PhD candidate, Adrien Alaux

French civil liability & ocean plastic pollution: the apprehension of Kairos (working

Context:

While the EC public consultation period on measures to reduce the impact of microplastic pollution on the environment continues until May 2022, I propose in this paper an approach based on French civil law to prevent such risks. Moreover, our topic is plastic pollution and not only microplastics. It is for these two reasons that, whatever happens on the regulatory front, this discussion should remain relevant. Finally, this paper is a synthesis of a colloquium presentation made on 1 June 2021 for the University of Nantes Scientific Day. At the beginning of this project, the colloquium should have been held before the covid -19 pandemic crisis. Since the idea of the theme of this conference, the regulations concerning plastic pollution in the oceans have evolved briefly.

Method:

As stated in the title, my paper focuses on civil liability, and therefore excludes administrative and criminal liabilities, which are important components of civil liability measures. Although these liabilities are interesting tools, which have proven their effectiveness, this approach is defensible for several reasons. The first is the purpose: the repressive aim of criminal law is not optimal in the face of this type of damage, even if it has interests in the preventive dimension through disincentives. Nevertheless, the strict interpretation limits the malleability of the matter 3 . Of course, criminal lawyers will reply that there are certain exceptions, but it is difficult to put the interpretation in criminal liability and in civil liability on the same level 4 . Moreover, and more factually, as regards plastic pollution, many fishermen bring back nets at sea on their own initiative: in this sense I am not sure that a penal threat is the best option regarding a profession that is already well regulated and constraining. The penalization of 1 Communication made during the event "Plastic pollution of the oceans" (June, 2021).

environmental law only reinforces a feeling of guilt of certain activities which nevertheless embody a strategic dimension and know in the first place the stakes of sustainability. Finally, as for the utilitarian approach of criminal law, it remains relevant but, and particularly in environmental matters, the main risk for firms is a bad brand reputation 5 . Finally, as Professor Mekki 6 noted, "Bringing civil liability and environmental law closer together is a stimulating but at the same time distressing undertaking. How can we ensure that environmental law, faced with a law of civil liability that is already in tatters and that is criticized for its incoherence and impressionism, is not the final blow?" Semantic issues:

Before developing the subject, I would like to make a few semantic reminders.

First, about environmental damage, it is necessary to dissociate pure environmental damage 7 from derived environmental damage. Pure environmental damage, as recognized in the famous Erika case, directly affects the environment. Derivative environmental damage is that which considers the damage to the environment as the source of one or more other types of damage: it would be the cause of a ricochet 8 damage. For example, a bather who, after swimming in the Bay of Saint Nazaire, suffers a severe exacerbation due to prolonged contact with polluting plastic substances in the sea: this is indeed environmental damage that causes physical injury. This distinction is decisive as it demonstrates the evolution of the law of civil liability: it recognizes the existence of the obligation not to create damage to others (derived ecological damage), but to the environment (pure ecological damage).

This distinction is indirectly reflected in the legislative subdivisions:

At the European Union level, the Rome 2 Regulation 9 defines environmental damage as a negative change in a natural resource such as water, soil or air, a deterioration in the function 5 Breitinger, D., & Bonardi, J. P. (2017). Firms, Breach of Norms, and Reputation Damage. Business & Society, 58(6), 1143-1176. https://doi.org/10.1177/0007650317695531 6 Mekki M., « Responsabilité civile et droit de l'environnement.vers un droit spécial de la responsabilité civile environnementale ? », Responsabilité civile et assurances, n° 5, Mai 2017, dossier 4, n° 17. 7 Gueye, D., Le préjudice écologique pur. Montpellier : 2011. Université de Montpellier 1 : thèse de doctorat, Droit privé et Sciences criminelles, sous la direction de Respaud, Jean -Louis. Disponible sur https://ged.biumontpellier.fr/florabium/jsp/nnt.jsp?nnt=2011MON10061 ; Camproux Duffrène, M. P. (2016). Pour une approche socio-écosystémique de la dette écologique : une responsabilité civile spécifique en cas d'atteintes à l'environnement. VertigO, Hors-série 26. https://doi.org/10.4000/vertigo.17493 8 Bureau, D. (2016). La loi applicable à la réparation du préjudice par ricochet: Cour de justice de l'Union européenne, 10 décembre 2015, aff. C-350/14. Revue critique de droit international privé, 4, 678-684. https://doi.org/10.3917/rcdip.164.0678 9 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) OJ L 199 du 31.7.2007, p. 40-49. ELI: http://data.europa.eu/eli/reg/2007/864/oj of that resource for the benefit of another natural resource or the public, or a deterioration in biological diversity (recital 24) 10 . The reference to this regulation is not insignificant: it deals with the conflict of law rules for non-contractual obligations In domestic law, the French Civil Code (FCC) also provides a definition of ecological damage:

