Proposal for a Council Decision on the signature, on behalf of the European Community of the Protocol on civil liability and compensation for damage caused by the transboundary effects of industrial accidents on transboundary waters
Date: 2003-05-12
Institutions: European Commission
Subjects: EU environmental policy, UN convention, chemical accident, environmental liability, indemnification, man-made disaster, protocol to an agreement

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 12.5.2003
COM(2003) 263 final

Proposal for a

COUNCIL DECISION

on the signature, on behalf of the European Community of the Protocol on civil liability
and compensation for damage caused by the transboundary effects of industrial
accidents on transboundary waters

(presented by the Commission)

EXPLANATORY MEMORANDUM

Following the Baia Mare cyanide spill in Romania in January 2000 and subsequent initiatives
taken by the Government of Switzerland, the governing bodies of the 1992 Helsinki UN/ECE
Convention  on  the  Protection  and  Use  of  Transboundary  Watercourses  and  International
Lakes (“Water Protection Convention”) and of the 1992 Helsinki UN/ECE Convention on the
Transboundary Effects of Industrial Accidents (“Industrial Accidents Convention”), decided,
that  an  intergovernmental  negotiation  process  be  entered  into  aimed  at  adopting  a  legally
binding instrument on civil liability for transboundary damage caused by hazardous activities,
within the scope of both Conventions.

Negotiations on this legally binding instrument (hereafter the protocol) on civil liability  and
compensation  for  damage  caused  by  the  transboundary  effects  of  industrial  accidents  on
transboundary waters began in 2001 and completed in February 2003 in the framework of the
UN/ECE.  Acceding  countries  and  Candidate  countries  participated  in  the  negotiations.  The
Protocol is due to be open for signature at the fifth Ministerial Conference ‘Environment for
Europe’ to be held in Kiev in May 2003.

The value of  applying  the principles  of that  environmental  damage  should,  as  a  priority,  be
rectified  at  its  source,  of  preventive  action  to  be  taken  and  of  “polluter  should  pay”  are
essential  to  environmental  protection  and  have  been  widely  recognised  as  a  basis  for
international and national liability regimes.

The Protocol intends to regulate civil liability for damage resulting from cases that fall under
the scope of the two Conventions mentioned above. Thus, the objective of the protocol is to
provide for a comprehensive civil liability regime and for adequate and prompt compensation
for damage caused by transboundary effects of industrial accidents on transboundary waters
suffered in a Party other than the Party where the industrial accident has occurred.

The Protocol grants legal standing before  a court of law against the polluter and  third  party
that caused the damage. The notion of damage covers traditional damage (personal injury and
property  damage),  as  well  as  environmental  damage  (as  compensation  for  the  costs  of
reinstatement  and  response  measures).  For  this  purpose  the  protocol  establishes  financial
limits to the operator’s strict  liability  and unlimited fault-based  liability  complemented by  a
system of compulsory financial security.

There is also question of granting access to information and accordingly access to justice, in
order  to  promote  the  objectives  of  the  protocol  (Article  8.5).  In  this  respect  the  protocol  is
fully compatible with existing EC legislation on access to environmental information1.

As far as procedures are concerned, the protocol contains, inter alia, provisions dealing with
competent courts (Article 13), arbitration (art.14), Lis – pendens and related actions (Article
15) and mutual recognition and enforcement of judgements (Article 18).

The  Protocol  foresees  a  specific  article  laying  down  the  relationship  of  the  Protocol  and
existing  EC  rules  on  matters  falling  under  its  exclusive  competence  (jurisdiction,  related

1

Official Journal of the European Union L 41, 14/2/2003, p. 26. Directive 2003/4/EC of 28 January 2003
on public access to environmental information

2

                                                
actions,  recognition  and  enforcement  of  judgments).  In  these  matters  EC  rules  will  take
precedence  over  the  application  of  the  Protocol  provisions  in  the  conditions  foreseen  under
the Protocol itself.

It  should  also  be  noted  that  the  protocol  aims  to  avoid  discriminatory  treatment  between
national and transboundary victims for the same incident by granting the later victims at their
request, a “choice of law” .

The European Community is a contracting party to both the Water Protection Convention and
Industrial  Accidents  Convention.  As  all  Parties,  the  Community  is  bound  by  their  common
provision,  by  which  "The  Parties  shall  support  appropriate  international  efforts  to  elaborate
rules, criteria and procedures in the field of responsibility and liability".

As  a  result  of  these  factors,  and  because  the  Protocol  will  strengthen  existing  measures
concerning safety and prevention of damage caused by industrial accidents it will contribute
to the achievement  and  the  implementation  of  the  objectives of the environmental policy of
the Community, in accordance with Article 174 of the Treaty.

In view of the  above  considerations, it is appropriate  for the  Community  to  sign,  subject  to
subsequent conclusion, the Protocol on civil liability and compensation for damage caused by
the transboundary effects of industrial accidents on transboundary waters . It should be noted
in this respect that as a Party, the Community would be bound by the Protocol’s requirements
to the extent that its activities fell within its scope.

