decision in Murphy v. Brentwood seem to indicate a certain tendency both in the common and the statute law that public authorities should not be held liable for negligent inspections. Therefore, A will have considerable difficulties in convincing the judges that he should get redress from the waste regulation authority In our case.

V. Negligence and Breach of Statutory Duty

In waste cases, the most important statutory duty of which the breach could lead to civil liability will be the duty of care created by section 34 (1) of the Environmental Protection Act 1990. As section 34 (1) was clearly enacted for the benefit of the public as a whole 17 and section 34 (6) prescribes criminal sanctions as the consequence of a breach of duty, 18 one would suppose that civil litigation will not be possible under section 34. Surprisingly, however, some witnesses before the Select Committee on the European Communities of the House ofLords were ofthe opinion that there was such a possibility.19 The duty under section 34 (1) is nothing but a duty to take reasonable care which contains some specifications but does not in itself add anything of substance to the ordinary law of negligence as far as the standard of care is concerned. However, subsection (7) of section 34 requires the Secretary of State to "issue a code of practice for the purpose of providing to persons practical guidance on how to discharge the duty imposed on them by subsection 1 above", and subsection (10) allows this code to be used as evidence before court. Thus, what will be regarded as "reasonable in the circumstances" under section 34 (1) will very much depend on the strictness of the prescriptions 17 But cannot, on the other hand, be regarded as creating any public right an interference with which might result in an individual's suffering "particular damage": See Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) [1982] A. C. 173.

18 See Doe d. Bishop 0/ Rochester v. Bridges (1831) 1 B. & Ad. 847, 859, per Lord Tenterden. 19 See Report, pp. 11; 47, per UKELA; 99, perThe Department ofthe Environment. 2·

20

Chapter 2: The English Law

contained in the code of practice and may weH require more than is required as "reasonable care" under common law. In any case, the effect of the code of practice will be that in waste cases decided under section 34 (1) the standard of care will largely be determined by the Secretary of State rather than by the judges. There is another feature of section 34 which could in practice lead to results different from those achieved under the ordinary law of negligence: In subsection (l)(a) and (b) liability is imposed on the defendant for the conduct of other persons20 where the prevention of their conduct is "applicable to hirn" in his "capacity". These terms are very vague. It will depend on how they are construed and applied by the judges whether section 34 will in its results go further than the common law of negligence. 21 At present, the persons enumerated in subsection (1) will find it difficult to predict in which cases they will be held liable for the acts of other persons under section 34 and in which they will not. Clarification by a "code of practice" is urgently needed.

B. Statutory Provisions I. Environmental Protection Act 1990 Apart from section 34 (1), some other provisions of the Environmental Protection Act 1990 are of interest in the area of damage caused by waste. First, section 73 (6) provides for civil liability where the defendant committed a criminal offence under section 33 (1) or 63 (2). Against this civil liability, section 73 (7) provides by reference to section 33 (7) the defence that the defendant shall not be liable if he proves "that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence" . This means that the defendant's liability is in the end fault-based, but with the burden of proof on hirn, which can in practice easily amount to a de facto strict liability. However, if the defendant knew what he was doing and nevertheless committed an offence, he will almost always have been at fault anyway. Secondly, there are several provisions in the Environmental Protection Act 1990 which entitle the appropriate public authority to recover from private persons the cost of measures carried out to prevent or minimize damage caused 20 Even independent contractors and persons acting entirely independently from the defendant. 21 See subseetion III., above.

B. Statutory Provisions

21

by waste. Such prescriptions are, for instance, contained in sections 59 (6), 59 (8) and 61 (8)-(10). Under section 61 (8), which refers to subsection (7), an owner of premises which are part of a closed landfill site can be held liable for the cost incurred by measures carried out by a waste regulation authority to prevent pollution to the environment caused by the waste in the old landfill site. This, however, could lead to the unsatisfactory result that the owner of a house which was built on a closed landfill site will be liable for the waste on his premises without being able to get redress under section 73 from the original polluter unless this person has committed a criminal offence under section 33 (1) or 63 (2).22 Section 61 (7),(8) provides for liability for the cost of measures that are taken to avoid "pollution 0/ the environment". According to section 29 (2),(3),(5), "pollution of the environment" is the release or escape into land, water or the air of substances or articles constituing, or resulting from, waste and capable (by reason of the quantity or concentrations involved) of causing harm to man (i. e. personal injury, damage to property or offence to any of his senses), or harm to the health of any living organisms, or other interference with the ecological system of which they form part. It must be noted that this notion of "pollution of the environment" covers damage to things which are nobody's property, such as the ambient atmosphere, wild animals or water in undefined channels. 23 Furthermore, as the dangerous substances coming from waste only have to be capable of causing harm, persons may be liable under section 61 (7),(8) for "pollution of the environment" although no actual damage to person or property has occurred or can be detected yet. Finally, it must be mentioned that according to section 39 (5),(6),(9), a waste regulation authority may issue a "certificate of completion" to a closed landfill site and thereby accept the surrender of its licence if the waste regulation authority is satisfied that it is unlikely that this site will cause pollution of the environment in the ·future. Unfortunately, the Environmental Protection Act does not indicate what is the effect of a "certificate of completion" with regard to civilliability.24 On the one hand, to say that a landfill site operator ceases to be liable for his waste under civil law and passes his civil liability on to the waste regulation authority when surrendering his licence would appear to be a sensible construction of the statute. 25 On the other hand, section 42 (4) of the Act, providing that even the former holder of a licence may be liable for the cost of measures carried out by the waste regulation authority to abate an 22 Report, p. 142, per The National House Building Council 23 Report, p. 15 24 See Report, p. 95, per The Department of the Environment 25 See Report, pp. 99 - 100, per The Department of the Environment

22

Chapter 2: The English Law

emergency created by his old site, points in the opposite direction. Thus, on this point, an interpretation of the Act will depend on whether section 42 (4) will be regarded as an exceptional rule or as laying down a principle of liability. However, as certificates of completion might shift civil liability for closed landfill sites from the former operators onto the responsible waste regulation authorities, it is doubtful whether waste regulation authorities will ever be prepared to issue certificates of completion at alp6

11. Consumer Protection Act 1987 Attempts to establish a manufacturer's liability under Part I of the Consumer Protection Act 1987 for damage caused by his products when they are thrown away (product waste) will face the following problems: On the one hand, it is true that products may, due to inadequate information provided by the manufacturer, in principle be defective not only with regard to their use, but also with regard to their disposal. If, for instance, a hair spray can does not carry a warning that it should not be ignited when used up, and a consumer throws his empty can into the fire at horne, the injuries he suffers from the explosion can probably be called damage caused by waste, but this does not go beyond the usual scope of product liability. On the other hand, if consumers wrongly dispose of certain products as a result of insufficient disposal instructions so that the products end up in an unsuitable landfill site from which pollutants contained in the products escape into the ground water, or if the products end up in an incinerator although they are not fit for incineration because they develop, when burnt, extremely toxic substances wh ich then escape through the chimney of the incineration plant into the environment, plaintiffs suing manufacturers of such products will usually face considerable, if not insurmountable, difficulties in showing causation. Claims brought against a manufacturer under Part I of the Consumer Protection Act for damage caused by waste arising in the course of a manufacturing process (production waste) will almost always fail because waste cannot normally be said to be "defective" in any sense. Only in most exceptional circumstances will a manufacturer be liable under the Act for damage caused by production waste: If a manufacturer deli vers highly explosive waste to an incinerator to have it burnt and conceals the danger of explosion from the operator of the incinerating plant as a result of wh ich substantial damage occurs, one could probably say that the waste delivered was a "product" which was "used" by the operator of the incinerator for carrying on his business and of 26 Report, p. 100, per The Department of the Environment

C. Nuisance

23

which the safety was not such as one was entitled to expect (section 3 (1) of the Act), so that here, the manufacturer will be strictly liable under Part I of the Consumer Protection Act 1987 for the damage caused by his production waste.

c. Nuisance I. Nuisance and "Public Law" In many waste cases the damage will be caused by pollutants escaping from the defendant's premises and somehow affecting the plaintiffs land and his enjoyment of it. Therefore, the law of nuisance will play an important role in the field of damage caused by waste. However, cases of "nuisance" particularly weIl illustrate the fact that an application of the common law to waste cases will in practice often be supplemented or even replaced by the exercise of some statutory power designed to control environmental pollution. The most important statutory powers to prevent or abate nuisances caused by waste are the following: Sections 79 et seq. of the Environmental Protection Act 1990 (statutory nuisances); sections 42 (3), 59 (1),(5)-(7), 61 (7) of the Environmental Protection Act 1990 (abatement of escape of pollutants from waste disposal facilities); sections 16 of the Clean Air Act 1956 and 110, 115 of the Water Act 1989 (abatement of air and water pollution). None of these statutory provisions create civilliability, and all of them can only be enforced by public bodies. But the victim of a nuisance will often find it considerably cheaper and faster to stop the nuisance by complaining to the relevant public authority than by bringing a common law action for an injunction. Where the plaintiff seeks damages, however, or where for some reason the public body is unable or unwilling to act, the common law of nuisance will remain necessary. 27

11. Rule in Rylands v. Fletcher The rule in Rylands v. Fletcher as it was originally established by the Court of Exchequer in the last century28 almost seems to be designed for cases of damage caused by pollutants escaping from waste disposal depots. In what cases, however, will it be of significance? 27 See Winfield. pp. 375 - 376. 28 (1866) L. R. 1 Ex. 265. 279 - 280. per Blackbum 1.

Chapter 2: The English Law

24

First, as the Environmental Protection Act 1990, under which landfill sites are licensed, does not contain a "nuisance c1ause", a licensed and lawfully operated landfill site will always have the defence of statutory authority and therefore only be liable for negligence. 29 Thus, strict liability under the rule in Rylands v. Fletcher will not play any role in waste cases as far as lawful activities are concerned. 30 Secondly, in a case where the defendant has operated an illegal disposal site from wh ich waste has escaped, he will have been at fault anyway, so that the rule in Rylands v. Fletcher will not be needed. 31 Let us, however, consider a case where pollutants escaped from the defendant's licensed landfill site due to the defendant's failure to take certain precautions prescribed in his license or the relevant statutes. Here, the defendant would not be able to show that he acted intra vires the license or the statute, so that he would lose the defence of statutory authority. One could also say that he failed to show inevitability of the escape, of wh ich the burden of proof is on him,32 and thus acted negligently. This means that his liability is in the end fault-based, but, as opposed to the law of negligence, with the burden of proof on the defendant. Before the rule in Rylands v. Fletcher could be applied to this case, however, the question would have to be answered whether the operation of an authorised waste disposal plant constitutes a "non-natural use of land".33 To regard it as a natural use of land is arguable, for firstly, the ordinary and therefore natural use of the land of a licensed landfill site is to deposit waste there, and secondly, licensed waste disposal is a use of land "as is proper for the general benefit of the community".J4 But in Cambridge Water Co. Ltd. v. Eastem Counties Leather plc. it was said that "the storage of substantial quantities of chemicals on industrial premises should be regarded as an almost c1assic case of nonnatural use". 35 It is, therefore, unlikely that an English court would treat the storage of substantial quantities of waste differently. The decision in the Cambridge Water case has thus widened the scope of application of the rule in Rylands V. Fletcher. It has also made c1ear that 29 See Dunne v. North Western Gas Board [1964] 2 W. L. R. (C. A.) 164, 183, per Sellers L. J. 30 See Winfie1d, p. 443. 31 See Dunne v. North Western Gas Board, ibid., at p. 178, per Sellers L. 1.; Winfie1d, pp. 442,

443.

32 Manchester Corp. v. Famworth [1930] A. C. 171 33 See (1868) L. R. 3 H. L. 330, 338, per Lord Caims. 34 See Rickards v. Lothian [1913] A. C. 263, 279 - 280, per Lord Mou1ton; British Celanese LId. v. A. H. Hunt LId. [1969]1 W. L. R. 959, 963, per Lawton J.

35 [1994]1

All ER 53, 79,perLordGoff

25

C. Nuisance

whereas liability under the rule does not extend to development risks,36 it is otherwise strict. Both could relieve the rule of its practical insignificance in the past. 37 The revival of the rule may be seen as an effort even at common law to establish stricter forms of liability for environmental damage.

111. Defence of Statutory Authority

In waste cases, the most important defence available to the defendant to avoid liability for nuisance will be the defence of statutory authority. It will play a role where the nuisance was created by a licensed activity, such as the operation of a landfill site,38 of an incinerator, of facilities for the treatment or recycling of waste, or of chemical factories, all of which necessarily involve a certain amount of emissions into the environment. In principle, licences authorising such plants cover inevitable nuisances,39 so that the operators of such plants are only liable for negligence. 4O However, the situation will be different where the licence contains specified conditions. For instance, under section 7 (l)(a), (2), or section 35 (3)(a) of the Environmental Protection Act 1990, a licence may well be granted subject to the condition that the licensee's plant must not emit more than a certain amount of pollutants into the environment during a certain period of time. Similarly, such specified prescriptions may be contained in the relevant statutes and therefore impliedly be part of the licence, for the licence will only authorise lawful conduct. Where a defendant complies with such a specified prescription, e. g. where his plant does not emit more pollutants into the air per hour than is allowed, these emissions will be covered by statutory authority, whether they are, according to modern science and technology, inevitable or not. 41 On the other hand, the legal standard may require the defendant to avoid more than is technically avoidable, so that the defendant will be liable even for inevitable nuisances, which amounts to a strict liability.

36 See section A. 1., above. 37 See Winfield, p. 442. 38 Which must be Iicensed according to sections 33 (I)(a), 35

Protection Act 1990.

(I) of the Environmental

39 For the Environmental Proteetion Act 1990, under which most of the enumerated facilities must be Iicensed, does not contain a "nuisance cIause". 40 See Dunne v. North Western Gas Board, ibid., at p. 183, per Seilers L. J. 41 Where the defendant does not comply with statutory prescriptions, he will be in breach of a statutory duty, but that does not necessarily entail civilliability: See seetion A. V., above.

Chapter 2: The English Law

26

Because of modern technology for monitoring emissions, it should normally not be too difficult for an operator of an industrial plant to prove the inevitability of the nuisance42 or compliance with the relevant specific statutory prescriptions or conditions of his licence. Thus, where damage caused by waste proceeds from a waste disposal facility or a waste generating industrial plant, liability for nuisance will in practice generally be confined to cases where the industrial plant in question was not properly operated.

IV. Nuisance and Trespass If A discharges waste on B's land without B's permission, English law will classify this conduct not as a nuisance but as trespass to land. However, gaseous emissions resulting from the defendant's exercise of his own rights of property, e. g. his industrial activity, which invade the plaintiffs air space will not be regarded as directly interfering with the plaintiffs land. 43 Thus, emissions of smoke or gas are very unlikely ever to be called trespass to land. 44 Here, the plaintiff will have to rely on the law of nuisance, which puts hirn at a disadvantage because it involves, unlike trespass, the balancing of the relative interests of the neighbours. 45

V. Public Nuisance If, for instance, an oil refinery emits into the air acid smuts in such quantities that they unreasonably interfere with the comfort and convenience of the whole "neighbourhood", this will be regarded as a public nuisance. 46 Such a situation may entail the following legal proceedings: First, the Attorney-General has power to bring civil proceedings to obtain an injunction to stop a public nuisance. 47 In practice, however, he will hardly ever do that. Secondly, an affected individual, who, in principle, does not have locus standi to bring an action for public nuisance, may sue the oil refinery for public nuisance in a socalled relator action in the name of the Attorney-General if the Attorney-

42The burden ofproofbeing on him: See Manchester Corp. v. Famworth [1930] A. C. 171. 43 See Clerk and LindseIl (13th ed.), para. 1316, with references. 44 Rogers, pp. 155 - 156; aliter Street (8th ed.), p. 66 45 Rogers, pp. 119, 156 46 See Att.-Gen. v. P. Y. A. Quarries [1957] 2 Q. B. 169.

47 Walker and Walker (5th ed.), pp. 259 - 260

D. Causation

27

General allows hirn to do SO.48 Thirdly, the local authority of the affected area does not have to rely on the relator action but may bring proceedings for public nuisance in their own name if they "consider it expedient for the promotion or protection of the interests of the inhabitants of their area".49 In the fourth place, if the emissions of the oil refinery cause damage to private land, the owners and occupiers of such land may sue the refinery basing their claims on the law of private nuisance. 50 However, let us assurne that the acid smuts also damage the surface of cars parked on the highway. As the car owners do not have any interest in any land affected, the law of private nuisance will not help them. Actions brought by the Attomey-General or in his name or by the local authority cannot serve to obtain damages for the harm suffered by an individual. Unless the maxim of res ipsa loquitur is applied or the burden of proof is reversed for some other reason, it will also be difficult for the victims to prove negligence on the part of the refinery. But if they succeed in showing that the emissions of the oil refinery constitute a public nuisance,51 it will hardly be difficult for them to go on to show that they have suffered "particular damage" as a result of this public nuisance. In cases of this kind, therefore, the law of public nuisance opens up another possibility for the plaintiff to argue his case. However, it is doubtful whether the first point to be proven under the law of public nuisance, namely that the defendant's conduct represents a public nuisance at all, will be easier to show for the plaintiff than to prove negligence on part of the defendant. 52

D. Causation I. Multiple Causation 1. Cases where there is Joint and Several Liability

Causation is one of the most difficult problems in cases of damage caused by waste. It is, for instance, a typical feature of many waste cases that the damage 48 Walker and Walker, ibid. 49 Section 222 of the Local Governrnent Act 1972. 50 See Rogers, p. 128. 51 And we have assumed above that this is the case. 52 If, however, there have already been other proceedings in respect of the same conduct (e.

g. a relator action for an injunction) in the course of which the court stated that the defendant's conduct constituted a public nuisance, it will be a lot easier for a victim who suffered particular damage to sue the polluter successfully.

28

Chapter 2: The English Law

suffered by the plaintiff was caused by several polluters. This problem of multiple causation gives rise to complicated questions of law. First, let us assume a situation (case 1) where an event has two causes and only their combination produces the damage in question. Two factories, for example, pollute a river with contaminated sewage containing the toxic substance X. As a result of this, further down the river all the fish die. According to scientific evidence, the concentration of X in a river becomes lethaI for fish when the mark of 35 "units" is reached. Each factory contributed 20 units to the pollution. Only one of them, the factory A, is sued. 53 Has A caused the death of the fish? The answer is yes, for here the "but-for" test54 works: But for A's contribution, the damage in question, i. e. the death of the fish, would not have occurred. Moreover, it is not a defence for A to say that his contribution was not of itself sufficient to cause the damage. 55 Therefore, A is liable, and is liable for the whole loss, for as both factories have contributed to the same damage, they are jointly and severally liable for it. After having paid damages for the wh oIe loss, A can sue the other factory (B) under section 2 (1) of the Civil Liability (Contribution) Act 1978 for a contribution. Prima facie the contribution payable by B amounts to 50 per cent. of the damage, but the matter is determined by the court at its discretion, and factors other than cause may be taken into account. The "but-for" test fails to work in situations where an event has two causes each of which would have been sufficient to produce the whole result alone (case 2). If the factories A and B in case 1 had polluted the river with 40 units of X each, but for the contribution of one of them the fish would still have died. Nevertheless, the rule is that in such a case, too, both tortfeasors are liable for the whole 10ss.56 As to the distribution of the loss between the defendants, A and B would, if there were no other factors influencing the sharing of the loss, again have to pay for 50 per cent. of the damage each, the fiction behind this

53 The plaintiffs in such a case could be riparian owners, who are entitled to an enjoyment of the water of their strearn without sensible alteration in its character or quality, or, for instance, the owner or occupier of a several fishery, who has a right to sue for interference with his fishing rights: Pride 0/ Derby v. British Celanese [1952] 1 All E. R. 1326, 1330 - 1331, per Harman J. 54 For the test in principle, see, e. g., Bamett v. Chelsea and Kensington Hospital Management Committee [1969]1 Q. B. 428. 55 Thorpe v. Brumfitt (1873) L. R. 8 Ch. App. 650, 656. If it still were the law that in such a case the !Wo persons must each be aware of what the other is doing (Lambton v. Mellish [1894] 3 eh. 163, per Chitty 1.), this would lead to considerable difficulties in waste cases, but the requirement was apparently dropped in Pride 0/ Derby v. British Celanese, ibid. 56 Winfield, pp. 134 - 135; Rogers, p. 20

D. Causation

29

distribution being that each of them has contributed 17.5 units to the lethal concentration of 35 units of X. If an event has two causes one of which would have been sufficient to produce the whole result alone whereas the other one would not (case 3), the "but-for" test is inadequate again. For if in case 1 factory A had contributed 20 units, but B 40 units of X to the pollution, the "but-for" test would lead to the result that A would escape liability completely. This, however, would mean that A's liability depended on what his neighbour B did, for in case 1 A was liable for his 20 units.

The solution of case 3 comes from the decision in Pride of Derby v. British Celanese. 57 In this case it was held that if several persons contribute to the same damage, the fact that the contribution of one of them amounted in itself to an actionable wrong will not relieve the others whose acts were not in themselves big enough to be by themselves actionable. 58 In case 3 also, therefore, the court will find that A has partly caused the death of the fish. If we suppose again that all other circumstances are equal, and that the same fiction as in case 2 is applied here, too, then, within the relationship between A and B, A must pay for one third and B for two thirds of the damage. If an event has three causes, and two of them together (and only together) would have been sufficient to produce the result (case 4), this situation will be similar to both cases 1 and 359 and will be decided accordingly. If, therefore, there had been three factories in case 1, and each of them had contributed 20 units of X to the pollution, each of them would be regarded as having partly caused the damage,6O so that they would be jointly and severally liable for the death of the fish with a prima facie internal distribution of damages of 33 per cent. each.

All these solutions of cases 2, 3 and 4 are based on the theory laid down in Baker v. Willoughby61 that sufficient causes can be concurrently operative. This theory has suffered a setback from the decision in lobling v. Associated Dairies,62 but the relationship of the two cases will be discussed in a different context below.

57 [1952] 1 All E. R. 1326

58 lbid., at p. 1333, per Hannan 1. 59 For, first, each contribution is not in itself sufficient to cause the damage, and, secondly, the

contributions of all persons other than the defendant are sufficient as a whole to cause the damage. 60 Although the "but-for" test would have failed again. 61 [1970] A. C. 467 62 [1982] A. C. 794

30

Chapter 2: The English Law

If we assume in case 4 that there were a statutory limit for emissions of the pollutant X of 10 units per factory (case 5), the case would be different from the situation in Thorpe v. Brumfitt in that each factory's act would in itself have been unlawful, whereas the acts of the tortfeasors in Thorpe's case were not per se unlawful. 63 If Thorpe v. Brumfitt is applied to cases of damage caused by waste, this feature of the case could lead to the absurd result that any car driver could be held liable for the destruction of a forest by air pollution. Although in practice an English court would hold that the car driver was not negligent or that the damage was too remote, the example shows that the rule in Thorpe cannot provide adequate solutions for all cases. If, however, the ordinary law of tort cannot cope with the problems posed by waste cases, this indicates that, here, speciallegislation is required.

A further problem arises where several defendants have caused the same damage but only some of them have been negligent. Let us assume that in case 5 there were four factories (A, B, C and D), of which A and C contributed 12 units each, whereas Band D contributed 8 units each to the pollution (case 6). As we have already seen, Band D will escape liability because of their compliance with statutory standards. 64 How does English law react to such facts? If only A and C were liable for the whole damage (with a prima jacie internal distribution of 50 per cent. each) without being entitled to redress from Band D, they would be liable for more than they caused. 65 But here again, the case of Thorpe v. Brumfitt might help, for in this case liability was imposed although each tortfeasor's act was not per se a tort. The application of this rule to case 6 would mean that Band D would be liable as weIl, but as they would be liable despite their not having been negligent, this would be strict liability and therefore inconsistent with the basic ideas of the English law of tort.

63 (1873) L. R. 8 Ch. App. 650, 656, per Jarnes L. J. 64 Under the law of nuisance, the defence of statutory authority will be available to them. 65 In theory, there is also the possibility of holding A and C jointly and severally liable for the darnage caused by the sum of their contributions only, the reasons being the following: If there is just one tortfeasor who has the defence of statutory authority, the plaintiff will remain uncompensated, for here the benefit to the public of the defendant's activity is regarded as more important than the plaintiffs loss. The logical consequence is that if there are multiple tortfeasors some of whom have the defence of statutory authority, the plaintiff will remain partly uncompensated, for why should the burden of being uncompensated be shifted from the plaintiff onto the defendants A and C? However, such a "proportional" liability, where the defendants A and C would be liable for only part of the (single) darnage suffered by the plaintiff, does not represent English law as it stands at present.

D. Causation

31

2. Cases where there is no Joint and Several Liability

There will be no joint and several liability in such waste cases of multiple causation where the multiple tortfeasors have not caused one single damage, but where the damage suffered by the plaintiff is divisible. One could also say that in such cases, one tortfeasor causes some damage to the plaintiff and another makes it worse. However, the multiple causes need not come into operation subsequent to one another, as the following example (case 7) shows: The harvest of an apricot farm is reduced by 40 per cent. as a result of toxic gaseous emissions of two factories in the neighbourhood. At the trial, scientists called as witnesses state that the emissions of each factory alone would have reduced the harvest by 20 per cent., so that the emissions of both factories added up to an overall loss of 40 per cent. of the harvest. Here, half the loss incurred by the plaintiff can be attributed to each factory separately, so that they have not caused one and the same damage and are therefore not jointly and severally liable. Things get more complicated where one of two consecutively operating causes is sufficient to cause the whole damage alone. If, for instance, the first of two subsequent events was sufficient to cause the whole damage alone, it is no defence for the author of the first event to say that the same damage would have been caused by a second event a little later. 66 Therefore, if in case 1 factory A alone had killed the fish by pouring sewage causing a concentration of 40 units of X into the river, it would not be able to escape liability on the ground that two days later an accident happened in factory B as a result of which an amount of toxic pollutants escaped into the river that would have killed the fish as weil (case 8). If a loss has two consecutively operating independent causes of which the first one did some damage, whereas the second one was sufficient to cause the whole damage alone, there is the rule that the first tortfeasor continues to be liable for the damage he caused even after the second incident has taken place. This rule was laid down in Baker v. Willoughby,67 a case where the second cause had been a tortious one. Thus, if, for instance, a factory (A) pollutes a river with poisonous sewage in such a way that of a population of 20,000 fish in a several fishery further down the river 10,000 fish die, whereafter another factory (B) kills the remaining 10,000 fish by causing such water pollution as would have been capable of killing the whole population of 20,000, A will continue to be liable for the damage he caused because B will only be liable for the destruction of an already diminished population (case 9). 66 Smith v. Cawdle Fen Comrs. [1938)4 All E. R. 64, 71, per du Parcq J.

Chapter 2: The English Law

32

However, there is also the contraryrule that in such a case the author of the first cause ceases to be liable for the damage he caused as soon as the second cause begins to operate. This rule was laid down in labUng v. Assaciated Dairies,68 a case where the second cause had been nan-tortious. Thus, if trees in a forest are infected by the emissions of factory A, but then are destroyed completely by a fire caused by lightning, A will only be liable for the loss the owner of the forest incurred as a result of A's emissions be/are the fire occurred (case 10). However, where the defendant's conduct aggravates the damage done by nature, he is certainly liable for the aggravation. If, for instance, the emissions of factory A affect the plaintiffs forest in such a way that a storm uproots 80 per cent. of the trees, whereas a storm of the same strength would only have uprooted 20 per cent. of the trees of an entirely healthy forest, A will be liable for the destruction of 60 per cent. of the trees (case 11). The status and relation of the two decisions in Baker and labUng remains unclear. Has labUng overruled Baker, or have they established different rules for tortious and non-tortious causes? The latter distinction may not be very logical, but is pragmatic. If case 9 were governed by the rule in labUng, then either the victim would remain partly uncompensated, or B would be liable for the whole damage alone, which would contradict the principle that the defendant takes his victim as he finds hirn, or, put more fundamentally, that the defendant is only liable for the damage he caused. On the other hand, to decide case 10 according to Baker would be inconsistent with the idea, which can also be found in Smith v. Cawdle Fen Camrs.,69 that the defendant should not be held liable for any damage that "fate" has inevitably imposed on the victim anyway.

ll. Proof of Causation

As the chain of causation in waste cases leads from the waste via the environment to human beings, animals, plants and other things and involves complicated physical, chemical and biological processes, the proof of causation will often be difficult and, as scientific evidence will often be needed, also expensive for the plaintiff. To achieve certainty about the chain of causation is in most waste cases almost impossible, but English law considerably helps the 67 [1970] A. C. 467 68 [1982] A. C. 794 69 [1938] 4 All E. R. 64

D. Causation

33

plaintiff by requiring that causation needs to be proven merely on a balance of probabilities. However, mathematical probability alone is unlikely to be sufficient to prove the plaintiffs case. 70 Let us consider the following situation: There is a factory in the middle of the countryside which emits highly toxic pollutants into the air. 10,000 people live in the area that is principally affected by the pollution. According to scientific evidence, the average rate of leukemia cases in the population is under normal conditions 2 per 10,000. In the area affected by the pollution, however, 10 cases of leukemia have occurred. All other possible causes of the disease (e. g. agricultural chemicals etc.) can be excluded, i. e. it is more likely than not that the increase in leukemia cases is caused by the factory. This means that 8 of the 10 leukemia cases wh ich have occurred in the area have been caused by the factory. If one of the cancer victims sues the factory for damages, he can therefore say that it is more likely than not that he belongs to the group of 8. Will this enable hirn to succeed? If he succeeded, this would have the following consequences: If all 10 cancer patients sued the factory, the factory would have to compensate them all although it is known that in 2 of the 10 cases it did not cause the injury. The factory would therefore function as a health insurance in two cases. Moreover, if in the area affected there had been just 3 leukemia cases, it would in all cases be more likely than not that the factory did not cause the damage; if there had been 4 cancers, the matter could not be decided; and if there had been 5, the plaintiffs would be entitled to win. It seems most unlikely that an English court would embark on such arithmetical operations; it seems much more likely that they would hold that the question whether a particular cancer was a "natural" one or was caused by the factory cannot be answered at all. 71 The plaintiff would thus faiJ.72

70 Rogers, pp. 23 - 24. The matter has apparently never been tested in England, though. 71 Rogers, p. 22. An American tort case where a claim based on mathematical probability was rejected is Smith v. Rapid Transit [ne. 58 N. E. 2d 754 (Mass. 1945).

72 He would probably have succeeded under the rule in MeGhee v. N. C. B. [1973] I W.L.R. I, for the factory "materially increased" his risk of contracting leukemia, but since the decision in Wilsher v. Essex Area Health Authority [1988] 2 W. L. R. 557, MeGhee's case must be regarded as overruled. 3 Pappel

34

Chapter 2: The English Law

E. Miscellaneous Topics I. Economic Loss Can waste cause pure economic loss? The answer is yes: The most important form of economic loss caused by waste probably is the loss in value of property, e. g. where the value of the plaintiffs land is diminished by the mere presence of a landfill site in his neighbourhood (case 1), but there could also be cases where, for instance, hotels lose custom as a result of air pollution in their area (case 2).73 Often, however, the line between property damage and pure economic loss caused by waste will be difficult to draw. If, for instance, the water supply of a food factory is polluted so that the factory must stop its production and loses profits (case 3), it will depend very much on the circumstances of the case whether this is pure economic loss. Under those rules of English tort law that apply to waste cases, the possibilities of recovering economic loss are very restricted. 74 In case 3, therefore, the plaintiff will succeed or fail depending on whether his loss will be classified as purely economic or as damage to property. In case 1, the landowner is left without a remedy, for no-one is under a duty to protect the value of his neighbour's property. In case 2, however, the law of public nuisance might help the plaintiffs, for first, the hotels might be able to obtain in a relator action an injunction requiring the polluters to stop the pollution that deters the tourists. Secondly, if the hotels brought proceedings in their own name and succeeded in showing that they had suffered "particular damage" as a result of a public nuisance created by the defendant, they would even be awarded damages, for public nuisance is the only tort applicable to waste cases under which economic loss is, in principle, recoverable. 75

11. Protection of Diffuse, Fragmented and Collective Interests 1. Representative Actions

Let us assume a case where emissions proceeding from the defendant's waste cause damage to many private properties in the neighbourhood. In such a case, one of the aggrieved landowners might propose to represent all others in ci vii 73 See Report, p. 32, para. 132. 74 See Winfield, p. 84; Rogers, pp. 50 el seq. 75 As to the recoverability of economic loss under the law of public nuisance in general, see, e. g., Tale & Lyle [nduslries LId. v. G. L. C. [1983]2 A. C. 509.

E. Miscellaneous Topics

35

proceedings. Such a "representative action", however, requires that all persons represented must have the same interest in the proceedings. 76 Where an injunction is sought to stop the defendant's conduct, this requirement will normally not give rise to particular difficulties, but as an injunction obtained by one person in his individual capacity will, if it puts an end to the defendant's harmful emissions, in most waste cases be a remedy for all other persons aggrieved as weIl, representative actions for injunctions will be of little practical importance. 77 If, however, the landowners in our case intend to seek damages for the property damage they suffered, this will not be possible by way of a representative action, for as they all own different properties, they do not pursue the same interest. 78 The furthest English law would go with regard to damages in representative actions would be "to make a declaration that each member of the class was entitled to recover from the defendant such damages as he could prove in separate proceedings in wh ich the issue of the defendant's li ability , and that alone, would be res judicata"79.

2. Common Interest Groups

The aim of "common interest groups" that deal with environmental issues 80 is normally not to represent a class of persons who have suffered harm but to promote the proteetion of the environment in the interest of the public as a whole. Let us assume the following case: A's waste pollutes B's land, which is ecologically precious. For some reason, however, B is unwilling to sue, and the responsible public authority is not prepared to intervene either. Therefore, an environmental association wants to bring an action for an injunction. Can they do that under existing English law? The answer is no, far the common interest group will not be able to show either that they have an "interest in the affected land" as is required by the law of nuisance and trespass to land, or that they have suffered damage, which is 76R. S. c. ,Ord. 15, r. 12. The persons represented do not have the same interest if some of them do not wish to be involved, but those may be excluded from the dass represented (Ord. 15, r. 12, subsection (1)). 77 Jolowicz [1983] C. L. J., p. 234 78 See, e. g., Markt & Co. Ltd. v. Knight Steamship Ltd. [1910]2 K. B. 1021. 79 Jolowicz [1983] C. L. 1., p. 236, the case referred to being Prudential Assuranee Co. Ltd. v. Newman Industries Ltd. [1980]2 W. L. R. 339.

ete.

