COMMISSION STAFF WORKING DOCUMENT Executive Summary to the REFIT Evaluation of the Environmental Liability Directive Accompanying the document Report from the Commission to the European Parliament and to the Council Pursuant to Article 18(2) of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage
Date: 2016-04-14
Institutions: Directorate-General for Environment, European Commission
Subjects: EU environmental policy, cost of pollution, environmental liability, environmental monitoring, environmental protection, national implementing measure, polluter pays principle, prevention of pollution

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   EUROPEAN COMMISSION  Brussels, 14.4.2016  SWD(2016) 122 final   COMMISSION STAFF WORKING DOCUMENT Executive Summary to the REFIT Evaluation of the Environmental Liability Directive    Accompanying the document Report from the Commission to the European Parliament and to the Council  Pursuant to Article 18(2) of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage {COM(2016) 204 final} {SWD(2016) 121 final}  
 
 
1.  EXECUTIVE SUMMARY 

The Environmental Liability Directive (ELD) was drafted to apply common, legally binding 
EU standards designed to reduce damage to natural resources (biodiversity, water and land). 
Its  purpose  is  to  prevent  any  imminent  threat  of  environmental  damage  and,  if  damage 
occurs,  to  restore  the  pre-damage  (baseline)  condition.  It  is  based  on  the  ‘polluter  pays’ 
principle, which means that the polluter, and not the general public (taxpayer), must take the 
preventive  or  remedial  action  needed  and  bear  the  costs.  It  establishes  a  system  of  strict 
liability for operators carrying out the dangerous activities listed in Annex III of the ELD and 
it requires Member States to encourage the development of financial security instruments and 
markets for operators carrying out these dangerous activities. 

Nearly 12 years after its adoption, and after several years of implementation by the Member 
States (the last Member States transposed the ELD in 2010), it is time to evaluate whether the 
Directive  is  fit  for  purpose.  This  REFIT  evaluation  ties  in  with  the  Commission  report 
required by the Directive on its application (COM(2016)204). 

The evaluation is based on more than three years of investigation, including several specific 
studies  of  the  ELD,  27  national  reports  on  its  application,  and  numerous  stakeholder  and 
expert meetings and consultations1. The first chapters explain the purpose and scope of the 
evaluation  and  then  provide  general  information  on  the  initiative  (its  objectives,  scope  and 
principles, how it works, the base  line  and intervention logic).  After  explaining  the process 
and methodology of the evaluation follows an analysis based on the national reports of how 
the Member States have transposed and implemented the ELD. 

Answering  a  set  of  questions  relating  to  the  five  principal  evaluation  criteria  of  relevance, 
effectiveness, efficiency, coherence and EU added value, the evaluation provides a picture of 
how  the  Directive  works  and  identifies  what  has  been  achieved  and  where  challenges  and 
gaps need to be addressed. 

The evaluation shows that despite delayed transposition by many Member States and several 
non-compliant provisions found by the Commission in the transposing legislation, national 
laws are now in place. This led to better coherence of national environmental liability laws 
in comparison to the situation before the ELD was transposed (some MS did not have any 
environment liability regime in place). However, the degree of diversity and complexity of 
the  current  situation  cannot  be  described  as  a  level  playing  field.  The  evaluation  also 
indicates that the Directive has improved, to a certain degree:  
 

the  standards  of  prevention  and  restoration  of  environmental  damage,  in  particular  by 
requiring equivalent alternatives if the original natural resources cannot be restored, 
the application of the ‘polluter pays’ principle,  

 
  strict liability across the EU for environmental damage,  
  EU-wide liability for biodiversity damage, and 
  public participation and access to justice for people affected and NGOs. 

1 The Commission decided to carry out an evaluation under its REFIT programme in 2013 well before the guidelines for evaluation were 
adopted in May 2015. As a consequence, this evaluation could not fully anticipate all the methodological and data needs now  enshrined in 
the  guidelines.  Also  the  process is  not  fully  in  line  with  the  newest  standards,  e.g.  only  a  targeted  stakeholder consultation  and  no  wider 
public consultation took place. Despite these issues, the REFIT evaluation guidelines have been used to the widest extent possible in the 
finalisation of the evaluation. 

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At  the  same  time,  implementation  still  varies  significantly  from  one  Member  State  to 
another in terms of the number of ELD cases and the way the Directive is implemented. A 
few Member States appear to make use of the ELD relatively frequently for environmental 
damage incidents, using it as a mainstream enforcement tool in circumstances where EU law 
might in any case require action (e.g. biodiversity damage). Other Member States appear to 
apply  national  legislation  for  environmental  damage  incidents  instead  of  the  ELD,  by 
making  extensive  use  of  their  interpretation  of  the  ‘significance  threshold’.  The  use  of 
complementary and  compensatory remediation  methods could also be more frequent,  even 
in  some  Member  States  that  reported  more  cases.  The  observed  ‘patchwork’  of 
environmental remediation, together with the lack of some key data on implementation and 
on the cost (both administrative and financial security), is a major challenge which needs to 
be addressed in the Action Plan following this evaluation. To better monitor and implement 
the  ELD  and  to  prepare  robust  ground  for  the  next  evaluation,  a  regulatory  monitoring 
framework and other measures need to be considered and developed. 

Resulting  from  the  most  relevant  needs  found  in  this  evaluation,  the  main  points  for  the 
Action Plan are: 

(1)  To  address  the  uneven  interpretation  and  application  of  key  concepts  of  the  ELD  (for 
instance  the  significance  threshold),  to  raise  the  level  of  awareness  and  knowledge  of 
stakeholders  and  practitioners,  and  to  provide  administrative  support  where  resources  are 
scarce: (a) guidance or interpretative notices on key concepts should be drafted; (b) the ELD 
training  programme  should  be  continued  and  widened;  and  (c)  the  setting  up  of  an 
administrative support and assessment facility or ‘clearing house’ should be explored to help 
all kinds of ELD practitioners to provide information and respond to the demand for expert 
advice on risk, damage and remediation assessment. 

(2)  To  help  overcoming  the  lack  of  data  and  information  needed  for  a  broad  range  of 
implementation  and  regulatory  tasks,  the  setup  of  an  ELD  register  will  be  considered  as  a 
starting  point.  The  register  will  satisfy  the  needs  of  insurers,  operators  and  competent 
authorities for better baseline setting, calculation of risks, decisions on remediation etc., as 
well  as  the  Commission’s  need  for  better  data  to  fulfil  its  monitoring  duties  including  the 
next ELD REFIT evaluation. This register will look into data on the application of national 
legislation implementing  the ELD  and other  national regimes  which  are  applied instead of 
the ELD in case of incidents with environmental damage. Such an EU-wide evidence base 
would  better  reflect  the  strengths  and  weaknesses  in  implementation,  the  reasons  for 
divergent  solutions  and  the  links  between  ELD  implementation  and  environmental 
outcomes. By having better information on the ELD implementation, it will be possible to 
document better whether the original ambitions of the European Parliament and the Council, 
when they adopted the Directive, have been met. 

Based on this evaluation, the Commission has set out a number of recommendations and 
actions in the related Commission report. 

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