# C_2022015EN.01018601.xml

| 12.1.2022 | EN | Official Journal of the European Union | C 15/186 |
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12.1.2022

EN

Official Journal of the European Union

C 15/186

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P9_TA(2021)0259

Liability of companies for environmental damage

European Parliament resolution of 20 May 2021 on the liability of companies for environmental damage (2020/2027(INI))

(2022/C 15/20)

The European Parliament,

| — | having regard to 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 (1) (the Environmental Liability Directive — ELD), |
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having regard to 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 (1) (the Environmental Liability Directive — ELD),

| — | having regard to Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (2) (the Environmental Crime Directive — ECD), |
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having regard to Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (2) (the Environmental Crime Directive — ECD),

| — | having regard to the report from the Commission to the Council and the European Parliament of 14 April 2016 under Article 18(2) of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (COM(2016)0204), |
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having regard to the report from the Commission to the Council and the European Parliament of 14 April 2016 under Article 18(2) of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (COM(2016)0204),

| — | having regard to Articles 4 and 191 of the Treaty on the Functioning of the European Union (TFEU), |
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having regard to Articles 4 and 191 of the Treaty on the Functioning of the European Union (TFEU),

| — | having regard to Article 37 of the Charter of Fundamental Rights of the European Union (the ‘Charter’), |
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having regard to Article 37 of the Charter of Fundamental Rights of the European Union (the ‘Charter’),

| — | having regard to the amendment of Directive 2004/35/EC through Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from the extractive industries (3), Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide (4) and Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil and gas operations (5), |
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having regard to the amendment of Directive 2004/35/EC through Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from the extractive industries (3), Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide (4) and Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil and gas operations (5),

| — | having regard to the Commission staff working document of 14 April 2016 entitled ‘REFIT Evaluation of the Environmental Liability Directive’ (SWD(2016)0121), which accompanies the 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, |
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having regard to the Commission staff working document of 14 April 2016 entitled ‘REFIT Evaluation of the Environmental Liability Directive’ (SWD(2016)0121), which accompanies the 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,

| — | having regard to the briefing of the European Parliamentary Research Service (EPRS) of 6 June 2016 entitled ‘The implementation of the Environmental Liability Directive: a survey of the assessment process carried out by the Commission’, |
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having regard to the briefing of the European Parliamentary Research Service (EPRS) of 6 June 2016 entitled ‘The implementation of the Environmental Liability Directive: a survey of the assessment process carried out by the Commission’,

| — | having regard to the study of its Policy Department for Citizens’ Rights and Constitutional Affairs of 15 May 2020 entitled ‘Environmental liability of companies’, |
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having regard to the study of its Policy Department for Citizens’ Rights and Constitutional Affairs of 15 May 2020 entitled ‘Environmental liability of companies’,

| — | having regard to the Commission study of May 2020 entitled ‘Improving financial security in the context of the Environmental Liability Directive’, |
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having regard to the Commission study of May 2020 entitled ‘Improving financial security in the context of the Environmental Liability Directive’,

| — | having regard to the evaluation by the European Economic and Social Committee of 11 December 2019 on the Environmental Crime Directive, |
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having regard to the evaluation by the European Economic and Social Committee of 11 December 2019 on the Environmental Crime Directive,

| — | having regard to the EPRS briefing note of October 2020 entitled ‘Environmental liability of companies: selected possible amendments of the ELD’, |
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having regard to the EPRS briefing note of October 2020 entitled ‘Environmental liability of companies: selected possible amendments of the ELD’,

| — | having regard to the Commission staff working document of 28 October 2020 on the evaluation of the Environmental Crime Directive (SWD(2020)0259), |
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having regard to the Commission staff working document of 28 October 2020 on the evaluation of the Environmental Crime Directive (SWD(2020)0259),

| — | having regard to the conclusions and recommendations of the European Union Action to Fight Environmental Crime (EFFACE) of March 2016, |
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having regard to the conclusions and recommendations of the European Union Action to Fight Environmental Crime (EFFACE) of March 2016,

| — | having regard to Rule 54 of its Rules of Procedure, |
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having regard to Rule 54 of its Rules of Procedure,

| — | having regard to the opinions of the Committee on Development, the Committee on the Environment, Public Health and Food Safety and the Committee on Civil Liberties, Justice and Home Affairs, |
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having regard to the opinions of the Committee on Development, the Committee on the Environment, Public Health and Food Safety and the Committee on Civil Liberties, Justice and Home Affairs,

| — | having regard to the report of the Committee on Legal Affairs (A9-0112/2021), |
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having regard to the report of the Committee on Legal Affairs (A9-0112/2021),

| A. | whereas pursuant to Article 191(1) TFEU, Union policy on the environment shall contribute to the pursuit of objectives such as protecting human health, protecting and improving the quality of the environment, promoting the prudent and rational utilisation of natural resources, and promoting measures at international level to deal with regional or worldwide environmental problems; |
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A.

