Environmental Liability
The Prevention principle and polluter pays principle (PPP) are generally recognized basic principles in environmental policy. Those principles are subject to ECJ judgments and court decisions on national level. Furthermore, the principles have been implemented in many sectoral European Directives and policies. Examples include the the EIA-Directive (85/337/EEC), ambient air quality directives (96/62/EC, 1999/30/EC, 200/69/EC, 2002/3/EC and 2004/107/EC), waste directives as well as official policy documents like thematic strategies (TS Air, COM(2005) 446 final, and TS waste, COM(2005)504 final).
It took some time to develop a horizontal European directive on environmental liability. As early as in 1989 the European Commission made a proposal for a waste-liability Directive. Due to political pressure the proposal had to be withdrawn. An ambitious Green Paper and a disappointing white paper followed in the 1990s. Finally the Environmental Liability Directive (Directive 2004/35/EC) with regard to the prevention and remedying of environmental damage (ELD) was issued in April 2004. The Directive should be transposed into the legal systems of Member States by April 30, 2007.
The negotiation process of the Directive led to compromises. Issues like the question of faultbased or strict liability, permit and state of the art defense are now at the discretion of the Member States. As the Directive is based on Article 175 of the EC Treaty, Member states have the choice to implement the Directive in a more stringent way than the minimum the Directive requires. The Directive could become an effective tool of environmental protection in Member States given proper transposition and implementation of its provisions.
Environmental law NGOs need to closely examine the transposition of the Directive in relevant Member States. In July 2006, Justice and Environment (J&E) made a submission to the Austrian and Czech Ministries of Environment to ensure proper implementation of ELD. J&E member organizations have since followed the transposition process on the relevant national level.
Key findings
There are major differences among states in transposition of the Directive and most of these differences come from the Directive itself. The Directive allows Member States to set up particular issues differently from the provisions of the Directive (e.g. defenses, mandatory financial security, nationally protected species etc.). These differences are so substantial that can affect position of operators (entrepreneurs) on a market and public concerned in enforcement of basic principles of the Directive. Issues such as mandatory / voluntarily financial security and approach to application of defenses can affect decision of entrepreneurs where to invest to have the lowest costs.
J&E found some cases of non conformities of transposition measures with provisions of the Directive. Some are substantial and these provisions will need amending. The most important issues are
- Member states were obliged to bring their national legal systems in compliance with the Directive by 30 April 2007. Four out of five states subjected to the analysis has not fulfilled this obligation. In November 2007, still only Hungarian liability act is in force.
- provisions concerning public participation are very restrictive in Austria. The definition of “public concerned” does not cover those who are “likely to be affected by environmental damageâ€? and those “having a sufficient interestâ€?. Moreover, persons affected by a damage or imminent threat of damage are only entitled to send a notification to the competent authority to inform the authority on the case and ask what the authority plans to do and has done so far. There is no possibility to get involved into the actual remedial procedure. The Austrian legislator divides a “request for action procedureâ€? from “remedial procedureâ€?. By taking legal action (request for action) directly affected persons gain no status as a party (standing) in the remedial procedure.
- provisions concerning public participation are very restrictive in Slovenia, where the definition of public concerned do not include “persons who are likely to be affected by damage�.
- Slovenian law defines an operator as “legal or natural person directly or indirectly, exclusively or simultaneously, polluting the environment, using natural assets or causing any environmental risk or environmental accident�. The definition is narrower, unclear circular; we believe it is in non conformity with the Directive.
