Posts Tagged Duty of care
It is too readily assumed by many that general Member States’ obligations under the EU’s environmental laws are context only, and not really legally binding. In my Handbook of EU Waste law however I report on a number of cases where the European Court of Justice has rebuked Member States for having failed to take measures to attain some of these general objectives. These cases relate to waste law, evidently, however in other cases the Court’s case-law extends this to EU environmental law generally.
One can now add C-153/16 EC v Slovenia to this list. Slovenia had attempted to address the continuation of waste tyres storage and processing at an abandoned quarry, in contravention of an expired environmental permit. The company dug in its heels, ia via prolonged litigation, with storage and processing continuing.
The Court of Justice found that Slovenia had infringed the general duty of care provisions, as well as enforcement obligations of the landfill Directive and the waste framework Directive. (On the related issues with respect to hazardous waste, the Court found the Commission’s infringement proceedings wanting).
Not all that glitters is gold, of course. The direct effect of these general duty of care provisions remains an issue, as does the absence, arguably, in EU law of a duty of care directly imposed upon waste holders and processors. For that, citisens need to pass via national law wich as current case shows, is not always up to scratch.
Thank you Govert Coppens for alerting me to the PCIA award‘s publication. I had reported earlier on this case in which the Canadian owner of an eco-tourist facility in Barbados sued the Government of Barbados for an alleged breach of the full protection and security provision (among other provisions) in the Canada- Barbados bilateral investment treaty. Peter Allard argues in his claim that Barbados breached its treaty obligations by failing to enforce its domestic environmental laws, which he alleges led to the environment being spoilt and a loss of tourist revenues at his eco-resort.
The Tribunal is careful not to phrase the case as a pioneering case or a case in any way anything but run of the mill. This is evident from its very consideration (at 53) that ‘underlying the claims is a fundamental factual disagreement as to whether the Claimant has suffered loss or damage as a result of any actions or inactions of Barbados.’
This subsequently leads the Tribunal into what is effectively peer review of parties’ opposing expert reports on variety in fish and bird species, salinity, the health of crabs, etc., coming down in favour of Barbados: no convincing case of deterioration was made by claimant. One must bear in mind that the burden of proof lies with the latter. Next the Tribunal concluded that, even if it had found that there was a degradation of the environment at the Sanctuary during the Relevant Period (which it did not), it would not have been persuaded that such degradation was caused by any actions or inactions of Barbados.
The Tribunal further found that, being aware of the environmental sensitivities of the Sanctuary, Barbados took reasonable steps to protect it (at 242). It formulates Barbados’ BIT duties here as being a duty of care, not strict liability. It then undertook due diligence of the steps Barbados had taken to address known environmental concerns for the area and concluded (at 249) that ‘Barbados’ approach in addressing the Sluice Gate and general pollution issues at the Sanctuary as part of its governance of the entire area does not fall short of what was appropriate and sufficient for purposes of the duty of due diligence required by Article II(2)(b) of the BIT.‘
This tribunal was clearly not in a law-making mood but that arguably does not matter. The analysis it undertakes unequivocally and matter of factly establishes that countries’ indifference (quod non in casu) to take steps necessary to contain and remedy environmental degradation are a clear breach of BITS’ core requirements.
Update 29 September 2016. The award was made public on 28 September 2016. It sides with Barbados. Look for my analysis in a separate blog piece.
Thank you for the team at Dechert to remind us of the potential that BITs may be used to pursue proactive, rather than just reactive environmental litigation. A word of explanation: Bilateral Investment Treaties, in particular their investor-state dispute settlement mechanisms, are currently under a lot of pressure following the public outcry over the TTIP negotiations. Allowing private investors to sue countries that roll out regulation, using vague principles of protection of property, is seen by many as a form of corporate bullying.
Dechert’s briefing however reminds us firstly, specifically vis-a-vis stubborn air pollution in the Indonesia area, that States may carry responsibility in line with Trail Smelter’s nec utere tuo principle. The possibility for individuals (as opposed to neighbouring States) suing on that basis, is of course complicated by the mechanism of (absence of) direct effect of huge chunks of international environmental law. That is where investor-state can come in handily. Such as in Allard v Barbados at the Permanent Court of Arbitration. Dechert’s summary of that case reads ‘the Canadian owner of an eco-tourist facility in Barbados is currently suing the Government of Barbados for an alleged breach of the full protection and security provision (among other provisions) in the Canada- Barbados bilateral investment treaty. Peter Allard argues in his claim that Barbados breached its treaty obligations by failing to enforce its domestic environmental laws, which he alleges led to the environment being spoilt and a loss of tourist revenues at his eco-resort’.
A timely reminder of the good BITs can do, just before I am to speak (again) tomorrow on TTIP and why EU citisens are so suspicious of it.