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 has caused the environmental damage or the immediate 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 the creation of 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 to human health.
or the environment.
(9) This Directive should also apply, in respect of damage to protected species and habitats, to any professional activity other than that which has already been directly or indirectly referred to in Community law as having direct or potential risks to human health or the environment. In such cases, the operator should be liable under this Directive only if he acted intentionally or negligently.
(10) Account should be taken of the Euratom Treaty and related international conventions as well as of Community law which more fully and strictly regulates the operation of any of the activities falling within the scope of this Directive. This Directive, which does not provide for additional rules on the conflict of law in determining the powers of the competent authorities, shall apply without prejudice to the rules on the jurisdiction of the courts, as laid down, inter alia, in Regulation (EC) No 1234/2007. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (7). This Directive should not apply to activities the primary purpose of which is to serve national defense or international security.
(11) This Directive is intended to prevent and remedy environmental damage, and is without prejudice to traditional damages, which are granted in accordance with any relevant international civil liability agreement.
(12) Many Member States are party to international agreements governing civil liability in specific areas. These Member States should be able to remain parties to these agreements after the entry into force of this Directive, while the other Member States should not lose their right to participate in these agreements.
(13) Not all forms of environmental damage can be remedied through the liability mechanism. Effective use of this mechanism presupposes that there must be one or more contaminants that can be detected, the damage must be specific and quantifiable, and the causal link between the damage must be demonstrated and of the contaminants or contaminants detected. Consequently, liability is not the appropriate means of tackling widespread and pervasive pollution, as it is impossible to link negative environmental impacts to acts or omissions of specific individual actors.
(14) This Directive does not apply in cases of personal injury, damage to private property or any financial loss and does not affect any rights in respect of such damage.
(15) Given that the prevention and remediation of environmental damage is a task which is directly relevant to the implementation of the Community’s environmental policy, public authorities should ensure that the arrangements laid down in this Directive are properly implemented and enforced.
(16) The restoration of the environment should be carried out in an efficient manner, ensuring that the relevant restoration objectives are achieved. To this end, a common framework should be defined and its proper implementation monitored by the competent authority.
(17) Appropriate provisions should be laid down for situations involving a number of cases of environmental damage so that the competent authority is not in a position to ensure that all necessary remedial measures are taken at the same time. In this case, the competent authority should be able to decide which case of environmental damage should be remedied first.
(18) According to the “polluter pays” principle, any operator who causes environmental damage or an immediate risk of such damage should, in principle, bear the cost of the necessary preventive or remedial measures. In cases where the competent authority acts on its own or intervenes through third parties instead of the operator, this authority should ensure that the resulting costs are recovered by the operator. It is also appropriate for operators to ultimately bear the cost of the environmental damage assessment and, where appropriate, the assessment of the immediate risk of such damage.
(19) Member States may provide for the flat-rate calculation of administrative costs, law enforcement costs and other general costs to be recovered.
(20) The operator should not be required to bear the cost of prevention or remedial action carried out in accordance with this Directive, in cases where the specific damage or risk of such
damage is the result of events beyond the control of the operator. Member States may provide that operators who have not acted intentionally or negligently shall not bear the cost of remedial action in cases where the damage in question is the result of emissions or events for which an express authorization has been issued or for which it would be impossible to know the potentially catastrophic nature when the corresponding event or broadcast took place.
(21) The costs of taking precautionary measures should be borne by operators in cases where such measures should normally have been taken in order to comply with the laws, regulations and administrative provisions governing their activities or conditions of any permit or authorization.
(22) Member States may lay down national rules on the charging of costs in the event of fault. Member States may in particular take into account the specific case of product users, who may not be considered to be liable for environmental damage, under the same conditions as the producers of the products in question. In this case, the division of responsibility should be done in accordance with national law.
(23) The competent authorities should be able to recover the cost of the prevention or remedial measures from the operator within a reasonable time from the date on which those measures are completed.
(24) It is necessary to ensure effective means of enforcement and enforcement, while ensuring that the legitimate interests of the operators concerned and other stakeholders are properly safeguarded. The competent authorities should themselves carry out certain tasks which involve appropriate administrative discretion, and in particular the task of assessing the extent of the damage and determining the remedial measures to be taken.
(25) Persons affected or likely to be adversely affected by environmental damage should have the right to call on the competent authority to take action. However, environmental protection is a pervasive interest in the name of which individuals are not always mobilized or are unable to mobilize. Therefore, non-governmental organizations promoting environmental protection should also be able to make an appropriate contribution to the effective implementation of this Directive.
(26) The natural or legal persons concerned should have access to the procedures for reviewing the decisions, acts or omissions of the competent authority.
(27) Member States should take measures to encourage the use by operators of any appropriate insurance or other forms of financial security and the development of financial security instruments and markets to effectively meet the financial obligations under this Directive.
(28) In cases where environmental damage affects or is likely to affect more than one Member State, those Member States should cooperate to ensure appropriate and effective action to prevent or remedy the environmental damage. Member States may seek to recover the costs of prevention or remedial action.
(29) This Directive should not prevent Member States from maintaining or adopting more stringent provisions on the prevention and remediation of environmental damage, nor should it prevent Member States from adopting appropriate measures in cases where double cost recovery could occur as a result of joint action by a competent authority under this Directive and by a person whose property has been affected by the environmental damage.
(30) Damage caused before the expiry date of the transposition into national law of this Directive should not be covered by its provisions.
