B.oE^O Cfficialjournal of the European Communities ^oCLL^^ 
Opinion on the proposal foraCouncil Directive on civil liability for damage caused by 
wasted 
On^Septemberl^^, the Council, acting in accordance with Article ItX^A of theTreaty 
establishing the European Economic Community,asloed the Economic and Social Committee 
for an Opinion on the abovementioned proposal. 
The Committee instructed its Section for Protection of the Environment, Public Health and 
Consumer Affairs, to prepare its work on the matter.The Section adopted its Opinion on 
^Eebruaryi^^u ^rapporteurs ^virProumens^ 
The Committee adopted the Opinion set out below, with it^ votes in favour and 
1^ abstentions, at its^^th plenary session ^meeting of^Eebruaryl^^ 
1. CE^E^ALCOA^viE^TS 
1. Introduction 
LL The Committee endorses the draft Directive 
under review, the main objectives of which are the 
prevention of damage to the environment and thenars 
monization of national laws on the environment. 
The Committee does, however,urgethataccountbe 
taken of the observations and amendments set out 
below. 
L^. The Committee is surprised that the ComD 
missionissubmittingthedraftDirectiveatthis juncture, 
although it has not yet completed its work in respect 
of its communicationto the Councilon civil liability 
for damage to the environment. 
Lo. This being the case, the Committee could have 
expected that the Commissionwouldhaveheld back 
the draft Directive until all the issues involved had been 
clarified. 
TheCommitteehas,however, taken the line that it 
should pass on its views at this juncture so as not to 
hold back the Commission^swork. 
L^. The Committee underlines the need for the 
Commission to take account of the work of the Council 
of Europe, thedraft United nations Convention on 
third party liability in respect of damage caused during 
transport operations and the conclusions of the StrasD 
bourg Conference on the pollution of the R.hine. 
^. Legal basis 
^.L The Commission bases thedraft Directive on 
Articleit^A. In viewof the objectives set out by the 
Commission, however, reference to Article it^A is not 
justified, reference should be made in the te^t, as 
currently drafted, to Articles l^uRandSof the Treaty. 
^O^D^^t^.t^t^^D^ The Committee callsupontheCommissiontorevise 
its line of approach in order to bring it into accordance 
with the legal basis selected. 
ou l^ew legal concept 
^.1. In the draft Directive the Commission introD 
duces or refers to concepts which are either new or 
evolving. 
Particular attention should be paid when introducing 
new definitions to their practical feasibility ^notably in 
the case of the definitions of ^waste^andanjury to the 
environments. The Committee does, however, weL 
come the fact that the Commission has accepted in this 
content views put forward by the Economic and Social 
Committee in its Opinion on the fourth environment 
action programmed. 
^. The Committee points out that the term^over 
whelming probability^ isa legalconcept whichcould 
lead to difficulties in interpretation in the national law 
of some A4ember States. 
The Committee accepts the Commission^se^planation 
that it was their intention to use the term^balance of 
probability^ in theEnglishte^t in Article ^.^instead 
of ^overwhelmingprobabilitye The term ^balanceof 
probability^ is the normal term used in English and 
Irish jurisprudence in the establishment of the burden 
of proof. 
o5^. The Committee callsuponthe Commissions 
define cases of ^or^^^r^ in thepreambletothe 
draft Directive by referring to the Court of justice 
judgement of^Eebruaryl^DUM^. 
^. Scope 
^.L It is clearly stated that the draft Directive covers 
all typesof waste generatedby an economicactivity 
^e^^^Dt^B^^0^^^8^^v,T^8^^D^^^ 
No C 112/24 Official Journal of the European Communities 7. 5. 90 
with the exception of nuclear waste and pollution 
caused by hydrocarbons, in so far as such pollution is 
covered by Conventions in force in the Member States. 
4.2. The draft Directive does not break down waste 
into hazardous waste and non-hazardous waste. 
4.3. The fact that the draft Directive is to cover only 
waste generated by an economic activity is likely to 
create problems. Waste generated by public or non­
profit-making bodies (e.g. refuse dumps, refuse inciner­
ation plants, hospital refuse) must also be covered. 