Article 1247 of the FCC: ecological damage consisting of non-negligible damage to the elements or functions of ecosystems or to the collective benefits derived by man from the environment may be compensated under the conditions laid down in this title.

The title of the intervention concerns irreversible damage:

Which obviously shocked some of you: why speaking about "irreversible" damage when this very term is only used at the domestic legislative level in the French Penal Code (FPC) and the French Environmental Code (FEC) in addition to the term damage?

In fact, Article Art. L. 218-19 FEC refers to the irreversible damage of a discharge of a polluting substance due to imprudence, negligence or non-compliance with laws and regulations.

Then, Articles 322-5 and 6 FPC also refer to irreversible damage caused by fires.

The choice of the term "irreversible damage" is therefore the chimera between ecological damage and environmental damage: a serious attack that is carried out in one direction and worsens exponentially. I will not go into the scientific details of the link with the degradation of microplastics, their effects on the environment, their destination, the effects on the dispersion of invasive species: a veritable snowball effect that is now difficult to stop. Moreover, other papers at the conference have already highlighted that the risk of worsening plastic pollution in the oceans through certain clean-up operations.

About kairos, It has several meanings, biblical, philosophical, mythological: I will retain the philosophical approach of Jankelevitch 11 , that of the moment of opportunity.

The difficulty of the subject then arises: can civil liability be incurred at the right moment in the case of irreversible damage caused by plastic pollution of the oceans? 10 Loc. cit. Rome 2 régulation, " 'Environmental damage' should be understood as meaning adverse change in a natural resource, such as water, land or air, impairment of a function performed by that resource for the benefit of another natural resource or the public, or impairment of the variability among living organisms". 11 Périgord, M. (1974). Vladimir Jankélévitch ou improvisation et « Kaïros ». Revue de Métaphysique et de Morale, 79(2), 223-252. http://www.jstor.org/stable/40901499 Too early: it will lack evidence of the potential occurrence of damage, too late the occurrence of irreversible damage would not be tolerable.

Why study these provisions on a national level?

It is often said that there is no such thing as a small initiative in environmental matters: on the contrary, it is the small everyday actions that influence environmental damage, the local initiatives. Why not also in law? Why wait for international conventions? These normative processes are often slow, not very binding, too sectoral, or symbolic.

The choice of defense and proposals in national law also allows forum shopping to be used favorably through the provisions of the Rome 2 Regulation: thus, in environmental matters, normative competition is a benefit that meets the requirements of Article 191 TFEU (ex-Article 174 TEC) 12 .

Picture 1: map of ocean plastic pollution (source: ghostmed) Still in this idea, this picture above shows that there is a large amount of plastic waste in our territorial waters, as here in the Mediterranean Sea, which allows us to establish a map of the risks: fishing nets found, in addition to ghost fishing, represent 10% of plastic pollution 13 : here we are in the application of national law? Why a positive law 14 approach? The main criticism of ocean pollution by plastics or microplastics is that the burden of proof requires significant scientific and technological progress. However, the law is not insensitive to inter-normativity, it can create compensatory mechanisms, as in competition law for example, where econometric studies are a substantial analysis criterion (e.g. M&A 15 ). Indeed, competitive harm is also irreversible on a structure that is not biological but economic: repair or restoration is particularly burdensome to assess 16 . Thus, the argument that consists in postponing or waiting for scientific or technological evolution is not optimal. Firstly, it ignores the pragmatism of prevention (not precaution), and secondly, even if these technological developments were accessible, their judicial application is not guaranteed: the legal approach requires considering the temporal and financial cost of implementing these evidential elements, which are sometimes far too costly.