whereas pursuant to Article 191(1) TFEU, Union policy on the environment shall contribute to the pursuit of objectives such as protecting human health, protecting and improving the quality of the environment, promoting the prudent and rational utilisation of natural resources, and promoting measures at international level to deal with regional or worldwide environmental problems;

| B. | whereas Article 37 of the Charter requires that a high level of environmental protection and the improvement of the quality of the environment be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development; |
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B.

whereas Article 37 of the Charter requires that a high level of environmental protection and the improvement of the quality of the environment be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development;

| C. | whereas the EU’s coordinated environmental strategy encourages cooperation and ensures that EU policies are consistent with each other; whereas the European Green Deal sets the ambition of zero pollution, which is to be delivered through a cross-cutting strategy to protect EU citizens’ health from environmental degradation and pollution, while also calling for a just transition that leaves nobody behind; |
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C.

whereas the EU’s coordinated environmental strategy encourages cooperation and ensures that EU policies are consistent with each other; whereas the European Green Deal sets the ambition of zero pollution, which is to be delivered through a cross-cutting strategy to protect EU citizens’ health from environmental degradation and pollution, while also calling for a just transition that leaves nobody behind;

| D. | whereas responsible business conduct implies that companies take due consideration of environmental concerns; whereas ensuring liability for environmental damage is key to making European businesses more sustainable in the long term; whereas such an achievement is closely interlinked through the development of related legislation on corporate due diligence, corporate social accountability and sustainable corporate governance; whereas liability must be in accordance with national law; |
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D.

whereas responsible business conduct implies that companies take due consideration of environmental concerns; whereas ensuring liability for environmental damage is key to making European businesses more sustainable in the long term; whereas such an achievement is closely interlinked through the development of related legislation on corporate due diligence, corporate social accountability and sustainable corporate governance; whereas liability must be in accordance with national law;

| E. | whereas environmental damage, hazardous and harmful chemicals and climate change can cause significant risks to human health from air, soil and water pollution; |
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E.

whereas environmental damage, hazardous and harmful chemicals and climate change can cause significant risks to human health from air, soil and water pollution;

| F. | whereas the ELD coexists with other liability instruments and provisions, both at EU and Member State level; whereas incidents that give rise to ELD liabilities may trigger criminal, civil or administrative proceedings in parallel, creating legal uncertainty and insecurity both for the companies concerned and potential victims; |
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F.

whereas the ELD coexists with other liability instruments and provisions, both at EU and Member State level; whereas incidents that give rise to ELD liabilities may trigger criminal, civil or administrative proceedings in parallel, creating legal uncertainty and insecurity both for the companies concerned and potential victims;

| G. | whereas the Commission’s 2016 report on environmental liability indicates that, notwithstanding the benefits of the ELD in efforts to improve legal coherence at EU level, the EU is still faced with regulatory fragmentation in this area and a lack of uniformity in legal and practical terms; |
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G.

whereas the Commission’s 2016 report on environmental liability indicates that, notwithstanding the benefits of the ELD in efforts to improve legal coherence at EU level, the EU is still faced with regulatory fragmentation in this area and a lack of uniformity in legal and practical terms;

| H. | whereas the existing ELD definitions of ‘environmental damage’ and ‘operator’ have been the subject of various analyses which highlighted difficulties in their interpretation; whereas the significance of the threshold of environmental damage is interpreted and applied differently and therefore requires further clarification; |
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H.

whereas the existing ELD definitions of ‘environmental damage’ and ‘operator’ have been the subject of various analyses which highlighted difficulties in their interpretation; whereas the significance of the threshold of environmental damage is interpreted and applied differently and therefore requires further clarification;

| I. | whereas there have been an increasing number of cases in which the victims of pollution caused by subsidiaries of European companies active outside the EU have sought to bring environmental liability lawsuits against parent companies before courts in the EU; |
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I.

whereas there have been an increasing number of cases in which the victims of pollution caused by subsidiaries of European companies active outside the EU have sought to bring environmental liability lawsuits against parent companies before courts in the EU;

| J. | whereas liability regimes regarding diffuse pollution in EU law are fragmented; |
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J.

whereas liability regimes regarding diffuse pollution in EU law are fragmented;

| K. | whereas the ELD established a framework of environmental liability based on the polluter pays principle to prevent and remedy environmental damage; whereas the ELD complements major pieces of EU environmental legislation, to which it is directly or indirectly linked, in particular the Habitats Directive (6), the Birds Directive (7), the Water Framework Directive (8), the Marine Strategy Framework Directive (9) and the Offshore Safety Directive (10); |
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K.

