ec.europa.eu€¦ · Web viewDOC5-05/10/2017. Milieu Ltd . Brussels . Towards a common...

DOC5-05/10/2017

September 2017

Specific Contract No 07.0203/2016/745366/SER/ENV.E4implementing framework contract No

ENV.D.4/FRA/2016/0003

Support in the implementation of REFIT

actions for the ELD – phase 1

Towards a common understanding of ELD key

terms and concepts

DOC5-05/10/2017

Towards a common understanding of ELD key terms and concepts

SUMMARY..........................................................................................61 INTRODUCTION.............................................................................92 KEY TERMS & CONDITIONS SUBJECT TO DIFFERENT INTERPRETATIONS............................................................................11

2.1 Determination of the baseline condition..............................................112.1.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................112.1.2 Interpretations of the provisions by Member States................122.1.3 Position of the Commission/views of Commission Service expressed in documents......................................................................132.1.4 Practices & illustrative case examples.....................................132.1.5 Good practices and recommendations.....................................15

2.2 Geographical reference of Favourable conservation status.................162.2.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................162.2.2 Interpretations of the provisions by Member States................172.2.3 Position of the Commission/views of Commission Service expressed in documents......................................................................172.2.4 Practices & illustrative case examples.....................................182.2.5 Good practices and recommendations.....................................18

2.3 Scope/significance of biodiversity damage..........................................192.3.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................192.3.2 Interpretations of the provision by Member States..................222.3.3 Position of the Commission/views of Commission Service expressed in documents......................................................................232.3.4 Practices & illustrative case examples.....................................232.3.5 Good practices and recommendations.....................................24

2.4 Scope/significance of water damage....................................................252.4.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................252.4.2 Interpretations of the provisions by Member States................262.4.3 Position of the Commission/views of Commission Service expressed in documents......................................................................272.4.4 Practices & illustrative case examples.....................................272.4.5 Good practices and recommendations.....................................29

2.5 Scope/significance of land damage......................................................302.5.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................302.5.2 Interpretations of the provisions by Member States................312.5.3 Position of the Commission/views of Commission Service expressed in documents......................................................................322.5.4 Practices & illustrative case examples.....................................322.5.5 Good practices and recommendations.....................................33

2.6 Preventive measures............................................................................332.6.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................332.6.2 Interpretations of the provisions by Member States................33

DOC5-05/10/2017

2.6.3 Position of the Commission/views of Commission Service expressed in documents......................................................................342.6.4 Practices & illustrative case examples.....................................342.6.5 Good practices and recommendations.....................................35

2.7 Scope of primary remediation..............................................................352.7.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................352.7.2 Interpretations of the provisions by Member States................362.7.3 Position of the Commission/views of Commission Service expressed in documents......................................................................362.7.4 Practices & illustrative case examples.....................................372.7.5 Good practices and recommendations.....................................37

2.8 Defences to costs vs defences to liability............................................372.8.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................372.8.2 Interpretations of the provisions by Member States................382.8.3 Position of the Commission/views of Commission Service expressed in documents......................................................................382.8.4 Practices & illustrative case examples.....................................392.8.5 Good practices and recommendations.....................................39

2.9 Legislation referred to in Annex III.......................................................393 ADDITIONAL POTENTIAL TERMS AND CONDITIONS IDENTIFIED.......42

3.1 Power or duty to require an operator to carry out preventive measures423.1.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................423.1.2 Interpretations of the provisions by Member States................433.1.3 Views of the Commission service.............................................43

3.2 Power or duty to require an operator to carry out remedial measures 433.2.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................433.2.2 Interpretations of the provisions by Member States................443.2.3 Views of the Commission service.............................................44

3.3 Power or duty to require an operator to carry out emergency remedial measures.......................................................................................................44

3.3.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................453.3.2 Interpretations of the provisions by Member States................453.3.3 Views of the Commission service.............................................45

3.4 Scope of interested parties entitled to submit comments to competent authorities......................................................................................................45


3.5 Notification of a competent authority’s decision to an interested party473.5.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................483.5.2 Interpretations of the provisions by Member States................483.5.3 Views of the Commission service.............................................48

3.6 Scope of the review of a competent authority’s decisions, acts or failure to act...................................................................................................49

DOC5-05/10/2017


3.7 Liability to a third party........................................................................503.7.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................503.7.2 Interpretations of the provisions by Member States................503.7.3 Views of the Commission service.............................................50

3.8 Recovery of costs.................................................................................513.8.1 Provision of the ELD and, where relevant, other pieces of EU legislation.............................................................................................513.8.2 Interpretations of the provisions by Member States................513.8.3 Views of the Commission service.............................................52

3.9 Scope of exception for activities the main purpose of which is to serve national defence.............................................................................................52


4 CONCLUSIONS.............................................................................545 LIST OF REFERENCES...................................................................57

DOC5-05/10/2017

SUMMARY

The implementation of the Environmental Liability Directive (ELD, 2004/35/EC) and more particularly its effectiveness and coherence (with notably other pieces of EU legislation), is affected by the various interpretations of definitions and specific terms, which may differ among Member States and lead to significant variations in implementation and enforcement of the transposing legislation.

Based on a literature review and exchanges with ELD Government Experts, the objective of this report is to provide an understanding, as well as a clear and objective overview, of the key terms and concepts of the ELD that either have been interpreted inconsistently in different Member States and their national legislation or lack coherence with related terms or definitions under other EU legislation. It does not constitute an authoritative interpretation of EU law, it proposes a clarification and analysis of these terms with a view to reach a common understanding taking into account the objectives of the Directive and a review of existing practices in Member States. The purpose of the document is to provide useful recommendations to Member States and stakeholders in relation to the interpretation of some key terms, definitions and concepts of the ELD.

A preliminary list of key terms and concepts as well as additional terms which could potentially be included in the list, were discussed at the 17 th ELD Government Experts Group Meeting of 28 February 2017 and later complemented with information provided by the experts through further exchanges including meetings on 1 June and 4 September 2017 with the European Commission and the representatives of the ELD Government Experts Group who volunteered to be part of the ad-hoc drafting group.

The draft document was also the object of a stakeholder consultation in July and August 2017, whereby a group of about 140 stakeholders from all Member States representing authorities, industry/operators, financial security and insurance, NGOs, as well as research and law firms were invited to provide comments and feedback on the document. Feedback received has been taken into account in the revised document.

Nine key terms and concepts have been identified that either have been interpreted inconsistently in different Member States or lack coherence with related terms or definitions under other EU legislation (such as Habitats Directive or Water Framework Directive):

ELD term / concept Issue identified

Determination of the baseline condition

How should the baseline condition be assessed?

Favourable conservation status What is the geographical reference that must be considered in determining the favourable conservation status of a natural habitat or protected species?

Scope/significance of biodiversity damage

How should the significance threshold for biodiversity damage be determined?How should the concept of ‘significant’ effect on biodiversity be interpreted (in light notably of the Habitats Directive)?

Scope/significance of water damage

Does the threshold for water damage apply to “waters” or to “water bodies”?

Scope/significance of land damage

What should be the degree of harm to human health the exceedance of which would be deemed land damage under ELD?

Preventive measures How should the definition of preventive measures be interpreted? Should it cover actions adopted to prevent the environmental damage

Milieu LtdBrussels

Towards a common understanding of ELD terms and concepts / 5

DOC5-05/10/2017


from becoming significant? Or must there be a certainty that the damage will become significant if no action is taken?

Scope of primary remediation Does “primary remediation” include emergency remedial measures, such as clean-up actions? What if clean-up actions impacts negatively the environment, making it more difficult to return it to baseline condition?

Defences: defences to costs or to liability

Are the defences specified in the ELD defences to costs or to liability?

Legislation referred to in Annex III

What are the EU pieces of legislation in force covered under Annex III of the ELD? i.e. what is the updated list of EU legislation to which Annex III apply?

In addition, nine additional terms and concepts have been identified by some national experts, with a suggestion that they could potentially be included in a common understanding document. However, these issues would merit further consideration before being included in the final list; in particular, the various interpretations should be validated by Member States through the ELD Government Experts. Furthermore, the necessity for interpretation of these additional terms and concepts should be clearly demonstrated, which is not always the case thus far.


Power or duty to require an operator to carry out preventive measures

Does the competent authority have a power or a duty to require an operator to carry out preventive measures?

Power or duty to require an operator to carry out remedial measures

Does the competent authority have a power or a duty to require an operator to carry out remedial measures?

Power or duty to require an operator to carry our emergency remedial measures

Does the competent authority have a power or a duty to require an operator to carry out emergency remedial measures?

Scope of interested parties entitled to submit comments to competent authorities

What constitutes a “sufficient interest” and “impairment of a right” entitling a person to submit observations to the competent authority?

Notification of a competent authority’s decision to an interested party

Does the competent authority have a duty to respond to interested parties who submit comments / observations? Does the competent authority have a duty to taken into account the comments / observations? If yes, are there any limits to such duties?

Scope of review of a competent authority’s decisions, acts or failure to act

What should be the scope of the review of a competent authority’s decisions, acts or failure to act? Should it necessarily include a review on the merits?

Liability of a third party May persons other than the operator be liable? Does the national legislation specify if a third party may be liable to implement preventive or remedial measures?

Recovery of costs What are the costs the competent authority is entitled to recover from the operator?

Does the competent authority have a power or a duty to recover such costs?

Scope of the exception for activities the main purpose of

What is the scope of the exception for activities the main purpose of which is to serve national defence? Could some activities related to

Milieu LtdBrussels


DOC5-05/10/2017

which is to serve national defence national defence still fall under the ELD?

All Member States’ ELD Government Experts were asked to provide feedback on whether none, some or all of the issues in the table above should be included in a common understanding document. The majority of Member States that expressed their opinion were not in favour of including these additional terms, while only one expert indicated that it would be beneficial to clarify all additional terms1. Also, some of the consulted stakeholders considered it unnecessary to include additional terms2.

Member States and consulted stakeholders did not suggest any other terms and concepts that should be included in the common understanding document, except one suggestion from Portugal to include the topic of minimum requirements that have to be considered to carry out a human health risk assessment to evaluate potential land damage.

Based on the above, two lists of ELD terms and conditions that are subject to various interpretations have been developed; the next step would be to agree on the final list of such terms and concepts that should find their way in the common understanding document.

Another additional point that could be considered is the impact the common understanding document, and the interpretation of various terms therein, may have on the availability of financial security instruments. Indeed, as the ELD requires Member States to encourage the development of financial security, including insurance for ELD liabilities, changes in interpretation could have an impact on the availability of insurance offer3. If agreed by a majority of stakeholders and government experts, the above two issues (additional terms and concepts; financial security terms and concepts) could be included. It would then be possible to develop, together with the ELD Government Experts and with input from other relevant stakeholders, a common understanding document including those additional terms and concepts and financial security to provide guidance to the Member States in order to reach a better level playing field. If not agreed, the above two paragraphs will be deleted.

1 Member States not supporting the inclusion of additional terms are: Belgium (Walloon region), Finland, Germany, Ireland, Italy, Romania, Hungary and the UK. Bulgaria was in favour of including the additional terms. Greece considers that it could be useful to clarify the terms “scope of interested parties entitled to submit comments to competent authorities” and “recovery of costs”.2 Pool Español de Riesgos Medioambientales – association of Spanish insurers/underwriters, Euromines, European Chemical Industry Council (Cefic)3 Note that the IMPEL network is currently conducting a project entitled “Financial Security: Protecting the Environment and the Public Purse”, which aims “to promote better understanding of the availability and suitability of financial tools followed by production of a decision making tool”. More information available at https://www.impel.eu/new-impel-project-financial-provision-protecting-the-environment-and-the-public-purse/

Milieu LtdBrussels


https://www.impel.eu/new-impel-project-financial-provision-protecting-the-environment-and-the-public-purse/

https://www.impel.eu/new-impel-project-financial-provision-protecting-the-environment-and-the-public-purse/

DOC5-05/10/2017

1 INTRODUCTION

The implementation of the Environmental Liability Directive (ELD, 2004/35/EC) and more particularly its effectiveness and coherence (with notably other pieces of EU legislation), is affected by the various interpretations of definitions and specific terms, which may differ among Member States and lead to significant variations in implementation and enforcement of the transposing legislation. This has been highlighted in the results of the ELD REFIT evaluation4 and the outcomes of the various ELD reports which have been commissioned and published by the European Commission in recent years. Indeed, despite the added value and positive developments in relation to the implementation of the ELD, the ELD REFIT evaluation identified the ambiguities around key ELD concepts and definitions as a main challenge which requires action in order to make the ELD more effective and efficient.5

In Chapter 6 of its ELD report,6 the Commission indicates that it will propose a Multi-Annual Work Programme (MAWP) to Member States’ experts and stakeholders with the objective to improve the evidence base and help align national solutions. In addition, the Commission reaffirmed its intent to continue to provide administrative support measures, including guidance or interpretative notices on key issues. The draft MAWP was discussed with the ELD Government Experts Group at its 17 th

meeting on 28 February 2017.

In such context, the objective of this report is to provide an understanding, as well as a clear and objective overview, of the key terms and concepts of the ELD that either have been interpreted inconsistently (or could be interpreted inconsistently) in different Member States and their national legislation or lack coherence with related terms or definitions under other EU legislation. However, the document is not intended to and does not constitute an authoritative interpretation of EU law. It proposes a clarification and analysis of these terms with a view to reach a common understanding taking into account the objectives of the Directive and a review of existing practices in Member States. The purpose of the document is to provide useful practices, case studies and recommendations to Member States and stakeholders in relation to the interpretation of some key terms, definitions and concepts of the ELD.

A preliminary list of key terms and concepts as well as additional terms which could potentially be included in the list, were discussed at the 17 th ELD Government Experts Group Meeting and later complemented with information provided, and through further exchanges including meetings on 1 June and 4 September 2017 with the European Commission and the representatives of the ELD Government Experts Group who volunteered to be part of the ad-hoc drafting group. The discussions of the drafting group focused on the terms listed in Chapter 2 and did not cover those in Chapter 3.

The draft document was also subject of a stakeholder consultation in July and August 2017, whereby a group of about 140 stakeholders from all Member States representing authorities, industry/operators, financial security and insurance, NGOs, as well as research and law firms were invited to provide comments and feedback on the document. All feedback received from stakeholders was considered and debated within the drafting group, which settled on their inclusion in or exclusion from the current document depending on their degree of relevance.

In order to ensure coherence of the ELD with other pieces of legislation, and based notably on recital (5) of the Directive,7 in principle the same terms appearing in different legislation should be 4 REFIT Evaluation of the Environmental Liability Directive, Commission Staff Working Document, SWD(2016) 121 final5 ELD REFIT Evaluation, p.626 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, COM(2016) 204 final7 Recital (5) of the ELD provides: “Concepts instrumental for the correct interpretation and application of the scheme provided for by this Directive should be defined especially as regards the definition of environmental damage. When the concept in question derives from other relevant Community legislation, the same definition should be used so that common

Milieu LtdBrussels


DOC5-05/10/2017

interpreted and applied in the same way,8 which is the view taken in this document.

criteria can be used and uniform application promoted.”8 Euromines insisted that the assessment of coherence of the ELD with other legislation should include interpretation of each definition according to its scope and specificity (including exceptions), in order to avoid generalising concepts and creating misunderstandings. As pointed out by Euromines, the ELD includes broad definitions with terms further defined and interpreted in other sectoral specific legislation (SEVESO Directive, Marine Strategy Framework Directive, Habitats Directive, etc.) (Euromines, 2017).

Milieu LtdBrussels


DOC5-05/10/2017

2 KEY TERMS & CONDITIONS SUBJECT TO DIFFERENT INTERPRETATIONS

The sections below present the key terms and conditions that have been identified as being subject to different interpretations within Member States and/or in relation to other EU environmental legislation. In an iterative process, the following information is, whenever available, provided for each identified key term and condition:

Issue identified; Provision of the ELD and, where relevant, other pieces of EU legislation; Interpretations of the provisions by Member States; Position of the Commission/views of Commission Service expressed in documents; Practices & illustrative case examples; and Good practices and recommendations.

The collected information is based on a review of existing literature. The document was complemented with the information provided by ELD Government Experts during and following the 17th ELD Government Experts Group held on 28 February 2017. ELD Government Experts were given the opportunity to provide feedback in writing over the months of March and April 2017. In addition, an ad-hoc drafting group has been established including representatives of the Commission and national experts from the ELD Government Experts Group who volunteered to participate and met on 1 June and 4 September 2017. The draft document was also the object of a stakeholder consultation in July and August 2017; feedback received was considered and, where relevant and pursuant to exchanges within the ad-hoc drafting group, taken into account in the revised document.

The key terms and conditions that have been identified are: Determination of the baseline condition; Geographical reference of favourable conservation status; Scope/significance of biodiversity damage; Scope/significance of water damage; Scope/significance of land damage; Preventive measures; Scope of primary remediation; Defences: defences to costs vs defences to liability; and Legislation referred to in Annex III.

Potential additional terms and conditions were identified and are presented in the next chapter, as the necessity and adequacy of including them in a common understanding document is still subject to discussion.

2.1 DETERMINATION OF THE BASELINE CONDITION

Identified issueHow should the baseline condition be assessed?

2.1.1 Provision of the ELD and, where relevant, other pieces of EU legislation

With regard to biodiversity damage, Article 2(1)(a) of the ELD provides that the significance of adverse effects “is to be assessed with reference to the baseline condition, taking account of the criteria set out in Annex I”. Article 2(14) of the ELD defines the baseline conditions as “the condition at the time of the damage of

Milieu LtdBrussels


DOC5-05/10/2017

the natural resources and services that would have existed had the environmental damage not occurred, estimated on the basis of the best information available”.

Annex I to the ELD has been considered by some as too complex and too difficult for authorities to understand, and not necessarily clear on how to use the assessment criteria (BIO Intelligence Service,2013, p. 122).

The definitions of water damage and land damage under the ELD do not mention the baseline condition. However, Annex II of the ELD provides, in relation to both water and biodiversity damage, that “Remedying of environmental damage, in relation to water or protected species or natural habitats, is achieved through the restoration of the environment to its baseline condition by way of primary, complementary and compensatory remediation.”

According to the ELD training handbook, “baseline conditions can be quantified using pre-incident data from the damaged site or data from similar sites unaffected by the incident (i.e. “reference” sites) or by using models” (Eftec, 2013, p. 69). To provide sources of information, the Commission has published an Excel table entitled “Biodiversity baseline condition”9, which also aims to provide methodological approaches at EU and 28 national levels in order to help determining the baseline conditions of biodiversity.

