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Part II Non-Contractual Obligations Arising Out of Tort/Delict, 7 Environmental Damage

From: The Rome II Regulation: The Law Applicable to Non-Contractual Obligations

Andrew Dickinson

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 06 June 2023

Applicable law — Exemption from liability — Applicable law to non-contractual obligations — Environmental damage — Scope of the law applicable under the Rome II Regulation — Recognition and enforcement of foreign judgments – Brussels and Lugano Conventions — Non-contractual obligations

(p. 429) Environmental Damage

  1. A. Introduction 7.01

  2. B. Scope of Article 7 7.03

  3. C. The Law Applicable to Non-Contractual Obligations Arising Out of Environmental Damage 7.15

  4. D. The Role of Rules of Safety and Conduct (Art 17) 7.27

  5. E. Regulation by International Convention 7.31

Article 7  Environmental damage

The law applicable to a non-contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined pursuant to Article 4(1), unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred.

A. Introduction

7.01  Art 7 of the Rome II Regulation reflects closely the provision contained in Art 7 of the Commission Proposal. The Commission justified the need for a special provision as follows:1

European or even international harmonisation is particularly important here as so many environmental disasters have an international dimension. But the instruments (p. 430) adopted so far deal primarily with questions of substantive law or international jurisdiction rather than with harmonisation of the conflict rules. And they address only selected types of cross-border pollution. In spite of this gradual approximation of the substantive law, not only in the Community, major differences subsist—for example in determining the damage giving rise to compensation, limitation periods, indemnity and insurance rules, the right of associations to bring actions and the amounts of compensation. The question of the applicable law has thus lost none of its importance.

Analysis of the current conflict rules shows that the solutions vary widely. The lex fori‎ and the law of the place where the dangerous activity is exercised play a certain role, particularly in the international Conventions, but the most commonly applied solution is the law of the place where the loss is sustained (France, United Kingdom, Netherlands, Spain, Japan, Switzerland, Romania, Turkey, Quebec) or one of the variants of the principle of the law that is most favourable to the victim (Germany, Austria, Italy, Czech Republic, Yugoslavia, Estonia, Turkey, Nordic Convention of 1974 on the protection of the environment, Convention between Germany and Austria of 19 December 1967 concerning nuisances generated by the operation of Salzburg airport in Germany). The Hague Conference has also put an international convention on cross-border environmental damage on its work programme, and preparatory work seems to be moving towards a major role for the place where the damage is sustained, though the merits of the principle of favouring the victim are acknowledged.

7.02  This aspect of the Commission’s Proposal initially met with a mixed reaction from the Member State delegations in the Council’s Rome II Committee.2 Some supported the choice offered to the victim,3 while others argued for the deletion of the rule, or expressed concerns, on the grounds that it was unnecessary and/or that it was too onerous.4 The European Parliament, on the recommendation of its JURI Committee,5 (p. 431) deleted the special rule at its first reading stage.6 That position was not accepted, however, by either the Commission7 or the Council’s Rome II Committee, whose member delegations were slowly being persuaded by the merits of the rule.8 That momentum was carried forward into the Council’s Common Position, the wording of which is mirrored in Art 7 of the Regulation in its final form. The recommendation of the EP JURI Committee to delete this rule on second reading9 was defeated in the plenary session.10 The only issue remaining in the conciliation process was the Parliament’s proposal to insert a recital defining the concept ‘environmental damage’ by reference to Art 2 of the Environmental Liability Directive.11 This move, although not accepted by the Council, led to the compromise text now to be found in Recital (24).12

B. Scope of Article 7

Civil or Commercial Matters—Claims by Public Authorities

7.03  Like the other rules in the Rome II Regulation, Art 7 applies only to ‘civil or commercial matters’.13 This concept in Art 1(1), which also appears in the Brussels I Regime and Rome I Regulation, covers not only claims between private parties, but also claims by non-public bodies to enforce, for example, laws for the protection of consumers.14 On the other hand, it excludes from the scope of the Regulation claims by or against States or other public bodies acting in the exercise of their public powers.15 In Netherlands State v Rüffer, a claim by the State, as the authority responsible (p. 432) for policing inland waterways, to recover the costs of removing a wreck was held not to constitute a civil matter within the Brussels Convention. On this basis, a claim by a public authority to recover its costs of remedying a pollution incident from the person responsible for that incident would also fall outside the scope of the Rome II Regulation if that action was based on a provision enabling it recover the costs of exercising its public powers.16 The Regulation would, however, apply (for example) if the public authority based its claim on a right to compensation for damage suffered by it as the owner of land17 or as transferee, by subrogation or otherwise, of the private law rights of an injured person.18