whereas the ELD established a framework of environmental liability based on the polluter pays principle to prevent and remedy environmental damage; whereas the ELD complements major pieces of EU environmental legislation, to which it is directly or indirectly linked, in particular the Habitats Directive (6), the Birds Directive (7), the Water Framework Directive (8), the Marine Strategy Framework Directive (9) and the Offshore Safety Directive (10);

| L. | whereas the Commission’s 2016 report on environmental liability advised all Member States to undertake to ‘record data on ELD incidents and publish ELD registers if they have not done so already’ (11); whereas, despite this, only seven Member States have a register for ELD cases that is publicly available, while four other Member States have a register that is not public; whereas several Member States collect information covered by other pieces of EU legislation, but not specifically by the ELD, or have registers with a broader or different scope, and whereas several Member States collect data at regional level; whereas 14 Member States have no database of environmental incidents or ELD cases; whereas the implementation of the ELD is characterised by a substantial degree of flexibility for the Member States based on regulatory fragmentation and a lack of homogeneity from both a legal and practical perspective; |
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L.

whereas the Commission’s 2016 report on environmental liability advised all Member States to undertake to ‘record data on ELD incidents and publish ELD registers if they have not done so already’ (11); whereas, despite this, only seven Member States have a register for ELD cases that is publicly available, while four other Member States have a register that is not public; whereas several Member States collect information covered by other pieces of EU legislation, but not specifically by the ELD, or have registers with a broader or different scope, and whereas several Member States collect data at regional level; whereas 14 Member States have no database of environmental incidents or ELD cases; whereas the implementation of the ELD is characterised by a substantial degree of flexibility for the Member States based on regulatory fragmentation and a lack of homogeneity from both a legal and practical perspective;

| M. | whereas it appears that the majority of Member States do not provide for mandatory financial security instruments in their legislation, but several countries do require them (12); whereas where implemented, these instruments seem to have proved their worth and demonstrated the need to assess the introduction of a mandatory financial security system; |
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M.

whereas it appears that the majority of Member States do not provide for mandatory financial security instruments in their legislation, but several countries do require them (12); whereas where implemented, these instruments seem to have proved their worth and demonstrated the need to assess the introduction of a mandatory financial security system;

| N. | whereas although sufficient insurance cover is available in most markets, including for complementary and compensatory remediation, demand is generally low due to a lack of reported incidents, sub-optimal enforcement and slower developments in emerging markets (13); whereas this is not in itself an obstacle to introducing mandatory financial guarantees; |
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N.

whereas although sufficient insurance cover is available in most markets, including for complementary and compensatory remediation, demand is generally low due to a lack of reported incidents, sub-optimal enforcement and slower developments in emerging markets (13); whereas this is not in itself an obstacle to introducing mandatory financial guarantees;

| O. | whereas operator insolvency as a consequence of major accidents remains a problem in the EU; whereas the Commission should analyse existing national and regulatory frameworks and adopt a harmonised EU approach with a view to shielding taxpayers from the consequences of a company’s insolvency; |
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O.

whereas operator insolvency as a consequence of major accidents remains a problem in the EU; whereas the Commission should analyse existing national and regulatory frameworks and adopt a harmonised EU approach with a view to shielding taxpayers from the consequences of a company’s insolvency;

| P. | whereas the availability of financial security instruments has significantly increased since the adoption of the ELD; |
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P.

whereas the availability of financial security instruments has significantly increased since the adoption of the ELD;

| Q. | whereas Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers (14), which repeals Directive 2009/22/EC, has been adopted and will be applied by the Member States from 25 June 2023; |
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Q.

whereas Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers (14), which repeals Directive 2009/22/EC, has been adopted and will be applied by the Member States from 25 June 2023;

| R. | whereas in some cases, although corporate board members are aware of activities with a high risk of causing environmental damage, their decision-making remains profit-oriented at the expense of responsible behaviour and the environment; |
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R.

whereas in some cases, although corporate board members are aware of activities with a high risk of causing environmental damage, their decision-making remains profit-oriented at the expense of responsible behaviour and the environment;

| S. | whereas an ELD review should necessarily seek to strike a balance between corporate concerns and environmental protection; |
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S.

whereas an ELD review should necessarily seek to strike a balance between corporate concerns and environmental protection;

| T. | whereas in recent years the European Parliament has taken a proactive role in pushing for an environmental liability regime for environmental and human rights harms occurring in third countries, notably with the adoption of its resolution of 25 October 2016 on corporate liability for serious human rights abuses in third countries (15); |
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T.

whereas in recent years the European Parliament has taken a proactive role in pushing for an environmental liability regime for environmental and human rights harms occurring in third countries, notably with the adoption of its resolution of 25 October 2016 on corporate liability for serious human rights abuses in third countries (15);

| U. | whereas a mandate for the Commission should ensure the enforcement of provisions regarding establishing or maintaining a level playing field on environmental issues in EU trade agreements, where those provisions are part of such an agreement; |
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U.

whereas a mandate for the Commission should ensure the enforcement of provisions regarding establishing or maintaining a level playing field on environmental issues in EU trade agreements, where those provisions are part of such an agreement;

| V. | whereas the European Environment Agency is exploring how environmental risks and benefits are distributed across society; whereas the 2015 Paris Agreement on Climate Change emphasises the importance of considering the rights of vulnerable people; whereas the Office of the UN High Commissioner for Human Rights recently published Framework Principles on Human Rights and the Environment, which clarify the human rights obligations of states relating to a clean, healthy and sustainable environment; whereas, moreover, a system of corporate liability for human rights abuses is currently being negotiated at the UN; |
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V.

