Proposal for a Directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage
Date: 2002-01-23
Institutions: European Commission
Subjects: degradation of the environment, environmental risk prevention, liability, polluter pays principle, pollution control measures, prevention of pollution

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Official Journal of the European Communities

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Proposal for a Directive of the European Parliament and of the Council on environmental liability
with regard to the prevention and remedying of environmental damage

(2002/C 151 E/06)

(Text with EEA relevance)

COM(2002) 17 final — 2002/0021(COD)

(Submitted by the Commission on 21 February 2002)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 175(1) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social
Committee,

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty,

Whereas:

(1) There are currently many contaminated sites

in the
Community posing significant health risks and the loss
of biodiversity has dramatically accelerated over the last
decades. Failure to act could result
in increased site
contamination and greater loss of biodiversity in the
is
future. Preventing and remedying,
to
possible,
damage
environmental
implementing the objectives
the
Community's environment policy as set out in Article
174 of the Treaty.

in so far as
contributes
and principles of

(2) The prevention and remedying of environmental damage
should be implemented through the furtherance of the
principle according to which the polluter should pay, as
indicated in Article 174(2) of the Treaty. One of the
fundamental principles of this Directive should therefore
be that an operator whose activity has caused the environ-
mental damage or the imminent threat of such damage
will be held financially liable in order to induce operators
to adopt measures and develop practices to minimise the
risks of environmental damage so that their exposure to
financial liabilities is reduced.

be

can

and

better

namely

achieved

therefore

implications

the
legislation,

(3) Since the objective of the proposed action, namely to
establish a common framework for the prevention and
remedying of environmental damage at a low cost to
society, cannot be sufficiently achieved by the Member
States
at
Community level by reason of the scale of the proposed
in respect of other
action and
Community
Council Directive
79/409/EEC of 2 April 1979 on the conservation of
wild birds (1), Council Directive 92/43/EEC of 21 May
1992 on the conservation of natural habitats and of
wild fauna and flora (2), and Directive 2000/60/EC of
the
the Council of
for
23 October
Community action in the field of water policy (3), the
Community may adopt measures in accordance with the
principle of subsidiarity as set out in Article 5 of the
In accordance with the principle of propor-
Treaty.
tionality, as set out in that Article, this Directive does
not go beyond what is necessary in order to achieve
those objectives.

European Parliament

2000 establishing

and of
a

framework

(4) Notions instrumental

to the correct

interpretation and
application of the scheme provided for by this Directive
should be defined. When the notion in question derives
from other relevant Community legislation, the same defi-
nition should be used so that common criteria can be
used and uniform application promoted.

(5) Biodiversity should also be defined by reference to areas
of protection or conservation that have been designated in
pursuance of national legislation on nature conservation.
Account
specific
situations where Community directives or equivalent
national provisions allow for certain derogations from
the level of protection afforded to the environment.

should nevertheless be

taken of

(6) This Directive should apply, as far as environmental
damage is concerned,
to occupational activities which
present a risk for human health and the environment.
Those activities should be identified,
in principle, by
reference to the relevant Community legislation which
provides
in relation to
regulatory requirements
certain activities or practices considered as posing a
potential or actual risk for man or the environment.

for

(1) OJ L 103, 25.4.1979, p. 1. Directive as

last amended by

Commission Directive 97/49/EC (OJ L 223, 13.8.1997, p. 9).
(2) OJ L 206, 22.7.1992, p. 7. Directive amended by Directive

97/62/EC (OJ L 305, 8.11.1997, p. 42).

(3) OJ L 327, 22.12.2000, p. 1.

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(7) This Directive should also apply, in relation to biodiversity
damage, to any occupational activities other than those
already directly or indirectly identified by reference to
Community legislation as posing an actual or potential
risk for man or the environment.

(8) Express account should be taken of the Euratom Treaty
and relevant international conventions and of Community
legislation regulating more comprehensively and more
stringently the operation of any of the activities falling
under the scope of this Directive. This Directive, which
does not provide for additional rules of conflict of laws
when it specifies the powers of the competent authorities,
is without prejudice to the rules on international
juris-
diction of courts as provided, inter alia, in Council Regu-
lation (EC) No 44/2001 of 22 December 2000 on juris-
diction and the recognition and enforcement of judgments
in civil and commercial matters (1). This Directive should
not apply to activities carried out
in the interest of
national defence.

(9) Not all forms of environmental damage can be remedied
by means of the liability mechanism. For the latter to be
effective, there need to be one (or more) identifiable actors
(polluters), the damage needs to be concrete and quan-
tifiable, and a causal link needs to be established between
the damage and the identified polluter(s). Liability is
therefore not a suitable instrument
for dealing with
pollution of a widespread, diffuse character, where it is
impossible to link the negative environmental effects with
the activities of certain individual actors.

(10) Since the prevention and remedying of environmental
damage is a task directly contributing to the pursuit of
the Community's environment policy, public authorities
should be
to
ensure the proper implementation and enforcement of
the scheme provided for by this Directive.

entrusted with special

responsibilities

(11) In order for the system to be effective, the competent
authority should take action itself
in cases where the
operators responsible do not or are not able to take the
necessary measures
environmental
damage or to remedy such damage.

to prevent

either

(12) Restoration of the environment should take place in an
effective manner ensuring that the relevant restoration
objectives are achieved. Appropriate guidelines should
be defined to that end, the proper application of which
should be supervised by the competent authority.

