Wednesday, July 18, 2012

Contribution threshold for joint and common liability under European jurisdictions?

CO2 emissions from smokestacks of multiple polluters
each contributing to climate change, but is it enough
to invoke common and joint liability in European courts? 
This blog has argued so far that some European jurisdictions, amongst those applying the principle of common and joint liability, offer good opportunities for climate change compensation lawsuits. We mentioned in particular the Netherlands and Sweden. However, we were now informed by a reliable source that a well-renown lawyer has investigated the conditions for assuming common and joint liability under European jurisdictions. The lawyer is said to have found-out that case law of all European jurisdictions require a minimum contribution to a damage. If the minimum contribution threshold is not reached by the defendant, judges cannot assume joint and common liability, thinks the lawyer. The lowest threshold is said to be the one required by the Netherlands: 5%.

Applying this principle to climate change compensation lawsuits, we would have to assume that victims of climate change do not have much to win under any European jurisdictions as no polluter is responsible for 5% of the (weighed) factors triggering climate change, regardless of the historic parameters applied. Evidently, to obtain just a proportionate compensation (of <1% of the damage) is not of much economic interest. Taking these elements together one would have to conclude: the European legal path for obtaining climate justice is in practice blocked. will try to investigate whether this 5% threshold really exists in all European jurisdictions applying the principle of joint and common liability. This investigation is likely to be anything but easy and will accordingly take quite some time. Therefore we prefer to warn our readers on the possible existence of this threshold in the case law of European jurisdictions.

It goes without saying that any such threshold doctrine could be questioned in terms of fairness and justice. If 100 people push forward towards a grid in a soccer or football stadium or at a popular music concert to get closer to theirs stars and thereby unintendedly, but foreseeably squeeze a man to death, why shouldn't they owe the widow a rent according to the principle of joint and common liability? Would it really be fairer that each tortfeasor owes only 1/100 of the rent although half of the tortfeasors cannot be identified or are unable to pay, leaving the injured party's relatives under compensated or uncompensated? But it might be hard to convince judges if the contribution threshold doctrine is well established in the respective jurisdictions. Therefore we invite our readers to investigate in particular this issue prior to launching lawsuits.

Update: Further look into contribution of a single tortfeaser towards climate change in Europe

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