3

Proposal for a

COUNCIL DECISION

on the signature, on behalf of the European Community of the Protocol on civil liability
and compensation for damage caused by the transboundary effects of industrial accidents
on transboundary waters

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular article 175
paragraph 1 and article 67, in conjunction with article 300 paragraph 2, first sentence of the first
subparagraph thereof,

Having regard to the proposal from the Commission,

Whereas:

(1)

(2)

(3)

(4)

2

3

The  European  Community  is  a  contracting  party  to  both  UN/ECE  Conventions  on  the
protection  and  use  of  transboundary  watercourses  and  international  lakes2  and  the
Convention  on  the  Transboundary  Effects  of  Industrial  Accidents3.  The  European
Community  is  bound  to  their  common  provision  in  order  to  support  appropriate
international efforts to elaborate rules in the field of liability;

By virtue of a Council Decision of 24th February 2003, the Commission participated on
behalf of the Community, in consultation with the representatives of the Member States,
in  the  negotiations  in  the  open-ended  working  group  on  Protocol  on  civil  liability  and
compensation  for  damage  caused  by  the  transboundary  effects  of  industrial  accidents
transboundary watercourses;

As a result of those negotiations the text of the Protocol was finalised on 27th February
2003 and the Protocol will be open for signature on the occasion of the fifth Ministerial
Conference ‘Environment for Europe’ at Kiev, Ukraine, on 21-23 May 2003;

The Protocol will help to protect the environment by providing for effective application
of  the  principles  of  that  environmental  damage  should,  as  a  priority,  be  rectified  at  its
source, of preventive action and of “polluter should pay”; The European Community, in
accordance  with  the  Treaty  establishing  the  European  Community,  and  in  particular
Article 175 (1) thereof, is  competent for  entering into international  agreements, and  for

Official Journal L 186, 05/08/1995 p. 0042 - 0058

Official Journal L 326, 03/12/1998 p. 0001 - 0004

4

                                                
implementing the obligations resulting therefrom, which contribute to  the  pursuit of the
objectives listed in Article 174 (1) of the EC Treaty.

Articles 13, 15 and 18 of the Protocol regulate matters which affect Community rules as
laid  down  in  Regulation  44/2001  on  jurisdiction  and  recognition  and  enforcement  of
judgements  in  civil  and  commercial  matters4.  However  the  protocol  contains  necessary
provisions enabling the  application  of  existing  Community  rules  instead  of  the  relevant
provisions of the Protocol .

The  Commission  has  negotiated  on  behalf  of  the  Community  an  agreement  on  civil
liability for transboundary damage caused by hazardous activities within the scope of the
Convention  on  the  protection  and  use  of  transboundary  watercourses  and  international
lakes and the Convention on the transboundary effects of industrial accidents.

It is convenient that the Protocol on civil liability and compensation for damage caused
by  the  transboundary  effects  of  industrial  accidents  on  transboundary  waters  be  signed,
on behalf of the Community, subject to subsequent conclusion.

(5)

(6)

(7)

HAS DECIDED AS FOLLOWS:

Sole Article

The President of the Council is hereby authorised to designate the person or persons empowered
to  sign  on  behalf  of  the  Community,  subject  to  subsequent  conclusion,  the  Protocol  on  civil
liability  and  compensation  for  damage  caused  by  the  transboundary  effects  of  industrial
accidents on transboundary waters, as attached in annex A and to confer upon them the powers
necessary for that purpose.

Done at

For the Council
The President

4

Official Journal L 12, 16/1/2001 p. 001-0023

5

                                                
ANNEX A:

DRAFT PROTOCOL ON CIVIL LIABILITY AND COMPENSATION FOR DAMAGE
CAUSED BY THE TRANSBOUNDARY EFFECTS OF INDUSTRIAL ACCIDENTS ON
TRANSBOUNDARY WATERS

The Parties to the Protocol,

Recalling the relevant provisions of the Convention on the Protection and Use of Transboundary
Watercourses  and  International  Lakes,  in  particular  its  article  7,  and  of  the  Convention  on  the
Transboundary Effects of Industrial Accidents, in particular its article 13,

Having in mind the relevant provisions of principles 13 and 16 of the Rio Declaration on
Environment and Development,

Taking into account the polluter pays principle as a general principle of international
environmental law, accepted also by the Parties to the above-mentioned Conventions,

Taking note of the UNECE Code of Conduct on Accidental Pollution of Transboundary Inland
Waters,

Aware of the risk of damage to human health, property and the environment caused by the
transboundary effects of industrial accidents,

Convinced of the need to provide for third-party liability and environmental liability in order to
ensure that adequate and prompt compensation is available,

Acknowledging the desirability to review the Protocol at a later stage to broaden its scope of
application as appropriate,

Have agreed as follows:

Article 1

Objective

The objective of the present Protocol is to provide for a comprehensive regime for civil liability
and for adequate and prompt compensation for  damage caused by the transboundary  effects of
industrial accidents on transboundary waters.

6

Article 2

Definitions

The definitions of terms contained in the Conventions apply to the present Protocol,

1. 
unless expressly provided otherwise in the present Protocol.

2. 