4.4. The draft Directive makes no distinction either 
between waste intended purely for disposal and waste 
which is to be recycled. 
4.5. It should be clearly stated in the draft Directive 
that the proposed liability shall end when the waste is 
handed over for recycling. It is not possible, prior to 
this transfer, to make a distinction, for the purposes 
of liability, between waste for recycling and non-
recyclable waste. 
The Committee recommends, in this context, that car­
riers, whether approved or not, should be able to use 
distinctive signs, indicating that they are carrying waste 
intended for recycling or waste intended for disposal. 
4.6. The public authorities must also be obliged to 
take every appropriate step to limit damage, if such 
damage is known to them, without other operators 
being absolved of any liability. 
5. Principles of liability 
5.1. Under the draft Directive, liability for waste is 
to be laid at the door of the producer. Carriers or 
persons who have actual control of the waste material 
in any other way are only to have secondary liability 
[see Article 2(2)(b) of the draft Directive], This pro­
vision is likely to cause problems in practice from the 
point of view of the right to compensation, particularly 
in cases where the damage which triggers liability 
occurs during the transport or storage of the waste and 
not in its production. Injured parties will frequently 
have difficulty in identifying the producer within the 
required time limit. 
5.2. The Committee therefore proposes that, in 
addition to the producer, liability also be attributed to 
persons who have actual control of the waste when the 
incident giving rise to the damage or injury to the 
environment occurs. The liability of these latter persons 
shall end when the waste is duly transferred to a waste-
disposal undertaking. 
5.3. As this would mean that the injured party or 
other person entitled to claim would be confronted with more than one party having liability, provisions 
should be made for joint and several liability, as pro­
posed by the Commission in Article 5 of the draft 
Directive. Article 5 should thus apply in respect of the 
internal settlement between parties held liable jointly 
and severally. 
6. Defintions of injury 
6.1. In addition to the clear and well-known concepts 
of injury to persons and property, the Commission 
introduces a new concept in the draft Directive: injury 
to the environment. 
6.2. The Commission should stipulate that the draft 
Directive is to apply only to 'significant and/or persist­
ent' injury. 
6.3. The damage will also have to be caused by 'a 
modification of the conditions of water, soil or air'. 
6.4. In the Committee's view it will not be possible 
in some cases, to decide objectively to what extent there 
has been a 'modification'. Modifications can also be 
positive. 
6.5. Given the proposed time limits, how will it be 
possible to determine that interference to the environ­
ment has been caused by such modifications several 
years after the event, by which time new elements 
—either positive or negative—may have come into play. 
7. Legal proceedings and time limits 
7.1. The Commission introduces a new concept with 
regard to the persons entitled to institute proceedings 
in respect of damage to the environment. 
7.2. This right is given to public authorities since 
injury to the environment is a matter which concerns 
society. 
Provision must also be made for legal redress in cases 
where the public authorities are responsible for the 
damage. 
7.3. The Commission proposes [in Article 4(4)] to 
give common-interest groups the right to bring an 
action, but it does not envisage extending or harmoniz­
ing this right to include those Member States where 
such groups are currently not entitled to bring an action. 
II. SPECIFIC COMMENTS 
8. Liability 
8.1. The Commission appears to be envisaging that 
the producer must remain liable until the waste has been 
handed over to an authorized disposal undertaking. 
B.o.^ COfficial]ournal of the European Communities ^oClL^^ 
^. The Committee wonders what criteria will have 
tobe met bydisposalundertakings seeking authorize 
ation.The criteria shouldbelaiddownby the Com 
missionand not left tothediscretionof the member 
states as this could cause distortions. 
^. The various types of disposal—namelyiagoon 
ing, dispersal, landfill, openairincineration and incin 
erationinspecialized plants—require, in the Commit 
tee^s view, careful examination in this respect. ConD 
sideration should be given both to the systems as such 
and the type of waste which can be treated or disposed 
of using the different systems. 
