CELEX: 51991PC0219
Language: en
Date: 1991-06-27
Title: AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE ON CIVIL LIABILITY FOR DAMAGE CAUSED BY WASTE

No C 192/6                             Official Journal of the European Communities                                23. 7. 91
                                                              II
                                                      (Preparatory Acts)
                                                 COMMISSION
               Amended proposal for a Council Directive on civil liability for damage caused by waste (')
                                                        (91/C 192/04)
                                               COM(91) 219 final — SYN 217
             (Submitted by the Commission pursuant to Article 149(3) of the EEC Treaty on 28 June 1991)
             0) OJ No C 251, 4. 10. 1989, p. 3.
                     ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                          THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European             Having regard to the Treaty establishing the European
Economic Community, and in particular Article 100a                Economic Community, and in particular Article 100a
thereof,                                                          thereof,
Having regard to the proposal from the Commission,                Having regard to the proposal from the Commission,
In cooperation with the European Parliament,                      In cooperation with the European Parliament,
Having regard to the opinion of the Economic and                  Having regard to the opinion of the Economic and
Social Committee,                                                 Social Committee,
Whereas Article 11 (3) of Directive 84/631/EEC (>), as            Whereas Article 11 (3) of Directive 84/631/EEC (1), as
last amended by Directive 86/279/EEC (2), provides, on            last amended by Directive 86/279/EEC (2), provides, on
the basis of Article 100 of the Treaty, for action by the         the basis of Article 100 of the Treaty, for action by the
Community       to    determine     the    conditions    for      Community      to     determine     the  conditions    for
implementing the civil liability of the producer in the           implementing the civil liability of the producer in the
case of damage caused by waste, or that of any other              case of damage caused by waste, or that of any other
person who may be accountable for the said damage,                person who may be accountable for the said damage,
and to determine a system of insurance;                           and to determine a system of insurance;
(') OJ No L 326, 13. 12. 1984, p. 31.                             (') OJ No L 326, 13. 12. 1984, p. 31.
(2) OJ No L 181, 4. 7. 1986, p. 13.                               O OJ No L 181, 4. 7. 1986, p. 13.
 ---pagebreak--- 23. 7. 91                               Official Journal of the European Communities                               No C 192/7
                        ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
Whereas the Fourth Environment Action Programme of                Whereas the Fourth Environment Action Programme of
the European Communities of 1987 (*) provides in point            the European Communities of 1987 (x) provides in point
5.3.6 that work on the question of civil liability and            5.3.6 that work on the question of civil liability and
insurance in relation to the transfrontier movement of            insurance in relation to the transfrontier movement of
waste will be completed and proposals will be made;               waste will be completed and proposals will be made;
whereas it also provides in point 2.5.5 that the                  whereas it also provides in point 2.5.5 that the
Commission will 'consider the scope for the better defi-          Commission will 'consider the scope for the better defi-
nition of responsibility in the environmental field';             nition of responsibility in the environmental field';
Whereas disparities among laws of the Member States               Whereas disparities among laws of the Member States
concerning the liability for damage and injury to the             concerning the liability for damage and impairment of
environment caused by waste could lead to artificial              the environment caused by waste could lead to artificial
patterns of investment and waste; whereas such a                  patterns of investment and waste; whereas such a
situation would distort competition, affect the free              situation would distort competition, affect the free
movement of goods within the internal market and entail           movement of goods within the internal market and entail
differences in the level of protection of health, property        differences in the level of protection of health, property
and the environment; whereas an approximation of the              and the environment; whereas an approximation of the
laws of the Member States on this subject is therefore            laws of the Member States on this subject is therefore
needed;                                                           needed;
Whereas, since the entry into force of the Single                 Whereas, since the entry into force of the Single
European Act, Article 100a has replaced Article 100 as            European Act, Article 100a has replaced Article 100 as
the appropriate basis in the Treaty for approximating             the appropriate basis in the Treaty for approximating
national provisions that affect the internal market;              national provisions that affect the internal market;
Whereas such approximation must be based on a high                Whereas such approximation must be based on a high
level of protection both with regard to the damage and            level of protection both with regard to the damage and
injury to the environment which may be repaired, and              impairment of the environment which may be repaired,
the conditions that must be fulfilled in order to initiate        and the conditions that must be fulfilled in order to
proceedings;                                                      initiate proceedings;
