Environmental law and practice in France: overview

A Q&A guide to environment law in France.

This Q&A provides a high level overview of environment law in France and looks at key practical issues including emissions to air and water; environmental impact assessments; waste; contaminated land and environmental issues in transactions. In addition, answers to questions can be compared across a number of jurisdictions to assist in the management of cross-border transactions (see Country Q&A Tool).

This Q&A is part of the global guide to environment. For a full list of jurisdictional Q&As visit www.practicallaw.com/environment-guide.

Vincent Brenot*, August & Debouzy
Contents

Environmental regulatory framework

1. What are the key pieces of environmental legislation and the regulatory authorities?

Key legislation

The regulatory framework for environmental law and practice in France is substantially influenced by EU Law, consisting of:

  • The Environmental Charter of 2005, of constitutional rank.

  • EU Regulations, which are directly applicable in France, (for example, Regulation 1013/2006 on waste transfer) and EU Directives that are directly applicable when implemented into French law.

  • The Environment Code, in which most of the relevant laws and decrees have been codified.

  • Other codes, for example:

    • Energy Code;

    • Mining Code;

    • Public Health Code;

    • Civil Code; and

    • Construction and Housing Code.

  • Other key non-codified laws, decrees and orders, for example, the Law on Energetic Transition of 17 August 2015.

Regulatory authorities

At a national level, the Ministry of Ecology, Sustainable Development and Energy (Ministère de l'écologie, du développement durable et de l'énergie) (MEDDE) sets policies relating to:

  • Energy, air pollution and climate.

  • Water and biodiversity.

  • Prevention of natural and technological risks.

  • Sustainable development.

  • Environment and green technologies.

  • Industrial safety.

The MEDDE drafts bills and decrees, enacts orders, and implements and enforces environmental law through the agencies under its authority.

Other ministries have environment-related functions, for example:

  • Ministry of Agriculture, Agrifood and Forests.

  • Ministry of Economy, Industry and Digital Technologies (for example, for raw materials and mines).

  • Ministry of Interior (for example, for natural catastrophe management).

  • Interministerial Committee on Sustainable Development (for example, for greenhouse effect policies and the prevention of major natural risks).

Some public agencies also have specific environmental functions, for example:

  • The Nuclear Safety Authority for Civil Installations (Autorité de sûreté nucléaire pour les installations civiles). The Nuclear Safety Authority participates in the development of nuclear law, the control of nuclear operators and public information.

  • The Agency for Environment and Energy Management (Agence de l'environnement et de la maîtrise de l'énergie)(ADEME). ADEME:

    • contributes to the implementation of environmental public policies;

    • provides advice and financial help to public or private projects in waste disposal, soil preservation, energy saving, renewable energies, air quality and noise control.

The following Directorates and Councils produce environment-related reports and can implement environmental policies:

  • The National Council for Energy Transition. The Council gives advice on bills on energy, environment and national strategies for sustainable development, biodiversity and social and environmental liability for companies.

  • The Economic, Social and Environmental Council (Conseil économique, social et environnemental)(CESE). CESE ensures France's main activities follow its environmental policies. It is consulted on and can contribute to bills on environmental planning.

  • The General Directorate for Energy and Climate (Direction générale de l'énergie et du climat). The Directorate defines and implements national policy on energy and fighting global warming and pollution.

  • The General Directorate for Risk Prevention (Direction générale de la prevention des risques). The scope of the Directorate's risk prevention includes man-made disasters, natural disasters and waste disposal.

At a local level, the 21 Regional Directorates of Environment, Planning and Housing (Direction régionale de l'environnement, de l'aménagement et du logement) (DREAL), to which the Certified Facilities Inspectorates are attached, implement the MEDDE's policies. A prefect (préfet) represents the state in each of the 101 administrative divisions (départements). The préfet is responsible for granting environmental permits and controlling compliance with applicable regulations.

Local governments also have low-level environmental policy attributions and can exercise general administrative enforcement powers (for example, acting to prevent contaminations to preserve public health) as well as derogatory emergency police powers in case of serious or imminent risks. These risks include "pollutions of all kinds", for example, soil contamination from a factory (Articles L. 2212-2 and L. 2212-4, Environment Code). In cases of serious or imminent risks, the mayor can evacuate an area or order construction works to be carried out on private property.

French courts play a critical role in environmental law. The administrative courts have jurisdiction over state and public authorities' decisions (for example, regarding operating permits and environmental penalties). The civil courts hear civil liability cases. For example, pollution from a classified facility can trigger the operator's strict civil liability for abnormal neighborhood disturbances (troubles anormaux du voisinage). The criminal courts have the power to try and prosecute environmental criminal offences (for example, operating an industrial facility without a permit or destroying protected species and habitats).

 

Regulatory enforcement

2. To what extent are environmental requirements enforced by regulators?

Préfets and environmental inspectors are the main authorities in charge of enforcing environmental law (Article L. 170-1, Environment Code).

The préfet grants permits to projects falling under the category of "classified facilities for the protection of the environment" (Installations classées pour la protection de l'environnement) (ICPE) that meet the necessary requirements.

The environmental inspectors search and record environmental infractions. Some exclusively address ICPE and pollution prevention (Article L. 172-1 et seq., Environment Code). When inspectors detect non-compliance with environmental requirements, they report it to the préfet, who issues a formal notice to comply. In cases of non-compliance, the préfet can impose administrative sanctions (Article L. 171-8, Environment Code) and courts can impose criminal penalties.

Since environmental inspectors cannot fully cover the large number of facilities and activities to be inspected, the Ministry of Ecology, Sustainable Development and Energy (MEDDE) sets inspection priorities every year. Priorities for 2015 include promoting the energy transition to create green growth, amplifying the development of the circular economy and anticipating risks to limit the exposure of environmental risks to citizens.

