Abstract
As a consequence of increased pressure on environment in Europe and beyond, the extent and variety of forms of environmental damage has broadened widely over the last decades. One key way to tackle this problem is, evidently, to ensure that damage that arise is properly repaired. Whilst provisions to secure environmental liability have been implemented in the EU context through the Environmental Liability Directive, the effectiveness of this Directive is still limited. In France, in order to surpass current impasses, the 2016 Biodiversity Law was recently enacted (adopted on August 8th, 2016), which creates a specific regime in French civil law for remedying ecological damage (defined as damage caused to nature itself). Three years after the introduction of France’s new approach to ecological damage, the present article reflects on the legal innovations and challenges of the reform, and explains how the new regime proceeds to remedy ecological damage. A key challenge here, as will be discussed, is that nature as such has not been recognised as having legal personality under the French legal system, which has traditionally been a key hurdle for securing compensation for environmental loss in the first place under tort law.
Introduction
As tourism and farming developed in Europe, threats to nature and biodiversity multiplied. In recent years, there have been many environmental disasters such as oil and chemical spills leading to significant water and soil pollution, and many of these threats have severely impacted the preservation of habitats, animal and plants species. Ensuring the preservation of nature requires that society is able to account for and repair possible damage caused to the environment by human activities. Ecological damage was previously ignored in French tort law as it does not concern damage caused to person’s rights and/or property but damage caused to nature itself. Its legal recognition was not easy: on 8 August 2016, the French Parliament adopted the ‘2016 Biodiversity Law’ 1 after several years of judicial attempts to achieve legal recognition of both the existence and the consequences of damage caused to nature.
The 2016 Biodiversity Law creates an innovative and groundbreaking regime for remedying ‘ecological damage’ within French tort law. This regime allows any private person to claim remedies (not only damages) for a damage caused to nature, such as the loss of biodiversity and the destruction of natural habitats, before civil law courts. The 2016 Biodiversity Law was incorporated into the Civil Law Code by Articles 1246–1252 setting a regime for remedying ecological damage, which differs from that what was established under the Environmental Liability Directive (hereafter ‘ELD’). 2 The transposition of the ELD in the French legal system created a regime of administrative law in the French Environmental Law Code. 3 However, the ELD’s provisions on environmental liability do not establish a new liability regime – which classically involves a plaintiff, a defender and a judge – but merely an administrative regime for repairing environmental damage, essentially involving an operator and an administrative authority. 4 As stated by Article 162-2 of the Environmental Law Code, this regime does not allow a victim of environmental damage to claim remedies on such grounds. These administrative provisions contain many limitations and exceptions, to the extent that it has never been applied stricto sensu in France to this day.
Although the regime created under the 2016 Biodiversity Law does not establish a specific regime of liability for ecological damage, it empowers private individuals to claim remedies for a damage caused to nature before civil law courts once someone is found liable on the basis of French common tort law rules. 5 The principal remedy must be the restoration of the environment to its baseline condition. But damages can also be awarded if the environment cannot be fully restored. This new regime contributes to preventing situations where such damage is simply ignored and to dissuade polluters as they have to assume the consequences of their actions. However, its implementation raised legal and technical issues related to the question of representation of nature in courts, evaluation of ecological damage, legal personality of nature and so on. This article will describe the main features of this new civil law regime and will provide some assessments learned from its implementation until now.
