Environmental Liability Directive (2004/35/CE – 21 April 2004)
What is it?
The Environmental Liability Directive came into force in April 2004. It is aimed at preventing environmental damage by forcing industrial polluters ('operators') to pay prevention and remediation costs.
The Directive is one of the most controversial, and potentially far-reaching, pieces of environmental legislation negotiated by the EU to date.
Key elements
The Directive aims to establish a framework that would prevent 'significant environmental damage' or rectify damage after it has occurred.
'Significant environmental damage' will be defined by reference to:
- biodiversity, whether protected at EU or national levels;
- waters covered by the Water Framework Directive [For more information, see links at bottom of this page.] ; and
- human health (including land contamination when it is a threat to human health).
The Directive provides specific criteria to assess when damage is “significant”.
Member States will be under a duty to ensure that the necessary preventive or restorative measures are actually taken. Member States can decide when measures should be taken by:
- the relevant operator;
- the competent authorities; or
- a third party.
What does it mean for me?
Operators carrying out "hazardous" activities will be held strictly liable (i.e. no need to show fault or negligence) for preventing or restoring any damage caused by those activities to land, water and protected habitats and species.
In addition, operators carrying out other, less harmful, activities will be held liable when damage to protected habitats and species has been caused by their fault or negligence.
Member states may exempt operators from clean-up costs if the damage:
- is caused by pollution released within the terms of emission permits; or
- occurred despite the use of best practice.
If this happens, governments will not be obliged to cover the costs themselves.
Operators will automatically be exempt from having to compensate for damage caused :
- by war or an act of God; or
- by a third party, despite having taken all safety measures.
Damage from nuclear and maritime accidents falls outside the regime's scope and remains subject to existing treaties.
Timescale
Member states have until 30 April 2007 to incorporate the Directive’s provisions into national law.
More Information
Environmental Liability Directive:
Water Framework Directive:
