PROPOSAL FOR A COUNCIL DIRECTIVE ON CIVIL LIABILITY FOR DAMAGE CAUSED BY WASTE
Date: 1989-09-15
Institutions: European Commission
Subjects: damage, environmental protection, liability, waste

COMMISSION  OF  THE  EUROPEAN  COMMUNITIES 

C0MC89) 282 final - SYN 217 

Brussels, 15 September 1989 

Proposal  for a 

COUNCIL  DIRECTIVE 

ON CIVIL LIABILITY  FOR DAMAGE  CAUSED 

BY  WASTE 

(presented by the Commission) 

-  1  -

&*i*f* 

EXPLANATORY  MEMORANDUM 

1.  Introduction 

Article 11(3) of Council  Directive 84/631/EEC of 6 December  1984 
on the supervision and control  within the Community of  the 
transfrontier shipment of hazardous waste1  stipulates the 
fol lowing: 

"The Council  shall, acting  In accordance with the procedure 
referred  to  In Article 100 of  the Treaty, determine not  later 
than 30 September  1988 the conditions for  Implementing  the civil 
liability of  the producer  In the case of damage or  that of any 
other  person who may be accountable  for  the same damage and shall 
also determine a system of  Insurance." 

As a reaction  to the pollution caused by  the accident at  the 
Sandoz plant, the Council  asked  the Commission  In  its resolution 
of 24 November  1986 to examine the problems posed by damage to 
the environment and  to review existing Community preventive and 
remedial measures. 

Consequently, the Commission  Is currently preparing a 
communication  to the Council  and Parliament which examines the 
problems related  to the  Introduction of a system of  civil 
liability for damage to the environment. 

2.  Objectives of  the Directive 

A prime objective of  the Directive  is to apply  the "polluter 
pays" principle on terms conducive to the goal  of completing the 
Internal market. 

The aim of establishing a uniform system of  liability within the 
Community  is to ensure, firstly, that victims of  damage caused by 
waste receive fair compensation and, secondly, that  industry's 
waste-related costs resulting from environmental  damage are 
reflected  In the price of  the product or service giving  rise to 
the waste. 

The occurrence of differences among national  laws regarding  the 
designation of  the person  liable (producer, holder) and  the 
absence of a concerted development  of notions  like the damage and 
injury to the environment  covered by  liability, the causal 
relationship, the  I Imitations of  liability, etc, would  lead to 
unequal  conditions for competition  among Member  States and  thus 
to artificial  currents of  investments and of wastes to those 
countries where conditions are  least stringent  for  the economic 
operators and most disadvantageous to the victim. This  Is 
contrary  to the philosophy of  the Single European Act, that 
foresees a high  level of protect Ion.The Directive also has a 
preventive  Intention. The reasoning  Is that,  If the polluter  knew 
with certlanty that he would have to pay  the cost, he would be en 
couraged to take action to minimize risks as soon as possible. 

1 

0J - No  L 326, 13.12.1984, p. 31 

-  2 -

3.  Scope 

The  Directive  covers  all  types of waste  generated  by  an  economic 
activity, with  the exception  of  nuclear  waste or  waste  and 
pollution  caused  by oil, where  these  are covered  by  the  Brussels 
Conventions  In force within Member  States. 
Nuclear  waste  Is excluded  from  the  field of  application of  the 
directive, being  covered  by  international  conventions and  notably 
the convention  on  civil  liability  In the  field of  nuclear  energy 
(Paris, 29 July  1960) and  the complementary  convention  to  the 
latter  (Brussels, 31  January  1963) together  with  the  protocols 
relating  to these Conventions. 

The current  status of  the application of  these  conventions 
corresponds  to the objectives  sought  for other  wastes by  the 
present  directive. 

Community  waste management  policy  is designed  to minimize  waste 
arisings and  to monitor  the effects of waste  throughout  the whole 
cycle  from  production  to disposal. This  item has high  priority  in 
the Community's  environment  policy,  to the extent  that  It will 
make  it possible  to determine  the civil  liability  applicable 
during  the cycle of  production,  lifetime and  disposal  of  waste. 

