Archive for category Environmental Law – International

Palin Granit down under. EPA v Grafil Pty and MacKenzie.

There are in fact many differences between Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v MacKenzie [2018] NSWLEC 99 and the CJEU’s Palin Granit; and the regulatory context in NSW is quite different from the EU’s. My title therefore is a crowd pleaser rather than legally sound. Yet some of the issues are similar, hence justifying inclusion in the comparative environmental law /waste law binder (and a good teaser for the W-E).

Samantha Daly and Clare Collett have excellent as well as extensive analysis here and I am happy mainly to refer.

Defendants received materials from recycling depots operated by skip bin companies in Sydney. These materials were recovered fines which had been processed and recycled from building and demolition waste, for which there was no market for re-sale at the time (due to the high volumes of such material produced by the recycling industry). This material was trucked to the Premises by transporters from the recyclers and placed in mounds or stockpiles on the Premises.

Was there a stockpile of ‘waste’? Palin Granit considers similar issues in para 36 in particular.

Geert.

 

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Time to update the Waste Handbook. The circular economy package published. OJ [2018] L150.

One or two of you are aware I have written a whole handbook on EU waste law. That now needs updating as a result of the publication of the adopted ‘Circular Economy package’ – although implementation dates are some time off so if you do have a copy, do not discard it just yet.

The package includes amendments to the ELV, Batteries, WEEE, Landfill, packaging and packaging waste, and waste framework Directive.

I am hoping to write a paper on the package which will summarise the developments – watch this space.

Geert.

Handbook of EU Waste law, 2nd ed. 2015: all chapters 🙂 .

 

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Unilever. Court of Appeal summarily dismisses CSR jurisdiction against mother company, confirming High Court’s approach. Lex causae for proximity again left undiscussed.

The Court of Appeal in [2018] EWCA Civ 1532 has confirmed the High Court’s approach in [2017] EWHC 371 (QB) AAA et al v Unilever and Unilever Tea Kenya ltd, holding that there is no good arguable case (the civil law notion of fumus boni iuris comes closes, as Bobek AG notes in Feniks) against Unilever, which could then be used to anchor the case in the English jurisdiction.

Pro memoria: jurisdiction against Unilever is clear, following Article 4 Brussels I Recast. That Regulation’s anchor mechanism however is not engaged for Article 7(1) does not apply against non-EU based defendants. It is residual English private international law that governs this issue.

Appellants appeal in relation to the High Court’s ruling that neither Unilever nor UTKL (the Kenyan subsidiary) owed the appellants a duty of care. Unilever has put in a respondent’s notice to argue that the judge should have found that there was no duty of care owed by Unilever on the additional ground that, contrary to her view, there was no proximity between Unilever and the appellants in respect of the damage suffered by them, according to the guidance in Chandler v Cape Plc. Unilever and UTKL also sought to challenge that part of the judgment in which the judge held that, if viable claims in tort existed against Unilever (as anchor defendant) and UTKL, England is the appropriate place for trial of those claims. Unilever also cross-appealed in relation to a previous case management decision by the judge, by which she declined an application by Unilever that the claim against it should be stayed on case management grounds, until after a trial had taken place in Kenya of the appellants claims against UTKL.

The legal analysis by Sales LJ takes a mere five paragraphs (para 35 onwards). Most of the judgment is taken up by an (equally succinct) overview of risk management policies within the group.

At 35 Sales LJ notes ‘Having set out the relevant factual background in relation to the proximity issue (i.e. whether the appellants have any properly arguable case against Unilever in the light of Chandler v Cape Plc and related authorities), the legal analysis can proceed much more shortly. It is common ground that principles of English law govern this part of the case.

– the ‘common ground’ presumably being lex loci incorporationis.

This is an interesting part of the judgment for I find it by no means certain that English law should govern this part of the case. In one of my chapters for professor Vinuales’ en Dr Lees’ forthcoming OUP book on comparative environmental law, I expand on that point.

The long and the short of the argument is that Unilever did not intervene in the affairs of its subsidiary in a more intensive way than a third party would have done. Reference at 37 is made to the contrasting examples given by Sir Geoffrey Vos in Okpabi, ‘One can imagine … circumstances where the necessary proximity could be established, even absent the kind of specific facts that existed in Vedanta … Such a case might include the situation, for example, where a parent required its subsidiaries or franchisees to manufacture or fabricate a product in a particular way, and actively enforced that requirement, which turned out to be harmful to health. One might suggest a food product that injured many, but was created according to a prescriptive recipe provided by the parent. …’

and, at 38, to the raison d’ĂŞtre of mother /daughter structures,

“… it would be surprising if a parent company were to go to the trouble of establishing a network of overseas subsidiaries with their own management structures it if intended itself to assume responsibility for the operations of each of those subsidiaries. The corporate structure itself tends to militate against the requisite proximity …

– subject evidently to proof of the opposite in the facts at issue (a test seemingly not met here).

