Common Position (EC) No 58/2003 of 18 September 2003 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage
Date: 2003-09-18
Institutions: Council of the European Union
Subjects: EU environmental policy, environmental liability, environmental offence, pollution control measures, prevention of pollution

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COMMON POSITION (EC) No 58/2003

adopted by the Council on 18 September 2003

with a view to the adoption of a Directive 2003/. . ./EC of the European Parliament and of the
Council of . . . on environmental liability with regard to the prevention and remedying of environ-
mental damage

(2003/C 277 E/02)

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 (1),

Having regard to the Opinion of the European Economic and
Social Committee (2),

After consulting the Committee of the Regions,

in respect of other Community legislation, namely Council
Directive 79/409/EEC of 2 April 1979 on the conservation
of wild birds (4), Council Directive 92/43/EEC of 21 May
1992 on the conservation of natural habitats and of wild
fauna and flora (5), and 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 (6), the Community may adopt
measures in accordance with the principle of subsidiarity
as set out in Article 5 of the Treaty. In accordance with
the principle of proportionality, as set out in that Article,
this Directive does not go beyond what is necessary in
order to achieve that objective.

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

(4) Environmental damage also includes damage caused by
airborne elements as far as they cause damage to water,
land, protected species or natural habitats.

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
in increased site
decades. Failure to act could result
loss of biodiversity in the
contamination and greater
future. Preventing and remedying,
insofar as is possible,
environmental damage contributes to implementing the
objectives and principles of the Community's environment
policy as set out in the Treaty. Local conditions should be
taken into account when deciding how to remedy damage.

fundamental principle of

(2) The prevention and remedying of environmental damage
should be implemented through the furtherance of the
‘polluter pays’ principle, as indicated in the Treaty and
in line with the principle of sustainable development.
The
should
therefore be that an operator whose activity has caused
the environmental damage or the imminent threat of such
damage is to 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.

this Directive

(3) Since the objective of this Directive, namely to establish a
common framework for the prevention and remedying of
environmental damage at a reasonable cost to society,
cannot be sufficiently achieved by the Member States
and can therefore be better achieved at Community level
by reason of the scale of this Directive and its implications

(5) Concepts instrumental for the correct interpretation and
application of the scheme provided for by this Directive
should be defined especially as regards the definition of
in question
environmental damage. When the concept
the
derives from other relevant Community legislation,
same definition should be used so that common criteria
can be used and uniform application promoted.

(6) Protected species and natural habitats might also be
defined by reference to species and habitats protected in
pursuance of national legislation on nature conservation.
Account should nevertheless be taken of specific situations
where Community, or equivalent national,
legislation
allows for certain derogations from the level of protection
afforded to the environment.

(7)

For the purposes of assessing damage to land as defined in
this Directive the use of risk assessment procedures to
determine to what extent human health is likely to be
adversely affected is desirable.

(8) This Directive should apply, as far as environmental
to occupational activities which
damage is concerned,
present a risk for human health or 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
the
environment.

risk for human health or

actual

for

(1) OJ C 151 E, 25.6.2002, p. 132.
(2) OJ C 241, 7.10.2002, p. 162.
(3) Opinion of the European Parliament of 14 May 2003 (not yet
published in the Official
Journal). Council Common Position of
18 September 2003 and Decision of the European Parliament of
. . . (not yet published in the Official Journal).

(4) OJ L 103, 25.4.1979, p. 1. Directive as last amended by Regulation

(EC) No 807/2003 (OJ L 122, 16.5.2003, p. 36).

(5) OJ L 206, 22.7.1992, p. 7. Directive amended by Directive

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

(6) OJ L 327, 22.12.2000, p. 1. Directive as last amended by Decision

No 2455/2001/EC (OJ L 331, 15.12.2001, p. 1).

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(9) This Directive should also apply, as regards damage to
protected species and natural habitats, 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 human health or
the environment. In such cases the operator should only
be liable under this Directive whenever he is at fault or
negligent.

(10) 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 the main purpose of which is to
serve national defence or international security.

(11) This Directive aims at preventing and remedying environ-
mental damage, and does not affect rights of compen-
sation for traditional damage granted under any relevant
international agreement regulating civil liability.

(12) Many Member States are party to international agreements
dealing with civil
liability in relation to specific fields.
These Member States should be able to remain so after
the entry into force of
this Directive, whereas other
Member States should not lose their freedom to become
parties to these agreements.

(13) 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
polluters, the damage should be concrete and quantifiable,
link should be established between the
and a causal
Liability
damage
is
the
and
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 acts or failure to act of certain individual actors.

polluter(s).

identified

(14) This Directive does not apply to cases of personal injury,
to damage to private property or to any economic loss
and does not affect any right regarding these types of
damages.

(15) 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 ensure the proper implementation and enforcement
of the scheme provided for by this Directive.

(16) Restoration of the environment should take place in an
the relevant restoration

effective manner ensuring that

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

objectives are achieved. A common framework should
be defined to that end, the proper application of which
should be supervised by the competent authority.

(17) Appropriate provision should be made for those situations
where several
instances of environmental damage have
occurred in such a manner that the competent authority
cannot ensure that all the necessary remedial measures are
taken at the same time. In such a case, the competent
authority should be entitled to decide which instance of
environmental damage is to be remedied first.

(18) 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 remedial measures. In cases
where a competent authority acts, 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
cost of assessing environmental
damage and, as the case may be, assessing an imminent
threat of such damage occurring.

the

(19) Member States may provide for flat-rate calculation of
administrative, legal, enforcement and other general costs
to be recovered.

thereof

(20) An operator should not be required to bear the costs of
preventive or remedial actions taken pursuant
to this
Directive in situations where the damage in question or
imminent threat
is the result of certain events
beyond the operator's control. Member States may allow
that operators who are not at fault or negligent shall not
bear the cost of remedial measures, in situations where the
damage in question is the result of emissions or events
explicitly authorised or where the potential for damage
could not have been known when the event or emission
took place.

(21) 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 authorisation.

(22) Member States may establish national rules covering cost
allocation in cases of multiple party causation. Member
States may take into account,
in particular, the specific
situation of users of products who might not be held
same
environmental damage
responsible
conditions as those producing such products.
In this
case, apportionment of liability should be determined in
accordance with national law.

in the

for

(23) Competent authorities should be entitled to recover the
cost of preventive or
from an
operator within reasonable period of time from the date
on which those measures were completed.

remedial measures

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(24) 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 be in charge of specific tasks entailing
appropriate administrative discretion, namely the duty to
assess the significance of the damage and to determine
which remedial measures should be taken.

