Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council establishing a framework for the protection of soil and amending Directive 2004/35/EC COM(2006) 232 final — 2006/0086 COD
Date: 2007-04-25
Institutions: European Economic and Social Committee
Subjects: ESC opinion, environmental liability, polluter pays principle, pollution control measures, pollution from agricultural sources, prevention of pollution, soil protection

20.7.2007

EN

Official Journal of the European Union

C 168/29

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the
European Parliament and of the Council establishing a framework for the protection of soil and
amending Directive 2004/35/EC

COM(2006) 232 final — 2006/0086 COD

(2007/C 168/05)

On 10 November 2006 the Council decided to consult the European Economic and Social Committee,
under Article 175 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing
the Committee's work on the subject, adopted its opinion on 21 March 2007. The rapporteur was
Mr Nilsson.

At its 435th plenary session, held on 25 and 26 April 2007 (meeting of 25 April), the European Economic
and Social Committee adopted the following opinion by 118 votes to 2 with 7 abstentions.

1. Gist of the opinion

1.10 Member State requirements under Article 4 must be
reasonably proportionate.

The EESC welcomes the EU-level thematic strategy for
1.1
soil protection and endorses, in principle, the establishment of a
framework directive.

The strategy must focus on areas where the problem is
1.2
the most serious and where the threat to arable land is greatest,
e.g. change of soil use (where arable land is taken over for
building, roads, etc.), polluted industrial areas and sealing of
ground surfaces. The EU strategy must respect the subsidiarity
principle.

1.11
Article 12 must be reworded with regard to the
prospective buyer's obligation to provide a report in certain
cases.

1.12
The penalties provided for under Article 22 must also
be in reasonable proportion to the damage inflicted. The EESC
believes it is unacceptable that the same damage can give rise to
several different penalties.

1.3
The costs of soil degradation must be borne by those
who are responsible for the damage in cases where this is
proportionate, rather than primarily by the land user.

1.13
The requirement for the operator to undertake remedial
measures under Article 23 can only be justified if the operator
has actually caused the damage.

1.4
If the reason for using a framework directive is to ensure
common ground, the Member States must have similar levels of
ambition, in order to avoid any distortion of competition.

Good agricultural and forestry practices maintain and

1.5
improve the soil.

The establishment of an independent committee of
1.14
experts from the private and public sector would facilitate
implementation of the soil strategy.

By definition, when farmland is used for food produc-
land has been taken for cultivation purposes.

1.6
tion, natural
Consequently, some impact is unavoidable.

2. Gist of the Commission proposal

1.7
The EESC condemns the Commission's failure thus far to
present its redrafted proposal for a new revised sludge directive
and calls on the Commission to present it without delay, as it is
one of the mainstays in soil protection for agricultural land and
for ensuring that contamination by dangerous substances does
not increase.

1.8
Restoration of soil under Article 1 (subject-matter and
scope) must be managed with regard to specific situations and
assessed on a case-by-case basis.

1.9
The National sectoral policies identified in Article 3 must
not lead to distortions of competition between the Member
States.

2.1
Soil can be considered a non-renewable resource, yet soil
is rapidly degrading in many places across the EU exacerbated
by human activity, such as industrial activities, tourism, urban
development, transport infrastructure and certain agricultural
and forestry practices.

Soil

2.2
is a resource of common interest to the EU and
failure to protect it at EU level will undermine sustainability and
long term competitiveness in Europe. Different EU policies
already contribute to soil protection but no coherent policy
exists. Only nine Member States have specific legislation on soil
protection, often covering a specific threat,
in particular soil
contamination. Soil degradation has strong impacts on other
areas of common interest to the EU, such as water, human
health, climate change, nature and biodiversity protection, and
food safety.

C 168/30

EN

Official Journal of the European Union

20.7.2007

Against this background, the Commission proposes a
2.3
Soil Strategy for Europe.
It is set out in a communication,
accompanied by a proposal for a framework directive and an
impact assessment. The framework directive sets out common
principles, objectives and actions. It requires Member States to
adopt a systematic approach to identifying and combating soil
degradation,
tackling precautionary measures and integrating
soil protection into other policies. But it allows for flexibility; it
is for the Member States to decide the level of ambition, specific
targets and the measures to reach those. This is because soil
degradation offers a very scattered picture throughout Europe,
where 320 major soil types have been identified.

