CELEX: 51989PC0282
Language: en
Date: 1989-09-15
Title: PROPOSAL FOR A COUNCIL DIRECTIVE ON CIVIL LIABILITY FOR DAMAGE CAUSED BY WASTE

COMMISSION OF THE EUROPEAN COMMUNITIES
                                       C0MC89) 282 final - SYN 217
                                       Brussels, 15 September 1989
                       Proposal for a
                     COUNCIL DIRECTIVE
           ON CIVIL LIABILITY FOR DAMAGE CAUSED
                          BY WASTE
               (presented by the Commission)
 ---pagebreak---                                 - 1 -                       &*i*f*
                       EXPLANATORY MEMORANDUM
1. Introduction
   Article 11(3) of Council Directive 84/631/EEC of 6 December 1984
   on the supervision and control within the Community of the
   transfrontier shipment of hazardous waste1 stipulates the
   fol lowing:
   "The Council shall, acting In accordance with the procedure
   referred to In Article 100 of the Treaty, determine not later
   than 30 September 1988 the conditions for Implementing the civil
   liability of the producer In the case of damage or that of any
   other person who may be accountable for the same damage and shall
   also determine a system of Insurance."
   As a reaction to the pollution caused by the accident at the
   Sandoz plant, the Council asked the Commission In its resolution
   of 24 November 1986 to examine the problems posed by damage to
   the environment and to review existing Community preventive and
   remedial measures.
   Consequently, the Commission Is currently preparing a
   communication to the Council and Parliament which examines the
   problems related to the Introduction of a system of civil
    liability for damage to the environment.
2. Objectives of the Directive
   A prime objective of the Directive is to apply the "polluter
   pays" principle on terms conducive to the goal of completing the
    Internal market.
   The aim of establishing a uniform system of liability within the
   Community is to ensure, firstly, that victims of damage caused by
   waste receive fair compensation and, secondly, that industry's
   waste-related costs resulting from environmental damage are
   reflected In the price of the product or service giving rise to
   the waste.
   The occurrence of differences among national laws regarding the
   designation of the person liable (producer, holder) and the
   absence of a concerted development of notions like the damage and
   injury to the environment covered by liability, the causal
   relationship, the I Imitations of liability, etc, would lead to
   unequal conditions for competition among Member States and thus
   to artificial currents of investments and of wastes to those
   countries where conditions are least stringent for the economic
   operators and most disadvantageous to the victim. This Is
   contrary to the philosophy of the Single European Act, that
   foresees a high level of protect Ion.The Directive also has a
   preventive Intention. The reasoning Is that, If the polluter knew
   with certlanty that he would have to pay the cost, he would be en-
   couraged to take action to minimize risks as soon as possible.
1  0J - No L 326, 13.12.1984, p. 31
 ---pagebreak---                                   - 2 -
 3.  Scope
     The Directive covers all types of waste generated by an economic
     activity, with the exception of nuclear waste or waste and
     pollution caused by oil, where these are covered by the Brussels
     Conventions In force within Member States.
     Nuclear waste Is excluded from the field of application of the
     directive, being covered by international conventions and notably
     the convention on civil liability In the field of nuclear energy
     (Paris, 29 July 1960) and the complementary convention to the
     latter (Brussels, 31 January 1963) together with the protocols
     relating to these Conventions.
    The current status of the application of these conventions
    corresponds to the objectives sought for other wastes by the
    present directive.
    Community waste management policy is designed to minimize waste
    arisings and to monitor the effects of waste throughout the whole
    cycle from production to disposal. This item has high priority in
     the Community's environment policy, to the extent that It will
    make it possible to determine the civil liability applicable
    during the cycle of production, lifetime and disposal of waste.
4.  No-fault or strict liability
    As this principle Implies automatic liability, It will ensure
    that victims receive compensation, the environment will recover
    and economic agents are held liable In keeping with the
    objectives of the Directive.
    The concept of no-fault or strict liability for environmental
    risks Is everywhere gaining ground. In the related (and
    comparable) field of defective products, Council Directive
    85/374/EEC of 25 July 1985 2 adopts this principle, and It can
    also be found In a growing number of International conventions,
    e.g. on nuclear energy and oil pollution of the seas. The draft
    convention prepared by Un(droit on compensation for damage caused
    by the carriage of dangerous goods by rail, road or inland
    waterway, currently being negotiated within the United Nations
    Economic Commission for Europe, Is also based on the same
    principle.