Article 2

Definitions

For the purpose of this Directive the following definitions shall
apply:

1) ‘environmental damage’ means:

authority

(25) Persons adversely affected or likely to be adversely affected
by environmental damage should be entitled to ask the
competent
Environmental
to take
protection is, however, a diffuse interest on behalf of
which individuals will not always act or will not be in a
organisations
position
promoting environmental protection should therefore
also be given the opportunity to properly contribute to
the effective implementation of this Directive.

Non-governmental

action.

act.

to

(26) The relevant natural or legal persons concerned should
the

have
review of
competent authority's decisions, acts or failure to act.

to procedures

access

the

for

financial security and the development of

(27) Member States should take measures to encourage the use
by operators of any appropriate insurance or other forms
of
financial
security instruments and markets in order to provide
effective
this
Directive.

financial obligations under

cover

for

(28) Where environmental damage affects or is likely to affect
several Member States,
should
cooperate with a view to ensuring proper and effective
preventive or remedial action in respect of any environ-
mental damage. Member States may seek to recover the
costs for preventive or remedial actions.

those Member States

(29) This Directive should not prevent Member States from
maintaining or enacting more stringent provisions in
relation to the prevention and remedying of environmental
damage; nor should it prevent the adoption by Member
States of appropriate measures in relation to situations
where double recovery of costs could occur as a result
of concurrent action by a competent authority under
this Directive and by a person whose property is
affected by the environmental damage.

(30) Damage caused before the expiry of

the deadline for
implementation of this Directive should not be covered
by its provisions.

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

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

The purpose of this Directive is to establish a framework of
environmental liability based on the ‘polluter-pays’ principle, to
prevent and remedy environmental damage.

and natural habitats

(a) damage to protected species and natural habitats,
which is any damage that has significant adverse
effects on reaching or maintaining the favourable
conservation status of such habitats or species. The
significance of such effects is to be assessed with
reference to the baseline condition, taking account of
the criteria set out in Annex I; Damage to protected
species
include
previously identified adverse effects which result from
an act by an operator which was expressly authorised
by
in accordance with
the
provisions
implementing Article 6(3) and (4) or
Article 16 of Directive 92/43/EEC or Article 9 of
Directive 79/409/EEC or, in the case of habitats and
species not covered by Community law, in accordance
with equivalent provisions of national law on nature
conservation.

authorities

does not

relevant

(b) water damage, which is any damage that significantly
chemical
and/or
the
adversely affects
ecological potential, as
quantitative
status and/or
defined in Directive 2000/60/EC, of
the waters
concerned, with the exception of adverse effects
where Article 4(7) of that Directive applies;

ecological,

(c)

land damage, which is any land contamination that
risk of human health being
creates a significant
adversely affected as a result of the direct or indirect
introduction, in, on or under land, of substances, prep-
arations, organisms or micro-organisms;

2) ‘damage’ means a measurable adverse change in a natural
resource or measurable impairment of a natural resource
service which may occur directly or indirectly;

3) ‘protected species and natural habitats’ means:

(a) the species mentioned in Article 4(2) of Directive
79/409/EEC or listed in Annex I thereto or listed in
Annexes II and IV to Directive 92/43/EEC;

(b) the habitats of species mentioned in Article 4(2) of
Directive 79/409/EEC or listed in Annex I thereto or
listed in Annex II to Directive 92/43/EEC, and the
natural habitats
to Directive
92/43/EEC and the breeding sites or resting places of
the species listed in Annex IV to Directive 92/43/EEC;
and

listed in Annex I

(c) where a Member State so determines, any habitat or
species, not listed in those Annexes which the Member
State designates for equivalent purposes as those laid
down in these two Directives;

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4) ‘conservation status’ means:

(a)

affect

that may

the sum of

in respect of a natural habitat,
the
influences acting on a natural habitat and its typical
long-term natural
species
distribution, structure and functions as 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

The conservation status of a natural habitat will be
taken as ‘favourable’ when:

— its natural range and areas it covers within that

range are stable or increasing,

— the specific structure and functions which are
necessary for its long-term maintenance exist and
are likely to continue to exist for the foreseeable
future, and

— the conservation status of
favourable, as defined in (b);

its typical species is

(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 populations 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 species;

The conservation status of a species will be taken as
‘favourable’ when:

— population dynamics data on the species concerned
indicate that it is maintaining itself on a long-term
basis as a viable component of its natural habitats,

— the natural range of the species is neither being
reduced nor is likely to be reduced for the fore-
seeable future, and

— there is, and will probably continue to be, a
sufficiently large habitat to maintain its populations
on a long-term basis;

5) ‘waters’ mean all waters covered by Directive 2000/60/EC;

controls

6) ‘operator’ means any natural or legal, private or public
the occupational
person who operates or
legis-
activity or, where this is provided for in national
the
lation,
functioning of
such an activity has been
technical
delegated,
including the holder of a permit or author-
isation for such an activity or the person registering or
notifying such an activity;

to whom decisive economic power over

8) ‘emission’ means the release in the environment, as a result
of human activities, of substances, preparations, organisms
or micro-organisms;

9) ‘imminent threat of damage’ means a sufficient likelihood
that environmental damage will occur in the near future;

10) ‘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;

including mitigating or

11) ‘remedial measures’ means any action, or combination of
actions,
to
restore, rehabilitate or replace damaged natural resources
and/or impaired services, or to provide an equivalent alter-
native to those resources or services as foreseen in Annex
II;

interim measures

12) ‘natural resource’ means protected species and natural

habitats, water and land;

13) ‘services’

and ‘natural

services’ mean the
functions performed by a natural resource for the benefit
of another natural resource or the public;

resources

14) ‘baseline condition’ means the condition at the time of the
damage of the natural resources and services that would
have existed had the environmental damage not occurred,
estimated on the basis of the best information available;

15) ‘recovery’, including ‘natural recovery’, means, in the case
of water, protected species and natural habitats the return
of damaged natural resources and/or impaired services to
baseline condition and in the case of land damage, the
elimination of any significant risk of adversely affecting
human health;

16) ‘costs’ means costs which are justified by the need to
ensure the proper and effective implementation of this
Directive including the costs of assessing environmental
damage, an imminent threat of such damage, alternatives
for action as well as
legal, and
enforcement costs, the costs of data collection and other
general costs, monitoring and supervision costs.

the administrative,

Article 3

Scope

1.

