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The European Parliament gives final approval to the directive on environmental liability

Anyone who contaminates will pay

Drafting QU01/04/2004

The plenary of the European Parliament has adopted the final text of the directive on liability for environmental damage, which is the community recognition of the principle of "polluter pays", in order to prevent and repair damage to species or natural habitats protectedto soil and water.

The text, finally, had to be discussed in a "Conciliation Committee" between the Council of the European Union and the European Parliament during which their reach was limited. The regulation will be mandatory within three years and will cover the cases of damage caused by occupational activities, and not those caused by individuals. When there has been fault or negligence of the operator, the directive will apply even if the activity is not expressly contained in the annex to the law.

Operators that cause of the damage will have to take steps to correct it or, in case of threat of injury, to prevent it. Although the directive does not provide for the granting of compensation to individuals, it considers that they benefit from compensation if so stipulated in national legislation.

Thanks to the new measures, the European Union aims to combat the so-called "legal tourism", i.e. the search, by operators, of the least stringent legislation to implement its industry in that country and carry out there its activity with reduced risk of being persecuted for causing environmental damage.

The agreed text includes a set of exceptions. For example, the directive does not apply in the event of damage resulting from wars, natural phenomena of "an exceptional, inevitable and irresistible character", nuclear risks or harm by incidents whose responsibility is regulated by an International Convention contained in the annex to the directive. Not apply to activities relating to national defence or international security.

In other cases, even if they are of the directive, allows that it exempted the operator to pay the costs. For example, when there has been a permission expresses for an activity that, finally, caused damage; or when they could not know the harmful effects according to the scientific knowledge existing at the time in which the activity occurred. However, only be exceptions if there was no fault or negligence.

Insurance for operators to meet the costs related to the implementation of this directive has been one of the most debated issues and that they faced initially, more to the Parliament and the Council. The objective is to avoid that an operator who has to deal with the payment for the repair of damage be declared insolvent.

The European Parliament was delivered to within a few years were forced companies to obtain insurance, if in the meantime had not developed appropriate market instruments. The adopted compromise, however, urges the Member States to promote the development of financial security instruments to cope with its responsibilities in the event of environmental damage.

The European Commission, for its part, will present a study within a period of six years on the costs and benefits of a system of financial guarantees and will assess the appropriateness of imposing it on a mandatory basis.

The rule affects sectors included in a closed list - chemical and energy industry (except nuclear and oil), industry of the paper, mining, management of waste and hazardous substances - and to all activities affecting species or habitats protected by Community legislation - Natura 2000 network and directive on habitats and birds.

The Prestige will not be covered

Another issue subject of divergences is the exception of cases covered by international conventions, in particular the maritime conventions, as well as those related to genetically modified organisms. According to the compromise text, a case as of the "Prestige" would not be covered by the directive, there is an International Convention. In fact, the oil pollution is a particular case. In 2003, an international compensation fund was created to cover the environmental damage caused by oil.

The Fund is fed economically by the buyers of petroleum products and not for owners of vessels. MEPs believe that this could weaken the willingness of shipowners on their responsibility and have put pressure so that the European Commission to take new measures that increase the responsibility of shipowners where takes place a re-examination of the directiveOnce that has applied for ten years.

However, the European Commission will have to evaluate the issue before they spend nine years and consider if the advisability of including in the scope of this directive to the oil pollution caused by ships and currently regulated by international conventions. Also, the Commission will then assess whether this directive should apply to damage caused by genetically modified organisms.

The cooperation between the Member States when the damage may affect other countries is one of the key points of the directive. This will ensure a proper exchange of information to enable the taking of preventive measures.