§2 THE LEGAL AND WIDER REGULATORY CONTEXT

7. The Environmental Liability Directive is a general, cross-cutting environmental instrument, applying not to one environmental subject-area but to several. As such, it complements other Union instruments that aim to protect the environment. The definition of ‘environmental damage’ expressly refers to four of these: Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (13) [now Directive 2009/147/EC on the conservation of wild birds (14)] (‘the Birds Directive’); Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (15) (‘the Habitats Directive’); Directive 2000/60/EC of the European Parliament and the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (16) (‘the Water Framework Directive’); and Directive 2008/56/EC of the European Parliament and the Council of 17 June 2008 establishing a framework for Community action in the field of marine environmental policy (17) (‘the Marine Strategy Framework Directive’). Cross-references to, and an understanding of, legal provisions of these other instruments are necessary to an understanding of ‘environmental damage’. 8. The Environmental Liability Directive is based on, and is an expression of, the polluter pays principle (18). In addition, a common understanding of ‘environmental damage’ needs to draw on, as appropriate, other principles on which Union environmental policy is founded, namely the precautionary principle (19), and the principles that preventive action should be taken and that environmental damage should as a priority be rectified at source (20), these being relevant to its interpretation. General principles of Union law, such as the principle of proportionality, are also relevant to the Directive. 9. The Environmental Liability Directive addresses adverse effects on the environment arising from occupational activities. These activities are subject to legal requirements under other Union environmental laws (21). The laws concerned create a wider regulatory context which is relevant to the application of the Directive’s obligations concerning environmental damage. This is because the provisions of those laws usually also aim to prevent or limit many of the adverse effects on nature, water and land that come within the scope of the term ‘environmental damage’. Liability for environmental damage 10. ‘Environmental damage’ needs to be understood in relation to those who may be legally liable for it under the Directive, the circumstances in which and the conditions under which their liability may arise, and the kinds of action that liability will require them to take. 11. Those who may be legally liable are referred to as ‘operators’ (22). They are only liable in respect of ‘occupational activities’ coming within the scope of the Directive (23). In Case C-297/19, Naturschutzbund Deutschland — Landesverband Schleswig-Holstein eV, the Court stated that the concept of ‘occupational activity’ is not limited solely to activities which are market-related or are competitive in nature, but encompasses all activities carried out in an occupational context, as opposed to a purely personal or domestic context, and, therefore, cover also activities carried out in the public interest pursuant to a statutory assignment of tasks (24). In the specific case, it confirmed that the Directive applied to a public body responsible for drainage of a wetland in the interests of agriculture. 12. The main relevant occupational activities (25) are those described in Annex III of the Directive. Operators of these may be liable for all three categories of environmental damage under the Directive. Moreover, the liability of operators covered by Annex III is strict, i.e. it is not dependent on their having acted or omitted action on the basis of fault (intent or negligence). For strict liability to apply, it is sufficient that a causal link is established between the environmental damage and the occupational activity. The eighth recital of the Directive sets out the rationale for bringing the occupational activities described in Annex III within its scope. It states that the Directive should apply to occupational activities which present a risk to human health orthe environment, adding: ‘Those activities should be identified, in principle, by reference to the relevant [Union] legislation which provides for regulatory requirements in relation to certain activities or practices considered as posing a potential or actual risk for human health or the environment’. 13. The occupational activities in Annex III are defined by reference to other pieces of Union environmental legislation many of which have been codified, amended or replaced since the Directive was adopted. However, the occupational activities in question continue to come within the scope of the Directive. The Common Understanding Document provided information on how the legislation concerned evolved (26). The occupational activities in Annex III cover, amongst other things, the operation of many industrial activities, including bigger or riskier industrial installations such as chemical factories; waste management operations; certain polluting discharges to water; water abstraction and impoundment; the manufacture, use, storage, processing, filling, release into the environment and onsite transport of certain substances, preparations and products, as well as transport of dangerous substances or goods by road, rail, inland waterways, sea or air. 14. For one category of ‘environmental damage’, namely damage to protected species and natural habitats, operators of occupational activities other than those listed in Annex III may also be liable where they are at fault or negligent (27). 15. Under other applicable Union environmental legislation, operators are often required to hold, and respect the conditions of an authorisation; or they may be bound to operate in accordance with general binding requirements. It cannot be excluded, however, that some operators will carry out occupational activities without the required authorisation, or without respecting all the applicable rules. This may be the case, for example, with persons who carry out illegal waste operations. Such illegal conduct does not take such operators outside the scope of the Directive. Were it to do so, the result would be inconsistent with the polluter pays principle. The Directive is an expression of this principle – and needs to be interpreted in the light of it (28). Further support for coverage of illegal operators is provided by Case C-494/01, Commission v Ireland, in which the Court found that a failure to respect inspection requirements linked to permit requirements could arise in respect of waste operations carried out without any permit (29). By analogy, it can be argued that liability requirements under the Directive can similarly apply in respect of occupational activities carried out in disregard of authorisation or other regulatory requirements. 