Bedrijfsovername en milieurecht : een onderzoek naar juridische aspecten van bedrijfsovername en milieu Mellenbergh, R.

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1 UvA-DARE (Digital Academic Repository) Bedrijfsovername en milieurecht : een onderzoek naar juridische aspecten van bedrijfsovername en milieu Mellenbergh, R. Link to publication Citation for published version (APA): Mellenbergh, R. (2009). Bedrijfsovername en milieurecht : een onderzoek naar juridische aspecten van bedrijfsovername en milieu General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. UvA-DARE is a service provided by the library of the University of Amsterdam ( Download date: 18 Dec 2017

2 English summary General remarks This PhD-research focuses on environmental issues in connection with corporate mergers and acquisitions in a legal perspective. Basically, this research focuses on the differences and the possible integration of environmental and administrative law on the one hand, and civil law on the other hand. The topics discussed in this book are related to site contamination and the responsibility for site remediation, liability regarding contamination of surface water, responsibilities of operators of facilities, responsibilities and liabilities of directors and shareholders of corporations in relation to environmental contamination and infringement of environmental rules, bankruptcy and the role of the bankruptcy trustee with respect to environmental contamination. Besides, the CO 2 and NO x emission trade systems, and financial security instruments in relation to possible future environmental contamination, are discussed. Moreover, the environmental due diligence practice and contract clauses such as for example contractual warranties and indemnities in sale and purchase agreements, and lease agreements regarding (potential) environmental liability, are discussed in this book as well. The Environmental Management Act: the facility and its operator (chapter 2) Because environmental (permit) rules are linked to a facility as defined in the general Dutch Environmental Management Act, it is relevant to fixate the physical scope of a facility. With regard to the definition of facility in the Environmental Management Act civil law, such as the law of corporations, lease agreements, et cetera, is of importance too. The operator of a facility is responsible for complying with the environmental (permit) rules. The standard rule, developed by Dutch administrative courts, to determine whether a person or corporation is an operator of a facility, is determining the control of that person or corporation over the operations taking place within the facility. The control can arise from corporate relationships, such as the position of director or shareholder (parent company) of the corporation, and from contractual relationships, such as for example a lease agreement. In the latter case, the contract parties need to act pursuant the contractual arrangements in practice. If not, the party who is actually operating the facility will be considered to be the operator of the facility, regardless of the contractual arrangements applicable between the contract parties. In case of a so called transition period a time period in which both the seller and

3 556 English summary the buyer of the company operating the facility are involved with the operations talking place in the facility the seller as well as the buyer can be considered to be the operator of the facility. Parties connected to the transaction thus need to make contractual arrangements concerning this issue. Site contamination and remediation (chapter 3) An important environmental issue is the remediation of contaminated (former) industrial sites located in the Netherlands and in the European Union. In the Netherlands, the obligation to remediate a contaminated site can rest on an owner or ground lessee (erfpachter), regardless whether he is the polluter. This topic is extensively discussed in chapter 3 of this book. The two main issues regarding soil remediation discussed in this book are: (1) the possibilities of cost recovery of the competent authority which remediated the site; and (2) the possibilities of mandatory site remediation by polluters and non-polluting owners or ground lessees of a site. Cost recovery by the site remediating competent authority is possible through tort law (with respect to the polluter) or unlawful enrichment (with respect to the nonpolluter too). Thus, cost recovery is linked with civil law as well. Some legal aspects which are of importance with respect to cost recovery by the remediating competent authority through tort law and unlawful enrichment, such as the date of acquirement of the contaminated site, are connected to the general subject of this research, i.e. corporate mergers and acquisitions. Moreover, a polluter, or owner or ground lessee, non-polluter, of a site, can be ordered or obliged to perform a site remediation. Especially the possibility to oblige an owner or ground lessee, non-polluter, of a contaminated industrial site to remediate the site directly through the Soil Protection Act, introduced in 2006, is of importance (articles 55a and 55b of the Soil Protection Act). As a result, issues such as fault, or the knowledge of site contamination on the moment of acquisition, are no longer of importance. The owner or ground lessee of an industrial site is thus responsible through law in his quality of owner or ground lessee, regardless whether he is the polluter. This legal system could be supplemented with a so called transfer triggered environmental act, which act connects environmental obligations to the moment of transfer of a site, facility and/or company. A transfer triggered environmental act is a so called self regulating act and is thus automatically applicable in case of a transfer as described in the transfer triggered environmental act, regardless whether the competent authority took a decision regarding the existence of serious contamination, or ordered site investigation or site remediation. Article 55b sub 3 of the Soil Protection Act already includes a limited environmental transfer trigger: the new owner or ground lessee needs to give financial security in relation to the future remediation costs in case of the transfer of ownership or ground lease of a site on which the articles 55a and 55b

