THE PRINCIPLE OF POLLUTER PAYS IN INSOLVENCY PROCEEDINGS [609031]

THE PRINCIPLE OF “POLLUTER PAYS ” IN INSOLVENCY PROCEEDINGS
GOVERNED BY LAW 85/2014
Candit Valentin VERNEA
Abstract
By means of t his article the author , will analyse the incidence of the fundamenta l principle of environmental law
“polluter pays ” in the current national legislation and will identify its applicability, especially in what concerns insolvency
proceedings.
The article is structured in three parts. The first part aims to define and identi fy the particularities of this principle
in both contemporary Romanian law and International law.
The second part points out how the company's liability for environmental damage can be attracted in each of the
phases of the insolvency proceedings.
The thi rd part correlates the provisions of Law No. 85/2014 with the provisions of Government Emergency Ordinance
No. 68/2007 on environmental liability by formulating a de lege ferenda proposal designed to increase the efficiency of
environmental damage coverage in insolvency proceedings.
Keywords: Insolvency proceedings, environmental damage, polluter pays, environmental liability
1. Principles of environmental law
applicable to companies;
The principles of environmental law applicable to
companies, but especia lly to companies under the
Insolvency Act, have particularities in their application.
The need for environmental protection in our country
has been stated since 1973, when Law No. 9 was
passed, which stated that the environmental protection
activity consti tutes a matter of national interest. The
Constitution passed in 1991 provides under art. 135
paragraph 2 D “the obligation that the State has in
exploiting the country's natural resources, in
accordance with national interests ”. From article 135
paragraph 3 D of the Romanian Constitution one can
conclude that “no human activity can be carried out
without complying with environmental protection
rules, and therefore, this represents a general obligation
for all public, central and local authorities, such as
natural persons and legal entities ”1.
As regards the owner of an activity with an impact
on the environment , we show that this person can be
both a natural person and a legal entity , whichever
being legally liable . The owner of a project authorising
an act ivity shall be either the applicant , natural person
or legal entity, or the public authority initiating a
project.
The category of legal entities incudes those
established based on L aw 31/1990 on commercial
companies, whether these are limited liability
companies or share companies . Thus, companies may

 PhD student – Faculty of Law, University of Bucharest, insolvency practitio ner, CITR SPRL, candit.vernea@citr. Ro
1 D. Marinescu, M.C. Petre – Environmental Law Treaty , ed. V, University Publishing House, Bucharest, 2014, pg. 63
2 Law 31/1990, company law, republished in Official Journal. No. 1066 of November 17th, 2004;
3 In the doctrine it was shown that this definition was given by the Romanian lawmaker, in view of the potential economic and legal re ality
of the estate of its debtor, in other terms, the current insolvency – M.N. Costin, C.M. Costin, the conditions laid down by the law for the
opening of the commercial insolvency proceedings at the request of the entitled Creditor, in Commercial law magazine No. 9/20 06, pg. 9. be subject to environmental law as legal entities
established based on legal norms. Article 1 of law
31/1990 states that “for the purpose of carrying out
lucrative activities, natural persons and legal entities
may be associated and establish companies with legal
personality, in compliance with the provisions of this
Law”.2 The company may be established for carrying
out a lucrative activity, but it can also be established
without the main objective being th at of the activity
undertaken to gain profit. The a ctivity which
companies carry out in order to gain profit or not must
be one stemming from lawful actions , as such, any
activity thereof must comply with the legislation of the
environmental law as well .
If the commercial company established for a
lucrative purpose not only does not gain profit, but also
incurs consecutive losses , which cannot be covered by
external sources, it may enter in default, which is
followed by insolvency . In other words, a compan y in
default is one small step away from to the opening of
insolvency proceedings, which can be followed by a
successful reorganization or bankruptcy of the debtor.
The insolvency, as it has been defined, shows that
it represents that state of the debtor's estate , which is
characterized by the insufficiency of money funds for
the payment of definite, liquid and payable debts3. The
text of art. 5 item 29 a) and b) of Law 85/2014
distinguishes between imminent insolvency and
presumed insolvency. Regardless of the state of
insolvency of the debtor , be it imminent or presumed,
we can speak of a commercial company in insolvency
only if, following the analysis made by the syndic

Candit Valentin VERNEA 407
judge, invested with such an application, it is
established that all legal requirement s are fulfilled and
a sentence or closure to open the procedure are issued .