4.  No-fault  or  strict  liability 

As  this principle  Implies automatic  liability,  It will  ensure 
that  victims receive compensation, the environment  will  recover 
and economic  agents are held  liable  In keeping with  the 
objectives of  the Directive. 

The concept  of no-fault or  strict  liability  for environmental 
risks  Is everywhere  gaining  ground.  In the related  (and 
comparable)  field of  defective products, Council  Directive 
85/374/EEC of  25 July  19852 adopts  this principle, and  It can 
also be  found  In a growing  number  of  International  conventions, 
e.g. on nuclear  energy  and oil  pollution of  the seas. The  draft 
convention prepared  by Un(droit on  compensation  for  damage  caused 
by  the carriage of  dangerous goods by  rail, road or  inland 
waterway, currently  being negotiated  within  the United  Nations 
Economic Commission  for  Europe,  Is also based on  the  same 
principle. 

In the same spirit, the  final  communiqué  of  the 8th  Conference of 
Ministers on  the Protection of  the Rhine  agalnet  Pollution  in 
Strasbourg  on  1 October  1987, which was also attended  by  the 
Commission,  calls for  harmonization of  legislation on civil 
liability  for  damage caused  by dangerous  substances on  the  basis 
of  the principle of  strict  liability. 

The same  trend  Is becoming  Increasingly  established  In national 
legislation. Germany  and Belgium  have already  Introduced  the 
principle of  no-fault  I lability.In France,  It  Is well  established 
by case  law. Case  law  In the Netherlands  Is moving in the  same 
direction, and a  law  Is being  drafted  to  Introduce  the principle 
In the new Civil  Code.  In Spain, strict  liability  has  been 
introduced  in the waste management  sector. 

2 

OJ  No L 210, 7.8.1985, p. 29. 

-  3 -

5.  The principle of  liability 

The Directive attributes  liability  to the producer  of  the waste 
that  causes damage or  Injury to the environment. 

The polluter-pays  Implies that  the costs of waste, regarded  as a 
social  problem, should  be reflected  In the price of  the products 
or  service considered  to have given  rise to the waste. 

This  represents a departure  from  the principle which enjoys some 
support  to the effect  that  liability  for damage  lies with  the 
carrrler. While  this standpoint  has  Its merits  In the  field 
of  carriage  of  dangerous goods,  It  Is unsuitable  for  application 
to waste, which  Is of  a different  character. 

Because of  the generally  doubtful  value of waste,  Its producers 
are keen  to get  rid of  it  . There  Is a temptation  throughout  the 
whole chain of economic operators  Involved  in a commercial 
operation  relating  to waste, to deal  with  the waste  illegally 
rather  than hand  it over  to an authorized  disposal  undertaking. 

Besides, the waete producer  possesses the main key  for  taking  the 
measures needed to avoid  risks to man and the environment:  above 
all others, he knows about  the nature, the composition and  the 
characteristics of  the waste. 

For  this reason a producer  of waste must  retain  liability until 
disposal  Is eneured under  the prescribed  conditions. 

There  le, of  course, nothing  to stop  the producer  making a 
contract  with  the carrier or  any other operator  to the effect 
that  they  have  llabrility.  towards him  If they are at  fault  in 
causing  the damage or  injury to the environment  for which 
compensation  Is due. 

However, the holder will  always have  to be considered  liable if 
he  Is unable  to name the producer. 

6.  Damage and other  Injuries covered by  the Directive 

The  liability  system  Introduced covers : 

damage  to  Individuals  (physical  injury,  death); 

damage  to property  (deterioration, destruction); 

Injury to the environment. This must  be put  In a new category 
separate  from  the proceeding categories. 

Environmental  Injury concerns society  rather  than an  Individual; 
It  Is sometimes difficult  to quantify, and  it cannot  be excluded 
that  restoring  the environment  to  Its state prior  to the damage 
may  Involve costs out of all  proportion  to the desired  resuit.lt 
is for  this reason  that Article 4 of  the proposed  Directive 
limits the principle of  liability. 

-  4  -

In the first  place, only  Important  and persistent  Interferences 
are aimed  at. These clarifications will make  It possible  for  the 
national  Judge  to  leave aside negligible  and  temporary 
Interferences. 

