§4 OVERVIEW OF ‘ENVIRONMENTAL DAMAGE’

46. The definition of ‘environmental damage’ incorporates and refines the definition of ‘damage’. First of all, with regard to material and geographical scope, it disaggregates and compartmentalises the three categories of ‘natural resource’ that feature in the definition of ‘damage’, i.e. protected species and natural habitats; water; and land. Furthermore, for the first two natural resource categories, it includes certain details that help to determine the geographical scope of obligations under the Directive. Secondly, within each of the natural resource categories, relevant adverse effects are described in more detail by reference to certain concepts (which these Guidelines call ‘reference concepts’). Thirdly, a notion of significance is included to further define the scope of the adverse effects that need to be addressed. A fourth point to note is that the definition of environmental damage does not preclude the possibility that all three sub-categories of natural resource damage will be relevant at the same time. Box 3: Definition of ‘environmental damage’ Article 2(1) of the Environmental Liability Directive (79) provides that ‘environmental damage’ means: ‘(a) damage to protected species and natural habitats, which is any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species. The significance of such effects is to be assessed with reference to the baseline condition, taking account of the criteria set out in Annex I; Damage to protected species and natural habitats does not include previously identified adverse effects which result from an act by an operator which was expressly authorised by the relevant authorities in accordance with provisions implementing Article 6(3) and (4) or Article 16 of Directive 92/43/EEC or Article 9 of Directive 79/409/EEC or, in the case of habitats and species not covered by Community law, in accordance with equivalent provisions of national law on nature conservation. (b) water damage, which is any damage that significantly adversely affects: (i) the ecological, chemical or quantitative status or the ecological potential, as defined in Directive 2000/60/EC, of the waters concerned, with the exception of adverse effects where Article 4(7) of that Directive applies; or (ii) the environmental status of the marine waters concerned, as defined in Directive 2008/56/EC, in so far as particular aspects of the environmental status of the marine environment are not already addressed through Directive 2000/60/EC. (80) (c) land damage, which is any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms.’ Material and geographical scope of each natural resource 47. Because of the degree of compartmentalisation of the material scope, a common understanding of ‘environmental damage’ requires a close analysis of each category of natural resource. This includes the geographical scope of each resource category. Commentary on material and geographical scope is provided in the next sections of these Guidelines. Reference concepts for adverse effects 48. For all three categories of natural resource, the definition of ‘environmental damage’ uses a reference concept to determine whether adverse effects are relevant. For protected species and natural habitats, the reference concept is the favourable conservation status of these species and habitats. For water, it is the ecological, chemical or quantitative status or the ecological potential of waters under the Water Framework Directive and the environmental status of marine waters under the Marine Strategy Framework Directive, which have different dimensions. For land, it is risks to human health. The function of these reference concepts is to provide parameters and criteria against which the relevance of adverse effects can be examined. The concepts provide elements in respect of which adverse effects are to be measured. The concepts are analysed in more detail in the sections of these Guidelines devoted to the specific categories of natural resource damage. The assessment of significance 49. The reference concepts qualify the kinds of adverse effects that are covered by the Directive. The definition of ‘environmental damage’ contains a further qualification: the words ‘significant’ or ‘significantly’ figure in relation to each natural resource category, and the Directive requires preventive measures, immediate management of damage factors or remedial measures only if the adverse effects are assessed as significant in terms of the reference concepts mentioned. 50. Amongst Union environmental law instruments, a requirement to assess significance is not unique to the Environmental Liability Directive. Such a requirement also features in the Habitats Directive (81), for instance, and it is at the heart of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (82) (the ‘Environmental Impact Assessment Directive’). Assessment of significance pursuant to the Environmental Liability Directive is, however, sui generis. 51. In the context of the Environmental Liability Directive, a common understanding of the assessment of significance can benefit from a consideration of the following: — The circumstances in which the need for assessment of significance arises; — The purposes of assessment of significance; — Legal responsibilities with regard to carrying out of the assessment; — The context or contexts in which the assessment is to be carried out; — The focus of the assessment; — The carrying out of the assessment; — The determination of significance. Circumstances 52. As section 2 of these Guidelines indicates, damaging occurrences, damage factors, relevant occupational activities, operator conduct, and the nature of the causal link may all vary considerably. The assessment of significance will need to be adaptable to all of these variables. For instance, a one-off accident will present a different set of challenges to an ongoing operation such as that featuring in Case C-529/15, Folk. Purposes 53. The assessment of significance of adverse effects is not an end in itself. It is for the purposes of determining whether adverse effects require: — Preventive measures; — Immediate management of damage factors, and/or — Remedial measures. 