7.04  In relation to matters of jurisdiction and the enforcement of Member State judgments under the Brussels I Regime, Gerrit Betlem and Christophe Bernasconi have argued for a ‘green’ interpretation of the concept of ‘civil and commercial matters’ so as to cover claims by public authorities acting in the exercise of their public powers to ensure compliance with environmental law.19 This argument is based on the objectives for environmental protection listed in Art 174 of the EC Treaty.20 The authors note that in Verein für Konsumentinformation v Henkel,21 the ECJ referred to the Unfair Terms in Consumer Contracts Directive22 to support a broad construction of the connecting factor in Art 5(3) of the Brussels Convention (matters relating to tort, delict, or quasi-delict),23 and suggest that the Environmental Liability Directive may require a similar approach to be taken to the concept of ‘civil and commercial matters’ in Art 1(1) of the Brussels I Regulation insofar as the civil enforcement of environmental protection measures are concerned.

7.05  With respect, this argument cannot be accepted, whether in relation to the Brussels I Regime or the Rome II Regulation. In Henkel, the claim before the Court had been brought by a consumer organization under the Austrian regulations implementing the Unfair Terms Directive, which in turn specifically contemplates that court proceedings may be taken by organizations of this kind to enforce the terms of the Directive.24 It was the (p. 433) claimant’s status as a consumer organization, and the fact that it was not exercising public powers, and not the fact that it was pursuing an action to enforce EC law, that brought the claim within the concept of ‘civil and commercial matters’ under the Brussels Convention.25 The Environmental Liability Directive, on the other hand, excludes any intention to affect civil liability regimes26 and achieves its objectives by conferring enforcement powers on the Member States’ designated competent authorities.27 Natural or legal parties may request the competent authority to act,28 and must be given access to a court or other independent and impartial body to review the competent authority’s decisions, acts, or failure to act under the Directive.29 The Directive does not, however, confer a direct right of action against the polluter on individuals or representative groups. Further, the Directive disclaims any intention to affect rules of private international law.30 The Directive thus leaves the law applicable to non-contractual obligations arising out of environmental damage to be determined by reference to the rules of applicable law contained in the Rome II Regulation (principally, but not exclusively,31 Art 7), subject to any overriding mandatory rules of the law of the forum32 and to any international convention prescribing rules of applicable law.33 It does not purport to affect the scope or content of that instrument or the Brussels I Regulation.

7.06  Against this background, the right of a Member State’s competent authority to recover the costs of taking preventative and remedial measures under the Directive,34 and the exercise of any similar right conferred on it under national law,35 should be seen as being based on the exercise of (p. 434) powers of a public nature conferred exclusively on it, and as falling outside the Brussels I Regime and the Rome II Regulation. The cross-border recovery by Member State authorities of clean up costs involves mutual legal assistance,36 which is properly the subject of a Community measure under Art 175 of the EC Treaty. It is not appropriate for it to be shoehorned into instruments dealing with private international law rules adopted under Arts 61 and 65. Nor, in the case of the Art 7 of the Rome II Regulation, can it be said that the objectives set out in Art 174 of the EC Treaty have not been taken into account, as they are specifically referred to in Recital (25) as justifying the adoption of a rule favourable to the person sustaining the damage.37 Accordingly, the concept of ‘civil and commercial matters’ in Art 1(1) of the Regulation should not be given a broader interpretation for matters falling within Art 7 than for matters falling within the other rules of applicable law in Chapters II and III.

Types of Damage to which Article 7 Applies

7.07  Art 7 applies to ‘environmental damage or damage sustained by persons or property as a result of such damage’.

Environmental Damage

7.08  For the purposes of this Article, Recital (24) defines ‘environmental damage’ as meaning:

[A]dverse change in a natural resource, such as water, land or air, impairment of a function performed by that resource for the benefit of another natural resource or the public, or impairment of the variability among living organisms.

7.09  This broad and concise definition may be compared with the more detailed, and narrower,38 definition contained in the Environmental Liability Directive, as follows:39

  1. 1. ‘environmental damage’ means:

    1. (a)  damage to protected species and natural habitats,40 which is any damage that has significant adverse effects on reaching or maintaining the favourable (p. 435) conservation status41 of such habitats or species. The significance of such effects is to be assessed with reference to the baseline condition, taking account of the criteria set out in Annex I;

      Damage to protected species and natural habitats does not include previously identified adverse effects which result from an act by an operator which was expressly authorised by the relevant authorities in accordance with provisions implementing Article 6(3) and (4) or Article 16 of Directive 92/43/EEC42 or Article 9 of Directive 79/409/EEC43 or, in the case of habitats and species not covered by Community law, in accordance with equivalent provisions of national law on nature conservation.

    2. (b)  water damage, which is any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, as defined in Directive 2000/60/EC,44 of the waters45 concerned, with the exception of adverse effects where Article 4(7) of that Directive applies;

    3. (c)  land damage, which is any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms;

  2. 2. ‘damage’ means a measurable adverse change in a natural resource46 or measurable impairment of a natural resource service47 which may occur directly or indirectly.