Other authoritative data sources exist, notably under the Habitats Directives (for biodiversity), the Water Framework Directive and the Marine Strategy Framework Directive (for water), and the Industrial Emissions Directive (for land, as far as controlled by the operators)10.

2.1.2 Interpretations of the provisions by Member States

Existing legislation in England and Wales requires the polluter to restore aquatic fauna and flora damaged by the pollution to its baseline condition, if reasonably practical to do so (BIO IntelligenceService, 2013, p. 87). The UK guidance does not provide any help to assess the baseline condition except mentioning monitoring data from reporting for the WFD and HD, reference sites and modelling (Remede toolkit that provides further information) (DEFRA, 2009).

Member States have access to different baseline data relevant to species, habitats and environmental data at national level to help determine the baseline condition. Some countries provide detailed methodological guidance on determination of the baseline conditions (e.g. France, Ireland, the Netherlands, Finland and Portugal – see details in below section on best practices). In addition, Portugal highlighted the need to discuss how the baseline condition should be assessed if no pre-incident data is available (Portuguese Environment Agency, 2017).

In Bulgaria, the baseline condition is defined in conformity with the ELD (Bulgarian Ministry ofEnvironment and Water, 2008). As reported by the Greek Ministry of Environment, “the collection of data on baseline condition takes place at regional and national level which influences their quality, homogeneity and easy use by all competent authorities for the evaluation of the damage .” The Ministry recognised that “this might result in a non-systematic and non-integrated procedure for damage determination” (Greek Ministry of Environment and Energy, 2017).

Other Member States refer to the baseline condition but do not provide any guidance on how to assess it.9 http://ec.europa.eu/environment/legal/liability/ 10 In connexion with the Industrial Emissions Directive (IED), members of European Aluminium pointed out that the source of information coming from the baseline report (under the IED) is normally very limited, since the IED is mainly focused on land properties owned by the operator. It is not a normal practice to cover a survey outside plant boundaries for land and groundwater under the IED. The association notes that in the event of an incident, the use of IED monitoring information and baseline report is limited to incidents where the consequences are in areas related to these monitoring programs. In other areas, other resources and databases should be used (European Aluminium, 2017).

Milieu LtdBrussels


http://ec.europa.eu/environment/legal/liability/

DOC5-05/10/2017

2.1.3 Position of the Commission/views of Commission Service expressed in documents

The ELD REFIT highlighted the importance of using the best available data for the determination of the baseline condition in order to assess individual damage11. It recognised a “great further potential for the development of sectorial and individual risk analyses and data bases for the determination of the baseline condition” in Member States. Indeed, the Commission reports, in the ELD REFIT evaluation, that some Member States, in particular Estonia and Portugal, have difficulties in defining and applying in practice the concept of baseline situation (European Commission, 2016a, pp. 43, 82,89).

2.1.4 Practices & illustrative case examples

The table “Biodiversity baseline condition” published by the Commission provides information sources on baseline data at European and national levels relevant to species, habitats and environmental data (soil, water, waste) to help determine the baseline condition. It provides methodologies and guidance that can be used to characterise the baseline.

Some Member States provide guidance on determination of the baseline conditions (e.g. France, Ireland, the Netherlands and Finland). For example, France issued a detailed methodological guide on determination of remedial measures that includes determination of the baseline condition of the site. The determination of the baseline condition before the accident and accurate identification of the damage includes the following tasks: (i) data collection: an essential preliminary stage, (ii) choice of proxy and determination of its baseline condition level, and (iii) assessment of the nature and severity of the damage with regard to the baseline condition. In particular, regarding cases that "significantly adversely affect the ecological, chemical and/or quantitative status and/or ecological potential of the 11 As questions on data quality (which data, how to find it, how to verify it, how to quality check it) are rather common, the following more comprehensive explanation is provided here:There is no single "methodology" to assess data quality given the variety of cases, resources, damage and remediation options etc. This is why it is crucial to have specialist experts working on risk, damage and remediation assessment so they have knowledge of and access to the appropriate data.However, it is possible to list a number of factors that influence data quality, such as:

(1) the nature of the data (biophysical or economic, about which resources, what kind of damage etc.); (2) the intended use(s) of the information (including how changes from baseline might be evaluated, sensitivity

analysis, etc.); and whether data in hand is appropriate for the intended use(s)(3) the methods used to collect the data; (4) the consistency of data collection methods and experience/expertise of samplers; (5) the design (statistical, temporal, spatial, ecological, etc.) of data collection; (6) various measures of precision and accuracy; (7) any laboratory data validation undertaken; (8) data recording and retention procedures; (9) consistency of ancillary data/information; (10) potential errors, omissions, and biases that could affect the certainty of the data (e.g. confidence intervals etc); (11) known/expected inherent variability in the type of data collection; (12) variability in environmental or anthropogenic conditions or states of nature that could affect the measure in

question; and(13) change in technology.

The above factors apply to damage measurement as well as to determining the baseline. In most cases, the practice is to identify any information / data that is available to help construct "baseline conditions" after the incident. Data collected to implement / monitor other EU Directives such as could help produce indicators of baseline. See also the excel tool "Biodiversity baseline condition"on the ELD website.A very important issue in baseline data “quality” is sample size and statistical power. It is common (although generally mistaken) to assess changes from baseline by conducting simple hypothesis tests against an H 0 that states that there is no difference (due to a damage causing incident) at an affected area from baseline. This creates a situation where smaller baseline sample sizes and/or greater variability – even when the data are "high quality" – reduce the power to “detect a difference”. The ELD regarding "significant damage" raises the ante on this problem – with regards to statistical significance. Finally, it is important to differentiate "data quality" from "analysis quality" such as how the data is actually analyzed, statistical manipulations and results presentations, which are a different challenge.

Milieu LtdBrussels


http://ec.europa.eu/environment/legal/liability/pdf/ELD%20biodiversity%20damage%20Register.xlsx

DOC5-05/10/2017

waters”, it describes elements to take into account to classify the ecological status of surface water and establish standards for water bodies (French general commission for sustainable development,2012, pp. 64, 71).

The Dutch guidance states that the best available information is to be used to determine the baseline condition. The information can be collected from Natura 2000 related published documents and management plans containing conservation objectives. It acknowledges however that information on areas other than Natura 2000 may be difficult to obtain. The Dutch guidance clarifies that in order to determine the status of water before the damage occurred, the provisions of the WFD are relevant (Dutch Ministry of Environment, 2008).

The Irish guidance provides details on screening assessment and establishment of baseline conditions. Regarding the damage to protected species and habitats, it details sources that contain available baseline information (in dedicated appendix on damage to protected species and natural habitats). Possible sources detailed are: a list of species and habitats covered by the national regulations, description of categories of conservation and ranking of protection, and a range of possible information sources useful to determine baseline conditions (e.g. National Parks and Wildlife Service website, site specific websites, conservations plans, habitat mapping sources, reference sites and documents, etc.). Regarding water damage, the guidance outlines criteria to assess the damage and provides details in a dedicated appendix. Firstly, it specifies the types of water bodies covered by both, the WFD and environmental liability regulations, as well as the water quality qualification for each water body. The national WFD monitoring programme established by the EPA makes it possible to determine on an ongoing basis if there has been any change to the ecological, chemical and quantitative parameters of the waters. As a result, there is a comprehensive set of baseline data available for water quality. The guidance also lists the main information sources on water quality (such as wfdireland.ie website, EPA ENVision map viewer website, and river basin management plans (Irish EPA, 2011).

The Finnish guidance states that comprehensive monitoring of the state of the environment in an area facilitates the assessment of its baseline condition, but other factors that may have an adverse effect on the state of the environment must be taken into account. It says that if “monitoring information is unavailable, the baseline condition can be assessed using a reference area or modelling based on historical data. If a reference area is used, it should resemble the damaged area as closely as possible. […] To the extent possible, the assessment should utilise existing information and information systems”. The guidance mentions Hertta, a web-based environmental information system that contains different environmental information (water, nature, land use, air). Regarding the protected species and habitats, the guidance refers to area-specific fact sheets listing the Natura 2000 information on the specific areas available in Finnish on the environmental administration’s website. In addition, it mentions using results of inventories performed by Metsähallitus in addition to the information on the fact sheets to assess the baseline condition prior to damage (Ministry of the Environment of Finland,2012).

The Portuguese guide provides guidelines regarding the baseline condition (called “baseline situation” in the guide) of protected species, natural habitats, water bodies and soil. It advises to “collect or update the available information in the event of any of the following situations: Whenever starting a new activity; Whenever there is a significant change in the operating conditions of an activity; Whenever there is a significant evolution in the conditions of the surrounding environment. The guide describes how to characterise a baseline condition of species, habitats, water bodies and soil(Portuguese Environment Agency, 2011).

In Spain, the Ministry of Agriculture and Fishery, Food and Environment developed an application that provides visualization, query and analysis of geographic information for individuals and professionals publishing topics related to the nature of mapping, the environment, protected areas,

Milieu LtdBrussels


http://www.wfdireland.ie/

DOC5-05/10/2017

forestry, wildlife among others.12

In Belgium, the guidance published by the Walloon Region lists all publicly available information (for water, land, and biodiversity) for determining the baseline (General Directorate of Natural Resourcesand Environment of Wallonia, 2008). In addition, according to the Belgium ELD Government Expert, in training and conferences to operators one of the messages conveyed is that it is in the best interest of operators to know their own site as well as possible (Public Service of Wallonia, 2017).

Illustrative case identified: Case treated under national ELD transposing legislation in Germany: Biogas leak at biogas plant

affecting protected fish species (some of the fish died) in the lake Veerse. In this case, there was a large amount of available data to determine the baseline, thus compensatory measures were undertaken (restocking of the lake) (BIO Intelligence Service, 2013, p. 103).

2.1.5 Good practices and recommendations

Establishing the baseline condition is key to assessing, when an incident occurs, whether the damage is to be considered damage under the ELD, i.e. whether it meets the significance threshold(s). To establish a comprehensive baseline, collecting the relevant data is key. Many Member States have understood this well as many guidance documents detail sources that contain available baseline information. It is notably the case of the Dutch guidance, which refers among others to Natura 2000 published documents and management plans, and the provisions of the Water Framework Directive. The Irish guidance, as well as that for Belgium (Walloon Region), also provide specific sources to be used. The Finnish guidance highlights that comprehensive monitoring of the state of the environment in an area facilitates the assessment of its baseline condition; if there is no information, models could be used.

It is to be noted that the assessment of the baseline condition is always site-specific, so relevant site-specific data are required for the assessment. Depending on the existence and availability of the information, the assessment might be more or less comprehensive. The recommendations proposed below are intended to help those in charge of the assessment; however, they may not apply in all specific cases.

We therefore recommend, as general guidance, the following approach to establish the baseline condition: Data collection from all available sources. These would include:

A “general baseline” which would be based on authoritative sources of information such as the data reported by Member States under EU legislation (Natura 2000, river basin management plans under the WFD, the initial assessment and under the MSFD13, the baseline reports under the EID) but also data available at national level on the basis of national legislation;

A refining of this baseline with updated data collected since the last reporting period, to ensure the most up-to-date data is used;

More extensive monitoring of the environment: it is important that such monitoring be carried out on a regular basis (and not only when an incident occurs); such data would serve to complement the authoritative baseline. Monitoring data could result from regulatory requirements (e.g. monitoring obligation under an environmental permit), but could also be carried out on a ‘voluntary’ basis by the public or professionals (see e.g. the application developed in Spain), public authorities, or the operators themselves who should be encouraged to collect data on the baseline (in the Walloon Region in Belgium, operators are encouraged to assess the baseline

12 http://www.mapama.gob.es/es/cartografia-y-sig/default.aspx13 The Commission has established a set of detailed criteria and methodological standards to help Member States Implement the Marine Strategy Framework Directive. See in particular Commission Decision (EU) 2017/848 of 17 May 2017 laying down criteria and methodological standards on good environmental status of marine waters and specifications and standardised methods for monitoring and assessment, and repealing Decision 2010/477/EU

Milieu LtdBrussels


DOC5-05/10/2017

condition precisely and collect data on the site where they operate in order to have the information available if any incident occurs. The message sent to the operators in this case is that collecting data on the baseline condition at site level is in their interest, even if there are no incidents);

If monitoring information is unavailable, it could be complemented by modelling based on historical data and/or by using a reference area, such as (a) similar site(s) as close as possible to the damage (see e.g. the Finnish guidance);

As pointed out by the German Insurance Association GDV, another important element to establish an extensive baseline is the cooperation of insurers both with competent authorities and environmental NGOs when handling environmental damage claims on behalf of the insured operator (GermanInsurance Association, 2017).In addition, data quality is essential to avoid misinterpretations or missuses (Euromines, 2017). In case data is gathered by the operators or other parties, it should be ensured by the authorities that the data is verified and validated (which means they may require third parties that supply data, where appropriate, to have the data independently verified). It was also proposed to review existing databases and monitoring programs to see if there are parameters not currently measured that would be helpful for baseline determination and which should be incorporated in future monitoring design (Ad-Hoc Industry Natural Resource Management Group,2017).

2.2 GEOGRAPHICAL REFERENCE OF FAVOURABLE CONSERVATION STATUS

Identified issueWhat is the geographical reference that must be considered in determining the favourable conservation status of a natural habitat or protected species?


In light of its Article 2(4), the ELD appears to state that a competent authority should determine that there is “environmental damage” if there is a significant adverse effect on reaching or maintaining the favourable conservation status of a protected species or natural habitat in any one of the following three areas: (i) the European territory of the Member States; (ii) the territory of a Member State; or (iii) the natural range of the natural habitat. However, the ELD does not define the “natural range” of a species or habitat protected by the Birds and Habitats Directives (BIO Intelligence Service, 2013, pp.64-65).

The Habitats Directive refers to the “natural range” of protected species and habitats (see in particular Articles 1(e) and 1(i)) but does not define the term or refer to the scale of the natural range at which to assess populations of species and natural habitats. The Directive is however more specific in the meaning of the term “conservation”, which is defined as “measures required to maintain or restore the natural habitats and the populations of species of wild fauna and flora at a favourable status” in the “European territory of the Member States to which the Treaty applies” (Articles 1(e), 1(i), 2). Article 1 of the Birds Directive (2009/147/EC) similarly refers to “the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies”. Finally, the Habitats Directive states that the “conservation status” of a species is favourable when, among other things, “the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future” (article 1(i)) and the “conservation status” of a natural habitat is favourable when “its natural range and areas it covers within that range are stable or increasing” (art 1(e)) (BIO Intelligence Service, 2013, pp. 64-65).

Milieu LtdBrussels


DOC5-05/10/2017

According to Valerie Fogleman (Fogleman, 2014, p. 204), the spatial area covered by the natural range of a species or habitat is unclear. The term “natural range” is not defined in any of the three directives (ELD, Birds and Habitats Directives). The author states that the Habitats Directive does not refer to the scale of the natural range at which to assess populations of species and habitats (Fogleman,2014, p. 204). The natural range of a species or natural habitat varies from one species or habitat to another and, thus, cannot be generally defined. In addition, the fact that nature is not static entails that very small incidents can change the conservation status relating to the natural range (BIO IntelligenceService, 2013, pp. 64-65), although this could be considered unlikely as the natural range, though not defined, is commonly regarded as a sufficiently large area, depending on the species or habitat type.

The threshold is linked to the favourable conservation status of a species or habitat, but also to “significant adverse effect on reaching or maintaining the favourable conservation status”. However, information on the natural range of many protected species and habitats is limited and incomplete (Fogleman, 2014, pp. 205-206). Some Member States have nonetheless defined the natural range for certain species.

As suggested by the UK experts, the emphasis should not be only on maintenance of FCS, but also on progressing towards or “reaching FCS for a species or habitat, with the result that any damage has to be considered in relation to slowing down or reversing progress” (DEFRA, 2017).


According to study results (BIO Intelligence Service, 2013, p. 66) the transposing legislation of many Member States does not specify with any precision the appropriate range of a natural habitat or protected species that must be considered in determining its favourable conservation status: The guidance for England and Wales states that the relevant range under the transposing

legislation is the United Kingdom with the exception of some species and habitats that also exist at other locations within the EU, populations of species that straddle the border with Ireland, and migratory birds for which the biogeographical range may be appropriate. The guidance is even more specific with regard to a species such as the great crested newt, for which the relevant range may be the entire United Kingdom and the stag beetle, for which the relevant range is only part of the United Kingdom. The guidance produced by the Scottish government is equivalent to that for England and Wales (The Scottish Government, 2009);

The Guidance for Ireland also provides assistance in determinations of biodiversity damage; The Guidelines to the Dutch transposing legislation conclude that the threshold for biodiversity

damage must be determined on a case-by-case basis due, in large part, to differences between the ELD as a liability system and nature conservation as a regime to conserve biodiversity.

According to study reports (Justice and Environment, 2013a, p. 9), the favourable conservation status of a species is defined in conformity with the ELD and the Habitats Directive definition in Austria, Germany, Spain, Croatia, Estonia, Hungary and Romania. Also, in Bulgaria, Greece and Portugal, the favourable conservation status of a natural habitat or a species is consistent with the definition in the ELD and Habitats Directive (Bulgarian Ministry of Environment and Water, 2008) (Greek Ministry of Environment and Energy, 2017) (Portuguese Environment Agency, 2017).

In particular, the German authorities consider that the “geographical reference of favourable conservation status” must be interpreted in accordance with the Habitats Directive based on the principle that “when the concept in question derives from other relevant Community legislation, the same definition should be used so that common criteria can be used and uniform application promoted” (based on recital 5 of the ELD). (The Federal Ministry for the Environment, NatureConservation, Building and Nuclear Safety, 2017).

According to Hungarian authorities, in a site-related authoritative procedure, the local conservation

Milieu LtdBrussels


DOC5-05/10/2017

status of a natural habitat or species has to be examined, but the favourable conservation status on a national scale must also be taken into consideration (Hungarian Ministry of Agriculture, 2017).


The ELD REFIT evaluation has found that one of the coherence issues between the ELD and the Habitats Directive relate to the notion of “favourable conservation status”. The ELD REFIT evaluation indeed concluded that “the geographical reference of the 'favourable conservation status' in Article 2(4) of the ELD (referring to "as the case may be, the European territory of the Member States to which the treaty applies or the territory of a Member State or the natural range") has shown difficulties in practical application. It is however often handled in a pragmatic way, and like this pragmatic approach it should be clarified that a site-related approach is required for effective implementation”.

