Spanish Environmental Liability: an awaited birth.
| Autor | Bernat Mullerat |
| Páginas | vLex |
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Introduction
In today's world, environmental considerations are a growing concern for investors. Indeed, environmental liabilities may have a crucial impact on buyers, who, due to contamination may either see that the asset acquired may be worth less than the price paid, or be liable for clean-up costs. In addition, a company may feel that its reputation demands that it should avoid involvement in contaminated land or polluting operations.
In the United States, following the passing of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund Law) in 1980, investors no longer enter into transactions without a careful assessment of the potential financial or legal environmental liabilities.
In Europe, national environmental liability regimes have not been harmonized to date. Some European countries have a specific environmental liability and compensation system (e.g. Denmark, Finland, Germany and Sweden). In others, such as Spain, the main civil law remedy to compensate for environmental damage suffered is a form of classical civil liability.
Thus, companies seeking to make a share, business or property acquisition or otherwise setting up and operation in Europe should consider, among other issues, what is the regulatory arena with respect to environmental liability. In other words, what liabilities may be attached on to the target company or land from the envisaged transaction.
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Environmental liability in Spain
Companies wishing to invest in Spain should be aware that, at present, there is no specific civil liability regime for environmental damage. Therefore, the general principles of civil liability apply, which may be broadly described as a fault based liability regime. As a general rule, liability may only arise provided that the following are proved:
· a negligent act or omission on the part of the polluter,
· the damage, and
· a casual link between the negligent act or omission and the damage caused.
The fulfillment of such requirements coupled with the complex features of environmental liability make it difficult for Courts to hold polluters liable on the basis of traditional civil law grounds, in particular due to the complexity of proving both the wrongdoer's negligent conduct and causation. In addition, it should be pointed out that in civil Courts damages are generally limited to damages inflicted on private citizens or companies' economic interests, excluding liability for ecological...
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