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In Stichting Surroundings and elementary rights v Repsol Perú BV et al ECLI:NL:RBDHA:2025:8700, the declare pertains to the 15 January 2022 oil leak at La Pampilla, Peru, also called the Callao Oil Spill.
Defendants are Repsol Perú BV, domiciled at The Hague: that is the anchor defendant and jurisdiction towards it’s simply established utilizing Article 4 Brussels Ia. The opposite defendants are Repsol SA Madrid, and Refinería La Pampilla SAA of Callao. Peru.
‘Discussion board connexitatis’ is the ability for a court docket to train jurisdiction over defendants towards whom it doesn’t ordinarily have jurisdiction, offered the claims towards them are so intently associated to (therefore ‘connexitatis’) one towards a defendant viz whom stated court docket undisputedly has jurisdiction, that the curiosity of justice requires joint remedy of all claims involved. The latter defendant known as the ‘anchor defendant’.
Within the case at challenge, discussion board connexitatis must be examined towards the EU guidelines (Article 8 Brussels Ia) within the case of Repsol SA; and underneath residual Dutch guidelines (Article 7(1) CPR, as a result of A8(1) doesn’t apply towards non-EU domiciled defendants) within the case of Refiniería La Pampilla SAA.
Present judgment offers with the jurisdictional points solely and doesn’t point out relevant legislation in any respect. It’s seemingly claimants make use of Article 7 Rome II’s lex ecologia provisions (examine the Lliuya v RWE judgment simply final week) nonetheless I can’t be positive.
A primary argument of defendants is that underneath Article IX of the 1992 Worldwide Conference on Civil Legal responsibility for Oil Air pollution Injury – CLC, the declare have to be introduced in Peru:
“The place an incident has triggered air pollution harm within the territory, together with the territorial sea or an space referred to in Article II, of a number of Contracting States or preventive measures have been taken to forestall or decrease air pollution harm in such territory together with the territorial sea or space, actions for compensation could solely be introduced within the Courts of any such Contracting State or States.”
[4.6] the court docket acknowledges that prima facie this does appear like a knock-out level. Nonetheless [4.7] it factors out that alternatively, the CLC solely regulates the legal responsibility of the ship proprietor and its insurer and the way they are often sued. [4.9] the court docket confirms its studying of textual content itself, the travaux and the DNA of the CLC as not pertaining to claims towards events apart from the ship proprietor and its insurer. ‘A 2002 judgment by the Italian Supreme Courtroom’ which I think is I.O.P.C.F. v. Registro Italiano Navale and others, re the sinking
of m/t “Erika”, Italian Supreme Courtroom 17 October 2002 n. 14769 is distinguished on the bottom that that declare concerned the affiliated individuals listed in A IX CLC.
The court docket then considers A8(1) BIa viz Repsol SA, and [4.13] factors out that the identical ideas in utility of the EU anchor guidelines, apply equally to the residual Dutch guidelines.
[4.11] it means that the declare towards the anchor defendant should have a prospect of success, for A8(1) jurisdiction to be attainable. That view is just not imo supported by the authorities and the problem is at the moment sub judice not less than so far as follow-on damages claims are involved, in CJEU C-673/23 Electrical energy & Water Authority of Authorities of Bahrain ea v Prismiian ea. I evaluation the Opinion of Kokott AG right here.
[4.16] the core reproach viz the defendants is alleged to concern the inadequacy of the La Pampilla reception services, and defendants’ insufficient response to the spill. Repsol BV argues that it’s a most distant shareholder and under no circumstances concerned within the goings-on in Peru and that even Repsol SA has no direct dealings with the Peruvian operations. [4.17] claimants argues the close to unique possession (greater than 99%) of Repsol BV in La Pampilla, a shared director and different hyperlinks present the direct involvement or on the very least a culpable non-involvement: Repsol VB should have used its affect to keep away from the calamity.
[4.18] nonetheless the court docket rejects the shareholding and different circumstances and calls for claimants present “direct involvement” by Repsol BV. That’s most positively a step again viz current obligation of care litigation, together with in The Netherlands. The court docket didn’t instantly refuse immediate permission to attraction therefore I think (however I’m not a Dutch CPR knowledgeable) this have to be attainable – and most positively must be exercised.
The deserves evaluation take a look at is as I argue above, not good legislation underneath A8(1) authority and the requirement of ‘direct involvement’ is just not according to current obligation of care apply.
Geert.
EU Non-public Worldwide Regulation, third ed. 2021, Heading 2.2.13.1 (particularly 2.496); Heading 2.2.15.3.2; Chapter 7.