 

Environmental NGOs

3. To what extent are environmental non-governmental organisations (NGOs) and other pressure groups active?

Many French NGOs are active at international, national, or local levels on environmental matters. Some have a general environmental purpose, while others focus on specific issues. French NGOs are currently particularly focused on issues surrounding nuclear facilities (for example, the Fessenheim nuclear power station in the Haut-Rhin department in Alsace in north-eastern France) and the construction of a new airport in Notre-Dame-des-Landes (in the Loire-Atlantique department in western France).

NGOs are sometimes included in the legislative process. In 2010, France Nature Environnement took part in the discussion of the "Grenelle" II law. The Economic, Social and Environmental Council (CESE) also collaborates with NGOs on a regular basis.

Mostly, NGOs act in court. Under certain conditions, they can be granted the status of "associations accredited to protect the environment" by the préfet or the Ministry of Ecology, Sustainable Development and Energy (MEDDE) (according to their scope of action), which enables them to bring legal actions before administrative, criminal and civil courts (Articles L. 141-1 et seq. and R. 141-1 et seq., Environment Code) and obtain indemnities that contribute to their financing.

 

Environmental permits

4. Is there an integrated permitting regime or are there separate environmental regimes for different types of emissions? Can companies apply for a single environmental permit for all activities on a site or do they have to apply for separate permits?

Integrated/separate permitting regime

Under the Environment Code, facilities or activities likely to endanger public safety, public health, or the environment are classified as "classified facilities for the protection of the environment" (ICPE) and are subject to the same permitting regime (Article L. 511-1, Environment Code). The activities subject to the ICPE permit are listed in the Annex to the Environment Code (Article R. 551-9). The ICPE permit governs all emissions and connected activities carried out at the same site of an ICPE. There are around 500,000 ICPE in France according to the Ministry of Ecology, Sustainable Development and Energy (MEDDE).

However, the ICPE regime co-exists with other specific environmental permits (for example, building permits) with separate or combined application procedures. This may be subject to reform in the near future (see Question 31).

Single/separate permits

Activities not covered by the ICPE regime may require specific permits, for example:

  • Water facilities or activities (see Question 6).

  • Mining operations.

  • Nuclear facilities and activities (Article L. 593-1 et seq., Environment Code; Article L. 1333-1 et seq. and R. 1333-17 et seq., Public Health Code; Law on Energetic Transition).

  • Wood clearing (Article L. 341-3 et seq. and R.341-1 et seq., Forest Code).

 
5. What is the framework for the integrated permitting regime?

Permits and regulator

The préfet decides to deliver or deny the permit. The permit contains comprehensive provisions relating to the settings and operations of the facility, its emissions and monitoring measures.

Depending on the severity of the certain or likely effects of the "classified facilities for the protection of the environment" ICPE operation, ICPE can fall under one of five distinct permit regimes:

  • Declaration (Articles L. 512-8, Environment Code). The facility must be reported to the local state authority.

  • Declaration with control (Articles L.512-11, Environment Code). In addition to the declaration regime requirements, the operator must be controlled every five years. This does not exempt the facility from other environmental inspections (see Question 2).

  • Registration with the préfet (Articles L. 512-7, Environment Code). Created in 2009, this regime applies to facilities for which safety measures are standardised and well known.

  • Authorisation by the Préfet (Articles L. 512-1, Environment Code). In addition to enforcing the above requirements, the préfet can deny the authorisation. An impact study, a public inquiry and consultations of several public bodies (for example, administrative courts) are required for the issuance of the authorisation.

  • Authorisation with easements and financial warranties (Articles L. 515-8 et seq., Environment Code). Easements are established to prevent third parties from settling near the facility. The préfet can still deny the authorisation.

Validity of permit

ICPE permits are usually unlimited in time. If the operation of the ICPE has not begun within three years from the issuance of the permit, the permit becomes void (Articles R. 512-74, Environment Code).

However, if the operation is supposed to last less than a year and the regular procedure would take too long, the préfet can deliver a six-month permit, renewable once, under an expedited procedure (Articles R. 512-37, Environment Code). This temporary authorisation cannot be transformed into a long-term permit unless the operator follows the regular procedure.

An ICPE permit must be renewed:

  • If the on-site operations change.

  • If the facility is put back into service after an accident.

  • After a two-year interruption.

  • If the ICPE permit regime changes.

Restrictions on transfer

The takeover of the ICPE by a new operator must usually only be declared to the préfet within a month from the beginning of the operation if no change in activity takes place (Articles R. 512-68, Environment Code). However, the transfer of some facilities, including ICPE authorised with easements, quarries or waste storage facilities require the préfet's prior authorisation (Articles R. 516-1, Environment Code). The administration can also thoroughly control financial and technical guarantees. If the ICPE activity changes with the transfer, the new operator must follow the full procedure to obtain a new permit.

The seller of a property including a facility subject to authorisation or registration must inform the buyer in writing, as evidenced by the sale agreement.

Penalties

An ICPE operator may be subject to penalties for:

  • Violating the ICPE permit regime.

  • Violating the legal requirements applicable to the operation.

If an ICPE inspection reveals such violations, the inspectors inform the préfet and the public prosecutor (Articles L. 521-16, Environment Code). Before inflicting sanctions, the préfet must issue a formal notice to comply (ArticlesL. 171-7, Environment Code). If the operator does not comply, the préfet can inflict any of the following administrative sanctions on the operator depending on the gravity of the non-compliance and the resulting damage to the environment (Articles L. 514-4 and L. 171-8, Environment Code):

  • Force the operator to deposit a sum to be restituted gradually as the facility is put in conformity.

  • Implement the required measures on the behalf and at the operator's expense.

  • Suspend the ICPE operation and take conservatory measures at the operator's expense.

  • Order the payment of a fine along with periodic penalties.

Criminal sanctions can also apply, in the form of a fine of up to EUR150,000 and two years of imprisonment (Article L. 514-11, Environment Code).

For ICPE shut-down issues, see Question 14.

