The Possibilities for Nongovernmental Organizations Promoting Environmental Protection to Claim Damages in Relation to the Environment in France, Italy, the Netherlands and Portugal

• DOI: http://doi.org/10.1111/reel.12187
• Published date: 01 April 2017
• Date: 01 April 2017
• Author: Elena Fasoli

The Possibilities for Nongovernmental

Organizations Promoting Environmental Protection

to Claim Damages in Relation to the Environment in

France, Italy, the Netherlands and Portugal

Elena Fasoli*

Even though under the Environmental Liability Directive

environmental nongovernmental organizations (ENGOs)

cannot bring actions directly against liable operators, a

trend can be noticed in France, Italy, the Netherlands

and Portugal, with ENGOs avoiding addressing the

competent authorities, and instead using traditional civil

law mechanisms to sue liable operators before national

courts. ENGOs usually claim material and/or moral

damages. In addition, existing practice reveals another

trend, although still embryonic, with ENGOs claiming the

reparation of the damage to the environment in itself.

In so doing, they face the difficulties of demonstrating a

‘direct and personal’damage in court. This article calls

for further clarification from case law and legislation as

to the nature and forms of the reparation of the different

types of damage that can be obtained by ENGOs through

tort law and civil liability claims.

INTRODUCTION

The present article investigates the possibilities for

environmental nongovernmental organizations

(ENGOs) to claim damages in relation to the environ-

ment. It seeks to provide insights into the private–

public interface that typically arises in relation to

claims for environmental harm, and which can be

translated into the distinction between civil liability

and regulatory approaches to environmental liability.

The research is based on a comparative analysis of the

legislation, case law and practice in France, Italy, the

Netherlands and Portugal. It builds on previous contri-

butions that have highlighted the special relevance of

these countries, as they provide illustrative examples of

legal actions brought by ENGOs in relation to environ-

mental damages.

1

The aim of the article is to evaluate whether, and towhat

extent, ENGOs in the countries analysed have possibil-

ities to sue polluters directly without having to address

the competent authorities, as provided under the Envir-

onmental Liability Directive (ELD).

2

The Directive has a

public law rather than a private law nature, and aims to

protect the public interest in the preservation of the

environment. Indoing so, it puts the emphasis on public

regulators by allowing them to impose liability (for the

prevention or the remediation of the environmental

damage)

3

on potential oractual polluters. In this context,

the role played by ENGOs is essentially one of providing

input. ENGOs can submit observations to the competent

authority, and challenge the actions or inactions of such

authorities in court. The ELD does not mention the pos-

sibility for ENGOsto sue polluters directly.

Nevertheless, a trend can be observed in practice, with

ENGOs not addressing the competent authorities under

the public interest scheme, but rather suing the pol-

luters and claiming damages through tort law and civil

liability claims. This happens particularly when compe-

tent authorities fail to act (or to act promptly).

As to the type of damage that can be obtained through

tort law claims, ENGOs claim material and/or moral

damages. Material damages occur, for example, if an

activity harmful to the environment simultaneously

demolishes the premises of an ENGO. Moral damages

*Corresponding author.

Email: e.fasoli@qmul.ac.uk

1

See, in particular, the study conducted by J. Darp€

o, ‘Effective Jus-

tice? Synthesis Report of the Study on the Implementation of Articles

9.3 and 9.4 of the Aarhus Convention in Seventeen of the Member

States of the European Union’ (United Nations Economic Commission

for Europe (UNECE), 2013), found at: <http://www.unece.org/env/pp/

tfaj/analytical_studies.html>.

2

Directive 2004/35/EC of 21 April 2004 on Environmental Liability with

Regard to the Prevention and Remedying of Environmental Damage,

[2004] OJ L143/56 (‘ELD’). See, e.g., G. Winter et al., ‘Weighing Up

the EC Environmental Liability Directive’, 20:2 Journal of Environmen-

tal Law (2008), 163; K. de Smedt, ‘Is Harmonisation Always Effective?

The Implementation of the Environmental Liability Directive’, 18:1

European Energy and Environmental Law Review (2009), 1; S. Cas-

sotta, Environmental Damage and Liability, Problems in a Multilevel

Context: The Case of the Environmental Liability Directive (Wolters

Kluwer, 2012); V. Fogleman, ‘The Polluter Pays Principle for Acciden-

tal Environmental Damage: Its Implementation in the Environmental

Liability Directive’, in: A. D’Adda, I.A. Nicotra and U. Salanitro (eds.),

Principi Europei e Illecito Ambientale (Giappicchelli, 2013), 114; and

L. Bergkamp and B.J. Goldsmith, The EU Environmental Liability

Directive: A Commentary (Oxford University Press, 2013).

3

The ELD defines ‘environmental damage’ as damage to protected

species and natural habitats, damage to water and damage to soil

(Article 2).

ª2017 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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RECIEL 26 (1) 2017. ISSN 2050-0386 DOI: 10.1111/reel.12187

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