Origins of the recognition of ecological damage in French tort law
From the Erika case to the recognition of ecological damage in French tort law
On 12 December 1999, the Erika oil tanker chartered by TOTAL-FINA Company sank off French coasts. A large quantity of oil, 30,884 tonnes, was lost in the sea, which heavily polluted Brittany’s coasts. This environmental disaster led to a 5-year trial (2008–2012) in order to compensate for the damage caused by the oil pollution. The final decision of the French Supreme Court (hereafter ‘Cour de Cassation’) was given on 25 September 2012. 6 TOTAL-FINA Company was condemned for maritime pollution on criminal charges. The Cour de Cassation also acknowledged the civil claim: in its decision, the Court recognised the legal existence of damage caused to nature. This was called ‘ecological damage’. 7
However, in this case 8 , ecological damage was converted to non-pecuniary damage suffered by the environmental NGO called LPO 9 and was compensated on this basis. Although the Erika case represents a legal recognition of ecological damage, no compensatory framework was specified in the Court’s decision, which raised many legal questions. As a consequence, this case was considered simply as a symbolic recognition of the ecological damage.
The 2016 Biodiversity Law represents the recognition of ecological damage not only by the case law, but within French Law. This is far more significant, as France operates under a civil law system, where laws are the primary source of law, and where case law 10 officially only has a role of interpreting laws or addressing shortcomings of the law. 11 New Articles 1246–1252 were inserted in the French Civil Law Code specifying a regime to remedy damage caused to nature. New Article 1246 states that: ‘Anyone found responsible for ecological damage is obliged to remedy it’. 12 The objectives of such a reform are twofold: the prevention of ecological damage by dissuasion, and the repair of such damage caused to nature previously ignored in French law.
Innovations of the reform
Previously, French tort law did not oblige those causing damage to nature to remedy such damage. Indeed, Article 1240 of the French Civil Law Code states that in order to have a right to compensation, damage has to be caused to ‘autrui’. The term ‘autrui’ refers to a legal or natural person. Consequently, ecological damage was remedied by compensating for damage caused to a (legal or natural) person’s rights and/or property. This approach was restrictive as much environmental damage, caused to nature itself and not to a person’s property or rights, and usually non-reversible, did not require any remedial measures. These included, for example, the loss of biodiversity after oil pollution (death of seabirds, destruction of coral, maritime fauna and flora) and the destruction of habitats.
The 2016 Biodiversity Law represents an important reform of French civil law. Indeed, a new category of damage is created: the damage caused to nature itself. 13 In its decision regarding Erika, 14 the Court of Appeal of Paris redefined legal classifications of damage existing in French civil liability law. The Court distinguished two legal categories of damage: the subjective damage and the objective damage. On one hand, subjective damage regroups all types of damage suffered by a subject having legal personality in French law. This category includes material and/or psychological damage resulting from harm caused to the rights/property of legal or natural persons. Traditional damage already recognised in French civil liability law is included in this category. On the other hand, the Court of Appeal of Paris created the category of ‘objective damage’ including any damage caused to environment, which does not have legal personality in French law.
In its decision on Erika case, the Cour de Cassation referred to the category of ‘objective damage’, 15 as mentioned by the Court of Appeal of Paris, but its definition did not clarify the legal qualification of ecological damage. Instead, the Cour de Cassation provided a distinct definition of ecological damage as ‘an objective and autonomous harm, consisting of any significant harm caused to natural environment, without repercussions on a particular human interest but affecting a legitimate collective interest’. 16 As the Cour de Cassation’s formulation is unclear and the legal reform of the French Civil Law Code lacks precision, the question of legal qualification of ecological damage must still be addressed, perhaps by the legal doctrine. 17
Legal framework for remedying ecological damage within French tort law
The Biodiversity Law created a new chapter in the French Civil Law Code. 18 As explained earlier, it creates a system allowing a private person, individual or association, to claim remedies for ecological damage before civil law courts once someone is found liable for such damage on the basis of French common tort law rules. Some of the main innovative features of this system will be presented below.
What is ecological damage?