Companies, being legal entities , since their
establishment must comply with all legal provisions
relating to environmental law , if these are applicable to
the specificity of thei r business. Companies are entities
born as a result of the will of one or more persons , either
natural persons or legal entities, or a combination
thereof. It is assumed that the activity that a company
carries out is one of a much larger scale and with a
higher complexity as compared to any activity that a
natural person can carry out on an individual basis. The
risk that the ecological balance is affected is even
greater , as the extent of the carried out activities is
greater, as such, in the case of comm ercial companies ,
the risk is high. Depending on the activity that each
company will carry out, it may be necessary to have a
certain authorisation, which may also be an
environmental one, before its start.
The National Agency for Environmental
Protection is an entity of the central public
administration , whose tasks are represented by strategic
planning and monitoring of environmental factors , but
also the authorisation of all activities that have an
impact on the environment. In Romanian legislation on
the environment , there is a number of regulatory
enactments (agreements, endorsements , authorisations )
that economic operators will have to obtain , under
specific criteria and rules. Such
agreements/authorisations or endorsements are not
intended to give th e right for pollution or to affect the
environment , but are intended to prevent or at least
minimise such negative effects.
The authorisation of environmental impact
activities is one of the current techniques currently used
by all the States of the Europe an Union , in order to
prevent and limit environmental harm. The obligation
to obtain special authorisations for the carrying out of
certain activities verifies the fulfilment of minimum
operating and control conditions that the future
economic operator wil l have to carry out , in order to
comply with all environmental requirements. Whether
or not a company is in insolvency , it is obliged to
comply with all environmental obligations regulated by
the enactments in force.
The principles of environmental law hav e both
the guiding role of the legislator , when drafting new
regulations , and the role of guiding the activity of any

4 G.E.O. no. 195/2005 on Environmental Protection, published in Official Journal no. 1196 of December 30th, 2005, under art. 3 states “The
principles and strategic elements underlying the present emergency ordinance are:
a) The principle of integrating environmental policy into other sectoral policies;
b) The precautionary principle in the decision -making pr ocess;
c) The principle of preventive action;
d) the principle of withholding pollutants at source;
e) the "polluter pays" principle;
f) the principle of preserving biodiversity and ecosystems specific to the natural biogeographic framework;
g) sustainable use of natural resources;
h) public information and participation in the decision -making process, as well as access to justice in environmental matters;
i) development of international cooperation for the protection of the environment."
5 G.E.O. no. 195/2 005 on Environmental Protection, published in Official Journal no. 1196 of December 30th, 2005 economic operator subject to the rules laid down by that
law branch. These regulations will have to be complied
with by any of the current or future economic operators
performing or wishing to perform activities that may
affect the environment. The principles of
environmental law are laid down by art. 3 of G.E.O. no.
195/2005 on environmental protection4, these being the
general principles.
The subject of environmental law may be a
natural person or a legal entity , but not all the principles
of law stated under art. 3 of G.E.O. 195/2005 on
environmental protection shall apply to these categories
of operators. As regards the application of th e
principles of environmental law, a particularity in their
application is the application of the provisions of art. 3
h) of G.E.O. 195/2005 on environmental protection.
The principle laid down by art. 3 h)5 has two parts, one
of “public information and pa rticipation of the public in
the decision -making process” and another related to
“access to justice in environmental matters ”. If all the
principles of law set out by G.E.O. 195/2005 on
environmental protection apply to both natural persons
and legal entities, the subject of law of the first
component of item h) of art. 3 may only be a natural
person, commercial companies of any kind being
unable to participate in the decision making process .
This principle with two different components has
as subjects different persons . Subjects of law for
information and participation in the decision -making
process related to environmental issues can only be
natural persons, and access to justice can have all
subjects of law , be they natural persons or legal entities .
The principles of law stated under art. 3 of G.E.O.
195/2005 on environmental protection were designed
to prevent pollution and then repair or call on the
liability of persons causing environmental damage. In a
sense , it is normal for the prevention to be of ten a much
better and more accessible solution than repair, which
in the environmental law , can often be very difficult to
achieve or is unattainable.
