WRITTEN QUESTION P-2156/02

by Kathleen Van Brempt (PSE) to the Commission

(11 July 2002)

Subject: Proposal for a directive on environmental liability no-fault liability Article 9

Pursuant to Articles 3(1), 4, 5 and 7 of the proposal for a directive on environmental liability(1), Member States are required to introduce a no-fault liability system for damage to the environment caused by certain activities which present a potential or actual risk to man and the environment, summarised in Annex I to the Commission proposal.

Articles 3(2) and 8, on the other hand, provide for liability arising from fault or negligence to apply in certain cases if damage to biodiversity occurs as a result of activities other than those listed in Annex I.

Pursuant to Article 9(1), no-fault liability does not apply, firstly, to activities allowed in laws and regulations or in the permit or authorisation issued to the operator or, secondly, to activities which were not considered harmful according to the state of scientific and technical knowledge at the time when the emission was released or the activity took place.

The activities listed in Annex I mainly, if not exclusively, comprise activities which are subject to permits or authorisations.

On the other hand, the Commission proposal takes no account of the possibility that permits or authorisations may be provided for or granted in a Member State for activities for which no such requirement exists at Community level.

In view of the above, in what cases can the no-fault liability system apply? It is necessary to provide a detailed list of such cases in order to have a clear picture of the scope of the proposal for a directive.

Might it be reasonable to assert that public access to information about the substance of the work of the institutions of the Union, and hence public participation therein, is hampered by the way in which the proposal for a directive has been drafted and that the proposal may give the public false impressions about the scope of the proposed system of no-fault liability?

(1) COM(2002) 17 final, OJ C 151 E, 25.6.2002, p. 132.

Answer given by Mrs Wallström on behalf of the Commission

(31 July 2002)

A combined reading of the relevant provisions of the proposal for a Directive of the Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage, referred to by the Honourable Member, leads to the following comments.

Articles 3(1), 4 and 5 of the above-mentioned proposal do not require that any proof of fault or negligence be adduced in the first place to attach liability to the operator of any of the activities listed in Annex I to the proposal.

Article 9(1)(c) of the proposal exempts such an operator from liability when the environmental damage has been caused by an emission or event allowed in applicable laws and regulations, or in the permit or authorisation issued to the operator.

Firstly, it should be noted that, even if many activities listed in Annex I to the proposal are subject to Community licensing or permitting schemes, not all of them are so regulated. Attention should particularly be paid, because of their practical importance in everyday life, to the entries of Annex I concerning the manufacture, use, storage, transport within the perimeter of the same undertaking or release into the environment of dangerous substances and preparations. It should be specified that, except for plant protection products and biocidal products(1), dangerous substances and preparations are not subject to a Community authorising scheme. As indicated below, national authorisation or permits are also to be taken into account but it does not seem that all dangerous substances and preparations are subject to national permits or authorisations.

It is also clear that damage caused by unauthorised emissions or emissions in excess of the prescribed emission limit values is not covered by Article 9(1)(c).

In addition, Article 9(1)(c) sets out an exception and as all exceptions, it should be narrowly construed according to a general principle of interpretation. It is worth stressing in that respect that this provision does not refer to the activity as such but to emission or event, that is a specific element of the activity considered as a whole.

This means that the mere fact that an activity has been carried out in compliance with all applicable laws and regulations or in compliance with a permit or authorisation does not automatically relieve the operator from liability in all cases.

More specifically, the operator should be held strictly liable when environmental damage is caused because of a malfunction in the operation of the activity or when the damage is caused by an accident(2).

It should be noted that, having regard to the most notorious examples of serious environmental damage (such as the pollution of the Rhine river caused by a fire at the Basle Sandoz plant in 1986, the collapse of a waste retention dam of the Aznalcollar mining complex, on 25 April 1998 in Spain, which has led to a flow of toxic waters and mud towards the Doñana National Park, or the Baia Mare and Baia Borsa accidents in January and March 2000, whereby rivers were heavily polluted in Romania), it seems that, in cases of accidental pollution, the damaging event or emission would not in principle be considered as being allowed in law.

In addition to this, the operator will be liable when the damage is caused by his fault or negligence.

In relation to the question of the Honourable Member as to whether the proposal for a Directive only takes into account permitting schemes provided by Community law, it should be noted that Article 9(1)(c) refers to the applicable laws, regulations and permit or authorisation without making any differentiation or restriction according to the Community or national character of the applicable provisions.

It should also be recalled that Article 9(1)(c) could not be relied on by an operator should the emission or event causing the damage be allowed by a permit or authorisation, which is itself not in compliance with the applicable laws and regulations. There is therefore no reason to believe that this provision could constitute an unconditional and absolute exemption of liability.

Finally, with respect to the clarity of the proposal, it should be noted that the wording of the proposal reflects the willingness of the Commission to ensure that the proposal achieves real environmental benefits while taking into account the economic and social aspects of the issue as required by the comprehensive approach now followed for sustainable development. The taking into account of all the competing interests has arguably led to a quite complicated wording, which may not help the readers in understanding the overall scheme. The Commission would certainly be ready to assist the Parliament and the Council of ministers in any attempt they could undertake to clarify further the proposal.

(1) Being understood that final products such as pharmaceuticals or food additives are subject to specific regimes and are therefore excluded from the general legislation covering dangerous substances and preparations.

(2) Except in the cases where the event or emission causing the damage is caused by any of the factors listed as exonerating circumstances in Article 9(1)(a) and (b) or 9(3).