The legal definition of ecological damage is stipulated in Article 1247 of the French Civil Law Code: ‘Can be remedied, […], ecological damage consisting of a not insignificant harm caused to elements or functions of ecosystems or benefits from the environment’. 19 The Civil Law Code refers to a broad definition of ‘ecological harm’ partially inspired from the ‘Nomenclature des préjudices environnementaux’. 20
The definition refers to damage caused to the elements of ecosystems including air and atmosphere, water, soil and biodiversity; the benefits that elements provide to nature; and the collective services they provide to human beings. 21
The French Climate case 22 is a good illustration of how Article L. 1247 of the Civil Law Code is applied. On 14 March 2019, four French environmental associations 23 brought a claim invoking the state's responsibility for failure to comply with its obligations related to climate change before Paris Administrative Court. 24 They also claimed remedies for ecological damage caused by the state’s failure to adopt the necessary measures. In their application, the applicants define the ecological damage as the damage caused to the ecological functions of the atmosphere, in particular its function of climate regulation. 25
It is worth noting that, by including the collective services provided to people in the text of Article 1247 of the Civil Law Code, the definition extends beyond the limits of ‘purely’ ecological damage to certain damage caused to a person’s rights and property (legal or natural person). 26 As a consequence, the delimitation of the different types of damage currently operating in French law becomes challenging, in particular between a personal damage and an ecological damage. Nevertheless, French environmental lawyers also discuss the other part of the definition: the use of the term ‘not insignificant’ harm caused to nature. The definition of a significant harm is not specified. 27 It would be difficult to establish the threshold of compensation for ecological harm. This limit seems to exclude the repair or compensation of minimal harm, considered as negligible. It is true that all human activity causes harm to nature, and compensating every damage seems practically difficult to achieve. However, there is possibly an opportunistic motive behind its ambiguous nature – to assure lobbying powers that this law does not aim to obstruct business as usual.
Who has standing to speak for nature?
Legal issues
Related to the question of defining the ecological damage is the question of standing. Indeed, the very nature of civil liability law requires the existence of a victim of damage. 28 Victim status refers to an entity having legal personality and as such an entity having rights and duties conferred by law. However, as previously explained, environment has never been conferred legal personality in French law. Therefore, it was necessary to develop mechanisms to allow standing in courts before examining who could represent the environment in court. In the absence of conferral of legal personality to environment, we must admit that access to justice to those seeking to pursue litigation on behalf of the environment will be granted on an entirely arbitrary basis.
Solution in the French Civil Law Code
According to Article 1248 of the Civil Law Code, the persons having standing in Court to claim remedies for ecological damage are: ‘every person having quality and an interest’ such as ‘the State, the French Agency for Biodiversity, regional authorities, public institutions […]’, 29 associations ‘agrées’ by the French administration 30 or environmental associations which have been in operation for at least 5 years’. 31 Article 1248 provides a list of diverse entities entitled to represent the environment in courts. This descriptive list is not exhaustive and we could indeed question its relevance. As Article 1248 specifies in the first sentence that every person ‘having legal status and an interest’ have standing in courts to represent the environment, then the list of examples provided above seems to be more confusing than useful.
Moreover, by stating that every person ‘having quality and an interest’ can have standing in courts to represent the environment, the legislator provides judges with certain discretion to decide who can stand in courts on behalf of environment. According to French Civil Procedure Code, 32 any legal person that can prove a legal interest in taking legal action can bring a case before the French civil law courts. Environmental associations and environmental NGOs also have this possibility if they satisfy the conditions stated by Article L. 142-2 of the Environmental Law Code. French case law has loosened the conditions laid down by this article. 33
Legal action pursued by French associations may lead to confusion as to whether damage is suffered by an NGO or the environment. This possible confusion can lead to an infringement of the principle of integral reparation. This principle contends that damages attributed to the victim must allow for the integral repair of the damage suffered by this victim, but cannot lead to an increase in this person’s wealth. The confusion with regard to the victim of damage could result in either the non-reparation of damage or to a double compensation of damage.
What remedies?
Article 1249 of the Civil Law Code states that the principal remedy is in priority ‘en nature’ meaning that the restoration of the environment to its baseline condition should be the priority. This solution relies on the principle that ecological harm is ‘objective’, it is inflicted upon nature, a ‘common’, 34 and not a person. This represents a shift in private law, where damages are usually the principal remedy.