To set out this approach to domestic law, it is appropriate to explore the two aspects of civil liability: firstly, liability arising from extra-contractual legislative obligations (I) and, secondly, liability arising from contractual obligations (II). I will place particular emphasis on my first part, while my second part will be more exhaustive for obvious reasons: the law is general and requires a greater presentation, the contract is particular -so harder and shorter to describe.

I.

The legislative obligation

The legislative obligation follows the evolution of positive law since 2016 and even the Erika case: on the one hand it allows us to look at the apprehension of pure ecological harm, and on the other hand at derived ecological harm. Indeed, while the special regime of environmental damage codified in Articles 1246 ff. is mainly aimed at pure ecological damage, some ordinary law regimes pragmatically apprehend damage caused to the environment -which could be particularly useful in the case of ocean pollution by plastics. corresponds to an eco-centric approach, whereas environmental harm derives from an anthropocentric approach 17 .

The advantage is that this normative approach applies to both land and maritime activities.

A.

Reparation of pure environmental damage

Rationae materiae:

The legislative obligation attached to environmental damage requires those responsible to repair it (Article 1246 FCC), as a matter of priority by nature (Article 1249 FCC) -even if in practice pecuniary reparation gets around the material impossibility of the former. This raises the question of the irreversible nature of this type of damage; it is not so far removed from the classic question of liability law and its famous expression of Conseil d'État "tears cannot be bought" 18 , just like mermaid tears 19 , the other name for plastic granules in the oceans.

Environmental damage as understood in the FCC is defined in Article 1247 as "non-negligible damage to the elements or functions of ecosystems or to the collective benefits derived by man from the environment". This definition mainly makes it possible to outline the scope rationae materia of ecological damage. The action for compensation is therefore conditional on a nonnegligible damage either to the elements or functions of ecosystems or to the collective benefits derived by man from the environment.

These two alternative conditions for the material scope of application leave a wide margin of appreciation to the judges of the court of first instance. This margin of appreciation allows the court to achieve the objectives set by Article 5 of the Environmental Charter and Article 191(2) TFEU.

The first condition concerns the ecosystem, i.e. "a dynamic complex formed by communities of plants, animals and micro-organisms and their non-living environment which, through their interaction, form a functional unit". Thus, damage to one of these elements or t o its function would be sufficient to verify the first condition. In the case of ocean pollution by plastics, this condition does not seem to pose a major problem. According to the doctrine 20 , the second condition corresponds to symmetrical ecosystem services: those that contribute to the survival or service of certain living species, in this case the human species. This approach opens a considerable field of possibilities. By understanding the extrinsic utility of the ecosystem, the judge can consider innovations that may be useful to humans: for example, an underwater plant that is a priori useless apart from its intrinsic function but which, through an innovation, becomes extrinsically useful (discovery of a drug, a material, etc.) 21 .

In addition to this alternative condition, a degree of impairment is necessary; it must be significant. This notion of "non-negligible infringement" raises questions here too. It leaves the judges of the court of first instance with a much broader capacity for interpretation than their criminal counterparts. Indeed, environmental damage is then conditional on damage of a certain gravity. This provision could clearly conflict with the precautionary principle laid down by the Treaty in Article 191 and the Environmental Charter. How can the seriousness of environmental damage be assessed when the state of knowledge does not allow the overall impact of a phenomenon to be evaluated? In the case of microplastics, for example, we do not yet have the knowledge to sufficiently assess the impact of a microphenomenon on a macro level: can we consider the damage caused by the pollution of a plastic water bottle to be minimal today, when it is not possible to assess the overall impact of a phenomenon?

The Constitutional Council 22 was seized of a priority question of constitution on 17 November 2020 by the Court of Cassation. Does the term "non-negligible" disregard the first four articles of the 2004 environmental charter as well as the principle of responsibility resulting from article 4 of the DRMC? According to the associations, the term "non-negligible" would not consider negligible damage. However, the Constitutional Council decided that the words "nonnegligible" in Article 1247 of the Civil Code, in its wording resulting from Act No. 2016-1087 of 8 August 2016 for the reconquest of biodiversity, nature and landscapes, were in conformity with the Constitution 23 .