7.10  The Environmental Liability Directive applies to (a) environmental damage caused by any of the occupational activities listed in Annex III to the Directive, and (b) damage to protected species and natural habitats caused by other occupational activities through the fault or negligence of the operator, as well as to any imminent threat of such damage occurring by reason of such activities.48 Certain matters are also specifically excluded from the scope of the Directive.49 The definition of ‘environmental damage’ in Recital (24) of the Rome II Regulation is not subject to these restrictions, although nuclear damage is excluded from the scope of the Regulation by Art 1(2)(f).50

(p. 436) Damage Sustained by Persons or Property as a Result of Such Damage

7.11  Without prejudice to relevant national legislation, the Environmental Liability Directive accords no right of compensation to private parties as a consequence of environmental damage or of an imminent threat of such damage.51 Nor does the Directive apply to cases of personal injury, to damage to private property, or to any economic loss; nor does it affect any right regarding these types of damages.52

7.12  Art 7 of the Regulation, on the other hand, expressly extends to ‘damage sustained by persons or property’ as a result of environmental damage. These words, initially suggested by the Belgian delegation,53 were no doubt intended to emphasize that Art 7, unlike the Environmental Liability Directive,54 applied to claims for personal injury and property damage resulting from environmental damage. Although the English language version is not as clear as it might be,55 it may appear that liability for economic loss resulting from environmental damage, but not itself consequential on personal injury or property damage, falls outside Art 7, and within the general rule in Art 4. That impression is supported by Recital (14) to the Environmental Liability Directive56 which refers to ‘economic loss’ alongside personal injury and damage to private property as a matter excluded from the scope of the Directive.

7.13  Against this view, it can be argued that the addition of the specific reference to ‘damage sustained by persons or property’ serves only to emphasize that personal injury or property damage must not be treated as ‘indirect consequences’ of the environmental damage from which they arise when applying the rule of applicable law in Art 4(1), to which Art 7 refers.57 On this view, a claim to recover ‘pure’ economic loss consequential upon environmental damage may still fall within Art 7, although its location will not be a relevant factor in determining the law applicable under Art 4(1).58 This seems the better view, as it avoids unnecessary (p. 437) splitting of the applicable law between claims for environmental damage and economic loss flowing from it and is consistent with the objectives underlying Art 7, set out in Recital (25).59

Approach to Characterization

7.14  In characterizing a claim as falling within or outside Art 7, it is the consequences of the event giving rise to damage and not the event giving rise to damage itself that must be analysed. If the obligation in question concerns the responsibility of the defendant or a person for whose acts the defendant is liable for environmental damage or its consequences, Art 7 will apply whether that responsibility is strict or fault-based. Under English law,60 the provision will accommodate many claims based on the tort of nuisance61 or the related principle originating in the nineteenth century case of Rylands v Fletcher62 as well, for example, as some cases of tortious negligence and breach of statutory duty.

C. The Law Applicable to Non-Contractual Obligations Arising Out of Environmental Damage


7.15  Art 7 provides that the law applicable to a non-contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage shall be determined in accordance with Art 4(1), resulting in the application of the law of the country in which the damage occurred. The person seeking compensation for damage may, however, choose instead to base his or her claim on the law of the country in which the event giving rise to the damage occurred.

(p. 438) 7.16  These rules are to be read together with Recital (25), which provides:63

Regarding environmental damage, Article 174 of the Treaty, which provides that there should be a high level of protection based on the precautionary principle and the principle that preventive action should be taken, the principle of priority for corrective action at source and the principle that the polluter pays, fully justifies the use of the principle of discriminating in favour of the person sustaining the damage …

The Basic Rule—The Law Determined Pursuant to Art 4(1)

7.17  As a starting point, the law applicable to non-contractual obligations falling within the scope of Art 7 is determined by the provisions of Art 4(1), pointing towards application of the law of the country in which the damage occurred (or is likely to occur).64 Art 7 does not cross-refer to Arts 4(2) or 4(3), allowing displacement of the law of the country of damage on the basis of a common habitual residence or manifestly closer connection to another country.65 Nor is it a relevant consideration that the defendant could not have foreseen that damage would occur in the country in question.66

7.18  In the view of the Commission:

The basic connection to the law of the place where the damage was sustained is in conformity with recent objectives of environmental protection policy, which tends to support strict liability. The solution is also conducive to a policy of prevention, obliging operators established in countries with a low level of protection to abide by the higher levels of protection in neighbouring countries, which removes the incentive for an operator to opt for low-protection countries. The rule thus contributes to raising the general level of environmental protection.