The Commission concluded, in the ELD REFIT evaluation, that the coherence issue concerning “ the geographical reference of 'favourable conservation status' according to Article 2(4) ELD with the similar concept in the Habitats Directive, taking account of the need for a, site-related reference” should be further considered by way of interpretation and guidance (European Commission, 2016a).

Regarding the term “natural range”, the Commission explained in a legal interpretation provided to the question from Czech Republic that it differs for each species and depends on the population abundance. The Commission describes "natural range" as “roughly the spatial limits within which the habitat or species occurs but is not identical to these precise localities or territory which may be patchy or disjointed. Thus, "natural range" includes areas not permanently used (for example for migratory species) and represents in any case a dynamic concept (can decrease or expand). Natural range can also be in an unfavourable condition for a habitat or a species, i.e. it might be insufficient to allow for the long-term existence of that habitat or species14”. The Commission proposed a possible interpretation that “in practice the usual level of the assessment of significant adverse effects on the reaching or maintaining of the favourable conservation status of protected species and natural habitats will be a level lower than the European or national biogeographic region. It will be in most cases the local distribution of a species concerned” (European Commission, 2009).


The ELD guidance document in Ireland provides a set of factors to consider in order to assess favourable conservation status elaborated by the European Commission in 2006 (Eftec, 2013) (IrishEPA, 2011). It states that the ELD definitions of the favourable conservation status “can be used at a site level to enable an assessment to be made of the significance of the impact from a perceived damaging incident.”

Illustrative case examples identified: Case treated under national ELD transposing legislation in Poland: renovation work on a bridge

resulting in environmental damage to the natural habitats and species of swallows. This damage occurred in Szczecin and destroyed about 320 swallow nests (dropped in the water) and baby birds. It resulted in a significant negative impact on the appropriate conservation status of the species and its habitats; thus the competent authority required the operator to undertake remedial measures monitoring the number of nests and birds over four years (BIO Intelligence Service,2013, p. 110)

Two cases treated under national ELD transposing legislation in Germany: (i) Construction in the

14 The EIONET system allows to determine for all protected species and natural habitats in the EU the distribution and natural range (by using the map viewer in particular):For species: http://art17.eionet.europa.eu/article17/reports2012/species/summary/.For habitats: http://art17.eionet.europa.eu/article17/reports2012/habitat/summary/.

Milieu LtdBrussels


DOC5-05/10/2017

tunnels of a railway affecting protected bats and their natural habitats (located in the tunnel) and (ii) construction of a solar energy park affecting protected reptiles and their natural habitats. Due to these construction works, the population of animals decreased; thus the competent authority required the operators to restock the different sites providing new habitats for the affected species (BIO Intelligence Service, 2013, p. 104).


According to the Commission, a site-related approach should be applied when determining the geographical reference of favourable conservation status. That is also the view adopted by certain Member States (see e.g. guidance document for Ireland). It would also appear from the case studies identified that the assessment was carried out at the site level, although the geographical reference used is not clearly indicated. However, a certain margin of discretion is left to Member States as to level of granularity that should be used (macro vs micro scale). We are therefore of the opinion that the objective should not necessarily be harmonisation within the 28 Member States, but rather to ensure that minimum ‘checkpoints’ for good administrative practices. We hence recommend, as general guidance, considering the following approach: The FCS should be assessed (i) at EU level, (ii) at Member State level, and then (iii) at sub-

Member State level (which could be from a smaller part Member State territory to very locally, at a designated area;

If, on a macro level (e.g. EU or Member State), the natural habitat or species is not in FCS, this would entail that a closer assessment be made;

An assessment on a more micro-level is then necessary; the level itself should be at the discretion of Member States as the ELD is not prescriptive in that regard (principle of subsidiarity).

Where information is available, the assessment is facilitated. Where information is not available, then it must be complemented, for instance through the collection of information from nature protection agencies. The steps recommended in the section on the establishment of the baseline condition (section 2.1 above) would be relevant here. As in the case of determination of the baseline condition, a case-by-case approach is needed and the criteria of Annex I of the ELD should be considered in any specific incident.Member States could also consider defining the natural range of species or habitats; some have already done so.

2.3 SCOPE/SIGNIFICANCE OF BIODIVERSITY DAMAGE

Identified issueHow should the significance threshold for biodiversity damage be determined?How should the concept of ‘significant’ effect on biodiversity be interpreted (in light notably of the Habitats Directive)?


The ELD requires the damage to protected species and natural habitats to have “significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species” (ELD, Art. 2(1)(a)). The criteria used to assess the significance of damage are set out in Annex I of the ELD.

A similar concept exists under the Habitats Directive (92/43/EEC), which provides in its Article 6(2):

Milieu LtdBrussels


DOC5-05/10/2017

“Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbances of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this directive”. According to the Commission Guidance document on Article 6 of the Habitats Directive, in order to be significant “a disturbance must affect the conservation status” and is applicable both to the disturbances to species and the deterioration of habitats15. In addition, Article 6(3) of the Habitats Directive states that “any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives […]”.

The wording of these provisions has given rise to divergent interpretations: The term “significant” under the ELD and the Habitats Directive should be applied in the same

way to ensure proper implementation and consistency of both pieces of legislation; versus The significant threshold is lower under the Habitats Directive than under the ELD.

According to study results (Milieu Ltd, 2014, p. 21), under the Habitats Directive, any disturbance affecting the conservation status of habitats or species is considered significant. The Commission Guidance document interprets Article 6(2) in relation to significant disturbance as follows: “[I]n order to be significant, a disturbance must affect the conservation status of the habitats or species”). On the other hand, an ELD damage should have a significant and adverse effect on the favourable conservation status (“significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species”): not any effect on the favourable conservation status but a significant effect is required. There is thus a difference in wording, which has led to an interpretation of Article 6(2) of the Habitats Directive leading to a lower threshold than that under the ELD.

Still according to study results (Milieu Ltd, 2014, p. 21), the difference in the definition of ‘significant’ damage between both pieces of legislation leads to an inconsistent determination of the threshold for biodiversity damage. The threshold being interpreted as higher for the ELD, it entails that potential ELD cases are possibly dealt with by sectorial legislation mostly linked to nature conservation under which operators’ liability may not be defined and therefore costs of damage may not be paid by polluters but by the public authorities16. This is inconsistent with the purpose of the ELD which aims at establishing a framework of environmental liability based on the ‘polluter-pays' principle, to prevent and remedy environmental damage.

Both provisions of the Habitats Directive, Articles 6(2) and 6(3), refer to the concept of significance which would be determined through an appropriate assessment. Although Article 6(3) is related to plans or projects likely to have a significant effect and Article 6(2) concerns avoiding the significant disturbance or deterioration of the species and habitats, the requirement to carry out an assessment of the impacts on the site generated by the project or economic activity is not exclusive of Article 6(3) 15 European Commission, Managing Natura 2000 Sites, The provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC, 2000, p.29, ISBN 92-828-9048-1. Available at http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/provision_of_art6_en.pdf 16 According to Valerie Fogleman (Fogleman, 2014, p. 210), if the significance threshold under the Habitats Directive were to be applied to the ELD, it would result in a very low threshold. The word “significant” in the ELD refers to the adverse effect on reaching or maintaining the favourable conservation status of a species or habitat, not effects on the site itself. However, the practical implementation of such a broad approach in determining whether a case should be considered under the ELD is very difficult in the urgency of dealing with an imminent threat or an actual damage case (Milieu Lid, 2014).

In addition, the ELD defines an imminent threat of damage as a “sufficient likelihood that environmental damage will occur in the near future”, which, according to the author, strongly suggests that the threshold for environmental damage itself is higher than “may have significant effects”. Valerie Fogleman concludes that “Until the legal uncertainty surrounding the threshold for ecological damage under the ELD is removed, the perception that the threshold in the ELD is very high will continue. This perception is still widespread with the threshold often referred to as a “severity threshold””.

Milieu LtdBrussels


http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/provision_of_art6_en.pdf

http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/provision_of_art6_en.pdf

DOC5-05/10/2017

and applies in relation to Article 6(2) as ruled by the CJEU.17This assessment is based on similar criteria to those used under the ELD.

Under the ELD, significance is determined through an assessment on the basis of general criteria set up under Annex I of the Directive.

According to Milieu, the criteria under Annex I of the ELD do not include any particular quantitative requirement and are in line with those used within the framework of the Habitats Directive for assessing the impact of projects on the favourable conservation status of habitats and species for which the site was designated.18 Thus, it may be argued that, given that a consistent interpretation of both legal acts was an objective of the legislator, it is justified to interpret significant in a consistent way in both legal frameworks. This would mean that when a case of biodiversity damage is caused by an occupational activity (listed in ELD Annex III or not) affecting species or natural habitats protected under the Birds and Habitats Directive (according to the scope set in the ELD), the damage would be considered significant from the moment it affects adversely the conservation status of the relevant habitats or species.

This interpretation would provide an answer to the questions from UK government experts regarding the consistent implementation of both EU legal acts, in particular that “Article 6(2) of the Habitats Directive clearly relates only to special areas of conservation in any event, and the ELD covers more than just these sites”. As both Article 6(3) of Habitats Directive and the ELD refer to significance, the UK experts question “whether there is a conflict that requires any further resolution” (DEFRA,2017), a point also supported by Germany and the Commission and Milieu. Under the ELD damage to protected species and natural habitats covers those referred to in the relevant Annexes of the Birds Directive and in the Habitats Directive for the protection of habitats and species in SACs and SPAs as

17 See in particular CJEU, Case C-127/02, Waddenvereniging and Vogelsbeschermingvereniging, 7 September 2004. Available at http://curia.europa.eu/juris/liste.jsf?language=en&num=C-127/02. The court states that economic activities, such as recreational activities of fishing or hunting, could not be generally regarded as not causing disturbance in order to justify their systematic exclusion from the obligation to avoid deterioration and disturbance of species, or to assess their impacts on Natura 2000 sites under Article 6(3) of the Habitats Directive.”

See also CJEU, Case C-258/11, Sweetman vs An Bord Pleanála, 11 April 2013, where the court ruled that Article 6(3) of the Habitats Directive “must be interpreted as meaning that a plan or project not directly connected with or necessary to the management of a site will adversely affect the integrity of that site if it is liable to prevent the lasting preservation of the constitutive characteristics of the site that are connected to the presence of a priority natural habitat whose conservation was the objective justifying the designation of the site in the list of sites of Community importance, in accordance with the directive. The precautionary principle should be applied for the purposes of that appraisal.”

18 Under the Habitats Directive, favourable conservation status is the reference to fix the limit of acceptable disturbance and deterioration with respect to the objectives of the directive. At a site level, the maintenance of the favourable conservation status has to be evaluated against the initial conditions provided in the Natura 2000 standard data forms when the site was proposed for selection or designation, according to the contribution of the site to the ecological coherence of the network. The conservation status may also be measured against the aim of improving the conservation status announced at the time of the setting-up of the network. As a general rule, on a particular site, disturbance or deterioration is assessed on a case-by-case basis, using indicators: ‘The natural range and areas it covers within that range are stable or increasing’‘The specific structure and functions of the area necessary for its long-term maintenance exist and are likely to continue to exist in the foreseeable future’the good conservation status of the typical species which are associated with this habitat are reduced in comparison to their initial status.

In relation to species the favourable conservation status is measured on the basis of: ‘Population dynamics data on the species concerned indicating that it is maintaining itself on a long-term basis as a viable element of its natural habitats’. Any event which contributes to the long-term decline of the population of the species on the site can be regarded as a significant disturbance. ‘The natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future’ Any event contributing to the reduction or to the risk of reduction of the range of the species within the site can be regarded as a significant disturbance. ‘There is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis’.

Milieu LtdBrussels


DOC5-05/10/2017

well as beyond in the breeding sites or resting places of the species listed in Annex IV to the Habitats Directive or to those habitats or species, not listed in those Annexes which the Member State designates for equivalent purposes as those laid down in these two Directives.

2.3.2 Interpretations of the provision by Member States

The difference between the Habitats Directive’s interpretation and the definition of biodiversity damage under the ELD has led most Member States to interpret and apply the ELD based on higher thresholds (Milieu Ltd, 2014, p. 51).

While some countries such as Denmark or France understand significant damage as severe (very high threshold), others such as Germany, Poland, Romania, Greece and Portugal consider significant any biodiversity damage beyond negative variations (ref. Annex I to the ELD) (BIOIntelligence Service, 2013; Milieu Ltd, 2014) (Greek Ministry of Environment and Energy, 2017) (Romanian Ministry of Environment, 2017) (Portuguese Environment Agency, 2017). In particular, the German authorities consider that the term “significant” effects on biodiversity should be interpreted in the light of Art. 6 (3) of Habitats Directive (not Art. 6 (2)); as “the contracting parties of the ELD identified Art. 6 (3) of the Habitats Directive as point of reference for the determination of the scope of biodiversity damage in Art. 2 (1) (a) of the ELD”. Still according to the German authorities, the “Art. 2 (1) (a) of the ELD includes a direct link to Art. 6 (3) of the Habitats Directive and both pieces of legislation incorporate the wording “significant effect””. (The Federal Ministry forthe Environment, Nature Conservation, Building and Nuclear Safety, 2017).

The UK interpretation suggests that the ELD concerns most serious cases of negative impact on the environment. The guidance for England and Wales on Environmental Damage Regulations describes “a significant conservation status effect as “one which is of importance in terms of the effect making it significantly harder to maintain the favourable conservation status of a species or habitat, or making it significantly harder to reach favourable conservation status” (DEFRA, 2009). The guidance provides further explanation on how to assess the significance of the damage effect (see section 2.3.4). The guidance for Scotland stresses that “Damage must be severe enough to have a significant adverse effect on the species or habitat reaching or maintaining their favourable conservation status (FCS) in the UK. A judgement in any particular case will of course, depend on the circumstances of that case and such judgements must be made on a case-by-case basis.”

In Slovenia, the definition in Article 3, point 6.8.2, of the Environmental Protection Act (“Okoljska škoda je večja škoda, povzročena posebnim delom okolja”) refers to “bigger damage” (translation of the Slovene words “večja škoda”). Such threshold would be lower than that of “significant damage” (“znatna škoda” in Slovene). the Slovene legislation is hence far from rigorous, harsh or critical; but it does not include every (insignificant) damage (Ministry of Environment and Spatial Planning ofSlovenia, 2017).

Croatian legislation requires, for any environmental damage, “a measurable adverse effect or change on natural resources, or direct or indirect measurable disturbance in the functioning of natural resources”19. The Croatian Nature Protection Act defines damage to nature (“ecological damage”) as “any intervention or action in nature conducted without a legal basis which suppresses, damages or destroys the value, structure, quality, variety and/or uniqueness of a part of nature”20. According to a study (Justice and Environment, 2013a, p. 11), there are thus two parallel systems for determining the ‘significance’ of biodiversity damage: one is the transposed ELD (“that has significant adverse effects”) and the other one is a national severity threshold that encompasses every illegal damage to biodiversity, not limited to Annex III activities. The national system should be applied in case the ELD threshold is not reached (Justice and Environment, 2013a, p. 11).19 Article 4(1), item 68 of the Environmental Protection Act (Zakon o zaštiti okoliša) (‘O.G.’, No 80/13, 153/13 and 78/15).20 Article 174(1) of the Nature Protection Act (Zakon o zaštiti prirode) (‘O.G.’, No 80/13).

Milieu LtdBrussels


DOC5-05/10/2017

In Hungary, national legislation defines biodiversity damage and aspects helping to determine the significant effect on biodiversity in Gov. Decree 91/2007 (IV. 26.) Annex I. Regarding biodiversity damage, Hungarian authorities suggest to include along with other relevant legislation the provisions of Directive 2006/118/EC on the protection of groundwater against pollution and deterioration, which states that “groundwater is a valuable natural resource and as such should be protected from deterioration and chemical pollution. This is particularly important for groundwater-dependent ecosystems and for the use of groundwater in water supply for human consumption” (HungarianMinistry of Agriculture, 2017).


The Commission concluded, in the ELD REFIT evaluation, that the coherence issue concerning “ the relationship between the significance threshold in the ELD and habitat deterioration and significant species disturbance pursuant to Article 6(2) Habitats Directive” should be further considered by way of interpretation and guidance (European Commission, 2016a, p. 61).

The ambiguities related to the definition of the ‘significance threshold’ are considered one of the main challenges of the ELD implementation. The significance threshold is linked to the favourable conservation status (see section 2.2 above). The ELD REFIT highlights the difficulties in application in practice of the geographical reference in the determination of favourable conservation status, indicating that a site-related approach is desirable if the objective of effective implementation should be achieved (European Commission, 2016a, p. 53).


The guidance documents in the Netherlands, Finland and UK provide additional evaluation factors that should be taken into account when assessing protected habitat and species damage: The Dutch guidance states that “given the definition of environmental damage and the

aforementioned criteria, no fixed values can be specified in advance for establishing the existence of damage or for the damage threshold, as they depend on the specific circumstances of each case”. It also outlines steps that competent authority can consider in order to make a decision whether the damage occurred and to determine if the threshold has been met. Such steps are the following (Dutch Ministry of Environment, 2008, p. 45): “There is damage to protected species and natural habitats (Step 1); There is damage compared with the baseline condition (Step 2); A type of damage is arising or is threatening to arise (Step 3); There is damage compared with the favourable conservation status for the species and

habitats in question (Step 4); and The adverse effect is significant (Step 5).”

The Finnish guidance includes precise criteria for evaluation of the significance of damage to protected species and natural habitats (Ministry of the Environment of Finland, 2012, p. 26) which implements Annex I of the ELD; it also provides further explanation on the understanding of the criteria which are the following:

1. The number of individuals of a species, their frequency or locality.2. The significance of the damaged individuals or damaged area to the level of the conservation status of the species or the natural habitat, taking into consideration the viability of the species or the inherent range of the natural habitat and the customary natural variance.3. The dispersal capacity of the species and the regenerative capacity of the natural habitat.4. The capacity of the species or natural habitat to recover naturally, at a minimum, to the condition that prevailed when the damage occurred.

