Environmental Liability[fr][de] 

The 'polluter pays principle' is enshrined in article  130(2) of the EC-Treaty relating to environmental protection and based on the precautionary principle. In February 2000, the European Commission adopted a White Paper on environmental liability with the objective of triggering a debate on how the principle could be applied to the EU's environmental policy. As a follow-up to the White Paper, the Commission issued in January 2002 a proposal for a directive on environmental liability. The directive was approved by Parliament and Council in February 2004 after a conciliation committee ironed out the persisting disagreements between the two EU lawmaking institutions.

The directive aims to prevent and remedy environmental damage defined as damage to protected species and natural habitat. It does not require polluters to repair economic loss or damage done to private property. Following heated debates, marine pollution incidents and nuclear damage were excluded from the scope of the directive.

Here are the main elements of the directive as it stands after the compromise struck in the conciliation committee:

• Compulsory insurances or other financial security schemes : This was the main point of contention Parliament and Council had to agree upon. The compromise states that companies would subscribe to financial security schemes only on a voluntary basis. The Commission will issue a report on the possible introduction of mandatory financial security schemes six years after the entry into force of the directive. It could then submit a proposal on a harmonised system of financial security which would set a ceiling for compensation and exclude low risk activities. In the meantime, Member States are required to encourage insurance companies to develop such security instruments and ask operators to use them when deemed necessary.
• Remedies : Polluters should bear the cost of prevention and clean-up as a general rule. However, state authorities may cover those costs but only as a means of last resort.
• Maritime claims : Polluters's liability is limited by international maritime conventions (the  Convention on Limitation of Liability for Maritime Claims (LLMC)-1976 , and the Strasbourg Convention on Liability in Inland Navigation (CLNI)-1988). This limitation will be reviewed ten years after the entry into force of the directive in a Commission report.
• Reports and review : Under the agreement between Parliament and Council, the Commission report on compulsory insurance schemes will also examine the relationship between shipowner's liability and oil receivers' contributions.

Other features of the directive include:

• Civil society participation : NGOs will be given the opportunity to contribute to the implementation of the directive into national law. Individuals and associations affected or likely to be affected by the damage may also ask competent authorities to take action.
• Member States : Are entitled to take tougher measures at national level. In cases where damage is caused by more than one operator, they can split the costs according to their own set of rules and charge both the users and the producers of the incriminated product.
• Cross-border co-operation : Member States are required to co-operate on prevention and clean-up mainly through exchange of information. This also includes the possibility of recovering costs incurred by damage which has originated in another Member State.