(13) Appropriate provision should be made

situations where

several

instances of

(1) OJ L 12, 16.1.2001, p. 1.

for

those
environmental

the
damage have occurred in such a manner
competent authority cannot ensure that all the necessary
restorative measures are taken at the same time. In such a
case, the competent authority should be entitled to decide
to be
which instance of
remedied first.

environmental damage

that

is

(14) According to the ‘polluter pays’ principle, an operator
causing environmental damage or creating an imminent
threat of such damage should, in principle, bear the cost
of the necessary preventive or restorative measures.
In
cases where a competent authority has to act itself or
through a third party in the place of an operator, that
authority should ensure that the cost incurred by it is
recovered from the operator. It is also appropriate that
the operators should ultimately bear the cost of assessing
environmental damage and, as the case may be, assessing
an imminent threat of such damage occurring.

(15) Member

that

States

ensure

should

the necessary
preventive or restorative measures are taken when the
polluter pays principle cannot be implemented. In such
cases, Member States should adopt whatever provisions
they deem fit
in conformity with their legal systems
provided that they ensure effectively that the necessary
preventive or restorative measures are financed.

(16) Where biodiversity damage has been caused by an
operator in the course of an occupational activity other
than one of those identified by this Directive as posing an
actual or potential risk for man or the environment, that
operator should not be obliged to bear
the cost of
preventive or restorative measures taken in pursuance of
this Directive where it is not established that the operator
was at fault or negligent.

(17) Appropriate account should be taken of situations where
the damage in question or imminent threat thereof is the
result of certain events beyond the operator's control or of
emissions or events explicitly authorised or where the
potential for damage could not have been known when
the event or emission took place, or where persons act in
their capacity as insolvency practitioners and are not
fault or negligent, or where operators
otherwise at
requirements
regulatory
the
merely
imposed on their activity. In that context, there may be
is justifiable that, although the
situations in which it
operator should not bear
the cost of preventive or
restorative measures, Member States should nevertheless
be required to take action.

comply with

(18) Operators should bear the costs relating to preventive
measures when those measures should have been taken
as a matter of course in order to comply with the legis-
lative, regulatory and administrative provisions regulating
their activities or the terms of any permit or author-
isation.

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(19) Appropriate provision should be made to take account of
cases where several operators have caused the damage
including the possibility for Member States to either
provide for joint and several liability or for apportionment
on a fair and reasonable basis of the financial responsi-
bility.

(20) Competent authorities should be entitled to recover the
from an
cost of preventive or
operator for a reasonable period of time from the date
on which those measures were effected.

restorative measures

(21) It is necessary to ensure that effective means of implemen-
tation and enforcement are available, while ensuring that
the legitimate interests of the relevant operators and other
interested parties are adequately safeguarded. Competent
authorities should carry out appropriate investigations and
tasks entailing expert
specific
remain in charge of
administrative discretion,
knowledge and appropriate
namely the duty to assess
the
significance of
the
damage and to determine which restorative measures
should be taken.

authority

(22) Persons adversely affected or likely to be adversely affected
by environmental damage should be entitled to ask the
action. Environmental
to take
competent
protection is, however, a diffuse interest on behalf of
which individuals will not always act or will not be in a
position to act. Qualified entities should therefore be
given a special status so that they can properly contribute
to the effective implementation of this Directive.

(23) In order

to facilitate requests for action, appropriate
procedures should be provided for, and the competent
authority should be under an obligation to inform the
interested party when it
is not possible to take a
decision within a reasonable period or time.

(24) The relevant persons and qualified entities should have
access to procedures for the review of the competent
authority's decisions, acts or failure to act.

(25) Where environmental damage affects or is likely to affect
several Member States,
should
co-operate with a view to ensuring proper and effective
preventive or, as the case may be, restorative action in
respect of any environmental damage.

those Member States

(26) Member States should encourage the use by operators of
financial
any appropriate insurance or other forms of
security in order to provide effective cover for financial
obligations under this Directive.

(27) This Directive should not prevent Member States from
maintaining or enacting more stringent provisions in
relation to the prevention and remedying of environ-
mental damage; nor should it prevent the adoption by
Member States of appropriate measures in relation to
situations where double recovery could occur as a result

of concurrent action by a competent authority under this
Directive and by a person whose property is affected by
damage.

(28) Damage caused before the expiry of

the deadline for
implementation of this Directive should not be covered
by its provisions and appropriate provision should be
made for cases where it is not clear whether or not the
cause of the damage occurred after that date.

(29) Member States should report to the Commission on the
experience gained in the application of this Directive so as
taking into
to enable the Commission to consider,
account the impact on sustainable development, whether
any review of the Directive is appropriate,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

The purpose of this Directive is to establish a framework, based
on environmental liability, for the prevention and remedying of
environmental damage.

Article 2

Definitions

1. For the purpose of this Directive the following definitions

shall apply:

1.

2.

‘baseline condition’ means the condition of the natural
resources and services that would have existed had the
damage not occurred, estimated on the basis of
historical data, reference data, control data, or data on
incremental changes (such as the number of dead
animals), alone or in combination, as appropriate;

‘biodiversity’ means natural habitats and species listed
in Annex I to Directive 79/409/EEC, or in Annexes I, II
and IV to Directive 92/43/EEC, or habitats and species,
not covered by those Directives,
for which areas of
protection or
conservation have been designated
pursuant to the relevant national legislation on nature
conservation;

3.