In the second  place, the  Interferences will  have  to be caused  by 
a modification  of  the conditions of water, soil or  air. As a 
matter of  fact, this  Includes  Interferences  In flora and  fauna  If 
caused  by a modification of  such conditions. Finally, the  payment 
of  "punitive damages"  Is not  foreseen, but merely  restorative 
measures or  reimbursement  of measures  reasonably  taken. 

7.  Parties entitled  to  Institute  proceedings 

In the  first  Instance,  the right  to  institute  liability 
proceedings  against  the person  causing  the damage  lies with  the 
victim or  his  helre. 

Concerning  Injuries to the environment, given  the  fact  that  those 
concern  society,  this right  Is given  to the public  authorities. 
This right may  also be granted  to spec la I-Interest  groups or 
established,  recognized  associations whose  corporate  goal  is to 
protect  the environment  or  public  health.  For  such groups, the 
Directive  introduces a system  that  takes account  of  the  law 
applicable  In the Member  States, some of which  grant  a direct 
right  to proceed  to such  associations  (Netherlands,  Luxemburg) 
or, ae  in the case of  France  and  Italy, permit  them under  certain 
conditions to  institute civil  proceed Inge  Joined  to a criminal 
action or,  finally, who  remain  virtually closed  to such 
Initiatives. 

The Directive  is not  designed  to harmonize  practices  in this 
field. The Community  hae chosen  an  Intermediate  solution which 
consists  In neither opposing current  developments, nor 
precipitating potential  developments. The same  reasoning  has  been 
applied  to the question of public bodies' right  to sue. 

8.  Limitation of  liability 

a.  Time  limits 

The proposal  provides  for  a time  limit of  three years  beginning 
with  the day on which  the plaintiff  became aware, or  should  have 
become  aware, of  the damage or  Injury  to the environment  and  the 
identity of  the producer,  following  the pattern  set  In Directive 
85/374/EEC. Thus a degree of  vigilance  Is required  of  the 
plaintiff. 

In addition,  the right  to compensation  exprles 30 years  after  the 
event  which  caused  the damage or  Injury  to the environment.  It 
appears  Justified  to place a time  limit on  the possibility of 
initiating a  liability  action. The 30-year  limit  seems  to be a 
good  compromise  In view of  the very  slow build-up,  for  example, 
of  contamination  In soils. 

- 5 -

b.  Financial  limits 

From the point of view of the victims or the environment 
affected, financial ceilings on civil  liability are not Just if led, 
except  In the circumstances specified  in Article 4; furthermore, 
such ceilings would be contrary to the principles laid down in 
Article 130r(2) of the Treaty that the polluter should pay and 
that preventive action should be taken. Consequently, the 
Commission  Is making no proposals In this respect. 

c)  Limits to liability 

(1) Force majeure; This may exonerate the producer, provided 
he can prove it. 

(2) Contrlbutory neg11gence: 

If the damage was caused partly by the waste and partly by a 
fault on the part of the victim, the circumstances of the 
case in point should decide whether the waste producer's 
liability should be reduced - and, If so, by how much - or 
entirely excluded. This fits in with the solution adopted In 
Article 8(2) of Directive 85/374/EEC. 

(3) Some or all of the damage or Injury to the environment was 

caused by a third party 

Article 8(1) of Directive 85/374/EEC states that the 
liability of the producer shall not be reduced when the 
damage or Injury to the environment is caused both by a 
defect  In the product and by the act or omission of a third 
party. 

The reason for this approach  is that the producer can always 
take action against third parties. A similar rationale should 
apply to liability for damage and Injury to the environment 
caused by wastes. The proposal  is, therefore, to follow the 
philosophy behind Article 8 of Directive 85/374/EEC. 

9.  insurance 

Although Directive 86/631/EEC provides for the setting up of a 
system of  Insurance to cover damage caused by waste, the 
Commission believes It would be wise to proceed cautiously on 
this subject. 

For one thing, the insurance companies are currently against even 
limited mandatory  Insurance cover, as the market for 
environmental  Insurance is currently expanding rapidly. A minimum 
ceiling (which, politically, could not be less than the ECU 70 
million specified by Directive 85/374/EEC) might distort the 
market. Secondly, the parties liable may prefer other means of 
equal effectiveness, e.g. deposit, bill of exchange, etc., as 
accepted by United States legislation In this field. 

