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DOC3-17/04/2018

March 2018

Specific Contract No 07.0203/2017/771706/SER/ENV.E.4Country fiche - templateFor discussion at ELD meeting

Support for the REFIT actions for the ELD –

phase 2

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Country Fiche and data collection on ELD

TABLE OF CONTENTS

1 COUNTRY FICHE............................................................................41.1 Legal framework and Administrative Structure......................................51.2 Facts and Figures on incidents of environmental damage.....................61.3 Facts and Figures on ELD cases.............................................................81.4 Outlook.................................................................................................101.5 Summary on the ELD implementation – How is [your country] doing? 11

ANNEX I: TEMPLATE FOR GATHERING INFORMATION - EXISTING SOURCES / DATABASES........................................................................................

..................................................................................................12ANNEX II: BASICS ON THE ELD...........................................................16

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Support for the REFIT actions for the ELD Phase 2Country Fiche & Data collection / 2

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1 COUNTRY FICHE

The Environmental Liability Directive 2004/35/EC (ELD) was designed to reduce damage to natural resources (biodiversity, water and land)1. It sets an environmental liability framework to prevent and remedy environmental damage to pre-damage (baseline) condition when it is caused by economic operators based on the ‘polluter-pays’ principle.

The Commission's evaluation on the implementation of the ELD2 adopted in April 2016 concluded that there is a considerable lack of data on ELD cases and that the number of comparable incidents/accidents of environmental damage treated under national legislation varies substantially between Member States. These reasons are probably behind the Directive’s limited effect in preventing and remedying environmental damage. This country fiche aims at providing information about Member States’ implementation of the ELD and give a comprehensive and comparable overview for each Member State.

The ELD Report’s section on ‘Recommendations and next steps’ highlights the need to ‘record data on ELD incidents and to publish ELD registers if they have not done so already’ as well as ‘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’ 3. Furthermore, the Commission recommendations at the Environmental Implementation Review adopted in March 2017 4 require 22 Member States to step up efforts in the implementation of the ELD and to set up a register of ELD incidents: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Germany, Estonia, Greece, Finland, France, Croatia, Hungary, Italy, Lithuania, Luxembourg, Latvia, Malta, Poland, Romania, Sweden, Slovenia, Slovakia.

This [template for a] country fiche provides an overview of the existing administrative and legal structure for the implementation of the ELD in each EU Member State. It includes information related to aggregated data on incidents of environmental damage as well as sources where information on individual environmental incidents has been identified. It also presents sources of statistics and aggregated data on cases treated under the Environmental Liability Directive as well as data on individual ELD cases. The information is, as much as possible, based on publicly available sources and presents facts and figures which are verified by the Member States. In addition, an appraisal of the ELD implementation in each Member State by the Commission services is included. The template of the country fiche reflects the objectives of the ELD and focusses on information that can be realistically compiled and made accessible to the public. Once finalised, the country fiche will be a key component of a wider ELD Information System at EU level, which aims at overcoming the evidence gaps identified in the above-mentioned evaluation.

The Annex I provides for a template to gather links or information relevant national and international sources of information (e.g. databases, documents…) on ELD implementation, including ELD cases at national or EU-wide level.

1 Commission, Executive Summary to the REFIT Evaluation of the Environmental Liability Directive, SWD(2016) 122 final, 14 April 2016.2 REFIT Evaluation of the Environmental Liability Directive, Commission Staff Working Document SWD(2016) 121final 14.4.2016.3 Report from the Commission to the Council and the European Parliament under Article 18(2) of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage, p.10.4 Commission Communication, the EU Environmental Implementation Review: Common Challenges and How To Combine Efforts To Deliver Better Results. 6.02.2017 and adopted on 02.2.2017 including an Annex with suggested actions on better environmental implementation at: http://ec.europa.eu/environment/eir/pdf/full_report_en.pdf

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http://ec.europa.eu/environment/eir/pdf/full_report_en.pdf

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1.1 LEGAL FRAMEWORK AND ADMINISTRATIVE STRUCTURE

General overview(editorial instructions to be deleted when the country fiche is finalised)

State organisation and law systemIn this section information about the administrative structure for the enforcement of environmental law in general is presented. In other words, whether the country responds to a federal structure or not and whether enforcement of environmental law is carried out at national, regional or local level. Please add the source of information.

