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Case:
Environmental Liability Act of 10 December 1990
BGBl I 1990, 2634 (as amended)
(Translation by The Cologne Re)
Date:
10 December 1990

With the consent of the Bundesrat, the Bundestag has enacted the followinginto law:

Article 1
Environmental Liability Act (ELA)

§ 1. Facility liability for environmental impacts

If a person suffers death or injury to his body or health, or if property is damaged, due to an environmental impact that issues from one of the facilities named in Appendix 1,† then the operator of the facility shall be liable to the injured person for the damage caused thereby.

§ 2. Liability for non-operating facilities

(1) If the environmental impact issues from a facility that is not yet completed and arises from circumstances forming the basis of the hazard posed by the facility after completion, then the operator of the not yet completed facility shall be liable pursuant to § 1.

(2) If the environmental impact issues from a facility that is no longer in operation and arises from circumstances forming the basis of the hazard posed by the facility prior to its ceasing operations, then the operator of the facility at the time of the ceasing of operations shall be liable pursuant to § 1.

§ 3. Definitions

(1) Damage arises from an environmental impact if the damage is caused by materials, vibrations, noises, pressure, rays, gasses, steam, heat, or other phenomena that have been dispersed in soil, air, or water.

(2) Facilities are permanent structures such as plants or storage facilities.

(3) Facilities include:

(a) machines, instruments, vehicles and other mobile technical structures, and

(b) ancillary structures

that stand in a spatial or operational relation to the facility or part thereof and could be significant for the occurrence of an environmental impact.

§ 4. Exclusion of liability

No liability shall exist insofar as the damage has been caused by force majeure.

§ 5. Limitation of liability for property damage

If the facility has been operated properly (§ 6 II second sentence), then liability for property damage shall be excluded if the property has only been impaired insignificantly or to a degree that is reasonable according to the local conditions.

§ 6. Presumption of causation

(1) If a facility is inherently suited, on the facts of the particular case, to cause the damage that occurred, then it shall be presumed that this facility caused the damage. Inherent suitedness in a particular case is determined on the basis of the course of business, the structures used, the nature and concentration of the materials used and released, the weather conditions, the time and place at which the damage occurred, the nature of the damage, as well as all other conditions which speak for or against causation of the damage in the particular case.

(2) Paragraph (1) shall not apply if the facility has been properly operated. A proper operation is present if the special operational duties have been complied with and no disruption of operations has occurred.

(3) Special operational duties are those duties imposed by administrative permits, requirements, and enforceable administrative orders and regulatory laws, insofar as their purpose is to prevent such environmental impacts that could be considered to be the cause of the damage.

(4) If, for the purpose of supervision of a special operational duty, controls are prescribed in the permit, in requirements, in enforceable administrative orders or in regulatory laws, then compliance with this operational duty shall be presumed, if:

1. the controls were carried out during the period in which the environmental impact in question may have issued from the facility, and these controls give rise to no inference of a violation of the operational duty, or

2. at the time the claim for compensation is made, more than ten years have passed since the environmental impact in question occurred.

§ 7. Rebuttal of the presumption

(1) If multiple facilities are inherently suited to cause the damage, then the presumption shall not apply if another circumstance is, on the facts of the particular case, inherently suited to cause the damage. Inherent suitedness in a particular case is determined on the basis of the time and place at which the damage occurred, the nature of the damage, as well as all other conditions which speak for or against causation of the damage.

(2) If only one facility is inherently suited to cause the damage, then the presumption shall not apply if another circumstance is, on the facts of the particular case, inherently suited to cause the damage.

§ 8. Injured party’s right to disclosure from facility operator

(1) If there are facts justifying the assumption that a facility has caused the damage, then the injured party may demand information from the operator of the facility insofar as this is needed to determine the existence of a claim for damages pursuant to this Act. The demand shall be limited to data about the structures used, the nature and concentration of the substances used or emitted, and other effects issuing from the facility as well as the special operational duties as provided in § 6 (3).

(2) The right to disclosure pursuant to paragraph (1) shall not exist to the extent that the events must be kept secret pursuant to legal norms or the countervailing interests of the facility operator or of a third party requiring secrecy.