Milieu LtdBrussels


DOC5-05/10/2017

5. The effects on human health.

The UK guidance on Environmental Damage regulations presents factors, on the basis of ELD Annex I criteria, in reference to which the significance of the damage effect can be assessed (DEFRA, 2009) (The Scottish Government, 2009):

a. The conservation status at the time of the damage; based on the information available on conservation status. The parameters for assessing the conservation status of habitats are: range, area covered by habitat type within range structure and function, and future prospects; the parameters for species are: range, population, habitat for the species and future prospects.

b. The services they provide; where favourable reference values are provided and the damage has a significant bearing on whether favourable reference values are reached or maintained, the judgement should be that there is a significant conservation status effect.

c. Their capacity for natural regeneration; if, for example, recovery is possible without human intervention within a short period, there is unlikely to be a significant conservation status effect.

d. The number of individuals, their density or the area covered. e. The role of the particular individuals or of the damaged area in relation to the species or

to the habitat conservation, and the rarity of the species or habitat assessed at the relevant level whether local, regional or Community-wide.

f. The capacity of the species for propagation, its viability or the capacity of the habitat for natural regeneration; whether recovery is possible, whether human intervention is necessary and possible and the timescale for recovery.

g. The capacity of the species or habitat to recover within a short time of the damage being caused to a condition which leads to its state at the time of the damage or better without any intervention other than increased protection measures.

Illustrative case examples include: Two cases in France where conditions to apply ELD were not met – damage was considered not

significant enough (Discharge of soda into Vienne River and discharge of black liquor into Arcachon Basin) (BIO Intelligence Service, 2013, p. 100). One of the cases occurred in 2011, a tank filled with 600 m3 of sodium burst on the site of a paper pulp production plant at Saillat-sur-Vienne, causing significant spill of sodium into the Vienne river. The installation of a conventional emergency system with a floating dam enabled the pollution to be contained effectively. This action combined with a high watercourse flow rate spared the flora and fauna serious consequences (French general commission for sustainable development, 2012).

Case treated under ELD transposing legislation: construction of a cableway in Stóg Izerski in Poland: the competent authority imposed remedial action on the operator. Due to the lack of data on the initial state of the environment and population of endangered species, it was difficult to assess the extent of the damage and provide adequate forms of protection. It was difficult to prove operator’s responsibility for the biodiversity damage (BIO Intelligence Service, 2013, pp. 109,annex B).

Case treated under ELD transposing legislation in Germany: maintenance works on a riverbank in Natura 2000 site which affected biodiversity. The competent authority considered that the damage caused to priority natural habitats and nests (protected birds), was significant. The damage has been remediated by applying the ELD regime (BIO Intelligence Service, 2013, p.103).

Case treated under ELD transposing legislation in the UK: a farm worker applied manure to a 10 ha Site of Special Scientific Interest notified for calcareous grassland. It was established that 10% of the site was covered in negative species (mainly nettles) and without any action, this was likely to get progressively worse and more significant. The competent authority required the farmer to undertake remedial actions (DEFRA, 2009, p. 99).

Milieu LtdBrussels


DOC5-05/10/2017


It results from practices and case studies that the assessment of the scope/significance of biodiversity damage must be carried out taking into account the specific circumstances of each case. It is nevertheless important to ensure that a process is in place, such as specific steps, to determine when there is damage under the ELD (see e.g. the Dutch guidance). This would also be valid for other types of damage (water, land).

It also appears important to either align the concept of significance under the ELD with that of significance under the Habitats Directive or to make the difference clear. Alignment is certainly necessary as regards the relationship between Article 6(3) and (4) of the Habitats Directive and the ELD. Article 6(3) and (4) include the same significance threshold as the ELD. However, Article 6(2) of the Habitats Directive includes only partly this significance threshold (see above), but this is justified because Article 6(2) Habitats Directive is not in the same way comparable with the ELD as Article 6(3) (the ELD and Articles 6(3) and (4) of the Habitats Directive share the same concept of assessment with the only difference that it is in the case of the Habitats Directive ex-ante and in the case of the ELD ex-post – see also ELD training material for further information). Therefore, we do not recommend that alignment mean having a similar threshold for both directives with regard to Article 6(2) Habitats Directive; the threshold in the latter Article of the Habitats Directive appears partly lower that than under the ELD, and lowering the threshold under the ELD could lead to difficulties regarding insurability. Nonetheless, the significance of damage under the Habitats Directive could be taken into account in the multi-step approach that could be implemented to determine whether there is biodiversity damage under the ELD (see e.g. the Dutch guidance).

We therefore recommend that a multi-step process be followed, to help authorities determine whether there is biodiversity damage under the ELD. Such a process could be the following:Step 1: Is there a biodiversity incident/damage?Step 2: Is the damage significant under the Habitats Directive? Step 3 (if the answer is yes to the previous step): Is the damage significant under the ELD? Such

assessment should be carried out on the basis of: The baseline condition (see section 2.1 above); The favourable conservation status of a natural habitat or protected species and its

geographical reference (see section 2.2 above); and The criteria listed in Annex I to the ELD.

If the legislation of a Member State is stricter than the Habitats Directive (e.g. the ELD applies even if there is no significant impact under the Habitats Directive), Step 2 above should not be a pre-condition to the assessment of damage under the ELD.

2.4 SCOPE/SIGNIFICANCE OF WATER DAMAGE

Identified issueDoes the threshold for water damage apply to “waters” or to “water bodies”?


Article 2(1)(b) of the ELD defines “water damage”, in relation to the Water Framework Directive (2000/60/EC, WFD) as “any damage that significantly adversely affects the ecological, chemical or quantitative status or the ecological potential, as defined in [the WFD], of the waters concerned […].” It also defines “water damage” in relation to the Marine Strategy Framework Directive (2008/56/EC, MSFD, as “any damage that significantly adversely affects (…) the environmental status of the marine waters concerned, as defined in [the MSFD], in so far as particular aspects of the environmental

Milieu LtdBrussels


DOC5-05/10/2017

status of the marine environment are not already addressed through [the WFD].”The WFD, in its Article 2 notably, refers to “water bodies”.

The question is hence whether the threshold for water damage applies to “waters” or only to “water bodies”, as defined in the WFD. According to study results (Stevens & Bolton, 2013, p. 12) , “due to the large size of water bodies in some Member States, this results in the potential for the ELD rarely being applied to water damage in some Member States compared to those in which the threshold for water damage is ‘waters’”.

According to study results (BIO Intelligence Service, 2013, p. 60), an argument that water damage under the ELD is to all “waters” and not only water bodies is the inclusion in the definition of water damage of the phrase “damage […] of the waters concerned” rather than damage to water bodies. However, as indicated above, the definition of water damage states that the damage must “significantly adversely affect[] the ecological, chemical and/or quantitative status and/or ecological potential […] of the waters concerned”, which would imply that the damage must necessarily be to water bodies.

According to Valerie Fogleman, linking the definition of water damage to water bodies severely limits application of the ELD in many Member States, in particular due to the size of water bodies. She reports that some groundwater bodies exceed 1500 km2 and the average river water body in the EU is 11 km (Fogleman, Valerie, 2017).


Some Member States have interpreted the ELD to mean that the threshold applies to any waters defined by the WFD (Belgium (Walloon Region), Germany, Hungary, Luxembourg, Poland, Austria, Croatia, Estonia, Romania, and Greece). Other Member States consider that an entire surface or groundwater body, as defined by the WFD, must be impacted before water damage occurs (Belgium (Flemish Region), Estonia, Ireland, the Netherlands, and the United Kingdom). In particular, in the UK a river basin management plan may divide a conventional water body into smaller sub-divisions for the purposes of the plan and/or the WFD, and it is these smaller bodies that are considered relevant for the purposes of the ELD(DEFRA, 2017).

Both solutions (threshold applies to any waters and to water bodies) are applied in Estonia – depending on whether a water body is formed or not. For example , according to Article 2(3) of the Estonian Environmental Liability Act, “substantial adverse effects” on groundwater means effects that impair: the status of a groundwater body in such a manner that the status class of the groundwater body

determined in accordance with the procedure established on the basis of the Water Act changes to „bad“;

the qualities of groundwater not forming a part of a water body in such a manner that the water or the substratum or biota of the water body exceeds the limit value of the quality of the environment established on the basis of the Water Act or the limit value established on the basis of the Water Act (Estonian Environmental Board, 2017).

In Spain, where the significance of water damage is evaluated on a water body level, the legislation specifies that a water damage is significant if there is a change in the classification of the status of the water body (article 16.2 of Real Decreto 2090/2008). According to the Spanish ELD Government Expert, “in the evaluation of the significance of water damage, it is important to consider the time scale of the damage and their effects in the water body status, and when the evaluation of the water body status has to be carried out. According to the WFD, the evaluation of water body status has to be carried out every 6 years. However, the evaluation of the water body status, in the context of the ELD for the determination of the damage significance, needs to be carried out just after the incident occurs (not in the next WFD evaluation)”. As this is not mentioned in the ELD, according to the expert, it

Milieu LtdBrussels


DOC5-05/10/2017

might lead to different interpretations. The expert added that “in this sense, article 16.2 of Real Decreto 2090/2008 includes a clarification to this issue, establishing that water damage is significant if there is a change in the classification of the status of the water body, “when the consequences of the damages occur”.” (Ministry of Agriculture and Fishery, Food and Environment in Spain, 2017)

In Portugal, the significance of water damage is considered if a change in state of water bodies leads to reclassification to a lower class or if there is a significant risk to human health. In terms of the chemical status of groundwater, the acceptable exceedance (of the values laid down in the groundwater quality standards or limit / target values) for each substance is 20% of the total volume of the groundwater body. More recently, with the transposition of Directive 2013/30/EU, marine waters have been included in the ELD transposing legislation; the damage of marine waters is considered significant when there is a change in the environmental state of the marine water body compared to its initial state (Portuguese Environment Agency, 2017). In yet other Member States, the ELD transposing legislation is unclear in this regard (e.g. France) (BIO Intelligence Service, 2013, p. 60) (Justice and Environment, 2013b).

A few Member States have adopted more stringent provisions for water damage in their transposing legislation, such as Poland where the threshold is a change or changes that result in a measurable effect on various factors including deterioration in the potential for using bathing places for recreational purposes as a result of adverse changes in the quality of bathing water, deterioration in the conditions of abstraction and treatment of water for human consumption following adverse changes in the quality standards of that water, and an increase in the level of groundwater resulting in adverse quantitative and qualitative changes in groundwater and environment depending on the groundwater (BIO Intelligence Service, 2013, p. 247 (Annex A)).The Finnish transposing legislation describes damage to surface water as damage to water body under the Finnish Water Act, the scope of which is broader than the WFD, and damage to groundwater and coastal waters as damage to waters themselves (BIO Intelligence Service, 2013, p. 73 (Annex A)). In Hungary, “significance” of water damage and “unfavourable change” is specified in Gov. Decree 219/2004 (VII.21.), stating that if contamination to waters exceeds the limit values, “water damage” has occurred even if human health is not affected at all (Hungarian Ministry of Agriculture, 2017).


The Environmental Directorate General Working Paper on Prevention and Restoration of Significant Environmental Damage (Environmental Liability), issued on 30 July 2001, specified that the proposed threshold for significance was to be deterioration from one water quality status to a lower one under the WFD (the water quality status is normally related to water body) (European Commission, 2001).

Further, in the ELD REFIT evaluation, the Commission considers that reference should be to “water bodies”; it indeed indicates that “the criteria for significance are embodied in the assessment of water status in accordance with the WFD, hence a reference to 'waters' different from 'water bodies' may present difficulties in being coherent with the WFD. It can be concluded that the current legislation (ELD and WFD) with regard to the use of 'water bodies' as referential point ensures coherence.” (European Commission, 2016a, p. 52).

On the other hand, a communication from the European Commission concerning revisions at the Common Position stage refers to waters and not water bodies21 (BIO Intelligence Service, 2013, p. 60).

21 See Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the Common Position of the Council on the adoption of a Directive of the European Parliament and of the Council on environmental liability with regard to the prevention and remedying of environmental damage /* SEC/2003/1027 final - COD 2002/0021 (“water damage" is still defined by reference to the various concepts defining water quality in Directive 2000/60/EC ("the Water Framework Directive") but it is no longer required that water's quality should worsen from one of the categories defined in the Water Framework Directive to another”).

Milieu LtdBrussels


DOC5-05/10/2017


An example of determination of significance of water damage is provided by the Dutch guidance document. It suggests asking a set of questions to determine whether the damage to water occurred within the meaning of the ELD:

“1. What was the ecological, chemical and/or quantitative status of the water (before the damage occurred)?2. Is there an adverse effect on this status?3. If so, is it significant?”

Concerning the third question, the guidance comments that “the magnitude of an event and that of the water concerned have to be considered jointly. It should be clear that, although a particular activity or event might not have a significant effect on a large body of surface water, its effect on a small body could indeed be significant” (Dutch Ministry of Environment, 2008, pp. 41-44).

The Finnish guidance also describes the methodology for assessing the significance of the damage caused to waters. For example, some parameters such as the concentration of a dangerous substance in the water body, the ecological status of surface water and the effects on natural resources have to be evaluated to determine the degree of pollution of waters. The guidance contains general provisions when assessing the degree of pollution (since substantial pollution is included in the definition of environmental damage in the ELD) in the water body and in groundwater: Concentration of the dangerous or harmful substance in the water body referred to in national

legislation relative to dangerous substances); Considerable decrease in the factor that depicts the ecological status of surface water, referred to

in national legislation transposing the WFD; Concentration of the polluting substance in the ground water, mentioned in national legislation

transposing the WFD, concentration of the substance harmful to groundwater, referred to in the legislation on Substances Dangerous and Harmful to the Aquatic Environment, salinification of groundwater or considerable reduction in the groundwater surface level, and their effects on the ground- or surface water ecosystems or the current or future use of groundwater; and

Effects on the natural resource services referred to in national ELD transposing legislation (Ministry of the Environment of Finland, 2012).

According to the Danish EPA guidelines on environmental damage, environmental damage to water is defined as “any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential of bodies of water covered by the Environmental Objectives Act. Regarding the significant adverse effect on the condition of the body of water, the guidelines state that it is a requirement that it can be documented that there has been a deterioration of the condition of the body of water”. The guidelines give concrete examples of situations which can be treated as environmental damage to water (Danish EPA, 2012).

The guidance for Scotland states that water damage (under the transposing legislation) is damage “which causes a significant adverse effect to: The ecological status of a body of surface water other than a body of surface water designated as

heavily modified or artificial under [the WFD]; The ecological potential of a body of surface water designated as heavily modified or artificial

under [the WFD]; The surface water chemical status of a body of surface water; The groundwater chemical status of a body of groundwater; and or The quantitative status of a body of groundwater.”It states clearly that “damage only constitutes water damage for the purposes of the Environmental Liability Directive if a body of surface water or a body of groundwater is adversely affected.”On the issue of diffuse pollution, the Scottish guidance considers that “short-term, transient adverse effects from which the affected water body recovers without the need for remediation measures are not significant enough to cause deterioration of status.” It nevertheless adds that “even where the adverse

Milieu LtdBrussels


DOC5-05/10/2017

effects resulting from a pollution incident are not transient, their geographical extent may be too limited to affect the status of a water body.” (The Scottish Government, 2009).

Illustrative case examples include: Three Pools waterway case in the UK: it was determined that water damage under the ELD

transposing legislation had occurred because the release had resulted in a lowering of the status of the river under the WFD (there was good quality of data before and after the incident, so the baseline condition was known) (BIO Intelligence Service, 2013, p. 114).

Rupture of a tank at a chemical factory located next to the English coast (UK): any solvent which had entered the estuary had not resulted in a lowering of its status under the WFD due to dilution by tidal flushing, and had thus not exceeded the threshold for water damage under the ELD transposing legislation (BIO Intelligence Service, 2013, p. 115).

Case treated under national ELD transposing legislation in Hungary – “Red sludge” case. Red sludge and alkaline water spilled from a reservoir in an alumina factory leading to the formation of wave of toxic waters and sludge flooding nearby localities. The release of toxic reached a secondary arm of the river Danube. Thus the inspectorate ordered the operator, to carry out emergency actions. In this case, as many prompting countries are located further down the river Danube, the competent authority had the duty to require emergency remedial actions to limit the environmental impacts of the accident (BIO Intelligence Service, 2013, p. 107). According to information gathered (Bergkamp & Goldsmith, 2013), a major effort was made to reduce the downstream impact of the release; measures undertaken to eliminate soil contamination included: small dams built, gypsum and acid added to rivers to neutralise the pH, top layer of soil removed, most contaminated soil removed from the area and disposed of, special material used to lower the soil pH, planting for food and feed prohibited. The remediation was oriented on limiting negative impact on environment and human health; however little information is available on restoration of other damage, such as damage to aquatic habitat (Bergkamp & Goldsmith, 2013, p. chapter5.36).


Interpretation of water damage by Member States is split between those that consider that it should be damage to “waters” and those that consider that it should be to “water bodies”, although all link it to the WFD. If damage is to “water bodies” (as the definition of water damage under the ELD would imply due to the link to the WFD), the risk is that the ELD may have limited application because of the size of certain water bodies. However, certain Member States have an interesting approach in this regard. It is notably the case of the UK, where it is not necessarily the entire water body that is considered for application of the ELD, but the sub-divisions of such water body established for the purposes of the river basin management plan under the WFD.

In light of the above, a recommendable approach would be to assess the significance of water damage at a water body level, taking into account the sub-divisions that may have been established under the WFD (in the river basin management plans).

Some guidance documents, such as the Dutch guidance, provide a set of questions to help determine whether water damage has occurred within the meaning of the ELD. Such an approach is interesting as it allows authorities to follow a logical process that covers all relevant ‘checkpoints’.

Some of the case studies identified provide good illustrations of important aspects to consider: the importance of good quality data before and after the incident, so the baseline condition was known (Three Pools waterway case in the UK); the importance of monitoring to determine whether there is a change in the classification status after the incident occurs, in relation to the baseline assessment under the WFD (see e.g. the Spanish approach; case study for Ireland); the fact that dilution of the pollution should be taken into account (see e.g. UK case study regarding a rupture of a tank at a chemical factory).

Milieu LtdBrussels


DOC5-05/10/2017

The following multi-step approach could be pertinent when assessing whether there has been water damage under the ELD: What is the water body (including its sub-divisions) affected by the incident? What was the ecological, chemical and/or quantitative status of the water body before the damage

occurred? That is: What was the baseline assessment under the WFD (and the MSFD for marine waters)? What additional information is available? (e.g. update of the WFD baseline assessment

through the monitoring programme, which could potentially show that the status had improved since the establishment of the baseline assessment)

Is there an adverse effect on this status? I.e.: Has a monitoring of the consequences of the incident been carried out? What are the results of the monitoring? How do they evolve? How do the results compare to the baseline condition? What immediate emergency measures have been undertaken to prevent further damage?

