The European Parliament adopted by 502 votes to 74,
with 35 abstentions, a resolution on the application of Directive
2004/35/EC of the European Parliament and of the Council on
environmental liability with regard to the prevention and remedying
of environmental damage (the ‘ELD’).
While acknowledging the importance of the
Commission’s studies and reports regarding the assessment of
the implementation of the ELD, Members observed with concern that
the findings of those reports give an alarming picture of the
actual implementation of the ELD and noted that the directive
has been transposed in a patchy and superficial way in many
Member States.
State of play of the implementation of the
ELD: several Member States failed to
comply with the deadline for transposing the ELD and that only by
mid-2010 had it been transposed by all 27 Member States. The
transposition of the ELD into national liability systems has not
resulted in a level playing field and that, as confirmed in the
Commission report, it is currently totally disparate in both legal
and practical terms, with great variability in the amount of cases
between Member States. Seven Member States have yet to resolve a
number of non-compliance issues.
Limits to the effectiveness of the ELD: according to the Parliament, the main reasons of the
variable effectiveness of the ELD are as follows:
- the generic nature of the ELD, which was drawn up
along the lines of the framework directive
model;
- the different interpretations and application of the
‘significance threshold’ for environmental
damage;
- the fact that under the ELD, incidents are defined
as ‘serious’ only if they give rise to deaths or serious
injuries, with no reference to the consequences for the
environment;
- that other activities with potential negative
impacts on biodiversity and the environment, such as the
pipeline transport of dangerous substances, mining, etc. are
currently not covered by the requirement for strict
liability;
- problems persist regarding the application of the
directive to large-scale incidents, especially when it is
not possible to identify the liable polluter and/or the polluter
becomes insolvent or bankrupt.
- the failure to provide for the application of a
standard administrative procedure for notifying competent
authorities of imminent threat of, or actual, environmental
damage.
Members, on the other hand, welcomed the fact that, as
regards the application of the ELD in relation to protected species
and natural habitats, half the Member States apply a broader
scope (Belgium, Cyprus, the Czech Republic, Estonia, Greece,
Hungary, Latvia, Lithuania, Luxembourg, Poland, Portugal, Slovenia,
Spain, Sweden, and the United Kingdom).
Suggestions to improve harmonisation of the
ELD: Parliament called for the ELD to
be reviewed as soon as possible and the definition of
‘environmental damage’ laid down in the directive,
specifically with regard to the criteria relating to determining
adverse effects on protected species and habitats (Annex I), and to
risks of water damage and land damage, to be revised with a view to
keep pace with the rapid evolution of pollutants from industrial
activities.
The Commission is called on to:
- set out in detail the concept of ‘significance
threshold’ and assess differentiated maximum liability
thresholds for activities;
- provide a clear and coherent interpretation of the
geographical scope of ELD ‘favourable conservation
status’ (EU territory, national territory, natural
landscape area);
- determine what rules are necessary to establish a
clear and irrefutable distinction between those cases in which the
ELD is applicable and those in which
the national standard should apply, where this is more
stringent;
- introduce mandatory financial security, e.g. a
mandatory environmental liability insurance for
operators;
- consider the possibility of establishing a European
fund for the protection of the environment from damage caused
by industrial activity governed by the ELD, without undermining the
polluter-pays principle, for insolvency risks and only in cases
where financial security markets fail;
- make public all cases of
proven liability as well as the details of penalties imposed in
order to make the true cost of environmental damage transparent to
all;
- come forward with a proposal for environmental
inspections at the European level;
- establish a register for operators who engage in
dangerous activities and a financial monitoring scheme to ensure
that operators are solvent;
- ensure the application of the ELD to environmental
damage caused by any occupational activity and to ensure strict
producer liability;
- establish a publicly available European
database of cases of environmental damage governed by the
ELD;
- step up its training programme for the
application of the ELD in the Member States and to set up
helpdesks;
- introduce tax relief or other favourable arrangements
for companies which successfully endeavour to prevent environmental
damage;
- assess the possibility of introducing collective
redress mechanisms for breaches of the Union’s
environmental law;
- review that directive’s scope so that it covers
all applicable Union environmental legislation.