Opinion of the Economic and Social Committee on the "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" (COM(2002) 17 final — 2002/0021 (COD))
Date: 2002-07-18
Institutions: European Economic and Social Committee
Subjects: environmental law, environmental protection, environmental risk prevention, environmental standard, polluter pays principle, prevention of pollution

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3.4.
Regarding content, the EESC formulated a number of
proposals in its opinion on the specific programmes, which
would enable the overall direction of research to be aligned

with citizens’ concerns (especially concerning waste pro-
cessing). Research on nuclear safety/security was one of the
priority issues discussed in the opinion.

Brussels, 18 July 2002.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘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’

(COM(2002) 17 final — 2002/0021 (COD))

(2002/C 241/31)

On 6 March 2002 the Council decided to consult the Economic and Social Committee, under Article 175
of the Treaty establishing the European Community, on the above-mentioned proposal.

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 2002. The rapporteur
was Mrs Sánchez Miguel.

At its 392nd Plenary Session (meeting of 18 July 2002) the Economic and Social Committee adopted the
following opinion by 63 votes, with three votes against and one abstention.

1.

Introduction

Following a lengthy period of time between publication
1.1.
of the Green Paper (1) and the subsequent White Paper (2), the
Commission has now published a proposal for a Directive on
environmental liability, which lays down the Community legal
framework for the prevention or remedying of environmental
is also intended to set in motion,
damage. The proposal
under the Sixth Environment Action Programme (3), measures
intended, inter alia, to implement the ‘polluter-pays’ principle.

1.2.
Damage to biodiversity has accelerated over recent
decades, as highlighted by the proposal for a Community

strategy for sustainable development (4), which notes that the
deterioration of the environment may be one of the most
serious threats to nature in the future. The main nature
protection legislation (5) has failed to have the desired impact,
which has been compounded by the lack of provisions on
liability for environmental damage. There is thus a need for
Community legislation aimed at repairing and preventing
environmental damage, which ensures that those responsible
bear the costs of remedying the situation.

1.3. Whilst recognising this need, it should be said that
drawing up the proposal has posed some difficulties, insofar
as account had to be taken of the conflicting interests which
the proposal is designed to regulate — on the one hand, the

( 1) 1993 Commission Green Paper, (COM(93) 47 final). Opinion CES

sustainable development of 15 May 2001.

226/94 (OJ C 133, 15.5.1994).

( 2) 2000 Commission White Paper, (COM(2000) 66 final). Opinion

CES 803/2000 (OJ C 268, 19.9.2000).

( 3) Opinion CES 711/2001 (OJ C 221, 7.8.2001).

(5) Council Directive 92/43/EEC of 21 May 1992 on the conservation
of natural habitats and of wild fauna and flora (OJ L 206,
22.7.1992) and Council Directive 79/409/EEC of 2 April 1979
on the conservation of wild birds (OJ L 103, 25.4.1979).

(4) European Commission proposal for a Community strategy for

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general
interests of environmental protection, and on the
other, the specific interests of economic operators and of
governments. While all are recognised as legitimate, there is
clearly a need to determine, once and for all, the responsibilities
of each in their respective spheres of operation and com-
petence.

National

1.4.
laws in this area already in force in the
majority of Member States vary widely. Community-wide
harmonisation is the best way to ensure that this situation
does not distort the legislation in its final form, as national law
does not always ensure that the affected areas are cleaned up,
which is one of the most important objectives of the proposal.
Other factors may also come into play, e.g. certain types of
damage may affect more than one country, meaning that
different systems of law apply. Finally, certain areas may not
be covered by legislation.

1.5.
The proposal attempts to take account of all of the
conflicting interests and strike an appropriate balance between
them, adhering closely to the environmental objectives set out
in the Sixth Action Programme and in the other Community
legislation which makes up the environmental acquis and
taking account of the social and economic context in which
they apply.

Before commenting on the proposal,

1.6.
it should be
pointed out that no reference is made to traditional kinds of
damage (personal injury and damage to property), since this is
assumed to be covered by civil
liability actions, which are
widely used in the Member States.

1.7.
Another omission worthy of note is GMO liability,
both with regard to biodiversity in general and to consumer
health. The reasons given refer to the existence of the directive
on liability for defective products (1), but extension of this
directive only covers damage to unprocessed products. For
this reason, and in view of the ongoing debate and the rules
on GMOs (2),
it does not appear to be the appropriate
instrument to achieve such an end.

2. Gist of the proposal

2.1.
The legal basis for this proposal is Article 175(1) of the
EC Treaty, since its objectives are environmental in nature and
are concerned with preserving, protecting and improving the
quality of the environment.

