White Paper on environmental liability

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Directorate-General for the Environment, European Commission

2003

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CONTENTS

Foreword 5

Executive summary 7

Annex 9

1. Introduction 11

1.1. The aim of this White Paper 11

1.2. The structure of the White Paper 11

1.3. Background and institutional context 11

1.3.1. The Green Paper on remedying environmental damage 11

1.3.2. The position of the European Parliament 11

1.3.3. The opinion of the Economic and Social Committee 11

1.3.4. Commission’s decision for a White Paper 12

1.3.5. Member States’ positions 12

1.3.6. The consultation process 12

2. What is environmental liability? 13

2.1. The aim of environmental liability 13

2.2. The types of environmental damage for which liability is suited 13

3. The case for an EC environmental liability regime and its expected effects 14

3.1. Implementing the key environmental principles of the EC Treaty 14

3.2. Ensuring decontamination and restoration of the environment 14

3.3. Boosting the implementation of EC environmental legislation 14

3.4. Bringing about better integration 14

3.5. Improving the functioning of the internal market 15

3.6. Expected effects 15

4. Possible features of an EC environmental liability regime 16

4.1. No retroactivity 16

4.2. The scope of the regime 16

4.2.1. Damage to be covered 16

4.2.2. Activities to be covered 17

4.3. The type of liability, the defences to be allowed and the burden of proof 18

4.4. Who should be liable? 19

4.5. Criteria for different types of damage 19

4.5.1. Biodiversity damage 19

4.5.2. Contaminated sites 20

4.5.3. Traditional damage 21

4.5.4. The relation with the product liability directive 21

4.6. Ensuring effective decontamination and restoration of the environment 21

4.7. Access to justice 21

4.7.1. ‘Two-tier approach’: the State should be responsible in the first place 22

4.7.2. Urgent cases (injunctions, costs of preventive action) 22

4.7.3. Ensuring sufficient expertise and avoiding unnecessary costs 22

4.8. The relation with international conventions 23

4.9. Financial security 23

5. Different options for Community action 25

5.1. Community accession to the Lugano Convention 25

5.2. A regime for transboundary damage only 25

5.3. Member States’ action guided by a Community recommendation 26

5.4. A Community directive 26

5.5. Liability sector-wise, namely in the area of biotechnology 26

6. Subsidiarity and proportionality 28

7. The overall economic impact of environmental liability at EC level 29

8. Conclusion 31

Annexes 33

1. Study of civil liability systems for remedying environmental damage 33

2. Economic aspects of liability and joint compensation systems for remedying environmental

damage 37

3. Liability for ecological damage and assessment of ecological damage 46

4. Liability for contaminated sites 49

5. History and summary contents of the Lugano Convention 52