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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.

Reports and evaluations

Article 18(2) of the ELD requires the Commission to carry out an evaluation before 30 April 2023 and every five years thereafter.

2023 Commission Evaluation

This evaluation is included in the EU Action Plan: ‘Towards a Zero Pollution for Air, Water and Soil’ as an action to improve compliance by all relevant national authorities with EU pollution prevention laws.

The scope and objectives of the evaluation are explained in the call for evidence published in November 2022.

The evaluation process should take into account:

  • information from Member States (see below 2022 Member States’ Reports)
  • the open public consultation and numerous other stakeholder consultation activities
  • the European Parliament resolution of 20 May 2021 on the liability of companies for environmental damage 
  • the European Court of Auditors Special Report 12/2021 of 5 July 2021: ‘The Polluter Pays Principle: Inconsistent application across EU environmental policies and actions’
  • the findings of the 2016 evaluation of the Directive

The evaluation process is also assisted by a study being prepared by external experts.

 

2022 Member States’ Reports

As required by the ELD, the evaluation must be based on information from Member States. As set out in Annex VI of the Directive, this should include data concerning cases of environmental damage falling under the Directive, as well as any other relevant information on their experience gained in implementing the ELD which Member States provide. The submission deadline for Member States’ reports was 30 April 2022. The reports will also be published.

 

For earlier Commission and Member States reports see:

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 basefor evaluation and decision-making for the Commission, Member States, stakeholders and practitioners (assessment framework and ELD registry),
  2. Supporting the implementationthrough 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 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.

Materials developed as part of the MAWPs can be consulted under the tab dedicated to Studies.

ELD brochure



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.

National legislation, guidance and websites

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.