This Directive shall apply to:

(a) environmental damage caused by any of the occupational
activities listed in Annex III, and to any imminent threat of
such damage occurring by reason of any of those activities;

7) ‘occupational activity’ means any activity carried out in the
course of an economic activity, a business or an under-
taking,
its private or public, profit or
non-profit character;

irrespectively of

(b) damage to protected species and natural habitats caused by
any occupational activities other than those listed in Annex
III, and to any imminent threat of such damage occurring
by reason of any of those activities, whenever the operator
has been at fault or negligent.

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This Directive shall apply without prejudice to more
2.
stringent 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. Without prejudice to relevant national
legislation, this
Directive shall not give private parties a right of compensation
as a consequence of environmental damage or of an imminent
threat of such damage.

operator shall, without delay, take the necessary preventive
measures.

2. 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 operator, operators are to inform the competent
authority of all relevant aspects of the situation, as soon as
possible.

3.

The competent authority may, at any time:

Article 4

Exceptions

(a) require the operator
imminent
of
suspected cases of such an imminent threat;

to provide information on any
in
environmental

damage

threat

or

This Directive shall not cover environmental damage or

1.
an imminent threat of such damage caused by:

(b) require the operator

to take the necessary preventive

measures;

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

(c) give instructions to the operator to be followed on the

rection;

necessary preventive measures to be taken; or

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

(d) itself take the necessary preventive measures.

sistible character.

2.
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 falls
within the scope of any of
the International Conventions
listed in Annex IV, including any future amendments thereof,
which is in force in the Member State concerned.

The competent authority shall require that the preventive
4.
measures are taken by the operator. If the operator fails to
comply with the obligations laid down in paragraph 1 or
3(b) or (c), cannot be identified or is not required to bear
the costs under this Directive, the competent authority may
take these measures itself.

3.
This Directive shall be without prejudice to the right of
the operator to limit his liability in accordance with national
legislation implementing the Convention on Limitation of
including any
Liability for Maritime Claims (LLMC), 1976,
future amendment
the Strasbourg
Convention on Limitation of Liability in Inland Navigation
to the
(CLNI), 1988,
Convention.

to the Convention, or

including any future

amendment

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 activities covered by the Treaty estab-
lishing the Atomic Energy European Community or caused by
an incident or activity in respect of which liability or compen-
the international
sation falls within the scope of any of
future
instruments
amendments thereof.

in Annex V,

including

listed

any

5.
This Directive shall only apply to environmental damage
or to an imminent threat of such damage caused by pollution
of a diffuse character, where it is possible to establish a causal
link between the damage and the activities of
individual
operators.

6.
This Directive shall not apply to activities the main
purpose of which is to serve national defence or international
security nor to activities the sole purpose of which is to protect
from natural disasters.

Article 6

Remedial action

1. Where environmental damage has occurred the operator
shall, without delay,
inform the competent authority of all
relevant aspects of the situation and take:

(a) all practicable

steps

to immediately control, contain,
remove or otherwise manage the relevant contaminants
and/or any other damage factors in order to limit or to
prevent further environmental damage and adverse effects
on human health or further impairment of services and

(b) the necessary remedial measures, in accordance with Article

7.

2.

The competent authority may, at any time:

(a) require the operator to provide supplementary information

on any damage that has occurred;

contain,

(b) take, require the operator to take or give instructions to the
operator concerning, all practicable steps to immediately
control,
the
relevant contaminants and/or any other damage factors in
order to limit or to prevent further environmental damage
and adverse effect on human health, or further impairment
of services;

remove or otherwise manage

Article 5

Preventive action

1. Where environmental damage has not yet occurred but
there is an imminent threat of such damage occurring, the

(c) require

the operator

to take the necessary remedial

measures;

(d) give instructions to the operator to be followed on the

necessary remedial measures to be taken; or

(e)

itself take the necessary remedial measures.

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The competent authority shall require that the remedial
3.
measures are taken by the operator. If the operator fails to
comply with the obligations laid down in paragraph 1 or
2(b),
(c) or (d), cannot be identified or is not required to
bear the costs under this Directive, the competent authority
may take these measures itself.

Article 7

Determination of remedial measures

Operators shall

identify,
remedial measures

in accordance with Annex II,
1.
potential
them to the
and submit
competent authority for its approval, unless the competent
authority has taken action under Article 6(2)(e) and (3).

2.
The competent authority shall decide which remedial
measures shall be implemented in accordance with Annex II,
and with the cooperation of the relevant operator, as required.

(b) resulted from compliance with a compulsory order or
instruction emanating from a public authority other than
an order or instruction consequent upon an emission or
incident caused by the operator's own activities.

In such cases Member States
take the appropriate
measures to enable the operator to recover the costs incurred.

shall

4.
The Member States may allow the operator not to bear
the cost of remedial actions taken pursuant to this Directive
where he demonstrates that he was not at fault or negligent
and that the environmental damage was caused by:

(a) an emission or event expressly authorised by, and fully in
accordance with the
an authorisation
conferred by or given under applicable national laws and
regulations which implement
those legislative measures
adopted by the Community specified in Annex III, as
applied at the date of the emission or event;

conditions of,

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

(b) an emission or activity or any manner of using a product
in the course of an activity which the operator demon-
strates was not considered likely to cause environmental
damage according to the state of scientific and technical
knowledge at the time when the emission was released or
the activity took place.

inter alia,

In making that decision, the competent authority shall have
regard,
the
various instances of environmental damage concerned, and to
the possibility of natural recovery. Risks to human health shall
also be taken into account.

to the nature, extent and gravity of

4.
The competent authority shall invite the persons referred
to in Article 12(1) and in any case the persons on whose land
remedial measures would be carried out to submit their obser-
vations and shall take them into account.

Article 8

Prevention and remediation costs

The operator shall bear the costs for the preventive and

1.
remedial actions taken pursuant to this Directive.

Subject to paragraphs 3 and 4, the competent authority
2.
shall recover,
inter alia, via security over property or other
appropriate guarantees from the operator who has caused
the damage or the imminent threat of damage, the costs it
has incurred in relation to the preventive or remedial actions
taken under this Directive.

However, the competent authority may decide not to recover
the full costs where the expenditure required to do so would be
greater than the recoverable sum or where the operator cannot
be identified.