Enforcement of environmental damageThis section presents a summary of the whole legal and administrative framework for environmental liability and the scope of the different levels. Administrative liability Civil liability Criminal liability Sectoral legislation to deal with cases of damage to biodiversity, water, land, or air

ELD legal and administrative frameworkThis section should cover the following information in a succinct way: Competent authorities Coordination with other authorities responsible to enforce the Directive Coordination with other authorities responsible for environmental incidents relationship between competent authorities and NGOs/civil, subsidiary obligation (or not) of the competent authorities to take action in case a liable operator

cannot be identified or is insolvent. Procedure followed by competent authorities to act in case of significant damage in the absence of such legal obligation

Main ELD transposing legislation indicating key elements such as:o Scope of biodiversity damageo Scope of operator definitiono Optional defenses (permit and state of the art defenses) incorporated or noto Multiple-party causation (joint and several v. proportionate)o Legislation establishing mandatory financial security

Please add main sources of information

[content of the country fiche]

Legal framework and administrative structure (Step 1)

1.1.1 State organisation and law system[to be completed with the country specific information]

1.1.2 Enforcement of environmental damage[to be completed with the country specific information]

1.1.3 ELD legal and administrative framework [to be completed with the country specific information]

Appraisal of the Commission services for step 1

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1.2 FACTS AND FIGURES ON INCIDENTS OF ENVIRONMENTAL DAMAGE

Incidents of environmental damage in [your country](editorial instructions to be deleted when the country fiche is finalised)

This section should provide the following information (and/or the links to the sources of the information:

Aggregated Facts and Figures on incidents of environmental damage[key information used for assessment]

Existing registry/database where data on environmental incidents and/or ELD cases are collected

o Link to national website[if no register exists, the following information will be labelled as "not available"]

Total number of environmental incidents in 2017 Total number of incidents from 2013-2017 Total number of incidents prior to 2013 Number of incidents causing damage to biodiversity, Number of incidents causing damage to water, Number of incidents causing damage to land Number of incidents causing damage to air Average cost of preventive measures? Average cost of remediating the damage? Highest cost of environmental damage? Lowest cost of environmental damage? Number of cases of environmental damage where liability has been identified and attributed to

private operator? (PPP) Costs borne by liable parties Number/type of financial security instruments available on the market for environmental

liabilities Number of insurance instruments that cover environmental liability available on the market Number of risks assessments carried out by operator Number of operators with environmental risk management systems



Facts and Figures on incidents of environmental damage (steps 2, 3 and 4)[key information used for assessment]

1.2.1 Existing registry/database where data on environmental incidents and/or ELD cases are collected

o Link to national website/register[if no register exists, the following information will be labelled as "not available"]

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1.2.2 Total number of environmental incidents in 2017

1.2.3 Total number of incidents from 2013-2017

1.2.4 Total number of incidents prior to 2013

1.2.5 Number of incidents causing damage to biodiversity,

1.2.6 Number of incidents causing damage to water,

1.2.7 Number of incidents causing damage to land

1.2.8 Number of incidents causing damage to air

Aggregated Facts and Figures on costs of incidents of environmental damage [other information provided if available and used in assessment as additional elements, if relevant]

1.2.9 Average cost of environmental damage

1.2.10 Highest cost of the environmental damage? Lowest cost of environmental damage?

1.2.11 Number of cases of environmental damage where liability has been identified and attributed to private operator? (PPP)

1.2.12 Average costs borne by liable parties

1.2.13 Average cost of preventive measures? (step 3)

1.2.14 Average cost of remediating the damage? (step 4)

Commission services’ appraisal for step 2, 3 and 4 on incidents of environmental damage

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1.3 FACTS AND FIGURES ON ELD CASES

ELD cases [in your country](editorial instructions to be deleted when the country fiche is finalised)

The following section provides an overview of the numbers related to ELD cases and a response to how effective prevention and remediation is; whether precautionary measures are put in place including financial security and whether risk/environmental management systems and mitigation/abatement technology are set up?

Aggregated Facts and Figures Total number of ELD cases Number of cases by type of environmental damage: damage to water, to land, to biodiversity Number of cases per year/per month since 2013: date of the ELD case Number of cases per year/per month since 2004 (date of entering into force: 30/04/2004) Number of ELD cases dealt with under International Conventions Type of activity causing the damage Number of ELD cases where preventive measures were taken for an imminent threat of damage Number of ELD cases where preventive measures avoided further damage and reduced the need to

take remediation measures Number of ELD cases where remediation measures effectively restore the damage? Average costs?