‘conservation status’ means:

(a)

species

the sum of

in respect of a natural habitat,
the
influences acting on a natural habitat and its
typical
long-term
that may affect
structure and functions as
natural distribution,
well as the long-term survival of its typical species
within, as the case may be, the European territory
of the Member States to which the Treaty applies or
the territory of a Member State or the natural range
of that habitat;

its

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(b) in respect of a species, the sum of the influences
acting on the species concerned that may affect the
long-term distribution and abundance of its popu-
lations within, as the case may be, the European
to which the
territory of
Treaty applies or the territory of a Member State
or the natural range of that species;

the Member States

‘costs’ means costs which are justified by the need to
ensure the proper and effective implementation of this
Directive
and
enforcement costs,
the costs of data collection and
other general costs and monitoring and supervision
costs;

administrative,

including

legal,

‘damage’ means a measurable adverse change in a
natural resource and/or measurable impairment of a
natural resource service which may occur directly or
indirectly and which is caused by any of the activities
covered by this Directive;

‘imminent
environmental damage will occur in the near future;

threat’ means a sufficient

likelihood that

‘insolvency practitioner’ means a person appointed in
accordance with the relevant national
the
purposes of
liquidation, winding up or
insolvency,
analogous proceedings;

law for

4.

5.

6.

7.

8.

‘natural resource’ means biodiversity, water and soil,
including subsoil;

9.

‘operator’ means any person who directs the operation
of an activity covered by this Directive including the
holder of a permit or authorisation for such an activity
and/or the person registering or notifying such an
activity;

10.

‘person’ means any natural or legal person;

11.

‘land contamination’ or ‘soil and subsoil contamination’
means the direct or indirect introduction, as a result of
human activity, of substances, preparations, organisms
or micro-organisms harmful
to human health or
natural resources into soil and subsoil;

12.

‘preventive measures’ means any measures taken in
response to an event, act or omission that has created
an imminent threat of environmental damage, with a
view to preventing or minimising that damage;

13.

‘occupational
activity and the rendering of services to the public;

non-profit-making

includes

activity’

14.

15.

16.

‘qualified entity’ means any person who, according to
law, has an interest in
criteria laid down in national
ensuring that
remedied,
is
environmental damage
including bodies and organisations whose purpose, as
indicated by the articles of incorporation thereof, is to
protect
any
requirements specified by national law;

and which meet

environment

the

‘recovery’ means
resources and/or services to baseline condition;

return of damaged natural

the

‘restoration’ means any action, or combination of
replace damaged
actions,
natural
to
provide an equivalent alternative to those resources or
services, including:

to restore,
resources and/or

impaired services, or

rehabilitate or

(a) primary restoration, which is any action, including
returns damaged natural
to baseline

that
impaired services

natural
recovery,
resources and/or
condition;

(b) compensatory restoration, which is any restorative
action taken in relation to natural resources and/or
services in a different location from that in which
the relevant natural resources and/or services have
been damaged and any action taken to compensate
resources and/or
for
from the date of damage
services
the return of damaged natural
occurring until
resources and/or
to baseline
condition;

interim losses of natural

impaired services

that occur

17.

(or

‘services’
‘natural resources services’) means the
functions performed by a natural resource for the
benefit of another natural resource and/or the public;

18.

‘environmental damage’ means:

(a) biodiversity damage, which is any damage that has
serious adverse effects on the conservation status of
biodiversity;

(b) water damage, which is any damage that adversely
affects the ecological status, ecological potential
and/or chemical status of the waters concerned to
such an extent that this status will or is likely to
deteriorate from one of the categories defined in
Directive 2000/60/EC with the
exception of
adverse effects where Article 4(7) of Directive
2000/60/EC applies;

(c)

land damage, which is any damage that creates
serious potential or actual harm to public health
as a result of soil and subsoil contamination;

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19.

‘value’ means the maximum amount of goods, services,
or money that an individual
is willing to give up to
obtain a specific good or service, or the minimum
amount of goods, services, or money that an individual
is willing to accept to forgo a specific good or service.
The total value of a habitat or species includes the value
derived by individuals from their direct use of
the
natural resource, for example, swimming, boating, or
birdwatching, as well as the value attributed by indi-
viduals to the habitats and species irrespective of direct
uses. This excludes loss of financial
income to indi-
viduals;

(a) the International Convention of 27 November 1992 on

Civil Liability for Oil Pollution Damage;

(b) the International Convention of 27 November 1992 on the
Establishment of an International Fund for Compensation
for Oil Pollution Damage;

(c)

the International Convention of 23 March 2001 on Civil
Liability for Bunker Oil Pollution Damage;

20.

‘waters’ mean
2000/60/EC;

all waters

covered

by Directive

(d) the International Convention of 3 May 1996 on Liability
and Compensation for Damage in Connection with the
Carriage of Hazardous and Noxious Substances by Sea;

21.

‘emission’ means the release in the environment of
substances,
or micro-
organisms.

preparations,

organisms

(e)

the Convention of 10 October 1989 on Civil Liability for
Damage Caused during Carriage of Dangerous Goods by
Road, Rail and Inland Navigation Vessels.

