International environmental litigation in EU courts: a regulatory perspective

This article argues that the rules of European private international law, which frame international litigation in the courts of the Member States of the EU, fail in their pursuit of the cosmopolitan goals of EU environmental policy. The practical operation of these rules is limited to the following two types of case: (1) the case of victims suing an operator whose actions in one country directly cause environmental damage elsewhere, and (2) the case of victims suing a European-based multinational corporation operating in an extraction or chemical industry whose overseas subsidiary, typically in a developing country, causes environmental damage. By arguably not accommodating claims by public authorities against foreign operators, including from other Member States, which are crucial in cases of pure environmental damage, and cases of the second type in industries other than extraction and chemical, European private international law fails to fully achieve its regulatory potential. Furthermore, the rules of European private international law have the effect of raising the level of environmental protection solely within the EU and at its borders in the first type of case and shielding European multinational corporations from liability for the environmentally detrimental and degrading effects of their overseas operations in the second type of case. These rules are therefore an inadequate tool of global governance. Avenues for improving the law are mentioned.