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Experience gained in the
application of ELD biodiversity
damage
Final Report, February 2014
A great deal of additional information on the European Union is available on the Internet.
It can be accessed through the Europa server (http://ec.europa.eu).
Luxembourg: Office for Official Publications of the European Communities, 2014
ISBN 978-92-79-35535-6
DOI: 10.2779/69960
No of catalogue: KH-04-14-079-EN-N
© European Union, 2013
Reproduction is authorised provided the source is acknowledged.
Experience gained in the application of ELD biodiversity damage
Final Report
February 2014
Project coordinator:
This Report has been prepared by Milieu Ltd. and IUCN for the European Commission’s
Directorate General Environment under Service Contract number:
070307/2013/658479/ETU/ENV.D.4
The authors from Milieu Ltd. are Marta Ballesteros, Damir Petrovic and Sophie
Vancauwenbergh and from IUCN are Thomas Greiber, James Kemp, Sandra Jen, Ning Li and
Ana Nieto. (They are referred to in alphabetical order)
Milieu Ltd. (Belgium), rue Blanche 15, B-1050 Brussels, tel: +32 (0)2 506 1000; fax: +32 2
514 3603; marta.ballesteros@milieu.be; web address: www.milieu.be
Disclaimer: The information and views set out in this study are those of the authors and do
not necessarily represent the official views of the Commission.
Recommended citation:
Milieu Ltd., IUCN, Experience gained in the application of ELD biodiversity damage. Final
report for the European Commission, DG Environment. Brussels, February 2014.
Milieu Ltd. Experience gained in the application of the ELD biodiversity damage / v
January 2014
Executive Summary
The primary objective of this Report is to provide an overview of the situation regarding the
implementation of the Environmental Liability Directive (ELD) concerning biodiversity damage. It
will feed on the report to be submitted by the European Commission (Commission) to the European
Parliament and the Council by 2014.
The ELD objective is understood as establishing a framework for the prevention and remedying of
environmental damage through a liability regime based on the ‘polluter-pays principle’ in order to
ensure that biodiversity is restored or maintained at Favourable Conservation Status and, thus, halting
biodiversity loss in the EU. The ELD liability regime requires operators whose activity has caused
biodiversity damage or imminent threat of such damage, to be held liable. The overall objective of the
ELD - halting biodiversity loss, is shared with the Habitats and Birds Directives.
The Report describes implementation challenges of the ELD based on the analysis of 10 EU Member
States’ environmental liability regimes. They include the need for clarification and harmonisation of
concepts such as significant biodiversity damage or preventive and remedial measures. Some of these
concepts are analysed in light of their actual implementation and co-relation between the ELD and
Habitats and Birds Directives. More detailed overviews for each Member State are provided in the
Annex to the Report.
Having accurate and sufficient information is very important in determining baseline conditions. This
information is sometimes scattered and only few information sources are specific to the ELD. Thus,
Section 7 of this Report provides an overview of the main accessible information sources on
biodiversity at EU level and in all 28 Member States. This section is linked to the European
Biodiversity Registry for ELD developed within this project.
On the basis of description and evaluation provided in sections 2 – 7, section 8 of the Report contains
conclusions and recommendations for action by, primarily, the Commission.
Despite the intent of the legislator, application of the ELD and Habitats Directive is not coordinated
or harmonised. One key aspect of this lack of harmonisation is the interpretation and application of
significant biodiversity damage which has affected the number of reported ELD cases. While some
countries such as Denmark, France or Slovenia understand significant damage as severe – almost
catastrophic cases, others such as Germany or Poland consider significant any biodiversity damage
beyond negative variations (ref Annex I to the ELD) which is partially expressed in the number of
reported ELD cases. This has led to a non-harmonised implementation of the EU legislation and
therefore Commission’s action is necessary. Higher coherence between the ELD and the Habitats
Directive would be attained by improving higher coordination of the procedures and clarifying the
definition of `significant biodiversity damage´ under Article 2(1) of the ELD and align it with Article
6(2) of the Habitats Directive. Indeed, one of the main objectives of the ELD - to harmonise the
liability of operators for biodiversity damage, does not seem to be sufficiently achieved and further
harmonisation might be necessary in relation to the threshold for defining significant biodiversity
damage required to trigger application of the ELD.
In addition, the concept of preventive measures needs to be further clarified. The assessment of the
practical implementation of the Directive in selected Member States carried out in this project
evidenced that the concept of preventive measures is not implemented properly in all cases. The
Commission may want to consider providing guidance on this issue and propose necessary
Milieu Ltd. Experience gained in the application of the ELD biodiversity damage / vi
January 2014
amendments to the ELD addressed to ensure that the definition of preventive measures includes as
well those actions adopted to prevent the environmental (biodiversity) damage from becoming
‘significant’ and therefore minimising it. This interpretation is based on the understanding that Article
2 of the ELD defines environmental biodiversity damage as significant environmental damage. The
difference between preventive measures and emergency remedial measures needs to be clarified as
well. Preventive measures are prior in time and are taken at the initiative of the operator or upon
request of the competent authorities in order to prevent the damage becoming significant.
One of the key added values of the ELD is the possibility to attribute strict liability to an operator for
damage to biodiversity. However, strict liability is only applied to biodiversity damage caused by
Annex III activities. There is no justification under the ‘polluter pays principle’ to maintain the
difference between strict liability and fault base liability for different types of occupational activities
causing damage to protected biodiversity. Furthermore, the difficulties of implementing the ELD
linked to the procedures to prove the causal link are exacerbated in the cases of fault base liability. All
occupational activities causing damage to protected biodiversity should be subject to strict liability. In
this sense the Commission may want to consider amending Article 3(1)b) in order to ensure that the
ELD would apply strict liability to all damages to biodiversity derived from occupational activities.
There seems to be no difficulties in the application of the concept of Favourable Conservation
Status beyond the lack of information and data. In addition to the general need for further
biodiversity data there is a need for clarification of specific circumstances such as whether or not
damage impacting the population of a protected species and habitats in one area constitutes
environmental damage in the sense of the ELD if the population and habitats exists in another area.
The concept of FCS and therefore the definition of significant damage may get distorted if the
competent authorities need to assess the conservation status of habitats and species in relation to the
whole European territory of a Member State or the natural range of a specific species (as established
under Article 2(4) of the ELD) instead of in relation to the site. This aspect could be an additional
cause for a low number of ELD cases. The Commission may want to consider clarifying this concept,
within the context of the Habitats Directive implementation, and proposing an amendment to establish
the significance of damage to the effects on the FCS at site level.
Other recommendations include clarification of the establishment of a causal link or the establishment
of monitoring obligations on operators or competent authorities to enable them to have access to the
information required for the notification obligations. The Commission may want to continue gathering
information and analysing the need for mandatory or voluntary financial securities systems.
Furthermore it should promote exchange of good practices and raising awareness about the tools for
implementation of the ELD.
The Commission may want to consider promoting the sharing of information and availability of data
necessary for the definition of the baseline condition to determine the extent of the biodiversity
damage. In that sense the Commission may want to consider promoting centralized national
biodiversity information platforms linking policy, data and research, encouraging and mainstreaming
voluntary participation in ELD implementation through latest information and communications
technology.
Contents
1 INTRODUCTION ....................................................................................................................................... 1
2 OBJECTIVES OF THE ELD. HALTING BIODIVERSITY LOSS ...................................................... 3
2.1 OBJECTIVES OF THE ELD .......................................................................................................................... 3 2.2 OBJECTIVE OF THE HABITATS DIRECTIVE .................................................................................................. 3 2.3 CONCLUSION AND BASIS OF THE STUDY .................................................................................................... 4 2.4 THE FRAMEWORK UNDER THE ELD ........................................................................................................... 4 2.5 FAVOURABLE CONSERVATION STATUS UNDER THE HABITATS DIRECTIVE ............................................... 8 2.6 APPLICABILITY OF THE FAVOURABLE CONSERVATION STATUS ............................................................... 14 2.7 EFFECTIVENESS OF THE ELD ................................................................................................................... 18
3 LEGAL SYSTEMS REGULATING LIABILITY FOR BIODIVERSITY DAMAGE IN MEMBER
STATES ............................................................................................................................................................... 19
3.1 INTRODUCTION: THE ELD SYSTEM IN 10 SELECTED EU MEMBER STATES. ............................................. 19
4 ANALYSIS OF CHALLENGES AND OBSTACLES: CASE STUDIES ............................................ 20
4.1 CASE STUDIES “CHALLENGES IN THE APPLICATION OF THE ELD TO BIODIVERSITY DAMAGES” .............. 22
5 ANALYSIS OF KEY ELD CONCEPTS AND THEIR APPLICATION IN EU MEMBER STATES
41
5.1 IMPACT OF MEMBER STATES CHOICES ON THE SCOPE OF BIODIVERSITY DAMAGE ................................... 41 5.2 IMPLEMENTATION OF KEY CONCEPTS OF ELD AND HABITATS DIRECTIVE .............................................. 44
6 THE ADDED VALUE OF THE ELD ..................................................................................................... 64
7 REGISTER OF INFORMATION SOURCES........................................................................................ 67
7.1 INTRODUCTION ........................................................................................................................................ 67 7.2 APPROACH ............................................................................................................................................... 67 7.3 OVERVIEW OF THE REGISTER ................................................................................................................... 68 7.4 BASELINE INFORMATION SOURCES AT THE EU LEVEL ............................................................................ 68 7.5 BASELINE INFORMATION SOURCES OF MEMBER STATES: COUNTRY PROFILE......................................... 69 7.6 METHODOLOGICAL APPROACHES ............................................................................................................ 74 7.7 OBSERVATIONS AND RECOMMENDATIONS .............................................................................................. 74
8 CONCLUSIONS & RECOMMENDATIONS ........................................................................................ 78
8.1 THE COORDINATED APPLICATION OF THE ELD AND THE HABITATS DIRECTIVE: HARMONISATION OF
SIGNIFICANT BIODIVERSITY DAMAGE ................................................................................................................ 78 8.2 CLARIFICATION OF KEY ELD CONCEPTS: FAVOURABLE CONSERVATION STATUS; PREVENTIVE MEASURES
AND CAUSAL LINK. ........................................................................................................................................... 85 8.3 PROBLEMS OF IMPLEMENTATION ............................................................................................................. 90 8.4 THE NEED TO INCREASE AWARENESS ....................................................................................................... 93 8.5 FINANCIAL SECURITIES – ELD ................................................................................................................ 95 8.6 BASELINE INFORMATION SOURCES ......................................................................................................... 96
9 BIBLIOGRAPHY........................................................................................................................................ 1
10 ANNEX 1 – DESCRIPTION OF SELECTED MEMBER STATES’ ELD REGIMES ........................ 4
ELD IMPLEMENTATION - COUNTRY REPORT FOR BULGARIA ......................................................... 5
1. INTRODUCTION: LEGAL AND INSTITUTIONAL FRAMEWORK ........................................................................... 5 2. DEFINITION OF RELEVANT TERMS ................................................................................................................ 5 3. APPLICATION OF THE ELD IN BULGARIA ..................................................................................................... 6 4. REFERENCES ............................................................................................................................................. 11
ELD IMPLEMENTATION - COUNTRY REPORT FOR DENMARK ....................................................... 12
1. INTRODUCTION: LEGAL AND INSTITUTIONAL FRAMEWORK ......................................................................... 12 2. DEFINITION OF RELEVANT TERMS .............................................................................................................. 12
3. APPLICATION OF THE ELD IN DENMARK ................................................................................................... 13 4. REFERENCES ............................................................................................................................................. 15
ELD IMPLEMENTATION - COUNTRY REPORT FOR ESTONIA .......................................................... 16
1. INTRODUCTION: LEGAL AND INSTITUTIONAL FRAMEWORK ......................................................................... 16 2. DEFINITION OF RELEVANT TERMS .............................................................................................................. 16 3. APPLICATION OF THE ELD SYSTEM IN ESTONIA ......................................................................................... 17 4. REFERENCES ............................................................................................................................................. 23
ELD IMPLEMENTATION - COUNTRY REPORT FOR FRANCE............................................................ 24
1. INTRODUCTION: LEGAL AND INSTITUTIONAL FRAMEWORK ......................................................................... 24 2. DEFINITION OF RELEVANT TERMS .............................................................................................................. 24 3. APPLICATION OF THE ELD IN FRANCE ....................................................................................................... 25 4. REFERENCES ............................................................................................................................................. 28
ELD IMPLEMENTATION - COUNTRY REPORT FOR GERMANY ....................................................... 29
1. INTRODUCTION: LEGAL AND INSTITUTIONAL FRAMEWORK ......................................................................... 29 2. DEFINITION OF RELEVANT TERMS .............................................................................................................. 29 3. APPLICATION OF THE ELD IN GERMANY .................................................................................................... 30 4. COORDINATION OF THE ELD WITH SECTORIAL LEGISLATION ...................................................................... 31 5. ANALYSED CASE ....................................................................................................................................... 33 6. REFERENCES ............................................................................................................................................. 36
ELD IMPLEMENTATION - COUNTRY REPORT FOR ITALY ............................................................... 37
1. INTRODUCTION: LEGAL AND INSTITUTIONAL FRAMEWORK ......................................................................... 37 2. DEFINITION OF RELEVANT TERMS .............................................................................................................. 37 3. APPLICATION OF THE ELD IN ITALY .......................................................................................................... 38 4. REFERENCES ............................................................................................................................................. 40
ELD IMPLEMENTATION - COUNTRY REPORT FOR POLAND ........................................................... 42
1. INTRODUCTION: LEGAL AND INSTITUTIONAL FRAMEWORK ......................................................................... 42 2. DEFINITION OF RELEVANT TERMS .............................................................................................................. 42 3. APPLICATION OF THE ELD IN POLAND ...................................................................................................... 45 4. COORDINATION BETWEEN THE ELD AND OTHER LIABILITY SYSTEMS .......................................................... 46 5. ANALYSED CASES ...................................................................................................................................... 46 6. REFERENCES ............................................................................................................................................. 52
ELD IMPLEMENTATION - COUNTRY REPORT FOR SLOVENIA ....................................................... 53
1. INTRODUCTION: LEGAL AND INSTITUTIONAL FRAMEWORK ......................................................................... 53 2. DEFINITION OF RELEVANT TERMS .............................................................................................................. 53 3. APPLICATION OF THE ELD IN SLOVENIA .................................................................................................... 55 4. REFERENCES ............................................................................................................................................. 57
ELD IMPLEMENTATION - COUNTRY REPORT FOR SPAIN ................................................................ 58
1. INTRODUCTION: LEGAL AND INSTITUTIONAL FRAMEWORK ......................................................................... 58 2. DEFINITION OF RELEVANT TERMS .............................................................................................................. 59 3. APPLICATION OF THE ELD SYSTEM IN SPAIN ............................................................................................. 60 4. REFERENCES ............................................................................................................................................. 63
ELD IMPLEMENTATION - COUNTRY REPORT FOR THE UK ............................................................. 64
1. INTRODUCTION: LEGAL AND INSTITUTIONAL FRAMEWORK ......................................................................... 64 2. DEFINITION OF RELEVANT TERMS .............................................................................................................. 65 4. THE ANALYSED CASE - THE CASE OF DAMAGE TO AN SSSI ............................................................................ 68 5. REFERENCES ............................................................................................................................................. 72
11 ANNEX 2 - REGISTER ............................................................................................................................ 73
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List of abbreviations
CJEU Court of Justice of the EU
DG ENV European Commission’s Directorate General Environment
ELD Environmental Liability Directive 2004/35/EC
EU European Union
FCS Favourable Conservation Status
FRV Favourable Reference Value
IUCN International Union for the Conservation of Nature
MS Member States
TFEU Treaty on the Functioning of the European Union
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1 Introduction This study has been prepared by Milieu Ltd and International Union for Conservation of Nature
(IUCN) at the request of the European Commission’s Directorate General Environment (DG ENV),
concerning ‘Experience gained in the application of ELD biodiversity damage’.
Despite over 40 years of legislative and policy efforts aimed at environmental protection at EU level,
certain economic activities may cause incidents damaging nature and biodiversity – sometimes in an
irreversible manner leading to biodiversity loss. For example, the toxic spill damaging the Guadiamar
River and part of the Doñana National Park in 1998 indicated the need for legislation regulating cases
of incidents damaging the environment and ensuring proper delimitation of the damages to be
considered and the distribution of responsibility between the operator and the competent authorities.
Though the authorities reacted swiftly, the responsibility of the operator was raised but could not be
determined since the legislation only established fault-based liability1which could not be proved.
With this and other experiences in mind, in 2004, the European Union adopted the Environmental
Liability Directive 2004/35/EC2 (ELD) based on the ‘polluter-pays principle’ and establishing strict
liability for environmental damage (damage to biodiversity, water and land) linked to certain
operational activities.
The Directive entered into force on 30 April 2004 and the transposition deadline for Member States to
incorporate the Directive in national legislation was 30 April 2007. Its main objective is to ensure
prevention and remediation of the occurrence and severity of environmental damage, or imminent
threat, arising out of economic activities by establishing an environmental liability framework of
economic operators. This regime is coupled with a non-mandatory financial guarantee acting as a tool
complementary to the environmental protection targets pursued by other EU environmental legislation.
Under the ELD, the operator’s liability is the starting point for the implementation of the scheme. The
operator has the responsibility to adopt preventive measures in case of imminent threat of
environmental damage and to notify the competent authorities of the situation. The operator is also
required to inform the authorities of the occurrence of the damage including all relevant aspects of the
situation and to take the necessary measures to control the source of damage and to remedy the
damage. In these situations, the operator is required to identify potential remedial actions and submit
them to the competent authority for approval.
The key pieces of EU legislation regulating biodiversity conservation are the Birds Directive3 and the
Habitats Directive4. This regime is based on public authorities’ responsibility which may act against
operators in case of infringement of legal provisions. Under the Habitats Directive regime,
deterioration to habitats or significant disturbances to species in Natura 2000 sites, or to a protected
habitat or species, would be subject to enforcement measures by competent authorities against
infringement of the mandatory provisions of the Directive.
1 Remede: http://www.envliability.eu/docs/CaseStudySelection_D11_201107.pdf 2 Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage, OJ
L 143, 30.4.2004, p. 56 3 Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds, OJ L 20, 26.1.2010, p. 7 4 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206,
22.7.1992, p. 7
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The ELD sets a unique framework for biodiversity damage whereby this type of environmental
damage is concerned by both types of liabilities: strict liability and fault-based liability. The strict
liability is applicable to any environmental damage, including damage to protected species and natural
habitats caused by activities listed in Annex III to the Directive. The fault-based liability is exclusively
applicable to damages to protected species and natural habitats caused by activities outside Annex III.
Liability under the ELD system applicable to biodiversity, either strict or by fault, remains upon the
requirement of the damage being ‘significant’. The significance of the damage is established with
reference to the “Favourable Conservation Status” (FCS) determined in relation to the baseline
condition. In cases where damage is considered significant and the ELD therefore is applied, the
adoption of preventive and remediation measures is required. With regard to biodiversity damage, the
objective of remediation measures is to bring the affected habitats or species in the ex ante situation
defined by the baseline condition established according to the available information. The difficulties in
defining the damage threshold and the remedial measures, has generated challenges in implementation
whereby the ELD regime ends up being applied by some Member States for major damages only.
The impact from the differences in the interpretation or implementation of ELD to biodiversity in
relation to significant damage, FCS and ‘baseline condition’ to determine the applicable measures are
defined in this study, leading to conclusions and recommendations.
The objective of the current study responds to the specific situation drawn from Article 18 of the ELD
which requires the Commission to submit by 30 April 2014, a report to the European Parliament and
the Council on the implementation of the Directive. The Commission report should be based on the
reports submitted from Member States by 30 April 2013 and should address the application of the
Directive in relation to protected species and natural habitats and assess the need for any amendments.
Furthermore, Article 17 of the Habitats Directive requires Member States to submit information on
how the Directive is being implemented in order for the European Commission to report on the status
of biodiversity in Europe every six years. The next assessment is scheduled for 2014, covering the
period 2007-2012 which coincides with the moment of the period covered by the first ELD report.
Approach/Methodology
The objective of the study is to examine the implementation of the ELD in relation to protected
species and natural habitats. The study includes an assessment of the practical implementation of the
Directive in relation to biodiversity damage and an analysis of key relevant legal concepts of the
Environmental liability Directive in relation to the Habitats Directive.
The analysis of the practical implementation of the ELD required an in-depth understanding of the
different legal systems in the EU Member States. While the study did not require country studies, an
overview of relevant implementation issues in selected Member States has been carried out. The
review comparing the selected Member States was based on the use of standardised templates to
ensure comparable information. The information obtained through existing sources required to be
complemented with targeted interviews to Member States selected according to defined criteria. The
challenges identified through this analytical exercise are presented, pointing out to the need of
measures to be taken at EU and national level. Furthermore a register of all information sources and
methodological approaches to determine baseline condition for biodiversity damage has been
developed.