 

Water pollution

6. What is the regulatory regime for water pollution (whether part of an integrated regime or separate)?

Permits and regulator

Specific permit regimes apply to the "facilities, buildings, works and developments" (installations, ouvrages, travaux et aménagements) (IOTA) that have an impact on water (see list under the French Environmental Code (FEC) R. 214-1). Activities carried out under the "classified facilities for the protection of the environment" (ICPE) regime are not subject to IOTA regimes: the ICPE permit will include the specific requirements relating to water pollution.

IOTA activities are classified according to levies or water discharges and their impact on aquatic life and the environment and may be subject to (Articles L. 214-3, Environment Code):

  • Declaration for facilities that do not present a serious danger but still need to follow specific instructions.

  • Authorisation.

Application procedures are similar to ICPE procedures (see Question 5 and Articles R.214-6 to R. 214-56, Environment Code).

IOTA are also covered by the single-permit regime trials (see Question 31).

Prohibited activities

Prohibitions and limitations to activities with an impact on water mainly result from the IOTA permit regimes or the general requirements applicable to the operation.

Clean-up/compensation

At any time during or after operations, the préfet can impose remediation measures on the operator (Articles L. 214-3-1, Environment Code). These remedies are not applicable to the facilities or works of hydropower companies.

IOTA operators have an obligation to remediate the site after the end of the operations (Articles L. 214-3-1, Environment Code). They must notify the préfet of the end of the operations and of the measures taken to clean up the site.

Any person causing an accident must take all necessary measures to mitigate and remediate damage to the aquatic environment (Articles L. 211-5, Environment Code).

Penalties

Administrative sanctions and criminal penalties applicable to ICPE also apply to IOTA (see Question 5). Additionally, specific criminal sanctions apply to the contamination of water with substances that may harm the environment (Articles L. 216-6 et seq. and L. 432-2 et seq., Environment Code).

 

Air pollution

7. What is the regulatory regime for air pollution (whether part of an integrated regime or separate)?

Permits and regulator

There is no specific regime for air pollution. Air pollution is monitored through the "classified facilities for the protection of the environment" ICPE regime, which takes into account all kinds of environmental pollution. Préfets and mayors can also enforce air pollution regulation by exercising their supervisory powers (Articles L. 222-6, Environment Code).

Regulators on national and local levels set policies relating to atmospheric pollution, for example:

  • The Particle Plan (Plan particules) aims to reduce the emission of fine particles by 30%.

  • The Reduction Plan for Polluting Emissions (Plan de réduction des émissions polluants) aims to reduce air pollution.

  • Régions issue regional climate, air and energy plans (Schéma Régional Climat Air Energie), which set guidelines in the medium (2020) and long-term (2050) to prevent air pollution.

  • Regional Directorates of Environment, Planning and Housing (DREALs) issue plans for atmospheric protection (Plans de protection de l'atmosphère), which must be approved by the préfet.

Prohibited activities

Most prohibitions on industrial air-polluting activities result from the ICPE regime.

Préfets and mayors can exercise their policing powers to temporarily forbid some air-polluting activities (Articles L. 213-2, Environment Code). Others are generally prohibited, for example, burning organic waste in open air.

Clean-up/compensation

No direct clean-up of air pollution is possible.

Penalties

Because air pollution is difficult to clean up, the government has instituted non-specific taxes to compensate individual and industrial air pollution (see Question 30).

For facilities operating under the ICPE regime, administrative and criminal penalties do apply (see Question 5).

 

Climate change, renewable energy and energy efficiency

8. Are there any national targets or legal requirements for reducing greenhouse gas emissions, increasing the use of renewable energy (such as wind power) and/or increasing energy efficiency (for example in buildings and appliances)? Is there a national strategy on climate change, renewable energy and/or energy efficiency?

The EU aims to reduce its greenhouse gas emissions by 20% between 1990 and 2020.

France has also set national targets, for example, to reach a 23% share for renewable energies within the French energetic mix by 2020 (law "Grenelle I" of 2009). In August 2015, the Law on Energetic Transition (LET) set the following goals:

  • Renewable energies should reach 32% of the French energy mix by 2030.

  • Nuclear electricity should fall from 75% to 50% by 2025.

  • The housing sector should reduce its energetic consumption by 50%.

To meet these objectives, France first regulates prices and provides renewable energy producers a supplementary payment for the energy sold. Historic electricity producer Electricité de France is obliged to buy their production, which encourages individuals to develop their own renewable energy production systems. Second, multi-year energy programmes (programmation pluriannuelle de l'énergie), for example, (for 2009 to 2020) ensure the applicability of the LET measures.

In 2015, the government also modified environmental taxation (see Question 7). However, the LET recently brought about most of the changes the government wished to implement in the environmental field in France during this term.

 
9. Is your jurisdiction party to the United Nations Framework Convention on Climate Change (UNFCCC) and/or the Kyoto Protocol? How have the requirements under those international agreements been implemented?

Parties to UNFCCC/Kyoto Protocol

Both France and the EU are parties to the UNFCCC and the Kyoto Protocol.

Implementation

The EU first implemented the treaties through Directive 2003/87/EC establishing an EU emissions trading system (EU ETS) (implemented in Articles L. 229-5 et seq. and R. 229-5 et seq of the Environment Code).

The EU has since issued the "2020 climate and energy package", involving a binding set of legislation, for example, the 2009 Effort-Sharing Decision (Decision 406/2009/EC).

France has committed to quartering greenhouse gas emissions by 2020 (Law No. 2005-781) and to reducing greenhouse gas emissions by 14% in economic sectors that are not subject to the EU ETS.

 
10. What, if any, emissions/carbon trading schemes operate in your jurisdiction?
 

Following the EU ETS (see Question 9), France implemented the National Allocation Plan for greenhouse gas emissions in 2007. Allowances within the cap set by the EU ETS are granted yearly to, among others, factories and power plants (Articles L. 229-8, Environment Code). Companies can trade or buy allowances as needed, but must surrender enough allowances at the end of each year to cover all their emissions or incur a fine of EUR100 per excess tonne.