On the other hand, the conformity of Article 1247 with Article 4 of the DRMC confirms the hypothesis of an inconsistency. This conformity therefore exposes the duality of the environment and others. Imagine, however, personal injury through negligible environmental 20 Martin, G.J. ( 2021), « La définition du préjudice écologique à la lumière de l'article 4 de la Charte de l'environnement », La Semaine juridique. Édition générale, 22 février 2021, n° 8-9, p. 379 -381 21 Jean, S. (2017). L'incidence des services écosystémiques en droit de la responsabilité civile. Droit et Ville, 84, 281-298. https://doi.org/10.3917/dv.084.0281 22 Décision n° 2020-881 QPC du 5 février 2021 (Association Réseau sortir du nucléaire et autres). 23 LOI n° 2016-1087 du 8 août 2016 pour la reconquête de la biodiversité, de la nature et des paysages. JORF n°0184 du 9 août 2016 ; Alias : https://www.legifrance.gouv.fr/eli/loi/2016/8/8/2016-1087/jo/texte damage: then the law of civil liability will favor reparation of the individual in the absence of that caused to the environment. This is what the above-mentioned decision recalls: "in addition to damage to the environment caused to natural or legal persons, which is therefore compensated under the conditions of ordinary law, damage exclusively affecting the environment must also be compensated".

In other words, a clear distinction must be made between damage exclusively "to the common good" and damage to private interests. However, this distinction is not so obvious, since although the environment is everyone's business, it could legally become no one's business: how did the legislator offer the environment the possibility of obtaining compensation? To compensate for this, some actors represent the environment by being able to take legal action in its place, a form of guardianship (as a reminder: Article 475 of the FCC states that a person under guardianship is represented in court by the guardian).

Rationae personae

As regards the personal scope of the action for reparation on the basis of article 1246 FCC, article 1248 FCC opens it up to "any person with standing and an interest in acting, such as the State, local authorities and their groupings whose territory is concerned, as well as public establishments and associations approved or created for at least five years on the date on which the proceedings are brought which have as their object the protection of nature and the defense of the environment". This is a significant difference from the action for damages based on Articles 1240 and 1241 ff. FFC. Indeed, environmental damage is therefore confined to certain actors. And this is the difficulty with this harm: there is a profound confusion between environmental interest, collective interest, and the sum of individual interests in environmental damage. By the way, collective action or group action is different from action based on Article 1248.

Thus, in a judgment of the Marseilles criminal court dated 6 March 202024 , the standing and interest to act of the Calanques National Park was not contested in the context of ecological damage resulting from illegal fishing of sea urchins. Indeed, pragmatically, the park's monitoring and inventory mission allows for ex-ante knowledge and the ex-post possibility of restoration thanks to their human and technical resources. This hypothesis could be projected to pollution of the park by various types of plastic.

This difficulty with the personal scope of application is twofold: firstly, it poses a difficulty relating to the admissibility of the action, and secondly, to the personal, and therefore reparable, nature of the damage: is it and must it be personal? If so, for whom? For the environment or the list provided for in Article 1248 FCC? More, so as confusion between the sum of individual interests and the collective interest is particularly frequent in the case of environmental damage. Let us take the example of a fishermen's collective: by defending the sum of the individual interests of professionals, does it not represent the collective interest of sustainable fishing? This confusion is a major risk that is exported in application of the liability regime, particularly because of the principle of full compensation for damage.

Rationae temporis: prevention or precaution?

Finally, it is necessary to consider the timing of the action for reparation. Intuitively, one would tend to think, simply by reading Chapter III of FCC "Reparation of ecological damage", that this action is reserved for an ex-post approach. Since reparation presupposes the occurrence of damage.

However, as we mentioned earlier, the environmental damage caused by plastics is almost irreversible, even aggravating, and difficult to assess in financial and temporal terms, depending on the progress of the degradation process -it is not always tangible.

To respond in part to these questions about the reparability of damage, Articles 1251 and 1252 recall the need to prevent rather than cure. Article 1251 of the FCC: "Expenditure incurred in preventing the imminent occurrence of damage, in avoiding its aggravation or in reducing its consequences constitutes reparable harm". This provision is moreover partly taken up in Article 1238 of the Senate bill on the reform of civil liability of 29 July 202025 , and would apply not to environmental damage but to the provisions common to extra-contractual and contractual liability: "Expenses incurred and costs and losses borne by the claimant in order to prevent, by means of reasonable measures, the imminent occurrence of damage, to avoid its aggravation or to reduce its consequences, constitute reparable damage". By making this damage reparable, the legislator is refining its understanding of kairos.

