The
principles of environmental law and civil law are compatible. Subsidiarity
means that the basic rules of environmental law and civil law might be
substituted in the event of the lack of legal regulations on a certain topic. Actio
popularis is a procedural institution that can be applied in civil law and
in consumer and environmental protection. Constitutional acts on environmental
protection and on civil law relate to the improvement and conservation of human
health and environmental quality. Cooperation as a basic rule is manifested in
the relationship between the state and the civil population. An information
service on behalf of the administrative organs is a duty at both horizontal and
vertical levels. Individual behaviour in a given case reflects some objectivity
in private liability. The principle that solicitates an interpretation in order
to develop a legal system is compulsory. The principle of ordinary legal
practice declares that implementation of the rules in force must reflect their
normal usage. Lawyers are also bound by bona fides and dignity. (Bona
fides is a subjective and objective category in continental law, whilest it is
only a subjective category in British law; considering that someone who causes
harm to someone else acts with bona fides if this activity is based upon a
personal error in British law. Up to continental law, bona fides is also based
on honesty and ethics.) Good faith in British law is thus not the same as bona
fides - this is the reason why I use the term bona fides (buona fede) instead
of good faith. Integrated environmental law reflects a principle that is
completely new in legal theory: environmental protection is represented in
every act of rule.
The
Constitution of Hungary declares (Art. 18. And Art. 70/D) that a healthy
environment is a human right; this is reflected by the Civil Code.
La
dégradation de l’environnement est une réalité et les médias s’en font l’écho
tous les jours, writes Guttinger (Droit de l’environnement, p. 251).
(Paraphrased in English: "The destruction of the environment is an
accepted fact, as reflected day by day in the media.")
Environmental
law is a complexe interdisciplinary field, stated János Bogárdi in 1975 (Environmental
protection - water economy, published by the Hungarian Academy of Sciences, p.
18.). Calais-Auloy and Steinmentz (Droit de la consommation, p. 16) declare the
existence of an interdisciplinary field of environmental protection and
consumer protection (pluridisciplinarité means an immanence in each branch of
law, while interdisciplinarity relates to a common field of several fields of
law).
The
present study deals with consumer protection, the law of competition, authors’
rights and personal rights in envirtonmental protection.
In his
book Civil law and environmental protection, published in 1980 (p. 133), László
Sólyom described the possible common field of consumer and environmental
protection in the context of actio popularis. Actio popularis is filed
by a civil or administrative organization, while class action, recours
collectif (Québec), action en représentation conjointe (France)
relates to an action filed by the representatives of a social layer affected by
a certain problem.
During
the Conference of the European Community in Paris in 1972, a special committee
concerned with Consumer and Environmental Protection was set up. Sustainable
consumption is a special common area of the two domains. To give a formal
definition, sustainable consumption means some kind of consumption respecting
environmental criteria. The Green Book of the European Committee declares the
necessity for state intervention in the acquisition of environmentally friendly
produce acquiring, with regard to the fact that an average citizen’s decisions
concerning environmental protection are not sufficient to maintain sustainable
consumption in environmental protection (p. 15).
French
law forbids the publication of environmentally harmful activities in the mass
media (French Consumer Protection Code, Art. L-121-1). The present author has
seen a publication in which a gentleman’s dog destroyed a furcoat, the
gentleman subsequently being exhorted to make use of a loan from a certain
bank. This kind of publicity remains within the reaches of free speech. Judit
Fazekas considers that the primary aim of publicity is to encourage people to
do or not to do something (Rights of consumers, p. 125).
Before
the Hungarian Consumer Protection Act was passed, publication in Hungary was
regulated by a publicity decree, the Internal Commerce Act and an act
forbidding incorrect commercial competition.
The
Amsterdam Convention added comsumer and environmental protection as principles
to the original EC Convention.
Section
1602 of the French Civil Code makes it a precontractual obligation for
professionals (professionnel, professionata) to inform consumers properly as
concerns product quality. Neglect of this duty is followed by indemnity.
Section 1135 of the French Civil Code declares that les conventions obligent
non seulement a ce qui y est exprimé, mais encore a toutes les suites que
l’équité, l’usage ou la loi donnent a l’obligation d’apres sa nature. This
means that not only contractual obligation, but also informal obligation, is
included in the consumer’s convention with the sales company. In Hungary, the
Consumer Protection Act and the basic principles of the Civil Code include such
regulations. The European Union’s publicity law comprises directive 89/552/EEC,
directive 84/450/EEC as amended by
directive 97/55/EEC and directive 92/41/EEC.