80 Such as "Greenpeace", "Friends of the Earth", the "Royal Society for the Protection of Birds"

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required by all other torts that could be relevant. 81 All they can do is this: If B does not want to sue merely because he does not have enough money to do so, the group could try to persuade hirn to take legal action by offering hirn legal and financial aid. Let us now assurne that B gives permission to members of the cornmon interest group and their independent contractors to enter his land and clean up the pollution. Can the common interest group recover the expenses of their remedial works from the polluter? Here again, the answer is no, for the law will regard the group as having inflicted their loss on themselves by doing something which they did not have to dO,82 so that there is no damage for which they could sue. An approach to resolve this problem could be a contract between the group and the landowner providing that the group will pay for the cost of cleaning up immediately and the cost of legal proceedings if the landowner takes legal action and later repays the group's expenses from the damages he is awarded. However, there will be many waste cases where it will be difficult or even impossible for common interest groups to find a plaintiff whose claim they could support, e. g. cases where a private landowner does not want to sue because he wants to be on good terms with his neighbour, the polluter, or cases where the landowner wants to tolerate the pollution because he has an economic interest in it, or where the landowner hirnself is the polluter. In consideration of these cases, where a private plaintiff cannot be found, it must be asked whether the state is able to fill this gap. Again, the answer is no. In view of the extent of environmental pollution in Western industrialised societies that continues to exist despite all political efforts to minimize it, it is apparent that the state cannot cope with all cases of environmental pollution, that some of its possibilities to protect the environment are obviously wrecked by bureaucratic inefficiencies, and that there must also be many pollution cases where the state does not want to intervene. In these latter cases, the state will not want to take action for basically the same reasons as a private individual may have for not suing, namely that the state itself is the polluter or has an economic interest in the pollution, or that, for instance, a local authority wants to be on good terms with an important employer in the area. In all cases outlined in the last two paragraphs, the fact that common interest groups cannot sue in their own name has the effect that there is little chance that the pollution of the environment is stopped or repaired.

81 There are no statutory provisions either that allow environmental proteetion groups to sue in their own name where they are not aggrieved themselves: Report, p. 41, Q. 247, per J. Carneron. 82 Report, p.

15, Q. 93,perJ. Spencer

E. Miscellaneous Topics

37

III. Repair of Damage to the Environment

Whereas the principal aim of mankind must nowadays be to prevent environmental pollution right from the start if this planet is to be saved, no-one would on the other hand deny that it is equally important that once damage caused by pollution, e. g. by pollution proceeding from waste, has occurred, it must be repaired as soon as possible. Here, the law of tort can play an important role by providing by way of damages the money necessary to repair environmental damage caused by waste. In this context, the following questions arise under English law: (1) Can the plaintiff recover the cost of reinstatement where this exceeds the diminution in value of his property? First of all, it must be stated that there will be many waste cases where the cost of repairs will exceed the loss in value of the land damaged: If, for instance, the plaintiffs land is not used for any economic purpose but serves as a breeding ground for many birds, its value will be low, but if this land is polluted by petroleum waste, it will be expensive to remove the polluted soil, to clean the birds etc. Under English law, a plaintiff can obtain such cost of repairs if it is reasonable in the particular circumstances of the case to carry them out.B3 Whether repairs of environmental damage are reasonable in that sense has not been decided yet. (2) Are there any limits to awards of repair costs exceeding the diminution in value of the harmed property? Given that such repair costs are, in principle, recoverable in waste cases, their award will be refused where they are out of all proportion to the diminution in value. The laUer will then be taken as the measure for the damages awarded. 84 (3) Is the plaintiff bound actually to use the money he is awarded for carrying out repairs? If the damages he is awarded do not exceed the diminution in value of his property, the plaintiff is free to use the money for whatever he likes, but he may not claim the cost of repairs which exceed diminution in value where he has no intention of having them carried out. 85 This means that where repair costs exceeding diminution in value are awarded, the plaintiff is obliged actually to repair the damage to his property.B6 This, however, gives rise to the following question:

83 See, e. g., Ward v. Cannock Chase D. C. [1985] 3 All E. R. 537, 558, per Scott J.; Winfield,

p.634.

84 See Lodge Ho/es Colliery Co. Ltd. v. Wednesbury Corp. [1908] A. C. 323.

85 Perry v. Sidney Phi/lips & Son [1982]1 W. L. R. 1297 86 He must be bound to use all damages he is awarded to carry out the repairs: If the plaintiff were free to use the damages up to the diminution in value for something else, he would only partly

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(4) How can the law make sure that damages exceeding diminution in value are really used for repairs? Is the plaintiff in contempt of court if he uses the repair costs awarded for some other purpose? Or should repair costs exceeding diminution in value only be payable after the repairs have been carried out? The latter solution, however, does not produce very satisfactory results, for if the plaintiff does not have enough money to carry out the repairs, they will never take place, whereas if his financial means are sufficient to repair his property, the problem of abu se of damages will in practice rarely arise, as the answer to the following question shows. (5) Does the law provide incentives for the plaintiff to carry out repairs, and to carry them out immediately? If A's waste has polluted B's land, the most important incentive for B to repair the damage he suffered (and to repair it as soon as possible) is that the pollution on his land could become a nuisance to the land of C. If this happens, B will be liable to C for the damage, for although A has caused the nuisance originally, B, too, is under a duty to abate or prevent it as soon as he knows (or can be expected to know) that the nuisance exists or is likely to occur. 87 In Leakey v. National Trust it was said that this duty is to be discharged only according to a subjective standard of conduct, so that there is no duty to repair in cases where the plaintiff cannot raise the money necessary to do so.88 Megaw L. J., however, stressed that in such a case the defendant (B) would at least be under a duty to inform his neighbours of the nuisance and to give them permission to enter his land and carry out agreed works at their own expense or on the basis of a fair sharing of costs.

B might also want to delay the repair of the damage until he knows the outcome of litigation. In such a case, however, the repair costs will at the end of the trial often be much higher as a result of inflation than the cost of immediate repairs plus interest. Can B recover from A these higher costs, too? According to the decision in Dodd Properties v. Canterbury City Council,89 the date of assessment of damages in "repair cases" is the time when, having regard to all circumstances, repairs can first reasonably be undertaken, and in determining this question it is proper to pay regard to the plaintiffs financial position. 90 Thus, it may be justifiable for a plaintiff to postpone repairs until the end of the trial if he does not have and cannot raise the money for immediate repairs. In be able to carry out the repairs, which would be contrary to the very purpose for which repair costs are awarded.

87 See Leakey v. National Trust [1980)1 All E. R. 17, per Megaw L. J.; Goldman v. Hargrave [1967)1 A. C. 645; Sedleigh-Denfield v. O'Callaghan [1940) A. C. 880. 88 As to when this will be the case, see the following paragraph. 89 [1980)1 All E. R. 928

90 Ibid., at pp. 933 - 934, per Megaw L. J.

E. Miscellaneous Topics

39

our case, however, B's land and the prospect of the trial should normally provide enough security for a loan, so that B will be required to repair immediately and will not be able to recover from A the increase in cost caused by the delay. Only where a plaintiff cannot for some reason borrow money will a postponement of repairs be justified. Finally, if the plaintiff fails to repair immediately the damage he has suffered, this may in many waste cases lead to the result that the damage, a1though it does not spread to a third party's land, aggravates on the plaintiffs own land. As the plaintiff is under a duty to mitigate his loss,91 the defendant will not be !iable for the aggravation except where the plaintiff has no reasonable alternative to letting the damage aggravate. 92 As to what is reasonable here, there is no reason why an English court should in this respect treat "aggravation" differently from cases where third parties are affected. 93 On the wh oIe, the plaintiffs in most waste cases will, if they do not want to face claims brought against them by third parties or pay a substantial share of the repair costs themselves, have to repair immediately the damage they have suffered, which is beneficial to the environment and also diminishes the practical importance of questions (3) and (4) above. 94 As the plaintiff must repair the environmental damage his land has suffered to avoid liability to third parties, it is hoped that repair costs exceeding the diminution in value of his property will in waste cases be recoverable under Eng!ish law.

IV. Exemplary Damages

Let us assurne a case where a factory discharges waste into the environment because even if it has to pay compensation for the damage caused by such 91 See, for insIance, Darbishire v. Warren [1963)3 All E. R. 310, where, however, the point at issue was the mitigation not of the property damage itself, but of the financial loss resulting from the damage to property. But the general principle of mitigation also applies to the former: Winfield, p.609. 92 See, e. g., McKew v. Holland & Hannen & Cubitts (Scotland) Ltd. [1969) 3 All E. R. 1621 (H. L. Sc.). Cases where the plaintiffs negligence aggravates the damage he has already suffered must be distinguished from cases of "contributory negligence", where the plaintiffs negligence contributes to the occurrence of the damage. Waste cases where there is contributory negligence in the latter sense will be rare.

93 Although an objective slandard of conduct is nonnally applied to cases of contributory negligence: Winfield, p. 161; Rogers, p. 75. 94 Which will be limited to cases where the plaintiff is financially unable to repair the damage before he has received compensation from the defendant, or where he deliberately sues for cost of repairs exceeding the diminution in value of his property although he does not intend to carry them out.

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Chapter 2: The English Law

waste, the cost will be less than that required to eliminate the waste or to dispose of it safely. Here, an English court might consider making an award of exemplary damages, for one of the few situations where exemplary damages may nowadays still be awarded is that where the defendant ca1culates that the profit he will make by committing the tort will be greater than any compensation he will have to pay to the victim,95 and the conduct of the operator of the factory in our case c1early fulfills these requirements. However, there also is the role that exemplary damages may not be awarded where the defendant has already been punished for the same conduct under criminal law,96 and the tort committed by the factory will, as in most waste cases, be a criminal offence at the same time. But it may be that the factory is not prosecuted, either because its offence does not come to the knowledge of the prosecutor, or because the authorities think that a civil action is a better means than criminal prosecution to stop the factory's illegal waste disposal 97 (for a fine under criminal law may not exceed the statutory maximum,98 whereas there is in principle no limit to the amount of exemplary damages, so that they can serve to take away from the defendant the profit he has made). Thus, exemplary damages may play an important role in cases of damage caused by waste.

V.lnjunctions In cases of damage caused by waste, injunctions of all kinds may be sought and granted. A nuisance will be stopped by a prohibitory injunction. Mandatory injunctions might playa role in rare cases where remedial action is required on the defendant's own land. A quia timet injunction could also be granted in a waste case, but as its requirements are very restrictive,99 it will not be issued against, for instance, the further construction or installation of a waste disposal plant in the plaintiffs neighbourhood merely on the ground that the plant might constitute a nuisance in the future.

95 Rookes v. Bamard [1964] A. C. 1129, 1226 - 1227, per Lord Dev1in; approved in Cassell & Co. Ltd. v. Broome [1972] A. C. 1027. 96 Archerv. Brown [1985] Q. B. 401

97 As

the factory's criminal offence will also contravene the Iicence under which the factory operates, the revocation of its Iicence will be another means to stop its unlawful activity.

98 See, e. g., section 34 (6) of the Environmental Protection Act 1990. 99 Substantial damage to the plaintiff must be almost certain and imminent if remedia1 action is

not taken: Redland Bricks Ltd. v. Morris [1970] A. C. 652, 664, per Lord Upjohn.

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E. Miscellaneous Topics

If an English court made use of its power to award damages in lieu of an injunction,100 this would mean that the plaintiff could seil and the defendant could purchase a right to pollute the environment. It has been said that an award of damages in lieu of an injunction would be a sensible approach where the plaintiffs probable future damage is likely to be much less than the cost to the defendant of preventing it,101 but in waste cases this would produce the result that it is reasonable to allow the pollution of the environment if this is cheaper than its preservation. On the other hand, it may in many waste cases be sensible to let the defendant carry on his business, but to make hirn at the same time compensate those who suffer harm as a result of it. Section 50 of the Supreme Court Act 1981 therefore provides a flexible method for handling waste cases where a person is threatened by future harm that proceeds from another person's activity which is actually proper to be carried on.

However, English courts have so far been reluctant to deny the remedy of an injunction and to award damages in substitution for it where the defendant's conduct constitutes a nuisance in law,102 for they seem to find it difficult to see how it can on the one hand be reasonable that the defendant should be allowed to carry on his activity like before and on the other hand be unreasonable that the plaintiff should suffer its consequences. But as there are in a developed industrial society many activities wh ich are beneficial or even indispensible to the public at large but may at the same time cause damage to some individuals, this attitude is regrettable. 103 The fact that damage caused by waste may quickly spread or aggravate or even become irreversible if the pollution is allowed to continue means that interlocutory injunctions will be of considerable importance in waste cases. Moreover, they will often settle the matter between the plaintiff and the defendant once and for all: If an interlocutory injunction orders the defendant to reduce his emissions, and if the defendant must improve the machines in his plant to comply with this order, the nuisance will be stopped as soon as the improvements have been made. As far as the environment is concerned, injunctions generally are a very efficient legal means of protecting it, for if only one person obtains an injunction against the polluter, this will often be a remedy for the public at large, too.

100 The power is now contained in section 50 ofthe Supreme Court Act 1981.

101 Winfield, p. 641 102 See, e. g., Shelfer v. City of London Electric Lighting Co. 103 See lolowicz [1975] C. L. 1., pp. 249 et seq.

[1895] 1 Ch. 287.

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VI. Limitation

In waste cases it may be that personal injurylO4 or other damage,105 e. g. the pollution of land, is suffered by the plaintiff long before he actually becomes aware of it, so that the limitation period, which normally runs from the time when the damage is suffered,I06 may already be over before the plaintiff even knows that he has been harmed. Here, the alternative limitation periods running from the date of discoverability lO7 as provided by the Limitation Act 1980 108 and the Latent Damage Act 1986 109 will certainly be helpful to many plaintiffs,11O but the longstop absolute limit of fifteen years contained in the 1986 Act may indeed be too short for them, because waste in, for instance, landfill sites often starts to cause damage only decades after their closure.

104 In case of which the limitation period is three years.

105 Where the limitation period generally lasts six years. 106 In the words of the Limitation Act 1980: "from the date on which the cause of action

accrued"; see Rogers, p. 221.

107 l. e. the time when the plaintiff could reasonably have known that he had a significant injury and that it was attributable to the act of an identified defendant.

108 For cases of personal injury. 109 For cases of damage other than personal injury, but only if arising from negligence. 110 Although the limitation period under the Latent Damage Act 1986 is only three years long, so that it may weil expire before the primary six-year period running from the damage. As opposed to this, another advantage for the plaintiff is that the courts have discretionary power under the Limitation Act 1980 to "disapply" the time limits altogether in cases of personal injury.

Cbapter 3: Tbe German Law A. Introduction In German law, the most important statute for cases of damage caused by waste is now the Environmental Liability Act 1990 (Umwelthaftungsgesetz vom 10.12.1990), which came into force on 1st January, 1991. This chapter will therefore follow the lines of the Act. Other roles of law relevant to waste cases will be discussed where the Umwelthaftungsgesetz provides an appropriate context.

B. Tbe Umweltbaftungsgesetz (UmweltHG) I. Scope of the UmweltHG

The UmweltHG establishes a strict civil liability for damage caused to individuals via the environment (§ 1 UmweltHG). Damage to the environment, which is called by German law "ecological damage", is, subject to certain conditions, 1 recoverable under the UmweltHG if it constitutes at the same time damage to property, whereas "pure ecological damage", which is called by the Proposal of the Directive "impairment of the environment", is not recoverable under the Act. 2 As the damage must be attributable to an identified polluter, damage caused by ubiquitous pollution (Summations- und Distanzschäden), such as the death of trees caused by general air pollution, is not recoverable under the UmweltHG either. 3 Thus, with respect to the recoverability of pure

1 See section G., be1ow. 2 Nor under any other statutory provision. 3 Attempts to hold the state Iiable for such darnage have a1ready failed in the past (BGHZ 102, 350 - Waldschadensurteil). Neither does the UmweltHG contain any provision on which such a claim could possibly be based.

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ecological damage and damage caused by ubiquitous pollution, the legal position in Germany is the same as in England.

11. The UmweltHG in Relation to the Previous Law To see what changes the UmweltHG has brought about in German law, the previous law must be described first. Where damage is caused by the pollution of water, § 22 WHG4 imposes on the polluter an extensive strict liability which even covers economic loss and is financially unlimited. If someone discharges waste into a river and thereby causes damage to somebody else, he will be liable to the victim under § 22 I WHG (liability for a specified type of conduct),5 whereas if pollutants escape from a landfill site into the ground water and cause damage to another person, the operator of the landfill site will be liable to the victim under § 2211 WHG (liability of defined types of person).6 If the plaintiffs land is affected by pollution caused by waste, he may be able to recover damages from the polluter under § 906 11 2 BGB or § 14, 2 BImSchG.7 These rules are, like the English law of nuisance, concerned with the relationship between neighbours and the balancing of their respective interests: Injunctions against interferences with the use or enjoyment of land can in German law be obtained under § 1004 BGB. Now § 906 BGB and § 14 BImSchG provide defences against such injunctions, the basic rule being that immissions must be tolerated by the plaintiff if they are either trifling (§ 906 I BGB) or if causing them is proper in this locality and cannot be avoided by measures economically reasonable for the defendant (§ 90611 1 BGB). In addition, § 14, 1 BImSchG provides that an injunction requiring the closure of the emitting plant can never be obtained if the plant is licensed under public law, in which case only technical measures to abate the nuisance can be demanded. If an injunction cannot be obtained because of § 906 I, 11 1 BGB, or if the measures demanded under § 14, 1 BImSchG are technically impossible or economically unacceptable, the plaintiff may, subject to certain conditions which will be outlined below, recover "damages" (§ 14, 2 BImSchG) or an "appropriate settlement in money" (§ 90611 2 BGB) from the polluter. 4 The Water Act 1976. 5 As this is the only provision in Gennan law which applies a strict Iiability to a specified type of conduct, it is judged to be anomalous and unjustifiable by many authors: See Landsberg/Lülling, p. 29, with many references. 6 Like under the UmweltHG.

7 The Federal Protection Against Immissions Act 1974.

B. The Umwelthaftungsgesetz (UmweItHG)

45

The wording of § 906 11 2 BGB indicates that what the plaintiff can recover under this rule are not damages in the traditional sense of the word, but damages in lieu of an injunction, i. e. damages for future harm, as under Lord Cairns' Act in England. However, the German courts have extended the scope of § 906 11 2 BGB substantially.8 § 906 11 2 BGB now covers not only damage to be expected in the future, but also damage suffered in the past,9 not only damage caused by activities against which an injunction cannot be (or could not have been) obtained, but also damage caused by an operation of the emitting plant against which an injunction would have been granted, 10 and, as far as waste is concerned, not only damage caused by air pollution, as the wording of the rule suggests, but also damage caused by other kinds of immissions to the plaintiffs land. 11 Thus, there is in Germany a general no-fault liability for damage to land, subject to the condition that where an injunction cannot be (or could not have been) obtained, the immissions in question must unreasonably interfere with a use of the plaintiffs land that is usual in this locality (§ 906 11 2 BGB).12 This reveals a basic difference between § 906 and the English law of nuisance: In German law, it may be reasonable that the defendant causes certain immissions to the plaintiffs land (§ 90611 1 BGB) but at the same time unreasonable that the plaintiff should suffer them (§ 906 11 2 BGB), whereas under English law, an interference with somebody's use or enjoyment of land is either unreasonable or not. Therefore, English judges have generally been reluctant to award damages in lieu of an injunction, whereas in Germany such damages have under § 906 11 2 BGB frequently been awarded. 13 There is a further important difference between § 906 BGB and English law. Under the latter, full compliance with the relevant public law and his licence absolves the defendant from liability in the absence of fault on his part, for then his activity is covered by statutory authority. Under § 906 BGB, however, fault is not at issue, and the defendant's compliance with the relevant public law only 8 Therefore, the similar statutory provision of § 14, 2 BImSchG a1ready uses the word "darnages" expressly. 9 See, e. g., BGHZ 101, 106, 110; LandsbergILülling, p. 351, with many further references. 16.

10 See, e. g., BGHZ 90,255,262; BGHZ 60,70. For further references see Hager, p. 135, fn.

11 E. g. immissions of liquids (BGH VersR 1985, 740). It therefore seems that even cases which in English law would be called trespass, i. e. the illegal discharge of waste on somebody eIse's land, would be covered by the rule. 12 Where past damage is at issue and an injunction could have been obtained, this condition will a1ways be fulfilled.

13 The rule of § 906 II 2 BGB was actually deveIoped by the Reichsgericht (RGZ 154, 161, 165 - 167) long before it was laid down in the BGB by the legislator in 1959.

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Chapter 3: The German Law

indicates that his conduct was lawful; a German court might weIl decide that despite his compliance with the relevant public law his conduct was unlawful under private law and thus hold hirn liable where he would have escaped liability under English law in the absence of fault on his part. Note that the idea that public and private law are basically separate matters has a long tradition in the "case law" on §§ 823,906 BGB.14

Today, § 906 11 2 BGB seems to be much more important as a rule for the compensation of past damage to land, but it still provides a flexible method for handling waste cases where the plaintiffs land is threatened by future harm. Whereas before the enactment of the UmweltHG both water and land were already protected against pollution by a strict liability, the plaintiff had to rely on the fault-based § 823 BGB if he wanted to get redress for personal injury or damage to movables caused by waste. 15 But in the important "Kupolofen"decision 16 the BGH has made liability under § 823 I BGB for environmental pollution considerably stricter. In this case the defendant operated a smelting plant (Kupolofen) which emitted quantities of dust and ferric oxide into the air. The plaintiffs were employees of a company nearby and alleged that the surface of their cars, which were parked on their employer's land, had been damaged by the emissions of the defendant's plant. 17 The BGH reversed the burden of proof for unlawfulness and fault on the ground that the plaintiff lacked sufficient insight into the defendant's business to show that these requirements were fulfilled. 18 However, the plaintiffs failed nevertheless because the defendant was in the opinion of the Appeal Court 19 able to show that he had discharged all duties of care imposed on hirn. This makes clear that in German civillaw, as far as waste cases are concerned, the protection of health and movables was weaker than the protection of land. The new UmweltHG is intended to remove this inconsistency by providing uniform rules for the protection of both health and property. However, it does not exclude or replace the previously existing law, but co-exists with it (§ 18

14 As to waste since RGZ 159,68. See Landsberg/Lülling, p. 27, for many further references. 15 Unless such injury or damage was consequential upon damage to land: If the defendant's waste contaminates the plaintiffs land as a result of which the plaintiff contracts a disease, he can recover damages under § 906 II 2 BGB for his iIIness, too. 16BGHZ92,143 17 In England, the plaintiffs could have based their claims either on the law of negligence or perhaps on the law of public nuisance, alleging in the latter case that they suffered "particular damage". 18 BGHZ 92, 143, 148 et seq. 19 OLG Zweibrücken, BB 1986, 2297

B. The Umwelthaftungsgesetz (UmweitHG)

47

UmweltHG). The previously existing law remains necessary for three types of cases: First, if the plaintiff in a waste case wants to recover pure economic loss, his only chance still is to base his claim on § 22 WHG.20 Secondly, if the plaintiff seeks an injunction against pollution caused by waste affecting hirn, he must rely on § 1004 BGB, for the only remedy available under the UmweltHG is an award of damages. Thirdly, if damage caused by waste is not due to an industrial plant listed in Appendix 1 to the UmweltHG (§ 1 UmweltHG), but caused by somebody else,21 the plaintiff must also rely on the "old" law. In the latter case the inconsistency that land is more strongly protected than health and movables continues to exist.

III. Analysis of § 1 UmweltHG The requirement of § 1 UmweltHG that the damage must be caused through an "interference in the environment" determines the protective purpose of the UmweltHG. The notion of interference in the environment is defined in § 3 I UmweltHG. Some difficulty arises from the fact that according to this section the emitted substances etc. must have "spread" through the air, the water or the ground to constitute an interference in the environment. 22 If, for instance, playing children get access to a landfill site and are injured by inhaling gaseous emissions, there is considered to be an "interference in the environment", whereas if they are poisoned by touching the waste and putting it into their mouths, there is none, so that the latter victims are left without a remedy under the UmweltHG. Here, the distinctions drawn by the UmweltHG are rather arbitrary. § 1 UmweltHG provides that the interference in the environment which causes harm to the plaintiff must be "due to an industrial plant listed in Appendix 1" to the UmweltHG. Appendix 1 enumerates 96 types of plants belonging to all sorts of industries. Nos. 68 - 77, for instance, are plants for the purpose of destroying, treating, recycling or disposing of waste, but there are also many other plants listed which are capable of discharging gaseous, liquid or solid waste into the environment.

The notion of plants and what belongs to them is defined in § 3 11, III UmweltHG. As to waste, it is important that "depots" are expressly mentioned. 20 Compare the English law, where his only chance is to rely on the law of public nuisance. 21 A good example would be the case of a car owner who pours his old engine oil into the

ground within the boundaries of a water protection zone.

22 See BT-Dr 11/7104, p. 17: If someone falls into a waste container, the UmweltHG does not provide a remedy for him.

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Chapter 3: The Gennan Law

§ 2 UmweltHG extends liability to plants wh ich are not yet or no longer in operation.

Under the UmweltHG the liable person is the operator of the plant which caused the damage via the environment. The operator will often be, but does not have to be, the owner of the plant. 23 Problems may arise where an operator cIoses his plant,24 or where there is a change of operators. As most operators of plants liable under the UmweltHG will not be individuals but companies, it seems that the easiest thing to do for a former operator of a plant to escape liability in the future will be to dissolve his company as soon as possible after his ownership is terminated. There will probably be many tricks to escape liability for a former plant in this way (sub-companies which can be dissolved after the operation of a plant is over; revival of dissolved companies under a different name, in a different legal form, with different partners etc.), and it is doubtful whether the courts will be able to uncover all of them. If a former operator of a plant succeeds in this way in escaping liability for damage caused by his plant, this may not only affect the victims, who will remain uncompensated, but also the succeeding operator of this plant. For if the plant has gradually polluted the environment for many years under both operators, they may be jointly and severally liable for the damage thus caused, in which case the second operator would face the possibly heavy economic burden of having to pay the first operator's bill as weil without being able to recover a contribution.

Unlike §§ 823,906 BGB, the UmweltHG does not require that the defendant must have acted "unlawfully" to be liable for the damage he caused. This means that the questions whether the defendant complied with the public law that applies to his activity, whether he held a licence and complied with it, or whether his conduct must be regarded as unlawful under private law are irrelevant to liability under § 1 UmweltHG.25 Thus, whereas under English law a defendant who complied with his licence and the relevant public law and was not negligent either escapes liability because he ac ted under statutory authority, the fact that he was neither at fault nor in breach of any public law prescription

23 See, e. g., BGHZ 80,1,4, with regard to § 22 WHG.

24 In wbich case he remains liable for bis plant according to § 2 11 UmweltHG. There is no such thing as a "certificate of completion" equivalent to section 39 of the EnvironmentaI Protection Act 1990 in England. 25 The UmweltHG, therefore, covers not only damage caused by accidents and other unlawful conduct, but also damage caused by the perfectly regular operation of the emitting plant: BT-Dr 1117104, p. 15.

C. Liability of the Waste Producer

49

applicable to his activity does not exempt hirn from liability under § 1 UmweltHG.26 However, public law is not totally irrelevant to claims brought under the UmweltHG, for § 5 UmweltHG excludes liability for damage to property subject to a rule similar to § 906 BGB if the defendant's plant was operated "in accordance with the relevant legal requirements".27 Further complete defences against liability under the UmweltHG are force majeure (§ 4 UmweltHG) and probably also consent. 28 As opposed to this, liability for development risks is not excluded under the UmweltHG.29

C. Liability of the Waste Producer Whereas air and water pollution is normally directly discharged into the environment by the waste producer, solid waste 30 is usually not disposed of by the waste producer himself, but transferred to a waste disposal plant to be burnt or deposited there. Now if the waste escapes from the disposal plant, will the waste producer be liable for the damage caused thereby? In 1976, the BGH had to decide the following waste case: 31 An oil refinery had transferred 370 tons of petroleum waste to a recently founded disposal company to have the waste burnt. The disposal company erected unlicensed tanks and ovens within a water protection zone. A substantial part of the petroleum waste, however, was not burnt, but poured into the ground. The local water supply company detected substantial pollution of the soil and the ground water in the area. They sued the oil refinery to recover the expenditure of their investigations to control the quality ofthe water. 32

26 The only German statute providing a very limited defence of statutory authority is, as we have already seen, § 14, 1 BImSchG. 27 See § 6 II 2, III, IV UmweltHG. Another provision of the UmweitHG that privileges lawful conduct is § 6 11 I UmweltHG; see section E., below. 28 See BGH VersR 1978, 862; BGH VersR 1983, 642. For contributory negligence (§ 11 UmweitHG) see section G., below. 29BT_Dr 1117104, p. 15. Compare the English law of negligence, under which the realization of such risks must be regarded as unforeseeable and does therefore not give rise to civilliability. 30 And perhaps liquid waste in containers. 31 BGH NJW 1976,46 32 If the plaintiff takes measures to prevent or mitigate the damage, which he is obliged to do according to § 254 II 1 BGB, he can recover as damages the expenditure incurred (See, e. g., BGHZ 10,18,20; BOHZ 32,280,285). 4 Pappel

50

Chapter 3: The Gennan Law

The BGH held that the oil refinery was not liable under § 22 WHG, for neither did it have control of the act of polluting the water (§ 22 I WHG), nor was the oil refinery itself the emitting plant (§ 22 11 WHG).33 But the BGH imposed on the oil refinery a duty under § 823 I BGB34 to select and, within reasonable limits, to supervise its independent disposal contractor carefully,35 found on the facts that the refinery had been in breach of this duty and thus held the refinery liable. 36 Despite this decision, the scope of the duty of care imposed on the waste producer is generally rather limited. For it is enough for hirn to show that he se1ected a person who was gene rally capable of disposing of the waste properly, irrespective of the disposal contractor's failure in this particular case. In practice, the waste producer's liability is therefore the exception. 37 As to liability of the waste producer under § 22 WHG, the following case was decided by the BGH in 1981: 38 The defendant introduced large quantities of salty water arising in his mine into the local sewage plant. The sewage plant transported the waste to a river, where it caused damage to the plaintiff. As the damage proceeded from the local sewage plant, the local authority which operated it was liable for the damage. 39 But although the waste was no longer in the defendant's possession when it caused the damage, the BGH also held the defendant liable under § 22 I WHG, for the amount and quality of his waste were such that it determined the character of the sewage transported by the sewage plant. Thus, the defendant, too, had created a risk of the kind to which § 22 WHG attaches strict liability, or, in other words, he had, as opposed to all other users of the sewage plant, created a cause for the damage which continued to be effective even after he had lost possession of his waste. This example shows that a concept of causa causans is under a rule of no-fault liability sometimes necessary to extend liability to the waste producer so that adequate results are achieved.

33 The same would have applied to Iiability under the UmweltHG: See the last paragraph of this section, below. 34 §§ 831 or 278 BGB were inapplicable, too, for the disposal company was an independent contractor and not employed for the purpose of fulfilling contractual obligations of the refinery's. 35 The strictness of the duty depending on the dangerousness of the waste as weil as the reliability of the independent contractor. 36 The same result would probably have been achieved under the English law of negligence. 37 v. Wilmovsky, NuR 1991,258 38 BGH NJW 1981, 2416; see also BGHZ 62,351, which, however, is not a waste case. 39 Apart from § 22 WHG, § 2 I HaftPflG imposes a strict liability on operators of sewage

plants.

D. Liability under the Produkthaftungsgesetz

51

If it is at least in some cases possible to hold the waste producer liable under § 22 WHG, the question arises whether he could also be liable under the

UmweltHG. Let us therefore consider the case of a waste producer who delivers to a landfill site some waste which is not suitable for disposal in this landfill site. The waste producer knows this, but the operator of the landfill site, being misinformed by the waste producer, does not. As a result of this, pollutants contained in the waste later escape from the landfill site and pollute the underground water. Is the waste producer liable for the damage under § 1 UmweltHG? The answer is no, for § 1 UmweltHG imposes liability only on the operator of the plant from which the interference in the environment proceeded, and in our case the interference in the environment exclusively proceeded from the disposal plant. 4O The difference to the sewage plant case above is that there, the waste producer's plant itself had emitted (though indirectly) pollutants into the environment, whereas in the case discussed now the waste producer's plant did not cause any interference in the environment. 41 What is more, a waste producer cannot be held liable under the UmweltHG at all if his plant is not listed in Appendix 1 to the Act (whereas under the WHG there is always the possibility of holding hirn liable under § 22 I). On the whole, therefore, the waste producer's liability for damage caused by his waste after it was handed over to an independent waste disposer is under existing German law very limited and confined to some special situations govemed by §§ 823 1 BGB and 22 WHG.

D. Liability under the Produkthaftungsgesetz Attempts to hold a manufacturer liable for damage caused by his products when they are thrown away (product waste) or for his production waste will under the German Product Liability Act42 face the same difficulties as under its English equivalent. What has been said in Chapter 2, B. 11., therefore, applies to German law as weIl.

40 See Hager, NJW 1991, p. 135. 41 For the same reason the waste producer in BOH NJW 1976,46 escaped liability under § 22 WHO. 42 Produkthaftungsgesetz vom 15.12.1989. 4"

52

Chapter 3: The Gennan Law

E. Proof of Causation I. Introduction

As opposed to English law, where the plaintiff must show causation on a balance of probabilities, the general standard of proof in German law is certainty.43 But in waste cases, there is often no scientific certainty about the effects of certain poHutants on organisms and the environment, and the damage is often caused over long periods of time and by many factors that work together. Here, to stick to the general standard of proof would in practice almost always mean to deprive the victim of any chance of obtaining redress. It is therefore necessary to reduce the standard of proof. 44

11. Assumption of Causation under § 6 I UmweltHG § 6 I 1 UmweltHG attempts to reduce the standard of proof by providing that causation shall be assumed if the defendant's plant was in the circumstances of the particular case capable of causing the damage suffered by the plaintiff. § 6 I 2 UmweltHG gives a list of circumstances to be taken into account in determining this "capability" of the defendant's plant.

What must the plaintiff prove to show that the defendant's plant was capable of causing the damage he suffered? He must first prove that the defendant's plant emitted pollutants of the kind which caused the damage. The proof of this fact is facilitated by §§ 8; 9 UmweltHG, which give the plaintiff certain rights to obtain information from the defendant (§ 8 UmweltHG) or certain public authorities (§ 9 UmweltHG). Secondly, the plaintiff must show a certain spatial and temporal connection between the escape of the pollutants and the occurrence of the damage. This requirement practically excludes damage caused over long distances by ubiquitous pollution from the scope of the UmweltHG. Thirdly, the plaintiff must prove the capability of the pollutants emitted by the defendant to cause the damage suffered by the plaintiff. This depends on the general capability of these pollutants to cause such damage as weH as on the particular circumstances of the case. 45

43 As there cannot be absolute certainty, the judge must be convinced of the truth of the facts in question "to a degree of certainty which is practicable in daily life": 8GHZ 53, 245, 256. 44 Hager, NJW 1991, p. 137, with further references.