Average period required for full restoration or closure of case? Number of ELD cases where compensatory remediation measures for interim losses were taken Number/type of financial security instruments available on the market for ELD liabilities Number of insurance instruments that cover liability under ELD available on the market Number of risks assessments carried out by operator/competent authorities linked to ELD Number of operators with environmental risk management systems Number of events to exchange experience and training of authorities and stakeholders?



Aggregated Facts and Figures on ELD cases (steps 2, 3, 4 and 5) [This information will be presented in charts key information used for Commission services’ assessment]

1.3.1 Number of ELD cases where preventive measures were taken in cases of imminent threat of damage (step 3)

1.3.2 Number of ELD cases where preventive measures avoided further damage and reduced the need to take remediation measures (Step 3)

1.3.3 Number of ELD cases where remediation measures effectively restore the damage? Average costs? Average period required for full restoration or closure of case? (step 4)

1.3.4 Number/type of financial security instruments available on the market for ELD liabilities (step 5)

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1.3.5 Number of insurance instruments that cover liability under ELD available on the market (step 5)

Aggregated Facts and Figures on ELD cases (steps 2, 3, 4 and 5)[This information will be presented in charts The information provided will be used in assessment as additional elements, if relevant]

1.3.6 Total number of ELD cases

1.3.7 Number of cases by type of environmental damage: damage to water, to land, to biodiversity

1.3.8 Number of cases per year/per month since 2013: date of the ELD case

1.3.9 Number of cases per year/per month since 2004 (date of entering into force: 30/04/2004)

1.3.10 Number of ELD cases dealt with under International Conventions

1.3.11 Type of activity causing the damage

1.3.12 Number of ELD cases where compensatory remediation measures for interim losses were taken

1.3.13 Number of risks assessments carried out by operator/competent authorities linked to ELD

1.3.14 Number of operators with environmental risk management systems

1.3.15 Number of events to exchange experience and training of authorities and stakeholders?

Commission services’ assessment for step for step 2, 3, 4 and 5 for ELD cases

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1.4 OUTLOOK

Information on actions, initiatives and plans affecting ELD implementation in [your country] (editorial instructions to be deleted when the country fiche is finalised)

The following section provides an overview of national actions, initiatives and plans affecting ELD implementation. This list should be provided by Member States following the meeting of the ELD EG in April 2018. It should be succinct (see INSPIRE example) and make reference where to find more information on national level. If MS are unable or unwilling to provide such information. This section will be kept empty with the message. "No information available". If MS are providing such information , it will demonstrate how they are planning to tackle existing implementation issues. It will allow presenting MS efforts in a more beneficial manner, in particular if there are implementation gaps.

List of actions planned with reference and timetable



Outlook: Information on actions, initiatives and plans affecting ELD implementation in [your country]

1.4.1 Planned actions on step 1





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1.5 SUMMARY ON THE ELD IMPLEMENTATION – HOW IS [YOUR COUNTRY] DOING?

This table provides an overview of the implementation of the ELD according to the information in the country fiche. It will be completed by the Commission reflecting the situation in each Member State.

ELD key obligation Current implementation

status

Trend (progress since last

assessment)

Outlook (effect of planned actions)

Clear legal and administrative framework for ELD implementation (based on assessment of step 1 and information in section 1.1)

Existence of registers (on environmental incidents and/or ELD register) (based on assessment of step 2 and information in section 1.2.1)

Preventive measures adopted (under ELD or not)(based on assessment of step 3 and information in section 1.2.2 and 1.2.3 and 1.3.1 and 1.3.2)

Remedial measures adopted (under ELD or not) (based on assessment of step 4 and information in section 1.3.3)

Financial securities system established (based on assessment of step 5 and information in section 1.3.4 and 1.3.5)

LegendImplementation Status (current situation): : implementation of this provision is well advanced or (nearly) completed. Outstanding issues are minor and can be addressed easily. : implementation of this provision has started and made some progress but is still far from being complete. Outstanding issues are significant and need to be addressed to ensure that the objectives of the legislation can still be reached by 2020. : implementation of this provision is falling significantly behind or has not even started. Serious efforts are necessary to close implementation gap.

Trend (since last time):: the trend of the implementation is positive. : the trend of the implementation is neutral. : the trend of the implementation is negative.