Is the adverse effect significant? Is the adverse effect of a transient nature? (e.g. dilution of pollution) Has there been a change in the status of the water body or the relevant sub-division? (a

lowering of the status would necessarily lead to the damage being considered significant under the ELD)

2.5 SCOPE/SIGNIFICANCE OF LAND DAMAGE

Identified issueWhat should be the degree of harm to human health the exceedance of which would be deemed land damage under ELD?


Article 2(1)(c) of the ELD defines “land damage” as “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”. The Directive does not specify the degree of harm to human health, the exceedance to which is deemed to be land damage (BIO Intelligence Service, 2014, p. 96).

Although there is no specific EU legislation addressing soil, the Industrial Emissions Directive (Directive 2010/75/EU, IED) “lays down rules designed to prevent or, where that is not practicable, to reduce emissions into air, water and land” (Article 1). Under Article 2(2) of the IED, “pollution” is thus defined as “the direct or indirect introduction, as a result of human activity, of substances, vibrations, heat or noise into air, water or land which may be harmful to human health or the quality of the environment […].” Annex I of the IED lists the activities to which chapter 2 of the directive applies, which is not an exact match to Annex III of the ELD. For those activities Member States must take the necessary measures to provide that installations are operated in accordance with certain principles, including: “(a) all the appropriate preventive measures are taken against pollution; (b) the best available techniques are applied; and (c) no significant pollution is caused” (Article 11). A baseline report must be included in the permit application, where applicable (Article 12(1)(e)), as well as measures planned to monitor emissions into the environment (Article 12(1)(j)).

Further, the Landfill Directive (1999/31/EC) and the Extractive Waste Directive (2006/21/EC) are also relevant: The Landfill Directive provides that the operating permit lays down the control and monitoring

Milieu LtdBrussels


DOC5-05/10/2017

procedures to be followed by the operator; the latter “shall notify the competent authority of any significant adverse environmental effects revealed by the control and monitoring procedures and follow the decision of the competent authority on the nature and timing of the corrective measures to be taken” (Article 12(b)).

Under the Extractive Waste Directive,22 the operator must submit a waste management plan that includes, among others, control and monitoring procedures, and measures for the prevention of water status deterioration (in accordance with the WFD) and for the prevention or minimisation of air and soil pollution (Article 5 and Article 13).


In certain Member States, the definition of land damage is broader than under the ELD. Thus, the legislation in Hungary and Poland is broader than the ELD and it applies also to land on which there is no risk to human health. The Hungarian transposing legislation contains the term ”damage in geological media”, which is any contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction in, or under land of substances, preparations, organisms or micro-organisms, or exceeds limits for contamination. Consequently, the threshold for land damage is not limited to a significant risk of an adverse effect on human health. If contamination to geological media exceeds the thresholds, land damage under the national legislation transposing the ELD has occurred even if the human health is not affected at all (Stevens & Bolton,2013, p. 71).

Poland reported a high number of land damage cases treated under the ELD regime. It can be explained by the lower threshold on land damage (no risk of human health being adversely affected necessary). In addition, the pre-existing legislation regarding the protection of surface of land was repealed when the ELD transposing legislation (Law on preventing the environmental damage - EDA) came into force. Every incident is examined as an ELD case because EDA is lex specialis in relation to other framework acts (ex. Water Act and Environmental Protection Act) which have special relation provisions; in accordance with them EDA has to be used in taking preventive and remedial action. Only when the incident cannot be qualified as an ELD case is other legislation used (Justice andEnvironment, 2013a, p. 20).

The Croatian thresholds are lower than ELD because they do not require ‘a significant risk’ to human health; a general risk to human health is sufficient. In Germany, the national legislation transposing the ELD applies if there is a danger to human health but a significant risk of human health being adversely affected is not necessary (Justice and Environment, 2013a, p. 18).

In Bulgaria, Estonia, Romania, Spain23, Denmark and main parts of Austria the land damage needs to have a “significant risk of human health being adversely affected” to fall under the ELD transposing legislation (Justice and Environment, 2013a, p. 17). Also in Greece, the land damage has to cause “severe risk on human health” to be considered under the ELD legislation (Greek Ministry ofEnvironment and Energy, 2017). In Portugal, the ELD transposing legislation defines land damage as in the ELD, that is “any land contamination that creates a significant risk to 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” (Portuguese Environment Agency, 2017).

22 Article 1 of the Extractive Waste Directive provides: “This Directive provides for measures, procedures and guidance to prevent or reduce as far as possible any adverse effects on the environment, in particular water, air, soil, fauna and flora and landscape, and any resultant risks to human health, brought about as a result of the management of waste from the extractive industries.”23 Note: In Spain, the definition of land damage in Law 26/2007 includes any contamination that poses significant risk to human health or the environment. Moreover, art. 16 of Real Decreto 2090/2008 establishes that the damages to soil will be significant if the receptor has an adverse effect that poses risk to human health or the environment, so that it can be considered as contaminated soil according to Real Decreto 9/2005 (Ministry of Agriculture and Fishery, Food andEnvironment in Spain, 2017).

Milieu LtdBrussels


DOC5-05/10/2017

The definition of land damage in the United Kingdom (England, Wales and Northern Ireland) is particularly broad. The guidance for those jurisdictions states that liability to remediate land damage arises if ailments such as headaches, sore throats and drowsiness occur, as well as death, birth defects, genetic mutation and diseases (BIO Intelligence Service, 2014, p. 96). Such guidance is to be applied sensibly. According to the UK government experts, the “UK has a robust framework (Part IIA Environmental Protection Act 1990) for assessing site-specific risks to human health from land. Similar frameworks in other jurisdictions may or may not contain “limit values”. The purpose of those limit values varies between jurisdictions (trigger for clean-up, trigger for further assessment etc.)”(DEFRA, 2017).

In Ireland, a person seeking medical help following an incident is a factor used in determining “significant risk to human health” (Irish EPA, 2017).

In Slovenia, land damage is defined as “any pollution emissions at or below the ground, which may endanger human health and exceeds the prescribed standards of soil quality under Article 23 of [the Environment Protection Act].” (Ministry of Environment and Spatial Planning of Slovenia, 2017).

In the Netherlands, it is the soil protection that is considered in land damage instead of the threshold of danger to human health (Ministry of Infrastructure and the Environment of the Netherlands,2017).The Dutch guidance document contains a list of substances with their human toxicological risk criteria. The backgroud values, soil intervention values, and soil human risk limit values are provided for “standard” soil (Dutch Ministry of Environment, 2008).


The ELD REFIT recognises that further criteria for the determination of the significance of the land damage are lacking in the ELD and that clarification on the significance threshold could be helpful to practitioners and stakeholders in the application of the ELD.

The Commission explains that “regarding land damage, the starting point for the determination of the significance of it is 'significant risk of human health' under the current ELD. Hence, there would not be much to be further specified as regards damage to land within the current legislation. Alternatively, the definition could be extended to include also 'significant risk to the environment', thus aligning it with most national systems, and lowering the relatively higher threshold compared with biodiversity damage and water damage. Apart from this, a more precise determination of land damage would need to refer to set limit values for certain pollutants in certain soil types etc., an exercise which may be very complex at EU level. While the task would be in principle feasible, the effort (costs) to be invested in the development of highly complex determination criteria for the significance threshold of land damage, varying from many different situations, regions and Member States appears to be disproportionate to the gain as an individual assessment may in the end be necessary even within a complex framework of determination criteria”.

The Commission concludes that “the divergent application of the significance thresholds might hamper the level playing field for industries in the EU, hamper the development of adequate financial security instruments and markets and hamper overall the effectiveness of the Directive” (EuropeanCommission, 2016a).


The Danish guidelines give concrete examples of situations which can be treated as environmental damage to land (Danish EPA, 2012): Land pollution from a large dry cleaner affects the indoor climate in nearby homes, so

mechanical ventilation or other measures will be necessary. This type of pollution will often also

Milieu LtdBrussels


DOC5-05/10/2017

lead to groundwater pollution which can be damage to water. Mucosa is accidentally delivered with illegal and large amounts of problematic substances to a

field, and it turns out that the area will be unusable for cultivation of crops. A waste incineration plant's smoke purification system cuts out, and pollution of surface soil with

heavy metals in excess of the cut-off criteria occurs in a nearby residential area. Oil pollution from a ship reaches a beach where there is a risk of affecting many people.

Illustrative case examples include: Three cases treated under ELD transposing legislation in UK: soil contamination by volatile

hydrocarbons, spill of kerosene heating oil caused by oil supplier at residential property and discharge of neat powder coating from factory onto adjacent land. In these cases, the competent authority proved the operator’s responsibility for land damage considering that these damages had or could have significant adverse effects on human health. The ELD regime was applied (BIOIntelligence Service, 2013, p. 114).

Case treated under ELD transposing legislation in UK: in 2009 a fuel storage tank in the courtyard of a galvanising installation was vandalised leading to a leak of diesel. Six months later, and despite the immediate actions, it was found that there were hydrocarbon vapours which represented a risk to human health. The local authority required the operator to undertake remedial measures (DEFRA, 2009).


As with the other types of environmental damage, there is a need for a case-by-case approach as the assessment of whether an incident is land damage will depend on the specific circumstances. The Danish guidelines are a good example of this need, as it illustrates land damage under the ELD through concrete examples.

The conduct of a human health risk assessment would be necessary to evaluate potential land damage. Given that land damage is defined by reference to an adverse impact on human health, we recommend that such an impact (or the lack thereof) be determined by public health authorities when an incident occurs, who should have established minimum requirements to be considered in such a human health risk assessment. Information provided in, for example, the baseline report that must be included in the permit application pursuant to the IED, or the exceedance of limit values listed in that directive, is relevant for remediation purposes, but not to determine whether there is a significant risk of human health being adversely affected.

2.6 PREVENTIVE MEASURES

Identified issueHow should the definition of preventive measures be interpreted? Should it cover actions adopted to prevent the environmental damage from becoming significant? Or must there be a certainty that the damage will become significant if no action is taken?


Under Article 2(10) of the ELD, “preventive measures” are defined as “any measures taken in response to an event, act or omission that has created an imminent threat of environmental damage, with a view to preventing or minimising that damage”. The “imminent threat of damage” is defined as “a sufficient likelihood that environmental damage will occur in the near future”.

Milieu LtdBrussels


DOC5-05/10/2017

According to study results (Milieu Ltd, 2014, p. 31), since Article 2 of the ELD defines environmental damage as significant environmental damage, the above definition of preventive measures should be interpreted as actions adopted to prevent the environmental damage from becoming ‘significant’ and therefore minimising it.


The term “preventive measures” in the Directive has been subject to different interpretations and applications by Member States. While some Member States consider that preventive measures must be carried out to prevent environmental damage from becoming significant, others consider that there must be some sort of certainty that the damage will become significant if no actions are adopted.

According to study results (Milieu Ltd, 2014, p. 31), under the French system in those cases where the accident has occurred, actions aiming at reducing its impact once the damage has been considered significant fall under the ELD as remedial measures. However, if the damage is not considered significant, the actions carried out to prevent it becoming significant are not considered preventive measures under the ELD. Therefore, this type of measure would not be considered a preventive action under Article 5 of the ELD, nor would be remedial action under Article 6 of the ELD. In the French Guide (in relation to the 2008 Donges refinery case), those measures were considered emergency measures under sectorial legislation regulating Annex III activities. Thus, according to the French implementation there is apparently no room for the application of preventive action pursuant to the ELD (with potentially significant effects on the relevance and effectiveness of the ELD in this country).

In addition, there is an uncertainty regarding the meaning of the “sufficient likelihood” in the imminent threat of damage definition (Milieu Ltd, 2014, p. 82).

The UK environmental liability regulations specifies that the reasonable grounds to believe that there is an imminent threat of environmental damage is sufficient to require the operator to take immediate action to prevent the damage (DEFRA, 2009).

In Portugal, the preventive measures include containment and control measures (emergency measures) in order to prevent the damage from becoming significant (Portuguese EnvironmentAgency, 2017).

The approach supported by the Hungarian authorities is to base preventive measures on reasonable grounds or sufficient likelihood that damage may occur and evaluate on a case-by-case basis, rather than the certainty that damage will occur (Hungarian Ministry of Agriculture, 2017).


As noted in the ELD REFIT evaluation, referring to the ELD biodiversity damage study carried out by Milieu, “the concept of 'preventive measures' is […] often not applied correctly if action to prevent biodiversity damage from becoming significant is dependent on the wrong understanding that preventive action can only be taken if significance of the future damage is certain. Such an understanding could in extremis avoid the application of the ELD forever. Many Member States therefore use a more reasonable approach requiring for example "reasonable grounds to believe that imminent threat will become environmental damage.”

This concern with regard to the notion of “imminent threat of damage”, which triggers the requirement for preventive measures, is not limited to biodiversity damage. The ELD REFIT evaluation thus concluded, based notably on the precautionary principle, that “an approach requiring a 'reasonable belief' instead of certainty that the damage may be significant, appears practical and increases the

Milieu LtdBrussels


DOC5-05/10/2017

effectiveness of the Directive” (European Commission, 2016a).


According to the Scottish guidance, an imminent threat of damage means that “there is a sufficient likelihood that ‘damage’ will occur in the near future”. The guidance then describes circumstances (illustrated by examples) where such an imminent threat would be deemed to exist: “A damaging event has not yet occurred but is sufficiently likely to occur in the future and lead to

‘damage’ if action is not taken. For example, where a tank containing dangerous substances, which is situated near a major aquifer, is in very poor condition and is likely to leak without action to secure the tank.

An event has occurred and there is no damage yet but there is a sufficient likelihood that ‘damage’ will occur in the near future if action is not taken. Extending the tank example above, this is where the tank has already started to leak and the substances have entered the soil and are likely to migrate to the aquifer without action to contain the contamination.

Damage has occurred which is not yet ‘damage’ but is sufficiently likely to become ‘damage’ if action is not taken. Further extending the tank example above, this is where the tank has leaked and the contamination has already started to enter the aquifer. The damage does not yet qualify as water damage but without action to control further migration of contamination into the aquifer the damage is likely to become water damage.”

Illustrative case examples include: Case treated under national ELD transposing legislation in UK: Releases of sediment in fresh

water impacting protected species and natural habitats. The competent authority considered that the damage was not significant enough to prove the operator’s responsibility but a prevention notice was served to the operator in order to prevent the damage becoming significant (stabilise the landslip area and improve measure to trap sediment) (BIO Intelligence Service, 2013, p. 115).

Case treated under national ELD transposing legislation in Poland: The construction of cableway for a ski run which caused damage to protected species and habitats (reduction of a population of black grouse). The competent authority required the operator to undertake preventive measures with the reference to the increased risk of the environmental damage. However, the operator contested the authority’s decision so these measures have not been carried out. But, in this case, the competent authority considered that these preventives actions could prevent the environmental damage from becoming more significant (BIO Intelligence Service, 2013, p. 109).


A practice that is followed by most Member States consists in an approach requiring reasonable grounds to believe that imminent threat will become environmental damage. For example, the UK practice is consistent with this approach as the reasonable belief (or sufficient likelihood), rather that certainty, that there is an imminent threat of environmental damage is sufficient to require the operator to take immediate action to prevent the damage (for instance, the Scottish guidance provides specific examples in this regard).

We therefore recommend, in line with the European Commission’s views expressed in the REFIT evaluation and with the majority of Member States, that such a reasonable approach be taken, consisting of requiring e.g. reasonable grounds or a sufficient likelihood that damage will occur if no action is taken. That is, action to prevent damage from becoming significant should not depend on the certainty of the significance of the future damage. A case-by-case assessment will of course be necessary.

Milieu LtdBrussels


DOC5-05/10/2017

2.7 SCOPE OF PRIMARY REMEDIATION

Identified issueDoes “primary remediation” include emergency remedial measures, such as clean-up actions? What if clean-up actions impact negatively the environment, making it more difficult to return it to baseline condition?


Annex II, para. 1(a) of the ELD defines “primary remediation” as “any remedial measure which returns the damaged natural resources and/or impaired services to, or towards, baseline condition”. This definition is to be linked to Article 6(1)(a) of the ELD on remedial action, which provides that the operator must 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 to prevent further environmental damage and adverse effects on human health or further impairment of services.”

According to study results (BIO Intelligence Service, 2013, p. 67), the term “primary remediation” must, in light of the above definition, necessarily include measures to clean up pollution as well as measures to restore a damaged natural resource. However, as the report indicates, these two types of measures tend to be distinct and require different expertise. An appropriate clean-up measure (e.g. contain a spill) does not necessarily restore the damaged natural resource. There could be even a potential incompatibility between clean-up and primary remediation as illustrated for example by the Coussouls de Crau incident in France (see below).

The ELD training handbook also states that “clean-up is part of primary remediation which refers to actions designed to return damaged natural resources and/or services to baseline condition” (Eftec,2013).

According to literature (Bergkamp & Goldsmith, 2013, p. 97), in case of land damage outside of protected habitats, primary remediation may be needed to address potential risks to human health. Minimum measures should be undertaken so that affected land does not pose a significant risk of adversely affecting human health currently and in the future. The extent of the clean-up may be influenced by land use purpose (recreation, industry, habitation), with clean-up levels typically being lower in case of habitation.


According to study results (BIO Intelligence Service, 2013, p. 67), the transposing legislation in the Member States tends not to clarify the differences between clean-up measures and measures that restore the damaged natural resource. The report further indicates that “In Member States with many competent authorities, however, it means co-operation and liaison between competent authorities in carrying out the primary remediation. It may, therefore, mean that competent authorities should enter into Memoranda of Understanding, as some Member States have done, as to the appropriate competent authority for different aspects of the remedial and restoration measures.”

In Greece, primary remediation includes emergency clean-up actions and is not separated from remediation actions (Greek Ministry of Environment and Energy, 2017). Also, in Ireland primary remediation is considered to include emergency remedial measures, such as clean-up actions (IrishEPA, 2017). In Portugal, the primary remediation measures may include emergency measures to avoid the spread of the damage and remedial measures to restore the damaged natural resources to baseline condition (Portuguese Environment Agency, 2017). In Spain, the requirement of taking all

Milieu LtdBrussels


DOC5-05/10/2017

provisional measures to remedy damage includes emergency measures. These emergency measures might be taken without prejudice of the application of the civil protection legislation in case of emergencies24 (Ministry of Agriculture and Fishery, Food and Environment in Spain, 2017). In Hungary, the primary remediation includes emergency and clean-up measures. The authorities state however that all measures must be undertaken with a reasonable evaluation of their benefits and negative impacts and as such, need to be handled on a case-by-case basis (Hungarian Ministry ofAgriculture, 2017).