(31) Member States should report to the Commission on the experience gained in implementing this Directive in order to enable the Commission to consider, taking into account the impact on sustainable development and future whether any revision of this Directive is necessary,
HAVE ADOPTED THIS INSTRUCTION:
Article 1
Object
The purpose of this Directive is to establish a framework for environmental liability based on the “polluter pays” principle, with a view to preventing and remedying environmental damage.
Article 2
Definitions
For the purposes of this Directive, the following definitions shall apply:
1. “Environmental damage” means
j: a) Damage to protected species and natural habitats, ie any damage that has significant adverse consequences for achieving or maintaining a favorable conservation status of these habitats or species. The significance of these consequences should be assessed in relation to the initial situation, taking into account the criteria set out in Annex I.
Damage to protected species and natural habitats shall not cover the adverse effects which have been identified in advance and which resulted from an operation of an operator which has been expressly authorized by the competent authorities in accordance with the provisions of Article 6 (3) and (4) or Article 16 of Directive 92/43 / EEC or Article 9 of Directive 79/409 / EEC or, in the case of habitats and species not covered by Community law, in accordance with equivalent provisions of national nature protection law.
(b) Water damage, ie any damage that adversely affects, to a significant degree, the ecological, chemical and / or quantitative status, and / or the ecological potential, as defined by Directive 2000/60 / EC, of those waters, with the exception of adverse to which Article 4 (7) of that Directive applies.
(c) Soil damage, ie any contamination of the soil which poses a serious risk of adverse effects on human health as a result of the direct or indirect introduction into the soil, soil or subsoil of substances, preparations, organisms or micro-organisms.
2. “Damage” means a measurable adverse change in a natural resource or a measurable degradation of a service linked to a natural resource that may occur directly or indirectly.
3. “Protected species and natural habitats” means: (a) The species referred to in Article 4 (2) of Directive 79/409 / EEC or listed in Annex I thereto or in Annexes II and IV to Directive 92/43 / EEC ,
(b) the habitats of the species referred to in Article 4 (2) of Directive 79/409 / EEC or listed in Annex I thereto or listed in Annex II to Directive 92/43 / EEC, and the natural habitats listed in Annex I to Directive 92/43 / EEC, as well as the breeding or resting places of the species listed in Annex IV to Directive 92/43 / EEC, and
(c) where a Member State so decides, any habitat or species not listed in the Annexes referred to above shall be designated by the Member State for purposes equivalent to those provided for in those two Directives.
4. “Conservation status” means: (a) In the case of a natural habitat, all the factors affecting it as well as its characteristics and which may affect its natural distribution, structure and functions in the long term; and the long-term survival of its characteristic species, as appropriate, in the European territory of the Member States to which the Treaty applies or in the territory of a Member State or in the natural range of that habitat.
The state of conservation of a natural habitat is considered “favorable” when:
– its natural range and the areas it covers within that range are constant or increasing,
– the specific structures and functions necessary for its long-term maintenance exist and are likely to continue to exist in the foreseeable future, and
the conservation status of its standard species is “favorable”, as defined in point (b).
(b) In the case of species, all the factors affecting those species which may in the long term affect the distribution and abundance of their populations, as the case may be, in the European territory of the Member States to which the Treaty applies or in the territory of a Member State or in the natural range of those species.
The conservation status of an species is considered “favorable” when:
– the data on the evolution of the population of this species show that it is maintained in the long run as a viable component of its natural habitats,
the natural range of the species is not diminishing nor is it projected to decrease in the foreseeable future, and
– there is, and probably will continue to be, a large enough habitat to sustain its populations in the long run.
5. “Waters” means all waters covered by Directive 2000/60 / EC.
6. “Operator” means any natural or legal person, whether governed by a private or public undertaking, which operates or controls a business or, where national law provides for, decisive financial responsibility for the technical operation; such activity, including the holder of the relevant license or authorization or any person registering or notifying such activity.
7. “Professional activity” means any activity carried on in the context of an economic activity or undertaking, whether or not it is a private
or public, for-profit or not.
8. “Emission” means the release into the environment of substances, preparations, organisms or micro-organisms as a result of human activity.
9. “imminent threat of damage” means the probable likelihood of environmental damage being caused in the near future.
10. “Precautionary measures” means any measures taken to deal with an event, act or omission which gives rise to an imminent threat of environmental damage, in order to prevent or minimize such damage.
11. “Remedial measures” means any action, or combination of actions, including mitigation or interim measures, to restore, repair or replace damaged natural resources and / or services, or to provide alternatives equivalent to those such resources or services as provided for in Annex II.
12. “Natural resources” means protected species and natural habitats, waters and soil.
13. “services” and “natural resource services” means the functions performed by a natural resource for the benefit of other natural resources or the public.
14. “Initial situation” means the situation which would have prevailed at the time of the damage to natural resources and services if the environmental damage had not occurred, calculated on the basis of the best available information.
15. “Recovery”, including “natural recovery”, means, in the case of water, protected species and natural habitats, the restoration of damaged natural resources and / or services that have been degraded to their original state and in the event of damage to the ground, the elimination of any significant hazard which has an adverse effect on human health.
16. “Cost” means all costs justified by the need to ensure the proper and effective implementation of this Directive, including costs for the assessment of environmental damage, the assessment of the impending threat of environmental damage, and the options for action; as well as administrative and court costs, law enforcement costs, data collection costs and other overheads, as well as monitoring and surveillance costs.