54. These three purposes are distinguishable, and, depending on the circumstances, some may be relevant and others not. For example, in situations of imminent threat, the sole purpose of the assessment will be to prevent a damaging occurrence from taking place. In situations where a damaging occurrence has already taken place, it may or may not be necessary to immediately manage the damage factors. For example, such immediate management may no longer be possible where the damage factors have already created adverse effects and are exhausted. All three purposes may, of course, become sequentially relevant, as where an imminent threat of a damaging occurrence becomes an actual damaging occurrence that requires immediate management of damage factors as well as subsequent remedial measures. The assessment of significance will, therefore, need to be adapted to the purposes which are relevant to the specific circumstances that have arisen. 55. The purposes of prevention and immediate management of damage factors relate to potential or actual damage factors. These purposes reflect the Treaty principles of prevention and rectification at source. As previously noted, they are time-critical. 56. The purpose of identifying a need for remedial measures is closely related to the Directive’s specific requirements on remedial measures, which are described in detail in Annex II. In the case of damage to protected species and natural habitats, and water damage, remedial measures are aimed at restoring the environment to its baseline condition (see Box 4 below) by way of primary, complementary and compensatory remediation, all of which terms are defined. As can be seen, these requirements focus on the environment that has been adversely affected, rather than on the damage factors – although further management of damage factors cannot be excluded, as the Folk case indicates (83). In the case of land damage, remedial measures are aimed at further management of damage factors, if such factors remain a significant risk to human health even after fulfilment of the second purpose mentioned above. Box 4: Definition of ‘baseline condition’ Article 2(14) of the Environmental Liability Directive provides that ‘baseline condition’ means ‘the condition at the time of the damage of the natural resources and services that would have existed had the environmental damage not occurred, estimated on the basis of the best information available.’ Duties of those concerned 57. As indicated in paragraph 29, the competent authority is responsible for the assessment of significance. Recital 24 of the Directive states: ‘Competent authorities should be in charge of specific tasks entailing appropriate administrative discretion, namely the duty to assess the significance of the damage and to determine which remedial measures should be taken’. 58. It must be borne in mind, however, that operators bear the responsibility to prevent damaging occurrences without delay and to immediately manage damage factors. These responsibilities imply a need for operators to independently recognise damage factors linked to their occupational activities and to proactively respond to them. Furthermore, relevant provisions of the Directive indicate that the assessment of significance should take place against the backdrop of a dynamic relationship between the operator and the competent authority, with the former required to actively provide information and respect instructions given by the competent authority (84). These can include an instruction to the operator to carry out his own assessment and to supply any information and data necessary (85). This dynamic relationship is especially important where adverse effects have already occurred and it is necessary to take remedial measures. 59. The assessment of significance may take place in situations where there are parties concerned other than the competent authority and the operator. In particular, the competent authority has to fulfil several legal duties in respect of a valid request for action (86). 60. Where environmental damage affects or is likely to affect several Member States, the Member States concerned have duties to co-operate which are relevant to the assessment of significance (87). Context 61. The categories of natural resource that are relevant and the corresponding reference concepts will determine the elements to be assessed. For example, damage to protected species and natural habitats will require quite different elements to be considered compared to land damage. These specific elements are considered in more detail in the next sections of these Guidelines. Focus of the assessment 62. The focus of the assessment will need to vary according to the relevant circumstances, purposes and context. 63. The definition of ‘damage’ shows that adverse effects comprise changes and impairments that need to be measurable, and the definition of ‘environmental damage’ shows that these changes and impairments need to relate to the reference concepts. 64. Measurement involves comparing the condition of natural resources and services before the damaging occurrence took place with their condition after the occurrence took place (obviously, so far as the condition after is concerned, this comparison will be notional in the case of an imminent threat, since the imminent threat will not yet have materialised as damage). The comparison involves two distinct forms of quantification or estimation, one focused on the situation before and the other on the situation after the damaging occurrence took place (88). It is important to stress that, although relevant to both preventive and remedial action, assessment will need to be treated differently depending on whether the action is time-critical. Where time-critical, the assessment will need to be done on the basis of rapid judgment drawing on existing and immediately accessible information – often of a general character. Support for such a differentiated approach can be found in Case C-378/08, Raffinerie Mediterranee (ERG) SpA and others. (89) 65. With regard to measurement of the situation before, the concept of the baseline condition comes into play (see Box 4 above). While the baseline condition may be constant, it is likely that it may vary over time. For example, the condition may fluctuate regularly or predictably (as with a flood-plain or a seasonal lake such as a turlough, for instance (90)), or the area of habitat or population of a species affected may already be increasing or decreasing. 