In its ELD Factsheet, the Commission indicates that primary remediation includes notably “ immediate actions designed to stop the incident, minimise, contain, prevent further damage, and clean-up the damage. These are also referred to as emergency (or immediate) remedial measures (and are mostly preceding the actual primary remediation)” (European Commission, 2013).


The Finnish and French guidance describe the methodology of assessment and selection of remedial measures for significant environmental damage. They define the factors (baseline condition, natural recovery, natural resources affected, effects on public health and safety…) that must be taken into account while assessing the need for immediate remedial actions and describe what types of remediation (primary measures, complementary and compensatory measures) have to be carried out depending on these factors (Ministry of the Environment of Finland, 2012), (French generalcommission for sustainable development, 2012).

Illustrative case examples include: Coussouls de Crau (France) oil spill – case not treated under ELD – biodiversity, soil and water

damage occurred. As required by the competent authority, the operator agreed to undertake compensatory remediation as well as primary remediation. During the clean-up operation carried out to eliminate the risk of contamination of soil, groundwater, fauna and flora, an important amount of soil was excavated for treatment. The excavation operation and transport of the soil had a negative impact on the ecosystem which added to the environmental damage (BIOIntelligence Service, 2013, pp. 99, annex B).

Case treated under national ELD transposing legislation in Hungary – “Red sludge” case: The release of toxic (red sludge and alkaline water) caused death of inhabitants, contamination of agricultural land, pollution of local waterways and destruction of Marcal river biodiversity. The competent authority ordered the operator to carry out primary remediation by collecting and neutralising the liquids flowing from the damaged reservoir, submitting an intervention plan a week after the damage (BIO Intelligence Service, 2013, p. 107).


It is clear from the wording of the ELD, as well as the Commission’s views and the transposition of the Directive in Member States that primary remediation includes emergency remedial measures. However, these emergency measures, which could include clean-up measures, could have a negative impact on the environment and actually contribute to further the environmental damage.

Given that in Member States those in charge of implementing or carrying out clean-up measures and those responsible for (non-emergency) primary remediation are generally different, we recommend that whenever there is environmental damage, a dialogue be established as soon as possible between

24 Article 20.1 of Law 26/2007 establishes that when a damage occurs, the operator has to:a) Take all provisional measures necessary to immediately remedy all natural resources and services damaged;b) Submit for approval a proposal of remediation measures.

Milieu LtdBrussels


DOC5-05/10/2017

those services in order to take into account, as the case may be, the potential negative impacts of emergency measures (e.g. adapt measure and/or use the less impacting ones). The operator should be included as well in those discussions.

2.8 DEFENCES TO COSTS VS DEFENCES TO LIABILITY

Identified issueAre the defences specified in the ELD defences to costs or to liability?

2.8.1 Provision of the ELD and, where relevant, other pieces of EU

legislation

Article 8(3) of the ELD provides that “An operator shall not be required to bear the cost of preventive or remedial actions when he can prove that the environmental damage or imminent threat of such damage: (a) was caused by a third party and occurred despite the fact that appropriate safety measures were in place; or (b) resulted from compliance with a compulsory order or instruction emanating from a public authority other than an order or instruction consequent upon an emission or incident caused by the operator's own activities”. The article states that “In such cases Member States shall take the appropriate measures to enable the operator to recover the costs incurred”.

Pursuant to Article 8(4) of the ELD, “The Member States may allow the operator not to bear the cost of remedial actions taken” if the operator fully complied with its operating permit (Art. 8(4)(a)) or the emission or event “was not considered likely to cause environmental damage according to the state of scientific and technical knowledge at the time when the emission was released or the activity took place” (Art. 8(4)(b)).

According to study results (BIO Intelligence Service, 2014, p. 133), the optional defences (permit and state-of-the-art defences) should be understood as defences to costs. That is, an operator must carry out the preventive or remedial measures and may then bring a cost recovery action against the third party that caused the imminent threat of, or actual, damage, despite appropriate safety measures put in place by the operator, or the public authority that issued the compulsory order. The operator may claim reimbursement of its costs for remedial action from the competent authority.


According to information provided by the Commission (European Commission, 2017), optional defences (i.e. permit and state-of-the-art defences) are applicable in different Member States as follows: Both defences incorporated: Belgium (regions), Croatia, Cyprus, Czech Republic, Estonia (except

GMOs), Greece, Italy, Latvia (except GMOs), Malta, Netherlands (applicable only after check of reason), Portugal, Romania, Slovakia, Spain, United Kingdom (except GMOs in Scotland, Wales);

Both defences not applicable: Austria, Belgium (federal level), Bulgaria, Germany, Hungary, Ireland, Poland, Slovenia;

State-of-the-art defence applicable but permit defence not: France, Luxemburg; Permit defence applicable but State-of-the-art defence in general not: Denmark, Finland,

Lithuania; Mitigation ground: Sweden.

According to study results (BIO Intelligence Service, 2013, p. 62), (Stevens & Bolton, 2013, p. 89), (BIO Intelligence Service, 2014, p. 137) and feedback from Member States (Romanian Ministry ofEnvironment, 2017), (Greek Ministry of Environment and Energy, 2017) (Portuguese Environment

Milieu LtdBrussels


DOC5-05/10/2017

Agency, 2017): A small minority of Member States (Denmark and the United Kingdom) have interpreted

“defences” as defences to liability (an operator with a valid defence would not be required to remediate environmental damage);

Most Member States have interpreted the “defences” as defences to costs (an operator is required to remediate environmental damage and then has the right to seek reimbursement of its costs). These include Austria, the Czech Republic, France, Greece, Germany, Ireland, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, and Spain;

In the Netherlands, the competent authority may decide not to recover part or all of the cost of remedial measures from an operator when the authority concludes that it would be unreasonable to do so. Indeed, the ELD transposing legislation includes, in relation to both defences, the phrase “in so far as [the costs] cannot, in whole or in part, be reasonably attributed to the operator” (this is an addition to the text of the ELD).


As indicated in study reports (BIO Intelligence Service, 2014, p. 151), the Commission clarified that permit and state-of-the-art defences are “to be understood as defences to costs (and not as defences to liability which would constitute exemptions from the application of the ELD), and such was the intention when the ELD was adopted”. This was also emphasised during the 2013 2nd ELD stakeholders meeting.25


The Irish EPA describes the cost recovery procedure (defence against cost recovery) for operators that “demonstrate that they were not at fault or negligent and that the environmental damage was caused by either:

(a) the act or omission of a third party and that the operator has appropriate safety measures in place in relation to the occupational activity, or

(b) the operator or a third party complying with an order or instruction of a public authority duly issued by that body in the performance of its statutory functions, where the order or instruction did not relate to an emission or incident arising from the occupational activity of the operator” (Irish EPA, 2011).


Where defences are to costs, this may lead to a situation where the operator who is not liable for costs has to incur them, and then claim them back, but there is no guarantee that he will recover them. Such a situation would not take place if defences were to liability.

However, the wording of the ELD does not appear to leave room for ambiguity: defences should be understood as defences to costs. This would also be in line with the Commission’s views and the position of the majority of Member States.

2.9 LEGISLATION REFERRED TO IN ANNEX III

Identified issueWhat are the EU pieces of legislation in force covered under Annex III of the ELD? i.e. what is the updated list of EU

25 2nd ELD Stakeholder Conference, 11 June 2013, Summary Report: “It was clarified that from a legal point of view these defences relate only to the costs of remediation but not to the application of the ELD as such – the scope of the ELD stays untouched”. http://ec.europa.eu/environment/legal/liability/eld_conf_11_06_2013.htm

Milieu LtdBrussels


http://ec.europa.eu/environment/legal/liability/eld_conf_11_06_2013.htm

DOC5-05/10/2017

legislation to which Annex III apply?

During the 17th ELD Government Experts Group Meeting held on 28 February 2017, the German ELD government expert raised the necessity to update the outdated Annex III of the ELD in order to eliminate obsolete references and suggested that this could be done in the common understanding document to be drafted (ELD Government expert group, 2017).

This issue does not relate to different interpretations between Member States or the ambiguity of terms and conditions per se. This section hence does not use the iterative approach used in the previous section.

Pursuant to its Article 3(1)(a), strict liability applies to environmental damage, or imminent threat thereof, caused by any of the occupational activities listed in Annex III. Annex III lists 14 categories of activities under EU legislation; although categories 13 and 14 were added in 2006 and 2009, respectively, categories 1 through 12 refer to legislation that was in force at the time the ELD was adopted, many of which have been repealed. The updated list of the EU legislative instruments in Annex III is presented below for the present time (September 2017): Annex III(1): Directive 96/61/EC concerning integrated pollution prevention and control (IPPC

Directive), replaced by Directive 2010/75/EU on industrial emissions (Chapter II); Annex III(2): Council Directive 75/442/EEC on waste, as well as Council Directive 91/689/EEC

on hazardous waste replaced by Directive 2008/98/EC on waste (Waste Framework Directive); Council Directive 1999/31/EC on the landfill of waste; Directive 2000/76/EC on the incineration of waste, replaced by Directive 2010/75/EU on

industrial emissions (Chapter IV) ; Annex III(3): Council Directive 76/464/EEC on pollution caused by certain dangerous

substances, discharged into the aquatic environment of the Community, replaced by Directive 2000/60/EC establishing a framework for Community action in the field of water policy (Water Framework Directive) in conjunction with Directive 2008/105/EC on environmental quality standards in the field of water policy (EQS-Directive);

Annex III(4): Council Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances, replaced by Directive 2006/118/EC on the protection of groundwater against pollution and deterioration;

Annex III(5): Directive 2000/60/EC establishing a framework for Community action in the field of water policy (Water Framework Directive)

Annex III(6): Directive 2000/60/EC establishing a framework for Community action in the field of water policy (Water Framework Directive);

Annex III(7)(a): Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous substances (Dangerous Substances Directive), replaced by Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and mixtures;

Annex III(7)(b): Directive 1999/45/EC concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations, replaced by Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and mixtures;

Annex III(7)(c): Council Directive 91/414/EEC concerning the placing of plant protection products on the market, replaced by Regulation (EC) No 1107/2009 concerning the placing of plant protection products on the market;

Annex III(7)(d): Directive 98/8/EC concerning the placing of biocidal products on the market; replaced by Regulation (EU) No 528/2012 concerning the making available on the market and use of biocidal products;

Annex III(8): Council Directive 94/55/EC on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road and

Milieu LtdBrussels


DOC5-05/10/2017

Council Directive 96/49/EC on the approximation of the laws of the Member States with regard to the transport of dangerous goods by rail, both replaced by Directive 2008/68/EC on the inland transport of dangerous goods;

Council Directive 93/75/EEC concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods, replaced by Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system;

Annex III(9): Council Directive 84/360/EEC on the combating of air pollution from industrial plants, repealed by Directive 2010/75/EU on industrial emissions;

Annex III(10): Council Directive 90/219/EEC on the contained use of genetically modified micro-organisms, replaced by Directive 2009/41/EC on the contained use of genetically modified micro-organisms;

Annex III(11): Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms;

Annex III(12): Council Regulation No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community, replaced by Regulation (EC) No 1013/2006 of the European Parliament and of the Council on shipments of waste;

Annex III(13): Directive 2006/21/EC on the management of waste from extractive industries; and Annex III(14): Directive 2009/31/EC on the geological storage of carbon dioxide.

According to the principles of EU law interpretation, EU law is in principle to be interpreted in a dynamic and not in a static manner. That means that new legislation amending or replacing old legislation applies in case the legislation is silent about that relationship. It is only where such new legislation alters substantially the old one that this principle rule cannot be applied.

The list of pieces of legislation included in Annex III has nevertheless been updated on various occasions in information documents, notably in the ELD training handbook (albeit only partially) 26 and in the ELD brochure27 published by the European Commission (Eftec, 2013) (EuropeanCommission, 2013). For information purposes, the common understanding document that would be drafted could also include such an updated list, through a revision – if necessary – of the one included in the ELD brochure.

26http://ec.europa.eu/environment/legal/liability/pdf/eld_handbook/ELD%20Training%20Handbook%20- %202%20days_en.pdf 27 http://ec.europa.eu/environment/legal/liability/pdf/eld_brochure/ELD%20brochure.pdf

Milieu LtdBrussels


http://ec.europa.eu/environment/legal/liability/pdf/eld_brochure/ELD%20brochure.pdf

http://ec.europa.eu/environment/legal/liability/pdf/eld_handbook/ELD%20Training%20Handbook%20-%202%20days_en.pdf

http://ec.europa.eu/environment/legal/liability/pdf/eld_handbook/ELD%20Training%20Handbook%20-%202%20days_en.pdf

DOC5-05/10/2017

3 ADDITIONAL POTENTIAL TERMS AND CONDITIONS IDENTIFIED

The terms and conditions presented in this chapter would require further discussions (and validation of the interpretations in the respective Member States) before deciding whether they should be included in a common understanding document. They include: Power or duty to require an operator to carry out preventive measures; Power or duty to require an operator to carry out remedial measures; Power or duty to require an operator to carry out emergency remedial measures; Scope of interested parties entitled to submit comments to competent authorities; Notification of a competent authority’s decision to an interested party; Scope of review of a competent authority’s decisions, acts or failure to act; Liability of a third party; Recovery of costs; and Scope of the exception for activities the main purpose of which is to serve national defence.

The above-mentioned terms and conditions were presented to the ELD Government Experts during the 17th ELD Government Experts Group Meeting of 28 February 2017 in order to collect their feedback on whether they should be included in a common understanding document. However, the ad-hoc drafting group which met on 1 June and 4 September 2017 did not discuss the list of additional terms.

In terms of feedback received from ELD Government Experts on whether to include the additional terms in the document, the majority of these experts (who expressed an opinion) agreed that their inclusion would not be necessary, while only one expert indicated that it would be beneficial to clarify them28. The very few responses gathered during the stakeholder consultation considered it unnecessary to include additional terms29.

For each term and condition that could potentially be added to the list to be included in the common understanding document, the following elements are provided: Issue identified; Provision of the ELD and, where relevant, other pieces of EU legislation; and Interpretations of the provisions by Member States.The Consultants did not find official documents of the Commission where the latter took position regarding any of these issues.

However, in order to be included in the final common understanding document, it will be necessary that the additional terms and conditions receive support from the majority of Member States, and that additional information be provided as to the relevance of their inclusion.

3.1 POWER OR DUTY TO REQUIRE AN OPERATOR TO CARRY OUT PREVENTIVE MEASURES

Identified issueDoes the competent authority have a power or a duty to require an operator to carry out preventive measures?

28 Member States not supporting the inclusion of additional terms are: Belgium (Walloon region), Finland, Germany, Ireland, Italy, Romania, Hungary and the UK. Bulgaria was in favour of including the additional terms. Greece considers that it could be useful to clarify the terms “scope of interested parties entitled to submit comments to competent authorities” and “recovery of costs”.29 Responses from Pool Español de Riesgos Medioambientales – association of Spanish insurers/underwriters, Euromines, European Cheminal Industry Council (Cefic)

Milieu LtdBrussels


DOC5-05/10/2017


Pursuant to Article 5 of the ELD on preventive action, “the competent authority may, at any time” require the operator to provide information on imminent threats of environmental damage, take the necessary preventive measures, or follow certain instructions (Art. 5(3)); but “the competent authority shall require that the preventive measures are taken by the operator” (Art. 5(4)).


According to study results (BIO Intelligence Service, 2013, pp. 63-64), France, Italy, Portugal, and the United Kingdom provide a competent authority with the power, but not the duty, to order the operator to carry out preventive measures. Denmark also provides a power but notes that “The Minister for the Environment shall have any unlawful situation rectified, unless the situation is of minor significance”. Also in Spain, the competent authority has the power, but not the duty to order the operator to carry out preventive measures (art. 18 Law 26/2007). In this sense, the Spanish expert made reference to the art. 6.3 of Law 26/2007 that establishes that “if applying other legislation prevention and remediation form the operator responsible is achieved, it will not be necessary to carry out the actions foreseen in this law” (Ministry of Agriculture and Fishery, Food and Environment inSpain, 2017).

In Greece, the competent authority appears to have the duty to order the operator to carry out preventive measures, although the transposing legislation may be confusing in this regard. As clarified by the Greek experts, “according to Greek legislation, the competent authority has the duty to order the operator to take measures and to get feedback from him. Only if the operator does not respond, other options are available (i.e. the authority itself takes the measures)” (Greek Ministry ofEnvironment and Energy, 2017).

Other Member States, such as Finland, Hungary, Ireland, Poland and Sweden, place a duty on a competent authority to require an operator to carry out preventive measures if the operator has not done so (BIO Intelligence Service, 2013, pp. 63-64) (Ireland, 2008).

3.1.3 Views of the Commission service

According to the Commission, there is a difference between Article 5(3) and Article 5(4) of the ELD; they are not repetitive and it cannot be assumed that the European legislator has ruled twice the same in slightly different words or different detail. While paragraph (3) lists indicatively main powers which the competent authority has at its disposal in the area of preventive action, paragraph (4) prescribes what is to be done if the liable operator has so far not complied with the obligation to take preventive action. First, sentence 1 obliges the competent authority to require the liable operator to take the necessary preventive measures. Second, if the operator still fails to take the necessary preventive action, including as instructed by the competent authority, sentence 2 indicates scenarios under which one of the two main objectives of the Directive – prevention – is taken by the competent authority without operator’s action.

The Commission concludes therefore that there is no conflict or overlap between paragraphs (3) and (4) of Article 5 of the Directive. Both those paragraphs pursue the different purposes as outlined above.

3.2 POWER OR DUTY TO REQUIRE AN OPERATOR TO CARRY OUT REMEDIAL MEASURES

Identified issueDoes the competent authority have a power or a duty to

Milieu LtdBrussels


DOC5-05/10/2017

require an operator to carry out remedial measures? 3.2.1 Provision of the ELD and, where relevant, other pieces of EU

legislation

Pursuant to Article 6 of the ELD on remedial action, “the competent authority may, at any time” require the operator to provide supplementary information, follow certain instructions, take the necessary remedial measures, etc. (Art. 6(2)); but “the competent authority shall require that the remedial measures are taken by the operator” (Art. 6(3)).


For most Member States, a competent authority has a duty to require an operator to carry out remedial measures if the operator has not already done so. In Greece, similarly to the preventive measures, the competent authority has the duty to order the operator to carry out remedial measures. The Greek experts reported that “only if the operator does not respond, other options are available (i.e. the authority itself takes the measures)” (Greek Ministry ofEnvironment and Energy, 2017). Also, Ireland provides its competent authority with a duty to order the operator to take the necessary preventive measures (Ireland, 2008).

