Brussels, 9 February 2000
Commission adopts White Paper on Environmental Liability
The European Commission has today adopted a White Paper on Environmental Liability. The objective of the Paper is to explore how the polluter pays principle one of the key environmental principles in the EC Treaty can best be applied to serve the aims of Community environmental policy. Avoiding environmental damage is the main aim of this policy. The White Paper explores how a Community regime on environmental liability can best be shaped. Having explored different options for Community action, the Commission concludes that the most appropriate option is a Community framework directive on Environmental Liability. The White Paper responds to a request from the European Parliament for proposals for legislation in this field.
These days, we are confronted with cases of severe damage to the environment resulting from human acts. The recent accident with the Erika oil tanker and the incident, a few years ago, near the Doñana nature reserve in the South of Spain, are only two examples of cases where human activities have resulted in substantial damage to the environment, involving the suffering and death of hundreds of thousands of birds and other animals.
So far, the Member States of the European Union have established national environmental liability regimes that cover damage to persons and goods, and they have introduced laws to deal with liability for, and clean up of, contaminated sites. However, until now, these national regimes have not really addressed the issue of liability for damage to nature. This is one reason why economic actors have focused on their responsibilities to other people's health or property, but have not tended to consider their responsibilities for damage to the wider environment. This has traditionally been seen as a 'public good' for which society as a whole should be responsible, rather than something the individual actor who actually caused the damage should bear. The introduction of liability for damage to nature as proposed in the White Paper, is expected to bring about a change of attitude that should result in an increased level of prevention and precaution.
On adoption of the White Paper by the Commission Environment Commissioner Margot Wallström stated: "We have now laid the foundations for an environmental liability regime for Europe. Legislation in this field will provide common rules to ensure that polluters will effectively be held responsible for environmental damage they cause. This will improve protection of the health of Europeans and our natural environment".
Possible main features of an EC environmental liability regime
The White Paper sets out the structure for a future EC environmental liability regime that aims at implementing the polluter pays principle. It describes the key elements needed for making such a regime effective and practicable.
Since the protection of health is also an important environmental objective, and for reasons of coherence, an EC regime should cover both 'traditional damage' (damage to persons and goods) and environmental damage. The latter type of damage should include both contamination of sites and damage to nature and biological diversity in the Community. Therefore, it is proposed that the liability regime should apply to areas and species covered by the Natura 2000 Network. These protected areas are or have to be designated by the Member States under the Wild Birds Directive of 1979 and the Habitats Directive of 1992. Since many habitats and waterways straddle frontiers between Member States, an EC regime can also provide solutions for transboundary damage.
Like nearly all national environmental liability regimes, the EC regime should be based on strict liability (this means that no fault by the polluter is required), when damage is caused by a hazardous activity. Damage to biodiversity in the protected Natura 2000 areas should also be covered if it is caused by a non-hazardous activity. In this case, however, the liability should be fault-based. The liable party should be the operator in control of the activity that caused the damage.
In case of environmental damage, the compensation to be paid by the polluter should be spent on the effective restoration of the damage. Furthermore, for cases concerning environmental damage, public interest groups should have a right to step into the shoes of public authorities, where these are responsible for tackling environmental damage, but have not acted. Such groups may also be allowed to take action in urgent cases if there is a need to prevent damage. This is in line with the 1998 Århus Convention on access to information, public participation in decision-making and access to justice, a UN/ECE Convention that has been signed by the Community and all the EU Member States, as well as by other states.
Expected effects on competitiveness
Most OECD countries which are the main trade partners of the EU already have environmental liability legislation of some kind. An EC environmental liability regime will not amount to the adoption by the EU of a unilateral standard of environmental protection. Available evidence on existing environmental liability regimes suggests that industry competitiveness has not been disproportionately affected. Nor have the environmental liability regimes existing in some Member States been associated with significant competitiveness problems.
