Opinion of the Economic and Social Committee on the 'White Paper on Environmental Liability'
Date: 2000-07-12
Institutions: European Economic and Social Committee
Subjects: approximation of laws, civil liability, drafting of EU law, environmental protection, genetically modified organism, polluter pays principle

19.9.2000

EN

Official Journal of the European Communities

C 268/19

Opinion of the Economic and Social Committee on the ‘White Paper on Environmental Liability’

(2000/C 268/07)

On 18 February 2000, the Commission decided to consult the Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the ‘White Paper on Environmental
Liability’.

The Section for Agriculture, Rural Development and the Environment, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 21 June 2000. The rapporteur
was Mrs Sa´nchez Miguel.

At its 374th plenary session (meeting of 12 July 2000), the Economic and Social Committee adopted the
following opinion by 87 votes to seven, with 19 abstentions.

1.

Introduction

GMOs until they have been scientifically proven to be harmless
for human health and the environment.

1.1.
It has taken the Commission almost seven years since
the Green Paper on Remedying environmental damage (1) to
publish a White Paper establishing the structure of a future
Community regime for environmental liability and outlining
the main factors that will determine the effectiveness and
viability of this regime.

1.2.
In the meantime, it has become clear that it is necessary
not only to prevent environmental damage caused by human
activity, but also to implement another essential prin-
ciple — the ‘polluter pays’ — which is echoed throughout
Community legislation and which is gradually becoming
accepted to varying degrees by all the social players.

1.3.
The serious incidents of recent years — Don˜ ana, Erika,
Baia Mare etc. — have demonstrated the need to transcend
national legislation on environmental liability, which does not
provide the instruments required to respond to those cases
where damage affects more than one country. National laws
on environmental liability differ greatly, and some countries
still have no legislation on the subject. This makes it difficult
to address environmental problems effectively.

1.4.
Consideration should also be given to certain develop-
ments whose possible impact has to be predicted, such as the
extensive use of GMOs, which is currently meeting stiff
opposition in civil society. The precautionary principle must
is
apply in full
currently being reviewed.
In some Member States, some
strands of opinion are calling for a moratorium on the use of

to GMOs. The relevant EU legislation (2)

(1) COM(93) 47 final of 14 May 1993.
(2) Directive 90/220/EEC — OJ L 117, 8.5.1990.

2. Gist of the White Paper

set out

in particular,

the environmental principles

2.1.
The White Paper explores various ways to shape an
EU-wide environmental liability regime, in order to improve
application of
in
Article 174(2) of the EC Treaty (the ‘precautionary’, ‘preventive
‘polluter-pays’ principles) and
action’ and,
implementation of EU environmental law. Pursuant to these
principles, the EU regime would aim to serve as an effective
instrument of prevention supporting the application of other
its main
existing EU environmental
purpose is to repair environmental damage in compliance with
the ‘polluter-pays’ principle, so that society is not left to foot
the bill directly.

legislation. However,

The main features of a possible Community regime are

2.2.
outlined, including:

— no retroactivity;

— coverage of both traditional damage (harm to health and
property) and environmental damage (site contamination
and damage to biodiversity: the latter only if they are
protected under the Natura 2000 network based on the
habitats and wild birds directives. It could, therefore,
cover not only damage to habitats, but to flora and fauna
as well, e.g. migratory birds);

— a closed scope of application (‘regulated activities’) linked
with EU environmental
legislation: contaminated sites
and traditional damage to be covered only if caused by
an EU-regulated hazardous or potentially hazardous
activity (these activities are established in many directives
such as those setting limits on emissions of dangerous
substances into the air or into the marine environment,
the IPPC and Seveso II directives, legislation on waste
disposal, GMOs, etc.);

C 268/20

EN

Official Journal of the European Communities

19.9.2000

— strict liability (which means that there is no need to prove
the fault of the polluter, simply a link between the facts
for damage caused by ‘inherently
and the damage)
dangerous activities’, and fault-based liability for damage
(to the Natura 2000 network only) caused by ‘a non-
dangerous activity’;

