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Definitions I

EC Environmental Liability Directive (ELD) Training course in European and International Environmental Law, 6 July 2007, Montréal Dr. Nicola Notaro, Legal Adviser European Commission, DG Environment E2. Definitions I.

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Definitions I

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  1. EC Environmental Liability Directive (ELD)Training course in European and International Environmental Law, 6 July 2007, MontréalDr. Nicola Notaro, Legal AdviserEuropean Commission, DG Environment E2

  2. Definitions I "damage" means a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly

  3. Definitions II • "environmental damage" means: • damage to protected species and natural habitats= any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species, assessed with reference to the baseline condition, taking account of the criteria set out in Annex I (b) water damage= any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential (c) land damage= any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms

  4. The scope • Environmental damage or the imminent threat of it (activities in Annex III) • Damage to protected species and natural habitats (activities other than Annex III) when the operator is at fault/negligent

  5. The exceptions I • Armed conflict, hostilities, civil war, insurrection • Natural phenomenon of exceptional, inevitable and irresistible character • Annex IV: Oil pollution Conventions, Carriage of Hazardous/Noxious substances Conventions, and Carriage of Dangerous goods Conventions • Annex V: Nuclear liability Conventions

  6. The exceptions II • Diffuse pollution only covered if causal link with activity of individual operators • Activities whose main purpose is national defence, international security, protection from natural disaster

  7. Prevention before damage • Operators must without delay: • take preventive measures and • inform the Competent Authorities (CA) • CA may: • require info, • require the operator to take measures, • give instructions and • take the preventive measures when the operator has not acted, is not known or is exempted

  8. Remediation after damage • Operator must without delay: • inform the CA • take all steps to control/contain/remove/manage damage factors and • take the necessary remedial measures • CA may: • require more info, • require the operator to take – or give him instructions on - all steps to control/contain/remove/manage damage factors and • require the operator to take the necessary remedial measures or give instructions on such measures • take the necessary remedial measures when the operator has not acted, is not known or is exempted, as a means of last resort

  9. Choosing remedial measures • Operators to identify potential measures and submit them to CA for approval • CA to take a decision in accordance with Annex II • Possibility of prioritising on the basis of the nature, extent and gravity of damage taking into account risks to human health • Need to take into account observations from interested/affected persons

  10. Allocation of costs • Operators must pay for preventive and remedial action • CA to recover from the operator the costs incurred • BUT 2 defences: Operators do not pay • for damage caused by third parties despite appropriate safety measures or • For damage that resulted from compliance with a compulsory order from a public authority

  11. Additional defences or mitigation factors • MS may allow operators not to bear the costs of remedial action (if they are not at fault), when: • The emission/event/activity was authorised or • Was not considered likely to cause damage according to the ‘state of the art’ at the time it took place • For multiple party causation, national rules apply

  12. Relative time limit • The CA can initiate proceedings to recover costs within 5 years from when measures have been completed or the liable operator or third party has been identified, whichever is later

  13. The role of Competent Authorities • MS must designate CA and confer the necessary powers to them • CA establish which operator caused the damage, assess the significance of damage and determine which measures are to be taken • Decisions of CA must be motivated and notified to the operator together with legal remedies and time limits

  14. The role of civil society I • Natural or legal persons: (a) affected or likely to be affected by environmental damage or (b) having a sufficient interest in environmental decision making relating to the damage or, alternatively, (c) alleging the impairment of a right, are entitled to submit observations to the CA and to request the CA to take action on the basis of relevant info and data. • ‘Green NGOs’ fall under b) and c)

  15. The role of civil society II • CA must consider ‘plausible’ requests concerning damage and inform the relevant operator asking for his/her views • CA must inform those who lodged a request of their decision to accede or refuse and must give reasons

  16. The role of civil society III • Decisions, acts or failures to act of competent authorities are subject to a legality review by a Court or other independent body and can be challenged by the natural and legal person mentioned above • …without prejudice to national law on access to justice

  17. Financial security • MS to encourage the development of financial security instruments and markets • By 30.04.2010, the Commission to report on the effectiveness of the ELD, including financial security aspects and, if appropriate, to propose mandatory financial security

  18. Member States and national laws • MS duty to cooperate on transboundary damage and exchange info • Stricter measures at national level are allowed and so is the prohibition of double recovery of costs

  19. Absolute time limits • No retroactivity: only damage caused by an emission, event, incident that occurred after 30.04.2007 and only if derived from an activity that took place or finished after that date • 30 years from the emission, event, incident that caused the damage

  20. Reporting and implementation • MS to implement by 30.04.2007 • MS to report to the Commission on experience gained by 30.04.2013 (including info in Annex VI) • Commission to report to Council and EP by 30.04.2014 including proposals for amendment • Special focus in the Commission report on exemptions

  21. More info on: http://ec.europa.eu/environment/liability/index.htm Thank you

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