A minority of Member States, including Belgium (Federal State, Brussels-Capital Region), Italy and Portugal, provide that the competent authority has the power but not the duty to do so (BIOIntelligence Service, 2013, p. 63). Also in Spain, the competent authority has the power, but not the duty to order the operator to carry out remedial measures (art. 21 Law 26/2007). In this sense, the Spanish expert made reference to the art. 6.3 of Law 26/2007 that establishes that “if applying other legislation prevention and remediation form the operator responsible is achieved, it will not be necessary to carry out the actions foreseen in this law” (Ministry of Agriculture and Fishery, Food andEnvironment in Spain, 2017).

The Croatian expert suggested to consider the articles 24 and 25 of the Industrial Emissions Directive (IED, 2010/75/EU) for operators under scope of the IED30 (Ministry of Environment and Energy inCroatia, 2017).


According to the Commission, there is a difference between Article 6(2) and Article 6(3), they are not repetitive and it cannot be assumed that the European legislator has ruled twice the same in slightly different words or different detail. While paragraph (2) lists indicatively main powers which the competent authority has at its disposal in the area of remedial action, paragraph (3) prescribes what is to be done if the liable operator has so far not complied with the obligation to take remedial action. First, sentence 1 obliges the competent authority to require the liable operator to take the necessary remedial measures. Second, if the operator still fails to take the necessary remedial action, including as instructed by the competent authority, sentence 2 indicates scenarios under which one of the two main 30 Article 24 of the IED: In order to ensure that the operation of an installation does not deteriorate the quality of soil and groundwater, it is necessary to establish, through a baseline report, the state of soil and groundwater contamination. The baseline report should be a practical tool that permits, as far as possible, a quantified comparison between the state of the site described in that report and the state of the site upon definitive cessation of activities, in order to ascertain whether a significant increase in pollution of soil or groundwater has taken place. The baseline report should, therefore, contain information making use of existing data on soil and groundwater measurements and historical data related to past uses of the site.Article 25 of the IED: In accordance with the polluter pays principle, when assessing the level of significance of the pollution of soil and groundwater caused by the operator which would trigger the obligation to return the site to the state described in the baseline report, Member States should take into account the permit conditions that have applied over the lifetime of the activity concerned, the pollution prevention measures adopted for the installation, and the relative increase in pollution compared to the contamination load identified in the baseline report. Liability regarding pollution not caused by the operator is a matter for relevant national law and, where applicable, other relevant Union law.

Milieu LtdBrussels


DOC5-05/10/2017

objectives of the Directive – remediation – is taken by the competent authority without operator’s action.


3.3 POWER OR DUTY TO REQUIRE AN OPERATOR TO CARRY OUT EMERGENCY REMEDIAL MEASURES

Identified issueDoes the competent authority have a power or a duty to require an operator to carry out emergency remedial measures?


legislation

Article 6(1)(a) of the ELD provides that “Where environmental damage has occurred the operator shall, without delay, […] 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 to prevent further environmental damage and adverse effects on human health or further impairment of services”, i.e. emergency remedial measures”. The operator has thus a duty to carry out necessary remedial measures (BIO Intelligence Service, 2013, p. 64).

Articles 6(2) and 6(3) mentioned above (section 3.2.1) also apply to emergency remedial measures. This duty is self-executing – it arises when the damage occurs regardless of whether a competent authority intervenes (Fogleman, 2014, p. 199).


Some Member States (including France, Italy, and Portugal) provide that the competent authority has the power but not the duty to require an operator to carry out emergency remedial measures. In contrast, Hungary, Ireland, Poland, and Sweden provide that the competent authority has the duty to require an operator to carry out such measures (BIO Intelligence Service, 2013, p. 64). The transposing legislation in Slovenia does not mention emergency remedial measures (Stevens &Bolton, 2013, p. 90).


According to the Commission, there is a difference between Article 6(2) and Article 6(3), they are not repetitive and it cannot be assumed that the European legislator has ruled twice the same in slightly different words or different detail. While paragraph (2) lists indicatively main powers which the competent authority has at its disposal in the area of remedial action, paragraph (3) prescribes what is to be done if the liable operator has so far not complied with the obligation to take remedial action. First, sentence 1 obliges the competent authority to require the liable operator to take the necessary remedial measures. Second, if the operator still fails to take the necessary remedial action, including as instructed by the competent authority, sentence 2 indicates scenarios under which one of the two main objectives of the Directive – remediation – is taken by the competent authority without operator’s action.


Milieu LtdBrussels


DOC5-05/10/2017

3.4 SCOPE OF INTERESTED PARTIES ENTITLED TO SUBMIT COMMENTS TO COMPETENT AUTHORITIES

Identified issueWhat constitutes a “sufficient interest” and “impairment of a right” entitling a person to submit observations to the competent authority?


Pursuant to Article 12(1) of the ELD, a natural or legal person who has a “sufficient interest” or alleges “the impairment of a right” (where it is a precondition under national administrative procedural law) is entitled to submit observations to the competent authority regarding environmental damage or imminent threat thereof. Article 12(1) further states that “Member States shall determine what constitutes a ‘sufficient interest’ and ‘impairment of a right’” and that “the interest of any non-governmental organisation promoting environmental protection and meeting any requirements under national law shall be deemed sufficient for the purpose of a [sufficient interest and alleging the impairment of a right]”.


There is a substantial difference in the qualifications for the term “sufficient interest” among Member States (BIO Intelligence Service, 2013, pp. 41-42), (Stevens & Bolton, 2013, pp. 64-66): France does not define the term in its transposing legislation. The transposing legislation of some

Member States, such as Denmark, states that the articles of association for NGOs to have a “sufficient interest” must have the protection of nature and the environment as their principal object. Similarly, Finland requires an organisation to be registered, have “promotion of environmental protection, the protection of health, nature conservation or pleasant living environments” as its purpose, and a relationship with the environmental effects of the environmental damage at issue. The Netherlands has similar requirements.

Belgium (Walloon Region) requires organisations to have a legal personality, include protection of the environment in their statutory objectives, and prove that their actual activity complies with this statutory objective. The Brussels-Capital Region requires an organisation to be a non-profit organisation, exist prior to the date of the imminent threat of, or actual, environmental damage, have the protection of the environment as a statutory objective, and have the interest invoke in the request for action fall within the statutory objective at the time of the imminent threat of, or actual, environmental damage.

Poland requires the organisation to be listed on the relevant official register, have its main statutory objective as the protection of the environment, be non-profit-making, and be independent (that is, not connected to any political parties or public authorities).

Lithuania requires an organisation to be established under the Law on Associations or the Law on Public Institutions

Luxembourg requires an organisation to have been authorised pursuant to the Law concerning classified establishments, as amended, or the Law on the protection of nature and natural resources.

The Danish transposing legislation states that an NGO whose articles of association safeguard a “significant recreational interest, or material leisure interests” has the requisite sufficient interest. The German transposing legislation also refers to landscape preservation.

In addition to organisations with the aims or objectives of promoting environmental health, environmental protection, public health or activities likely to be affected by damage, the guidance for England, Wales and Northern Ireland identifies birdwatchers, ramblers, recreational fishermen and other persons, depending on the circumstances.

Milieu LtdBrussels


DOC5-05/10/2017

Some Member States have imposed a period during which a person who provides comments / observations must be a member of a qualified organisation. For example, the Irish transposing legislation states that a person has a “sufficient interest” if it can satisfy the Environmental Protection Agency that “he or she is a member of an organisation that (a) promotes protection of the environment, and (b) has acted to promote protection of the environment during the period of 12 months before the person submits [observations] and requests [the Environmental Protection Agency to perform its functions under the Regulations]”.

The transposing legislation in some Member States is especially broad in respect of persons who may be interested parties. The Hungarian legislation provides that any person, including but not limited to organisations that represent the environmental interests of their members and that are active in an area in which there is an imminent threat of, or actual, environmental damage, may request a competent authority to take action in respect of the threat or damage. The Polish legislation sets out requisites for organisations that may notify competent authorities but also provides that any person may notify a competent authority about damage that relates to the environment as a common good. Other examples include Greece, Portugal. Under the Portuguese legislation, a person entitled to submit comments to competent authority is any person or entity that is affected or may be affected by the environmental damage or imminent threat of such damage (e.g. health impact or property rights) (Portuguese Environment Agency, 2017).

In Latvia, the transposing legislation, which is not limited to the ELD, provides that “Every private individual and association, organisation and group of persons … has the right … to request that central and local government authorities, officials or private individuals put an end to any act or omission which is detrimental to the quality of the environment and damages human health or threatens their life, lawful interests or property” and “to provide central and local government authorities with information on activities or measures that affect or may affect the quality of the environment, as well as information on adverse changes observed in the environment which have resulted from such activities or measures”.

It is interesting to note that in its ELD Factsheet, the Commission provides examples of natural or legal persons who could be entitled to submit observations to the competent authority, such as: “non-governmental organisations promoting environmental protection, residents, birdwatchers, ramblers, recreational fishermen, those whose health is at risk from contaminants, or those responsible for children, or elderly persons whose health is at risk.”

Greece expressed interest to see this term included in the common understanding document (GreekMinistry of Environment and Energy, 2017).


Member States have a certain margin of discretion to determine what constitutes a "sufficient interest" and "impairment of a right"31. Such definition must however bear in mind the objective of entitlement to "submit to the competent authority any observations relating to instances of environmental damage … and … to request the competent authority to take action under this Directive. " Any determination which defines this entitlement in a too restrictive manner would not comply with the objective of the provision. Hence, the determination of "sufficient interest" and "impairment of a right" of the entitled groups of persons in Article 12 paragraph (1)(b) and (c) of the Directive must not act as obstacle to use this right. In this regard, considering the judgement of the Court of Justice of the European Union ruled in Case C-115/09, Trianel32, it should be also borne in mind where the Court ruled that these terms should be given a wide interpretation so as to be in line with the objectives of the Aarhus-31 In this context, note may be taken of the recent judgement in the Case C-529/15, Folk, of the Court of Justice of the European Union, where the Court ruled: "Although the Member States have discretion to determine what constitutes a ‘sufficient interest’, a concept provided for in Article 12(1)(b) of Directive 2004/35, or ‘impairment of a right’, a concept laid down in Article 12(1)(c) of that directive, they do not have such discretion as regards the right to a review procedure for those persons affected or likely to be affected by environmental damage, as follows from Article 12(1)(a) of that directive." (paragraph 55)32 Judgement of the Court in case C-115/09

Milieu LtdBrussels


DOC5-05/10/2017

Convention33 (paragraphs 36 – 50).

3.5 NOTIFICATION OF A COMPETENT AUTHORITY’S DECISION TO AN INTERESTED PARTY

Identified issueDoes the competent authority have a duty to respond to interested parties who submit comments / observations? Does the competent authority have a duty to taken into account the comments / observations? If yes, are there any limits to such duties?


legislation

According to Article 12(3), “Where the request for action and the accompanying observations show in a plausible manner that environmental damage exists, the competent authority shall consider any such observations and requests.” It would thus appear that competent authorities have a duty to consider the comments / observations only if they are plausible (BIO Intelligence Service, 2013, p. 43).

However, it results from Article 12(4) that competent authorities must respond to interested parties who submit comments / observations: “The competent authority shall […] inform the persons […] which submitted observations to the authority, of its decision to accede to or refuse the request for action and shall provide the reasons for it”(BIO Intelligence Service, 2013, p. 43).


According to study results (BIO Intelligence Service, 2013, pp. 43-44), (Stevens & Bolton, 2013, p.67), there are differences in the application of the requirement for informing an interested party by the competent authority: The transposing legislation of some Member States provides that a competent authority need not

respond to all comments. It is the case for example of the United Kingdom, where the transposing legislation provides that a competent authority does not need to respond to a comment if it concludes that the person submitting it is not likely to be affected, does not have a sufficient interest, or the information does not disclose a genuine imminent threat of, or actual, environmental damage. In Ireland, the competent authority must notify the person who submitted the comments / observations if the authority considers that they do not show that environmental damage exists or the person does not qualify as an interested party, notify that person in writing with reasons for its opinion.

Other Member States, such as Belgium (Walloon Region), specifically provide for a response. The Flemish Region and the Brussels-Capital Region require competent authorities to respond with its decision as soon as possible and, in any event, no later than 30 days after receipt. The Walloon Region provides that the competent authority must acknowledge receipt of the comments / observations within 10 business days of its receipt. If a request is too vague or too general, the competent authority must invite the interested party to clarify the comments / observations. The competent authority must do this within one month (two months depending on the complexity of the matter) following receipt of the comments / observations. This provision reflects article 3 of Directive (2003/4/EC) on public access to environmental information.

Polish administrative law that existed prior to the transposition of the ELD provides that the

http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30d68b84d5981a624c37b6c5f81f784cd545.e34KaxiLc3qMb40Rch0SaxyMa3r0?text=&docid=82053&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=257710 33 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters

Milieu LtdBrussels


http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30d68b84d5981a624c37b6c5f81f784cd545.e34KaxiLc3qMb40Rch0SaxyMa3r0?text=&docid=82053&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=257710



DOC5-05/10/2017

competent authority has a duty to respond to the person making the notification. There are no exceptions for frivolous notifications.

In Bulgaria, the competent authority has seven days following its receipt of comments / observations to consider the request. If the comments / observations are incomplete, the authority returns the application to the interested party, specifying the missing information. The interested party then has seven days to provide the missing information. If it fails to do so, the authority is not required to consider the comments / observations further.


The Commission considers that there is no conflict between the provisions in Article 12(3) and (4) as regards the observations made on environmental damage and the duty of the competent authority to respond, as there is a difference between both provisions. While Article 12(3) of the ELD requires competent authorities to take into consideration any observation which shows "in a plausible manner that environmental damage exists", Article 12(4) of the ELD requires competent authorities to respond to submitted observations. The latter duty thus exists also for example for observations which, pursuant to the view of the competent authority, do not contain such elements to make the environmental damage plausible. Hence, in such a case the competent authority would inform the person that the observations lack elements making plausible that environmental damage exists and consequently refuse to take action. It would however not be in compliance with Article 12(4) of the Directive if the competent authority merely judges that the observations are not plausible enough but that it does not inform the person thereof.

3.6 SCOPE OF THE REVIEW OF A COMPETENT AUTHORITY’S DECISIONS, ACTS OR FAILURE TO ACT

Identified issueWhat should be the scope of the review of a competent authority’s decisions, acts or failure to act? Should it necessarily include a review on the merits?


legislation

Article 13(1) of the ELD provides that interested parties “shall have access to a court or other independent and impartial public body competent to review the procedural and substantive legality of the decisions, acts or failure to act of the competent authority under [the] Directive.”


Some Member States, such as Spain, specifically provide for a challenge by an interested party to be decided on its merits34 (BIO Intelligence Service, 2013, p. 68).

Other Member States, such as the United Kingdom (England, Wales, and Northern Ireland) limit a challenge to an application for judicial review, which is not decided on its merits but, rather, on whether the authority’s act or failure to act was unlawful, irrational or the authority engaged in procedural impropriety35 (BIO Intelligence Service, 2013, p. 68). 34 A challenge to the competent authority’s decision is an appeal to a higher authority within the Ministry or Agency, with the right of a further appeal to an administrative court. Under Article 115 of Law 31/1992, the challenge is decided on its merits, i.e. the substantive and procedural legality of the act or failure to act (BIO Intelligence Service, 2013, pp. 325, Annex A).35 Challenges to competent authority’s decision in different territories (BIO Intelligence Service, 2013, pp. 381, Annex A):- All UK: The transposing legislation does not mention article 13(1) of the ELD which provides that interested parties “ shall have access to a court or other independent and impartial public body competent to review the procedural and substantive legality of the decisions, acts or failure to act of the competent authority under [the ELD]”.

Milieu LtdBrussels


DOC5-05/10/2017

The criterion for standing under Maltese law is a direct, personal and actual interest that would be affected by an authority’s decision36 (Stevens & Bolton, 2013, p. 92).


It is important to emphasize that the right of legal review encompasses the procedural and the substantive legality of the decision (Article 13(1) ELD).

According to the wording of Article 13(2) of the Directive Member States may require an administrative review procedure before granting the legal review through a court or another independent and impartial public body; but the latter right must always be granted. That previous administrative review before judicial review is in several Member States traditional law and practice.

3.7 LIABILITY TO A THIRD PARTY

Identified issueMay persons other than the operator be liable? Does the national legislation specify if a third party may be liable to implement preventive or remedial measures?


legislation

Article 11(3) of the ELD provides that “Member States shall ensure that the competent authority may empower or require third parties to carry out the necessary preventive or remedial measures”.

Further, Article 10 states that a competent authority may “initiate cost recovery proceedings against the operator, or if appropriate, a third party who has caused the damage or the imminent threat of damage in relation to any measures taken in pursuance of [the] Directive within five years from the date on which those measures have been completed or the liable operator, or third party, has been identified, whichever is the later.” This relates to Article 8(3)(a) of the ELD which provides that an operator has a defence to costs if it can “prove that the environmental damage or imminent threat of such damage was caused by a third party and occurred despite the fact that appropriate safety measures were in place.” In addition, Article 16(1) gives a possibility to Member States to “adopt more stringent provisions in relation to […] the identification of additional responsible parties” . This question is for example discussed in the rulings of the Court of Justice of the European Union in cases C-378/0837 and C-534/1338.

- England and Wales: In a consultation on the proposed legislation, the Government stated that it did ‘not feel that it would be necessary or appropriate to create a different route of challenge [than judicial review]’. Under English law, judicial review is not a review of the merits of a case.- Gibraltar: A person who submits comments to the competent authority may appeal against the decision taken by the competent authority to the Supreme Court within 21 days from the date on which the authority serves its decision.36 According to the transposing legislation, the competent authority shall inform the interested “persons which submitted observations to the authority, of its decision to accede to or refuse the request for action and shall provide the reasons for it”.37 In Case C-378/08, the Court notably ruled: “the legislation of a Member State may provide that the competent authority has the power to impose measures for remedying environmental damage on the basis of the presumption that there is a causal link between the pollution found and the activities of the operator or operators concerned due to the fact that their installations are located close to that pollution”, provided “the competent authority must have plausible evidence capable of justifying its presumption“ 38 In Case C-534/13, the Court stated: “As follows from Articles 4(5) and 11(2) of Directive 2004/35, read in conjunction with recital 13 thereto, in order for the environmental liability mechanism to be effective and for remedial measures to be required of an operator, the competent authority must establish a causal link between the activity of one or more identifiable operators and concrete and quantifiable damage, irrespective of the type of pollution at issue […] The operator is not required to bear the costs of preventive or remedial action taken pursuant to that directive if he can prove that the environmental damage was caused by a third party, and occurred despite the fact that appropriate safety measures were in

Milieu LtdBrussels


DOC5-05/10/2017

Finally, Article 9 specifies that the ELD “is without prejudice to any provisions of national regulations concerning cost allocation in cases of multiple party causation especially concerning the apportionment of liability between the producer and the user of a product”.