In these circumstances, It appears preferable not to legislate on 
this aspect for the time being. 

- 6 -

10. Non-recoverable damage and  Injury to the environment 

There  Is a need  for a Community  policy  to deal with cases where 
the party  responsible cannot be  Identified or proves  Incapable 
ofcompensating the victim or  repairing the  Injury to the 
envIronment. 

If Member  States make different choices regarding apportionment 
of costs  (to waste producers?  to the victim? to society?), 
payment  rules and management of  funds, there  is a risk of 
unwarranted distortions. From the point of view of  environmental 
policy, these choices must  be firmly based on  the principles  laid 
down  In Article  130r of  the Treaty. From the victim's point of 
view,  It would be unfair  if similar  cases  (or even  the same case) 
where a pollution  incident  affects several  Member  States) were 
dealt with  differently. 

Although some Member  States are already  addressing  themselves to 
the question of non-recoverable damage and  Injury to the 
environment, the Commission will  need more time to prepare 
proposals, not only because of  the extreme complexity of  the 
subject but also because  It would be  illogical  to  limit  the scope 
of a Community  Instrument  to damage and  Injury to the environment 
caused by waste. 

For  these reasons, It  is proposed  that  the examination of  the 
Issue should be continued, and  the Commission be  instructed  to 
draft rules. 

11. Legal  basis 

Article  11(3) of Directive 84/631/EEC specifies the use of 
Article 100 as a  legal basis for  the Directive on civil  liability 
for waste. 

The current  differences  In national  provisions on the civil 
liability of the producer  for damage and  injury to the 
environment  caused by waste are  liable to distort  competition, 
affect  the free movement of goods  In the  Internal market  and give 
rise to dlfferrences  In the  level of protection of  health, 
property and  the environment. These differences therefore have a 
direct effect on the establishment or  functioning of  the  Internal 
market. 

Article 11(3) of Directive 84/631/EEC spécifiée Article  100 as a 
legal basis for approximating provisions on civil  liability  for 
damage caused by waste. 

Since the entry  Into force of  the Single Act, Article  100a has 
replaced Article 100 as the appropriate basis for  harmonizing 
national  provisions that have an effect on  the  internal market. 
It  Is therefore proposed  that Article 100a be taken as the  legal 
basis. 

-  7  -

12. The Articles 

Article 1 

This Article  determines  the scope of  the Directive  (see  also 
point 3 ). 

it  Is proposed  to exclude  from  the scope of  the Directive  civil 
liability  regulated  by existing  International  conventions  - to 
the extent  that  they are applied by  the Member  States - and 
clvi11iablIity  for nuclear  waste other  than  that  covered  by 
Community  legislation on waste. 
Article  2 

The definition of  "producer"  is that  used  in Directive 
84/631/EEC;  the definition of  "waste" refers  to  Directive 
75/442/EEC.  it should  be noted  that  the Commission  has  prepared 
and  sent  to the Council  an amendment  to these  Directives, 
providing  among other  things  for  a new definition of  the concept 
of  "waste". 

The  following  are also considered  to be producers of  waste; 

the  Importer  into the Community  of waste  from  non-Community 
countries; 

the holder  of waste, where  the waste  Is  In transit  within 
Community  territory, or  the  Identity of  the actual  producer 
Is unknown; 

the disposal  agent,  if the waste  has been  lawfully  entrusted 
to his cars. 

The definitions of  "damage" and  "Injury  to the environment" are 
dealt  with  In point  6. 

Article  3 

This Article defines  the principles of  strict  liability  and  Its 
assignment  to the producer  (see also points 4 and 5 ). 

Article  4 

This Article  specifies what  actions are admissible  and  requires 
proof of  a causal  link. While  the Commission  has chosen  not  to 
shift  the burden of proof entirely,  It has  Improved  the position 
of  the victim, who  frequently  does not  have  the means of  knowing 
what  certain  "professional" activities entail. 