7.19  The structure of Art 7 suggests that the location of the environmental damage and the location of resulting damage sustained by persons or property must be determined separately for the purposes of determining the basic applicable law, although it may be doubted whether this will make any material difference to the outcome of the enquiry.67 For personal injury or damage to property, Recital (17) provides that the country in (p. 439) which the damage occurs should be the country where the injury was sustained or the property was damaged respectively. For environmental damage, the wording of Recital (24)68 suggests that the damage will occur in any place in which there is an adverse change in a natural resource, such as water, land or air, impairment of a function performed by that resource for the benefit of another natural resource or the public, or impairment of the variability among living organisms (as applicable).

7.20  In the case of water or air pollution, in particular, the change may spread itself over a wide area. In principle, damage must be considered to have occurred in every country in which there is an adverse change to water or air quality, even if this results from the diffusion of pollutants from their original source due, for example, to the flow of a river69 or wind. If the claim relates to environmental damage in more than one country, the laws of those countries must be applied on a distributive basis.70

7.21  Economic loss consequential upon damage to persons or property or, if within the scope of Art 7,71 environmental damage must be considered to be an indirect consequence of the environmental damage and left out of account in determining the law applicable under Art 4(1).72

The Claimant’s Right of Election—The Law of the Country in which the Event Giving Rise to Damage Occurred

7.22  The person seeking compensation, who will not necessarily be the same as the person who originally sustained the damage, may elect that the law of the country in which the event giving rise to damage occurred should be applied instead of the law or laws to which Art 4(1) points. For this purpose, the ‘event giving rise to the damage’ should be taken as the event for which the defendant is alleged to be responsible, whether or not it consists of his own act or omission.73

7.23  According to the Commission:74

[T]he exclusive connection to the place where the damage is sustained would also mean that a victim in a low-protection country would not enjoy the higher level of (p. 440) protection available in neighbouring countries. Considering the Union’s more general objectives in environmental matters, the point is not only to respect the victim’s legitimate interests but also to establish a legislative policy that contributes to raising the general level of environmental protection, especially as the author of the environmental damage, unlike other torts or delicts, generally derives an economic benefit from his harmful activity. Applying exclusively the law of the place where the damage is sustained could give an operator an incentive to establish his facilities at the border so as to discharge toxic substances into a river and enjoy the benefit of the neighbouring country’s laxer rules. This solution would be contrary to the underlying philosophy of the European substantive law of the environment and the ‘polluter pays’ principle.

Article 7 accordingly allows the victim to make his claim on the basis of the law of the country in which the event giving rise to the damage occurred. It will therefore be for the victim rather than the court to determine the law that is most favourable to him.

7.24  If the claimant elects to have applied the law of the country in which the event giving rise to damage occurred, that law will displace the law or laws otherwise applicable by reference to Art 4(1) for all purposes. The claimant may not, for example, seek to apply one law to the question of the defendant’s liability and another to the question of available remedies. There is no room for dépeçage‎.75

7.25  Recital (25) provides that ‘the question of when the person seeking compensation can make the choice of the law applicable should be determined in accordance with the law of the Member State in which the court is seised’. For example, under the pre-existing German law, which recognized a similar right of election for torts generally,76 the election (Bestimmungsrecht‎) must be made before the end of the first hearing or written pre-trial proceeding77 in the court of first instance. A similar rule is proposed in Art 46a of the German draft law to adopt the Rome II Regulation.78

7.26  Under current English procedural law, a party wishing to assert that a foreign law applies to the case must plead and prove (by expert evidence) that foreign law to the satisfaction of the judge.79 Otherwise English law will usually be applied even in cross-border cases.80 These rules, and their (p. 441) relationship to the rules of applicable law in the Regulation, are examined more closely in Chapter 14 below.81 In this connection, however, and subject to compliance with the relevant rules of procedure and to the court’s discretion in case management matters, it remains open to a party to seek to amend his statement of case82 and to adduce additional evidence83 at any point up to and, in limited circumstances, following judgment or on appeal.84 ‘Decisions as to the form of the pleadings and the relief to be sought are not an election against reliance on other allegations of fact or law, or other claims, and a party may change his position subject to obtaining leave’.85 Accordingly, in the absence of a specific procedural rule for the exercise of the right of a claimant before the English courts to choose that the law of the country in which the event giving rise to the damage occurred should apply to a claim under Art 7, it would appear to remain open to him to make that choice at any time, subject to the court’s discretion as to whether to allow any amendment of his statement of case or additional evidence required for this purpose.