4 English summary 557 Soil Protection Act are applicable. The former owner or ground lessee remains responsible for the site remediation too, until the moment this financial security is provided by the new owner or ground lessee. The scope of article 55b Soil Protection Act is limited, because for example a transfer of shares of a company owning the contaminated site does not trigger this obligation. Introducing a transfer triggered environmental act (chapters 4 and 5) In certain states within the United States, especially the states New Jersey and Connecticut, and in Vlaanderen (Belgium) transfer triggered environmental acts are applicable. These acts integrate environmental and administrative law on the one hand, and civil law on the other hand. More specific, these acts link corporate mergers and acquisitions with certain environmental obligations, because these acts require site investigation and site remediation in case of a transfer as defined in the transfer triggered environmental act. A transfer as defined in the transfer triggered environmental act can differ from the definition of a transfer in civil law. For example, a transfer as defined in a transfer triggered environmental act may include a transfer of shares of the company owning the land or operating the facility, the closing of operations, or the termination of a lease agreement. Because the transaction is linked to an environmental obligation, the obligation of the seller to inform the buyer, and if necessary to remediate the contaminated site which is transferred, is incorporated in the transfer triggered environmental act. The transaction or transfer triggers the environmental obligation. Besides, in case of a transfer or transaction, money i.e. the purchase price is available to pay the remediation costs, which means no money needs to be withdrawn from the company itself and the day-to-day operational management. Moreover, the purchaser and the competent authority will be informed automatically with respect to the possible presence of site contamination. The act is a self policing act, which means that the parties connected to the transfer themselves, and their legal advisors, must check whether the act is applicable or not. This kind of transfer triggered environmental legislation is not solving the general problem of site contamination, because such an act is only applicable in case of a transfer as defined in the transfer triggered environmental act. This means that, in case no transfer occurs, the act is not applicable, and the competent authority needs to have the possibility to order site investigation or remediation. Thus, a transfer triggered environmental act is of a supplemental character with respect to other environmental (remedation) legislation. Some possible negative aspects of this kind of legislation are: stagnation of the real estate market due to the possible obligation to investigate and remediate the site in case of a transfer, thus creating so called brownfields, and the possible delay of the transfer due to the obligations arising from the transfer triggered environmental act. Besides, the experience in the states New Jersey and Connecticut shows that the definitions in an environmental transfer triggered act, for example

