Recent judgments on the application of the Environmental Liability Directive (ELD) in Austria give rise to fears that the application of the Directive will degrade towards insignificance. Austrian courts and authorities apply high requirements on evidential standards. Practice shows a tendency to burden the public with the costs of environmental liability proceedings. These developments seem to be in contradiction with the ELD and counteract the European Commission’s current efforts to improve the effectiveness of ELD via extensive application of the Environmental Liability Law in all EU Member States.
6 years after the ELD entered into force - in 2013 - Austria reported zero cases of environmental damages. At the same time Member States like Hungary and Poland reported hundreds of damages to water, land and biodiversity which have been prevented and/or remediated under the ELD transposing legislation.
The question arises: Do potentially hazardous activities – like the fabrication of chemicals or pesticides or the transport of dangerous substances - never cause environmental harms in Austria, whilst other EU Member States seem to be regularly confronted with environmental damages? Studies show that this might not be the case. Unlike in the area of nature and soil protection, Austria has a ELD-similar pre-existing and well-practiced national liability regime for water damages with a very low significance threshold. This fact feeds the unproven assumption that authorities apply the system they know instead of the new and alien system provided for by the ELD.
But even if this is the case some of you may ask themselves: So what? If the damages are remediated, what does it matter on which law the authority bases its measures? In my view there are two reasons for being picky in this:
- First, the ELD is a new system based on the ‘polluter pays principle” which obliges operators of potentially hazardous activities to take full responsibility for the prevention (!) and proper remediation of environmental damages providing for quite far reaching remediation measures, like compensation for interim losses of natural resources. Furthermore, it contains a mechanism allowing the public to act as “watch dog” and report threats and damages to the environment to public authorities. The point is that these elements cannot be found in most of the pre-existing national liability regimes – like the liability provisions in the Austrian Water Act.
- Second, there is a simple legal argument for applying the ELD to environmental damages. The executive powers of our countries (like the competent authorities in environmental damage cases) are bound to the principle of legality. This means they are only allowed to act based on the law. They have to find the applicable law(s) and base their administrative action on them. Authorities cannot chose the legal basis they are more familiar with, they are obliged to assess which and whether more laws have to be applied to a situation.
Recent decisions on the application of the ELD in Austria give reason to be worried:
In a recent environmental damage case, the authority did not assess whether the Austrian ELD transposing law is applicable to an environmental damage situation. Consequently an environmental NGO filed a request for action in order to force an application of the more far going measures under the ELD transposing law. The outcome was that the NGO got to bear part of the procedural costs and was denied their request. The current decisions and opinion on the taxation of costs in environmental liability matters indicate that the Austrian courts see the public as some kind of private party trying to evoke its personal rights via the submission of a request for action instead of seeing the request for action (and the requester) as a supporter to the public hand providing it with hints and evidence to potential environmental damage cases (= acting in public interest).
It is to be feared that the request for action under the Austrian environmental liability legislation is dead due to the fact that NGOs and individuals cannot be sure anymore whether they will be obliged to bear cash expenses (including the costs of external expert opinions – which can be several thousand Euros) in case the authority rejects the request for action. It has to be assessed whether this practice would be compliant with Article 9 para 4 and 5 of the Aarhus Convention. Parties to the Convention have to ensure that claimants can challenge decisions affecting the environment in a way that is fair, equitable, timely and not prohibitively expensive.
Additionally the requirements applied on evidential standards are hard to fulfil and if continued to be applied in practice they will considerably diminish – if not to say, undermine - the application of the ELD in Austria. We are facing the situation, that the court requires a proof beyond doubt (like in criminal matters) for the establishment of a causal link between potentially hazardous activity and the environmental damage (the polluted groundwater etc.), which may be hard to deliver in any case where slow and gradual emissions from installations cause significant damage on water and/or groundwater sources or even protected fauna and flora.
The non-application of ELD rules undermines a high level of environmental protection in Austria and that the ELD regime is applied equally all over the EU. National rules usually do not focus on a prevention of damages and do not contain far reaching remediation measures as the ELD provides for. The de-facto exclusion of NGOs to report on environmental damages additionally decreases the effectiveness of environmental protection, in keeping with the motto 'Four eyes see more than two'! These developments do not only clearly undermine the effectiveness of the ELD but also the aim towards the preservation, protection and improvement of the quality of the European environment.
This article was prepared by Birgit Schmidhuber, Environmental Lawyer at Justice & Environment and Legal Coordinator at ÖKOBÜRO - Alliance of the Austrian Environmental Movement.