(3) The injured person may demand from the facility operator an opportunity to review existing documents insofar as the assumption is justified that the information provided is incomplete, incorrect, or insufficient, or if the information is not provided within a reasonable time. Paragraphs (1) and (2) shall apply accordingly.

(4) §§ 259–261 of the Civil Code shall apply accordingly.

§ 9. Injured party’s right to disclosure from administrative agency

If the facts justify the assumption that a facility has caused the damage, then the injured party may demand information from administrative agencies that have issued a permit in respect of the facility, that supervise the facility, or that are responsible for recording impacts on the environment, insofar as this is needed to determine the existence of a claim for damages pursuant to this Act. The agency shall not be required to provide information if to do so would impair the performance of the tasks of the agency, if the disclosure would disserve the wellbeing of the Federal Republic or of a state thereof, or to the extent that the events must be kept secret pursuant to law or due to their nature, in particular due to lawful interests of the parties or of third parties. § 8 I, second sentence, shall apply accordingly for those agencies which have issued a permit in respect of the facility or which supervise the facility; information regarding the name and address of the facility operator, his legal representative, or agent for service of process may be demanded from these agencies.

§ 10. Facility operator’s right to disclosure

(1) If a claim pursuant to this Act is brought against the operator of a facility, he may demand from the injured person or from the operator of another facility information or an opportunity to review documents or demand information from the agencies named in § 9, insofar as this is needed to determine the scope of his liability to the injured person or of his claim for indemnity against the other operator.

(2) The provisions of § 8 (2), (3) sentence 1, and § 8 (4) shall apply to the right to disclosure from the injured person; § 8 (1) sentence 2 and (2)–(4) shall apply to the right to disclosure from an administrative agency pursuant to § 9.

§ 11. Contributory negligence

If the fault of the injured person contributed to the cause of the damage, § 254 of the Civil Code shall apply; in case of property damage, the fault of the person having actual control of the property shall be considered to be the fault of the injured person.

§ 12. Scope of liability for death

(1) In case of death, compensation shall be paid for the costs of healing efforts as well as for the financial loss which the deceased suffered because his earning capability was eliminated or diminished or his needs were increased during the illness. In addition, the liable person shall pay funeral costs to the person who has to bear these costs.

(2) If, at the time of injury, the deceased stood to a third party in a relationship whereby he was obligated to that person, as a matter of law, to provide support or could become so obligated, and if the third party is deprived of the right of support as a consequence of the death, then the liable person shall pay to the third party damages to the extent that the deceased would have been obligated to provide support during his presumed lifetime. Liability shall also attach if, at the time of the injury, the third party was conceived but not yet born.

§ 13. Scope of liability for bodily injury

In case of bodily injury or injury to health, compensation shall be paid for the costs of treatment as well as for the financial loss which the injured person suffers thereby because his earning capability is eliminated or diminished temporarily or permanently or his needs are increased. Fair compensation in money can also be claimed for non-pecuniary loss.

§ 14. Compensation by annuity

(1) Future compensation for elimination or diminution of earning capability and for increased needs of the injured person, as well as future compensation to a third party pursuant to § 12 (2), shall be provided by means of an annuity.

(2) § 843 (2) of the Civil Code shall be applied accordingly.

§ 15. Maximum limits of liability

The person liable shall be liable for death, bodily injury or injury to health only up to a maximum amount of 85 million euro and also for property damage only up to a maximum amount of 85 million euro, insofar as the damage is caused by a unitary environmental impairment. If the multiple losses to be indemnified on the basis of a unitary environmental impairment exceed the applicable maximum amounts provided in the first sentence, then the amount of each indemnification shall be reduced in the proportion that the total bears to the maximum amount.

§ 16. Expenses incurred for restoration measures

(1) If damage to property also impairs nature or scenery, then, insofar as the injured person restores the condition that would exist but for the occurrence of the impairment, § 251 (2) of the Civil Code shall apply, but the expenses incurred for restoring the prior condition shall not be considered unreasonable for the sole reason that they exceed the value of the property.

(2) Upon demand by the person entitled to compensation, the person liable shall make advance payment for the necessary expenses.