2.4 Member States are required to identify areas where there
is a risk of erosion, organic matter decline, compaction, salinisa-
tion and landslides. They must set risk reduction targets for
those areas and establish programmes of measures to achieve
them. They will also have to prevent further contamination,
establish an inventory of contaminated sites on their territory
and draw up national remediation strategies. When a site is
being sold, where a potentially contaminating activity has taken
or is taking place, a soil status report has to be provided by the
seller or the buyer to the administration and the other party in
the transaction. Finally, the Member States are required to limit
or mitigate the effects of sealing, for instance by rehabilitating
brownfield sites.

3. General comments

3.1
The EESC welcomes the Commission Communication on
a Thematic Strategy for soil protection, which is the follow-up
to the previous 2002 (1) communication, and the proposal to
establish a framework directive on soil protection. As early as
the year 2000, an EESC own-initiative opinion on sewage
sludge in agriculture (2) called on the Commission to introduce
minimum requirements for soil protection.

3.2
the
In taking forward the soil protection strategy,
Commission has held a comprehensive, open consultation
process involving many different parties over almost four years,
and which the EESC was also able to follow. The comments
contained in this opinion refer
to the
proposed framework directive, on which the EESC has been
consulted, but also, where applicable,
to the Commission
communication.

first and foremost

Soil and soil functions provide a precious resource for
3.3
nature, and human and ecosystem survival. Human activity
affects soil
functions and soil use in various ways. An EU
strategy must focus on areas where the threat to arable land is
greatest, e.g. change of soil use, polluted industrial areas, sealing
of ground surfaces and erosion.

(1) COM(2002) 179 final.
(2) CES 1199/2000, OJ C 14 of 16.1.2001, pp. 141-150.

3.4
Soil and soil functions are connected with several other
policy areas which are variously regulated by both EU- and
national legislation, e.g. the Water Directive, the Nitrates Direc-
tive, chemicals legislation, etc. Some countries already have
various arrangements for regulating, monitoring and identifying
soil
consequently the Commission
proposal must not lead to a worsening of the situation but
rather provide sufficient flexibility for these countries.

and soil degradation;

3.5
The Commission points out that the cost of soil degrada-
tion is not borne by land users but by society or other players.
The EESC would point out that those who cause damage must
be liable for it; generally speaking, it is not always land users
who are at fault. In many cases, land users are subject to the
effects of airborne pollution, pollution from other areas via
industrial emissions,
flooding and other polluting emissions;
here, land users suffer adverse effects for which they are clearly
not responsible.

3.6
The EESC notes, however, that the Commission consis-
tently emphasises that protection measures must be imple-
mented at source; this is clearly the correct approach, and will
lead to a proper balance of responsibilities. It also means that
legislative areas other than soil-specific areas are affected.

3.7
The EESC endorses the adoption of a specific strategy for
soil protection, and the fact that this is to be delivered through
a framework directive. This provides the basis for equal protec-
tion with common rules for problems which, by their very
nature, can extend across borders. If, however, soil protection is
to be genuinely enhanced, this policy area must also be inte-
grated into other legislation.

3.8
The Commission also states that costs and benefits will
vary depending on ambition levels and the extent to which
is harnessed in, for example, the Common
existing potential
Agricultural Policy's environmental provisions. The EESC would
stress that the problem of a uniform, safe legal interpretation
and application of the Member States' cross-compliance require-
ments, as introduced into the Common Agricultural Policy,
remains unresolved. If the aim of the framework directive is to
provide a common basis for soil protection and to prevent
operators from having to bear the brunt of greatly varying
economic obligations, then the ambition levels must also be
similar in order to prevent any distortion of competition.

As a first example,

the Commission points out

that
3.9
factors such as unsuitable agricultural and forestry methods can
contribute to soil degradation. On the contrary, when good
farming practice is applied in agriculture and forestry, it helps to
maintain or improve the soil. The threat to farmland comes
from change of use, industrial expansion, transport installations,
atmospheric pollution, ground level ozone and other pollutants.
Although spatial planning (urban planning) is a Member State
rather than an EU competence, this area must also be targeted.