2.2.
The proposal lays down the legal framework for the
prevention or remedying of environmental damage under the
following conditions:

— Environmental damage is to be defined by reference to
biodiversity, waters covered by the Water Framework
Directive (3) and land contamination. In accordance with
the ‘polluter pays’ principle, the operator who has caused
the environmental damage, or who is faced with an
imminent threat of such damage occurring, must bear
the costs of repairing the damage. However, Article 9 lays
down a series of exceptions whereby the operator may
be relieved of liability.

— These exceptions include damage caused by operators
complying with the terms of permits or using state-of-
the-art technology.

— Given that environmental assets (biodiversity and waters)
are often not subject to proprietary rights, provisions are
made to allow qualified entities, alongside those persons
who have a sufficient interest, to request the competent
authority to take appropriate action.

— Cross-border damage is subject to cooperation between
the national authorities of the countries affected so as to
ensure that the damage is corrected in cooperation with
the operator liable for the damage.

— There are two ways in which the damage may be
corrected: either the operator may take the necessary
restoration measures, in which case they will be financed
directly by the operator, or the competent authority may
have the measures implemented by a third party and
recover the costs from the operator(s) who have caused
the damage. A combination of the two approaches is also
possible in the interests of greater effectiveness.

— To ensure that operator insolvency does not prevent
recovery may be

damage from being repaired, cost
facilitated by the establishment of a financial guarantee.

— Environmental damage caused by operators complying
with the terms of permits or using state-of-the-art tech-
nology is exempted from the provisions of this directive.

— The exemptions provided for by this proposal will not
apply where the operator has been negligent, although
the conditions under which exemptions are applied may
be altered by the rules in force under national law in the
Member States.

— The proposal does not have retrospective effect.

It
establishes a time limit for bringing liability proceedings.

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

(OJ L 141, 4.6.1999).

( 2) CES 358/2000 (OJ C 125, 27.5.2000) and CES 694/2002,

(3) Directive 2000/60/EC establishing a framework for Community

adopted on 30.5.2002.

action in the field of water policy (OJ L 327, 22.12.2000).

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— The proposal includes an economic assessment focusing
primarily on efficiency, costs and benefits, including the
distribution of the costs by economic actors and the
expected effect on competitiveness, prevention, financial
assurance and the assessment of damage to natural
resources.

3.2.1.
The Committee considers that rules on environmen-
tal liability based on the existence of international treaties are
not applied — their ineffectiveness having been demonstrated
by many serious environmental accidents in recent years in
the European Union — and also that many sectoral treaties (3)
have either not entered into force or have not been ratified by
the majority of EU Member States.

2.3.
In fact, this proposal for a directive excludes to a large
extent a number of important areas involving potential harm
to the environment, including nuclear damage, damage caused
by hydrocarbon pollution, damage caused by the transport of
toxic substances, etc. The Commission maintains that the
existence of international conventions regulating civil liability
in these areas, to which the majority of Member States are
signatories, render their inclusion in this proposal unnecessary
at this time.

3.2.2.
The Commission should consider the need to sup-
plement international laws, where they have proved inefficient
in tackling environmental damage in the EU, with a Com-
munity initiative, which could be incorporated into this
proposal for a directive.

2.4.
The Committee wishes to point out that this proposal
raises a number of difficulties connected with the legal
complexity of the subject area and the exceptions to its
application. The Commission must seek to ensure that it is
worded in such a way as to be comprehensible to any person
interested in its application.

3.3.
The definitions set out under Article 2 are a matter of
some importance. Clarifying the exact meaning in this way
will help to avoid doubt by limiting the Member States’ degree
of discretion in implementing the directive. In this regard, it
would be desirable to refine and clarify some definitions still
further:

3. General comments

3.1.
The EESC welcomes the objective system of environ-
mental liability proposed, which seeks to prevent damage and
restore nature to its former state in accordance with the
‘polluter pays’ principle. However, while it acknowledges the
generally positive nature of the rules proposed in view of the
failure on the part of Member States to comply with many of
the environmental directives, it wishes to raise certain points,
in line with previous opinions, to improve the content of the
proposal, particularly in connection with those aspects which
are the subject of disagreement between environmental organ-
isations and economic operators concerning the sphere of
application and the liability of public and private operators.

3.2.
Concerning the sphere of application, it is important
to note that the rules will only apply to damage resulting from
failure to comply with the environmental rules in force listed
in Annex I (1). However, the inclusion of damage to biodiversity
raises some additional problems, since it is limited to areas
protected by the Natura 2000 network and the Birds and
Habitats directives, which do not cover all areas of environ-
mental importance in the Community (in fact, the area covered
by the proposal amounts to less than 20 % of the territory and
coastal areas of the EU). The Commission should urge all
Member States to fulfil their obligations under Directive 92/
43/EEC (2).

( 1) 18 directives are listed on the subject of damage to water or land,
together with those concerning the contained use or the deliberate
release of genetically modified organisms.

