Scope and defences of the 2004 environmental liability directive: Who is liable for what?

Abstract

After a gestation period of almost 30 years, on 21 April 2004 the Environmental Liability Directive (ELD) was adopted. A comprehensive overview of the legislative history from the 2000 White Paper with links to the full text of all relevant documents can be found on the Commission’s Website. This paper mainly provides close reading of three provisions of the ELD, i.e. the key provisions creating liability for preventive and remedial measures as well as the Article on the recovery of the costs thereof. The notion of operator is also central to how wide the liability net of the ELD is but an in-depth analysis of this notion is outside the scope of this paper. What an operator will be liable for is examined in § III. In particular whether or not the ELD contains a dual system of liability; that is, first line obligations on operators to take preventive and/or remedial measures with no defences (§ III.1) and secondary liability with defences for the costs of such measures when carried out by public authorities (§ III.2). Before doing so, we will take a look at the other mechanisms with which the ELD restricts its scope of applicability, using more or less precise definitions, scope rules, defences and exemptions (§ II).