(Different language versions of the document are available at the bottom of this page)
The European Commission adopted a White Paper on Environmental Liability on 9 February 2000. The objective of the White Paper is to explore how the polluter pays principle, one of the key environmental principles in the EC Treaty, can best be applied to serve the aims of Community environmental policy. Avoiding environmental damage is the main aim of this policy. The White Paper explores how a Community regime on environmental liability can best be shaped. Having explored different options for Community action, the Commission concludes that the most appropriate option is a Community framework directive on environmental liability. The White Paper responds to a request from the European Parliament for proposals for legislation in this field.
These days, we are confronted with cases of severe damage to the environment resulting from human acts. The recent accident with the Erika oil tanker and the incident a few years ago near the Doñana nature reserve in the South of Spain, are only two examples of cases where human activities have resulted in substantial damage to the environment, involving the suffering and death of hundreds of thousands of birds and other animals.
So far, the Member States of the European Union have established national environmental liability regimes that cover damage to persons and goods, and they have introduced laws to deal with liability for, and clean up of, contaminated sites. However, until now, these national regimes have not really addressed the issue of liability for damage to nature. This is one reason why economic actors have focused on their responsibilities to other people's health or property, but have not tended to consider their responsibilities for damage to the wider environment. This has been seen traditionally as a 'public good' for which society as a whole should be responsible, rather than something the individual actor who actually caused the damage should bear. The introduction of liability for damage to nature, as proposed in the White Paper, is expected to bring about a change of attitude that should result in an increased level of prevention and precaution.
On adoption of the White Paper by the Commission, Environment Commissioner Margot Wallström stated: "We have now laid the foundations for an environmental liability regime for Europe. Legislation in this field will provide common rules to ensure that polluters will effectively be held responsible for environmental damage they cause. This will improve protection of the health of Europeans and our natural environment".
Possible main features of an EC environmental liability regime
The White Paper sets out the structure for a future EC environmental liability regime which aims at implementing the polluter pays principle. It describes the key elements needed for making such a regime effective and practicable.
Since the protection of health is also an important environmental objective, and for reasons of coherence, an EC regime should cover both 'traditional damage' (damage to persons and goods) and environmental damage. The latter type of damage should include both contamination of sites and damage to nature and biological diversity in the Community. Therefore, it is proposed that the liability regime should apply to areas and species covered by the Natura 2000 Network. These protected areas are or have to be designated by the Member States under the Wild Birds Directive of 1979 and the Habitats Directive of 1992. Since many habitats and waterways straddle frontiers between Member States, an EC regime can also provide solutions for transboundary damage.
Like nearly all national environmental liability regimes, the EC regime should be based on strict liability (this means that no fault by the polluter is required), when damage is caused by a hazardous activity. Damage to biodiversity in the protected Natura 2000 areas should also be covered if it is caused by a non-hazardous activity. In this case, however, liability should be fault-based. The liable party should be the operator in control of the activity that caused the damage.
In case of environmental damage, the compensation to be paid by the polluter should be spent on the effective restoration of the damage. Furthermore, for cases concerning environmental damage, public interest groups should have a right to step into the shoes of public authorities, where these are responsible for tackling environmental damage but have not acted. Such groups should also be allowed to take action in urgent cases if there is a need to prevent damage. This is in line with the 1998 Århus Convention on access to information, public participation in decision-making and access to justice, a UN/ECE Convention that has been signed by the Community and all the EU Member States, as well as by other states.
Expected effects on competitiveness
Most OECD countries which are the main trade partners of the EU already have environmental liability legislation of some kind. An EC environmental liability regime will not amount to the adoption by the EU of a unilateral standard of environmental protection. Available evidence on existing environmental liability regimes suggests that industry competitiveness has not been disproportionately affected. Nor have the environmental liability regimes existing in some Member States been associated with significant competitiveness problems.
The following documents are available by clicking the language icons below.
Press release and summary of the White Paper on Environmental Liability:
Full text of the White Paper on Environmental Liability:
(pdf ~280K; except el ~2,500K)