1. ENVIRONMENTAL LIABILITY DIRECTIVE(ELD): BRIEF OVERVIEW
Dr. Kleoniki Pouikli
Course Director in Environmental Law – ERA Academy of European Law
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2. Content
Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (ELD)
Background & adoption
Transposition
Key provisions
Status of implementation
Fragmentation between Member States
Difficulties
National Reports and REFIT
Multi-annual work programme
European Parliament Resolution 1
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3. BACKGROUND & ADOPTION (I)
European Commission– Green Paper on Remedying Environmental Damage (1993)
Council of Europe – Lugano Convention (1993)
Erika oil spill (1999)
European Commission – White Paper on Environmental Liability (2000)
Towards ELD (Proposed Directive)
Proposal for a Directive on environmental liability with regard to the prevention and restoration of environmental damage submitted by European Commission [2002]
Legislative process resulted in revision to the proposed Directive and the introduction of optional provision [ ]
Strong oppositions to proposed Directive [ ]
Union of Industrial & Employers Confederations of Europe (UNICE; subsequently Business Europe)
European Association of Chambers of Commerce & Industry, European Association of Craft, Small & Medium-sized Enterprises, Business Europe, European Federation of Insurance Intermediaries, & Comité Européen des Assurances (CEA; subsequently Insurance Europe) 2
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4. BACKGROUND & ADOPTION (II)
First EU legislation that specifically states that it implements the polluter pays principle in respect of accidental environmental damage
Horizontal character; linking ELD with other EU legislation, in particular the Habitats Directive, the Birds Directive, the Water Framework Directive
Minimum harmonisation; establishing minimum standards consistent with a high level of protection of the environment
Prospective only; not retrospective
Aims
To ‘induce operators to adopt measures and develop practices to minimise the risks of environmental damage’
To prevent and remediate environmental damage so as to lead to a reduction in the number of future contaminated sites in the EU
To assist in reducing the loss of biodiversity in the EU by establishing liability for damage to species and natural habitats protected under the Birds and Habitats Directives 3
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5. TRANSPOSITION
30 April 2007: deadline for transposition into domestic law of MS
Transposition by Hungary, Italy, Latvia, Lithuania
European Commission commenced infraction proceedings against other MS
2008: Court of Justice of the European Union (CJEU) ruled against Austria, Finland, France, Greece, Luxembourg, Slovenia, UK for failure to transpose the ELD
30 June 2010: transposed by all MS
Many MS used date of transposition as effective date for implementation of ELD
August 2013: Italy amended transposing legislation to comply fully 4
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6. KEY PROVISIONS / LIABILITY REGIME
MAIN PROVISION: ELD imposes liability on an operator for preventing and remediating an imminent threat of, or actual, environmental damage [Art. 3 (1) ELD]
Strict liability for activities under EU legislation [Art. 2 (1) and 3 (1) ELD]
Applies to:
Land Damage
Threshold: “any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms”
Water Damage
Threshold: “any damage that significantly adversely affects: (i) the ecological, chemical or quantitative status or the ecological potential, as defined in [WFD], of the waters concerned …; or (ii) the environmental status of the marine waters concerned, as defined in [the MSFD] in so far as particular aspects of the environmental status of the marine environment are not already addressed through [the WFD]”
Biodiversity Damage
Threshold: “any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of [protected] habitats or species”
Fault-based liability for non-annex III activities
Applies only to biodiversity damage 5
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7. KEY PROVISIONS / LIABILITY REGIME
ANNEX III ACTIVITIES UNDER 12 CATEGORIES OF EU LEGISLATION INCLUDING:
Waste management operations
Discharges into surface and ground water
Water abstraction and impoundment
Dangerous substances, pesticides and other plant protection products and biocidal products
Industrial Emissions Directive
Seveso III Directive
Genetically Modified Organisms
Transport of dangerous substances
Subsequent addition of two further categories of EU legislation to Annex III activities
Management of extractive waste (Mining Waste Directive (2006/21/EC))
Operation of storage sites for carbon dioxide (Geological storage of carbon dioxide Directive (2009/31/EC)) 6
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8. KEY PROVISIONS / MAIN OBLIGATIONS
IMMINENT THREAT OF ENVIRONMENTAL DAMAGE [Art. 5 ELD]
