The Sino-German online dialogue on Environmental Protection in Tort Law and Environmental Damage Law was held in Beijing on May 22, 2023. The event was organized by the Sino-German Legal Cooperation Program of GIZ and the Environmental Resources Chamber of the Supreme People’s Court. Judges and professors from China and Germany in the field of environmental resources’ protection participated in the seminar.
The discussion centered on the issue of prevention and repair of environmental protection, and the presenters developed the topic from both public and private law perspectives. The reporting experts all emphasized the irreversibility of environmental damage after it has occurred. Therefore, prevention plays an important role in the field of environmental law. After the damage has occurred, appropriate means should also be taken to restore the environment.
In her welcome speech, Ms. Liu Zhumei, Chairwoman of the Environmental Resources Chamber of the Supreme People’s Court, emphasized that the current environmental protection and climate change is one of the important challenges facing all mankind and should be tackled by all countries together. The purpose of this event was to promote the exchange of experience between Chinese and German judges and experts in the field of environmental protection in order to improve the judicial level of both countries in the field of environmental resource protection. Afterwards, Dr. Marco Haase, Director of the Sino-German Legal Cooperation Program, welcomed the participants and emphasized the role of law as an important tool in environmental protection. He said that green and sustainable development is the predominating topic of contemporary development in all countries and that law is an important tool to achieve it. This seminar should not only involve international legal comparison, but also law comparison between civil and public law, because environmental protection affects both private and public interests. The two countries can exchange and learn from each other in the area of environmental protection.
The first topic was the prevention and remediation of environmental damages. The speakers were Ms. Yang Di, judge from the Environmental Resources Chamber of the Chinese Supreme People’s Court, and Mr. Raphael Murmann-Suchan, presiding judge from the Administrative Court of Cologne. Ms. Yang Di spoke on the judicial protection and remedies of ecological damage in China. She explained the experience of Chinese courts in adjudicating environmental damage cases with regard to civil, criminal, and administrative aspects. In his speech, Mr. Murmann-Suchan focused on the remedies for environmental damage under the Environmental Damage Law which is part of German administrative law. German administrative law mainly controls the risk of environmental damage through the approval process, and addresses the remediation of damages through subsequent reporting obligations and repair orders. In administrative proceedings, the principle of ex officio investigation and the presumption of causation are applied. In addition, environmental associations have the right of appeal under administrative law.
In the discussion setting, Judge Yang Di asked questions about the standard of “nuisance” and the limit of compensation. Mr. Murmann-Suchan responded to the question of limits on damages, noting that in the field of administrative law there are no limits on damages because of the high public interest, but in practice there are limits. Dr. Marco Haase raised a question about the set-up of the public interest prosecution department in the People’s Public Prosecutor’s Office. The Chinese side replied that the Public Prosecutor’s Office has a special department for environmental litigation, which is headed by specialized personnel. Judge Su Jingwei asked questions about the standard of “substantial risk” in preventive litigation and the prerequisites for environmental organizations to sue. Mr. Murmann-Suchan replied that in Germany, the task of prevention is performed by the authorities, and that parties can initiate administrative proceedings if the authorities fail to act. The conditions for environmental organizations to sue are set out in additional legislation for their non-profit purposes and continuity.
The second topic discussed the rules of evidence in civil litigation for environmental torts. The Chinese speaker was Mr. Song Chunyu, Judge of the Environmental Resources Court of the Supreme People’s Court of China, and the German speaker was Mr. Feige, Legal Advisor of the Sino-German Legal Cooperation Program. Mr. Song Chunyu gave a presentation on the forthcoming publication of the Rules of Evidence for Civil Litigation on Ecological and Environmental Torts by the Supreme People’s Court of China. The rules are based on the rules of evidence for civil litigation and are divided into two parts: public interest and private interest litigation, with emphasis on expert evidence and the competence of the court to collect evidence. Mr. Feige gave a report on environmental damage and burden of proof in German civil law. He said that environmental torts in German civil law are relatively rare. The possible basis of claim is usually Article 1004 or 823 paragraph 1 of the German Civil Code (BGB). Unlike administrative law, there is no group action or model action in civil law. Claims can only be sued by the party whose own rights and interests have been harmed. The Environmental Liability Act of December 10, 1990, a special law of the civil law, facilitates evidence for the injured party and reduces the risk for the injured party through mandatory liability insurance for operators of dangerous plants. Finally, expert witnesses under German law are requested and paid for by the parties.
During the questioning session, the Chinese side raised questions about the criteria for presumption of causation in Germany. Mr. Norbert Feige said that German law uses the standard of “likelihood of causing damage”, supplemented by the exclusion of the presumption of causation to solve this problem. The Chinese side also raised questions about how to deal with diverging expert opinions presented by the parties. In such case, the German court will not follow one of the opinions, but rather request an expert opinion itself and finally decide according to the burden of proof.
Finally, Ms. Liu Zhumei, President of the Environmental Resources Chamber of the Chinese Supreme People’s Court, summarized the seminar. She said that there are many similarities in the concepts of environmental protection between China and Germany, which can be learned from each other, and hoped for further cooperation in this field. Mr. Norbert Feige, legal advisor of the Sino-German Legal Cooperation Program of GIZ, concluded his speech by saying that the event had strengthened mutual understanding between the two sides in the field of environmental justice and had laid a good foundation for future cooperation.