whereas the European Environment Agency is exploring how environmental risks and benefits are distributed across society; whereas the 2015 Paris Agreement on Climate Change emphasises the importance of considering the rights of vulnerable people; whereas the Office of the UN High Commissioner for Human Rights recently published Framework Principles on Human Rights and the Environment, which clarify the human rights obligations of states relating to a clean, healthy and sustainable environment; whereas, moreover, a system of corporate liability for human rights abuses is currently being negotiated at the UN;

| W. | whereas the impact of environmental damages and crimes adversely affects not only biodiversity and the climate, but also human rights and human health; whereas a review should consider the risks of the transboundary nature of environmental damage, serious organised crime and corruption, together with the risks to human rights and the environment; |
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W.

whereas the impact of environmental damages and crimes adversely affects not only biodiversity and the climate, but also human rights and human health; whereas a review should consider the risks of the transboundary nature of environmental damage, serious organised crime and corruption, together with the risks to human rights and the environment;

| X. | whereas Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration recognise the sovereign right of states to exploit their own resources pursuant to their own environmental policies, but equally the responsibility to ensure that activities within their national jurisdictions or control do not cause damage to the environment of other states or of areas beyond the limits of their jurisdictions; |
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X.

whereas Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration recognise the sovereign right of states to exploit their own resources pursuant to their own environmental policies, but equally the responsibility to ensure that activities within their national jurisdictions or control do not cause damage to the environment of other states or of areas beyond the limits of their jurisdictions;

General observations

| 1. | Welcomes the Commission’s efforts to assess and bridge gaps in the implementation of the ELD and the ECD across the Member States; |
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1.

| 2. | Deplores the fact that the discretionary powers set out in the ELD, the lack of awareness and information about the ELD, insufficient resources and expertise, and the weak mechanisms for securing compliance and effective governance at national, regional and local level have led to implementation deficiencies, considerable variability between Member States with regard to ELD enforcement and compliance levels and the number of cases in particular, and an uneven playing field for operators; deplores the fact that such flaws also have an impact on the implementation of the ECD; is therefore of the opinion that additional efforts are required to ensure regulatory standardisation in the EU and increased public confidence in the effectiveness of EU laws in order to prevent and remedy environmental damage more effectively and strike the right balance between corporate concerns and environmental protection; |
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2.

| 3. | Welcomes the setting up of the Environmental Compliance and Governance Forum, which brings together professionals with responsibilities in the field of environmental compliance assurance, as a follow up to the 2018 Commission action plan (16) and the 2020-2022 work programme to improve environmental compliance and governance that the forum endorsed in February 2020 (17); |
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3.

| 4. | Regrets that in many Member States, the budgets of environmental inspectorates have stagnated or decreased due to the financial crisis and that even large, well-resourced authorities can find it difficult to independently develop knowledge of the best ways to ensure compliance; is thus of the opinion that stronger support at EU level is needed, for example through accessible information portals, commonly used networks (EU networks for practitioners), best practice information and guidance, additional training programmes on the specificities of environmental law and crimes at EU and national level for judges and practitioners, training materials, and guidance on skills, in coordination with the national authorities, as this could increase the pressure on ‘black sheep’ companies and benefit companies that respect the law and would enable stakeholders, operators and the public to become more aware of the existence of the ELD regime and its enforcement and thus contribute to better prevention and remediation of environmental damages; |
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4.

| 5. | Regrets that environmental crimes are among the most profitable forms of transnational criminal activity; calls on the Commission and the Member States, therefore, to allocate appropriate financial and human resources to preventing, investigating and prosecuting environmental crimes, and to increase the expertise of the authorities involved, including prosecutors and judges, with a view to more effectively prosecuting and sanctioning environmental crime; invites the Member States to set up or reinforce specialised units within their national police services at the appropriate levels for the investigation of environmental offences; calls, furthermore, on the Commission and the Member States to make sure that all Member States have proper environmental crisis management procedures in place at both national and transnational levels and encourages the Member States to use Joint Investigation Teams and the exchange of information in transnational environmental crime cases, which facilitates the coordination of investigations and prosecutions conducted in parallel across several Member States; |
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5.

| 6. | Takes the view that one of the various causes of the insufficient harmonisation of the ELD is the failure to provide for the application of a standard administrative procedure for notifying competent authorities of imminent threats of or actual environmental damage; regrets therefore that there is no obligation to publish such notifications or information about how cases are dealt with; notes that some Member States have identified this limitation in their national legislation and have consequently set up databases for notifications, incidents and cases; points out, however, that the practice varies greatly from Member State to Member State and is rather limited; |
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6.

