LUXEMBOURG Law and Practice Contributed by: Nathalie Prüm-Carré, Inès Goeminne and Georges Gratia, Elvinger Hoss Prussen
10.4 Landmark Cases In Luxembourg, there are currently no published lead- ing cases establishing specific civil liability for envi- ronmental damage. However, a number of decisions issued by the administrative courts, particularly in relation to classified establishments, concern envi- ronmental issues such as pollution. 11. Contractual Agreements 11.1 Transferring or Apportioning Liability Contractual arrangements may include clauses relat- ing to the transfer or allocation of environmental liabil- ity, particularly in the event of the transfer of land or a classified establishment. However, these clauses are not binding on the authorities and cannot exempt an operator from their legal obligations. 12. Contaminated Land 12.1 Key Laws Governing Contaminated Land The Law of 10 June 1999 on classified establish- ments, as amended, is the main legislation govern- ing contaminated land. The operator must declare the definitive cessation of their activity to the relevant authority, according to the classification of the estab- lishment. Where a cessation is recorded by the rel- evant authority without being declared, the conditions set out below also apply. Upon declaration of cessation of activity, the authori- ties set the conditions for safeguarding and restoring the site, including decontamination, clean-up and, where necessary, rehabilitation. The owner of polluted land may be held liable as a producer or holder of waste under the Law of 21 March 2012 on waste management, as amended. In this respect, it is important to note that unexcavated contaminated soil is currently covered by this law, which also provides a basis for introducing preven- tative and remedial measures in the event of a risk to human health or damage to the environment. The Minister for the Environment can take all measures required by the situation, including:
• requiring analyses, expert reports or technical tests; • ordering the closure of a site; • prescribing the suspension of the activity likely to be at the origin of such an infringement; and • ordering work to quantify, stop, remedy and remove environmental damage. In addition, the Environment Agency manages a regis- ter of potentially contaminated sites (CASIPO), which lists potentially contaminated sites and contaminated or remediated sites in Luxembourg. This register is public and enables checking whether a plot of land is In principle, the obligation to remediate contaminated land rests with the last operator, in accordance with legislation governing classified establishments. The operator is required to ensure that the site is restored and to pay for the remediation measures. In certain circumstances, this liability may be trans- ferred when the operator is, for example, insolvent or cannot be found. This transfer does not result from an explicit legal framework, but essentially from case law. 12.3 Determining Liability In principle, each operator is liable for any contamina- tion resulting from their activity and the operation of the site. Where there are several sources of pollution, there is no general legal rule for determining liabil- ity. In practice, it can be difficult to apportion liability between several operators, especially when the con- tamination results from the same activity or involves identical polluting substances. 12.4 Proceedings Against Polluters potentially contaminated or remediated. 12.2 Clearing Contaminated Land Proceedings can be brought if the claimants have standing, which depends on the relevant court and on the nature of the dispute. Before the administrative courts, it is generally nec- essary to demonstrate a personal, direct and certain interest in bringing an action. However, in certain spe- cific proceedings, having intervened in a pre-litigation phase is sufficient to confer standing.
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