 

Environmental impact assessments

11. Are there any requirements to carry out environmental impact assessments (EIAs) for certain types of projects?

Scope

Environmental impact assessments (EIAs) are required for all projects listed at the Annex to the Environment Code (Articles R.122-2, Environment Code) (for example, for "classified facilities for the protection of the environment" (ICPE) subject to authorisation, nuclear facilities and railway infrastructures). Other projects are subject to EIAs on a case-by-case basis (Articles R.122-2, Annex to Environment Code, for example, for ICPE subject to registration, bridges under 100m in length).

Permits and regulator

The EIA comprise in particular of (Articles R.122-1, Environment Code):

  • Analyses of the project's impact on the environment (positive/negative, direct/indirect).

  • A description of compensatory measures for its negative effects on the environment.

The relevant environmental authority (usually the préfet of the region) issues an advisory opinion on the EIA to the administrative authority entitled to grant the authorisation. The administrative authority must control the application and can grant the requested permit, set compulsory compensatory measures, or deny the request.

Penalties

A missing or inadequate EIA can entail:

  • The administrative authority's refusal to issue the permit.

  • The cancellation or suspension of the permit by the administrative courts.

 

Waste

12. What is the regulatory regime for waste?

Title IV of the Environment Code sets the regulatory regime for waste (see definition at Article L. 541-1-1). Producers and holders of waste are responsible for their processing (Article L. 541-2, Environment Code).

For waste recycling, certain conditions must be fulfilled. For example, mixing different kinds of dangerous waste or mixing dangerous waste with non-dangerous waste or non-waste substances, materials or products is forbidden, except under certain conditions (Article L. 541-7-2, Environment Code).

Special rules for certain waste

Commission Decision No. 2000/532 sets a list of hazardous waste subject to special regulation, for example:

  • Nuclear waste.

  • Waste containing asbestos.

  • Paint and solvents.

Hazardous waste is incinerated or stored. Waste-processing facilities can be subject to regulations and/or require a licence depending on the waste (for example, for nuclear waste storage, see Article L. 542et seq., Environment Code).

Under the principle of extended producer liability, producers of certain goods must participate in the sorting and recycling or treatment of the waste resulting from the use of their products (for example, used batteries and tires), via in particular an "ecotax", a waste recycling fee on the sale of their products (Article L. 541-10, Environment Code).

Penalties

Waste-processing facilities subject to ICPE regulation face the penalties corresponding to ICPE non-compliance (see Question 5).

For non-ICPE waste-processing facilities, the mayor first issues a formal notice to comply. If the mayor fails to act, the préfet can issue the formal notice to comply. The non-compliant responsible party faces administrative sanctions (Article L. 541-3, Environment Code):

  • A money deposit to be restituted gradually as the facility is put in conformity.

  • Payment of the remediation measures enforced by the authority.

  • Suspension of operations and payment of conservatory measures.

  • A fine not exceeding EUR150,000.

The responsible party also faces criminal sanctions of (Article L. 541-46, Environment Code):

  • A two-year imprisonment and a EUR75,000 fine.

  • An order to remediate the damage to the environment.

 

Asbestos

13. What is the regulatory regime for asbestos?

Asbestos is regulated by the Public Health Code, the Construction and Housing Code, the Labour Code and the Penal Code.

Prohibited activities

Since 1997, the production, manufacturing and sale of products containing asbestos is strictly forbidden (Law No. 96-113).

Main obligations

Asbestos in buildings. All owners of buildings whose building permits were granted before July 1997 are required to (Articles L. 1334-12-1 et seq., R. 1337-2 and R. 1334-14 et seq., Public Health Code):

  • Assess the presence of asbestos in the buildings.

  • Inform the occupants.

  • Monitor, treat and remove (if necessary) asbestos-containing materials.

The seller of such a building must inform the buyer on whether it has any asbestos-containing materials (Articles L. 1334-13 and R. 1334-24, Public Health Code).

Asbestos-containing waste. Asbestos-containing waste is considered hazardous waste (see Question 12). Its disposal is strictly regulated under two regimes:

  • Asbestos-containing waste linked to inert materials and soil naturally containing asbestos can be processed in storage facilities for non-hazardous waste.

  • Other asbestos-containing waste follows a stricter procedure and must be processed by thermal decomposition in facilities for hazardous waste disposal.

Labour law requirements. Companies are required to ensure the safety of workers exposed to asbestos by assessing risks, enforcing prevention measures, informing and training workers and monitoring their health (Articles R.4412-94 to R.4412-148, Labour Code and Law No. 2012-639). Employers in breach of their obligation are liable for the full compensation of the prejudice of their employees exposed to asbestos.

Permits and regulator

There are no permits for asbestos-containing buildings or facilities. The préfet is in charge of monitoring compliance to regulation and prosecuting non-compliance.

Penalties

Asbestos in buildings. Owners who do not comply with asbestos assessments obligations and regulations are subject to criminal sanctions and financial penalties (Article R. 1337-2 et seq, Public Health Code). Sellers who do not conduct a required asbestos assessment can face a EUR1,500 fine and buyers have the option to rescind the sale.

Work inspectors can shut down any activity that does not comply with labour law requirements regarding asbestos (Articles L. 4722-1, Labour Code).

 

Contaminated land

14. What is the regulatory regime for contaminated land?

Regulator and legislation

Contaminated land is mainly regulated by "classified facilities for the protection of the environment" (ICPE) (see Question 4) and waste regulations (only for excavated contaminated land that is regulated by Articles L. 541-1 of the Environment Code and, since 2014, the Chapter "Contaminated sites and land" of the Environment Code (L. 556-1 to L. 556-3 and R. 556-1). Articles L. 125-6 and L. 125-7 set information rules regarding contaminated land.

The Ministry of Ecology, Sustainable Development and Energy (MEDDE) is responsible for defining public policy on the subject of contaminated land, whether the contamination is natural or human-generated and whether it relates to ICPE policy or not.

Depending on which regulation is applicable, the enforcing authority is either the préfet or the mayor.

