Environmental Liability Directive

    Europe

    Environmental Liability Directive

    The Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage (‘the Environmental Liability Directive’) aims to establish a framework based on the polluterpays principle to prevent and remedy environmental damage 

    Last Updated: July 30, 2019


  • Requirements

    The Environmental Liability Directive classifies the following categories as ‘environmental damage’ (Article 2): 

    • damage to protected species and natural habitats 
    • water damage; and 
    • land damage. 

    The Environmental Liability Directive applies to: 

    • environmental damage caused by any of the occupational activities listed in Annex III, and to any imminent threat of such damage occurring by reason of any of those activities; and 
    • damage to protected species and natural habitats caused by any occupational activities other than those listed in Annex III, and to any imminent threat of such damage occurring by reason of any of those activities, whenever the operator has been at fault or negligent.

    Article 5 of the Environmental Liability Directive sets out a duty on an operator to take preventive measures if there an imminent threat of environmental damage occurring.   

    In line with Article 6, in case environmental damage has occurred, the operator is under an obligation to inform the competent authority of all relevant aspects of the situation and take remedial action.  

    ‘Operator’ is defined under the Environmental Liability Directive as ‘any natural or legal, private or public person who operates or controls the occupational activity or, where this is provided for in national legislation, to whom decisive economic power over the technical functioning of such an activity has been delegated, including the holder of a permit or authorisation for such an activity or the person registering or notifying such an activity.’ 

    The European Commission issued guidance (‘the Guidance’) on the Environmental Liability Directive. The Guidance specifies the following:   

    operators carrying out dangerous activities listed in Annex III of the fall under strict liability. Furthermore, operators carrying out other occupational activities than those listed in Annex III are liable for fault-based damage to protected species or natural habitats. The establishment of a causal link between the activity and the damage is always required. Affected natural or legal persons and environmental NGOs have the right to request the competent authority to take remedial action if they deem it necessary. 

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