Remedying Of Environmental Damage Research Articles

The legal framework of the European Union in the field of combating environmental crimes

The article focuses on the activities of the European Union regarding the development of an effective legal framework for combating environmental crimes considering modern realities. It is noted that the existing norms on combating environmental crime in the EU are based on the provisions of the Treaty on the Functioning of the EU which sets the competence of the EU to define criminal offenses and sanctions in the spheres of EU policy to which harmonization measures apply (Article 83(2)). Attention is paid to the provisions of the following directives: Directive of the European Parliament and of the Council on the protection of the environment through criminal law and replacing Directive 2008/99/EC, which supplemented the list of illegal acts with new categories of crimes, established a deterrent level of sanctions, which ensures a more consistent application of conditions for enterprises in the EU; Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, which sets rules based on the «polluter pays» principle and related directives 2000/60/EC, 2008/56/EC, 2009/147/EC and 92/43/EEC. It is noted that the EU constantly works on improving the provisions of the acts adopted by it in the specified area, as evidenced by the directives, on the basis of which changes and amendments were made to the above-mentioned directives, regarding safety issues, waste management, simplification of reporting obligations in the field of environmental legislation (Directives 2006/21/EC, 2009/31/EC, 2013/30/EC, Regulation (EC) 2019/101).
 Attention is focused on acts related to the protection of certain objects, including: 1) acts aimed at combating pollution from ships: Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties, including criminal penalties, for pollution offence (as amended), Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution; 2) acts on combating trade in wild animals: Regulation (EC) No 338/97 (as amended), Commission regulation (EC) No 865/2006 (as amended), Commission Implementing Regulation (EU) No 792/2012 97 (as amended), Revision of the EU action plan against wildlife trafficking of 2022.
 It is noted that EU legislation is based on international universal acts adopted within the UN in the relevant field (International Convention for the Prevention of Pollution from Ships (MARPOL) of 1973, United Nations Convention on the Law of the Sea (UNCLOS) of 1982, Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) of 1975), which simplifies law enforcement and the introduction of measures to combat environmental crime.
 The importance of strategic acts adopted by the EU, including the Agenda and Action Plan on Drugs 2021–2025 and the Biodiversity strategy for 2030 is emphasized. Relevant conclusions have been drawn.

The problem of assessing the economic consequences from chemical pollution of surface water

Purpose. Analysis of domestic and foreign experience in solving the problem of chemical pollution of surface waters and improving the existing "Methodology for calculating the amount of compensation for damages caused to the state as a result of violations of legislation on protection and rational use of water resources." Methods. Information analysis, theoretical and calculation, systems analysis. Results. In European countries, the assessment of the economic consequences of chemical pollution of surface waters is based on the provisions of Directive 2004/35 / EC "On environmental liability with regard to the prevention and remedying of environmental damage". The implementation of this Directive is carried out by creating a system of environmental liability based on the "polluter pays" principle not only for non-compliance with the limit of discharge of pollutants into water bodies, but also for violation of the properties and nature of aquatic ecosystems and their restoration. It is established that the consequences of not all forms of environmental damage can be eliminated by using the mechanism of environmental responsibility. For this mechanism to be effective, one or more sources of pollution must be identified, the damage must be specific and calculable, and a causal link must be found between the damage and one or more identified sources of pollution. In addition, liability is not an appropriate tool for large-scale, diffuse pollution, when it is impossible to establish a link between negative environmental impacts and the actions or inaction of certain individuals. Based on the analysis of national regulations and methodological approaches to assessing the economic consequences of chemical pollution of surface waters in European and other foreign countries, an algorithm is proposed to take into account the levels of acute lethal toxicity of return waters. Conclusions.. The algorithm for assessing the environmental impact of chemical pollution of surface waters must take into account the provisions of Article 16 of WFD 2000/60 / EC "Strategies against water pollution", in particular in paragraph 1.2.6 of Annex V "Surface water status" emphasizes " obtain data on the acute and chronic effects of chemical pollution of surface waters on the representatives of the "basic set of taxa" - algae, crustaceans and fish.

An Environmental Risk Assessment of Filling Stations Using the Principles of Security Management. A Case Study in the Slovak Republic

The issue of environmental risk assessment currently deserves great attention. In order to protect the environment, maintain healthy living conditions, and prevent environmental damage, the member states of the European Union have adopted a Directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage. The directive classifies two types of operators with different liability regimes for environmental damage, namely, the regime with no-fault (strict) liability and liability for fault. With the adoption of the directive, among experts, operators and the general public have posed questions about how to assess the risk of environmental damage. At present, there is still no uniform procedure for assessing environmental risks, which would create a comprehensive methodological framework for assessment for this type of risk. Due to the non-existent risk assessment methodology for operators with strict liability regimes and the lack of a systematic search for risk sources, a risk assessment procedure is proposed that provides guidance in a sequence of several steps on how to implement the obligations arising from the adopted Environmental Liability Directive. The proposed procedure was verified on a specific operator with a strict liability regime. The environmental risk analysis performed through the proposed procedure provided information on possible operational problems and verified its applicability. Last but not least, the use of the proposed procedure makes it possible to identify serious sources of risk and to establish necessary preventive measures to prevent the occurrence of environmental damage.

Greece: Implementation of Environmental Liability Directive: Actors & Procedure

In Greece, the Environmental Liability Directive (ELD) provisions have not yet received special elaboration because of how misunderstood its operation within the modern administrative mechanism is, and the fact that many stakeholders may even be unaware of its existence. However, Presidential Decree (PD) 148/2009 transposing the directive into the Greek legislation remains the main legislative instrument, which establishes an environmental liability regime based on the polluter pays principle, focused on the prevention and remediation of environmental damage. Active citizens can play a very important role in the successful implementation of the ELD directive. But, as immediate public participation and informed decision-making is not always possible at an individual level, environmental organizations contribute to raising awareness, informing, and activating society to onset of the ELD procedure. The Greek Ombudsman can also make a unique and crucial contribution in ensuring the implementation of the environmental liability legislation. The power of environmental transparency and the implementation of the Aarhus Convention principles will help implement the ELD regime. Up-to-date, accurate and easyto- find environmental information empowers public and key stakeholders to make informed decisions that impact the environment. The aim of this article is to share the experience gained in the application of ELD and to contribute to a better understanding of the ELD key terms, and to improving the effectiveness of its implementation. Environment, liability, Ombudsman, operator, environmental damage, remediation, compliance, authorities, transparency, prevention

Development of risk insurance instruments for agricultural land-use management

The research paper highlights how the problem of finding instruments of financial and economic support for enterprises in the agricultural sector of economy is addressed and, above all, for business entities in crop production. Given the imperfection of the legal and regulatory framework for agri-environmental safety and economic crisis in Ukraine, there is a need for further instruments, ensuring a balanced development of agricultural land-use management. The most appropriate solution to the above problems is an approach that can provide not only financial support to producers of agricultural products, but also reduce the likelihood of adverse effects or environmental situations with negative economic consequences. The increasing degradation processes in the agricultural sector are the source of environmental threats in the crop production subsector, which require the development of an appropriate strategy for agricultural production based on the needs of all subsystems in the agricultural sector. In order to find solutions to environmental and economic contradictions, it is important to develop a business strategy which includes introducing a set of instruments for enhancing the effective functioning of ecological and economic tools and achieving a balanced level of land-use management. In this regard, risk insurance of agricultural land-use management is an important instrument. Its purpose, along with reducing the economic burden on enterprises, is to reduce the level of threats and mitigate the negative effects of land use.The Directive 2004/35/CE of the European Parliament and of the Council “On environmental liability with regard to the prevention and remedying of environmental damage” serves as an international legal basis for performing the above-mentioned tasks in Ukraine on its way to Europe. Its guiding principle is to take efforts in order to implement measures aimed at preventing negative impact from worsening of environmental safety. However, introducing insurance instrument into practice requires further research of theoretical and methodological aspects of such activities.The key component of such activities is developing a systematic list of risks accompanying economic activities in agricultural land use.

Environmental Liability Directive: Problems and possible amendments

The European Community (now European Union) adopted in April 2004 Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage. The purpose of the Directive is to establish a common legal framework of environmental liability based on the ‘polluter-pays’ principle within the EU, to prevent and remedy environmental damage. Although the environmental damage could affect various countries and international society cooperates to protect global environment such as climate change or marine pollution, there is no binding international treaty which regulates liability for environmental (per se) damages. Even the International Law Commission could adopt the Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities in 2006 as a non-binding principle. However, recently the EU involves the neighbouring countries for protection of marine environment based on the Marine Strategy Framework Directive and the influence of the EU law is spreading out. This means, the EU’s Environmental Liability Directive could become a model for an international treaty on universal liability regime for environmental damage.