(a)

(b)

(c)

(d)

For the purposes of the present Protocol:

“The Conventions” means the Convention on the Protection and Use of Transboundary
Watercourses and International Lakes and the Convention on the Transboundary Effects
of Industrial Accidents, done at Helsinki on 17 March 1992;

“Protocol” means the present Protocol;

“Party” means a Contracting Party to the Protocol;

“Damage” means:

(i)

Loss of life or personal injury;

(ii) Loss of,  or damage to,  property other than property  held  by  the  person  liable  in

accordance with the Protocol;

(iii) Loss  of  income  directly  deriving  from  an  impairment  of  a  legally  protected
interest in any use of the transboundary waters for economic purposes, incurred as
a  result  of  impairment  of  the  transboundary  waters,  taking  into  account  savings
and costs;

(iv) The  cost  of  measures  of  reinstatement  of  the  impaired  transboundary  waters,

limited to the costs of measures actually taken or to be undertaken;

(v) The  cost  of  response  measures,  including  any  loss  or  damage  caused  by  such
measures, to the extent that the damage was caused by the transboundary effects
of an industrial accident on transboundary waters;

(e)

“Industrial accident” means an event resulting from an uncontrolled development in the
course of a hazardous activity:

(i)

In  an  installation,  including  tailing  dams,  for  example  during  manufacture,  use,
storage, handling or disposal;

(ii) During transportation on the site of a hazardous activity; or

(iii) During off-site transportation via pipelines;

(f)

“Hazardous activity” means any activity in which one or more hazardous substances are
present or may be present in quantities at or in excess of the threshold quantities listed in

7

 
(g)

(h)

annex I and which is capable of causing transboundary effects on transboundary waters
and their water uses in the event of an industrial accident;

“Measures of reinstatement” means any reasonable measures aiming to reinstate or
restore damaged or destroyed components of transboundary waters to the conditions that
would have existed had the industrial accident not occurred, or, where this is not
possible, to introduce, where appropriate, the equivalent of these components into the
transboundary waters. Domestic law may indicate who will be entitled to take such
measures;

“Response measures” means any reasonable measures taken by any person, including
public authorities, following an industrial accident, to prevent, minimize or mitigate
possible loss or damage or to arrange for environmental clean-up. Domestic law may
indicate who will be entitled to take such measures;

(i)

“Unit of account” means the special drawing right as defined by the International
Monetary Fund.

Article 3

Scope of application

The Protocol shall apply to damage caused by the transboundary effects of an industrial

1.
accident on transboundary waters.

The Protocol shall apply only to damage suffered in a Party other than the Party where

2.
the industrial accident has occurred.

Article 4

Strict liability

1.

The operator shall be liable for the damage caused by an industrial accident.

No liability in accordance with this article shall attach to the operator, if he or she proves

2.
that, despite there being in place appropriate safety measures, the damage was:

(a) 

(b) 

The result of an act of armed conflict, hostilities, civil war or insurrection;

The result of a natural phenomenon of exceptional, inevitable, unforeseeable

and irresistible character;

(c) 

Wholly the result of compliance with a compulsory measure of a public

authority of the Party where the industrial accident has occurred; or

(d) 

Wholly the result of the wrongful intentional conduct of a third party.

8

If the person who has suffered the damage or a person for whom he or she is responsible

3.
under domestic law has by his or her own fault caused the damage or contributed to it, the
compensation may be reduced or disallowed having regard to all the circumstances.

If two or more operators are liable according to this article, the claimant shall have the

4.
right to seek full compensation for the damage from any or all of the operators liable. However,
the operator who proves that only part of the damage was caused by an industrial accident shall
be liable for that part of the damage only.

Article 5

Fault-based liability

Without prejudice to article 4, and in accordance with the relevant rules of applicable domestic
law including laws on the liability of servants and agents, any person shall be liable for damage
caused  or  contributed  to  by  his  or  her  wrongful  intentional,  reckless  or  negligent  acts  or
omissions.

Article 6

Response measures

Subject to any requirement of applicable domestic law and other relevant provisions of

1.
the Conventions, the operator shall take, following an industrial accident, all reasonable response
measures.

Notwithstanding any other provision in the Protocol, any person other than the operator

2.
acting for the sole purpose of taking response measures, provided that this person acted
reasonably and in accordance with applicable domestic law, is not thereby subject to liability
under the Protocol.

Article 7

Right of recourse

1.
Any person liable under the Protocol shall be entitled to a right of recourse in accordance
with the rules of procedure of the competent court or arbitral tribunal established under article 14
against any other person also liable under the Protocol.

9

 
Nothing in the Protocol shall prejudice any right of recourse to which the person liable

 2.
might be entitled either as expressly provided for in contractual arrangements or pursuant to the
law of the competent court.

Article 8

Implementation

The Parties shall adopt any legislative, regulatory and administrative measures that may

1.
be necessary to implement the Protocol.

In  order  to  promote  transparency,  the  Parties  shall  inform  the  secretariat,  as  defined  in

2.
article 22, of any such measures taken to implement the Protocol.

The provisions of the Protocol and measures adopted under paragraph 1 shall be applied

3.
among the Parties without discrimination based on nationality, domicile or residence.

4.
of the Protocol according to their obligations under international law.

The Parties shall provide for close cooperation in order to promote the implementation

Without prejudice to existing international obligations, the Parties shall provide for
5.
access to information and access to justice accordingly, with due regard to the legitimate interest
of the person holding the information, in order to promote the objective of the Protocol.

10

Article 9

Financial limits

The liability under article 4 is limited to the amounts specified in part one of annex II.

1.
Such limits shall not include any interests or costs awarded by the competent court.

The limits of liability specified in part one of annex II shall be reviewed by the Meeting

2.
of the Parties on a regular basis taking into account the risks of hazardous activities as well as the
nature, quantity and properties of the hazardous substances that are present or may be present in
such activities.

3.

There shall be no financial limit on liability under article 5.

Article 10

Time limit of liability

Claims for compensation under the Protocol shall not be admissible unless they are

1.
brought within fifteen years from the date of the industrial accident.