16. In Cases C-378/08, Raffinerie Mediterranee (ERG I) SpA and others, and C-534/13, Fipa Group and others, the Court ruled that the environmental liability mechanism provided for by the Directive requires the establishment of a causal link between the activity of one or more identifiable operators and the environmental damage or the imminent threat of such damage (30). As for the causal link, the Court has ruled that, if the legislation of a Member State so provides, a presumption, based on plausible evidence, is sufficient in order to establish the link. (31) 17. The Directive does not define which occurrences will give rise to a causal link between the occupational activity and the environmental damage or imminent threat. At a number of places in the text of the Directive, there are references to ‘an emission, event or incident’. (32) However, with the exception of ‘emission’ (33), these terms are not defined, and, as Case C-529/15, Folk (34) and Case C-297/19, Naturschutzbund Deutschland — Landesverband Schleswig-Holstein eV show, the Directive covers the consequences of the normal operation of an Annex III occupational activity. In Case C-529/15, the normal operation involved a hydro-electric power-station; in case C-297/19, maintenance of drainage in a wetland. Liability should therefore not be assumed to only arise in respect of one-off accidents or incidents; it may also arise in respect of normal operations and relate to the sorts of circumstances described in paragraphs 18 and 19 below. For ease of reference, the present Guidelines will refer to the range of possible occurrences as ‘damaging occurrences’. 18. The nature of the factors causing adverse effects – what can be referred to as the ‘damage factors’ (35) – may also vary (36). Their nature may be additive – involving the deposit of waste on land, or use of inert materials to fill in a wetland, for instance, or the contamination of the receiving environment by pollutants. Or it may be subtractive or extractive – involving an impedance of river flow (37) or the removal of trees or minerals, for example. Or it may be purely destructive – as where land features are cleared or individuals of a protected species killed. 19. The manifestation of adverse effects may be sudden and accidental – as where an explosion in a chemical factory results in a fire, destruction of buildings and pollution of land and water through release of toxic substances or fire-fighting substances into water. Or it may be immediate – as where a protected woodland habitat is lost through a rapid logging operation. Or it may be gradual – as where a leak from a ruptured pipe leads to cumulative harm in the receiving environment that is detected only after some time. It is also possible that adverse effects from the same damaging occurrence may manifest themselves in both ways – as where a sudden and accidental release of a large quantity of toxic substances into a river results in an immediate fish-kill before causing a slower and more gradual deterioration of the structures of a protected aquatic habitat or of the habitat of a protected species. 20. Likewise, knowledge of both damaging occurrences and the adverse effects they cause may come to light at different times. If the damaging occurrence is a major accident, it will become known at once, but an unknown incident may not come to light for some time – for example, a rupture in an underground storage tank containing dangerous substances. (38) 21. The Directive provides for three main categories of obligation on operators: — Where environmental damage has not yet occurred but there is an imminent threat of such damage occurring, operators are required to take the necessary preventive measures (39) without delay (40); — Where environmental damage has occurred, operators are required to take ‘all practicable steps to immediately control, contain, remove or otherwise manage the relevant contaminants and/or any other damage factors in order to limit or prevent further environmental damage and adverse effects on human health or further impairment of services’ (41). For ease of reference, the present Guidelines will refer to these steps as ‘immediate management of damage factors’; — Where environmental damage has occurred, operators are required to take remedial measures (42). They are to identify the appropriate remedial measures in accordance with Annex II of the Directive, and submit them for approval to the competent authority (43). 22. The references to ‘without delay’ and ‘immediately’ show that the first two categories of obligation are time-critical. This has implications for the common understanding of the term ‘environmental damage’. The operator’s duties to take preventive measures and to immediately manage damage factors under the Directive exist in parallel to similar obligations under other Union environmental legislation, for example Directive 2010/75/EU of the European Parliament and the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (44) (‘the Industrial Emissions Directive’). 23. Operators must also fulfil certain ancillary obligations. For example, where environmental damage has occurred, they must ‘without delay, inform the competent authority of all relevant aspects of the situation’ (45) and may be required to provide supplementary information. (46) They may be required to fulfil similar information obligations in respect of an imminent threat of environmental damage. (47) They may also be required to carry out their own assessment with regard to environmental damage and to supply any information and data necessary to the competent authority (48). Looking beyond the Environmental Liability Directive, operators may be required to provide relevant information to the authorities under other Union environmental legislation, for example the Industrial Emissions Directive (49) or Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC (the ‘Seveso Directive’) (50). 