European Commission: Environment Directorate General Slide: 1 EC Environmental Liability Directive...

European Commission: Environment Directorate General Slide: 1

EC Environmental Liability EC Environmental Liability Directive (ELD)Directive (ELD)

Training course in European and International Training course in European and International Environmental Law, 6 July 2007, MontréalEnvironmental Law, 6 July 2007, Montréal

Dr. Nicola Notaro, Legal AdviserDr. Nicola Notaro, Legal AdviserEuropean Commission, DG Environment E2European Commission, DG Environment E2


Definitions IDefinitions I

"damage" means a measurable adverse "damage" means a measurable adverse change in a natural resource or change in a natural resource or measurable impairment of a natural measurable impairment of a natural resource service which may occur directly resource service which may occur directly or indirectlyor indirectly


Definitions IIDefinitions II

"environmental damage" means: "environmental damage" means:

(a)(a) damage to damage to protected species and natural habitatsprotected species and natural habitats= any damage that = any damage that has significant adverse effects on reaching or maintaining the has significant adverse effects on reaching or maintaining the favourable conservation statusfavourable conservation status of such habitats or species, assessed of such habitats or species, assessed with reference to the with reference to the baseline conditionbaseline condition, taking account of the , taking account of the criteria set out in Annex Icriteria set out in Annex I

(b) (b) water damage=water damage= any damage that significantly adversely affects the any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological ecological, chemical and/or quantitative status and/or ecological potential potential

(c) (c) land damageland damage= any land contamination that creates a significant risk = any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organismspreparations, organisms or micro-organisms


The scopeThe scope

Environmental damage or the Environmental damage or the imminent imminent threatthreat of it (activities in Annex III) of it (activities in Annex III)

Damage to protected species and natural Damage to protected species and natural habitats (activities other than Annex III) habitats (activities other than Annex III) when the operator is at fault/negligentwhen the operator is at fault/negligent


The exceptionsThe exceptions II

Armed conflict, hostilities, civil war, insurrectionArmed conflict, hostilities, civil war, insurrection Natural phenomenon of exceptional, inevitable Natural phenomenon of exceptional, inevitable

and irresistible characterand irresistible character Annex IV: Oil pollution Conventions, Carriage Annex IV: Oil pollution Conventions, Carriage

of Hazardous/Noxious substances Conventions, of Hazardous/Noxious substances Conventions, and Carriage of Dangerous goods Conventionsand Carriage of Dangerous goods Conventions

Annex V: Nuclear liability ConventionsAnnex V: Nuclear liability Conventions


The exceptionsThe exceptions IIII

Diffuse pollution only covered if causal Diffuse pollution only covered if causal link with activity of individual operatorslink with activity of individual operators

Activities whose main purpose is national Activities whose main purpose is national defence, international security, protection defence, international security, protection from natural disasterfrom natural disaster


Prevention before damagePrevention before damage

OperatorsOperators must without delay: must without delay:1.1. take preventive measures and take preventive measures and 2.2. inform the Competent Authorities (CA)inform the Competent Authorities (CA) CA may:CA may:1.1. require info,require info,2.2. require the operator to take measures, require the operator to take measures, 3.3. give instructions and give instructions and 4.4. take the preventive measures when the take the preventive measures when the

operator has not acted, is not known or is operator has not acted, is not known or is exemptedexempted


Remediation after damageRemediation after damage

Operator must without delay:Operator must without delay:1.1. inform the CA inform the CA 2.2. take all steps to control/contain/remove/manage damage factors take all steps to control/contain/remove/manage damage factors

andand3.3. take the necessary remedial measurestake the necessary remedial measures CA may:CA may:1.1. require more info, require more info, 2.2. require the operator to take – or give him instructions on - all require the operator to take – or give him instructions on - all

steps to control/contain/remove/manage damage factors andsteps to control/contain/remove/manage damage factors and3.3. require the operator to take the necessary remedial measures or require the operator to take the necessary remedial measures or

give instructions on such measuresgive instructions on such measures4.4. take the necessary remedial measures when the operator has not take the necessary remedial measures when the operator has not

acted, is not known or is exempted, as a means of last resortacted, is not known or is exempted, as a means of last resort


Choosing remedial measuresChoosing remedial measures

Operators to identify potential measures and Operators to identify potential measures and submit them to CA for approvalsubmit them to CA for approval

CA to take a decision in accordance with Annex CA to take a decision in accordance with Annex IIII

Possibility of prioritising on the basis of the Possibility of prioritising on the basis of the nature, extent and gravity of damage taking into nature, extent and gravity of damage taking into account risks to human healthaccount risks to human health

Need to take into account observations from Need to take into account observations from interested/affected personsinterested/affected persons


Allocation of costsAllocation of costs

Operators must pay for preventive and Operators must pay for preventive and remedial actionremedial action

CA to recover from the operator the costs CA to recover from the operator the costs incurredincurred