Outlook (looking to the future):: clear and targeted actions have been identified which allow reaching the objectives of the legislation in an effective way.: No real progress has been made in the recent past or actions which have been identified are not clear and targeted enough to predict a more positive outlook.: no actions have been identified to overcome identified implementation gaps

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ANNEX I: TEMPLATE FOR GATHERING INFORMATION - EXISTING SOURCES / DATABASES

The following section aims at collecting information on data sources on environmental damage/ELD individual cases. Information on individual cases will be included in the ELD Information system. In this document we are interested to collect the sources of information (databases or any other format) and to understand the scope of the information collected. On that basis, please respond to the following questions and describe the type of information according to the check list in each box. Please indicate the relevant information source.

The information on environmental incidents and/or ELD cases will be gathered in a database of ELD cases developed through the ELD Information system.

The questions below are not part of a survey but can be put online to facilitate response.

1. In what capacity are you sharing information? [Choose one option]

Desk researchIndustry associationFinancial/Insurance associationNational public authoritiesRegional public authorityLocal Public authorityInternational OrganisationCivil society organisation/eNGOEU InstitutionOthers Please describe:

2. Can you provide us with information on environmental incidents? Yes No

3. Can you provide us with information on ELD cases? Yes No

Sources on environmental incidents

4. Is there a national official system to collect data on environmental incidents? Yes No

5. Is there any regional or local tool to collect information on environmental incidents? Yes No

6. Is there any international level tool that collects information of environmental incidents? Yes No

7. Is there any private sector system to collect information on environmental incidents? Do you collect that data? Yes No

8. Are any of these tools in database format? Please add the link below Yes

No

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9. If not, in what format is the information collected? Please describe

10. Are the above-mentioned tools publicly available? Yes No

11. Is there information on environmental incidents through media? Please provide below Yes No

Sources on ELD cases

12. Is there a national official system to collect data on ELD cases? Yes No

13. A. Is there any tool to collect systematically information on ELD cases? Yes No

B. Is there a private sector initiative to collect information on ELD cases? Yes No

14. Are any of the tools in database format?Please add the link below

Yes No

15. If not, in what format is the information collected? Please describe

Sources on environmental incidents or on ELD cases

16. Can you describe the content of the database / type of information it holds?Please consider the elements described in the bullet point of the box below?

Indicative check list of information on incidents of environmental damage / ELD casesPlease consider the following elements when describing the type of information collected:

Facts and figures on individual cases and relevant aggregated data Date of the incident and date on which proceedings were initiated under Directive Number of incidents of environmental damage prior to 2013 Number of incidents of environmental damage from 2013 to 2017 Number of incidents of environmental damage in 2017 Type of damage caused by the incident: number of incidents causing damage to water, land, air

or biodiversity Number of cases considered under the ELD Considerations or criteria justifying the non-classification as an ELD case? Activity classification code or Annex III ELD activity causing the damage or considered liable Defences applied

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17. Does the database / information cover data on prevention measures? Please describe – and consider the indicative list below

Indicative check list of information on prevention measures

Please consider the following elements when describing the type of information collected:

Description of preventive process followed and measures adopted to avoid environmental damage

Harmonised preventive methods and standards developed Have preventive measures been taken under ELD, other legislation or International Conventions Functioning information and notification system (including emergency systems) Outcome of the prevention process: description in relation to the objectives of halting

biodiversity loss, safeguarding the European waters and protecting the soil quality Liability of actual polluters attributed: type of liability and process Costs of the measures taken Justification for unrecovered costs Amounts paid by the liable parties Costs uncovered by the liable parties Administrative costs for the prevention measures

18. Does the database / information cover data on remediation measures? Please describe – and consider the indicative list below

Indicative check list of information on remediation measures


Description of the remediation measures effectively remedying the environmental damage Harmonised remediation methods and standards developed as necessary Have remediation measures been taken under ELD, other legislation or International

Conventions Compensatory remediation measures for interim losses taken Functioning information and notification system for ELD cases established as appropriate Outcome of the remediation process: description regarding the objectives of halting biodiversity

loss, safeguarding the European waters and protecting the soil quality Liability of polluter attributed: type of liability and process Functioning financial security system established as necessary Costs of the measures taken Justification for unrecovered costs Amounts paid by the liable parties Costs uncovered by the liable parties Administrative costs for the prevention measures

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19. Does the database / information cover data on financial securities? Please describe – and consider the indicative list below

Indicative check list of information on Financial Securities


Is having financial security mandatory? Measures taken to encourage development of financial security instruments Type of financial security instrument used of those available on the market for ELD liabilities Costs of the financial security Risk assessment carried out by the operator/competent authority Had the operators an environmental risk management system?