     In the same spirit, the final communiqué of the 8th Conference of
    Ministers on the Protection of the Rhine agalnet Pollution in
    Strasbourg on 1 October 1987, which was also attended by the
    Commission, calls for harmonization of legislation on civil
     liability for damage caused by dangerous substances on the basis
    of the principle of strict liability.
    The same trend Is becoming Increasingly established In national
    legislation. Germany and Belgium have already Introduced the
    principle of no-fault I lability.In France, It Is well established
    by case law. Case law In the Netherlands Is moving in the same
    direction, and a law Is being drafted to Introduce the principle
    In the new Civil Code. In Spain, strict liability has been
    introduced in the waste management sector.
2   OJ No L 210, 7.8.1985, p. 29.
 ---pagebreak---                                  - 3 -
5. The principle of liability
   The Directive attributes liability to the producer of the waste
   that causes damage or Injury to the environment.
   The polluter-pays Implies that the costs of waste, regarded as a
   social problem, should be reflected In the price of the products
   or service considered to have given rise to the waste.
   This represents a departure from the principle which enjoys some
   support to the effect that liability for damage lies with the
   carrrler. While this standpoint has Its merits In the field
   of carriage of dangerous goods, It Is unsuitable for application
   to waste, which Is of a different character.
   Because of the generally doubtful value of waste, Its producers
   are keen to get rid of it . There Is a temptation throughout the
   whole chain of economic operators Involved in a commercial
   operation relating to waste, to deal with the waste illegally
   rather than hand it over to an authorized disposal undertaking.
   Besides, the waete producer possesses the main key for taking the
   measures needed to avoid risks to man and the environment: above
   all others, he knows about the nature, the composition and the
   characteristics of the waste.
   For this reason a producer of waste must retain liability until
   disposal Is eneured under the prescribed conditions.
   There le, of course, nothing to stop the producer making a
   contract with the carrier or any other operator to the effect
   that they have llabrility. towards him If they are at fault in
   causing the damage or injury to the environment for which
   compensation Is due.
   However, the holder will always have to be considered liable if
   he Is unable to name the producer.
6. Damage and other Injuries covered by the Directive
   The liability system Introduced covers :
        damage to Individuals (physical injury, death);
        damage to property (deterioration, destruction);
         Injury to the environment. This must be put In a new category
        separate from the proceeding categories.
   Environmental Injury concerns society rather than an Individual;
    It Is sometimes difficult to quantify, and it cannot be excluded
   that restoring the environment to Its state prior to the damage
   may Involve costs out of all proportion to the desired resuit.lt
    is for this reason that Article 4 of the proposed Directive
   limits the principle of liability.
 ---pagebreak---                                  - 4 -
     In the first place, only Important and persistent Interferences
    are aimed at. These clarifications will make It possible for the
    national Judge to leave aside negligible and temporary
     Interferences.
     In the second place, the Interferences will have to be caused by
    a modification of the conditions of water, soil or air. As a
    matter of fact, this Includes Interferences In flora and fauna If
    caused by a modification of such conditions. Finally, the payment
    of "punitive damages" Is not foreseen, but merely restorative
    measures or reimbursement of measures reasonably taken.
7.  Parties entitled to Institute proceedings
     In the first Instance, the right to institute liability
    proceedings against the person causing the damage lies with the
    victim or his helre.
    Concerning Injuries to the environment, given the fact that those
    concern society, this right Is given to the public authorities.
    This right may also be granted to spec la I-Interest groups or
   established, recognized associations whose corporate goal is to
    protect the environment or public health. For such groups, the
    Directive introduces a system that takes account of the law
    applicable In the Member States, some of which grant a direct
    right to proceed to such associations (Netherlands, Luxemburg)
   or, ae in the case of France and Italy, permit them under certain
   conditions to institute civil proceed Inge Joined to a criminal
   action or, finally, who remain virtually closed to such
    Initiatives.