One of the principles of environmental law that
represents the foundation of this branch is the “pollu ter
pays” principle.
2. Development of the “polluter pays ”
principle;
In the European Union , “polluter pays ” as a
principle of environmental law , was introduced in the

408 Challenges of the Knowledge Society . Private Law
Treaty on the functioning of the European Union , but
also by means of Directive 2004/35 /EC6 of the
European Parliament and of the Council of 21.04.2004
on environmental liability in relation to the prevention
and remediation of damages. Member States were
allowed to transpose the directive into national
legislations by April 30th, 2007. All Member States
have transposed the directive into national law. In
Romania , Directive 2004/35/EC was fully transposed
by means of Government Emergency Ordinance No.
68/20077 on environmental liability with reference to
the prevention and repair of environme ntal damage ,
which has been approved by means of L aw 19/20088.
The “polluter pays ” principle is enshrined in the
national legislation under art. 3 e) of G.E.O. 195/20059
on environmental protection, being a principle
underlying both this enactment and ot her enactments in
the field of environmental protection. The principle
finds its applicability in art. 94 of G.E.O. 195/200510 on
environmental p rotection , which provides for the
obligation of both natural persons and legal entities to
protect the environme nt, being obliged to bear the cost
of repairing the damage and restoring the conditions
prior to their occurrence .
In special laws, the principle shows the need to
develop an appropriate legislative and economic
framework , so that the costs of reducing pol lution are
borne by their producer. In G.D. 731/2004 on the
approval of the National Strategy for the protection of
the atmosphere , it is shown that “the polluter pays
principle establishes the need to create an appropriate
legislative and economic framewo rk, so that costs for
reducing emissions are borne by their generator. The
responsible for deterioration of the quality of the

6 Directive 2004/35/EC published on https://eur -lex.europa.eu/legal -content/RO/ALL/?uri=CELEX:32004L0035 and studied on 26.02.2019
7 G.E.O. no. 68/2007 on enviro nmental liability published in Official Journal no. 466 of June 29th, 2007
8 Law 19/2008 for the approval of G.E.O. no. 68/2007 on environmental liability published in Official Journal no. 170 of March 05th, 2008
9 G.E.O. no. 195/2005 on environmental prot ection published in Official Journal no. 1196 of December 30th, 2005
10 G.E.O. No. 195/2005 on environmental protection published in Official Journal no. 1196 of December 30th, 2005 art. 94 shows that (1)
the protection of the environment constitutes an obl igation of all natural persons and legal entities, for which purpose: (a) it request and obtains
the regulatory acts, in accordance with the provisions of this emergency ordinance and the subsequent legislation; b) complie s with the
conditions of the regul atory acts obtained; (c) does not put into service installations whose emissions exceed the limit values laid down by the
regulatory acts; (d) legal entities carrying out activities with a significant impact on the environment shall organise speci alised en vironmental
protection structures; e) assists persons empowered with verification, inspection and control activities, providing them with the evidence of
their own measurements and all other relevant documents and facilitates the control of activities whos e owners they are, as well as sampling;
f) provides access for persons empowered for verification, inspection and control of technological installations generating e nvironmental
impact, equipment and installations for environmental remediation, as well as in spaces or areas related to the aforementioned g) carries out,
in whole and in due term, the measures imposed by the acts of identification concluded by persons empowered with verification , inspection
and control activities; h) shall be subject to the wr itten provision of termination of the activity; i) bears the cost of repairing the damage and
removing the consequences produced by it, restoring the conditions prior to the damage, according to the “polluter pays” pri nciple; j) provides
its own systems f or the supervision of technological installations and processes and for self -monitoring of pollutant emissions; k) ensures the
recording of results and reports to the competent authority for environmental protection the results of self -monitoring of pollu tant emissions,
as provided for by the regulatory acts; l) informs the competent authorities, in the event of accidental eliminations of poll utants in the
environment or major accidents; m) stores waste of any kind only on premises authorised for this purp ose; n) does not burn the stubble, reed,
bushes or grass vegetation, without the consent of the competent authority for the protection of the environment or without p rior notification
of the Community public services for emergencies; o) applies the conserv ation measures established by the Central Public Authority for
environmental protection on terrestrial and aquatic areas, subject to a conservation regime, as natural habitats, which they manage, as well as
for their ecological restoration; p) does not use dangerous bait in fishing and hunting activities, except in specially authorised cases; q) ensures
optimum conditions of life, in accordance with the legal provisions, for wild animals kept in legal captivity, under differen t forms; r) ensures
that the sa nitation measures related to land held under any title, not occupied productively or functionally, in particular those situat ed along the
road, railway and navigation pathways, are taken; s) to identify oneself at the express request of the inspection and control staff, provided for
in this Emergency Ordinance.