| 7. | Points out that reliable data on environmental incidents giving rise to the application of the ELD or other administrative, civil or criminal instruments should be collected under the supervision of an EU ELD task force, with the relevant data being made public; calls on the Commission to duly assess the situation in order to establish whether a combination of different legal instruments could adequately respond to environmental harm, or whether serious gaps still exist that need to be remedied; insists on the correct implementation of the ELD, by encouraging Member States to record data on ELD incidents, publish ELD registers and gather the data required to document the effective and efficient application of the directive in their country in order to increase trust in the ELD system and better implementation; |
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7.

| 8. | Underlines that in almost all ELD cases, operators cooperate with administrative authorities to work towards remediation; notes, however, that the average cost of remedial action is EUR 42 000 (18), but that costs were substantially higher in a few significant cases; regrets therefore that in those cases, cost recovery was impossible due to the operator’s insolvency, and that as a result, costs had to be covered by the state, and indirectly the taxpayer, a phenomenon that has to be avoided in the future; |
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8.

| 9. | Notes that the number of companies prosecuted in environmental cases is low across the Member States, even though criminal offences within the meaning of the ECD are demonstrably taking place; points out, in this context, that the causes of this situation have not yet been comprehensively analysed or explained by the Commission or the Member States; |
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9.

Recommendations

| 10. | Calls for the ELD to be revised as soon as possible and to be transformed into a fully harmonised regulation; stresses, meanwhile, the need to update and align the ELD with other pieces of EU legislation designed to protect the environment, including the ECD; emphasises that differences in the implementation and application of EU rules for the liability of companies for environmental damage are not providing a level playing field for EU industry at present, which is distorting the proper functioning of the EU’s internal market; calls for greater efforts to harmonise the implementation of the ELD in the Member States; |
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10.

| 11. | Calls for the ECD to be updated following a thorough impact assessment, which should assess inter alia the scope of the directive, while taking account of new types and patterns of environmental crime; stresses, furthermore, the need to ensure the effective enforcement of existing legislation; |
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11.

| 12. | Takes note of the Member States’ increasing commitment to working towards the recognition of ecocide at national and international level; asks the Commission to study the relevance of ecocide to EU law and EU diplomacy; |
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12.

| 13. | Calls on the Commission to provide further clarification and guidance to competent national authorities and prosecutors on the key legal terms of the ECD and to develop a harmonised classification of environmental crimes; |
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13.

| 14. | Underlines the important role of soft law instruments, such as guidance papers on the interpretations of legal terms used in both the ELD and the ECD, evaluation of damage, or information on and comparison of sanction practices in the Member States, in enhancing the effectiveness of the implementation of the directives; stresses the need to introduce much more timely and stringent regulatory action in the Member States; |
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14.

| 15. | Is of the opinion that enforcement should be harmonised and that an EU ELD task force made up of highly qualified experts and Commission officials should be created to support the Member States, upon request, with the implementation and enforcement of the directive on the one hand, and to support and advise victims of environmental damage on the available options for legal action at EU level on the other (comparable to SOLVIT); |
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15.

| 16. | Believes that the revised framework should provide for improved EU-wide data collection, information exchange, transparency and the sharing of best practices among the Member States, supported by the EU ELD task force; |
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16.

| 17. | Recommends that the future EU ELD task force supports the implementation of a comprehensive monitoring system to provide competent authorities with an effective toolbox to monitor and enforce compliance with environmental legislation; |
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17.

| 18. | Calls on the Commission and the Member States, supported by the EU ELD task force, to set up protection and support schemes for the victims of environmental damage and to ensure their full access to justice, information and compensation; emphasises the role of environmental NGOs in raising awareness and in identifying potential breaches of EU and national environmental laws; |
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18.

| 19. | Calls on the Commission to assess the efficiency of rapid claim mechanisms with a view to ensuring swift compensation for victims in insolvency cases, which can lead to further damages; |
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19.

| 20. | Welcomes the adoption of Directive (EU) 2020/1828; |
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20.

| 21. | Recognises that the Aarhus Regulation is currently being reviewed (19); reiterates that the Aarhus Regulation allows for access to information, public participation in decision-making and access to justice in environmental matters, and thus public scrutiny of EU acts that affect the environment; stresses that the Aarhus Regulation includes the ELD; |
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21.

| 22. | Emphasises, in particular, the role of environmental human rights defenders striving for rights and fundamental freedoms as they relate to the enjoyment of a safe, healthy and sustainable environment, and strongly condemns any form of violence, threat, harassment or intimidation perpetrated against them, including when its purpose is to procedurally undermine their efforts to hold those causing environmental damage legally accountable; calls on the Member States to ensure proper and effective investigation and prosecution of such acts; |
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22.

| 23. | Supports the existing requirements to also report on non-financial issues; notes, however, that such reporting has until now only been a legal duty for large undertakings; calls on the Commission to put emphasis on the enforcement of those reporting requirements in case of non-performance in the upcoming revision of the Non-Financial Reporting Directive (NFRD) (20); |
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23.

