Environmental Liability In The European Union: The Current Debate
| Autor | Bernat Mullerat |
| Páginas | vLex |
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INTRODUCTION
The Industrial Revolution came earlier to Western Europe than to the United States. The noxious effects of the Industrial Revolution coupled with a high density of population brought about what is now the most polluted continent in the world.
The clean-up of contaminated sites is now regarded as one of the most sensitive environmental issues both at national and EU level. Indeed, some Member States have adopted specific acts or regulations aimed at allocating responsibility for financing the clean-up of contaminated sites[1]. Others still rely mainly on general civil liability or tort systems which -in most countries- prove insufficient to deal with the elusive character of environmental liability[2].
The disparity between existing liability schemes for environmental damage within the EU is such that it may influence business decisions and, therefore, distort competition in the internal market. Harmonization of existing environmental liability regimes is one of the objectives pursued by the European Commission in its initiatives.
On the other hand, the creation of a single EU environmental liability scheme also responds to the need of ensuring a high level of protection of the environment. Even more so after the signature of the Treaty of Amsterdam in June 1997, which has placed the promotion of 'a high level of protection and improvement of the quality of the environment' as one of the Community's objectives, among the paramount economic and social objectives in Article 2 of the Treaty of Rome[3].
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BACKGROUND TO EU INITIATIVES
a. Proposed Directive on Civil Liability for Damage Caused by Waste.
In 1989, the EU Commission issued a proposed Directive on Civil Liability for Damage Caused by Waste[4] (the 'proposed Directive'). This proposal was subsequently amended by the Commission in June 1991[5] (the 'Amended Proposal'). At that time, this piece of legislation was considered one of the most important initiatives in view of the potential implications it could have on industry, the insurance sector and lending institutions.
The proposed Directive was mainly aimed at applying the polluter pays principle, reducing the production of waste, promoting the use of cleaner technologies in the manufacturing industry and improving the protection of victims and the environment against damage arising from pollution.
The main features of the proposed Directive may be outlined as follows:
· Strict liability.
· Damage caused by waste and injury to the environment. The term 'waste' is defined by the proposed by reference to the definition provided in the framework Directive 75/442 on waste[6]. On the other hand, the proposed Directive defines 'injury to the environment' in order to cover those items not protected under the definition of damages[7].
· Liable parties. The liability regime envisaged by the proposed Directive extends to waste producers, where they can be identified, until the producer lawfully transfers the waste to an authorised waste manager. Once the transfer is performed, the waste manager becomes the 'deemed producer'.
If the producer is not identified, the person in 'actual control of the waste' at the time when the damage is caused would be held strictly liable as the 'deemed producer'.
Under certain circumstances, waste carriers may also be held liable for damage caused by waste.
· Joint and several liability. Liability would attach to all parties who produce, carry and manage waste which leads to damage or injury to the environment.
· Reach of liability. The European Commission intended to avoid the retrospective application of the proposed Directive. Thus, Article 13 of the proposed Directive provided that the liability regime would not apply to 'damage or impairment of the environment arising from an incident which occurred before the date on which its provisions are implemented'. This wording, however, does not effectively prevent retrospective liability. Indeed, under certain circumstances, liability could arise from an incident occurred after the coming into force of the proposed Directive by waste produced prior to such date.
· Defenses. The proposed Directive contains few defenses for liable persons. Simply put, liability would not arise if the liable party proves that the harm was caused by a force majeure or by an act or omission of a third party with an intent to cause harm. In addition, the proposed...
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