Nevertheless, if restoration is not possible, de jure or de facto, or if compensatory measures are not sufficient, Article 1249 recognises the opportunity for the judge to condemn the polluter to pay damages to the plaintiff, allocated to the restoration of the environment; or, if the plaintiff does not have the technical capabilities to take measures for the restoration, to pay damages to the state. 35 To avoid the risk of diversion of indemnities granted to the association or the state, Article 1249 specifies that ‘damages are allocated to restore the environment’. 36 However, the text of the article is not precise enough. To ensure that the sums allocated are not lost in the general budget of the plaintiff or the state, Article 1249 should specify ‘damages are allocated to restore the damage caused to the environment’.
Implementation and legal challenges of the regime in tort law
Article 1246 of the French Environmental Law Code does not create a new regime of liability, but merely a system to claim remedies for ecological damage. In the absence of a special regime of liability for ecological damage, the classical principles of civil liability law are applied, which may be inadequate. This paragraph exposes current legal issues French law is facing.
Evaluation of ecological damage
The issue
As explained earlier, where restoration of the environment is not possible, the polluter has to pay damages to the plaintiff. How can the financial value of nature be assessed? Indeed, nature does not have an inherent economic value. How may we determine the price of a seabird for instance? What is the price of our clean air, or soil?
According to the Cour de Cassation, despite this obstacle, judges are legally obliged to financially assess the cost of the ecological harm to determine its financial compensation. 37 Indeed, in its recent decision, the Cour de Cassation stated that judges have the obligation 38 to determine the pecuniary cost of ecological damage they recognise in their decisions, by requiring a scientific expertise if it is necessary. 39 In the same decision, the Cour de Cassation stated that judges cannot refuse compensation for ecological damage on the ground that the evaluation method proposed by the environmental NGO was not appropriate. 40 Neither the difficulties of evaluation nor the inadequacy of pecuniary compensation for ecological damage are justifications for refusing any reparation. 41 To achieve their duty, the Court recognised the possibility for judges to require scientific expertise.
The judge has then the obligation to evaluate ecological damage. This obligation could technically be difficult: Would science be able to provide mechanisms or methods to determine the price of an ecosystem or of the wild fauna and flora?
Possible solutions
The French Environmental Law Code provides guidelines in order to assess the financial cost of ecological damage. Directive 2004/35 42 on environmental liability was at the heart of creation of administrative provisions to remedy environmental damage in France. Its transposition into the Environmental Law Code 43 provided several guidelines 44 regarding the modalities of environmental damage reparation which could be useful to a certain extent for the implementation of Article 1246 of the Civil Law Code.
Nevertheless, these guidelines have limited value as they are broadly formulated. Another solution would be the possibility for French judges to apply a doctrinal approach to their assessment. Indeed, it would be possible for them to refer to the Nomenclature of Environmental Damage 45 as published by a working group under the direction of Laurent Neyret and Gilles J. Martin. The nomenclature defines different types of environmental damage and classifies them into two overall categories: damage caused to the environment and damage caused to humans. Thus, this nomenclature can be regarded as a common reference guide. The nomenclature was first referred to by the Court of Appeal of Noumea in a judgment of 25 February 2014. 46
Multitude of legal actions under French civil law
Another legal issue under French civil law is the multiplication of actions for remedying environmental damage. Ecological damage could be compensated as an individual damage caused to a legal or natural person’s rights or property, 47 as a damage caused to the collective interests protected by environmental associations recognised by law, 48 or as an ecological damage. 49 This multiplication of actions involves certain risks: the risk that ecological damage is compensated twice, or the risk that ecological damage is not compensated at all.
Furthermore, this issue may be in conflict with the principle of full reparation of damage suffered by a victim 50 which is a fundamental principle in French civil liability law. This principle consists of the legal obligation to compensate all the damage suffered by a legal or natural person, but no more than the damage suffered – meaning compensation without loss or profit. The Cour de Cassation will reverse any decisions of judges who do not respect this principle.