Whereas Article 11 (1) of Directive 84/631/EEC                    Whereas Article 11 (1) of Directive 84/631/EEC
requires the producer of waste to take all necessary steps        requires the producer of waste to take all necessary steps
to dispose of the waste, or arrange for its disposal, so as       to dispose of the waste, or arrange for its disposal, so as
to protect the quality of the environment;                        to protect the quality of the environment;
Whereas Community action in the field of waste                    Whereas Community action in the field of waste
management seeks to minimize the production and                   management seeks to minimize the production and
monitor the effects of waste, throughout the whole cycle          monitor the effects of waste, throughout the whole cycle
from production to disposal; whereas it concerns all              from production to disposal; whereas it concerns all
types of waste;                                                   types of waste;
Whereas therefore the Community system of civil                   Whereas therefore the Community system of civil
liability in this field should not be limited to damage and       liability in this field should not be limited to damage and
injury to the environment that occurs during trans-               impairment of the environment that occurs during trans-
frontier movements of hazardous waste;                            frontier movements of hazardous waste;
O OJ No C 328, 7. 12. 1987, p. 6.                                 (») OJ No C 328, 7. 12. 1987, p. 6.
 ---pagebreak---   No C 192/8                           Official Journal of the European Communities                                  23. 7. 91
                       ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
 Whereas this system         presupposes   the   notion    of     Whereas this system         presupposes   the    notion   of
 professional risk;                                                professional risk;
 Whereas the principles established in Article 130r(2) of         Whereas the principles established in Article 13 Or (2) of
 the Treaty that the polluter should pay and that                 the Treaty that the polluter should pay and that
 preventive action should be taken cannot be effectively          preventive action should be taken cannot be effectively
 implemented in the waste management sector unless the            implemented in the waste management sector unless the
 cost of the damage or injury to the environment caused           cost of the damage or impairment of the environment
 by the waste is reflected in the cost of the goods or            caused by the waste is reflected in the cost of the goods
 services that give rise to the waste; whereas, in view of        or services that give rise to the waste; whereas, in view
 the risk inherent in the very existence of waste, the strict     of the risk inherent in the very existence of waste, the
 liability of the producer constitutes the best solution to       strict liability of the producer constitutes the best
 the problem;                                                     solution to the problem;
 Whereas, however, if the waste has been lawfully trans-          Whereas, however, if the waste has been lawfully trans-
 ferred to an authorized disposal installation, estab-            ferred to an authorized disposal installation, estab-
 lishment or undertaking pursuant to Article 9 of Council         lishment or undertaking pursuant to Article 9 of Council
 Directive 78/319/EEC ('), liability must be transferred to       Directive 78/319/EEC ('), liability must be transferred to
 the latter;                                                      the latter;
Whereas, in order to safeguard the injured party's rights,       Whereas, in order to safeguard the injured party's rights,
 the holder of waste must be able to identify the                 the holder of waste must be able to identify the
 producer, on pain of himself being considered the               producer, on pain of himself being considered the
 producer;                                                       producer; whereas the Directive must also cover the
                                                                  liability of the eliminator of waste;
                                                                 Whereas in cases where the Convention on civil liability
                                                                 for damage caused during the carriage of dangerous
                                                                 goods applies, the carrier should be liable within the
                                                                 limits laid down in the abovementioned Convention;
                                                                 Whereas in the interest of a high level of protection for
                                                                 the interests of the injured parties and of the envi-
                                                                 ronment, the Member States must offer the persons who
                                                                 may bring a legal action the possibility of requesting
                                                                 measures to prevent, suspend and/or compensate for the
                                                                 act or omission which caused or may cause damage to or
                                                                 impairment of the environment;
Whereas effective protection of the injured party                Whereas effective protection of the injured party
requires that he should be able to claim full redress from       requires that he should be able to claim full redress from
each of the parties responsible for the damage or injury         each of the parties responsible for the damage or
to the environment, irrespective of the establishment of         impairment of the environment, irrespective of the estab-
the relative liability of the parties;                           lishment of the relative liability of the parties;
(') OJ No L 84, 31. 3. 1978, p. 43.                              (*) OJ No L 84, 31. 3. 1978, p. 43.