— codification of defences (exempting or extenuating cir-

cumstances) removing or reducing liability;

— liability focused on the operator in control of the activity
which caused the damage. If this is a company with a
legal personality, the legal person will be liable instead of
the management or other employees;

— criteria for assessing different types of damage;

— an obligation to spend compensation paid by the polluter

on environmental restoration;

— proposals for enhanced access to justice (the question of
‘ius standi’ for filing a liability lawsuit). The White Paper
expresses a preference for the State as opposed to
environmental organisations and associations, which can
only take direct action in urgent cases).

the White Paper concludes that

2.3.
Different options for Community action are presented
the most
and assessed:
appropriate option would be a framework directive. The details
of such a directive should be fleshed out in the light of the
consultations the Commission is carrying out.

3. General comments

3.1.
The ESC is satisfied with this White Paper and calls on
the Commission to ensure that the final result is a legislative
proposal which, combined with the other available Com-
munity instruments, serves to curb the EU’s environmental
decline.

In line with its previous opinions (1), the ESC supports
3.2.
the legislative instrument proposed i.e. a framework directive,
as this will allow the subsidiarity principle to be clearly applied,
thus harmonising the broad lines and allowing Member States
to develop the regulations which they consider most necessary.

3.2.1.
The framework directive would mean merging into
a single text existing pieces of legislation whose disparate
nature hampers their application. It would also repeal obsolete

(1) ESC opinion on the Green Paper on Remedying environmental
damage — OJ C 133, 16.5.1994. For the ESC’s position on a
framework directive as an instrument, see its opinion on the
Proposal for a Directive establishing a framework for Community
action in the field of water policy — OJ C 355, 21.11.1997.

legislation while maintaining tried and tested scientific con-
cepts, and would, above all, make the provisions clearer and
easier to apply for the parties concerned.

The ESC welcomes the non-retroactive nature of the
3.3.
proposed regime. It should be borne in mind that this principle
will not apply when polluting activities commencing prior to
the entry into force of the EU regime continue subsequently.
In such cases, the polluter will be liable. Account should also
be taken of compliance with environmental legislation over
the period concerned.

3.4. With regard to the proposed damage to be covered,
the ESC stresses the major importance of a broad liability
system which covers not only traditional damage but also
environmental damage. It is true that in the EU there are
currently liability regimes for failure to comply with environ-
mental legislation, incurring purely monetary penalties, and
that Member States can broaden the system to impose other
types of penalty. This type of penalty, however, compensates
only part of the damage caused and does not serve to fully
restore the damaged environment.

3.5.
The benefits to be secured by enforcing environmental
liability must not be undermined by the recognition of certain
defences. These defences must be calibrated in line with
the degree to which environmental regulations have been
respected, and obeying a compulsory order from the relevant
administrative authority could be considered as a cast-iron
defence.

3.6.
The proposed regime could have a preventive effect, as
it will involve finding and increasing the resources for more
rigorous environmental action. In this respect, measures are
needed to help SMEs adapt
their production systems to
environmental needs. This means simplified procedures that
take account of the number of small firms which carry out
‘hazardous’ activities and which would therefore be affected.
Funds could also be provided to help SMEs adjust to the new
requirements, especially as regards the cost of insurance.

3.7.
In the interest of fairness, it is necessary to establish
the criteria and method for calculating environmental damage.
Regional regimes are already being applied using evaluation
criteria such as the value of natural resources. The cost of
repairing environmental damage could also be applied as a
criterion. The use of several different criteria means that they
can be adjusted according to the type of damage caused, as
they take account of all the contributory factors. It is in any
case necessary to continue seeking criteria which uphold the
principle of equity in repairing damage.

19.9.2000

EN

Official Journal of the European Communities

C 268/21

In order to develop evaluation criteria,
it seems
3.7.1.
helpful
to use ‘benefit-transfer’ databases similar to the
Environmental Valuation Resource Inventory (EVRI) which
contains relevant evaluation material.

meet their obligation under Directive 92/43/EEC and submit
national lists which truly meet the Directive’s requirements.

