Directive 2004/35 / EC of the European Parliament and of the Council
of 21 April 2004
on environmental liability for the prevention and remediation of environmental damage
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Taking into consideration:
Having regard to the Treaty establishing the European Community, and in particular Article 175 (1) thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Economic and Social Committee (2),
after consulting the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty (3), in the light of the joint text approved by the Conciliation Committee on 10 March 2004,
Considering the following:
(1) Today in the Community there are numerous sites that have been polluted, which poses serious health risks, while at the same time in recent decades there has been a dramatic acceleration of biodiversity loss. Any inaction in this case could result in the escalation of pollution and even greater loss of biodiversity in the future. The prevention and remediation, as far as possible, of environmental damage shall contribute to the implementation of the objectives and principles of Community environmental policy as set out in the Treaty. Local conditions should be taken into account when deciding how to repair the damage.
(2) The prevention and remediation of environmental damage should be achieved through the promotion of the “polluter pays” principle, as set out in the Treaty and in accordance with the principle of sustainable development. The fundamental principle of this Directive should therefore be that the operator whose activity caused the environmental damage or imminent risk of such damage is financially responsible, so as to motivate operators to take action and develop practices aimed at minimizing the risks of environmental damage in order to reduce their exposure to financial liability.
(3) Given that the objective of this Directive, namely to create a common framework for the prevention and remediation of environmental damage at a reasonable cost to society, cannot be sufficiently achieved by the Member States and can therefore be better achieved in Community level due to the dimensions of this Directive and its implications for other Community legislation, and in particular Council Directive 79/409 / EEC of 2 April 1979 on the conservation of wild birds (4), Directive 92/43 / EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (5) and Directive 2000/60 / EC of the European Parliament and of the Council of 23 October 2000 establishing a framework Community action in the field of water policy (6), the Community may take measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
(4) Environmental damage also includes damage caused by airborne elements, if the damage concerns water, soil or protected species or natural habitats.
(5) The concepts that are crucial for the correct interpretation and application of the framework provided for in this Directive should be defined, in particular as regards the definition of environmental damage. Where the concept is derived from another relevant Community legislation, the same definition should be used in order to use common criteria and to promote their uniform application.
(6) Protected species and natural habitats could also be defined with reference to species and habitats protected in accordance with national nature protection legislation. However, special situations should be taken into account for which Community or national legislation allows certain derogations from the level of protection provided for the environment.
(7) For the purposes of soil damage assessment, as defined in this Directive, it is desirable to use risk assessment procedures so that it can be weighed to what extent human health is likely to be adversely affected.
(8) This Directive should apply, as far as environmental damage is concerned, to occupational activities which pose a risk to human health or the environment. These activities should be defined, in principle, with reference to the relevant Community legislation, which lays down regulatory requirements in relation to certain activities or practices that are considered to pose a potential or immediate risk.