 ---pagebreak---  23. 7. 91                           Official Journal of the European Communities                              No C 192/9
                     ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
Whereas the protection of persons and the environment          Whereas the protection of persons and the environment
 requires that the producer's liability should not be          requires that a person's liability should not be reduced by
reduced by the involvement of other persons having             the involvement of other persons having recklessly or
contributed to causing the damage or injury to the envi-       negligently contributed to causing the damage or
ronment; whereas, however, the contributory negligence         impairment of the environment; whereas, however, the
of the injured party may be taken into account to assign,      intent of the injured party to cause such damage or
reduce or disallow such liability;                             impairment or contributory negligence on his part may
                                                               be taken into account to assign, reduce or disallow such
                                                               liability;
Whereas the protection of persons and the environment          Whereas the protection of persons and the environment
requires compensation for death and personal injury;           requires compensation for death and personal injury;
whereas such compensation should be extended to                whereas such compensation should be extended to
damage to property and injury to the environment;              damage to property and impairment of the environment;
whereas this Directive does not prejudice compensation         whereas this Directive does not prejudice compensation
for pain and suffering and other non-material damage           for pain and suffering and other non-material damage
payable, where appropriate, under the law applicable to        payable, where appropriate, under the law applicable to
the case;                                                      the case;
Whereas a uniform period of limitation for instituting         Whereas a uniform period of limitation for instituting
compensation proceedings is in the interests both of the       compensation proceedings is in the interests both of the
injured party and of the producer;                             injured party and of the producer;
Whereas, to ensure the effective protection of persons         Whereas, to ensure the effective protection of persons
and the environment, no contractual derogation should          and the environment, no contractual derogation should
be permitted as regards the liability of the producer in       be permitted as regards the liability of any person under
relation to the injured party;                                 this Directive in relation to the damage or the
                                                               impairment of the environment;
Whereas market conditions at present are such that it is       Whereas the liability of the producer and eliminator of
not opportune to establish a mandatory system of               waste must be covered by insurance or other financial
insurance;                                                     security;
Whereas rules must be laid down at Community level for         Whereas rules must be laid down at Community level for
compensation for damage and injury to the environment          compensation for damage and impairment of the envi-
caused by waste in the event that payment of full              ronment caused by waste in the event that payment of
compensation is not possible,                                  full compensation is not possible,
HAS ADOPTED THIS DIRECTIVE:                                    HAS ADOPTED THIS DIRECTIVE:
                         Article 1                                                      Article 1
1.    This Directive shall concern civil liability for         1.    This Directive shall concern civil liability for
damage and injury to the environment caused by waste           damage and impairment of the environment caused by
generated in the course of an occupational activity, from      waste generated in the course of an occupational activity,
the moment it arises.                                          from the moment it arises.