D. The Role of Rules of Safety and Conduct (Art 17)

7.27  Art 17 of the Regulation requires that ‘account should be taken’ by Member State courts of the ‘rules of safety and conduct which were in force at the place and time of the event giving rise to liability’. The origin and effect of that provision are considered in Chapter 15.86 In view of the extensive regulation under national law of industrial and other processes liable to cause environmental damage, Art 17 may have a particular significance in the context of environmental claims falling within Art 7. In this connection, the Commission noted:87

A further difficulty regarding civil liability for violations of the environment lies in the close link with the public-law rules governing the operator’s conduct and the safety rules with which he is required to comply. One of the most frequently asked (p. 442) questions concerns the consequences of an activity that is authorised and legitimate in State A (where, for example, a certain level of toxic emissions is tolerated) but causes damage to be sustained in State B, where it is not authorised (and where the emissions exceed the tolerated level). Under Article 13 [of the Proposal88], the court must then be able to have regard to the fact that the perpetrator has complied with the rules in force in the country in which he is in business.

7.28  It is, however, important to appreciate that the requirement to ‘take account’ of rules of safety and conduct does not mean that those rules must be applied to determine questions of civil liability, in particular insofar as they exonerate the defendant or authorize particular conduct that has caused or may cause environmental damage. The Commission itself emphasizes this point, as follows:89

Taking account of foreign law is not the same thing as applying it: the court will apply only the law that is applicable under the conflict rule, but it must take account of another law as a point of fact, for example, when assessing the seriousness of the fault of the author’s good or bad faith for the purposes of the measure of damages.

7.29  With respect to Art 7, if the claimant chooses to base his claim on the law of the country in which the event giving rise to damage occurred or if the damage also occurred in that country leading to the application of its law in any event, the defendant may rely (for example) on the fact that he complied with local emissions standards or on the terms of a public licence to undertake certain activity, if those facts constitute a defence under that law. If, on the other hand, the damage occurred in a country other than that in which the defendant acted, and the claimant does not exercise his right of election under Art 7, the defendant’s compliance with regulatory standards or the terms of a licence granted by the authorities for the place where the defendant acted will assist him only if, having regard the law of the country of damage, it is appropriate to take them into account under Art 17 in assessing the defendant’s fault (if liability is fault based) or if that law recognizes his compliance as having equivalent effect to compliance with its own regulatory requirements or to a public licence granted under its own law and as providing him with a defence. Questions as to the recognition of a foreign licence, being a matter concerning the grounds of exemption from liability, are governed solely by the law applicable under the Regulation.90 Art 17 does not extend this far.

(p. 443) 7.30  In the well-known case of Bier v Mines de potasse d’Alsace, following reference to the ECJ on the question of jurisdiction,91 the French defendant raised in its defence the fact that it had been authorized to carry out its activities by permits granted under French law. That defence was rejected both at trial and subsequently on appeal on the ground that the permits expressly preserved the rights of third parties.92 The Dutch first instance court acknowledged, however, that the existence of the French permits was ‘not without importance to the question of liability’.93

E. Regulation by International Convention

Relationship with Art 7

7.31  Cross-border activities causing environmental damage are increasingly regulated by international agreements.94 Among other matters, some conventions regulate civil liability of those responsible for pollution or the causes of pollution, particularly in relation to the marine environment.95 Typically, these conventions do not contain rules concerning the law applicable to civil claims.96 Instead, they regulate substantive law and require State parties to give effect to their provisions in all situations to which they apply. Accordingly, if the Member State in which proceedings are brought is a party to a relevant civil liability convention, the provisions of that convention will likely take precedence as overriding mandatory provisions of (p. 444) the law of the forum State under Art 16 of the Rome II Regulation, whether directly or through the measures taken by that State to implement the convention. If the Member State in which proceedings are brought is not a party to a relevant civil liability convention, then the convention will probably have effect only if the State whose law applies to the non-contractual obligation under Art 7 is a party and if the matters regulated by the convention fall within the scope of the law applicable, as defined in Chapter III of the Regulation,97 excluding matters of evidence and procedure.98

The Oil Pollution Conventions

7.32  Arguably, the most important of the conventions in force dealing with civil liability for environmental damage are the 1969 Convention on civil liability for oil pollution99 and the 2001 Convention on civil liability for bunker oil pollution damage.100 These contain detailed rules governing the liability of shipowners and related persons for pollution damage caused by the escape of oil from ships. All Member States with the exception of Austria, Czech Republic, Romania, and Slovakia are Contracting States under the Oil Pollution Convention.101 Twelve Member States are States Parties under the Bunker Oil Pollution Convention.102

7.33  The Oil Pollution Convention in its amended form applies to oil pollution caused in the territory of a Contracting State, including in its territorial sea, or in a Contracting State’s exclusive economic zone established under (p. 445) international law.103 The Convention provides for the liability of the shipowner at the time of the pollution incident, excludes the liability of others,104 permits the shipowner to limit his liability by establishing a limitation fund in a Contracting State court,105 and protects shipowners who have taken this step.106 The Convention also requires oil-carrying ships registered in a Contracting State to take out insurance, and provides for a right of direct action against the insurer.107 The Bunker Oil Pollution Convention, which has the same territorial scope,108 is modelled along similar lines.109 Both Conventions contain rules on jurisdiction and the recognition and the enforcement of judgments, but not as to the law applicable to matters not expressly regulated by the Convention.110

