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 (ELD) establishes a framework based on the polluter pays principle to prevent and remedy environmental damage. The polluter pays-principle is set out in the Treaty on the Functioning of the European Union (Article 191(2) TFEU). As the ELD deals with the "pure ecological damage", it is based on the powers and duties of public authorities ("administrative approach") as distinct from a civil liability system for "traditional damage" (damage to property, economic loss, personal injury).
The Directive defines "environmental damage" as damage to protected species and natural habitats, damage to water and damage to soil. Operators carrying out dangerous activities listed in Annex III of the Directive fall under strict liability (no need to proof fault). Operators carrying out other occupational activities than those listed in Annex III are liable for fault-based damage to protected species or natural habitats. The establishment of a causal link between the activity and the damage is always required. Affected natural or legal persons and environmental NGOs have the right to request the competent authority to take remedial action if they deem it necessary.
The Environmental Liability Directive entered into force on 30 April 2004. The EU Member States had three years to transpose the Directive in domestic law. The transposition of ELD was completed by July 2010.
The ELD was amended three times through Directive 2006/21/EC on the management of waste from extractive industries, through Directive 2009/31/EC on the geological storage of carbon dioxide and amending several directives, and through Directive 2013/30/EU on safety of offshore oil and gas operations and amending Directive 2004/35/EC. The amendments broadened the scope of strict liability by adding the "management of extractive waste" and the "operation of storage sites pursuant to Directive 2009/31/EC" to the list of dangerous occupational activities in Annex III of the ELD. The Offshore Safety Directive, containing an amendment to the ELD (extension of the scope of damage to marine waters), was adopted in June 2013.
The Multi-Annual Work Programme (MAWP) 2017 – 2020 'Making the Environmental Liability Directive more fit for purpose' has been developed in response to the REFIT evaluation which showed clear knowledge gaps and implementation deficiencies that need to be tackled in a more structured and systematic way. The MAWP was finalised in a consultative process with ELD government experts from the EU Member States. Following consultation of a draft in September/October 2016, the present version of the MAWP was endorsed by the government experts at the 17th ELD government experts meeting on 28th February 2017. The MAWP 2017 - 2020 will be updated annually to changing developments, growing knowledge and new needs.
The final goal is to make the ELD deliver better on its original objectives – to prevent and to remedy environmental damage based on the polluter-pays principle – and thus to contribute to a better environment by preserving the natural resources (biodiversity, water, land) in the EU. The present MAWP consists in three main pillars:
1. Improving the evidence base for evaluation and decision-making for the Commission, Member States, stakeholders and practitioners (assessment framework and ELD registry),
2. Supporting the implementation through tools and measures for more even implementation (common understanding of terms and concepts, capacity building and training),
3. Ensuring sufficient availability of financial security, in particular for large losses or in case of insolvency (secure, sufficient and available instruments to cover ELD liabilities).
Stakeholders are invited to join the MAWP and work with the Commission and the Member States to prevent damage as much as possible and to restore the damaged natural resources effectively and efficiently where such damage occurred.The implementation of the MAWP is supported by an external service contract: 'Support in the implementation of the REFIT actions for the Environmental Liability Directive (ELD) - phase 1'. In 2017 the main tasks consist in building the foundation for an assessment framework and an ELD registry, in working towards a common understanding of ELD key terms and concepts and in revising the existing ELD training programme and developing an integrative capacity building concept.
2010 Commission report
The Commission reported on12th October 2010 on the effectiveness of the Directive in terms of actual remediation of environmental damages and on the availability at reasonable costs and on conditions of insurance and other types of financial security:
On the basis of the national reports submitted in 2013 by the Member States to the Commission and of other relevant information, the Commission had to report in 2014 on the experience gained in the application of the Directive. This report includes a review and REFIT evaluation of the Directive. Due to delays in reporting and evaluation (MS reports, evaluation studies, internal REFIT process) and due to the changes at EU political level in 2014, the report was only adopted in April 2016. Any possible further action may be taken on the basis of the report and the comments from the European Institutions (in particular the Parliament and the Council), ELD stakeholders and following a public consultation process.
The key findings emerging from this report are that the Directive has improved:
At the same time, implementation still varies significantly from one Member State to another in terms of the number of ELD cases and the way the Directive is implemented. The observed ‘patchwork’ of environmental remediation, together with the lack of some key data on implementation and on the cost (both administrative and financial security), is a major challenge addressed by the Commission Report including its REFIT Evaluation (Executive Summary) and is further treated under the abovementioned ELD Multi-Annual Work Programme 2017 – 2020.
Member State reports on the experience gained in the application of the Directive
All national reports are in English. Several of them were submitted officially in English while others represent informal translation by the Commission from the original language, in the case where the respective Member State had provided the report only in its original language.
|Netherlands (the report is available upon request)|
Apart from the Member State reports and the relevant experts and stakeholder input (see further below), the Commission had also launched two studies in 2012 and three studies in 2013 evaluating the Directive and informing the report. The 2013-studies have been completed by the end of February 2014 and are as of now available:
Following the conclusions in the Commission report of 2010 (lacking ELD awareness of operators and other stakeholder groups, insufficient information exchange between stakeholder groups, interpretation needs of difficult ELD terms, unavailability of ELD experience and ELD cases), the Commission aimed at supporting the implementation and has consequently launched several initiatives.
ELD stakeholder contacts and exchange:
Trainings on the ELD
Information about the biodiversity baseline condition
To support better the practical application of the ELD, and in response to the request of many stakeholders, the excel table "Biodiversity baseline condition" is aimed to provide a register of information sources and methodological approaches at EU and 28 national levels in order to help determining the baseline conditions of biodiversity in a particular area that has been or may be subjected to environmental damage (element of risk). This may help inform the required preventive and remedial measures to be taken.
The implementation of the Directive is supported by a group of ELD government experts of the Member States working together with the Commission. The Group of national experts meets regularly (once or twice per year) and provides advice and expertise to the European Commission in relation to the coordination and cooperation with Member States, the implementation of the ELD Directive and the preparation of legislative proposals and policy initiatives.
The Court of Justice of the European Union provided interpretation of some relevant ELD terms and concepts by its judgments of 9 March 2010 in the preliminary ruling case Rada di Augusta, case C-378/08 and combined cases C-379/08 and C-380/08.
Further information about primary, complementary and compensatory remediation, the resource equivalency method and economic valuation of damage can be found on the REMEDE website.
International Conventions and other instruments in relation to Article 4(2) – (4) and Annexes IV and V ELD:
The International Oil Pollution Compensation Funds (IOPC Funds) provide financial compensation for oil pollution damage that occurs in Member States, resulting from spills of persistent oil from tankers.
International instruments listed in Annex V refer to relevant IAEA International instruments.
Article 4(4) ELD:
The Euratom Treaty establishing the European Atomic Energy Community (Euratom) was initially created to coordinate the Member States' research programmes for the peaceful use of nuclear energy. The Euratom Treaty today helps to pool knowledge, infrastructure, and funding of nuclear energy. It ensures the security of atomic energy supply within the framework of a centralised monitoring system.
Further links to relevant EU environmental legislation under the ELD:
The Birds and Habitats Directives are major reference points for the prevention and remediation of damage to protected species and natural habitats, one of the three categories of environmental damage under the ELD.