 ---pagebreak---  No C 192/10                          Official Journal of the European Communities                                  23. 7. 91
                     ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
 2.    This Directive shall not apply                           2.    This Directive shall not apply
— to nuclear waste covered by national law based on                 to nuclear waste covered by national law based on
     the Convention on Third Party Liability in the Field           the Convention on Third Party Liability in the Field
     of Nuclear Energy (Paris, 29 July 1960) and the                of Nuclear Energy (Paris, 29 July 1960) and the
     Convention supplementary to the aforementioned                 Convention supplementary to the aforementioned
     Convention (Brussels, 31 January 1963), as well as             Convention (Brussels, 31 January 1963), as well as
    the Protocols attached to these Conventions;                    the Protocols attached to these Conventions;
— to waste and pollution covered by national law based              to damage and impairment of the environment
    on the International Convention on Civil Liability for          caused by oil from ships at sea insofar as the question
    Oil Pollution Damage (Brussels, 29 November 1969)               of liability is regulated by the International
    and the International Convention on the Estab-                  Convention on civil liability for oil pollution damage
    lishment of an International Fund for Compensation              of 29 November 1969 as amended by the Protocols
    for Oil Damage (Brussels, 18 December 1971).                    of 19 November 1976 and 25 May 1984 and by the
                                                                    International Convention on the establishment of an
                                                                    international fund for compensation for oil pollution
                                                                    damage of 18 December 1971 as amended by the
                                                                    Protocols of 19 November 1976 and 25 May 1984.
                                                                3.    This Directive shall apply not only to the territories
                                                                of the Member States but also to the exclusive economic
                                                                zone over which the Member States enjoy rights and
                                                                obligations under public international law.
                           Article 2                                                     Article 2
 1.    For the purposes of this Directive:                      1.    For the purposes of this Directive:
(a) 'producer' means any natural or legal person whose          (a) 'producer' means any person who, in the course of a
     occupational activities produce waste and/or anyone            commercial or industrial activity, produces waste
     who carries out pre-processing, mixing or other                and/or anyone who carries out pre-processing,
     operations resulting in a change in the nature or              mixing or other operations resulting in a change in
     composition of this waste, until the moment when               the nature or composition of this waste;
     the damage or injury to the environment is caused;
(b) 'waste' means any substance or object defined as            (b) 'waste' means any substance or object defined as
     waste    in Article       1 of   Council     Directive         waste in Council Directive 75/442/EEC (');
     75/442/EECO;
(c) 'damage' means:                                             (c) 'damage' means:
      (i) damage resulting from death or physical injury;            (i) damage resulting from death or physical injury;
     (ii) damage to property;                                       (ii) damage to property;
(') OJ No L 194, 25. 7. 1975, p. 39.                            0) OJ No L 194, 25. 7. 1975, p. 39.
 ---pagebreak--- 23. 7. 91                              Official Journal of the European Communities                           N o C 192/11
                       ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
(d) 'injury to the environment' means a significant and          (d) 'impairment of the environment' means any significant
    persistent interference in the environment caused by              physical, chemical or biological deterioration of the
     a modification of the physical, chemical or biological           environment insofar as this is not considered to be
     conditions of water, soil and/or air in so far as these          damage within the meaning of sub-paragraph (c) (ii);
     are not considered to be damage within the meaning
     of subparagraph (c) (ii).
                                                                 (e) 'person'means any natural or legal person as defined
                                                                      by public or private law:
                                                                 (f) 'eliminator' means a person who carries out any of
                                                                      the operations listed in Annex I I A or Annex II B to
                                                                      Council Directive 75/442/EEC.
2.     The following shall be deemed to be the producer          2.     The following shall be deemed to be the producer
of the waste in place of the person defined in paragraph         of the waste in place of the person defined in paragraph
1 (a):                                                            1 (a):
(a) the person who imports the waste into the                    (a) the person who imports the waste into the
     Community, except where the waste was previously                 Community, except where the waste was previously
     exported from the Community and its nature or                    exported from the Community and its nature or
     composition was not substantially changed prior to               composition was not substantially changed prior to
     its re-importation;                                              its re-importation;
(b) the person who had actual control of the waste when          (b) the person who had actual control of the waste when
     the incident giving rise to the damage or injury to              the incident giving rise to the damage to or
     the environment occurred:                                        impairment of the environment occurred, if he is not
                                                                      able within a reasonable period to identify the
      (i) if he is not able within a reasonable period to             producer as defined in paragraph 1 (a);
          identify the producer as defined in paragraph 1;
     (ii) 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, estab-          (c) the person responsible for the installation, estab-
     lishment or undertaking where the waste was                      lishment or undertaking where the waste was
     lawfully transferred to such installation, estab-                lawfully transferred to such installation, estab-
     lishment or undertaking licensed pursuant to Article             lishment or undertaking licensed pursuant to Article
     8 of Directive 75/442/EEC, Article 6 of Council                  8 of Directive 75/442/EEC, Article 6 of Directive
     Directive 75/439/EEC (') or Article 9 of Directive               75/439/EEC (») or Article           9 of     Directive
     78/319/EEC, or approved pursuant to Article 6 of                 78/319/EEC, or approved pursuant to Article 6 of
     Council Directive 76/403/EEC (2).                                Directive 76/403/EEC (2).