2 Objectives of the ELD. Halting biodiversity loss
2.1 Objectives of the ELD
The implementation of the ELD on biodiversity damage and its effectiveness can only be assessed in
relation to the achievement of its objectives.
The objective of the ELD is ‘to establish a common framework for the prevention and remedying of
environmental damage at a reasonable cost to society’. This framework introduces a liability regime
based on the ‘polluter-pays principle’ such that ‘an operator, whose activity has caused the
environmental damage, or imminent threat of such damage, is to be held financially liable’.5
‘Environmental damage’ in relation to biodiversity is defined as measurable quantifiable damage to
protected species and natural habitats6 that has ‘significant adverse effects on reaching or maintaining
the favourable conservation status of such habitats or species’.7 Thus, the Favourable Conservation
Status (FCS) of the affected species and/or natural habitat must be the basis to determine whether or
not significant damage has occurred.
Significance is assessed with reference to the baseline condition, which is the ‘condition, at the time of
the damage, of the natural resources and services that would have existed had the environmental
damage not occurred’.8
It is therefore clear that the ELD aims at establishing a framework for the prevention and
remedying of environmental damage through a liability regime based on the ‘polluter-pays
principle’ in order to ensure that biodiversity is restored or maintained at Favourable
Conservation Status and, thus, halting biodiversity loss in the EU.
2.2 Objective of the Habitats Directive
The primary objective of the Habitats Directive is the ‘maintenance or restoration, at favourable
conservation status, of the natural habitats and species of wild fauna and flora of Community
Interest’.9 Pursuant to this objective, Member States must take measures to enhance, maintain, or
restore the status of designated habitats and species to a favourable level with consideration of
economic, social, and cultural requirements and regional and local characteristics.10
The FCS concept links the two ‘pillars’ of the Habitats Directive:
5 Council directive 2004/35/EEC on environmental liability with regard to the prevention and remedying of environmental
damage [2004] OJ L. 143/56, recitals 2 and 3 and Article 1. 6 ‘Protected species and natural habitats’ means the species and natural habitats mentioned and listed in the Birds Directive
(2009/147/EC) and Habitats Directive (92/43/EEC). The ELD includes the breeding sites and resting places of species listed
in Annex IV of the Habitats Directive. A Member State may apply the ELD to any species or natural habitat designated for
protection under national law. See ELD 2004/35/EEC, Art. 2(3) 7 ELD, Art. 2(1) 8 ELD, Art. 2(14) 9 European Commission. 2007. Guidance document on the strict protection of animal species of Community interest under
the Habitats Directive 92/43/EEC, I.2, para. 9 10 Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [1992] OJ L. 206
(Habitats Directive) Art. 2
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Conservation of natural habitats and the habitats of species – Articles 3-11;
Protection of animal and plant species – Articles 12-16.11
As the primary objective of the Habitats Directive, all other Member State obligations contained
within the Directive must also aim to maintain or restore habitats and species at the FCS.12
2.3 Conclusion and basis of the study The ELD and the Habitats Directive share the same fundamental objective: halting biodiversity loss.
Furthermore, the achievement of this objective is based on the same criteria: reaching or maintaining
EU habitats and species at FSC. The FCS represents a precautionary approach to biodiversity
conservation, featured as the conservation objective of the Habitats Directive for species, natural
habitats and habitats of species and as the objective and standard under the ELD to impose liability for
environmental damages.
Both legal instruments represent different ways or approaches to implement the shared general
objective. The ELD sets out an environmental liability framework while the Habitats Directive is
based on conservation measures.
2.4 The framework under the ELD The ELD approach is based on key elements that are described hereby.
2.4.1 Favourable Conservation Status under ELD
The ELD takes the definition of the FCS from the Habitats Directive.13
Its Article 1(e) defines
conservation status for habitats as ‘the sum of influences acting on a natural habitat and its typical
species that may affect its long-term natural distribution, structure and functions as well as the long-
term survival of its typical species within the territory of the Member States to which the Treaty
applies or the natural range of that habitat’.
According to this definition, conservation status is seen as the result of influences which include the
present state of the habitat, together with current environmental and human influences that may
influence its long-term survival. Therefore, the FCS of a natural habitat occurs when:
its natural range, and the areas it covers within that range, are stable or increasing;
the specific structure and functions, which are necessary for its long-term maintenance, exist
and are likely to continue to exist, for the foreseeable future;
the conservation status of its typical species is favourable.14
Furthermore, the FCS of a species occurs when:
11 European Commission. 2007. Guidance document on the strict protection of animal species of Community interest under
the Habitats Directive 92/43/EEC, I.2.3, paras. 20, 29 12 Charalambides, L.C. 2004. Guidance Document for the ‘Habitats’ Directive 92/43/EEC: ‘Favourable Conservation Status’
From Legal Interpretation to Practical Application, p. 24 13 Habitats Directive, Art. 1(e), 1(i) 14 ELD, Art. 2(4)(a)
Milieu Ltd. Experience gained in the application of the ELD biodiversity damage / 5
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the population dynamics data on the species concerned indicates that it is maintaining itself on
a long-term basis as a viable component of its natural habitat;
the natural range of the species is neither being reduced, nor is likely to be reduced, for the
foreseeable future;
there is, and will probably continue to be, a sufficiently large habitat to maintain its population
on a long-term basis.15
Even though the FCS is clearly defined, its actual assessment and monitoring involves a number of
complex variables that, in practice, require sufficient data and monitoring to assess the extent of
damage and restoration progress.16
The evidence and data used to prove significant damage must:
prove that the damage exceeds natural fluctuations, or negative variations, due to natural
causes;
prove that the damaged species or habitats will not recover to the baseline condition (or to a
condition deemed equivalent or superior to the base line condition within a short time without
intervention.17
The availability of accurate information is crucial to enable measuring any damage occurred in species
or habitats and to determine if it has significant adverse effects on reaching or maintaining their
favourable conservation status. It is likely that most available data would be collected within the
framework of the EU Birds and Habitats Directives and relate to the Natura 2000 Network. The
practical applicability of the ELD will largely depend on the quality and accuracy of the information
gathered under the reporting requirements of the above-mentioned Nature Directives18
(see section
2.6).
2.4.2 Baseline condition
Baseline condition means the condition at the time of the damage of the natural resources and services
that would have existed had the environmental damage not occurred. It is estimated on the basis of the
best information available on the following:
number of individuals, their density or area covered;
role of particular individuals or of the damaged area, in relation to species or habitat
conservation, and the rarity of the species or habitat;
species capacity for propagation, its viability, or the habitat’s capacity for natural regeneration;
species or habitat capacity to recover within a short time after damage has occurred, without
intervention other than increased protection measures, to a condition – which leads solely by
virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior
to the baseline condition.19
15 ELD, Art. 2(4)(b) 16 Van den Broek, G.M. 2009. Environmental liability and nature protection areas: Will the EU Environmental Liability
Directive actually lead to the restoration of damaged natural resources? Utrecht Law Review, Vol. 5, Issue 1: 121 17 ELD, Annex I; 18 Idem footnote 16, page 130. 19 ELD, Annex I
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The protected species and natural habitats covered by the ELD are:
the species mentioned in Article 4(2), or listed in Annex I of the Birds Directive 2009/147/EC;
the species listed in Annexes II and IV to the Habitats Directive (92/43/EEC);
the habitats of species mentioned in Article 4(2), or listed in Annex I of the Birds Directive;
the habitats of species listed in Annex II of the Habitats Directive;
the natural habitats listed in Annex I of the Habitats Directive;
the breeding sites or resting places of species listed in Annex IV to the Habitats Directive; and
any habitats or species not listed in the Habitats or Wild Birds Directives which the Member
State designates for equivalent purposes.20
2.4.3 Preventive and remedial measures With regard to protected species and natural habitats, the ELD applies to occupational activities – ‘any
activity carried out in the course of an economic activity, a business or an undertaking, irrespective of
its private or public, profit or non-profit character’, which may cause an environmental damage or
any imminent threat of such damage.21
There must be a causal link between the identified operator, i.e.
‘any natural or legal, private or public person who operates or controls the occupational activity’,
and the damage.22
However, the ELD excludes from its scope the damages which result from an act by an operator which
was expressly authorised by the relevant authorities in accordance with provisions implementing
Articles 6(3) and (4). Therefore, those projects authorised under Article 6(3) and Article 6(4) of the
Habitats Directive causing significant impacts on biodiversity are not covered by the ELD.
Furthermore the ELD does not apply when damages affect species excluded under Article 16 of the
Habitats Directive and Article 9 of the Birds Directive, or damages to habitats and species not covered
by Union law unless Member States have explicitly extended the application of ELD to nationally
protected habitats and species. Further exceptions to the application of the Directive are indicated in
Article 4 of the ELD.
Imminent threat of damage is considered when there is a sufficient likelihood that environmental
damage will occur in the near future. The removal of any significant risk of damage requires the
adoption of preventive measures.
Preventive measures are ‘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 minimizing that
damage’.23
Where appropriate, and in any case when preventive measures do not dispel imminent
threats of environmental damage, the operator shall inform the competent authority of all relevant
aspects of the situation as soon as possible.24
The competent authority may: (1) require the operator to
provide further information concerning the imminent threat; (2) require the operator to take necessary
preventive measures; (3) provide instructions to the operator on necessary preventive measures to be
20 ELD, Art. 2(3) 21 ELD, Art. 2(7) 22 ELD, Art. 2(6). In Raffinerie Mediterranee, the European Court of Justice found that the ELD does not specify how a
causal link between the activities of the operator(s) and the environmental damage is to be established; thus, a Member State
may impose remedial measures for environmental damage on the presumption that there is a causal link between the
pollution found and the activities of the operator(s) if the latter are located close to that pollution. However, the competent
authority must have ‘plausible evidence’ capable of justifying the rebuttable presumption of a causal link under the ELD. See
Case C-378/08, Raffinerie Mediterranee, 9 March 2010, [2010] ECR I-0000, paras. 56-58 23 ELD, Art. 2(10) 24 ELD, Art. 5(2)
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taken; (4) take necessary preventive measures itself.25
In cases of actual significant environmental
damage, the operator shall immediately inform the competent authority of all relevant aspects of the
situation and 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’.26
These measures are called emergency remedial measures which need to be differentiated from the
preventive measures.27
Remedial measures are ‘any action, or combination of actions, including
mitigating or interim measures to restore, rehabilitate or replace damaged natural resources and/or
impaired services, or to provide an equivalent alternative to those resources or services’.28
The competent authority may require the operator to provide supplementary information on any
damage that has occurred; give instructions for and/or require the operator to take necessary remedial
measures; take necessary remedial measures itself.29
If the operator fails to comply with these
obligations, cannot be identified, or is not required to bear the damage costs, the competent authority
may take remedial measures itself as a means of last resort.30
Remedying environmental damage of protected species or natural habitats is achieved through
restoration of the damaged natural resources to its baseline condition. In determining which remedial
measures shall be implemented, the competent authority shall have regard, inter alia, to the ‘nature,
extent and gravity of the various instance of environmental damage concerned’, the ‘possibility of
natural recovery’, and risks to human health.31
The ELD describes three types of remedial measures:
primary remediation which returns the damaged natural resources and/or impaired services to,
or towards, the baseline condition;
complementary remediation, which is any remedial measure that compensates for when
primary remediation does not result in full restoration;
compensatory remediation, which is ‘any action taken to compensate for interim losses of
natural resources and/or services that occur from the date of damage occurring until primary
remediation has achieved its full effect’.32
Operators are able to choose which remedial measures to implement – subject to approval by the
competent authority. In deciding between primary, complementary, and compensatory remedial
measures, the operator may consider the costs of implementation, likelihood of success, length of time
for restoration to be effective, relevant social, economic, and cultural concerns specific to the locality,
amongst others.33
The operator is required to take primary remediation first as Annex II states that
“where primary remediation does not result in the restoration of the environment to its baseline
condition, then complementary remediation will be undertaken.” Complementary measures are meant
to act for the fact that primary remediation does not result in fully restoring the damaged natural
resources and/or services.
25 ELD, Art. 5(3) 26 ELD, Art. 6(1)(a) 27 Environmental Liability Directive, Two day Training Handbook and Accompanying Slides, February 2013, p. 11 28 ELD, Art. 2(11) 29 ELD, Art. 6(2) 30 ELD, Art. 6(3) 31 ELD, Art. 7(3) 32 ELD, Annex II 33 ELD, Annex II, para. 1.3.1
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Compensatory measures should be undertaken to provide for interim losses.34
The competent authority is obliged to require the operator to take remedial measures but has discretion
to take them itself if the operator fails to comply, cannot be identified, or is not required to bear the
remediation costs.35
The ELD permits the operator to cease remedial actions if the competent authority determines that: (a)
there is no longer any significant risk, and (b) the costs are disproportionate to the environmental
benefits.36
Therefore, depending on the costs, the operator might be allowed to take primary remedial
action to ensure that there is no longer any significant damage rather than to achieve baseline
condition.37
2.5 Favourable Conservation Status under the Habitats Directive The same FCS objective under the ELD justifying to impose liability for environmental damages is
featured as the objective of the Habitats Directive for guiding pro-active actions to protect natural
habitats and species. The current section clarifies this concept by explaining its interpretation and
implementation as the objective of the Habitats Directive and its application under Article 6 of the
Habitats Directive to establish how its definition could guide the implementation of ELD and the
choice of preventive and/or remedial measures.
Article 1 of the Habitats Directive differentiates between the FCS of a natural habitat and the FCS of a
species, which is mirrored by the ELD as seen in section 2.4.1.
FCS for natural habitats under the Habitats Directive:
(1) its natural range and areas it covers within that range are stable or increasing;
(2) the specific structure and functions which are necessary for its long-term maintenance exist
and are likely to continue to exist for the foreseeable future;
(3) the conservation status of its typical species is favourable – Article 1(e).
FCS for species under the Habitats Directive:
(1) population dynamics data on the species concerned indicate that it is maintaining itself on a
long-term basis as a viable component of its natural habitats;
(2) the natural range of the species is neither being reduced nor is likely to be reduced for the
foreseeable future;
(3) there is, and will probably continue to be, a sufficiently large habitat to maintain its
populations on a long-term basis – Article 1(i).
34 Van den Broek, G.M. 2009. Environmental liability and nature protection areas: Will the EU Environmental Liability
Directive actually lead to the restoration of damaged natural resources? Utrecht Law Review, Vol. 5, Issue 1: 127 35 ELD, Arts. 5(4), 6(3) 36 ELD, Annex II, para. 1.3.3 37 Van den Broek, G.M. 2009. Environmental liability and nature protection areas: Will the EU Environmental Liability
Directive actually lead to the restoration of damaged natural resources? Utrecht Law Review, Vol. 5, Issue 1: 131
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2.5.1 Favourable Conservation Status under Article 6 of the Habitats Directive
Based on the precautionary principle, Article 6 of the Habitats Directive sets out procedures to avoid
deterioration of habitats or significant disturbance of species. It encourages actions to avoid or reduce
potential threats before there is conclusive proof in order to avoid potentially serious and irreversible
changes.38
Thus, the FCS sets the level of the precautionary target to avoid habitat deterioration and
significant species disturbance. Furthermore, an assessment of the implications of a project or a plan
for the conservation objectives of the particular habitat or species is required before it is approved.39
Whilst the spatial scope of Article 6 is limited to special areas of conservation (SACs), the temporal
scope may include past, present or future plans or projects considered as well in their cumulative
effects.40
Article 6(1) provides for the establishment of necessary conservation measures to maintain or restore
biodiversity at its FCS, including management plans and appropriate statutory, administrative or
contractual measures for natural habitat types in Annex I and species in Annex II present at the sites.
Measures should be considered across the natural range of the habitat or species and correspond to
their ‘ecological requirements’, which refer to abiotic and biotic factors necessary to ensure the FCS.41
The natural range and ecological requirements should be based on the best available knowledge and
defined on a case-by-case basis.42
Article 6(2)43
requires Member States to avoid habitat deterioration and significant species
disturbance within SACs. The word ‘avoidance’ requires Member States to take preventive measures
that are appropriate and anticipate the potential for deterioration and significant disturbance within
SACs. Measures are appropriate if they contribute to the FCS of the habitats or species concerned and
shall be taken based on an assessment of the conservation status of a habitat or species and its
contribution to the ecological coherence of the Natura 2000 network.44
Article 6(2) covers activities
and events that cause the deterioration, i.e. physical degradation of habitats, as well as disturbance to
species that are likely and significant within SACs. Significance needs to be interpreted in relation to
the specific features and environmental conditions of the protected site, taking particular account of
the site’s conservation objectives.45
Article 6(3) covers procedural and substantive safeguards governing plans and projects likely to have
a significant effect on a Natura 2000 site. Governed by the precautionary principle, an assessment of a
plan or project shall be undertaken even if significant effects are only likely and not certain.46
Article
6(3) safeguards apply to plans or projects not only inside but also located outside the Natura 2000
38 Mehtälä, J. and T. Vuorisalo. 2007. Conservation Policy and the EU Habitats Directive: Favourable Conservation Status as
a Measure of Conservation Success. Eur. Env., Vol. 17, No. 6: 363-375, 367 39 Habitats Directive, Art. 6 40 European Commission. 2000. Managing Natura 2000 Sites: The provisions of Article 6 of the ‘Habitats’ Directive
92/43/EEC, 3.2 41 Idem previous footnote, 2.3.3 42 Idem previous footnote, 2.3.3 43 Articles 6(1) and 6(2) are linked to Article 4(4) of the Habitats Directive, which ‘underscores the requirement that
designation, restoration, maintenance and management are required to work towards and/or meet the standard of
‘favourable conservation status’. See Charalambides, L.C. 2004. Guidance Document for the Habitats Directive 92/43/EEC:
‘Favourable Conservation Status’ From Legal Interpretation to Practical Application, p.19 44 The term ‘ecological coherence’ refers to the maintenance and restoration of natural habitat types and species habitats at
the FCS within the Natura 2000 network. See European Commission. 2000. Managing Natura 2000 Sites: The provisions of
Article 6 of the Habitats Directive 92/43/EEC, 3.5 45 European Commission. 2000. Managing Natura 2000 Sites: The provisions of Article 6 of the Habitats Directive
92/43/EEC, 4.4.1 46 Idem previous footnote, 4.4.2
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network that may have significant effects on the integrity of a site.47
The ‘integrity of the site’ involves
the site’s ecological structure and functions as they pertain to its conservation objectives.48
The scope
of Article 6(3) includes cumulative impacts from individual or combinations of projects or programs.
Because impacts occur over time, plans or projects which are completed, approved but uncompleted,
or proposed and not yet approved, may be considered jointly.49
The assessment should study all effects
of the plan or project individually and in combination with others in view of the site’s conservation
objectives, as well as possible alternative solutions and mitigation measures.50
Article 6(4) states that if, despite a negative assessment and absence of alternative solutions, a project
or plan must be carried out for overriding public interest reasons, the Member State must take
compensatory measures to ensure the coherence of the Natura 2000 network.51
The concept of
compensation for unavoidable deterioration or disturbance is echoed in the ELD as one type of
remedial measure for environmental damages, see Chapter 5 below.
2.5.2 Determining Favourable Conservation Status
In order to determine the FCS for a natural habitat, Member States should:
acquire ‘up to date scientific data on the natural range of a habitat and the areas it covers
within that range’;
develop ‘a thorough understanding of the species structure and functions which are necessary
for the habitat’s long-term maintenance’;
Ensure the habitat’s typical species are at a favourable conservation status.52
In order to determine the FCS for a species, Member States should:
acquire ‘up to date scientific data on the population dynamics of the species’;
understand the past, present, and potential natural range of the species;
ensure the availability of a sufficiently large habitat to maintain the species population through
conservation measures.53
Generally, it can be concluded that the conservation status of a natural habitat or species is the ‘sum of
influence’ acting on them, which include: biotic and abiotic factors; the ‘positive and negative effects
of any decision, policy, incentive or activity that affect the conservation status’; the ‘interaction
between these influences now and into the future’. A common assessment method to determine the
conservation status for natural habitats and species was developed by the Habitats Committee in
2005.54
To use this method, each habitat and species is evaluated using so-called Favourable
47 Idem previous footnote, 4.4.2 48 Idem previous footnote, 4.6.3 49 Idem previous footnote, 4.4.3 50 Habitats Directive, footnote 1 of Annex III.4; European Commission. 2000. Managing Natura 2000 Sites: The provisions
of Article 6 of the Habitats Directive 92/43/EEC, 4.5.2 51 Habitats Directive, Art. 6(4) 52 Halahan, R. and R. May. 2003. Favourable conservation status – to the heart of EU wildlife legislation. World Wildlife
Federation (WWF), p. 5 53 Halahan, R. and R. May. 2003. Favourable conservation status – to the heart of EU wildlife legislation. World Wildlife
Federation (WWF), p. 6 54 In April 2005, the Habitats Committee (committee under Article 20 of the Habitats Directive), acting on recommendation
of the European Commission, adopted binding requirements for the compilation, of monitoring data and for the assessment of
the conservation status of natural habitats and species of common interest. These documents were slightly modified for the
2007-2012 reporting period with revisions adopted by the Habitats Committee in May 2011 -
http://www.bfn.de/15346+M52087573ab0.html, accessed on 15 January 2014
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Reference Value (FRV). FRVs are given to a set of parameters based on the FCS criteria set out in
Article 1 of the Habitats Directive.