Article 3
Field of application
1. This Directive shall apply:
(a) the environmental damage caused by the pursuit of any of the occupational activities listed in Annex III and any imminent threat of such damage as a result of any of those activities;
(b) damage to protected species and natural habitats caused by the pursuit of any of the occupational activities other than those listed in Annex III, and any imminent threat of such damage as a result of any of these activities, where the operator has acted intentionally or unintentionally; negligence.
2. This Directive shall apply without prejudice to any stricter provisions of Community law governing the exercise of any of the activities falling within the scope of this Directive and without prejudice to Community legislation establishing rules on conflicts of jurisdiction.
3. Without prejudice to the relevant national law, this Directive does not confer on individuals the right to claim compensation for environmental damage or imminent threat of such damage.
Article 4
Exceptions
1. This Directive does not cover environmental damage or imminent threat of such damage due to:
(a) armed conflict, hostilities, civil war or insurgency;
b) a natural phenomenon of exceptional, unavoidable and invincible character.
2. This Directive shall not apply to environmental damage or to any imminent threat of such damage resulting from an event, liability or compensation for which falls within the scope of any of the international Conventions listed in Annex IV, including any amendments thereto. These contracts, which is valid in the Member State concerned.
3. This Directive is without prejudice to the right of the operator to limit its liability in accordance with the provisions of national law applicable to the 1976 Convention on Limitation of Liability for Maritime Claims (LLMC), including any future amendments. of the Convention, or the 1988 Strasbourg Convention on the Limitation of Liability for Inland Navigation (CLNI), including any future amendments to the Convention.
4. This Directive shall not apply to nuclear hazards or environmental damage or the imminent threat of environmental damage due to activities covered by the Treaty establishing the European Atomic Energy Community or caused by an event or activity, for which liability or indemnity falls within the scope of any of the international arrangements listed in Annex V, including any future amendments to those arrangements.
5. This Directive shall apply to environmental damage or imminent threat of such damage due to diffuse pollution only if the causal link between the damage and the activities of individual operators can be established.
6. This Directive shall not apply to activities the principal purpose of which is to serve national defense or international security or to activities solely for the purpose of protection against natural disasters.
Article 5
Preventive action
1. In cases where environmental damage has not yet occurred but there is an imminent threat of such damage, the operator shall take the necessary precautionary measures without delay.
2. Member States shall provide that, where necessary, and in any case where the imminent threat of environmental damage is not eliminated despite the precautionary measures taken by the operator, operators must inform the competent authority of all relevant aspects of the situation as soon as possible.
3. The competent authority may, at any time:
(a) require the operator to provide information on an imminent threat of environmental damage or where such an imminent threat is suspected;
(b) require the operator to take the necessary precautionary measures;
(c) give instructions to the operator, which must be complied with for the necessary precautionary measures to be taken; or
d) to take the necessary precautionary measures itself.
4. The competent authority shall require precautionary measures to be taken by the operator. If the operator does not comply with the obligations set out in paragraph 1 or paragraph 3 (b) or (c), or it is not possible to determine, or is not required by this Directive to bear the costs, the competent authority may takes these precautionary measures itself.
Article 6
Rehabilitation action
1. In cases where environmental damage has occurred, the operator shall inform the competent authority without delay of all relevant aspects of the situation and shall receive:
(a) all possible measures for the immediate control, reduction, removal or other management of such pollutants and / or any other harmful agents in order to limit or prevent further environmental damage and adverse effects on human health, or further degradation of services, and
(b) the necessary remedial measures in accordance with Article 7.
2. The competent authority may, at any time:
(a) require additional information from the operator about any damage caused;
(b) take all possible measures or require the operator to take such measures, or give relevant instructions to the operator, for the direct control, reduction, removal or other management of the specific pollutants and / or any other harmful substances in order to reduce or prevent further environmental damage and adverse effects on human health, or further degradation of services,
(c) require the operator to take the necessary remedial action;
(d) give instructions to the operator, which must be complied with for the necessary remedial action to be taken; or
e) to take the necessary remedial measures itself.
3. The competent authority shall require that remedial measures be taken by the operator. If the operator does not comply with the obligations set out in paragraph 1 or paragraph 2 (b), (c) or (d), or it is not possible to determine, or is not required by this Directive to bear the costs, the competent authority may take these remedial measures itself, as a last resort.
Article 7
Adopt remedial measures
1. Operators shall determine, in accordance with Annex II, possible remedial measures and submit them to the competent authority for approval, unless the competent authority has taken action in accordance with Article 6 (2) (e) and (3).
2. The competent authority shall decide which remedial measures are implemented in accordance with Annex II and in cooperation with the operator concerned, as appropriate.
3. If there are several cases of environmental damage resulting in the competent authority not being able to ensure that the necessary remedial measures are taken at the same time, the competent authority has the right to decide which case of environmental damage must be remedied first.
In taking the above decision, the competent authority shall consider, inter alia, the nature, extent and
the severity of the various cases of environmental damage and the possibilities for physical recovery. Risks to human health must also be taken into account.
4. The competent authority shall invite the persons referred to in Article 12 (1) and, in any case, the persons on whose land remedial action is to be taken, to submit their comments which it shall take into account.
Article 8
Prevention and rehabilitation costs
1. The operator shall bear the cost of prevention and remedial action undertaken in accordance with this Directive.
2. Without prejudice to paragraphs 3 and 4, the competent authority shall recover from the operator who caused the damage or imminent threat of damage, inter alia, through insurance coverage of the property or other appropriate guarantees, the costs incurred for the undertaking prevention or remedial action under this Directive.