However, it concerns cases of prevention of an imminent occurrence. This prevention clearly constitutes an objective that is in line with the objectives set out in Article L. 162-3 of the FEC: "in the event of an imminent threat of damage, the operator shall take preventive measures without delay and at his own expense to prevent it from occurring or to limit its effects. If the threat persists, he shall immediately inform the authority referred to in Article L. 165-2 of its nature, the preventive measures he has taken and their results" (FEC., Art. L. 162-3). Nevertheless, prevention is not precaution. This is an important subtlety: prevention implies scientific knowledge, whereas, in the precautionary principle, the occurrence of damage cannot be scientifically proven, as recalled by the constitutional law of 1 March 2005 26 , relating to the Charter of the Environment, which states in Article 5 that "when the occurrence of damage, although uncertain in the light of scientific knowledge could seriously and irreversibly affect the environment, the public authorities shall ensure, by application of the precautionary principle and within their areas of competence, the implementation of risk assessment procedures and the adoption of provisional and proportionate measures in order to prevent the occurrence of damage. The big problem is the burden of proof, which is very heavy materially and no doubt scientifically. Furthermore, the precautionary principle is confronted with the potentiality of harm. This is highly problematic since it sometimes obliges the judge to circumvent this potentiality by using other types of damage, which he will himself create -I am thinking of the damage caused by anxiety or anguish (e.g., linked to scientific uncertainty), but this pragmatism refers to the French ordinary law of liability 27 .

As for the imminent nature of the damage, the notion also raises questions. It is up to the judge to apprehend this timely temporal determination: the kairos. This is the most delicate issue since it is difficult to characterize as reparable in the absence of certain scientific knowledge.

To sum-up, this aspect is an interesting tool but there are possibilities of circumvention which show the pragmatism of judges: ordinary law is in this sense a particularly interesting tool.

Since proof, which is difficult in this area, is the variable of both procedural and substantive questions, the use of alternative liability regimes could circumvent the evidential difficulties of a special regime.

B.

Reparation of derived environmental damage

The two challenges are: to anticipate irreversible harm and therefore maintain this preventive approach (1); failing that, to incur liability and therefore prove a causal link between the event causing the harm (2).

The pragmatism of the judges and their strategy of circumvention points to the more flexible ordinary law regime, a faculty which is less important in special laws which have a more restricted scope of application. Nevertheless, certain special laws make it possible to meet this dual evidential and preventive requirement: I am thinking of the rule concerning passive gear in the field of fishing, which imposes the obligation to bear external registration letters or numbers 28 . Fishing nets being among others a major source of plastic pollution of the oceans: even if this is not the main objective of these measures, it has an impact on the behavior and the level of plastic pollution of the oceans.

Odile Delfour developed in the introduction 29 the new specific constraints for fishermen on this issue of plastic pollution. But this approach also exists outside of plastic pollution of the oceans and is a real global issue: law of 27 March 2017 on the duty of care of parent companies 30 : developed under articles 1240 and 1241.

Special law therefore deals with kairos in a sectoral manner, but what about ordinary law?

In addition to these special regimes, the ordinary law of liability offers a range of regimes and interpretations that could be used in the context of ocean plastic pollution:

Although initially focused on compensation for harm, civil liability has evolved towards preventing the risk of irreversible harm -towards finding the right time.

1) Anticipating harm First, case trend of articles 1240 and 1241 is demonstrating how French Liability Ordinary law is swapping in direction of an ex-ante mechanism. Nowadays, the aim seems to pass from compensation to prevention.

Article 1240: Any act of man whatsoever which causes damage to another person obliges him by whose fault it occurred to make reparation for it.

Article 1241: Each person is responsible for the damage he has caused not only by his own act, but also by his negligence or imprudence.