45 Hager, ibid.

E. Proof of Causation

53

To prove the general capability of certain pollutants to cause such damage as was suffered by the plaintiff, statistical evidence may be very useful. In principle, a small but significant percentage increase of cases of, say, a disease, is already sufficient to show that a certain substance can cause this disease if all other causes can be excluded. Thus, whereas under the normal standard of proof, i. e. certainty, statistical evidence is practically useless, for it is impossible to say that a particular disease was caused by the defendant's emissions and is not one that would have occurred anyway, statistical evidence may be enough under § 6 I UmweltHG to show "capability" and thus to establish liability. However, the big problem of statistical evidence on environmental pollution is to exclude all other causes. 46 In waste cases, statistical evidence mayaIso work in favour of the defendant. If no or just an insignificant increase of risk can be attributed to the pollutants in question, this is strong evidence that these substances have not caused the plaintiffs damage. 47 Before the UmweltHG was enacted, the BGH had already facilitated the proof of causation in a waste case by means of the so-called prima facie proof (Anscheinsbeweis).48 In this case49 the court assumed that the defendant's discharge of waste into a bomb crater filled with ground water was causative of the pollution of a weIl which lay in the same groundwater stream. An important feature of this case was that the polluter was already identified. For if it is uncertain whether the defendant caused the discharge of waste in question, or if there might have been other polluters, the prima facie proof is not very helpful, because normally, though perhaps not always, it cannot be inferred from a certain chain of events that it was initiated by a certain person. Here, § 6 I UmweltHG is a much more powerful weapon for the plaintiff, for all plants capable of causing the damage are liable. However, let us assume the following case: A trespasses on B's land and discharges his waste into a lake thereon. The waste was produced by A's factory which is listed in Appendix 1 to the UmweltHG. Soon, all the fish in the lake die. B can prove that there was no other polluter or pollution of the lake and that the damage could not possibly have been caused by any natural causes either. But there is no scientific evidence that these pollutants are capable of causing such harm. Here, the plaintiff cannot rely on § 6 I UmweltHG, but will 46Umweltgutachten 1987, No. 1645 47 Hager, ibid. 48 The concept of prima faeie proof also exists in England. 49Reported by LandsbergILülling, p. 139, and Diederichsen, BB 1973, 485, 489. See also BGHZ 17, 191, and OLG CeIle, VersR 1981, 66, which also were cases of damage caused via the environment, but no waste cases.

54

Chapter 3: The Gennan Law

be able to close the chain of causation by way of a prima facie proof: If it can be inferred from the facts that the pollution caused the damage, it is not necessary to show how it caused the damage. 50 Thus, the prima facie proof remains necessary besides § 6 I UmweltHG, although waste cases where "all other causes can be excluded" will be rare.

IH. Assumption of Causation in Cases of Multiple Causation § 6 I 1 UmweltHG is also applicable to cases of multiple causation. The following waste case51 may serve as an example: In a certain area there are several aluminium factories that emit fluorine into the air. Apricot farmers of the region sue the owners of these factories for damages, alleging that the fluorine emissions have damaged their fruit and thus reduced their harvest. There is evidence that the fluorine emissions were capable of damaging the apricots, but that other factors, such as genetic and physiological qualities of the apricots as weil as general environmental pollution, played a role, too. Was each single plant "capable" of causing the damage?

If § 6 I 1 UmweltHG required that each plant must have been capable of causing the whole damage alone, this would mean that the assumption of causation (and thus liability under the UmweltHG) would be excluded for all cases of additive emissions from several sources, which is in practice the most frequently occurring situation. 52 To assume that a plant has caused the damage in question, it must therefore be sufficient that its emissions were capable of causing the damage at least in combination with the emissions of other plants. This rule was already laid down by the BGH in respect of § 22 I 2 WHG.53 If

50 BGHSt 37, \06 (Lederspray). In this spectacular case of "product liability" under criminal law the victims had suffered severe injuries after using leather spray that was manufactured by the defendants. It was impossible to say by which substance contained in the spray and how the injuries were caused, but the court held that as allother causes could be excluded, causation was established. The defendants were convicted of physical injury resulting from negligence as weil as battery (§§ 230; 223a StGB). 51 Which

304.

is modeled on adecision of the Federal Supreme Court of Switzerland: BGE \09 TI

52 Hager, NJW 1991, p. 138 53 BGHZ 57,257,260 et seq.

The BGB, too, contains a similar rule: § 830 12 BGB provides that if it cannot be found out who of several participants caused the damage, each of them is liable for the whole loss. However, it remains unclear what exactly is required so that causation can be assumed under § 830 I 2 BGB. On the one hand, it was held in BGHZ 89, 383, 399, that it is necessary for an assumption of causation under § 830 I 2 BGB that each defendant's conduct was in itself capable of causing the damage as a whole. On the other hand, the BGH held, as we have just seen, in respect of the very similar rule of § 22 I 2 WHG that if it is unclear how much a defendant contributed to the damage (which is a type of case to which § 830 I 2 BGB is applied by

E. Proof of Causation

55

§ 6 I 1 UmweltHG is construed like this, each of the factories in our case must be regarded as having been capable of causing, and thus as having caused, the damage. 54

IV. Defences to § 6 I UmweItHG

An assumption of causation according to § 6 I UmweltHG is exc1uded if the defendant can show that his plant was "operated in accordance with the relevant legal requirements"55 (bestimmungsgemäßer Betrieb; § 6 11 1 UmweltHG). This is the case if the "particular duties applying to the operation of the plant" (besondere Betriebspflichten) were complied with and if there was no disturbance of its operation either (§ 6 11 2 UmweltHG). § 6 III UmweltHG states that "particular duties" are only those duties which are imposed on the plant for the purpose of avoiding such interferences in the environment as could have caused the damage in question. Finally, § 6 IV UmweltHG considerably facilitates the proof of "accordance with the relevant legal requirements" by providing that compliance with the particular duties shall be assumed if the defendant proves that during the period of time in which the interference in the environment may have occurred regular inspections of his plant were carried out and no breach of duty was thereby revealed (§ 6 IV No. 1 UmweltHG),56 0r if the interference in the environment in question took pI ace more than ten years ago (§ 6 IV No. 2 UmweltHG). This is a very far-reaching defence. If the operators of the plants listed in Appendix 1 regularly carry out controls in their plants 57 and keep a sufficient record of these controls, liability under the UmweltHG will practically be reduced to liability for accidents. Thus, § 6 11 UmweltHG will de Jacto often

way of analogy; see section F., below), it is sufficient for holding hirn Iiable for the whole damage to show that he contributed to the damage. The view that capability of contributing to the damage should be sufficient to assurne causation under § 830 I 2 BGB is, subject to certain qualifications, also supported by some academic writers (see Steffen, NJW 1990, p. 1821, and Hager, NJW 1991, pp. 139 - 140, both with further references). At least, this construction of § 830 I 2 BGB would be much more consistent with § 6 I 1 UmweltHG and the jurisdiction as to § 22 WHG (see Landsberg/Lülling, p. 143). See also fn. 77, 88 and 94, below. 54 The question whether the plants will be jointly and severally Iiable, and the problems Iinked thereto, will be discussed in the next section of this chapter.

55 That is, public law prescriptions. 56 "Controls" in this context are controls to be carried out by the plants themselves, not controls carried out by public authorities (Landsberg/Lülling, p. 168).

57 And it seems that in Germany, at least big industrial plants monitor their emissions day and

night.

56

Chapter 3: The German Law

have the same effect as a defence of statutory authority,58 so that in this respect the UmweltHG even falls behind the previously existing law. 59 Moreover, as the question of causation will be the crucial one in most waste cases, § 6 IV No. 2 UmweltHG establishes for most claims brought under the UmweltHG a de facto time bar of ten years running from the damaging event. According to § 7 UmweltHG the defendant can rebut an assumption of causation under § 6 I UmweltHG by showing that "another factor" was in the particular circumstances of the case capable of causing the damage. Another industrial plant can never be "another factor" in this sense (§ 7 I UmweltHG), even if the other plant is not Iiable under the UmweltHG.60 "Other factors" are therefore causes which cannot be attributed to anyone, such as natural causes as weil as ubiquitous pollution. 61 In the apricot case mentioned above there was evidence that apart from the defendants' flourine emissions other factors Iike the genetic and physiological qualities of the fruit as weil as general environmental pollution were also capable of contributing to the damage. If a capability of contributing to the damage was, as under § 6 I UmweltHG, sufficient to fulfill the requirements of § 7 UmweltHG,62 § 6 I UmweltHG could never be applied to waste cases, for there is always some ubiquitous pollution contributing to the damage. Therefore, § 7 UmweltHG must require that the assumption of causation is rebutted only if the "other factors" were capable of causing the damage irrespective of the defendants' emissions,63 whereas if the other factors were capable of causing the damage only in combination with the defendants' emissions, the assumption of causation under § 6 I UmweltHG must be upheld. 64 Thus, the defence under § 7 UmweitHG would not be available to the defendants in the apricot case, so that they would be liable under the Umwe1tHG.65

58 Except in cases where the defendant did not carry out sufficient controls, or where the plaintiff succeeds in showing causation in the usuaI way, or where the court aIlows the plaintiff to show causation by way of a prima facie proof. This, again, illustrates the importance of the prima facie proof for cases of damage caused by waste. 59 SaIje, UPR

1990, p. 2; see section 8., above.

60 Hager, NJW 1991, p. 139; aliter LandsberglLülling, p. 177

61 Hager, NJW 1991, p. 139 62 This view was apparently laken by the legislator himself: BT -Dr 11 nl 04, p. 18 63 Hager, NJW 1991, p. 139; Steffen, NJW 1990, 1817, 1822; aliter LandsberglLülling, p.

179

64 So that in § 7 UmweltHG the notion of "capability to cause the damage" would be different from the one in § 6 I UmweltHG.

65 The question of how the other factors influence the extent of the defendants' liability will be discussed in section P., below.

E. Proof of Causation

57

It must be stressed that this construction of § 7 UmweltHG is still very controversial 66 and that there is no judicial authority on this question yet. The problem, however, is a crucial one: It will depend on the view adopted by German judges, whether § 6 I UmweltHG will at least retain its influence in cases of accident, or whether its importance will generally be reduced to zero. 67

V. Conclusions § 6 I UmweltHG has introduced into the UmweltHG a rule which had already been developed by the German courts under § 22 I 2 WHG (and is perhaps also contained in § 830 I 2 BGB). But whereas § 22 I 2 WHG and § 830 I 2 BGB only apply to cases of multiple causation, § 6 I UmweltHG also applies to cases where there is just one polluter, which is an important extension. On the other hand, whereas it does not matter for an assumption of causation under § 22 I 2 WHG or § 830 I 2 BGB whether the defendant complied with the relevant statutory standards or not, § 6 11 UmweltHG substantially privileges the normal and lawful operation of a plant (Normalbetrieb). Compared to the previously existing law, the UmweltHG thus contains an important restriction, toO. 68

Compared to English law, German law faces the difficulty that it must somehow come down from a very high standard of proof to produce results adequate to modern life, whereas in England, the balance of probabilities already is the normal standard to prove causation. However, it seems that in waste cases where the plaintiff would like to rely on statistical evidence, English law, too, would regard mere mathematical probability as insufficient to prove causation and would adopt a standard of proof similar to the one normally applied in Germany.69 Thus, if arelease of waste due to an accident in a factory led to a significant increase in leukaemia cases in the neighbourhood, a leukaemia patient suing the factory would fail under English law, for the plaintiff would not be able to show that his cancer was caused by the factory and was not one that would have occurred anyway. But under the German UmweltHG the plaintiff will succeed if he can show that all other causes of increase in leukaemia cases can with a degree of certainty practicable in daily life be excluded, for then the mere statistical increase in leukaemia cases in the area will be enough to show that the waste released by the factory was capable 66 As the footnotes above show. 67 Hager, NJW 1991, p. 139 68 Sa1je, UPR 1990, p. 2 69 See Rogers, pp. 22 - 24

Chapter 3: The German Law

58

of causing leukaemia. Causation will thus be assumed according to § 6 I UmweltHG, and the defendant will be held liable. It was already said many years aga that the law should replace the idea of liability for fault by the idea of liability for risk to be able to meet the demands of modern life.1° In some fields, such as product liability, the law has in the meantime attempted to achieve this by imposing on the defendant a no-fault liability. But we have seen that cases of damage caused by waste, where the facts upon which the court must decide can often only be expressed in terms of probabilities and percentage increases of certain risks,71 cannot simply be resolved by removing from the law the requirement of fault while the traditional concept of causation remains untouched. What is needed here is a liability for the creation oi risk, 72 towards which § 6 I UmweltHG is areal step forward.

F. Joint and Several Liability or Proportional Liability in Cases of Multiple Causation? I. Introduction If the damage in a waste case is caused by multiple tortfeasors, there is the problem whether they are jointly and severally liable or not. § 8 of the draft of the UmweltHG contained an interesting provision as to joint and several liability and proportionalliability, but it was cut out in subsequent legislative proceedings.1 3 As the UmweltHG now lacks any such regulation, the plaintiff must rely on the generallaw, which will now be examined.

11. Cumulative and Alternative Causation The following types of cases of multiple causation must be distinguished: First, there are cases where several tortfeasors have caused the damage in such a way that but for the conduct of one of them the damage would not have 70 Jolowicz, [1968] C. L. J., pp. 50 et seq.

71 See Adam, p. 58. 72 As was suggested in the English case of McGhee v. N. C. B. [1973] 1 W. L. R. 1,6, per Lord Wilberforce, now reversed by the House of Lords in Wilsher v. Essex Area Hea/th Authority [1988]2 W. L. R. 557.

73 BT-Dr 11/7104, p. 28

F. Joint and Several Liability or Proportional Liability?

59

occurred (cumulative causation). If two plants cause the death of fish in a river by emitting into the river 20 units of the pollutant X each, the lethal concentration being 35 units (case 1),74 then both have set a condition sine qua non for the damage as a whole, so that they are jointly and severally liable for the death of the fish.7 5 Secondly, there are cases where several tortfeasors have caused the damage in such a way that it is certain that one or some of them have caused the damage, but it is not possible to say who (alternative causation). If there were a third plant in case 1 that also emitted 20 units of X into the river (case 4),76 it would be impossible to say which two plants actually caused the damage. In such cases where it is doubtful who caused the damage (Verursacherzweifel), § 830 I 2 BGB imposes joint and several liability on all defendants whose plants are capable of contributing to the damage. 77 Thus, the defendants in case 4, too, are jointly and severally liable for the death of the fish. 78 In English law, the same result is achieved under the rules in Thorpe v. Brumfitt and Pride of Derby v. British Celanese. Although these rules are quite different from § 830 I 2 BGB, their effect is in waste cases practically the same. Wehave seen that in case 4, none of the defendants could possibly have caused the damage alone, for no defendant's emissions were sufficient in themselves to kill the fish. Nevertheless each defendant is liable for the damage as a whole. As there is no liability in tort without causation, this means that each defendant is treated as if he had caused the wh oie damage.7 9 This, however, means that the conduct of other persons is attributed to each defendant, which is contrary to the general principle of both English and German law that nobody is responsible for his neighbour's conduct. There must therefore be some justification for attributing other people's conduct to the defendant. In the English cases of Thorpe v. Brumfitt and Lambton v. Mellish 80 the justification was that the defendants knew of the other defendants' conduct,81 74 See Chapter 2, D. I. 1. 75 See BGHZ 66, 70, 76; BGHZ 72, 289, 298. Note that in cases of joint and severalliability § 10 UmweltHG gives to a defendant who has had to pay for the whole damage and now wants to recover contributions a right to obtain relevant information from the other tortfeasors.

76 See Chapter 2, D. I. 1. The cases 2 and 3 mentioned there fall in the same category. 77 For our purposes, this interpretation of § 830 I 2 BGB, which is much more sensible and more consistent with §§ 6 I UmweltHG, 22 I 2 WHG (see fn. 53, above, and fn. 88, 94, below), will be adopted. 78 As this is a case of water pollution, they are also jointly and severally !iable under § 22 I 2 WHG. 79 Although in case 4 the "but for" test fails.

80 [1894]3 Ch. 163

60

Chapter 3: The Oennan Law

but in Pride of Derby v. British Celanese the problem of respective awareness was not discussed at all.B 2 If respective awareness were required to hold the defendants liable under the rule in Thorpe, it seems that in most waste cases the requirement would not be fulfilled,83 so that in cases like case 4 the defendants would almost never be liable. In Germany the courts have adopted an "objective theory" to resolve the problem: The defendants must de facto have created a certain risk commonly, e. g. by participating all in one single incident. 84 This requirement will be fulfilled in cases like case 4, but it is doubtful wh ether mere objective coincidence can justify an attribution of other people's conduct to the defendant, for if the defendant is thus liable even for other people's conduct unforeseeable to hirn, he cannot calculate and insure his risk ofliability.B5 Adopting a more subjective approach, one could say that even if a defendant does not know about the other defendants' conduct, he must at least reckon on other people's emissions combining with his own. 86 But as a defendant in a waste case must always reckon on other emissions combining with his own, this justification is an empty phrase. Or, if one admits that there are cases where a defendant need not reckon on a combination of his own emissions with others, then the other emissions cannot in these cases be attributed to the defendant, so that he cannot be said to have caused the damage and the plaintiff is left without aremedy. The most sensible approach seems to be to see the problem in the light of the protective purpose of § 830 I 2 BGB from the point of view of the plaintiff: If in the particular circumstances of the case the plaintiff cannot reasonably be expected to find out who caused the damage, this is enough justification for shifting the burden of proving or disproving causation onto the defendants, since it is certain that all of them were at least capable of contributing to the damage. 87 This approach does not add any further requirement to the basic rule of § 830 I 2 BGB that the defendant's act must have been capable of contributing to the damage, so that the defendants in waste cases like case 4 would always be jointly and severally liable for the damage suffered by the plaintiff. 81 See Winfield, p. 409 82 It remains unclear whether it was considered irrelevant or simply forgotten.

83 It would probably not have been fulfilled in the Pride of Derby case either. 84 See, e. g., 80HZ 55, 86, 93. 85 Hager, NJW 1991, p. 140; Kötz, UTR 12 (1990), 391, 395

86 LandsberglLülling, p.

127

F. Joint and Several Liability or Proportional Liability?

61

However, such joint and several liability is problematic where some contributions to the damage have been very smalI, for it is disproportionate that a defendant who has merely contributed one per cent. to the damage should pay for 100 per cent., which could cause hirn (or his insurance company) severe financial difficuIties. In fact, somebody whose forest dies as a result of ubiquitous air pollution would be able to sue any car owner for full compensation, for having been capable of contributing to the damage the car owner would be jointly and severally Iiable for it. This example shows that § 830 I 2 BGB, unless there is some qualification to it, may produce absurd results in waste cases and thus imposes on the defendant a high economic risk wh ich is practically uninsurable. Here, the defence contained in § 8 of the draft of the UmweltHG (only proportionalliability where the damage was caused by the lawful operation of aplant) would have produced more appropriate results and substantially improved the caIculability and insurability of the defendant's liability. Unfortunately, however, this section of the Bill was dropped. 88

IH. Additive Causation

The third type of waste case involving multiple defendants is the kind of situation where one tortfeasor causes some damage and a second one aggravates it (additive causation).89 Let us, for instance, assurne that in the apricot case mentioned above9O the only scientific evidence available is the following statement: It is certain that each factory contributed to the damage and that each contribution made the damage worse, but it is impossible to say how much each factory contributed to the damage. Such doubts about the extent of each tortfeasor's contribution to the damage (Anteilszweifel) are typical for cases of additive causation and may arise in two ways: It may be unclear how much each defendant emitted, or, even if the amount of pollutants emitted by each

87 Jauemig, § 830, annotation 4 a bb; similarly BGHZ 55, 86, 93. 880ne could argue that such absurd results as in the car driver case could easiliy be avoided if

§ 830 I 2 BGB required that each defendant's act was capable of causing the whole damage alone. But this construction of the rule would lead to the highly contradictory result that there would be joint and severalliability in case 1 described above, whereas in case 4 the defendants would not be liable at all. Therefore, the construction that § 830 I 2 BGB is applicable where the acts of several tortfeasors were each capable of contributing to the damage is preferable, but must be subject to a qualification as suggested. See also fn. 53, 77, above, and fn. 94, below. 89 As in Baker v. Willoughby, where the tortfeasors caused the damage subsequently, but the two causes may also cause the damage at the same time. Note that additional causes may not only add to the damage, but also multiply it or just accelerate its occurrence. 90 See section E., above.

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defendant is known, it may still be impossible to say how much each defendant's emissions contributed to the damage. In such cases the defendants' contributions to the damage must first be estimated under § 287 ZPO.91 This role enables the court to appreciate the evidence more freely than usual when the extent of the damage and thus the amount of damages payable by the defendant is at issue, the purpose of the role being that the plaintiffs claim should not fail merely because he cannot show how much damage the defendant caused him. 92 If an estimation under § 287 ZPO is possible, each defendant will only be liable for the part of the damage he caused. However, it will often be impossible to dispel the doubts about the defendants' contributions to the damage. But here, contrary to its wording, § 830 I 2 BGB is applicable as wel1. 93 The doubts are thus removed in favour of the plaintiff by imposing on the defendants joint and severalliability.94 Where the defendants in a case of additive emissions are held jointly and severally liable, there is a problem if they must also pay for contributions of persons who cannot be identified, in particular for ubiquitous pollution. For the defendants liable will not be able to recover contributions for this part of the damage, so that each of them will in the end have paid for more than he caused. The extent of each defendant's liability would thus depend on how many other tortfeasors could be identified, and would, therefore, be hardly forseeable and insurable. A good solution seems to be to impose joint and severalliability only for those contributions of which the authors are identified,95 whereas the loss resulting from those contributions to the damage which were due to unknown sourees, ubiquitous pollution and natural causes 96 must be deducted from the sum recoverable by the plaintiff.97

91 BGHZ 66,70,76 - 77; BGHZ 101, 106, 113 92 ZöllerlStephan, ZPO, § 287 No. 1; Landsberg/Lülling, p. 143

93 Hager, NJW 1991, p. 139; LandsbergILülling, p. 142 94 To require under § 830 I 2 BGB that each plant must have been capable of causing the whole

damage alone (see fn. 53, 77 and 88, above) is particularly inappropriate here: If it is not known how much each plant emitted, how can it be determined whether it was capable of causing the whole damage or not? And if it is known how much each plant emitted, but not how much these emissions contributed to the damage, it will in practically all waste cases of additive emissions be certain that the second emissions have aggravated the damage (even if just a bit), from which it can be inferred that the first emissions were not capable of causing the whole damage alone.

95 This was de facto the case in BGHZ 57, 257, where § 22 I 2 WHG was applied. 961. e. "other factors" in the sense of § 7 UmweltHG.

97 Hager, NJW 1991, p. 140

G. Darnages

63

G. Damages J. Miscellaneous Provisions If a waste case is decided under the UmweltHG, the amount of damages to be awarded will be determined according to §§ 11 - 16 UmweltHG. § 11 UmweltHG provides the defence of contributory negligence by reference to § 254 BGB, the general rule of contributory negligence in German law, wh ich is applicable to liability under all statutes relevant to waste cases. 98 Similarly to English law, § 254 11 BGB imposes on the plaintiff a duty to avoid or mitigate the damage, which is important for the protection of the environment in cases of damage caused by waste. §§ 12 - 14 UmweltHG contain mies about the assessment of damages for personal injury. Whereas in England damages for personal injury and its future consequences are almost always awarded as a once-for-all lump sum, § 14 UmweltHG, Iike § 843 I BGB, lays down that damages for loss of earnings and increased expenses due to sickness shall be awarded as periodical payments. Damages for property damage are dealt with under the general mies of §§ 249 et seq. BGB, wh ich will be discussed in another context below. § 15 UmweltHG sets a financiallimit to Iiability under the Umwe1tHG.99 As the financial limits for personal injury and damage to property are fixed separately (§ 15, 1 UmweltHG), it seems that under the UmweltHG the defendant is liable to pay DM 320 million for the harm arising from one incident. This is such a high limit that it is practically not going to ease the financial burden on the companies liable under the UmweltHG. § 15 UmweltHG does therefore not improve the insurability of liability under the Act. Moreover, one uniform financiallimit for all sorts of plants of all sorts of sizes is inappropriate. 100

The wording of § 15 UmweltHG also gives rise to considerable, if not insurmountable, difficulties. First, it will be hard to define in cases of gradual pollution what should be regarded as "one single interference in the environment". Secondly, it is uncIear how the "reduction scheme" of § 15, 2 UmweltHG could ever work in practice: If not all victims are compensated at

98 See Jauemig, § 254, annotation 1, with many references. 99 Like § 10 Produkthaftungsgesetz (for cases of personal

Consumer Protection Act 1987 does not contain such an upper limit. 100 LandsbergILülling, p. 246

injury), whereas the English

Chapter 3: The Gennan Law

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the same time,101 what is going to happen if the financial limit is reached by later claims? Will the first plaintiffs have to pay back a part of the damages they were awarded? Or will the later plaintiffs be left without any compensation? This shows that the role, if it is ever going to be applied, will be wholly unworkable. A better solution would probably be to set a financial limit to liability under the UmweltHG per plaintijf.102

11. § 16 UmweltHG § 16 UmweltHG contains a role on compensation for such damage to property as is at the same time ecological damage lO3 and provides that the plaintiff may recover the cost of repairing such damage to property even though these costs exceed the value of the property, but only if the plaintiff actually carries out the repairs. The practical relevance of § 16 UmweltHG is revealed by a comparison to the previously existing law.

If waste causes damage to ecologically valuable property, the owner of the property may demand from the polluter "natural restitution"I04 (§ 249, 1 BGB) or the cost of restitution lO5 (§ 249, 2 BGB). Two problems arise here. The first one is whether restitution can be demanded if the cost of restitution exceeds the value of the property. § 251 11 BGB provides that the defendant may pay the plaintiff a "monetary indemnification"l06 instead of the cost of restitution if repairing the damage is "disproportionate". 107 But in determining proportionality, non-pecuniary interests may be taken into account. 108 Thus, if the plaintiff is interested in promoting environmental protection by repairing his ecologically valuable property, this may be sufficient not to regard the cost of repairs as disproportionate. I09 In a case where a mature tree was destroyed the BGH held that § 251 11 BGB applied, for it was, although feasible, disproportionately expensive to replace the destroyed tree by a new one of the same age, but de

101 Which can in practice easily happen for all sorts of reasons. 102 See LandsbergILülling, p. 245 103 See seetion B., above. 104 /. e. he can have lhe defendant repair lhe damage. 105 In which case the plaintiff will carry out the repairs himself. 106 /. e. lhe diminution in value of lhe property. 107 The same rule exists in English law: See Lodge Holes Colliery Co. Ltd.

Corp. [1908] A. C. 323.

v. Wednesbury

108 See, e. g., LG Lüneburg NJW 1984, 1243; BGHZ 63, 295, where the balancing of interests to determine proportionality is based on § 242 BGB (Treu und Glauben) instead of § 251 11 BGB. 109 LandsbergILülling, pp. 67, 75

G. Damages

65

Jacto the cost of restitution was awarded l10 irrespective of the diminution in

value of the property. 111 The principle that the diminution in value of the affected property is not a limit to liability for damage to ecologically precious property has now been put into statutory form by § 16 UmweltHG. As this role prornotes the repair of damaged parts of nature, it is very beneficial to the environment. The second question with regard to § 249 BGB is whether the plaintiff is free to use the cost of restitution recovered for whatever he wants, or whether he must spend the money on repairing the damaged part of nature belonging to hirn. The BGH has held that whereas in cases of personal injury the plaintiff must use the damages awarded for restoring his health,112 he is in cases of damage to property free to spend the money on whatever he wants. 113 Within the scope of the UmweltHG, the principle that damages are awarded for the specific purpose of repairing the harm is now extended by § 16 UmweltHG to damage to property. If the damages awarded exceed the diminution in value of his property, the plaintiff is thus obliged to repair the damage,114 which is most beneficial to the environment. Under English law, too, damages exceeding the diminution in value of the affected property are not awarded where the plaintiff has no intention of carrying out repairs. 115

Despite the extension of claims for natural restitution contained in § 16 UmweltHG, such claims are not unlimited. The limit must be determined with regard to all circumstances of the particular case and by balancing the plaintiffs interest in repairing the ecological damage against the financial burden imposed on the defendant. The result may weil be that exorbitant repair costs outweigh the ecological importance of the damaged property, in which case § 251 11 BGB will be applied in favour of the defendant, so that the environment will remain unrepaired. 116

110 The BGH awarded, according to the so-called Kach-method (see, e. g., Koch VersR 1984, 110; VersR 1986, 1160), the cost of planting a young tree and raising it until it reached the age of the destroyed one.

111 BGH NJW 1975, 2061

112 For otherwise he would have recovered damages for non-pecuniary loss contrary to the role in § 253 BGB: BGHZ 97,14,19. 113 BGHZ 97,14,17 - 18; BGHZ 66,239

114 The problem is how this obligation can be enforced, since according to § 16 II UmweltHG the cost of repairs are on demand of the victim payable in advance. The problem is taken up again in Chapter 4 E. H. 4., where a solution is suggested. 115 See, e. g., Perry v. Sidney Phillips & San [1982] 1 W. L. R. 1297.

116 Hager, NJW 1991, p. 5 Pappel

141

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Chapter 3: The Gennan Law

Further cases where § 16 UmweltHG will not be able to promote repairs of the environment will be cases where a mere indemnification in money is awarded in favour of the plaintiff, i. e. cases where natural restitution is impossible or insufficient to compensate the plaintiff because the damage to nature is wholly or partly irreparable (§ 251 I BGB). It mayaIso be that the plaintiff chooses indemnification instead of restitution, e. g. if the owner of a contaminated trout farm closes down and claims damages for his lost profits, for this is "subjective impossibility" in the sense of § 251 I, 1st alternative BGB. FinaIly, § 16 UmweltHG cannot help in waste cases where the damage is caused to a part of nature that is not owned by anyone, 117 for pure ecological damage is not covered by the UmweltHG anyway.118

H. Miscellaneous Topics I. Limitation § 17 UmweltHG provides that the general rule on limitation of tortious liability in German law (§ 852 I BGB) is applicable to liability under the UmweltHG as weIl. § 852 I BGB is thus in principle 119 applicable to all cases of damage caused by waste in Germany.120 § 852 I BGB bars tort actions after a period of three years from the time when the victim knows the damage and the tortfeasor, but also sets a longstop absolute limit to tortious liability of thirty years after the defendant's last causative act.

Compared to English law, the three-year period starting from the "date of knowledge" is similar to the limitation periods provided by the Limitation Act 1980 and the Latent Damage Act 1986. However, the German three-year limitation period applies to all waste cases, whereas in England a plaintiff who has suffered damage other than personal injury and not arising from negligence 121 is subject to the basic limitation period of six years running from the time when the damage occurred, which may in a waste case be very disadvantageous to hirn. The longstop absolute limit of thirty years set by 117 Such as ground water under, and wild animals living on, the plaintiffs land. 118 Nor by any other Gennan statute. 119 For exceptions where tortious liability concurs with contractual liability see

LandsbergILülling, p. 260, with further references.

120 See Jauemig, § 906, annotation 6; LandsbergILülling, p. 358 (§ 14 BlmSchG); LandsbergILülling, p. 330 (§ 22 WHG) 121 E. g. damage to property caused by a nuisance, which is an important type of waste case.

H. Miscellaneous Topics

67

§ 852 I BGB is twice as long as its equivalent in the Latent Damage Act 1986 and therefore more appropriate to waste cases, particularly to cases of gradual pollution. However, it is also applicable to all waste cases, whereas in England there is no absolute limitation period at all in cases wh ich are not covered by the 1986 Act.

11. Insurance § 19 UmweltHG imposes a compulsory third party liability insurance (or similar coverage) on such industrial plants as are listed in Appendix 2 to the UmweltHG. Appendix 2 is much shorter than Appendix I to the Act and enumerates only three types of particularly hazardous industrial plants.

There has been a lively discussion in Germany as to whether civilliability for damage caused via the environment is insurable or not. 122 The outcome of the discussion basically was that insurers generally denied the insurability of the normal and lawful operation of industrial plants and of development risks, 123 whereas some academic writers arrived at the contrary conclusion. 124 According to recent reports in the press,125 practice has shown that on the one hand, the insurance of such risks is not impossible, but, where offered, rather limited. 126 On the other hand, the difficulties to obtain insurance cover also extend to the insurance of accident risks. 127 Therefore, the question is whether all plants which are bound to carry liability insurance under § 19 UmweltHG can actually be insured in practice. 111. Retrospective Application of the UmweltHG § 23 UmweltHG provides that the UmweltHG is inapplicable "insofar as the damage was caused before this Act came into force."128 But all causes of the damage are regarded by the law as equivalent, and one of these equivalent causes of the damage always is that the industrial plant from which the waste

122 See, e. g., Wiebecke, pp. 70 et seq.; Rauschke-Kessler, pp. ll2 et seq. 123 See Hager, NJW 1991, p. 141, at fn. 85 124 For a lawyer's opinion see Hager, NJW 1991, pp. 141 - 143; for an economist's opinion see Panther, p. 160. 125 "Der Spiegel" 39/1993, pp. 135 - 141. 126 Some insurers offer policies which cover injuries up to a sum of DM 20m. This comparatively low sum also applies to the biggest chemical producers in the country. 127 See section H. V., below. 128 Emphasis added. 5·

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Chapter 3: The Gennan Law

escaped was built at all. However, if the UmweltHG was only applicable to damage caused by industrial plants erected after its enactment, this would be an absurd, unintended and most undesirable result. § 23 UmweltHG must therefore be read as follows: The UmweltHG is inapplicable insofar as the damage was caused by an interference in the environment that took place before the UmweltHG was enacted. 129 The UmweltHG is thus also applicable to damage resulting from interferences in the environment caused or continuing after 1st January, 1991 which are due to waste in old and closed landfill sites or other old waste depots. The problem of old waste depots, which often represent a major hazard to the environment and human health (Altlastenproblematik), is therefore not entirely excluded from the scope of the UmweltHG.130 § 23 UmweltHG is a defence to liability under the UmweltHG, so that the burden of proving that the interference in the environment which caused the damage took place before 1st January, 1991 is on the defendant.

IV. Verbandsklage

As far as civilliability for damage caused by waste is concerned, there is no such thing as a Verbandsklage in Gerrnan law. Thus, the situation in Gerrnany is the same as in England, where common interest groups do not have standing in waste cases either. In Germany, the only rights of common interest groups to take legal action in environmental matters are contained in some Nature Conservancy Acts of the Länder, which are public law statutes. l3l V. Preventive Effect of the UmweltHG The principal purpose of the UmweltHG certainly is to compensate the plaintiff and to provide thereby the money necessary to repair the environment. Höwever, it must also be asked in how far the UmweltHG contributes to the prevention of environmental pollution by providing an incentive for potential defendants to take precautions in order to avoid liability. The preventive effect 129 Similarly, but unclear Landsberg/Lülling, p. 276; aliter Schmidt-Salzer, VersR 1991, at p. 17, who is of the opinion that the UmweltHG is inapplicable if the last act causal for the damage took place before the UmweltHG was enacted. For the consequences of this approach, see the following footnote.

130 Aliter Schmidt-Salzer, VersR 1991, at p. 17. However, if his approach (see previous footnote) was adopted by the courts, the UmweltHG would not provide any incentive for the clearing up or mending of old waste depots (Altlastensanierung). 131 See, e. g., § 36 Hessisches Naturschutzgesetz.

