Civil liability for environmental damage in spain: The prospects of strict liability.
| Autor | Bernat Mullerat |
| Páginas | vLex |
Nemo debet lucrari ex alieno damno
(Gayo: 1.28, D. de dolo malo, 4,3)
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INTRODUCTION
Environmental damage is one of the main concerns of many governments in the developed countries. Pollution is one of the high prices that our societies have to pay for industrialism, although it appeared much later than other adverse effects of the Industrial Revolution.
Concerns over the cost of remediating pollution have convinced governments and politicians that civil liability must be promoted as one of the most appropriate instruments to tackle environmental damage, particularly since it does not give rise to public fund expenditure.
In civil law countries, the traditional rules of civil liability have not been sufficient to deal with the complexity of damage to the environment (e.g. assessment of damages, locus standi, burden of proof). Thus, in recent years various national and international legal instruments have been adopted in order to provide a more flexible (and overreaching) liability regime.
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EXISTING LIABILITY REGIMES
The paper provides a brief overview of Spanish Civil liability for damage to the environment with a particular emphasis on fault v. strict liability. Reference is also made to a draft bill on Civil Liability from activities with Environmental Incidence, which the Spanish government is currently considering.
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Basic rules on civil liability
Under Spanish Law, there is no specific legislation covering civil liability for damage to the environment. Instead, civil environmental liability is governed by the basic rules on civil liability contemplated in the Civil Code (CC). Bearing in mind that the CC was passed more than 100 years ago, in 1889, the provisions covering civil liability were not drafted to address the complex problems that arise in environmental damage.
The 1889 Civil Code provides two types of civil liability:
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Contractual liability. This liability is based on art. 1101 CC.
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Extracontractual (tortious) liability. This liability is enshrined in art. 1902 et seq. CC.
Specifically, art. 1907 CC refers to liability of owners for damage caused by buildings, when such damage arises as a consequence of not carrying out repairs to the building and art. 1908 establishes liability of owners for damage caused by specific causes (See section II.2.b) below)
Art. 590 CC prohibits the building or placing next to another's property wells, cesspools, drains, chimneys, deposits of corrosive materials, harmful factories, etc., unless the distance and proportions, as determined in applicable regulations, are observed.
Liability arises also when individuals wrongly use their rights in an abusive way, which is considered antisocial. In these cases, even if there is a right or a license entitling individuals to act, damages may be payable. In this context, a person may be liable when his intention is to cause damage to another (aemulationis acti) or when he uses his right in an abnormal or antisocial way (art. 7.2 CC)[1].
Spanish civil law does not deal directly with damages to the environment, save for a few exceptions. However, some Autonomous Communities have passed legislation in connection with nuisance arising from neighbourly relations, which may be used to deal with environmental damages. For instance, the Catalan Act 13/1990, of July 9, on interference constituting a nuisance, easements, and neighborhood relations (see II.4 below).
In principle, the Central Government has exclusive jurisdiction over civil law, without prejudice to the power of some Autonomous Communities to preserve and develop existing civil laws. At present, all Autonomous Communities have power to develop the Central Government's basic legislation, to pass stricter laws and regulations and to execute policy on the management of environmental protection. The Autonomous Communities' environmental legislation has two main features: (i) it is only applicable in the territory of the relevant Autonomous Community, and (ii) it may not contradict the Central Government's basic legislation.
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Extracontractual Liability
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Fault liability
In order to hold a party at fault both for contractual and extracontractual liability, courts require the following elements to be established: (a) act or omission, (b) fault, (c) damage, and (d) causal link (Supreme Court 'SC' judgments 10 October 1968 and 25 October 1968).
Art. 1902 CC contains the general principle on civil liability which imposes liability where the defendant acted negligently. The nature of this principle as a general rule has been supported by numerous case law (e.g., SC judgment of 12 November 1993). This general fault liability rule has also been applied to damages caused to the environment (SC judgments 13 June 1988, 5 December 1990 and 7 April 1997).
Under art. 1104 CC, the knowledge of forseeability is that required by the nature of the obligation and it corresponds to the circumstances of the persons, time and place involved. Case law has added, as a further element to take into consideration, the type of activity that causes the damage, e. g. SC judgment 14 June 1984. Decisions are taken on a case by case basis, but in practice knowledge/foreseeability in environmental cases is that which would be attributed to a highly skilled person.
Generally speaking, extracontractual liability requires a lower level of negligence (culpa livíssima) compared with the higher requirement for contractual liability...
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