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ANNEX II: BASICS ON THE ELD

The Environmental Liability Directive 2004/35/EC (ELD) was adopted in 2004 and amended in 2006, 2009 and 2013. The main general purpose of the ELD is to contribute to the halting of biodiversity loss in the EU by 2020, to the improvement of the water quality of European waters and to the avoidance of land contamination. The overall objective of the ELD is to apply common, legally binding EU standards designed to reduce damage to natural resources (biodiversity, water and land)5.

The Evaluation Study on the implementation of the ELD6 adopted in April 2016 identified that the number of cases treated under the national ELD regimes varies substantially between Member States. It concluded that there is a considerable lack of data on ELD cases and on comparable incidents/accidents treated under national legislation. This project aims at addressing those barriers.

According to the ELD REFIT evaluation SWD7 the relative lack of data on ELD cases (including ELD accidents and incidents) in Member States is due, among others, to the lack of national ELD registries in the majority of Member States8. It concluded that the lack of robust information (e.g. significant variation in the number of ELD cases amongst Member States and few data on these cases in several Member States) impeded the achievement of an adequate REFIT evaluation9 and suggested the gradual establishment, inter alia, of an EU-wide ELD data register.

5 Commission, Executive Summary to the REFIT Evaluation of the Environmental Liability Directive, SWD(2016) 122 final, 14 April 2016.6 REFIT Evaluation of the Environmental Liability Directive, Commission Staff Working Document SWD(2016) 121final 14.4.2016.7 Ibid8 Please note that the set-up of national ELD registries is not an obligation under the ELD. Only few Member States have established some kind of registries, including Greece, Estonia, Latvia, Slovakia or Portugal. Some Member States also record these incidents under other registries (e.g. Industrial Emissions and/or Seveso Directive incident registries), such as France that set up the ‘ARIA’ database, which currently lists 40,000 accidents at website: http://www.aria.developpement-durable.gouv.fr/about-us/the-aria-database/?lang=en 9 REFIT Evaluation of the Environmental Liability Directive, Commission Staff Working Document SWD(2016) 121final 14.4.2016 p.63.

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http://www.aria.developpement-durable.gouv.fr/about-us/the-aria-database/?lang=en

http://www.aria.developpement-durable.gouv.fr/about-us/the-aria-database/?lang=en

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The intervention logic for the Environmental Liability Directive

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Objectives To establish a framework of environmental liability based on the ‘polluter-pays' principle, to prevent

and remedy environmental damage Ensure effectiveness in terms of actual remediation of environmental damages including for interim

losses Ensure the availability at reasonable costs of insurance and other types of financial security

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The ELD functionality can be presented as follows:

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Expected results / Impact Prevention and remediation of environmental damage works effectively in the EU, thus contributing to

the halting of biodiversity loss, to safeguarding the European waters and to protecting the soil quality Liability in environmental damage cases is clearly and rapidly attributed to the actual polluters Compliance with international obligations Appropriate financial security instruments and markets for ELD liabilities are available at reasonable

costs Awareness of risks and liabilities is improving gradually with operators and financial security providers Communication, and cooperation as appropriate, between the relevant stakeholders is growing

Consequences All MS applying the Directive meaning effectively preventing and remedying environmental damage Harmonised remediation methods and standards developed as necessary Functioning information and notification system / inventory of ELD instances system established as

appropriate Functioning financial security system established as necessary Developing and putting in motion awareness, information, exchange of experience and training of

operators, competent authorities, financial security providers and ENGOs at national and at EU levels Evaluating and reviewing the implementation (effectiveness, etc.) and taking action as necessary

Actions Member States to transpose the Directive into national legislation Member States to enforce and implement the Directive Member States to take measures to encourage the development of financial security instruments

including, as appropriate, to establish mandatory financial security Member States to report on the application of the Directive to the Commission in 2013 Commission to assess timely and conform transposition by all Member States Commission to monitor the implementation of the Directive and react as appropriate Commission to support implementation, and to engage with stakeholders Commission to report to Council and European Parliament in 2010 and to evaluate and report in 2014

External factors Transposition, compliance and willingness to enforce by Member States (Pre-)existing national legislation in this and neighbouring fields, the relevant national legal framework Resources, supporting tools and expertise within competent authorities Level of cooperation at all levels and between stakeholders Economic and financial environment Expertise and available funds within insurance and financial security industry Climate change (warmer climate = more biodiversity loss etc.)

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