H. Miscellaneous Topics

69

of the UmweltHG depends on the extent to which the liability it imposes is insurable, as the following outline shows. As to the insurability of liability under the UmweltHG, there are, in theory, three basic possibilities, between which, however, there are infinite gradations, as we are going to see soon. The first possibility is that the insurance of liability under the UmweltHG is not particularly problematic, i. e. that substantial improvements of the plant for which insurance is sought are not necessary to make the plant insurable (case 1). This means that the increased risk of liability brought about by the UmweltHG need not be compensated by a modernization of the plant in question, but can be compensated by an increase in the price of the policy. Because of the tremendous sums necessary to modernize industrial plants to reduce their impact on the environment,132 it would in this case regularly be cheaper for the operator of a plant to buy an insurance policy for his plant rather than to modernize it, even if the price of the policy had risen considerably. There would thus be no incentive for the operator of a plant liable under the UmweltHG to reduce its emissions and waste production and to improve its safety, so that the pollution proceeding from the plant would continue as before. The second possibility is the following: The risk of liability created by the UmweltHG is not insurable at all, i. e. neither an increased insurance price nor a modernization of the plant to be insured can compensate the increased risk of liability (case 2). The fact that he would have to pay hirnself for any damage caused by his plant would certainly be a considerable incentive for a person liable under the UmweltHG to make his plant safer in order to avoid liability. However, the modernization of his plant would not bring hirn the advantage of being able to insure it. It is to be feared that, in view of this fact, many operators of plants would not modernize, for the economic disadvantage of investments in new machines and installations would not even partly be balanced by the economic advantage of being able to shift the risk of liability onto an insurance company. Without a modernization of the emitting plants, however, the protection of the environment would not be improved in this case either. The third possibility is that in respect of the risk of liability created by the UmweltHG, only the most modern plants are insurable, i. e. that the increased risk of liability cannot be compensated by a higher insurance price, but by a modernization of the plant for wh ich insurance is sought (case 3). This would produce a strong incentive for operators of plants liable under the UmweltHG to 132 For instance, the German chemical industry estimated in 1991 that DM 2 billion would have to be spent annually to comply with the public law prescriptions on environmentaI protection which were enforced in 1993-94. The biggest German chemical producer, BASF in Ludwigshafen, expected costs of DM 300 million annually (F. A. Z. of6th November, 1991).

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Chapter 3: The Gennan Law

reduce the emissions of their plants to make them insurable. For the environment, this would be the most advantageous situation. It must be noted, however, that the operator of a plant would only invest in new machines and installations to obtain an insurance policy if the sum assured were reasonably related to his investments. 133 The bigger the share of liability which the insurer is not prepared to cover, the more there is a tendency towards case 2 as described above, i. e. the weaker the incentive gets to modernize the plant. The maximal incentive is therefore reached where an insurer requires the operator of the plant in question to bring it up to date, and at the same time offers a policy for the modernized plant which covers the entire risk of liability to which it is exposed. This ideal situation, however, is not likely to occur in practice. Which is, then, the situation in Germany in practice? According to recent reports in the press,134 only those operators of plants can ins ure their liability under the UmweltHG who "update technology and management in respect of environmental protection"135 and who substantially reduce the risks created by their plants "by altering the manufacturing process or using less hazardous substances". The reaction of the German insurance market to the new liability imposed by the UmweltHG thus seems to come close to the ideal situation of case 3. However, as the sums assured as offered by the insurance industry are often rather limited, 136 there is also a strong tendency towards "case 2". Banks, too, more and more take into account the risk of industrial plants for the environment and their insurability before granting them a loan. Such market mechanisms probably protect the environment much more efficiently against industrial emissions than controls prescribed or carried out by the state. But they can also effect amigration of industries to countries where as strict a liability as imposed by the UmweltHG does not exist. 137 In the following chapter, therefore, it will be asked to what extent the proposed EC-Directive would harmonize the standard of civil liability for waste within the Common Market.

133 Including the insurance premium. 134 "Der Spiegel" 39/1993, pp. 135 - 141 135 This applies in particular to waste disposal depots and incinerators. 136 See section H. 11., above.

137 As regards waste, however, the danger of migration mainly exists in respect of wuste producing industries and hardly in respect of wuste disposers, because the export of wuste is subject to severe restrictions.

Chapter 4: The Proposed EC-Directive on Civil Liability for Damage Caused by Waste A. Introduction So far, the law of England and of Gennany on civil liability for damage caused by waste has been outIined as it stands now. There might, however, be changes in nationallaw when the now Proposed EC-Directive on Civil Liability for Damage Caused By Waste is adopted and must be complied with by the Member States. The original Proposal for the Directive, dating from 15th September, 1989,1 was later substantially amended. The amended Proposal, dating from the 27th June, 1991,2 will be discussed in this chapter. 3 The question will be what impact the Directive, if adopted, will have on the national laws of England and Gennany in practice, i. e. what changes it will bring about for the plaintiffs and defendants in waste cases as weil as for the economy and the environment. It will also be asked what impact an implementation of the Directive will have on the "machinery of justice", i. e. whether it will be easier or more complicated for the courts to deal with waste cases under the Directive.

B. "Exclusivity" of the Directive Once it is adopted, the Directive is binding for the Member States, i. e. they must comply with the Directive by making their law conform to it. Thus, where the Directive imposes Iiability, the law of the Member States must, after implementation of the Directive, also impose liability. But what happens where the Directive, within its scope as determined by Art. I, does not impose Iiability? 1 0.1. 1989 C 251, 3. 2 O. J. 1991 C 192,7. 3 A synopsis comparing the amended to the original Proposal of the Directive can be found in Appendix 111, be1ow.

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Chapter 4: The Proposed EC-Directive on Civil Liability for Waste

Do the Member States, to make their law conform to the Directive, have to deny any civil liability for damage caused by waste where the Directive does not provide a remedy? This would certainly go too far. The only sensible construction of the Directive is that where there is no liability under the Directive,4 there may still be liability under other applicable law. Most regrettably, the Directive does not contain a c1ause to the effect that it is without prejudice to other (national) rules of law imposing liability in waste cases, but for the following outline it is assumed that it is without prejudice to existing rules of liability.

C. Strict Liability I. No-fault Liability Art. 3 (1) of the Directi ve imposes on the waste producer5 a ci vii liability for damage6 caused by waste "irrespective a//ault an his part". What changes will this bring about in the nationallaw of England and Germany? As to Germany , there already are several rules wh ich can be applied to waste eases and which do not require fault on the part of the defendant: § 1 UmweltHG, § 22 WHG, § 906 11 2 BGB and § 14,2 BImSchG. In England, the situation is more complex: First, the law of negligence is obviously fault-based,7 although it can be made considerably stricter if the burden of proof of fault is reversed as a result of an application of the maxim of res ipsa laquitur. 8 Secondly, where an injunctian is sought under the law of nuisance, fault is not at issue, for onee the defendant knows that the plaintiff wants hirn to stop the alleged nuisance, and the defendant allows it to continue, he acts deliberatly anyway. Where damages are claimed in nuisance, "foreseeability of damage of 4 Strictly spoken, there cannot be liability under the Directive itself. but only under national rules of law implementing it. Therefore, where. for reasons of convenience, the expression "liability under the Directive" is used in this chapter, it must be read as "liability under such national law as implements the Directive". 5 And, subject to certain conditions, on the waste carrier.

6 Or "impairment of the environment". 7 And the statutory duty imposed on the defendant by section 34 (1) of the Environmental Protection Act 1990 in principle confirms this standard of liability. 8 However, the German Kupolofen-case shows that such a shift of the burden of proof does not remove the requirement of fault.

C. Strict Liability

73

the relevant type" is aprerequisite of liability.9 The same applies to the rule in Rylands v. Fletcher: It must have been foreseeable to the defendant that the things kept on his land might if they escaped cause damage. 1O It need not have been foreseeable to the defendant that the things would escape. Liability under the rule is therefore strict in the sense that negligence on part of the defendant in respect of the occurrence of the escape of things from his land is not required. Thirdly, liability under section 73 (6) of the Environmental Protection Act 1990 is fault-based, too, but with the burden of proof on the defendant (section 73 (7)).1I But if the defendant knew what he was doing and nevertheless comrnitted an offence, he will almost always have been at fault automatically.12 Finally, we have seen that strict liability under section 2 of Part I of the Consumer Protection Act 1987 will in practice hardly playa role in waste cases. From this outline the following conc1usions can be drawn: First, in Germany, the standard of no-fault liability to be established by the Directive has already been reached by several statutory provisions,13 whereas in England the standard of liability applicable to waste cases will in any case be stricter after an implementation of the Directive into national law. Secondly, the Directive will in waste cases deprive the English law of its flexibility that proceeds from the possibility of reversing the burden of proof or not as weil as from the possibility to deny under the law of negligence a duty of care for policy reasons. Thirdly, even if one assumes that existing English law, through reversal of burden of proof etc., achieves in many waste cases the same results as the Directive, the Directive will in such cases bring about an important improvement: If existing law says fault, but means strict liability, this amounts to a legal fiction, whereas the Directive, although it might not change the results, will at least have the effect that the reasons given by the courts will be c1earer and more honest.

11. Compliance with Public Law The strictness of civil liability also depends on what defences are available against it, and we have already seen that under national law, the defendant's compliance with public law prescriptions applicable to his activity plays an 9 Cambridge Water Co. Ltd. v. Eastem Counties Leather pIe. [1994]1 All ER 53, 72, per Lord Goff. 10 Ibid., at p. 76.

11 The role in Rylands v. Fleteher, in combination with the defence of statutory authority, can have the same effect: See Chapter 2, C. IV., above. 12 These principles also apply to liability for trespass. 13 In particular by § 1 UmweltHG.

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Chapter 4: The Proposed EC-Directive on Civil Liability for Waste

important role in this context. English and German law differ in this respect as follows: In England, a defendant who operates his plant within the terms of his licence will under the law of nuisance have the defence of statutory authority in the absence of negligence on his part, and where the law regards the standards set by public law as "absolute", the fact that what the defendant did was done in full compliance with them automatically means that he was not negligent in doing it. In Germany, the situation is different: First, an activity wh ich is licensed under public law may nevertheless be unlawful under § 906 BGB, wh ich does not require fault. Secondly, licences granted under the WHG for water polluting activities are nowadays of a kind that does not exc1ude strict civilliability under § 22 WHG.14 Thirdly, compliance with public law is, in principle, irrelevant to liability under the UmweltHG, although §§ 5; 6 11 UmweltHG substantially privilege "Iawful" conduct. 15 Therefore, under German law, the defendant's compliance with public law cannot in principle exempt hirn from civil liability for damage caused by his waste, even where he was not at fault. As the English and the German law differ in this point, it must be asked whether the Directive will remove these differences. What does the Directive say about compliance with public law? While it does not expressly state that compliance with public law is irrelevant to liability under Art. 3, it does not contain a defence of statutory authority or something similar either. 16 It therefore seems that compliance with public law cannot absolve from liability under the Directive, the sole exception being the waste producer's exemption from liability where he legally transferred the waste to a licensed disposal plant (Art. 2 (2)(c». However, according to Art. 4 (1) "the national laws of the Member States shall determine", inter alia, the remedies that shall be available under the Directive (Art. 4 (l)(b». This formula apparently means that under Art. 4 (1), the Member States have more freedom to regulate details than when implementing into their national law other parts of the Directive. They are thus probably free to establish defences to the remedies, and we shall see soon that particularly in respect of injunctions the bold rules of liability of the Directive make it even necessary that certain defences should be available to the 14 LandsbergILülling, pp. 320 - 321 15 As to the effect § 6 II UmweltHG will have in practice, see the last paragraph of this

subsection, below.

16 On the contrary, Art. 6 (2) provides that the waste producer is not relieved of liability under the Directive "by the sole fact that he holds a pennit issued by the public authorities".

D. Definition of Waste

75

defendant. 17 If, however, the Member States are free to establish defences against the remedies available under the Directive, nothing will prevent English law from establishing a general defence of statutory authority against liability for damage caused by waste. This means that the rule impliedly contained in the Directive that it also extends to conduct permiued by statute will be undermined by Art. 4 (1). It also means that because of Art. 4 (1), the Directive will not change anything in national law as far as compliance with public law is concerned and that English and German law will in this respect not be harmonized. For as the freedom given to the Member States to regulate the rules on remedies in detail is expressly stated by Art. 4 (1), whereas the Directive is silent on the point of compliance with public law, Art. 4 (1) will prevail. As to Gennany, a further point must be added: We have seen that because of

§ 6 11 UmweltHG liability under the UmweltHG will in most cases de facta be

limited to activities contravening public law. The Directive will not improve this either, for according to Art. 4 (1)(c) the Member States are also free to determine the standard of proof of causation in waste cases. 18

D. Definition of Waste I. Tbe Framework Directive

The notion of waste employed by the Directive is defined in Art. 2 (1)(b) by reference to Council Directive 75/442/EEC,19 the Community's framework Directive on waste. In the original Proposal for a Directive on civilliability for damage caused by waste, the definition of waste was restricted to Art. 1 of the framework Directive and was thus, similarly to the notion of waste used in this book, very broad, for according to Art. 1 of the framework Directive, waste is "any substance or object ... which the holder discards or intends or is required to discard". Under the amended Proposal, however, reference is made to the framework Directive as a wh oIe, so that the exclusions of Art. 2 (1) of the framework Directive now apply.20 These exclusions are numerous and impor17 See seetions F. H. 2.; F. III. 1., below. 18 See also section G. 1., below. 190] No L 194, 25.7.1975, p. 39, now arnended by Council Directive 91/156/EEC of 18 March 1991 (0] 1991 L 78,32).

20 Compare the notion of waste defined by section 75 (2) of the English EnvironmentaI Protection Act 1990, which covers all substances, "whether in solid or liquid form or in the form of agas or vapour" (section 29 (11) of the Environmental Protection Ac! 1990).

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tant,21 but also imprecise 22 and, most of a11, lack any practical justification. 23 Their gravest consequence will be that the plaintiffs will in many waste cases be left to existing nationallaw. In England, this will mean that in these waste cases there will be no strict liability, so that the chances that the money necessary to repair the harm to the environment will be provided are reduced. In both England and Germany, the exceptions provided by Art. 2 of the framework Directive will have the effect that in a11 waste cases exc1uded there will be no liability for an "impairment of the environment" caused by waste (Art. 2 (1)(d) of the proposed Directive), that common interest groups will not have any standing in civil proceedings (Art. 4 (3) of the proposed Directive) and that the national legal systems will not be harmonized within the EC. As a result of the exc1usions listed in Art. 2 (1) of the framework Directive, the scope of the proposed Directive will be very limited, for it does not only single out waste, but solid waste 24 from a11 possible soure es of environmental damage. In this the proposed Directive is in sharp contrast to the German UmweltHG as weil as the "old" national law, such as the English law of nuisance and § 906 BGB, wh ich firstly cover a11 sorts of physical phenomena and secondly do not distinguish between damage caused by waste and damage caused by useful things. Indeed, one fails to see why damage caused by petroleum waste should be subject to strict liability while damage caused by crude oil is not. In the discussion about the proposed Directive the question has often been raised whether waste should be singled out at all. 25 The oil example is a strong argument for answering the question in the negative.

11. Occupational Activity

A further restrietion in the notion of waste employed by the Directive is contained in Art. 1 (1), which provides that the Directive only covers "waste

21 The most important ones being gaseous emissions and sewage. 22 For according to Art. 2 (1 )(b) of the framework Directive, some types of waste are only

excluded insofar as other legal provisions already apply to them. However, it remains unclear whether the framework Directive means national legal provisions or such being Community law, and, in either case, which of them are meant.

23 See von WilmowskylRoller, p. 10; Report, p. 29. However, one must admit that if the Directive was extended to cover gaseous emissions, sewage etc. as weil, the system of persons liable as envisaged by the Proposal would be rendered unworkable, for it is suited to the management of solid waste. 24 Including liquid waste not being sewage (Art. 2 (1 )(b)(iv) of the framework Directive). 25 See von WilmowskylRoller, pp. 9 - 10; Report, pp. 14,29.

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generated in the course of an occupational activity". 26 But what will happen if household waste and industrial waste are deposited in the same landfill site and pollutants escape from there and cause damage? Will it not in many cases be impossible to say from which waste the pollutants escaped?27 And is it really desirable and justifiable that it should for the operator of the landfill site be a "defence" against liability under the Directive to show that the damage was caused by the household waste?28 Thus, whereas it certainly is necessary to excIude private households from the scope of the Directive,29 this example shows that not a type of waste, but certain potential defendants, namely private households, should be excIuded. Art. 2 (l)(a) of the proposed Directive requires that a waste producer must have produced his waste "in the course of a commercial or industrial activity" to be liable under the Directive. This requirement, however, gives rise to considerable problems in respect of waste generating activities of the state and public authorities. "Does a hospital run by a church or a city, a waste incineration plant run by a county, a cIeanup of a contaminated site performed by public authorities, a chemical research laboratory of astate university, or a military installation run by the central government qualify as a commercial or industrial activity?"30 Here, the Directive will bring about great uncertainty. Again, it would be better to excIude private households from the scope of the Directive than to attempt positively to define the liable persons. 31 An alternative would be a list like that contained in Appendix 1 to the German UmweltHG, of which the advantage is that it is much more precise, so that potential defendants exactly know their liability and can thus caIculate and insure their risk of being held liable.

26 Note the tenninologicaI confusion created by Articles I (I) and 2 (I )(2) of the proposed Directive, where three different terms (occupationaI, commerciaI and industriaI) are employed to describe the same thing. 27 This problem would, for instance, not arise under section 75 (4) of the English EnvironmentaI Protection Act 1990, for there the notion of "controlled waste" covers household, industriaI and commerciaI waste. 28 See von WilmowskylRoller, p. 22, outlining that the injury potential of household waste is not necessarily lower than that of industriaI waste. 29 von WilmowskylRoller, p. IS 30 von WilmowskylRoller, ibid. 31 A suggestion being that a "producer"

should be "any person who, in the course of any activity not constituing private use or consumption, produces waste"; von WilmowskylRoller, p. 16.

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III. Damage Caused by Waste Disposal

Art. 3 of the proposed Directive imposes on the defendant civil liability for damage caused by waste, but fails to determine how close the relationship between damage and waste must be. If, for instance, solid waste is burnt in an incinerator and the incinerator's toxic emissions proceeding from this waste cause damage, is this damage caused by the solid waste and thus covered by the Directive, or is the damage caused by the gaseous emissions of the incinerator, which are according to Art. 2 (l)(a) of the framework Directive excluded from the scope of the proposed Directive? Here, too, some clarification is urgently needed. 32

IV. Conclusions

We have now seen that the Directive, as it stands now, gives rise to many difficult questions of fact: Was it waste or not that caused the damage? Was the waste solid or not, or liquid but not sewage? Did it arise from an occupational activity or not? And was the damage caused by the waste or its disposal?33 All this will result in endless debates before the courts, will render the evidence to be produced by the parties more expensive, and will effect an increase in proceedings brought, for the parties will often disagree on these points and will thus not be able to setde the matter without a trial. It must be noted that these problems do not arise under the German UmweltHG. It is therefore most doubtful whether it makes sense that the Directive singles out waste as a starting point for strict civil liability. The only argument in favour of singling out waste, which must otherwise be regarded as arbitrary, seems to be that the proposed Directive will serve as a model for further Directives covering other sources of environmental damage. 34 But then, one must fear that the terminological confusion will be even greater. It appears that a generaliiability for environmental pollution, like under the German UmweltHG, or a liability for specified hazardous substances would be a more efficient compensation scheme.

32 von Wilmowsky/Roller, p. 17 33 The latter question will, of course, only arise if the courts draw such a distinction.

this might weil happen, as the previous paragraph shows.

34 von Wilmowsky/Roller, p. 9

However,

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E. Persons Liable I. System of the Directive The system of potential defendants established by the Directive is somewhat complicated. Art. 3 (1) imposes liability on the waste producer and, subject to certain conditions, also on the waste carrier. Art. 2 (1)(a) defines who shaIl be regarded as a waste producer for the purposes of the Directive and distinguishes between persons who produce waste, who will for our purposes be caIled original waste generators, and persons who carry out operations resulting in a change in the nature or composition of waste, who will be caIled secondary waste generators. It seems to be intended that the original and secondary waste generator as weIl as the waste carrier shaIl be jointly and severaIly liable. 35 Art. 2 (2) of the Directive enumerates certain persons 36 who shall, subject to certain conditions, be liable in place 0/ the waste generators as defined in Art. 2 (l)(a). This means that under certain conditions the waste generators' liability is terminated and replaced by the waste importer's, the waste possessor's or the waste disposer's liability. The conditions of such areplacement of liability are - with respect to the waste importer, that the waste was not previously exported from the EC or, if it was previously exported, that its nature or composition was substantiaIly changed prior to its reimportation; - with respect to the waste possessor, that he is not able to identify the waste generator; and - with respect to the waste disposer, that the waste disposer is licensed and that the waste was lawfuIly transferred to hirn. As the original waste generator and the waste disposer are the most important links in the waste chain, their liability will now be looked at more closely.

11. Liability of the Waste Disposer The liability of the waste disposer as envisaged by the Directive suffers from three major flaws. First, for reasons which have been outlined in the previous section of this chapter, the exemption of disposers of household waste from

35 Salje, Der Betrieb 1990, 2053, 2054 36 Which we shall call quasi-producers.

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liability under the Directive is unjustifiable, unworkable in practice and, as far as Gennany is concerned, incompatible with the UmweltHG. Secondly, considerable confusion proceeds from the fact that many, if not all, waste disposal plants will qualify as secondary waste generators as defined by Art. 2 (l)(a).37 These waste disposers will not replace the original waste generator as the liable person, but be jointly and severally liable with hirn. This would be a legal novelty both in England and Germany, for at present, the waste disposer is in both countries generally liable alone for damage proceeding from his plant, the sole exceptions being cases where the waste generator negligently failed to select the waste disposer properly, or where the waste generator set a cause for the damage that was still effective after the waste was transferred to the disposer (legal cause). However, whether the Directive will bring about this substantial change in the national law of England and Germany will depend on the construction of Art. 2 (l)(a), which will be strongly influenced by the fact that, in view of Art. 2 (2)(c), to consider the waste disposer as secondary waste producer was most probably not intended by the Commission. 38 Thirdly, the Directive only imposes liability on licensed waste disposers to whom the waste was lawfully transferred. The somewhat curious consequence of this is that a waste disposer escapes liability under the Directive if he can show that he does not hold a licence or that the waste was not lawfully transferred to him. 39 Where a disposer is unlicensed although a licence is required by law, it is almost absurd that he is not liable under the Directive. 40 Where he is licensed, but the waste was not lawfully transferred to hirn, one fails to see why he should be relieved of liability under the Directive save in cases as covered by Art. 7 (1). Thus, there is an important gap in the system of liability of the Directive.41 In Gennany, this gap will be filled in many waste cases by strict liability imposed on the waste disposer under the UmweltHG. In England,

37 For does not any landfill plant mix and thus change the composition of the waste deposited there? And does not any incineration of waste change its nature? 38 See von WilmowskylRoller, p. 21 39 Unless he is regarded as a secondary waste generator according to Art. 2 (l)(a), which is, as we have just seen, unlikely. 40 See von WilmowskylRoller, p. 22. 41 The Commission apparently intended partly to fill this gap by way of Art. 14 of the amended Proposal for a Council Directive on Landfill of Waste, OJ 1993, C 212, p. 33. Art. 14 would impose on the operator of a landfill site a no-fault civilliability for damage and impairment of the environment caused by the waste kept in his plant. It is, however, wholly unsatisfactory that this provision leaves the definition of the scope of such liability, of the defences available against it etc., entirely to the discretion of the Member States. There is also no reason why the Community rules on civilliability for waste should be placed in different Directives.

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however, the waste disposer will in such cases only be liable under fault-based law. The Directive should therefore be amended in this respect.

III. Liability of the Original Waste Generator In principle, there are two different approaches to the waste generator's liability. According to the first approach, the waste generator is relieved of strict liability once he lawfully transfers the waste to the next person in the chain, i. e. the carrier or the disposer (qualified possessory liability). According to the second approach, the waste generator continues to be strictly liable also for incidents occurring during transport and disposal even where these operations are carried out by independent contractors to whom the waste was lawfully transferred (continuing generator liability).42 The Directive as it stands now takes an intermediate approach, extending the waste generator's liability to the phase of transport,43 but disrupting it in the cases of Art. 2 (2)(a),(b) and (C).44 Art. 2 (2)(a) exempts original waste generators from liability under the Directive if they produce their waste outside the EC. It is, however, doubtful whether it is desirable that persons who export hazardous waste to the EC are relieved of liability under the Directive. Art. 2 (2)(b) has the undesirable effect that it provides an incentive for waste generators to contract with ill-organized transporters and disposers. 45 However, what impact will paragraph (c), the most important provision contained in Art. 2 (2) of the Directive, have on the nationallaw of England and Germany? We have seen that both in England and Germany the waste generator's liability continues beyond the moment he loses possession of the waste in two types of cases, namely (1) if the waste generator set a cause for the damage that continued to be effective after the transfer of the waste (legal cause), and (2) if he negligently selected an unreliable waste disposer (or carrier). The Directive will, first of all, extend this continuing generator liability to all cases of unlawful waste transfer. But it will also have an important and twofold impact on cases of type (2): On the one hand, if a waste generator is to be held liable under existing national law for an escape of his waste from an independent disposal plant, the 42 See von WilmowskylRoller, pp. 26 - 27 43 For an incident occurring during transport,

jointly and severally liable.

the generator and the carrier will apparently be

44The carrier's liability should also be disrupted then (von WilmowskylRoller, p. 25).

45 von WilmowskylRoller, p. 29 6 Pappel

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plaintijf must show negligence on the part of the waste generator, whereas under the Directive the generator must prove that the waste was lawfully transferred to a licensed disposal plant to escape liability. This is an important revers al of burden of proof in favour of the plaintiff.

On the other hand, it must be noted that a waste disposer may be formally licensed, and that the transfer of the waste to hirn may have been lawful, but that this does not automatically mean that the waste disposer is reliable, for he might carry out the disposal unlawfully. Under existing English and German law, the waste generator is liable for the damage caused by his waste even after it was transferred to an independent disposal contractor if the waste generator knew or ought to have known that the waste disposer was unreliable, irrespective of whether the disposer held a licence and whether the transfer of the waste was lawful. The waste generator may thus be liable even though the disposer was licensed and the waste was lawfully transferred to hirn. Such liability of the waste generator is impossible under the Directive. From the point of view of the victim and the environment, this is, compared to existing national law, a step back and underlines the necessity of a provision in the Directive according to which it is without prejudice to other rules of law imposing liability in waste cases. If, as we have just seen, the Directive falls in some respects behind the results achieved by national rules of law with regard to continuing generator liability, it must be asked whether it would not be better if the Directive established a general continuing generator liability against wh ich the defence of lawful transfer of the waste to a licensed disposer would not be available. The concepts of a general continuing generator liability and of a qualified possessory liability as envisaged by the drafted Directive will therefore briefly be compared to each other.

Where waste is disposed of illegally, i. e. where waste is not lawfully transferred to a licensed disposer, both concepts arrive at the same result: 46 Both the waste generator and the waste disposer will be jointly and severally liable for the damage caused during disposal. As there will not be any insurance cover available for illegal waste disposal, both concepts will provide a strong incentive for both waste generators and waste disposers to dispose of waste lawfully. However, where waste is lawfully transferred to a licensed disposer, the two concepts arrive at different results. Let us, first of all, define the period of time

46 Provided that tbe Commission removes from the Directive the wholly unacceptable flaw that waste disposers who are not licensed altbough tbey should be, or to whom waste was illegally transferred, are not liable under the Directive.

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during which the waste is in possession of the waste generator or carrier as phase I, whereas the period of disposal will in the following be called phase 2. Under the proposed Directive, only the waste disposer must insure phase 2. This will lead to an increase in the prices for waste disposal, and as these prices are linked to the amount and dangerousness of the was te to be disposed of, this will constitute an incentive for the waste generator to produce less (dangerous) waste. Under a system of continuing generator liability, both the waste generator and the disposer must insure phase 2, and they must both insure the juli risk of being held liable, for as they are jointly and severally liable, each of them must guard against being sued for the whole sum of damages. The waste generator must therefore pay for his own insurance cover as weIl as for the higher dis pos al costs, so that the prices for his products will, compared to his financial situation under the Directive, increase twice. This represents, of course, a double incentive for the waste generator to produce less waste. It is obvious that the second concept is more advantageous for the plaintiff, because he can choose between two defendants. It is also better for the environment, for two defendants are a better guarantee that compensation is made and thus the money for repairing the environment is provided, and the preventive effect of the second concept is, compared to the Directive, higher. But it is economically inefficient to insure the same source of danger twice, and this inefficiency would adversely affect the competitiveness of the products of many waste generating industries. It therefore appears that the Directive, by providing at least some incentive to reduce the production of waste on the one hand and by avoiding the inefficiency of a double insurance cover for phase 2 on the other hand, strikes a better balance between ecology and economy.

In Germany, the UmweltHG, which also imposes a strict liability on the waste disposer, should at least in theory already have brought about an increase in waste disposal prices. Given that this is true, the Directive will in Germany not change a lot in this respect. In England, however, the Directive would introduce astriet liability of the waste disposer into the law. It therefore seems that in case of an implementation of the Directive into English law, English waste generators will have to face higher waste disposal priees, wh ich will, to the benefit of the environment, put them under a higher pressure to reduce their waste production.

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F. Remedies and Plaintiffs I. System of Remedies and Plaintiffs as Envisaged by the Proposed Directive According to Art. 4 CI )(b), the following remedies shall be available to plaintiffs under the Directive: First, a plaintiff may claim compensation for the damage suffered (Art. 4 (l)(b)(i)). Secondly, he may seek an injunction against any conduct causing such damage (Art. 4 (l)(b)(i)). Thirdly, he may seek an injunction against any conduct causing an "impairment of the environment" (Art. 4 (l)(b)(ii)). In the fourth place, he may demand an injunction ordering the reinstatement of the environment or the reimbursement of costs lawfully incurred in reinstating the environment (Art. 4 (l)(b)(iii)). And in the fifth pi ace, he may demand an injunction ordering the execution of preventive measures or the reimbursement of costs lawfully incurred in taking preventive measures (Art. 4 (l)(b)(iii)). This system of remedies is based on the distinction between "darnage" on the one hand (Art. 2 (l)(c)) and "impairment of the environment" on the other (Art. 2 (l)(d)). As the notion of "darnage" covers both personal injury and damage to property (Art. 2 (l)(c)), whereas an "impairment of the environment" is only such harm not being "darnage" (Art. 2 (l)(d)), the notion of "impairment of the environment" is very narrowly confined to harm caused to unowned parts of nature. 47 This artificial distinction between harm caused to owned and unowned parts of nature does not match the reality of environmental harm. This is illustrated by the following case: A piece of land is contaminated by waste. The land is economically valueless, but ecologically precious, for it serves as a breeding ground for many birds. Here, the part of the property damage that represents an economic loss to the landowner, i. e. the diminution in value of the property, is very small. But the non-pecuniary loss consisting in the loss of the biotope is high. It is non-pecuniary because it does not diminish the plaintiffs assets, but it can nevertheless be expressed in terms of money, the sum being determined by the repair costs. Thus, property damage often has both an economic and an ecological aspect, or, in other words, ecological damage is not confined to unowned parts of nature.

470f which there are only few types, such as water in undefined channels (e. g. the groundwater), wild animals (including microorganisms), the open sea and the ambient atmosphere: See Report, p. 15; LandsbergILülling, pp. 36 - 37.

F. Remedies and Plaintiffs

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In Gennany, the notion of ecological damage therefore extends to harm to owned parts of nature,48 and accordingly § 16 UmweltHG provides that property damage recoverable under the UmweltHG may include non-pecuniary ecological damage. In England, section 29 (5) of the Environmental Protection Act 1990, which defines the notion of "harm" caused by waste, does not distinguish between harm to owned and unowned parts of nature. Moreover, under English law, too, there have been cases of damage to property where the cost of repairs was awarded although it exceeded the diminution in value of the property.49 Because of Art. 4 (4) ofthe Directive, the German idea that property damage may include non-material ecological damage can be upheld under the Directive. As ecological damage done to owned parts of nature is thus included in the notion of "damage", it seems at first sight that all kinds of economic and ecological damage are covered by the Directive. However, the following subchapters will reveal considerable gaps. The proposed Directive does, with the exception of common interest groups (Art. 4 (3)), not expressly mention the persons to whom the remedies provided for by Art. 4 (l)(b) should be available. In Art. 4 (3) of the original Proposal, the state, too, was expressly given civil litigation rights. As this provision has been abolished now, one could think that the idea of litigation rights for the state under the Directive has been given up. However, Art. 4 (3) of the original Proposal has been replaced by Art. 4 (1)(a) of the amended Proposal. According to this provision, the Member States are free to determine the persons who may take legal action under the Directive. Therefore, it is still perfectly possible for a Member State to vest civillitigation rights in the state. Moreover, Art. 4 (l)(a) expressly entitles the Member States to detennine the persons who may sue in respect of impairments of the environment. In view of the wording of Art. 4 (3) of the original Proposal,50 this, too, strongly indicates that litigation rights for the state have not been ruied out by the amended Proposal. But whereas the implementation in nationallaw of such litigation rights was mandatory under the original Proposal, it is discretionary under the amended version.

48 See Rehbinder, NuR 1988, p. 105 49 See, e. g., Ward v. Cannock Chase D. C.

[1985] 3 All E. R. 537, where, however, the award of the cost of reinstatement was due to the "exceptional" circumstances of the case (ibid., at p. 558, per Scott J.).

50 "As regards injury to the environment, ... "

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For the purpose of the following outline, it is therefore assumed that the victim, the state51 and common interest groups can be plaintiffs under the Directive. According to Art. 4 (l)(b), all remedies shall be available to all plaintiffs. The problems arising therefrom will be discussed in the subchapters below.

11. Remedies A vailable to the Victim

1. Remedies in Respect of "1mpairment ofthe Environment"

The first question that arises in the context of remedies available to the victim under the Directive is whether those remedies that apply to "impairment of the environment"52 should be made available to the harmed individual at all. Let us assume a case where waste causes damage to a piece of land which is a breeding ground for birds. On the one hand, it seems sensible and necessary that the plaintiff should not only be able to claim restitution in kind in respect of the soil and the plants forming part of his land, but that he should also be able to demand of the polluter that the birds, which are wild animals, be cleaned. 53 On the other hand, claims of private individuals for reinstatement of unowned parts of nature should be restricted to repairs to be carried out and concerning things on the plaintiffs land; otherwise, not only the state and common interest groups, but everybody would under the Directive have standing in respect of any impairment of the environment.

2. Prohibition

Art. 4 (l)(b)(i),(ii) rather boldly provides that the plaintiff may under the Directive without more obtain an injunction against any conduct or activity that has caused or may in the future cause damage or an impairment of the environment. This goes too far insofar as the prohibition of lawful or even licensed activities as weil as quia timet injunctions are concerned,54 but as, according to 51 Including, of course, local and regional public authorities. 52 As to the question to what kind of harm the remedies available under Art. 4 (I )(b )(iii) of the

proposed Directive apply, see subsections 3. and 4., below.