20.7.2007

EN

Official Journal of the European Union

C 168/31

3.10 Market forces and the present agricultural policy have
also contributed to the increase in structural development and
specialisation, and to separating, to a large extent, crop produc-
tion from animal husbandry, which can lead to a reduction in
organic waste in the soil. The new common agricultural policy
with its decoupled payments actually makes this more likely.

delayed. It is therefore essential to publish the amended directive
on the use of sewage sludge simultaneously with the adoption
of the soil protection strategy.

3.11
The Commission considers that agriculture can have a
positive effect on soil condition if the soil is managed ecologi-
cally, extensively and using an integrated approach. This is
somewhat simplistic. Everything depends on the expertise and
technology used in soil management. By definition, when farm-
land is used for food production, natural land has been taken
for cultivation purposes. Consequently, some impact is unavoid-
able and must therefore be accepted if foodstuffs are to be
produced. The impact on farmland depends on annual seasonal
variation, climate, etc., but this does not mean that industrial
substances,
etc., must be
accepted. Normal agricultural activity, using the expertise we
have today, can in fact help to maintain and enhance soil
quality. Few entrepreneurs take such a long-term approach to
both investment and soil management as farmers and foresters.
This high level of awareness of soil protection among farmers
should be supported and complemented by advisory systems as
well as voluntary measures and incentives.

erosion, humus

concentration,

states

The Commission further

3.12
that environmental
protection is enhanced through the environmental liability direc-
tive (3). This is a fair comment, but at the same time it should
be pointed out that the fact that the same damage can give rise
to up to three different penalties (withdrawal of aid, liability and
administrative fees) as is currently the case, cannot be compa-
tible with accepted legal opinion.

The current sewage sludge directive (4) still permits
4.1.1
high concentrations of heavy metals and other pollutants in
sewage sludge that can be spread on farmland. The EESC would
refer to the own-initiative opinion it adopted in the year 2000
on the revision of Council Directive 86/278/EEC on the use of
sewage sludge in agriculture, which called for tougher require-
ments on permissible concentrations of heavy metals. Also, far
too little is known about the content of chemical pollutants in
general, how they interact and how they affect soil and food
safety when spread on cultivated land.

4.1.2
The EESC takes this very seriously and would refer to a
study presented by two researchers in The Lancet in November
2006. Although this is a one-off study the results show that
well-known contaminants can have a hitherto unnoticed effect
on brain development
in foetuses and small children. The
researchers believe that this could be linked to serious condi-
tions such as autism, ADHD and retarded development. Many
of these chemical also occur in household products. In various
ways they end up in sewerage systems and we know far too
little about how they affect the soil when sludge has been used
as a fertilizer.

3.13
comprehensive EU strategy for soil protection.

The EESC agrees that sustainable use of soil requires a

3.14
Implementation could be strengthened by creating an
independent group of soil protection experts, with representa-
tives from the public and private sector.

4. Specific comments

4.1
The EESC condemns the Commission's failure to present
the proposal to amend the directive on the use of sewage sludge
in agriculture and permissible concentrations of heavy metals,
which the Commission has been preparing for several years. In
its communication on soil protection, the Commission states its
intention to present such a proposal
in 2007. The 2002
communication on a thematic strategy for soil protection stated
that the review would be included in the soil strategy. This
means that one of the most important measures for enhancing
soil protection and safe food production has been considerably

that

The EESC welcomes the fact

from an environmental perspective,

4.1.3
the Commission
seems to have abandoned its previous position that the best use
of sewage sludge,
is to
spread it on arable land. The wording of the waste strategy
communication (5) would seem to indicate this. The Commis-
sion also confirms here that it intends to put forward proposals
for a revised sewage sludge directive, following on from the soil
protection strategy. The EESC considers, however, that it should
not have waited for this; it should have presented much earlier a
radically revised directive on permissible concentrations of
heavy metals and other pollutants in sewage sludge, particularly
since the proposed directive states that this is needed in order to
limit the introduction of dangerous substances into the soil.