Article  5 

This Article,  like Article 5 of Directive  85/374/EEC, establishes 
Joint  and  several  liability  In the event  that  several  producers 
are  Imp Iicated. 

Article  6(1) 

This specifies  that  the producer  is not  liable when  the damage or 
Injury  to the environment  Is due  to force majeure. 

- 8 -

Article 6(2) 

Some Member  States consider  that  the holding of an official 
authorization cannot be relied on to  limit or exclude civil 
liability for damage and  Injury to the environment. This  is the 
case for France and  the Netherlands. The Federal  Republic of 
Germany  has for some time now refrained  from granting 
authorizations which  limit the claims of  third parties. 
In view of  the continuing divergence of opinion, the Commission 
has preferred  to regulate this  issue explicitly. 
Article  7 

See point 8(c)(2) and  (3) of  the explanatory  memorandum. 

Article  8 

Civil  liability cannot be considered optional or negotiable. 
Contractual  arrangements derogating  from the provisions of  this 
Directive will  therefore not be permitted. See also Article  12 of 
Directive 85/374/EEC. 

Article 9 and  10 

See above, point 8(a). 

Article 11 

See above, point 10. 

Article  12 

For  the purpose of establishing a system of no-fault  liability, 
account must be taken of various agreements  in force or  In the 
course of negotiation  In the transport sector. 

Ae already  Indicated  In point 4 above, liability  In respect of 
the carriage of dangerous goods  Is to  lie with  the carrier. 

Since the overriding aim  Is to protect  the  Injured party, the 
proposed Directive must avoid restricting his or  her  possible 
recourse under other  Instruments. 

Some  International  agreements provide for  limitation of 
liability. Thle right must be respected by the Directive. 

Article 13 

This Article bars retroactive application of  the Directive. 

- 3 -

Proposal for a 

COUNCIL DIRECTIVE 

ON CIVIL LIABILITY FOR DAMAGE CAUSED 

BY WASTE 

THE COUNCIL OF THE EUROPEAN COMMUNITIES, 

Having regard to the Treaty establishing the European Economic 
Community, and in particular Article 100a thereof, 

Having regard to the proposal from ths Commission*1), 

In cooperation with the European Parliament*2), 

Having regard to the opinion of the Economic and Social Committee*3) 

Whereas Article 11(3) of Directive 84/631/EEC<4), as last amended by Directive 86/279/EEC  , provides 
on the basis of Article 100 of the Treaty for action by the Community to 
determine the conditions for Implementing the civil  I lability of  the 
producer  In the case of damage caused by waste, or that of any other 
person who may be accountable for the said damage, and to determine a 
system of Insurance; 

Whereas the Fourth Environment Action Programme of the European 
Communities of 1987*6) provides In point 5.3.6 that work on the 
question of civil  liability and Insurance in relation to the 
transfrontier movement of waste will be completed and proposals will 
be made; whereas it also providee in point 2.5.5 that the Commission 
will "consider the scope for the better definition of responsibility 
In the environmental field"; 

Whereas disparities among laws of the Member States concerning the 
liability for damage and Injury to the environment caused by waste 
could lead to artificial patterns of Investment  and 
such a situation would distort competition, affect the free movement 
of goods within the Internal market and entail differences In the 
level of protection of health, property and the environment; whereas an 
approximation of the laws of the Member States on this subject Is 
therefore needed; 

waste; whereas 

(D 
(2) 
(3) 
(4) OJ No L 326, 13.12.1984, p.31. 
(5) OJ No L 181, 4.7.1986, p.13. 
(6) OJ No C 328, 7.12.1987, p.6. 

