WORKSHOP PAPERS
The liability of those who have caused environmental damage is regulated by Act No. 138/1973 on Water, Act No. 309/1991 as amended by Act No. 211/1994 on the Protection of Air Against Pollutants, the Parliament Act on Agricultural Land Protection, No. 334/1992, the Parliament Act on the Protection of Nature and Landscape, No. 114/1992, and the Waste Management Act No. 238/1991.
The new draft bill on forests cites legal provisions on the public's interest in the protection of forests[3]. The act defines new duties for those who own forested land to respect ecological concerns when engaging in activities that impact forests, including the protection of pure water resources.
The liability for damage to the environment caused by human activity in relation to the individual elements of the environment is invariably an objective liability. In all the regulations stated above it is understood that the duty to return the environment to the original condition, moderate the effects of the detriment, or take substitute measures, has no bearing on the duty to compensate for the loss, as stipulated by other regulations (usually in the Civil Code) nor on the possibility of punishment for an offense, including a criminal act.
State authorities order not only a remedy for environmental damage but also set sanctions for illegal acts in the area of environment protection.
The basic legal standard for this type of liability is the amended Civil Code[4]. Its general provisions regarding liability for damage (¤ 420 and the following) are used when a particular 'damage case' does not fall under some other provision of the Civil Code as mentioned below. In contrast to the original regulation in this amendment, the distinction between the liability of private persons and of companies has now been erased. This results from the new concept of the equal status of the subjects of civil law. The principle of presumptive blame has, however, been preserved, i.e., the burden of evidence remains that of the stated polluter.
The liability for damage as in ¤ 420 presumes the liability of every subject for damage caused by a breach of a legal duty and is realized given the following conditions:
The first three stated presumptions are objective in nature, while the last is subjective, applied only given the defense of a subject responsible for a damage. In practice the most frequent damage cases involved damage to the property of a subject under civil law and resulted from environmental damage caused by the business activity of the polluter. Those cases which most significantly affect the business sector are addressed by the newly introduced ¤ 420 in the amended Civil Code, which regulates liability for damage caused to a legal or natural person by a business activity. This sees the application of so-called 'objective' liability for damage, where it is sufficient for a solid case that the damage has arisen and that it has been caused by a business activity of the polluter. The polluter is exempt from responsibility only in select cases. In the event of malicious environmental damage of a substantial extent, responsibility under criminal law can be considered.
It is necessary, however, to mention a factor which complicates the present legal practice in the application of liability for environmental damage: if the damage arose before January 1, 1992 (i.e., before the amended Civil Code came into force), the former legal regulations must be applied. Therefore, for example, in a case where one party is a legal person and the other is a natural person engaging in business activity, the provisions of the Economic Code are applied.
First, the Communication from the Commission to the Council and Parliament and the Economic and Social Committee: Green Paper on Remedying Environmental Damage, 1993. This document deals with the possibility of applying the principle of civil liability as a tool for allocating liability with regard to the costs of remedying environmental damage. A session of the Council on Transport and the Environment on January 25, 1993 mandated that a system of sanctions and civil liability be drawn up to address environmental pollution.
The systems of civil responsibility for environmental damage differ in the individual states of the European Union, and the Council intends to draft a unified legal document to prevent polluters from evading their liabilities by transferring activities among the individual Member States. Also, the specialized departments of the Commission are now working to implement fault-based liability as well as a 'strict' liability. The Commission document also recommends the establishment of a common fund for compensation of environmental damage caused by waste.
Second, the 'Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment' represents another important document of interest to the Czech Republic. The Member States of the European Council, other states, and those belonging to the European Union in 1993 signed a Convention dealing with compensation for damage resulting from activities dangerous to the environment. The convention defines the basic concepts of 'dangerous activities' and 'dangerous substances' (including genetically modified organisms). The Convention also defines principles of liability and causality. Further, it underlines the importance of public access to information.
Within the EU, liability for environmental damage has yet to be embodied in a binding legal act. However, intensive preparatory work is in progress on several fronts to implement a unified legal regulation. Laws on liability for environmental damage have already been adopted in some countries (for example, in Germany).
There has emerged a discernible tendency in these activities and documents adopted in the area of environmental liability to implement a unified document on such liability and an implementation of so-called 'strict' liability only for 'menace activities' to the environment (i.e., in lieu of fault). Neither of these aims have been realized in the legal regulations of the Czech Republic. If as expected a binding legal act to this effect is adopted by the EU in the near future, it will be necessary to include this in the legal system of the Czech Republic.
Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment. Council of Europe, Lugano, 21/06/1993.
Drobnik, J. "Legal Liability for Environmental Damage", in Environmental Damage I, Evaluation. BIJO s.r.o., Prague, 1993
Jilkova , J.: "Economic Tools of Environmental Policy". Study under the PHARE scheme, Approximation of legislation. Prague 1995.
Tosovska, E.: "Legal Liability for Environmental Damage". Internal document. Praha 1995
2. Defined by Act No. 17/1992 on the environment as a "loss or weakening of the natural functions of the ecosystem as a result of human activity, resulting in a deterioration of its elements or in damage to its internal relationships and processes."
3. See the draft of Act No. 1591, "Act on forests and on an amendment and supplement of some acts" (Forest Act), Parliament of the Czech Republic, House of Representatives, 1995 (first election cycle).
4. Civil Code No. 40/1964 as amended in Act No. 58/1969, Act No. 131/1982, Act No. 94/1988, Act No. 188/1988, Act No. 87/1991, Act No. 105/1990, Act No. 116/1990 and Act No. 509/1991.