(') OJ No L 194, 25. 7. 1975, p. 23.                             O OJ No L 194, 25. 7. 1975, p. 23.
(2) OJ No L 108, 26. 4. 1976, p. 41.                             O OJ No L 108, 26. 4. 1976, p. 41.
 ---pagebreak--- No C 192/12                          Official Journal of the European Communities                                   23. 7. 91
                     ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
                          Article 3                                                       Article 3
The producer of waste shall be liable under civil law for       1. The producer of waste shall be liable under civil
the damage and injury to the environment caused by the         law for the damage and impairment of the environment
waste, irrespective of fault on his part.                      caused by the waste, irrespective of fault on his part. In
                                                               cases covered by the Convention on civil liability for
                                                               damage caused during the carriage of dangerous goods
                                                               by road, rail and inland waterway vessels of 10 October
                                                                1989, the carrier shall also be liable within the limits laid
                                                               down in the abovementioned Convention.
                                                               2. The producer shall include in his annual report the
                                                               name of his insurers for civil liability purposes.
                          Article 4                                                       Article 4
1.    The plainitiff may take legal action to obtain:          1. The national laws of the Member States shall
                                                               determine:
(a) the prohibition or cessation of the act causing the        (a) the person who may bring a legal action in the event
    damage or injury to the environment;                           of damage to or impairment of the environment
                                                                   caused or about to be caused by waste;
(b) the reimbursement of expenditure arising from              (b) the remedies available to such persons which shall
    measures to prevent the damage or injury to the                include:
    environment;
                                                                     (i) an injunction prohibiting the act or correcting
                                                                         the omission that has caused or may cause the
                                                                         damage and/or compensation for the damage
                                                                         suffered;
                                                                    (ii) an injunction prohibiting the act or correcting
                                                                         the omission that has caused or may cause
                                                                         impairment of the environment;
                                                                   (iii) an injunction ordering the reinstatement of the
                                                                         environment and/or ordering the execution of
                                                                         preventive measures and the reimbursement of
                                                                         costs lawfully incurred in reinstating the envi-
                                                                         ronment and in taking preventive measures
                                                                         (including costs of damage caused by preventive
                                                                         measures);
(c) the reimbursement of expenditure arising from              (c) the burden of proof on the plaintiff, when affirming
    measures to compensate for damage within the                   the causal link between the waste on the one hand
    meaning of subparagraph (c) (ii) of Article 2 (1);             and the damage or impairment of the environment
                                                                   suffered or likely to be suffered on the other hand;
                                                                   the burden of proof shall be no higher than the
                                                                   standard burden of proof in civil law;
 ---pagebreak---  23. 7. 91                            Official Journal of the European Communities                            N o C 192/13
                      ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
 (d) the restoration of the environment to its state            (d) whether and to what extent damages for loss of
      immediately prior to the occurrence of injury to the           profit or economic loss may be recoverable.
      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           2. With regard to reinstatement of the environment,
provided for in paragraph 1 (d), the plaintiff, in the case     as provided for in paragraph 1 (b) (iii), the plaintiff may
of injury to the environment, may seek such restoration         seek such reinstatement or the reimbursement of expen-
or the reimbursement of expenditure incurred to this end        diture incurred to this end except when:
except when:
— the costs substantially exceed the benefit arising for            the costs substantially exceed the benefit arising for
     the environment from such restoration, and                     the environment from such reinstatement, and
     other alternative measures to the restoration of the           other alternative measures to the reinstatement of the
     environment may be undertaken at a substantially               environment may be undertaken at a substantially
     lower cost.                                                    lower cost.