   The Directive is not designed to harmonize practices in this
    field. The Community hae chosen an Intermediate solution which
   consists In neither opposing current developments, nor
   precipitating potential developments. The same reasoning has been
   applied to the question of public bodies' right to sue.
8. Limitation of liability
   a.    Time limits
   The proposal provides for a time limit of three years beginning
   with the day on which the plaintiff became aware, or should have
   become aware, of the damage or Injury to the environment and the
    identity of the producer, following the pattern set In Directive
   85/374/EEC. Thus a degree of vigilance Is required of the
   plaintiff.
    In addition, the right to compensation exprles 30 years after the
   event which caused the damage or Injury to the environment. It
   appears Justified to place a time limit on the possibility of
   initiating a liability action. The 30-year limit seems to be a
   good compromise In view of the very slow build-up, for example,
   of contamination In soils.
 ---pagebreak---                                 - 5 -
   b.  Financial limits
   From the point of view of the victims or the environment
   affected, financial ceilings on civil liability are not Just if led,
   except In the circumstances specified in Article 4; furthermore,
   such ceilings would be contrary to the principles laid down in
   Article 130r(2) of the Treaty that the polluter should pay and
   that preventive action should be taken. Consequently, the
   Commission Is making no proposals In this respect.
   c) Limits to liability
       (1) Force majeure; This may exonerate the producer, provided
       he can prove it.
       (2) Contrlbutory neg11gence:
        If the damage was caused partly by the waste and partly by a
       fault on the part of the victim, the circumstances of the
       case in point should decide whether the waste producer's
        liability should be reduced - and, If so, by how much - or
       entirely excluded. This fits in with the solution adopted In
       Article 8(2) of Directive 85/374/EEC.
   (3) Some or all of the damage or Injury to the environment was
       caused by a third party
       Article 8(1) of Directive 85/374/EEC states that the
        liability of the producer shall not be reduced when the
       damage or Injury to the environment is caused both by a
       defect In the product and by the act or omission of a third
       party.
       The reason for this approach is that the producer can always
       take action against third parties. A similar rationale should
       apply to liability for damage and Injury to the environment
       caused by wastes. The proposal is, therefore, to follow the
       philosophy behind Article 8 of Directive 85/374/EEC.
9. insurance
   Although Directive 86/631/EEC provides for the setting up of a
   system of Insurance to cover damage caused by waste, the
   Commission believes It would be wise to proceed cautiously on
   this subject.
   For one thing, the insurance companies are currently against even
   limited mandatory Insurance cover, as the market for
   environmental Insurance is currently expanding rapidly. A minimum
   ceiling (which, politically, could not be less than the ECU 70
   million specified by Directive 85/374/EEC) might distort the
   market. Secondly, the parties liable may prefer other means of
   equal effectiveness, e.g. deposit, bill of exchange, etc., as
   accepted by United States legislation In this field.
   In these circumstances, It appears preferable not to legislate on
   this aspect for the time being.
 ---pagebreak---                                  - 6-
10. Non-recoverable damage and Injury to the environment
    There Is a need for a Community policy to deal with cases where
     the party responsible cannot be Identified or proves Incapable
    ofcompensating the victim or repairing the Injury to the
    envIronment.
     If Member States make different choices regarding apportionment
    of costs (to waste producers? to the victim? to society?),
    payment rules and management of funds, there is a risk of
    unwarranted distortions. From the point of view of environmental
    policy, these choices must be firmly based on the principles laid
    down In Article 130r of the Treaty. From the victim's point of
    view, It would be unfair if similar cases (or even the same case)
    where a pollution incident affects several Member States) were
    dealt with differently.
    Although some Member States are already addressing themselves to
    the question of non-recoverable damage and Injury to the
    environment, the Commission will need more time to prepare
    proposals, not only because of the extreme complexity of the
    subject but also because It would be illogical to limit the scope
    of a Community Instrument to damage and Injury to the environment
    caused by waste.
    For these reasons, It is proposed that the examination of the
     Issue should be continued, and the Commission be instructed to
    draft rules.
11. Legal basis
    Article 11(3) of Directive 84/631/EEC specifies the use of
    Article 100 as a legal basis for the Directive on civil liability
    for waste.
