The New European Union Directive on Environmental Liability

Abstract

The New EU Directive on Environmental Liability provides for the system of liability for damage to the environment provoked by human activity. The Directive further provides for direct application of polluter-pays principles, the concept of environmental damage and a variety of preventive and remedial actions. The underlying principle of the Directive is the establishment of financial liability of the operators whose actions provoke environmental damage or the danger of occurrence of the environmental damage, all with the aim to stimulate such operators to adopt appropriate measures and procedures to diminish of environmental risks and therefore decrease their disposure to the environmental liability. Directive is applicable to the operators of the ?regulated activities?, which includes the majority of industries. Directive is relating only to the future environmental damages occurred after its entry in force. Directive adopts strict liability for the operators of the activities dangerous to the environment applicable to any and all environmental damage, whereas for the operators of all other activities the fault-based liability applies and only in respect to the environmental damage of the ecosystem. Operators are not liable for damage provoked by third party, damage occurred regardless of the implementation of the appropriate protection procedures or damage in case of a force majeure event. Also, operators can waive responsibility invoking the so-called ?state of art defense?, i.e. arguing that the harmful action was considered environmental friendly by the time of its occurrence. Another waiver from the responsibility, the so-called permit defense is possible in case whereof environmental damage is provoked by the action which was made in accordance with the issued permit/state authorization. Directive obliges the operators to inform relevant authorities of environmental damage risks which occur due to the operators? activities, as well as to undertake appropriate measures of control, limitation, security, removal of harmful effects and risk/damage management. Directive defines the preventive measures as the measures instituted in response to an event, action or failure to act which created the threat of environmental damage, which measures aim to prevent or mitigate the consequences of such environmental damage. Directive further defines remedial measures as measures or combination of measures, including risk/damage management and provisional measures, with the aim to revoke, rehabilitate or replace damaged natural resources. Directive recommends to the Member States to encourage the operators to contract appropriate insurances and other financial cover from liability. Bearing in mind the development of environmental liability issue, it is uncertain whether and how will the insurance companies build new insurance policies in alternative to the classical insurance from civil responsibility which is only in small part applicable to the environmental damages. The same can be said for the financial market itself, knowing that the entire success of the Directive depends on the financial capacities of the operators to assume the liabilities introduced by the Directive. Pursuant to the Directive, companies shall have to bear themselves the risks of removal of consequences of environmental damage. We are of opinion that a respectable company cannot afford non-cooperation with the authorities, otherwise it risks refusal of work permits, investigations and inspections, refusal of state loans and other benefits. In the aim of prevention of environmental damage, the company management would need to develop internal rules and regulations on environmental protection and environmental policy of the company. Although we admit that Directive creates some preconditions for efficient and uniform implementation of the environmental protection and the achievement of sustainable development within the EU, we believe that Directive can help the prevention of environmental damage only in combination with corresponding fiscal and administrative privilege given to the companies willing to introduce and apply preventive environmental measures.