Civil Liability in Environmental Law

AuthorDrd. Judge Alexandrina Marica - Trainee Magistrate Andreea Marica

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Liability for the ecological prejudice as presented in OUG no 195/2005

In the absence of special regulations regarding civil liability for ecologic prejudice, article 44 paragraph 7 of the Romanian Constitution introduced two possible fundaments for this kind of liability: the violation of the duties regarding the environment protection and breaking the obligation to ensure a good neighborhood.

Law no. 137/1995 regarding the protection of the environment resolved this problem and brought important notions in the area of liability for ecologic prejudice. This law abandoned the classic regime of civil liability based on illicit acts, as established by article 998 and the following of the Civil Code and it introduced three general and complementary rulesPage 2that apply in case of liability for prejudice: the objective liability, regardless the person's fault, the solidarity liability in case there are more persons liable for prejudice and the obligation to ensure against the risk of ecologic damage.

The new frame-law regarding the protection of the environment - OUG no. 195/2005 abandoned the obligation of ensuring against the ecologic damage, obligation that, among others, is specific for liability for ecologic damage.

Article 95 paragraph 1 of OUG no. 195/2005 states that the liability for environmental prejudice has an objective character, regardless of fault; in case there are more persons responsible for the prejudice, the liability is solidary. The next paragraph of the same article states that "Exceptionally, there can be a subjective liability for the prejudice cause to protected species and natural habitats, in accordance with special regulations". These provisions are useless because the exceptions are governed by special regulations and they must be interpreted strictly. The provision that the prevention and the reparation of environmental prejudice will be made according to OUG no. 195/2005 tries to replace the elimination of the obligation of ensuring, by mentioning a future special law.

OUG no. 195/2005 adapts the civil liability to the environmental protection, so that the fundamental principles of...

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