^. Compensation fund and civil liability insurance 
^.1. The Committee recognizes the problems raised 
by nonDrecoverable damage, ^t notes that the Com 
mission intends to resolve these problems, and is con 
sidering the establishment ofasystem of compensation, 
though it recognizes the inherent difficulties of sucha 
measure. 
The Committee wishes to be closely involved in the 
consideration of these issues. 
^. The preamble to the draft Toirective states that 
the establishment ofamandatory system of insurance 
is not opportune. 
^.o. The Commission is rightly not considering the 
introduction ofasystem of mandatory insurance, 
^Bo51. Civen the imprecise legal terms used in the 
draft directive under review,insurers will be unable to 
calculate the extent of the rislos which they are covering 
and it will be impossible todetermine whichparties 
will be obliged to obtain cover for the various continD 
gencies^ the producer of the waste, the carrier, the 
undertaking carrying out storage or the undertaking 
carrying out the mining of the waste. 
lOoneatBrussels,^^ebruaryl^O, ^Bo.^. furthermore, if insurance were to be manda 
tory, insurance companies would find it difficult, in 
view of the abovementioned lack of precision, to 
arrange codnsurance or reinsurance, 
^,o5^, .Phe lack of precision would also undoubtedly 
give rise to very high premiums, particularly in the 
case of small and mediumsized enterprises, enterprises 
should of course strive to achieve perfection in this 
field. But the fact remains thatamandatory insurance 
would be far too expensive for small and mediumsized 
enterprises, which may produce wasteliable to cause 
problems out of proportion to their turnover. 
^, Tor risks not covered by insurance, whether 
mandatory or not, the Commission should consider the 
advisability of setting upacompensation fund. 
The Committee is well aware that there areanumber 
of difficulties involved in setting up suchafund^ 
— should it be at national or Community levels 
— ^ho will run it^ 
— ^ho will finance it ^companies, carriers, disposers, 
public authorities^ 
— COn what basis should the different parties con 
cerned contribute to the fund^ 
It^. specific observation 
10,1, It is unsatisfactory for the Commission to post^ 
pone toalater date the drafting of the rules governing 
liability for damage to the environment in cases where 
the party responsible cannot be identified.Thereisa 
danger that individual member states will introduce 
their own rules in the meantime, thereby jeopardizing 
the harmonization of environmental protection law in 
this important area. 
No C 112/26 Official Journal of the European Communities 7. 5. 90 
APPENDIX 
to the Opinion of the Economic and Social Committee 
The following amendments, which were supported by at least a quarter of the votes cast, were rejected 
during the debate. 
Point 4.4 
Add the following: 
'The Committee insists on this distinction being included in the proposal. Failure to include it may lead to 
less use being made of waste.' 
Reasons 
The amendment is self-explanatory. 
Voting 
For: 57, against: 64, abstentions: 2. 
Points 5.1, 5.2 and 5.3 
Replace these points by the following: 
'Under the draft Directive, liability for damage is to be laid at the door of the producer of the waste. 
The Committee takes the view that the producer of the waste does not necessarily have control over the 
operations which may take place between the time at which he relinquishes possession of the waste and the 
time at which the waste is handed over to the recycling undertaking (i.e. transport, storage, grading and 
mixing). The Committee therefore considers that it is the responsibility of the courts to take decisions on 
this matter. 
The producer will be entitled to enter into contracts with the various types of undertakings involved with a 
view to making the process transparent to the courts. 
If the producer does not enter into such contracts he himself will of course be held liable. 
The introduction of joint and several liability would in practice frequently lead to an inequitable apportion­
ment of liability.' 
Reasons 
The line taken on liability for damage is clear from the text of the amendment. 
Voting 
For: 57, against: 72, abstentions: 1. 
Point 9.4 
Delete. 
Reasons 
It is apparent form the various questions raised that establishment of a compensation fund — an idea which 
the Commission has, moreover, not yet investigated, given the difficulties involved would be unrealistic, if 
not impracticable. 
Voting 
For: 68, against: 76, abstentions: 4.