2. Biodiversity damage within the meaning of paragraph
1(18)(a) does not include adverse effects which result from
an act by the operator which was expressly authorised by
the relevant authorities
in accordance with provisions
implementing Article 6(3) and (4) of Directive 92/43/EEC
or in accordance with any other provisions of national law
which have equivalent effect in relation to habitats and
species protected under national
legislation on nature
conservation but not covered by Directives 79/409/EEC or
92/43/EEC, provided that those national provisions offer at
least equivalent guarantees,
the
compensatory measures required.

including in terms of

4.
This Directive shall not apply to such nuclear risks or
environmental damage or imminent threat of such damage as
may be caused by the operation of the activities covered by the
Treaty establishing the Atomic Energy European Community or
caused by an incident or activity in respect of which liability or
compensation is regulated by any of the following agreements:

(a) the Paris Convention of 29 July 1960 on Third Party
Liability in the Field of Nuclear Energy and the Brussels
Supplementary Convention of 31 January 1963;

Biodiversity damage does not include adverse effects which
result from an act by the operator which was expressly
authorised by the relevant authorities in accordance with
provisions implementing Article 9 of Directive 79/409/EEC
or Article 16 of Directive 92/43/EEC.

Article 3

Scope

1.
This Directive shall apply to environmental damage
caused by the operation of any of the occupational activities
listed in Annex I, and to any imminent threat of such damage
occurring by reason of any of those activities.

This Directive shall apply to biodiversity damage caused
2.
by the operation of any occupational activities other than those
listed in Annex I, and to any imminent threat of such damage
occurring by reason of any of those activities.

(b) the Vienna Convention of 21 May 1963 on Civil Liability
for Nuclear Damage, and the Vienna Convention of
12 September 1997 on Supplementary Compensation for
Nuclear Damage;

(c)

the Joint Protocol of 21 September 1988 Relating to the
Application of
the Vienna Convention and the Paris
Convention;

(d) the Brussels Convention of 17 December 1971 relating to
Civil Liability in the Field of Maritime Carriage of Nuclear
Material.

5.
This Directive shall apply without prejudice to more
stringent provisions of Community legislation regulating the
operation of any of the activities falling within the scope of
this Directive and without prejudice to Community legislation
containing rules on conflicts of jurisdiction.

3.
This Directive shall not apply to environmental damage
or to any imminent threat of such damage arising from an
incident
in respect of which liability or compensation is
regulated by any of the following agreements:

6.
This Directive shall not apply to environmental damage
or to an imminent threat of such damage caused by pollution
of a widespread, diffuse character, where it is impossible to
establish a causal link between the damage and the activities
of certain individual operators.

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This Directive shall not apply to activities

7.
purpose of which is to serve national defence.

the sole

Subject

to Article 11(3),

this Directive shall not give
8.
private parties a right of compensation for any economic
loss sustained in consequence of environmental damage or of
an imminent threat of such damage.

Article 4

Prevention

1. Where environmental damage has not yet occurred but
there is an imminent threat of such damage occurring, the
competent authority shall either require the operator to take
the necessary preventive measures or shall
take such
measures.

itself

2. Without prejudice to any further action which could be
required by the competent authority under paragraph 1,
Member States shall provide that, when operators are aware
to be aware of such an
threat or ought
of an imminent
imminent
those operators are required to take the
threat,
necessary measures to prevent environmental damage from
occurring, without waiting for a request
to do so by the
competent authority.

3. Member States shall provide that where appropriate, and
in any case whenever an imminent threat of environmental
damage is not dispelled despite the preventive measures
taken by the relevant operator, operators are to inform the
competent authority of the situation.

If the operator fails to comply with the obligations laid
4.
down in paragraph 1 or 2, the competent authority shall take
the necessary preventive measures.

Article 5

Restoration

environmental

1. Where
the
competent authority shall either require the operator to take
the necessary restorative measures or shall
take such
measures.

occurred

damage

itself

has

issued
If the operator fails to comply with a request
2.
under paragraph 1, the competent authority shall take the
necessary restorative measures.

In making that decision, the competent authority shall have
regard,
the
various instances of environmental damage concerned, and to
the possibility of natural recovery.

to the nature, extent and gravity of

inter alia,

Article 6

Additional provisions

in relation to prevention and
restoration

Subject to Article 9(1), Member States shall ensure that

1.
the necessary preventive or restorative measures are taken:

(a) where it is not possible to identify the operator who caused

the damage or the imminent threat of damage;

(b) where the operator can be identified but has insufficient
financial means to take any of the necessary preventive or
restorative measures;

(c) where the operator can be identified but has insufficient
financial means to take all of the necessary preventive or
restorative measures; or

(d) where the operator is not required under this Directive to
bear the cost of the necessary preventive or restorative
measures.

2. Measures taken in pursuance of paragraph 1(a), (b) and
(c) shall be without prejudice to the liability of the relevant
operator under this Directive and without prejudice to Articles
87 and 88 of the EC Treaty.

Article 7

Recovery of costs

1.
Subject to Articles 8, 9 and 10 the competent authority
shall recover from the operator who has caused the damage or
the imminent threat of damage the costs it has incurred in
relation to the taking of preventive or restorative measures
under this Directive.

2.
The competent authority shall also recover from the
operator who has caused the damage or the imminent threat
of damage the costs of assessing environmental damage and, as
the case may be, the costs of assessing an imminent threat of
such damage.

The necessary restorative measures shall be determined in

3.
accordance with Annex II.

Article 8

Cost allocation in relation to certain biodiversity damage

4. Where several instances of environmental damage have
occurred in such a manner that
the competent authority
the necessary restorative measures are
cannot ensure that
taken at
the competent authority shall be
entitled to decide which instance of environmental damage
must be remedied first.

the same time,

Subject to Article 10, in the cases referred to in Article 3(2),
where it is not established that the operator who has caused
the damage or the imminent threat of damage is at fault or has
been negligent, that operator shall not be required to bear the
cost of preventive or restorative measures taken pursuant to
this Directive.