-10-

Whereas,  since  the entry  Into force of  the Single  European Act, Article 100a 
has replaced  Article  100 as  the appropriate  basis  In the Treaty  for 
approximating  national  provisions  that  affect  the  internal  market; 

Whereas  such  approximation  must  be based on  a high  level  of 
protection  both with  regard  to the damage  and  injury  to the 
environment  which may  be  repaired,  and  the conditions  that  must  be 
fulfilled  in order  to  Initiate proceedings; 

Whereas Article  11(1) of  Directive 84/631/EEC requires  the  producer 
of  the waste, 
of waste  to  take all  necessary  steps ' to  d i s p o se 
or  arrange  for  Its disposal,  so as  to protect  the quality  of  the 
envIronment; 

Whereas Community  action  In the field of waste management  seeks  to 
minimize  the production and monitor  the effects of waste,  throughout 
the whole  cycle  from production  to disposal; whereas  it concerns all 
types of waste; 

Whereas  therefore  the Community  system of  civil  liability  in this 
field  should  not  be  limited  to damage  and  Injury  to the environment 
that  occurs during  transfrontier movements of  hazardous waste; 

Whereas  this system  presupposes  the notion of  professional  risk; 

Whereas  the principles established  In 130r(2) of  the Treaty  that  the 
polluter  should  pay and  that  preventive  action  should  be  taken  cannot 
be effectively  Implemented  in the waste management  sector  unless  the 
cost  of  the damage or  Injury to the environment  caused  by  the waste 
is reflected  In the cost of  the goods or  services  that  give rise  to 
the waste; whereas,  In view of  the risk  Inherent  in the very 
existence of waste, the strict  lalblllty of  the producer  constitutes 
the beet  solution'  to the  problem; 

Whereae, however,  if the waste has been  lawfully  transferred  to an 
authorized  disposal  installation, establishment  or  undertaking 
pursuant  to Article 9 of Council  Directive 78/319/EEC*7),  liability 
must  be  transferred  to the  latter; 

Whereas,  In order  to safeguard  the  Injured party's  rights, the holder 
of waste must  be able  to  identify  the producer, on pain of  himself 
being considered  the producer; 

Whereas effective protection of  the  Injured  party  requires  that  he 
should  be able  to claim  full  redress  from each of  the parties 
responsible  for  the damage or  Injury  to the environment,  Irrespective 
of  the establishment  of  the relative  liability of  the part lee; 

Whereas  the protection of  persons and  the environment  requires  that 
the producer's  liability  should not  be  reduced  by  the  Involvement  of 
other  persons having  contributed  to causing  the damage or  Injury  to 
the environment; whereas, however,  the contributory  negligence of  the 
Injured party may  be taken  into account  to .assign, reduce or disallow such 
liability; 

(?)  OJ  No L 84, 31.3.1978, p.43. 

-ft  -

Whereas  the protection of  persons and  the environment  requires 
compensation  for  death  and personal  injury; whereas  such  compensation 
should  be extended  to damage  to property  and  Injury  to the 
environment;  whereas  this Directive does not  prejudice  compensation 
for pain  and suffering and other  non-material  damage  payable, where 
appropriate, under  the  law applicable  to the case; 

Whereas  a uniform  period of  limitation for  Instituting  compensation 
proceedings  Is  in the  Intereets both of  the  injured party  and of  the 
producer ; 

Whereas,  to ensure  the effective protection of  persons  and  the 
environment,  no contractual  derogation  should  be permitted  as  regards 
the  liability of  the producer  In relation  to the  injured  party; 

Whereas market  conditions  at present  are such  that  It  Is not 
opportune  to establish a mandatory  system of  insurance; 

Whereas  rules must  be  laid down at Community  level  for  compen 
sation for damage  and  Injury  to the environment  caused  by waste  In the 
event  that payment  of  full  compensation  is not  possible, 

HAS ADOPTED THIS DIRECTIVE: 

- «-

Article 1 

1.  This Directive shall  concern civil  liability  for damage and 

Injury  to the environment  caused by waste generated  in the course 
of an  occupational  activity, from  the moment  it arises. 

2.  This Directive shall  not  apply 

to nuclear waste-  covered by national  law based on  the 
Convention on Third Party Liability  In the Field of  Nuclear 
Energy  (Parle, 29 July 1960) and the Convention  supplementary 
to the aforementioned Convention  (Brussels, 31 July  1963),  as 
well  as the Protocols attached  to these Conventions; 

to waste and pollution covered  by national  law-  based on  the 
International  Convention on Civil  Liability  for Oil  Pollution 
Damage  (Brussels, 29 November  1969) and  the  International 
Convention on  the Establishment of  an  International  Fund for 
Compensation  for Oil  Damage  (Brussels, 18 December  1971). 