The parameters for natural habitats are:
1. range within the biogeographical region concerned;
2. area covered by the habitat within its range;
3. specific structure and functions, including typical species;
4. future prospects.55
The parameters for species are:
1. range within the biogeographical region concerned;
2. population;
3. habitat;
4. future prospects.56
If a habitat or species meets the minimum FRV for each parameter, it is considered to be at
Favourable status. If a habitat or species is below the minimum value for any or all parameters, it is
considered to be at Unfavourable status, and how much below determines whether its status is
Unfavourable-Inadequate or Unfavourable-Bad.
55 Assessment and reporting under Article 17 of the Habitats Directive. Reporting Formaats for the period 2007-2012. May
2011, Annex E. Available at
http://www.bfn.de/fileadmin/MDB/documents/themen/monitoring/Art_17_Reporting_Formats.pdf 56 Assessment and reporting under Article 17 of the Habitats Directive. Reporting Formaats for the period 2007-2012. May
2011, Annex C. Available at
http://www.bfn.de/fileadmin/MDB/documents/themen/monitoring/Art_17_Reporting_Formats.pdf
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Figure 1 - Evaluation matrix to assess the conservation status of a habitat57
57 Reporting under Article 17 of the Habitats Directive. Reporting Formats for the period 2007-2012. May 2011, Annex E.
Available at: http://www.bfn.de/fileadmin/MDB/documents/themen/monitoring/Art_17_Reporting_Formats.pdf
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Figure 2- Evaluation matrix to determine the conservation status of a species58
58 Reporting under Article 17 of the Habitats Directive. Reporting Formats for the period 2007-2012. May 2011, Annex C.
Available at http://www.bfn.de/fileadmin/MDB/documents/themen/monitoring/Art_17_Reporting_Formats.pdf
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2.6 Applicability of the Favourable conservation status
The concept of favourable conservation status is implemented since 1992 under the Habitats Directive.
Following the definition in its Article 1, the ‘sum of influences’ acting on the habitats and species
include: biotic and abiotic factors; the ‘positive and negative effects of any decision, policy, incentive
or activity that affect the conservation status’; the ‘interaction between these influences now and into
the future’.
Member States have been implementing the Habitats Directive for more than 10 years and it seems
that the concept is feasible to apply, both in the context of the Habitats Directive and under the ELD.
There seems to be no difficulties in the application of the concept of Favourable Conservation Status
beyond the lack of information and data.
While the definition of FCS requires an elaborated assessment of the habitats and species and the
factors or policies interacting with them, Member States now count with a fairly good amount of data
and experience regarding the implementation of this concept. The situation may differ for some of the
most recent Member States that have less experience in engaging in this comprehensive monitoring
and assessment process. Monitoring of conservation status is an obligation arising from Article 11 of
the Habitats Directive for all habitats (as listed in Annex I) and species (as listed in Annex II, IV and
V) of Community interest. Consequently, this provision is not restricted to Natura 2000 sites and data
need to be collected both in and outside the Natura 2000 network to achieve a full appreciation of
conservation status.59
The main results of this monitoring have to be reported to the Commission every
six years according to Article 17 of the Directive.
Three series of Member States reports under Article 17 of the Habitats Directive are available: 1994-
2000; 2001-2006; 2007-2012 (the last one due in 2014). Given the delays in the implementation of the
Directive and in the establishment of the Natura 2000 network, only the reports of the periods 2001-
2006 and 2007-2012 assess the conservation status. The 2001-2006 reports was the “First assessment
of conservation status based on best available data” and only the 2007-2012 reports are based on a
standard methodology60
for the monitoring system and for the assessment of conservation status.
Annex B of the reporting guidelines for the 2007-2012 reports61
provide a reporting format on the
'main results of the surveillance under Article 11’ for Annex II, IV & V species. These include
detailed information on the range of the species (long term and short term trend direction, etc), its
population, main pressures and threats. The conclusions of the assessment of conservation status at the
end of the reporting period have to indicate if the overall assessment of conservation status is
favourable, inadequate, bad or unknown. Reporting for habitats is done according to a similar format
in application of Annex D of the same guidelines.
Although the results of the 2001-2006 assessment indicated that the conservation status for 18% of
habitats and 31% of species was unknown, hopefully the next synthesis report with the establishment
of common criteria for the monitoring systems will present some progress regarding the collection of
data and information. The need for more inventories and research is nevertheless recurrently presented
59 http://ec.europa.eu/environment/nature/knowledge/rep_habitats/index_en.htm and
http://bd.eionet.europa.eu/activities/Reporting/Article_17/Reports_2007/chapter3 60 http://bd.eionet.europa.eu/activities/Reporting/Article_17/Reports_2007/chapter8 61 Article 17 Reporting format 2007-2012, May 2011
https://circabc.europa.eu/faces/jsp/extension/wai/navigation/container.jsp
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in the national synthesis reports (2001-2006) as requirements for more complete data and reliable
assessments of conservation status in the 2007-2013 period.
The French report in particular states that the synthesis regarding this first evaluation of conservation
status allowed drawing some conclusions through the results of national reports and in relation to the
European context. This report highlights the many gaps in terms of knowledge and data 62
. National
documentation from other countries such as the UK illustrates the progress made over time in the
knowledge and assessment of the conservation status of species and habitats. For instance the initial
UK list of species and habitats identified as being the most threatened and requiring conservation
action under the UK Biodiversity Action Plan (1995 and 1999) was reviewed in 2007 and the number
of priority species increased from less than 600 to 1150, and the number of priority habitats increased
from 49 to 6563
. Furthermore, the UK 2009 report “Acting on the outcomes of the favourable
conservation status report”64
lists the priority actions to be undertaken to address the threats to the
most endangered species and habitats of European importance in the UK which refers as well to the
need for further research, survey and information for a number of species and habitats.
There is however no particular mention of difficulties as regards to the implementation of the concept
of conservation status beyond the lack of data or information. These difficulties may relate to the level
of ambition in defining the appropriate baseline for determining FCS or to specific ecological
considerations (e.g. whether to take also aspects of genetic diversity into consideration, or not; what
are key species of a particular ecosystem) or to the monitoring of the implementation of the FCS
concept. Further clarity and sufficiency of the standards set for FCS from a biological and ecological
point of view seem needed, taking into account that they are evolving issues that might change in the
future65
. Other elements that need clarification are how to consider the extent of the damage at EU
level or whether or not damage impacting the population of a protected species in one area constitutes
environmental damage in the sense of the ELD if the population exists in another area. In this sense, it
seems that a case of damage to biodiversity under the ELD the competent authorities should and can
realistically assess the conservation status of habitats and species in relation to the site and not within
the European territory of a Member State or the natural range of a specific species (as established
under Article 2(4) of the ELD. This aspect is another cause for a low number of ELD cases and should
be considered for amendment.
Therefore, fourteen years after the coordinated initiation of a process for the conservation of
biodiversity under the Habitats Directive, national authorities should become increasingly confident in
their information and assessment of the conservation status of species and habitats at stake in a case of
application of this concept within the framework of the ELD – i.e. when having to evaluate if damage
has significant adverse effect for the conservation status of a species and habitats.
The conservation status of 65% of habitats and 52% of species was unfavourable in the synthesis
report published in 2009 (covering the period 2001-2016), however, the implementation of the ELD
62 See Farid BENSETTITI, Jacques TROUVILLIEZ, Service du Patrimoine Naturel Département Ecologie et Gestion de la
Biodiversité, Rapport synthétique des résultats de la France sur l'état de conservation des habitats et des espèces
conformément à l'article 17 de la directive habitats, http://inpn.mnhn.fr/docs/rapport_eval_2009.pdf, page 49 (back cover),
and page 6. 63 UK BAP Priority species and habitats http://jncc.defra.gov.uk/page-5705 64 Acting on the outcomes of the favourable conservation status report, UK Annex I terrestrial and freshwater habitats – an an
assessment of priorities for increased conservation action, JNCC September 2009,
http://jncc.defra.gov.uk/pdf/FCS_Actingonoutcomes09.pdf 65 Interview with expert at IUCN, January 2014.
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from 2007 might have had a positive effect. Indeed, some of the national reports on implementation of
the ELD submitted to the Commission in 2013 show a very low number of biodiversity damage cases
which might imply an improvement on the status of European biodiversity during the period 2007-
2012 of implementation of the Habitats Directive.
It is interesting to note from information provided in the report under Article 17 of the Habitats
Directive by the UK for the period 2007-2012 and specifically for the Mediterranean ecoregion
(Gibraltar) that the Birds and Habitats Directive monitoring schemes are now also complemented by
“a wider monitoring strategy that has been implemented in line with the requirements of the Water
Framework and Marine Strategy Framework Directives: the monitoring programme designed to
assess the conservation status of the Southern Waters of Gibraltar SAC/SPA, along with its constituent
EU listed species and habitats, forms part of a wider monitoring strategy that has been implemented
in line with the requirements of the Water Framework and Marine Strategy Framework Directives.
These Directives are based on an ecosystem approach concerning the management and protection of
coastal / marine ecosystems and therefore any data collected is being used to provide an accurate
assessment of the general status of the Southern Waters of Gibraltar. Within this holistic monitoring
framework, the specific needs of the Habitats Directive, i.e. monitoring the conservation status of
listed habitats and species, is being implemented and will be continuously augmented”66
(emphasis
added). This evidences the potential for authorities or operators to carry out the assessment of FCS on
the basis of an increasing pool of consolidated data.
The reports from Poland or Bulgaria do not mention any difficulties with the implementation of FCS.
Poland confirms the elaboration of management plans for about 406 sites out of about 800 sites.
Bulgaria refers to specific projects developed to enable implementation of FCS concept and improving
on monitoring67
.
Almost fourteen years after effectively starting to monitor the conservation status in application of
Article 11 of the Habitats Directive, authorities in charge of implementing the ELD and operators
concerned should be more familiar with the existence of the relevant data and processes. The greater
experience and wealth of data under the Habitats Directive should enable the applicability of FCS
66 UK report under Article 17 Habitats Directive – Section 2.3 Monitoring Schemes (Article 11) – last bullet point:
Monitoring under the Birds Directive. Marine Habitats and Species Monitoring Programme
http://cdr.eionet.europa.eu/Converters/run_conversion?file=gb/eu/art17/envukl4fa/GB_habitats_general_report.xml&conv=3
48&source=remote 67 Project "Mapping and assessment of the conservation status of the natural habitats and species - Phase 1". As a result of the
project for all terrestrial Annex 1 habitats and Annex 2 species of the Habitats Directive, subject to conservation in the SCIs
in Bulgaria, have been developed methodologies for mapping and assessment of the conservation status, favourable reference
values have been determined, mapping has been carried out and assessments at national, biogeographical and site levels were
made. Schemes for biodiversity monitoring at site and national levels have been developed. Project results will make it
possible to combine the country's obligations to protect habitats and species with the achievement of economic development
that is well balanced with the environment.
- Project "Development and implementation of information system for the protected sites under the Natura 2000 ecological
network". Project realization led to the development of an integrated information system for the protected sites of the Natura
2000 network, in which all available data was collected and integrated and through which quick and easy access to the data
was provided to the Ministry, its regional structures, other administrations, the public, the business and other interested
parties.
- Project "National information and communication strategy for the Natura 2000 network". With a strategy already adopted
by the Council of Ministers the overall process of communication in the next decade will be improved involving all parties
concerned with the development, approval and management of the Natura 2000 network in Bulgaria - central and local
governments, NGOs, academia, the business, media and other stakeholders.
http://cdr.eionet.europa.eu/Converters/run_conversion?file=bg/eu/art17/envur088a/BG_habitats_general_report.xml&conv=3
48&source=remote
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within the ELD context in case of a potential or actual biodiversity damage in order to implement the
polluter pays principle whenever possible.
The European Commission synthesis report for the third reporting period is due by 2014/ 201568
. It
will provide an overview of the progress made in assessing the conservation status of species and
habitats across EU Member States and should give further information on ways to address any
challenges in assessing the conservation status of species and habitats. Variations in interpretation
were pointed out at in the 2009 European Commission synthesis report “Although explanatory notes
and guidelines were prepared to guide the Member States, it is clear that there has been variation in
how they have been interpreted by the Member States and to obtain the objective picture at the EU
scale further harmonisation of the techniques is required”69
. Based on the results to be reflected in the
2014/2015 report, the Commission might consider giving national authorities further guidance on the
common monitoring process and assessment criteria for the conservation status, should Member States
raise any problem regarding its implementation.
One element for consideration relates to the territorial scope of ELD biodiversity cases. It seems that
when dealing with a case of damage to biodiversity under the ELD the competent authorities should
and can realistically assess the conservation status of habitats and species in relation to the site and not
within the European territory of a Member State or the natural range of a specific species (as
established under Article 2(4) of the ELD70
). The effect of the damage on the FCS would be
meaningless if measured in such scale. This aspect could be an additional cause for a low number of
ELD cases and should be considered for amendment to establish the significance of damage to the
effects on the FCS at site level. The Commission may consider clarifying this aspect and modifying
this provision.
When difficulties arise in assessing the significance of the damage on the conservation status of
community species or habitats in a Natura 2000 site in a specific ELD case, the Commission may wish
to suggest Member States to take into consideration the conservation objectives set up for the Natura
2000 site affected by the incident. The conservation objectives defined for the Natura 2000 sites are
established in relation to the conservation status of the species and habitats at stake. So referring to
these conservation objectives to assess the significance of the damage may be a specific and targeted
way to assess the damage threshold relating it to the importance of the site or of the specific
population in relation to the overall conservation status of the species or habitat. The completion of the
terrestrial Natura 2000 network and the progress made in establishing management plans for the sites
should enable national authorities to facilitate access and use of data for the purpose of better
implementation of the ELD in case of biodiversity damage or for preventing it.
68 http://ec.europa.eu/environment/nature/knowledge/rep_habitats/index_en.htm 69 Report from the Commission to the Council and the European Parliament Composite - Report on the Conservation Status
of Habitat Types and Species as required under Article 17 of the Habitats Directive
http://bd.eionet.europa.eu/activities/Reporting/Article_17/Reports_2007/chapter8 - third paragraph. 70 Interviews November 2014.
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2.7 Effectiveness of the ELD
The effectiveness of the ELD should be measured in relation to its objectives, mentioned at the start of
section 2 of this study.
The Directive aims at establishing ‘a common framework for the prevention and remedying of
environmental damage at a reasonable cost to society’. It sets up a liability regime based on the
‘polluter-pays principle’ such that ‘an operator, whose activity has caused the environmental damage,
or imminent threat of such damage, is to be held financially liable’. This liability system aims at
avoiding that tax payers money is used for damages caused by occupational activities. The liability
regime should contribute to ensure that biodiversity is restored or maintained at Favourable
Conservation Status and, thus, halting biodiversity loss in the EU.
In 2009, the European Commission published its first systematic assessment of the conservation status
of the habitats and species protected under the Habitats Directive based on Member States’ progress
reports for the period 2001-2006.71
Article 17 of the Habitats Directive requires Member States to
submit information on how the Directive is being implemented every six years followed by an
assessment of the State of Biodiversity in Europe by the European Commission. The next assessment
is scheduled for 2014/2015 covering the period 2007-2012 which coincides with the implementation
of the ELD.
The results of the first assessment revealed that only 17% of designated habitats were at a FCS, with
65% at unfavourable status and 18% unknown.72
Similarly, only 17% of designated species were at a
FCS, with 52% at unfavourable status and 31% unknown.73
The unknown status of a large percentage
of habitats and species was due, in large part, to the lack of comprehensive and reliable information
and insufficient resources for monitoring habitats’ and species’ status within Member States’
territories.74
Regarding the objective linked to the liability scheme or ‘polluter-pays principle', the European
Commission report on the ELD implementation of 201075
, stated that ‘the implementation of the
polluter pays principle in the framework of ELD seems to remain marginal’.
Therefore, an analysis of the effectiveness of the ELD due to be presented by the European
Commission by 2014, needs to be framed on the basis of these two objectives: an effective liability
system and halting biodiversity loss. The Commission report on the status of biodiversity in Europe
should also respond to the question: Is the implementation of the ELD contributing to change the trend
in the unfavourable conservation status of biodiversity and to halt biodiversity loss in Europe?
The recommendations in this report aim at addressing the shortcomings identified for the
implementation of the Directive in order to improve the effectiveness of the ELD to reach these two
complementary objectives: liability/polluter-pays principle and halting biodiversity loss.
71 European Commission, 2009. Report from the Commission to the Council and the European Parliament: Composite Report
on the Conservation Status of Habitat Types and Species as required under Article 17 of the Habitats Directive. Brussels, p.2 72 Idem previous footnote, p. 7 73 Idem previous footnote, p. 9 74 Idem previous footnote, p. 2, 5 75 Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental liability with regard to the
prevention and remedying of environmental damage, COM(2010) 581 final
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3 Legal systems regulating liability for biodiversity damage in
Member States
3.1 Introduction: the ELD system in 10 selected EU Member States.
This Study contains in Annex I a brief description of the practical implementation of the
Environmental Liability Directive 2004/35/EC76
(ELD) in 10 selected Member States, namely:
Belgium, Denmark, Estonia, France, Germany, Italy, Poland, Slovenia, Spain and the UK. The
Member States have been selected on the basis of specific criteria including the extent of information
available, the number of cases – including countries with no reported cases through to those with more
than 500 reported cases, and the adoption of implementing measures to ensure the implementation of
the ELD, such as guidance documents, training, financial guarantee or public enforcement data.
Annex I to this Study presents information on the implementation of the ELD in those Member States
on the basis of the legislation applicable for the period 2007-2012. A first analysis, based on of the
information available in the national reports submitted to the European Commission pursuant to
Article 18 of the ELD, available guidance documents, legislation and additional information sources,
was followed by a phase where members of the ELD expert group in the selected Member States were
contacted in order to provide answers to specific questions tailored to the situation in each Member
State. In those Member States where ELD cases have been reported, a more in-depth analysis has been
carried out by selecting a relevant/interesting case and investigating the implementation of the
different ELD requirements and procedures.
Annex I is divided in 10 sections, one for each Member State, which follow the same structure and
present a description of key implementation elements and a table analysing the specific case in relation
to the ELD provisions. The analysis of Member States implementation of the ELD is based on the
documents listed at the end of each section of Annex I to this Study including the national reports
submitted by Member States under Article 18(1) of the ELD. Those documents were complemented
with personal interviews to national representatives of the ELD working group based on
questionnaires tailored for the specific situation in each country. The draft version of the document
was made available for comments to the relevant national representative at the ELD working group.
The document has been used as background information for drafting the rest of the chapters of this
study.
The development of the description of the Member States’ implementation of the ELD encountered
problems related to the lack of information on biodiversity damages. The national reports submitted to
the Commission, although following the Guidelines and questions requested by the Commission, are
not harmonised in format, content or amount of information and therefore not comparable. The lack of
registries compiling information on existing ELD cases in most Member States leads to lack of proper
understanding, even by the relevant authorities, of the implementation situation, the measures carried
out or impacts on biodiversity status. Difficulties in differentiating between biodiversity damage cases
and water or land damage cases reflect the unclear situation described in the reports. The Commission
may want to consider promoting the development of national registries of ELD cases and further
harmonising the reporting on ELD implementation.
76 Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage,
OJ L 143, 30.4.2004, p. 56
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4 Analysis of challenges and obstacles: Case Studies This project relates exclusively to damage of protected species and natural habitats which is defined as
any damage that has significant adverse effects on reaching or maintaining their favourable
conservation status.
The ELD aims at establishing a framework for the prevention and remedying of environmental
damage based on the ‘polluter-pays principle’ in order to ensure that biodiversity is maintained or
restored at the FCS and, thus, halting biodiversity loss in the EU. The liability regime of the ELD
includes financial consequences to operators whose occupational activities caused environmental
damage to habitats and species protected under the Habitats and Birds Directives. However,
environmental liability has to be differentiated from civil liability rules as the ELD does not give
private parties a right of compensation as a consequence of environmental damage, or of an imminent
threat of such damage.