An operator shall not be required to bear the cost of
3.
to this
actions
preventive or
Directive when he can prove that the environmental damage
or imminent threat of such damage:

taken pursuant

remedial

(a) was caused by a third party and occured despite the fact

that appropriate safety measures were in place; or

5. Measures taken by the competent authority in pursuance
of Article 5(3) and (4) and Article 6(2) and (3) 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 9

Cost allocation in cases of multiple party causation

This Directive is without prejudice to any provisions of
national regulations concerning cost allocation in cases of
multiple party causation especially concerning the appor-
tionment of liability between the producer and the user of a
product.

Article 10

Limitation period for recovery of costs

The competent authority shall be entitled to initiate cost
recovery proceedings against the operator, or if appropriate,
a third party who has caused the damage or the imminent
threat of damage in relation to any measures
taken in
pursuance of this Directive within five years from the date
on which those measures have been completed or the liable
operator, or third party, has been identified, whichever is the
later.

Article 11

Competent authority

1. Member
competent
authority(ies) responsible for fulfilling the duties provided for
in this Directive.

designate

States

shall

the

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threat of damage,

The duty to establish which operator has caused the
2.
damage or the imminent
to assess the
significance of the damage and to determine which remedial
measures should be taken with reference to Annex II shall rest
with the competent authority. To that effect, the competent
authority shall be entitled to require the relevant operator to
carry out his own assessment and to supply any information
and data necessary.

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

to carry out

Any decision taken pursuant

4.
to this Directive which
imposes preventive or remedial 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 12

Request for action

1.

Natural or legal persons:

(a) affected or likely to be affected by environmental damage

or

(b) having a sufficient

interest

in environmental decision

making relating to the damage or, alternatively,

(c) alleging the impairment of a right, where administrative
procedural law of a Member State requires this as a precon-
dition,

shall be entitled to submit to the competent authority any
observations relating to instances of environmental damage
or an imminent threat of such damage of which they are
aware
competent
entitled to request
authority to take action under this Directive.

and shall be

the

its decision to
submitted observations to the authority, of
accede to or refuse the request for action and shall provide
the reasons for it.

5. Member States may decide not to apply paragraphs 1 and
4 to cases of imminent threat of damage.

Article 13

Review procedures

1.
The persons referred to in Article 12(1) shall have access
to a court or other independent and impartial public body
competent to review the procedural and substantive legality
the competent
of
authority under this Directive.

the decisions, acts or failure to act of

This Directive

shall be without prejudice

to any
2.
provisions of national
law which regulate access to justice
and those which require that administrative review procedures
be exhausted prior to recourse to judicial proceedings.

Article 14

Financial security

1. Member States shall
take measures to encourage the
development of financial security instruments and markets by
including
the appropriate economic and financial operators,
financial mechanisms in case of insolvency, with the aim of
enabling operators to use financial guarantees to cover their
responsibilities under this Directive.

2.
The Commission, before . . . (*) shall present a report on
the effectiveness of the Directive in terms of actual remediation
of environmental damages, on the availability at reasonable
costs and on conditions of
insurance and other types of
financial security for the activities covered by Annex III. In
the
the Commission may submit
proposals for mandatory financial security.

light of

report,

that

What constitutes a ‘sufficient interest’ and ‘impairment of a
right’ shall be determined by the Member States.

Article 15

Cooperation between Member States

environmental

To this end, the interest of any non-governmental organisation
promoting
any
protection
law shall be deemed sufficient
requirements under national
for the purpose of subparagraph (b). Such organisations shall
also be deemed to have rights capable of being impaired for
the purpose of subparagraph (c).

and meeting

The request

for action shall be accompanied by the
2.
relevant
information and data supporting the observations
submitted in relation to the environmental damage in question.

for action and the accompanying
3. Where the request
observations show in a plausible manner that environmental
damage exists, the competent authority shall consider any such
observations and requests for action. In such circumstances the
competent authority shall give the relevant operator an oppor-
tunity to make his views known with respect to the request for
action and the accompanying observations.

4.
The competent authority shall, as soon as possible and in
any case in accordance with the relevant provisions of national
inform the persons referred to in paragraph 1, which
law,

1. Where environmental damage affects or is likely to affect
several Member States, those Member States shall cooperate,
including through the appropriate exchange of information,
with a view to ensuring that preventive action and, where
necessary, remedial action is taken in respect of any such
environmental damage.

2. Where environmental damage has occurred, the Member
State in whose territory the damage originates shall provide
sufficient information to the potentially affected Member States.

3. Where a Member State identifies damage within its
borders which has not been caused within them it may
report the issue to the Commission and any other Member
State concerned;
the
adoption of preventive or
remedial measures and it may
in accordance with this Directive, to recover the costs
seek,
it has incurred in relation to the adoption of preventive or
remedial measures.

it may make recommendations

for

(*) Eight years after the entry into force of this Directive.

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Article 16

Relationship with national law

and taking account of all relevant instances of environ-
mental damage resulting from such activities and the
remedial action taken;

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 remediation requirements of
this Directive and the identification of additional responsible
parties.

2.
This Directive shall not prevent Member States from
adopting appropriate measures, such as the prohibition of
double recovery of costs,
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 environmental damage.

Article 17

Temporal application

This Directive shall not apply to:

— damage caused by an emission, event or incident that took

place before the date referred to in Article 19(1),

— damage caused by an emission, event or incident which
takes place subsequent to the date referred to in Article
19(1) when it derives from a specific activity that took
place and finished before the said date,

— damage,

if more than 30 years have passed since the
resulting in the damage,

incident,

emission, event or
occurred.

Article 18

Reports and review

1. Member States shall report to the Commission on the
experience gained in the application of
this Directive by
. . . (*) at the latest. The reports shall include the information
and data set out in Annex VI.

2.
On that basis, the Commission shall submit a report to
the European Parliament and to the Council before . . . (**),
which shall include any appropriate proposals for amendment.

The Report, referred to in paragraph 2, shall include a

3.
review of:

(a) the application of Article 4(2) and (4) in relation to the
international
exclusion of pollution covered by the
instruments listed in Annexes IV and V from the scope
of this Directive, particularly in the light of experience
gained within relevant international fora, such as the IMO
and Euratom, and Conventions, and the extent to which
these instruments have entered into force and/or have been
implemented by Member States and/or have been modified,

by

genetically modified

(b) the application of this Directive to environmental damage
(GMOs),
caused
particularly in the light of experience gained within
relevant international fora and Conventions, such as the
Convention on Biological Diversity and the Cartagena
the results of any
Protocol on Biosafety, as well as
incidents of environmental damage caused by GMOs;

organisms

(c)

the application of this Directive in relation to protected
species and natural habitats;

(d) the instruments that may be eligible for incorporation into

Annexes III, IV and V.