7.34  Neither Convention applies to oil pollution damage caused in a non- Contracting State or on the high seas. The law applicable to claims with respect to such damage in a Member State court must be determined in accordance with Art 7 of the Rome II Regulation.111(p. 446)


1  Commission Proposal, 19. Also F Munari and L Schiano Di Pepe, ‘Liability for Environmental Torts in Europe: Choice of Forum, Choice of Law and the Case for Pursuing Effective Legal Uniformity’, in A Malatesta (ed), The Unification of Choice of Law Rules on Torts and Other Non-Contractual Obligations in Europe (2006), 173–219; C Bernasconi, ‘Civil liability resulting from transfrontier environmental damage: a case for the Hague Conference?’, Preliminary Document No 8 of May 2000, available at <http://www.hcch.net/upload/wop/gen_pd8e.pdf>; 2nd Report of the International Law Association’s Committee on Transnational Enforcement of Environmental Law, Report of the 71st Conference (Berlin, 2004), 909–26; Final Report of the ILA Committee on Transnational Enforcement of Environmental Law, Report of the 72nd Conference (Toronto, 2006), 655–71.

2  Council document 5340/04 [27.1.2004], 3; Council document 11801/04 [28.7.2004], 4

3  Council documents 9009/04 [29.4.2004], 3 (Luxembourg); ibid‎, ADD 2 [3.5.2004], 3 (Czech Republic); ibid‎, ADD 7 [11.5.2004], 3 (Estonia); ibid‎, ADD 10 [18.5.2004] (Spain).

4  Council documents 9009/04 ADD 1 [3.5.2004], 3 (Austria); ibid‎, ADD 5 [7.5.2004], 2 (Finland); ibid‎, ADD 11 [24.5.2004], 9–10 (Germany); ibid‎, ADD 13 [24.5.2004], 5 (Ireland); ibid‎, ADD 14 [24.5.2004], 4 (Lithuania); ibid‎, ADD 15 [26.5.2004], 6 (UK).

5  EP 1st Reading Report, 24.

6  EP 1st Reading Position, Amendment 33. For criticism of the Parliament’s position, see F Munari and L Schiano di Pepe, n 1 above, 193–204; G Betlem and C Bernasconi, ‘European Private International Law, the Environment and Obstacles for Public Authorities’ (2006) 122 LQR 125, 137–44.

7  Commission Amended Proposal, 6.

8  Council document 13001/05 [13.10.2005], 4; Council document 7709/06 [3.5.2006] 13.

9  EP 2nd Reading Recommendation, Amendment 18.

10  EP 2nd Reading Position, Art 6.

11  Directive (EC) No 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage (OJ L143, 56 [30.4.2004]), as amended by Directive (EC) No 2006/21 (OJ L102, 15 [11.4.2006]) (Environmental Liability Directive). Consolidated version availableat<http://eur-lex.europa.eu/LexUriServ/site/en/consleg/2004/L/02004L0035-20060501-en.pdf>.

12  7.08 below.

13  3.263–3.286 above.

14  Case C-167/00, Verein für Konsumentinformation v Henkel [2002] ECR I-8111, para 30.

15  Ibid‎, para 26.

16  e.g. Environmental Liability Directive, n 11 above, Art 8(1).

17  Case C-343/04, Land Oberöstereich v ČEZ as [2006] ECR I-4557 (a Brussels Convention case).

18  Case C-271/00, Gemeente Steenbergen v Baten [2002] ECR I-10489; Case C-433/01, Freistaat Bayern v Blijdenstein [2004] ECR I-981 (both Brussels Convention cases).

19  G Betlem and C Bernasconi, n 6 above, 135–7.

20  Also Art 6 (‘Environmental protection requirements must be integrated into the definition and integration of the Community policies and activities …’).

21  Case C-167/00 [2002] ECR I-8111 (also 3.240 above).

22  Directive (EC) No 93/13 on unfair terms in consumer contracts (OJ L141, 27 [24.4.1993]).

23  Ibid‎, para 43.

24  Unfair Terms in Consumer Contracts Directive, n 22 above, Art 7(2).

25  VfK v Henkel, n 21 above, para 30.

26  Environmental Liability Directive, Recitals (11)–(14) and (29); Art 3(3) (see F Munari and L Schiano di Pepe, n 1 above, 187–90).

