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The polluter-pays principle and environmental liability

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The polluter-pays principle and environmental liability

 

SUMMARY OF:

Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage

WHAT IS THE AIM OF THE DIRECTIVE?

It lays down rules based on the polluter-pays principle. This means that a company causing environmental damage is liable for it and must take the necessary preventive or remedial action and bear all the related costs.

KEY POINTS

The directive defines environmental damage as:

The definition includes the discharge of pollutants into the air (as this affects ground or water conditions), inland surface water and groundwater, and any deliberate release into the environment of genetically modified organisms as defined by Directive 2001/18/EC.

Scope

There are 2 scenarios where liability occurs:

  • 1.

    Environmental damage caused by any of the activities listed in Annex III of the directive, such as:

    • energy industries
    • production and processing of metals
    • mineral industries
    • chemical industries
    • waste management
    • large-scale pulp, paper and board production, textile dyeing and tanneries
    • large-scale meat, dairy and food production.
  • 2.

    Environmental damage to protected species and natural habitats (or its imminent threat) caused by occupational activities other than those listed in Annex III, and if the company is at fault or negligent.

Exceptions

Exceptions include armed conflict, natural disaster, liability for types of environmental damage covered by international conventions (e.g. maritime pollution), and nuclear risks, which are covered by the Euratom Treaty.

Preventive and remedial actions

  • If there is an imminent threat of damage occurring, the company must, without delay, take the necessary preventive measures.
  • If damage has already occurred the company must immediately inform the authorities and take steps to manage the situation to prevent further environmental damage and threats to human health, and take appropriate remedial action.

The company must pay for preventiveactions and remedialactions , except in certain situations, e.g. if the damage was caused by a third party despite the appropriate safety measures, or resulted from compliance with an official instruction.

Implementation

  • A 2016 implementation report looked at the experience of implementing the directive between 2007 and 2013, including an evaluation carried out under REFIT, the European Commission Regulatory Fitness and Performance programme.
  • The report confirms that while the directive has not yet achieved its full potential, it has been effective in remedying environmental damage and incentivising prevention.

FROM WHEN DOES IT APPLY?

It has applied since 30 April 2004. EU countries had to incorporate it into national law by 30 April 2007.

BACKGROUND

For more information, see Environmental Liability on the European Commission’s website.

MAIN DOCUMENT

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 (OJ L 143, 30.4.2004, pp. 56-75)

Successive amendments to Directive 2004/35/EC have been incorporated into the basic text. This consolidated version is for information only

RELATED DOCUMENTS

Report from the Commission to the Council and the European Parliament: 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) 204 final, 14.4.2016)

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,14.4.2016)

last update 05.10.2016

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