( 2) OJ L 176, 20.7.1993.

3.3.1.
Biodiversity, as defined by reference to Directives 79/
409/EEC and 92/43/EEC on natural habitats and birds, seems
a rather limited concept. Most associations consulted proposed
extending the definition to non-protected areas where there is
serious damage to an area or a threat to the health of its
inhabitants (4).

(3) There is one sectoral instrument that has been signed but is not
yet in force: the 1999 Basle Protocol on Liability and Compen-
sation for Damage resulting from Transboundary Movements of
Hazardous Wastes and their Disposal. There are several other
ongoing or future initiatives: a potential joint liability instrument
under the 1992 Helsinki Convention on the Transboundary
Effects of Industrial Accidents (TEIA Convention) and the 1992
Helsinki Convention on the Protection and Use of Transboundary
Watercourses and International Lakes (Water Protection Conven-
tion) and one or more possible liability instruments (in the
medium term) under the Convention on Biological Diversity and
the Cartagena Protocol on Biosafety. For the sake of completeness,
reference can be made to the only existing horizontal international
environmental liability regime, which is the 1993 Lugano Conven-
tion on Civil Liability for Damage resulting from Activities
dangerous to the Environment. This Convention is, however, not
yet in force and there is no likelihood that the Community would
accede to it in the near future.

(4) The conclusions of the Environment Council of 4 March 2000
led to the strategy for sustainable development, presented to the
Barcelona Summit of 15 and 16 March 2002. In the section on
guidelines for the future, paragraph 38 states that progress should
be made on increasing integration of protection and conservation
of biodiversity in all relevant sectors and activities, as well as on
full-scale implementation of the Natura 2000 network and the
conservation of protected species under the habitats and birds
directives in areas outside the network.

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3.3.1.1.
effect of GMOs, in both the short and long term.

The definition of biodiversity should include the

3.3.2.
Qualified entity means any person or body to be
involved in implementing the rules on environmental liability
by virtue of their interest in the environment. The EESC
understands that the proposal limits recognition of such bodies
in two ways:

— The Member States are responsible for defining the

criteria for recognition in their legislation.

— Only environmental groups are to be recognised.

3.3.2.1.
Not only will cultural differences penalise groups in
the less environmentally advanced countries, but organisations
capable of working to protect
the environment will be
excluded simply because that is not their main purpose. Trade
unions and employers’ organisations, for example, can play an
important role in the prevention of environmental damage.

3.3.3.
types of environmental damage:

Environmental damage. The proposal

lists three

— biodiversity damage;

— water damage;

— land damage.

3.3.3.1. While the definition of water damage is clearly set
out in Directive 2000/60/EC, no precise definition exists of
biodiversity or land damage (1). It would thus be desirable to
include a precise definition of the intended meaning.

One of the main aims of the proposal is prevention of
3.4.
environmental damage,
in which the competent authority
plays an important role. The problem, to which the EESC
has drawn attention in previous opinions, is the complex
administrative structure of most EU Member States, whereby
responsibility for environmental matters is divided between
different, frequently highly decentralised authorities, creating
confusion, at the very least, when serious preventive action is
needed.

3.4.1.
the desired impact, it would be desirable:

In order to ensure that the rules on prevention have

— firstly, to ask the Member States to clarify the responsi-
bilities of the various authorities in a clear and precise
manner to ensure that there is no overlap or duplication
of their actions;

( 1) Communication of 16 April 2002 — COM(2002) 179 final:

‘Towards a Thematic Strategy for Soil Protection’.

— secondly, to establish the procedure for recovery of the
costs of preventive measures carried out by the competent
authority as a further precondition for administrative
action; if this is not the case, the burden of liability will
be shifted from the polluter to the public;

— thirdly, to establish rules for recovery of the costs when
the competent authority has acted, both in preventing and
in remedying damage. Acknowledging the importance of
Article 7, the EESC considers that more emphasis should
be placed on the body responsible for ensuring com-
pliance with this obligation (Article 13).

As far as allocation of costs is concerned, where there
3.5.
are multiple parties involved the proposal offers two options:
joint and several liability or apportioned liability. While this
dual system is intended to facilitate the directive’s adaptation
to the legal systems of the Member States, it should nonetheless
be pointed out that determining the proportion of environ-
mental damage is extremely difficult, which makes this system
difficult to implement in practice.

Joint and several

3.5.1.
liability in cases where several
operators have caused damage facilitates liability actions, since
it is not necessary to identify each operator. Actions on a
quota basis, however, must be brought against each operator
on the basis of the proportion of the damage for which he is
responsible. In principle, the Committee advocates application
of the system of joint and several liability, because it facilitates
action, but the choice should be left up to the Member States
according to the circumstances of the individual case.