BUT 2 defences: Operators do not payBUT 2 defences: Operators do not pay1.1. for damage caused by third parties despite for damage caused by third parties despite

appropriate safety measures orappropriate safety measures or2.2. For damage that resulted from compliance For damage that resulted from compliance

with a compulsory order from a public with a compulsory order from a public authorityauthority


Additional defences or mitigation Additional defences or mitigation factorsfactors

MS may allow operators not to bear the costs MS may allow operators not to bear the costs of remedial action (if they are not at fault), of remedial action (if they are not at fault), when:when:

1.1. The emission/event/activity was authorised orThe emission/event/activity was authorised or

2.2. Was not considered likely to cause damage Was not considered likely to cause damage according to the ‘state of the art’ at the time it according to the ‘state of the art’ at the time it took placetook place

For multiple party causation, national rules For multiple party causation, national rules applyapply


Relative time limitRelative time limit

The CA can initiate proceedings to The CA can initiate proceedings to recover costs within 5 years from when recover costs within 5 years from when measures have been completed or the measures have been completed or the liable operator or third party has been liable operator or third party has been identified, whichever is lateridentified, whichever is later


The role of Competent AuthoritiesThe role of Competent Authorities

MS must designate CA and confer the MS must designate CA and confer the necessary powers to themnecessary powers to them

CA establish which operator caused the CA establish which operator caused the damage, assess the significance of damage damage, assess the significance of damage and determine which measures are to be and determine which measures are to be takentaken

Decisions of CA must be motivated and Decisions of CA must be motivated and notified to the operator together with legal notified to the operator together with legal remedies and time limitsremedies and time limits


The role of civil society IThe role of civil society I

Natural or legal persons:Natural or legal persons:(a) affected or likely to be affected by environmental (a) affected or likely to be affected by environmental

damage ordamage or(b) having a (b) having a sufficient interestsufficient interest in environmental decision in environmental decision

making relating to the damage or, alternatively,making relating to the damage or, alternatively,(c) alleging the (c) alleging the impairment of a rightimpairment of a right,,

are entitled to submit observations to the CA and to are entitled to submit observations to the CA and to request the CA to take action on the basis of relevant request the CA to take action on the basis of relevant info and data. info and data.

‘‘Green NGOs’ fall under b) and c)Green NGOs’ fall under b) and c)


The role of civil society IIThe role of civil society II

CA must consider ‘plausible’ requests CA must consider ‘plausible’ requests concerning damage and inform the concerning damage and inform the relevant operator asking for his/her viewsrelevant operator asking for his/her views

CA must inform those who lodged a CA must inform those who lodged a request of their decision to accede or request of their decision to accede or refuse and must give reasonsrefuse and must give reasons


The role of civil society IIIThe role of civil society III

Decisions, acts or failures to act of Decisions, acts or failures to act of competent authorities are subject to a competent authorities are subject to a legality review by a Court or other legality review by a Court or other independent body and can be challenged independent body and can be challenged by the natural and legal person mentioned by the natural and legal person mentioned aboveabove

……without prejudice to national law on without prejudice to national law on access to justiceaccess to justice


Financial securityFinancial security

MS to encourage the development of MS to encourage the development of financial security instruments and financial security instruments and marketsmarkets

By 30.04.2010, the Commission to report By 30.04.2010, the Commission to report on the effectiveness of the ELD, including on the effectiveness of the ELD, including financial security aspects and, if financial security aspects and, if appropriate, to propose mandatory appropriate, to propose mandatory financial securityfinancial security


Member States and national lawsMember States and national laws

MS duty to cooperate on transboundary MS duty to cooperate on transboundary damage and exchange infodamage and exchange info

Stricter measures at national level are Stricter measures at national level are allowed and so is the prohibition of double allowed and so is the prohibition of double recovery of costsrecovery of costs


Absolute time limitsAbsolute time limits

No retroactivity: only damage caused by No retroactivity: only damage caused by an emission, event, incident that occurred an emission, event, incident that occurred after 30.04.2007 and only if derived from after 30.04.2007 and only if derived from an activity that took place or finished after an activity that took place or finished after that datethat date

30 years from the emission, event, incident 30 years from the emission, event, incident that caused the damagethat caused the damage


Reporting and implementationReporting and implementation

MS to implement by 30.04.2007MS to implement by 30.04.2007 MS to report to the Commission on experience MS to report to the Commission on experience

gained by 30.04.2013 (including info in Annex gained by 30.04.2013 (including info in Annex VI)VI)

Commission to report to Council and EP by Commission to report to Council and EP by 30.04.2014 including proposals for amendment30.04.2014 including proposals for amendment

Special focus in the Commission report on Special focus in the Commission report on exemptionsexemptions


More info on:More info on:

http://ec.europa.eu/environment/liability/http://ec.europa.eu/environment/liability/index.htmindex.htm

Thank you Thank you

European Commission: Environment Directorate General Slide: 1 EC Environmental Liability Directive...

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