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

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Towards an innovation principle: our paper on an industry horse knocking at the EU door.

Our paper on the innovation principle, with Kathleen Garnett and Leonie Reins is just out in Law, Innovation and Technology. We discuss how industry has been pushing for the principle to be added as a regulatory driver. Not as a trojan horse: industry knocks politely but firmly at the EU door, it is then simply let in by the European Commission. We discuss the ramifications of such principle and the wider consequences for EU policy making.

Happy reading.

Geert.

(Handbook of) EU Environmental Law (with Dr Reins), 1st ed. 2017, Chapter 2.

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Seatrade: Ships as waste.

Rechtbank Rotterdam held on 15 March last that 4 ships owned and operated by the Sea Trade concern had to be regarded as waste when they left the port at Rotterdam cq Hamburg (they were eventually beached in a variety of destinations). Not having been notified as waste, their shipment was considered illegal and the concern as well as some of its employees consequently convicted. (Illegal waste shipments being a criminal offense).

The court decided not to refer to the CJEU on the application of the waste definition to ships, as it considered the issue to be acte clair. The court’s review of the legal framework is included in Heading 4.3.4. As such, the analysis does not teach us much about the difficulty of applying the waste definition to international maritime logistics, in particular ship disposal. The court found at a factual level that the owners’ intention to dispose of the ships was clearly established when the ships left the EU, with, it suggested, the facts proving that the intention to dispose was at that moment of such an intensity as to trigger the waste definition.

The court does flag its appreciation for the difficulties. Not only is eventual disposal of hardware such as ships a possibility from the moment of their purchase. Such intention may also be withdrawn, reinstated, modified, at various moments of the ships’ life, fluctuating with market circumstances. Particularly given the criminal nature of the legal discipline here, I find that a very important driver to tread very cautiously and to look for firmer objective factors to establish intent.

Most probably to be continued on appeal.

Geert.

(Handbook of ) EU Waste law, 2nd ed. 2017, para 1.20 ff. Disclosure: I acted as court expert.

 

 

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Human rights, CSR: Court of Appeal confirms lack of jurisdiction in Okpabi.

Update 16 May 2018 Vedanta have been given permission to appeal to the Supreme Court.

Update 7 March For a great supplement simply refer to Penelope Bergkamp’s post in which she discusses the wider issues of parent liablity v veil piercing etc.

The Court of Appeal, referring powerfully ia to VTB, has confirmed (albeit with dissenting opinion) lack of the English courts jurisdiction in [2018] EWCA Civ 191 Okpabi et al v Shell. I reviewed the High Court’s decision in same here. Plenty of the High Court’s considerations. e.g. (pro inspiratio) joinder under Brussels I Recast, and the optionally distributive lex causae rule under Article 7 Rome II, do not feature in the Court of Appeal’s approach.

The crucial take-away from the judgment is that the English courts do not believe that headquarter instructed mandatory compliance, equates control. This runs along the lines of Scheindlin USDJ’s approach in Apartheid.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

 

 

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Repeat after me: the precautionary principle does not imply reversal of the burden of proof. Neither does it mean ‘when in doubt, opt-out’.

Allow me a succinct grumble about the precautionary principle. A recent Guardian item on trade talks post-Brexit refers ia to proponents of Brexit wanting to use future trade talks eg with the US, to ditch the precautionary principle. It states the proponents’ strategy ‘also advocates tearing up the EU’s “precautionary principle”, under which traders have to prove something is safe before it is sold, rather than waiting for it to be proved unsafe’.

Reversing the burden of proof (also known as the ‘no data no market rule’) is not a necessary prerequisite of the precautionary principle. If it were, public authorities’ task in regulating health, safety and the environment would look very different than it does today, as would the regulation of new technologies such as nano or synthetic biology (indeed even AI). Only in specific sectors, has the burden of proof been reversed. This includes, in the EU, REACH – the flagship Regulation on chemicals. In others, it was discussed (e.g. in the reform of the EU’s cosmetics Directive into a Regulation), but eventually dismissed.

Neither does the EU’s approach to the precautionary principle imply ‘when in doubt, opt out’, or ‘when in doubt, don’t do it’. One need only refer to the recent decision to extend the licence for glyphosate to show that the EU does not ban what is not proven safe (the least one can say about glyphosate is that its health and environmental safety is not clearly established). I blame Cass Sunstein’s Laws of Fear, superbly reviewed (critically) by Liz Fisher in the 2006 Modern Law Review for misrepresenting the principle – such that even its proponents often misunderstand its true meaning.

Precaution is not an alternative to science. It is a consequence of science.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, soft cover edition 2018, p.28 ff.

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