Gränsöverskridande miljöskador - Några synpunkter angående Rom II

Sammanfattning: The regulation of the European parliament and the Council (EG) nr. 864/2007 on the law applicable to non-contractual obligations is known as Rome II. Rome II contains a conflict rule in art. 7 which determines the law applicable to a claim involving environmental damages connected with more than one state. This conflict rule does not only apply to cases of damage to property and persons, but also to the difficult subject of damage to the environment itself. Damage to the environment itself is often called ecological damage. It is the state or environmental organizations that claim recovery for ecological damage as trustee of the environmental goods. Such claims are on the borderline between public and private law. The special question raised is if Rom II is applicable to these claims. The claim for ecological damage should in that case be qualified as a civil and commercial matter in the meaning of art. 1 Rom II. After a study of case law on the meaning of civil and commercial matters, this answer to the question for claims of the state is negative. Whether claims of environmental organizations for ecological damages fall under ''civil and commercial matters'' is uncertain because of lack of case law on the subject matter. The choice to include mere ''ecological damages'' in art. 7 Rom II is therefore highly controversial. Art. 7 Rom II shows that this conflict rule is part of a policy of environmental protection and the ''polluter pays principle''. It obliges operators established in countries with a low level of protection to abide by the higher levels of protection in neighbouring countries. This removes the incentive for an operator to opt for low-protection countries. Art. 7 Rom II allows accordingly the victim to make his claim based on either lex loci damni or lex loci delicti commissi depending on which law is more favourable to him. However art. 7 can lead to legal uncertainty for the defendant. In this way it shows that a focus on environmental protection can lead to worse market conditions like less legal certainty and efficiency. Other provisions in Rom II are being analyzed as well as they could be relevant for environmental damage claims. Environmental protection should also play an important role when applying these provisions. This thesis discusses for example, party autonomy (art. 14), provisional measures (art. 2), public policy (art. 26) and rules of safety and conduct (art. 17). If Rom II is a suitable instrument for environmental damages is not clear yet and will also depend on future case law.