As the deadline for transposition closed on 30 April 2007, Italy, Lithuania and Latvia were the only member states to have transposed the Environmental Liability Directive into national law. The Commission may consider legal action against the remaining countries.
The Environmental Liability Directive is designed to prevent significant environmental damage and to address the question of payment and responsibility in the event of serious industrial accident. Adopted in April 2004, the Directive states that businesses must be held financially and legally liable for significant damage to land, water, species and natural habitats.
Because of opposition from a number of national governments and industry representatives during the negotiations of the directive, the initial proposal by the Commission had to be “watered down” in order for EU member states to agree to a compromise. In addition, member states were given significant room to interpret and implement the provisions of the directive.
Despite the compromises found in 2004, national transposition of the directive is progressing slowly. Governments claim that they are encountering legal uncertainities, for example, with respect to determining what precisely constitutes “significant damage” to habitats, and with respect to determining the precise conditions under which certain operators might be exempted from liability.
While NGOs have criticised the directive for being too limited in scope, industry representatives have expressed concern about increased implementation costs and negative effects on competitiveness. In addition, some observers believe there is too much overlap with existing legislation and that this will lead to uneven implementation, with laws varying in strictness from one country to the next.
The Commission, however, has stated that implementation “will reduce the possibilities for polluters to take advantage of differences among member states’ approaches to avoid liability”.