In this latter case, the plaintiff may seek the implemen-       In this latter case, the plaintiff may seek the implemen-
tation of these other measures or the reimbursement of          tation of these other measures or the reimbursement of
the expenditure incurred to this end.                           the expenditure incurred to this end.
 3. As regards injury to the environment, the public            3. Common interest groups or associations, which
authorities may take the legal action provided for in           have as their object the protection of nature and the
paragraph 1 (a), (b) and (d).                                   environment, shall have the right either to seek any
                                                                remedy under paragraph 1 (b) or to join in legal
                                                                proceedings that have already been brought. The
                                                                conditions under which the interest groups or associ-
                                                                ations defined in the previous sentence may bring an
                                                                action before the competent authorities shall be laid
                                                                down by national legislation.
4. Where the law in Member States gives common-                 4. This Directive shall be without prejudice to
interest groups the right to bring an action as plaintiff,      national provisions relating to non-material damage.
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 1 (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-material damage.
6. The plaintiff shall be required to prove the damage
or injury to the environment, and show the over-
whelming probability of the causal relationship between
the producer's waste and the damage or, as the case may
be, the injury to the environment suffered.
 ---pagebreak--- No C 192/14                          Official Journal of the European Communities                                 23. 7.91
                     ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
                          Article 5                                                       Article 5
Where, under this Directive, two or more     producers are      1.    Where, under this Directive, two or more persons
liable for the same damage or the same       injury to the     are liable for the same damage or the same impairment
environment, they shall be liable jointly   and severally,     of the environment, they shall be liable jointly and
without prejudice to the provisions of        national law     severally.
concerning the right of redress.
                                                               2.     This Directive shall apply without prejudice to the
                                                               provisions of the national laws of the Member States
                                                               concerning the right of redress.
                          Article 6                                                       Article 6
1.    The producer shall not be liable under this               1.    No liability shall attach to any person if he proves
Directive if he shows that the damage or injury to the         that, in the absence of fault on his part:
environment results from force majeure as defined in
Community law.                                                 (a) the damage or impairment of the environment was
                                                                    caused by an act or omission of a third party with
                                                                    the intent to cause such damage or impairment; or
                                                               (b) the damage to or impairment of the environment
                                                                    resulted from force majeure as defined in Community
                                                                    law.
2.    The producer shall not be relieved of liability by       2.     The producer shall not be relieved of liability by
the sole fact that he holds a permit issued by the public      the sole fact that he holds a permit issued by the public
authorities.                                                   authorities.
                          Article 7                                                       Article 7
1.    Without prejudice to the provisions of national law       1.    No liability for damage or impairment of the envi-
concerning the right of recourse, the liability of the         ronment caused by waste shall attach to the eliminator if
producer shall not be reduced when the damage or               he can prove that, in the absence of fault on his part, the
injury to the environment is caused both by the waste          producer of the waste deceived him as to the true
and by an act or omission of a third party.                    character of the consignment of waste which caused such
                                                               damage or impairment; in such an eventuality, liability
                                                               shall rest with the producer.
2.    The liability of the producer may be reduced or          2.     The liability of any person may be wholly or
disallowed when, having regard to all the circumstances,       partially waived if he can prove that the damage or
the damage is caused both by the waste and the fault of        impairment of the environment has been caused in whole
the injured party or of any person for whom the injured        or in part by the injured party or by any employee or
party is responsible.                                          agent of the said party.
                          Article 8                                                       Article 8
The liability of the producer arising from this Directive      The liability of any person arising from this Directive
may not be limited or excluded in relation to the injured      may not be limited or excluded by any contractual
person by any contractual provision limiting his liability     provision limiting his liability or exempting him from
or exempting him from liability.                               liability.
