A Progressive Interpretation of the Environmental Liability Directive

Abstract

AbstractThis article focuses on the interpretation of Directive 2004/35 on the prevention and remedying of environmental damage (Environmental Liability Directive). It singles out eight core issues which are likely to become the subject of future litigation before the European Court of Justice. These are the Directive's scope, exceptions and defences, failures to implement associated Directives, biodiversity damage, orphan damage, prevention, remediation, and enforcement. The analysis is informed by the judicial activism employed by the Court in recent years. The Court's approach has safeguarded the effectiveness of environmental directives, and their compatibility with general principles of EC environmental law. It is argued that the Court will apply a similar teleological approach as regards the Environmental Liability Directive, which should bring about a more stringent regime than its wording at first glance might suggest.