Environmental Law - the Black Sheep in Rome II's Drive for Legal Certainty: Article 7 of Regulation (EC) No. 864/2007 on the Law Applicable to Non-Contractual Obligations in Context

Early in 2009, the Rome II Regulation on the Law Applicable to Non-Contractual Obligations came into force in the European Community. As the very first European Regulation on choice of law, it finally enables environmental lawyers to refer to a single primary source throughout the EC when dealing with conflict of laws issues (that is, cases having a foreign element, such as those involving transboundary pollution), rather than asserting the law applicable according to the private international laws of numerous Member States. This article focuses on the rules relating to environmental damage and, in particular, on Article 7 which appears to be the ‘black sheep’ of Rome II. In contrast to Rome II as a whole, Article 7 has no real background in European tradition; it is expressly grounded in Community law, and, last but not least, it deliberately creates uncertainty. Despite its character as inverse mirror of the system of Rome II, Article 7 is a welcome solution in the interest of protection of the environment and it reinforces Community policies in the absence of further harmonisation in this field since, for the purpose of deterrence, the burden of uncertainty falls on the alleged polluter.