    The current differences In national provisions on the civil
     liability of the producer for damage and injury to the
    environment caused by waste are liable to distort competition,
    affect the free movement of goods In the Internal market and give
    rise to dlfferrences In the level of protection of health,
    property and the environment. These differences therefore have a
    direct effect on the establishment or functioning of the Internal
    market.
    Article 11(3) of Directive 84/631/EEC spécifiée Article 100 as a
    legal basis for approximating provisions on civil liability for
    damage caused by waste.
    Since the entry Into force of the Single Act, Article 100a has
    replaced Article 100 as the appropriate basis for harmonizing
    national provisions that have an effect on the internal market.
    It Is therefore proposed that Article 100a be taken as the legal
    basis.
 ---pagebreak---                                  - 7 -
12. The Articles
    Article 1
    This Article determines the scope of the Directive (see also
    point 3 ) .
     it Is proposed to exclude from the scope of the Directive civil
     liability regulated by existing International conventions - to
    the extent that they are applied by the Member States - and
    clvi11iablIity for nuclear waste other than that covered by
    Community legislation on waste.
    Article 2
    The definition of "producer" is that used in Directive
    84/631/EEC; the definition of "waste" refers to Directive
    75/442/EEC. it should be noted that the Commission has prepared
    and sent to the Council an amendment to these Directives,
    providing among other things for a new definition of the concept
    of "waste".
    The following are also considered to be producers of waste;
         the Importer into the Community of waste from non-Community
         countries;
         the holder of waste, where the waste Is In transit within
         Community territory, or the Identity of the actual producer
         Is unknown;
         the disposal agent, if the waste has been lawfully entrusted
         to his cars.
    The definitions of "damage" and "Injury to the environment" are
    dealt with In point 6.
    Article 3
    This Article defines the principles of strict liability and Its
    assignment to the producer (see also points 4 and 5 ) .
    Article 4
    This Article specifies what actions are admissible and requires
    proof of a causal link. While the Commission has chosen not to
    shift the burden of proof entirely, It has Improved the position
    of the victim, who frequently does not have the means of knowing
    what certain "professional" activities entail.
    Article 5
    This Article, like Article 5 of Directive 85/374/EEC, establishes
    Joint and several liability In the event that several producers
    are Imp Iicated.
    Article 6(1)
    This specifies that the producer is not liable when the damage or
    Injury to the environment Is due to force majeure.
 ---pagebreak---                              - 8 -
Article 6(2)
Some Member States consider that the holding of an official
authorization cannot be relied on to limit or exclude civil
 liability for damage and Injury to the environment. This is the
case for France and the Netherlands. The Federal Republic of
Germany has for some time now refrained from granting
authorizations which limit the claims of third parties.
 In view of the continuing divergence of opinion, the Commission
has preferred to regulate this issue explicitly.
Article 7
See point 8(c)(2) and (3) of the explanatory memorandum.
Article 8
Civil liability cannot be considered optional or negotiable.
Contractual arrangements derogating from the provisions of this
Directive will therefore not be permitted. See also Article 12 of
Directive 85/374/EEC.
Article 9 and 10
See above, point 8(a).
Article 11
See above, point 10.
Article 12
For the purpose of establishing a system of no-fault liability,
account must be taken of various agreements in force or In the
course of negotiation In the transport sector.
Ae already Indicated In point 4 above, liability In respect of
the carriage of dangerous goods Is to lie with the carrier.
Since the overriding aim Is to protect the Injured party, the
proposed Directive must avoid restricting his or her possible
recourse under other Instruments.
Some International agreements provide for limitation of
liability. Thle right must be respected by the Directive.
Article 13
This Article bars retroactive application of the Directive.