This sections contains an overview of the main challenges encountered during the implementation of
the ELD for ‘biodiversity damage’ by the 10 selected Member States – Bulgaria, Denmark, Estonia,
France, Germany, Italy, Poland, Slovenia, Spain and the UK - selected on the basis of previously
identified criteria.77
The information is presented in the form of case studies on the major challenges
identified and providing concrete examples or best practices on the implementation of the ELD.
The main challenges for implementing the ELD for biodiversity damage are due to the fragmented
nature of the ELD’s application in relation to Habitats Directive, the non-harmonised interpretation of
significant damage and the high thresholds required in some countries to consider a specific damage
being significant and thus triggering the application of the ELD. Furthermore, the lack of clarity and
guidance for the application of key terms such as preventive measures, emergency remedial measures
or causal link and the uncertainties in the role of the competent authorities to take preventive or
remedial action when the operator fails to carry them out, jeopardize the effectiveness of the ELD.
Knowledge of best practices to raise awareness and improve implementation of the ELD should be
more broadly shared.
Lack of coordinated application of the ELD and the Habitats Directive
The effectiveness of the ELD as a liability scheme for environmental damage, is jeopardized by the
lack of harmonisation and coordination with the implementation and interpretation of sectorial
legislation – particularly the Habitats Directive or pre-existing and more established national
environmental liability regimes (see case study below and Chapter 5.2). Indeed, these pieces of
legislation do not have similar provisions imposing strict liability obligations on operators and
therefore the public authorities are responsible to take the necessary measures for environmental
damages. Furthermore, the criteria and procedures for co-existing regimes are different undermining
any coordination.
Lack of harmonised interpretation and application of “significant” damage: differences
between Member States in the thresholds for implementation.
Whilst the ELD covers protected species and natural habitats both within and outside the Natura 2000
network, only damages that are ‘significant’ trigger the liability scheme. Neither the ELD nor the
transposing legislation of many Member States offer real guidance to determine what ‘significant’
77 Previously identified criteria included: definition of ‘biodiversity damage’; number of implementing measures (e.g.
guidance documents, accessibility of information) and number of ELD cases reported and information available
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biodiversity damage means. Certain Member States consider that ELD regime is limited to severe –
almost catastrophic cases but others apply this concept to any damage to biodiversity beyond small
variations. This lack of harmonisation is expressed in the number of ELD cases reported by the
selected Member States to the Commission under Article 18 of the ELD as well as in the effectiveness
of the liability regime which is not applied if the ELD threshold is very high, excluding operators from
any liability for damage due to their activities. The threshold for significant damage under the ELD in
many Member States is higher than the concept of deterioration and disturbances that are considered
significant when they affect the conservation status of habitats or species under the Habitats Directive.
Indeed, while the legislation is only slightly different, it has been interpreted differently which has led
to differences in application and thresholds. Article 6(2) of the Habitats Directive is interpreted in
relation to significant disturbance to species, as follows: ’[I]n order to be significant, a disturbance
must affect the conservation status of the habitats or species’. On the other side, the ELD requires that
the damage has ‘significant effects on reaching or maintaining the favourable conservation status of
such habitats or species’. Under the ELD the damage should have a significant adverse effect on FCS;
not any effect on FCS but a significant effect is required. This minor difference in wording has led to
an interpretation of Article 6(2) of the Habitats Directive leading to a lower threshold and allows for
covering more cases than the the ELD by most selected Member States.
Another difficulty in the application of this concept is linked to the method required to determine
whether or not the damage reaches the significance threshold. Without accurate or sufficient evidence
of the conservation status of a protected species or natural habitat prior to the damage, it is difficult to
prove the damage is significant and directly applicable to the operator, and to choose what remedial
measure will achieve environmental restoration. The current conditions of the damaged biodiversity
must be compared with the hypothetical baseline condition before the damage, which requires holding
appropriate data on the conservation status, natural services, and capacity for natural regeneration.78
Assessment of the baseline condition requires the use of the best available information, which might
be insufficient, or missing regarding certain types of habitats or species or even other variables – such
as natural fluctuations of the species and habitat condition.79
Lack of clarity and guidance for key terms
The different interpretation and application of key concepts of the Directive hinders the objective of
the Directive to establish a common framework for prevention and remedying of environmental
damage.80
For example, the carried out assessment in 10 selected Member States showed that there is
not a harmonised interpretation of preventive measures, remedial actions or causal link.
Challenges on implementation
The implementation of the ELD might also be undermined by specific implementation challenges such
as the lack of notification by operators of the (imminent threat of) biodiversity damage. A deterrent
effect on competent authorities to ensure implementation of the ELD derives from the cost of carrying
out the necessary assessment to determine the ‘significant biodiversity damage’ under the ELD which
are not harmonised with those assessments required under sectorial legislation such as the Habitats
Directive. A systematic sharing of best practices and dissemination of information on the ELD
implementation and on specific measures such as the options, benefits and obstacles for a harmonised
mandatory financial security regime is needed.
78 Van den Broek, G.M. 2009. Environmental liability and nature protection areas: Will the EU Environmental Liability
Directive actually lead to the restoration of damaged natural resources? Utrecht Law Review, Vol. 5, Issue 1: 119, 122. 79 Idem previous note, p.123 80 ELD, recital 3
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4.1 Case Studies “Challenges in the application of the ELD to biodiversity
damages”
Case Study 1 – Lack of coordinated application of the ELD and the Habitats Directive
As stated in Section 2, the ELD for biodiversity damage and the Habitats Directive share the ultimate
goal: halting biodiversity loss. However, they implement it by applying different mechanisms. The
ELD establishes a liability regime based on the ‘polluter-pays principle’, and the Habitats Directive
promotes the adoption of conservation measures.
Both instruments share the subject of protection – the habitats and species listed under the Habitats
and Birds Directives. Member States have an option to extend the scope of application of the ELD
system to any other habitat or species protected by domestic legislation.81
From amongst the 10
analysed Member States, Estonia, Italy, Poland, Spain and the UK have extended the scope of the
Directive to nationally protected habitats and species whilst Bulgaria, Denmark, France, Germany and
Slovenia have not. The ELD includes a direct reference to the Habitats and Birds directives on three
occasions.82
Most Member States do not recognize any relationship between the ELD and Article 6(1) of the
Habitats Directive which requests Member States to ensure the adoption of conservations measures for
Natura 2000 sites in relation to the maintenance and restoration of habitats and species at a FCS
according to Article 4(4) of the Habitats Directive. The preventive objective of Article 6(2) of the
Habitats Directive requires Member States to avoid deterioration of habitats or disturbances to species
that would be significant in relation to the FCS. Despite the fact that the concept of significant
environmental damage under the ELD is defined with reference to FCS which is the main objective of
the Habitats Directive and the reference for defining significant disturbance under Article 6(2) of the
Habitats Directive, none of the selected Member States’ legislation or Guidance documents recognizes
the relationship between Article 6(2) of the Habitats Directive and the ELD. There is no awareness
amongst national representatives interviewed within the framework of this study about the potential
coordinated implementation of both systems. Only one Member State expressed the need for the
Commission to clarify this point. In most Member States the procedures to deal with biodiversity
damage under the ELD are separate from those under the Habitats Directive, affecting their
effectiveness. Damage to protected species and habitats resulting from a project authorised according
to Article 6(3) and (4) of the Habitats Directive are excluded from the ELD scope.
Despite their obvious correlation, the analysis of Member States implementation shows that both
systems are implemented in most Member States without coordination and, even more, ignoring each
other. In most cases, there is a lack of awareness of the key aspects of the correlation between both
systems and some have established conscious fragmentation of the procedures for implementation of
both instruments. Some Member States argue that this fragmentation is justified because the existing
systems ensure proper protection of biodiversity. However, this approach jeopardises the effectiveness
of the liability regime and results in the competent authorities (in other words the tax payers) bearing
the cost and responsibility of biodiversity damage. The consequence is that if the deterioration or
disturbance occurs, under the Habitats Directive it would be considered a breach of Article 6(2). Most
Member States do not have liability systems established to cover remediation measures for damages to
biodiversity, unless they are considered a case under the ELD, and therefore the damage would be
dealt with by the public authorities. In most Member States, the case would often end with the costs of
the restoration being borne by tax payers and no strict liability measures being applied. However,
under the ELD, the operator of Annex III activities would be considered liable. Exceptions to this
statement is found in the UK (see below)
81 ELD, Art. 2(3c) 82 ELD, recital 3 and Art. 2(1a), 2(3)
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In most of the selected Member States, the threshold of significant damage under ELD and threshold
of significant disturbance and deteriorations under the Habitats Directive are not harmonised,
triggering the application of the relevant legal instrument in different situations. The interpretation of
Article 6(2) of the Habitats Directive allows for covering more cases than the interpretation of the
ELD by most selected Member States.
In France, both regimes are considered separated. The French Guidance document highlights that any
emergency measure to contain the damage and to avoid that it becomes significant, would be
considered an action falling under sectorial legislation regulating Annex III activities and therefore
would not constitute ELD case actions. Analysis of the French report and system shows that the ELD
regime is applicable only to the most severe cases suggesting differences between the threshold of
significant damage under the ELD and the Habitats Directive’s thresholds for significant disturbance
as well as deterioration. France reported zero ELD cases for the period 2007 – 2013.83
In Denmark, when an imminent threat of damage, or an environmental damage is identified, the
obligation to inform the competent or supervising authorities of the adverse effects on biodiversity is
required not only by the transposing legislation of the ELD but also by the nature conservation
legislation going beyond the provisions of the Habitats Directive. Furthermore, the Danish system
considers that ELD rules do not require additional investigative or inspection actions by the competent
authorities other than those required under nature legislation. However, the implementation of both
regimes is fragmented as there are two different procedures and rules for definition of significant
damage. The rules under ELD have priority and should be applied instead of the relevant act reading
the damage, e.g. nature legislation. If the case does not meet the criteria of significant damage, the
competent authority will handle the case according to the general regulation for restoration as
stipulated in the relevant legal act. The threshold for ELD cases is higher than the threshold under
nature legislation. Denmark reported zero ELD cases for the period 2007 – 2013.84
The UK system linked to nature conservation and the Habitats Directive includes some liability
elements. Under the Wildlife and Countryside Act 1981, a person who is convicted for destroying or
damaging flora, fauna or the geological or physiographical features of a SSSI may be ordered by the
court to restore biodiversity to its conditions prior to the damage85
. Under the Conservation of Habitats
and Species Regulations 2010/490, a special nature conservation order may be issued on a person who
damages or destroys natural resources within a Natura 2000 site86
. In addition, civil sanctions (without
prosecution) have been introduced under the Regulatory Enforcement and Sanctions Act 2008. This
Regulation implements the requirements of Article 6(2) of the Habitats Directive87
but does not
integrate those under the ELD whose scope, thresholds and standards are different. The ELD
transposing legislation defines significant damage in relation to two concepts, the integrity of the site
and the effects on the conservation status of the habitats and species, which are defined according to
the Habitats Directive. The term ‘site integrity’ is understood in accordance with Article 6(3) of the
Habitats Directive recognising integration between both instruments. Significant effect on the
conservation status is defined in relation to Articles 1(e) and (i) of the Habitats Directive. However, in
practice the ELD regime is only applied to cases of major damage and the competent authorities tend
to rely on the pre-existing regime which, complemented with the sanctioning provisions, is considered
to reach similar results. It is worth noting that the liability of those provisions is not automatic and it
requires the Court or other enforcement authorities’ intervention to state it.
The difficulties in establishment of imminent threat of ‘significant biodiversity damage’ and the
knowledge of the competent authorities of the existing national legislation seem to have encouraged
83 French Report to the Commission on the experience gained in the application of the Directive in accordance with Article
18(1) of the Directive 84 Danish Report to the Commission on the experience gained in the application of the Directive in accordance with Article
18(1) of the Directive 85 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 361. 86 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 362. 87 Phone interview with the UK representative.
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competent authorities to use the pre-existing nature conservation national legislation. This explains
that only six ELD-biodiversity cases have been reported in the UK in the period 2007 – 2012.88
In Estonia, there are no guidelines on the interpretation of significance of biodiversity damage.
However, the previous practice has resulted in some clarifications. For example, damage to one single
protected species does not normally result in initiation of procedure under ELD transposing
legislation. The analysis of the situation in Estonia also suggests that the threshold for deterioration
and significant disturbance is lower than the threshold for significant damage. Estonia reported two
ELD-biodiversity cases for the period 2007 – 2013.89
In Bulgaria, since the ELD regime is only applicable in the cases where there is a threat to human
health, the thresholds are not harmonised. Bulgaria reported two ELD-biodiversity cases for the
period 2007 – 2013.90
However, there are examples of certain coordinated implementation between both legal instruments.
In Poland, the damage is estimated on a case-by-case basis following the procedures for
assessment provided under the guidance for implementation of the nature conservation legislation
regarding ‘significant disturbance of species and deterioration of habitats’.91
Poland has reported
515 ELD cases, out of which approximately one in five concerns biodiversity damage, for the
period 2007 – 2013.92
The German ELD system covers all damages to biodiversity, therefore, damages causing
deterioration and disturbances under the Habitats Directive. Whilst the significant threshold under
the ELD is identical to the threshold under the nature conservation legislation in Germany, the
competent authorities do, however, make a difference in practice.93
Almost half of 60 reported
ELD cases in Germany for 2007 – 2013 concern biodiversity damage.94
The situation in Italy is changing due to the adoption of new legislation. However, the current
system is based on a certain degree of coordination between the ELD and the Habitats Directive
which leads to considering a higher number of damages to biodiversity as ELD cases. The cases of
biodiversity damage are assessed following the procedures established under nature conservation
legislation. After the first screening, the competent authorities under the Ministry of environment
may order a preliminary technical assessment to further define the significance of the damage. In
Italy, there were at least 150 ELD cases in the period 2007 – 2013 out of which an unspecified
number would be biodiversity damage cases.95
The lack of information on the cases identified and
the measures adopted to resolve them jeopardize the effectiveness of the Italian procedure.
From the above, it may be concluded that a degree of harmonisation between ELD and Habitat
Directive regimes in a Member State has an impact on the number of reported ELD cases.
The explanatory note to the Commission’s proposal for the ELD Directive states that ‘environmental
damage should be defined, whenever possible, by reference to the relevant provisions of Community
88 UK Report to the Commission on the experience gained in the application of the Directive in accordance with Article 18(1)
of the Directive 89 Estonian Report to the Commission on the experience gained in the application of the Directive in accordance with Article
18(1) of the Directive 90 Bulgarian Report to the Commission on the experience gained in the application of the Directive in accordance with
Article 18(1) of the Directive 91 The guidance is provided in the document entitled ‘Managing Natura 2000 Sites’, The provisions of Article 6 of the
Habitats Directive 92/43/EEC 92 Polish Report to the Commission on the experience gained in the application of the Directive in accordance with Article
18(1) of the Directive 93 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the
Environmental Liability Directive (2013), p. 120 - 121 94 German Report to the Commission on the experience gained in the application of the Directive in accordance with Article
18(1) of the Directive 95 Italian Report to the Commission on the experience gained in the application of the Directive in accordance with Article
18(1) of the Directive
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environmental law – the Habitats Directive – so that common criteria could be used and uniform
application could be promoted’. The proposal follows the approach of the White Paper on
environmental liability which proposed that criteria for significant biodiversity damage should be
derived, in the first place, from the interpretation of this notion in the context of the Habitats Directive.
The analysis of the implementation shows that this is not the current trend in Member States.
The European Commission understands the implementation of Article 6(2) of the Habitats Directive
and ELD in a coordinated way so that they both would be based on the same criteria defining
significant biodiversity damage. Thus, where the ELD is not applicable such as in those cases where
there is no occupational activity involved or the operator cannot be identified, Article 6(2) of the
Habitats Directive would apply and the competent authorities would be hold responsible for the
prevention or remediation of the damage.96
Most of the authorities interviewed do consider the relationship between the ELD and Article 6(3) of
the Habitats Directive complementary, but separated, as they deal with different moments of potential
damage to the environment. Article 6(3) of the Habitats Directive refers to the impact assessment of
projects likely to affect habitats or species of a Natura 2000 site. When the competent authorities
authorise the project, operators cannot be made liable for damages to the biodiversity caused by the
project. The competent authorities could request the operator to develop compensatory measures for
damages to a Natura 2000 site caused by a project of overriding public interest. The ELD acts ex-post
(after the fact) of any impact assessment, when the accident or event causing significant damage
occurs.
Proposal for recommendations: There is a need to harmonise the procedures and concepts of the
ELD with those of the Habitats Directive – specifically Article 6(2), to ensure the full effectiveness of
the systems or mechanisms designed to halt biodiversity loss. This harmonisation should include, inter
alia, the harmonisation of the criteria or thresholds to define significant damage under ELD and
significant disturbance or deterioration under the Habitats Directive. Furthermore, it is required a
certain degree of harmonisation of the procedures for the assessments and the type of assessments
required to determine the significance of the damage, the procedures to define the baseline condition
to determine the damage and the remedial measures with a view to ensure favourable conservation
status and the implementation of the favourable conservation status criteria.
96
Workshop with the European Commission representatives on 10 January 2014.
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Case Study 2 – Significant biodiversity damage: Lack of harmonised interpretation and application.
Differences between Member States in the thresholds for implementation
Significant biodiversity damage is the corner stone concept that triggers the applicability of the ELD.
Environmental damage to protected habitats and species is defined by the Directive as a damage that
has significant adverse effects on reaching or maintaining the favourable conservation status of the
habitats and species.97
The significance of those effects is assessed with reference to the baseline
condition – conservation status by the time of the damage, and taking account of the criteria set out in
Annex I of the ELD defining the measurable data to be considered for determining the extent of the
damage.
The definition of ‘biodiversity damage’ and the ELD Annex I criteria have been properly transposed
by most of the selected Member States with some concerns regarding the proper transposition by
Bulgaria and Denmark. However, the analysis of the implementation reveals a fragmented situation
with different interpretations and assessments across the selected Member States. This lack of
harmonisation is also expressed in the number of ELD cases reported by the selected Member States to
the Commission under Article 18 of the ELD. Amongst the 10 selected Member States, a high number
of cases of biodiversity damage have been reported by Poland, Germany (and potentially in Italy)
whilst there are no cases at all in Bulgaria, Denmark, France and Slovenia. In Spain, cases initially
reported as ‘biodiversity damage’ were dismissed at a later stage since none of them affected any
protected habitats or species. Other countries have some few ELD cases such as the UK and Estonia.
‘Significant’ damage is not clearly defined by the ELD and there is no expressed link to the
interpretation used in EU nature conservation legislation. Therefore, whilst some countries interpret
that ELD regime is limited to severe – almost catastrophic cases, other Member States apply this
concept to any damages to biodiversity beyond small variations.
- The high number of ELD cases in Poland is partially explained by their interpretation and
application of ‘significant’ damage. Poland applies the concept of ‘significant’ damage according
to Annex I of the ELD and considers that cases under ELD are those where the damage is more
significant than: negative variations smaller than natural fluctuations; negative variations due to
natural causes or to normal site management; damages to species and habitats for which recovery
is established within a short time and without intervention. Furthermore, deterioration of natural
habitats and the habitats of species as well as disturbances of the species in Natura 2000 sites – as
foreseen within Article 6(2) of the Habitats Directive, falls within the meaning of biodiversity
damage in Poland.
- The German ELD system covers all damages to biodiversity, therefore, including activities
causing deterioration to habitats and disturbances to species in Natura 2000 areas under the
Habitats Directive. However, the terms of the legislation in Germany do not seem to be fully
applied and in practice, the competent authorities do not apply the ELD in all biodiversity cases.98
- Similarly to Poland and Germany, the Italian legislation aligns with the nature conservation
legislation and applies the term ‘significant’ according to Annex I of the ELD to the damage that
is more significant than negative variations smaller than natural fluctuations or due to natural
causes or damage to species and habitats for which recovery is established within a short time and
without intervention. However, the new legislation is expected to change the understanding of the
threshold to trigger the application of the ELD.
- In the UK, there are currently two co-existing systems where a pre-existing liability scheme has a
97 ELD, Art. 2(1a) 98 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the
Environmental Liability Directive (2013), p. 120 - 121
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broader consideration of the damage covered whilst the ELD transposing legislation aims at
covering biodiversity damages that are significant. Due to the difficulties with the establishment of
the ‘significant’ threshold under the ELD, competent authorities in the UK prioritise the
application of the previously existing environmental liability procedures if an appropriate or
similar outcome is ensured – even if the threshold for significant damage under ELD is reached.
For that reason, the ELD procedures and system are rarely used and only mainly in cases of major
accidents.