Claims for compensation under the Protocol shall not be admissible unless they are

2.
brought within three years from the date that the claimant knew or ought reasonably to have
known of the damage and of the person liable, provided that the time limits established pursuant
to paragraph 1 are not exceeded.

Where the industrial accident consists of a series of occurrences having the same origin,

3.
time limits established pursuant to this article shall run from the date of the last of such
occurrences. Where the industrial accident consists of a continuous occurrence, such time limits
shall run from the end of that continuous occurrence.

Article 11

Financial security

1.
The operator shall ensure that liability under article 4 for amounts not less than the
minimum limits for financial securities specified in part two of annex II is and shall remain
covered by financial security such as insurance, bonds or other financial guarantees including
financial mechanisms providing compensation in the event of insolvency.  In addition, Parties
may fulfil their obligation under this paragraph with respect to State-owned operators by a
declaration of self-insurance.

2.
The  minimum  limits  for  financial  securities  specified  in  part  two  of  annex  II  shall  be
reviewed  by  the  Meeting  of  the  Parties  on  a  regular  basis  taking  into  account  the  risks  of
hazardous  activities  as  well  as  the  nature,  quantity  and  properties  of  the  hazardous  substances
that are present or may be present in such activities.

11

Any  claim  under  the  Protocol  may  be  asserted  directly  against  any  person  providing
3.
financial cover under paragraph 1.  The insurer or the person providing the financial cover shall
have the right to require the person liable under article 4 to be joined in the proceedings. Insurers
and  persons  providing  financial  cover  may  invoke  the  defences  that  the  person  liable  under
article  4  would  be  entitled  to  invoke.    Nothing  in  this  paragraph  shall  prevent  the  use  of
deductibles or co-payments as between the insurer and the insured, but the failure of the insured
to pay any deductible or co-payment shall not be a defence against the person who has suffered
the damage.

4.
Notwithstanding paragraph 3, a Party shall by written notification to the Depositary at the
time  of  signature,  ratification,  approval  of  or  accession  to  the  Protocol,  indicate  if  it  does  not
provide for a right to bring a direct action pursuant to paragraph 3.  The secretariat shall maintain
a record of the Parties that have given notification pursuant to this paragraph.

Article 12

International responsibility of States

The Protocol shall not affect the rights and obligations of the Parties under the rules of general
international law with respect to the international responsibility of States.

PROCEDURES

Article 13

Competent courts

Claims for compensation under the Protocol may be brought in the courts of a Party only

1.
where:

(a)

(b)

The damage was suffered;

The industrial accident occurred; or

(c)

The defendant has his or her habitual residence, or, if the defendant is a company
or other legal person or an association of natural or legal persons, where it has its principal place
of business, its statutory seat or central administration.

Each Party shall ensure that its courts possess the necessary competence to entertain such

2.
claims for compensation.

12

Article 14

Arbitration

In the event of a dispute between persons claiming for damage pursuant to the Protocol and
persons liable under the Protocol, and where agreed by both or all parties, the dispute may be
submitted to final and binding arbitration in accordance with the Permanent Court of Arbitration
Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the
Environment.

Article 15

Lis pendens - related actions

1.
Where proceedings involving the same cause of action and between the same parties are
brought in the courts of different Parties,  any court other than the court  first seized shall of its
own  motion  stay  its  proceedings  until  such  time  as  the  jurisdiction  of  the  court  first  seized  is
established.

Where  the  jurisdiction  of  the  court  first  seized  is  established,  any  court  other  than  the

2.
court first seized shall decline jurisdiction in favour of that court.

Where related actions are pending in the courts of different Parties, any court other than

3.
the court first seized may stay its proceedings.

Where  these  actions  are  pending  at  first  instance,  any  court  other  than  the  court  first
4.
seized  may  also,  on  the  application  of  one  of  the  parties,  decline  jurisdiction  if  the  court  first
seized has jurisdiction over the actions in question and its law permits the consolidation thereof.

5.
For the purposes of this article, actions are deemed to be related where they are so closely
connected  that  it  is  expedient  to  hear  and  determine  them  together  to  avoid  the  risk  of
irreconcilable judgements resulting from separate proceedings.

Article 16

Applicable law

1.
Subject to paragraph 2, all matters of substance or procedure regarding claims before the
competent court which are not specifically regulated in the Protocol shall be governed by the law
of that court, including any rules of such law relating to conflict of laws.

At the request of the person who has suffered the damage, all matters of substance
2.
regarding claims before the competent court shall be governed by the law of the Party where the
industrial accident has occurred, as if the damage had been suffered in that Party.

13

Article 17

Relationship between the Protocol and the applicable domestic law

The Protocol is without prejudice to any rights of persons who have suffered damage or to any
measures for the protection or reinstatement of the environment that may be provided under
applicable domestic law.

Article 18

Mutual recognition and enforcement of judgements and arbitral awards

Any judgement of a court having jurisdiction in accordance with article 13 or any arbitral

1.
award which is enforceable in the State of origin of the judgement and is no longer subject to
ordinary forms of review shall be recognized in any Party as soon as the formalities required in
that Party have been completed, except:

(a) Where the judgement or arbitral award was obtained by fraud;

(b) Where the defendant was not given reasonable notice and a fair opportunity to

present his or her case;

(c)

Where the judgement or arbitral award is irreconcilable with an earlier judgement
or arbitral award validly pronounced in another Party with regard to the same cause of action and
the same parties; or

(d) Where the judgement or arbitral award is contrary to the public policy of the Party

in which its recognition is sought.