5 558 English summary the definition of transfer, and the procedures in the act, need to be defined clearly and specific. Otherwise, problems could arise with respect to the scope and applicability of the transfer triggered environmental act. Licensed Environmental Professionals (LEPs) (chapters 4 and 5) It is argued that the supervision over the actual site investigation and remediation activities can be performed by private individuals, so called Licensed Environmental Professionals. This could be a solution, especially in case the competent authority does not have the capacity, financial ability or technical knowledge to perform the supervision regarding the duties to investigate and remediate contaminated sites itself. A system in which LEPs are performing supervision, instead of the competent authority, is applicable with respect to Connecticut s Transfer Act. 1 A possible positive effect of this system is that private environmental consultants sometimes have more technical knowledge and experience regarding these issues in comparison to more general experienced employees of the competent authority. A possible negative aspect of the introduction of LEPs, is the fact that the supervision is not performed by the competent authority any longer, but by private parties. A LEP will be paid by the seller, buyer or both parties connected to the transfer, which means the LEP is balancing in between two parties who have different goals: the competent authority on the one hand who is focusing on accurate supervision of the site investigation and remediation activities, and the private party involved with the transfer, who is the principal of the LEP, on the other hand. Some important issues with respect to the introduction of a system in which LEPs exercise supervision are: the personal liability of LEPs and creating a level playing field between LEPs. Besides, the objectivity of LEPs must be guaranteed. This could be achieved through general supervision on the activities of the LEPs by the competent authority, and by creating a procedure to discharge an LEP in case he is not performing his duties correctly. Moreover, the possibility of a second opinion performed by another LEP could be created. Introducing a legal system in which private supervisors perform the (supervision over) site investigation and site remediation could be necessary in case the competent authorities are unable to perform these tasks themselves. However, it is my opinion that the task of supervision with respect to the enforcement of environmental duties should primarily rest with the competent authorities, and should not 1 This system is introduced in the proposed Framework for the protection of soil of the European Commission too, see: Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, Thematic Strategy for Soil Protection COM (2006), 231 final, article 12 (2). See also Explanatory Memorandum, Establishing a framework for the protection of soil and amending Directive 2004/35/EG, COM (2006), 232 final.

6 English summary 559 be performed by private parties. For example, such supervision could be performed on a central level by a special division of the Department of Housing, Spatial Planning and the Environment (Ministerie van VROM). In that case, technical knowledge and experience could be concentrated in one special division. Liability with respect to the contamination of surface water (chapter 6) In chapter 6 of this book, liability regarding the contamination of surface water is discussed. In case of contamination of surface water and subsequently damages, the causal link between the act or omission causing the pollution and the actual damage can be hard to determine. Especially in case of diffuse contamination which means contamination of the surface water through ground water it is sometimes hard to fixate the causal link. Moreover, in case of diffuse contamination of surface water, the course of time between the act or omission and the actual damage revealed elsewhere, could have the result that this is an issue in case of a corporate merger or acquisition. The legal successor will then be confronted with liability regarding contamination caused by its legal predecessor(s). Contract law, due diligence investigation and environmental issues (chapters 2 and 7) Parties involved with corporate mergers and acquisitions can deal with environmental issues through contract law. For example, they can address the liability regarding (possible) environmental damage through contractual guarantees, warranties and representations. Moreover, the parties may, for example in case of an asset and liability deal, agree to lease the facility, instead of buying the facility. In that case, the ownership of the contaminated site remains with the seller (lessor), and the buyer of the company leases the assets comprising the facility. As a consequence, the buyer/lessee cannot be held liable under Dutch law in case he was not the polluter of the site contamination. The responsibility regarding site contamination remains with the owner/seller/lessor and the polluter. Another issue of importance is the environmental due diligence investigation with respect to the site and facility to be bought, normally preceding the transfer of the site or the corporate acquisition. Under private law, the scope and performance of a due diligence investigation is of great importance to determine whether it is the duty of the seller of the site to inform the buyer with respect to present site contamination, or the duty of the buyer to investigate the site. The scope of these duties is not always clear in practice. Therefore, the introduction of a specific transfer triggered environmental act, including a duty to perform a site investigation, could solve this problem. The transfer triggered environmental act can give rules regarding the exact scope of the site investigation, and in which cases a site investigation and site remediation is obliged by law. The environmental aspects of a due diligence investigation and the abovementioned contractual solutions are discussed in chapter 7 of this book.

