Environmental Enforcement

The polluter-pays principle and environmental liability

Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage

It lays down rules based on the polluter-pays principle. This means that a company causing environmental damage is liable for it and must take the necessary preventive or remedial action and bear all the related costs.

KEY POINTS

The directive defines environmental damage as:

damage that significantly affects the environmental (ecological, chemical or quantitative) status of water resources, as defined in the EU Water Directive and the Marine Environment Strategy Directive
damage to land creating a significant risk to human health;
damage to protected species and natural habitats that adversely affects conservation as defined in the Directive on the conservation of wild birds and the Natural Habitats Directive.
The definition includes the discharge of pollutants into the air (as this affects ground or water conditions), inland surface water and groundwater, and any deliberate release into the environment of genetically modified organisms as defined by Directive 2001/18/EC.

Scope

There are 2 scenarios where liability occurs:

1.Environmental damage caused by any of the activities listed in Annex III of the directive, such as:

energy industries
production and processing of metals
mineral industries
chemical industries
waste management
large-scale pulp, paper and board production, textile dyeing and tanneries
large-scale meat, dairy and food production.

2.Environmental damage to protected species and natural habitats (or its imminent threat) caused by occupational activities other than those listed in Annex III, and if the company is at fault or negligent.

Exceptions

Exceptions include armed conflict, natural disaster, liability for types of environmental damage covered by international conventions (e.g. maritime pollution), and nuclear risks, which are covered by the Euratom Treaty.

Preventive and remedial actions

If there is an imminent threat of damage occurring, the company must, without delay, take the necessary preventive measures.
If damage has already occurred the company must immediately inform the authorities and take steps to manage the situation to prevent further environmental damage and threats to human health, and take appropriate remedial action.

The company must pay for preventiveactions and remedialactions , except in certain situations, e.g. if the damage was caused by a third party despite the appropriate safety measures, or resulted from compliance with an official instruction.

Implementation

A 2016 implementation report looked at the experience of implementing the directive between 2007 and 2013, including an evaluation carried out under REFIT, the European Commission Regulatory Fitness and Performance programme.
The report confirms that while the directive has not yet achieved its full potential, it has been effective in remedying environmental damage and incentivising prevention.

It has applied since 30 April 2004. EU countries had to incorporate it into national law by 30 April 2007.

DOCUMENTS

Directive 2004/35/EC 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 (OJ L 143, 30.4.2004, pp. 56-75)

Successive amendments to Directive 2004/35/EC have been incorporated into the basic text. This consolidated version is for information only

Report from the Commission to the Council and the European Parliament: Report from the Commission to the Council and the European Parliament under Article 18(2) of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (COM(2016) 204 final, 14.4.2016)

Commission Staff Working Document REFIT Evaluation of the Environmental Liability Directive Accompanying the document Report from the Commission to the European Parliament and to the Council pursuant to Article 18(2) of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (SWD(2016) 121 final,14.4.2016)

EU law against environmental crime

Directive 2008/99/EC – protecting the environment by means of criminal law

It defines a number of serious offences that harm the environment.
It requires EU countries to introduce effective and proportionate penalties constituting a deterrent for such offences, regardless of whether they are committed intentionally or through serious negligence.

KEY POINTS

Types of unlawful* behaviour harmful to human health or the environment that are subject to penalties include:

discharging, emitting or otherwise releasing dangerous materials into air, soil or water;
collecting, transporting, recovering or disposing of hazardous waste;
shipping noticeable quantities of waste;
operating an industrial plant that conducts dangerous activities or stores dangerous substances (e.g. factories producing paints or chemicals);
manufacturing, treating, storing, using, transporting, importing, exporting, or disposing of nuclear material and hazardous radioactive materials;
killing, possessing or trafficking in noticeable amounts of protected animal and plant species;
damaging protected habitats;
producing, trading in or using substances that deplete the ozone layer (e.g. chemicals in fire extinguishers or cleaning solvents).

Penalties:

EU countries must ensure that the offences or types of unlawful behaviour listed in Article 3 of the Directive are punishable by effective and proportionate criminal penalties constituting a deterrent and applicable to individuals.

EU countries must establish that legal persons* can be held liable for offences committed for their benefit by persons acting in a leading position based on a power of representation, on an authority to take decisions on behalf of the legal person or to exercise control within the legal person. Legal persons are also held liable if the lack of supervision or control by such a person in a leading position has made it possible to commit the offence.

Liability of legal persons does not exclude criminal proceedings against natural persons who are perpetrators, inciters or accessories in the offence referred to in the Directive. Depending on the legal system applicable in the EU country concerned, the liability of legal persons may be criminal or non-criminal.
This directive builds upon Directive 2004/35/EC, which lays down rules on environmental liability as regards preventing and remedying environmental damage.

EU countries are responsible for prosecuting environmental crime. Because legal systems differ among EU countries, criminals can exploit any lack of cooperation and coordination between national authorities. Networks of environmental professionals, such as the EU Network for the Implementation and Enforcement of Environmental Law (IMPEL), the EU Forum of Judges for the Environment (EUFJE) and the European Network of Prosecutors for the Environment (ENPE), play an important role in sharing best practice and developing methodologies for effective enforcement.
It has applied since 26 December 2008. EU countries were required to incorporate it into national law by 26 December 2010.

DOCUMENTS

Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (OJ L 328, 6.12.2008, pp. 28-37)