 ---pagebreak---                                       -3-
                                    Proposal for a
                                  COUNCIL DIRECTIVE
                       ON CIVIL LIABILITY FOR DAMAGE CAUSED
                                        BY WASTE
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 100a thereof,
Having regard to the proposal from ths Commission*1),
In cooperation with the European Parliament*2),
Having regard to the opinion of the Economic and Social Committee*3)
Whereas Article 11(3) of Directive 84/631/EEC<4), as last amended by Directive 86/279/EEC , provides
on the basis of Article 100 of the Treaty for action by the Community to
determine the conditions for Implementing the civil I lability of the
producer In the case of damage caused by waste, or that of any other
person who may be accountable for the said damage, and to determine a
system of Insurance;
Whereas the Fourth Environment Action Programme of the European
Communities of 1987*6) provides In point 5.3.6 that work on the
question of civil liability and Insurance in relation to the
transfrontier movement of waste will be completed and proposals will
be made; whereas it also providee in point 2.5.5 that the Commission
will "consider the scope for the better definition of responsibility
In the environmental field";
Whereas disparities among laws of the Member States concerning the
liability for damage and Injury to the environment caused by waste
could lead to artificial patterns of Investment and                 waste; whereas
such a situation would distort competition, affect the free movement
of goods within the Internal market and entail differences In the
level of protection of health, property and the environment; whereas an
approximation of the laws of the Member States on this subject Is
therefore needed;
(D
(2)
(3)
(4) OJ No L 326, 13.12.1984, p.31.
(5) OJ No L 181, 4.7.1986, p.13.
 (6) OJ No C 328, 7.12.1987, p.6.
 ---pagebreak---                                  -10-
Whereas, since the entry Into force of the Single European Act, Article 100a
has replaced Article 100 as the appropriate basis In the Treaty for
approximating national provisions that affect the internal market;
Whereas such approximation must be based on a high level of
protection both with regard to the damage and injury to the
environment which may be repaired, and the conditions that must be
fulfilled in order to Initiate proceedings;
Whereas Article 11(1) of Directive 84/631/EEC requires the producer
of waste to take all necessary steps ' to d i s p o s e  of the waste,
or arrange for Its disposal, so as to protect the quality of the
envIronment;
Whereas Community action In the field of waste management seeks to
minimize the production and monitor the effects of waste, throughout
the whole cycle from production to disposal; whereas it concerns all
types of waste;
Whereas therefore the Community system of civil liability in this
field should not be limited to damage and Injury to the environment
that occurs during transfrontier movements of hazardous waste;
Whereas this system presupposes the notion of professional risk;
Whereas the principles established In 130r(2) of the Treaty that the
polluter should pay and that preventive action should be taken cannot
be effectively Implemented in the waste management sector unless the
cost of the damage or Injury to the environment caused by the waste
 is reflected In the cost of the goods or services that give rise to
the waste; whereas, In view of the risk Inherent in the very
existence of waste, the strict lalblllty of the producer constitutes
the beet solution' to the problem;
Whereae, however, if the waste has been lawfully transferred to an
authorized disposal installation, establishment or undertaking
pursuant to Article 9 of Council Directive 78/319/EEC* 7 ), liability
must be transferred to the latter;
Whereas, In order to safeguard the Injured party's rights, the holder
of waste must be able to identify the producer, on pain of himself
being considered the producer;
Whereas effective protection of the Injured party requires that he
should be able to claim full redress from each of the parties
responsible for the damage or Injury to the environment, Irrespective
of the establishment of the relative liability of the part lee;
Whereas the protection of persons and the environment requires that
the producer's liability should not be reduced by the Involvement of
other persons having contributed to causing the damage or Injury to
the environment; whereas, however, the contributory negligence of the
Injured party may be taken into account to .assign, reduce or disallow such
liability;
(?) OJ No L 84, 31.3.1978, p.43.
 ---pagebreak---                                  -ft -
Whereas the protection of persons and the environment requires
compensation for death and personal injury; whereas such compensation
should be extended to damage to property and Injury to the
environment; whereas this Directive does not prejudice compensation
for pain and suffering and other non-material damage payable, where
appropriate, under the law applicable to the case;
Whereas a uniform period of limitation for Instituting compensation
proceedings Is in the Intereets both of the injured party and of the
producer ;
Whereas, to ensure the effective protection of persons and the
environment, no contractual derogation should be permitted as regards
the liability of the producer In relation to the injured party;
Whereas market conditions at present are such that It Is not
opportune to establish a mandatory system of insurance;
Whereas rules must be laid down at Community level for compen-
sation for damage and Injury to the environment caused by waste In the
event that payment of full compensation is not possible,
HAS ADOPTED THIS DIRECTIVE:
 ---pagebreak---                                       - « -
                                   Article 1
1.  This Directive shall concern civil liability for damage and
     Injury to the environment caused by waste generated in the course
    of an occupational activity, from the moment it arises.
