LUXEMBOURG Law and Practice Contributed by: Nathalie Prüm-Carré, Inès Goeminne and Georges Gratia, Elvinger Hoss Prussen
7. Personal Liability 7.1 Directors and Other Officers
9.2 Lender Protection Please see 9.1 Financial Institutions/Lenders .
As a general rule, directors and officers may be held personally liable for environmental damage if their personal behaviour contributed to the infringement or if they were aware of the infringement and failed to act. For example, a company director may be held personally liable by virtue of their corporate mandate (contractual liability). They may also be held liable for a “fault” within the meaning of the Civil Code (tort liability) or for an offence (criminal liability).
10. Civil Liability 10.1 Civil Claims
Civil actions for compensation or remedial measures in environmental matters are mainly based on ordinary civil liability law. In pollution cases, the owner of polluted land may be held liable for abnormal neighbourhood disturbances or for damage to property, or as a producer or holder of waste under the Law of 21 March 2012 on waste management, as amended. In the event of the sale of polluted land, the purchaser has a number of rights of action against the seller, such as: • an action to enforce the seller’s warranty on the grounds of latent defects (Article 1641 of the Civil Code); • an action to declare the contract null and void on the grounds of lack of consent (Article 1110 or 1116 of the Civil Code); and • an action for breach of the seller’s delivery obliga- tion (Article 1603 of the Civil Code). 10.2 Exemplary or Punitive Damages The Luxembourg system of compensation for loss does not allow for punitive damages as may be allowed in other legal systems, such as the US legal system. 10.3 Class or Group Actions In Luxembourg, there is no real collective action in environmental civil matters; in principle, each person must act individually to defend their rights. However, several people may bring an action together when they share a common interest – for example, in rela- tion to the same project. On the other hand, approved associations can take legal action to defend the collective interests related to the protection of the environment that they aim to defend.
8. Insurance 8.1 Environmental Insurance
In Luxembourg, environmental insurance is not designed as a general obligation for all undertakings. It is governed by legal texts that require cover for cer- tain types of activity considered to be at risk. To this end, operators of waste management facilities and sites are required to set up a financial guarantee or other equivalent means, in the form of an insurance contract, which is intended to cover the estimated costs of decommissioning procedures and opera- tions for the subsequent management of the operating site, in accordance with the Law of 21 March 2012 on waste management, as amended. With regard to legislation on classified establishments, authorisations may stipulate that, depending on the nature of their activity and the risks involved, under- takings must take out civil liability insurance and pro- vide a guarantee for the restoration of the site in the event of an incident or accident related to the opera- tion and in the event of the cessation of activities.
9. Lender Liability 9.1 Financial Institutions/Lenders
In Luxembourg, there is no legal provision that would allow financial institutions or lenders to be held direct- ly liable for environmental damage or infringements caused by the activities of their clients or the projects they finance.
291 CHAMBERS.COM
Powered by FlippingBook