11 G.D. no. 731/2004 for the approval of the National Strategy on the protection of the atmosphere published in Official Journal no. 496/2004
12 D. Marinescu, M.C. Petre – Environmental Law Treaty , ed. V, University publishing house, Bucharest, 2014, pg. 75 atmosphere must pay in accordance with the
seriousness of the effects produced11“.
3. Environmental liability under the '
pollute r pays ' principle;
This principle of environmental law shows that
the polluter is obliged to bear the costs of achieving
both pollution prevention measures and possible
damage caused by pollution. A policy of economic
operators to reduce pollution prevent ion costs,
including by not adapting to the latest available
technologies, sooner or later will lead to higher costs ,
in order to combat the negative effects pollution can
have on human health or the environment , in its
entirety. In order to avoid such sit uations and to
“correct ” the costs that the economic operator will
have, there is the “polluter pays ” principle , which , in
the environmental law , also has the role of imputing the
cost of environmental attainment to the polluter. In the
doctrine,12 it is sh own that “all expenditure in relation
to the protection of the natural environment is, by
default, an expense leading to the creation of profit. It
will always be the economy that will bear the
consequences in the short term, and additional
expenditure wil l be based on export prices. ” In our
view, the main purpose of applying this environmental
principle is to educate economic operators so that
starting from the “polluter pays” we can reach the idea
of the polluter does not pollute.
The e conomic justificati on for the “polluter pays”
principle is that the failure to carry out expenditure,
prevention and environmental protection in time will
entail high costs of the economic operator , consisting

Candit Valentin VERNEA 409
in combating the negative effects occurred . All costs of
combatin g negative effects on the environment will
have to be covered by the polluter, and the only option
is to reflect these costs in the price of the services
offered. If the price of the services offered increases
with these additional costs, there is a possib ility that the
economic operator will suffer a significant decrease in
activity , as a result of the high price that can even lead
to the blocking of the entire activity and , not lastly, to
the entry into insolvency , followed by its
deregistration .
In the literature,13 it is shown that “ broadly, the
principle seeks to cast to the polluter the load of the
social cost of the pollution it causes. This implies the
training of a mechanism of responsibility for ecological
damage, covering all the effects of pollut ion, both those
produced in relation to goods and persons, and those
produced on the environment , as such.” The same
authors show that “ in a narrow er sense, it requires the
polluters to bear only the cost of anti -polluti ng
measures and cleaning.” The pollu ter pays principle is
nothing but an attempt to raise awareness of economic
operators that if there are environmental pollutions
caused by them, they will have to bear the
consequences arising therefrom. On the other hand, the
principle seeks to educate th e economic operator , with
a view to its use of the latest generation of available
technologies, which have the lowest degree of
pollution. The principle takes into account the liability
of polluters , based on the idea of risk and guarantee for
the actions perpetrated .
The application of the polluter pays principle may
not be solitary , because this would lead to the situation
where any economic operator would pay an amount of
money as a pollution tax , which could be perceived as
a payment to be able to poll ute. This principle must be
read in conjunction with the principle of prevention and
the prohibition of pollution , in order not to lead to
inadmissible consequences such as “I pay, therefore I
can pollute14“. We believe that the principle has been
adopted s o that the party responsible for the production
of the pollution can be held accountable and pay
environmental damage.