However, the competent authority may decide not to recover the full cost if the costs required exceed the recoverable amount or if the operator cannot be identified.
3. The operator shall not be required to bear the cost of prevention or remedial action undertaken under this Directive if it can demonstrate that the environmental damage or imminent threat of such damage:
(a) caused by a third party, and occurred in spite of the existence of appropriate security measures, or
(b) is due to compliance with a mandatory order or mandate of a public authority other than an order or mandate due to a broadcast or event caused by the operator’s own activities.
In such cases, Member States shall take appropriate measures to enable the operator to recover the costs incurred.
4. Member States may allow the operator not to bear the costs of remedial action undertaken under this Directive if it proves that it did not act intentionally or negligently and that the environmental damage was caused by:
(a) a show or event expressly permitted by authorization, and in full compliance with its terms, granted by, or granted in accordance with, the applicable national laws and regulations applicable to the legislation of the Community; and referred to in Annex III, as applicable on the date of the broadcast or event,
(b) emission or activity or any use of a product in the context of an activity, provided that the operator proves that it was not probable that they would cause environmental damage in accordance with the scientific and technical knowledge available at the time the emission or activity took place.
5. Measures taken by the competent authority in accordance with Article 5 (3) and (4) and Article 6 (2) and (3) shall be without prejudice to the liability of the operator concerned pursuant to this Directive and without prejudice to Articles 87 and 88 of the Treaty.
Article 9
Charging of expenses in cases of accompanying fault
This Directive shall be without prejudice to any national provisions relating to the charging of costs in the event of fault, in particular as regards the division of liability between the producer and the user of a good.
Article 10
Deadline for cost recovery
The competent authority shall have the right to initiate cost recovery proceedings against the operator or, where appropriate, against a third party who caused the damage or imminent threat of damage in relation to measures taken in accordance with this Directive within five years from the date of when these measures were completed or the responsible operator was identified, or the third party, if that date is later.
Article 11
Competent authority
1. Member States shall designate the competent authority or authorities responsible for carrying out the tasks provided for in this Directive.
2. It is still up to the competent authority to identify the operator who caused the damage or the imminent threat of damage, to assess the severity of the damage and to determine what remedial action should be taken in Annex II. To this end, the competent authority shall have the right to require the operator concerned to carry out his own assessment and to provide any information and information which is necessary.
3. Member States shall ensure that the competent authority may authorize third parties or require third parties to take the necessary precautionary or remedial measures.
4. Any decision taken under this Directive imposing precautionary or remedial measures shall be duly substantiated. This decision shall be notified immediately to
the operator concerned, who shall be informed at the same time of the remedies available to him under the law in force in the Member State concerned and of the relevant time limits to which those remedies are subject.
Article 12
Application for action
1. Any natural or legal person who:
(a) is affected or may be affected by environmental damage; or
(b) has a sufficient interest in taking an environmental decision on the damage or, alternatively,
(c) claims that a right has been infringed where this is required by the administrative procedural law of a Member State;
has the right to submit to the competent authority any observations concerning cases of environmental damage or imminent threat of such damage which they have perceived and has the right to call on the competent authority to take action under this Directive.
The terms “sufficient interest” and “infringement” are defined by the Member States.
To that end, the interest of any non-governmental organization which promotes the protection of the environment and which meets the conditions laid down by national law shall be deemed to be sufficient for the purpose of subparagraph (b). Also, for the purpose of subparagraph (c), such organizations shall be deemed to have rights which may be infringed.
2. The request for action is accompanied by the relevant information and data that substantiate the allegations made for the respective environmental damage.
3. Where the request for action and the accompanying observations reasonably demonstrate that there is environmental damage, the competent authority shall examine such observations as well as the requests for action. In these circumstances, the competent authority shall give the operator concerned the opportunity to make known its views on the request for action and the accompanying comments.
4. The competent authority shall, as soon as possible and in any case in accordance with the relevant provisions of national law, inform the persons referred to in paragraph 1, who have submitted comments, of its decision to accept or reject the request for take action, and duly justify its decision.
5. Member States may decide not to apply paragraphs 1 and 4 in cases of imminent threat of injury.
Article 13
Appeal procedures
1. The persons referred to in Article 12 (1) shall have access to a court or other independent and non-discriminatory State body responsible for reviewing, both in procedure and in substance, the legality of its decisions, acts or omissions. competent authority under this Directive.
2. This Directive shall apply without prejudice to any provisions of national law governing access to justice and to those in which administrative proceedings are to be exhausted before an action may be brought before a court.
Article 14
Financial security
1. Member States shall take measures to encourage the development of financial security instruments and markets by appropriate economic and financial institutions, including financial institutions in the event of insolvency, with a view to enabling operators to use financial guarantees in order to their responsibilities under this Directive.
2. The Commission shall, before 30 April 2010, submit a report on the effectiveness of this Directive with regard to the effective restoration of environmental damage, on the availability of reasonable costs and on the terms of insurance and other forms of financial security for activities covered by Annex III. The report also addresses the following aspects of financial security: a step-by-step approach, a maximum amount of financial guarantee and the exclusion of low-risk activities. On the basis of this report, as well as an extended impact assessment, including a cost-benefit analysis, the Commission shall, if appropriate, submit proposals for a system of harmonized compulsory financial security.
