cost recovery on the basis of unjustified enrichment
Since 1983 most cases under the Interimwet bodemsanering (Interim Soil Cleanup Act of 1983), later consolidated in the Wet bodembescherming (Soil Protection Act of 1994), were instituted against the polluter (based on the law of torts). In 1992 and 1994 the Supreme Court made clear that cost recovery against the polluter would be very difficult where pollution had been caused before 1975. Until these decisions only a few cost recovery cases were instituted based on unjustified enrichment. The Supreme Court decisions resulted in a shift of attention to the use of unjustified enrichment. Cost recovery based on unjustified enrichment does not occur in many other countries. In the United States it is used in determining the share which the responsible parties must contribute under CERCLA. In Germany cost recovery based on unjustified enrichment was regulated in the Member State of Hessen as from 20 December 1994 and, by federal law, as from 1 March 1999, for all Member States. Under article 25 of the Bundes-Bodenschutzgesetz a value settlement (Wertausgleich) with the owner is mandatory when measures taken as a safeguard or for decontamination and financed out of public funds result in a not inconsiderable increase in value.