This principle of environmental law is the basis
of Directive 2004/35/EC on civil liability in relation to
the prevention and remediation of environmental
damage. This Directive 2004/35/EC provides that the
fundamental principle must be that an economic
operator , whose activity has caused an environmental
damage , must be financially liable. The aforementioned
directive puts particular empha sis on preventive and
environmental remedies, because most of the time the

13 M. Duțu, A. Duțu – Environmental law, edition 4 , C. H publishing house, Beck, Bucharest, 2014, pg. 117
14 D. Anghel – Legal liability regarding environmental protection, Legal Universe publishing h ouse, Bucharest 2010, p. 63
15 G.E.O. no. 68/2007 on environmental liability published in Official Journal no. 466 of June 29th, 2007
16 Idem
17 G.E.O. no. 68/2007 on environmental liability published in Official Journal no. 466 of June 29th, 2007 and G.E.O. no. 195/2005 on
environmental protection published in Official Journal no. 1196 of December 30th, 2005
18 G.E.O. no. 195/2005 on environmental protection published in Official Journal no. 1196 of December 30th, 2005, under art. 10 paragraph
4, states that “the fulfilment of environmental obligations is of priority, in the case of procedures for: dissolution, followed by liquidat ion,
bankruptcy, termination of activity” ecological destruction can have irreversible effects.
This directive was transposed into national law by
Emergency Ordinance No. 68/200715 on environmental
liability in relation to t he prevention and repair of
environmental damage.
Emergency Ordinance No. 68/200716 on
environmental liability shows, under article 1 that “it
establishes the regulatory framework for environmental
liability, based on the polluter pays principle, for the
prevention and r emed iation of environmental damage” .
This regulation provides a guarantee in addition to the
observance, prevention and repair of damage that
professional activities may have on the environment.
The environmental liability provided for by G.E.O. no.
68/2007 shall apply to all natural persons or legal
entities (called operators) who bring harm to the
environment , irrespective of the type of professional
activity they carry out.
Environmental liability is not a classic tort
liability , in the s ense that the one who will pollute will
be obliged to cover the damage caused, but the operator
will also be obliged to take all measures to ensure that
the work carried out by it does not pollute or if pollutes ,
it falls within the limits of the law, and the technology
used is one that complies with the environmental law.
On the other hand, the operator will have to take all
measures required so that, if a disaster occurs, it may be
able to remedy it. According to the provisions of the
environmental law17, the one carrying out a risk –
incurring activity has no financial guarantee obligation
before the action is started, the only activities subject to
this regime being those of mining and waste storage .
4. Application of the ' polluter pays '
principle to co mpanies in insolvency;
As regards commercial companies in insolvency,
the provisions of G.E.O. no. 195/2005 on
environmental protection anticipate their eventual
disappearance and show that environmental obligations
must be met with priority in dissolution and liquidation
procedures or upon termination of the activity18. By
means of this provision, the legislature attempted to
deter the transfer of activities from one subject of law
to another , without the fulfilment of environmental
obligations. However, th e provisions of G.E.O. no.
195/2005 on environmental protection , as well as those
of G.E.O. no. 68/2007 on environmental liability are
not correlated with the insolvency law , as such, the
basic “polluter pays ” principle cannot be applied with
much success in such procedures. The “polluter pays”

410 Challenges of the Knowledge Society . Private Law
principle in cases of insolvency does not have the levers
necessary to be able to give maximum efficiency to the
provisions of G.E.O. 68/2007 on environmental
liability, although the legislator has been thinking of
further laws aiming at the companies in insolvency, but
this has never happened. According to art. 33 of G.E.O.
68/200719 on environmental liability , the obligations
incumbent on companies in insolvency should have
been established by a government decision , within 12
months from the entry into force of said order, a
decision that has not been issued until now. The
application of the “polluter pays” principle in light of
the provisions of G.E.O. 68/2007 on environmental
liability shall be made through the en vironmental
agency , which is assisted by the Environmental G uard
and who also has the role of notice entity . The
economic operator that has caused damage to the
environment has several obligations set out in G.E.O.