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Article 9

Exceptions

Subject

1.
to Article 10,
environmental damage or
damage caused by:

this Directive shall not cover
such
an imminent

threat of

(a) an act of armed conflict, hostilities, civil war or insur-

rection;

(b) a natural phenomenon of exceptional, inevitable and irre-

sistible character;

(c) an emission or event allowed in applicable laws and regu-
lations, or in the permit or authorisation issued to the
operator;

(d) emissions or 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.

Paragraph 1(c) and (d) shall not apply if the operator has

2.
been negligent.

3.
Subject to Article 10, an operator shall not be required to
bear the cost of preventive or restorative measures taken
pursuant to this Directive when the environmental damage
or imminent threat of such damage occurring is the result of:

(a) an act done by a third party with intent to cause damage,
and the damage or imminent threat in question resulted
despite the fact that appropriate safety measures were in
place;

(b) compliance with a compulsory order, instruction or other
legally binding or compulsory measure emanating from a
public authority.

4. Where the operator is a person acting in his capacity as
an insolvency practitioner, that person shall not be personally
obliged to bear the costs relating to prevention or restoration
under this Directive insofar as that person acts in accordance
with the relevant national provisions governing insolvency,
liquidation, winding up or analogous proceedings, and is not
otherwise at fault or negligent.

Article 10

Cost allocation in relation to certain preventive measures

in all circumstances
1. Member States shall ensure that
operators bear any costs relating to preventive measures
which they were required to take as a matter of course in
order to comply with the legislative, regulatory and adminis-
trative provisions regulating their activities, including the terms
of any permit or authorisation.

Article 11

Cost allocation in cases of multiple party causation

1.
Subject to paragraph 2, where the competent authority is
able to establish with a sufficient degree of plausibility and
probability that one and the same instance of damage has
been caused by the actions or omissions of several operators,
Member States may provide either that the relevant operators
are to be held jointly and severally liable for that damage or
that the competent authority is to apportion the share of the
costs to be borne by each operator on a fair and reasonable
basis.

Operators who are able to establish the extent to which
2.
the damage results from their activities shall be required to
bear only such costs as relate to that part of the damage.

This Directive is without prejudice to any provisions of
3.
national law concerning the rights of contribution or recourse.

Article 12

Limitation period for recovery

The competent authority shall be entitled to initiate cost
recovery proceedings against
the operator who has caused
the damage or the imminent threat of damage in relation to
any measures taken in pursuance of this Directive during a
period of five years from the date on which the measures in
question were effected.

Article 13

Competent authority

1. Member States shall designate a competent authority or
competent authorities
fulfilling the duties
responsible for
provided for in this Directive.

Where a Member State decides not to give the competent
authority the power to issue binding decisions or the power
to enforce any such decisions, that Member State shall ensure
that a court or other independent and impartial public body is
competent to issue and enforce such decisions.

2.
Regardless of whether a decision referred to in the second
subparagraph of paragraph 1 is issued by the competent
authority, a court or some other independent and impartial
public body, the duty to establish which operator has caused
the damage or the imminent threat of damage, to assess the
significance of the damage and to determine which restorative
measures should be taken in accordance with Annex II shall
rest with the competent authority.

3. Member States shall ensure that the competent authority
carries out appropriate investigations so as to fulfil its duties
under this Directive,
independently of any prior request for
action lodged pursuant to Article 14.

2.
Article 4 shall not be taken into consideration for the
purpose of defining the legislative, regulatory and adminis-
trative provisions referred to in paragraph 1.

To that effect, the competent authority shall be entitled to
require the relevant operator to supply any information and
data necessary for the purpose of the investigation.

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in
Member States shall specify the detailed arrangements
accordance with which the competent authority may require
such information and data.

of this Directive within a time-frame which is consistent with
the proper achievement of the purpose thereof.

4. Member States shall ensure that the competent authority
may empower or
the
require third parties
necessary preventive or restorative measures.

to carry out

Any decision taken pursuant

5.
to this Directive which
imposes preventive or restorative measures shall state the
exact grounds on which it is based. Such decision shall be
notified forthwith to the operator concerned, who shall at
the same time be informed of the legal remedies available to
him under the laws in force in the Member State concerned
and of the time-limits to which such remedies are subject.

Article 14

Request for action

1. Without prejudice to any investigation initiated by the
competent authority of
its own motion, persons adversely
affected or likely to be adversely affected by environmental
damage and qualified entities shall be entitled to submit to
the
to
any
instances of environmental damage of which they are aware
and shall be entitled to request the competent authority to take
action under this Directive.

observations

competent

authority

relating

The competent authority shall be entitled to require that
2.
the
relevant
for action be accompanied by all
request
information and data supporting the observations submitted
in relation to the environmental damage in question.

Article 15

Review procedures

1.
Any person who has lodged a request for action under
this Directive, or any qualified entity which has lodged such a
request, shall have access to a court or other independent and
impartial public body competent to review the procedural and
substantive legality of the decisions, acts or failure to act of the
competent authority.

This Directive

shall be without prejudice
to any
2.
provisions of national
law which require that administrative
review procedures be exhausted prior to recourse to judicial
proceedings.