Article 15
Cooperation between Member States
1. Where environmental damage affects or is likely to affect several Member States, those Member States shall cooperate, inter alia, through the appropriate exchange of information, to ensure that action is taken to prevent or, if necessary, remedy any such environmental damage.
2. In the event of environmental damage, the Member State in whose territory the damage occurred shall provide sufficient information to the potentially affected Member States.
3. Where a Member State finds damage within its borders which has not been caused within it, it may refer the matter to the
The Commission and any other Member State concerned; it may also make recommendations for preventive or remedial measures and seek, in accordance with this Directive, the recovery of costs incurred as a result of preventive or remedial measures.
Article 16
Relationship with national legislation
1. This Directive shall not prevent Member States from maintaining or introducing more stringent provisions on the prevention and remediation of environmental damage, including the identification of additional activities which may be subject to the prevention and remediation requirements of this Directive and the detection of additional managers.
2. This Directive shall not preclude the adoption by Member States of appropriate measures, such as the prohibition of double cost recovery, in cases where double compensation may arise as a result of joint action by a competent authority under this Directive. and on behalf of a person whose property was affected by environmental damage.
Article 17
Application time limits
This Directive shall not apply to:
– damage caused by an emission, event or accident that occurred before the date referred to in Article 19 (1),
– damage caused by an emission, event or accident occurring after the date referred to in Article 19 (1), provided that the damage is due to a specific activity which took place and ended before that date,
– to damage, if more than 30 years have passed since the emission, event or accident that caused the damage occurred.
Article 18
Reports and overview
1. Member States shall report to the Commission by 30 April 2013 at the latest on the experience gained in implementing this Directive. The reports shall include the information and particulars set out in Annex VI.
2. On this basis, the Commission shall submit a report to the European Parliament and the Council before 30 April 2014, which shall include any appropriate amendments.
3. The report referred to in paragraph 2 shall include an overview of:
a) of the application:
– Article 4 (2) and (4), in relation to the pollution exemption covered by the international regulations listed in Annexes IV and V, within the scope of this Directive, and
Article 4 (3) in relation to the right of the operator to limit its liability in accordance with the international conventions referred to in Article 4 (3).
The Commission shall take into account the experience gained in relevant international fora, such as the International Maritime Organization (IMO) and Euratom, and in the context of relevant international agreements, and the extent to which these arrangements have entered into force or and / or implemented by the Member States and / or have been amended to take account of all relevant environmental damage caused by these activities, the remedial action taken and the differences between the levels of liability in the Member States; also the relationship between the liability of shipowners and the contributions of oil recipients, taking due account of all relevant studies carried out by the International Fund for Compensation for Oil Pollution.
(b) the application of this Directive to environmental damage caused by genetically modified organisms (GMOs), in particular in the light of experience gained in relevant international forums and Conventions, such as the Convention on Biological Diversity and the Cartagena Protocol on Biosafety , as well as the results of any cases of environmental damage caused by GMOs,
(c) the application of this Directive in relation to protected species and natural habitats;
(d) the arrangements that may be selected for incorporation in Annexes III, IV and V.
Article 19
Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 April 2007 at the latest. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field governed by this Directive and the correlation table between the provisions of this Directive and the national provisions adopted.
Article 20
Entry into force
This Directive shall enter into force on the day of its publication in the Official Journal
dispute of the European Union.
Article 21
Receivers
This Directive is addressed to the Member States.
Done at Strasbourg, 21 April 2004.
For the European Parliament
The president
P. Cox
For the Council
The president
D. Roche
(1) OJ C 151 E, 25.6.2002, p. 132.
(2) OJ C 241, 7.10.2002, p. 162.
(3) Opinion of the European Parliament of 14 May 2003 (not yet published in the Official Journal), Council Common Position of 18 September 2003 (OJ C 277 E, 18.11.2003, p. 10) and Position of the European Parliament of 17 September 2003. December 2003 (not yet published in the Official Journal). European Parliament legislative resolution of 31 March 2004 and Council decision of 30 March 2004.
(4) OJ L 103, 25.4.1979, p. 807/2003 (OJ L 122, 16.5.2003, p. 36).
(5) OJ L 206, 22.7.1992, p. 7. Directive as last amended by Regulation (EC) No Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).
(6) OJ L 327, 22.12.2000, p. 2455/2001 / EC (OJ L 331, 15.12.2001, p. 1).
(7) OJ L 12, 16.1.2001, p. Commission Regulation (EC) No 1496/2002 (OJ L 225, 22.8.2002, p. 13).
ANNEX I
CRITERIA REFERRED TO IN ARTICLE 2, PARAGRAPH 1, POINT A)
The significance of any damage which has an adverse effect on the attainment or maintenance of a favorable conservation status of habitats or species must be assessed in relation to the conservation status at the time of the damage, the services provided and their capacity for natural regeneration. . Significantly adverse changes from the baseline should be determined on the basis of measurable data, such as:
– number of persons, their density or area covered,
– role of the individuals or the affected area in relation to the conservation of the species or habitat, rarity of the species or habitat (as estimated at local, regional and higher level, including Community),
– ability of the species to reproduce (according to the evolutionary tendencies of the species or population), its viability or the habitat’s capacity for natural regeneration (according to the evolutionary tendencies of the characteristic of the species or its populations),
– ability to recover quickly from the species or habitat after damage, without any intervention other than enhanced protection measures, in a situation which will lead, solely due to the evolution of the species or habitat, to a condition considered to be equivalent to or higher than the original.