68/2007 on environmental liability: to no tify the
competent authorities , in this case the Environmental
Guard, of any environmental hazard; The operator must
take all preventive measures necessary to combat
environmental damage; The operator is required to take
all necessary measures to remedy th e environmental
damage. Failure to fulfil these obligations may entail
contravention sanctions , but also the employment of
criminal liability. The environmental agency may carry
out preventive measures and repairs at its own expense ,
under art. 11 d of G.E.O. 68/200720 on environmental
liability, and the amount spent will be recovered from
the economic operator that had the obligation to
execute them. In order to recover such expenditure
under art. 29 of G.E.O. 68/200721 on e nvironmental
liability, the enviro nmental agency may establish a
statutory mortgage on the immovable property of the
Operator. It is thus shown based on these provisions
that the competent bodies do not have an obligation to
intervene if the polluter operator does not, but they can
do so , if the necessary amount is allocated by means of
decision of the Go vernment from the intervention f und.
As far as environmental liability is concerned ,
under the “polluter pays” principle, we believe that
there is a discrepancy between environmental and
insolvency provisions. A first issue in applying the

19 G.E.O. No. 68/2007 on environmental liability published in Official Journal no. 466 of June 29th, 2007 provides under article 33 paragraph
1 that "defining forms of financial collateral, including insolvency cases, and measures to develop the supply of financial i nstruments on
environmental liability, enabling operators to use them for the p urpose of guaranteeing their obligations under this Emergency Ordinance, shall
be determined by means of decision of the Government, based on a proposal from the central public authorities for the protect ion of the
environment and for public finances, with in 12 months from the entry into force of this emergency ordinance "
20 G.E.O. No. 68/2007 on environmental liability published in Official Journal no. 466 of June 29th, 2007 under art. 11 d) shows that "at any
time the County Agency for Environmental Prote ction has the possibility to exercise the following duties: … d) take the necessary preventive
measures "
21 G.E.O. No. 68/2007 on environmental liability published in Official Journal no. 466 of June 29th, 2007, under art. 29 paragraph 2 states
that “in order to ensure the recovery of the costs incurred, the Environmental Protection Agency establishes a mortgage on the immovab le
property of the operator and a precautionary garnishment, in accordance with the legal rules in force”
22 G.E.O. No. 195/2005 on environmental protection published in Official Journal no. 1196 of December 30th, 2005 provides under article 2
paragraph 32, the following: “risk assessment – this is the work drawn up by a natural person or legal entity who has this right, according to
the law, which carries out the analysis of the probability and seriousness of the main components of the environmental impact and establishes
the need for preventive, intervention and/or remedial measures "
23 Law 85/2014 on insolvency and insolvency prevent ion procedures published in Official Journal no. 466 of June 25th, 2014, under art. 102
paragraph 6, states the following: “Claims arising from the date of initiation of the proceedings, during the observation per iod or in the judicial
reorganisation proce dure, shall be paid in accordance with the documents they are based on, and they are not required to be enrolled in the
statement of affairs. The provision shall be applied appropriately for claims emerged after the date of opening of the bankru ptcy proced ure" principle for commercial companies in insolvency
would be to enrol the debtor in the statement of affairs .
Environmental obligations are usually obligations that
entail actions , and the provisions of the I nsolvency Act
do not entitle the creditor to enter such an obligation in
the statement of affairs . The practice shows that such
obligations are not placed in the statement of affairs,
although the environmental remediation value may
represent an important amount of money from the total
debts of the debtor company , as a result of the risk
assessment22. We believe that the best option is for the
environmental agency to have acted at its own expense ,
in order to remedy environmental damage before the
insolvenc y proceedings are opened, because in this case
there would be a quantified value of e nvironmental
obligations which were not executed by the debtor, and
as such they could be entered in the statement of affairs .
If there is also a legal mortgage prior to t he opening of
insolvency proceedings, then the claim to be entered in
the statement of affairs shall receive orders of priority
in future distributions , within the procedure. If there is
no such guarantee , the environmental agency will be
entered with the amount requested in the statement of
affairs, with the order of priority of a budget claim, so
that in order to extinguish it, distributions in insolvency
proceedings must first provide for the payment of
guaranteed c reditors, a nd only thereafter the budge tary
ones.