53 Which Art. 4 (I)(b)(iii) of the Directive calls "reinstatement of the environment"; see subsection 4., below. ~ von WilmowskylRoller, pp. 69 et seq.

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Art. 4 (1), the remedies available to the plaintiff shall be determined by the national laws of the Member States, it seems that English and German law will be able to subject the granting of such injunctions to further conditions, such as the defence of statutory authority or the requirements of §§ 906 BGB; 14 BImSchG.

3. Preventive Measures Art. 4 (l)(b)(iii) leaves it unclear whether it applies to "damage" or "impairment of the environment" or both. In consideration of Art. 4 (1)(d) of the original Proposal, however, it seems that Art. 4 (1)(b)(iii) of the amended Proposal is meant to apply to "impairment of the environment" only.55 In practice, this will have the effect that the victim may claim that preventive measures are taken in respect of wild animals and microorganisms living on his land, whereas he cannot demand measures to be taken to prevent a contamination of the soil itself. 56 The restriction of Art. 4 (l)(b)(iii) to "impairments ofthe environment" thus creates a considerable gap in the protection of the victim under the Directive and renders the remedy of preventive measures practically unworkable. Furthermore, an injunction ordering preventive measures is a quia timet injunction in mandatory form and is therefore very rarely granted under existing English and German law. Of course, quia timet injunctions 57 that order a certain omission for the future will in waste cases often imply that preventive measures are taken, but if particular measures are ordered to abate nuisances that have not even occurred yet, this will amount to a legal novelty both in England and Germany. However, as the bold rule established by the Directive is, according to Art. 4 (1), subject to detailed regulation by the national laws of the Member States, it is likely that under both English and German law severe restrictions will apply to it. It seems that both national legislators as weIl as the courts will see to it that the remedy of preventive measures is not applied without more, for in waste cases it will be extremely difficult for a court to tell the defendant the exact technological details of what he should do, so that the defendant would very easily be in contempt of court.

55 von Wilmowsky/Roller, p. 73 56 It is outlined in the following paragraph that the present English and German law do not

provide a remedy similar to "preventive measures" in respect to property damage.

57 Which can in German law be obtained under § 1004 BGB.

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4. Reinstatement ofthe Environment and Restitution in Kind As we have seen, it is likely that Art. 4 (1)(b)(iii) applies to cases of "impairment of the environment" only.58 It therefore seems at first sight that the Directive contains in respect of the remedy of "reinstatement of the environment" the same gap as with regard to "preventive measures", namely that the remedy is not available in respect of damage to owned parts of nature. This, however, is wrong, for given that the notion of "damage" includes ecological damage to owned parts of nature,59 the plaintiff may in respect of such damage demand restitution in kind, which is de facta the same as a "reinstatement of the environment". The Directive, therefore, does not contain a gap, but, on the contrary and most importantly, extends the already existing principle of restitution in kind to harm to unowned parts of nature. According to Art. 4 (2) of the Directive, claims for reinstatement of the environment are limited by the principle of proportionality.60 This principle is in Germany already contained in §§ 16 UmweltHG, 251 11 BGB and also exists in English law,61 but only in respect of damage caused to awned parts of nature. It is therefore sensible that the Directive, which extends the remedy of restitution in kind to unowned parts of nature, extends the principle limiting this remedy to damage caused to the unowned environment as weil. According to the wording of Art. 4 (l)(b)(iii), a reimbursement of costs of reinstating the environment can only be demanded in respect of past expenses. The advantage of this is that an abuse of damages awarded is prevented, but it will on the other hand in many cases seriously hamper arepair of the environment, for the plaintiff will often not have the money necessary to carry out such expensive repairs. 62 Here, a rule modelIed on § 16 11 of the German UmweltHG63 would provide a better solution. However, the problem that the damages awarded may not be used by the plaintiff for repairing the environment is an important one: Whereas both in England64 and Germany65 a plaintiff who is awarded the cost of repairs exceed58 See subsection 3., above. 59 As is the case in Gennany: See section F. 1., above. 60 The conjunction "and" that links the two conditions contained in Art. 4 (2) must, of course,

be replaced by "or".

61 See, e. g., Lodge Holes Col/iery Co. Ltd. v. Wednesbury Corp. [1908) A. C. 323. 62 In which case his only chance of getting the damage repaired is to have the defendant carry

out the repairs, which the plaintiff will often dislike.

63 Which, of course, applies to damage caused to owned parts of nature. 64 See, e. g., Perry v. Sidney Philips & San [1982)1 W. L. R. 1297, 1303, per Oliver L. J.

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ing the diminution in value of the damaged property must actually use the money recovered for carrying out the repairs, the Directive is silent on this point, both with respect to restitution in kind of property damage and reinstatement of unowned parts of nature. Here, the chance to establish such a rule, which in waste cases is most important for the environment, throughout the EC and to provide for an efficient means to enforce it66 has been missed. A further point where the Directive unfortunately fails to improve existing national law is the problem that where repairs of the environment are not feasible or insufficient or disproportionate, the monetary compensation recoverable by the plaintiff is both in England and Germany at present limited to the diminution in value of the damaged property,67 whereas there is neither monetary compensation for the non-material property damage nor for the damage caused to unowned parts of nature. Although it is difficult to fix a price to such damage in the absence of expenses for repairs,68 it has been suggested that the Directive should fill this gap,69 for this would strengthen the preventive aspect of the Directive, internalize the cost of pollution in market prices, thus enforce the polluter pays principle and have the effect that serious environmental pollution leading to irreversible harm would no longer be privileged. 7o

5. Summary

As to the remedies available to the victim, the Directive relates to existing English and German law in three different ways: First, it makes the new remedy of "preventive measures" available (although not in respect of property damage) and extends the remedy of restitution in kind and the principle of proportionality restricting it to harm caused to the unowned environment. Secondly, national 65 See § 16 UmweltHG.

66 In

Gennany, if the plaintiff does in such a case not use the money for carrying out the repairs, the defendant is left to the law of undue enrichment (§§ 812 et seq. BGB) to claim his money back, which means that he must start another triaI. It has been suggested that such damages should go to the state to ensure their proper use (von Wilmowsky/Roller, p. 77 ).

67 English law could go beyond this limit by awarding exemplary damages, but this is subject to severe restrictions. 68 The law, however, has already coped with similar problems, such as awarding damages for loss of enjoyment of life: von WilmowskylRoller, p. 85. 69 See, e. g., Report, p. 32. 70 von WilmowskylRoller, pp. 83 - 84. The damages awarded as monetary compensation for non-pecuniary property damage and harm to the unowned environment should go to the state (Rehbinder, NuR 1988, 105, 110; Gerlach, p. 292). A further remedy to fill the gap in question would be to oblige the defendant to take "ecologically equivalent measures" where environmental damage cannot be repaired (Report, p. 45, per UKELA).

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law will remain unchanged in respect of remedies available where repairs of the environment are not feasible, insufficient or disproportionate. Thirdly, the Directive even falls short of existing nationallaw in that it does not contain the ideas that the plaintiff should on the one hand be able to claim the cost of reinstatement in advance and should on the other hand be bound actually to use the damages he is awarded for carrying out the repairs.

III. Remedies Available to the State J. Prohibition If the injunctive remedies provided for by Art. 4 (l)(b)(i),(ii) of the Directive are made available to the state, contradictions are likely to occur where certain activities are licensed under public law on the one hand and the state seeks prohibitory injunctive relief against them on the other. Both English and German law will certainly try to avoid such conflicts, and as Art. 4 (1) leaves the regulation of the system of plaintiffs and remedies to the Member States, they will have enough leeway to do so.

Instead of the bold rules contained in Art. 4 (1)(b)(i), (ii) of the Directive, the law will have to distinguish between three types of cases: First, if the defendant's plant is licensed and his activities remain within the terms of the licence, no prohibitory remedy should be available to the state.1 1 Secondly, if the defendant's plant is licensed, but operated unlawfully, measures taken or ordered under administrative law72 may be sufficient and preferable to civil remedies to stop this conduct. 73 Thirdly, where the defendant's plant or activity is wholly unlawful,74 prohibitory injunctions available to public authorities make sense and may be a useful remedy to prevent further pollution of the environment. 75

71 In England, the victim will in such a case not be ahle to obtain an injunction, for the defence of statutory authority will be availahle to the defendant. In Germany, however, a plaintiff may weil obtain an injunction against an activity lawful under public law if the emissions created by the activity are not "customary in this locality" (§ 906 BGB). 72 Like the revocation of the licence.

73 von WilmowskylRoller, p. '82. See, e. g., the variety of measures available to waste management authorities under the English Environmental Protection Act 1990. 74 The illegal deposit of waste (fly tipping) being a good example. 75 However, remedies available to public authorities under administrative law may be sufficient

here as weil: See the following subsection, last paragraph.

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2. Impact ofthe Directive on Repairs of Environmental Damage

To answer the question whether the civil remedies made available to public authorities by the Directive will promote the protection of the environment, one must ask first in which cases parts of the environment are under existing law not sufficiently protected by the interests of private landowners. First, a private landowner might not want to sue for the damage caused to his land because a trial would be too expensive in relation to the economic loss incurred by hirn. But here, a common interest group might help and pay for the trial. Secondly, it may be that the landowner is willing to sue, but not to repair immediately, for he wants the money necessary for the repairs first. Here, however, the rule in Leakey v. National Trusr7 6 as weIl as his duty to mitigate the damage will provide strong incentives for the plaintiff to repair the environment as soon as possible. 77 Thirdly, a landowner might want to sue, but not to repair at all and use the money for something else. In such a case, however, damages exceeding the diminution in value of the property will not be awarded. 78 In the fourth pi ace, it may be that one incident of pollution caused by waste affects many landowners some of who want to sue, whereas others do not. Here, as far as England is concerned, an action of the Attorney-General far public nuisance might help,79 or a relator action may be brought, whereas representative actions give rise to considerable difficulties where some of those to be represented do not wish to be involved. In Germany, several landowners who are aggrieved by the same incident of pollution may join in the same proceedings according to §§ 59 et seq. ZPO. The cost of litigation is thus largely reduced for each of them, which might persuade those who are reluctant to join in as weIl. Moreover, in both countries an injunction obtained by one landowner will in many cases be a remedy for all, and as to damages, a judgment in favour of one plaintiff in a test case may make the defendant compensate all others, too. However, we have already seen that there are waste cases where the owner of the damaged land has caused the damage hirnself, or where he wants to tolerate the pollution caused by somebody else because he has an economic interest in 76 The corresponding role in German law was laid down in BGHZ 65,221,224. 77 See Chapter 2, E. 111.

78 § 161 UmweltHG; Perry v. Sidney Philips & Son [1982)1 79 But only to obtain an injunction.

W. L. R. 1297

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it, or where he does not want to sue simply because he wants to be on good terms with the polluter. In such cases, and, of course, in cases of damage to unowned parts of nature, the existing civillaw is rather helpless. 8o The remedies made available to the state under the Directive, which comprise restitution in kind,81 injunctions ordering preventive measures,82 reimbursement of costs of preventive and restorative measures 83 and prohibitory injunctions,84 will partly resolve these problems, although perhaps more in theory than in practice, for it is doubtful whether new remedies made available to the state can cure its general inefficiency in protecting the environment. 85 In any case, when talking about "civii" remedies available to the state one gets near the borderline between private and public law. If civil law remedies are given to the state because the self-interest of the private individual cannot be relied upon to resolve the problem, one must also bear in mind that for this very reason the state already has many administrative powers and criminal sanctions at its hand to protect the environment. The remedies of injunctions ordering the cessation of unlawful activities or the carrying out of restorative or preventive measures or the reimbursement of past expenses for such measures are, for instance, fully available to waste regulation authorities under the English Environmental Protection Act 1990. 86 Thus, it appears that the remedies made available to the state by the Directive will in practice be rather superfluous, whereas civil remedies which would in the hands of public authorities be new and important weapons to promote environmental protection, e. g. monetary compensation for irreversible non-pecuniary property damage 87 and irreparable damage to the unowned environment, are omitted by the Directive.

80lt must be stressed that we are talking here about gaps within the system of civil remedies applicable to waste cases under existing English and German law: See the following paragraph. 81 Or, in respect of impairment of the environment, "reinstatement of the environment". 82 But only in respect of impairments of the environment. 83 But only for expenses al ready incurred. 84 But probably not against licensed activities: See subsection I., above. 85 See Chapter 2, E. 11. 2. A further problem related to civil law claims brought by the state under the Directive will be that they will often collide with claims brought by the victim himself. To avoid conflicts, claims brought by the state should therefore generally be subordinated to claims brought by the victim: von WilmowskylRoller, p. 90. 86 See, e. g., section 59; sections 79 er seq. The same applies to public authorities acting under the police laws ofthe German Länder. 87Including non-pecuniary property damage of which the repair is disproportionately expensive.

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IV. Remedies Available to Common Interest Groups Common interest groups are the only plaintiffs expressly mentioned by the Directive (Art. 4 (3)).88 The national legislators will therefore not be able to avoid vesting litigation rights in such groups.89 Wehave seen in the previous subsection that the state, which is the first to be in charge of promoting public welfare and protecting the environment, will have numerous litigation rights under the Directive. It has therefore been argued that it is both inappropriate and unnecessary to give the same rights to common interest groups as well. 90 However, we have also seen that the state, although the first to be in charge of the public weal, often is the last actually to take care of it. In many waste cases, therefore, {oeus standi for common interest groups represents the only chance that legal action is taken. The Directive would thus fill an important gap that at present exists in the nationallaw ofEngland and Germany.91 It must be noted, however, that in respect of the German UmweltHG, experience has shown that a strict civil liability for damage caused by environmental pollution is difficult to insure even where litigation rights for common interest groups do not ex ist. The creation of such rights could therefore render the liability imposed by the Directive uninsurable. This would weaken the economic incentive which a strict liability for pollution creates for the modernization of industrial plants,92 and remove the control exercised by insurance companies on potential polluters. The advantages of litigation rights for

88 However, the big question is which groups will have standing. Whereas the first sentence of Art. 4 (3) defines "comrnon interest groups and associations" very broadly, the second sentence pro vi des for conditions to be laid down by national legislation. There is the danger that the conditions laid down according to the second sentence will contravene the wide concept of the first sentence of Art. 4 (3): von WilmowskylRoller, pp. 97 - 99. 89 Claims brought by common interest groups should, however, be subordinated to claims brought by the victim or the state, so that conflicts are avoided (von WilmowskylRoller, p. 107). 90 Medicus, NuR 1990, 145, 154

91 Another argument against locus standi for common interest groups is that they could abuse

their litigation rights by flooding the courts with querulous claims. However, high litigation costs and limited financial and personal resources of environmental associations will prevent such abuse (von WilmowskylRoller, p. 94). As to the danger that compensation payments might be misused by common interest groups, the reimbursement of costs of preventive measures and reinstatement of the environment is under the Directive limited to expenses a1ready incurred, so that there is no such danger here (von WilmowskylRoller, p. 97), and if environmentaI associations obtain damages under Art. 4 (I)(b)(i), the danger of misusing the money is the same as where the victim is awarded the damages himself. In any case, common interest groups should because of the danger of abuse never be able to obtain monetary compensation for irreversible non-material ecological damage to property or irreparable damage to the unowned environment. If such a remedy is introduced in the Directive, the money should a1ways go to the state (von WilmowskylRoller, p. 99). 92 See Chapter 3, H. V.

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common interest groups must therefore be balanced against the danger that they could substantially diminish the preventive effect of the Directive.

G. Causation I. Proof of Causation

Art. 4 (6) of the original Proposal for the Directive required the plaintiff to "show the overwhelming probability of the causal relationship between the producer's waste and the damage".93 This would have been similar to the normal standard of proof in German law, but was amistranslation in the English version of the original Proposal, for what had been intended by the Commission was that causation should be shown on a "balance oj probabilities". 94 This would merely have confirmed the normal standard of proof in England, but would have reduced the general standard of proving causation in waste cases in German law. But how about the UmweltHG? § 6 I UmweltHG provides that causation shall be assumed if the defendant's plant was capable of causing the damage. This can be regarded as a specification of the general principle of "balance of probabilities", for if the defendant's plant was capable of causing the damage in the particular circumstances of the case, it is in most cases more likely than not that the damage was actually caused by this plant. The results produced by § 6 I UmweltHG would therefore have been similar to those achieved under the original Proposal for the Directive.

However, § 6 11 UmweltHG provides that a higher standard of proving causation shall apply to cases where the defendant's plant was operated in accordance with public law. As the original Proposal for the Directive did not provide for such an exception, German law would under the old version of the Directive have got rid of the effects of § 6 11 UmweltHG in waste cases, which would have been an important improvement. Art. 4 (l)(c) of the amended Proposal, however, leaves it to the Member States to determine the standard of proof of causation, so that the rule contained in § 6 11 UmweltHG can be made applicable to liability under the Directive, too. Here, from the German point of view, a good chance to improve the law has been missed.

93 Emphasis added. 94 Report, p. 24, p. 128, per C. de Villeneuve

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95

11. Joint and Several Liability Art. 5 (1) establishes the same role of joint and several liability as already exists in both English and German law and therefore merely confirms national law in this respect. In contrast, the problem of small contributions in cases of cumulative or alternative causation95 and the question whether and when there can be joint and several liability in cases of additive causation96 are not dealt with by the Directive although they call for regulation both in England and Germany. Here, a good opportunity to improve and harmonize nationallaw has been missed.

111. Rights to Obtain Information To prove causation, the plaintiff in a waste case will often need information from within the defendant's sphere. 97 The defendant, however, will in most cases not give this information voluntarily. Thus, whether the plaintiff in a waste case will fail or win will often depend on whether rights to obtain information from the defendant are available to hirn or not. Whereas the German UmweltHG provides for such rights (§§ 8 - 10), the Directive is silent on this point. This has been criticized as a "grave deficiency" of the Directive,98 but the question is whether in waste cases special roles of disclosure are necessary, or whether the matter can be left to the general law of civil procedure of each Member State.

H. Defences Art. 6 (1)(a),(b) and Art. 7 (1),(2) make four defences available against liability under the Directive: The defence of act of a stranger (Art. 6 (1)(a)),99

95 See Chapter 3, F. 11. 96 See Chapter 3, F. III. 97 E. g. about the emissions of the defendant's plant, the substances used or produced there etc.

98 von WilmowskylRoller, p. 63 99 Requiring intention on the part of the third party and thus excluding from its scope negligent acts ofstrangers. Cf Perry v. Kendricks Transpon Ltd.[1956] 1 W. L. R. 85, 90, per Jenkins L. 1.; BOH NJW 1990, 572.

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the defence of force majeure (Art. 6 (1 )(b)), 100 a defence available to "eliminators", i. e. disposers and recyc1ers of waste,IOI where they were deceived by the waste producer as to the true character of the waste that he transferred to them and which then caused the damage (Art. 7 (1)),102 and the defence of contributory negligence (Art. 7 (2)). There may be waste cases where the defendant, e. g. the operator of a waste generating industrial plant, simply cannot help that damage proceeds from his activity, e. g. where waste escapes from his plant as a result of a bomb attack, and where he thus should be exempted from liability. Under a system of nofault liability, defences as provided by Art. 6 (1)(a),(b) and Art. 7 (1) of the Directive are therefore necessary to avoid inadequate results. However, cases where they will be applied will be rare. As we have already seen earlier, the same is true for the defence of contributory negligence. 103

I. Miscellaneous Topics I. Contractual Exclusion of Liability

Art. 8 of the Directive provides that liability under the Directive may not be exc1uded by contract in relation to the injured person, whereas a contractual shift of liability between the liable persons is possible under the Directive. As under existing English and German law liability for damage caused by waste can in principle be contractually exc1uded vis-a-vis the victim (consent), the Directive will change the nationallaw in this respect in favour of the plaintiff.

100 Which will in view of Art 6 (I)(a) probably be limited to acts of God (unlike under German law: See, e. g., BGH NJW 1990,572), a1though the "Comrnunity law" Art. 6 (I)(b) vaguely refers to might provide something different. 101 Art. 2 (1)(0 by reference to the arnended version of Council Directive 75/4421EEC.

102 The Commission apparently regards this as a case where the waste disposer set the

sole effective cause for the damage; accordingly, he a10ne is liable in such a case (Art. 7 (I) at the end). However, there may be cases where such a deceit has taken place, but where the eliminator's conduct, too, contributed to the causation of the darnage. Here, the e1iminator should also be partly Iiable, so that it would be better if the defence of Art. 7 (I) only applied insofar as the damage occurred as a result of the deceit.

103 See Chapter 2, E. III., above.

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11. Limitation Art. 9 and 10 of the Directive contain rules on limitation which basicaUy are the same as German law provides with regard to damage caused by waste (§ 852 BGB), whereas compared to the English law on limitation in waste cases the Directive is in many respects different and also less complicated. These differences, which will in many cases be favourable to the plaintiff, can be inferred from the comparison between the English and the German law on limitation in Chapter 3, above. I04

111. Insurance

Art. 11 (1) of the Directive prescribes a compulsory insurance lO5 for original waste generators lO6 and waste "eliminators"107 who are liable under the Directive. In England, such a compulsory insurance would be a novelty in respect of damage caused by waste, while in Germany a similar statutory provision (§ 19 UmweltHG) already exists. But whereas § 19 UmweltHG (by reference to Appendix 2 to the UmweltHG) imposes compulsory insurance cover only on some persons whose plants are particularly hazardous, Art. 11 (1) of the Directive requires insurance cover of all producers, disposers and recyclers of industrial and commercial waste. Compared to the UmweltHG, the Directive will therefore extend the circle of persons who must carry third party liability insurance for damage caused by waste. 108 However, Art. 11 (1) is because of the vague notion of "industrial and commercial waste" of the Directive rather imprecise as to who must carry insurance cover. Thus, a list like that of Appendix 2 to the UmweltHG, where the types of plants to be insured are exactly enumerated, would be preferable.

104 Section H. I.

105 As opposed to the original Proposal, which was silent on this point. 106 The comrnas after the words "producer" and "waste" in Art. 11 (I) are wrong and must be deleted. 107 Who are defined in Art. 2 (1)(0 by reference to the amended version of Council Directive 75/442JEEC and comprise waste disposers (Annex 11 A) and waste recyc1ers (Annex II B).

108 However, the insurance cover to be carried under the Directive needs to cover damage caused by waste only, whereas the compulsory insurance under the UmweltHG must inc1ude damage caused by all sorts of interferences in the environment. 7 Pappel

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IV. Compensation Fund

Art. 11 (2) of the Directive envisages that a compensation fund should be established to compensate the damage or impairment of the environment in waste cases where the operation of the Directive will fail to provide compensation. Art. 11 (2) enumerates two situations where this will be the case: First, the compensation fund should help out where the person liable is incapable of providing (fulI) compensation, i. e. where the defendant is insolvent. This would ensure that in such cases the plaintiff is compensated and the environment repaired and would shift the risk of the defendant's insolvency from the plaintiff onto the fund. But does Art. 11 (2)(i) also mean cases where the defendant is incapable of providing full compensation because the damage is wholly or partly irreversible, or even cases where the cost of repairing the environment is disproportionate to the results achieved thereby? These would be cases of irreparable nonmaterial ecological damage to property or irreparable harm to unowned parts of nature. We have already stated that the Directive should in such cases provide a remedy of monetary compensation,I09 and that the money payable by the defendant should go to the state. lfthe Directive provided such a remedy, and if a compensation fund existed, it would be most sensible that the money should go there. Therefore, as long as the Directive does not provide a remedy of monetary compensation for irreparable damage, this gap cannot be filled by a compensation fund, for if the fund paid monetary compensation in such cases, it would pay it to itself. In other words, the only possible addressee of liability for monetary compensation in cases of irreparable harm caused by waste is the polluter. As to Art. 11 (2)(ii), it seems at first sight that if a compensation fund provided compensation in cases where "the person liable ... cannot be identified", an important gap in the systems of civilliability for damage caused by waste of England, Germany and the Directive would be filled, for this would mean that damage caused by ubiquitous pollution became compensatable. But Art. 11 (2)(ii) is confined to cases where the persons "liable under this Directive" 110 cannot be identified, so that the fund would not provide compensation for damage caused by, for instance, general air pollution. Thus, plaintiffs whose forests die as a result of such pollution would still remain uncompensated. As to the scope of Art. 11 (2)(ii), it seems that this Article was originally meant to apply to cases of ubiquitous pollution only. However, its wording 109 Which at present it does not do. 110 Emphasis added.

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covers all cases where the plaintiff fails to prove causation. The question is whether this was intended, and whether compensation by a fund should extend to all such cases, for then there is no incentive for a plaintiff any more to produce sufficient evidence to show causation because he can be sure to get compensation anyway. The basic idea of the Directive that the interests of private individuals and common interest groups should be used to promote environmental protection would thus be undermined.

V. Retrospection

Art. 13 of the Directive provides that the Directive "shall not apply to damage to or impairment of the environment arising from an incident wh ich occurred before the date on which its provisions are implemented" .111 It remains unclear whether "incident" means the (last) causative act of the defendant, e. g. the landfilling of the waste in question, 112 or the interference in the environment in the sense of § 3 I UmweltHG, e. g. the escape of pollutants from the landfill site. 113 For the differences between these two approaches, see Chapter 3, H. III., above. Like § 23 UmweltHG, Art. 13 is drafted as a defence. The waste generator and disposer will thus be encouraged to "take steps to ensure that their sites are properly monitored, since it will be in their interest to ascertain the existing levels of pollution" 114 before and after the Directive enters into force.

VI. Financial Caps on Liability

As opposed to the German UmweltHG, there is no financiallimit to liability under the Directive. In consideration of the troubles created by § 15 UmweltHG, this can only be approved. 115

111 Emphasis added. 112 This is what was originally intended: Report, p. 130, per C. de Villeneuve. 113 It has been forcefully shown that the term "incident" can only mean this: von WilmowskylRoller, pp. 109 - 110. 114 Report, p. 34 115 For a more detailed outline of the arguments for and against financial caps on liability, see von WilmowskylRoller, pp. 127 - 128. 7*

Chapter 5: Summary and Conclusions A comparative analysis of the problems of civil liability for damage caused by waste reveals three basic differences between English and German law: First, no speciallegislation on ci viI liability for damage caused by environmental pollution has been passed yet in England, whereas in Germany, the UmweltHG came into force on 1st January, 1991. Secondly, liability under English law is in practically all cases more or less based on the fault principle,l whereas in German law, many waste cases are already subject to a no-fault liability under § 1 UmweltHG, § 22 WHG or § 906 11 2 BGB.2 Thirdly, under English law, the defendant's being licensed, and compliance with his licence as weIl as with the public law applicable to his activity relieves him of civil liability in the absence of negligence on his part, whereas under the German UmweltHG this is, in principle, not so. If the EC-Directive on civilliability for damage caused by waste were in its present version implemented into English and German law, it would in the English law of tort remove the requirement of fault in respect of damage caused by waste, whereas in Germany, this has already been achieved by the UmweltHG in most cases covered by the Directive. In English law, an exclusion of liability for development risks would no Ion ger be possible either. As to the relevance of compliance with public law for ci viI liability, however, the differences between English and German law would probably remain because of Art. 4 (1) ofthe Directive.

An implementation of the Directive would, apart from creating a strict civil liability for waste in England, bring about three further important changes in nationallaw: First, the Directive would extend the waste generator's liability for his waste to the phase of transport in any case and to the phase of disposal unless the generator can show that he lawfully transferred his waste to a licensed disposal plant. The latter defence represents, compared to existing English and German law, an important shift in burden of proof.

1 Even liability under the rule in Rylands v. Fleteher requires "foreseeability of damage". 2 At least in the case of § 1 UmweltHG, but probably also under the other rules mentioned, liability even extends to development risks and is thus truly strict.

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Secondly, the Directive would introduce into nationallaw civil remedies for the impairment of unowned parts of nature, which would be a novelty both in England and Germany. On the other hand, the Directive fails to provide remedies for irreparable harm to unowned parts of nature, for non-pecuniary property damage which is irr~versible or of which the repair would be disproportionately expensive, and for damage caused by ubiquitous pollution. These gaps in existing English and German law on civil liability for waste would thus remain. Thirdly, the Directive would in waste cases make certain civil remedies available to the state and to common interest groups. In view of the administrative law on environmental protection which already exists in England and Germany, the remedies made available to the state by the Directive appear to be superfluous, while such remedies as would be new and important, e. g. monetary compensation for irreversible non-pecuniary property damage 3 and irreparable harm to unowned parts of nature, are not provided by the Directive. As to standing for common interest groups, this would be a complete novelty in England, whereas in Germany, a concept of "Verbandsklage" already exists, although mainly in administrative law and, within civil law, not in respect of damage caused by waste. As the state often cannot be relied upon where action is required to prevent, abate or repair environmental pollution, civil litigation rights vested in common interest groups would be a substantial improvement of environmental protection both in England and Germany. It must be noted, however, that the creation of such rights might render the liability under the Directive uninsurable. This would weaken the economic incentive which a strict liability as imposed by the Directive creates for the modernization of industrial plants, and would remove the control exercised by insurance companies on industrial plants. Thus, be fore civil litigation rights in respect of waste are vested in common interest groups, their advantages must be carefully balanced against the danger that they might substantially reduce the preventive effect of the Directive.

Other important topics are hardly dealt with by the Directive. As to causation, we have seen that to establish a system of civil liability adequate to damage caused by environmental pollution, it is not enough to remove the requirement of fault from the law, but that the proof of causation, too, must be made easier to achieve a liability for the creation of risk. As to cases of multiple causation, the law must, first of all, be aware of the problem that in cases of cumulative and alternative causation, it attributes to 3 Including non-pecuniary property damage the repair of which is disproportionately expensive.

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each defendant the conduct of other persons who acted entirely independently, which is contrary to the fundamental principle of law that one is not responsible for what one's neighbour does. Secondly, in cases of cumulative or alternative causation, joint and several liability is inappropriate where there were some very small contributions to the damage. Inadequate results could be avoided if defendants who complied with the relevant public law were only proportionally liable. 4 Thirdly, where joint and severalliability is imposed in a case of additive causation to remove doubts about the extent of each defendant's contribution in favour of the plaintiff,5 identified tortfeasors should not be liable to pay for contributions of unknown polluters, ubiquitous pollution and natural causes. Regrettably, the Directive is entirely silent on these problems. In addition to the points already criticized, the proposed Directive also contains drafting errors 6 and would, if implemented, bring about some unintended,7 undesirable8 and even absurd 9 results. All this calls for a thorough revision of the Directive before it is enacted. However, the biggest question with regard to the Directive is whether waste should be singled out at all as an object to which strict liability is attached. First, one fails to see why damage caused by waste should be subject to stricter rules of liability than damage proceeding from any other source of pollution. Secondly, the definition of waste provided by the Directive gives rise to too many problems. Therefore, astriet liability for eertain preeisely enumerated hazardous substanees or industrial plants 10 would be preferable.

4 As was provided by § 8 of the draft for the German UmweltHG. 5 As is the case in German law under § 22 I 2 WHG and, therefore, probably under § 830 I 2 BGB, too. 6 See Art. 4 (2) and (3). 7 E. g. that waste disposers might qualify as secondary waste generators according to Art. 2 (I)(a). 8 E. g. that household waste is not covered by the Directive. 9 E. g. that waste disposers who, contrary to law, do not hold a Iicence, or to whom the waste

which caused the damage was transferred iIIegally, are not Iiable under the Directive. 10 As under the German UmweltHG.

Chapter 6: Zusammenfassung in deutscher Sprache A. Einleitung Für eine Beschäftigung mit den Problemen der zivilrechtlichen Haftung für durch Abfälle verursachte Schäden ist zunächst eine Bestimmung des Abfallbegriffs erforderlich. Ein stofflicher Gegenstand wird zu Abfall, wenn sein Besitzer sich seiner entledigen will oder aufgrund von Rechtsvorschriften entledigen muß, und bleibt Abfall, bis er rechtmäßig wieder in Gebrauch genommen oder in einem RecycIingverfahren erneut zu einem gebrauchsfähigen Gegenstand verarbeitet wird. Da sowohl Sachen als auch andere chemische Substanzen stoffliche Gegenstände sind, umfaßt dieser Abfallbegriff nicht nur feste Abfälle, sondern auch Abwässer und Abgase, nicht jedoch rein energetische Emissionen wie Lärm, Strahlung oder Erschütterungen. I Ausgenommen sollen auch radioaktive Abfälle sein, da sie aufgrund ihrer besonderen Eigenschaften Gegenstand spezieller Gesetzgebung sind. In vielen Fällen sind es nicht Abfälle, sondern einem bestimmten Gebrauch gewidmete Sachen oder Stoffe, wie z. B. Rohöl, die über den Umweltpfad Schäden verursachen. Somit erfaßt die vorliegende Studie trotz des weiten Abfallbegriffs, der ihr zugrundeliegt, nur einen Teil der Sachverhalte, die den Gegenstand des Umwelthaftungsrechtes bilden. Am 1. September 1989 legte die Kommission der EG Getzt: EU) einen "Vorschlag für eine Richtlinie des Rates über die zivilrechtliche Haftung für die durch Abfälle verursachten Schäden" vor,2 von dem am 27. Juni 1991 eine mit wesentlichen Änderungen versehene Fassung veröffentlicht wurde. 3 Sollte die Richtlinie in Kraft treten, so müßten die Mitgliedsstaaten der EU, darunter auch das Vereinigte Königreich und Deutschland, ihr Recht der Richtlinie anpassen. I Wenn jedoch eine Industrieanlage ihr Kühlwasser einem Fluß entnimmt und dieses unverschmutzt, aber erhitzt zurückpumpt (so geschehen im englischen Fall Pride of Derby v. British Celanese (1952)1 All E. R. 1326), wird dieses Abwasser bereits als "Abfall" im genannten Sinne angesehen werden müssen.

2 ABlEG 1989 C 251, 3 3 ABlEG 1991 C 192,7

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Chapter 6: Zusammenfassung in deutscher Sprache

Um den Richtlinienvorschlag bewerten zu können, ist daher zu fragen, wie sich die Richtlinie auf die Rechtslage in den verschiedenen Mitgliedsstaaten auswirken würde, wenn sie in ihrer derzeitigen Form in Kraft träte. Dies erfordert zunächst eine Betrachtung des nationalen Rechts, d. h. der in den Mitgliedsstaaten bestehenden Rechtsnormen über die zivilrechtliche Abfallhaftung. Hierfür sollen das deutsche und das englische Recht als Beispiele dienen.

