Function of preventive claim regulated in article 323(1) of the Environmental Protection Law Act of 27 April 2001 in the system of civil measures for environmental protection

Bibliogr. s. 119-123

The objective of the article is to analyse Article 323(1) of the Environmental Protection Law Act of 27 April 2001 (the "EPL") in order to determine its function in the system of civil measures of environmental protection. The regulation authorises any entity, who, as result of an unlawful environmental impact, is in direct threat of incurring or had already suffered damage, to demand from the entity liable for such threat or breach implementation of actions aimed at restoration of state compliant with the law, as well as to undertake preventive measures, in particular installation of equipment preventing the occurrence of the threat or breach. If the application of such preventive measures is impossible or unduly difficult, it is admissible to demand cessation of the activity causing the threat or the breach. As this regulation may perform either compensatory or preventive function, the paper is limited to the analysis of the latter. The author compares the application of Article 323(1) of the EPL with traditional civil law instruments, which have been used, indirectly, to formulate claims protecting the environment - actio negatoria and Article 439 of the Polish Civil Code (the "CC"). The comparison proves that the structure of Article 323(1) of the EPL is extraordinarily complex and therefore this regulation is rarely used. Also, due to the fact that unlawfulness is required in order to formulate a claim based on it, the scope of application of Article 323(1) of the EPL is much more limited compared to Article 439 of the CC. As a consequence, the analysed regulation is not a very effective private law measure for environmental protection.