Article 16

Financial security

Member States shall encourage the use by operators of any
financial security.
appropriate insurance or other forms of
Member States shall also encourage the development of appro-
priate insurance or other financial security instruments and
markets by the appropriate economic and financial operators,
including the financial services industry.

Article 17

Co-operation between Member States

3. Where the request
for action and the accompanying
observations show in a sufficiently plausible manner that an
instance of environmental damage exists,
the competent
authority shall consider any such observations and requests
for action.

Where environmental damage affects or is likely to affect
several Member States, those Member States shall co-operate
with a view to ensuring that proper and effective preventive
action and, where necessary, restorative action is taken in
respect of any such environmental damage

The competent authority shall give the relevant operator
4.
an opportunity to make his views known with respect to the
request for action and the accompanying observations.

Article 18

Relationship with national law

The competent authority shall, as soon as possible or in
5.
any case within a reasonable time-frame having regard to the
nature, extent and gravity of
the environmental damage
concerned,
inform the relevant person or qualified entity of
its decision to accede to or refuse the request for action and
shall provide the reasons for that decision.

1.
This Directive shall not prevent Member States from
maintaining or adopting more stringent provisions in relation
to the prevention and remedying of environmental damage,
including the identification of additional activities
to be
subject to the prevention and restoration requirements of this
the identification of additional responsible parties
Directive,
among
and allocation of
responsible parties.

responsibility to or

financial

6. Where the competent authority is unable, despite due
diligence, to take a decision on a request for action within
the period referred to in paragraph 5,
competent
the latest within four months of being
authority shall, at
called upon to act,
inform the relevant person or qualified
entity of
the steps and measures which it has taken and
which it proposes to take in order to ensure the application

the

This Directive shall not prevent Member States from
2.
adopting appropriate measures, such as the prohibition of
double recovery,
in relation to situations where double
recovery could occur as a result of concurrent action by a
competent authority under this Directive and by a person
whose property is affected by damage.

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Article 19

Temporal application

On that basis the Commission shall submit a report to the
European Parliament and the Council
together with any
proposal which it may consider appropriate.

1.
This Directive shall not apply to damage caused by
activities that have been carried out before the date referred
to in Article 21(1). In particular, this Directive shall not apply
to damage caused by waste the disposal of which took place
lawfully in authorised disposal facilities before the date referred
released into the
to in Article 21(1) or by substances
environment before the date referred to in Article 21(1).

2. Where the competent authority is able to establish with a
sufficient degree of plausibility and probability that
the
environmental damage has been caused by an activity which
has taken place after the date referred to in Article 21(1), this
Directive shall apply unless the operator can establish that the
activity that caused the damage in question took place before
that date.

3.
Paragraph 2 shall not apply to operators who, within one
year of the date referred to in Article 21(1), have lodged with
the competent authority a statement identifying any environ-
mental damage that may have been caused by their activities
before the date referred to in Article 21(1).

Member States shall take the necessary measures to ensure that
the statement submitted by the operators may be relied on
with respect to its quality and veracity.

Article 21

Implementation

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 30 June 2005 at the latest. They shall forthwith
inform the Commission thereof.

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of
their official publication.
Member States shall determine how such reference is to be
made.

2. Member States shall communicate to the Commission the
texts of the main provisions of national law which they adopt
in the field governed by this Directive and a correlation table
between this Directive and the national provisions adopted.

Article 22

Entry into force

Article 20

Reports

This Directive shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Communities.

shall

report

to the Commission on the
Member States
experience gained in the application of
this Directive by
[date (five years after the date referred to in Article 22(1))] at
the latest. The national reports shall include the information
and data set out in Annex III.

Article 23

Addressees

This Directive is addressed to the Member States.

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ANNEX I

ACTIVITIES REFERRED TO IN ARTICLE 3(1)

— The operation of installations subject to permit in pursuance of Council Directive 96/61/EC of 24 September 1996

concerning integrated pollution prevention and control (1).

— The operation of installations subject to authorisation in pursuance of Council Directive 84/360/EEC of 28 June
1984 on the combating of air pollution from industrial plants (2) in relation to the release into air of any of the
polluting substances covered by the aforementioned Directive.

— The operation of installations subject to permit in pursuance of Council Directive 76/464/EEC of 4 May 1976 on
pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (3) in
relation to the discharge of any of the dangerous substances covered by the aforementioned Directive.

— The operation of installations subject to permit for discharging any of the dangerous substances in pursuance of
Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by
certain dangerous substances (4) in relation to the discharge of any of the dangerous substances covered by the
aforementioned Directive.

— The operation of installations subject to permit, authorisation or registration in pursuance of Directive 2000/60/EC
of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action
in the field of water policy (5) in relation to the discharge of any of the dangerous substances covered by the
aforementioned Directive.

Note: Directives 76/464/EEC and 80/68/EEC shall be repealed on 22 December 2013 in pursuance of Article 22 of
Directive 2000/60/EC; as of 23 December 2013, the relevant provisions of Directive 2000/60/EC shall be
entirely applicable. Consequently, Directive 2000/60/EC shall only be taken into account for the purpose of
this Directive as of that date.

— Water abstraction and impoundment of water subject to prior authorisation in pursuance of Directive 2000/60/EC

of the European Parliament and of the Council.

— Waste management operations, including the collection, transport, recovery and disposal of waste and hazardous
waste, including the supervision of such operations and after-care of disposal sites, subject to permit or registration
in pursuance of Council Directive 75/442/EEC of 15 July 1975 on waste (6) and Council Directive 91/689/EEC of
12 December 1991 on hazardous waste (7).