| 24. | Believes that most definitions in the ELD, notably ‘environmental damage’ and ‘operator’, should be further clarified and where appropriate extended to make the directive fair and clear to all relevant stakeholders and to keep pace with the rapid evolution of pollutants; welcomes therefore the current efforts to develop a common understanding document (CUD) on key ELD definitions and concepts; regrets, however, that the Commission and the ELD government expert groups did not reach an agreement on its format, meaning that the CUD remains a document produced by the consultancy which was hired by the Commission to support the implementation of the 2017-2020 multiannual ELD work programme; |
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24.

| 25. | Is of the opinion that the ELD revision should be aligned with the Paris Climate Agreement in order to safeguard the interests of EU citizens and the environment alike; acknowledges the intrinsic value of the environment and ecosystems and their right to effective protection; |
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25.

| 26. | Notes that liability regimes regarding diffuse pollution in EU law are fragmented; calls on the Commission to carry out a study on how diffuse pollution is addressed by the different EU liability regimes; |
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26.

| 27. | Points out that differing interpretations and application of the criteria in Annex I to the ELD, which elaborate on the definition of ‘environmental damage’ as stipulated in Article 2(1)a of the ELD, are one of the reasons for the inconsistent application of the directive; calls, therefore, for a more consistent application and for further clarification and guidance of the criteria and thus what constitutes ‘significant damage’ under the ELD; |
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27.

| 28. | Calls on the Commission to evaluate whether extending the scope of the ELD and the activities listed in Annex III thereto could limit short and long-term damage to the environment, human health and air quality; asks the Commission, furthermore, to assess whether the precautionary principle approach properly and effectively presupposes potentially dangerous risks or effects; |
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28.

| 29. | Urges the Commission and the Council to consider environmental crimes as a priority; calls on the Commission to make full use of Article 83(2) TFEU and to consider the adoption of an overall framework directive on environmental offences and effective and proportionate sanctions, defining the behaviours to be punished, the nature of infringements, the types of offences, the reparation regimes, the restoration measures and the minimum sanctions, including overall liability of legal and individual persons; calls on the Commission to evaluate the possibility of including environmental crimes among the categories of offences in Article 83(1) TFEU; |
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29.

| 30. | Considers that comprehensive and effective prevention measures and dissuasive and proportionate criminal sanctions are important deterrents against environmental damage; deplores the low detection, investigation, prosecution and conviction rates for environmental crime; considers, moreover, that in accordance with the polluter pays principle, companies should bear the full costs of the environmental harm they have directly caused in order to incentivise them to internalise environmental externalities and avoid externalising the costs; |
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30.

| 31. | Stresses that environmental damage should entail administrative, civil and criminal liability for the companies responsible in accordance with the ne bis in idem principle; notes that those forms of liability coexist with other liability regimes in business law, such as consumer law or competition law; |
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31.

| 32. | Expresses its concern about the high incidence of environmental crime, as the combined estimates from the OECD, the UN Office on Drugs and Crime (UNODC), the UN Environment Programme (UNEP) and Interpol on the monetary value of all environmental crime show it to be the fourth largest category of international crime; recognises the direct or indirect connection between environmental offences and transnational organised crime and corruption (21); calls on Europol to update the study carried out in 2015 (22) and regularly provide updated data; points out that freezing and confiscation of the proceeds of crime, including environmental crimes, are crucial means for combating organised crime, and stresses the importance of using those proceeds also for social purposes aiming at repairing the damage done and improving the environment; |
| --- | --- |

32.

| 33. | Calls on the Commission to explore the possibility of extending the mandate of the European Public Prosecutor’s Office (EPPO), once it is fully established and fully functional, to cover environmental offences; |
| --- | --- |

33.

| 34. | Calls on Europol and Eurojust to reinforce the documentation, investigation and prosecution of environmental crimes; calls on the Commission, Europol and Eurojust to provide further support and a more effective and institutionalised structure for existing networks of practitioners, cross-border law enforcement, environmental agencies and specialised prosecutors such as the European Network of Prosecutors for the Environment (ENPE) and the European Union Forum of Judges for the Environment (EUFJE); |
| --- | --- |

34.

| 35. | Stresses the importance of (e-)training for law enforcement actors in environmental crime and calls on CEPOL to intensify its training in this field; |
| --- | --- |

35.

| 36. | Stresses the importance of strengthening the Europol Environment Crime Network (ENVICrimeNet) at national and European level to enable independent and effective investigations to fight environmental crimes; |
| --- | --- |

36.

| 37. | Stresses that the EU environmental liability regime must respect policy coherence for development and the do no harm principle; |
| --- | --- |

37.

| 38. | Calls on the Commission to assess the introduction of a secondary liability regime, namely parental and chain liability for damage caused to human health and the environment (23), and to carry out an assessment of the current liability situation of subsidiaries active outside the EU, including possible improvements for cases of environmental damage; |
| --- | --- |