Article 19

Implementation

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
forthwith
Directive by . . . (***) at
inform the Commission thereof.

the latest. They shall

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

The methods of making such reference shall be laid down by
Member States.

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive together with a table
showing how the provisions of this Directive correspond to
the national provisions adopted.

Article 20

Entry into force

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Union.

Article 21

Addressees

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

(*) Nine years after the entry into force of this Directive.
(**) Ten years after the entry into force of this Directive.

(***) Three years after the entry into force of this Directive.

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ANNEX I

CRITERIA REFERRED TO IN ARTICLE 2(1)(a)

The significance of any damage that has adverse effects on reaching or maintaining the favourable conservation status of
habitats or species has to be assessed by reference to the conservation status at the time of the damage, the services
provided by the amenities they produce and their capacity for natural regeneration. Significant adverse changes to the
baseline condition should be determined by means of measurable data such as:

— the number of individuals, their density or the area covered,

— the role of the particular individuals or of the damaged area in relation to the species or to the habitat conservation,
including at Community level),

the rarity of the species or habitat (assessed at local, regional and higher level

— the species' capacity for propagation (according to the dynamics specific to that species or to that population), its
viability or the habitat's capacity for natural regeneration (according to the dynamics specific to its characteristic
species or to their populations),

— the species' or habitat's capacity, after damage has occurred, to recover within a short time, without any inter-
vention other than increased protection measures, to a condition which leads, solely by virtue of the dynamics of
the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

Damage with a proven effect on human health must be classified as significant damage.

The following does not have to be classified as significant damage:

— negative variations that are smaller than natural fluctuations regarded as normal for the species or habitat in

question,

— negative variations due to natural causes or resulting from intervention relating to the normal management of sites,

as defined in habitat records or target documents or as carried on previously by owners or operators,

— damage to species or habitats for which it is established that they will recover, within a short time and without
intervention, either to the baseline condition or to a condition which leads, solely by virtue of the dynamics of the
species or habitat, to a condition deemed equivalent or superior to the baseline condition.

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ANNEX II

REMEDYING OF ENVIRONMENTAL DAMAGE

This Annex sets out a common framework to be followed in order to choose the most appropriate measures to ensure
the remedying of environmental damage.

1.

REMEDIATION OF DAMAGE TO WATER, PROTECTED SPECIES AND NATURAL HABITATS

Remedying of environmental damage, in relation to water, protected species and natural habitats, is achieved
through the restoration of the environment to its baseline condition by way of primary, complementary and
compensatory remediation, where:

(a)

‘Primary’ remediation is any remedial measure which returns the damaged natural resources and/or impaired
services to, or towards, baseline condition;

(b) ‘Complementary’ remediation is any remedial measure taken in relation to natural resources and/or services to
compensate for the fact that primary remediation does not result in fully restoring the damaged natural
resources and/or services;

(c)

‘Compensatory’ remediation is any action taken to compensate for interim losses of natural resources and/or
services that occur from the date of damage occurring until primary remediation has achieved its full effect;

(d) ‘interim losses’ means losses which result from the fact that the damaged natural resources and/or services are
not able to perform their ecological functions or provide services to other natural resources or to the public
until the primary or complementary measures have taken effect. It does not consist of financial compensation
to members of the public.

Where primary remediation does not result in the restoration of the environment to its baseline condition,
then complementary remediation will be undertaken.
In addition, compensatory remediation will be
undertaken to compensate for the interim losses.

Remedying of environmental damage, in terms of damage to water, protected species and natural habitats,
also implies that any significant risk of human health being adversely affected be removed.

1.1. Remediation objectives

Purpose of primary remediation

1.1.1. The purpose of primary remediation is to restore the damaged natural resources and/or services to, or towards,

baseline condition.

Purpose of complementary remediation

1.1.2. Where the damaged natural resources and/or services do not return to their baseline condition, then comple-
mentary remediation will be undertaken. The purpose of complementary remediation is to provide a similar level
of natural resources and/or services, including, as appropriate, at an alternative site, as would have been provided
if the damaged site had been returned to its baseline condition. Where possible and appropriate the alternative
site should be geographically linked to the damaged site, taking into account the interests of the affected
population.

Purpose of compensatory remediation

1.1.3. Compensatory remediation shall be undertaken to compensate for the interim loss of natural resources and
services pending recovery. This compensation consists of additional improvements to protected natural habitats
and species or water at either the damaged site or at an alternative site.
It does not consist of financial
compensation to members of the public.

1.2.

Identification of remedial measures

Identification of primary remedial measures

1.2.1. Options comprised of actions to directly restore the natural resources and services towards baseline condition on

an accelerated time frame, or through natural recovery, shall be considered.

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Identification of complementary and compensatory remedial measures

1.2.2. When determining the scale of complementary and compensatory remedial measures, the use of resource-
to-resource or service-to-service equivalence approaches shall be considered first. Under these approaches,
the same type, quality and quantity as those
actions that provide natural resources and/or services of
then alternative natural resources and/or
damaged shall be considered first. Where this is not possible,
services shall be provided. For example, a reduction in quality could be offset by an increase in the quantity
of remedial measures.

1.2.3. If it is not possible to use the first choice resource-to-resource or service-to-service equivalence approaches, then
alternative valuation techniques shall be used. The competent authority may prescribe the method, for example
monetary valuation,
to determine the extent of the necessary complementary and compensatory remedial
measures. If 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,
then the competent authority may choose remedial measures whose cost is equivalent to the estimated monetary
value of the lost natural resources and/or services.

The complementary and compensatory remedial measures should be so designed that they provide for additional
natural resources and/or services to reflect time preferences and the time profile of the remedial measures. For
example, the longer the period of time before the baseline condition is reached, the greater the amount of
compensatory remedial measures that will be undertaken (other things being equal).

1.3. Choice of the remedial options

1.3.1. The reasonable remedial options should be evaluated, using best available technologies, based on the following

criteria:

— The effect of each option on public health and safety,

— The cost of implementing the option,

— The likelihood of success of each option,

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

implementing the option,

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

— The extent to which each option takes account of relevant social, economic and cultural concerns and other

relevant factors specific to the locality,

— The length of time it will take for the restoration of the environmental damage to be effective,

— The extent to which each option achieves the restoration of site of the environmental damage,

— The geographical linkage to the damaged site.

