Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a Directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2004-01-26
Institutions: European Commission
Subjects: environmental liability, polluter pays principle

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 26.1.2004 
COM(2004) 55 final 

2002/0021 (COD) 

OPINION OF THE COMMISSION 

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, 
on the European Parliament's amendments 
to the Council's common position regarding the  
proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

on environmental liability with regard to the prevention and remedying of 
environmental damage 

AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the 
EC Treaty 

EN 

   EN 

 
 
 
  
 
 
  
2002/0021 (COD) 

OPINION OF THE COMMISSION 

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, 
on the European Parliament's amendments 
to the Council's common position regarding the  
proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

on environmental liability with regard to the prevention and remedying of 
environmental damage 

1. 

BACKGROUND 

The Proposal COM(2002)17 final1 was transmitted to the European Parliament and 
the  Council  on  19  February  2002  in  accordance  with  the  co-decision  procedure 
pursuant to Article 175(1) of the EC Treaty. 

The Committee of Regions decided not to give an opinion. 

The Economic and Social Committee gave its opinion on 18 July 20022. 

The European Parliament gave its opinion at the first reading in session on 14 May 
2003. 

The  Council  reached  political  agreement  on  a  common  position  on  13  June  2003. 
The Council adopted the common position formally on 18 September 2003. 

On  17  December  2003,  the  European  Parliament  adopted  four  amendments  to  the 
Council’s common position at second reading. 

This  opinion  presents  the  Commission’s  position  on  the  European  Parliament’s 
amendments pursuant to Article 251(2)(c) of the EC Treaty. 

2. 

PURPOSE OF THE COMMISSION PROPOSAL 

The proposal aims to establish a framework whereby environmental damage, which 
comprises  “damage  to  protected  species  and  natural  habitats”,  “water  damage”  and 
“land damage”, would be prevented or remedied through a system of environmental 
liability. Subject to certain exceptions, the operator that has caused the environmental 
damage or an imminent threat of such damage occurring is required, in accordance 
with 
the 
implementation of the necessary preventive or remedial measures. 

the  « polluter-pays »  principle, 

the  cost  associated  with 

to  bear 

1 
2 

OJ C 151 E, 25.06.2002, p. 132. 
OJ C 241, 07.10.2002, p. 162. 

2 

 
 
  
 
 
 
                                                 
3. 

COMMISSION OPINION ON THE PARLIAMENT’S AMENDMENTS 

3.1. 

General comments 

At its plenary session of 17 December 2003, the European Parliament adopted four 
amendments: amendments 12, 22, 27 and 46.  

The Commission can accept amendment 27 in full and amendment 12 in principle. 
The remaining two amendments (amendments 22 and 46) cannot be accepted. 

3.2. 

Detailed comments 

3.2.1.  Amendment fully accepted 

Amendment 27 

The Commission accepts amendment 27, which specifies further one of the items to 
be  addressed  by  the  Commission  in  its  report  on  the  functioning  of  the  Directive. 
This  specification  concerns  the  relationship  between  shipowners'  liability  and  oil 
receivers' contributions in the context of the review of the application of Article 4(2) 
and  (4)  in  relation  to  the  exclusion  of  pollution,  covered  by  the  international 
instruments listed in Annex IV, from the scope of the Directive. 

3.2.2.  Amendment accepted in principle 

Amendment 12 

Amendment  12  specifies  that  competent  authorities  should  only  take  remedial 
actions  “as  a  means  of  last  resort”.  The  Commission  accepts  this  amendment  in 
principle subject to the following rearrangement of Article 6: the words “as a means 
of last resort” should not be placed at the end of Article 6(2)(e) but rather at the end 
of Article 6(3).  

3.2.3.  Amendments not accepted 

Amendment 46 

Amendment 46 deletes the provision [Article 4(3)] allowing operators to limit their 
liability  in  accordance  with  national  legislation  implementing  the  Convention  on 
Limitation  of  Liability  for  Maritime  Claims  (LLMC),  1976,  or  the  Strasbourg 
Convention  on  Limitation  of  Liability  in  Inland  Navigation  (CLNI),  1988.  The 
Commission  cannot  accept  this  amendment,  as  it  would  significantly  disrupt  the 
overall  balance  of  the  common  position.3  It  is  to  be  noted,  in  that  respect  that,  the 
limitation of liability contemplated in Article 4(3) would not apply to environmental 
damage  occurring  on  the  territory  of  Member  States  which  have  not  ratified  and 
implemented  the  two  conventions  at  issue.  In  any  case,  the  Commission  may 
consider whether the application of Article 4(3) had led to undesirable results in the 
context of the report provided for in Article 18. 

3 

The Commission stated its full support to the common position in its Communication of 19 September 
2003 to the European Parliament [SEC(2003) 1027 final]. 

3 

 
 
  
 
 
                                                 
Amendment 22 

Amendment  22  requires  the  Commission  to  present  proposals  for  a  harmonised 
compulsory  financial  guarantee  if  no  appropriate  instruments  or  markets  for 
insurance  or  other  forms  of  financial  security  have  been  established.  Mandatory 
financial security would be introduced gradually (first for water and soil damage and 
after a two-year assessment period, for the remediation of damage caused to species 
and natural habitats). A ceiling may be established for the financial guarantee by case 
and  by  location  according  to  some  criteria  provide  for  in  the  amendment.  Finally, 
Member  States  may  decide  not  to  apply  this  provision  to  low  risk  activities.  The 
Commission  cannot  accept  this  amendment,  as  it  affects  its  right  of  initiative. 
Moreover,  it  would  be  particularly  difficult  to  adopt  rules  mandating  financial 
security  when  the  economic  operators  most  knowledgeable  and  economically 
interested  in  developing  such  products  have  been  unable  to  do  so.  With  respect  to 
paragraphs 2a and 2b of the amendment, the Commission does not see any current 
need  for  such  additional  provisions,  which,  at  this  stage  and  pending  new 
Community  legislation  on  financial  security,  have  only  the  effect  of  enabling 
Member  States  to  adopt  measures  in  the  field  of  financial  security.  It  must  be 
remembered, however, that the Member States may adopt such rules anyway, on the 
basis of their general power to legislate on their territory, since no provision of the 
Directive prevents them of doing so.  

4. 

CONCLUSION 

Pursuant  to  Article  250(2)  of  the  EC  Treaty,  the  Commission  is  amending  its 
proposal as indicated above. 

4