Reactions to the White Paper
The Commission invites the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions as well as interested parties to discuss and comment on the White Paper. Comments can be sent to the Commission before 1 July 2000 to the following address:
Directorate General for Environment, Nuclear Safety and Civil Protection; Legal Affairs Unit (DG ENV.B.3), Rue de la Loi 200, 1049 Brussels, or sent by e-mail to Carla.DEVRIES@ec.europa.eu or Charlotta.COLLIANDER@ec.europa.eu
WHITE PAPER ON ENVIRONMENTAL LIABILITY
1. After giving some background information and explaining what the aim of environmental liability is (sections 1 and 2), the case for an EC regime and its expected effects are set out in section 3. The main reasons for introducing an EC regime are: improved implementation of key environmental principles (polluter pays, prevention and precaution) and of existing EC environmental laws, the need to ensure decontamination and restoration of the environment, and better integration of environment into other policy areas. Moreover, an EC regime may contribute to a level playing field in the internal market.
2. Better prevention and ensuring restoration of environmental damage will result in an increased internalisation of environmental costs, which means that the costs of preventing and restoring environmental damage will be paid by the parties responsible for the damage rather than being financed by society in general (or: the tax payer).
3. Section 4 contains possible main features of an EC environmental liability regime, namely: no retroactive application, coverage of both environmental damage (site contamination and damage to biological diversity, also called biodiversity) and traditional damage (harm to health and property). The scope of application should be a 'closed' one, to be linked with EC environment related legislation. Contaminated sites and traditional damage should only be covered if caused by an EC regulated (potentially) hazardous activity; damage to biodiversity only if protected under the Natura 2000 network, which is based on the Wild Birds Directive and the Habitats Directive.
4. Examples of EC legislation dealing with hazardous or potentially hazardous activities are legislation containing discharge or emission limits for hazardous substances into water or air; legislation with the objective to prevent and control risks of accidents and pollution; legislation dealing with dangerous substances and preparations with a view (among others) of protection of the environment; legislation in the field of waste management; legislation in the field of genetically modified organisms (as far as not covered by the Product Liability Directive); and legislation in the field of transport of dangerous goods.
5. Liability should be strict for damage caused by dangerous activities and fault-based for biodiversity damage caused by a non-dangerous activity. There should be commonly accepted defences and some equitable relief for defendants. The liable party should be the operator in control of the activity that caused the damage.
6. Criteria should be set for dealing with and restoring environmental damage, and for assessing damage to biodiversity. There should be an obligation to spend compensation paid by the polluter on environmental restoration.
Access to justice in environmental damage cases should be enhanced, in line with the Århus Convention on access to information, public participation in decision-making and access to justice in environmental matters. Finally, there should be focus on financial security for potentially liable parties.
7. Section 5 considers different options for Community action, namely Community accession to the Lugano Convention, a regime for transboundary damage only, Member States action guided by an EC recommendation, and a Community directive, both in a horizontal way and sector-wise. Arguments for and against each option are given, with a horizontal Community directive considered as the most appropriate option.
8. In terms of subsidiarity and proportionality, section 6 considers an EC initiative justified because of the insufficiency of separate Member State regimes to address all aspects of environmental damage, the integrating effect of common enforcement through EC law and the flexibility of an EC framework regime which fixes objectives and results but leaves ways and instruments to achieve these to Member States.
9. Section 7 deals with the overall economic impact of environmental liability at EC level along the lines of the White Paper, including the impact on external competitiveness. However, since most OECD countries have already environmental liability legislation of some kind, an EC environmental liability regime will not amount to the adoption by the EU of a unilateral standard of environmental protection. This section concludes that past experience is insufficient to support any strong views with respect to the economic effects of a regime as proposed in the paper. The Commission will continue its research in this area and launch further studies on the economic and environmental impact of environmental liability. The findings of these studies together with all the other available evidence will be used to assess future initiatives in this area.
10.Section 8 concludes that the Commission considers a Community framework directive on environmental liability as the appropriate option, in order to provide the most effective means of implementing the environmental principles of the EC Treaty, in particular the polluter pays principle. Interested parties can send comments on the White Paper to the Commission until 1 July 2000.