1.3.2. When evaluating the different identified remedial options, primary remedial measures that do not fully restore the
damaged water, protected species or natural habitat to baseline or that restore it more slowly can be chosen. This
decision can be taken only if the natural resources and/or services foregone at the primary site as a result of the
decision are compensated for by increasing complementary or compensatory actions to provide a similar level of
natural resources and/or services as were foregone. This will be the case, for example, when the equivalent
natural resources and/or services could be provided elsewhere at a lower cost. These additional remedial measures
shall be determined in accordance with the rules set out in section 1.2.2.

1.3.3. Notwithstanding the rules set out in section 1.3.2. and in accordance with Article 7(3), the competent authority is

entitled to decide that no further remedial measures should be taken if:

(a) the remedial measures already taken secure that there is no longer any significant risk of adversely affecting

human health, water or protected species and natural habitats, and

(b) the cost of the remedial measures that should be taken to reach baseline condition or similar level would be

disproportionate to the environmental benefits to be obtained.

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2.

REMEDIATION OF LAND DAMAGE

The necessary measures shall be taken to ensure, as a minimum, that the relevant contaminants are removed,
controlled, contained or diminished so that the contaminated land, taking account of its current use or approved
future use at the time of the damage, no longer poses any significant risk of adversely affecting human health.
The presence of such risks shall be assessed through risk-assessment procedures taking into account the char-
acteristic and function of the soil, the type and concentration of the harmful substances, preparations, organisms
or micro-organisms, their risk and the possibility of their dispersion. Use shall be ascertained on the basis of the
land use regulations, or other relevant regulations, in force, if any, when the damage occurred.

If the use of the land is changed, all necessary measures shall be taken to prevent any adverse effects on human
health.

If land use regulations, or other relevant regulations, are lacking, the nature of the relevant area where the
damage occurred, taking into account its expected development, shall determine the use of the specific area.

A natural recovery option, that is to say an option in which no direct human intervention in the recovery process
would be taken, shall be considered.

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ANNEX III

ACTIVITIES REFERRED TO IN ARTICLE 3(1)

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). That means all activities listed in Annex I of Directive
96/61/EC with the exception of installations or parts of installations used for research, development and testing of
new products and processes.

2. 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 Directives 75/442/EEC of 15 July 1975 on waste (2) and Council Directive 91/689/EEC of
12 December 1991 on hazardous waste (3).

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 (4) 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 (5).

For the purpose of this Directive, Member States may decide that those operations shall not include the spreading of
sewage sludge from urban waste water treatment plants, treated to an approved standard, for agricultural purposes.

3. All discharges into the inland surface water, which require prior authorisation 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 (6).

4. All discharges of substances into groundwater which require prior authorisation in pursuance of Council Directive
80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous
substances (7).

5. The discharge or injection of pollutants into surface water or groundwater which require a permit, authorisation or

registration in pursuance of Directive 2000/60/EC.

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

7. Manufacture, use, storage, processing, filling, release into the environment and onsite transport of

(a) dangerous substances as defined in Article 2(2) 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
classification, packaging and labelling of dangerous substances (8);

(b) dangerous preparations as defined in Article 2(2) 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 prep-
arations (9);

(c) plant protection products as defined in Article (2)(1) of Council Directive 91/414/EEC of 15 July 1991

concerning the placing of plant protection products on the market (10);

(1) OJ L 257, 10.10.1996, p. 26. Directive as last amended by Directive 2003/35/EC of the European Parliament and of the Council

(OJ L 156, 25.6.2003, p. 17).

(2) OJ L 194, 25.7.1975, p. 39. Directive as last amended by Commission Decision 96/350/EC (OJ L 135, 6.6.1996, p. 32).
(3) OJ L 377, 31.12.1991, p. 20. Directive as amended by Directive 94/31/EC of 27 June 1994 (OJ L 168, 2.7.1994, p. 28).
(4) OJ L 182, 16.7.1999, p. 1.
(5) OJ L 332, 28.12.2000, p. 91.
(6) OJ L 129, 18.5.1976, p. 23. Directive as last amended by Directive 2000/60/EC of the European Parliament and of the Council

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

(7) OJ L 20, 26.1.1980, p. 43. Directive as amended by Directive 91/692/EEC (OJ L 377, 31.12.1991, p. 48).
(8) OJ 196, 16.8.1967, p. 1. Directive as last amended by Regulation (EC) No 807/2003 (OJ L 122, 16.5.2003, p. 36).
(9) OJ L 200, 30.7.1999, p. 1. Directive as amended by Commission Directive 2001/60/EC (OJ L 226, 22.8.2001, p. 5).
(10) OJ L 230, 19.8.1991, p. 1. Directive as last amended by Regulation (EC) No 806/2003 (OJ L 122, 16.5.2003, p. 1).

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(d) biocidal products as defined in Article 2(1)(a) 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 (1).

8. 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 (2) 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 (3) 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 (4).

9. 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 (5) in relation to the release into air of any of the
polluting substances covered by the aforementioned Directive.

10. Any contained use,

including transport,

involving genetically modified micro-organisms as defined by Council

Directive 90/219/EEC of 23 April 1990 on the contained use of genetically modified micro-organisms (6).

11. Any deliberate release into the environment, transport and placing on the market of genetically modified organisms

as defined by Directive 2001/18/EC of the European Parliament and of the Council (7).

12. Transboundary shipment of waste within,

into or out of the European Union, requiring an authorisation or
prohibited in the meaning of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and
control of shipments of waste within, into and out of the European Community (8).

(1) OJ L 123, 24.4.1998, p. 1.
(2) OJ L 319, 12.12.1994, p. 7. Directive as last amended by Commission Directive 2003/28/EC (OJ L 90, 8.4.2003, p. 45).
(3) OJ L 235, 17.9.1996, p. 25. Directive as last amended by Commission Directive 2003/69/EC (OJ L 90, 8.4.2003, p. 47).
(4) OJ L 247, 5.10.1993, p. 19. Directive as last amended by Directive 2002/84/EC of the European Parliament and of the Council (OJ L

324, 29.11.2002, p. 53).

(5) OJ L 188, 16.7.1984, p. 20. Directive as amended by Directive 91/692/EEC (OJ L 377, 31.12.1991, p. 48).
(6) OJ L 117, 8.5.1990, p. 1. Directive as amended by Decision 2001/204/EC (OJ L 73, 15.3.2001, p. 32).
(7) OJ L 106, 17.4.2001, p. 1. Directive as amended by Council Decision 2002/811/EC (OJ L 280, 18.10.2002, p. 27).
(8) OJ L 30, 6.2.1993, p. 1. Regulation as last amended by Commission Regulation (EC) No 2557/2001 (OJ L 349, 31.12.2001, p. 1).