Article  2 

1.  For  the purposes of  this Directive 

a)  "producer" means any natural  or  legal  person whose 

occupational activities  produce  waste and/or  anyone who carries 
out  prs-processlng, mixing or other operations  resulting  In a 
change  in the nature or composition of  this waste, until  the 
moment  when  the damage or  Injury to the environment  Is 
caused ; 

b)  "waste" means any eubstance or object  defined as waste  in 

Article  1 of Council  Directive 75/442/EEC ( 8 ); 

c)  "damage" means: 

i)  damage resulting from death or physical  injury; 

ii)  damage  to property; 

d)  "Injury to the environment" means  a significant  and 

persistent  Interference  In the environment  caused by a 
modification of  the physical, chemical  or  biological 
conditions of water, soil  and/or air  Insofar as these are not 
considered  to be damage' within the meaning of sub-paragraph c ), 
ii). 

(8) 0J No L 194, 25.7.1975, p.47. 

- 4 3-

2.  The  following  shall  be deemed  to be  the producer  of  the waste  In 

place of  the person defined  In paragraph 1(a): 

a)  the person who  imports  the waste  into the Community,  except 

where  the wasts was previously  exported  from  the Community 
and  Its nature or composition  was not  substantially  changed 
prior  to  Its reimportation; 

b)  the person who had actual  control  of  the waste when  the 
Incident giving  rise to the damage or  Injury  to the 
environment  occurred: 

I) 

if he  is not  able within a reasonable period  to  identify 
the producer  as defined  In paragraph  1; 

il)  if the waste  Is in transit  In the Community  without 

having undergone  there a substantial  change  In nature or 
composition before the occurrence of  the  incident  giving 
rise to the damage or  Injury  to the environment; 

c)  the person  responsible for  the  Installation, establishment or 
undertaking where  the waste was  lawfully  transferred  to  such 
Installation, establishment or undertaking  licensed  pursuant 
to Article 8 of  Directive 75/442/EEC, Article 6 of  Council 
Directive 75/439/EEC<9>  or Article 9 of Directive  78/319/EEC, 
or approved pursuant  to Article 6 of Council  Directive 76/403/EEC 

(10) 

Article  3 

The producer  of waste shall  be  liable under  civil  law for  the damage and 
Injury  to the environment  caused by  the waste,  Irrespective of  fault 
on his part. 

Article  4 

1. 

The plalnltff may  take  legal  action to obtain: 

a)  the prohibition or cessation of  the act  causing  the damage or 

Injury to the environment; 

b)  the reimbursement of expenditure ar I sing from measures  to prsvent 

the damage or  Injury to the environment; 

c)  the reimbursement of expenditure  arising fro» measures  to 

compensate for damage within the meaning of sub-paragraph  c) ii) 
of Article 2(1); 

(9) 0J  No L 194, 2 5. 7.1975, p.  31. 

(10) OJ  No L 108, 26.4.1976, p.41. 

- * *-

d)  the  restoration of  the environment  to  Its state  Immediately 
prior  to the occurence of  Injury  to the environment  or  the 
reimbursement  of expenditure* incurred  in connection  with  measures 
taken to this  end; 

e)  indemnification  for the damage. 

2.  With regard to the restoration of  the environment  provided  for in 
paragraph  1 d), the plaintiff,  in  the case of  injury  to the 
environment, may  seek  such  restoration or  the reimbursement  of 
expenditure  incurred- to this end except  when: 

the costs substantially  exceed  the benefit  arising  for  the 
environment  from  such restoration, and 

other  alternative measures to the restoration of  the 
environment  may be undertaken at  a substantially  lower  cost. 

In this  latter  case, the plaintiff may  seek  the  implementation  of 
these other measures or  the reimbursement  of  the expenditure 
incurred  to this  end. 

3.  As  regards  injury 

to the environment,  the public  authorities 

may  take  the  legal  action  provided  for  in paragraph 1 a ), b) and d ). 