2.
A judgement or arbitral award recognized under paragraph 1 shall be enforceable in each
Party as soon as the formalities required in that Party have been completed. The formalities shall
not permit the merits of the case to be reopened.

The provisions of paragraphs 1 and 2 shall not apply between Parties to an agreement or

3.
arrangement in force on the mutual recognition and enforcement of judgements or arbitral
awards under which the judgement or arbitral award would be recognizable and enforceable.

Article 19

Relationship between the Protocol and bilateral, multilateral or regional liability
agreements

Whenever the provisions of the Protocol and the provisions of a bilateral, multilateral or regional
agreement apply to liability and compensation for damage caused by the transboundary effects of
industrial accidents on transboundary waters, the Protocol shall not apply provided the other

14

agreement is in force for the Parties concerned and had been opened for signature when the
Protocol was opened for signature, even if the agreement was amended afterwards.

Article 20

Relationship between the Protocol and the rules of the European Community

on jurisdiction, recognition and enforcement of judgements

1.
The  courts  of  Parties  which  are  members  of  the  European  Community  shall  apply  the
relevant  Community  rules  instead  of  article  13,  whenever  the  defendant  is  domiciled  in  a
member State of the European Community, or the parties have attributed jurisdiction to a court
of a member State of the European Community and one or more of the parties is domiciled in a
member State of the European Community.

In  their  mutual relations, Parties which  are members  of the  European  Community  shall

2. 
apply the relevant Community rules instead of articles 15 and 18.

15

FINAL CLAUSES

Article 21

Meeting of the Parties

1.

A Meeting of the Parties is hereby established.

2.
The first meeting of the Parties shall be convened no later than eighteen months after the
date of the entry into force of the Protocol and, if possible, in conjunction with a meeting of the
governing body of one of the Conventions.  Thereafter, ordinary meetings shall be held at dates
to be determined by the Meeting of the Parties to the Protocol and, as appropriate, in conjunction
with a meeting of the governing body of one of the Conventions.  Extraordinary meetings of the
Parties shall be held at such other times as may be deemed necessary by the Meeting of the
Parties, or at the written request of any Party, provided that, within six months of such a request
being communicated to them by the secretariat, it is supported by at least one third of the Parties.

The Parties, at their first meeting, shall adopt by consensus rules of procedure for their

3.
meetings and consider any necessary financial provisions.

4.

The functions of the Meeting of the Parties shall be:

(a)

To review the implementation of and compliance with the Protocol including

relevant case law provided by the Parties;

(b)

To consider and adopt, if necessary, proposals for amendment of the Protocol or

any annexes and for any new annexes;

(c)

To consider and undertake any additional action that may be required for the

purposes of the Protocol.

Article 22

Secretariat

The  Executive  Secretary  of  the  Economic  Commission  for  Europe  shall  carry  out  the

following secretariat functions for the Protocol:

(a)

(b)

The convening and preparing of meetings of the Parties;

The  transmission  to  the  Parties  of  reports  and  other  information  received  in

accordance with the provisions of the Protocol;

(c)

The performance of such other functions as may be determined by the Meeting of

the Parties on the basis of available resources.

16

Article 23

Annexes

Annexes to the Protocol shall constitute an integral part thereof.

Article 24

Amendments to the Protocol

1.

2.

Any Party may propose amendments to the Protocol.

Proposals for amendments to the Protocol shall be considered at a meeting of the Parties.

3.
Any proposed amendment to the Protocol shall be submitted in writing to the secretariat,
which  shall  communicate  it  at  least  six  months  before  the  meeting  at  which  it  is  proposed  for
adoption to all Parties, to other States and regional economic integration organizations that have
consented  to  be  bound  by  the  Protocol  and  for  which  it  has  not  yet  entered  into  force  and  to
Signatories.

4.
The Parties shall make  every  effort to reach agreement on any  proposed  amendment to
the  Protocol  by  consensus.  If  all  efforts  at  consensus  have  been  exhausted,  and  no  agreement
reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the
Parties present and voting at the meeting.

For  the  purposes  of  this  article,  “Parties  present  and  voting”  means  Parties  present  and

5.
casting an affirmative or negative vote.

6.
Any  amendment  to  the  Protocol  adopted  in  accordance  with  paragraph  4  shall  be
communicated by the secretariat to the Depositary, who shall circulate it to all Parties, to other
States and regional economic integration organizations that have consented to be bound by the
Protocol and for which it has not yet entered into force and to Signatories.

7.
An  amendment,  other  than  one  to  annex  I  or  II,  shall  enter  into  force  for  those  Parties
having  ratified,  accepted  or  approved  it  on  the  ninetieth  day  after  the  date  of  receipt  by  the
Depositary of the instruments of ratification, acceptance or approval by at least three fourths of
those which were Parties on the date of its adoption. Thereafter it shall enter into force for any
other Party on the ninetieth day after that Party deposits its instrument of ratification, acceptance
or approval of the amendment.

8.
In  the  case  of  an  amendment  to  annex  I  or  II,  a  Party  that  does  not  accept  such  an
amendment shall so notify the Depositary in writing within twelve months from the date of its
circulation by the Depositary. The Depositary shall without delay inform all Parties of any such
notification  received.  A  Party  may  at  any  time  withdraw  a  previous  notification  of  non-
acceptance, whereupon the amendment to annex I or II shall enter into force for that Party.