7 560 English summary Moreover, contractual arrangements are of importance with respect to fixating the scope of the facility as defined in the Environmental Management Act, and the operator of the facility (see above). For example, who is the operator of the facility: the lessee and/or the owner/lessor? Thus, the contractual arrangements will have influence beyond the contract parties. The competent authority and the administrative court that need to judge regarding the scope of the facility, will also take notice of the contractual arrangements applicable between the contract parties. These topics are discussed in chapter 2. Responsibility/liability of directors and shareholders of a company (chapter 8) Another issue which is discussed and analysed in this book, is the personal responsibility of directors of companies with respect to environmental damages caused by, and infringements of environmental rules of, the company. Compared with civil law (tort law), it seems that a director of a company can be held responsible easier under administrative law. Under administrative preservation law, a director of a company can be held responsible as infringer of environmental rules in person, in case he was personally involved with the infringement. Besides, an administrative order with penalty (last onder dwangsom) can be addressed to a director of a company in case he has the control (het in zijn macht hebben) to end the infringement. Civil courts will leave the decision to hold a director of a company personally responsible under administrative law to the administrative courts. Under civil tort law, a director of a company can be held liable in person only in case of a personal negligent act or omission, which act or omission is sufficient serious and is causing damages to third parties. This civil law test to hold a director of a company liable in person, differs from the control test or personal involvement test under administrative law. The requirement of personal involvement with the infringement of environmental rules and laws, and the control test under administrative law, is also applicable regarding (sole or majority) shareholders. Normally, a shareholder of a corporation does not operate the facility operated by the corporation of which he is a shareholder. Just being a shareholder is not enough to be held responsible for environmental damages caused, or infringement of environmental rules and laws by, the corporation. A shareholder is not operating the facility or controlling these activities. Only under specific circumstances, a sole shareholder of for example a closely held corporation (BV) could have sufficient control to be considered as an infringer of environmental rules and laws. The difference between the legal possibilities to hold a director or shareholder of a company liable under civil tort law and administrative preservation law, is explainable because of the different objectives of civil tort law and administrative

8 English summary 561 preservation law. In case of preservation of the applicable environmental rules, it is of importance to address somebody who is able to end the infringement. In case the director or the sole or majority shareholder of the company has control over the infringements or operations which cause environmental damage, the director and/or shareholder can be held liable in person. This situation differs from the civil liability cases, in which directors and shareholders can be held liable in person only in case of personal unlawful acts and negligence (tort law). It is argued in this book that the responsibility of directors and shareholders for infringements of environmental rules and laws primarily addressed to the company under administrative law, cannot be regarded as piercing the corporate veil (vereenzelviging), i.e. identifying two separate corporations with each other. The director or sole shareholder is not completely identified with the corporation of which he is director or shareholder. He is just being held responsible regarding infringements of environmental rules and laws under the control test - arising from his position of director and/or of sole shareholder - or the personal involvement test. Bankruptcy and the role of the trustee in bankruptcy with respect to environmental law; financial security (chapter 9) In case of a bankruptcy of a company, environmental issues can be of importance because there are not enough assets available in the bankruptcy estate to pay for the remediation costs or other costs related to environmental damage and infringements of environmental rules and laws. Moreover, the bankrupt company or person is legally no longer entitled to perform its legal duties after the moment of bankruptcy. Therefore, the Dutch Administrative Jurisdiction Division of the Council of State (the supreme administrative court in the Netherlands, the Afdeling Bestuursrechtspraak van de Raad van State) has ruled that the trustee in bankruptcy, instead of the bankrupt company, is the person who must perform the environmental obligations addressed to the bankruptcy estate. The bankruptcy trustee is the person who has control over the facility and he manages its assets and liabilities which are part of the bankruptcy estate. Based on this fact, he can be considered the operator of the facility formerly operated by the bankrupt company or person. This means, that the competent authority may address the bankruptcy trustee as an infringer of the applicable environmental rules and laws which are primarily addressed to the bankruptcy estate. The bankruptcy trustee will be addressed as an infringer of the applicable environmental rules and laws in his role as bankruptcy trustee. Personal liability of the bankruptcy trustee is only possible in case he did not act pursuant the standards applicable for bankruptcy trustees in general. It is argued in this book to incorporate the aforementioned standard rule of the Dutch Administrative Jurisdiction Division of the Council of State in the Bankruptcy Act or in the Environmental Management Act: the bankruptcy trustee, in his quality of bankruptcy trustee, is the operator of the facility formerly operated by the bankrupt company or person.