Investigation and clean-up

Where known soil contamination justifies investigation and contamination management measures, in particular when the use of the land changes, the state classifies the land within a "land information sector" and publishes relevant information about the land (Articles L.125-6, Environment Code).

Generally, in the event of soil contamination or risk of soil contamination that poses a risk of harm to public health, safety and the environment, the enforcing authority can, after issuing a summons, perform of its own accord the necessary works at the expense of the responsible party. If the site cannot be remediated because the responsible party disappeared or is insolvent, the state can entrust the Agency for Environment and Energy Management (ADEME) with the remediation (Articles L. 556-3 I, Environment Code).

ICPE. ICPE operators are subject to specific investigation and clean-up duties (see Question 4). ICPE in operation must be controlled every five to ten years by accredited organisations at the expense of the operator. If the organisation detects major non-compliance (as defined by ICPE type), the operator must remediate the site within a year; otherwise, the organisation informs the préfet (Article L. 512-11 and R. 512-55 to R. 512-66-2, Environment Code).

At the closure of an ICPE, its operator must bring the site to a state in which the site will not pose any risk to public health and safety, agriculture, or the protection of nature. In addition, for ICPE subject to registration or authorisation, post-closure remediation measures must enable future use of the site either (Article L. 512-6-1 and R. 512-39-1 et seq., L. 512-7-6 and R. 512-46-25 et seq. and L. 512-12-1 and R. 512-66-1 et seq., Environment Code):

  • As agreed on by the operator, the owner of the land and the mayor.

  • In case of lack of agreement, similar to the last use of the ICPE before closure. If this remediation is inconsistent with the intended future use of the site, as evidenced by urban planning documents, the préfet can impose further remediation measures on the operator.

The future use can take the form of, for example, housing or industrial use. At any time, including after the operator remediated the site, the préfet can summon the operator to perform any measure necessary to preserve public health and safety, agriculture, or the protection of nature (Article R. 512-66-2, Environment Code).

Since 2015, a third party who wishes to remediate, in whole or in part, the site of a former ICPE in substitution for the last operator of the ICPE, can do so following a procedure involving the said operator, the préfet, local government and the owner (Article L. 512-21 and R. 512-76 to R. 512-81, Environment Code).

Penalties

Administrative and criminal sanctions provided by ICPE, "facilities, buildings, works and developments" (IOTA) and waste regulations can apply to non-compliance with clean-up provisions (see Questions 5, 6 and 12).

 
15. Who is liable for the clean-up of contaminated land? Can this be excluded?

Liable parties for the clean-up of contaminated land are, by order of priority (Article L. 556-3 II, Environment Code):

  • Primarily, if the contamination is due to a "classified facility for the protection of the environment" (ICPE) or a basic nuclear facility, the last operator of the facility causing the contamination and the third party under L. 512-21 (see Question 14), each for their respective obligations; if the contamination is due to another cause, the waste producer who contributed to the cause of the contamination, or the waste holder whose fault contributed to the contamination.

  • Secondarily, if no party is primarily responsible, the owner of the contaminated land can be held liable for negligence or contribution to the contamination.

A parent corporation can be held liable if its subsidiary defaults on its environmental liability obligations (such as its clean-up obligations) under either of two regimes (Article 227 I and II, Grenelle II):

  • Where the parent corporation has voluntarily committed in a specific, regulated agreement to taking over in part or in whole any obligation the subsidiary has not met under environmental liability law: the parent corporation will then be liable even in cases of strict liability (Article L.233-5-1, Commercial Code).

  • The court where the defaulting subsidiary filed for bankruptcy finds that the parent corporation's faute caractérisée (that is, an undefined notion between mere fault and gross negligence) contributed to the bankruptcy, the parent corporation can then be held liable in whole or in part for the costs of the clean-up (Article L.512-17, Environment Code).

Limitation of liability

An ICPE operator's liability is limited by the causal link between the permitted activities and the pollution. Concerning site remediation, barring migrating pollution, liability is limited by the future use of the site as defined above (see Question 14).

Additionally, the statute of limitations for financial obligations relating to remediation of environmental damage caused by activities regulated by the Environment Code expires 30 years after the event that caused the damage (Article L. 152-1, Environment Code). However, operators can still face liability, since the préfet and mayor's police powers are not subject to a statute of limitations.

 
16. Can a lender incur liability for contaminated land and is it common for a lender to incur liability? What steps do lenders commonly take to minimise liability?

Lender liability

From an administrative perspective, a lender can incur liability for land contamination if he is involved in the land contamination (for example as the last operator of the "classified facilities for the protection of the environment" (ICPE) that caused land contamination or as waste producer). Additionally, the landowner can be considered as the waste holder if he was careless regarding waste left on his land.

Under contract law, the lender can incur liability towards the tenant if soil contamination prevents the normal use of the leased asset.

Minimising liability

To minimise their liability towards their tenants, lenders must inform tenants of the possible contamination of the land. If the information is duly disclosed in the lease, the tenant can assume the risk of a financial burden relating to soil contamination, in particular where the tenant carries out earthworks at the site.

If the land belongs to one of the "land information sectors" (see Question 14), the lender of the land must inform the tenant in writing and supply the information published by the state. Otherwise and if contamination prevents the use of the land foreseen by the lease agreement, the tenant can rescind the contract within two years from the discovery of the contamination or obtain a reduction in rent (Article L. 125-7, Environment Code).

 
17. Can an individual bring legal action against a polluter, owner or occupier?

Individuals can bring legal actions against polluter owners and occupiers before civil courts, on the basis of either:

  • Fault-based liability (Article L. 1382, Civil Code).

  • Strict liability, for example, for the acts of things (Article L. 1384, Civil Code), or for abnormal neighborhood disturbances (prudential). Individuals can also join criminal proceedings as private parties, where applicable, to claim damages.

 

Hydraulic fracturing

18. Is fracking being pursued or considered in your jurisdiction? If so, please describe the regulatory framework which applies to manage environmental risks.