Injury with a proven effect on human health must be considered significant.
The following losses should not be classified as significant:
– negative fluctuations lower than the natural fluctuations considered normal for the particular habitat or species,
– negative fluctuations due to natural causes or to intervention related to the normal management of the sites, as defined in the habitat registers or target documents or as previously carried out by the owners or operators,
damage to species or habitats which are certain to recover quickly and without intervention, either in the initial state or in a state which will lead, solely due to the evolution of the species or habitat, to a state considered to be equivalent to or greater than original.
ANNEX II
ENVIRONMENTAL DAMAGE REHABILITATION
This Annex establishes a common framework to be followed in order to select the most appropriate measures to ensure the remediation of environmental damage.
1. Damage restoration of waters or protected species or natural habitats
The restoration of environmental damage in terms of water or protected species or natural habitats, is achieved through the restoration of the environment to its original state through primary, complementary and compensatory restoration, where:
(a) “primary restoration” means any restoration measure resulting in the restoration of damaged natural resources and / or services to or to their original condition;
(b) “supplementary restoration” means any remedial action taken in relation to natural resources and / or services, to compensate for the fact that primary restoration does not result in the full restoration of damaged natural resources and / or services;
(c) “compensatory restoration” means any action taken to compensate for the temporary loss of natural resources and / or services during the period from the date of damage until the full effect of the primary restoration has been achieved;
d) “temporary losses” means the losses incurred
due to the fact that the damaged natural resources and / or services can not perform their ecological functions or provide services to other natural resources or to the public until the primary or complementary measures begin to take effect. They do not constitute financial compensation to the public.
If the primary restoration does not lead to the restoration of the environment to its original state, additional restoration is undertaken. In addition, compensatory compensation is undertaken to compensate for temporary losses.
Rehabilitation of environmental damage, whether in terms of damage to water or protected species or natural habitats, also means eliminating any significant risk of adverse effects on human health.
1.1. Objectives of rehabilitation
Aim of primary restoration
1.1.1. The purpose of primary restoration is to restore natural resources and / or services that have been damaged to or to their original condition.
Aim of complementary rehabilitation
1.1.2. If the damaged natural resources and / or services do not return to their original state, then additional restoration is attempted. The purpose of the supplementary restoration is to provide natural resources and / or services, possibly at a different location, similar in level to those that would have been provided if the damaged site had returned to its original condition. Where possible and appropriate, the different location should be geographically linked to the site affected, taking into account the interests of the affected population.
Objective of compensatory rehabilitation
1.1.3. Compensatory remediation is attempted to compensate for the temporary loss of natural resources and services until recovery is achieved. This compensation consists of additional improvements to protected habitats and species or water, either at the damaged site or at a different site. It does not include financial compensation to members of the public.
1.2. Identification of remedial measures
Identification of primary rehabilitation measures
1.2.1. The possibilities for immediate restoration of natural resources and services to their original state at a faster pace, or through physical recovery, are examined.
Identification of complementary and compensatory remedial measures
1.2.2. In determining the scale of complementary and compensatory remediation measures, the use of equivalence weighting approaches, by resource or by service, is first considered. In the context of these approaches, the possibility of actions providing natural resources and / or services of the same type, quality and quantity as the resources and services that have been damaged is first examined. If this is not possible, alternative natural resources and / or alternative services are provided. For example, the reduction in quality could be offset by an increase in the amount of remedial measures.
1.2.3. If it is not possible to use equivalence weighting by resource or by service as the first option, alternative valuation techniques are used. The competent authority may indicate the method, e.g. financial valuation in order to determine the scope of the necessary complementary and compensatory remedial measures. If the assessment of lost resources and / or services is possible but the assessment of natural resources and / or rehabilitation services can not be done within a reasonable time or at a reasonable cost, then the competent authority may select remedial measures at the cost of equivalent to the estimated economic value of the lost natural resources and / or services.
Complementary and compensatory remedial measures should be designed in such a way as to allow additional natural resources and / or services to express temporal preferences and the temporal characteristics of remedial measures. For example, the longer the time period until the return to the original state, the greater the amount of compensatory remedies to be taken (provided that the other data are the same).
1.3. Selection of recovery options
1.3.1. Reasonable recovery options should be evaluated according to the best available technologies, based on the following criteria:
– the impact of each option on public health and safety,
– the cost of implementing the option,
– the probability of success of each selection,
– the extent to which each option contributes to the prevention of further damage and the avoidance of collateral damage as a result of its implementation,
– the extent to which each option favors each component of the natural resource and / or service,
the extent to which each choice takes into account specific social, economic and cultural considerations
concerns and other factors related to the area,
– the time needed to make the restoration of environmental damage effective,
– the extent to which each option achieves the restoration of the location of the environmental damage,
the geographical relationship with the damaged site.
1.3.2. When assessing the various remediation options, primary remediation measures may be selected that do not lead to, or lead to, a slower recovery of water, protected species or natural habitats that have been damaged in their original state. This decision can only be taken if the natural resources and / or services lost at the original site, as a result of this decision, are offset by an increase in complementary or compensatory actions to provide a similar level of natural resources and / or services to the existing ones. . This will happen, for example, when equivalent natural resources and / or services can be provided elsewhere at a lower cost. These additional remedial measures shall be determined in accordance with the rules set out in Section 1.2.2.