9.
On  the  expiry  of  twelve  months  from  the  date  of  its  circulation  by  the  Depositary  as
provided for in paragraph 6, an amendment to annex I or II shall enter into force for those Parties
which  have  not  submitted  a  notification  to  the  Depositary  in  accordance  with  paragraph  8,

17

provided that, at that time, not more than one third of those which were Parties on the date of the
adoption of the amendment have submitted such a notification.

10.
If  an  amendment  to  an  annex  is  directly  related  to  an  amendment  to  the  Protocol  not
referring to annex I, II or III, it shall not enter into force until such time as the amendment to the
Protocol enters into force.

Article 25

Right to vote

1.

Except as provided for in paragraph 2, each Party shall have one vote.

2.
Regional  economic  integration  organizations,  in  matters  within  their  competence,  shall
exercise their right to vote with a number of votes equal to the number of their member States
which are Parties.  Such organizations shall not exercise their right to vote if their member States
exercise theirs, and vice versa.

Article 26

Settlement of disputes

1.
If a dispute arises between two or more Parties about the interpretation or application of
the  Protocol,  they  shall  seek  a  solution  by  negotiation  or  by  any  other  means  of  dispute
settlement acceptable to the parties to the dispute.

2.
When signing, ratifying, accepting, approving or acceding to the Protocol, or at any time
thereafter,  a  Party  may  declare  in  writing  to  the  Depositary  that  for  a  dispute  not  resolved  in
accordance with paragraph 1, it accepts one or both of the following means of dispute settlement
as compulsory in relation to any Party accepting the same obligation:

(a) 

Submission of the dispute to the International Court of Justice;

(b) 

Arbitration in accordance with the procedure set out in annex III.

If the parties to the dispute have accepted both means of dispute settlements referred to in

3.
paragraph 2, the dispute may be submitted only to the International Court of Justice, unless the
parties to the dispute agree otherwise.

18

Article 27

Signature

The Protocol shall be open for signature at Kiev (Ukraine) from 21 to 23 May 2003 and

1.
thereafter at United Nations Headquarters in New York until 31 December 2003 by States
members of the Economic Commission for Europe, as well as States having consultative status
with the Economic Commission for Europe pursuant to paragraph 8 of Economic and Social
Council resolution 36 (IV) of 28 March 1947, and by regional economic integration
organizations constituted by sovereign States members of the Economic Commission for Europe
to which their member States have transferred competence in respect of matters governed by the
Protocol, including the competence to enter into treaties in respect of these matters.

Upon signature, a regional economic integration organization shall make a declaration

2.
specifying the matters governed by the Protocol in respect of which competence has been
transferred to that organization by its member States, the nature and extent of that competence,
including the competence to enter into treaties in respect of these matters.

19

Article 28

Ratification, acceptance, approval and accession

The Protocol shall be subject to ratification, acceptance or approval by the signatory
1.
States and regional economic integration organizations referred to in article 27, provided that the
States and organizations concerned are Parties to one or both of the Conventions.
2.
article 27, provided that the States and organizations concerned are Parties to one or both of the
Conventions.

The Protocol shall be open for accession by the States and organizations referred to in

Any other State, not referred to in paragraph 2, that is Member of the United Nations may

3.
accede to the Protocol upon approval by the Meeting of the Parties. In its instrument of
accession, such a State shall make a declaration stating that approval for its accession to the
Protocol had been obtained from the Meeting of the Parties and shall specify the date on which
approval was received.

4.
Any organization referred to in article 27 which becomes a Party to the Protocol without
any of its member States being a Party shall be bound by all the obligations under the Protocol.
If one or more of such organization’s member States is a Party to the Protocol, the organization

and its member States shall decide on their respective responsibilities for the performance of
their obligations under the Protocol. In such cases, the organization and the member States shall
not be entitled to exercise rights under the Protocol concurrently.

In their instruments of ratification, acceptance, approval or accession, the regional
5.
economic integration organizations referred to in article 27 shall declare the extent of their
competence with respect to the matters governed by the Protocol. These organizations shall also
inform the Depositary of any substantial modification to the extent of their competence.

Article 29

Entry into force

Subject to paragraph 2, the Protocol shall enter into force on the ninetieth day after the

1.
date of deposit of the sixteenth instrument of ratification, acceptance, approval or accession.

Article 2, paragraph 2 (e) (iii), shall enter into force when thresholds, limits of liability

2.
and minimum limits of financial securities for pipelines are set in annexes I and II in accordance
with article 24, paragraphs 8 and 9.

3.
For the purposes of paragraph 1, any instrument deposited by an organization referred to
in article 27 shall not be counted as additional to those deposited by States members of such an
organization.

For each State or organization referred to in article 27 which ratifies, accepts or approves

4.
the Protocol or accedes thereto after the deposit of the sixteenth instrument of ratification,
acceptance, approval or accession, the Protocol shall enter into force on the ninetieth day after
the date of deposit by such State or organization of its instrument of ratification, acceptance,
approval or accession.

20

Article 30

Reservations

No reservation may be made to the Protocol.

Article 31

Withdrawal

At any time after three years from the date on which the Protocol has entered into force

1.
for a Party, that Party may withdraw from the Protocol by giving written notification to the
Depositary.

Any such withdrawal shall take effect one year from the date of its receipt by the

2. 
Depositary, or on such later date as may be specified in the notification.

Article 32

Depositary

The Secretary-General of the United Nations shall act as the Depositary of the Protocol.

