Groups of companies and environmental liability confronting

• Author: Flaminia Stârc-Meclejan
• Position: The Faculty of Law, West University of Timi?oara, Romania
• Pages: 234-246

GROUPS OF COMPANIES AND ENVIRONMENTAL LIABILITY CONFRONTING

Lecturer Flaminia STÂRC-MECLEJAN

1, PhD

,,History warns us ... that it is the customary

fate of new truths to begin as heresies and to end as superstitions.”2

Abstract

It's been a long time since ma rkets transcended national border s, corpora te law dealing at the beginning of

this century with rather complex corporate str uctures that gra dually replace its ordin ary subjects, the companies. At the

same time, the bases of civil liability for torts were put in a time when damage was only exceptional and ha d

comprehensible dimensions, cir cumstances th at are no longer valid toda y when we ta lk of the environmental da mage.

The ability of the victims of environmental da mage, facing the pr ecarious financia l condition of a subsidiary, to sue the

paren t company is theor etically hindered by the independence of the affiliated compan ies forming th e group, a s each

company retains its legal personality, a s well as by the a bsence of a group r egulation in Romanian law. In this context,

the aim of our paper is that of seeking solutions that would allow a piercing of the parent company’s corporate veil to

hold it accounta ble, considering reality.

Keywords: group of companies, liability, damage cau sed to the environment, piercing of the corpora te veil.

JEL Classification: K22, K32

1. Foreword

Environmental damage3, whether it affects or not our personal interests, is an important

challenge to the traditional concepts of tort and corporate law.

On the one hand, the premises of tort liability were laid down in times when such damage

was rather unusual and had comprehensible dimensions4. In case of the environmental harm,

liability should be adapted to the specificity of the damage, beginning with its catastrophic

potential, the long-term effects, its dimension, most often collective, and sometimes its lack of

impact on the people5. On the other hand, corporate law increasingly deals at the beginning of the

21th century with complex corporate structures that gradually replace its ordinary subjects, the

companies and, simultaneously, its usual problems and solutions.

Starting from these two assertions, a question raised in practice that we shall try to answer

in this paper is - whether and under what conditions, in case of suffering damage arising from

1 Flaminia Stârc-Meclejan - The Faculty of Law, West University of Timioara, Romania, flaminia.starc@drept.uvt.ro

2 T. H. Huxley, The Coming of Age of the Origin of Species (1880), in Collected Essays (1893), Vol. 2, 229.

3 According to most environmental law scholars, the very term ”environment” is imprecise. Its meanings oscillate a lot – according to

a narrow approach, it refers to our neighbourhood, and, on the other hand, pursuant to a broader approach, it is synonymous with the

biosphere. Our law understands the environment as the set of conditions and natural elements of the Earth: air, water, soil, subsoil,

the characteristics of the landscape, all layers o f the atmosphere, all organic and inorganic materials as well as living beings,

interacting natural systems, including the elements listed above, as well as some material and spiritual values, the quality of life and

the conditions that can influence human health and welfare (Art. 1 (2) of Government Emergency Ordinance no. 195/2005).

International law stresses that the environment is not an abstraction but represents the space where human beings live and which

determines their health and quality of life, including those of future generations (International Court of Justice, 25 Septem ber 1997

Gabcikovo - Nagymaros p roject, http:// www.icj-cij.org). And, last but not least, under the European law, the environment is

composed of “factors” such as people, fauna and flora, soil, water, air, climate and landscape, the interdependence of those factors,

property and cultural heritage, site, design and the size of a project (ECJ judgment of May 2, 1996, Commission v. Belgium, comm.

P. Léger, section 56).

4 See, for instance, M. Prieur, Droit de l'environnement, 6th edition, Dalloz, P aris, 2011; M. Duu, Dr eptul mediului, C. H. Beck

Publishing House, Bucharest, 2010

5 Environmental law goes far beyond traditional frameworks, requiring the recognition of a new paradigm. The urgency of preserving

air, water, so il, biological diversity is the same everywhere aroun d the world, and environmental issues, such as, for example, acid

rain, ozone depletion and desertification know no borders.