Those operations include, inter alia, the operation of landfill sites under Council Directive 1999/31/EC of 26 April
1999 on the landfill of waste (8) and the operation of incineration plants under Directive 2000/76/EC of the
European Parliament and of the Council of 4 December 2000 on the incineration of waste (9).

— Manufacture, use, storage, transport within the perimeter of the same undertaking or release into the environment
of dangerous substances as defined and within the scope of Council Directive 67/548/EEC of 27 June 1967 on the
approximation of the laws, regulations and administrative provisions of the Member States relating to the classi-
fication, packaging and labelling of dangerous substances (10).

(1) OJ L 257, 10.10.1996, p. 26.
(2) OJ L 188, 16.7.1984, p. 20.
(3) OJ L 129, 18.5.1976, p. 23.
(4) OJ L 20, 26.1.1980, p. 43.
(5) OJ L 327, 22.12.2000, p. 1.
(6) OJ L 194, 25.7.1975, p. 39. Directive as last amended by Commission Decision 96/350/EC of 24 May 1996 adapting its Annexes

IIA and IIB (OJ L 135, 6.6.1996, p. 32).

(7) OJ L 377, 31.12.1991, p. 20. Directive as amended by Council Directive 94/31/EC of 27 June 1994 (OJ L 168, 2.7.1994, p. 28).
(8) OJ L 182, 16.7.1999, p. 1.
(9) OJ L 332, 28.12.2000, p. 91.
(10) OJ 196, 16.8.1967, p. 1. Directive as last amended by Commission Directive 2001/59/EC of 6 August 2001 adapting to technical
progress for the 28th time Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative
provisions relating to the classification, packaging and labelling of dangerous substances (OJ L 225, 21.8.2001, p. 1).

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— Manufacture, use, storage, transport within the perimeter of the same undertaking or release into the environment
of dangerous preparations as defined and within the scope of Directive 1999/45/EC of the European Parliament and
of the Council of 31 May 1999 concerning the approximation of the laws, regulations and administrative provisions
of the Member States relating to the classification, packaging and labelling of dangerous preparations (1).

— Manufacture, use, storage,

transport or release into the environment of plant protection products or active
substances used in plant protection products as defined and within the scope of Council Directive 91/414/EEC
of 15 July 1991 concerning the placing of plant protection products on the market (2).

— Manufacture, use, storage, transport or release into the environment of biocidal products or active substances used
in biocidal products as defined and within the scope of Directive 98/8/EC of the European Parliament and of the
Council of 16 February 1998 concerning the placing of biocidal products on the market (3).

— Transport by road, rail, inland waterways, sea or air of dangerous goods or polluting goods as defined either in
Annex A to Council Directive 94/55/EC of 21 November 1994 on the approximation of the laws of the Member
States with regard to the transport of dangerous goods by road (4) or in the Annex to Council Directive 96/49/EC of
23 July 1996 on the approximation of the laws of the Member States with regard to the transport of dangerous
goods by rail (5) or as defined in Council Directive 93/75/EEC of 13 September 1993 concerning minimum
requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods (6).

— Any contained use, including transport, of genetically modified micro-organisms as defined and within the scope of
Council Directive 90/219/EEC of 23 April 1990 on the contained use of genetically modified micro-organisms (7).

— Any deliberate release into the environment or transport of genetically modified organisms as defined and within
the scope of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the
deliberate release into the environment of genetically modified organisms and repealing Council Directive
90/220/EEC (8).

(1) OJ L 200, 30.7.1999, p. 1. Commission Directive 2001/60/EC of 7 August 2001 adapting to technical progress Directive
1999/45/EC of the European Parliament and of the Council concerning the approximation of the laws, regulations and administrative
provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (OJ L 226,
22.8.2001, p. 5).

(2) OJ L 230, 19.8.1991, p. 1. Directive as last amended by Commission Directive 2001/103/EC of 28 November 2001 (OJ L 313,

30.11.2001, p. 37).

(3) OJ L 123, 24.4.1998, p. 1. Directive as last amended by Commission Directive 2001/87/EC of 12 October 2001 (OJ L 276,

19.10.2001, p. 17).

(4) OJ L 319, 12.12.1994, p. 7. Directive as last amended by Commission Directive 2001/7/EC of 29 January 2001 (OJ L 30, 1.2.2001,

p. 43).

(5) OJ L 235, 17.9.1996, p. 25. Directive as last amended by Commission Directive 2001/6/EC of 29 January 2001 (OJ L 30, 1.2.2001,

p. 42).

(6) OJ L 247, 5.10.1993, p. 19. Directive as last amended by Commission Directive 98/74/EC of 1 October 1998 (OJ L 276,

13.10.1998, p. 7).

(7) OJ L 117, 8.5.1990, p. 1. Directive as amended by Council Directive 98/81/EC of 26 October 1998 (OJ L 330, 5.12.1998, p. 13).
(8) OJ L 106, 17.4.2001, p. 1.

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ANNEX II

REMEDYING OF ENVIRONMENTAL DAMAGE

1.

Introduction

This Annex sets out the rules to be followed by the competent authority in order to ensure the remedying of
environmental damage.

2.

Restoration objectives

2.1.