In French civil liability law, the broad interpretation of fault has made it possible to develop an ex-ante approach. As a non-exhaustive example:

Thus, the negligence of a person to take measures to stop a risk constitutes a fault 31 . Similarly, the owner who has not taken all the measures to stabilize his land on which a rock weighing several tonnes threatens to fall on the housing estate is at fault 32 as is the case if he has not fulfilled his obligation to maintain the banks of a river 33 . Or the fault of the co-owner for refusing to respond to calls for funds necessary for the execution of urgent works, thus contributing to the deterioration of the building and to the deterioration of one of the flats 34 .

All these hypotheses are transposable to an ex-ante obligation not to cause damage through plastic pollution of the oceans: the negligence of an actor not to take measures: fault by abstention. Many scenarios can be envisaged by the actors themselves because they are closers to the field.

Thus, the extensive interpretation of fault makes it possible to establish a form of general prevention regime: an ex-ante obligation. Moreover, the proposed law on the reform of civil liability of July 2020 is anchored in this trend 35 :

Article 1241 confirms this duty of care: 'The violation of a legal or regulatory prescription, as well as the breach of the general duty of care or diligence, constitute a fault'. This definition of fault confirms the obligation of diligence to apprehend the kairos as well as possible.

2) Proving the harm:

Nevertheless, if the harm can be future because of a lack of vigilance, "must be repaired the harm, which although future, appears to the judges of the fact as the certain and direct prolongation of the present state of affairs and as being susceptible of immediate estimation" 36 .

This case law was also taken up in the Senate bill of July 2020:

Art. 1236 -Future harm is reparable where it is the certain and direct extension of a present state of affairs Thus, contingency is not enough: a sufficiently advanced degree of proof is therefore required to apply this case law -a sufficiently important causal link. Furthermore, the rules according to which it is up to the person seeking compensation for damage against the holder of the easement to establish that this damage is the direct and certain consequence of the easement, without requiring scientific proof, which may result from serious, precise, reliable and concordant presumptions (concerning the presence of serious, divergent and opposing elements that existed as to the possible impact of electromagnetic currents on the state of the farms), do not oppose the precautionary principle provided for by the Environmental Charter 37 .

More simply and by analogy with the pollution of the oceans by plastic, the presence of serious and divergent elements which would oppose the incidence of pollution by the plastics on an aquaculture or shellfish farming for example and therefore would not engage a liability as of right would not be opposed to the principles laid down by the Charter of the Environment.

On the other hand, in a case opposing the air force to the owner of a barn, the Court of Cassation held that the wave caused by the passage of a supersonic aircraft could establish a causal link with the destruction of the barn, even though the proof was difficult to provide. This was also the case in environmental matters in a judgment 38 establishing the causality between the unusual mortality of bees potentially poisoned by fluorine. Here too, we could export this pragmatism of judges, which is compensated by negative evidence: can we speak of probatio diabolica?

This would explain the existence of certain special regimes through the mechanism of presumption, as in the case of the registration of fishing nets mentioned above.

The hypothesis of the use of this method is therefore not to be excluded.

Conclusion and another example of the French ordinary law of liability:

Liability for things, vicarious liability? One can imagine many hypotheses, although considered as not adapted to environmental damage, civil liability has this faculty of pragmatic pragmatism, which is singular and consistent with the major societal issues.

For example, in the field of liability for damage to property (non-exhaustive list): On the one hand, the application of the regime to particles or molecules that could be applied for certain plastics: undoubtedly, the degradation of plastic microparticles would correspond to the notion of thing within the meaning of Article 1242 and on the other hand, by the Dintilhac nomenclature which places bodily injury at the top of the hierarchy of damages, the derived environmental damage is more severely sanctioned. But other solutions are possible: abnormal neighborhood disturbance, liability for defective products, etc. However, the cumulative conditions of the regimes must apply 41 ... So, to sum-up, the idea is to apprehend the kairos, the opportune moment which combines the objective of avoiding damage while proving that this damage exist. Pragmatically, imposing an ex-ante obligation that is too strong and too restrictive would slow d own many activities and would be too burdensome and too costly for the players. Compliance must not be a constraint that tends to immobilize, but rather an incentive to innovation, green growth, blue growth or whatever it is called.