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INTERNATIONAL CONVENTIONS REFERRED TO IN ARTICLE 4(2)

ANNEX IV

(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 Compen-

sation for Oil Pollution Damage;

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

(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;

(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.

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INTERNATIONAL INSTRUMENTS REFERRED TO IN ARTICLE 4(4)

ANNEX V

(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;

(b) the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage;

(c) the Convention of 12 September 1997 on Supplementary Compensation for Nuclear Damage;

(d) the Joint Protocol of 21 September 1988 relating to the Application of the Vienna Convention and the Paris

Convention;

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

Material.

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ANNEX VI

INFORMATION AND DATA REFERRED TO IN ARTICLE 18(1)

The reports referred to in Article 18(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) Type of environmental damage, date of occurrence and/or discovery of the damage and date on which proceedings

were initiated under this Directive.

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

3) Whether there has been resort to judicial review proceedings either by liable parties or qualified entities (the type of

claimants and the outcome of proceedings shall be specified).

4) Outcome of the remediation process.

5) Date of closure of proceedings.

Member States may include in their reports any other information and data they deem useful to allow a proper
assessment of the functioning of this Directive, for example:

1) Costs incurred with remediation and prevention measures, as defined in this Directive:

— paid for directly by liable parties, when this information is available; recovered ex post facto from liable parties;

— unrecovered from liable parties (reasons for non-recovery should be specified).

2) Results of the actions to promote and the implementation of the financial security instruments used in accordance

with this Directive.

3) An assessment of the additional administrative costs incurred annually by the public administration in setting up and

operating the administrative structures needed to implement and enforce this Directive.

(*) The NACE code can be used (Council Regulation (EEC) No 3037/90 on the statistical classification of economic activities in the

European Community (OJ L 293, 24.10.1990, p. 1)).

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 21 February 2002, the Commission presented to the Council its 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.

2. The European Parliament gave its Opinion on 14 May 2003.

The Economic and Social Committee adopted its Opinion on 18 July 2002.

The Committee of the Regions announced its intention not to give an opinion by letter dated 9 April
2002.

3. On 18 September 2003, the Council adopted its common position in accordance with Article 251

of the Treaty.

II. OBJECTIVE

The purpose of the Directive is to establish a framework whereby environmental damage would be
prevented or remediated. The proposal is based on the ‘polluter pays’ principle: an operator whose
activity has caused the environmental damage or an imminent threat of such damage occurring will be
held financially liable for the preventive or remedying measures to be taken. This will induce operators
to adopt measures and develop practices to minimise the risks of environmental damage so that their
exposure to financial liabilities is reduced.

Institutional and procedural detailed arrangements as to how the prescribed results will be achieved are
left to a very large extent to the Member States in line with the subsidiarity and proportionality
principles.

Certain rules on the restoration objectives to be achieved and how to choose the measures to achieve
them are however established so that a minimum common basis is shared by Member States to ensure
effective implementation.

III. ANALYSIS OF THE COMMON POSITION

1. General

The scope of the Directive covers environmental damage to land, water and biodiversity caused by
occupational activities (a number of exceptions is foreseen). It does not cover economic loss. The
Directive sets out the obligation for operators to take preventive action when there is an imminent
threat of damage and to take remedial action in case the damage has occurred — at their own
expenses.

The Directive differentiates between on the one hand, certain high-risk occupational activities —
listed in an Annex — for which all environmental damage is covered and where strict liability
applies and, on the other hand, occupational activities other than those listed, for which only
damage to protected species and habitats is covered, if the operator is at fault or negligent.

In addition the text foresees: the possibility for the interested public to request action, cooperation
between Member States in case of transboundary pollution, and the encouragement to develop
financial security instruments. The provisions of this Directive are not retroactive,
i.e. do not
cover damage caused before the date of its implementation.

The Commission has accepted the common position agreed by the Council.

2. European Parliament Amendments

In its Plenary vote on 14 May 2003 the EP adopted 48 amendments to the proposal.

The Council:

(a)

introduced in the common position 26 amendments in full, in part or in principle as follows:

Amendment 2: the spirit of its second part is incorporated in recital 1, while the reference to a
precise number of existing contaminated sites was not considered necessary.

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Amendment 3: the substance of its first part is taken up in recital 2, while the second part was
not taken on board because the Directive, in general, does not provide for a limit to liability.

Amendment 7: recital 10 takes account, to a certain extent, of the last part of this amendment
while, on the matter of nuclear energy, the Council agrees with the position expressed by the
Commission.

Amendment 10 is partly incorporated in recital 13.

Amendment 14 is taken on board in recital 22.

Amendments 16 and 18 are taken up in recitals 25 and 30 respectively.

Amendment 21 is covered, in part, by recital 31, although the Council prefers, as regards the
timing of the Commission review, to retain a longer period.

Amendment [93, 94, 23, 90, 95, 96 and 97] on definitions: most of this amendment is included
in Article 2. In particular, the definitions of ‘biodiversity’ (now ‘protected species and natural
habitats’), ‘conservation status’, ‘value’ (deletion) have been modified along the lines suggested by
the European Parliament, sometimes with slight re-wording. The definition of
is
simplified while the definition of ‘operator’
is broadened along the lines suggested by the
amendment. The Council, however, agrees with the comments presented by the Commission
on the other parts of this amendment, particularly regarding the definitions of ‘biodiversity’ and
of ‘operator’ and on the addition of a reference to ‘radiation’.

‘damage’

Amendment [85, 99]: part of this amendment, concerning the link between the scope of the
Directive and International Agreements, is taken up in substance by Article 4 paragraph 2 and
Article 18 paragraphs 2 and 3 (on the review of the Directive). As regards the rest of this
amendment, the Council agrees with the arguments provided by the Commission.

Amendment 100 is taken mostly on board in Article 5. As regards its last part, the Council
could not agree with the obligation addressed to Member States to ensure that preventive
actions are taken in case of
the operator to comply (subsidiary state liability).
According to the Council, the decision to act should be taken by competent authorities, case
by case.

failure of

Amendment 101 is mostly covered by Articles 6 and 7. On subsidiary state liability, the position
of the Council is outlined above (cf. amendment 100). The Council considers that it is up to
competent authorities to decide whether take remedial actions, on a case by case basis.