The Remediation of Contaminated Sites and the Problem of Assessing the Liability of the Innocent Landowner: A Comparative Law Perspective

Abstract: On 4 March 2015, the Court of Justice of the European Union (CJEU or Court) issued a preliminary ruling on the application of the Environmental Liability Directive (Directive 2004/35/EC; ELD). The ELD established an administrative law regime aimed at the prevention and remediation of environmental damage, including land (soil) damage. Case C-534/18 concerns soil pollution. The CJEU was asked whether the ELD permits Member States to order the owner of a polluted site to fund or to conduct safety and decontamination measures on that site even if they did not cause the pollution. This question is relevant in a comparative law perspective because Member States may impose more stringent provisions in relation to the prevention and remedying of environmental damage under the ELD, including the identification of additional activities subject to the prevention and remediation requirements of the Directive and the identification of additional responsible parties

Overview of the implementation of the directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage at European level

On 21 April 2004, the European Parliament and the Council of the EU finally succeeded in adopting an Environmental Liability Directive (Directive 2004/35/EC), which has the overall ambitious objective to establish a common European framework of environmental liability for damage to air, water, land, protected species, and natural resources. However, the efficient implementation of this sui generis legal framework regarding prevention and remediation of the environmental damage has been proved really problematic at the European level due to legal discrepancies and technical deficiencies. Eleven years after the adoption of the ELD particular interpretation issues concerning the determination of the responsible operator, the application of the optional provision of the ELD, the extent of the exceptions, the financial security, and the role of the competent authorities remain unanswered. The aim of this paper is to analyze the barriers to building up a coherent and harmonized liability system without the conceptual fragmentation of the past as well to present comparatively the main procedural and substantive variations among Member States stemming from the national transposition and application of the ELD.

Blue Jeans, Chewing Gum and Climate Change Litigation: American Exports to Europe

This paper analyses how American-style climate change litigation might be adopted by the European Union ('EU') and projects potential methods by which the EU might employ the US model, if it indeed chooses to take the climate change battle to the courts. By synthesising existing US case law in the environment and climate change fields, the paper roughly defines the 'American model' of climate change litigation as parens patriae actions, oftentimes based in the tort of public nuisance, brought by states and other sovereign entities against polluter-defendants. The structural differences between the common law United States and the predominantly civil law European Union are substantial, and the EU has traditionally been averse to enter too far into the American mass torts arena. Accordingly, Europeans have not yet undertaken these types of lawsuits.This paper identifies and examines several realistic options for Europe's possible espousal of the American climate change litigation model through EU law and national law of individual Member States. Although the comparison is admittedly imperfect, I conclude that by drawing on the blueprint of its American counterparts, the EU could viably use Directive 2004/35/EC (environmental liability with regard to the prevention and remedying of environmental damage and the 'polluter pays' principle) and Directive 2003/87/EC (establishing a scheme for greenhouse gas emission allowance trading) in a parens patriae-like manner to hold defendants liable for damages caused by climate change. Additionally with case studies focusing on France, Germany and the United Kingdom, national law alternatives exist for individual Member States, as well as regional and local governments, to take action on behalf of their citizens for injuries resulting from climate change, just like sovereign bodies in the United States have done.

Environmental Liability in European Private Law

The paper explores environmental liability in European law. One focus is on the European directive on liability with regard to the prevention and remedying of environmental damage of 21 April 2004, another on the legal systems of the Member States. The paper covers compensation for harm caused to the environment as well as liability for harm suffered by individuals from their exposure to toxic substances in their environments.

Request from the European Commission related to the safeguard clause invoked by Hungary on maize MON810 according to Article 23 of Directive 2001/18/EC - Scientific opinion of the Panel on Genetically Modified Organisms.

Request from the European Commission related to the safeguard clause invoked by Hungary on maize MON810 according to Article 23 of Directive 2001/18/EC - Scientific opinion of the Panel on Genetically Modified Organisms.

Environmental Liability in a Federal System: A Law and Economics Analysis

Kristel De Smedt defended her PhD research on the harmonisation of environmental liability rules in a federal system at the Law Faculty of Maastricht University on 19 December 2007. The promotor of this research was Prof. dr. Michael Faure (Maastricht University). The article below summarises the main results of this research. The PhD research examines the harmonisation of environmental liability rules in a federal system from a law and economics perspective. Public interest and private interest theories are used to examine at which level environmental liability rules best can be decided in a federal system. Throughout the book, soil pollution is used as a case-study. The research was induced by the controversial harmonisation of environmental liability rules in the European Union by means of Directive 2004/35/CE on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage (ELD). The research tries to unravel the decision–making process behind the ELD, and the reasons and consequences of harmonisation. Kristel De Smedt examines whether the harmonisation of environmental liability rules in the European Union corresponds with the economic theory on federalism and, if not, how harmonisation of environmental liability rules in the European Union can be explained. She concludes that the shift of environmental liability rules to the European level was inefficient and does not correspond with the economic criteria for centralisation. Moreover, the content of the Directive itself shows inefficiencies. At the same time, the analysis makes clear that the existence and the content of the Environmental Liability Directive largely can be explained by private interest distortions.