§ 17. Limitation of actions

The limitation provisions of the Civil Code pertaining to torts shall apply accordingly.

§ 18. Effect on liability under other laws

(1) This Act shall have no effect on liability arising under other legal provisions.

(2) This Act shall not apply in case of a nuclear event insofar as the Atomic Act applies in connection with the Paris Convention on Atomic Liability of 29 July 1960 (as published on 15 July 1985, BGBl. 1985 II p. 963), the Brussels Convention on Reactor-Powered Ships of 25 May 1962 (BGBl. 1975 II p. 957, 977) and the Brussels Convention on the Transportation of Nuclear Materials by Sea of 17 December 1971 (BGBl. 1975 II p. 957, 1026), as amended.

§ 19. Provision of coverage

(1) The operators of facilities named in Appendix 2 shall ensure that they are able to fulfil their legal obligation to provide compensation for damages that arise from a person suffering death or injury to his body or health, or from property being damaged, as a result of an environmental impact that issues from the facility (provision of coverage). If a facility that is no longer in operation presents a special hazard, the competent administrative agency may order the person who operated the facility at the time of the ceasing of operations to provide for coverage for a period of up to ten years.

(2) Coverage may be provided

1. in the form of liability insurance issued by an insurance company licensed to do business in the territory in which this Act applies;

2. in the form of an indemnity agreement or guarantee made by the Federal Government or by a state; or

3. in the form of an indemnity agreement or guarantee made by a credit institution licensed to do business in the territory in which this Act applies if such agreement or guarantee provides security comparable to that provided by liability insurance.

(3) The persons named in § 2 (1), Nos. 1 to 5 of the Compulsory Insurance Act as published 5 April 1965 (BGBl. I p. 213), last amended by the Act of 22 March 1988 (BGBl. I page 358), are exempt from the duty to provide for coverage.

(4) The competent administrative agency may prohibit, in whole or in part, the operation of a facility named in Appendix 2 if the operator does not comply with his duty to provide for coverage and fails to prove, within a reasonable time to be set by the competent agency, that coverage has been provided for.

§ 20. Authorization to issue executive orders

(1) The Cabinet shall, with the consent of the Upper House of the German Parliament, issue executive orders regulating:

1. the point in time after which the operator of a facility shall be required to provide for coverage pursuant to § 19;

2. scope and amount of the provision of coverage;

3. the requirements to be set for indemnity agreements and guarantees by credit institutions;

4. the procedures and powers of the administrative agency having jurisdiction to monitor the provision of coverage;

5. the proper office pursuant to § 158 c (2) of the Insurance Contract Act and the giving of notice pursuant to § 158 c (2) of the Insurance Contract Act;

6. the duties of the operator of a facility, of the insurance company, and of a person making an indemnity agreement or guarantee to the administrative agency having jurisdiction to monitor the provision of coverage.

(2) Any executive order shall be presented to the Lower House before presentment to the Upper House. The order may be amended or rejected by resolution of the Lower House. The resolution of the Lower House shall be presented to the Cabinet. If, after three session weeks following receipt of an executive order, the German Lower House has not deliberated on it, the order shall be returned to the Cabinet unamended. The Lower House shall deliberate on an executive order upon petition by the number of members required for forming a parliamentary group.

§ 21. Criminal penalties

(1) Any person who

1. fails, wholly or partly, adequately to provide for coverage in violation of § 19 (1), sentence 1, in connection with an executive order pursuant to § 20 (1), No. 1 or 2; or

2. violates an enforceable order issued pursuant to § 19 (1), sentence 2, shall be imprisoned for a term not to exceed one year or fined.

(2) If the violation is committed negligently, the imprisonment shall not exceed six months or the fine shall not exceed 180 day-sentences (Tagessätze).

§ 22. Administrative penalties

(1) Any person who violates an executive order pursuant to § 20 (1), Nos. 3 to 6, commits an administrative offence insofar as the particular order refers to this provision on administrative penalties for a specific violation.

(2) The administrative offence may be penalized with a fine of up to five thousand euros.

§ 23. Transitional provisions

Where the damage was caused before the entry into force of this Act, this Act shall not apply.

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