If the environmental agency intervenes, in order
to carry out the necessary remedies for the
environmental damage done by the operator, after the
opening of the procedure, the amounts resulting from
this operation may be classified under art. 1 02
paragraph 623 of Law 85/2014 on insolvency, as being
current claims to be paid , in accordance with the
resulting documents, which are not required to be
entered in the statement of affairs of the debtor. On the
other hand, these greening operations coul d be regarded
as representing a financing during the insolvency
proceedings, which would entail the prior approval of
creditors, as the greening operation is not consider ed a
current activity of the general d ebtor. According to the

Candit Valentin VERNEA 411
provisions of art. 87 of Law 85/201424 on insolvency
proceedings , operations exceeding the company's
current activity will have to be approved by the
creditors' c ommittee , at the request of the special
administrator or judicial administrator , as the case may
be. It is hard to beli eve that creditors of the debtor who
are also part of the creditors ' committee will agree, from
any sums, which are to be distributed in the procedure,
to pay the costs of greening. Because , on one hand ,
G.E.O. 195/2005 on environmental protection obliges
the operator to pay its environmental obligations, and
on the other hand , Law 85/2014 on i nsolvency
proceedings do es not provide for a priority or exception
from payment related to these environmental
obligations , so we can think that there are situations in
which these obligations will not be complied with. We
believe that we can be faced with the situation where
the polluter pays principle cannot be applied , as the law
provides for the pollutant operator to be held
accountable by the judicial administrato r/liquidator
under the provisions of Law 85 /2014 on insolvency
proceedings.
In the fortunate event , in which the environmental
agency intervenes for greening before the insolvency
proceedings are opened and enters the statement of
affairs of the debtor wit h the corresponding amounts,
and these are not paid in the procedure, they may only
be recovered in t he situation in which persons have
been identified as leading to the insolvency of the
debtor, and they are also subject to liability for the not
recovered liability, by means of an action filed under
art. 169 of Law 85/201425 on insolvency proceedings.
The application of the polluter pays principle with
reference to the liabil ity of judicial
administrators/j udicial liquidators for unhonoured
environmental obligations by the debtor company, the

24 Law 85/2014 on insolvency and insolvency prevention procedures published in Official Journal no. 466 of June 25th, 2014, under art. 87
states that “during the observation period, the debtor will be able to continue carrying out the current activitie s and make payments to known
creditors, who fall under the usual conditions for the exercise of the current activity, as follows: Under the supervision of the judicial
administrator, if the debtor has made a request for reorganisation, within the meaning o f art. 67 paragraph 1 g), and the right of administration
has not been lifted; b) under the direction of the judicial administrator, if the debtor has been excluded from the right to administer it. 2.
Documents, transactions and payments exceeding the cond itions laid down under paragraph (1) may be authorised in the exercise of supervisory
tasks by the judicial administrator; the latter shall convene a meeting of the creditors' committee for approval of the reque st of the special
administrator, within a max imum of 5 days from the date of its receipt. If a particular operation exceeding the current activity is recommended
by the judicial administrator and the proposal is approved by the creditors' committee, it will be met by the special manager . If the activ ity is
run by the judicial administrator, the operation will be carried out by the latter, with the approval of the creditors’ commi ttee, without the
request of the special administrator.
25 Law 85/2014 on insolvency and insolvency prevention procedures pub lished in Official Journal no. 466 of June 25th, 2014
26 Statute on organizing and exercising the profession of insolvency practitioner, republished in Official Journal no. 712/16.08 .2018
27 Statute on organizing and exercising the profession of insolvency p ractitioner, republished in Official Journal no. 712/16.08.2018, under art.
117 paragraph 2 lit. e) shows that "expenditure necessary for the fulfilment of the urgent environmental obligations laid dow n by the competent
authority, in accordance with Govern ment Emergency Ordinance No. 195/2005 on environmental protection, approved with amendments and
completions by means of Law no. 265/2006, with subsequent amendments and completions (such as liquidation of stocks of radioa ctive
materials, PCB capacitors, ha zardous chemicals, etc. for which preservation in the conditions of the law cannot be ensured), as well as
expenditure related to the elaboration of technical documentation / feasibility studies / environmental reports / projects, n ecessary to identify
feasible solutions for the fulfilment of environmental obligations and the costs associated with these solutions. The cost of en vironmental
obligations relating to the closure of non -compliant storages will be highlighted;”
28 Statute on organizing and exercis ing the profession of insolvency practitioner, republished in Official Journal no. 712/16.08.2018, under art.