 ---pagebreak--- 23. 7. 91                             Official Journal of the European Communities                             No C 192/15
                     ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
                          Article 9                                                       Article 9
1. Member States shall provide in their legislation that         1. Member States shall provide in their legislation that
taking of legal proceedings under this Directive shall be       any legal proceedings under this Directive shall be barred
barred upon expiry of a period of three years from the          upon expiry of a period of three years from the date on
date on which the party taking legal action under Article       which the person taking legal action under Article 4 (1)
4 (1) (a) became aware or should have become aware of           became aware or should have become aware of the
the damage or injury to the environment and of the              damage or impairment of the environment.
identity of the producer.
2. This Directive shall not affect Member States'               2. This Directive shall not affect Member States'
provisions on the suspension or interruption of the limi-       provisions on the suspension or interruption of the limi-
tation period.                                                  tation period.
                         Article 10                                                       Article 10
The right to take legal action under this Directive shall       The right to take legal action under this Directive shall
be extinguished upon the expiry of a period of 30 years         be extinguished upon the expiry of a period of 30 years
from the date on which the incident giving rise to the          from the date on which the incident giving rise to the
damage or injury to the environment occurred, unless in         damage to or impairment of the environment occurred,
the meantime proceedings against the party liable for the       unless in the meantime proceedings against the party
damage or injury to the environment have been                   liable for the damage or impairment of the environment
instituted.                                                     have been instituted.
                         Article 11                                                       Article 11
The Council acting on a proposal from the Commission,            1. The liability under this Directive of the producer,
shall determine by 31 December 1992 at the latest the           who in the course of a commercial or industrial activity
conditions to be applied and the means to be used in            produces waste, and of the eliminator shall be covered
order to provide compensation for the damage and                by insurance or any other financial security.
injury to the environment covered by this Directive in
the event that:
                                                                2. The Council, acting on a proposal from the
                                                                 Commission shall determine by 31 December 1992
    the person liable under this Directive cannot be iden-      common rules governing the situation arising:
    tified,
                                                                  (i) where the person liable is incapable of providing full
    the person liable is incapable of providing full                  compensation for the damage and/or impairment of
    compensation for the damage and/or injury caused.                 the environment caused; or
                                                                 (ii) the person liable under this Directive cannot be iden-
                                                                      tified.
                                                                 In this regard the Commission shall study the feasibility
                                                                 of the establishment of a European fund for compen-
                                                                 sation for damage and impairment of the environment
                                                                 caused by waste.
 ---pagebreak--- No C 192/16                          Official Journal of the European Communities                                23. 7. 91
                    ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
                        Article 12                                                     Article 12
This Directive shall not affect:                               This Directive shall not affect any rights established by
                                                               the International Convention on limitation of liability for
                                                               maritime claims (London, 19 November 1976).
(a) any rights which may be relied upon by the plaintiff
    under this Directive or under international
    conventions on civil liability 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                                                     Article 13
This Directive shall not apply to damage or injury to the      This Directive shall not apply to damage or impairment
environment arising from an incident which occurred            of the environment arising from an incident which
before the date on which its provisions are implemented.       occurred before the date on which its provisions are
                                                               implemented.
                        Article 14                                                     Article 14
1.    Member States shall bring into force, not later than      1.   Member States shall bring into force, not later than
1 January 1991, the laws, regulations and administrative        1 January 1991, the laws, regulations and administrative
provisions necessary to comply with this Directive. They       provisions necessary to comply with this Directive. They
shall forthwith inform the Commission thereof.                 shall forthwith inform the Commission thereof.
2.    The provisions adopted pursuant to paragraph 1           2.    The provisions adopted pursuant to paragraph 1
shall make express reference to this Directive.                shall make express reference to this Directive.
3.    Member States shall communicate to the                    3.   Member States shall communicate to the
Commission the texts of the provisions of national law         Commission the texts of the provisions of national law
which they adopt in the field governed by this Directive.      which they adopt in the field governed by this Directive.
                        Article 15                                                     Article 15
This Directive is addressed to the Member States.              This Directive is addressed to the Member States.