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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 decide about remedial action.

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 four 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, through Directive 2013/30/EU on safety of offshore oil and gas operations and amending Directive 2004/35/EC, and through Regulation (EU) 2019/1010 on the alignment of reporting obligations in the field of legislation related to the environment. 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 Reporting Alignment Regulation adapted the reporting requirements to the need to create a better evidence base.

Guidelines on the term ‘environmental damage’

In March 2021, the Commission adopted guidelines that clarify the scope of the term 'environmental damage' in the Directive. These guidelines will help Member States to better assess whether damage to water, land and protected species and natural habitats must be prevented or restored by explaining the scope of each of these categories in detail. They will provide greater legal clarity and harmonisation of its interpretation and application.

ELD Multi-Annual Work Programme 2017 - 2020, 2021 - 2024

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).

The implementation of the MAWP was supported by an external service contract: 'Support in the implementation of the REFIT actions for the Environmental Liability Directive (ELD).

The results of the work carried out within phase I of the ELD Implementation Support Contract in 2017 are available on the CIRCABC website.

The results of the work carried out in phase II of the Support Contract are also available on the CIRCABC website.

The Multi-Annual Rolling Work Programme (MARWP) 2021 – 2024 continues the work on the three main working areas. It has been agreed and was presented in November 2020 at the 7th ELD Stakeholder Conference.

ELD Country Fiches

The ELD country fiches provide an overview on the implementation of the ELD in all Member States. Each country fiche contains information on the national legal and administrative structure for the ELD implementation as well as empirical facts and figures on environmental liability cases.

Financial Security for ELD Liabilities

Following relevant work of IMPEL in 2016 to 2018 on ‘Financial Provision’ https://www.impel.eu/projects/financial-provision-what-works-when/, the Commission launched in 2018 the study ‘Improving financial security in the context of the Environmental Liability Directive’. The project was completed end of May 2020 after one and a half years intensive research of the situation in all Member States and at EU level with regard to the availability of and demand of financial security to cover ELD liabilities.

The study delivers a comprehensive update of the current situation of financial security for ELD liabilities in all Member States, examines the situation in the US as a benchmark, investigates the conditions for making financial security for ELD liabilities more effective and even across the EU, and includes recommendations to improve the situation at EU and Member State level.


Reports, studies, information and training

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: 

Exploratory studies of 2008 and 2009, and a workshop of 10 July 2009, preceded the report.

2014 Commission report

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:

  • the standards of prevention and restoration of environmental damage,
  • the application of the ‘polluter pays’ principle,
  • strict liability across the EU for environmental damage,
  • EU-wide liability for biodiversity damage, and
  • public participation and access to justice for people affected and NGOs.

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. 

2016 Resolution of the European Parliament on the Implementation of the ELD

After more than a year of work on an own initiative report on the implementation of the ELD, the European Parliament adopted on 26 October 2017 the following Resolution.

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.

Austria

Belgium (Federal State, Brussels, Flanders, Walloon Region)

Bulgaria

Croatia

Cyprus

Czech Republic

Denmark

Estonia

Finland

France

Germany

Greece

Hungary

Ireland

Italy

Latvia

Lithuania

Luxembourg

Malta

Netherlands

Poland

Portugal

Romania

Slovakia

Slovenia

Spain

Sweden

United Kingdom
2009 - 2010 - 2011 - 2012

       

ELD Studies

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.

The Commission launched in 2020 a new study on improving the implementation of the ELD and the evidence base(main report, country reports, in-depth country reports). The goals of this project were to broaden the evidence base for the national implementation of the Environmental Liability Directive and to find the key entry points where improving the effectiveness of the implementation might be possible. Researchers in all 27 EU Member States have collected more than 700 electronically available sources of literature, and 190 hard-copy books and articles dealing with the ELD and with related environmental liability issues. They also undertook more than 120 interviews and more than 100 case studies within this project.
They looked for solutions in terms of examining the institutional conditions of implementation of the ELD, the substantive legal tools (definitions, liable persons, strict liability, causal chain, defences) and the procedures (reporting of pollution events, inception of cases, evidence gathering, measures, implementation/enforcement and follow up). They pointed out that further efforts are needed for raising awareness and shaping positive social attitudes in connection with the ELD, as well as in encouraging the participation of the concerned communities and the environmental NGOs.

ELD stakeholder contacts and exchange:

ELD Information

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.

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

Other useful links

The Court of Justice of the European Union provided interpretation of some relevant ELD terms and concepts by its judgments of

Disclaimer:

The Commission is in the process of updating some of the content on this website in the light of the withdrawal of the United Kingdom from the European Union. If the site contains content that does not yet reflect the withdrawal of the United Kingdom, it is unintentional and will be addressed.