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Update 5 June 2025 having now access to the German version of the judgment courtesy of Tobias Lutzi and Petros Patronis, I have made just one or two amendments below (clearly indicated). The post as such has not materially changed.
___ORIGINAL POST_____
I have posted before of course on the jurisdictional and applicable law rules for climate claims (see in particular my post on Hugues Falys v Total) and on Article 7 Rome II’s special rule for choice of law in environmental claims. On the latter, use ‘Article 7’ or ‘A7’ in the search box, and see also my paper on A7/ lex ecologia as well as my paper here on climate justice litigation and private international law.
A few days ago I posted my overall assessment of the most recent climate judgment, Lliuya v RWE (more generally known as ‘Peruvian farmer v RWE) and in that post I said I would leave the applicable law analysis for a later post. So here we are.
Frustratingly there is still no sign of the judgment in the original German so like in my earlier post I am working with the unofficial English translation that is circulating. This may have an impact on how some of the court’s reasoning is translated and hence I may perhaps have to soften some of the criticism below once the judgment’s German version is out. [Update 5 June 2025 see comment above: I do now have the German version and even if the English version could be sharper in places, overall it is rather good].
P.26 the court first of all confirms the straightforward jurisdictional basis: Article 4 of the Brussels Ia Regulation, establishing the principal rule that a defendant can and should as of right be sued in their domicile. Note the difference here with Hugues Falys where claimant is suing Total, domiciled at France, in what he presumable argues is a locus damni or locus delicti commissi under Article 7(2) Brussels Ia. The possibility to claim as of right in the defendant’s domicile is not easily dislodged in the European system, as I explain here.
Next up is the applicable law p.32 ff. Here the court’s plan of approach is, with respect, messy.
Overall the court could have sufficed with its primary finding of lex voluntatis. Much of its remaining discussion therefore would be obiter in the common law.
[2.a.aa] it first suggests implied choice of law in that parties invoked in their submissions almost exclusively provisions of German law. It refers to pre-Rome II German authority for its finding that this implies choice of law.
[2.a.bb] p.33 it then confirms this additionally as choice of law under the Rome II Regulation: reference here is made to Article 14(1) Rome II.
[2.a.cc] it confirms the universal character of Rome II but either misunderstands what this implies, or jumbles it with the meaning of ‘international’ under Rome II: for the court here rightly points out that Rome II may lead to the application of a law that is not the law of a Member State (here Peruvian law would be the obvious candidate) but then states “The Regulation therefore also applies in the case of a foreign connection to a non-member state in its material scope of application as the conflict of laws of the member state -…” (emphasis added). That is wrong; the latter (the choice of law being either for an EU or non-EU Member State, ie the conflict of laws not being between two EU laws but between an EU and non-EU law) relates to the ‘international’ element required to trigger Rome II. It is not at all related to the universal character of Rome II.
[2.a.dd] p.33 onwards the court then probably (it really could have formulated its approach here much more clearly) dismissed lex rei sitae as a rule that would bounce German law. It is unclear whether it does this proprio motu or in answer to an argument formulated by REWE (but had it not been established that REWE had agreed to German law?) and /or in German scholarship?
Whatever the trigger, the court’s approach to a role for lex rei sitae is most unclear. p.33 in fine the court refers to “legal claims resulting from an (alleged) violation of (co-)ownership and which – as in this case – are based on the law of the place where the property is located.” I assume this must be a discussion under German conflict of laws prior to Rome II, which it seems classifies nuissance claims as claims in rem, subject to the lex rei sitae. However as the court points out p.34, this qualification is irrelevant as far as Rome II is concerned. Rome II’s concepts need to be applied autonomously and lex rei sitae is not a rule contemplated by it.
Only then does the court address Article 7 Rome II, the tailor-made rule for environmental damage:
The law applicable to a non-contractual obligation arising out of
environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined pursuant to Article 4(1), unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred
Midway p.34 the ’emission’ is identified as the ‘event giving rise to the damage’.
The court’s engagement with Article 7 is unclear as to how it seems climate damage in relation to that Article. It has been suggested by some that Article 7 does not see to climate damage as such.
Either the court in current case dismissed that argument out of hand, seeing as it straightforwardly applies Article 7 to what is arguably a climate claim. Or it sees (the threat of) flooding (as opposed to ‘climate change’) as the environmental damage. A matter of course application of Article 7 to climate claims would be supportive of a wide notion of the statutory language “arising out of” environmental damage.
The court once again notes parties’ agreement on the applicable law being German law but then seemingly proprio motu flags the potential for dépeçage, midway through p.34:
However, a distinction must be made because, according to the plaintiff’s submission, the defendant’s conduct (issuing activity) has been ongoing since 1965 and the Rome II Regulation has only been applicable to non-contractual obligations since January 11, 2009 (see Art. 31 Rome II Regulation).
Under applicable German conflicts rules then, between 1 June 1999 and the entry into force of Rome I, German law would have applied as lex fori solutionis (the place of performance; I am not familiar enough with German conflicts rules to understand what performance is talked about here) [Update 5 June 2025 the German version does not actually use ‘place of performance’ rather ‘die Tatortregel’: that is the general locus delicti commissi rule which, in the context in particular of Brussels Ia, now divides into Handlungsort and Erfolgort] and prior to 1 June 1999 the German rule it seems was ‘the place of action’ (presumably the locus delicti commissi: here earlier established of Germany as the place of emission) or the locus damni (surely Peru?), with it seems here like now in Rome II, claimant being able to choose. [Update 5 June 2025 here the German language version is somewhat clearer: prior to 1 June 1999 the German rule was customarily also the Tatortregel as per above, locus delicti which, if there was a distictinction between Handlungsort and Erfolgort, led to claimant being able to chose whichever one was more beneficial to it; in other words availability of a similar rule as in A7 Rome II but then across the board].
For this section, availability of the judgment in German would be most welcome. [Update 5 June 2025 it now is, as noted]
Importantly, the court’s reading suggest that for continuing torts, it decides (but it does so obiter, surely: see its overall finding of lex voluntatis) dépeçage applies.
As regular readers of the blog may remember, the Dutch Supreme Court has referred to the CJEU on the issue of continued infringement, in the case of competition claims.
The judgment overall has some loose ends on the Article 7 Rome II issue (compare similarly Milieudefensie v Shell) and the expression of the train of thought imo could have been clearer.
As noted, once I have the German version of the judgment, I shall revisit.
Geert.
EU Private International Law, 4th ed. 2023, 4.56 ff.
[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]