Liability Directive - a Useful Tool for Nature Protection?

AbstractThree years ago the Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage entered into force. Dividing environmental damage into three different categories (biodiversity, water and soil), the Directive's concept is based on a mixed liability system following the US-American example while stressing the polluter-pays-principle. Member States have to incorporate the Directive's provisions into national law by 30 April 2007. Yet the efficiency of the measures is still doubtful. The following article illustrates the Directive's provisions and highlights its problems, particularly those resulting from exemptions, concluding that further instruments are necessary in order to achieve comprehensive nature protection.

Financial Guarantees in the Environmental Liability Directive: Next Time Better

The European Directive 2004/35/CE on environmental liability with regard to prevention and remedying of environmental damage contains two provisions on financial assurances. Article 8, 2 provides that the competent authority shall recover, inter alia, via security over property or other appropriate guarantees, from the operator who has caused the damage or the imminent threat of damage, the costs it has incurred. Article 14 mainly requires the Member States to take measures to encourage the development of financial security instruments and markets by the appropriate economic and financial operators, including financial mechanisms in case of insolvency, with the aim of enabling operators to use financial guarantees to cover their responsibilities under the Directive. It also opens up the possibility for a Commission proposal with respect to a harmonised system of mandatory financial security. These provisions are generally described as containing a rejection of the idea of compulsory financial guarantees, more particularly, compulsory insurance. This contribution questions and rejects this interpretation.First the historic background and the main provisions of the directive are briefly described. Compared to other legislative instruments on environmental liability, the ambitions of the provisions of the Directive on financial assurances appear modest.Before analysing the provisions on financial assurances in detail, the article points to the fact that a systematic and teleological interpretation is predominant in the case law of the ECJ and that this method of interpretation is also relevant with respect to the Directive on environmental liability. Next, the legislative history of the provisions on financial assurances is examined, not so much to find authoritative statements on the intent of the legislator, as to understand the evolution of the text and of the policy objectives of its drafters. It is concluded that the Directive, while clearly not imposing compulsory insurance, necessarily requires Member States to set up a system of financial guarantees that effectively enables the competent authority to recover from a defaulting operator the costs it has made in carrying out ex officio measures.It appears that the financial guarantees and the liabilities they have to cover referred to in Art. 8 and in Art. 14 are of a similar nature. There thus is an apparent contradiction between the two provisions. This contradiction can only be overcome if the provisions are explained as each addressing a different aspect of the issue of financial assurances. In this interpretation, Art. 8 addresses the issue of financial assurances from the viewpoint of the protection of public interests and protects the competent authority against insolvency of the operator; Art. 14, 1 on the other hand, requires measures that encourage the development of financial guarantees in order to allow the operators to protect themselves against liability. Read in this manner, the Directive is internally consistent and adopts a two-pronged approach towards the issue of financial assurances.The third part of the article deals with the implementation of the financial assurance provisions of the Directive. With respect to Art. 8, 2, the main question is to determine when guarantees are to be considered "appropriate’’. One regrets that the Directive does not give more indications on this point. Article 8, 2 is only a weak legislative answer to the problem of guaranteeing recovery of expenses made by public authorities. There are various ways of implementing Art. 8, 2. Rationally speaking, guarantees which are only put in place after an incident causing environmental damage has actually occurred, cannot

A Progressive Interpretation of the Environmental Liability Directive

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.

Subsidiarity – A Conventional Industry Defence. Is the Directive on Environmental Liability with Regard to Prevention and Remedying of Environmental Damage Justified under the Subsidiarity Princ

Summary: Is the ``Directive on Environmental Liability with regard to prevention and remedying of environmental damage'' justified under the subsidiarity principle? This article examines the pros and cons of arguments submitted by recognised lawyers, non-governmental organisations and industry on the one hand to show whether the agreed Directive complies with the principle of subsidiarity as set out in the Treaty establishing the European Community (ECT) but on the other that the Community institutions have failed in their duty to adequately observe the application of the subsidiarity principle. The author draws two conclusions: the subsidiarity principle remains a ``dynamic concept'' and the Commission, Parliament and Council have collectively failed to acquit themselves of their duty to justify the Directive.