I have always been interested in environmental topics. While I may not consider myself a fanatic on the issue, my awareness of the impending threats has certainly heightened with age. This increased consciousness is a result of observing the tangible environmental shifts in recent times, such as the severe drought we are living in Catalunya, scorching Mediterranean summers –a stark contrast from those I remember in my childhood–, rising sea levels, decreased snowfall in the Pyrenees, and a host of global issues like floods, water scarcity, wildfires, biodiversity loss, the Arctic meltdown, and the emergence of migrant refugees.

Just by witnessing the world where we live and its reality, it is senseless to deny climate change and its catastrophic consequences for the entire planet and, by extension, for humanity.

Despite having this latent interest, it was Professor Albert Font, the director of my thesis, who guided me towards an environmental topic within the field of civil law, his area of expertise. The specific focus was on corporate civil liability for violations of environmental law. As our investigation progressed, we narrowed the topic and we reached the complex question aimed to be solved: is it possible to bring to European national courts Multinational Enterprises whose parent company is based in Europe whereas a subsidiary, in Africa, executes an action that damages the environment?

So, the thesis aims to be an analysis of the tort liability of Multinational Enterprises for environmental damages inflicted overseas. The investigation was performed from the European perspective, taking as a central point European national courts and their power to judge –or not– actions that occurred in third countries (non-European Union countries).

To solve the question it is important to take into account that in the 21st-century in a globalized world, this modus operandi is commonplace in big enterprises to maximize its benefits by having the parent company based in a developed country while operating globally through subsidiaries. The legislation and environmental requirements of most African states are far from the minimum standards set by the European Union. In consequence, under the umbrella of foreign investment, some multinational corporations cause environmental harm and their actions in developing countries are likely to contribute to significant pollution during their investment activities. The primary culprits are often heavy industries that extensively use energy in their production processes, leading to substantial environmental harm.

Therefore, through three specific landmark cases, we analyzed the capacity of European courts to judge damages produced abroad.

The first case is called Akpan v. Shell (the Netherlands, 2013). Friday Alfred Akpan, a farmer and fisherman, resident of Ikot Ada Udo in Nigeria suffered damages in his livelihood due to oil spills in 2006 and 2007 originated from an oil factory operated by Shell Petroleum Development Company of Nigeria, Ltd, a subsidiary of Royal Dutch Shell established in Nigeria, both part of the well-known Shell group. The Nigerian citizen, with the support of a Dutch environmental NGO (Vereniging Milieudefensie), decided to sue in the Dutch jurisdiction and ask for economic compensation for the damages produced. The district court in The Hague (the Netherlands) recognized itself as competent to hear the case and render judgment, despite objections from the multinational enterprise.

The second case is the famous Vedanta v. Lungowe (United Kingdom, 2019). In this legal dispute, the Supreme Court of the UK ruled that the negligence claims brought by Zambian plaintiffs against the English parent company (Vedanta) and its subsidiary (Konkola Copper Mines Plc.) for environmental damages in Zambia could indeed be subject to the jurisdiction of English courts. The plaintiffs argued that the copper mine in Zambia has been polluting the waters used by local farmers for both agricultural and personal purposes. Although initially appearing as a case of domestic tort law confined to a specific territory (Zambia), the final decision of the Supreme Court holds significant relevance as it holds the company accountable for environmental damages caused by a subsidiary abroad.

The third and the last case analyzed is Okpabi v. Royal Dutch Shell (United Kingdom, 2021). More than 40,000 affected citizens in the Niger Delta in Nigeria filed a lawsuit against the parent company based in the UK (Royal Dutch Shell), whose subsidiary (Shell Petroleum Development Company of Nigeria Ltd) operated in Nigerian territory. The plaintiffs claimed that oil spills caused by the latter company have resulted in significant environmental damage, contaminating water and soil and that proper remediation measures had not been adequately undertaken. The Supreme Court of the UK delivered a judgment ruling that the parent company was liable under the English jurisdiction for environmental damages and human rights violations caused by its subsidiary in a third state.

It is important to highlight that the object of study is not the final decision of Courts, if companies were liable or not for environmental damages is a secondary matter; but to note that in all these cases European courts were able to judge actions (and inactions) occurred in third countries, only by following the connection established in the core of Multinational Enterprises.

Once these three judgements have been delivered, it is significant to note that the path taken by European courts to claim jurisdiction regarding these issues is not homogeneous. On the one hand, it is possible to gain jurisdiction through the Brussels I-bis Regulation with its article 4(1). On the other hand, the conclusion has been reached through the –sometimes problematic, as the CJEU established– customary figure of forum non conveniens.

Access to justice is the prominent pillar supporting the world of law and derives from customary international law, embodied in numerous instruments for the protection of human rights. Access to independent and impartial justice is the anchor that enables citizens to ensure the protection of human rights and environmental rights, among others.

However, in practice, guaranteeing this right is not always. Historically, it has been complex to hold large corporations accountable, especially those operating in different states with various legal personalities. This difficulty arises not only from the substantial power these corporations accumulate but also from the legal structures they have devised to evade it.

Regarding the position of the European Union, it is not a matter of meddling in the internal affairs of other countries, awakening old imperialist desires, or self-attributing abusive functions. Instead, it is about safeguarding appropriate conduct in accordance with internationally accepted codes of conduct. The aim is to become a guarantor of universally recognized fundamental rights and values, including the control of European business groups –or those strongly linked to our continent– always respecting the legitimate strategies of internationalization. This aligns with a key objective of the Union: to protect and enhance the quality of the environment globally.

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[Disclaimer: The views and opinions expressed in this blog are solely those of the individual collaborators and do not necessarily reflect the official policy or position of our University or any organization we may be affiliated with.]