4.1.4
Use of sewage sludge in agriculture and its concentra-
tions of contaminants is one of the most important issues in
soil protection and food safety. It also begs the question of
whether soil users or sewage sludge producers, i.e. towns and
municipalities, should be liable for any soil degradation. Liability
and damages issues must be clarified in a revised sewage sludge
directive.

(3) Directive 2004/35/EC.

(4) 86/278/EEC.
(5) COM(2005) 666 final.

C 168/32

EN

Official Journal of the European Union

20.7.2007

4.1.5
New, safer chemicals legislation is also imperative for
soil protection in general, and in particular to how society
disposes of sewage sludge by spreading it on soil. It is essential
to replace dangerous chemicals with less dangerous ones in
order to achieve the required level of soil protection.

climate, etc. Member State requirements must be reasonably
proportionate to this. Similarly,
there must be reasonable
compliance between Member State measures. This is also consis-
tent with the provisions of Article 9 on proportionate measures
to preserve soil functions.

4.1.6
The EESC calls on the Commission to present forth-
with the proposal for a revised directive and also to provide risk
analyses for more substances than currently covered by the
directive. This should be one of the most important factors in
soil protection for arable land, to avoid any increase in contami-
nation and to ensure satisfactory food safety levels.

4.5
Article 12 provides that in certain cases a landowner or
prospective buyer must provide a soil status report. The EESC
believes it would be wrong to require a prospective buyer to
provide the report. Flexibility is needed to allow for differences
in Member State legislation. Consequently the article must be
reworded.

Article 1 of the soil protection directive provides that
4.2
degraded soil must be restored to a level of functionality consis-
tent at least with the current and approved future use. The EESC
endorses the principle but would question whether the frame-
work directive really needs to specify ‘at least’. The specific situa-
tion should be taken into account and decisions made on a
case-by-case basis.

the
Article 17 refers to the voluntary platform that
4.6
Commission intends to establish. The Commission must actively
ensure that this really does lead to an exchange of similar
methods so that the approach will be uniform and a level
playing field ensured. Since information is to be exchanged on a
voluntary basis, active participation will also be required from
the Commission.

4.3
The EESC believes that the current wording of Article 3
could leave scope for the Member States to formulate a national
sectoral policy that distorts competition. It is important that the
article be confined to analysis, but any measures must comply
with the requirements of a properly functioning internal market,
common rules and fair competition.

4.7
Article 22 states that the Member States shall lay down
the rules on penalties. The EESC considers that it is important,
for the sake of legal certainty, that the penalties should be in
reasonable proportion to the damage inflicted. It is also unac-
ceptable that the same damage can give rise to several different
penalties.

The EESC also considers that Article 4 leaves scope for
4.4
almost unbridled intervention. With regard to farmland, the
EESC has pointed out above that cultivation has a de facto
impact on the soil, one which varies with factors that the land
seasonal variation,
user cannot

such as annual

influence,

an amendment

Article 23 proposes

to Directive
4.8
2004/35/EC to enable the authorities to require the operator to
undertake remedial measures. The EESC believes this can only
be valid if the operator has actually caused the damage. This
does not emerge clearly from the text.

Brussels, 25 April 2007.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

20.7.2007

EN

Official Journal of the European Union

C 168/33

APPENDIX

to the Committee Opinion

The following amendment was rejected by the assembly, but was supported by more than a quarter of the votes cast:

Point 1.1

Amend as follows:

‘The EESC welcomes the EU-level thematic strategy for soil protection and endorses the aim behind the Commission proposal,
namely the protection and sustainable use of soil. The EESC wishes that the proposed framework directive takes thoroughly into
account the principles of subsidiarity and proportionality, in principle, the establishment of a framework directive …’

Voting

For: 47

Against: 54

Abstentions: 13

The following Section Opinion text was rejected in favour of an amendment adopted by the assembly, but was supported
by more than a quarter of the votes cast:

Point 1.15:

‘The EESC calls on national and regional legislators and the Commission to systematically evaluate existing legislation of rele-
vance to soil protection.’

Outcome:

74 votes for deleting the phrase, 33 against and 15 abstentions.