24. The Environmental Liability Directive contains provisions on its temporal applicability, setting limits on its application by reference to the date of 30 April 2007 and the passage of a period of thirty years (51). The temporal scope for the specific parts introduced by its amendments is, of course, different – for example, for damage to marine waters, the Directive is applicable as of 19 July 2015 (52). It is important to note that occupational activities governed by authorisations that pre-date 30 April 2007 are covered for liability purposes if and to the extent that the damaging activity is continuing after the 30 April 2007. In Case C-529/15, Folk, the Court held that the Directive ‘applies ratione temporis to the environmental damage that occurred after 30 April 2007 but which was caused by the operation of a facility authorised in accordance with the law governing matters relating to water and put into operation before that date.’ (53) 25. The Directive also contains provisions on exceptions, setting limits on its application by reference to a number of specified causes of environmental damage (54). Furthermore, it provides for a number of grounds that an operator can invoke to avoid bearing the cost of preventive and remedial actions (55). It also gives Member States the possibility to decide to relieve an operator of the cost of remedial actions, where the operator demonstrates that he was not at fault or negligent and fulfilled all conditions of an authorisation (56) or acted according to the state of the technical and scientific art. (57) However, there are limits to the last-mentioned possibilities, as is made clear by the Court judgment in Case C-529/15, Folk (58) concerning Article 8(4)(a) of the Directive. 26. The Directive allows Member States to maintain or adopt more stringent provisions in relation to environmental damage (59). This is in line with Article 193 of the Treaty on the Functioning of the European Union (TFEU). However, the entitlement to have more stringent provisions is not the same as an entitlement to have different provisions which do not fulfil the Directive’s requirements; nor is it an entitlement to set aside the liability of operators for ‘environmental damage’ under the Directive. The requirements of the Directive must, as a minimum, be fulfilled in all respects. The role of the competent authorities and relevant wider roles of Member States 27. While the operator is liable for environmental damage, competent authorities (60) have duties in relation to it. A common understanding of the term ‘environmental damage’ therefore requires some reference to their role. 28. Competent authorities must establish the operator who has caused environmental damage or the imminent threat of damage (61). By implication, the competent authorities must know about the existence of the environmental damage or the threat; otherwise the duty of establishing the operator has no meaning. 29. Competent authorities must also assess the significance of the environmental damage (62). Once again, the duty of assessing significance only makes sense if the authorities know about the existence of the damage or the threat. 30. Competent authorities must determine the remedial measures to be taken by the operator under Annex II of the Directive (63) on the basis of the identification of the potential remedial measures by the operator and with the cooperation of the relevant operator, as required. In Case C-379/08, Raffinerie Mediterranee (ERG) SpA and others, the Court affirmed the scope for competent authorities to alter the remedial measures, while also pointing to the need to give the operator an opportunity to be heard (64). 31. The duties to establish the liable operator, to assess the significance of environmental damage and to determine the remedial measures require the competent authorities to have and to apply relevant information about the damaging occurrence, the occupational activity, the environmental damage and the causal link between them, as well as the operator carrying out the activity. Paragraphs 32 to 37 below describe several potential kinds and sources of relevant information. It should be borne in mind, however, that complete information may not always be readily available and that the competent authorities may need to act swiftly. In such circumstances, the precautionary principle will justify competent authorities intervening on the basis of a reasonable belief that environmental damage has occurred or will imminently occur. 32. As noted at paragraph 23 above, operators have duties under the Directive to inform the competent authorities about damaging occurrences and related environmental damage. As also noted, operators may have separate duties to provide information about damaging occurrences to competent authorities under other Union environmental legislation. It cannot be excluded, however, that some operators will fail to report. Damaging occurrences and environmental damage causally linked to clandestine illegal activities or illegal or negligent acts or omissions within authorised activities, for example, are unlikely or less likely to be reported. 33. Recital 15 of the Directive indicates that public authorities should ensure the proper implementation and enforcement of the scheme provided for by the Directive, and the Directive contains provisions according to which the competent authorities may require more information and an increased level of engagement from the operator (65). It is nevertheless important that competent authorities have recourse to sources of information other than that provided by the operator under the Directive. 