3.7.2.
The criteria for calculating the compensation to be
paid by the polluter should include whether environmental
regulations have been complied with, whether the activity had
been licensed, whether more than one party is liable, and the
defences which might reduce liability.

3.8.
the EU
So as to preserve the competitiveness of
economy, the introduction of environmental liability should
have no adverse effects. Although the Commission does not
currently have any verifiable data on the effects on external
competitiveness, the outlook is promising since most OECD
countries have this type of legislation (1). This should minimise
the impact, as liability systems and the attendant guarantees
will be generalised.

3.8.1.
The ESC also takes the view that under the relevant
international agreements (for example, the Lugano Conven-
tion), the EU should propose that environmental
liability
regulations be aligned in all countries, especially within the
WTO, so as to avoid distortions of competitiveness.

3.9.
It is also necessary to anticipate EU enlargement, as
environmental policies in the applicant countries differ from
Community policies. When the acceding countries incorporate
Community legislation into their own, they should also be
provided with wide-ranging information, and interested parties
should be consulted. They should also receive financial support
(e.g. from the pre-accession funds) enabling them to comply
within the requisite time-frame.

4.

Specific comments

4.1.
The ESC feels that some aspects of the proposed
environmental liability for damage to biodiversity could be
improved in a future framework directive.

Damage to bio-diversity will only apply within the
4.1.1.
Natura 2000 network. It is therefore vital that the Commission
adopt the list of sites of Community importance as soon as
possible. The Committee calls on the Member States to finally

(1) The United States, where environmental

liability has been in
application for 20 years, has calculated that the Superfund regime
amounts to less than 5 % of the total spent each year at national
level to ensure compliance with federal environmental legislation.

4.1.2.
Establishing a threshold for triggering liability is
necessary in the interests of legal certainty. However, it must
be borne in mind that it is not always possible to evaluate the
damage immediately. The threshold should not be based solely
on economic factors; the decision as to whether damage is
significant should also relate to the damage to biodiversity and
the pollution of the site. The Committee thinks that any
legislative instrument should clarify the terms ‘threshold’ and
‘significant damage’ in order to avoid any inconsistencies in
implementation.

4.1.3.
The drafting of the provisions of the framework
directive that concern GMOs will be a particularly delicate
matter. The legislation (90/220) concerning risk assessment
and authorisations is being revised, and is currently in the
conciliation procedure between the European Parliament and
the Council. One point of dispute has been the question of
liability, and the Commission has promised, in a statement
from Commissioner Wallström, to regulate the matter hori-
zontally in the framework directive by the end of 2001. It
should also be remembered that products containing GMOs
are already covered by the Directive on liability for defective
products (2) (damage to persons and goods) which was recently
extended to include non-processed agricultural products. Point
4.5.4 of the White Paper rightly mentions this link, stating
that the Product Liability Directive prevails as the legislation
applicable when compensation is sought for traditional dam-
age. The liability regime for damage to the environment and
to biodiversity urgently needs to be clarified, as is clear from
the recent cases of farmers who found themselves unwittingly
using genetically modified seed.

4.2.
The fact that there are two different types of liability
also affects the burden of proof. In the case of strict liability
(for damage caused by activities considered dangerous under
Community legislation (3)), the plaintiff must only prove the
causal
In the
link between the damage and the polluter.
case of fault-based liability (where the defendant has acted
wrongfully), the plaintiff must also prove that there was
deliberate intent. The Committee takes the view that the
Commission proposal is in this instance justified, and supports
it.

(2) Council Directive 85/374/EEC, amended by Directive 99/34/EC

in OJ L 141, 4.6.1999.

(3) The White Paper states that it is important for the EU liability
regime for the protection of biodiversity also to cover non-
dangerous activities, since the Wild Birds and Habitats Directives
contain a set of requirements for restoration of significant damage
regardless of the nature of activity responsible. The Commission,
however, believes that in these cases the liability should differ
from that established for damage caused by dangerous activities.