B. Das deutsche Recht I. Überblick In Deutschland ist das wichtigste Gesetz in bezug auf die zivilrechtliche Abfallhaftung nunmehr das Umwelthaftungsgesetz (UmweltHG) vom 10.12.1990, das am 01.01.1991 in Kraft trat. 4 § 1 UmweltHG unterwirft die im Anhang 1 zum UmweltHG aufgelisteten Anlagen einer verschuldensunabhängigen Haftung für über den Umweltpfad verursachte Schäden. Zu dem Anlagenkatalog gehören zum einen Anlagen, die Abfälle lagern, beseitigen, aufbereiten oder sonst behandeln (Nrn. 68 - 77), zum anderen zahlreiche Anlagen, durch deren Betrieb feste, flüssige oder gasförmige Abfälle entstehen. Fälle zivilrechtlicher Abfallhaftung, die aufgrund des UmweltHG entschieden wurden, sind bislang nicht bekannt geworden; zukünftig dürfte jedoch das UmweltHG die sonstigen Umwelthaftungsnormen des deutschen Rechts in der Praxis der Abfallhaftung regelmäßig verdrängen. 5 Verlangt der Kläger aber den Ersatz eines reinen Vermögensschadens,6 so muß er weiterhin auf § 22 WHG7 zurückgreifen. Begehrt er die Unterlassung oder Beseitigung einer von Abfällen ausgehenden Immission, fällt dies unter die Regelungen der §§ 1004; 906 BGB; 14 BImSchG8. Schließlich kann der Geschädigte nur aus § 22 WHG, § 906 11 2 BGB oder § 823 BGB klagen, wenn der Schädiger nicht im Anhang 1 zum UmweltHG aufgeführt ist. 9 In diesem Fall wird der Wertungwiderspruch, daß 4 Zur Einführung siehe etwa Hager, NJW 1991, S. 134 ff., zur Vertiefung die Kommentare von LandsberglLülling, Schmidt-Salzer, Paschke und Salje. 5 Dies insbesondere wegen § 6 I UmweltHG; beachte aber § 181 UmweltHG. 6 Die Verursachung reiner Vermögensschäden durch Abf:ille ist durchaus denkbar; siehe Chapter 2, E. I. 7 Wasserhaushaltsgesetz vom 16.10.1976. 8 Bundes-Immissionsschutzgesetz vom 15.03.1974. 9 Z. B. wenn ein Autofahrer das Altöl seines Privatfahrzeuges in einem Wasserschutzgebiet abläßt und so das Grundwasser verseucht.

B. Das deutsche Recht

\05

Gewässer und Land haftungsrechtlich stärker geschützt werden lO als Gesundheit und bewegliche Sachen 11, durch das UmweltHG nicht beseitigt.

11. Die wirtschaftliche Bedeutung des UmweltHG

Besonders hinzuweisen ist auf die erheblichen ökonomischen (und damit auch ökologischen) Auswirkungen des UmweltHG. Presseberichten zufolge l2 kann gegenwärtig nur noch derjenige Anlagenbetreiber seine (im wesentlichen auf dem UmweltHG beruhende) Umwelthaftpflicht versichern, der "Umwelttechnik und -management auf den aktuellen Stand bringt"I3 und die von seiner Anlage ausgehenden Risiken "durch einen anderen Produktionsprozeß oder den Einsatz weniger gefährlicher Stoffe deutlich reduzieren" kann. 14 Wenn aber nur die modernsten Anlagen versicherungsfähig sind, so stellt dies einen erheblichen Anreiz für die Modernisierung von Industrieanlagen im Sinne einer Verbesserung des Umweltschutzes dar, da nur so der begehrte Versicherungsschutz erlangt werden kann. Allerdings sind die von der Versicherungswirtschaft angebotenen Versicherungssummen auch für modernisierte Anlagen oftmals sehr begrenzt. 15 Dies bedeutet, daß das vom UmweltHG geschaffene Haftungsrisiko teilweise nicht versicherbar ist. Hinsichtlich des nicht versicherbaren Teils des Haftungsrisikos besteht ein Modernisierungsanreiz für den Anlagenbetreiber nur insofern, als die Modernisierung der Anlage der Vermeidung von Schadensfällen dient. 16 Zunehmend berücksichtigen auch Banken bei der Kreditvergabe an Industriebetriebe deren Umweltrisiko und Versicherbarkeit. Diese marktwirtschaftlichen Mechanismen tragen zum Schutz der Umwelt vor Industrieimmissionen bei, können aber auch zu einer Abwanderung von Betrieben in Länder führen, in denen eine solch strenge Umwelthaftpflicht wie die des UmweltHG

10 Nämlich durch §§ 22 WHG; 906 II 2 BGB, die ein Verschulden nicht voraussetzen. 11 Die nur von der verschuldensabhängigen Haftung nach § 823 BGB gedeckt sind. 12 Siehe

"Der Spiegel" 39/1993, S. 135 ff.

13 Dies gilt insbesondere auch für Müllverbrennungsanlagen und Sondermülldeponien. 14 Diese hohen Anforderungen gelten nicht nur für die Versicherung des bestimmungsgemäßen Normalbetriebes, sondern auch für die Versicherung des Störfallrisikos. Daher ist fraglich, ob alle Anlagen, für die nach § 19 i. V. m. Anhang 2 UmweltHG eine Versicherungspflicht besteht, überhaupt versicherbar sind. 15 "Der Spiegel", aaO. 16 Eingehend dazu Chapter 3, H. V.

106

Chapter 6: Zusammenfassung in deutscher Sprache

nicht besteht. 17 Schon aus Wettbewerbsgründen ist deshalb eine Auseinandersetzung mit der Rechtslage in anderen Ländern angezeigt. Daher soll nun das englische Recht näher betrachtet werden.

c. Das englische Recht18 im Vergleich zum deutschen I. Die wichtigsten Haftungstatbestände und ihre Grundprobleme: Haftung für Verschulden, bestimmungsgemäßen Normalbetrieb und Entwicklungsrisiken

Vergleicht man im Bereich der zivilrechtlichen Abfallhaftung die Rechtslage in England mit der deutschen, so ist der augenfälligste Unterschied, daß in England kein umwelthaftungsrechtliches Spezialgesetz existiert, sondern versucht werden muß, allgemeine Deliktstatbestände (torts) auf Abfallschadensfälle anzuwenden. Die wichtigsten dieser Tatbestände sind negligence und nuisance. Die Haftung wegen negligence ("Fahrlässigkeit") setzt das Bestehen einer Sorgfaltspflicht und deren Verletzung voraus und kommt im Bereich der Abfallschäden ungefähr der Haftung nach § 823 BGB gleich. Nuisance ("Störung") in der Form der private nuisance ist die unrechtmäßige Beeinträchtigung eines fremden Grundstücks oder seiner Nutzung, wobei sich die Rechtmäßig- oder Rechtswidrigkeit der Beeinträchtigung aus einer Abwägung der Interessen der Nachbarn ergibt; der Regelungsgegenstand dieses Deliktstyps entspricht im Umweltbereich also dem des § 906 BGB. Das hiervon zu unterscheidende Delikt der public nuisance wird später erörtert werden. Die berühmte Regel in Rylands v. Fletcher erlegt demjenigen, der auf seinem Grundstück gefährliche Gegenstände ansammelt oder lagert, eine verschuldensunabhängige Haftung für diejenigen Schäden auf, die ein Entweichen (escape) dieser Gegenstände von dem Grundstück verursacht. 19 Diese Haftungsregel scheint zunächst geradezu maßgeschneidert für Schäden, die von Mülldeponien, verseuchten Fabrikgeländen etc. ausgehen, war aber zwischenzeitlich 17 In bezug auf die Abfallhaftung besteht eine Gefahr der Industrieabwanderung allerdings hauptsächlich bei abfall produzierenden Anlagen und weniger bei Entsorgungsbetrieben, da die Möglichkeiten des Müllexports beschränkt sind. 18 Wenn hier vom "englischen Recht" die Rede ist, so ist das in England und Wales geltende Recht gemeint. In Schottland und Nordirland mögen abweichende Regelungen bestehen, doch ist das House 0/ Lords auch für diese Teile des Vereinigten Königreiches das oberste Zivilgericht, so daß sich das dortige Recht dem englischen Einfluß nicht entziehen kann. 19 (1866) L. R. I Ex. 265, 279 - 280, per Blackbum J.

C. Das englische Recht im Vergleich zum deutschen

107

so vielen Qualifikationen und Einwendungen unterworfen, daß sie keinerlei praktische Bedeutung mehr hatte. Eine Renaissance der Regel könnte jedoch von dem jüngst ergangenen Urteil in Cambridge Water Co. Ltd. v. Eastern Counties Leather plc. ausgehen, in welchem eine wichtige Voraussetzung der Regel, nämlich daß die Ansammlung der gefährlichen Gegenstände eine "unnatürliche Landnutzung" (non-natural use of land) sein müsse, gegenüber früheren Urteilen eine großzügigere Auslegung erfuhr. 20 Auf der anderen Seite stellte das Hause 0/ Lords in dieser Entscheidung klar, daß das verschuldensähnliche Merkmal der "Vorhersehbarkeit des Schadens" (foreseeability of damage) notwendige Voraussetzung eines Schadensersatzanspruches sowohl wegen nuisance als auch nach der Regel in Rylands V. Fletcher sei. 21 Die Haftung nach Rylands V. Fletcher ist demnach nur insofern "streng", als hinsichtlich des Entweichens ein Verschulden des Beklagten nicht erforderlich ist. Somit ist in England jede Haftung für durch Abfälle verursachte Schäden in irgendeiner Weise verschuldensabhängig,22 wenngleich die Anforderungen an das Verschulden von Tatbestand zu Tatbestand variieren. 23 Im Gegensatz dazu wird in Deutschland bei Abfallschäden zumeist eine verschuldensunabhängige Haftung eingreifen (§§ 1 UmweltHG; 22 WHG; 906 11 2 BGB). Für in Deutschland angesiedelte Betriebe erhöht dies das Haftungsrisiko für Abfälle im Vergleich zu England. Nach englischem Recht kann der Beklagte seiner Haftung wegen nuisance die "Einwendung der gesetzlichen Ermächtigung" (defence of statutory authority) entgegenhalten. Der Betreiber einer Abfallentsorgungsanlage etwa gilt als zu dem Betrieb seiner Anlage gesetzlich ermächtigt, wenn die Anlage aufgrund öffentlich-rechtlicher Vorschriften genehmigt ist und im Einklang mit den Bedingungen der Genehmigung und den gesetzlichen Vorschriften betrieben wird. Was solchermaßen erlaubt ist, kann nach englischer Auffassung nicht "unerlaubte Handlung" sein. Der Anlagenbetreiber haftet dann nur noch wegen negligence, da die fahrlässige Schädigung Dritter von der gesetzlichen Ermächtigung nicht gedeckt wird. Demgegenüber ist in Deutschland die Einhaltung öffentlich-rechtlicher Vorschriften für die Haftung nach § I UmweltHG grundsätzlich unerheblich; der Anlagenbetreiber haftet auch für den bestimmungsgemäßen Normalbetrieb seiner Anlage ohne Verschulden. Allerdings sehen

20 [1994]1 All ER 53, 79, per Lord Goff 21 ibid., at pp. 72, 76

22 Wie das deutsche

Produkthaftungsgesetz kann auch der englische Consumer Protection Act

1987 für die Abfallhaftung so gut wie nicht nutzbar gemacht werden. 23 S. O. Chapter 4, C. I.

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Chapter 6: Zusammenfassung in deutscher Sprache

§§ 5, 6 11 UmweltHG in diesen Fällen andere Haftungserleichterungen vor, die die Position des Anlagenbetreibers erheblich verbessern. 24

Kommt nach englischem Recht nur eine Haftung des Beklagten wegen negligence in Betracht, so muß der Kläger zunächst zeigen, daß für den Beklagten ihm gegenüber eine Sorgfaltspflicht bestand. Dies ist nur der Fall, soweit die Schädigung des Klägers für den Beklagten vorhersehbar war. Die spezifische Schädlichkeit bestimmter Emissionen oder etwa chemische Veränderungen in Mülldeponien können jedoch oft auch nach dem neuesten Stand von Wissenschaft und Technik nicht erkannt werden; hierdurch ausgelöste Schadensverläufe sind somit nicht vorhersehbar. Anders als nach § 1 UmweltHG wird daher wegen negligence für solche "Entwicklungsrisiken" nicht gehaftet. 25

11. Die Rechtsfolgenseite der Abfallhaftung

Kommt ein englisches Gericht zu dem Schluß, daß die von den Abfallen des Beklagten ausgehenden Emissionen als nuisance anzusehen sind, wird es dem Kläger Schadensersatz (damages) für den bereits erlittenen Schaden zusprechen. 26 Ist der Eintritt oder die Fortsetzung der nuisance für die Zukunft zu besorgen, wird das Gericht den Beklagten auf Verlangen des Klägers regelmäßig zur Unterlassung oder Beseitigung der Beeinträchtigung verurteilen (injunction). Zwar haben die englischen Gerichte in solchen Fällen auch die Möglichkeit, von einem Unterlassungs- oder Beseitigungsurteil abzusehen und statt dessen dem Kläger eine Entschädigung für die zukünftig zu erwartenden

24 In diesem Zusammenhang ist auch § 14 Satz I BImSchG zu erwähnen. Nach dieser Vorschrift kann ein Anlagenbetreiber die öffentlich-rechtliche Genehmigung seiner Anlage einem auf Stillegung der Anlage gerichteten Beseitigungsanspruch entgegenhalten. Wie bei der englischen Rechtsfigur der statutory authority führt also auch hier die öffentlich-rechtliche "Ermächtigung" zum Betrieb der Anlage zu einer Haftungsbefreiung bzw. -erleichterung, allerdings in weit geringerem Umfang. Umgekehrt ist zu beachten, daß der Tatbestand der englischen Rechtsfigur enger gefaßt ist: Während § 14 Satz I BImSchG nur von der Genehmigung der Anlage spricht, handelt nach englischem Recht ein Anlagenbetreiber nur dann mit statutory authority, wenn er beim Betrieb seiner Anlage auch sonst die öffentlich-rechtlichen Bestimmungen einhält, was im deutschen Recht als "bestimmungsgemäßer Normalbetrieb" bezeichnet wird. 25 Gleiches gilt wegen des Erfordernisses der "Vorhersehbarkeit des Schadens" auch für eine Haftung wegen nuisance oder nach Rylands v. Fleteher: Cambridge Water Co. LId. v. Eastem Counties Leather plc. [1994]1 All ER 53, 72, 76, per Lord Goff. 26 Nuisance heißt hier zunächst private nuisance. Zu den Besonderheiten einer Klage wegen public nuisance siehe unten III.

C. Das englische Recht im Vergleich zum deutschen

109

Schäden zuzusprechen (damages in lieu of an injunction).27 Jedoch machen sie von dieser Möglichkeit nur selten Gebrauch, da sie der Auffassung sind, daß, wenn der Kläger statt eines Unterlassungs- oder Beseitigungsurteils nur eine Entschädigung bekäme, er gleichsam gerichtlich gezwungen würde, dem Beklagten seine Rechte zu verkaufen. 28 Auch die Tatsache, daß die Tätigkeit des Beklagten, die dem Kläger gegenüber eine nuisance darstellt, im Interesse der Allgemeinheit erwünscht oder sogar notwendig ist,29 wird ein englisches Gericht nicht von einem Unterlassungs- oder Beseitigungsurteil abhalten, da "Enteignungen" grundsätzlich nur für zulässig erachtet werden, wenn sie auf einen Parlamentsbeschluß zurückgehen. 3o Gesetzlich normierte Pflichten, von Privaten verursachte Abfallschäden bei angemessener Entschädigung zu dulden, gibt es im englischen Recht jedoch nicht. Will ein englisches Gericht auf der anderen Seite die "Gemeinnützigkeit" der Tätigkeit des Beklagten zu dessen Gunsten berücksichtigen, muß es auf die Rechtsfigur der statutory authority zurückgreifen. Kommt diese aber zur Anwendung, so geht der Kläger völlig leer aus: Er kann weder Schadensersatz noch Unterlassung oder Beseitigung noch eine Entschädigung für zukünftig zu erwartende Schäden verlangen. Diese Rechtsprechung ist in der englischen Literatur zutreffend als zu unflexibel kritisiert worden, da sie eine wichtige Möglichkeit, nuisance-Fälle angemessen zu entscheiden, ungenutzt läßt. 31 Gerade im Abfallbereich gibt es zahlreiche Tätigkeiten wie den Betrieb von Müllverbrennungsanlagen, auf die im öffentlichen Interesse nicht verzichtet werden kann, die aber einzelne Mitglieder der Gesellschaft, die Nachbarn etwa, u. U. erheblich belasten, ohne daß dies in wirtschaftlich zumutbarer Weise zu vermeiden wäre. Hier können Aufopferungsansprüche für einen gerechten Ausgleich sorgen, wie sie in den §§ 906 11 2 BGB; 14 Satz 2 BImSchG vorgesehen sind und von deutschen Gerichten auch zugesprochen werden. Hat ein Unternehmen darauf spekuliert, daß die durch eine unsachgemäße Entsorgung seiner Abfälle erzielten Einsparungen größer sein würden als der 27 Section 50 Supreme Court Act 1981; ursprünglich section 2 des berühmten Chancery Amendment Act (Lord Cairns' Act) 1858. Injunetions und damages in lieu 0/ an injunetion gehören zum Normenkomplex der Equity; ihre Bewilligung steht daher im Ermessen des Gerichts. 28 Shelfer v. City [1981] Q. B. 88.

0/ London Electrie Lighting Co.

[1895] ICh. 287; Kennaway v. Thompson

29 Wie etwa der Betrieb einer Abfallentsorgungsanlage.

30 Siehe wiederum Shelfer v. City 0/ London Eleetrie Lighting Co. [1895]1 Ch. 287. 31 Siehe Jolowiez [1975] C. L. 1., S. 251 f.

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Chapter 6: Zusammenfassung in deutscher Sprache

wegen der Verschrnutzung zu leistende Schadensersatz, so kann nach englischem Recht der durch die unerlaubte Handlung erwirtschaftete Gewinn, d. h. die über die Höhe des Schadens hinausgehende Kostenersparnis des Unternehmens, dem Geschädigten als "Schadensersatz" (exemplary damages) zugesprochen werden. 32 Eine solche nicht kompensatorische, sondern pönale Form des Schadensersatzes ist allerdings auch im englischen Recht die Ausnahme;33 dem deutschen Umwelthaftungsrecht ist sie völlig fremd.

III. Klagen im öffentlichen Interesse: public nuisance und Verbandsklage

Vom Deliktstyp der private nuisance, den wir bereits definiert haben, wird im englischen Recht, wie schon erwähnt, das Delikt der public nuisance unterschieden. Public nuisance ist eine das Maß des Hinzunehmenden überschreitende Beeinträchtigung des Wohlergehens der Allgemeinheit. 34 Eine solche Beeintächtigung kann auch von Abfällen ausgehen, z. B. von den Abgasen einer Fabrik oder von einer (wilden) Mülldeponie. Interessant aus deutscher Sicht sind die verschiedenen Klagemöglichkeiten, die das Delikt der public nuisance nach sich ziehen kann. Zunächst kann der Attorney-General als Sachwalter öffentlicher Interessen auf Unterlassung oder Beseitigung der public nuisance klagen, was er in der Praxis jedoch sehr selten tut. Ebenso können Gemeinden, deren Gebiet von einer public nuisance betroffen ist, im eigenen Namen eine solche Klage erheben. 35 Privatpersonen müssen selbst klagen, wenn die genannten Hoheitsträger nicht einschreiten, oder wenn nicht Unterlassung oder Beseitigung, sondern Schadensersatz Gegenstand der Klage sein soll. Sie können ihre Klage zum einen darauf stützen, daß die in Rede stehende public nuisance auch eine private nuisance darstellt, also ihr Land rechtswidrig beeinträchtigt, oder zum anderen darauf, daß sie infolge der public nuisance einen "besonderen", über die Beeinträchtigung der Allgemeinheit hinausgehenden Schaden (particular damage) erlitten haben. 36 32 Rookes v. Bamard [1964] A. C. 1129. Zu den weiteren Voraussetzungen einer Verurteilung des Beklagten zur Zahlung von exemplary damages siehe Hopkins [1993] C. L. J., S. 199 ff. 33 Hopkins, aaO, bezeichnet sie als Anomalie im englischen Schadensersatzrecht. 34 Zu der Frage, wann die "Allgemeinheit" beeinträchtigt ist, siehe Att. Gen. v. P. Y. A. Quarries Ltd. [1957] 2 Q. B. 169.

35 Section 222 des Local Government Act 1972. 36 Dies wäre z. B. der Fall, wenn infolge von

Industrieabgasen, die eine public nuisance darstellen, Lackschäden an in der Nähe der emittierenden Anlage geparkten Pkw auftreten. Vgl. BGHZ 92, 143 (Kupolofen).

C. Das englische Recht im Vergleich zum deutschen

l11

Bestehen diesen Möglichkeiten nicht, so kann sich eine Privatperson an den Attorney-General wenden und ihn um Zustimmung bitten, in seinem Namen auf Unterlassung oder Beseitigung der public nuisance klagen zu dürfen. Im Falle einer solchen relator action ist zwar der Attorney-General der eigentliche Kläger, jedoch obliegt die Prozeßführung der in seinem Namen handelnden Privatperson, welche im Falle einer Niederlage auch die Kosten trägtY Die Einschaltung des Attorney-General kann im englischen Recht also dazu führen, daß in Fällen durch Abfall verursachter Emissionen Privatpersonen eine Möglichkeit erlangen zu prozessieren, obwohl sie sich nicht auf die Verletzung eigener privater Rechte berufen können. Demgegenüber kann nach deutschem Recht das öffentliche Interesse am Schutz der Umwelt nicht auf diese Weise von Privatpersonen wahrgenommen werden. Die nach englischem Recht gegebene Möglichkeit, daß Privatpersonen, die selbst nicht in ihren Rechten verletzt sind, im Wege der Zivilklage das Interesse der Allgemeinheit am Umweltschutz wahrnehmen, kommt dem Gedanken der sog. Verbandsklage sehr nahe. Zwar kann in England auch ein Verband, eine Umweltschutzorganisation etwa, im Wege der relator action klagen, doch setzt dies immer die Zustimmung des Attorney-General voraus. Ein Verbandsklagerecht ist der englischen Rechtsordnung daher fremd. 38 Im Bereich der zivilrechtlichen Abfallhaftung gilt dies auch für Deutschland.

IV. Kausalitätsfragen: Mehrere Verursacher und Beweisprobleme

Haben die Abfälle mehrerer Personen einen Schaden verursacht, so behandelt das englische Recht Fälle kumulativer oder alternativer Kausalität einerseits und Fälle additiver Kausalität andererseits unterschiedlich. 39 Nur in den erstgenannten Fällen haften die Verursacher, wie im deutschen Recht auch, gesamtschuldnerisch. Im englischen Recht beruht dieses Ergebnis auf der Regel in Thorpe v. Brumfitt,4O im deutschen Recht hingegen auf § 830 I 2 BGB. Trotz

37 Der Attorney-General behält allerdings die grundsätzliche Kontrolle über das Verfahren. So kann er jederzeit seine Zustimmung widerrufen und dadurch den Prozeß beenden. Vor einer Berufung oder einer Zwangsvollstreckung des Urteils ist seine erneute Zustimmung erforderlich. 38 Bei sog. representative actions geht es nicht um Klagen im Interesse der Allgemeinheit, sondern um die Zusarrunenfassung gleicher Prozeßinteressen mehrerer Kläger. Diese Klageart ist, weil äußerst restriktiv gehandhabt, praktisch weit weniger wichtig als etwa die amerikanische dass action und spielt daher in Abfallschadensfällen nur eine untergeordnete Rolle. 39 Zu den Begriffen siehe Chapter 3, F. 11. u. 111. 40 (1873) L. R. 8 Ch. App. 650, weiterentwickelt in Pride of Derby v. British Celanese [1952] I AII E. R. 1326.

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Chapter 6: Zusammenfassung in deutscher Sprache

ihres unterschiedlichen Regelungsgehalts führen beide Rechtsnormen in dieser Fallgruppe zu den gleichen Ergebnissen. 41 In Fällen additiver Kausalität haftet nach englischem Recht jeder Schädiger nur für den von ihm verursachten Schadensanteil. 42 Inwieweit dies auch im deutschen Recht gilt, ist noch nicht abschließend geklärt. Nach der Rechtsprechung sind die Schadensbeiträge der einzelnen Beteiligten zunächst nach § 287 ZPO zu schätzen. Ist eine Schätzung möglich und der Schaden somit teilbar, so haftet jeder Verursacher nur für seinen Beitrag. Verbleiben aber Anteilszweifel, was in Abfallschadensfällen häufig der Fall sein dürfte, so wird in der Literatur ganz überwiegend § 830 I 2 BGB auch hier für anwendbar gehalten. Zweifel über den Umfang der einzelnen additiven Schadensbeiträge sollen so zugunsten des Klägers durch eine gesamtschuldnerische Haftung der Verursacher beseitigt werden. Die Bedingungen und Einschränkungen einer solchen Anwendung des § 830 I 2 BGB sind allerdings umstritten, zumal eine eindeutige Stellungnahme der Rechtsprechung zu diesen Fragen bislang fehlt. 43 Eine Tatsache, wie etwa der Kausalzusammenhang zwischen den Abfällen des Beklagten und dem Schaden des Klägers, gilt im englischen Zivilprozeß allgemein als bewiesen, wenn das Gericht ihr Vorliegen für überwiegend wahrscheinlich hält. 44 Demgegenüber fordert das deutsche Recht grundsätzlich den Vollbeweis der behaupteten Tatsache, was den Kläger in Abfallschadensfällen regelmäßig vor unüberwindliche Probleme beim Kausalitätsnachweis stellt. Das englische Recht ist dem Kläger daher im Grundsatz günstiger. Der Beweismaßstab der überwiegenden Wahrscheinlichkeit erleichtert zwar den Kausalitätsnachweis, entbindet aber nicht von ihm. 45 Demgegenüber wird gemäß § 6 I UmweltHG die Kausalität zugunsten des Klägers vermutet, wenn er nachweist, daß die Anlage des Beklagten zur Verursachung des eingetretenen Schadens nach den Umständen des Einzelfalls geeignet war. 46 Dies bedeutet, daß der Anlagenbetreiber, sofern er die Vermutung nicht widerlegt, nicht erst für die Verwirklichung, sondern bereits für die Schaffung bzw. Erhöhung eines 41 Siehe hierzu Chapter 3, F. H.

42 Zum Problemkreis der additiven Kausalität im englischen Recht siehe insbesondere Smith v.

Cawdle Fen Comrs. [1938] 4 All E. R. 64, Baker v. Willoughby [1970] A. C. 467 und lobling v. Associated Dairies [1982] A. C. 794. 43 Siehe hierzu im einzelnen

Hager, NJW 1991, S. 139 f.

44Wobei "überwiegende Wahrscheinlichkeit" nicht im rein mathematisch-statistischen Sinne verstanden wird; siehe hierzu Chapter 2, D. H. 45 Allerdings kann dem Kläger, wie im deutschen Recht, auch durch eine Beweislasturnkehr im Wege des Anscheinsbeweises geholfen werden. 46 Dies gilt jedoch nur für Fälle, in denen es dem Anlagenbetreiber nicht gelingt zu beweisen, daß seine Anlage bestimmungsgemäß und störungsfrei betrieben wurde (§ 6 H UmweltHG).

D. Der Vorschlag für eine EG-Richtlinie

113

Risikos einstehen muß. Eine Risikoerhöhungshaftung ohne eigentlichen Kausalitätsnachweis kennt das englische Recht hingegen nicht; entsprechende Ansätze47 wurden inzwischen wieder zurückgenommen. 48

D. Der Vorschlag für eine EG-Richtlinie über die zivil rechtliche Haftung für die durch Abrälle verursachten Schäden I. Auswirkungen der Richtlinie auf das nationale Recht im Falle ihres Inkrafttretens

Würde die Richtlinie in ihrer derzeitigen Form49 in Kraft treten und somit von den Mitgliedsstaaten der EU in nationales Recht umgesetzt werden müssen, so würde im englischen Recht die grundsätzlich verschuldensabhängige Haftung im Anwendungsbereich der Richtlinie durch eine verschuldensunabhängige ersetzt, während dies im deutschen Recht in den meisten und wichtigsten von der Richtlinie erfaBten Fällen bereits durch die §§ 1 UmweltHG; 22 WHG und 906 11 2 BGB geschehen ist. Auch könnte in England die Haftung für Entwicklungsrisiken nicht mehr ausgeschlossen werden. In diesen Punkten würde also das Haftungsrisiko für Abfallschäden in den beiden Ländern harmonisiert. Die Unterschiede hingegen, die bezüglich der Haftungsprivilegierung wegen bestimmungsgemäßen Normalbetriebs bestehen, blieben wohl wegen Art. 4 (l)(b) der Richtlinie erhalten. 5o Nach gegenwärtigem englischen und deutschen Recht haftet der Erzeuger von Abfall regelmäßig nur für Schäden, die sein Abfall verursacht, während er sich in seinem Besitz befindet. Der wichtigste Ausnahmefall liegt darin, daß der Erzeuger für seinen Abfall auch nach dessen Übergabe an einen Entsorger

47 In der Entscheidung McGhee v. National Coal Board [1973)1 W. L. R. I. 48 Siehe Wilsher v. Essex Area Health Authority (1988)2 W. L. R. 557. 49D. h. in der 1991 vorgelegten überarbeiteten Fassung (ABlEG 1991 C 192, 7), die den folgenden Ausführungen zugrundeliegt. Diese Fassung scheint nach wie vor den Stand der Diskussion bei der Europäischen Kommission wiederzugeben, da das Green Paper der Kommission vom 18.03.1993 - abgesehen von der Ausweitung der Diskussion auch auf andere Schadensquellen als Abfall - zur zivilrechtlichen Haftung für Umweltschäden nichts grundsätzlich Neues enthält. Zur englischen Reaktion auf das Grünbuch siehe Report 11 sowie Iones (1994) TMA, pp. 1 - 7. Beachte auch die ausführliche Stellungnahme der European Environmental Law Association [1994) Env. Liability, pp. 1 - 10. 50 Näher hierzu Chapter 4, C. 11. 8 Pappel

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Chapter 6: Zusammenfassung in deutscher Sprache

haftet, wenn er den Entsorger nicht sorgfältig ausgewählt hat. Die Beweislast hierfür trägt der Kläger. Demgegenüber erstreckt der Richtlinienvorschlag die Erzeugerhaftung grundsätzlich auch auf die Transport- und Entsorgungsphase. Nur im letztgenannten Fall kann sich der Erzeuger entlasten, indem er nachweist, daß er seinen Abfall unter Beachtung der rechtlichen Vorschriften einem nach EG-Recht autorisierten Entsorgungsunternehmen übergeben hat (Art. 2 (2)(c)). Gegenüber dem derzeitigen englischen und deutschen Recht stellt dies eine wichtige Beweislastumkehr dar. Neu im englischen wie im deutschen Recht wären auch die in Art. 4 des Richtlinienvorschlags vorgesehenen zivilrechtlichen Ansprüche wegen Beeinträchtigung solcher Teile der Umwelt, die in niemandes Eigentum stehen. Praktisch dürfte dies aber eher unbedeutend sein, zumal Ansprüche auf einen angemessenen Ausgleich irreparabler "Umweltbeeinträchtigungen" im Richtlinienvorschlag nicht vorgesehen sind. Die sowohl im englischen wie auch im deutschen Recht bestehenden Haftungslücken in bezug auf die über einen Vermögensschaden hinausgehenden Sachschäden, die irreparabel sind oder deren Wiederherstellung nur mit unverhältnismäßigen Aufwendungen möglich ist, würden dagegen nicht geschlossen. Hinsichtlich einer Kompensation von Summations- und Distanzschäden verweist der Richtlinienvorschlag lediglich auf einen später einzurichtenden Fonds (Art. 11 (2)). Art. 11 (1) des Vorschlags sieht vor, daß gewerbliche Abfallerzeuger und Abfallentsorger die ihnen von der Richtlinie auferlegte Haftung versichern müssen. In Deutschland würde dies den Kreis der nach § 19 i. V. m. Anhang 2 UmweltHG Versicherungspflichtigen im Bereich der Abfallhaftung erheblich erweitern. In England besteht eine Versicherungspflicht für durch Abfälle verursachte Schäden bislang nicht.

11. Insbesondere: Klagebefugnis des Staates und von Verbänden

Die wohl wichtigste Neuerung, die durch die Richtlinie eingeführt werden soll, besteht darin, daß sowohl der Staat als auch Umweltschutzverbände mit zivilrechtlichen Ansprüchen ausgestattet werden, die es ihnen ermöglichen sollen, in Abfallschadensfällen das öffentliche Interesse an der Erhaltung bzw. Wiederherstellung des Allgemeingutes Umwelt wahrzunehmen. Für die Verbände ergibt sich dies aus Art. 4 (3) des Richtlinienvorschlags. In Art. 4 (3) des ursprünglichen Richtlinienentwurfs waren auch Klagerechte des Staates ausdrücklich vorgesehen. Die überarbeitete Fassung enthält diese Vorschrift

D. Der Vorschlag für eine EG-Richtlinie

115

nicht mehr; jedoch muß nun aufgrund von Art. 4 (l)(a) von einer Klagemöglichkeit des Staates ausgegangen werden. 51 Würden die in Art. 4 (l)(b) des Vorschlags genannten Ansprüche dem Staat gegeben, so wäre allerdings nicht viel gewonnen, da der Staat in England wie in Deutschland das gleiche auch mit Hilfe seiner verwaltungsrechtlichen Befugnisse erreichen kann. Demgegenüber wären andere zivilrechtliche Ansprüche der öffentlichen Hand im Bereich der Abfallhaftung sinnvoller, z. B. Ansprüche auf einen angemessenen Ausgleich in Geld für irreparable Sachschäden, die nicht Vermögensschäden sind,52 und irreversible "Umweltbeeinträchtigungen" i. S. der Richtlinie. Das Konzept der Richtlinie ist also in diesem Punkte abzulehnen. Im Gegensatz dazu wären die im Richtlinienvorschlag vorgesehenen Verbandsklagerechte prinzipiell eine wichtige Verbesserung des englischen wie des deutschen Rechts auf dem Gebiet der zivilrechtlichen Abfallhaftung, da in solchen Abfallschadensfällen, in denen der Geschädigte keine Ansprüche geltend macht53 und auch der Staat nicht einschreitet, die Verbandsklage eine weitere Möglichkeit bietet, die Verschmutzung der Umwelt zu unterbinden und den entstandenen Schaden zu beheben. Allerdings ist zu bedenken, daß die Haftung nach dem UmweltHG bereits ohne Klagerecht für Umweltverbände nur schwer versicherbar ist. Die Einführung der Verbandsklage könnte also dazu führen, daß die den Unternehmen durch die Richtlinie auferlegte Haftung nicht mehr versicherbar wäre. In diesem Fall wären die Vorteile der Verbandsklage gegen die Gefahr abzuwägen, daß der Präventiveffekt einer verschuldensunabhängigen Haftung für Abfälle dadurch geschwächt würde, daß ein wichtiger wirtschaftlicher Anreiz für die Modernisierung von Industrieanlagen und die Kontrolle der Unternehmen durch die Versicherungswirtschaft entfielen. 54

IH. Versäumnis der Regelung wichtiger Kausalitätsfragen im Richtlinienvorschlag

Die Ausführungen zum englischen und deutschen Recht haben bereits gezeigt, daß allein der Verzicht auf die Haftungsvoraussetzung des Verschuldens nicht genügt, um einen angemessenen Ausgleich von Abfallschäden auf 51 Näher hierzu siehe Chapter 4, F. I. 52 Einschließlich deIjenigen über einen

Vermögensschaden hinausgehenden Sachschäden, die nur mit unverhältnismäßigen Aufwendungen zu beheben wären.