34. One potential source of information on damaging occurrences and environmental damage consists in requests for action made by the natural or legal persons entitled to make such requests. (66) Requests for action are required to be ‘accompanied by the relevant information and data supporting the observations submitted in relation to the environmental damage in question’. (67) 35. Another possible source of relevant information consists in the results of regulatory oversight under other applicable Union environmental legislation. An example would be routine inspections of industrial facilities under the Industrial Emissions Directive (68). While, for purposes of liability, not all damaging occurrences will coincide with regulatory infringements by an operator, regulatory infringements make damaging occurrences more likely. This is because the regulatory requirements concerned are aimed at controlling the potential or actual risks to human health and the environment associated with the occupational activities concerned. As a consequence, compliance with them should, in practice, reduce the likelihood that damaging occurrences will arise. By the same token, non-compliance with these requirements – including serious flouting of them – makes it more likely that damaging occurrences will arise. Provided that there are good systems for sharing information, monitoring of compliance with regulatory requirements should therefore help competent authorities under the Directive to know about environmental damage or the imminent threat of damage, establish the operator and characterise the damaging occurrence. It may also assist competent authorities in the assessment of environmental damage, furnishing information about the nature of polluting emissions, for example. 36. As will be clear from later sections of these Guidelines, the assessment of the significance of environmental damage generally requires information about the state of the receiving environment. Some state-of-the-environment information will be directly linked to the damaging occurrence – for example, records of fish mortality in a river recently adversely affected by a polluting emission. But other relevant state-of-the-environment information will consist of records and information gathered for other purposes – to determine the general conservation status of a protected species, for instance, or the condition of a protected nature site, such as a Natura 2000 site. Much relevant state-of-the-environment information will derive from state-of-the-environment monitoring carried out by national administrations. Of particular relevance will be information gathered and collated under the four directives mentioned in paragraph 7 above. This may be supplemented by other relevant information of acknowledged scientific value – for example, an environmental non-governmental organisation (NGO) may provide extensive information through citizen science (69). 37. Closely related in potential importance to state-of-the-environment information is scientific and technical information on the subject-matter of the environmental damage – for example, scientific knowledge about the life cycle of a protected species adversely affected, or about the human health risks of exposure to certain contaminants. 38. As observed above, the occurrence of environmental damage or its imminent threat will often, although not always, coincide with an infringement of other Union environmental legislation. Such infringements may require or warrant separate action by Member State authorities, to secure the results required by other Union legislation (for example, the protection of nature sites under the Birds Directive and the Habitats Directive), and to implement sanctions that are effective, proportionate and dissuasive. Thus, the same factual circumstances may give rise to both environmental liability and liability to sanctions, and in practice assessment of environmental damage under the Directive may take place in parallel with the assessment of breaches for other purposes. For example, conduct that Member States are required to criminalise under Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (‘the Environmental Crime Directive’) (70) includes some (although not all) conduct likely to give rise to environmental liability. (71) In this context, in order to assess the significance of environmental damage, competent authorities may find themselves drawing on the same information sources as those authorities responsible for sanctions. It is to be stressed, however, that application of liability requirements under the Directive is separate to the application of sanctions. In this regard, the fact that authorities may be taking action to impose administrative or criminal sanctions is not a reason to set aside the duties that competent authorities have to ensure that environmental damage is assessed and prevented, damage factors immediately managed or damage remediated in accordance with the Directive (the reverse is also true: the pursuit of environmental liability is not a reason to disregard the role of sanctions). (72) 39. A number of further points arise with regard to situations where liability under the Directive coincides with regulatory breaches under other relevant Union environmental legislation, in particular the other legislation referred to in the Directive itself. Firstly, if damage factors are not being controlled in accordance with the Directive or other legislation, the principle of effectiveness will require Member States and their authorities to act to ensure compliance with the relevant provisions of the Directive and the other legislation that are being contravened. Secondly, the Directive does not explicitly provide for secondary liability for public authorities to take preventive measures, measures to immediately manage damage factors, and remedial measures, but neither does it explicitly provide that all of these measures can be dispensed with if the operator fails to adopt them, or if the operator can justify not having to bear their cost. (73) The distinction that the Directive draws between the measures and the costs of those measures indicates that the measures are required irrespective of whether the operator can or should bear the cost (74). Thirdly, case-law shows how a Member State may be required to take further steps if a required result is not achieved despite the authorities having taken action against an operator. In Case C-104/15, Commission v Romania, which concerned the Extractive Waste Directive (75), the Court found that the Member State remained liable for failure to control toxic dust emissions from a mining waste facility, notwithstanding the fact that it had imposed sanctions on the operator (76) and that the operator had become insolvent (77).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07