- In Denmark, the significant damage is defined in the Guidance document on the basis of specific
criteria related to the extent, the character or the origin of the damage. The ELD does not apply in
Denmark to adverse effects that are very trivial, if the effect is quite obviously old or if it is prior
to the incident causing the damage, or it is caused by private activity. It needs to be noted that the
ELD defines occupational activity as an economic activity irrespective of its private or public
character – The Guidance document should be clarified in line with the ELD and state clearly that
under Danish legislation a private activity is a non-occupational activity.. Furthermore, a case of
damage to biodiversity will not be considered ELD if the supervising authority is not able to
clarify how the adverse effect was caused. The Guidance document suggests to the authorities that
implementation should be a minimum implementation and very few cases should be expected per
year – namely between 5 and 15 cases for damages both to the environment and to nature. In
reality, Denmark has reported 0 cases under the ELD, there are however many cases of
environmental damage not considered significant including around 50 to 100 soil and groundwater
pollution cases, not counting other water and biodiversity damage cases.
- In France, the interpretation of Annex I of the ELD is the cornerstone for defining what significant
damage is99
. According to the French Guide, the “gravity” shall be qualified according to both the
environmental characteristics and the contamination following the criteria defined in Articles R-
161-1, R.161-2 and R-161-3 of the ELL (for example, conservation status of a protected species or
natural habitat, concentration, level of danger and possibility of dispersion of the contaminants,
etc.) 100
.
The ELL does not define thresholds, scales, or durations of “gravity” or significance of a damage
occurred. The Guide provides with examples101
of what can be estimated as non-significant
damage or an ELD case of significant damage when considered on a case-by-case basis (decisions
are taken by the prefect of the location where the damage occurs).
The case occurred on 16 March 2008 related to a spillage of about 400 tonnes of heavy fuel oil
during the loading of a vessel at the Donges refinery caused a damage at the sea and the estuary
that, would not be considered “significant” according to the guide. The accident caused damages
on the habitats and bird species were oiled. Recovery actions operations which were promptly
organised and a prefectural order banned occupational and recreational sea fishing that were lifted
on 4 April 2008. The proportion of oiled birds decreased as the clean-up operations advanced. The
conclusion of the guide is that no serious consequences to the environment were retained.
According to the experts interviewed in the Ministry of Environment, the damage in this case
would not be considered significant if the damage had occurred after the entry into force of the
ELD as the species or habitats had a capacity to recover after the damage in a short time, without
any intervention other than increased protection measures, to a condition which leads by virtue of
the dynamics of the species or habitats to a condition equivalent or superior to the baseline
condition (Annex I criteria).
The recovery actions adopted in this case are considered emergency measures under sectorial
legislation carried out once the accident happened and are not considered prevention measures or
emergency remedial actions in the sense of the ELD because the actions were taken when the
damage had not reached the level to be considered “significant” and therefore the case is not
considered an ELD case.
99 The Environmental Liability Law (ELL) and the equivalency methods – Methodological Guide, p. 1. 100 The Environmental Liability Law (ELL) and the equivalency methods – Methodological Guide, p. 21. 101 The Environmental Liability Law (ELL) and the equivalency methods – Methodological Guide, p.17-18
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However, it could conceivably be argued that the Directive requires the capacity to recover within
a short time to be achieved without any “recovery” action or intervention other than increased
protection measures. The measures undertaken in this case could be considered more than
protection measures. The case described in the Guide seems to presents a narrow interpretation of
the “significance” of the damage by the French authorities that would explain the low number of
ELD cases in France; In the current case preventive or emergency remedial measures to prevent
the damage from becoming significant are excluded from the scope of ELD.
- In Slovenia, the definition of significant biodiversity damage is very similar to the ELD and the
definition of FCS is literal. The Slovenian Environmental Protection Act (EPA) transposing
Articles 5(3d), 5(4), 6(2e) and 6(3) of the ELD, establish a State responsibility to eliminate the
consequences of excessive environmental burdens caused by exceeding emission limit values and
environmental quality standards, and the permitted use of natural resources if payment of costs
cannot be imposed on identifiable operators, or if there is no causal link between the damage and
the operators. The EPA further defines excessive environmental burdens, triggering the action of
the State, as any burden to the environment which is caused by exceeding emission limit values,
environmental quality standards and rules of conduct or permitted use of natural resources. This
means that the State already has an obligation to take remedial action in cases where damage to
the environment happens due to the breach of values or standards – even if they do not fall within
the ELD scope. Whilst the publically available inspection reports show a high incidence of
damage to the environment and to biodiversity derived from Annex III occupational activities,
there are no reported cases of (imminent threat of) ‘biodiversity damage’ in Slovenia.
- In Bulgaria, the transposition of the definition of environmental damage to habitats and species
seems limited to areas within boundaries of the protected sites specified in the Bulgarian
Biodiversity Diversity Act. Furthermore, according to Bulgarian authorities102
, in practice the
concept of significant environmental damage is only applicable to those cases where there is a
danger for human health.
- Spanish legislation states that the damages to biodiversity would be considered significant when
the adverse effects would affect the maintenance of the habitats and species at a favourable
conservation status (Article 16 of the 2090/2008 Regulation). The evaluation of the significance of
this damage should be done according to the criteria set out in Annex I of Law 26/2007. However,
the practical application of these provisions is based on the understanding that they apply to cases
of accidents or incidents causing great damage, i.e. catastrophes, and that they aim to ensure that
operators are made liable. Spanish sectorial legislation regulates ‘non-significant’ damages and
establishes procedures to define liabilities. These rules have been working for years and might
have generated some inertia on the competent authorities’ reactions in cases of environmental
damage.
It is worth noting that, in general, significant ‘biodiversity damage’ is assessed on a case-by-case basis
with requests for expert opinion in cases where the expertise of the operator or the competent authority
is not sufficient to properly assess the damage.
Proposal for recommendations: The ‘significant’ damage to biodiversity threshold, or the criteria for
its definition, should be clarified at EU level and aligned to previous environmental liability regimes
and to the Habitats Directive Article 6(2). This would increase the effectiveness of the ELD regime
and ensure the application of the ‘polluter-pays principle’ aiming to determine the liability of operators
rather than being systematically considered the public authorities’ responsibility.
102 Interview 15 November 2013.
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Case Study 3 – Notification of (imminent threat of) ‘biodiversity damage’
Operators are required to inform, as soon as possible, on the imminent threat of environmental damage
– including ‘biodiversity damage’ and of all relevant aspects of the situation, when appropriate and in
any case when the preventive measures taken by the operator do not dispel the threat. Operators are
also required to inform, without delay, of the relevant aspects of the situation when the environmental
damage has occurred.103
The competent authorities have an obligation to require operators to take
preventive and remedial measures.104
Finally, certain natural and legal persons affected by the
environmental damage, and having a sufficient interest or alleging an impairment of a right, are
entitled to submit to the competent authorities any observations relating to instances of environmental
damage – including ‘biodiversity damage’, or an imminent threat of such damage, and to request
action, or request the competent authority to take action under the ELD.105
These provisions are correctly transposed in the selected Member States. The information on who
submitted a notification of (imminent threat of) biodiversity damage is not accessible for all selected
Member States. The table below contains information for those Member States where such
information was obtained. Due to the difference in the number of cases in each Member State, the
information is presented in a form of percentages.
Table on origin of notification concerning ELD ‘biodiversity damage’ cases.
106
Member State Notifications by
operators
Notifications by others
Request for
action by
interested
natural or
legal persons
Relevant
authorities
Other107
UK108
0% 100%
33% 17% 50%
Estonia109
0% 100%
50% 50%110
0%
Italy111
61% 39%
2% 37% 0%
According to the Estonian authorities, notifications mostly result from the inspection supervision of
permitted installations, protected areas and species112
. However, notification of one of the two
recorded ‘biodiversity cases’ came from the public. Furthermore, in Germany, the majority of
confirmed ELD cases of imminent threat of ‘biodiversity damage’ were initiated by NGOs. The
analysis carried out in this study shows evidence that, in relative terms, the ELD system procedure was
initiated in the majority of cases by a request for action by natural and legal persons within the
103 ELD, Art. 5(2) and 6(1) 104 ELD, Art. 5(4) and 6(3) 105 ELD, Art. 12(1) 106 Information included in the table derives from Member States’ reports to the Commission on the experience gained in the
application of the Directive in accordance with Article 18(1) of the Directive, interviews carried out and additional exchange
of information with relevant Member States’ authorities. 107 This category includes experts. 108 In the UK there were six cases of biodiversity damage, or imminent threat of biodiversity damage. 109 In Estonia, there were two cases of imminent threat of biodiversity damage. 110 In the case of Estonia, the damage was observed by an independent expert, but the notification to the competent authority
itself was carried out by the Environmental Inspectorate 111 The information for Italy concerns all potential instances of damage, including cases which were not confirmed as
environmental damage, notified to the competent authority in the period 2007 – 2012, as indicated in the Italian report to the
Commission on the experience gained in the application of the Directive in accordance with Article 18(1) of the Directive,
submitted on 25 July 2013. 112 Phone call with the relevant Estonian authority that took place on 15 November 2013.
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meaning of Article 12 of the ELD.
Operators of occupational activities which, according to the ELD are the primary responsible persons
to submit a notification of imminent threat of ‘biodiversity damage’ do not seem to fulfil their role in
practice. Identification of the biodiversity damages would often require monitoring and investigation
procedures which are not systematically foreseen by operators or competent authorities. An example
of good practice has been identified in Italy where the operators submitted more than half of the
notifications of damage, and competent authorities generally collaborate with concerned government
bodies such as the Forestry department, Police, and Tax authorities, in identifying the operator or
carrying out inspections if required. Whilst not a single notification of the ELD biodiversity cases in
the UK was submitted by an operator, collaboration amongst government bodies is also found in
England and Wales.
Proposal for recommendations: Reports by the inspection authorities on breaches of emission limit
values for Annex III activities should immediately trigger actions on possible environmental
biodiversity damage cases and the need for prevention and remedial measures.113
Furthermore, the
ELD should contain an obligation on the operators and the competent authorities to carry out regular
monitoring and inspection activities in their surroundings with the aim to identify biodiversity damage,
or imminent threat of biodiversity damage.
113 For example, in Bulgaria and Slovenia, there are no cases of remedial measures carried out for ‘biodiversity damage’. On
the other hand, information from relevant inspectorates (such as the Regional Inspectorates for Environment and Water)
suggests that there are a significant number of cases of breach of emission limit values by Annex III activities.
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Case study number 4 – Preventive measures (see also Chapter 5.2 and Chapter 8)
The interpretation of preventive measures needs to be clarified. The definition of ‘preventive
measures’ is not applied in a harmonised way by EU Member States. The text of the Directive has
been subject to divergent interpretations and applications by different Member States.
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’. Article 5 of the ELD states that ‘where environmental
damage has not yet occurred, but there is an imminent threat of such damage occurring, the operator
shall, without delay, take the necessary preventive measures’. Article 5 also refers to the situation
when an event, accident or omission might have happened but the significant environmental damage
has not yet occurred.
The most obvious interpretation relates preventive measures with situations where no damage at all
(significant or not) has happened with the aim to prevent them from happening. However, Article 2
refers to minimising the damage. Furthermore the definition under Article 2 of preventive measures
refers to environmental damage. The interpretation needs to be based on the definition of
environmental damage under Article 2 which is the damage that is ‘significant’. Therefore, preventive
measures can cover those actions that prevent any damage from becoming significant damage, and
thus constitute an ELD case. Article 5 should be interpreted as referring to measures taken with a view
to preventing the damage from occurring or becoming significant – even if the event, in itself, has
already occurred and to measures taken with a view to minimising a future damage or a damage
already occurred.
However, some argue that ELD measures apply as well when an event, accident or omission has
occurred but only if a significant environmental damage has been determined. An example of this
interpretation is reflected in the French Guide in relation to a case occurred on 16 March 2008 on a
spillage of about 400 tonnes of heavy fuel oil during the loading of a vessel at the Donges refinery.
Under the French system, preventive measures are those undertaken prior to the occurrence of the
damage caused by an accident or event – when there is an imminent threat of significant
environmental damage to biodiversity – and will then aim immediately at preventing it. When the
accident and damage has occurred, under the French interpretation, actions aiming at reducing its
impact once the damage has been considered significant fall under the ELD as remedial measures. If
the damage has not been considered significant, the actions carried out to prevent it becoming
significant will not be considered under the ELD. The analysis of the above-mentioned example in the
French Guide leads to conclude that the current French system considers that the actions undertaken
before an occurred damage is considered significant but aiming to minimise it, would not be
considered part of the ELD system precisely because the damage was not yet determined as
significant. This type of measure would not be considered a preventive action under Article 5 of the
ELD, and nor would be remedial actions under Article 6 of the ELD. Therefore, in the French system
preventive actions under the ELD can only happen in cases when there is no damage or incident at all,
or eventually, when non- Annex III activities are involved and no emergency measures under current
specific sectorial legislation can be undertaken. In those cases, preventive measures could be carried
out to contain or minimise the damage caused by a non-Annex III activity so that it does not become
‘significant damage’ and prior to the adoption of emergency remedial measures.
In Spain, the legislation transposing the ELD defines 3 types of measures that can be undertaken:
preventive action; containment action; remedial action. Containment measures are considered part of
the ELD regime and the French case of fossil fuel spillage in the sea and estuary in Spain would be
considered an ELD case as the containment measures would be part of the ELD system without the
need to go to other sectorial emergency measures.
In the UK, the authorities would issue a preventive order requesting the operator to undertake actions
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to prevent further damage once an accident or event would have happened, and before the case would
be considered causing significant damage. Should the measures aim to prevent further environmental
damage when the damage has already been identified as significant under ELD (and after the
preventive measures are taken), they would be considered remedial actions, following Article 6(2) of
the ELD. In Estonia, preventive actions are also triggered by a possibility of an act of pollution and
by the existing damage caused by pollution, in order to limit it or prevent that it becomes significant
environmental damage. Denmark has literally transposed the definition of preventive measures but no
cases show how the concept has been applied.
The Polish legislation refers to ‘the case where an imminent threat of environmental damage occurs’
as the trigger for preventive action. However, one of the analysed cases included a preventive
measures but the information available did not allow determining whether they were taken before the
act of pollution happened or once it occurred to minimise the impact.
According to the wording of the Italian and German legislation, preventive actions in those countries
are those taken before the damage becomes significant, even if the damage has already taken place.
The current Italian legislation seems to prevent an operator from carrying out prevention measures
before the notification reaches the competent authority. Similar to the French system, in Germany, the
competent authorities are rarely applying preventive measures. They are mostly relying on other
instruments to require appropriate preventive measures to be applied, e.g. the Industrial Emissions
Directive transposing legislation.
According to Bulgarian legislation, operators whose activities have resulted in an imminent threat of
environmental damage are required to immediately implement preventive measures. However,
preventive measures are implemented only in cases where there is danger to human health regardless
of when the actual damage took place. In Slovenia, the legislation refers to the ‘event of imminent
threat of environmental damage’ as the requirement for the operator to take all necessary measures to
prevent such damage. However, as a case of environmental damage has not yet been identified,
environmental damage in the sense of the ELD has not been tested in practice – in particular
regarding: whether or not preventive measures refer to actions prior to the emission, event or incident
and the damage has not occurred yet; or whether those actions are taken after an emission, event or
incident that has already caused damage in order to prevent that it becomes “significant”
environmental damage in the sense of the ELD.
The Environmental Liability Directive: Training Handbook and Accompanying Slides, does not
provide clarification in this respect since it consistently uses the term ‘incident’.
The challenge related to this legal uncertainty results in an uneven application of the ELD across the
EU which could affect the internal market. Furthermore, an interpretation of preventive measures that
excludes the application of the ELD in favour of sectorial legislation would transfer the liability on to
the public authorities and undermine the polluter pays principle and one of objectives for the
Directive’s adoption – namely to establish a common framework for the prevention and remedying of
environmental damage at a reasonable cost to society. Such an interpretation is legally incorrect and
therefore the Commission might want to consider clarifying it in the Guidance document.
Another issue relates to the responsibility of the competent authorities to undertake the preventive
measures if the operator does not carry them out. According to the current text of the Directive, the
competent authority should:
- establish which operator has caused imminent threat of damage;114
- require the operator to take preventive measures.115
However, if the operator fails to comply with the obligations, cannot be identified or is not required to
bear the costs under this Directive, the competent authority may take these measures itself.
114 ELD, Art. 11(2) 115 ELD, Art. 5(4)
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In the proposal for a Directive published by the Commission, the competent authorities were required
to take preventive measures under certain conditions.116
In the adopted text of the Directive, this was
watered down to a power of discretion,117
which had an impact on the implementation of the ELD.
The Bulgarian system is interesting because under certain circumstances, the competent authorities are
required to undertake preventive measures themselves. In this way, the Bulgarian legislation goes
beyond the requirements of the ELD.
One of the added values of the ELD is that it establishes a system where the operator is required to act
to prevent an imminent threat of damage but it gives a possibility to the competent authorities to act
themselves in case no action to prevent the imminent threat of environmental damage is undertaken
and recover the costs. This is something that, for example, the Industrial Emissions Directive does not
provide for. In case of the competent authorities acting under Article 6(2) of the Habitats Directive,
which has a more restricted scope than the ELD because it is only applicable to certain areas, the costs
of competent authorities’ actions are borne by the tax payers.
Proposal for recommendations: The interpretation of the concept ‘preventive measures’ should be
clarified. The opportunity offered by the future review of the Directive under the fitness check
exercise should be used to amend Article 2 and Article 5 of the ELD. Furthermore, this concept should
be clarified in the Commission document Environmental Liability Directive: Handbook and
Accompanying Slides. The amendment or clarification should be addressed to ensure that the
definition of preventive measures includes as well those actions adopted to prevent the environmental
(biodiversity) damage from becoming ‘significant’ and therefore minimising it. This interpretation is
based on the understanding that environmental damage in the ELD context is limited to the cases
where there is significant environmental damage. The difference between preventive measures and
emergency remedial measures needs to be clarified as well. Preventive measures are prior in time and
are taken at the initiative of the operator or to the request of the competent authorities before the
damage is significant in order to prevent it becoming significant.
Alternatively, this concept should be considered as referring only to those measures taken prior to the
damage or the occurrence of an event causing damage aiming to prevent it from happening. The word
minimising would therefore need to be eliminated from Article 2 as it is confusing and entails that the
damage has occurred. However, this would undermine the logic of the Directive. In this case, from the
moment the incident and damage happens any action would be considered remedial, including the
emergency measures to minimise the damage. However, this option excludes from the ELD any action
undertaken once the event and damage has happened before the damage is considered significant
(French case) losing the sequential logic of ELD covering preventive measures prior to the event,
preventive measures once the event and damage occurred in order to prevent it from being significant
and remedial measures once the damage is significant. In this option measures taken once damage has
happened and prior to being significant would be excluded from the ELD which is important in those
countries where the threshold of significance is high. In those cases where any damage to biodiversity
beyond natural fluctuations is considered under the ELD, the distinction is less relevant.
The ELD should also be amended to include an obligation on the competent authorities to carry out
preventive measures should the operator fail to comply with the obligations or not be identified. In
this way, the added value of the ELD will be further strengthened. Financing of these measures could
be fed by polluter pays taxes of Annex III activities in order to avoid the transfer of costs from
operators to tax payers.
116 Art. 4(1) and (4) and 13(2) of the Commission’s proposal for the Directive COM(2002) 17 final 117 ELD, Art. 5(4)
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Case Study 5 – Remediation measures
The interpretation of remediation measures needs to be clarified. The text of the Directive defining this
concept (article 2 and 6, Annex II) has been subject to divergent interpretations and applications by
different Member States. Some Member States have devised systems where measures aiming to
contain further damage are considered as prevention measures whilst others consider them remediation
measures under Article 6 of the ELD.
It is not clear the difference between the prevention measures (as referred to in relation to preventive
measures and related to actions to prevent damage from becoming significant) and the emergency
remedial measures preventing further damage. Legally speaking, remedial environmental damage
under the ELD would be considered when there is already environmental damage defined as
‘significant environmental damage’ and, therefore, Article 6 refers not only to those measures aiming
to restore, rehabilitate or replace damage but also to those remedial measures aiming to contain, limit
or prevent further ‘environmental damage’ already identified as ‘significant’ damage. Prior to the
occurrence of significant damage, the measure would be preventive, once the damage is determined as
significant, the measure is remedial and, in both cases, the operator’s liability to adopt the appropriate
measures and to cover the costs, would be defined or, otherwise fall on the competent authority.
The ELD provisions define remedial action as those required where environmental damage has
occurred. In accordance with Article 2 Article 6(1a) of the ELD refers to the environmental damages
which under the ELD are considered significant damages and states 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 to limit or to prevent further environmental damage and
adverse effects on human health or further impairment of services.
Article 6(2b) of the ELD states that the competent authority may, at any time, require the operator to
take or give instruction to the operator concerning 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 prevent further environmental damage and adverse effect on human health, or further
impairment of services.
