The Permit Defence Between the EU Environmental Liability Directive and National Private Law : Some Comparative Law Remarks

The “permit defence” is a common way of addressing Article 8(4)(a) Directive 2004/35/CE. This expression is clearly inspired by private law language. This chapter aims to ascertain the relationship between EU law and private law, specifically whether it is merely linguistic or if there is some substantial connection. After a short drafting history, the effects of the EU permit defence will be analysed, highlighting the problem of distinguishing between legal and illegal activities. The chapter will then explore how private law liability systems of Member States deal with the same problem, paying particular attention to select rules of tort law and nuisance in Germany, France and Italy. Subsequently it will be possible to ascertain that, while permits are very relevant under public law, compliance with public law does not shield the defendant from the legal consequences of non-compliance with private law of EU Member States. From this perspective, national private law and the EU Environmental Liability Directive act similarly: neither seems to consider permits as a general exemption from liability. Finally, national transposition and implementation measures of the EU Directive will be analysed, noting that while German and French statutes are coherent with their legal traditions, the Italian solution seems to be both innovative and full of interpretative problems.