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Environmental liability

Environmental liability applies to environmental damage and the risk of damage resulting from commercial activities once it is possible to establish a causal link between the damage and the activity in question. Environmental damage may be direct or indirect damage caused to the aquatic environment, flora and fauna and natural habitats protected by the Natura 2000 network, as well as direct or indirect contamination of the soil, which could lead to a serious risk to human health.

Environmental liability is an application of the ‘polluter pays’  principle as set out in Article 191(2) of the Treaty on the Functioning of the European Union. Arrangements for applying it are set out in Directive 2004/35/EC.

Two systems of liability have been created:

  1. A system with no fault to be proven: this applies to dangerous or potentially dangerous commercial activities listed in EU law. Here, the operator may be held liable even if he has committed no fault.
  2. A system where evidence of a fault or negligence must be presented: this applies to all other commercial activities where species and natural habitats protected under EU law have been damaged or are at imminent risk of damage. The operator is only liable if he has committed a fault or has been negligent.