53 Sei es, weil er selbst der Verschmutzer ist, sei es, weil er sonst ein Interesse an der Duldung der Verschmutzung hat. 54 Siehe oben B. 11. und Chapter 3, H. V.

8'

116

Chapter 6: Zusammenfassung in deutscher Sprache

zivilrechtlichem Wege herbeizuführen. Vielmehr muß auch der Nachweis der Kausalität dergestalt erleichtert werden, daß abfallproduzierende oder -entsorgende Personen schon für die Schaffung oder Erhöhung von Risiken einstehen müssen. Dies leistet die vorgeschlagene Richtlinie nicht, sondern überläßt die Festlegung der Anforderungen an den Kausalitätsnachweis den Mitgliedsstaaten (Art. 4 (l)(c)). Am Beispiel des englischen und deutschen Rechts wird jedoch deutlich, daß diese Anforderungen gegenwärtig in verschiedenen Mitgliedsstaaten sehr unterschiedlich sind. Der Richtlinienvorschlag verzichtet also in diesem wichtigen Punkt auf eine Rechtsangleichung innerhalb der EU und nimmt die dadurch verbleibenden Wettbewerbsverzerrungen in Kauf. Bedeutsam für das deutsche Recht ist ferner, daß im Gegensatz zum ursprünglichen Richtlinienentwurf nach der überarbeiteten Fassung die in § 6 11 UmweltHG vorgesehene Entlastungsmöglichkeit des Beklagten weiterbestehen kann. 55 Auch hinsichtlich der Probleme der Haftung mehrerer Verursacher läßt der Richtlinienvorschlag zu wünschen übrig. Art. 5 regelt lediglich, daß, wie nach englischem und deutschem Recht auch, mehrere Verursacher eines Schadens als Gesamtschuldner haften. Dies ist jedoch problematisch, wenn der Verursacher eines nur sehr kleinen Schadensbeitrages als Gesamtschuldner für den ganzen, möglicherweise gewaltigen Schaden einstehen muß. Hier könnten unbillige Ergebnisse vermieden werden, wenn solche Verursacher, die die einschlägigen öffentlich-rechtlichen Vorschriften eingehalten haben, nur anteilig haften würden, wie es in § 8 des Entwurfs zum UmweltHG vorgesehen war. Da diese Vorschrift nicht in das UmweltHG übernommen wurde, besteht eine solche Haftungsregel derzeit weder im deutschen noch im englischen Recht. Ferner läßt der Richtlinienvorschlag offen, ob und unter welchen Voraussetzungen in Fällen additiver Kausalität ebenfalls eine gesamtschuldnerische Haftung eingreifen kann, damit Ansprüche des Geschädigten nicht an verbleibenden Anteilszweifeln scheitern. Eine solche gesamtschuldnerische Haftung wäre wünschenswert, aber nur dann sinnvoll, wenn einerseits als Haftungsvoraussetzung die Geeignetheit des einzelnen Schadensbeitrags zur Mitverursachung des Schadens genügte, andererseits aber diejenigen Personen, die als Mitverursacher feststehen, für Anteile unbekannter Schädiger, Summations- und Distanzschäden und Schadens beiträge natürlicher Ursachen nicht einstehen müßten. All dies wäre im englischen Recht neu, während in Deutschland durch eine ausdrückliche Regelung die Rechtslage in bezug auf die analoge Anwendbarkeit von § 830 I 2 BGB geklärt werden könnte.

55 Siehe Chapter 4, G. I.

D. Der Vorschlag für eine EG-Richtlinie

117

Die Chance, den sowohl im englischen wie auch im deutschen Recht bestehenden Regelungsbedarf in diesen wichtigen Fragen für eine innerhalb der EU einheitliche Regelung zu nutzen, wird durch den Richtlinienvorschlag jedoch nicht wahrgenommen.

IV. Gesamtbewertung des RichtIinienvorschlags Neben den bereits kritisierten Mängeln enthält der Vorschlag auch Redaktionsversehen 56 sowie weitere Schwachstellen inhaltlicher Art. So bleibt erstens unklar, ob ein Abfallentsorger nach Art. 2 (2)(c) auch Sekundärerzeuger gemäß Art. 2 (l)(a), 2. Alt. sein kann und welche haftungsrechtlichen Konsequenzen das haben soll.57 Zweitens überrascht, daß nach Art. 2 (2)(c) nur Entsorger haften, deren Anlage ordnungsgemäß genehmigt ist und denen der von ihnen entsorgte Abfall unter Beachtung der rechtlichen Vorschriften übergeben wurde, während eine Haftung für illegale Abfallentsorgung in der vorgeschlagenen Richtlinie nicht vorgesehen ist. Drittens ist die Ausklammerung von Haushaltsabfällen aus dem Anwendungsbereich der Richtlinie in der Praxis nicht durchführbar und sachlich nicht gerechtfertigt. All dies macht eine erneute gründliche Überarbeitung des gesamten Richtlinienvorschlags erforderlich. Zuvor sollte allerdings überdacht werden, ob es überhaupt sinnvoll ist, aus den möglichen Ursachen umweltbezogener Schäden Abfälle auszusondern und zum Gegenstand einer Gefährdungshaftung zu machen. Denn erstens ist nicht ersichtlich, weshalb Abfälle strengeren Haftungsregeln unterworfen sein sollten als andere Verschmutzungsquellen, und zweitens führt die Abfalldefinition des Vorschlags zu schwierigen und überflüssigen Abgrenzungsproblemen. Bei der Harmonisierung der zivilrechtlichen Umwelthaftung innerhalb der EU wäre daher eine Gefährdungshaftung für bestimmte, genau aufgelistete Substanzen und Industrieanlagen58 zu bevorzugen.

56 Etwa in Art. 4 (2): "und" statt "oder". 57 Siehe dazu näher Chapter 4, E. 11. 58 Wie nach dem deutschen UmweltHG.

References Adam, K., Die schadhafte Kette, in: Die F. A. Z. und die Umwelt - viele Themen, Frankfurt 1992, pp. 57 - 60

BT-Dr 11/7104 = Gesetzentwurf der Bundesregierung, Entwurf eines Umwelthaftungsgesetzes UmweltHG, Bundestags-Drucksache 11/7104 Clerk and LindseIl on Torts, 13th ed., London 1969 Diederichsen, U., Die Haftungfür Umweltschäden, Der Betriebs-Berater (BB) 1973, pp. 485 - 491 European Environmental Law Association, Repairing Damage to the Environment - a Community System 0/ Civil Liability, Report of Working Party: Submission to the Commission of the European Communities [1994] Environmental Liability, pp. 1 - 10 Gerlach, J. W., Privatrecht und Umweltschutz im System des Umweltrechts, Berlin 1989

Green Paper = Commission of the European Communities, Green Paper on Remedying Environmental Damage, Communication from the Comrnission to the Council and Parliament, COM (93) 47 final, 18th March 1993

Hager, G., Das neue Umwelthaftungsgesetz, Neue Juristische Wochenschrift (NJW) 1991, pp. 134 - 143 Hopkins, C. A., Analysis of an Anomaly [1993] Cambridge Law Journal (C. L. J.), pp. 199 - 202 Jauernig, O. (editor), Bürgerliches Gesetzbuch (commentary), 6th ed., München 1991 Jolowicz, J. A., Damages in Equity - A Study (C. L. J.), pp. 224 - 252

0/ Lord Caims' Act [1975]

Cambridge Law Journal

- Liability for Accidents [1968] Cambridge Law Journal (C. L. J .), pp. 50 - 63 - The Protection 0/ Diffuse, Fragmented and Collective Interests in Civil Litigation [1983] Cambridge Law Journal (C. L. J.), pp. 222 - 256 Jones, B., Remedying Environmental Damage: The European Commission's Green Paper [1994] TMA, pp. 1-7 Koch, W., Das Sachwertverfahrenfür Bäume in der Rechtsprechung, Versicherungsrecht (VersR) 1984, pp. 110 - 124 (part 1); Versicherungsrecht 1986, pp. 1160 - 1176 (part 2) Kölz, H., Versicherungsschutz gegen Umweltschäden - Neue Entwicklungen in den USA, in: Umwelt- und Technikrecht (UTR), Vol. 12, Düsseldorf 1990, pp. 391 - 404 Landsberg, G./ Lülling, W., Umwelthaftungsrecht, Köln 1991 Medicus, D., Umweltschutz als Aufgabe des Zivilrechts - aus zivilrechtlicher Sicht, Natur und Recht (NuR) 1990, pp. 145 - 155 Panther, S., Haftung als Instrument einer präventiven Umweltpolitik, Frankfurt a. M. 1992 Paschke, M., Kommentar zum Umwelthaftungsgesetz, Berlin 1993 Raeschke-Kessler, H./ Hamm, R./ Grüter, K., Aktuelle Rechtsfragen und Rechtsprechung zum Umwelthaftungsrecht der Untemehmen, 2nd ed., Köln 1990

References

119

Rehbinder, E., Ersatz ökologischer Schäden - Begriff, Anspruchsberechtigung und Umfang des Ersatzes unter Berücksichtigung rechtsvergleichender Erfahrungen, Natur und Recht (NuR) 1988, pp. \05 - 115

Report = House of Lords, Select Committee on the European Comrnunities, Paying for Pollution Civil Liability for Damage Caused by Waste, 25th Report, Session 1989 - 90, London, 1990 (bold page numbers refer to the Report itself, page numbers in ordinary type to the Evidence)

Report II = House of Lords, Select Committee on the European Comrnunities, Remedying Environmental Damage, 3rd Report, Session 1993 - 94, London, 14th December 1993 Rogers, W. V. H., The Law ofTort, London 1989 Salje, P., Deutsche Umwelthaftung versus europäische Abfallhaftung, Der Betrieb 1990, pp. 2053 - 2057

- Umwelthaftungsgesetz (commentary), München 1993 - Verschärfung der Haftung für Umweltschäden?, Umwelt- und Planungsrecht (UPR) 1990, pp. 1 -

6

Schmidt-Salzer, J., Kommentar zum Umwelthaftungsgesetz, Heidelberg 1992

- Umwelthaftpflicht und Umwelthaftpflichtversicherung (Teil 1lI: Das Umwelthaftungsgesetz 1991), Versicherungsrecht (VersR) 1991, pp. 9 - 18 Steffen, E., Verschuldenshaftung und Gefährdungshaftung, Neue Juristische Wochenschrift (NJW) 1990,pp.1817 -1822 Street on Torts, 8th ed. by Margaret Brazier, London 1988

Umweltgutachten 1987 1987, Stuttgart 1987

= Der

Rat von Sachverständigen für Umweltfragen, Umweltgutachten

v. Wilmowsky, P., Die Haftung des Abfallerzeugers - Bestandsaufnahme und rechtspolitische Leitlinien, Natur und Recht (NuR) 1991, pp. 253 - 267 v. Wilmowsky, P.I Roller, G., Civil Liability for Waste: A Legal Analysis of the Proposed EC Directive, Frankfurt a. M. 1992 Walker and Walker, The English Legal System, 5th ed., London 1980 Wiebecke, F. (editor), Umwelthaftung und Umwelthaftungsrecht, Wiesbaden 1990 Winfield and lolowicz on Tort, 13th ed. by W. V. H. Rogers, London 1989 Zöller, R., Zivilprozeßordnung (commentary), 18th ed. 1993

Appendix I: The English Legislation This appendix contains the most important English statutory provisions which are referred to in the text. The statutes appear in alphabetical order.

Clean Air Act 1956

16.-[Abatement 0/ smoke nuisanees] (l) Smoke other than-

(a) smoke emitted from a chimney of a private dwelling; or (b) dark smoke emitted from a chimney of a building or from a chimney serving the fumace of a boiler or industrial plant attached to a building or for the time being fixed to or instalied on any land, ... shall, if it is a nuisance to the inhabitants of the neighbourhood, be deemed ... to be statutory nuisance, ... (2) If the local authority are satisfied that such a nuisance as is mentioned in subsection (1) of this seetion has occurred and, a1though it has ceased, is likely to recur, they may, without serving an abatement notice, cause a complaint to be made to a justice of the peace, and a magistrates' court shall have power on that complaint to make an order on any person by reason of whose act, default or sufferance the nuisance arose prohibiting a recurrence of the nuisance and requiring hirn, within a time specified in the order, to execute any works necessary to prevent a recurrence; ...

Environmental Protection Act 1990 Part I

3.- [Emission ete. limits and quality objeetives] (I) The Secretary of State may make regulations under subsection (2) or (4) below establishing standards, objectives or requirements in relation to particular prescribed processes or particular substances.

(2) Regulations under this subseetion may (a) in relation to releases of any substance from prescribed processes into any environmental medium, prescribe standard limits for (i) the concentration, the amount or the arnount in any period of that substance which may be so released; ...

Environmental Protection Act 1990

121

7.- [Conditions o[ Authorisations]

(1) There shall be included in an authorisation (a) subject to paragraph (b) below, such specific conditions as the enforcing authority considers appropriate, when laken with the general condition implied by subsection (4) below, for achieving the objectives specified in subsection (2) below; (2) Those objectives are (b) compliance with any directions by the Secretary of State given for the implementation of any obligations of the United Kingdom under the Community Treaties or international law relating to environmental protection; (c) compliance with any limits or requirements and achievement of any quality standards or quality objectives prescribed by the Secretary of State under any of the relevant enactments;

Part II - Waste on Land

29.-[Preliminary]

(1) The following provisions have effect for the interpretation of this Part. (2) The "environment" consists of all, or any, of the following media, namely land, water and the air. (3) "Pollution of the environment" means pollution of the environment due to the release or escape (into any environmental medium) from (a) the land on which controlled waste is treated, (b) the land on which controlled waste is kept, (c) the land in or on which controlled waste is deposited, (d) fixed plant by means of which controlled waste is treated, kept or disposed of, of subtances or articles constituting or resulting from the waste and capable (by reason of the quantity or concentrations involved) of causing harm to man or any other living organisms supported by the environment. (5) For the purposes of subsections (3) and (4) above "harm" means harm to the health of living organisms or other interference with the ecological systems of which they form part and in the case of man includes offence to any of his senses or harm to his property; and "harmless" has a corresponding meaning. (11) "Substance" means any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour.

122

Appendix I: The English Legislation

33.-[Prohibition on Unauthorised or Harmful Deposit, Treatment or Disposal ete. of Wastel (l) Subject to subseetion (2) and (3) below ... a person shall not -

(a) deposit controlled waste, or knowingly cause or knowingly pennit controlled waste to be deposited in or on any land unless a waste management Iicence authorising the deposit is in force and the deposit is in accordance with the Iicence; (b) treat, keep or dispose of controlled waste, or knowingly cause or knowingly pennit controlled waste to be treated, kept or disposed of (i) in or on any land, or (ii) by means of any mobile plant, except under and in accordance with a waste management licence; (c) treat, keep or dispose of controlled waste in a manner Iikely to cause pollution of the environment or hann to human health. (7) It shall be a defence for a person charged with an offence under this seetion to prove (a) that he took a11 reasonable precautions and exercised a11 due diligence to avoid the comrnission of the offence; ...

34.-[Duty ofCare ete. as Respeets Wastel

(1) Subject to subsection (2) below, it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, to take a11 such measures applicable to hirn in that capacity as are reasonable in the circumstances (a) to prevent any contravention by any other person of seetion 33 above; (b) to prevent the escape of the waste from bis control or that of any other person; and

(c) on the transfer of the waste, to secure (i) that the transfer is only to an authorised person or to a person for authorised transport purposes; and (ii) that there is transferred such a wrinen description of the waste as will enable

other persons to avoid a contravention of that section and to comply with the duty under this subseetion as respects the escape of waste.

(6) Any person who fails to comply with the duty imposed by subsection (1) above or with any requirement imposed under subsection (5) above shall be Iiable (a) on summary conviction, to a fine not exceeding the statutory maximum; and (b) on conviction on indictment, to a fine. (7) The Secretary of State shall, after consultation with such persons or bodies as appear to hirn representative of the interests concemed, prepare and issue a code of practice for the purpose of providing to persons practical guidance on how to discharge the duty imposed on them by subsection (l) above. (10) A code of practice issued under subseetion (7) above shall be admissible in evidence and if any provision of such a code appears to the court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.

Environmental Protection Act 1990

123

35.-[Waste Management Licences: General] (I) A waste management licence is a licence gran ted by a waste regulation authority authorising the treatment, keeping or disposal of any specitied description of controlled waste in or on specified land or the treatment or disposal of any specified description of controlled waste by means of specified mobile plant. (3) A licence shall be granted on such terms and subject to such conditions as appear to the

waste regulation authority to be appropriate and the conditions may relate (a) to the activities which the licence authorises, ...

39.-[Surrender 0/ Licences]

(I) A licence may be surrendered by its holder to the authority which granted it but, in the case of a site licence, only if the authority accepts the surrender. (5) The authority shall determine whether it is likely or unlikely that the condition of the land, so far as that condition is the result of the use of the land for the treatment, keeping or disposal of waste (whether or not in pursuance of the licence), will cause pollution of the environment or harm to human health. (6) If the authority is satisfied that the condition of the land is unlikely to cause the pollution or harm mentioned in subsection (5) above, the authority shall ... accept the surrender of the licence; but otherwise the authority shall refuse to accept it. (9) Where the surrender of a licence is accepted under this section the authority shall issue to the applicant, with the notice of its determination, a certificate (a "certificate of completion") stating that it is satisfied as mentioned in subsection (6) above and, on the issue of that certificate, the licence shall cease to have effect.

42.-[Supervision 0/ Licensed Activities] (I) While a licence is in force it shall be the duty of the waste regulation authority which

gran ted the licence to take the steps needed -

(a) for the purpose of ensuring that the activities authorised by the licence do not cause pollution of the environment or harm to human health or become seriously detrimental to the amenities of the locality affected by the activities; and (b) for the purpose of ensuring that the conditions of the licence are complied with. (3) For the purpose of performing the duty imposed on it by subsection (I) above, any officer of the authority authorised in writing for the purpose by the authority may, if it appears to hirn that by reason of an emergency it is necessary to do so, carry out work on the land or in relation to plant or equipment on the land to which the licence relates or, as the case may be, in relation to the mobile plant to which the licence relates.

124

Appendix I: The English Legislation (4) Where a waste regulation authority incurs any expenditure by virtue of subsection (3) above, the authority may recover the amount of the expenditure from the holder of the licence or, if the licence has been surrendered, from the former holder of it, except where the holder or former holder of the licence shows that there was no emergency requiring any work or except such of the expenditure as he shows was unnecessary.

59.-[Powers to Require Removal of Waste Unlawfully Depositetf] (I) If any controlIed waste is deposited in or on any land in the area of a waste regulation authority or waste collection authority in contravention of section 33(1) above, the authority may, by notice served on hirn, require the occupier to do either or both of the following, that is -

(a) to remove the waste from the land within a specified period not less than aperiod of twenty-one days beginning with the service of the notice; (b) to take within such aperiod specified steps with a view to eliminating or reducing the consequences of the deposit of the waste. (5) If a person on whom a requirement imposed under subsection (I) above fails, without reasonable excuse, to comply with the requirement he shall be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale and to a further fine of an amount equal to one-tenth of level 5 on the standard scale for each day on which the failure continues after conviction of the offence and before the authority has begun to exercise its powers under subsection (6) below. (6) Where a person on whom a requirement has been imposed under subsection (I) above by an authority fails to comply with the requirement the authority may do what that person was required to do and may recover from hirn any expenses reasonably incurred by the authority in doing it. (7) If it appears to a waste regulation authority or waste collection authority that waste has been deposited in or on any land in contravention of section 33(1) above and that(a) in order to remove or prevent pollution of land, water or air or harm to human health it is necessary that the waste be forthwith removed or other steps taken to eliminate or reduce the consequences of the deposit or both; or (b) there is no occupier of the land; or (c) the occupier neither made nor knowingly permitted the deposit of the waste; the authority may remove the waste from the land or take other steps to eliminate or reduce the consequences of the deposit or, as the case may require, to remove the waste and take those steps. (8) Where an authority exercises any of the powers conferred on it by subsection (7) above it shall be entitled to recover the cost incurred by it in removing the waste or taking the steps or both and in disposing of the waste (a) in a case falling within subseetion (7)(a) above, from the occupier of the land unless he proves that he neither made nor knowingly caused nor knowingly permitted the deposit of the waste; (b) in any case, from any person who deposited or knowingly caused or knowingly pennitted the deposit of any of the waste; except such of the cost as the occupier or that person shows was incurred unnecessarily.

Environmental Protection Act 1990

125

61.-[Duty ofWaste Regulation Authorities as Respects Closed Landfillsl (I) Except as respects land in relation to which a site licence is in force, it shall be the duty of every waste regulation authority to cause its area to be inspected from time to time to detect whether any land is in such a condition, by reason of the relevant malters affecting the land, that it may cause pollution of the environment or harm to human health. (7) Where, on an inspection by a waste regulation authority of any land under this section, it appears to the authority that the condition of the land is, by reason of the relevant malters affecting the land, such that pollution of the environment or harm to human health is likely to be caused it shall be the duty of the authority to do such works and take such other steps (whether on the land affected or on adjacent land) as appear to the authority to be reasonable to avoid such pollution or harm. (8) Where an authority exercises in relation to waste on any land the duty imposed by subsection (7) above, the authority shall, except in a case falling within subsection (9) below, be entitled to recover the cost or part of the cost incurred in doing so from the person who is for the time being the owner of the land, except such of the cost as that person shows was incurred unreasonably. (9) Subsection (8) above does not apply in a case where the authority accepted the surrender under section 39 above of the waste management licence which authorised the activities in the course of which the waste was deposited. (10) In deciding whether to recover the cost and, if so, how much to recover of the cost which it is entitled to recover under subsection (8) above, the authority shall have regard to any hardship which the recovery may cause to the owner of the land.

62.-[Special Provision with Respect to Certain Dangerous or Intractable Wastel (I) If the Secretary of State considers that controlled waste of any kind is or may be so dangerous or difficult to treat, keep or dispose of that special provision is required for dealing with it he shall make provision by regulations for the treatment, keeping or disposal of waste of that kind ("special waste").

63.-[Waste other than controlled Wastel (2) A person who (a) deposits any waste other than controlled waste, or (b) knowingly causes or knowingly perrnits the deposit of any waste other than controlled waste, in a case where, if the waste were special waste and any waste management licence were not in force, he would be guilty of an offence under section 33 above shall, subject to subsection (3) below, be guilty of that offence and punishable accordingly. (3) No offence is commilted by virtue of subsection (2) above if the act charged was done under and in accordance with any consent, licence, approval or authority granted under any enactment (excJuding any planning perrnission under the enactrnents relating to town and country planning).

126

Appendix I: The English Legislation

68.-[Functions of Secretary of State and Appointment etc. of Inspectors]

(2) The Secretary of State may appoint as inspectors (under whatever title he may determine) such persons having suitable qualifications as he thinks necessary for assisting hirn in discharging his functions under this Part, and may terminate any appointment made under this subsection. (3) Any waste regulation authority having functions under this Part may appoint as inspectors (under whatever tide the authority may determine) such persons having suitable qualifications as the authority thinks necessary for carrying this Part into effect in the authority's area, and may terminate any appointment made under this subsection. (4) An inspector shall not be liable in any civil or crimical proceedings for anything done in the purported performance of his functions under section 69 or 70 below if the court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it.

69.-[Powers 0/ Entry etc. o/Inspectors] (I) An inspector may ... exercise any ofthe powers specified in subsection (3) below ...

(3) The powers of an inspector referred to above are (a) ... to enter premises which he has reason to believe it is necessary for hirn to enter ... (c) to make such examination and investigation as may in any circumstances be necessary;

73.-[Appeals and Other Provisions Relating tp Legal Proceedings and Civil Liability]

(6) Where any darnage is caused by waste which has been deposited in or on land, any person who deposited it, or knowingly caused or knowingly permitted it to be deposited, in either case so as to commit an offence under section 33(1) or 63(2) above, is liable for the damage except where the damage (a) was due wholly to the fault of the person who suffered it; or (b) was suffered by a person who voluntarily accepted the risk of the damage being caused; but without prejudice to any liability arising otherwise than under this subsection. (7) The matters which may be proved by way of defence under section 33(7) above may be proved also by way of defence to an action brought under subsection (6) above.

75.-[Meaning 0/ "Waste" and Household, Commercial and Industrial Waste and Special Waste] (I) The following provisions apply for the interpretation of this Part.

(2) "Waste" includes (a) any substance which constitutes a scrap material or an effluent or other unwanted surplus substance arising from the application of any process; and

Water Act 1989

127

(b) any substance or article which requires to be disposed of as being broken, worn out, contaminated or otherwise spoiled; but does not include a substance which is an explosive within the rneaning of the Explosives Act 1875. (3) Any thing which is discarded or otherwise dealt with as if it were waste shall be presurned to be waste unless the contrary is proved. (4) "ControlIed waste" means household, industrial and cornrnercial waste or any such waste. (9) "Special waste" means controlIed waste as respects which regulations are in force under section 62 above.

Part III - Statutory Nuisances and Clean Air

79.-[Statutory Nuisances and lnspections therefor]

(1) Subject to subsections (2) to (6) below, the following rnatters constitute "statutory nuisances" for the purposes of this Part, that is to say (a) any premises in such astate as to be prejudicial to health or a nuisance; (b) smoke emitted from premises so as to be prejudicial to health or a nuisance; (c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance; (d) any dust, steam, smell or other effluvia arising on industriaI, trade or business premises and being prejudicial to health or a nuisance; (e) any accumulation or deposit which is prejudicial to health or a nuisance; and it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances ... and, where a complaint of a statutory nuisance is made to it by a person Iiving within its area, to take such steps as are reasonably practicable to investigate the complaint.

Water Act 1989

llO.-[Requirements to Take Precautions Against Pollution] (1) The Secretary of State may by regulations make provision -

(a) for prohibiting a person from having custody or control of any poisonous, noxious or polluting matter unless prescribed works and prescribed precautions and other steps have been carried out or taken for the purpose of preventing or controlling the entry of the matter into any controlled waters; (b) for requiring a person who already has custody or control of, or makes use of, any such matter to carry out such works for that purpose and to take such precautions and other steps for that purpose as may be prescribed.

128

Appendix I: The English Legislation (2) Without prejudice to the generality of the power conferred by subsection (I) above, regulations under that subsection may (a) confer power on the Authority (i) to detennine for the purposes of the regulations the circumstances in which a person is required to carry out works or take any precautions or other steps; and (ii) by notice to that person, to impose the requirement and to specify or describe the works, precautions or other steps which that person is required to carry out or take;

115.-[Anti-Pollution Works and Operations] (1) Subject to subsection (2) below, where it appears to the Authority that any poisonous, noxious or polluting matter or any solid waste matter is likely to enter, or to be or to have been present in, any controlled waters, the Authority shall be entitled to carry out the following works and operations, that is to say -

(a) in a case where the matter appears likely to enter any controlled waters, works and operations for the purpose of preventing it from doing so; or (b) in a case where the matter appears to be or to have been present in any controlled waters, works and operations for the purpose (i) of removing or disposing of the matter; (ii) of remedying or mitigating any pollution caused by its presence in the waters; or

(iii) so far as it is reasonably practicable to do so, of restoring the waters, including any flora and fauna dependent on the aquatic environment of the waters, to their state immediately before the matter became present in the waters. (3) Where the Authority carries out any such works or operations as are mentioned in subsection (I) above, it shall, subject to subsection (4) below, be entitled to recover the expenses reasonably incurred in doing so from any person who, as the case may be (a) caused or knowingly permitted the matter in question to be present at the place from which it was likely, in the opinion of the Authority, to enter any controlled waters; or (b) caused or knowingly permitted the matter in question to be present in any controlled waters.

Appendix 11: The German Legislation

This appendix gives a translation of the most important Gennan statutes mentioned in the text. The statutes appear in a1phabetical order according to their Gennan names. As to the way the statutes are quoted in the text, § 830 I 2 BGB means section 830, subsection (I), 2nd sentence of the BGB; § 14, 2 BlmSchG means section 14, 2nd sentence of the Federal Protection Against Immissions Act 1974. The statutes can easily be identified by their abbreviated names as used in the text, which appear behind their full names in this appendix.

Bundes-Immissionsschutzgesetz (BImSchG) vom 15.03.1974 (Federal Protection Against Immissions Act 1974) § 14

Exclusion of injunctions under private law On the ground of a private right ... to abate disadvantageous interferences from one piece of land to another a person may not demand the c10sure of an industrial plant of which the licence is unchallengeable; he may only demand that measures abating the interferences be taken. Insofar as, according to the state of the art, such measures are technically not feasible or economically untenable, he may only demand damages.

Bürgerliches Gesetzbuch (BGB) § 249

A person who is bound to make compensation must restore the situation which would exist if the circumstance making hirn liable to compensate had not occurred. If compensation is to be made for injury to a person or damage to a thing the creditor may demand, instead of restitution in kind, the sum of money to effect such restitution. § 251

(I) Insofar as restitution in kind is impossible, or is insufficient to compensate the creditor, the person liable must compensate him in money.

(2) The person liable may compensate the creditor in money if restitution in kind is possible only through disproportionate outlay .... 9 Pappel

130

Appendix II: The Gennan Legislation § 254

(1) If any fault of the injured party has contributed to the occurrence of the damage, the duty to compensate and the extent of the compensation to be made depend upon the circumstances, especially upon how far the injury has been caused predominantly by the one or the other party.

(2) This applies also even if the fault of the injured party was limited to omission to call the attention of the debtor to the danger of unusual serious damage, of which the debtor neither knew nor ought to have known, or to an omission to avert or mitigate the damage. The provision of § 278 applies mutatis mutandis. § 823 (1) A person who wilfully of negligently injures the life, body, health, freedom, property, or any other right of another contrary to law is bound 10 compensate hirn for any damage arising therefrom. (2) ...

§ 830

(1) If several persons have caused damage by an unlawful act cornrnitted in cornrnon, each is responsible for the damage. The same role applies if it cannot be discovered who of several participants has actually caused the damage. (2) ...

§ 852 (1) The claim for compensation for any damage ansmg from an unlawful act is barred by prescription in three years from the time at which the injured party obtained knowledge of the injury and of the identity of the person liable to make compensation, and without regard to such knowledge in thirty years from the cornrnission of the acl.

(2) ...

§ 906

(1) The owner of a piece of land is not entitled to prohibit the intrusion of gases, vapours, smells, smoke, soot, heat, noise, shocks and similar interferences emanating from another piece of land to the extent that the interference does not, or does not essentially, prejudice the use of his land. (2) The same applies insofar as an essential prejudice is caused by the use of another piece of land in conforrnity with Iocal custom, and it cannot be prevented by measures, the financing of which can be reasonably expected of users of this kind. If by virtue of this, the owner must tolerate an interference, he may demand from the user of the other piece of land an appropriate settlement in money, if a use of his land in conforrnity with local custom, or the income from it, is prejudiced by the interference over and above the expected degree. (3) The causing of intrusion by a special conduit is not pennissible.

BGB I HaftPflG I ProdHaftG

131

§ 1004

(1) If ownership is interfered with otherwise than by dispossession or withholding of possession, the owner may demand from the disturber the removal of the interference. If further interference is to be apprehended, the owner may sue for an injunction. (2) The claim is excluded if the owner is obliged to tolerate the interference.

Haftpßichtgesetz (HaftPflG) vom 04.01.1978 (Strict Liability Act 1978) §2 (1) If a human being is killed or suffers injury to body or health or a thing is damaged through the

operation of electrcity, gas, steam, or current escaping from a cable or pipeline or aplant for the provision of such energy or material, the operator of the plant is bound to make good the damage arising therefrom. (2)

(3) .,.

Produkthaftungsgesetz (ProdHaftG) vom 15.12.1989 (Product Liability Act 1989) §3

Defects (1) A product is defective if it does not provide that degree of safety which can be justfiably expected, having regard to a1l the circumstances, in particular

a)

its presentation,

b) its use which may be reasonably expected, c) (2)

the time when it was put into circulation.

132

Appendix 11: The Gennan Legislation

Umwelthaftungsgesetz (UmweltHG) vom 10.12.1990

(Environmental Liability Act 1990) §I

Liability of industrial plants for interferences in the environment If a person is killed, his body or health injured, or a thing damaged through an interference in the environment emanating from an industrial plant listed in Appendix I, the operator of the plant is liable to compensate the injured party for the resulting loss. §2

Liability for plants not in operation (1) If the interference in the environment is caused by an uncompleted plant and is due to such

circumstances as the dangerousness of the completed plant is founded on, the operator of the uncompleted plant is liable under § 1.

(2) If the interference in the environment is caused by aplant no longer in operation and is due to such circumstances as the dangerousness of the plant was founded on before its operation was terminated, the person who was the operator of the plant at the time when its operation was terminated is liable under § I.

§3 Definitions (1) An injury is due to an interference in the environment if it is caused by substances, shocks, noise, press ure, radiation, gases, vapours, heat or other phenomena which have spread in the ground, the air or the water.

(2) Industrial plants are immovable installations such as factory buildings or depots. (3) To the plants also belong a)

machines, instruments, vehic1es and other mobile technical equipment and

b)

secondary installations

which are spatially or technically related to the plant or a part of it and may be relevant to the creation of interferences in the environment.

§4 Exc1usion of liability There is no liability to the extent that the damage was caused by force majeure.