116 paragraph 4 shows that "in the case of advances from the Liquidation fund, if the sentence/conclusion does not expressly provide that the
amou nt are to be returned, the applicant, in addition to the documents referred to under paragraph (1), shall also give a statuto ry statement, by
means of which it undertakes to repay the advance, within 10 working days, as of the recovery of the debtor's asse ts”
29 Law 85/2014 on insolvency and insolvency prevention procedures published in Official Journal no. 466 of June 25th, 2014, under art. 161
paragraph 1, provides that “claims shall be paid in the event of bankruptcy in the following order: 1. Fees, stamp s or any other expenditure
relating to the procedure established by this title, including the expenditure necessary for the conservation and administrat ion of assets of the Statute for organising and exercising the profession of
insolvency practitioner26, allows, by means of art. 117
paragraph 2 e)27 the insolvency practitioner to ask for
funds necessary for any greenings from the National
Union of Practitioners in Insolvency proceedings Fund.
However, the insolvency practitioner who will request
and receive these necessary funds will be obliged ,
under art. 116 paragraph 4 of the Statute on the
organisation and exercise of the profession of
insolvency practitioner28, to e nsure that these funds are
returned immediately after the assets have been
capitalised . If the assets, which are to be redeemed, do
not cover such expenditure advanced by the Union, the
judicial administrator or the liquidato r, as the case may
be, shall bear the amounts not covered by means of
personal property, making it difficult to reach the
decision to request these funds necessary for greening.
5. Proposals to amend the legal provisions;
The problems identified conc erning the
application of the “polluter pays” principle in what
concerns economic operators under the Insolvency act
lead to the ever-growing necessity to amend the legal
provisions , but also to harmo nise the provisions of the
two a reas of law. The necessity c omes as a result of
both the country's economic development and the very
large number of insolvencies that UNPIR practitioners
manage.
Firstly for the paymen t of environmental
obligations, L aw 85/2014 on insolvency proceedings
should provide that these re present a priority, either by
assimilating them to conservation costs and the
administration of goods , as provided for by article 161
paragraph 291 of the law or by means of a distinct

412 Challenges of the Knowledge Society . Private Law
wording, in the same article , granting these priority in
terms of potent ial distributions.
Second, when the situation requires the
application of L aw 85/2014 on insolvency proceedings,
it must provide for an exception to the rule of approval
by the c reditors ’ commi ttee, in terms of the necessary
remedial operations and the pa yment of the damage
produced. This modification must also be made based on the long duration of the convening and approval of
any operations necessary for the remedy. If the polluter
would immediately pay the damage caused , and also
the measures to prevent and extend them , one could
prevent in this manner other negative effects that the
passage of time might have on the environment in
which the operator activated.
References
 D. Anghel – Legal liability regarding environmental protection, Legal Universe pub lishing house,
Bucharest 2010
 D. Marinescu, M.C. Petre – Environmental Law Treaty, ed. V, University publishing house, Bucharest,
2014, pg. 63
 M. Duțu, A. Duțu – Environmental law, edition 4 , C. H publishing house, Beck, Bucharest, 2014
 Commercial Law Maga zine No. 9/2006
 Law 31/1990, company law, republished in Official Journal no. 1066 of November 17th, 2004
 Law 85/2014 on insolvency and insolvency prevention procedures published in Official Journal no. 466 of
June 25th, 2014
 Law 19/2008 for the approval of G.E.O. 68/2007 on environmental liability published in Official Journal
no. 170 of March 05th, 2008
 G.E.O. no. 195/2005 on environmental protection published in Official Journal no. 1196 of December 30th,
2005
 G.E.O. no. 68/2007 on environmental liabili ty published in Official Journal no. 466 of June 29th, 2007
 G.D. no. 731/2004 for the approval of the National Strategy on the protection of the atmosphere published
in Official Journal no. 496/2004
 Statute on organizing and exercising the profession of in solvency practitioner republished in Official
Journal no. 712/16.08.2018

debtor's estate, for the continuation of the activity, and for the payment of the r emuneration of persons employed under the provisions of art.
57 paragraph (2), art. 61, 63 and 73, subject to those laid down under art. 140 paragraph (6);”