Environmental liability – directive

One of the main objectives of the 1st EC legislation is the application of “the polluter pays” principle. This directive establishes a common framework for liability with a view to preventing and remedying damage to flora and fauna, to the natural habitats to water resources, as well as damage affecting the land. The liability scheme applies to certain specified occupational activities and to others in cases where the operator is at fault or negligent. The public authorities are also responsible for ensuring that operators responsible adopt or found the necessary preventive and remedial measures.

ACT

Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004, on environmental liability with regard to the prevention and remedying of environmental damage [See amending acts].

 

SUMMARY

The directive establishes a framework for environmental liability based on “the polluter pays” principle, with a view to preventing and remedying environmental damage.

Application scope and liability regime

 

• Under the terms of the directive, environmental damage is defined as:

• Direct or indirect damage to the aquatic environment covered by Community water management legislation;

• Direct or indirect damage to species and natural habitats protected at Community level by the 1979 “Wild Birds” directive and by the 1992 “Habitats” directive;

• Direct or indirect land contamination which creates a high/considerable/significant risk to/for human health.

The principle of liability applies to environmental damage and imminent threat of damage resulting from occupational activities, where it is possible to establish a causal link between the damage and the activity in question.

The directive distinguishes two complementary situations each one governed by a different liability scheme: occupational activities specifically mentioned in the directive and other occupational activities.

The first liability scheme applies to dangerous or potentially dangerous occupational activities listed in Annex III of the directive. These are mainly agricultural or industrial activities requiring a licence under the directive on integrated pollution prevention and control, activities which  discharge heavy metals into water or the air, installations producing dangerous chemical substances, waste management activity (particularly landfills and incinerators) as well as activities concerning GMO’s (genetically modified organisms and micro-organisms). According to this scheme, the operator may be considered responsible even if he is not at fault.

The second liability scheme applies to occupational activities other than those listed in Annex III of the directive, but only when a damage or imminent threat of damage is caused to species and natural  habitats protected by Community legislation. In this case, the operator will be liable/responsible only he is at fault or negligent.

The directive provides for a series of cases of exclusion from environmental liability. The liability scheme does not apply, for example, in case of damage or imminent threat of damage resulting from armed conflict, natural catastrophe or activities included in the treaty which establishes the European Atomic Energy Community, national defence or international security activities, as well as activities included in some international conventions listed in Annex IV.

Preventing and remedying damage

Where there is an imminent threat of environmental damage, the competent authority designed by each MemberState calls for the operator (potential polluter) to take the necessary/appropriate preventive measures or will be the authority itself to take such measures and successively recover the incurred expenses.

Where environmental damage has occurred, the competent authority will call for the operator concerned to take the necessary/appropriate remedying measures (determined on the basis of the rules and principles listed in Annex II of the directive), or will be himself to take such measures and successively recover the incurred expenses. Where a considerable number of environmental damage have occurred, the competent authority may determine the order of priority according their compensation.

Environmental damage may have different forms of remedial depending on the type of damage:

• for damage affecting the land, the Directive requires that the land concerned be decontaminated until removing any serious risk of negative impact on human health;
• in terms of the effectiveness of environmental damage remedial, on the availability at reasonable costs and on the terms of insurances and other forms of financial security which regulate the activities included in Annex III.

 

Background

Where the environmental damage occurs, the “polluter pays” principle is already present in the Treaty which established the European Community. As it prevents from all forms of violation of environmental regulations, this principle contributes to the achievement of objectives and the application of Community policy in this area.

The White Paper on environmental liability, published in February 2000, studied how to apply “the polluter pays” principle with a view to implementing Community environmental policy. At the end of this analysis the conclusion was that a Directive would be the best way to establish a Community environmental liability scheme. This directive is the result of discussions held after the White Paper, when a public consultation was carried out.

Original: http://europa.eu/legislation_summaries/enterprise/interaction_with_other_policies/l28120_it.htm