The Environmental Liability Directive: Training Handbook and Accompanying Slides, calls those
measures that limit or prevent further environmental damage as emergency remedial measures118
.
These emergency remedial measures, alongside more medium to long-term remediation action
designed to return the damaged resources and/or services to their baseline condition, are considered
primary remedial measures.
In the UK and Estonia, the emergency measures in ELD cases where damage is significant are part of
preventive measures119
. In Spain, the legislation transposing the ELD defines 3 types of measures that
118 Environmental Liability Directive, Two day Training Handbook and Accompanying Slides, February 2013, p. 11 119 In Estonia, according to Act on Environmental Liability (§ 7(1)) the prevention of environmental damage means the
implementation of measures to eliminate the threat of environmental damage due to an event, activity or inactivity or to
reduce the extent of potential environmental damage, or to control, contain, eliminate or otherwise manage the relevant
contaminants or any other damage factors in order to limit or to prevent further environmental damage and adverse effect on
human health or further deterioration in the quality of the benefit afforded by a habitat, species, protected zone or water
(hereinafter ‘preventive measures’).
In the UK, Regulation 14 of the Environmental Damage (Prevention and Remediation) Regulations 2009, SI 2009/153, as
amended, states that ‘An operator of an activity that has caused environmental damage, or has caused damage where there are reasonable grounds to believe that the damage is or will become environmental damage, must immediately—
(a) take all practicable steps to prevent further damage;
…’ The understanding of the concept of preventive measures is subject to interpretation, however, in the analysed case,
emergency measures were implemented as preventive measures. In December 2012 the competent authority issued a
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can be undertaken: preventive action, containment action and remedial action. In essence, containment
measures are emergency remedial measures, but in the Spanish system they are presented as a separate
category.
In Germany, Italy and Poland, the emergency remedial measures are part of remedial measures. In
Bulgaria and Slovenia, they are also part of remedial measures – however, in practice, their application
has never been tested.
Another issue related to remediation measures relate to the role of competent authorities. The
discretionary responsibility of the competent authorities to undertake the remediation measures, if the
operator does not take them, is an important problem – similar to preventive measures. According to
the current text of the Directive, the competent authority should:
- establish which operator has caused the damage;120
- assess the significance of the damage – or require the operator to do so; 121
- determine which remedial measures should be taken;122
- require the operator to take remedial measures.
However, under Article 6(3) if the operator fails to comply with the obligations and adopt the
necessary remedial measures, cannot be identified or is not required to bear the costs under this
Directive, the competent authority may take these measures itself, as a means of last resort.123
.
In the proposal for a Directive published by the Commission, the competent authorities would have
been required to take the remedial measures in the above mentioned cases where the operator cannot
be made liable.124
In the adopted text of the Directive, this was watered down to a power of
discretion.125
which may have an impact on the effectiveness of the ELD for contributing to halt
biodiversity loss.
.
According to the Bulgarian system, the competent authorities are required to undertake remedial
measures under certain circumstances. In this way, the Bulgarian legislation goes beyond the
requirements of the ELD. Similarly in Poland the authorities are required to take preventive or
remedial measures should the operator fail to take them, or if it cannot be identified, if enforcement
against this entity cannot be initiated or is ineffective, or in case of risk to human life, health or
irreversible environmental damage126
.
In those cases of biodiversity damage where sectorial legislation or Article 6(2) of the Habitats
Directive would be applied, therefore limited to Natura 2000 areas, the costs remedial measures would
be borne by the tax payers.
Proposal for recommendations:
The concept of remedial action should be clarified in relation to preventive actions.
The ELD should be amended in a way to include an obligation on the competent authorities to carry
out remedial measures when the operator fails to comply with the obligations, cannot be identified. In
this way, it will be ensured that remedial measures are carried out in each case. These measures could
be financed from polluter pays taxes of Annex III activities in order to avoid the transfer of costs from
operators to tax payers.
Prevention Notice to the operator pursuant to Regulation 14(2) of the Environment Damage Regulations 2009 requiring the
operator to carry out specified measures to prevent further damage (see Annex). 120 ELD, Art. 11(2) 121 ELD, Art. 11(2) 122 ELD, Art. 11(2) 123 ELD, Art. 6(3) 124 Art. 6(3) of the ELD of the Commission’s proposal for the Directive COM(2002) 17 final 125 ELD, Art. 6(3) 126 Article 16 of the APRED.
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Case Study 6 - The costs of competent authorities' responsibilities – assessment of damages
In accordance with Article 11(2) of the ELD, the Member State competent authority, has the
responsibility, inter alia, to establish the operator who caused the damage, or its imminent threat; and
to assess the significance of the damage.
These obligations require investigation, inspections or other type of activities that incur costs. It is
understood that the operators should ultimately bear the costs of the above indicate responsibilities.
However, those costs would be borne by the competent authorities in cases where the operators could
not have been established or the threshold of significant damage was not reached.
According to the research carried out, the competent authorities may be hesitant to carry out the above
mentioned duties due to the costs that authorities may incur and which may not be able to recover.
While the competent authority is obliged to recover the costs incurred in relation to preventive and
remedial actions, the legislation is not clear regarding the costs incurred in relation to the assessment
of the significance of the biodiversity damage and whether they can be considered part of the
preventive or remedial measures which shall certainly be recovered by the CA - unless the operator
has a defence, is bankrupted or is not identifiable. The costs would certainly not be recovered if the
results of the assessment carried out would determine that the damage is not significant and therefore
the case is not determined as an ELD case.
These costs may have a deterrent effect on the competent authorities to apply the ELD system
therefore hindering the application of the Directive and fulfilment of its objective. For example, this
was recognised as an issue by Estonia127
and the competent authorities in the UK128
highlighted that
the difficulties and costs associated with the necessary assessment to determine ‘significant
biodiversity damage’, or its threat, may have a deterrent effect on the application of the ELD regime.
Furthermore national representatives interviewed considered the ELD as a cross-cutting instrument,
prescriptive on process, and that it has been considered appropriate to establish a framework
prioritising the tool that would enable a similar result achieved by using a more flexible instrument
like the pre-existing legislation with different thresholds and standards. The pre-existing system may
be used instead of the ELD system, if the same outcome can or have already been fully achieved,
including the imposition of sanctions to operators.
Proposal for recommendations: The problem of costs associated with establishment of a liable
operator and assessment of significance of damage could be reduced by harmonising the assessments
to be carried out under nature conservation legislation and under the ELD, including the harmonisation
of the thresholds of significant damage and significant disturbance as well as the deteriorations.
Furthermore, Member States should be encouraged to share best practices and lessons learnt from the
establishment of national funding mechanisms to finance these costs. Consideration should be given to
Member States experiences such as the initiative in Slovenia where a special Fund funded by polluter
pays taxes of Annex III activities was set up; however, this funding has not been used to cover the
costs linked to the prevention or remedial measures under the ELD. Similar Environmental Funds at
national level have been set up in Sweden and the Netherlands but their legal basis were abolished at a
later stage because of the Funds’ lack of positive results. The Fund in Finland is still operational.
127 From Estonian Report on the application of Directive 2004/35/EC on environmental liability with regards to the
prevention and remedying of environmental damage submitted pursuant to Article 18 of the ELD on 15 April 2013. 128 See Annex I to this Study
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Case Study 7 - Establishment of the causal link
Whilst in many countries, e.g. Spain and Estonia, the causal link in the case of Annex III activity is
assumed, in other countries such as Germany, the UK, Italy, France, and Denmark, the causal link
requires investigation and proofs. Some countries such as France or Denmark use the changes in the
baseline condition as the indicator for the liability of operators, in respect to the damage. The
requirement of proof complicates the procedure and makes it more difficult, longer and more costly.
These difficulties increase in those cases of fault-base liability link to non-Annex III occupational
activities.
The case of Stóg Izerski in Poland illustrates the problems derived from the above.129
Here, the
operator was an investor that began construction of a cableway for a ski ride through StogIzerski – a
Natura 2000 site designated as a Special Protection Area under the Birds Directive, without an
environmental impact assessment. The operator ignored the obligation to monitor the Black Grouse
population in the construction area, the interdiction to continue work during the birds’ nesting season,
and did not comply with requests for information on measures to prevent negative impacts to the
Black Grouse population.130
The competent authority, the Regional Directorate for Environmental
Protection (RDOS), consulted with an expert and ordered the operator to undertake a list of specific
preventive and remedial measures in July 2012.131
In November 2012, the General Directorate for
Environmental Protection (GDOS) invalidated the RDOS decision on the grounds that the specified
remedial measures were not in compliance with the Damage Act that transposed the ELD into Polish
law.132
The two main challenges for ELD implementation in this case were, first, that the operator’s actions
were not subject to strict liability and the competent authority found it difficult to prove the fault.133
Second, there was a lack of data and the significance of the damage could not be determined.134
The
case could not be determined as an ELD case and to date, neither the operator nor the competent
authority have undertaken any remedial actions.
In Raffinerie Mediterranee, the European Court of Justice135
found that the ELD does not specify how
a causal link between the activities of the operator(s) and the environmental damage is to be
established. Whilst the Court recognises the possibility that a Member State may impose remedial
measures for environmental damage on the presumption that there is a causal link between the
pollution found and the activities of the operator(s), if the latter are located close to that pollution, it
requires the competent authority to have ‘plausible evidence’ capable of justifying that presumption.
While the Court case only enables the use of the presumption if it exists, it does not change the
national law.
Proposal for recommendation: The wording of the ELD should be amended to reflect the Case law
and ensure harmonised implementation by clearly stating that the causal link should be assumed, if
the operator is located close to the pollution and that a ‘plausible evidence’ should be provided by the
competent authorities to justify the rebuttable presumption of a causal link under the ELD. This
would facilitate easier implementation of the ELD. A more simple system would reduce costs for
implementation and limit the duration of the process for determining liability.
129 BIO Intelligence Service, 2013. Implementation challenges and obstacles of the Environmental Liability Directive, Annex
– Part B prepared for European Commission – DG Environment in collaboration with Stevens & Bolton LLP 130 Idem to the footnote above, p. 5 131 Idem to the footnote above, p. 6 132 Idem to the footnote above, p. 6 133 Idem to the footnote above, p. 10 134 Idem to the footnote above, p. 10 135 Case C-378/08, Raffinerie Mediterranee, 9 March 2010, [2010] ECR I-0000, paras. 56-58
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Case study number 8 – Raising awareness measures
Awareness about the ELD is needed in different ways. First, there is a need for properly
understanding the Directive by those in charge of its implementation, namely the competent
authorities and the operators. Certain technical aspects of the Directive such as the assessment of
biodiversity damage require support and awareness measures. In addition, stakeholders awareness is
needed to ensure their involvement in identifying damages or providing input for risk assessments.
Finally, the research undertaken evidences that operators do not always notify the imminent threat of
damage or the damage itself.
Different Member States have invested in raising awareness concerning the implementation of the
ELD. Whilst several countries have developed Guidance documents to facilitate the implementation
of the Directive, i.e. Denmark, France, Spain and the UK, some others have gone further and have
undertaken the task to provide training for stakeholders and local authorities, e.g. France and Spain.
Based on a guidance document and briefings on the implementation of ELD, training sessions at
national level have been developed in France to raise the awareness of public authorities and the
general public about the implementation of ELD. Furthermore, free-of-charge software has been
developed by the University of Montpellier III in collaboration with the Centre for Functional and
Evolutionary Ecology (CEFE) in Montpellier. It allows calculation of the cost of damages and the
benefits from the restoration measures. It thus facilitates the definition of ‘significant damage’ and the
design – in time and space, of the restoration project. The software is also available to the public free-
of-charge.
Similar to France, Spain considered that the implementation of the ELD requires raising awareness
measures to communicate the key elements of the Directive to ensure harmonised interpretation.
Both, the General Administration of the Spanish State and the Autonomous Communities have
organised numerous training courses and information sessions for operators and competent
authorities on the application of environmental liability rules, including how the financial guarantees
apply. Furthermore, an IT tool has been developed to offer operators and industrial sectors with
guidance for calculating the financial cost of the environmental damage associated with each risk
scenario, as well as, the costs of the remedial actions – including primary and compensatory
measures, and additional measures, along with the best available techniques to return the natural
resources and the services that these provide, to their baseline condition. This application gives both
operators and public administrations guidance as to which are the best remedial techniques to apply if
environmental damage occurs and the need arises to design a project to remedy it. The application is
available to the public since 5 April 2013, free-of-change, on the website of the Ministry for
Agriculture, Food and the Environment136
. Another interesting tool developed in Spain is a mailbox
consultation service and technical assistance for Annex III operators to implement the provisions
related to the environmental risk assessment under Spanish Law.
Estonia has a register containing a list of all ELD cases which is regularly updated and publicly
accessible online. Information on the cases of environmental damage and the threat of damage is
provided on this website137
. It also includes up to date information on the notification of
environmental damage or threat of it and the rights of the persons concerned can be found online.
This register is to be further developed and merged with the environmental information system
currently in use. Such a solution would allow expert assessments submitted in the course of
proceedings, monitoring data, information on any submitted notices of environmental damage, as
well as any other important information, to be stored compactly – allowing the existing information to
be used within the context of a case or as part of national monitoring activities.
136 http://eportal.magrama.gob.es/mora/login.action 137 Environmental Board website:http://www.keskkonnaamet.ee/teenused/keskkonnakorraldus-2/keskkonnavastutus-2/keskkonnakahju-ja-
kahju-ohuga-seonduv-teave/, accessed on 14 November 2013.
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Although there are no guidelines on the interpretation of the significance of ‘biodiversity damage’, a
series of information days have been organised with an aim of raising awareness amongst operators
and the general public on environmental liability.
In Poland, in 2009, the General Directorate for Envrionmental Protection disseminated a letter among
Regional Directorates for Environmental Protection disclosing its position on the correlation between
thermal modernisation works in buildings settled by common swifts. This letter contributed to
existence of 21 similar ELD cases in Poland. Furthermore, the Environmental Protection Inspectorate
manages a register gathering information in electronic form of cases of environmental damages and
imminent threats of such damages including the preventive and remedial measures carried out138
. The
Register is open to public access on a request. Italy is considering the development of a Register of
cases in order to ensure awareness raising and proper management of the ELD cases.
In Bulgaria, the Ministry of Environment and Water provides information about the ELD on its
website under a section designated specifically for Environmental Liability139
providing access, inter
alia, to environmental liability-related legal instruments and training materials on the implementation
of the ELD legislation. A register of operators carrying out occupational activities has been set up
and a guidance document for is implementation is available on line140
. Annual workshops are
organised with competent regional authorities where the implementation of LPREDA is discussed.
Workshops on the implementation of LPREDA are also organised for operators – even so, the interest
of environmental NGOs in the implementation of LPREDA has dwindled over time.
At EU level, the Commission has developed a guidance document to support Member States
application and interpretation of the Directive entitled; Environmental Liability Directive: Training
Handbook and Accompanying Slides. Furthermore training events are being promoted aiming to
reach most Member States. A European Biodiversity Registry for ELD is currently being
developed with information sources at EU level as well as in each of the EU Member States about
biodiversity to help determine biodiversity baseline condition.
Proposal for recommendations:
A systematic sharing of best practices and dissemination of information on the ELD implementation
to operators and stakeholders should be established. It should be facilitated by the Commission
through the coordination meetings (allocating time for presentations on this issue) but also through
raising awareness funding.
Specific attention should be made to the development of register of ELD cases with information on
the notification of damages and the preventive and remedial measures (to be) undertaken.
The Commission may want to consider making the European Biodiversity Registry for ELD available
to the public in the specific ELD website.
138 Article 28a of the Act on the Environmental Protection Inspectorate of 20 July 1991 and Ordinance on the register of imminent threats of environmental damage and environmental damage of 26 February 2008 139 http://www.moew.government.bg/?show=top&cid=280, accessed on 8 October 2013. 140 http://www.moew.government.bg/?show=top&cid=329, in Bulgarian, accessed on 26 January 2014.
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Case Study 9 – Insurance and financial securities
Article 14 of the ELD requires Member States to take measures to encourage the development of
financial security instruments and markets by the appropriate economic and financial operators,
including financial mechanisms in case of insolvency, with the aim of enabling operators to use
financial guarantees to cover their responsibilities under the Directive. The Commission reviewed the
situation in 2010 and considered that it was too early to propose a harmonised mandatory financial
security regime as there is no experience enabling to conclude the need for it..
It appears that only eight EU Member States have opted for mandatory financial security, including
Spain and Bulgaria, whilst others, e.g. France, have opted for reinforcing the insurance system for
environmental damages.
The Spanish legislation requires operators, of activities included in its Annex III, to have a
financial guarantee covering the environmental liability. The requirement to hold a financial
guarantee is introduced gradually and according to a timetable stipulated in a bylaw. Furthermore
it requires the development of risk assessments by sector which would then be the basis for the
establishment of the financial security. In practice, up to now, only a small number of operators
have contracted financial security. 141
The Bulgarian legislation requires an operator to financially secure its activities by one or more of
the following means: insurance, bank guarantee, pledge, or mortgage, when carrying out
occupational activities listed in Annex III. The insurance policies cannot be less than BGN
50,000. However, the effectiveness of the system is questionable. There is a low penetration rate
of the insurance sector and there is no monitoring on whether or not the financial security exists.
The offer of insurance on environmental damages has grown in France within the framework of
the insurance pool Assurpol and the ‘environmental liability insurance framework’ known as
CARE. Since 2005, new companies offer policies covering specific ‘environmental
responsibility’ within the framework of these structures. The more competitive environment, and
the increase of information and awareness, has contributed to lower premiums and increased the
penetration rates of the environmental liability insurance.
Proposal for recommendation: Further analysis and exchange of information should be ensured in
order to determine whether a harmonised mandatory financial security regime is needed and the
obstacles encountered by Member States. The analysis should be carried out with a view to ensure a
high level of environmental protection and particularly the objective to halt biodiversity loss.
141 Julia Pedraza, Kristel de Smedt and Michael Faure, Compulsory financial guarantees for environmental damage. What can
we learn from Spain?, 8-2-13, p.16.
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5 Analysis of key ELD concepts and their application in EU
Member States
5.1 Impact of Member States choices on the scope of biodiversity damage The ELD establishes minimum requirements for the prevention and remediation of damage to
protected habitats and species. It makes operators of professional activities directly responsible for
taking such preventive and remedial measures and liable for the financial consequences of the
significant damage caused to the environment. As mentioned above in Chapter 2 of this study, the
ELD covers the natural habitats and habitats of species and the species protected under the Birds and
Habitats Directives either as part of the Natura 2000 network or outside it. In other words it covers
those habitats and species that are protected by EU nature protection legislation. However, in
accordance with Article 2(3) of the ELD, the liability scheme can cover habitats and species not
currently protected by the EU’s Habitats and Birds Directives if the Member States have adopted
protection measures for equivalent purposes as those laid down in both of the EU nature Directives.
From amongst the 10 selected Member States under this project, Estonia, Italy, Poland, Spain and the
UK have extended the scope of the Directive to national protected habitats and species whilst
Bulgaria, Denmark, France, Germany and Slovenia have not.
Moreover, the ELD has a broader scope than certain provisions of the Habitats Directive that are only
applicable to the protected habitats and species that are part of the Natura 2000 Network, i.e. Article
6(2), which only applies to ‘special areas of conservation’. The ELD can therefore provide for a higher
level of protection for those protected species, habitats and sites not covered by Article 6(2) of the
Habitats Directive.
Furthermore, Article 16 of the ELD sets out the relationship with national law and allows Member
States to adopt more stringent requirements than those set out in the ELD. This provision refers to the
possibility already recognised by Article 193 TFEU to adopt or maintain more stringent measures of
protection and enables the integration of the ELD with existing aspects of liability schemes in the
national legal order. Furthermore, the Directive refers to the identification of additional activities or
responsible parties to be subject to the liability scheme. According to the 2010 Commission report
under Article 14(2) of Directive 2004/35/CE142
, a ‘number of Member States included further
activities not mentioned in Annex III in the scope of strict liability (Belgium, Denmark, Finland,
Greece, Hungary, Latvia, Lithuania, Netherlands and Sweden)." In a more recent publication it is
stated that some ‘Member States including Belgium, Denmark, Finland, France, Greece, Hungary,
Lithuania, Spain and Sweden, have extended strict liability beyond the legislation and activities
specified in Annex III of the ELD’143
. Specifically on Denmark, as one of the 10 selected Member
States, the legislation extends strict liability for biodiversity on the dumping of waste. In France, the
Decree on 2 May 2009 was adopted to extend strict liability to the transport of oil by pipelines.
Interestingly, Spain goes beyond the ELD in relation to prevention and remedial measures (and
containment measures) ; it requires operators of non-Annex III activities to carry out prevention and
containment measures in case of biodiversity damage even if there is no fraud, fault or negligence
required by ELD for this type of activities. .