38.

| 39. | Welcomes the Commission’s announcement that its proposal on corporate due diligence and corporate accountability will include a liability regime and considers that in order to enable victims to obtain an effective remedy, undertakings should be held liable in accordance with national law for the harm the undertakings under their control have caused or contributed to by acts or failures to act, where the latter have committed violations of human rights or have caused environmental harm, unless the undertaking can prove that it acted with due care in line with its due diligence obligations and took all reasonable measures to prevent such harm; |
| --- | --- |

39.

| 40. | Is of the opinion that the optional permit and state-of-the art defences under the ELD should only be maintained when a company can prove that it could not have known about the danger of its activity (reversed burden of proof); calls, therefore, for the revised environmental liability regime to restrict the scope of application of the permit and state-of-the-art defences in order to render it more effective, in line with the polluter pays principle; |
| --- | --- |

40.

| 41. | Calls on the Commission to examine the possibility of aligning the ELD with civil liability legislation for corporate boards in cases where a causal link can be established between a corporate board’s action or failure to act and environmental damage as defined in the ELD, including where such damage results from polluting activities carried out to maximise the profit of the company and increase the bonuses of its members (24); |
| --- | --- |

41.

| 42. | Highlights that the cost of environmental damage for the taxpayers and operators responsible could be greatly reduced through the use of financial security instruments; notes, however, that the ELD does not provide for a mandatory financial security system; |
| --- | --- |

42.

| 43. | Asks the Commission to assess the introduction of a mandatory financial security system (covering insurance, bank guarantees, company pools, securities and bonds or funds) with a maximum threshold per case, aiming to prevent taxpayers from having to bear the costs resulting from remediation of environmental damage; asks the Commission, in addition, to develop a harmonised EU methodology for calculating the maximum liability threshold, taking into account the activity and the impact on the environment; stresses the need to ensure that financial compensation can be obtained, even in the event of insolvency of the operator responsible; |
| --- | --- |

43.

| 44. | Asks the Commission to compile a study on the introduction of an ELD financial compensation scheme at EU or national level for cases where available remedies are inadequate given the extent of the damage; stresses that the related discussions should address, inter alia, possible ways of quantifying environmental damage; |
| --- | --- |

44.

| 45. | Considers that, given the purpose of the ELD is to prevent and remedy environmental damage, a future regulation (Environmental Liability Regulation) should be applicable to all companies that operate in the EU, regardless of where they have been incorporated or where they are based, and that a holistic approach and reciprocity are necessary to meet the needs of companies in a global economy; considers, furthermore, that the application of the future regulation should be extended to any entity in receipt of EU, national or regional funds that causes or may cause environmental damage in the course of its activities; |
| --- | --- |

45.

| 46. | Welcomes the fact that an increasing number of European companies are pursuing the objective of sustainable value creation and calls on all companies to pursue a triple bottom line; |
| --- | --- |

46.

| 47. | Acknowledges that transitioning to more sustainable and more environmentally friendly production methods can be time and cost-intensive, and points to the importance of legal and administrative certainty for affected businesses; |
| --- | --- |

47.

| 48. | Recalls that the EU should promote a high level of environmental protection on its own territory and do its utmost to prevent environmental damage in third countries caused by companies based in EU Member States; recalls equally that there is no EU legal instrument addressing the possibility of prosecuting European companies abroad for environmental crimes or activities causing environmental damage; calls for the EU to encourage parent companies to take sustainable and responsible approaches to their cooperation with third countries, in line with international human rights and environmental standards, and to refrain from taking investment strategies that lead directly to hazardous outcomes; encourages the Commission to establish incentives for companies whose sustainability policies voluntarily go beyond environmental and biodiversity standards laid down in law for the purposes of evaluating these policies, distilling best practices, and providing this as an example for other companies to follow; |
| --- | --- |

48.

| 49. | Calls on the Commission to ensure the full implementation and enforcement of the biodiversity provisions in all trade agreements, including through its Chief Trade Enforcement Officer; considers that the Commission should better assess the impact of trade agreements on biodiversity, including follow-up action to strengthen the biodiversity provisions of existing and future agreements, where relevant; |
| --- | --- |

49.

| 50. | Calls on the Commission to ensure the enforcement of provisions regarding establishing or maintaining a level playing field on environmental issues in EU trade agreements, where those provisions are part of such an agreement; |
| --- | --- |

50.

| 51. | Is of the opinion that in predefined cases of extremely widespread pollution, not just environmental liability instruments, but a multitude of instruments, including administrative measures, financial penalties and in some cases criminal prosecution, should be applied to remedy the problem; |
| --- | --- |

51.

| 52. | Calls on the Commission to enforce the application of sanctions established under the ECD; |
| --- | --- |

52.

| 53. | Calls on the Commission, in this regard, to ensure that corporate social responsibility in preventing and remedying environmental harm is taken into account in procurement contracts and the allocation of public funds; |
| --- | --- |