27  Ibid‎, Recital (15) and Art 11.

28  Ibid‎, Art 12.

29  Ibid‎, Art 13.

30  Ibid‎, Recital (10), referring specifically to the Brussels I Regulation (see F Munari and L Schiano di Pepe, n 1 above, 192–3).

31  The parties may choose the law applicable in accordance with Art 14 (Ch 13 below).

32  Regulation, Art 16. Those rules may, in turn derive from an international convention (7.31–7.34).

33  Regulation, Art 28. The best example of such a convention in the area covered by Art 7 of the Rome II Regulation is probably the Nordic Environmental Protection Convention, discussed at 1.36 above, between Denmark, Finland, and Sweden (Member States) and Norway (a non-Member State). Also n 96 below.

34  Environmental Liability Directive, n 11 above, Art 8.

35  If a public body invokes a right conferred by international treaty (cf G Betlem and C Bernasconi, n 6 above, 136–7), the nature of that right will need to be examined in detail to see whether it derogates from the rules of law applicable to private individuals (VfK v Henkel, n 21 above, para 40).

36  The cooperation provisions in Art 15 of the Environmental Liability Directive are plainly inadequate for this purpose.

37  7.16 below.

38  Cf EP 3rd Reading Report, 8, suggesting that the definition in Recital (14) is ‘in line with other EU instruments, such as the Directive on Environmental Liability’.

39  Environmental Liability Directive, n 11 above, Art 2 (footnotes added). See F Munari and L Schiano di Pepe, n 1 above, 190–1.

40  ‘Protected species and natural habitats’ is defined in Art 2(3) of the Directive.

41  ‘Conservation status’ is defined in Art 2(4) of the Directive.

42  Directive (EEC) No 92/43 on the conservation of natural habitats and of wild fauna and flora (OJ L206, 7 [22.7.1992], as amended).

43  Directive (EEC) No 79/409 on the conservation of wild birds (OJ L103, 1 [25.4.1979]).

44  Directive (EC) No 2000/60 establishing a framework for the Community action in the field of water policy (OJ L327, 1 [22.12.2000]).

45  ‘Waters’ is defined in Art 2(5).

46  ‘Natural resource’ is defined in Art 2(12) of the Directive.

47  ‘Natural resource services’ are defined in Art 2(13) of the Directive.

48  Environmental Liability Directive, n 11 above, Art 3(1).

49  Ibid‎, Art 4.

50  3.208–3.216 above.

51  Environmental Liability Directive, n 11 above, Art 3(3).

52  Ibid‎, Recital (14).

53  Council document 9009/04 [4.5.2004], 3

54  Text to n 52 above.

55  Compare the German language version (referring to ‘einer solchen Schädigung herrührenden- Personen- oder Sachschaden‎’) and the French language version (referring to ‘dommages subséquents subis par des personnes ou causés à des biens‎’).

56  Text to n 52 above.

57  4.36–4.45 above. Also Recital (17).

58  It is, however, difficult to conceive in circumstances in which personal injury will be sustained or damage to property will occur in a country other than that in which the environment was damaged (7.19–7.20 below).

59  7.16 below.

60  For a comparative survey of German, English, and French rules concerning environmental liability, see C van Dam, European Tort Law (2005), para 1414. Also C Bernasconi, n 1 above, 16–26.

61  A M Dugdale and M A Jones, Clerk and Lindsell on Torts (19th edn, 2006), ch 20.

62  (1866) LR 1 Ex 265, affirmed (1886) LR 3 HL 30. Also Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264 (UKHL); Transco plc v Stockport MBC [2003] UKHL 61; [2004] 2 AC 1.

63  The remainder of Recital (25) concerns the procedure for exercise of the claimant’s right of election (7.25–7.26 below).

64  4.21–4.74 above.

65  Cf 4.76–4.95 above.

66  The Netherlands’ delegation in the Council’s Rome II Committee made a proposal along these lines, but it was not taken up (Council document 9009/04 ADD 16 [28.5.2004], 5). Also S C Symeonides, ‘Rome II and Tort Conflicts: A Missed Opportunity?’ (2008) 56 AJCL 173, 210–11.

67  n 58 above.

68  7.08 above.

69  As occurred in the Brussels Convention case of Bier (Case 21/76, Handelskwekerij G J Bier BV v Mines de Potasse d’Alsace [1976] ECR 1735).

70  4.69–4.74 above.

71  7.12–7.13 above.

72  4.36–4.45 above.

73  4.33–4.35 above.

74  Commission Proposal, 19–20.

75  4.78–4.79 above.

76  Introductory Act to the German Civil Code (EGBGB), Art 40(1), second sentence.

77  German Civil Procedure Code (Zivilprozessordnung‎ or ZPO), §275–6.

78  Gesetz zur Anpassung der Vorschriften des Internationalen Privat-rechts an die Verordnung‎ (EG) Nr 864/2007, reproduced in (2008) 28 IPRax 364, Art 46a.

