Keywords: Applicable law, choice of laws, environmental damage, environmental protection, European law, non-contractual obligations, predictability, polluter payer, Rome II, torts, transboundary pollution
Abstract: Early in 2009, the Rome II Regulation on the law applicable to non-contractual obligations came into force in the European Community. As the very first European Regulation on choice of law, it finally enables environmental lawyers to refer to a single primary source throughout the EC when dealing with conflict of laws issues (that is, cases having a foreign element, such as those involving transboundary pollution) rather than asserting the law applicable according to the private international laws of the numerous Member States. This article focuses on the rules relating to environ-mental damage and, in particular, on Article 7, which appears to be the 'black sheep' of Rome II. In contrast to Rome II as a whole, Article 7 has no real background in European tradition; it is expressly grounded in Community law, and, last but not least, it deliberately creates uncertainty. Despite its character as an inverse mirror of the system of Rome II, Article 7 is a welcome solution in the interests of the protection of the environment and it reinforces Community policies in the absence of further harmonisation in this field since, for the purpose of deterrence, the burden of uncertainty falls on the alleged polluter.
On 11 January 2009 Regulation (EC) No. 864/2007 on the law applicable to non-contractual obligations (Rome II)1 entered into force in all EC Member States with the exception of Denmark.2 It may seem to be one regulation out of many. For a private international lawyer, however, Rome II is a ground-breaking instrument: it is the very first European Regulation on choice of law.3 Of course, several Community instruments contain choice of law rules in respect of a particular area, but the main focus of these instruments has never been the choice of law itself.
The adoption of Regulation (EC) No. 864/2007 is therefore a major step. It derived from the initiatives of the European Commission following the Treaty of Amsterdam, which, according to Article 65(b) of the EC Treaty, gave the Community competence to take measures to promote the compatibility of conflict of laws rules applicable in the Member States in so far as was necessary for the proper functioning of the internal market. The idea was that substantial tort law differs considerably across Europe. In the absence of a unified European tort law, rules on conflict of laws are therefore crucial. But the conflict rules themselves differed. This, it was argued, hindered the proper functioning of the internal market; hence the need to harmonise these rules in order to increase legal certainty. This opinion was challenged by many organisations responding to the 2002 European Commission consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations. It was argued that in practice organisations did not face problems with diverging private international law4 rules; on the contrary, a harmonised tort law was favoured.5 But the European Commission quickly came up with a proposal for a regulation on the unification of choice of law rules applicable to non-contractual obligations (Rome II).6
This proposal included an Article 7 on 'violation of the environment* which suggested giving the same choice of law (as was later enacted) to the person sustaining the damage. It was heavily debated. After several unsuccessful attempts to strike out the special rule on environmental law,7 Parliament aimed to restrict the application of the rule by means of a very narrow definition of environmental damage.8 The solution eventually agreed focuses on 'environmental damage' rather than the Violation of the environment' and gives a definition of the concept which is in line with other EU instruments such as the Environmental Liability Directive.