53.

| 54. | Calls on the Commission to come forward with a proposal for environmental inspections at EU level without further delay, as proposed by the Environmental Compliance and Governance Forum in action nine of its work programme, but is of the opinion that a recommendation to establish minimum criteria for environmental inspections is not enough; |
| --- | --- |

54.

| 55. | Calls on the Commission to promote action by the EU, its Member States and the international community to step up efforts against environmental crime; calls on the Commission and the Member States to raise awareness and promote solutions in international forums; |
| --- | --- |

55.

| 56. | Suggests that the recommendation of the European Parliament and of the Council of 4 April 2001 (25), which provides a detailed explanation of how environmental inspections should be conducted, should be updated if necessary and transposed into a binding document or regulation; |
| --- | --- |

56.

| 57. | Asks the EU Ombudsman to strengthen its focus on issues related to the environment acquis; |
| --- | --- |

57.

| 58. | Consider that companies convicted for environmental crimes should not be allowed to benefit from the measures envisaged for registrants on the transparency register for an appropriate but limited period of time; suggests, to this end, that the scope and the code of conduct of the transparency register be revised in order to include provisions on the temporary removal of companies convicted for environmental crimes; |
| --- | --- |

58.

| 59. | Points out that the confidential treatment of information related to the effects of industrial activities, combined with the difficulties involved in monitoring and identifying practices such as illegal dumping of substances or waste into the sea, vessel degassing and oil tipping, can lead to an increase in the number of infringements of the law relating to water pollution; stresses, therefore, that the Member States must make the relevant information public in order to facilitate the evaluation of a possible causal link between industrial operations and damage to the environment; |
| --- | --- |

59.

| 60. | Supports the UN’s call for global recognition of the right to a safe, clean, healthy and sustainable environment at UN level; |
| --- | --- |

60.

| 61. | Recalls that the global rise in environmental criminality is a growing threat to the achievement of the UN’s 2030 Agenda for Sustainable Development and that people in developing countries directly depend on the environment for their food, health and economic security; deplores the fact that the degradation of biodiversity due to environmental crime and the resulting loss of resources increase their vulnerability; |
| --- | --- |

61.

| 62. | Calls for increased support for the local authorities and governments of developing countries in harmonising domestic legislation and policies with international environmental standards; stresses the need to support civil society and local actors in third countries and developing countries in holding government authorities accountable for state-tolerated or endorsed environmental damage caused by private and state-owned companies; |
| --- | --- |

62.

o

o o

| 63. | Instructs its President to forward this resolution to the Council and the Commission. |
| --- | --- |

63.

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(1)  OJ L 143, 30.4.2004, p. 56.

(2)  OJ L 328, 6.12.2008, p. 28.

(3)  OJ L 102, 11.4.2006, p. 15.

(4)  OJ L 140, 5.6.2009, p. 114.

(5)  OJ L 178, 28.6.2013, p. 66.

(6)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206, 22.7.1992, p. 7).

(7)  Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ L 20, 26.1.2010, p. 7).

(8)  Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ L 327, 22.12.2000, p. 1).

(9)  Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (OJ L 164, 25.6.2008, p. 19).

(10)  Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil and gas operations (OJ L 178, 28.6.2013, p. 66).

(11)  COM(2016)0204, p. 10.

(12)  Directorate-General for Environment, Outcome of the Specific Contract ‘Support for the REFIT actions for the ELD — phase 2’, European Commission, Brussels, 2019, p. 17.

(13)  REFIT Evaluation of the Environmental Liability Directive, p. 47.

(14)  OJ L 409, 4.12.2020, p. 1.

(15)  OJ C 215, 19.6.2018, p. 125.

(16)  Commission communication of 18 January 2018 on EU actions to improve environmental compliance and governance (COM(2018)0010).

(17)  Environmental Compliance and Governance Forum, Endorsed work programme 2020-2022 to improve environmental compliance and governance, European Commission, Brussels, 2020.

(18)  Policy Department for Citizens’ Rights and Constitutional Affairs, Environmental liability of companies, European Parliament, Brussels, 2020, p. 110.

(19)  Commission proposal for a regulation of the European Parliament and of the Council of 14 October 2020 amending Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (COM(2020)0642).

(20)  Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups (OJ L 330, 15.11.2014, p. 1).

(21)  See the report for EFFACE ‘Organised Crime and Environmental Crime: Analysis of International Legal Instruments’ (2015), or the study ‘Transnational environmental crime threatens sustainable development’ (2019).

(22)  Europol, ‘Report on Environmental Crime in Europe’, 5 June 2015.

(23)  See, for instance, the judgment of the Court of Justice of 10 September 2009, Akzo Nobel NV and Others v Commission of the European Communities, C-97/08 B, ECLI:EU:C:2009:536.

(24)  E.g. the dieselgate scandal and the case of the CEO of Volkswagen.

(25)  Recommendation of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States (OJ L 118, 27.4.2001, p. 41).

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