WRITTEN QUESTION E-2765/02

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

1. In Written Question P-2156/02(1), the Commission was asked to give a complete and specific list of cases in which, under the proposal for a directive on environmental liability, a no-fault liability system would apply. It was rightly stated that this is strictly necessary in order to make it possible to determine the scope of the no-fault liability system. However, the Commission's reply contains only general statements, which are not sufficient to determine its scope, and therefore does not comply with Article 197 of the EC Treaty or with the principle of the requisite transparency and public access to the work of the European institutions. Consequently, the Commission is again asked to provide a full list of the specific cases in which a no-fault liability system would apply under the proposal and to state its opinion on the following assertion: the proposal for a directive gives the impression of instituting a system in which no-fault liability would be the general rule, but a thorough study reveals that in fact the application of this system would be not the rule but the exception.

2. Can the Commission give the reasons why it decided to include in its proposal for a directive the ground for exemption provided for in Article 9(1)(c) even though firstly this ground for exemption was rejected in its white paper and secondly the other international environmental liability systems, including that provided for by the Council of Europe's Lugano Convention of 1993, do not include this ground?

(1) OJ C 301 E, 5.12.2002, p. 262.

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.