PAUL v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Mr Manfred Paul, is a German national who lives in Lebrade. , may be summarised as follows. The applicant is a farmer and horse breeder. During the summer of 1996, fourteen of his horses were on a paddock near a sewage treatment plant operated by the Lebrade municipality. In November 1996, after he had returned the horses from the paddock, the applicant noted alterations to the horses’ hide at the croup, the neck and the back. Subsequently, some horses suffered from diarrhoea and lameness. Between December 1996 and summer 1998, all horses except two died naturally or had to be put down. The applicant subsequently sued the municipality. After he had filed an objection to a default judgment of 4 July 1997, the Kiel Regional Court dismissed his claim on 6 August 1999. It found that, irrespective of the legal basis for his claim and whether chemical or biological substances from the plant had reached the applicant’s property, the applicant had not established that there was a causal link between the impact of the sewage plant and the horses’ diseases. An expert opinion prepared for the court had concluded that there was hardly any available medical evidence which could clarify the cause of the death of the horses with any certainty. The Kiel Regional Court heard three veterinary surgeons who were familiar with horse diseases but found that none of them had established a reason for the horses’ demise: there was no support for the applicant’s suspicion that corrosive vapours from the plant had reached the skin of the horses, and it was not likely that the skin diseases of the animals had been caused by a form of corrosion. Rather, it was likely that the animals had died from enteritis caused by salmonellae. The Kiel Regional Court also noted that the applicant had filed a motion to hear the expert in person during the court hearing, but had not sufficiently substantiated his criticism of the expert’s findings. On 17 May 2001 the Schleswig Court of Appeal rejected the applicant’s appeal. It held that the Kiel Regional Court had no reason to obtain a further expert opinion or to hear the expert in person. The applicant had not submitted substantiated claims concerning the extent of the plant’s emissions or concerning the link between the alleged emissions and the damage. The Schleswig Court of Appeal found that section 6 of the Environmental Liability Act, which provides for a shifting of the burden of proof if a facility listed in Appendix 1 of the Act is inherently capable of causing the damage (see Relevant domestic law, below), did not apply because the sewage plant was not listed in Appendix 1 to the Act. The Schleswig Court of Appeal also considered that the applicant had not sufficiently substantiated how the plant could possibly produce corrosive vapours and how they could reach his property, which was not located in the prevailing wind direction. Thus, the Schleswig Court of Appeal saw no need to obtain further evidence at the appeal stage. On 28 February 2002 the Federal Court of Justice dismissed the applicant’s appeal on points of law. The Federal Constitutional Court refused to admit the applicant’s constitutional complaint on 30 April 2003. Relevant provisions of the Environmental Liability Act of 10 December 1990: “1. Facility liability for environmental impacts If a person suffers death or injury to his body or health, or if property is damaged, due to an environmental impact that issues from one of the facilities named in Appendix 1, then the operator of the facility shall be liable to the injured person for the damage caused thereby. 6. Presumption of causation (1) If a facility is inherently capable, on the facts of the particular case, of causing the damage that occurred, then it shall be presumed that this facility caused the damage. Inherent capability in a particular case is determined on the basis of the course of business, the structures used, the nature and concentration of the materials used and released, the weather conditions, the time and place at which the damage occurred, the nature of the damage, as well as all other conditions which speak for or against causation of the damage in the particular case. (2) Paragraph (1) shall not apply if the facility has been properly operated. A proper operation is present if the special operational duties have been complied with and no disruption of operations has occurred. ...” The sewage treatment plant operated by the defendant municipality is not among the facilities listed in Appendix 1 to the Environmental Liability Act.