Article 33

Authentic texts

The  original  of  the  Protocol,  of  which  the  English,  French  and  Russian  texts  are  equally
authentic, shall be deposited with the Secretary-General of the United Nations.

IN  WITNESS  WHEREOF  the  undersigned,  being  duly  authorized  thereto,  have  signed  the
Protocol.

DONE at Kiev, this twenty-first day of May, two thousand and three.

21

Annex I

HAZARDOUS SUBSTANCES AND THEIR THRESHOLD QUANTITIES FOR THE
PURPOSE OF DEFINING HAZARDOUS ACTIVITIES

The threshold quantities set out below relate to each hazardous activity or group of

1.
hazardous activities.

Where a substance or preparation named in part two also falls within a category in part

2.
one, the threshold quantity set out in part two shall be used.

CATEGORIES OF SUBSTANCES AND PREPARATIONS NOT SPECIFICALLY
NAMED IN PART TWO

Part One

Category

Threshold quantity
(tons)

I.   Very toxic ...……………………………………………………..
II.  Toxic ..…………………………………………………………...
III. Dangerous for the environment..………………………………...

20
200
200

Part Two

NAMED SUBSTANCES

Substance

Petroleum products:
(a)
(b)
(c)

Gasolines and naphthas,
Kerosenes (including jet fuels),
Gas oils (including diesel fuels, home heating oils and gas oil
blending streams)

Threshold quantity
(tons)

25,000

22

Notes on the indicative criteria for the categories
of substances and preparations given in part one

In the absence of other appropriate criteria, such as the European Union classification criteria for
substances and preparations, Parties may use the following criteria when classifying substances
or preparations for the purposes of part one of this annex.

I. 

VERY TOXIC

Substances with properties corresponding to those in table 1 or table 2, and which, owing to their
physical and chemical properties, are capable of creating industrial accident hazards:

Table 1

LD50(oral)
mg/kg body weight
LD50 (cid:1) 25

LD50(dermal)
mg/kg body weight
LD50 (cid:1) 50

     LD50 oral in rats

     LD50 dermal in rats or rabbits

Table 2

                       Discriminating dose
                       mg/kg body weight               < 5

where the acute oral toxicity in animals of the substance has been determined
using the fixed-dose procedure

23

II. 

TOXIC

Substances with properties corresponding to those in table 3 or 4 and having physical and
chemical properties capable of creating industrial accident hazards:

Table 3

LD50(oral)
mg/kg body weight
25 < LD50 (cid:1) 200

LD50(dermal)
mg/kg body weight
50 < LD50 (cid:1) 400

       LD50 oral in rats

        LD50 dermal in rats or rabbits

Table 4

                       Discriminating dose
                       mg/kg body weight               = 5

where the acute oral toxicity in animals of the substance has been determined
using the fixed-dose procedure

24

III.   DANGEROUS FOR THE ENVIRONMENT

Substances showing the values for acute toxicity to the aquatic environment corresponding to
table 5:

Table 5

 LC50
 mg/l
 LC50 (cid:1) 10

 EC50
 mg/l
 EC50 (cid:1) 10

 IC50
 mg/l
 IC50 (cid:1) 10

        LC50 fish (96 hours)
        EC50 daphnia (48 hours)
        IC50 algae (72 hours)

where the substance is not readily degradable, or the log Pow > 3.0 (unless the
experimentally determined BCF < 100)

List of abbreviations

Pow -

partition coefficient octanol/water

BCF

LD 

LC 

EC

IC 

-

- 

- 

- 

- 

bioconcentration factor

lethal dose

lethal concentration

effective concentration

inhibiting concentration

25

Annex II

LIMITS OF LIABILITY AND

MINIMUM LIMITS OF FINANCIAL SECURITIES

Part One

LIMITS OF LIABILITY

For the purposes of defining the  limits  of  liability under  article  4, pursuant to article 9,
1.
the  hazardous  activities  are  grouped  in  three  different  categories,  according  to  their  hazard
potential.

2.

These categories are as follows:

Category A: Hazardous  activities  in  which  one  or  more  hazardous  substances  falling  into
categories specified in part one of annex I are or may be present in quantities not
exceeding four times the threshold quantities specified in annex I;

Category B:  Hazardous  activities  in  which  one  or  more  hazardous  substances  falling  into
categories  specified  in  part  one  of  annex  I  are  or  may  be  present  in  quantities
exceeding four times the threshold quantities specified in annex I;

Category C:  Hazardous  activities  in  which  one  or  more  hazardous  substances  named  in  part
two of annex I are or may be present in quantities at or in excess of the threshold
quantity specified in annex I.

3.

The limits of liability for the three categories of hazardous activities are as follows:

Category A hazardous activities  ...........................…10 million units of account;

Category B hazardous activities  ...............................40 million units of account;

Category C hazardous activities  ...............................40 million units of account.

26

Part Two

MINIMUM LIMITS OF FINANCIAL SECURITIES

4.
For the purposes of defining the minimum limits of financial securities under article 11,
the  hazardous  activities  are  grouped  in  three  different  categories,  according  to  their  hazard
potential.

5.

These categories are as follows:

Category A: Hazardous  activities  in  which  one  or  more  hazardous  substances  falling  into
categories specified in part one of annex I are or may be present in quantities not
exceeding four times the threshold quantities specified in annex I;

Category B:  Hazardous  activities  in  which  one  or  more  hazardous  substances  falling  into
categories  specified  in  part  one  of  annex  I  are  or  may  be  present  in  quantities
exceeding four times the threshold quantities specified in annex I;

Category C:  Hazardous  activities  in  which  one  or  more  hazardous  substances  named  in  part
two of annex I are or may be present in quantities at or in excess of the threshold
quantity specified in annex I.

