LIMITS OF ENVIRONMENTAL LIABILITY

Transcription

1 Pázmány Péter Catholic University Faculty of Law and Political Sciences Doctoral School of Law and Political Sciences ORSOLYA CSAPÓ LIMITS OF ENVIRONMENTAL LIABILITY The Effect of Community Law on Hungarian Regulations in the Context of the Directives Ph.D. thesis Supervisor: Dr. Gyula BÁNDI Piliscsaba, 2015.

2 When civilized man destroys in blind vandalism the natural habitat surrounding and sustaining him, he threatens himself with ecological ruin. Once he begins to feel this economically, he will probably realize his mistakes, but by then it may too late Research summary Law is not only the compilation of all legislation, as it has an ethical and moral content. Its basic task is to carry and keep ethical standards. It translates the judgements of society on the concepts of good, correct and valuable into generally enforceable mechanisms. The aim of the research is to study the situation of the environment in this respect. As it is our common treasure, the environment is our shared responsibility. We are on the whole and jointly responsible for our current behaviour and errors, to shape our future. The overuse and pollution of the elements of the environment is the common concern of humanity. But can this responsibility be translated to liability legislation, and can this be enforced in practice? What are the tools and mechanisms the Hungarian legal system uses in this respect? Are the rules and legislation permeated with this underlying content, or we have lost direction in the maze of standards? Is or can this content fully included in the standard texts, thus goes into practice; or the target is only covered in spots and the application of laws is directed solely by close translation? The issue concerns not only our individual choices, but the operation and the activities of states and organisations; it reaches beyond the scope of our national rules. In order to keep the scope of my research manageable, I studied Hungarian legislation and the effects of Community law focusing on the legislation involving explicit and general liability rules. The liability rules of the specialised legislation and of the procedures for implementing regulations are omitted as these contain the regulation of legislation at higher hierarchical levels. These create separate titles, but their regulation method and system correspond to higher level rules as their interpretation and application as well. Based on the loopholeness principle, there is no definition that is impossible to be drawn under the scope of any law. Comparing this with our general assumption, i.e. the environment is our common responsibility, do we really find a liability rule for any 1 LORENZ, KONRAD: Civilized Man s Eight Deadly Sins. Harcourt Brace Jovanovich,

3 environmentally offensive conduct? Certainly not. It would be an unrealistic expectation to create these with a drastic twist. Nevertheless, we can examine if we are heading towards that direction. In my view, the task of law is not to follow, but direct the value judgement of society into a morally correct course. Its task is not to connect liability definitions and sanctions to socially incorrect behaviour afterwards, but with prevention, creating and expanding liability to unwanted situations, and wait for its effect, thus dictating to and persuading society to inevitable changes. On the practical level, the thesis discusses the theoretical basis and structure of environmental liability, it analyses in depth only the Directives on environmental liability of the European Union with regard to national legislation, examining its place, role and adequacy. 2. The presentation of the thesis, its research method The thesis starts with a taxological foundation introducing the historical and systematic development of environmental law. Then, it attempts to locate environmental liability within the legal framework. It determines that due to the fact that the matter reaches across different areas of law, other institutions are used for its own targets of environmental protection. In the light of this, it tries to reveal which provisions are adequate to claim environmental interests within other areas of law. It is stated that the flexibility provided by the various principles is well usable in the research scope. Following an outline of environmental legislation, the summary of the individual rules and environmental liability rules incorporated in certain standards are presented. The next chapter attempts to lay the dogmatic foundations of the research. Within this framework, a comparative study of the concept of the environment is presented with regard to the legal literature, and the corresponding national and international legislation. Finally, a differentiated overview is given on the possible interpretations through the summarising and systematising conclusions. Starting from the general description of the concept of damages, the definition of environmental damage is presented along the lines of the above-mentioned method.

4 Chapter four discusses the institution of liability. The subchapter on the basics of liability examines the matter on a theoretical level irrespective of the various fields of law and institutions of liability. Under the title of the forms of environmental liability, the aspects to be considered and the results to be expected during their application are classified in a dogmatic way with regard to the environmental institutions outlined in the former chapter. The third part of this chapter describes the system of liability relations, how mankind s joint moral liability develops into a fragmented and complicated net of obligee-obligor relationship. The next two parts of the thesis give more content and detailed particulars following the theoretical grounding. In the first part of chapter five, the environmental liability legislation of the European Union is investigated. Following a short descriptive presentation of the environmental legislation of the Union, its environmental liability system is studied in more detail on the grounds of the theoretical chapters discussing the relationships and classifications. The developmental span of the environmental liability is introduced: from the first generation rules simply prescribing liability, through the second generation rules specifying formal requirements against the sanctioning system, finally to the individualised environmental liability standards incorporated in directives containing detailed provisions. After this historical and outlining subchapter, a comprehensive look at the environmental liability directives follows. First, Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (ELD) is discussed. Apart from its detailed presentation and analysis, the thesis looks at the practices of the Court, its critical review included. The other thoroughly described and analysed regulation is Directive 2008/99/EC on the protection of the environment through criminal law. The thesis also looks at the formation and debates over the directives implementation, and their conformation to the requirements of international legislation. Chapter six is an outline of the Hungarian environmental liability legislation. As a starting point at the principles of environmental liability, the problems of liability and the principles of integration, then the national difficulties deriving from the perceptional differences of the right to the environment with regard to basic rights is addressed.