According to (BIO Intelligence Service, 2013, p. 68), some Member States have included references to a third party in their transposing legislation, but it is not always clear whether they are providing that persons other than an operator may be liable. An example is the transposing legislation in Greece that states that a competent authority may require a third party to implement preventive measures and remedial measures.


The Environmental Liability Directive contains indeed in several provisions (Articles 8(3)(a) and (b), Article 11(3), Article 16(1) ELD) references to distinct categories of possible third parties or secondary liable parties after the operator. All those and also multiple parties (Article 9) are relevant with respect to the cost recovery provision pursuant to Article 10 ELD. While cases under Article 8(3) and Article 11(3) of the ELD may emerge in all Member States, cases under Article 16(1) ELD may only emerge in those Member which have established additional liable parties at subsidiary or secondary level after the operator (such as the legal successor in rights or the approving/knowing property owner).

3.8 RECOVERY OF COSTS

Identified issueWhat are the costs the competent authority is entitled to recover from the operator?



legislation

Article 2(16) of the ELD defines “costs” as “costs which are justified by the need to ensure the proper and effective implementation of [the] Directive including the costs of assessing environmental damage, an imminent threat of such damage, alternatives for action as well as the administrative, legal, and enforcement costs, the costs of data collection and other general costs, monitoring and supervision costs”.

Article 8(2) of the ELD provides that “the competent author shall recover […] from the operator who has caused the damage or the imminent threat of damage, the costs it has incurred in relation to the preventive or remedial actions under [the] Directive. However, the competent authority may decide not to recover the full costs where the expenditure required to do so would be greater than the recoverable sum or where the operator cannot be identified.”


According to (Stevens & Bolton, 2013, p. 11), the way the language in the ELD has been adapted into transposing legislation has led to differences between Member States in notably the costs which a competent authority may recover from an operator and whether the competent authority must, or only

place, or resulted from an order or instruction emanating from a public authority”

Milieu LtdBrussels


DOC5-05/10/2017

may, recover such costs.

Some Member States, such as the Netherlands, provide that a Member State must seek the recovery of its costs.

In Portugal, the competent authority “may, as a last resort run itself the preventive and remedial measures and recover such costs, inter alia, via security over property or other appropriate guarantees from the operator who has caused the damage or the imminent threat of damage(Portuguese Environment Agency, 2017).

Member States differ regarding the scope of costs that a competent authority may recover. Denmark, in particular, sets out a lengthy list of costs that can be recovered including time in connection with new information, supervising inspections and sampling, and travel time in respect of a competent authority’s activities. Finland specifies that costs include clarifications necessary to determine environmental damage and its immediate threat, to select remedial measures, and to monitor implemented remedial measures (BIO Intelligence Service, 2013, p.69).

Greece expressed interest to see this term included in the common understanding document (GreekMinistry of Environment and Energy, 2017).


The Commission first underlines the difference between Article 8(2) ELD and Article 14(1) ELD. While the general provision with regard to financial security is Article 14(1) which requires Member States to take care that appropriate financial security systems exist at national level, be they voluntary or mandatory schemes, to provide for the necessary financial capacity to cover all possible ELD liabilities of Annex III operators for environmental damage, Article 8(2) of the Directive is a specific provision for the case where a competent authority stepped in to take the preventive or remedial action in the meaning of Article 5(4) and Article 6(3) of the ELD.

In the case of Article 8(2), the competent authority may of course recover all costs actually involved in the prevention or remediation falling under the definition of Article 2(16). As the wording of Article 8(2) clearly shows that recovery is in principle mandatory for the competent authority, but it may decide to wave parts of those costs under cost recovery proportionality considerations.

3.9 SCOPE OF EXCEPTION FOR ACTIVITIES THE MAIN PURPOSE OF WHICH IS TO SERVE NATIONAL DEFENCE

Identified issueWhat is the scope of the exception for activities the main purpose of which is to serve national defence? Could some activities related to national defence still fall under the ELD?


legislation

Article 4(6) of the ELD provides that the Directive does not apply to “activities the main purpose of which is to serve national defence or international security”.


According to study results (BIO Intelligence Service, 2013, p. 68), the Guidance for the transposing legislation in England and Wales states that national defence activities carried out by the armed forces are exempt but not activities such as the manufacture of munitions. As stated in the report, “ this Guidance partially resolves the issue but does not do so entirely. Whilst there should not be a dispute

Milieu LtdBrussels


DOC5-05/10/2017

as to whether the main purpose of some military operations is to serve national defence, issues may arise as to whether, say, a leak of heating oil from a tank or the operation of a sewerage system at a military base is covered by the exception. Most other Member States do not indicate the scope of the exception.”

In Ireland, this may vary from country to country and must be an activity carried out or on behalf of the government security agency (Irish EPA, 2017).

The Portuguese expert suggested to include an additional topic: the minimum requirements that have to be considered to carry out a human health risk assessment to evaluate potential land damage (Portuguese Environment Agency, 2017).


The minimum requirement for an activity falling under the exception of Article 4(6) ELD is a direct link with "national defence or international security". If such a link between the activity and that purpose cannot be established, the activity is not exempt. Member States may further detail this link but not widen it beyond the limits of the provision because as a matter of principle, exceptions to EU law must be interpreted restrictively.

Milieu LtdBrussels


DOC5-05/10/2017

4 CONCLUSIONS

Nine key terms and concepts of the ELD have been identified thus far that either have been interpreted inconsistently in different Member States and their national legislation or lack coherence with related terms or definitions under other EU legislation. The table below summarises the issues identified in relation to each term and concept.


Determination of the baseline condition

How should the baseline condition be assessed?

Favourable conservation status What is the geographical reference that must be considered in determining the favourable conservation status of a natural habitat or protected species?

Scope/significance of biodiversity damage

How should the significance threshold for biodiversity damage be determined?How should the concept of ‘significant’ effect on biodiversity be interpreted (in light notably of the Habitats Directive)?

Scope/significance of water damage

Does the threshold for water damage apply to “waters” or to “water bodies”?

Scope/significance of land damage

What should be the degree of harm to human health the exceedance to which would be deemed land damage under ELD?

Preventive measures How should the definition of preventive measures be interpreted? Should it cover actions adopted to prevent the environmental damage from becoming significant? Or must there be a certainty that the damage will become significant if no action is taken?

Scope of primary remediation Does “primary remediation” include emergency remedial measures, such as clean-up actions? What if clean-up actions impacts negatively the environment, making it more difficult to return it to baseline condition?

Defences: defences to costs or to liability

Are the defences specified in the ELD defences to costs or to liability?

Legislation referred to in Annex III

What are the EU pieces of legislation in force covered under Annex III of the ELD? i.e. what is the updated list of EU legislation to which Annex III apply?

In addition, nine additional terms and concepts have been identified that could potentially be included in the common understanding document. However, these issues would merit more consideration before being included in the final list; in particular, the interpretations within Member States should be validated through the ELD Government Experts. Furthermore, the necessity for interpretation of these additional terms and concepts should be clearly demonstrated, which is not always the case thus far.


Power or duty to require an operator to carry out preventive measures

Does the competent authority have a power or a duty to require an operator to carry out preventive measures?

Power or duty to require an operator to carry out remedial measures

Does the competent authority have a power or a duty to require an operator to carry out remedial measures?

Power or duty to require an Does the competent authority have a power or a duty to require an

Milieu LtdBrussels


DOC5-05/10/2017


operator to carry our emergency remedial measures

operator to carry out emergency remedial measures?

Scope of interested parties entitled to submit comments to competent authorities

What constitutes a “sufficient interest” and “impairment of a right” entitling a person to submit observations to the competent authority?

Notification of a competent authority’s decision to an interested party

Does the competent authority have a duty to respond to interested parties who submit comments / observations? Does the competent authority have a duty to taken into account the comments / observations? If yes, are there any limits to such duties?

Scope of review of a competent authority’s decisions, acts or failure to act

What should be the scope of the review of a competent authority’s decisions, acts or failure to act? Should it necessarily include a review on the merits?

Liability of a third party May persons other than the operator be liable? Does the national legislation specify if a third party may be liable to implement preventive or remedial measures?

Recovery of costs What are the costs the competent authority is entitled to recover from the operator?


Scope of the exception for activities the main purpose of which is to serve national defence

What is the scope of the exception for activities the main purpose of which is to serve national defence? Could some activities related to national defence still fall under the ELD?

In terms of feedback received from ELD Government Experts on whether to include the additional terms in the document, the majority of these experts (who expressed an opinion) agreed that their inclusion would not be necessary, while only one expert indicated that it would be beneficial to clarify them39. The very few responses gathered during the stakeholder consultation considered it unnecessary to include additional terms40.

Member States did not suggest any other terms and concepts that should be included in the common understanding document.

Some varying interpretations may result from ambiguity in relation to other EU legislation (e.g. Habitats Directive or Water Framework Directive). Others may result from national legislation interpreting key terms differently. It is noteworthy that, for instance, the term “significant” is used in all three definitions of “environmental damage” in the English version of the ELD, but has indeed different translations in some languages. As indicated in a report (Stevens & Bolton, 2013, p. 13):

“For example, the Latvian version uses the term būtiska for biodiversity and water damage, but the more qualitative term nopietna for land damage. The Bulgarian translation uses the word съществен, which means substantial, for biodiversity damage, сериозен, which means serious or grave, for water damage, and значим, which means significant, for land damage. The French translation uses the word grave, which means grave, in all three definitions.”

39 Member States not supporting the inclusion of additional terms are: Belgium (Walloon region), Finland, Germany, Ireland, Italy, Romania, Hungary and the UK. Bulgaria was in favour of including the additional terms. Greece considers that it could be useful to clarify the terms “scope of interested parties entitled to submit comments to competent authorities” and “recovery of costs”.40 Responses from Pool Español de Riesgos Medioambientales – association of Spanish insurers/underwriters, Euromines, European Cheminal Industry Council (Cefic)

Milieu LtdBrussels


DOC5-05/10/2017

An additional point that could/should be considered when developing the common understanding document is the availability of financial security instruments. Indeed, as the ELD requires Member States to encourage the development of financial security, including insurance for ELD liabilities, changes in interpretation could have an impact on the availability of insurance offer. This point was raised by Valerie Fogleman during a workshop organised by the European Parliament on 8 March 2017. Taking an example of the threshold of biodiversity damage, she remarked that if the threshold was to be reduced to Habitats Directive level, the risk for insurers would be much greater (Fogleman,Valerie, 2017).

Milieu LtdBrussels


DOC5-05/10/2017

5 LIST OF REFERENCES

Ad-Hoc Industry Natural Resource Management Group. (2017). Written feedback from Ms. Barbara Goldsmith, 17/08/2017.

Bergkamp, L., & Goldsmith, B. (. (2013). The EU Environmental Liability Directive – A Commentary. Oxford University press.

BIO Intelligence Service. (2013). Implementation challenges and obstacles of the Environmental Liability Directive. European Commission.

BIO Intelligence Service. (2014). Study on ELD Effectiveness: Scope and Exceptions. European Commission.

Bulgarian Ministry for Environment and Water. (2017). Written feedback from Ms. Ekaterina Manolova, Bulgarian Ministry for Environment and Water, 29/05/2017.

Bulgarian Ministry of Environment and Water. (2008). Liability for Prevention and Remedying of Environmental Damage Act.

Cefic. (2017). European Chemical Industry Council (Cefic), Written feedback from Ms. Susana-Beatriz Lores Tercero, 31/08/2017.

Council of the European Communities. (1992). Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.

Danish EPA. (2012). Guidelines on the environmental damage.DEFRA. (2009). The Environmental Damage (Prevention and Remediation) Regulations

2009 - Guidance for England and Wales.DEFRA. (2017). Written feedback from Mr. Duncan Mitchell, Department for Environment,

Food and Rural Affairs, 31/05/2017.Dutch Ministry of Environment. (2008). Guidelines for Part 17.2 of the Dutch Environmental

Management Act: measures in the event of environmental damage or its imminent threat.

Eftec. (2013). Environmental Liability Directive: Training Handbook.ELD Government expert group. (2017). 17th meeting - 28 February 2017.Estonian Environmental Board. (2017). Written feedback from Ms. Irma Pakkonen, Estonian

Environmental Board, 22/05/2017.Euromines. (2017). Written feedback from Ms. Mirona Coropciuc, 21/08/2017.European Aluminium. (2017). Written feedback from Mr. Felipe Martínez Rodríguez

18/08/2017.European Commission. (2000). EC Guidance Document. Managing Natura 2000 sites. The

provisions of Article 6 of the Habitats Directive 92/43/EEC. European Communities.European Commission. (2001). Environmental Directorate General Working Paper on

Prevention and Restoration of Significant Environmental Damage (Environmental Liability). European Commission.

European Commission. (2009). Response on legal interpretative questions raised by France and Czech Republic at the ELD government experts meeting of 4 February 2009.

European Commission. (2013). Environmental Liability Directive factsheet.European Commission. (2013). Environmental Liability Directive: Protecting Europe's

Natural Resources. European Commission.European Commission. (2016a). REFIT Evaluation of the Environmental Liability Directive.

Commission Staff working document. European Commission.European Commission. (2016b). Report from the Commission to the European Parliament

and to the Council pursuant to Article 18(2) of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage.

Milieu LtdBrussels


DOC5-05/10/2017

European Commission. (2017). Commission Decision (EU) 2017/848 of 17 May 2017 laying down criteria and methodological standards on good environmental status of marine waters and specifications and standardised methods for monitoring and assessment, and repealing Decision 2010/477/EU.

European Commission. (2017). ELD Optional defences overview.European Parliament and Council. (2008). Directive 2008/56/EC of the European Parliament

and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive).

European Parliament and the Council. (2000). Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy.

European Parliament and the Council. (2014). Directive 2004/35/CE of the European Parliament and the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage.

Federal Government of Belgium. (2014). Report to the European Commission in accordance with Article 18(1) of Directive 2004/35/EC.

Fogleman, V. (2014). The Threshold for Liability for Ecological Damage in the EU: Mixing Environmental and Conservation Law. In A. C. Charles-Hubert Born, The Habitats Directive in its EU Environmental Law Context: European Nature's Best Hope? (pp. 181-214). Routledge 2015.

Fogleman, Valerie. (2017). ELD: Challenges and Possible Improvements - presentation at the workshop on the implementation of the Environmental Liability Directive 8 March 2017 hosted by the European Parliament.

French general commission for sustainable development. (2012). The Environmental Liability Law (ELL) and the equivalency methods - Methodological Guide. Ministry of Ecology, Sustainable Development and Energy.

General Directorate of Natural Resources and Environment of Wallonia. (2008, March 6). Circular regarding the implementation of the environmental liability regime.

German Insurance Association. (2017). Written feedback from Mr. Karl Ortmann, 10/08/2017.

Gouvernement wallon. (2013). Rapport de la mise en oeuvre de la Directive 2004/35/CE sur la responsabilité environnementale.

Greek Ministry of Environment and Energy. (2017). Written feedback from Ms. Stavroula Pouli and Ms. Christina Kourenti, Ministry of Environment and Energy, 18/04/2017.

Hungarian Ministry of Agriculture. (2017). Written feedback from Ms. Júlia Taródi, Ministry of Environment and Energy, 10/08/2017.

Ireland. (2008). European Communities (Environmental Liability) Regulations 2008 implementing the ELD .

Irish EPA. (2011). Environmental Liability Regulations - Guidance Document.Irish EPA. (2017). Written feedback from Mr. David Smith, Irish EPA, 26/04/2017.Justice and Environment. (2013a). Beetween the limits of environmental damage. Justice and Environment. (2013b). Comparison of Hungarian and Estonian significance

thresholds in ELD and national environmental liability systems. Justice and Environment. (2015). The EU Environmental Liability System. Milieu Ltd. (2014). Experience gained in the application of ELD biodiversity damage.

European Commission.Ministry of Agriculture and Fishery, Food and Environment in Spain. (2017). Written

feedback from Mr. Isaac Sánchez Navarro, Ministry of Agriculture and Fishery, Food and Environment in Spain, 29/05/2017.

Milieu LtdBrussels


DOC5-05/10/2017

Ministry of Environment and Energy in Croatia. (2017). Written feedback from Ms. Ivana Palinić Galović, Ministry of Environment and Energy in Croatia, 29/05/2017.

Ministry of Environment and Spatial Planning of Slovenia. (2017). Written feedback of Dušan Picher, Environment Directorate, of 12/06/2017.

Ministry of Infrastructure and the Environment of the Netherlands. (2017). Written feedback from Ms. Nicolette Bouman, 28/08/2017.

Ministry of the Environment of Finland. (2012). Remediation of Significant Environmental Damage - Manual on Procedures.

Ministry of the Environment of Finland. (2017). Written feedback from Ms. Linda Harju-Oksanen, Ministry of Environment, 20/04/2017.

Pool Español de Riesgos Medioambientales. (2017). Written feedback from Mr. José Luis Heras, 31/07/2017.

Portuguese Environment Agency. (2011). Guide for the Assessment of Imminent Threats and Environmental Damages.

Portuguese Environment Agency. (2017). Written feedback from Ms. Regina Vilão, 12/05/2017.

Public Service of Wallonia. (2017). Written feedback of Ms Christelle Van Wesembeeck, Public Service of Wallonia, 01/06/2017.

Romanian Ministry of Environment. (2017). Written feedback from Ms. Gabriela Osiceanu, Ministry of Environment, 18/04/2017.

Stevens & Bolton. (2013). Study on Analysis of integrating the ELD into 11 national legal frameworks. European Commission.

The Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety. (2017). Written feedback from Mr. Benjamin Bittermann, Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety, 19/05/2017.

The Scottish Government. (2009). Environmental Liability (Scotland) Regulations 2009 Draft Guidance.

Milieu LtdBrussels


DOC5-05/10/2017

Milieu LtdBrussels


ec.europa.eu€¦ · Web viewDOC5-05/10/2017. Milieu Ltd . Brussels . Towards a common...

Documents

Transcript of ec.europa.eu€¦ · Web viewDOC5-05/10/2017. Milieu Ltd . Brussels . Towards a common...