1.3.3. Notwithstanding the rules of section 1.3.2., And in accordance with Article 7 (3), the competent authority shall decide that no further remedial action should be taken if:
(a) the remedial measures already taken shall ensure that there is no longer any significant risk of adverse effects on human health, water or protected species and natural habitats; and
(b) the cost of remedial measures to be taken to achieve the restoration of the original condition or the like would be disproportionate to the environmental benefits to be derived.
2. Restoration of soil pollution
The necessary measures shall be taken to ensure, at least, that the pollutants in question are removed, controlled, reduced or reduced so that the contaminated soil, taking into account its current use or approved future use at the time of the damage, is no longer poses a significant risk of adverse effects on human health. The presence of these hazards is assessed by risk assessment procedures that take into account the characteristics and function of the soil, the type and concentration of harmful substances, preparations, organisms or micro-organisms, the risk and the possibility of their spread. Use is determined by land use arrangements or other relevant arrangements that may have been in place at the time of the contamination.
If land use changes, all necessary measures shall be taken to prevent any risk of adverse effects on human health.
If there are no land use arrangements, or other relevant arrangements, the nature of the area in which the damage occurred determines the use of the area in question, taking into account its intended development.
The possibility of physical recovery is examined, ie an option that does not require immediate human intervention during the recovery process.
ANNEX III
ACTIVITIES REFERRED TO IN ARTICLE 3 (1)
Operation of installations subject to authorization in accordance with Council Directive 96/61 / EC of 24 September 1996 concerning integrated pollution prevention and control (1). This means all activities listed in Annex I to Directive 96/61 / EC, with the exception of installations or parts of installations used for research, development and testing of new products and processes.
2. Waste management procedures, including the collection, transport, recovery and disposal of waste and hazardous waste, including the supervision of such procedures as well as the subsequent maintenance of landfills, subject to authorization or registration in accordance with Council Directive 75/442 / EEC of 15 July 1975 on solid waste (2) and Council Directive 91/689 / EEC of 12 December 1991 on hazardous waste (3).
These procedures include, inter alia, the disposal of landfills in accordance with Council Directive 1999/31 / EC of 26 April 1999 on the landfill of waste (4) and the operation of incineration plants in accordance with Directive 2000 / 76 / EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste (5).
For the purposes of this Directive, Member States may decide that such activities shall not include the use for agricultural purposes of sewage sludge from municipal waste treatment plants which has been treated in accordance with an approved standard.
3. All discharges into inland surface waters, for which prior authorization is required in accordance
Council Directive 76/464 / EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (6).
4. All discharges of substances to groundwater for which prior authorization is required pursuant to Council Directive 80/68 / EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (7).
5. The discharge or discharge of pollutants into surface or groundwater, for which a permit, authorization or registration is required, in accordance with Directive 2000/60 / EC.
6. Pumping and retention of water subject to prior authorization, in accordance with Directive 2000/60 / EC.
7. Production, use, storage, treatment, burial, release into the environment and transport within the perimeter of the enterprise
(a) dangerous substances as defined in Article 2 (2) of Council Directive 67/548 / EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labeling of dangerous substances (8 ) ·
(b) dangerous preparations as defined in Article 2 (2) of Directive 1999/45 / EC of the European Parliament and of the Council of 31 May 1999 on the approximation of the laws, regulations and administrative provisions of the Member States relating to classification; packaging and labeling of dangerous preparations (9);
(c) plant protection products as defined in Article 2 (1) of Council Directive 91/414 / EEC of 15 July 1991 concerning the placing of plant protection products on the market (10);
(d) biocidal products as defined in Article 2 (1) (a) of Directive 98/8 / EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (11).
8. Transport by road, rail, inland water or air by dangerous or polluting goods, as defined in either Annex A to Council Directive 94/55 / EC of 21 November 1994 on the approximation of the laws of the Member States on the transport of dangerous goods by road (12) or in the Annex to Council Directive 96/49 / EC of 23 July 1996 on the approximation of the laws of the Member States relating to the transport of dangerous goods by rail (13) or in Directive 93 / 75 / EEC of 13 September 1993 on the minimum standards required for ships bound for or departing from Community ports carrying dangerous or polluting goods (14).
Operation of installations subject to authorization pursuant to Council Directive 84/360 / EEC of 28 June 1984 on the control of air pollution from industrial installations (15) with regard to the emission into air of any pollutants covered by the aforementioned directive.
10. Any restricted use, including the transport, of genetically modified micro-organisms as defined in Council Directive 90/219 / EEC of 23 April 1990 on the limited use of genetically modified micro-organisms (16).
11. Any deliberate release into the environment, transport and placing on the market of genetically modified organisms as defined in Directive 2001/18 / EC of the European Parliament and of the Council (17).
12. Cross-border shipment of waste within, to or outside the European Union, for which a permit is required or prohibited within the meaning of Regulation (EEC) No 2454/93 Council Regulation (EC) No 259/93 of 1 February 1993 on the monitoring and control of shipments of waste within the Community and on their entry and exit (18).
(1) OJ L 257, 10.10.1996, p. 26. Directive as last amended by Regulation (EC) No. 1882/2003.
(2) OJ L 194, 25.7.1975, p. 39. Directive last amended by Regulation (EC) No. 1882/2003.
(3) OJ L 377, 31.12.1991, p. 20. Directive as amended by Directive 94/31 / EC (OJ L 168, 2.7.1994, p. 28).