The minimum limits of financial securities for the three categories of hazardous activities

6.
are as follows:

Category A hazardous activities  .............................…2.5 million units of account;

Category B hazardous activities  ...............................10 million units of account;

Category C hazardous activities  ...............................10 million units of account.

27

Annex III

ARBITRATION

1.
In  the  event  of  a  dispute  being  submitted  for  arbitration  pursuant  to  article  26,
paragraph 2, a party or parties shall notify the secretariat of the subject matter of arbitration
and indicate, in particular, the articles of the Protocol whose interpretation or application is at
issue.  The secretariat shall forward the information received to all Parties to the Protocol.

The arbitral tribunal shall consist of three members.  Both the claimant party or parties
2.
and the other party or parties to the dispute shall appoint an arbitrator, and the two arbitrators
so  appointed  shall  designate  by  common  agreement  the  third  arbitrator,  who  shall  be  the
president of the arbitral tribunal.  The latter shall not be a national of one of the parties to the
dispute, nor have his or her usual place of residence in the territory of one of these parties, nor
be employed by any of them, nor have dealt with the case in any other capacity.

3.
If the president of the arbitral tribunal has not been designated within two months of
the  appointment  of  the  second  arbitrator,  the  Executive  Secretary  of  the  Economic
Commission  for  Europe  shall,  at  the  request  of  either  party  to  the  dispute,  designate  the
president within a further two-month period.

4.
If one of the parties to the dispute does not appoint an arbitrator within two months of
the  receipt  of  the  request,  the  other  party  may  so  inform  the  Executive  Secretary  of  the
Economic Commission for Europe, who shall designate the president of the arbitral tribunal
within  a  further  two-month  period.    Upon  designation,  the  president  of  the  arbitral  tribunal
shall request the party which has not appointed an arbitrator to do so within two months.  If it
fails to do so within that period, the president shall so inform the Executive Secretary of the
Economic  Commission  for  Europe,  who  shall  make  this  appointment  within  a  further  two-
month period.

The arbitral tribunal shall render its decision in accordance with international law and

5.
the provisions of the Protocol.

Any arbitral tribunal constituted under the provisions set out in this annex shall draw

6.
up its own rules of procedure.

The  decisions  of  the  arbitral  tribunal,  both  on  procedure  and  on  substance,  shall  be

7.
taken by majority vote of its members.

8.

The tribunal may take all appropriate measures to establish the facts.

The  parties  to  the  dispute  shall  facilitate  the  work  of  the  arbitral  tribunal  and,  in

9.
particular, using all means at their disposal, shall:

(a) 

Provide it with all relevant documents, facilities and information;

28

(b) 

Enable  it,  where  necessary,  to  call  witnesses  or  experts  and  receive  their
evidence.

The parties and the arbitrators shall protect the confidentiality of any information they

10.
receive in confidence during the proceedings of the arbitral tribunal.

The  arbitral  tribunal  may,  at  the  request  of  one  of  the  parties,  recommend  interim

11.
measures of protection.

12.
If one of the parties to the dispute does not appear before the arbitral tribunal or fails
to defend its case, the other party may request the tribunal to continue the proceedings and to
render its final decision.  Absence of a party or failure of a party to defend its case shall not
constitute a bar to the proceedings.

The arbitral tribunal may hear and determine counterclaims arising directly out of the

13.
subject matter of the dispute.

Unless 

the  arbitral 

14.
the  particular
circumstances  of  the  case,  the  expenses  of  the  tribunal,  including  the  remuneration  of  its
members, shall be borne by the parties to the dispute in equal shares.  The tribunal shall keep
a record of all its expenses, and shall furnish a final statement thereof to the parties.

tribunal  determines  otherwise  because  of 

15.
Any Party to the Protocol which has an interest of a legal nature in the subject matter
of  the  dispute,  and  which  may  be  affected  by  a  decision  in  the  case,  may  intervene  in  the
proceedings with the consent of the tribunal.

16.
The arbitral tribunal shall render its award within five months of the date on which it
is established, unless it finds it necessary to extend the time limit for a period which should
not exceed five months.

17.
The award of the arbitral tribunal shall be accompanied by a statement of reasons.  It
shall be final and binding upon all parties to the dispute.  The award will be transmitted by the
arbitral tribunal to the parties to the dispute and to the secretariat.  The secretariat will forward
the information received to all Parties to the Protocol.

Any  dispute  which  may  arise  between  the  parties  concerning  the  interpretation  or
18.
execution of the award may be submitted by either party to the arbitral tribunal which made
the  award  or,  if  the  latter  cannot  be  seized  thereof,  to  another  tribunal  constituted  for  this
purpose in the same manner as the first

.

29

ANNEX B:

DECLARATION BY THE EUROPEAN COMMUNITY IN ACCORDANCE WITH
ARTICLE 27 OF THE PROTOCOL ON CIVIL LIABILITY AND COMPENSATION
FOR DAMAGE CAUSED BY THE TRANSBOUNDARY EFFECTS OF INDUSTRIAL
ACCIDENTS ON TRANSBOUNDARY WATERS

The European Community declares that,” in accordance with the EC Treaty and in particular
its articles 175 and 67, the European Community is competent for entering into international
agreements which contribute to the pursuit of its objectives in these areas”.

30