Monday, January 14, 2013

No evidence for contribution threshold as condition for joint and common liability in Europe

Joint and common liability in Europe shows
no evidence for minimum contribution threshold
(Image by Loganathan R.)
In this website we are always following the latest news about possibilities and barriers to leverage litigation as a tool to slow down climate change. In a previous blog post, we shared with you a theory which, if true, would have relevance for climate change compensation lawsuits in Europe. According to this theory, European jurisdictions all require a minimum contribution of 5% as condition for assuming joint and common liability. The theory had been attributed to a well-known Dutch law professor and judge, Jaap Spier.

Since then we undertook research to find out whether there is some evidence for this theory. However, we haven't found any evidence in the writings of this law professor or in his contributions to the development of a European prototype tort law. Accordingly, we still hold that the “big CO2 polluters”, when sued by climate change victims in the “most appropriate” European countries, run a certain risk of being hold liable for the entire damage and not just proportionately to their individual contribution. “Most appropriate” are those countries which apply the principle of joint and common liability and which do not set-up a high threshold for assuming causality. Mainly the Netherlands and Sweden are fora to be recommended to victims of climate change, as we have stated in various previous posts.

However, we have to recognize an argument of fairness which is linked to the percentage of the defendant's contribution; and this argument is, though weakly, reflected in legal literature. The lower the contribution of a particular defendant, the less judges are likely to regard it as fair to hold the defendant liable for the entire damage on the basis of joint and common liability. Accordingly, it might be recommendable for victims of climate change to sue primarily “big CO2 polluters”. Furthermore, lawyers should prepare a subsidiary argumentation which is not based on joint and common liability. We have presented on this blog such an argumentation: see here.

Related: With this new information you may want to rethink where to launch a climate change lawsuit, here is an overview of different jurisdictions

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