79  See Sir L Collins et al. (ed), Dicey, Morris & Collins, The Conflict of Laws (14th edn, 2006), Rule 18(1) and commentary.

80  Ibid‎, Rule 18(2) and commentary.

82  Civil Procedure Rules, Part 17.

83  Ibid‎, rr 32.10 (witness statements) and 35.13 (expert’s report).

84  Litigants will generally be held to the basis on which they have presented their case at trial, but this is not an absolute rule (see K R Handley, Estoppel by Conduct and Election (2006), para 15-041).

85  K R Handley, ibid, para 15-027, referring to United Australia Ltd v Barclays Bank Ltd [1941] AC 1, 18-19 (Viscount Simon LC, UKHL).

86  15.26–15.34 below.

87  Commission Proposal, 20.

88  Regulation, Art 17.

89  Commission Proposal, 25.

90  Art 15(1)(b). For more detailed discussion of the effects of licence on liability in crossborder cases, see 2nd Report of the International Law Association’s Committee on Transnational Enforcement of Environmental Law, n 1 above, para 3.5.

91  4.26 above.

92  Hoge Raad‎, Judgment of 23 September 1988, RvdW (1988); (1990) 21 Netherlands Yearbook of International Law 434, 439. The Supreme Court judgment was followed by the announcement of a settlement between the parties (ibid‎, 440).

93  Rechtbank Rotterdam‎, Judgment of 16 December 1983, NJ 1984, No 341. For an English translation, see (1984) Netherlands Yearbook of International Law 471.

94  For detailed analysis of this subject area, see C Redgwell, ‘International Environmental Law’, ch 22 in M Shaw (ed), International Law (2nd edn, 2006). Also P Birnie and A Boyle, International Law and the Environment (2nd edn, 2002); P Sands, Principles of International Environmental Law (2nd edn, 2003); E Louka, International Environmental Law: Fairness, Effectiveness, and World Order (2006); J Brunnee, D Bodansky, and E Hey, The Oxford Handbook of International Environmental Law (2007).

95  Environmental Liability Directive, n 11 above, Art 4(2) and Annex IV. For a survey of international conventions regulating civil liability for environmental damage, see C Bernasconi, n 1 above, 4–16.

96  A notable exception is the Nordic Convention on the protection of the environment (1.36 above). Also C Bernasconi, n 1, 26–8. It seems doubtful whether Art 4 of the Convention for the prevention of pollution from ships (London, 2 November 1973) (MARPOL), to which Bernasconi refers (ibid‎, 27), constitutes a rule regulating the law applicable to civil obligations, as these are not addressed in the Convention, which deals only with State enforcement measures.

97  Ch 14 below.

98  Art 1(3).

99  Adopted 29 November 1969, as amended by later protocols, including (in particular) the protocol adopted on 27 November 1992 which substantially revised the text (Oil Pollution Convention). See also the Convention on the establishment of an international fund for compensation for oil pollution damage, adopted on 18 December 1971, as amended by later protocols. The consolidated text of both Conventions is available at <http://www.iopcfund.org/npdf/Conventions%20English.pdf>. For the UK implementing legislation, see Merchant Shipping Act 1995, ss 152–71.

100  Adopted 23 March 2001 (Bunker Oil Pollution Convention). The Convention entered into force in November 2008. See Council Decision 2002/762/EC of 19 September 2002 authorising the Member States, in the interest of the Community, to sign, ratify or accede to the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (the Bunkers Convention) (OJ L 256, 7 [25.09.2002]). The text of the Convention is available at <http://www.official-documents.gov.uk/document/cm66/6693/6693.pdf>. See Merchant Shipping (Oil Pollution) (Bunkers Convention) Regulations (SI 2006/1244).

101  Source: International Maritime Organisation (<http://www.imo.org/includes/blast-DataOnly.asp/data_id%3D22499/status-x.xls>). See Merchant Shipping (Oil Pollution) (Bunkess Convention) Regulations (SI 2006/1244).

102  Ibid‎. The Member States referred to are Bulgaria, Cyprus, Estonia, Germany, Greece, Latvia, Lithuania, Luxembourg, Portugal, Slovenia, Spain, United Kingdom.

103  Oil Pollution Convention, Art II.

104  Ibid‎, Art III.

105  Ibid‎, Art V.

106  Ibid‎, Art VI.

107  Ibid‎, Art VII.

108  Bunker Oil Pollution Convention, Art 2.

109  Ibid‎, Arts 3–7.

110  Oil Pollution Convention, Arts IX and X; Bunker Oil Pollution Convention, Arts 9 and 10.

111  For discussion as to the application of the Regulation to events and damage occurring in an area outside State sovereignty, see 3.311–3.314 and 4.48 and 4.56–4.57 above.