§1 INTRODUCTION
1. The purpose of 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 (1) (the ‘Environmental Liability Directive’ or the ‘Directive’) is to establish a framework of environmental liability based on the polluter pays principle, to prevent and remedy environmental damage (2). An amendment adopted in 2019 (3) requires the European Commission to develop guidelines providing a common understanding of the term ‘environmental damage’ as defined in Article 2 of the Directive (4). The present Notice sets out these Guidelines. 2. In the scheme of the Directive, the term ‘environmental damage’ is pivotal. It is used to define the Directive’s overall purpose (5). When environmental damage occurs or when there is a threat that it will occur, preventive or remedial action obligations are triggered for operators, as are associated obligations for competent authorities (6), with other persons being entitled to request that action be taken (7). In the case of transboundary damage affecting more than one Member State, duties of co-operation between Member States are triggered (8). In addition, the term carries consequences for financial operators who provide financial security to cover liabilities under the Directive (9). The term thus plays a potentially major role in environmental protection – helping to determine whether or not environmental harm is prevented and remedied. 3. The present Guidelines for the common understanding of environmental damage address a need identified in an evaluation of the Directive carried out by the Commission in 2016 (‘the evaluation’). (10) The evaluation concluded that the Directive’s implementation was hampered by significant lack of uniform application of key concepts, in particular concepts related to environmental damage (11). Hence the Commission engaged a contractor to prepare, together with the Environmental Liability Directive government experts group and the relevant Commission service, a Common Understanding Document based on research and consultations (12). Although it resulted in neither a Commission document nor a document agreed with the Member States, this ground-work has helped to prepare the way for these Guidelines. 4. Against this background, the Guidelines consider all aspects of the definition of ‘environmental damage’. The term is content-rich, referring to or embedding several other terms and concepts. The Guidelines encompass these, since they are necessary to the term’s understanding. With regard to structure, the Guidelines begin by looking at the legal and wider regulatory context in which the definition is relevant. They then look in turn at the definition of ‘damage’ and the complete text of the definition of ‘environmental damage’, before examining in detail the three separate categories of environmental damage comprised in it, i.e. ‘damage to protected species and natural habitats’, ‘water damage’ and ‘land damage’. Overall conclusions are presented at the end. 5. Given that the objective of the Guidelines is to provide a common understanding of the definition, their content is analytical and detailed. While they are not exclusively intended for any specific readership, they are envisaged as being of use to the following in particular, all of whom have roles under the Directive: Member States, competent authorities, operators, natural and legal persons, and providers of financial security. The Guidelines seek to address as comprehensively as possible the difficulties of understanding that have already arisen or that might reasonably be expected to arise in the future. They do so by closely analysing all parts of the definition of ‘environmental damage’, drawing attention to detailed considerations that can be inferred from the wording and the legal and regulatory context, and referring to case-law of the Court of Justice of the European Union (‘the CJEU’ or ‘the Court’) which can help clarify different aspects of the definition either directly or by analogy. 6. The Guidelines have been prepared under the exclusive responsibility of the Commission. However, only the Court is competent to authoritatively interpret Union law.
Source: EUR-Lex (Cellar) · retrieved 2026-09-07