(4) OJ L 182, 16.7.1999, p. 1882/2003.
(5) OJ L 332, 28.12.2000, p. 91.
(6) OJ L 129, 18.5.1976, p. 23. Directive as last amended by Directive 2000/60 / EC.
(7) OJ L 20, 26.1.1980, p. 43. Directive as amended by Directive 91/692 / EEC (OJ L 377, 31.12.1991, p. 48).
(8) OJ L 196, 16.8.1967, p. 807/2003.
(9) OJ L 200, 30.7.1999, p. 1882/2003.
(10) OJ L 230, 19.8.1991, p. 806/2003 (OJ L 122, 6.5.2003, p. 1).
(11) OJ L 123, 24.4.1998, p. 1. Directive which amends
amended by Regulation (EC) No 1882/2003.
(12) OJ L 319, 12.12.1994, p. 7. Directive as last amended by Commission Directive 2003/28 / EC (OJ L 90, 8.4.2003, p. 45).
(13) OJ L 235, 17.9.1996, p. 25. Directive as last amended by Commission Directive 2003/29 / EC (OJ L 90, 8.4.2003, p. 47).
(14) OJ L 247, 5.10.1993, p. 19. Directive as last amended by Directive 2002/84 / EC (OJ L 324, 29.1.2002, p. 53).
(15) OJ L 188, 16.7.1984, p. 20. Directive as amended by Directive 91/692 / EEC (OJ L 377, 31.12.1991, p. 48).
(16) OJ L 117, 8.5.1990, p. 1882/2003.
(17) OJ L 106, 17.4.2001, p. 1830/2003 (OJ L 268, 18.10.2003, p. 24).
(18) OJ L 30, 6.2.1993, p. Commission Regulation (EC) No 2557/2001 (OJ L 349, 31.12.2001, p. 1).
ANNEX IV
INTERNATIONAL CONVENTIONS REFERRED TO IN ARTICLE 4 (2)
(a) International Convention on Civil Liability of 27 November 1992 for Damage from Oil Pollution;
(b) International Convention of 27 November 1992 establishing an International Fund for the Recovery of Damage from Oil Pollution;
(c) International Convention on Civil Liability of 23 March 2001 for Damage Caused by Tank Fuel Pollution;
(d) International Convention on Liability and Compensation for Damage Caused by the Carriage of Dangerous and Toxic Substances by Sea, 3 May 1996;
(e) Convention of 10 October 1989 on Liability for Damage Caused by the Carriage of Dangerous Goods by Road, Rail and Inland Waterway Vessels.
ANNEX V
INTERNATIONAL ARRANGEMENTS REFERRED TO IN ARTICLE 4 (4)
(a) Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy and Supplementary Brussels Convention of 31 January 1963;
b) Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Disasters;
(c) Convention of 12 September 1997 on Supplementary Compensation for Nuclear Disasters;
(d) Joint Protocol of 21 September 1988 on the implementation of the Vienna Convention and the Paris Convention;
e) Brussels Convention of 17 December 1971 on Civil Liability in the Field of Nuclear Transport.
ANNEX VI
INFORMATION AND INFORMATION REFERRED TO IN ARTICLE 18 (1)
The reports referred to in Article 18 (1) shall include a list of cases of environmental damage and cases of civil liability under this Directive, which shall be accompanied, as appropriate, by the following information and data:
1. Type of environmental damage, date on which the damage occurred and / or discovered and date on which proceedings were instituted under this Directive.
2. Classification code of the activity of the responsible person or entities (1).
3. Whether a court action procedure has been initiated either by the responsible parties or by legal entities (Specify the type of plaintiffs and the outcome of the procedure).
4. Result of the recovery process.
5. Date of completion of the procedure.
Member States may include in their reports any other information and data which they consider useful in order to enable the proper evaluation of the application of this Directive, for example:
1. Costs of remedial and preventive measures as defined in this Directive:
– which was paid directly by the responsible parties, when this information is available,
– which was subsequently recovered by the responsible parties,
– which has not been recovered by the responsible parties (the reasons for non-recovery should be clarified).
2. Results of the promotion and implementation of financial security instruments used in accordance with this Directive.
3. An estimate of the additional administrative costs incurred annually by the public administration for the establishment and operation of the administrative structures necessary for the implementation and enforcement of this Directive.
(1) The NACE Nomenclature Code (Council Regulation (EEC) No 3037/90 of 9 October 1990) may be used for the statistical nomenclature of economic activities in the European Community (OJ L 293, 24.10.1990, p. 1). )).
Declaration by the Commission on Article 14 (2) – Environmental Liability Directive
The Commission shall take into account Article 14 (2). In accordance with that Article, the Commission will submit a report, six years after the entry into force of the Directive, covering, inter alia, the provision of insurance
and other financial guarantees, at a reasonable cost and under reasonable conditions. The report will take into account in particular the development by market forces of appropriate financial guarantees in relation to the issues under consideration. At the same time, it will consider adopting a gradual approach depending on the type of damage and the nature of the risks. On the basis of this report, the Commission, if it deems it appropriate, may submit proposals as soon as possible. The Commission will carry out an extended impact assessment, which will also cover the relevant economic, social and environmental issues, in accordance with existing rules and, in particular, the Interinstitutional Agreement on Better Law-Making and its Communication on impact assessment [COM (2002) 276 final].
More information
See the following link for more information on the Directive.
https://bit.ly/3pTEb8p
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