ENVIRONMENTAL DUE DILIGENCE 1st AARC PhD Students Conference on Environment and Sustainable Energy University of Maribor Faculty of Law Pia Ravter

What is due diligence? An analysis of a company, organization or asset done in preparation for a business transaction in order to find any potential risk. It can regard different fields (tax compliance, legal compliance, environmental complience, etc.) WHY? To account for any potential future liabilities; mitigate business risks, protect the reputation of a company, ensure regulatory compliance and avoid penalties.

EU environmental legislation The Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community Birds Directive (Council Directive 2009/147/EC on the conservation of wild birds) Environmental impact assessment (Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment) Freedom of access to information Directive Integrated Pollution Prevention and Control (Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control) Industrial Emissions Directive Habitats Directive (Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora) Habitats Directive (Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora) Water Framework Directive (Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy) Urban Waste Water Directive (Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water collection and treatment) Waste framework directive (Directive 2008/98/EC of the European Parliament and of the Council on waste) Floods directive Landfill Directive Strategic environmental assessment (Directive 2001/42/EC) Waste Electrical and Electronic Equipment Directive ("WEEE directive") Large Combustion Plant Directive (Directive 2001/80/EC of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants) Noise emission in the environment by equipment for use outdoors (2000/14/EC − ″OND″)

Environmental liability Polluter-pays principle (Directive 2004/35/EC) WHO IS A POLLUTER? Any natural or legal, private or public person who operates or controls the damaging occupational activity. HOW IS A POLLUTER LIABLE? STRICT LIABILITY (objective liability) Fault or negligence

More liability …

… and more … NO right to a healthy environment under ECHR BUT they developed its case-law in enviromnetal matters RETROACTIVITY! LEGAL UNCERTINTY! LAW IN ACTION VS. LAW IN BOOKS

Freedom to conduct a business v. right to a healthy environment PENALTIES: up to 500,000€ and/or 3 years of imprisonment. HOW TO AVOID? Insurance (does not cover criminal liability and reputational damages) Risk management - environmental due diligence

Environmental due diligence 1 1. Phase: legal planning risks on applicable test range and construction of case by case methodology with interdisciplinary approach TEST RANGE: Location Contaminated sites Immission control Sewage water Waste Storage of chemicals Energy Occupational safety Production and products

Environmental due diligence 2 2. Phase: addressing existing onsite environmental concerns 3. Phase: conduct an inspection onsite and request all information and documentation 4. Phase: identify all risks and highlight the main on a scale of importance (high, medium, low degree) 5. Phase: evaluating the potential changes in the law with physical inspection of the property NOW POTENTIAL LIABILITIES BECOME CLEARER seek price reduction seek remedies seek guaranties ask further information provide cost-effective solutions conduct insurance

Thank you for your attention

References International Council on Human Rights Policy, Beyond Voluntarism: human rights and the developing international legal obligations of companies, Versoix: Switzerland, 2002, p. 154. Environment and the European Convention on Human Rights, june 2016, avalible at: http://www.echr.coe.int/Documents/FS_Environment_ENG.pdf (11. 11. 2016). Hilson, C., Risk an the European Convention on Human Rights: Towards a new approach, The Cambridge Yearbook of European Studies 2008-2009, Volume 11, Hart Publishing, introduction. Briels and Others, C-521/12, judgement of 15 May 2014, Orleans and Others, C-387/15, judgement of 21 July 2016, Association France Nature Environment, C-379/15, judgement of 28 July 2016 and many others. Kalimo, H., E-Cycling, Linking Trade and Environmental Law in the EC and the US, Transnational Publishers, 2006, p. 496-499. Wast Electrical and Electronic Equipment (WEEE) Directive 2002/96/EC, which entered into force on February 2003 and was revised into new WEEE Directive 2012/19/EU, which entered into force on 14 February 2014. Kalimo, H., E-Cycling, Linking Trade and Environmental Law in the EC and the US, Transnational Publishers, 2006, p. 498. Spence, P. D., The Never Ending Story: The Constitutionality of Superfund's Retroactive Liability Regime, The Environmental Law Reporter, Volume 32, Issue 11, November 2002. French parliament wants to impose a mandatory due diligence addressing huna rights, personal injuries, enviromnetal damages, health risks and corruption, avalible at: http://www.assemblee-nationale.fr/14/ta/ta0501.asp, (11. 11. 2016). Piatkowski, S., et. all., Eniromental Risks: A Crucial Part of Due Diligence in International Deals, Environmental Leader, 30 July 2014.