The Rio Declaration
states that Human beings are at the centre of concerns for sustainable
development. They are entitled to a healthy and productive life in harmony with
nature (United Nations Conference on Environment and Development (UNCED),
Rio de Janeiro, Brazil, 1992). In his press release "Sustainability, not a
'pious invocation' but a 'call to concrete action'", Kofi Annan, UN
Secretary General, sent the following message to the participants of the
Johannesburg Conference on Sustainable Development: Far from being a burden,
sustainable development is an exceptional opportunity – economically, to build
markets and create jobs, socially, to bring people in from the margins; and
politically, to reduce tensions over resources that could lead to violence and
to give every man and woman a voice, and a choice, in deciding their own
future.
Protection
of the consumer and the environment is rooted in the fabric of ancient law,
though interdisciplinary points have been highlighted in recent times. The
current regulations in these fields are strongly based on the first and second
Hungarian Forest Acts; Act XXXI of 1879 and Act IV of 1935; the Food, Drug and
Cosmetic Act, USA, in 1938; etc. In Hungary at present, both are enjoying a
renaissance. Over and above the resemblance between the principles of these two
branches of law, a lawyer might find such connecting points as publicity,
labelling, actio popularis, wrapping and waste economy. In both cases,
the legal background is the principle of open information, energy-saving, bona
fides, environmental protection, etc.
In this context, the Hungarian regulations are to be reformed in
accordance with the legal system in western countries. This process has
recently commenced. The responsibility
and shared responsibility of the producers are among the principles of Act XLIII
of 2000 on waste economy, postulating the responsibility of the producer for
the environmentally friendly character of the product; and alI those taking
part in the process of production and waste generation are responsible for
environmentally friendly implementation. In The Netherlands, for example, it is
possible, within the activities of the Auto & Recycling Foundation, for a
car owner to have his car dismantled for disposal. The first owner of a car and
those who wish to have their cars classified as roadworthy are obliged to pay a
waste charge, whereas those who hand over their cars to the company Auto
Recycling Nederland pay nothing. A similar system is planned to be introduced
in Germany (source: 2000/10, OMIKK, pp. 17-18). In the proposal of August 1997
for a directive of the European Union, the aim is mentioned of the recycling or
restoration of 85% of wrecked cars by 2005 and of 95% of them by 2015 (source:
ibid., p. 25). The notion of BAT
(best available technology) has been expanded to include environmentally
friendly waste technologies. Hungarian government decree 44 of 1998 (in harmony
with EEC directive 85/577) forbids the peddling of dangerous waste. It is the
duty of the ÁNTSz (State Hygiene Service) to reinforce this regulation. If a
dangerous waste levy is to be charged, however, the Environmenta1 Authority is
the relevant official body, while in cases involving infringements of the
environmental or nature protection, it is the police. Order 473/2002 of the Commission of the European Union of 15
March 2002 gives a model examp1e of the regulation of the effects on human
health and the environment of chemica1 materials (Paragraph 5, Paragraph 10,
Preamble, Annex 1.2.a). In case 29/2001, the Commission of the European Union
was in legal conflict with the Kingdom of Spain: the Court of the European
Union declared that Spain had not met its task of harmonizing its legal system
with EU Council directive 96/61. This directive makes it compulsory to diminish
the quantity of waste and to prevent waste generation, important from the
aspects of consumers and the environment alike. In the absence of legal harmony
with the EU, such legal action can presumably be expected against Hungary as
weIl.
Both legal areas were involved in the dispute between
DaimlerChrysler and the Land of Baden-Württemberg under C-324/99.
DaimlerChrysler found it unfair that its waste should be transported to Hamburg
for disposal, instead of to Belgium. This caused enormous expense to the
enterprise. Articles 3, 4 and 5 of waste directive 75/442 were referred to:
besides the prevention, decreasing, re-use or recycling of waste, the
protection of human health and the environment is an important factor that must
be taken into consideration during waste handling. The Court of the EU stated
that if a national law forbids the export of waste for disposal with regard to
the proximity principle, then the relevant national law need not be in harmony
with Articles 34 and 36 of the Roman Treaty.
The Act in force in Hungary on the protection of
consumers prescribes the labelling of the environment- and nature-friendly
character of products. This compulsory information service is in step with
relevant EU law. Wrapping also has to
comply with environment-friendly characteristics. It is a natural aim for this
to be beneficial as concerns the process of re-use, recycling, deposition or
burning. According to Section 2, Paragraph 3, d) of Act LVI of 1995, a
product-charge is to be paid on wrapping materials in order to prevent and
diminish environmental pollution (ibid., Section 1). However, only 75% of the
relevant product-charge is to be paid in the event of wrapping materials
labelled as "environmentally friendly". A product-charge, can not be
imposed on a product imported from abroad that is stored in a custom-free area;
and no product-charge is to be paid on products that are not to be rewrapped.