Amendment 32: Article 6(1) incorporates the substance of this amendment in that it requires
the operator to act, without a request to do so by the competent authority.

Amendment 36: cost recovery proceeding against a third party who has caused the damage is
not explicitly covered by the new wording of Article 8(2). However, this possibility is clearly
foreseen in Article 10.

Amendment [86, 103 and 38] is partly taken up in Article 4, where damage, in case of ‘permit’
or ‘state of the art’ activities,
is deleted from the list of exemptions and covered instead by
Article 8 on prevention and remediation costs. The Council did not add a mention to terrorism
in Article 4 considering that this eventuality would be covered, depending on the case, either by
the term ‘hostilities’ (Article 4.1(a)) or by Article 8.3(a) on damage caused by third parties. The
Council also considered that the addition of a specific reference to ‘good agricultural and forestry
practices’ was not needed because this matter was better addressed by the horizontal provision
of Article 8.4.(b) (state of the art). Finally, the introductory sentence of Article 4 has not been
modified to avoid widening the scope of the Directive.

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Amendment 91: the principle of this amendment is partly covered by Article 8 paragraph 4. In
case of ‘permit’ or ‘state of the art’ activities it is up to Member States to allow the operator not
to bear the costs of remedial actions taken pursuant to the Directive — where the operator
demonstrates that he is not at fault or negligent.

Amendment 41 is taken up in part by Article 9 on cost allocation in cases of multiple party
causation.

Amendment 44 is implicitly covered by the present wording of Article 13.

Amendment 47 is taken on board in Article 12 paragraph 2.

Amendment 107: the last part of this amendment is incorporated in Article 14, paragraph 1.
However, given the scarce availability of suitable products on the market and the consequent
difficulties in implementation, the Council can not agree with the Parliament's suggestion for a
mandatory financial security gradually covering the activities listed in Annex III to the Directive.

Amendment 52 is covered, in substance, by Article 15.

Amendment 63 is taken up, in part and in principle, by the preamble of Annex II.

Amendment 65 is covered, in substance, by the last sentence in paragraph 1, Annex II.

Amendment 66 is taken up, in substance, by the first sentence in paragraph 2, Annex II.

Amendments 72 and 74 are partly covered by the spirit of paragraphs 1.2.3 and 1.3.2 (Annex
II) respectively.

(b) did not include 22 amendments (5, 6, 8, 9, 11,12, 13, 17, 19, 22, 27, 33, 34, 35, 43, 106, 53, 54,

55, 60, 108, 76) in the common position.

With respect to amendments 5, 8, 9, 11, 12, 13, 19, 22, 27, 33, 43, 106, 54, 55, 108 and 76
the Council followed the position expressed by the Commission.

In relation to amendments 6, 17, 34, 35, 53, and 60, accepted in full or in part by the
Commission but not included in the common position:

Amendment 6: this addition was not considered necessary, given that sufficient flexibility is
provided by the text of the draft Directive.

Amendment 17: the Council preferred not to take up this modification, considering that the
review procedures provided for in Article 13 offer sufficient coverage, also in the case of
operators.

Amendment 34 on liability of Member States in case of transboundary damage was not
included: in general, the common position does not provide for subsidiary State liability, as
initially foreseen by the Commission.

Amendment 35 on limitation of recovery of costs was not considered necessary, given that,
according to Article 4(4) the Directive will apply only to damage, or imminent threat of damage,
where it is possible to establish a causal link between the damage and the activities of individual
operators.

Amendment 53: given the existence of national legislation on this matter, the Council preferred
to maintain the text proposed by the Commission.

Amendment 60 adding a reference to co-incineration in Annex III(2) was not taken up because
co-incineration is implicitly covered by the present text.

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3. Major innovations introduced by the Council

Definitions: Article 2 on definitions has been streamlined. Some definitions have been deleted, others
have been merged and/or moved to the relevant Annex (Annex II on Remedying of environmental
damage) without substantially changing the Commission proposal. In relation to the definition of
‘environmental damage’, however, the Council elaborated a number of criteria, now in Annex I to
the proposed Directive, to facilitate the assessment of what would constitute a ‘significant’ damage
to protected species and natural habitats.

Exceptions (Article 4): the common position does not exempt damage caused by an emission or
event allowed in applicable law, or in the permit or authorisation issued to the operator or damage
caused by emissions or activities which were not considered harmful according to the state of the
art of scientific and technical knowledge at the time when the emission was released or the activity
took place. However, in such cases, Member States may allow the operator not to bear the costs of
remedial actions taken pursuant to the Directive where he demonstrates that he was not at fault or
negligent (Article 8, paragraph 4).

In Article 4 on exemptions, a new paragraph was added taking into account two international
instruments on liability for maritime and inland navigation, to allow ship owners to limit their
liability under national legislation.

Subsidiary state liability (Articles 5(4) and 6(3)): the obligation for Member States, when the operator
can not be identified, does not comply with its obligations or is not required to bear the costs, to
ensure that the necessary preventive or remedial measures are taken has been modified. In such
cases, according to the common position, the competent authority may decide to take preventive or
remedial actions itself. In addition, Article 6 differentiates between long-term remediation activity
and immediate response. In the event of an incident, to limit or prevent further damage, Article
6(1)(a) foresees the immediate containment and removal of contaminants.

Cost allocation in case of multiple party causation: Article 9 of the common position is simplified and
leaves this subject entirely within the competence of Member States.

Request for action: Article 12 of the common position also covers, with possible adaptations, the
cases of imminent threat of damage.

Temporal application: Article 17 of the common position clarifies these provisions.

Reports and review: a new paragraph has been added to Article 18 of the common position listing the
points to be reviewed (among others) by the Commission on the basis of the experience gained
applying the Directive. Part of Annex VI, on the information to be included in the national reports,
has been made optional for Member States.

Finally, the order of some articles was changed and their content re-organised (in the case of Article
4, with the addition of Annex IV and Annex V), without major modifications of substance. Annex II
(remedying of environmental damage) and Annex III (activities referred to in Article 3 on the scope
of the Directive) are made more operational. The recitals have undergone some additions and
changes, consequent to the new elements of the common position.

IV. CONCLUSION

The Council considers that its common position, which incorporates the amendments mentioned in
III.2.a, takes largely into account the Opinion of the European Parliament in first reading. It represents a
balanced and realistic solution, given the concerns of the public, of the operators and the present
financial security market, relying to a large extent on Member States' competence while fixing some
common objectives and rules to ensure that these can be achieved within a reasonable timeframe.