5 Next, general conclusions on the characteristics of environmental liability in the Hungarian legislation is included, followed by their common rules. From this point, the institutions are briefly outlined, then the study focuses on the effects of the Union legislation. Along this line, a comparative study of the preceding and subsequent valid timeframe, and the rules included in the directives are presented taking into regard the fields covered by the directives. Within the framework of the common rules of environmental liability, this basically corresponds to the investigation of the standards of the conceptual system, the subject of the liability, his obligations and the methodology of liability. An effect of the directive is the narrowing down of the concept of endangering the environment to the cases of direct danger, as a result of which the possibilities to claims by the environmental non-profit organisations are regrettably narrower as well. The law (on the general rules of envrionmental protection, LIII.) defines the basis of legal liability in such a way that the user of the environment is hold liable for his activities that have an effect on the environment; and due to other legislation he also has criminal, civil, and administrative liability. In my opinion, this regulation is a backward step compared to the former simply exemplary enumeration, which is concluded by the critical analysis made during the investigation. The phrase defining liability is also unadequate, as it only specifies tort by activities, and not damages by negligence. The judicial practice can correct this by broad construction, nevertheless the text of the law ought to be amended. Among the general rules, the law enacts presumptions as well as joint and several rules. While investigating their contents, the lack of details concerning the issue of excusions is of concern, e.g. in the part on possessors, where the change of concept should be considered at least on the level of practice. The thesis hereinafter is divided into three parts following the structure of the abovementioned environmental law, separately discussing the modes of administrative, criminal and private liability. Following the general introduction of the Hungarian administrative liability system, the law includes regulations corresponding to the contents of the ELD. By a critical analysis of the regulations with regard to the implementation of the liability directive, it is concluded that the polluter pays principle does not fully enforced. First of all, on the basis of the regulations the user of the environment is not obliged to bear all the costs deriving from the damages caused, thus e.g. the obligation to bear transitional expenses is missing, i.e. provisions of the costs of the state. On the other hand, the Hungarian

6 legislation is more permissive as far as excusions are concerned with regard to natural circumstances and official decisions, neverheless there are exemption reasons never applied. According to the spirit of the directive, the Hungarian law regulates the possibility (and not its obligation) of the authorities measures to be taken in case the tortfeaser does not take the necessary steps for damage prevention and remedying activities. It regulates the order of claiming costs and their collaterals. As far as the term of limitation with regard to claiming costs is concerned, the law is inaccurate, e.g when defining starting points, or when it generally ties the start of deadlines to the end of work and not to its payment. The rule on the subsequent collection of administrative payments is also incorrect when it determines the scope of obligors mentioning only the user of the environment and the owner of the property, and not any other obligors on the basis of the law s presumptions. A more general definition would be more fortunate if subsequently the obligor becomes known, then the administration would claim its already executed payments, and he should be held liable for the other elements of the liability. In the next part of the chapter on the Hungarian legislation, the other forms of administrative liability is outlined, briefly touching upon administrative fines and infringements in environmental legislation. The topicality of these latter issues without Community involvement are justified by their readjustment. Next, the environmental criminal legislation is discussed. The creation of the new Hungarian Criminal Code reshaped the regulation of environmental crimes, as it organised the increased number of facts into a new chapter. On the one hand, compliance with the directives analysed in the chapter on community legislation is reviewed, on the other hand, the novelties are examined. It is concluded that the number of facts have risen, however from the point of view of their contents the lawmaker only focused on their clarification and disambiguation. As regards the directive, it is to be concerned that all the facts are covered by Hungarian legislation, thus not taking into account the original target of the directive. Namely, the phrase such as the operation of a plant, where there are hazardous activities pursued, or hazardous materials and products are stored or used, or these may cause the death or severe injury to people while not in operation, where the Hungarian law presumes these to be punished only with regard to nuclear activities, and not to other dangerous activities pursued similarly.