66. As for the change or impairment, this will consist of the difference between the situation of the natural resource or service after the damaging occurrence took place and the baseline condition. The situation after the damaging occurrence must also, therefore, be known. 67. The gap between the baseline condition and the situation after the damaging occurrence may be an unstable one, as where the damage factors are continuing to generate adverse effects, and the magnitude of these adverse effects is growing. From the purpose of immediately managing the damage factors, it can be inferred that an assessment of significance will also need to address the damage factors causing the adverse effects. The carrying out of the assessment 68. Depending on which purposes are relevant to the circumstances that present themselves, the assessment of significance of changes to the natural resource may involve different stages and a consideration of different types of information. (91) 69. Where preventive measures are required in respect of an imminent threat, the operator – and, as necessary, the competent authority – will need to recognise the potential damage factors associated with the occupational activity, and without delay ensure that these do not cause significant adverse effects to the relevant natural resources or impair any natural resource services. 70. Likewise, where damage factors require immediate management, the operator – and, as necessary, the competent authority – will need to recognise the damage factors associated with the occupational activity, and ensure rapid interventions to manage these so as to stop the chain of causation of significant adverse effects on the relevant natural resources or impairment of natural resource services. 71. For purposes of preventive measures and immediate management of damage factors, the need for rapid assessment means that reliance will need to be placed on and conclusions reached on the basis of readily available information. General information about the nature of the damage factors and the exposure of a natural resource to their adverse effects will often be key, since there may be no time to wait for site-specific details to emerge. The application of the precautionary principle is necessary in such circumstances. (92) 72. Where remedial measures are required, a more in-depth assessment is appropriate, and this should be less time-critical. It should, nevertheless, be timely, as time is also a relevant factor with respect to the remedial measures described in Annex II (93). 73. Where remedial measures in particular are concerned, it cannot be excluded that, as paragraph 20 shows, there will be a time-lag between the damaging occurrence and the first opportunity to assess its significance. Subject to the Directive’s provisions on temporal scope (as mentioned in paragraph 24 above), the existence of a time-lag is not, however, a reason to refrain from assessment, particularly where the damaging occurrence has had enduring adverse effects. 74. The circumstances giving rise to possible liability under the Directive may also require assessment to address a regulatory failure in respect of another environmental instrument, such as the Environmental Impact Assessment Directive or the Habitats Directive (94). Assessment of significance under the Environmental Liability Directive should not, however, be conflated with – or made subject to – forms of assessment required to address a regulatory failure. Any joint procedure (such as an ex post environmental impact assessment) to correct both a regulatory failure (such as the failure to carry out a required prior environmental impact assessment) and an assessment of significance of changes to a natural resource under the Environmental Liability Directive must be consistent with the requirements of the latter. Determination of significance 75. Significance needs to be determined in the light of the purposes that require fulfilment. Having regard to the definition of ‘baseline condition’, it needs to be determined in relation to the actual physical area of land or water or (in the case of protected species) actual populations adversely affected or at risk of being affected, taking account of any pre-existing intrinsic characteristics or dynamic factors that may have been influencing the natural resources concerned independently of the damaging occurrence. 76. As regards ‘significant’, in Case C-297/19, Naturschutzbund Deutschland — Landesverband Schleswig-Holstein eV , the Court stated: ‘It follows from the use of the adjective “significant” in the first subparagraph of Article 2(1)(a) of Directive 2004/35 that only damage of a certain seriousness, classified as ‘significant damage’ in Annex I to that directive, can be regarded as damage to protected species and natural habitats, which means that it is necessary in each specific case to assess the importance of the effects of the damage concerned.’ (95) This case indicates that what is ‘significant’ is ultimately a matter of Union law. With regard to ‘damage to protected species and natural habitats’, Annex I of the Environmental Liability Directive provides that ‘significant adverse changes to the baseline condition should be determined by means of measurable data such as’. The passage from Case C-297/19 quoted above therefore also indicates that, for this category of environmental damage, the determination of significance is a matter of objective, technical assessment based on measurable data. It can be inferred that the same holds true for the other categories of environmental damage under the Directive. 