Act No. 2011-835 (13 July 2001) prohibited the use of fracking for the exploration and operation of liquid and gaseous hydrocarbons on French territory and repealed the permits to prospect that had been granted to projects that use fracking.

The law also created the National Commission for orientation, monitoring and assessment of liquid and gaseous hydrocarbons, which assesses environmental risks relating to fracking techniques.

 

Environmental liability and asset/share transfers

19. In what circumstances can a buyer inherit pre-acquisition environmental liability in an asset sale/the sale of a company (share sale)?

Asset sale

In an asset sale including a "classified facilities for the protection of the environment" (ICPE), the buyer will only inherit pre-acquisition environmental liability if he takes over as incumbent operator of the facility and the damage is linked to post-acquisition activities (see Question 15). If the buyer's activity differs from the seller's, the buyer will only be subject to remediation obligations linked to the new activity. If the buyer does not operate the ICPE at all, the seller retains all ICPE-related liability.

However, in practice, the new operator's activities are often similar to those operated by the seller, and it is difficult for the new operator to escape historical liability.

Additionally, some environmental liabilities specifically attached to the sold assets are necessarily transferred to the buyer (for example, obligations related to the presence of asbestos). The seller can also provide and be liable for representations and warranties to the buyer for these environmental liabilities (see Questions 23 and 24).

Share sale

In a share sale concerning a company operating an ICPE, no change of operator occurs. The company (and also its new parent company, see Question 15 for more information) retains its environmental liability towards administrative authorities and third parties.

 
20. In what circumstances can a seller retain environmental liability after an asset sale/a share sale?

Asset sale

An asset sale including a "classified facility for the protection of the environment" (ICPE) does not automatically entail a transfer of environmental liability. The seller remains subject to remediation obligations resulting exclusively from his activities (see Question 19).

However, certain environmental liabilities specifically attached to the sold assets are transferred to the buyer. The seller is liable for representations and warranties made to the buyer (see Questions 23 and 24).

Share sale

Since the operator does not change in a share sale including an ICPE, the seller does not retain environmental liability, but is liable for any contractual warranties related to environmental issues made to the buyer in the share purchase agreement.

 
21. Does a seller have to disclose environmental information to the buyer in an asset sale/a share sale?

Asset sale

The seller of land where a "classified facilities for the protection of the environment" (ICPE) subject to authorisation or registration was operated must inform the buyer in writing of the ICPE and of any hazards or serious nuisance resulting from its operation (Article L. 514-20, Environment Code). If the seller operated the ICPE, he must similarly inform the buyer on whether his activity involved manipulation or storage of chemicals or radioactive substances. In case of non-compliance, the buyer can either (Article L. 514-20, Environment Code):

  • Rescind the contract.

  • Request a partial refund.

  • Require the remediation of the site at the seller's expense, if remediation costs are not disproportionate to the sale price.

If any assets sold are located within an area designated by the state as contaminated or at risk, for example, if the area is covered by a technological or natural risks prevention plan or is in a seismic activity area (Articles L. 125-5, Environment Code) the seller must disclose to the buyer the risks and/or contamination covered by the designation. In case of non-compliance, the buyer can rescind the contract or request a partial refund. If the area was identified by the state as contaminated, the buyer can only seek remedies if the discovered contamination makes the land unfit for its intended use and can also request the remediation of the site at the seller's expense (Articles L. 125-7, Environment Code).

Under French contract law, the seller has a general duty of good faith and of disclosure towards the buyer (Article 1602, Civil Code). The sales warranty against hidden defects (Articles 1625 and 1641 et seq., Civil Code) and the obligation to deliver goods in conformity with the contract also apply to real property sellers (Articles 1603, Civil Code).

Share sale

The seller of shares also has a general obligation of good faith in the execution and negotiation of the contract (Article 1135, Civil Code), including an obligation not to conceal information, or risk damages or the nullity of the sale.

 
22. Is environmental due diligence common in an asset sale/a share sale?

Scope

There are no legal obligations to perform environmental due diligence in an asset or share sale. However, such a process is both recommended and commonplace. For example, the Ministerial Circular on "classified facilities for the protection of the environment" (ICPE) and soil contamination prevention and management suggests modalities for environmental assessments that are usually followed in practice.

Types of assessment

Environmental due diligence investigations can take many forms, be it document-based or in situ, legal or technical. The seller and the buyer of the assets or shares determine its scope, which usually includes:

  • Controlling the assets' or corporation's compliance with environmental regulation (for example, permits).

  • Visiting the site to assess environmental risks, contamination sources, or waste disposal.

  • Requesting further investigations into the site (if necessary).

Environmental consultants

Due diligence assessments are usually carried out by environmental consultants. The engagement letter must cover the scope of the assignment (for example, historical study, soil investigations, evaluation of rehabilitation costs), as well as the time frame and price. The letter must also specify foreseen on-site operations, if any and what regulations, norms, or technical methodology must be applied.

The National Metrology and Test Laboratory (Laboratoire national de métrologie et d'essais) (LNE) grants the "LNE contaminated sites and soils service" certification to environmental consultants who comply with NF X 31-620 standards.

 
23. Are environmental warranties and indemnities usually given and what issues do they usually cover in an asset sale/a share sale?

In asset sales, representations and warranties usually cover environmental liabilities specifically attached to the asset sold.

Environmental representations warranties are increasingly given in operations dealing with industrial assets or companies and are based on the findings of the technical and/or legal due diligence. They usually cover current contracts, conformity to environmental regulations, compliance with the required permits for the activity, the state of the soil and waters, and environmental assessments made.

 
24. Are there usually limits on environmental warranties and indemnities?

In principle, the last operator of a "classified facility for the protection of the environment" (ICPE) is liable for the remediation obligations of land sold resulting from ICPE regulations, regardless of contractual warranties or indemnities. However, since in practice, the burden of historical contamination is often born by the purchaser, the latter tends to negotiate protective warranties.