7 In the scope of analysis of the criminal regulations, the thesis looks at the sanctions that can be taken against legal persons, while focusing on its compliance with community legislation. On the whole, it is to be stated that the Hungarian regulation is stricter on several points as compared to the directives. Crossing the minimal harmonisation requirements, the Hungarian legislation properly decided in favour of a general implementation of the institutions, thus expanding the scope of liability to other people and activities. It retained objective liability as the foundation of administrative liability, however on the basis of ELD it could have withdrawn. The number of facts in the criminal code exceeds the requirements, and the punishability of legal persons is general. The statutory instruments are inaccurate at several points, they incoherent, moreover they leave a number of existing possibilities unused. The thesis shortly outlines the private instruments of environmental liability. It does not indulge deeply in this issue, as the effect of community legislation is minimal in this area; the effects existing do not concern environmental interests. Numerous legal institutions are referred to in the new Civil Code, these have not yet came into the horizon of environmental private law, nevertheless these would be suitable. Only some changes are drawn to our attention with regard to the already known legal institutions, their detailed analysis is not given. Finally, the thesis briefly examines the instruments of due process. In this context, the issues of social participation, access to information, participation in decision making, and the right to justice are reviewed. The reason of brevity is that even the European Union has its own challenges in these fields. As the investigational area falls under the scope of international agreement, where Hungary is a member state, in theory the Hungarian legislation is compliant with it. The thesis does not examine this matter. Nevertheless, the European Union could not implement all the legislation covering all fields of liability, therefore is not studied.

8 3. Summary The operative Hungarian legislation has a great number of environmental regulations, as well as a complex liability system. While investigating these two, many newly developed institutions and those that had been taken from community legislation are reviewed. It is concluded that the conceptual system is too complicated, in some cases unnecessarily. The theoretical foundations are not clear. The general organisation of liability is not suitable, it allows for narrowing interpretation, confusing the dogmatic background of environmental liability. By looking at the various formations of liability, seemingly an uninterrupted protection is presumed, but it is not true. The implementation of community legislation as regards the liability formations mainly targeting the protection of expressed environmental interests is accomplished, however it needs more clarification. In the Hungarian legislation, apart from the liability standards protecting expressed environmental interests, a number of liability institutions would be suitable for protecting the environment next to their original aims. Nevertheless, there is no clearly founded legislative background for this practice, thus the success of the environmental viewpoint is obiter dictum occasional. The application of problem-filled standards is sporadic. The repository of damages to the environment is wide, and the circles involved as well. The thesis illustrating the complexity of the regulation, and its problems, tries to unveil the possible formations of liability, thus in the interest of humanity aiding the enforcement of laws. The institutions of liability have a guarantee characteristics, but they do not offer real solution to problems. Law is not the sole and most important instrument for protecting the environment. We must however facilitate the solution with all instruments available, as The environment can survive without humans, but humans cannot survive without the environment. 2 2 KRÄMER, LUDWIG

9 4. Related Publications Csapó Orsolya: A környezet fogalma az elméletben és a jogszabályokban. In: Pogácsás Anett (szerk.): Quaerendo et Creando: Ünnepi kötet Tattay Levente 70. születésnapja alkalmából. Budapest: Szent István Társulat, pp Csapó Orsolya: Felelősség, biztonság? A környezeti károk megelőzése és felszámolása tekintetében a környezeti felelősségről szóló 2004/35/EK irányelvről. In: Csehi Zoltán - Koltay András - Landi Balázs - Pogácsás Anett (szerk.): (L)ex cathedra et praxis. Ünnepi kötet Lábady Tamás 70. születésnapja alkalmából. Budapest, Pázmány Press, pp Csapó Orsolya: A környezetvédelmi felelősségi rendszer kialakulóban lévő elemei az Európai Unióban. In: Nagy Dénes - Zilahy Gyula (szerk.): III. Országos Környezetgazdaságtani Phd Konferencia. 300 p. Budapest: Papirusz Book, pp Bándi Gyula - Csapó Orsolya - Kovács-Végh Luca - Stágel Bence - Szilágyi Szilvia: Az Európai Bíróság környezetjogi ítélkezési gyakorlata: a másodlagos jog intézményeinek fejlődése és az esetjog. Budapest: Szent István Társulat, p. Bándi Gyula - Csapó Orsolya - Kovács-Végh Luca - Stágel Bence - Szilágyi Szilvia: The environmental jurisprudence of the European Court of Justice: the development of instruments of environmental law and the judicial practice. Budapest: Szent István Társulat, p. Csapó Orsolya: A környezeti károkért való felelősség kérdése az Európai Unióban. IUSTUM AEQUUM SALUTARE 2007:(3.) pp Csapó Orsolya - Harangozó Gábor - Kiszela Gergő: Kötelező és önkéntes környezeti tájékoztatás, különös tekintettel a szennyezés-kibocsátásokra: Kutatási jelentés. Budapest: EMLA Környezeti Management és Jog Egyesület, p.