The Environmental Liability Directive — Extending Nature Protection in Europe

Abstract

With regard to nature protection through environmental liability, recent developments in Europe are most interesting. After the EC had already established a coherent species and habitat protection regime with the Birds Directive and the Habitats Directive in 1979/1992 – which alone is remarkable because it covers areas of protection not only within national borders but throughout Europe – it introduced the Environmental Liability Directive (ELD) in 2004. The ELD aims at nature protection – in addition to the protection of water and land – by requiring potential polluters to avoid pollution, or to remediate the affected area in case of damage. One interesting point about the Directive is the fact that it ties in with the existing nature protection regime by making a reference to the Birds Directive and the Habitats Directive. This link between existing nature protection regulations and additional liability provisions is notable in various respects. First, more than a decade after the introduction of a nature protection regime an additional regime is established in Europe to make the existing species and habitat protection more effective. Secondly, the environmental liability regime – as will be shown in this contribution – extends the scope of existing nature protection in Europe. Thus, we are witnessing an interesting way to extend nature protection through environmental liability regulations. The issue is crucial not only for Member States – regarding the design of the provisions which have to be adopted to implement the ELD – but also for operators, who face a potential liability.