The parties negotiate the limits to environmental representations and warranties (time, amounts and exclusions). Insurance policies usually exclude damage resulting from asbestos, electromagnetic fields, discharges authorised by public authorities for the operation of the site and infringement of the Environment Code obligations (see Question 29). Specific insurance policies usually cover a longer period than general insurance and now tend to cover the whole field of professional activities exposed to environmental liability.

 

Reporting and auditing

25. Do regulators keep public registers of environmental information? What is the procedure for a third party to search those registers?

Public registers

The publication of environmental information is an important aspect of environmental policy in France. The website www.toutsurlenvironnement.fr lists over 100 public (local and national) registers with environmental information. Other websites provide specific environmental information, including:

  • On ICPE (www.installationsclassees.developpement-durable.gouv.fr).

  • On former industrial sites: BASIAS, a database for old industrial sites and service activities (Base des anciens sites industriels et activités de service) that caused or could potentially cause contamination.

  • On currently contaminated land: BASOL lists polluted and potentially polluted sites and land requiring public intervention (for prevention or remediation); once a site has been depolluted, it is transferred to BASIAS.

  • On local risks to the population, www.prim.net covers natural and technological risks, prevention measures taken and natural disaster recognition decisions.

  • Each DREAL has its website with environmental information (for example, granted permits and applications).

  • Many public bodies publish on their website information relevant to their attributions.

These databases do not cover all polluted sites.

Third party procedures

Every person has a right to access environmental information held, produced, or received by public authorities (and any person charged with a public service related to the environment). The person may appeal the denial of the request for communication to the Commission for access to administrative documents (Commission d'accès aux documents administratifs) and then administrative courts for disclosure of information (Articles L. 124-1 et seq., Environment Code).

However, this right is subject to various limits, such as business confidentiality or public security interests.

 
26. Do companies have to carry out environmental auditing? Do companies have to report information to the regulators and the public about environmental performance?

Environmental auditing

All companies registered with the Register of Companies must carry out an energy audit every four years (Articles L. 233-1, Energy Code).

ICPE operators must carry out environmental investigations periodically and obtain the required operating permits.

Companies can also apply environmental standards voluntarily such as those set by the EU Eco-Management and Audit Scheme (Regulation No 1221/2009) or ISO 14001.

Reporting requirements

Operators subject to permits must report the result of their compulsory environmental investigations to the relevant administrative authority (for example, the Classified Installations Inspectorate for ICPE). However, they are under no general obligation to communicate environmental information directly to the public, except for nuclear operators (Articles L.125-10, Environment Code).

All publicly traded companies must include information on their environmental performance and sustainable development commitment in their annual report (Article L. 225-102-1, Commercial Code).

 
27. Do companies have to report information to the regulators and the public about environmental incidents (such as water pollution and soil contamination)?

Environmental legislation sets specific obligations to report to regulators and the public about environmental incidents, for example:

  • For any person aware of an accident posing a danger to public safety or water resources, they must notify the préfet and mayor (Articles L. 211-5, Environment Code).

  • For ICPE operators, they must report all accidents resulting from the operation that are likely to put protected interests at risk (Articles L. 511-1 and R. 512-69, Environment Code).

  • For operators of basic nuclear facility, they must notify the Nuclear Safety Authority and the préfet of any accident that endangers or is likely to endanger the safety of a nuclear facility or public health, goods and the environment through exposure to ionising radiation (Articles L. 591-5, Environment Code).

 
28. What access powers do environmental regulators have to access a company?

Environmental inspectors have broad powers to access a company. They can search for infringements wherever they may happen. With the public prosecutor's authorisation, they can search enclosed premises during legal search hours (that is, 6 am to 9 pm), including outside of business hours when the activity is regulated by the Environment Code. They can also (under certain conditions) require the communication, copy or seizure of any document, take samples, request the support of police forces (Articles L. 172-4 et seq., Environment Code).

 

Environmental insurance

29. What types of insurance cover are available for environmental damage or liability and what risks are usually covered? How easy is it to obtain environmental insurance and is it common in practice?

Types of insurance and risk

Under general insurance law, insurance cannot cover:

  • Certain risks (for example, resulting from the normal operations of the company, not an accident).

  • Unpredictable prejudice under current scientific and technical knowledge (Articles L. 162-23, Environment Code).

Insurance contracts also generally exclude deliberate infringement of environmental law and criminal penalties for environmental liability.

Specific insurance and general insurance still overlap to cover environmental damage and liability.

Until 2010, general insurance policies tended to exclude "ecological damage," but now usually include explicitly civil liability for environmental damage (Responsabilité civile atteinte à l'environnement). These policies cover the financial consequences of liability for industrial, commercial, or agricultural activities, when the environmental damage has also caused prejudice to third parties. However, they do not cover damage to common goods, nor the consequences of "pure" ecological damage.

Specific environmental liability insurance can cover both strict liability for hazardous activities and fault-based liability for all professional activities, as well as all concrete prevention and remediation measures for damage to the environment.

Other specific insurance policies can cover financial risk beyond environmental liability, operating loss due to environmental damage, among others.

Obtaining insurance

Specific insurance policies are increasingly common on the French market, based on EU and national law for transactions involving potentially polluted assets (for example, Directive 2004/35/EC on environmental liability and Law No. 2008-757). The procedures to obtain such insurances have been simplified.

 

Environmental tax

30. What are the main environmental taxes in your jurisdiction?

General tax on polluting activities

The main environmental tax is the General Tax on Polluting Activities (taxe générale sur les activités polluantes) (TGAP) (266 sexies terdecies, 268 ter and 285 sexies, Customs Code).

Other environmental taxes

Other examples of environmental taxation include:

  • The tax on petroleum products (Climate contribution tax), including the "Carbon Tax" based on CO2 emissions (since 2014).

  • Local taxation financing local public services for drinking water.

  • Local household waste taxes.

Tax liability

The TGAP is due by natural or legal operators of activities involving specific polluting substances such as waste, emissions, oils (266 sexies, Customs Code). ICPE were exempted in 2015.

