WRITTEN QUESTION P-2156/02 by Kathleen Van Brempt (PSE) to the Commission. Proposal for a directive on environmental liability — no-fault liability — Article 9.
Date: 2002-07-11
Institutions: European Parliament, Provisional data
Subjects: access to EU information, degradation of the environment, drafting of EU law, environmental law, environmental liability, interpretation of the law, tradeable emission permit

C 301 E/262

Official Journal of the European Communities

EN

5.12.2002

Can the Commission state whether such age discrimination is compatible with the provisions of Directive
2000/78/EC (1) establishing a general framework for equal treatment in employment and occupation? Are
such disparities in treatment on age grounds justified on the basis of Article 6 of that directive, and if so,
why? Has the Court of Justice handed down any judgments on this issue?

(1) OJ L 303, 2.12.2000, p. 16.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(1 August 2002)

The Commission recalls that the Council adopted on 2 December 2000 Council Directive 2000/78/EC of
27 November 2000 establishing a general framework for equality in employment and occupation (1). This
Directive prohibits discrimination on grounds of, inter alia, age, including the use of age limits which are
including legitimate employment policy,
not objectively and reasonably justified by a legitimate aim,
the means of achieving that aim are not
labour market and vocational
appropriate and necessary.

training objectives, and if

The Member States have until 2 December 2003 to transpose the requirements of the Directive into
national law. In order to take account of particular conditions, Member States may, if necessary, have an
additional period of three years from 2 December 2003 to implement the provisions of the Directive on
age and disability discrimination. Any Member State which chooses to use this option shall inform the
Commission forthwith and shall report annually to the Commission on the steps it is taking to tackle age
and disability discrimination and on the progress it is making towards implementation.

Since the deadline for transposition of the Directive has not yet been reached, there have as yet, been no
cases on this issue before the European Court of Justice.

(1) OJ L 303, 2.12.2000.

(2002/C 301 E/282)

WRITTEN QUESTION P-2156/02

by Kathleen Van Brempt (PSE) to the Commission

(11 July 2002)

Subject: Proposal for a directive on environmental liability (cid:1) no-fault liability (cid:1) Article 9

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

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

to Article 9(1), no-fault

Pursuant
to activities allowed in laws and
regulations or in the permit or authorisation issued to the operator or, secondly, to activities which were
not considered harmful according to the state of scientific and technical knowledge at the time when the
emission was released or the activity took place.

liability does not apply,

firstly,

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

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

the Commission proposal takes no account of

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

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

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

Answer given by Mrs Wallström on behalf of the Commission

(31 July 2002)

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

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

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

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

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

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

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

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

C 301 E/264

Official Journal of the European Communities

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5.12.2002

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

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

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

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

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

(1) Being understood that final products such as pharmaceuticals or food additives are subject to specific regimes and

are therefore excluded from the general legislation covering dangerous substances and preparations.

(2) Except in the cases where the event or emission causing the damage is caused by any of the factors listed as

exonerating circumstances in Article 9(1)(a) and (b) or 9(3).

(2002/C 301 E/283)

WRITTEN QUESTION E-2196/02

by Marjo Matikainen-Kallström (PPE-DE) to the Commission

Subject: Scope of the working time directive

(19 July 2002)

The number of senior managers in the EU Member States is on the increase. In spite of this, senior
managers do not enjoy protection of their working hours, since they are not covered by the scope of the
EU working time directive (93/104/EC) (1). Senior managers have some of the longest working hours of all
the employees in the various Member States, and continuing unregulated overtime has already led to work-
related diseases and numerous other problems.

However, middle managers are clearly in the position of employees and should receive the same legal
protection as other staff groups. The current situation is also in clear conflict with the European Social
Charter, which guarantees fair working conditions, and in particular reasonable working hours.

The scope of the working time directive should be extended as soon as possible to cover senior managers
in business, so that the stress and health problems caused by unreasonable working hours can be
prevented. What is the Commission’s timetable for reforming the working time directive so that senior
managers are also covered by it?

(1) OJ L 307, 13.12.1993, p. 18.