3.6.
The definition of the competent authority is somewhat
ambiguous. While it is true that states may have different
competent bodies in line with their own regional organisation,
the fact remains that civil liability actions are heard by courts
which are not necessarily specialised in environmental issues.

3.7.
The EESC recalls that in its Opinion on the White
Paper it called for the creation of a financial security, with a
view to making the rules more effective. However, Article 16
does not require operators carrying out activities listed in the
directives set out in Annex I to take out environmental liability
insurance, which could dilute the effectiveness of this proposal.

4. Proposed amendments

4.1.
Because this directive sets out basic or minimum rules,
the Commission must ensure that it is clearer and more
specific than any other kind of legislative provision, since its
aim is not only to ensure compliance with the environmental
rules in force, set out in Annex I, but also to prevent and

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remedy environmental damage occurring within the European
Union. So that it is applied in a uniform manner, the concepts
defined in Article 2 must be revised.

One of

the most

important new features of

4.2.
this
proposal for a directive is the focus on repairing environmental
damage. The current rules provide only for administrative
penalties, which take the form of fines. Responsibility for
repairing the damage is borne by the operator who has caused
it, although the competent authority may assume this task if
the operator cannot be located. This causes the following
problems:

4.2.1.
The procedure for remedying damage set out in
Annex II provides for different options, which allow the
competent authority to choose the criteria on which it shall
act. In the view of the EESC, the use of a single criterion should
be avoided, particularly that of the lowest cost. The need
to restore the affected area to its condition prior to the
environmental damage must always be taken into account.

One of the core aims of liability actions must be
4.2.2.
recovery of the costs of repairing the damage by the competent
authority. If this is not the case, the public will bear the costs
involved.

However, in the case of the exemption provided
4.2.2.1.
for under Article 9(3)(b), the repairs may be considered to be
shared between the authority and the operator, if the latter has
acted in a negligent manner.

4.3. Member States are responsible for designating the
competent authority. This is one area which could have a
particular impact on Community harmonisation. The EESC
thus considers that:

— Member States are responsible for designating the com-
petent authority, in accordance with the provisions in
force in each country;

— civil liability actions are not heard in civil courts in all
countries of the European Union; in some cases the
administrative authorities intervene with contentious
administrative proceedings; this tends to be a lengthy and
complicated process. Since there is already experience in
the EU of civil liability actions for defective products, the
EESC believes that the civil courts are the most appropri-
ate competent authority for environmental actions.

4.4.
The EESC considers that if the financial security is not
compulsory, repair of damage may be hindered by operator
insolvency. The Commission should define more precisely the
risks involved so that insurance companies can write the
necessary policies.
In parallel, the creation of national or
regional funds financed by the financial penalties applicable
for failure to comply with the directives listed in Annex I
would be appropriate. In this way, the penalties would fulfil
their intended aim of repairing environmental damage.

The fact that the rules are non-retroactive in nature
4.5.
creates the problem of repair of damage caused in the past. As
Article 19(2) states, the operator who has caused damage must
prove that it was caused prior to the entry into force of the
directive, and is thus not covered.

4.6.
Finally, it is important to stress the importance of the
reports to be drawn up by the Member States in accordance
with Article 20 and Annex III. A five year period should be
sufficient to evaluate:

— implementation in practice;

— whether the rules should be amended in order to place
time-limits on the provisions now being proposed;

— if various tiers of competence exist, the competence of
each authority should be clear, so as to avoid overlaps in
action or action by different authorities;

— whether experience of the directive’s implementation
over this period indicates that Annex I should be
amended.

Brussels, 18 July 2002.

The President

of the Economic and Social Committee

Göke FRERICHS

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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 in the course of the
section’s deliberations:

Point 3.3.1

Amend as follows:

‘Biodiversity, as defined by reference to Directives 79/409/EEC and 92/43/EEC on natural habitats and birds, seems a
rather limited is a relatively new concept. Most associations consulted proposed Before extending the definition to
non-protected areas, experience should be gained with the Commission proposal. where there is serious damage to
an area or a threat to the health of its inhabitants.’

Result of the vote

For: 19, against: 37, abstentions: 0.

The following text from the Section’s opinion was rejected in favour of the amendment adopted in plenary. However,
at least a quarter of the votes cast were in support of the text.

Point 4.2

Delete point.

The nuclear energy industry, unlike hydrocarbon and renewable energy sources, is excluded from the provision of
the Directive and therefore given preferential treatment. Existing conventions governing the nuclear industry do not
include damage to the environment and provide for exceptionally low levels of compensation in other cases, not the
true cost. The Committee therefore recommends that Article 3.4, which provides for exclusion, is deleted from the
directive.

Result of the vote

For: 29, against: 27, abstentions: 4.