Sunday, February 27, 2011

Liability under German law

Chances for Climate Change
Litigation under German Law
(image by Gerd Altmann)
European Union law on applicable law and jurisdiction, or place that a case can be brought to court. In February 2011, the German lawyer Will B. Frank presents an English short version of an article on climate damage compensation previously published in a German law reviews NJOZ 2010, 2296 (German) and NJW 2010, 3691 (English). According to Frank, the causality between CO2 emissions and climate change would probably not be questioned by German courts, given that the vast majority of scientists assume such a causality. The long distance effect would not be an issue either. Frank basis this assessment on § 1004 sec.1, sentence 1 BGB (German civil law code). He claims that the plaintiff can request the abatement of the nuisance. If the abatement of the nuisance “at its source” is not possible, he may request measures that protect his property where the property is (for example by fortifying a dike-system against flooding). If these protective measures are not possible either, the plaintiff can request adequate monetary compensation, says Frank.

As to the applicable law and jurisdiction, or country where one can bring a case to court, Frank states: “According to the EU-harmonized rules of Conflict of Laws (Regulation EC/864/2007) and International Civil Procedural Law (Regulation EC/44/2001), a plaintiff can establish his claim in cases referring to environmental nuisance either on the Law of the “Handlungsort”, German for the place, where the act causing the nuisance is done, or the Law of the “Erfolgsort”, German for the place, where the nuisance occurs (Regulation EC/864/2007 Art 7 and Art 4 sec.1). The plaintiff has the same choice with respect to the court where he pleads (Regulation EC/44/2001 Art 5 no. 3).” Frank refers thus to directly applicable regulations of the European Union. If he is right in his assessment, European Union victims of climate change, such as towns struck by the rise in sea-levels, may sue CO2 emitting companies at their local court and under their local law. The victims can also choose any of the places where the companies emit CO2.

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