Thus, the pragmatism of judges in applying ordinary law is an interesting innovative mechanism but remains a hazard that is sometimes difficult to anticipate, first for lawyers and then for practitioners: the general duty of care is not sufficiently precise and risks placing an obligation that is sometimes too heavy and too strong on players who are already subject to numerous constraints. Nevertheless, this obligation could focus on the main risks intrinsic to its activity.

The kairos for the players is not necessarily that of the legislator or the judge, if the environmental objectives posted for decades are different from the survival imperative of a certain number. And finally, the difficult reparation in kind is transformed into financial reparation: it distorts the irreversible damage and its seriousness into a simple damage and interest, which may be more important, but there is then a risk of trivializing an irreversible damage.

Finally, special law is a response and, as we have seen with ecological damage, it sometimes influences ordinary law 42 . Nevertheless, the superimposition of these sources makes it difficult to read these standards. However, the behavior of actors can also be the result of the exchange of individual wills, a form of local and direct solution.

II. The contractual obligation

To counter these evidential difficulties arising from legislative obligations, recourse to contractual obligations may be interesting, because the contract is an act of security and predictability for economic actors who may be concerned by the extensive interpretation of legislative obligations by judges 43 .

Unlike ordinary law, it personalizes the risks of activities: it benefits from the advantages of special law in terms of evidence and prevention, while offering the actors autonomy. The advantage of this contractual approach, like the legislative approach, is that it applies to both land and maritime activities. Plus, this solution defends an alliance between public Bodies and Private entities 44 which increase effectiveness.

A.

The contractual bond metamorphosis Some examples or proposals for obligations that could prevent plastic pollution of the oceans.

Through the obligation to inform, which is becoming increasingly important and is part of this global due diligence trend. What is most surprising is the drift away from the initial objectives of the materials: a metamorphosis. Indeed, the multitude of information obligations imposed in environmental matters do not exist intrinsically for the information of the contracting party and thus for his consent without defect, but rather to inform him of the dangerousness and risks of certain activities. By playing on this enhanced information obligation. For example, a net or a tire can deteriorate at such and such a speed in the oceans, etc. It is a prevention of the proper performance of the contract: the right moment to apprehend irreversible harm.

It could also be expressed by an obligation of safety: protection of personal injury through an incentive mechanism or an obligation of result: (e.g. not wearing out net etc.), or a choice of law clause which is particularly restrictive in environmental matters... Moreover, to facilitate difficult proof, the parties commit themselves to general ("but not limited") "environmental law" compliance clauses such as: 43 E.g., Roda J.C. ( 2013), Le contrat, instrument de sécurisation d'une opération de concentration, RTD Com. 2013, p.349. 44 Frison-Roche, M.-A., Environnemental Compliance Law, as an Ex Ante Responsability , for an annexe in a French Report on the liability for the environmental Damages, for the European Commission, janvier 2021.

The idea is to facilitate the burden of proof (by using game theory) 47 and to denounce that an imminent risk of irreversible damage exists, and that the actor needs help: in which case he could see his responsibility automatically exonerated since the author of the damage is often the one who is best able to apprehend the risk of damage to the environment?

As we have seen, unlike civil liability, proof is difficult in plastic pollution matter. The risk of not imposing too much restoration would maybe also mean tolerating pollutiona balance must be made. To achieve this goal, a particular emphasis must be placed on avoiding the trivializations of compensation for damages. The risk would be to accept their occurrence.

In conclusion, compliance as a tool of ex-ante regulation is a solution to achieve monumental goals 48 . This expression, borrowed from Marie-Anne Frison-Roche, invites lawyers who are not familiar with maritime or environmental issues to contribute to this search for new mechanisms. The aim is to prevent important harms. Indeed, the environment constitutes a public order in the same way as the economic, health and safety public orders, etc.

Welcome on board!

26

  Loi constitutionnelle n° 2005-205 du 1 mars 2005 relative à la Charte de l'environnement. JO n° 51 du 2 mars 2005 ; NOR : JUSX0300069L. 27 Neyret, L. & Boutonnet, M. (2010), Préjudice moral et atteintes à l'environnement, D. 2010, p. 912.

  Pure ecological damage is found in the FCC in Chapter III of Subtitle II of Title III of Book III.