The environmental product-charge on wrapping materials is determined in Ft/kg.
An environmental product-charge for wrapping materials, can be waived by the
Central Environmental Fund. Permission must be withdrawn in the event of
unfavourable conditions, such as regulation infringement. Twelve environmental
agencies in Hungary can grant permission, according to principium fori.
The Council of Environmental Product-Charges for Wrapping Materials makes
proposals on the compulsory proportions during the planning stages of the laws
on wrapping materials.
At a conference on environmental protection Mrs.
Erzsébet Biacs, director of the Waste Economy and Environment Technology Board
of the Ministry of the Environment in Hungary reported in Szeged (in South
Hungary) that many important regulations are under preparation, e.g. in
connection with the recycling of waste cars and the evaluation of the
product-charges for wrapping materials. It is stated in a proposal for a
government decree on the cleaning up of the environment and nature (Annex 1,
27-29) that, in accordance with waste law (Section 7 of Act XLIII of 2000)
producers must inform commercial partners and consumers of the environmentally
important characteristics of products, e.g. as concems waste handling. In the
latter case, the costs of information are economically regulated; this means a
small charge on a monthly or yearly basis. Producers must re-use, recycle,
dispose or burn waste products (Act XLIII of 2000, Act LIII of 1995, government
decree on dangerous waste). According
to Act XLIII of 2000 and Act LIII of 1995, producers are obliged to receive
waste from commercial partners if products are subject to investment- or
deposit-charges. This constitutes a medium-volume, over-yearly cost. In Hungary, a CE (Certificate Europe) is to
be shown at the request of the authorities or consumer. A Certificate Europe
may be requested during the fabrication and commercial distribution period.
There is a similar certificate in Hungary, lack of which constitutes a breach
of the law (government decree 218 of 1999).
Before the manufacturing of chemical products that are possibly harmful
to the environment (e.g. sprays) can be started, the National Chemical Safety
Institute (if brand-new materials are involved) and the State Hygiene Service
(ÁNTSz) are to be informed of the activities. Order 44 of 2000 of the Minister
of Health lays down that the National Chemical Safety Institute must be
informed of any new chemical material. Subsequently, the municipal Hygiene
Service supervises the personal and objective conditions before giving or
refusing permission for manufacture.
In recent times, two enterprises were condemned for
publicity inciting to activity harmful to the human environment. Section 4 of Act LVII of 1997 on publicity
strictly forbids any kind of publicity that favours pollution of the
environment or nature. A fee may be inflicted or, in the event of complicity, a
breach of law (environment or nature pollution, or illegal waste disposal) may
be established. Alcohol and tobacco publicity has undergone several
investigations in Hungary. In connection with advertising, the European
Union declares the principle of everyone's right to a healthy environment, as
declared by the Constitution of Hungary (Section 18 of Act XX of 1949).
Finally, it is important to mention the actio
popularis appearing in Act LIII of 1995 on the protection of the
environment. Section 99 authorizes the public prosecutor, environmental
associations and social organizations to forward people's actions in cases
involving the endangering, harm to or pollution of the environment. Courts may
establish responsibility and may compel restoration. Nevertheless, in the event
of harm caused to someone by an activity endangering the human environment,
Sections 345-346 of the Civil Code (after three years, general indemnity
regulations) should be applied. According to the proposal for a new Civil Code,
nemo turpitudinem suam allegans auditur may be applied. In court practice, besides the latter kind
of liability, we may find the liability for neighbourhood damage (knocking, the
sound of musical instruments, etc.).
Besides the Lugano Agreement, a new proposal for a directive of the
European Parliament and of the Council on environmental liability with regard
to the prevention and remedying of environmental damage (2002/0021 COD) deals
with civil liability for the protection of the environment, including an information
service on environmental cases. Consumer protection and environmental
protection have created a ligamen that represents the relationship
between civil law and environmental law.
In competitive law, as mentioned above, and in the law of persons,
persons, either legal or natural, are entitled to good repute. The most
important linking point between competitive law and environmental law is
exemplified in the well-known cases of Samsung and Pepsi Cola, while good
renown is a basic right of every human being and of every legal entity involved
in the commercial market. The Act on
incorrect marketing policy and the restriction of competition (Tptv.) strictly forbids any kind of unfair
restriction of commercial competition in Hungary, following a western homology.