Operator must:
carry out preventive measures ‘without delay’
notify competent authority ‘without delay’ if measures fail to dispel threat of damage
OCCURRENCE OF ENVIRONMENTAL DAMAGE [Art. 6 ELD]
Notify competent authority ‘without delay’
-‘immediately’ carry out emergency remedial actions
-carry out remedial measures agreed by competent authority 7
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9. KEY PROVISIONS / REMEDIATION
LAND DAMAGE [Annex II, 2 ELD]
Remove, control, contain or diminish the significant risk that adversely affects human health taking into account the current or approved future use of the land at the time of the damage
WATER AND BIODIVERSITY DAMAGE [Annex II, 1 ELD]
Primary remediation and restoration to baseline condition
Complementary remediation (if damaged site cannot be fully restored, restoration of alternative site in addition to partial remediation of damaged site)
Compensatory remediation (interim losses between time of occurrence of environmental damage and its full remediation); providing, enhancing or improving same or new natural resources at damaged and/or alternative sites 8
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10. KEY PROVISIONS / EXCEPTIONS & DEFENCES
EXCEPTIONS – ARTICLE 4 ELD
Act of armed conflict, hostilities, civil war or insurrection (includes terrorism)
Natural phenomenon of exceptional, inevitable and irresistible character
Nuclear, marine oil and transportation of dangerous goods conventions
Diffuse pollution
Activities the main purpose of which is to serve national defence or international security
Activities the sole purpose of which is to protect from natural disasters
DEFENCES – ARTICLE 8 (3) & (4) ELD
Mandatory defences
Intentional act of third party if safety measures are in place
Compliance with compulsory order
Optional defences
Compliance with permit if operator is not negligent
State-of-art if operator is not negligent 9
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11. STATUS OF IMPLEMENTATION
30 April 2013: deadline for MS reports to European Commission on ELD implementation
No ELD incidents:
Austria, Cyprus, Czech Republic, Denmark, France, Ireland, Luxembourg, Slovakia, Slovenia
Between 1 and 10 incidents:
Belgium, Bulgaria, Estonia, Finland, Lithuania, Malta, Netherlands, Portugal, Romania, Sweden
Between 10 and 20 incidents
Italy, Latvia, Portugal, Spain, UK (Italy reported 5,000 potential notified incidents, of which they reported 1,000, and analysed 17, incidents)
Between 50 and 60 incidents
Greece, Germany
Poland
506 incidents
Hungary
563 incidents 10
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12. FRAGMENTATION BETWEEN MEMBER STATES (I)
MANDATORY AND OPTIONAL DEFENCES
Permit defence adopted (17 MS)
Belgium (regional level), Croatia, Cyprus, Czech Republic, Denmark, Estonia (except GMOs), Finland (limited), Greece, Italy, Latvia (except GMOs), Lithuania, Malta, Netherlands (limited), Portugal, Slovakia, Spain, UK (except GMOs in Wales)
State-of-the-art defence adopted (15 MS)
Belgium (regional level), Croatia, Cyprus, Czech Republic, Estonia (except GMOs), France, Greece, Italy, Latvia (except GMOs), Malta, Netherlands (limited), Portugal, Slovakia, Spain, UK (except GMOs in Wales)
JOINT AND SEVERAL vs PROPORTIONAL LIABILITY
Proportional liability adopted (modified liability in some MS)
Denmark, Finland, France, Italy, Slovakia
Joint and several liability adopted
All other MS 11
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13. FRAGMENTATION BETWEEN MEMBER STATES (II)
SCOPE OF BIODIVERSITY DAMAGE
Extension of biodiversity damage to nationally and/or regionally sites
14 MS in part or all of their territory:
Austria, Belgium, Cyprus, Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania, Poland, Portugal, Spain, Sweden, UK
MANDATORY FINANCIAL SECURITY
Introduction of, or stated intention to introduce, mandatory financial security
Bulgaria, Czech Republic, Greece, Hungary, Portugal, Romania, Slovakia, Spain
SCOPE OF THE ACTIVITIES COVERED BY ELD
Addition of further activities to annex III
Belgium, Denmark, Finland, Greece, Hungary, Latvia, Lithuania, Netherlands, Sweden 12
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14. DIFFICULTIES OF ELD
Difficult to identify current & transposed Annex III legislation and to determine whether an activity is covered by it
New Industrial Emissions Directive
Difficult to determine which type of environmental damage has occurred
Groundwater pollution in contaminated soil
Wetland
Difficult to interpret and implement ELD in conjunction with the pre-existing domestic law
Nearly all MS already had legislation to remediate land contamination
Most MS had legislation to remediate water pollution
Some MS had legislation to restore biodiversity
Difficult to assess when the ELD provisions are more stringent that MS law
Is the ELD more stringent when the pre-existing law in most MS
Does not have permit or state-of-the art defences?
