Scope:

Evaluation of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (ELD)

Evaluation findings:

The key findings emerging from this report are that the Directive has improved:

• the standards of prevention and restoration of environmental damage,

• the application of the ‘polluter pays’ principle,

• strict liability across the EU for environmental damage,

• EU-wide liability for biodiversity damage, and

• public participation and access to justice for people affected and NGOs.

Implementation still varies significantly from one Member State to another in terms of the number of ELD cases and the way the Directive is implemented. The observed ‘patchwork’ of environmental remediation, together with the lack of some key data on implementation and on the cost (both administrative and financial security), is a major challenge.

Estimated savings and benefits

Remediation costs for operators: The total costs of remediation in the EU within the reporting period 2007 - 2013 amounted to around €6 million (€180 million if five major instances are included). The remediation costs turn on the average for one environmental liability case around € 42 000, if the five cases exceeding €1 million are disregarded. The environmental benefits should according to the applicable economic valuing and equivalency analysis correspond to the remedial and prevention costs.

Administrative costs for authorities: Only a few Member States provided information and data on administrative costs. The Flemish Region of Belgium indicated €55 000/year (gross) of annual administrative costs, Bulgaria € 135 613 per year (265 975 Bulgarian Lev) and Spain overall € 20 000 per year in staff costs, and between € 684 000 and €2 million of administrative costs of the autonomous communities and cities in Spain.

Follow-Up by the Commission:

The Commission developed a multi-annual rolling work programme (MQWP) which was discussed with and approved by Member States’ experts in February 2017. Stakeholder support is very positive. The MAWP will be completed by end of 2020. Current topics of the work together with the Member States are improving financial security for ELD liabilities, operationalisation of the ELD information system and work on improving the assessment of environmental damage. 

The MAWP 2017-2020 aims at

(1) improving the evidence base: the current work is focussing the development of an assessment framework including indicators, a map viewer, dashboard and country fiches,

(2) helping to improve the implementation through administrative support measures, consisting in the development of a ‘common understanding document’, a review of the ELD training programme and the development of capacity building measures (such as helpdesk for practitioners, ELD-wiki and other assistance and support measures),

(3) striving to make financial security for ELD liabilities work effectively.

Further actions by the Commission to improve implementation:

(1) The Commission launched a horizontal action concerning 16 Member States who failed to implement the judgment of the Court of Justice of the European Union in the Case C-529/15 (Folk) with regard to the correct transposition of Article 12(1) of the ELD. This provision shall pursuant to the interpretation of the Court ensure that all persons listed in the first sub-paragraph of the aforementioned Article have independently of each other the right to request a decision by the competent authority when an environmental damage has occurred. It is assumed that proper transposition will increase public participation and access to justice rights of civil society and environmental NGOs, thus contributing to more implementation of the Directive.

(2) A new contract on improving the implementation and the evidence base of the ELD has been concluded in June, which should improve the level of knowledge through investigation ‘on the ground’ with ELD-relevant stakeholders and practitioners as to how the Directive is known and applied at local level. One task is also to raise the level of awareness concerning the ELD and to engage more the civil society and environmental NGOs.

(3) Another new contract is being launched in October to better enforce the ELD in order to increase the demand of operators and the availability of insurance to cover ELD liabilities. This contract will in particular look into the relationship with previous national law, often applied instead of the ELD-transposing legislation in several Member States and will also work in particular with the Member State authorities.

Follow-Up by Member States:

To complement these efforts, the Commission recommends that all Member States undertake to:

• support their implementation efforts with proactive initiatives (such as guidance documents, training, electronic tools for risk analysis, baseline setting, financial security models etc.) as some Member States have done already;

• exchange administrative experiences and best practices and support each other in capacity-building efforts;

• review their interpretation of key provisions of the Directive, in particular in relation to ‘significance’;

• record data on ELD incidents and publish ELD registers if they have not done so already;

• systematically gather the necessary data that can document that the application of the Directive in their country is effective, efficient and in line with the overall situation in the EU.

The main follow-up to the REFIT evaluation consists in the proposed alignment of environmental reporting (Commission Proposal COM(2018)381) including the relevant parts of the ELD which will improve the evidence base for the ELD and make regular evaluation pursuant to Better Regulation requirements legally binding.

Estimated savings and benefits

Follow-up by the Commission and by Member States will improve implementation and impacts of the ELD and gather the necessary data for the next evaluation which should focus on assessing EU added value, efficiency and effectiveness of the Directive and on the quantification of regulatory costs and benefits.