§3 ‘DAMAGE’

40. The definition of ‘environmental damage’ incorporates the term ‘damage’, which is separately defined. The term ‘damage’ is not self-standing (in the sense that the obligations of the Directive do not apply at the level of generality found in it). When it comes to applying the Directive to concrete situations, it is necessary to rely on the more precise formulations contained in the definition of ‘environmental damage’. This reservation notwithstanding, the definition of ‘damage’ is important not only because it is embedded in the definition of ‘environmental damage’ but because it presents four basic concepts which are refined in the more elaborate definition. The Guidelines therefore address ‘damage’ before addressing other elements of the definition of ‘environmental damage’. Box 1: Definition of ‘damage’ Article 2(2) of the Environmental Liability Directive provides that ‘damage’ means ‘measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly.’ 41. The four basic concepts found in the definition of ‘damage’ are: — The material scope of what is affected, i.e. natural resources and natural resource services; — The concept of adverse effects, i.e. adverse changes and impairments; — The scope of these adverse effects, i.e. measurable ones; — The ways in which these adverse effects can occur, i.e. directly or indirectly. Material scope of natural resources and natural resource services Box 2: Definitions of ‘natural resource’ and ‘natural resource service’ Article 2(12) of the Environmental Liability Directive provides that ‘natural resource’ means ‘protected species and natural habitats, water and land.’ Article 2(13) of the Environmental Liability Directive provides that ‘services’ and ‘natural resource services’ mean ‘the functions performed by a natural resource for the benefit of another natural resource or the public’. 42. With regard to material scope, the definition of ‘damage’ refers to two concepts which are themselves also expressly defined in the Directive, namely ‘natural resource’ and ‘natural resource service’. ‘Natural resource’ is defined to mean three separate resource categories: protected species and natural habitats; water; and land. At the same time, the definition of ‘natural resource service’ highlights the inter-dependencies of these different categories by referring to the functions they perform for each other. The following are some non-exhaustive examples: a salt marsh (a type of natural habitat) may protect coastal land; surface water (a category of water) may support protected species of wild bird; land may filter out pollutants which might otherwise reach groundwater (a category of water). The definition of ‘natural resource service’ also refers to natural resource functions which benefit people. By way of non-exhaustive examples, some natural habitats such as peatlands serve as important carbon stores; some waters are a source of drinking water and some provide fish for recreational fishing; and land is necessary for food production and habitation. Adverse effects 43. With regard to adverse effects, the definition of ‘damage’ relates, firstly, to an ‘adverse change’ to a natural resource and, secondly, to ‘impairment’ of a natural resource service. More precision is found in the definition of ‘environmental damage’, but it is useful to keep in mind three general considerations: — Both ‘adverse change’ and ‘impairment’ imply adverse effects; — These adverse effects concern both the state of a natural resource and the beneficial functions performed by the natural resource for both other natural resources and people. Adverse effects therefore include not only adverse effects on the properties of a natural resource but also adverse effects on the interdependencies and dynamic relationships within and between natural resources and services, i.e. the functions that natural resources provide to each other as well as the public; — The notions of change and impairment imply a difference between the situation ‘before’ and the situation ‘after’ a damaging occurrence. Measurable 44. For the definition of ‘damage’ to apply, adverse changes and impairment must be ‘measurable’. Measurable means that damage needs to be capable of quantification or estimation, and that the situation before and the situation after a damaging occurrence must be capable of being meaningfully compared. Directly or indirectly 45. Finally, the definition of ‘damage’ allows for the possibility that adverse changes or impairments may occur both directly and indirectly. ‘Directly or indirectly’ concerns the causal link between a damaging occurrence, on the one hand, and specific adverse effects, on the other. Sometimes the causal link will be direct, as where an operator’s act of deforestation destroys a protected natural woodland habitat. Sometimes it will be indirect, as where nutrient discharges to a water body lead to the deterioration of a distant protected aquatic habitat. For the chain of cause and effect, it is useful to refer to a source-pathway-receptor model. Damage factors associated with an occupational activity (i.e. source), may pass through air, water or land (i.e. pathway) before affecting a specific natural resource (i.e. receptor). In Case C-129/16, Túrkevei Tejtermelő Kft., the Court noted that, while air pollution as such does not constitute environmental damage, damage to natural resources may arise as a result of air pollution (78). A damaging occurrence may be separated from the adverse effects it causes in terms of time (e.g. the natural resource suffers a delayed reaction) or space (e.g. the natural resource suffers adverse effects at a location which is distant from where the damaging occurrence arose) or in terms of the natural resources involved (e.g. an act consisting of applying a toxic substance to land causes the death of a protected species). The notion that adverse effects can occur indirectly is also related to the functions that natural resources provide for each other.

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