2.  This Directive shall not apply
         to nuclear waste- covered by national law based on the
         Convention on Third Party Liability In the Field of Nuclear
         Energy (Parle, 29 July 1960) and the Convention supplementary
         to the aforementioned Convention (Brussels, 31 July 1963), as
         well as the Protocols attached to these Conventions;
         to waste and pollution covered by national law- based on the
         International Convention on Civil Liability for Oil Pollution
         Damage (Brussels, 29 November 1969) and the International
         Convention on the Establishment of an International Fund for
         Compensation for Oil Damage (Brussels, 18 December 1971).
                                   Article 2
1.  For the purposes of this Directive
    a)   "producer" means any natural or legal person whose
          occupational activities produce waste and/or anyone who carries
         out prs-processlng, mixing or other operations resulting In a
         change in the nature or composition of this waste, until the
         moment when the damage or Injury to the environment Is
         caused ;
    b)   "waste" means any eubstance or object defined as waste in
         Article 1 of Council Directive 75/442/EEC ( 8 ) ;
    c)   "damage" means:
            i) damage resulting from death or physical injury;
          ii) damage to property;
    d)   "Injury to the environment" means a significant and
         persistent Interference In the environment caused by a
         modification of the physical, chemical or biological
         conditions of water, soil and/or air Insofar as these are not
         considered to be damage' within the meaning of sub-paragraph c ) ,
          ii).
(8) 0J No L 194, 25.7.1975, p.47.
 ---pagebreak---                                      -43-
2.   The following shall be deemed to be the producer of the waste In
     place of the person defined In paragraph 1(a):
     a)  the person who imports the waste into the Community, except
         where the wasts was previously exported from the Community
         and Its nature or composition was not substantially changed
         prior to Its reimportation;
     b)  the person who had actual control of the waste when the
          Incident giving rise to the damage or Injury to the
         environment occurred:
          I)    if he is not able within a reasonable period to identify
                the producer as defined In paragraph 1;
          il)   if the waste Is in transit In the Community without
                having undergone there a substantial change In nature or
                composition before the occurrence of the incident giving
                rise to the damage or Injury to the environment;
     c)  the person responsible for the Installation, establishment or
         undertaking where the waste was lawfully transferred to such
          Installation, establishment or undertaking licensed pursuant
         to Article 8 of Directive 75/442/EEC, Article 6 of Council
         Directive 75/439/EEC <9> or Article 9 of Directive 78/319/EEC,
                                                                             (10)
         or approved pursuant to Article 6 of Council Directive 76/403/EEC
                                   Article 3
The producer of waste shall be liable under civil law for the damage and
Injury to the environment caused by the waste, Irrespective of fault
on his part.
                                   Article 4
1.    The plalnltff may take legal action to obtain:
    a)   the prohibition or cessation of the act causing the damage or
         Injury to the environment;
    b)   the reimbursement of expenditure ar I sing from measures to prsvent
         the damage or Injury to the environment;
    c)   the reimbursement of expenditure arising fro» measures to
         compensate for damage within the meaning of sub-paragraph c) ii)
         of Article 2(1);
(9) 0J No L 194, 2 5 . 7.1975, p. 31.
(10) OJ No L 108, 26.4.1976, p.41.
 ---pagebreak---                                     -**-
     d) the restoration of the environment to Its state Immediately
          prior to the occurence of Injury to the environment or the
          reimbursement of expenditure* incurred in connection with measures
         taken to this end;
     e)    indemnification for the damage.
 2. With regard to the restoration of the environment provided for in
     paragraph 1 d), the plaintiff, in the case of injury to the
     environment, may seek such restoration or the reimbursement of
     expenditure incurred- to this end except when:
         the costs substantially exceed the benefit arising for the
          environment from such restoration, and
          other alternative measures to the restoration of the
          environment may be undertaken at a substantially lower cost.
      In this latter case, the plaintiff may seek the implementation of
     these other measures or the reimbursement of the expenditure
      incurred to this end.
