Authorisations to Emit Greenhouse Gases – A Conflict-of-Laws Perspective

Within the framework of private climate litigation, where injured people bring civil claims concerning the liability of companies for the harmful effects of their polluting activities before domestic courts, this contribution investigates the role of authorisations to emit greenhouse gases under Directive 2003/87/EC (Emissions Directive), when they are not specifically part of the lex fori (law of the forum) and lex causae (law applicable to merits). A traditional way to consider greenhouse gas emissions permits in these disputes is via the rules of safety and conduct under the Article 17 of the Regulation (EC) No. 864/2007 (Rome ii). The author of this contribution considers that there may be a different reading of such rules, i.e. the interpretative elaboration of a unilateral conflict rule in the Emissions Directive, which would allow the authorisation issued by a State whose law is different than the lex fori and lex causae ones before the courts of EU Member States to be relied upon. Furthermore the authorisation, in circulating, carries with it the (possible) exempting effect under the civil liability rule of the State issuing the authorisation.