4 - Comparison

Summary

Scope of liable persons

Liability for polluting interference (Cases 1–10)

Fault liability

Liability for harm caused by polluting interference from neighbouring sites is rather incoherent among the European states. In all fifteen jurisdictions that were analysed, fault-based liability will apply generally. In some countries, however, there are special strict liability regimes for environmental damage that supersede traditional fault liability. This is especially the case in the Scandinavian countries (Finland, Sweden).

In countries where fault liability still plays an important role, several authors have pointed out that courts will use certain methods to tighten liability when it comes to harm caused by polluting interference from industrial facilities. These methods include heightening the level of care required from the defendant or shifting the burden of proof from the plaintiff to the defendant. This is the case in Spain, where scholars already speak of an ‘objectivisation’ of fault liability, which, in its practical application, comes close to strict liability. Such an aggravation of fault liability was also employed by the German BGH in the famous Kupolofen case by imposing the burden of proof on the operator of the industrial facility, and this example was duly followed by the Austrian OGH in the Sandstrahl decision. Both courts derive this interpretation from the laws of the neighbourhood under which the burden of proof traditionally lies with the defendant, and from the idea that, in such cases, the operator is in a better position to produce evidence than the victim.