C 268/22

EN

Official Journal of the European Communities

19.9.2000

4.3.
A liability action may also be affected by the type of
defence, as noted in 3.5 above. The Committee considers that
the only firm defences should be an Act of God or a
compulsory order by a public authority. Other defences may
be considered only as extenuating circumstances. In many
cases, the combined action of a producer and a public authority
would make them jointly liable for environmental damage.

4.4.
A matter of great importance which is not addressed
in the White Paper is information. For the proposed system to
be effective, it requires the involvement of socio-economic
organisations, NGOs and other associations concerned with
environmental protection. It therefore needs an information
network channelling information from the public authorities
to the public and vice versa on achievable measures to avoid
environmental damage.

4.4.1.
There could be a thematic network such as the one
for Community action in the field of accidental marine
pollution.

4.4.2.
implemented (1).

The United Nations Århus Convention could be

4.4.3.

The IMPEL network could be used.

4.5.
The White Paper states that the active legal capacity to
bring an action belongs in the first instance to the State, i.e.
the relevant administrative authority and,
in the second
instance, to environmental organisations and interested parties.
The Committee considers this to be a necessary system in
order to be able to challenge possible procrastination or
negligence on the part of the authorities.

The Committee welcomes the provision allowing
4.5.1.
urgent injunction measures to freeze the activities of the
polluter in order to prevent greater damage.

4.6.
proposal

A matter of vital importance to the effectiveness of the
is the compulsory insurance for all dangerous

(1) UN/ECE Convention on Access to information, public partici-
pation in decision-making and access to justice in environmental
matters. The Convention was adopted at the Ministerial Confer-
ence in Århus (Denmark) on 23-25 June 1998.

Brussels, 12 July 2000.

activities affecting the environment. The implementation of
Directive 85/374/EEC has proven not to have had a significant
impact on the financial costs to businesses. It has even been
extended to the service sectors (particularly the medical
profession), owing to the peace of mind it affords parties
subject to this type of liability. The Committee considers that
the requirement for compulsory insurance puts this type of
liability on the same footing as other forms of compulsory
insurance already regulated in the EU, such as motor-vehicle
insurance or civil liability insurance for defective products. The
Committee also thinks it makes sense for companies to take
other measures which they can choose voluntarily (e.g.
reserves, letters of intent, further insurance).

5. Conclusions

5.1.
The Committee recognises the importance of civil
liability actions for the environment. A number of elements
must be clearly defined in order to ensure that the instrument
is easy to apply for all Member States. The Committee therefore
recommends that:

5.1.1.
texts governing liability.

A list should be drawn up of all Community legal

The following concepts should be defined: dangerous
5.1.2.
activity; damage to biodiversity;
identification of protected
areas; damage evaluation criteria; and all other terms influen-
cing implementation.

5.1.3.
The two proposed liability regimes (strict liability for
dangerous activities and fault-based liability for non-dangerous
activities) should be clearly distinguished so that there are no
grounds for confusion when implementing the system. An
Appendix should specify the Community provisions which
determine dangerous activities and those which determine the
liability system for non-dangerous activities.

5.2.
The Committee feels that a framework directive pro-
vides the best instrument for dealing with environmental
liability, as it can best accommodate the different situations
within the EU. However, the terms of harmonisation must not
skew competition. This risk must be borne in mind with a
view to establishing a minimum statutory core.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

19.9.2000

EN

Official Journal of the European Communities

C 268/23

APPENDIX

to the Opinion of the Economic and Social Committee

The following amendment, which received at least one quarter of the votes cast, was defeated during the discussion.

Point 4.3

Amend the second and third sentences as follows:

‘The Committee considers that an Act of God or a compulsory order by a public authority should always be accepted
as exempting circumstances. Other reasons may also be considered as exempting or extenuating circumstances.’

Reason

To ensure a reasonable degree of legal certainty, in particular taking into account that the proposed liability regime
will cover the new area of environmental damage alongside traditional damage.

Result of the vote

For: 35, against: 58, abstentions: 1.