9 562 English summary Because the bankruptcy trustee is addressed qualitate qua (in his quality of bankruptcy trustee), the costs related to environmental damages and infringements have a high rank in bankruptcy (boedelschuld; a dept directly addressed to the bankruptcy estate). It is argued in this book that the competent authority should not address an order with penalty to the trustee in bankruptcy, because normally there are not many assets available in a bankruptcy estate. Burdening a bankruptcy estate with an additional penalty would be counter-productive. Besides, it is argued that these costs could be given a lower rank in bankruptcy, which solution would deviate from the current system of the Bankruptcy Act and the standard priority rules in civil law. Financial security, such as a mortgage, lien, banking guarantee or fund, could be a solution in case of insolvency of the operator of a facility or a company responsible for site remediation. Several financial instruments are discussed in chapter 9, including the so called super liens applicable in certain states within the United States. It is concluded that introducing environmental super liens would be a too far reaching solutions. A super lien is a lien preceding older liens, and could thus create uncertainty on the credit market. CO 2 and NO x emission trade (chapter 6) The emission trade systems as introduced in the Netherlands deviate from the standard rule of transfer under Dutch civil law. Transfer of emission rights includes a specific administrative registration: the transfer of the emission rights must be registered in the emission trade register to complete the transfer. In chapter 6 it is discussed which consequences this specific deviation from standard Dutch civil law has in relation to corporate mergers and acquisitions. Recommendations The general recommendation of this research is that environmental issues and corporate and civil law can be fine-tuned with each other. For example, a transfer triggered environmental act can be introduced in the Netherlands or in the European Union. Such an act links specific civil law events, such as a transfer of a site or a corporation, to an environmental obligation, for example the obligation to investigate and remediate (site) contamination. This system could be supplemented with a system in which private persons, LEPs, perform the supervision over the compliance with the environmental obligations. With respect to the physical scope of the facility, and the question who is operating the facility, civil law, such as corporate law and rent law, is of importance too. It is argued that, in case of a corporate merger or acquisition, the competent authority should create a prompt procedure which allows the parties connected to the transfer to streamline the corporate reality and the scope of, and operatorship over, the facility under the Environmental Management Act.

10 English summary 563 Regarding the role of the bankruptcy trustee, it is suggested to incorporate the standard rule of the Dutch supreme administrative court, i.e. the bankruptcy trustee is the operator of the facility formally operated by the bankrupt company or person, in the Bankruptcy Act or in the Environmental Management Act. Besides, it is argued that the costs related to environmental damages and infringements should not have the highest high rank (boedelschuld) in bankruptcy. This could only be established by deviating from current Dutch bankruptcy law and the standard priority rules. Introducing so called environmental super liens, applicable in the United States, would be too far reaching. This introduction could create uncertainty on the credit market. Parties connected to a corporate acquisition can use all kinds of contractual solutions to deal with (potential) environmental liability: contractual warranties and indemnities, lease agreements or establishing a right of building and planting (opstalrecht). Thus, contract parties can address liability regarding environmental damages and can even influence the scope of the facility and the operatorship as defined in the Environmental Management Act. Difficulties regarding the scope of the environmental due diligence, and the duties to investigate and inform with respect to environmental issues linked to the site or company to be sold stem from jurisprudence, can (partly) be addressed by introducing a transfer triggered environmental act.

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