UmweltHG

133

§5

Limitation of Iiability for damage to property Where aplant has been operated in accordance with the relevant legal requirements (§ 6 II 2), Iiability for damage to property is excluded if the property is damaged insignificantly, or to an extent which is reasonable with regard to local conditions. §6

Presumption of causation (1) Where, in view of the circumstances of the particular case, aplant is capable of causing the

damage occurred, it is presumed that the damage was caused by this plant. The capability in the particular case shall be determined in view of the way the plant operates, the equipment used, the kind and concentration of substances used and released, the meteorological conditions, the time and place of the occurrence of the damage and the character of the damage as weil as alI other circumstances which speak for or against the causation of the damage in the particular case. (2) Subsection (I) does not apply if the plant was operated in accordance with the relevant legal requirements. Aplant is operated in accordance with the relevant legal requirements if the particular duties applying to its operation are complied with, and if there is no disturbance of the operation of the plant either. (3) Particular duties applying to the operation of aplant are such duties as are imposed under administrative law by way of licences, charges, enforceable orders and legal provisions, insofar as their purpose is to prevent such interferences in the environment as may have caused the damage. (4) Where the Iicence, charges, orders or legal provisions prescribe controls to ensure that a particular duty applying to the operation of aplant is discharged, compliance with this duty is presumed if l. the controls were carrled out during the period of time in which the interference in the environment in question may have emanated from the plant, and if these controls do not indicate any breach of duty, or

2. the interference in the environment in question occurred more than ten years before damages were c1aimed. §7

Exclusion of the presumption (I) Where several plants are capable of causing the damage, the presumption does not apply if, in view of the circumstances of the particular case, another factor is capable of causing the damage. The capability in the particular case shall be detennined in view of the time and place of the occurrence of the damage and the character of the damage as weil as a11 other circumstances which speak for or against the causation of the damage in the particular case. (2) Where only one plant is capable of causing the damage, the presumption does not apply if, in view of the circumstances of the particular case, another factor is capable of causing the damage. §8

Right of the injured party to obtain information from the operator of a plant

134

Appendix 11: The Gennan Legislation §9

Right of the injured party to obtain information from public authorities

§ 10

Right of the operator of a plant to obtain information ([rom the injured party and operators 0/ other plants)

§ II Contributory fault If a fault of the injured party contributed to the occurrence of the damage § 254 BGB applies; where a thing is damaged, the fault of the one who exercises the factual control over it is equivalent to the fault of the injured party. § 12

Extent of liability for death

§13 Extent of liability for personal injury other than death

§ 14

Compensation by way of periodical payments

§ 15

Financiallimits to liability The person bound to make compensation is liable for deaths and injuries to health and body up to a total amount of 160 million Gennan mark and for damage to property up to a total amount of 160 million Gennan mark, insofar as the injuries were caused by the same interference in the environment. If by reason of the same interference in the environment compensation is payable to several persons, which together exceeds the respective maximum amount specified in sentence 1, the individual awards are reduced in proportion of their total sum to the specified maximum amount.

UmweltllG

135

§ 16 Cost of repairs (1) If damage to property also represents an impairment of nature or the landscape, then, insofar as the injured party restores the situation which would exist if the impairment had not occurred, § 251 II BGB shall be applied with the proviso that the cost of restoring the previous situation shall not be regarded as disproportionate merely because it exceeds the value of the property. (2) On demand of the person entitled to compensation, the person responsible for the damage must provide the necessary means in advance.

§ 17 Prescription With regard to prescription the provisions of the BGB applicable to unlawful acts apply mutatis

mutandis.

§ 18 Further liability (I) Liability based on other statutes remains unaffected.

(2) (Exclusion of liability under the Act insofar as the damage falls within the scope of legislation applicable to nuclear incidents) § 19 Compulsory coverage (I) The operators of plants listed in Appendix 2 must ensure that they can comply with any statutory obligation to compensate personal injury or damage to property resulting from an interference in the environment which emanated from the plant (compulsory coverage). Where a plant no longer in operation creates a special hazard, the responsible public authority mayorder that the person who was the operator of the plant at the time when its operation was terminated must provide adequate coverage for aperiod of up to ten years. (2) Such coverage may be provided I.

by way of a liability insurance ... ; or

2. by way of a promise of the Federation or one of the States to the effect that they will indemnify, or guarantee for, the person liable; or 3. by way of a pro mise to the same effect made by a bank ... , provided that it offers financial security comparable to a Iiability insurance. (3) Persons as specified in § 2 I Nr. 1 - 5 Pflichtversicherungsgesetz (Compulsory lnsurance Act 1965) ... are exempted from the obligation to provide coverage. (4) The responsible public authority may prohibit a11 or part of the operation of aplant listed in Appendix 2 if the operator does not comply with his obligation to provide coverage and fails to establish proof of such coverage within a reasonable period of time to be determined by the responsible public authority.

136

Appendix 11: The Gerrnan Legislation § 20

(imposes on the Federal Government a duty to regulate details with regard to § 19)

§§ 21, 22

(contain criminal sanctions for non-compliance with § 19)

§ 23

Transitional provision This Act is inapplicable insofar as the darnage was caused before this Act came into force.

Entwurf eines Umwelthaftungsgesetzes vom 14.02.1990

(Draft ofthe UmweltHG) §8

Several persons liable Where the damage was caused by several persons, the operator of a plant listed in Appendix I is liable merely in proportion to his contribution if the damage was caused by the lawful operation of his plant.

Wasserhaushaltsgesetz (WHG) vom 16.10.1976

(Water Act 1976) § 22

Liability for changing the quality of the water (I) A person who discharges or introduces substances into water, or interferes in water in such a way that the physical, chemical or biological quality of the water is changed, is bound to make good any damage incurred by another person as a result of this. If several persons have caused the interference, they are liable jointly and severally.

(2) If aplant of which the purpose is to produce, to process, to keep, to deposit, to transport or to pipe substances emits such substances into water without discharging or introducing them therein, the operator of the plant is bound to make good any damage incurred by another person as a result of this; subsection (I) sentence 2 applies mutatis mutandis. Liability is excluded where the damage is caused by force majeure. (3) ...

ZPO

137

Zivilprozeßordnung (ZPO)

(Code o[Civii Procedure) § 287 (1) If it is controversial hetween the parties whether loss has heen incurred, and what sum the loss or compensatable interest amounts to, the court decides on this matter in view of all circumstances at its discretion .... (2) ...

Appendix III: The EC-Legislation This Appendix contains a synopsis of the original and the amended proposal for a Council Directive on civil liability for damage caused by waste as weil as extracts from the Community's framework Directive on waste and its amendment.

Amended proposal for a Council Directive on civilliability for damage caused by waste (Submitted by the Commission to the Council pursuant to Article 149 (3) of the EEC Treaty) EXPLANATORY MEMORANDUM

1.

Pursuant to Article 149(3) of the EEC Treaty, the Commission has decided to submit an amended version of its proposal for a Council Directive on civilliability for damage caused by waste (COM(89) 282 final - SYN 217). The amended proposal takes account of a number of amendments proposed by the European Parliament (adopted as document PE 146.824 of 22 November 1990) and by the Economic and Social Committee (01 No C 112, 7.5.1990, p. 23 et seq).

2.

In particular, the Commission has accepted Parliament's proposals to help clarify the wording. Accordingly, the twelfth recital now explicitly mentions the eliminator of the waste who, under Article 2 (2c), will be deemed to be the producer in certain cases. The Commission has also accepted Parliament's proposal to introduce the concept of "impairment of the environment", which, rightly, includes lasting harm to the environment, unlike the term previously used in certain Community languages. In addition, the Commission has accepted the proposal to a1low the Member States to decide autonomously, within a clearly defined framework, such matters as the right to bring actions, the legal remedies available and the burden of proof. Beyond this, the Commission has accepted other proposals by Parliament, some of them extending liability, others reducing it. For example, there are good reasons to extend liability to the exclusive economic zone on the one hand yet to limit it in cases where a third party is at fault on the other. Finally, the Commission has accepted the arrangements proposed by Parliament concerning financial security for the producer of the waste, which leave it to the producer to decide how to cover his liability.

3.

The Commission has only partly accepted the proposal concerning the right of associations to bring actions: it found the possibility of a1lowing associations to bring an action acceptable but decided that the proposal failed to make sufficiently clear reference to the nationallegislation as regards the conditions under which such actions are admissible.

4.

In contrast, the Commission has rejected other proposed amendments, notably the ideas on extending the proposal to radioactive wastes, on the carrier's liability and on limiting li ability to a set sumo

Proposed Directive on Civil Liability for Damage Caused by Waste

139

ORIGINAL PROPOSAL

AMENDED PROPOSAL

THE COUNCIL OF THE EUROPEAN

THE COUNCIL OF THE EUROPEAN

COMMUNITIES,

COMMUNITIES,

Having regard to the Treaty establishing the

Having regard 10 the Treaty establishing the

European Econornic Community, and in

European Econornic Community, and in

particular Article lOOa thereof,

particular Article lOOa thereof,

Having regard to the proposa! from the

Having regard to the proposa! from the

Commission,

Commission,

In cooperation with the European Parliament,

In cooperation with the European Parliament,

Having regard to the opinion of the Econornic

Having regard to the opinion of the Economic

and Socia! Comrnittee,

and Socia! Committee,

Whereas

Article

11 (3)

of

Directive

Whereas

Article

11(3)

of

Directive

84/631/EEC, I as last amended by Directive 86/279/EEC, 2 provides, on the basis of Arti-

84/631/EEC, 1 as last amended by Directive 86/279/EEC, 2 provides, on the basis of Arti-

cle 100 of the Treaty, for action by the Com-

cle 100 of the Treaty, for action by the Com-

munity to determine the conditions for im-

munity to determine the conditions for im-

plementing the civil liability of the producer

plementing the civil liability of the producer

in the case of damage caused by waste, or that

in the case of damage caused by waste, or that

of any other person who may be accountable

of any other person who may be accountable

for the said damage, and to determine a

for the said damage, and to determine a

system of insurance;

system of insurance;

101 No L 326,13.12.1984, p. 31.

I 01 No L 326, 13.12.1984, p. 31.

201 No L 181,4.7.1986, p. 13.

20J No L 181,4.7.1986, p. 13.

140

Appendix III: The EC-Legislation ORIGINAL PROPOSAL

AMENDED PROPOSAL

Whereas the Fourth Environment Action Programme of the European Communities of 19873 provides in point 5.3.6. that work on

Whereas the Fourth Environment Action

the question of civil liability and insurance in relation to the transfrontier movement of waste will be completed and proposals will be made; whereas it also provides in point 2.5.5. that the Commission will 'consider the scope

the question of civil liability and insurance in relation to the transfrontier movement of waste will be completed and proposals will be made; whereas it also provides in point 2.5.5. that the Commission will 'consider the scope

for the better definition of responsibility in the environmental field';

for the better definition of responsibility in the environmentaI field';

Whereas disparities among laws of the Member States concerning the liability for damage

Whereas disparities among laws of the Mem-

and injury to the environment caused by

to and impairment of the environment caused

waste could lead to artificial patterns of investment and waste; whereas such a situation would distort competition, affect the free movement of goods within the internal market and entail differences in the level of protection of health, property and the environ-

by waste could lead to artificial patterns of investment and waste; whereas such a situation would distort competition, affect the free movement of goods within the internal

Programme of the European Communities of 1987 3 provides in point 5.3.6. that work on

ber States concerning the liability for damage

market and entail differences in the level of protection of health, property and the envi-

ment; whereas an approximation of the laws of the Member States on this subject is therefore needed;

laws of the Member States on this subject is therefore needed;

Whereas, since the entry into force of the Single European Act, Article 100a has replaced Article 100 as the appropriate basis in the Treaty for approximating national

Whereas, since the entry into force of the Single European Act, Article 100a has replaced Article 100 as the appropriate basis in the Treaty for approximating national

provisions that affect the internal market;

provisions that affect the internal market;

301 No C 328, 7.12.1987, p. 6.

ronment; whereas an approximation of the

3 OJ No C 328, 7.12.1987, p. 6.

Proposed Directive on Civil Liability for Damage Caused by Waste

141

ORIGINAL PROPOSAL

AMENDED PROPOSAL

Whereas such approximation must be based on a high level of proteetion both with regard

Whereas such approximation must be based on a high level of protection both with regard

to the damage and injury to the environment which may be repaired, and the conditions that must be fulfilled in order to initiate proceedings;

to the damage to and impairment of the environment which may be repaired, and the conditions that must be fulfilled in order to initiate proceedings;

Whereas Article 11(1) of Directive 84/631IEEC requires the producer of waste to

Whereas

take all necessary steps to dispose of the waste, or arrange for its disposaI, so as to protect the quality of the environment;

Article

11(1)

of

Directive

84/631IEEC requires the producer of waste to take all necessary steps to dispose of the waste, or arrange for its disposaI, so as to protect the quality of the environment;

throughout the whole cycle from production to disposaI; whereas it concems all types of waste;

Whereas Community action in the field of waste management seeks to minimize the production and monitor the effects of waste, throughout the whole cycle from production to disposaI; whereas it concems all types of waste;

Whereas therefore the Community system of civil liability in this field should not be

civil liability in this field should not be

Whereas Community action in the field of waste management seeks to minirnize the production and monitor the effects of waste,

lirnited to damage and injury to the environment that occurs during trans fron tier movements of hazardous waste;

Whereas therefore the Community system of lirnited to damage to and impairment of the environment that occurs during transfrontier movements of hazardous waste;

Whereas this system presupposes the notion

Whereas this system presupposes the notion

of professional risk;

of professional risk;

142

Appendix III: The EC-Legislation ORIGINAL PROPOSAL

AMENDED PROPOSAL

Whereas the principles in Artic1e 130r(2) of

Whereas the principles in Artic1e 130r(2) of

the Treaty that the polluter should pay and

the Treaty that the polluter should pay and

that preventive action should be taken cannot

that preventive action should be taken cannot

be effectively implemented in the waste

be effectively implemented in the waste

management sector unless the cost of the

management sector unless the cost of the

darnage or injury to the environment caused

damage to or impairment of the environment

by the waste is reflected in the cost of the

caused by the waste is reflected in the cost of

goods or services that give rise to the waste;

the goods or services that give rise to the

whereas, in view of the risk inherent in the

waste; whereas, in view of the risk inherent in

very existence of waste, the strict li ability of

the very existence of waste, the strict liability

the producer constitutes the best solution to

of the producer constitutes the best solution to

the problem;

the problem;

Whereas, however, if the waste has been law-

Whereas, however, if the waste has been

fully transferred to an authorized disposal

lawfully transferred to an authorized disposal

installation, establishment or undertaking

installation, establishment or undertaking

pursuant to Artic1e 9 of Council Directive

pursuant to Artic1e 9 of Council Directive

78/319/EEC,4 liability must be transferred to

78/319/EEC,4 liability must be transferred to

the latter;

the latter;

Whereas, in order to safeguard the injured

Whereas, in order to safeguard the injured

party's rights, the holder of waste must be

party's rights, the holder of waste must be

able to identify the producer, on pain of

able to identify the producer, on pain of

himself being considered the producer;

himself being considered

the

producer;

whereas the Directive must also cover the liability of the eliminator of waste; Whereas in cases where the Convention on Civil Liability for Darnage caused during the Carriage of Dangerous Goods applies, the carrier should be liable within the limits laid down in the abovementioned Convention.

4 OJ No L 84,31.3.1978, p. 43.

4 OJ No L 84, 31.3.1978, p. 43.

Proposed Directive on Ci vii Liability for Darnage Caused by Waste ORIGINAL PROPOSAL

143

AMENDED PROPOSAL

Whereas in the interest of a high level of protection for the interests of the injured parties and of the environment, the Member States must offer the persons who may bring a legal action the possibility of requesting measures to prevent, suspend andlor compensate for the act or omission which caused or may cause darnage to or impairment of the environment. Whereas effective protection of the injured

Whereas effective protection of the injured

party requires that he should be ahle to claim

party requires that he should be able to claim

fuH redress from each of the parties respon-

fuH redress from each of the parties respon-

sible for the darnage or injury to the environ-

sible for the darnage to or impairment of the

ment, irrespective of the establishment of the

environment, irrespective of the establishment

relative liability of the parties;

of the relative liability of the parties;

Whereas the protection of persons and the

Whereas the protection of persons and the

environment requires that the producer's

environment requires that a person's liability

liability should not be reduced by the

should not be reduced by the involvement of

involvement of other persons having contributed to causing the darnage or injury

other persons having recklessly or negligently contributed to causing the damage to or

to the environment; whereas, however, the

impairment of the environment; whereas,

contributory negligence of the injured party

however, the intent of the injured party to

may be taken into account to assign, reduce

cause such damage or impairment or con-

or disallow such liability;

tributory negligence on his part may be taken into account to assign, reduce or disallow such Iiability;

Whereas the protection of persons and the

Whereas the protection of persons and the

environment requires compensation for death

environment requires compensation for death

and personal injury; whereas such compensa-

and personal injury; whereas such compensa-

tion should be extended to darnage to property and injury to the environment;

tion should be extended to darnage to property and impairment of the environment;

whereas this Directive does not prejudice

whereas this Directive does not prejudice

compensation for pain and suffering and

compensation for pain and suffering and

other non-material darnage payable, where

other non-material darnage payable, where

appropriate, under the law applicable to the

appropriate, under the law applicable to the

case;

case;

144

Appendix III: The EC-Legislation ORIGINAL PROPOSAL

AMENDED PROPOSAL

Whereas a uniform period of limitation for

Whereas a uniform period of limitation for

instituting compensation proceedings is in the

instituting compensation proceedings is in the

interests both of the injured party and of the

interests both of the injured party and of the

producer;

producer;

Whereas, to ensure the effective protection of

Whereas, to ensure the effective protection of

persons and the environment, no contractual

persons and the environment, no contractual

derogation should be permitted as regards the

derogation should be permitted as regards the

Iiability of the producer in relation to the

li ability of any person under this Directive in

injured party;

relation to the damage to or the impairment of the environment;

Whereas market conditions at present are

Whereas the liability of the producer and

such that it is not opportune to establish a

eliminator of waste must be covered by

mandatory system of insurance;

insurance or other financiaJ security;

Whereas rules must be laid down at Com-

Whereas rules must be laid down at Com-

munity level for compensation for damage

munity level for compensation for damage to

and injury to the environment caused by

and impairment of the environment caused by

waste in the event that payment of full

waste in the event that payment of full

compensation is not possible.

compensation is not possible.

I.

HAS ADOPTED THIS DIRECTIVE:

HAS ADOPTED THIS DIRECTIVE:

Anicle 1

Article 1

This Directive shaJl concem civilliability

1.

This Directive shaJl concem civilliability

for damage and injury to the environment

for damage and iimpairment of to the

caused by waste generated in the course of an

environment caused by waste generated in the

occupationaJ activity, from the moment it

course of an occupationaJ activity, from the

arises.

moment it arises.

Proposed Directive on Civil Liability for Darnage Caused by Waste

2.

ORIGINAL PROPOSAL

AMENDED PROPOSAL

This Directive shall not apply

2. This Directive shall not apply

to nuclear waste covered by national law based on the Convention on third Party

145

to nuclear waste covered by national law based on the Convention on third Party

Liability in the Field of Nuclear Energy

Liability in the Field of Nuclear Energy

(Paris, 29 July 1960) and the Convention

(Paris, 29 July 1960) and the Convention

supplementary to the aforementioned Convention (Brussels, 31 January 1963), as weIl as the Protocols attached to these Conventions;

supplementary to the aforementioned Convention (Brussels, 31 January 1963), as weIl as the Protocols attached to these Conventions;

to waste and pollution covered by national law based on the International

to darnage to and inpairment of the environment caused by oil from ships at

Convention on Civil Liability for Oil Pollution Damage (Brussels, 29 Novem-

sea insofar as the question of liability is regulated by the International Convention

ber 1969) and the International Conven-

on Civil Liability for Oil Pollution

tion on the Establishment of an International Fund for Compensation for Oil Damage (Brussels, 18 December 1971).

Damage of 29 November 1969 as amended by the Protocols of 19 November 1976 and 25 May 1984 and by the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Darnage of 18 December 1971 as amended by the Protocols of 19 November 1976 and 25 May 1984. 3.

This Directive shall apply not only to the

territories of the Member States but also to the exclusive economic zone over which the Member States enjoy rights and obligations under public internationallaw.

IO Pappel

Appendix III: The EC-Legislation

146

1.

ORIGINAL PROPOSAL

AMENDED PROPOSAL

Article 2

Article 2

For the purposes of this Directive:

(a) 'producer' means any natural or legal person whose occupational activities produce waste andlor anyone who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of this waste, until

1.

For the purposes of this Directive:

(a) 'producer' means any person who, in the course of a commercial or industrial activity, produces waste andlor anyone who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of this waste;

the moment when the damage or injury to the environment is caused; (b) 'waste' means any substance or object

(b) 'waste' means any substance or object

defined as waste in Article 1 of Council Directive 75/442/EEC;5

defined as waste in Council Directive 75/442/EEC;5

(c) 'damage' means: (i) damage resulting from death or physical injury; (ii) damage to property;

(d) 'injury to the environment' means a significant and persistent interference in the environment caused by a modification of the physical, chemical or biological conditions of water, soil andlor air in so far as these are not considered to be damage within the meaning of subparagraph (c) (ii).

5 OJ No L 194, 25.7.1975, p. 39.

(c) 'damage' means: (i) damage resulting from death or physical injury; (ii) damage to property;

(d) 'impairment of the environment' means any significant physical, chemical or biological deterioration of the environment insofar as this is not considered to be damage within the meaning of subparagraph (c) (ii);

5 OJ No L 194, 25.7.1975, p. 39.

Proposed Directive on Civil Liability for Damage Caused by Waste ORIGINAL PROPOSAL

147

AMENDED PROPOSAL

(e) 'person' means any natural or legal person as defined by public or private law; (0 'eliminator' means a person who carries

out any of the operations listed in Annex II A or Annex II B to Council Directive 75/442/EEC. 2.

The following shall be deemed to be the

2.

The following shall be deemed to be the

producer of the waste in place of the person

producer of the waste in place of the person

defined in paragraph I (a):

defined in paragraph I (a):

(a) the person who imports the waste into the

(a) the person who imports the waste into the

Community, except where the waste was

Community, except where the waste was

previously exported from the Community

previously exported from the Community

and its nature or composition was not

and its nature or composition was not

substantially changed prior to its reim-

substantially changed prior to its reim-

portation;

portation;

(b) the person who had actual control of the

(b) the person who had actual control of the

waste when the incident giving rise to the

waste when the incident giving rise to the

damage or injury to the environment

damage to or impairrnent of the environ-

occurred:

ment occurred, if he is not able within a reasonable period to identify the producer as defined in paragraph I(a).

(i) if he is not able within a reasonable period to identify the producer as defined in paragraph I; (ii) if the waste is in transit in the

Community without having undergone there a substantial change in nature or composition before the occurrence of the incident giving rise to the damage or injury to the environment;

10'

148

Appendix 111: The EC-Legislation ORIGINAL PROPOSAL

AMENDED PROPOSAL

(c) the person responsible for the installation, establishment or undertaking

(c) the person responsible for the installation, establishment or undertaking where

where the waste was lawfully transferred to such installation, establishment or undertaking licensed pursuant to Article 8 of Directive 75/442/EEC, Article 6 of Council Directive 75/439/EEC6 or Article 9 of Directive 78/319/EEC, or

the waste was lawfully transferred to such installation, establishment or undertaking licensed pursuant to Article 8 of Directive 75/442/EEC, Article 6 of Council Directive 75/439/EEC6 or Article 9 of Directive 78/319/EEC, or

approved pursuant to Article 6 of Council Directive 76/403/EEC.1

approved pursuant to Article 6 of Council Directive 76/403/EEC.1

Article 3

Article 3

The producer of waste shall be liahle under civil law for the damage and injury to the environment caused by the waste, irrespective of fault on his part.

1. The producer of waste shall be liahle under civil law for the damage and impairment of the environment caused by the waste, irrespective of fault on his part. In cases covered by the Convention on Civil Liability for Damage caused during the Carriage of Dangerous Goods by Road, Rail and Inland Waterway Vessels of 10 October 1989, the carrier shall also be liable within the limits laid down in the abovementioned Convention. 2. The producer shall include in his annual report the name of his insurers for civil liability purposes.

6 OJ No L 194, 25.7.1975, p. 23.

6 OJ No L 194, 25.7.1975, p. 23.

7 OJ No L 108, 26.4.1976, p. 41.

7 OJ No L 108, 26.4.1976, p. 41.

Proposed Directive on Civil Liability for Damage Caused by Waste

I.

ORIGINAL PROPOSAL

AMENDED PROPOSAL

Artide 4

Artide 4

The plaintiff may take legal action to

obtain:

149

I. The national laws of the Member States shall determine: (a) the person who may bring a legal action in the event of damage to or impairment of the environment caused or about to be caused by waste; (b) the remedies available to such persons which shall include:

(a) the prohibition or cessation of the act causing the damage or injury to the environment;

(i) an injunction prohibiting the act or correcting the omission that has caused or may cause the damage and/or compensation for the damage suffered; (ii) an injunction prohibiting the act or correcting the omission that has caused or may cause impairment of the environment;

(b) the reimbursement of expenditure arising

from measures to prevent the damage or injury to the environment;

(iii) an injunction ordering the reinstatement of the environment and/or ordering the execution of preventive measures and the reimbursement of costs lawfully incurred in reinstating the environment and in taking preventive measures (inc\uding costs of damage caused by preventive measures);

Appendix Ill: The EC-Legislation

150

ORIGINAL PROPOSAL

AMENDEO PROPOSAL

(c) the reimbursement of expenditure arising

(c) the burden of proof on the plaintiff, when

from measures to compensate for damage

affirming the causal link between the

within the meaning of subparagraph (c)

waste on the one hand and the damage or

(ii) of Article 2 (1);

impairment of the environment suffered or likely to be suffered on the other hand; the burden of proof shall be no higher than the standard burden of proof in ci vii law;

(d) the restoration of the environment to its

(d) whether and to what extent damages for

state immediately prior to the occurrence

loss of profit or economic loss may be

of injury to the environment or the reim-

recoverable.

bursement of expenditure incurred in connection with measures taken to this end; (e) indemnification for the damage. 2.

With regard to the restoration of the envi-

ronment provided for in paragraph 1 (d), the

2.

With regard to reinstatement of the

environment, as provided for in paragraph 1

plaintiff, in the case of injury to the

(b) (iii), the plaintiff may seek such rein-

environment, may seek such restoration or the

statement or the reimbursement of expendi-

reimbursement of expenditure incurred to this

ture incurred to this end except when:

end except when: the costs substantially exceed the benefit

the costs substantially exceed the benefit

arising for the environment from such

arising for the environment from such

restoration, and

reinstatement, and

other alternative measures to the restora-

other

tion of the environment may be under-

reinstatement of the· environment may be

taken at a substantially lower cost.

undertaken at a substantially lower cost.

In this latter case, the plaintiff may seek the

implementation

of

these

other

alternative

measures

to

the

In this latter case, the plaintiff may seek the

implementation

of

these

other

measures or the reimbursement of the

measures or the reimbursement of the

expenditure incurred to this end.

expenditure incurred to this end.

Proposed Directive on Civil Liability for Damage Caused by Waste ORIGINAL PROPOSAL

151

AMENDED PROPOSAL

3. As regards injury to the environment, the public authorities may take the legal action provided for in paragraph I (a), (b), and (d). 4.

Where the law in Member States gives

common interest groups the right to bring an action as plaintiff, they may seek only the prohibition or cessation of the act giving rise to the injury to the environment. If, however, they have taken the measures provided for in paragraph I (b) and (d), they may seek reimbursement of the expenditure resulting from such measures.

3.

Common interest groups or associations,

which have as their object the protection of nature and the environment, shall have the right either to seek any remedy under paragraph 1(b) or to join in legal proceedings that have already been brought. The conditions under which the interest groups or associations defined in the previous sentence may bring an action before the competent authorities shall be laid down by nationallegislation.

5.

to national provisions relating to non-material

This Directive shall be without prejudice

4. This Directive shall be without prejudice to national provisions relating to non-material

damage.

damage.

6. The plaintiff shall be required to prove the damage or injury to the environment, and show the overwhelming probability of the causal relationship between the producer's waste and the damage or, as the case may be, the injury to the environment suffered.

Article 5

Article 5

Where, under this Directive, two or more

I. Where, under this Directive, two or more persons are liable for the same damage to or the same impairment of the environment, they

producers are liable for the same damage or the same injury to the environment, they shall be liable jointly and severally, without prejudice to the provisions of national law conceming the right of redress.

shall be liable jointly and severally.

152

Appendix III: The EC-Legislation ORIGINAL PROPOSAL

AMENDED PROPOSAL

2.

This Directive shall apply without pre-

judice to the provisions of national laws of the Member States concerning the right of redress.

Article 6

I.

The producer shall not be liable under

Articte 6

I.

No liability shall attach to any person if

this Directive if he shows that the damage or

he proves that, in the absence of fault on his

injury to the environment results from force

part:

majeure as defined in Community law. (a) the damage to or impairment of the environment was caused by an act or omission of a third party with the intent to cause such damage or impairment; or (b) the damage to or impairment of the environment resulted from force majeure as defined in Community law. 2.

The producer shall not be relieved of

liability by the sole fact that he holds a permit issued by the public authorities.

2.

The producer shall not be relieved of

liability by the sole fact that he holds a permit issued by the public authorities.

Proposed Directive on Civil Liability for Damage Caused by Waste

I.

ORIGINAL PROPOSAL

AMENDEO PROPOSAL

Anicie 7

Article 7

Without prejudice to the provisions of

I.

153

No liability for damage to or impairment

nationallaw concerning the right of recourse,

of the environment caused by waste shall

the Iiability of the producer shall not be

attach to the eIiminator if he can prove that,

reduced when the damage or injury to the

in the absence of fault on his part, the pro-

environment is caused both by the waste and

ducer of the waste deceived hirn as to the true

by an act or omission of a third party.

character of the consignment of waste which caused such damage or impairment; in such an eventuality, Iiability shall rest with the producer. 2.

The Iiability of any person may be wholly

2. The Iiability of the producer may be reduced or disallowed when, having regard to

or partially waived if he can prove that the

all the circumstances, the damage is caused

damage to or impairment of the environment

both by the waste and the fault of the injured

has been caused in whole or in part by the

party or of any person for whom the injured

injured party or by any employee or agent of

party is responsible.

the said party.

Anicle 8

Article 8

The liability of the producer arising from this

The Iiability of any person arising from this

Directive may not be Iimited or excluded in

Directive may not be limited or excluded in

relation to the injured person by any conlractual provision Iimiting his liability or

relation to the injured person by any conlrac-

exempting hirn from liability.

exempting hirn from Iiability.

tual

provision

Iimiting his

liability

or

Appendix III: The EC-Legislation

154

1.

ORIGINAL PROPOSAL

AMENDED PROPOSAL

Articte 9

Article 9

Member States shall provide in their

1.

Member States shall provide in their

legislation that taking of legal proceedings

legislation that any legal proceedings under

under this Directive shall be barred upon

this Directive shall be barred upon expiry of a

expiry of aperiod of three years from the date

period of three years from the date on which

on which the party taking legal action under

the person taking legal action under Article

Article 4 (1) (a) became aware or should have

4(1) became aware or should have become

become aware of the damage or injury to the

aware of the damage to or impairment of the

environment and of the identity of the pro-

environment.

ducer. 2. This Directive shall not affect Member States' provisions on the suspension or

2. This Directive shall not affect Member States' provisions on the suspension or

interruption of the limitation period.

interruption of the limitation period.

Article 10

Article JO

The right to take legal action under this

The right to take legal action under this

Directive shall be exstinguished upon the

Directive shall be exstinguished upon the

expiry of aperiod of 30 years from the date

expiry of aperiod of 30 years from the date

on which the incident giving rise to the damage or injury to the environment

on which the incident giving rise to the damage or impairment of to the environment

occurred, unless in the meantime proceedings

occurred, unless in the meantime proceedings

against the party liable for the damage or

against the party Iiable for the damage to or

injury

impairment of to the environment have been

to

instituted.

the

environment

have

been

instituted.

Proposed Directive on Civil Liability for Damage Caused by Waste

155

ORIGINAL PROPOSAL

AMENDED PROPOSAL

Article 11

Article 11

The Council, acting on a proposal from the Comrnission, shall determine by 31 Decem-

I. The liability under this Directive of the producer, who in the course of a commercial or industrial activity produces waste, and of

ber 1992 at the latest the conditions to be applied and the means to be used in order to provide compensation for the damage and injury to the environment covered by this Directive in the event that:

the eliminator shall be covered by insurance or any other financial security.

the person liable under this Directive

2.

cannot be identified,

the Commission shall detennine by 31 December 1992:

The Council, acting on a proposal from

common rules governing the situation arising the person liable is incapable of providing fuH compensation for the damage and/or injury caused.

(i) where the person liable is incapable of providing fuH compensation for the damage to and/or impainnent of the environment caused or (ii) the person liable under this Directive

cannotbeidentified. In this regard the Commission shall study the feasibility of the establishment of a 'European Fund for Compensation for Damage and Impairment of the Environment caused by Waste'.

156

Appendix III: The EC-Legislation ORIGINAL PROPOSAL

AMENDED PROPOSAL

Article 12

Article 12

This Directive shall not affect:

This Directive shall not affect any rights established by the International Convention on Limitation of Liability for Maritime Claims (London, 19 November 1976).

(a) any rights which may be relied upon by the plaintiff under this Directive or under international conventions on civil liability for the carriage of dangerous goods in force at the relevant time; (b) any rights established by the International Convention on Limitation of Liability for Maritime Claims (London, 19 November 1976).

Article 13

Article 13

This Directive shall not apply to darnage or injury to the environment arising from an incident which occurred before the date on which its provisions are implemented.

This Directive shall not apply to darnage to or impairrnent of the environment arising frorn an incident which occurred before the date on which its provisions are implemented.

Article 14

Article 14

1. Member States shall bring into force, not later than 1 January 1991, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith inforrn the Cornrnission thereof.

1. Member States shall bring into force, not later than 1 January 1991, the laws, regulations and administrative provisions necessary to cornply with this Directive. They shall forthwith inform the Commission thereof.

Proposed Directive on Civil Liability for Damage Caused by Waste ORIGINAL PROPOSAL

2.

157

AMENDEO PROPOSAL

The provisions adopted pursuant to

2. The provisions adopted pursuant to para-

paragraph 1 shall make express reference to this Directive.

graph I shall make express reference to this Directive.

3.

Member States shall comrnunicate to the

3.

Member States shall communicate to the

Comrnission the texts of the provisions of national law which they adopt in the field govemed by this Directive.

Commission the texts of the provisions of national law which they adopt in the field govemed by this Directive.

Article 15

Article 15

This Directive is addressed to the Member

This Directive is addressed to the Member

States.

States.

Appendix III: The EC-Legislation

158

COUNCIL DIRECTIVE of 15 July 1975 on waste (75/442/EEC) Artic/e 1

For the purposes of this Direetive: (a) 'waste' means any substanee or objeet whieh the holder disposes of or is required to dispose of pursuant to the provisions of nationaIlaw in force; (b)

Artic/e 2

1. 2.

The following shall be excluded from the seope of this Direetive: (a) radioaetive waste; (b) waste resulting from prospeeting, extraetion, treatment and storage of mineral resources and the working of quarries; (e) animal earcases and the following agrieultural waste: faeeal matter and other substanees used in farming; (d) waste waters, with the exeeption of waste in liquid form; (e) gaseous effluents emitted into the atmosphere; (f) waste eovered by specifie Community rules.

Council Directives

159

COUNCIL DIRECTIVE

of 18 March 1991 amending Directive 75/4421EEC on waste (9111 56/EEC)

Artide 1 Directive 75/4421EEC is hereby amended as folIows: Articles 1 to 12 are replaced by the following:

Anicte 1

For the purposes of this Directive: (a) "waste" shall mean any substance of object in the categories set out in Annex 1 which the holder discards or intends or is required to discard.

Artide 2 1.

The following shall be excluded from the scope of this Directive: (a) gaseous effluents emitted into the atmosphere; (b) where they are already covered by other legislation: (i) radioactive waste; (ii) waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries; (iii) animal carcases and the following agricultural waste: faecal matter and other natural, non-dangerous substances used in farming; (iv) waste waters, with the exception of waste in liquid fonn; (v) decommissioned explosives.

2.