142 COM(2010) 581 final, 143 Implementation challenges and obstacles of the Environmental Liability Directive, report for the European Commission,
May 2013, p. 46
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Three elements need to be differentiated in relation to the ELD scope: the Member States choice to
adopt or maintain more stringent national liability systems; the activities subject to strict liability and
those under the fault-base liability system; the choice of the habitats and species protected under the
ELD. The details of which are:
The flexibility provided by the ELD enabling more stringent liability systems at national level for
enhanced integration in the domestic legal orders is enshrined under Article 193 TFEU on
environmental policy and does not bring any additional value to the system. The issue at stake is
whether EU biodiversity would be better implemented through a system with more flexibility at
national level, or better implemented with higher harmonisation of liability conditions and
consequences for economic operators in cases of biodiversity damage.
Whilst strict liability is applied to biodiversity damage caused by Annex III activities, biodiversity
damage caused by non-Annex III activities is not subject to strict liability, according to the
Directive. As explained above, some Member States expanded the scope of strict liability regime.
Most of the additions in only 7 years evidence the need to expand Annex III. The described lack of
harmonisation concerning strict liability in EU Member States leads to situations where, under
similar cases of biodiversity damage, the operator of the occupational activity having caused such
damage would be responsible for the implementation of corrective or remedial measures whilst in
other Member States not – leaving it to the discretion of the competent authorities to deal with the
biodiversity damage. This can be considered as affecting the level playing field for operators
across the EU and thus creating distortions in the internal market. Furthermore, the difficulties of
Member States proving negligence or fault-based liability have been identified as an important
factor jeopardizing the implementation of ELD and its effectiveness to establish liability of
operators144
(see case study 7 in Chapter 4 of this Report)
The ELD key objective is to set up a common framework – in other words, to harmonise liability
in cases of environmental damage, including biodiversity damage. The EU environmental liability
scheme, by its own nature, aims at harmonising the requirements applicable across the EU and
thus creating a level playing field for environmental damage and the consequences for persons
carrying out professional activities. There is no justification under the ‘polluter pays principle’ for
the differentiation between occupational activities. All occupational activities causing damage to
protected biodiversity should be subject to strict liability in all Member States. In the same way,
the permit defence and the state-of-the-art defence weaken strict liability and consideration should
be given to delete the reference to them under the ELD.
The choice of the habitats and species protected under the ELD is another option clearly available
under the ELD as described above. From a legal implementation point of view, it has not been
possible to determine any special consequences or impacts stemming from this choice on the
interpretation, or systems of implementation, of the ELD. The scope of the ELD, in relation to the
protected natural habitats and species, does not change the nature of the regime. As stated in
Section 4 of this Study, the number of ELD cases, depends on other factors such as the criteria and
threshold used for the consideration of ‘significant’ biodiversity damage. The choice in the scope
of biodiversity has not been identified as a challenge, or reported by Member States as an issue
affecting the implementation of the ELD.
144
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However, one aspect highlighted as an added value of the ELD and described in the German
report in Annex I to this Study, refers to the recognition of stakeholder’s rights under the ELD. In
some countries like Germany, NGOs, or interested parties, have the right to request action or legal
review only under the legislation transposing the ELD – Article 12, but not under legislation
regulating Annex III activities or the Habitats Directive. There is no justification for stakeholders
and NGOs to have their rights limited only to ensuring the favourable conservation status of
habitats or species protected under EU law, and not to include those protected under national
legislation. However, this would need to be ensured through national measures. Under the
subsidiarity principle, the EU competence to legislate cannot be justified for imposing obligations
on nationally protected habitats and species if not identified as being of EU interest.
On that basis, the consequences of the choice of biodiversity on the national implementation
systems of the ELD, or on its effectiveness in achieving its objectives to provide a liability
framework based on the ‘polluter pays principle’, seem to be limited to stakeholder’s participation.
While, in practice, this is a very important point given that one of the challenges identified for the
implementation of the ELD is the lack of notification of biodiversity damages by operators, there
is no measure at EU level or under the ELD that would seem appropriate.
Our analysis cannot take account of the impacts that the scope of the Directive would have on the
achievement of the objective of halting biodiversity loss. The assessment of this objective goes
beyond the remit of this study/project which is not meant to assess the current biodiversity status,
or the contribution of the ELD, to halting biodiversity loss. However, in that context, it could be
conceivable to anticipate a higher impact on biodiversity conservation derived from an expanded
scope of the biodiversity covered by the ELD. That impact could justify the suggestion for the
Commission to consider EU level harmonisation of the ELD and the Habitats Directive –
expanding them to cover not only habitats and species protected under the current EU law but also
habitats and species protected under national or regional legislation in all EU Member States.
From a legal point of view, that would require expanding the list of habitats and species to cover
all nationally protected habitats and species. As stated above, the EU does not have the
competence to impose legal obligations affecting nationally protected species or habitats. Their
inclusion under EU law would have to be justified within the subsidiarity and proportionality
principle probably on the basis of their European importance given the current status of
biodiversity in the EU.
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5.2 Implementation of key concepts of ELD and Habitats Directive
5.2.1 ELD Directive and the Habitats and Birds Directives: complementary
regimes
This section investigates the relationship between the ELD applied to biodiversity damage and the
legal regime for nature protection established by Directives 92/43/EEC and 2009/147/EC – the
Habitats and Birds Directives respectively.
The ELD contains specific references to the Habitats and Birds Directives and key concepts used
therein. For instance, the ELD defines environmental damage as any damage that has significant
adverse effects on reaching or maintaining the favourable conservation status of natural habitats or
protected species, as determined in the Habitats and Birds Directives. Furthermore, the concept of
‘favourable conservation status’ is directly taken from Article 1 of the Habitats Directive.
There are thus clear links between both legal regimes. Furthermore, the ELD is designed to
complement the EU’s nature protection legislation. Both legal regimes aim at the same goal, namely
ensuring the conservation of the EU’s biodiversity or halting biodiversity loss through different means
and specific objectives. The Habitats and Birds Directives aim to maintain and restore the
conservation of natural habitats and of wild species in the EU, whilst the ELD aims to prevent and
remedy environmental damage – in this case, to such protected habitats and species. Under the
Habitats and Birds Directive the main responsibility for achieving the conservation objectives and for
restoring any damage lies on the public authorities. The ELD sets up a scheme by which operators are
responsible for dealing with the adverse effects on the environment caused by occupational activities
and governments have the discretionary power to accept to have a secondary responsibility in cases
where the operator fails to comply, cannot be identified or is not required to bear the costs. As stated
in the case studies 4 and 5 of section 3, the ELD efficiency regarding halting biodiversity loss would
be promoted if the competent authorities would hold a secondary responsibility to the operator. Under
the current ELD scheme, the operator shall first be responsible for the adoption of preventive measures
to prevent environmental damage from taking place or minimising it. Second, the operator shall be
responsible to take remedial measures to limit and remedy the damage when damage has already taken
place. The operator is therefore financially liable to cover the costs of those measures, except when it
cannot cover the costs.
This section will look at the interactions between various concepts in both legal regimes from a legal
point of view at the EU level, as well as, from the experience with the application of these concepts in
the national legal orders of the Member States. For this second aspect, we will mainly use the country
reports prepared during the course of this project combined with existing literature on implementation
and application of the ELD in the Member States.
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5.2.2 Liability versus conservation efforts
The ELD’s environmental liability scheme
The ELD establishes a liability regime for operators whose occupational activities have caused
environmental damage, based on the ‘polluter-pays principle’. It aims to identify those responsible for
environmental damage, in these cases – operators of certain professional activities, and make them
liable for the significant adverse impacts their activities have caused on the environment.
As mentioned earlier in this study, the ELD establishes an environmental liability scheme which
applies strict liability for damage to protected species and natural habitats caused by the activities
mentioned in Annex III of the Directive, and a liability based on fault or negligence for such damage
caused by any other occupational activity. Annex III includes activities, such as those covered by
Directive 96/61/EC on IPPC – now the Industrial Emissions Directive, or waste management
operations, or discharges into water, or the deliberate release of GMOs into the environment.
The environmental liability scheme, set up by the ELD is an ex-post mechanism. It makes a person
responsible for the adverse consequence on the environment, and in the framework of this study on
biodiversity, its activities have had. As a consequence, the ELD aims to have, in the first place, a
deterrent effect whereby the perspective of liability will act as an incentive for these operators to take
comprehensive, effective preventive measures with a view to avoid any environmental damage to the
EU’s most ecologically threatened habitats or species. Similarly, it should promote the adoption of
remedial measures to restore or replace (the most threatened) protected habitats and species that have
been significantly damaged, in order to achieve their favourable conservation status according to their
baseline condition. Indeed, the ELD is closely connected with the objectives of the Habitats and Birds
Directives, contributing to their achievement through a liability regime.
The ELD provides for minimum requirements in relation to environmental liability in the EU. As
mentioned in the considerations of the Directive, there are many contaminated sites in the EU posing
significant health risks and the loss of biodiversity – which has dramatically accelerated over the last
decades.145
Whilst most Member States had requirements for environmental liability in their
legislation, the consequences attached to causing major environmental damage were very diverse
across the EU. Many Member States’ environmental liability schemes did not cover biodiversity
damage until the adoption of the ELD.146
The ELD is, in this regard, considered an instrument for the
EU’s policy objective to halt biodiversity loss in the EU, and a complement to the conservation efforts
established in the Habitats and Birds Directives.
Moreover, it is important to note that the ELD does not establish a civil liability scheme. Article 3(3)
explicitly states that the ELD does not give private parties a right of compensation as a consequence of
environmental damage, or of an imminent threat of such damage. However, the ELD does not exclude
that Member States can introduce such a civil liability scheme as a complement to the environmental
liability scheme set up by the ELD.
The ELD sets out specific criteria for determining the occurrence of ‘significant’ biodiversity damage,
or the imminent threat thereof, which triggers the application of the specific requirements set out in the
145 Preamble Directive 2004/35/EC 146 See Chapter 2 and 3 of this study
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Directive. In many Member States any adverse consequences on biodiversity, below the threshold
established in national legislation, would be subject to sectoral legislation regulating occupational
activities, such as that transposing the Industrial Emissions Directive, or the Habitats Directive.147
Only major damages would be considered significant to justify the ELD implementation. In other
Member States, ‘significant’ is considered according to Annex I of the ELD any damage that is more
significant than negative variations smaller than natural fluctuations or due to natural causes or
damage to species and habitats for which recovery is established within a short time and without
intervention.
The interpretation of this concept is not trivial. The lack of application of the ELD undermines the
implementation of the liability regime on polluters –leaving the public authorities often covering the
damage with funds from tax payers.
Application of the ELD liability scheme: the concept of significant biodiversity damage
Biodiversity damage is defined in the ELD as ‘any damage that has significant adverse effects on
reaching or maintaining the favourable conservation status of such habitats or species’. The definition
adds that the significance of such effects is to be assessed with reference to the baseline condition,
taking account of the criteria set out in Annex I – which excludes fluctuations or negative variations
due to natural causes, or damages, from which the habitats or species can recover within a short time
and without intervention.
The concept of ‘favourable conservation status’ (FCS) is defined in Article 2(4) of the ELD in the
same manner as in the Habitats Directive. The conservation status, in respect of a natural habitat is
defined as ‘the sum of influences acting on a natural habitat and its typical species that may affect its
long-term natural distribution, structure and functions as well as the long-term survival of its typical
species within the European territory of the Member States to which the treaty applies or the territory
of a Member State or the natural range of that habitat’. Article 2(4) of the ELD further specifies that
this status is taken as ‘favourable’ when ‘its natural range and areas it covers within that range are
stable or increasing, the specific structure and functions which are necessary for its long-term
maintenance exist and are likely to continue to exist for the foreseeable future, and the conservation
status of its typical species is favourable’. In respect of a species, the conservation status is defined in
the ELD as ‘the sum of the influences acting on the species concerned that may affect the long-term
distribution and abundance of its populations within, 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 of
that species’. The conservation status of a species will be taken as ‘favourable' when: population
dynamics data on the species concerned indicates that it is maintaining itself on a long-term basis as a
viable component of its natural habitats; the natural range of the species is neither being reduced nor is
likely to be reduced for the foreseeable future; when there is, and will probably continue to be, a
sufficiently large habitat to maintain its populations on a long-term basis. With regard to the
applicability of this concept, please see section 2.6 of this Study)
The ELD will only be applicable when the adverse effects to the favourable conservation status of a
habitat or species are ‘significant’. Annex I to the ELD lists the criteria that should be taken into
consideration when determining the significance of the biodiversity damage. Annex I requires the
significance of the damage to be assessed by reference to the conservation status at the time of the
147 Results from Task 2 of this project: highlighted as national practice in various Member States
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damage, the services provided by the amenities they produce, and their capacity for natural
regeneration. The ELD requires the significance of changes to the baseline condition to be
determined by means of measurable data and lists the types of data that should be used for assessing
such significance. As stated above, Annex I excludes: negative variations that are smaller than natural
fluctuations regarded as normal; due to natural causes; resulting from normal management or damage
to species or habitats for which it is established that they will recover within a short time and without
intervention to the baseline condition or a condition deemed equivalent.
The starting point of any assessment of the significance of damage is therefore what is referred to as
the baseline condition. The ELD defines the baseline condition as the condition at the time of the
damage of the natural resources and services that would have existed had the environmental damage
not occurred, estimated on the basis of the best information available – Article 2(14). This means that
a comparison is needed with a status that might or might not yet be the ‘favourable conservation
status’ aimed for in nature protection legislation and the ELD. In order to carry out such a comparison,
comprehensive information on the baseline is required. Without sufficient information demonstrating
the status of the habitat or species before the incident occurred, it might be difficult to demonstrate that
any damage really occurred, or that it meets the significance requirement of the ELD.148
See Chapter 7
of this Study below and the register developed within this contract gathering the major sources of
biodiversity information needed for defining the baseline condition. Furthermore, some Member
States also use the baseline condition to proof the liability of operators, i.e. the causal link between the
operator and the damage.149
When a case concerns damage to biodiversity to the level that is considered ‘significant’ the liability
scheme applies versus the responsibility of competent authorities under sectorial legislation.
The Habitats Directive is looked at to provide such information on the Favourable Conservation Status
and the possible baseline condition in relation to the protected habitats and species. Article 4(4) of the
Habitats Directive requires Member States to designate sites of Community importance as special
areas of conservation (SAC) within the Natura 2000 Network and to establish priorities for the
maintenance and conservation of such protected habitats and species. For the designation of the
Natura 2000 sites, Member States were required to submit proposals of sites with information
including maps of the sites and data relating to the habitats and species in such sites. The data to be
submitted includes aspects such as size and density of species populations or the functions and
possibilities of restoration of the natural habitat. 150
Moreover, Article 11 of the Habitats Directive
requires Member States to undertake monitoring actions of the conservation status of these habitats
and species hosted by Natura 2000 sites as well as those outside the Natura 2000 Network.
While the information reported under Articles 4, 11 and 17 of the Habitats Directive might provide
useful information on the sites that are part of the Natura 2000 Network and the species outside them,
it will not cover the additional sites designated as protected areas under national law, as has been done
in Poland, Spain and the UK, for example.151
The availability of information on a baseline level for
148 G.M. Van den Broek, Environmental liability and nature protection areas. Will the EU Environmental Liability Directive
actually lead to the restoration of damaged natural resources?, Utrecht Law Review, Volume 5, Issue 1 (June) 2009, page 123 149 Chapter 3 and Annex the present Study; Implementation challenges and obstacles of the Environmental Liability
Directive, report for the European Commission, May 2013 150 Annex III Habitats Directive. Criteria for selecting sites eligible for identification as sites of Community importance and
designation as special areas of conservation 151 Implementation challenges and obstacles of the Environmental Liability Directive, report for the European Commission,
May 2013 and country studies carried out as part of this project
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those additional habitats and species allowed by Article 2(3c) of the Directive would, therefore,
depend on additional national monitoring requirements.
Once the baseline has been established, an assessment of the significance of the damage to
biodiversity is required. Analyses of the implementation of the ELD in Member States have however
shown that the interpretation of the concept of significance of biodiversity damage varies greatly from
one Member State to another and whilst some countries interpret that ELD regime is limited to severe
– almost catastrophic cases, other Member States apply this concept to any damages to biodiversity
beyond small variations.152
For example, in Bulgaria, biodiversity damage is in practice only
considered significant when there is a danger to human health153
. In Poland, on the contrary, a lower
threshold is used for the assessment. Poland applies the concept of ‘significant’ damage according to
Annex I of the ELD and considers that cases under ELD are those where the damage is more
significant than negative variations smaller than natural fluctuations or due to natural causes or to
normal site management as well as damages to species and habitats for which recovery is established
within a short time and without intervention. Furthermore, deterioration of natural habitats and the
habitats of species as well as disturbances of the species in Natura 2000 sites – as foreseen within
Article 6(2) of the Habitats Directive, falls within the meaning of ELD biodiversity damage in Poland.
– see Case Study 2 in section 4 of this report and Annex to this Study.
However, the differences in establishing a threshold for the application of the ELD for biodiversity
damage across Member States, has had as a consequence that the supplementary protection provided
by the liability regime under the ELD is not applied equally across the Member States.
In most Member States, when the threshold for application of the ELD has not been met, sectoral
legislation has applied to the damage caused to biodiversity. In relation to biodiversity damage, this
legislation will often be the Habitats and Birds Directive or, regulations concerning the source of
contamination such as the Industrial Emissions Directive. However, those sectorial pieces of
legislation do not provide for strict liability of operators and, in most cases, the competent authorities
assume the responsibility for the damage to biodiversity and there is a lack of provisions enabling the
involvement of stakeholders such as NGOs in the procedures.
Conservation efforts under the Habitats Directive
As mentioned above, the liability scheme established by the ELD primarily aims at ensuring that
operators are made responsible for the damage their activities cause to biodiversity. However, as it has
been noted, the liability scheme can only be applied to the cases responding to the definition of
significant damage and the criteria established by the Directive. The ELD for biodiversity damage was
developed as a necessary complement to the EU’s nature protection legislation which aims to maintain
and restore the EU’s biodiversity through conservation efforts.
Despite their complementary nature, Member States are currently not implementing the ELD in a way
that enables both systems to complement each other to their full extent. The aim of the Habitats
Directive is, according to its Article 2, ‘to contribute towards ensuring biodiversity through the
conservation of natural habitats and of wild fauna and flora in the European territory of the Member
152 Case Study 2 in section 4 of this Study.. 153 Interview with Bulgarian authorities on 15 November 2013 and description of Bulgarian system in Annex to this Study
whose content was submitted for comments and accepted as such.
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States’.154
Moreover, Article 2(2) specifies that the measures taken pursuant to the Directive shall be
designed to maintain or restore at favourable conservation status, habitats and species of wild fauna
and flora of Community interest, whilst taking account of economic, social and cultural requirements
and regional and local characteristics. The objective integrates the concept of favourable conservation
status, which, as has been highlighted above, has been taken over in the ELD with a view to make both
legal regimes complementary.
The Habitats and Birds Directives thus have a different specific way to the ELD for protecting and
achieving what is the ultimate overarching aim of both systems: halting the loss of biodiversity in the
EU. The nature protection legislation is, in contrast to the ELD, often characterised as positive or ex-
ante legislation. It requires Member States to take measures, prepare plans, carry out impact
assessments and adopt other regulatory initiatives with a view to reaching favourable conservation
status and maintaining this status once it is achieved. The responsibility for the adoption of those
measures or policy initiatives lies with the competent authorities. The only remediation of any damage
would be required in relation to infringements of these positive obligations. In other words, the
approach and specific objective of the nature protection legislation is proactive in contrast to the
reactive approach set out in the ELD.
To this end, the Habitats Directive establishes a network of special areas of conservation (SACs),
distributed across the EU Member States and referred to as the Natura 2000 Network. In its Article 6,
the Habitats Directive sets out the main conservation and restoration requirements for the sites
included in this network. Similar conservation requirements are included in Articles 3 and 4 of the
Birds Directive.
Article 6(1) of the Habitats Directive
Article 6(1) of the Habitats Directive requires the Member States to establish conservation measures
in order to maintain or restore natural habitats and protected species at a favourable conservation
status. Article 6 (1) foresees that the conservation measures can take at least two forms: the form of
‘appropriate statutory, administrative or contractual measures...’ and ‘if need be’, the form of
‘appropriate management plans’. The European Commission note on “Establishing Conservation
Measures for Natura 2000 Sites” points to the importance of taking into consideration the other socio-
economic activities in the sites to define the conservation measures, once the conservation objectives
for maintaining or restoring the species and habitats at favourable conservation status have been
established. Article 6 (1) states that the management plans and measures can also be ‘integrated into
other development plans’. This is in conformity with the principle of integration of the environment
into other EU policies and in line with the provisions of Article 2(3) of the Habitats Directive
providing that measures taken for the purpose of the Habitats Directive shall take account of
economic, social and cultural requirements and regional and local characteristics.
