WRITTEN QUESTION E-2766/02

by Kathleen Van Brempt (PSE) to the Commission

(1 October 2002)

Subject: Proposal for a directive on environmental liability Written Question P-2156/02 inadequate reply violation of Article 197 of the EC Treaty

The Commission is asked, in particular, to give an exhaustive answer regarding the following points:

1. In its reply, the Commission states that not all the activities listed in Annex I fall under Community permit or authorisation systems (paragraph 4) and that the proposal for a directive does not distinguish between or impose any restriction in the light of the Community or national character of the provisions referred to in Article 9(1)(c) (paragraphs 4 and 11). In paragraph 11 of the reply, the Commission stresses that however, it is not the case that a national permit or authorisation is required for all hazardous substances and preparations.This gives rise to the following questions:

- In what specific circumstances (if any) is a potentially or actually hazardous activity as referred to in Annex I which is not subject to a Community permit or authorisation system also not subject to a national permit or authorisation system?

- How does the Commission justify the fact that national permit or authorisation systems may be accepted as grounds for exemption from the system of no-fault environmental liability, bearing in mind the need to avoid distorting the internal market (the environmental shopping phenomenon)?

2. In its reply, the Commission states that Article 9(1)(c) does not apply to damage caused by emissions which have not been authorised or which exceed the permitted levels (paragraph 5). Is the Commission aware that the emission of certain substances without permission is a fault on the part of the operator which is relatively easy to prove and that consequently it is apparently the intention that the no-fault liability system should mainly apply in precisely those situations where it is least useful? As regards the application of no-fault liability in cases where the prescribed limit is exceeded: the Commission proposal does not provide any indication as to which system is applicable to the burden of proof. The Commission is asked to clarify this point.

3. In its reply, the Commission states that Article 9(1)(c) does not refer to the activity as such but to an emission or occurrence, and that the article accordingly does not apply to accidents (paragraph 6). Is the Commission aware that an accident is the result either of force majeure (another ground for exemption provided for by Article 9(1), likewise applicable) or of a fault on the part of the operator? Can the Commission provide some clarification with regard to the fact that here again the operator's fault is relatively easier to demonstrate than in other cases where it is precisely the intention that the no-fault liability system should not be applied, on account of the above article?

Joint answerto Written Questions E-2765/02 and E-2766/02given by Mrs Wallström on behalf of the Commission

(18 November 2002)

As advised in its answer to the Honourable Member's written question P-2156/02, the Commission's proposal on environmental liability provides for certain exemptions under Article 9(1)(c). The exemptions do not cover cases when damage is caused by an accident or any other malfunction of the activity concerned and when any operating condition or limit value attached to the operation of the activity concerned has been breached. It is not possible to be more specific since accidents, malfunctions or breaches of any applicable rules can hardly be anticipated.

The proposal aims to establish a framework whereby environmental damage would be prevented or remedied. To that effect, the proposal specifies the circumstances under which operators can be held liable, either on a strict basis or because of their fault or negligence, subject to the exemptions set out, inter alia, in Article 9(1)(c). There is, therefore, no unconditional rule of strict liability.

Although the White Paper on environmental liability(1) did not envisage the exemption under Article 9(1)(c) and while the Lugano Convention(2) does not contain a similar exemption, the Commission's proposal takes account of submissions made during the consultation period, in particular the view that in the absence of such an exemption the ability of the insurance industry to supply appropriate insurance for environmental damage would be greatly hindered.

With respect to cases where dangerous substances and preparations would not be subject to either a Community or national permit or authorisation, the Commission does not have an exhaustive list of those cases in all the Member States. As an example, Belgium, according to the information available to the Commission, has no general authorisation scheme that applies to all dangerous substances and preparations(3), even though such prior authorisation schemes exist in respect of specific categories of products made of or containing dangerous substances or preparations (such as biocides or pesticides). There are also rules enabling the competent authority to forbid the marketing or to require the withdrawal from the market of a product in certain cases but such an intervention is carried out on an ad hoc basis and is not linked to a permitting system.

Taking into account national permitting or authorisation schemes under Article 9(1)(c) cannot as such be disruptive of an internal market that does not exist yet since there is at present no full Community harmonisation in relation to the authorisation of dangerous substances and preparations(4). In any case there should be no loophole since an undertaking will either have to comply with the conditions and requirements of any applicable national permit or, where there is no national permit, be deprived of the possibility of invoking Article 9(1)(c).

With respect to the application of strict liability for exceeding the emission limit value fixed in a permit, it is correct that a breach of the law often gives rise to a presumption of fault. The Commission believes, however, that the proposal for a Directive still brings an added value to existing national laws since the latter do not sufficiently guarantee that environmental damage, and damage to biodiversity in particular, be remedied, be it on the basis of a fault-based liability regime.

As far as the burden of proof is concerned, the proposal leaves a certain margin of manoeuvre to the Member States since it does not mandate a specific allocation of the burden of proof. It should be borne in mind, however, that, according to generally accepted principles, the party claiming exoneration from an obligation is required to establish the exonerating circumstances. In practice, the competent authority must establish the three constitutive components of liability in case of environmental damage caused by an activity listed in Annex I, namely, the existence of damage, an act or omission attributable to the operator and a causal link between these two elements; any operator wishing to exonerate himself by invoking any of the exemptions foreseen in Article 9 of the proposal would therefore shoulder the burden of proof.

The Commission does not entirely agree that fault on the part of the operator is necessarily easier to establish in case of accidents. There is no generalised principle that an accident which is not caused by an Act of God or force majeure should be presumed as being caused by negligence on the part of the operator. An accident can occur even though the operator has taken due care(5). In such a context, it is useful still to be dispensed of the requirement of having to prove fault or negligence on the part of the operator.

(1) COM(2000) 66 final.

(2) Council of Europe Convention on civil liability for damage resulting from activities dangerous for the environment signed in 1993 (ETS 150).

(3) A law of 21 December 1998 (Loi relative aux normes de produits ayant pour but la promotion de modes de production et de consommation durables et la protection de l'environnement et de la santé Wet betreffende de productnormen ter bevordering van duurzame productie- en consumptiepatronen en ter bescherming van het leefmilieu en de volksgezondheid) lays down the appropriate legal framework for so doing but it does not seem that public authorities have used this enabling legislation to put into place an across-the-board prior authorisation scheme.

(4) The Commission is currently preparing a complete review of its policy in the field of dangerous chemicals see the White Paper on the Stategy for a future Chemicals Policy (COM(2001) 88 final).

(5) This is presumably one of the reasons why many national liability laws supplement their general fault-based liability rules by specific rules on liability for products or installations which can be shown as being defective. In such case, when a defect is established, it is not further required that fault or negligence on the part of the producer or operator be established.