Environmental Liability

Introduction

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 twice through Directive 2006/21/EC on the management of waste from extractive industries and through Directive 2009/31/EC on the geological storage of carbon dioxide and amending several directives. 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), is supposed to be adopted in May 2013.

Reports, studies, information and training

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.

Report (correction)
Exploratory studies of 2008 and 2009, and workshop of 10 July 2009, preceding the report

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:

1st Stakeholder and Practitioner Workshop of 8 November 2011
Study on ELD implementation
ELD training material
Information sheet and brochure
Feasibility study regarding a fund

Member States reported to the Commission on the experience gained in the application of the Directive by 30 April 2013. Based on the reports, the Commission will submit a report to the European Parliamanet and to the Council before 30 April 2014. This report will include a review of the Directive.

ELD government experts group

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.

National legislation, guidance and websites

Member State's national transposing legislation in English is available here. Please note that the legislation by informal English translation is not yet available for all Member States
National ELD websites
National ELD guidance documents

Other useful links

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.

Relevant stakeholder groups for the Environmental Liability Directive: Insurance Europe, Ad-Hoc Industry Natural Resource Management Group, Justice and Environment.