 3.  As regards injury       to the environment, the public authorities
     may take the legal action provided for in paragraph 1 a ) , b) and d ) .
 4.  Where the law In Member         States     gives
     common-interest groups the right to bring an action as plaintiff,
     they may seek only the prohibition or cessation of the act giving
     rise to the Injury to the environment. If, however, they have
     taken the measures provided for In paragraph K b ) , and (d), they
     may seek reimbursement of the expenditure resulting from such
     measures.
 5.  This Directive shall be without prejudice to national provisions
     relating to non-mater la I damage.
 6.  The plaintiff shall be required to prove the damage or injury to
     the environment, and show the overwhelming probability of the
     causal relationship between the producer's waste and the damage
     or, ae the case may be, the Injury to the environment suffered.
                                  Article 5
Where, under this Directive, two or more producers are liable for the
same damage or the same injury to the environment, they shall be liable
jointly and severally, without prejudice to the provisions of national
law concerning the right of redress.
                                  Article 6
 1.  The producer shall not be liable under this Directive If he shows
     that the damage or Injury to the environment results from force
     majeure as defined In Community law.
 ---pagebreak---                                   -fo - -
2.   The producer shall not be relieved      of    liability by the sole
     fact that he holds a permit Issued by the public authorities.
                                Article 7
1.   Without prejudice to the provisions of national law concerning
     the right of recourse,the liability of the producer shall not be
     reduced when the damage or Injury to the environment is caused
     both by the waste and by an act or omission of a third party.
2.   The liability of the  producer may be reduced or disallowed when,
     having regard to all  the circumstances, the damage Is caused both
     by the waste and the  fault of the Injured party or of any person
     for whom the injured  party is responsible.
                                Article 8
The liability of the producer arising from this Directive may not be
 limited or excluded in relation to the injured person by any contractual
provision limiting his liability or exempting him from liability.
                                Article 9
1.   Member States shall provide in their legislation that of legal
     proceedings     under this Directive shall be barred upon expiry
     of a period of three years from the date on which the party
      taking legal action under Article 4(1) became aware or
     should have become aware of the damage or Injury to the
     environment and of the Identity of the producer.
2.   This Directive shall not affect Member States' provisions on the
     suspension or Interruption of the limitation period.
                               Article 10
The right to take legal action under this Directive shall be extinguished
upon the expiry of a period of thirty years from the date on which the
incident giving rise to the damage or injury to the. environment occurred, unless
in the meantime proceedings against the party liable for the damage
or Injury to the environment have been Instituted.
                               Article 11
The Council, acting on a proposal from the Commission, sha11
determine by 31 December 1992 at the latest the conditions to
be applied and the means to be used in order to provide compensation
for the damage and Injury to the environment covered by this
Directive in the event that
 ---pagebreak---           the person l i a b l e   under      this Directive cannot be
          identified;
          the person liable is incapable of providing f u l l compensation for the
          damage and/or Injury        caused.
                                    Article 12
This Directive shall not affect:
a) any rights which may be relied upon by the plaintiff under this
     Directive under international conventions on civil liaDility for the
     carriage of dangerous goods in force at the relevant time;
b) any rights established by the International Convention on
     Limitation of Liability for Maritime Claims (London, 19 November
     1976).
                                    Article 13
This Directive shall not apply to damage or Injury                  to the
environment arising from an incident which occurred before the date
on which ita provisions are implemented.
                                    Article 14
1. Member States shall bring Into force, not later than 1 January
     1991, the I awe, regulations and administrative provisions
     necessary to comply with this Directive. They shall forthwith
     inform the Commies ion thereof.
2.   The provisions adopted pursuant to paragraph 1 shall make
     express reference to this Directive.
3. Member States shall communicate to the Commission the texts of
     the provisions of national law which they adopt in the field
     governed by this Directive.
                                    Article 15
This Directive is addressed to the Member Statee.
 Done at Brussels,                                   For the Council
 ---pagebreak---  ---pagebreak---                                                                      ISSN 0254-1475
                                                              COM (89) 282 final
                                                      DOCUMENTS
EN                                                                              15
                                Catalogue number : CB-CO-89-377-EN-C
                                                             ISBN 92-77-52649-1
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