4.  Where  the  law  In  Member 

States 
common-interest  groups  the right  to bring  an action  as plaintiff, 
they may  seek only  the prohibition or  cessation of  the act  giving 
rise  to the  Injury  to the environment.  If, however,  they  have 
taken the measures provided  for  In paragraph  K b ), and  (d), they 
may  seek  reimbursement  of  the expenditure  resulting  from  such 
measures. 

gives 

5.  This Directive shall  be without  prejudice  to national  provisions 

relating  to non-mater la I damage. 

6.  The plaintiff  shall  be  required  to prove  the damage or  injury  to 
the environment, and show  the overwhelming  probability of  the 
causal  relationship between  the producer's waste  and  the damage 
or, ae the case may be, the  Injury  to the environment  suffered. 

Article 5 

Where,  under  this  Directive, two or more producers  are  liable  for the 
same damage  or  the  same  injury  to the environment, they  shall  be  liable 
jointly  and  severally, without  prejudice  to the provisions  of  national 
law  concerning  the  right  of  redress. 

Article  6 

1.  The producer  shall  not  be  liable under  this Directive  If he  shows 
that  the damage or  Injury  to the environment  results  from  force 
majeure as defined  In Community  law. 

-fo--

2.  The producer  shall not be  relieved  of 

liability by  the sole 

fact  that he holds a permit  Issued by  the public authorities. 

Article  7 

1.  Without  prejudice  to the provisions of national  law concerning 

the right of  recourse,the  liability of  the producer  shall  not be 
reduced when  the damage or  Injury to the environment  is caused 
both by the waste and by an act or omission of a third  party. 

2.  The  liability of  the producer may be reduced or disallowed when, 

having  regard  to all  the circumstances, the damage  Is caused  both 
by the waste and  the fault of  the  Injured party or of any  person 
for whom  the  injured party  is responsible. 

Article  8 

The  liability of  the producer arising  from  this  Directive may not be 
limited or excluded  in relation  to the injured person by any  contractual 
provision  limiting  his  liability  or exempting  him  from  liability. 

Article  9 

1.  Member  States shall provide  in their  legislation that  of  legal 

under  this Directive shall  be barred upon expiry 

proceedings 
of a period of  three years from the date on which  the party 
taking  legal action under Article  4(1) became aware or 
should  have become  aware  of  the damage or  Injury to the 
environment  and of  the  Identity of  the producer. 

2.  This Directive shall not affect Member  States' provisions on  the 

suspension or  Interruption of  the  limitation  period. 

Article  10 

The right to take  legal action under  this Directive  shall be  extinguished 
upon the expiry of a period of thirty  years  from the date on which  the 
incident  giving  rise to the damage or  injury  to the. environment  occurred, unless 
in the meantime proceedings against  the party  liable for  the damage 
or  Injury to the environment  have been  Instituted. 

Article 11 

The Council, acting on a proposal  from  the Commission, sha11 
determine by 31 December  1992 at the  latest  the conditions to 
be applied and  the means  to be used  in order  to provide  compensation 
for  the damage and  Injury to the environment  covered  by  this 
Directive  in the event  that 

the  person  l i a b le 
identified; 

under 

this  Directive  cannot  be 

the person  liable  is  incapable  of  providing  f u ll  compensation  for  the 
damage  and/or  Injury 

caused. 

Article  12 

This Directive shall not affect: 

a)  any rights which  may be relied upon by the plaintiff under this 

Directive under international conventions on civil liaDility for the 
carriage of dangerous goods in force at the relevant time; 

b)  any rights established by the International Convention on 

Limitation of Liability for Maritime Claims (London, 19 November 
1976). 

Article 13 

This Directive shall not apply to damage or  Injury  to the 
environment arising from an incident which occurred before the date 
on which  ita provisions are implemented. 

Article 14 

1.  Member States shall bring Into force, not  later than 1 January 
1991, the I awe, regulations and administrative provisions 
necessary to comply with this Directive. They shall forthwith 
inform the Commies ion thereof. 

2.  The provisions adopted pursuant to paragraph 1 shall make 

express  reference to this Directive. 

3.  Member States shall communicate to the Commission the texts of 

the provisions of national  law which they adopt  in the field 
governed  by this Directive. 

Article 15 

This Directive is addressed to the Member Statee. 

Done at Brussels, 

For the Council 

ISSN 0254-1475 

COM (89) 282 final 

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