Safety Board report
Consequences: strict supervision and rigorous enforcement?
ECHR perspective
Comment



Safety Board report

In June 2013 the Dutch Safety Board published a report on the role of the DCMR Environmental Protection Agency regarding the safety of Odfjell's Rotterdam terminal between 2000 and 2012. Odfjell, a major tank storage terminal in Rotterdam, has a history of breaching environmental protocols and permit conditions. The board criticised not only Odfjell's offences, but also the role played by the agency, which it considered to have been inadequate and ineffective in granting permits, supervising permit conditions and enforcing and sanctioning where necessary.

More specifically, the agency was found to have:

  • conceived a complicated jumble of unclear permit conditions that were subject to misinterpretation;
  • failed to keep permits for Odfjell up to date;
  • accepted official notifications of changes at the terminal as mere informal announcements without examining the possible consequences or whether the permit conditions allowed such changes;
  • been too obliging of Odfjell on both permit conditions and the subject of supervision and enforcement. Constructive cooperation should be encouraged, but in the case of Odfjell the agency was found to have overstepped the bounds, according to the report;
  • known that its risk control system had been far from satisfactory for a long period (ie, between 2000 and 2012); and
  • failed to enforce regulations and permit conditions or penalise Odfjell, despite the fact that it had clearly been aware of the violations and risks. Only after the agency learned of a serious leak did its attitude towards Odfjell change, resulting in the temporary shutdown of the terminal.

Consequences: strict supervision and rigorous enforcement?

On a positive note, the report concluded that the agency has stepped up supervision in general and now will not hesitate to act when breaches are discovered (for further details please see "Environmental agency enforcement leads to Odfjell's downfall"). This trend is likely to continue in light of the report's content and recommendations; just two weeks after publication of the report, the agency fined Odfjell €850,000 for yet again breaching regulations and agency agreements.

ECHR perspective

Although the agency cannot be accused of not having good intentions or not trying to implement an effective system of supervision and enforcement through close cooperation, it (and consequently the state of the Netherlands) risks conviction by the European Court of Human Rights (ECHR) for breaching Article 2 (the 'right to life' provision) of the European Convention on Human Rights(1) if it fails to continue this trend of strict supervision and enforcement of hazardous companies.(2)

Article 2 states that everyone's right to life shall be protected by law, and that no one shall be deprived of his or her life intentionally, save in the execution of a court sentence following his or her conviction of a crime for which this penalty is provided by law.

The agency could be said to be violating this article by its lack of proper supervision and enforcement. The convention imposes negative obligations on member states to restrain from actively breaching someone's right to life, and since McCann v UK(3) and LCB v UK(4) the ECHR has explicitly imposed positive obligations arising from Article 2 as well. These require that a member state:

  • have effective regulations protecting the right to life;
  • take protective measures if a real and imminent threat exists of which the member state knows or ought to have known, and protective measures can reasonably be expected from the member state;
  • perform an adequate investigation when a breach of Article 2 is suspected; and
  • inform the public if a situation poses a threat, although not an imminent threat.

Comment

There are several points worth mentioning in the context of the agency's supervision and enforcement at Odfjell. First, a legal rule cannot be effective without proper supervision and regulation. A systemic lack of proper and effective supervision can in itself (in the absence of actual harm) lead to a breach of the positive obligation to have effective regulations protecting the right to life.

The agency should also be aware that a lack of effective supervision might cause it to miss a real and imminent threat that it ought to have detected, possibly leading to a breach of the positive obligations of Article 2 if the real and imminent threat becomes reality.

If the situation at Odfjell is to be qualified as a real and imminent threat to the right to life of, for example, employees - which is plausible according to a reading of the report - the agency also runs the risk of breaching its positive obligations of imposing protective measures (eg, shutting down the terminal).

For further information on this topic please contact Norbert de Munnik or Silvia Gawronski at NautaDutilh by telephone (+31 10 224 0000), fax (+31 10 414 8444) or email (Norbert.deMunnik@nautadutilh.com or silvia.gawronski@nautadutilh.com).

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

Endnotes

(1) Available at www.echr.coe.int/Documents/Convention_ENG.pdf.

(2) Previous examples can be found in Oneryildiz v Turkey, ECHR, June 18 2002, Appl 48939/99; and Kayak v Turkey, ECHR, July 10 2012, Appl 60444/08.

(3) ECHR, September 27 1995, Appl 19009/04.

(4) ECHR, June 9 1998, Appl 23413/94.