Imposes strict liability for remedying biodiversity damage versus negligence under the ELD for non-Annex III activities? 13
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15. REPORTS AND REFIT
30 April 2014: deadline for European Commission to submit report to European Parliament and Council, including appropriate proposals for amendment of the ELD
Postponed due to delays in MS reporting and evaluation and changes at EU political level
Review and report subsequently combined with review of the ELD under the Regulatory Fitness and Performance Programme (REFIT)
14 April 2016:
Report from the Commission to the Council and the European Parliament under Article 18(2) of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (COM/2016/0204 final)
REFIT evaluation is annexed as:
Commission Staff Working Document REFIT Evaluation of the Environmental Liability Directive Accompanying the document Report from the Commission to the European Parliament and to the Council pursuant to Article 18(2) of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (SWD(2016) 121 final) 14
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16. REPORTS AND REFIT / CONCLUSIONS
OVERALL CONCLUSIONS
Transposition & implementation of the ELD has not resulted in a level playing field across the EU
There was insufficient information adequately to carry out REFIT review
Available information indicated, among other things, that some MS have continued to implement national laws instead of the ELD transposing legislation
CHALLENGES
Low availability of data on ELD cases
Low awareness of the Directive by main stakeholders and practitioners
Ambiguities around key concepts and definitions, such as the “significance threshold”, “preventive action”, “favourable conservation status”
Exceptions and defences to the scope of environmental damage and strict liability, which may reduce effectiveness and efficiency accordingly
Insolvency of operators in cases of costly environmental remediation 15
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17. REPORTS AND REFIT / PROPOSALS
MULTI-ANNUAL ROLLING WORK PROGRAMME TO MEMBER STATES’ EXPERTS AND STAKEHOLDERS
Improve the evidence base
Align national solutions
ENHANCEMENT OF ADMINISTRATIVE SUPPORT MEASURES
Guidance or interpretative notices on key issues (“significance”)
Training programmes
Helpdesks for practitioners (covering competent authorities, operators, loss adjusters, financial security providers, affected individuals, NGOs, etc.) providing information, assistance and assessment support for risk and damage evaluations’
MEMBER STATES SHOULD:
Exchange administrative experiences & best practices
Record data on ELD incidents and publish ELD registers
Support implementation efforts with proactive initiatives (such as guidance documents, training, electronic tools for risk analysis, baseline setting, financial security models etc.)
Review the interpretation of ELD key provisions 16
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18. MULTI-ANNUAL WORK PROGRAMME
February 2017: European Commission finalised the Multi-Annual Work Programme 2017 – 2020
Three main pillars
Improve the evidence base for the evaluation of the ELD
Support the implementation of the ELD
Promote the availability of financial security
Voluntary insurance
Insolvency risk
Mandatory financial security and/or fund
: Main tasks
Build an assessment framework and an ELD information system
Capacity building including:
Preparation of a common understanding document of ELD key terms and concepts
Revise the existing ELD training programme
Develop an IT concept for risk and damage assessment 17
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19. EUROPEAN PARLIAMENT
26 October 2017: Committee on Environment, Public Health and Food Safety and Committee on Legal Affairs  Resolution ‘to improve harmonisation of the ELD’ 
Set out in detail the concept of the ‘significance threshold’
Provide a clear & coherent interpretation of the geographical scope of the ELD for biodiversity damage
Set out rules to distinguish between cases to which the ELD applies and cases to which more stringent domestic law applies
Introduce ‘mandatory financial security, e.g. a mandatory environmental liability insurance for operators’
Consider ‘the possibility of establishing a European fund for the protection of the environment from damage caused by industrial activity governed by the ELD, without undermining the polluter-pays principle
Make ‘public all cases of proven liability as well as the details of penalties imposed in order to make the true cost of environmental damage transparent to all’
Establish ‘a register for operators who engage in dangerous activities and a financial monitoring scheme to ensure that operators are solvent’ 18
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20. Thank you for your attention!
For more details: 19
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