Tax rates

The TGAP rate depends on the type and tonnage of the substance generated by the activity and increases yearly based on consumer prices indices (266 nonies, Customs Code).

 

Reform

31. What proposals are there for significant reform (changes) of environmental law in your jurisdiction?

ICPE are undergoing major regulation changes. In 2014, the government launched local trials for a generalised single-permit regime in order to simplify procedures and save time for ICPE, IOTA and wood clearing authorisation petitioners. The "Macron Law" of 6 August 2015 (Law No. 2015/990) recently extended further the scope of the experimentation and enabled the government to generalise the regime nationwide by 2017.

* The Author wishes to express his gratitude to Andréa Londoño López and Benjamin Chaix for their valuable contribution to the drafting of this chapter.

 

The regulatory authorities

Ministry of Ecology, Sustainable Development and Energy (Ministère de I'Ecologie, du Développement Durable et de l'Energie) (MEDDE)

Main activities. The Ministry drafts bills, enacts Decrees and Orders, implements and enforces Acts in the fields of energy, air and climate (including energy transition), water and biodiversity, prevention of natural and technological risks, sustainable development, transports, sustainable territory planning, areas and landscapes, sea and coastlines.

W www.developpement-durable.gouv.fr

Classified Facilities Inspectorate (Inspection des Installations Classées)

Main activities. The Classified Facilities Inspectorate works at preventing and reducing environmental hazards and drawbacks to protect environment and public health. It reviews applications for ICPE permits, monitors operation of ICPE and proposes sanctions to the préfet in case of non-compliance with applicable requirements.

W www.installationsclassees.developpement-durable.gouv.fr/

Regional Directorates of Environment, Land Development and Housing (Direction Régionale de l'Environnement, de l'Aménagement et du Logement) (DREALs)

Main activities. DREALs guide the implementation of environmental policies and enforce prevention and control measures at the regional level.

W www.[name of region].developpement-durable.gouv.fr

Agency for Environment and Energy Management (Agence de l'Environnement et de la Maîtrise de l'Energie) (ADEME)

Main activities. ADEME provides expertise and advice in waste management, soil protection, energy efficiency, renewable energy, air quality and noise prevention. It is also responsible for remediating abandoned sites.

W www.ademe.fr

Nuclear Safety Authority (Autorité de sûreté nucléaire) (ASN)

Main activities. ASN is in charge of controlling the nuclear safety and public information in the nuclear field and contributes to the creation of regulations by giving its opinion to the government or making technical decisions.

W www.asn.fr



Online resources

W www.legifrance.gouv.fr

Description. Légifrance is the official website for French legislation of all ranks, as well as most case law from the Conseil d'Etat and the Cour de Cassation.

W www.eur-lex.europa.eu

Description. Eur-lex.europa is the official website for European legislation, including directives, regulations and decisions.

W www.curia.europa.eu

Description. Curia.europa is the official website on case law from the Court of Justice of the European Union (CJEU) and the General Court of the European Union.

Feature table: Environmental liability comparative table



Contributor profiles

Vincent Brenot, Partner

August & Debouzy

T +33 1 45 61 51 98
F +33 1 45 61 51 99
E vbrenot@augdeb.com
W www.august-debouzy.com

Professional qualifications. Advocate, France (Paris Bar, 2001)

Areas of practice. Public and administrative law; environment.

Recent transactions

  • Serving domestic and international clients from both the public and the private sectors.
  • Covering the full scope of environmental law from renewable energy to contaminated soils.
  • Assisting Petroplus regarding the shut-down procedure of the Reichstett oil refinery.
  • Advising Hutchinson on the environmental law aspects of the sale of a majority interest in its aerospace and automotive sealants businesses of Le Joint Français (LJF) to PPG.
  • Advising Arkema on the environmental law aspects of a number of transactions (for example, the acquisition of the Coatings Resins (Cray Valley and Cook Composite Polymers) and Photocure Resins (Sartomer) businesses of Total SA or divestment of Arkema's vinyl products businesses to the Klesch group).
  • Representing a leading French energy supplier in the context of a number of energy tariff related disputes before the French tribunals.
  • Advising a number of mining operators in the context of the transfer and renewal of their mining concession.
  • Assisting a number of operators in the context of the acquisition or sale of wind and photovoltaic farms.

Mr Brenot's expertise in public and environmental law is recognised by all French and international rankings, including Chambers & Partners and The Legal 500.

The August & Debouzy team has received the 2015 gold trophy of the "Rising team of the year" in environmental law by Leaders League and Décideurs Stratégie Finance Droit.

Non-professional qualifications. Prize winner of the Concours Général (national contest) in Public Law, 1995; D.E.S.S postgraduate degree in Litigation and Public Law, University of Paris I Panthéon-Sorbonne, 1999; Master in Public Law and Tax Law, University of Paris II Panthéon-Assas, 1998.

Publications

Vincent Brenot regularly publishes articles in his fields of practice in legal and business journals. Recent articles include:

  • La divisibilité des clauses de nullité au secours de la « bancabilité » des marchés de partenariat, with Pascal Suffran, Contrats Publics, Le Moniteur, November 2015.
  • Practical Law Global Public Procurement Multi-Jurisdictional Guide: France overview, Thomson Reuters, 2014.
  • Green bonds, l'essor de la finance écologique, with Naomi Omeonga wa Kayembe, Option Droit & Affaires, May 2014.
  • Regard optimiste sur l'évolution récente du droit des installations classées, with Joanna Peltzman, Environnement et développement durable (Jurisclasseur), November 2013.
  • L'exécution des marchés publics de communication, with Emilie Patoux, Contrats Publics (Le Moniteur), July to August 2013.
  • Cohabitation des espaces industriels et résidentiels : arbitrage constitutionnel à l'aune de la Charte de l'environnement, with Iris Géniès, Option Droit & Affaires, May 2011.
  • Grenelle II et infrastructures publiques : de la realpolitik environnementale?, with Agnès Macaire, Magazine des affaires, June to July 2010.

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