Milan Conference, 131202

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Milan Conference, 13/12/02

• Civil Liability, the Environment and Private
  Enforcement
• Lessons from the European Court
• of Justice and European Mining Laws
• by
• Gerrit Betlem
• University of Exeter

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Contents

• 1. Regulatory context
• 2. Empirical research
• 3. Aarhus Convention
• 4. Lessons from Mining Laws
• 5. ECJ Private Enforcement
• 6. Global Judges Symposium the Johannesburg
  Principles

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1. Regulation Liability

• Command and control
• 41 Washburn Law Review 2002 Spring issue
• Empirical research, e.g.
• Gary T. Schwartz, "Reality in the Economic
  Analysis of Tort Law Does Tort Law Really
  Deter?," 1994 UCLA Law Review 377, TOC

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2 Deterrence by Tort Law

• Real-World Evidence and Observations
• Workers' Injuries
• Motorist Liability
• Medical Malpractice
• Products Liability
• Non-profit and Governmental Agencies
• Landowner Liability, and Miscellany
• New Zealand

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3. Aarhus Convention

• Convention has 3 pillars (title)
• Access to Information
• EIA IPPC
• Access to Justice, including
• Judicial Review AND ...
• Private Enforcement Article 9

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3. Aarhus Art. 9(3)

• Article 9 Access to Justice
• (3) each Party shall ensure that ... members
  of the public have access to administrative or
  judicial procedures to challenge acts and
  omissions by private persons and public
  authorities which contravene its national law
  relating to the environment.

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4. European Mining Law

• Subsidence damage
• Proof of causation
• Easing the burden of proof
• Statutory presumptions
• Easing the litigation burden
• Expert reports

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5. ECJ Munoz case

• Case C-253/00 Muñoz v. Frumar 2002 ECR-nyr (17
  September 2002)
• keywords agriculture quality standards table
  grapes right of an operator to seek enforcement
  of the quality standards in civil proceedings
• CMLR complementary nature civil and public
  enforcement mechanisms

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5. ECJ Munoz ruling

• Question for preliminary ruling does the
  Regulation create legal obligations enforceable
  by civil action by an operator against another
  operator?
• Purposes of quality standards Regulations include
  fair trading and market transparency

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5. Munoz (cntd.)

• full effectiveness implies that it must be
  possible to enforce that obligation by civil
  action by a trader against a competitor ( 30)
• this strengthens practical working of the rules
  and supplements public enforcement it helps to
  discourage unlawful practices

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5. Munoz (cntd.)

• Operative part (ECJ hereby rules)
• Regulation (EEC) No 1035/72 Fruit and Veg
  are to be interpreted as meaning that compliance
  with the ... quality standards must be capable of
  enforcement by means of civil proceedings
  instituted by a trader against a competitor

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6 Johannesburg Principles

• WSSD, August 18-20 2002
• Global Judges Symposium
• Adoption of the Johannesburg Principles on the
  Role of Law and Sustainable Development
• 4 Guiding Principles and and 11 point Program

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6. Joburg Principles summary

• Reach goals of SustDev by enforcing the law
• Reach goals Millennium Declaration UNGA
• Education judicial colloquia
• Judicial co-operation to improve enforcement of
  environmental law

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6. Joburg (cntd.)

• Work program
• improve public participation, including access to
  justice
• Ad Hoc Committee of Judges, Chair Chief Justice
  of South-Africa, to review and publish emerging
  environmental jurisprudence
• develop law of liability and compensation under
  international and national law

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Concluding remarks

• Proposal for a Directive on environmental
  liability fails to secure effective private
  enforcement
• This is out of step with the EUs international
  obligations (Aarhus) and
• with developments in ECJ case law
• as well as (future) national case law