Ministero dell'Ambiente e della Tutela del Territorio e del Mare and Others v Fipa Group srl and Others.
Date: 2015-03-04
36. In that regard, the referring court, citing the judgments of the Court in ERG and Others  (C‑378/08, EU:C:2010:126) and ERG and Others (C‑379/08 and C‑380/08, EU:C:2010:127), bases its approach on a literal interpretation of the Environmental Code and on the principles of civil liability, which require a causal link between the act and the damage. The existence of such a link is necessary to establish either fault-based or strict liability in respect of the damage concerned. That link is missing if the owner is not the polluter. Consequently, the liability of an owner in those circumstances would be based solely on that person’s status as owner, given that the pollution cannot be attributed to that person either for reasons relating to the individual or on the basis of objective criteria.
39. Article 191(2) TFEU provides that EU policy on the environment is to aim at a high level of protection and is to be based, inter alia, on the ‘polluter pays’ principle. That provision thus does no more than define the general environmental objectives of the European Union, since Article 192 TFEU confers on the European Parliament and the Council of the European Union, acting in accordance with the ordinary legislative procedure, responsibility for deciding what action is to be taken in order to attain those objectives (see judgments in ERG and Others , EU:C:2010:126, paragraph 45; ERG and Others , EU:C:2010:127, paragraph 38; and order in Buzzi Unicem and Others , C‑478/08 and C‑479/08, EU:C:2010:129, paragraph 35).
40. Consequently, since Article 191(2) TFEU, which establishes the ‘polluter pays’ principle, is directed at action at EU level, that provision cannot be relied on as such by individuals in order to exclude the application of national legislation — such as that at issue in the main proceedings — in an area covered by environmental policy for which there is no EU legislation adopted on the basis of Article 192 TFEU that specifically covers the situation in question (see judgments in ERG and Others , EU:C:2010:126, paragraph 46; ERG and Others , EU:C:2010:127, paragraph 39; and order in Buzzi Unicem and Others , EU:C:2010:129, paragraph 36).
44. It follows from the first and second indents of Article 17 of Directive 2004/35, read in conjunction with recital 30 thereto, that the directive applies only to damage caused by an emission, event or incident which took place on or after 30 April 2007, where the damage derives from activities which took place on or after that date or from activities which took place before that date, but were not brought to completion before that date (see, to that effect, judgments in ERG and Others , EU:C:2010:126, paragraphs 40 and 41; ERG and Others , EU:C:2010:127, paragraph 34; and order in Buzzi Unicem and Others , EU:C:2010:129, paragraph 32).
45. It is important that the referring court ascertain, on the basis of the facts, which it alone is in a position to assess, whether, in the cases before it, the damage in respect of which preventive and remedial measures were imposed by the competent national authorities falls within the scope of Directive 2004/35 as delimited in Article 17 thereof (see, to that effect, judgment in ERG and Others , EU:C:2010:126, paragraph 43).
46. If that court reaches the conclusion that Directive 2004/35 is not applicable in the cases pending before it, such a situation will be governed by national law, with due observance of the rules of the Treaty and without prejudice to other secondary legislation (see judgments in ERG and Others , EU:C:2010:126, paragraph 44; ERG and Others , EU:C:2010:127, paragraph 37; and order in Buzzi Unicem and Others , EU:C:2010:129, paragraph 34).
50. As the Court has held, under the system provided for in Articles 6 and 7 of Directive 2004/35, it is as a rule for the operator who caused the damage to put forward proposals for the remedial measures which it considers appropriate to the situation (see judgment in ERG and Others , EU:C:2010:127, paragraph 46). By the same token, it is that operator on whom the competent authority may impose the adoption of the necessary measures.
52. On the other hand, persons other than those defined in point (6) of Article 2 of Directive 2004/35 — namely, those who do not carry out an occupational activity, within the meaning of point (7) of Article 2 of that directive — fall outside the scope of the directive as defined in Article 3(1)(a) and (b) thereof.
54. As follows from Articles 4(5) and 11(2) of Directive 2004/35, read in conjunction with recital 13 thereto, in order for the environmental liability mechanism to be effective and for remedial measures to be required of an operator, the competent authority must establish a causal link between the activity of one or more identifiable operators and concrete and quantifiable damage, irrespective of the type of pollution at issue (see, to that effect, judgment in ERG and Others , EU:C:2010:126, paragraphs 52 and 53, and order in Buzzi Unicem and Others , EU:C:2010:129, paragraph 39).
55. In construing Article 3(1)(a) of Directive 2004/35, the Court has held that the competent authority’s obligation to establish a causal link applies in the context of the system of strict environmental liability of operators (see judgment in ERG and Others , EU:C:2010:126, paragraphs 63 to 65, and order in Buzzi Unicem and Others , EU:C:2010:129, paragraph 45).
56. As is clear from Article 4(5) of Directive 2004/35, that obligation also applies in the context of the fault-based liability system — under which liability arises from fault or negligence on the part of the operator — provided for in Article 3(1)(b) of that directive in respect of occupational activities other than those listed in Annex III thereto.
57. The particular importance for the application of the ‘polluter pays’ principle, hence for the liability mechanism provided for in Directive 2004/35, of the condition relating to a relationship of causality between the operator’s activity and the environmental damage is also apparent from the provisions of that directive which relate to the inferences to be drawn from the fact that the operator did not contribute to the pollution or to the risk of pollution.
58. In that regard, it should be borne in mind that, under Article 8(3)(a) of Directive 2004/35, read in conjunction with recital 20 thereto, the operator is not required to bear the costs of preventive or remedial action taken pursuant to that directive if he can prove that the environmental damage was caused by a third party, and occurred despite the fact that appropriate safety measures were in place, or resulted from an order or instruction emanating from a public authority (see, to that effect, judgment in ERG and Others , EU:C:2010:126, paragraph 67 and the case-law cited, and order in Buzzi Unicem and Others , EU:C:2010:129, paragraph 46).
59. Where no causal link can be established between the environmental damage and the activity of the operator, the situation falls to be governed by national law in accordance with the conditions referred to in paragraph 46 above (see, to that effect, judgment in ERG and Others , EU:C:2010:126, paragraph 59, and order in Buzzi Unicem and Others , EU:C:2010:129, paragraphs 43 and 48).