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TRANSNATIONAL COMPANIES AND THE APPLYING OF ARTICLE 7.2 REGULATION (EU) No. 1215/2012 Prof. Pía M. Moscoso Restovic MLL. Minning and Environmental Law.

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Presentation on theme: "TRANSNATIONAL COMPANIES AND THE APPLYING OF ARTICLE 7.2 REGULATION (EU) No. 1215/2012 Prof. Pía M. Moscoso Restovic MLL. Minning and Environmental Law."— Presentation transcript:

1 TRANSNATIONAL COMPANIES AND THE APPLYING OF ARTICLE 7.2 REGULATION (EU) No. 1215/2012 Prof. Pía M. Moscoso Restovic MLL. Minning and Environmental Law PHD. International Law and International Relations Universidad de Atacama Chile

2 STJCE november , C-21/76 Case: Bier vs. Mines de Potasse d'Alsace

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4 COUNCIL REGULATION (EU) No 1215/2012 of 12/12/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters 2) in matters relating to tort, delict or quasi- delict, in the courts for the place where the harmful event occurred or may occur Article 7: A person domiciled in a Member State may, in another Member State, be sued:

5 Harmful event Damage Generator event

6 RELEVANT TOPICS – When jurisprudence of the Court of Luxembourg created “the rule of ubiquity” it had to resolve two situations: the first, determining the “harmful event” without entering into the debate about the causality between damage and the event giving rise to it. and the second, dealing with the problem from a phenomenological perspective (that of the environmental damage) without going into commenting on the relationship between environmental damage and civil damage.

7 ECJ JURISPRUDENCE Ratifying optio fori (There are usually problems of causality) Dumez France y Tracoba C-220/88 Shevill C- 68/93 Marinari C- 364/93 Henkel STJCE C-167/00 Besix C ‑ 256/00Taconi C ‑ 334/00 DFDS Torline A/S C-18/02

8 ECJ JURISPRUDENCE Limitations to the optio fori Marinari C ‑ 364/93 Kalfelis 189/87 Blijdenstein C ‑ 433/01 Réunion européenne y otros C ‑ 51/97 Rudolf Kronhofer C ‑ 168/02

9 ECJ JURISPRUDENCE The "weaker" party in the international relationship FBTO Schadeverzekeringen NV C ‑ 463/ de diciembre del 2007 Vorarlberger Gebietskrankenkasse C ‑ 347/ de septiembre de 2009

10 Example: Power companies present in Chile  ENEL: operates a network with capacity of over 98,000 MW in 40 countries serving more than 61 million consumers.  The Spanish subsidiary of ENEL: ENDESA (35% of capacity in the country) (61% hydro, 36.9% Thermo and 1.4% wind).  The Norway SN POWER (310 MW in total), is the largest generator of hydropower in Norway and main generator of renewable energy in Europe.  The American: Public Service Enterprice Group, is a diversified company headquartered in New Jersey, one of the ten largest companies in the field of electricity in U.S.  CGE Group, the greater group in Chile, Argentina and Colombia in the distribution, transmission and generation of electricity energy, storage, transport and distribution of gas, services and associated products.

11 HARMFUL EVENT FOR INTERNATIONAL CIVIL ENVIRONMENTAL DAMAGE GENERATOR EVENT: (DECISION IN THE HEAD OFFICE) (IMPLEMENTATION OF DECISION. PRODUCTION) + DAMAGE (ECOLOGICAL DAMAGE + CIVIL DAMAGE) = TRANSNATIONAL DAMAGE Places where the victim can claim damages

12 HECHO DAÑOSO CIVIL PARA DAÑOS AMBIENTALES INTERNACIONALES Lugares donde la víctima de daño civil puede ejercer su acción HARMFUL EVENT FOR INTERNATIONAL CIVIL ENVIRONMENTAL DAMAGE Places where the victim can claim damages GENERATOR EVENT: (DECISION IN THE HEAD OFFICE) (IMPLEMENTATION OF DECISION. PRODUCTION) + DAMAGE (ECOLOGICAL DAMAGE + CIVIL DAMAGE) = TRANSNATIONAL DAMAGE

13 RELEVANT TOPICS After the Court of Luxembourg pronounced over the first and most important case of transboundary pollution, Bier/Minas de Potasio de Alsacia, a rule of ubiquity was established, which permitted the concurrence of courts of law, for instance: the forum of the place of the damaging result and the court of the place of the event giving rise to the damaging result. The rule of ubiquity is exercised below the wide umbrella granted by the “place of the harmful event” status indicated in Article 7.2 of Regulation (EU) No. 1215/2012.

14 RELEVANT TOPICS - At the European level no regimen of jurisdiction exists that deals with environmental matters. In effect, except for the special norms that regulate matters relative to pollution by hydrocarbons, oil spill, nuclear energy or the transport of hazardous materials, we have that Article 7.2 of Regulation (EU) No. 1215/2012, applicable to civil delict and quasi-delict, should replace all other gap.

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16 RELEVANT TOPICS The solution that the ECJ gave to the case Bier/Minas de Potasio de Alsacia, is applicable to simple issues of international environmental responsibility, because they present an occurrence of environmental damage with “unity and action and unity of consequence.” Nevertheless, the rule of ubiquity when applied to complex cases of international pollution (such as that which we identify as “transnational tort”)

17 RELEVANT TOPICS - En cases of pollution produced by transnational companies, the lawsuit remains based in the defendant’s place of residence for application of the legal authority established in Article 7.2 of Regulation (EU) No. 1215/2012, in relation to: a) Article 4, b) Article 8.1 and c) Article 63, all from the same regulation. In this way, the application of the rule of ubiquity will permit the plaintiff of environmental damage (and of direct civil damage) to present the lawsuit to his local court: or in the place where the damage was manifested or in the place of the defendant’s residence.

18 RELEVANT TOPICS -When the defendant is an international legal person, it is probable that we will find multiple firms that form one transnational company or group of international firms. All of these firms can have a distinct level of participation in the perpetration of the unlawful international civil act. -If we want to distinguish between the meaning and scope of Article 8.1 of Regulation (EU) No. 1215/2012 in contrast with Article 7.2 of the same Regulation, we should take into consideration that Article 8.1 refers to “multiple defendants”, while Article 7.2 refers to one single defendant.

19 System Integrity

20 RELEVANT TOPICS In the case of transnational companies there is only one defendant, but is composed of various firms distributed in distinct States; said firms act in such a way that maintain economic unity and comply with the same corporate objectives. In this case, the practical utility of considering a transnational company as a singular defendant is based on the possibility of applying Article 7.2 of Regulation (EU) No. 1215/2012 and concretely applying the rule of ubiquity

21 RELEVANT TOPICS Energy enterprises acting like multiple firms that operate on the basis of an alteration in the organizational structure that demonstrates the exercise of a “unitary economic management” we then have the place where the decisions are taken that may or may not coincide with the place where the disaster is suffered. The head office, the owner, the controller, or the firm that performs the unitary economic management takes part in the responsibility in the negative externalities of the subsidiaries or associated firms in the case of verifying an occurrence of environmental damage.

22 Article 191 : Treaty Establishing the EU

23 TRANSNATIONAL COMPANIES AND THE APPLYING OF ARTICLE 7.2 REGULATION (EU) No. 1215/2012 Prof. Pía M. Moscoso Restovic MLL. Minning and Environmental Law PHD. International Law and International Relations Universidad de Atacama Chile


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