Remedying of environmental damage, in terms of biodiversity damage and water pollution, is achieved through
the restoration of the environment as a whole to its baseline condition. Subject to point 3.2.3 below, this
objective is achieved in principle through the return of damaged habitats, species and associated natural
resources services or waters concerned to baseline condition and compensation for any interim losses
incurred. Restoration is done through rehabilitating, replacing or acquiring the equivalent of damaged natural
resources and/or services at the site originally damaged or at a different location.

2.2.

Remedying of environmental damage, in terms of water pollution and in terms of biodiversity damage, also
implies that any serious harm or serious potential harm to human health be removed should such a harm be
present.

2.3. Where polluted soil or subsoil gives rise to a serious harm to human health or could pose such a risk, the
necessary measures shall be taken to ensure that the relevant contaminants are controlled, contained, diminished
or removed so that the polluted soil does not pose any serious harm or serious potential harm to human health
which would be incompatible with the current or plausible future use of the land concerned. Plausible future use
shall be ascertained on the basis of the land use regulations in force when the damage occurred.

2.4. Achieving the goal of this Directive also requires restoration to be undertaken to compensate for interim losses

from the date of the damage until the baseline is restored.

3.

Restoration

3.1.

Identification of reasonable restorative options

Identification of primary restorative actions

3.1.1. The competent authority shall consider a natural recovery option, that is an option in which no human inter-
vention would be taken to directly restore the damaged natural resources and/or services to, or towards, baseline
condition.

3.1.2. The competent authority shall also consider options comprised of actions to directly restore the natural resources

and services towards baseline condition on an accelerated time frame.

Identification of compensatory restorative actions

3.1.3. For each option, the competent authority shall consider compensatory restorative actions to compensate for the

interim loss of natural resources and services pending recovery.

3.1.4. The competent authority shall ensure that compensatory restoration takes account of the time dimension by

discounting the value attributable to natural resources and/or services.

3.1.5. To the extent practicable, when evaluating compensatory restorative actions, the competent authority shall first
consider actions that provide natural resources and/or services of the same type and quality, and of comparable
value as those damaged.

3.1.6. When determining the scale of restorative actions that provide natural resources and/or services of the same type
and quality, and of comparable value as those lost, the competent authority shall consider the use of a resource-
to-resource or service-to-service scaling approach. Under this approach, the competent authority determines the
scale of restorative actions that will provide natural resources and/or services equal in quantity to those lost.

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3.1.7. If it is not possible to use the first choice resource-to-resource or service-to-service scaling approaches, monetary
valuation techniques towards the damaged site may be used to choose compensatory restoration actions.

3.1.8. If, in the judgment of the competent authority, valuation of the lost resources and/or services is practicable, but
valuation of
the replacement natural resources and/or services cannot be performed within a reasonable
time-frame or at a reasonable cost, the competent authority may estimate the monetary value of the lost
resources and/or services and select the scale of the restoration action that has a cost equivalent to the lost value.

3.2.

Choice of the restorative options

3.2.1. Once the competent authority has developed a reasonable range of restorative options, it shall evaluate the

proposed options based on, at a minimum:

1. The effect of each option on public health and safety;

2. The cost to carry out the option;

3. The likelihood of success of each option;

4. The extent to which each option will prevent future damage, and avoid collateral damage as a result of

implementing the option; and

5. The extent to which each option benefits to each component of the natural resource and/or service.

3.2.2. If several options are likely to deliver the same value, the least costly one shall be preferred.

3.2.3. When assessing the different identified restoration options, the competent authority is entitled to choose primary
restoration actions that do not fully restore the damaged bio-diversity, water or soil to baseline. The competent
authority is entitled to take this decision only if it compensates for the services, resources or value foregone at the
primary site as a result of its decision by increasing compensatory actions to provide a similar level of services,
resources or value as were foregone. These additional compensatory actions shall be determined in accordance
with the rules set out in section 3.1. and the present section of this Annex.

3.2.4. The competent authority shall invite the operator to co-operate in the implementation of the procedures set out
in this Annex so that those procedures can be properly and effectively carried out. The operator's participation
may take the form, inter alia, of supplying appropriate information and data.

3.2.5. The competent authority shall also invite take the persons on whose land restorative measures should be carried

out to submit their observations and shall take them into account.

3.2.6. On the basis of the above assessment, the competent authority shall decide which restorative measures shall be

implemented.

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ANNEX III

INFORMATION AND DATA REFERRED TO IN ARTICLE 20(1)

The national reports referred to Article 20(1) shall include a list of instances of environmental damage and instances of
liability under this Directive with the following information and data for each instance:

1. Date of occurrence of environmental damage and date on which proceedings were initiated under this Directive.

2. Industry classification code of the liable legal person(s).

3. Type of environmental damage.

4. Costs incurred with restoration and prevention measures, as defined in this Directive:

— paid for directly by liable parties;

— recovered ex post facto from liable parties;

— unrecovered from liable parties. (Reasons for non-recovery shall be specified.)

5. Amount of additional administrative costs incurred annually by the public administration in setting up and operating

the administrative structures needed to implement and enforce this Directive.

6. Whether there has been resort to judicial review proceedings either by liable parties or qualified entities. (The identity

of the claimants and the outcome of proceedings shall be specified).

7. Outcome of the restoration process.

8. Date of closure of proceedings.

Member States may include in their reports any other information and data they deem useful on issues such as the
desirability for introducing limited liability in certain cases, so as to allow a proper assessment of the functioning of this
Directive. An evaluation of the possibility of introducing a cap should be undertaken within three years after the entry
into force of this Directive.