77. It can also be inferred from the foregoing that the Directive’s application cannot be excluded on the basis of arbitrary, subjective opinions of what is significant or on the basis of any reliance on socio-economic considerations that are external to the Directive in order to assess and determine significance. Use can, however, where appropriate, be made of the range of exclusions, exemptions (96) and defences (97) provided for in the Directive to address socio-economic considerations or of the proportionality assessments inherent in the Directive (98). 78. The significance of effects does not necessarily depend on their being present on a large scale. In Case C-392/96, Commission v Ireland, the Court noted in relation to the Environmental Impact Assessment Directive, that ‘Even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors set out in Article 3 of the Directive, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration.’ Similar reasoning can be considered applicable in the context of the Environmental Liability Directive. 79. With regard to the purpose of ensuring preventive measures, significance will relate to the avoidance of damage factors causing adverse effects on specific areas or populations. The same is true of the purpose of ensuring immediate management of damage factors. The adverse effects will be those referred to in paragraphs 82 and 83 below. The determination should turn on whether the damage factors are likely to result in some or all of these adverse effects arising. 80. The Directive is subject to interpretation in accordance with the interpretation methods of the Court, and in the light of relevant legal principles, such as the precautionary principle (99) (see also paragraph 8 above). Under the precautionary principle, scientific certainty that measurable adverse effects will arise is not required. A reasonable belief is sufficient. Furthermore, if the operator or the competent authority decides not to take or require preventive measures or an immediate management of damage factors, its decision should be on the basis that there is no reasonable scientific doubt as to the absence of measurable adverse effects to a natural resource (100). 81. If there is a determination of significance for purposes of preventive measures and immediate management of damage factors, the question arises as to what preventive measures and damage factor management will be necessary and appropriate. The measures and management should be aimed at stopping or breaking any chain of causation arising from the damage factors which could result in – or has already resulted in – the natural resource experiencing adverse effects of the kind mentioned in paragraphs 82 and 83 below. The Folk case shows that an existing authorisation in respect of the damage factors will not necessarily exempt the operator from the need to intervene. To the extent that the Directive allows reliance to be placed on an existing authorisation, relevant conditions must be fulfilled. Furthermore, a lack of fulfilment of relevant authorisation or other regulatory requirements is, of itself, likely to be a strong indication of the need to apply preventive measures and measures to manage damage factors under the Environmental Liability Directive. This is because it is likely to demonstrate that relevant damage factors have not been placed under the degree of control that fulfilment of regulatory requirements would ensure and are therefore more susceptible to cause adverse effects that come within the scope of the Directive. 82. With regard to the purpose of identifying a need for remedial measures, the provisions of Annex II on damage to protected species and natural habitats, and water damage indicate how a determination of significance and findings on impairment of services should be made in respect of these natural resources. The following all need to be considered in the light of the relevant reference concepts and the notion of impairment of services: measurable permanent loss of an area, part of an area, population or part of a population (101); measurable deterioration of an area, part of an area, or life conditions of a population or part of a population, which is, however, capable of being restored (102); measurable loss of services provided by the areas or populations affected (103); and the measurable time-gap that would arise before the baseline condition could be restored if restoration is possible (104). The adverse effects on the resource will be significant if there is a measurable loss or deterioration in respect of an area or population. As for associated services, there needs to be a measurable loss of the services that these natural resources provide. 83. So far as land damage is concerned, the provisions of Annex II indicate that the following should at least be considered: the presence, type and concentration of relevant contaminants, their risks and the possibility of their dispersion; the characteristics and function of the soil; and the current and approved future use of the contaminated land. The risk to human health will be significant if, in the specific local environment, there is a measurable change in the level of direct or indirect harmful exposure of human beings to contaminants that can be causally linked to an Annex III occupational activity. Indirect exposure may arise if the contaminated land provides services to other natural resources, for example if it filters pollutants that may reach water, or if there is dispersion of contaminants via the soil, air or water. Combinations of different categories of environmental damage 84. The fact that the definition of ‘environmental damage’ comprises three distinct sub-categories of natural resource damage does not mean that all categories need to feature in the adverse effects in order for liability to arise. Liability can arise where there is only one category of environmental damage. By the same token, where environmental damage features more than one category, all the categories concerned need to be addressed. The Directive does not give a discretion to limit its application to certain ones.

← 3 · All articles · 5 →

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