Strict adherence to environmental regulations may result in a disadvantageous
situation in competitive law, with regard to the extra costs, especially in
such areas as gene technology. For instance, a meat factory is exposed to
severe environmental conditions: since they pollute soil, they have to mix it
with straw, as otherwise administrative, police or, in the event of serious
pollution, criminal sanctions may be imposed. Another factor that is
disadvantageous from the aspect of competitive law is the institution of
environmental supervising. Such a process may cost 5 million (in Budapest, 10
million) Hungarian forints. The IPPC is to be enforced from January 1st
2004, with regard to the date of Hungary joining the European Union. The
matching of environmental law and the law of persons generates a new aspect of
the basic right for good renown. In Szeged, Hungary, the company Budalakk
complained that its competitors have divulged that Budalakk had polluted soil
only to make it impossible for the company to sell the land concerned. (The
statement of the competitors proved to be partially true.)
These aspects of civil law and environmental law are
not intended to illustrate every meeting point of the two legal areas; it must
be borne in mind that environmental protection is something new in law (the
conference on Sustainable Development of Johannesburg ended only recently).
In Hungary, the civil liability for activities
endangering the human environment expires five years after the activities. After
three years, the situation relating to exculpation undergoes changes: someone
who has caused harm to someone else in consequence of activity endangering the
human environment must prove that he or she has done everything to be
reasonably expected in the given situation (úgy járt el, ahogy az az adott
helyzetben általában elvárható). During the initial three years, the author of
the harm is in a much more complicated situation: he or she has to prove that
the harm was caused by an external, unavoidable factor (üzemkörön kívüli,
elháríthatatlan ok). A third level of liability is formulated by the notion of
neighbourhood damage, i. e. harm (such as noise, the lack of sunlight, etc.)
caused by an activity that itself involves no direct harmful effect on the human
environment. The "ladder of liability" has three steps: neighbourhood
damage; damage with a normal exculpation period (after three years); damage
with a special exculpation period (during the first three years). Finally, it
is the task of the Hungarian judiciary to decide whether harm was caused to the environment
(neighbourhood damage or extracontractual responsibility), and how long has
passed since the generation of the damage (3+2 years). As concerns environmental
protection in the law of economic competition, case 414/1997 before the Supreme
Court contains important findings. According to the Section 11, paragraph 2
point, point a) of the Competition Act, it is forbidden describing a product of
its environmentally friendly character. Since a clear-cut definition of what
environmentally friendly means in social life is impossible, use of this expression to describe a certain
product is not allowed, as apt to mislead consumers. Nevertheless, Supreme
Court subsequently reinterpreted the situation in the following way: the term
environmentally friendly character may be used even in uncertain circumstances,
so that environmental protection is popularized. In case 28/1999 before the
Competition Agency, it was declared that no Hungarian act of law defines the
meaning of environmentally friendly character. The French-type product
liabaility of Louisiana (U.S.A.) is based on quasi-delictuality that reflects a
certain kind of liability based ex lege on the presumed fault of the producer
(importer). On the level of the European Union (ius commune Europae) a special
kind of regulation has been developped in the directive of 1985 and the
proposal of 1990. The liability of the waste-possessor is objective for damages
caused by this waste, regardless of the personnality of the owner this waste.
Though a common core is at the basis of the legal systems of North-America and
that of Europe. In Hungary, product liability is based on contractual level
that refers to delictual liability, and an objective liability in case of
endangering the human environment casually by a defected produce. In the
French-type case it is possible that a real delictuality occurs, however, in
practice, a similar regulation must be applied. Hungarian patent law forbids
the patenting of inventions that might harm the human environment or nature,
though there has as yet been no such case before the Hungarian Patent Bureau.
In Germany, der Grüne Punkt and der Blaue Engel are
systems for the recovery of wrapping materials from shops. This is not typical
in Hungary. The European Flower is the environmental symbol of the European
Union that is used for environmentally friendly products. Other national
environmental symbols exist in parallel in the EU. The Hungarian environmental
symbol depicts a 14-branched green tree. Environmental law and environmental
protection are means and aim. They are complementary to each other, and often
leave white spots on the canvas of our environment. However, they are in strict
relation, and must cooperate. Environment protection is always one step ahead
of its legal background: the power of waste law, a special and curious vis
naturae, originates from the successes and failures of waste economy,
similarly to the relation between environmental law and environment protection.