More simply, it is integrated into the sources of obligations, that of extra-contractual liability, in the same way as the ordinary law regime. It is simply separated in its smallest subdivision between extra-contractual liability in general (Art. 1240 to 1244) and reparation for ecological damage (Art. 1246 to 1252). This marks the legislator's desire to distinguish the regimes while retaining the heading of extra-contractual civil liability. Moreover, pure environmental harm 15 Mergers and acquisition, this question is regulated in EU throw EMCR: Règlement (CE) n° 139/2004 du Conseil du 20 janvier 2004 relatif au contrôle des concentrations entre entreprises. JOUE n° L 24, 29 janvier 2004, 1-22. ELI: http://data.europa.eu/eli/reg/2004/139/oj 16 Opinion of Advocate General Wahl delivered on 18 january 2 018. Case C-633/16 Ernst & Young Konkurrencerådet. ECLI:EU:C:2018:23

  32 Cass. 3 eme Civ, 27 May 2013. P. n° 12-13.734. PB. 33 Cass. 3 ème Civ,7 Oct. 2009. P. n°08-13.834. 34 Cass. 3 ème Civ., 7 Sept. 2017. P. n°49-18.777. 35 Texte n° 678 (2019-2020) de MM. Philippe BAS, Jacques BIGOT, André REICHARDT et plusieurs de leurs collègues, déposé au Sénat le 29 juillet 2020. https://www.senat.fr/leg/ppl19-678.html 36 Cass req. 1st June 1932.

•

  Asbestos particles. Liability of a company, based on art. 1384 anc. [1242], para. 1, for the disease (asbestosis) contracted by the wife of one of its employees and caused by asbestos particles brought home by this employee in his work clothes 39 .

	• Molecules. Market gardeners considered as custodians of the molecules present in
	various phytosanitary products having caused the pollution of water pumped by the
	station supplying drinking water to various communes 40 .
	In these two cases, there is a deep interest in the extensive interpretation of the notion of thing:
	37 Cass. 3 ème Civ. 18 Mai 2011. P. n°10-17.645.
	38 TGI Albertville, 26 août 1975, JCP 1976, II, 18384.

39 Caen, 20 Nov. 2001: JCP 2003. II. 10045, note Trébulle. 40

Cass. 2 ème Civ. 27

Sept. 2012. P.n° 11-11.762.

Radisson, L. (2020, 6 mars). Préjudice écologique : quatre braconniers marseillais condamnés à 350 000 euros de réparation. Actu-Environnement. https://www.actu-environnement.com/ae/news/prejudice-ecologiquebraconnage-parc-calanques-marseille-35111.php4 ; judgement available on this link: https://www.actuenvironnement.com/media/pdf/news-35111-tribunal-judiciaire-marseille.pdf

Texte n° 678 (2019Texte n° 678 ( -2020) ) de MM. Philippe BAS, Jacques BIGOT, André REICHARDT et plusieurs de leurs collègues, déposé au Sénat le 29 juillet 2020. https://www.senat.fr/leg/ppl19-678.html

This conference was organised by Odile DELFOUR-SAMAMA

Also, using contract to reach environment issues knows many advantages such as:

• The actors' knowledge of their own risks (self-regulation)

• Predictability and intelligibility of the pacta sunt servanda's obligation.

• Less costly by potentially using alternative dispute resolution.

• Sometimes stronger commitments than the standard itself to enter corporate social responsibility (CSR) plans 45 ;

• It is mostly ex-ante: the contract is the embodiment of future behavior.

By nature, co-contractors are the most capable of apprehending the kairos of the irreversible damage of their activity. So, do we have to Trust them?

B. The litigation metamorphosis

In practice, this environmental compliance obligation is increasingly appreciated by the arbitrators themselves. As with other public order mechanisms, such as anti-corruption or competition law, the obligation to comply with environmental regulations is increasingly appreciated by arbitrators.

But can we be satisfied with an arbitrator's control over public policy provisions?

Yes, since he makes his award in accordance with the powers granted to him by the parties, which proves the interest and concern of the parties in these matters, or simply the effectiveness of extra-contractual standards. Nevertheless, this apparent movement must not be a "showcase" or a communication tool: green washing. It must be effective, because as mentioned in the introduction, one of the risks is reputation.

Should we move towards a leniency procedure as in competition law? 46