Moreover, linking these actions with the regime set up by Directive 2004/35 on environmental responsibility 51 must also be resolved. The legislator has merely stated within the 2016 Biodiversity Law that the assessment of ecological damage will take account of reparation measures already granted under Title VI livre Ier of the Environmental Law Code 52 which implements the ELD. It did not give any more indication on how to proceed, leaving French judges to address these shortcomings. 53
Strict liability or fault-based liability
Under civil law, there are two approaches to establish liability: a fault-based liability approach, or a strict liability approach. Article 1246 of French Civil Code does not prescribe which approach should be used. Indeed, Article 1246 does not create a new regime of liability, but merely a system to claim remedies for ecological damage once liability is established on either legal ground. Consequently, the persons liable for damaging nature may be sued on the basis of liability for misconduct (personal liability), or on the basis of liability without fault. This is confirmed by the wording of Article 1246 54 : ‘Anyone found responsible for ecological damage is obliged to remedy it’. Therefore, we can infer that judges will have to apply traditional tort law regimes: sometimes a fault-based liability approach (liability for misconduct) and sometimes a strict liability approach without the need to prove fault. 55
In the first case concerning Erika ship, 56 the criminal liability of TOTAL-FINA Company was recognised. In this case, ecological damage was recognised but not compensated. Following this case, the Cour de Cassation, in its judgment of 22 March 2016, 57 clarified the regime of liability applicable in this matter. The judgment is based on the previous Article 1382 58 of the Civil Law Code (now Article 1240) which establishes the principle of civil liability for misconduct, and then applies the common regime of tort law. Therefore, the fault-based liability was applied in case law.
Three conditions had to be proven in the Cour de Cassation’s judgment of 22 March 2016. 59 In this case, LPO association had to prove the existence of ecological damage (by providing proof of the damage and death suffered by many animals), the existence of a harmful event 60 as well as the existence of a causal link uniting the two preceding elements. In the Cour de Cassation’s 2016 decision, 61 ecological damage could not be compensated as LPO failed to evaluate it.
In the French Climate case, a different issue is raised. Although the applicants started a procedure before the administrative court invoking the state responsibility, they also claimed remedies for ecological damage created by the state’s failure to undertake measures to combat climate change. The applicants claim that the compensation for ecological damage cannot be excluded on the basis that their legal action falls within the jurisdiction of the administrative court. 62 This argument is important as administrative law courts and civil law courts are strictly separated in France. Thus, the remedying of ecological damage should not be precluded on the basis that the state’s responsibility is invoked under administrative law.
Conclusion: Limited impact of the 2016 Biodiversity Law for nature protection
Even though the creation of a regime for remedying ecological damage was legally innovative, it raised many legal and technical issues related to its implementation. These issues concern the evaluation of ecological damage, the question of standing on behalf of nature in civil law courts and the question of allocation of damages. Since the adoption of the 2016 Biodiversity Law, few court cases based on the regime of Articles 1246–1252 63 were decided, although the Cour de Cassation also referred to the jurisprudential concept of ecological damage in some of its decisions. 64 Therefore, the benefits of this legal regime cannot be assessed due to the lack of case law for the time being. Thus, the law of civil liability may not be the only solution for addressing ecological damage.
Different solutions were developed in other European states to remedy damage caused to nature. Some of them have adopted a horizontal approach to liability where environmental damage, which cannot be compensated through tort law or insurance, can be compensated by compensation fund. This fund can be financed by taxation, for example. In Sweden, such a fund can be used when the identity of the polluter stays unknown, when civil action is impossible or when the polluter is insolvent. 65 By contributing to remedy some problems civil liability regimes face, it is likely that the creation of a compensation fund would represent the next legal step towards a more efficient protection of nature and of the environment in general.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.