They should contribute to the establishment of a coherent network of Natura 2000 sites across the EU
with fauna and flora at a favourable status. Given the variety of biodiversity across the EU, such
measures have to be adapted to the specific ecological requirements of a habitat and of the species in
such a site. The responsibility for the identification and implementation of these conservation efforts
lies entirely with the national competent authority even if management plans may be drafted by the
owner of the site or by stakeholders concerned with the proper management of the site.
154 Article 2(1) of ELD
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The definition of conservation status in the Habitats Directive is the same as that used in the ELD.155
Annex I of the ELD lists the factors to be taken into consideration when assessing the significance of
damage without providing further guidance on the interpretation of the concept. The EC guidance
document on Article 6 of the Habitats Directive specifies that, Article 6(1) refers to the ecological
needs of abiotic and biotic factors necessary to ensure the favourable conservation status, or the habitat
types and species, including their relations with the environment.156
The guidance document specifies
that these requirements rest on scientific knowledge and can only be defined on a case-by-case basis.
In a renewed objective of strengthening the implementation of ELD, Natura 2000 management plans
should take into consideration the ELD Annex III activities (and non-Annex III activities) carried out
from operators that could threaten the site and include measures for preventing accidental damages to
Natura 2000 sites, facilitating access to information and data concerning Natura 2000 sites as well as
facilitating decisions on the best remedial actions in case of accident. This aspect seems to be foreseen
in the list of “Considerations on Management Plans” of Annex II157
of the EC Guidance document on
Management of Natura 2000 with the identification of the main threats and the requirement for
identification and involvement of all local actors with a bottom up approach.
In return Natura 2000 management plans and conservation objectives are to be communicated as
widely as possible to local and regional stakeholders and operators to be effectively taken into
consideration in their risks prevention and risks management strategies. In addition, it could be
important to integrate or at least refer to Natura 2000 management plans in any local or regional plan
for risks management and risk prevention. This could help operators being better informed about the
specificity of the ecosystems, species and habitats that could be affected by an environmental damage.
Progress on establishment of management plans for Natura 2000 varies from one country to another.
There is no document yet available giving an overview of the number of management plans in
comparison to the number of Natura 2000 sites for all Member States. However, as part of the regular
reporting exercise that Member States have to do in application of Article 17 of the Habitats Directive,
latest Member States reports indicate in their Section 4 the “number of comprehensive management
plans for Natura 2000” with “Number of sites for which management plans have been adopted” and
“Number of sites for which management plans are under preparation”158
.
Article 6(2) of the Habitats Directive
In addition to the general conservation efforts required from Member States in Article 6(1), Article
6(2) of the Habitats Directive contains specific preventive obligations for Member States that apply to
the special areas of conservation that are part of the Natura 2000 Network. Article 6(2) requires
Member States to 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 the Habitats Directive. The EC guidance document on Article 6 of the Habitats Directive specifies
that this provision creates an anticipatory obligation for Member States to avoid such deterioration or
significant disturbance and is not limited to intentional acts. A likelihood of such deterioration or
significant disturbance is therefore sufficient to trigger the application of Article 6(2). It contains a
155 Article 1(i) Directive 92/43/EEC 156 EC Guidance Document. Managing Natura 2000 sites. The provisions of Article 6 of the Habitats Directive 92/43/EEC,
2000, page 19 157 EC Guidance Document. Managing Natura 2000 sites. The provisions of Article 6 of the Habitats Directive 92/43/EEC,
2000, Page 54. 158 See for instance the Article 17 Habitats Directive Swedish report at
http://cdr.eionet.europa.eu/Converters/run_conversion?file=se/eu/art17/envucgywg/SE_habitats_general_report.xml&conv=3
48&source=remote
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general obligation to take corrective measures with a view to protect the EU’s biodiversity. However,
the occurrence of such deterioration or significant disturbance would trigger the start of infringement
procedures against public authorities or by competent authorities against operators who might have
ignored or disregarded instructions under permits or specific obligations. No strict liability could
derive from this provision.
The threshold for triggering application of the requirements contained in Article 6(2) is considerably
lower than that of the ELD. First of all, the provision is applicable from the moment the disturbance
could be significant (likelihood). Secondly, the EC guidance document argues that, in the context of a
significant disturbance to species, ‘a certain degree of disturbance is tolerated’ and states that ’[I]n
order to be significant, a disturbance must affect the conservation status159
. This concept is
slightly different to the ELD’s criteria that require that the damage has ‘significant effects on reaching
or maintaining the favourable conservation status of such habitats or species’. Under the Habitats
Directive, any disturbance affecting the conservation status should be considered significant; while
under the ELD the damage should have a significant adverse effect on FCS: not any effect on FCS but
a significant effect is required. This slight difference between the Habitats Directive’s interpretation
and the definition of environmental damage under the ELD has led to an interpretation and application
of the ELD by most Member States based on higher thresholds.
The guidance document on the Habitats Directive further purports that it can be regarded as a
significant disturbance in relation to species:160
- any event which contributes to the long-term decline of the population of the species on the site;
- any event contributing to the reduction or to the risk of reduction of the range of the species within
the site;
- any event which contributes to the reduction of the size of the habitat of the species within the site.
The obligations contained in Article 6 of the Habitats Directive require corrective measures to be
taken by the competent authorities for a general deterioration of habitats irrespective of its origin
whilst the ELD requires Member States to oblige operators to prevent or remedy any environmental
damage that is significant and caused by their activities, once they were identified as responsible for
such damage.
The determination of the threshold for ELD implementation should take consideration of the ultimate
objective of the ELD, i.e. to contribute to halting the loss of biodiversity in the EU. It should be noted,
in this context, that the requirements of the Habitats Directive apply to the Natura 2000 protected
areas, the protected habitats and species listed in the Habitats Directive and in the Birds Directive.
These habitats are listed under EU law because they are considered in danger of disappearance, with
small natural range or presenting outstanding examples of typical characteristics of one or more of the
nine biogeographical regions. Similarly the species are listed under EU law because they are
considered endangered, vulnerable, rare or endemic species. The significance of those protected
habitats and species should be taken into account when defining ‘significant damage’. How much
more significant a damage would be if it affects the most threatened or endangered habitats or species
in the EU? Furthermore, in view of the overall objectives of the ELD, it could be argued that a more
automatic and stringent protection for priority areas and priority species could also be foreseen in the
context of the ELD.
159 EC Guidance Document. Managing Natura 2000 sites. The provisions of Article 6 of the Habitats Directive 92/43/EEC,
2000, page 29 160 Idem to the footnote above
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Conclusion: It can therefore be argued that both instruments, the ELD and the Habitats Directive, have
different thresholds while they regulate similar situations that complement each other. On that basis, it
can be concluded that the threshold in the ELD could be similar to the one used under Articles 6(2) of
the Habitats Directive.161
At present, the lack of more detailed specifications concerning the concept of
‘significant’ biodiversity damage under the ELD has led to a non-harmonised implementation of this
concept that triggers the starting point for the application of the ELD. It is therefore applied differently
by EU Member States and disconnected from the Habitats Directive. A more consistent application of
the ELD seems necessary with a view to ensure a greater harmonisation of environmental liability for
biodiversity damage across the EU.
A recent report highlights that, in many Member States, there is a misperception that the ELD only
applies to the most severe instances of biodiversity damage and the application of a very high
threshold for defining ‘significant’ biodiversity damage162
. This misperception needs to be corrected if
the ELD is to pursue its objective of halting biodiversity loss. It is therefore suggested to the
Commission may want to consider that a reasonable application of the Annex I criteria would consider
‘significant damage’ triggering the adoption of ELD remedial measures in cases of protected species
and habitats (under EU and national legislation) suffering any damage from occupational activities
that affects their ability to reach, or maintain their favourable conservation status in the territory of a
Member State; the remedial measures should aim at restoring the damage to baseline condition. This
proposal is in line with the interpretation under Article 6(2) of the Habitats Directive as it pursues the
same objective to ensure favourable conservation status of the protected habitats and species and
therefore the threshold to define significant damage under the ELD should be coherent with the one
used by the Habitats Directive. In other words, from the moment a habitat or species listed under the
Habitats Directive or protected under national law, and therefore endangered or vulnerable, is under
threat or damaged caused by occupational activity, the ELD should apply, requiring operators to take
preventive or remedial measures to ensure their favourable conservation status.
The ELD also excludes from its scope the damages which result from a plan or project by an operator
which was expressly authorised by the relevant authorities in accordance with provisions
implementing Articles 6(3) and 6(4), or Article 16 of the Habitats Directive and Article 9 of the
Birds Directive, or the equivalent provisions of national law on nature conservation (see section
below)
5.2.3 Remediation versus compensatory measures
Remediation measures under the ELD
Where environmental damage has occurred, the ELD imposes a set of immediate requirements upon
the operator of the activity causing the damage. As a first step, the operator shall inform, without
delay, the competent authority of all relevant aspects of the situation. Secondly, he shall take all
practicable containment or management measures to limit or prevent further environmental damage as
well as the necessary remedial measures – Article 6(1) ELD.
161 Issue raised by various Member States consulted during this study. 162 Implementation challenges and obstacles of the Environmental Liability Directive, report for the European Commission,
May 2013, p12
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Article 7 ELD sets out specific requirements for determining the remedial measures to be implemented
by the operator. The overall goal for these measures would be the full remediation of the damaged
natural resources and their services to the baseline condition that would have existed if no damage had
occurred.163
Article 7(1) requires the operator to identify, in accordance with Annex II, potential
remedial measures and to submit them to the competent authority for approval. The competent
authority has the power, at any time, to ask for more information from the operator, to give him
instructions, or to take the necessary remedial measures himself.164
The competent authority is
ultimately in control of the measures to be adopted. It approves any proposals for measures from the
operators and can intervene when it considers the measures proposed are not sufficient or when the
operator fails to comply with its obligations under the ELD. Moreover, it decides which remedial
measures shall be implemented in accordance with Annex II, with the involvement of stakeholders and
of the persons on whose land any remedial measures would be implemented.165
A major weakness in the system, however, lies in paragraph 3 of Article 6 ELD which states that if the
operator fails to comply with the obligations, or cannot be identified, or is not required to bear the
costs under the provisions of the Directive, ‘the competent authority may take these measures itself, as
a means of last resort’ (emphasis added). This provision leaves it up to the competent authorities to
remediate what has been considered ‘significant damage’. In practice, as highlighted in the case study
7 of Section 4 of this Study, there are examples of damages to biodiversity for which no remedial
measures have been taken.
Annex II of the ELD provides further details about the common framework to be followed when
choosing the most appropriate measures to remedy the environmental damage. It provides for three
types of remediation measures: primary, compensatory and complementary.
Primary remediation measures are defined in point 1(a) of Annex II as those measures which return
the damaged natural resources and/or impaired services to, or towards, baseline condition. From an
ecological point of view, these measures are the basic remediation option as they aim to return the
natural resources, as closely as possible, to the situation before the damage occurred. Where primary
remediation does not result in the full restoration of the environment to its baseline condition, then
complementary remediation should be undertaken. In addition, compensatory remediation will be
undertaken to compensate for the interim losses.
Annex II specifies that the purpose of complementary measures is to provide a similar level of
natural resource and/or services, even at an alternative site, as would have been provided if the
damaged site had been returned to its baseline condition. The ELD requires that, where possible, such
an alternative site should be geographically linked to the damaged site, taking account of the interests
of the affected population. To identify the most appropriate complementary measures, equivalency
approaches have to be used that make sure that the measures implemented achieve an equivalent result
to that which would have been achieved by primary remedial measures. Some Member States such as
France or Spain have developed Guidelines specifically on the implementation of the equivalency
approach.
Finally, the ELD foresees the implementation of compensatory measures. It aims to compensate for
the interim losses of natural resources that result during the period from the date of the damage until
163 EC Information brochure: Environmental Liability Directive. Protecting Europe’s natural resources, 2013, page 14 164 Article 6(2) ELD 165 Articles7(2) and 7(4) ELD
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primary remediation has achieved its full effect.166
It therefore consists of additional improvements
to protected natural habitats and species either at the damaged site, or at an alternative site. Such
interim losses are defined as those losses which result from the fact that the damaged natural resources
or services are not able to perform their ecological functions, or provide services to other natural
resources, or to the public until the primary or complementary measures have taken effect. A specific
reference to habitats and species is made under Article 2(12) ELD defining the concept of natural
resources.
The identification of the appropriate compensatory measures also requires the use of equivalency
approaches in order to determine which alternative sets of measures could be considered as sufficient
to compensate for the interim losses undergone by the EU’s biodiversity, pending its recovery. Those
measures may well go beyond the measures foreseen under the Habitats Directive to restore the
habitats and species to their favourable conservation status. They certainly go beyond Article 6(4) of
the Habitats Directive where compensatory measures are also required.
Annex II of the ELD also provides guidance on the evaluation of the various remedial options. Point
1.3.1 of Annex II lists the various criteria to be considered during the evaluation, such as the effect of
the options on health and safety, cost, likelihood of success, the timeframe for, and extent of
restoration, as well as various impacts. Annex II explicitly notes that primary measures that do not
fully restore the damaged site may be chosen if complementary and compensatory measures are
increased to provide a similar level of natural resources – if these could be provided at a lower cost.
In brief, the concept of remedial measures exclusively relates to the situation in which environmental
damage has occurred. It aims to contain or limit the damage and to remedy the damage with a view to
return to the baseline condition before the damage occurred, to enable favourable conservation status.
The remedial compensatory measures under the ELD go beyond the compensation measures under the
Habitats Directive as they aim to compensate for the interim losses due to an incident of
environmental damage, ensuring additional improvements to the existing biodiversity conservation
status prior to the incident.
Compensatory measures under Article 6(4) of the Habitats Directive
The Habitats Directive regulates the a priori measures to be undertaken when a plan or project is
likely to have a significant effect on a Natura 2000 sites, and the conditions for compensatory
measures that should be carried out if the plan or project is carried out due to imperative reasons of
overriding public interest.
Articles 6(3) and 6(4) of the Habitats Directive establish the circumstances under which a project or
plan, likely to have significant negative effect for a protected site included in the Natura 2000
Network, may or may not be authorised by the competent authorities. Article 6(3) requires an impact
assessment to be carried out in view to the site’s conservation objectives. It further specifies that the
competent authorities of the Member State shall only agree to such a plan or project after having
ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after
having obtained the opinion of the general public. Consistently with this provision, the Danish
Guidance document on the implementation of the ELD considers that significant damage under the
liability regime would always include the cases where the biodiversity damage affects the integrity of
166 Definition of complementary remediation measures in point 1(b) of Annex II ELD
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the Natura 2000 sites. In its Article 6(4), the Habitats Directive lists the exceptional reasons for which
a project or plan could still be allowed and for which compensatory measures should be adopted in
this case.
The impact assessment on the conservation objectives of the site is a procedure that takes place
before the activity foreseen in the plan or project is approved or authorised, and before any
environmental damage has occurred in the protected site. It aims to assess the consequences of any
project activities in the protected site and, if such activities would adversely affect the integrity of the
site the competent national authorities should not agree to it. The threshold for application of Article
6(3) is low since the likelihood of any significant effects on the site is sufficient to require a full
impact assessment to be carried out before the authorisation of a project. The significant effect is not
defined apart from the reference to the integrity of the site. The EC Guidance document on Article 6
develops a methodology for the assessment of the significance of the impacts on biodiversity but
without definition.
The Guidance proposes a stage-by-stage approach for the assessment, starting with the screening
process whereby the impacts upon a Natura 2000 site of a project or plan, either alone, or in
combination with other projects or plans, would be considered. The screening process should be based
on evidence and information gathered. If the screening leads to the need for an assessment of the
project’s significant effects on a Natura 2000 site, the Guidance considers that both an Article 6
assessment and an EIA, in accordance with Directives 85/337/EEC and 97/11/EC, will be necessary.
The significance test may require little more than consultation with the relevant nature conservation
agency. In other cases, it may be necessary to carry out further investigations to establish whether or
not the effects on a project or plan are likely to be significant. A common tool for determining the
significance of effects is through the use of key indicators. Some indicators, such as percentage of
habitat lost, may be more significant for priority habitat types.
However, the Habitats Directive foresees the possibility that a plan or project may be authorised in
spite of a negative assessment of the implications for the natural habitats and protected species
affected by such project or plan. The Directive acknowledges that there might be imperative reasons
of overriding public interest, including reasons of a social or economic nature, that could justify
carrying out the project in spite of the adverse consequences for the Natura 2000 Network. This could,
for instance, include major infrastructure works aimed at fostering regional development by improving
transport facilities. Furthermore issues of public health or safety can also be raised. In such cases, the
competent authorities are required to adopt compensatory measures to ensure the coherence of the
Natura 2000 Network. For priority areas or priority species, the requirements are more stringent and
involve the explicit opinion of the European Commission.
The term ‘compensatory measures’ is not defined in the Habitats Directive. The EC Guidance
Document on Article 6 of the Habitats Directive specifies that ‘the compensatory measures constitute
measures specific to a plan or project, additional to the normal practices of implementation of the
‘Nature’ directives. They aim to offset the negative impact of a project and to provide compensation
corresponding precisely to the negative effects on the species or habitat concerned. The
compensatory measures constitute a last resort. They are used when the other safeguards provided for
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by the Directive are ineffectual and the decision has been taken to consider, nevertheless, a
project/plan having a negative effect on a Natura 2000 site’.167
The compensatory measures need to ensure the coherence of the Natura 2000 Network. The measures
can consist of: creating a new site with a similar or enlarged habitat to be integrated in the Network;
improving a habitat that is proportional to the loss due to the project; in exceptional cases, proposing a
new site under the Habitats Directive – but any measures taken should benefit the same habitats or
species, in the same region and providing similar functions to those of the original site.168
They are
thus comparable to the complementary measures under the ELD although different.
Comparable measures?
The compensatory measures under Article 6(4) of the Habitats Directive are comparable to the
complementary measures under the ELD.169
As stated in legal literature: ‘In the context of the ELD,
complementary measures are taken ex post to compensate for the fact that primary remediation does
not result in fully restoring natural resources and/or services to the baseline condition. The experience
with compensatory measures in the context of the Habitats Directive can be used as a source of
inspiration in the context of the ELD’.170
The same author notes that competent authorities should be
looking at the criteria for the selection of sites for the Natura 2000 Network when they design the
compensatory measures for a project and ensure that they provide the properties and functions
comparable to those which had justified the selection of the original site and argues that such criteria
should also be applied to the selection of remedial measures for sites that are part of the Natura 2000
Network.
On the other hand, the compensatory measures under the ELD are to be implemented by an operator,
following the occurrence of environmental damage, and aim at ensuring additional improvements to
compensate for interim losses undergone by the affected natural resources during the period from the
date of the damage until primary remediation has achieved its full effect. The compensatory measures
under Article 6(4) of the Habitats Directive are implemented by a competent authority and aim at
compensating for the loss of habitats or species in a site which will be lost due to a project that, even
though it would damage biodiversity, is approved for reasons of overriding public interest. The aim of
the measures under Article 6(4) of the Habitats Directive is to offset the loss of a site or its integrity
within a coherent Natura 2000 Network, or the damage on habitats and species including deterioration
of a protected habitat or disturbance of a protected species, due to the implementation of projects or
plans authorised by a government for reasons of overriding public interest. Therefore while both
concepts are comparable they are different: While the compensatory measures under ELD aim to
compensate ex post for interim losses and they are carried out by operators; the compensatory
measures under the Habitats Directive aim at compensating for a future biodiversity loss caused by a
project planned and authorised (without improvements necessarily) and are undertaken by the national
authorities.
167 EC Guidance Document. Managing Natura 2000 sites. The provisions of Article 6 of the Habitats Directive 92/43/EEC,
2000, page 45 168 EC Guidance Document. Managing Natura 2000 sites. The provisions of Article 6 of the Habitats Directive 92/43/EEC,
2000, page 46-47 169 G.M. Van den Broek, Environmental liability and nature protection areas. Will the EU Environmental Liability Directive
actually lead to the restoration of damaged natural resources?, Utrecht Law Review, Volume 5, Issue 1 (June) 2009, page 129 170 Ibid
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It needs to be noted that the compensatory measures under the ELD may be undertaken by the
competent authorities in case the liable operator fails to do so (in that case reimbursement of costs will
be searched for) or where there is no liable operator. However this is left up to the discretionary power
of decision of the public authorities which may not always ensure their adoption.
The costs of any compensatory measures under the ELD will be borne by the operator of the activities
causing environmental damage while under the Habitats Directive the competent authorities may
require the operator implementing the plan/project to bear the costs in line with the ‘polluter-pays
principle’. However, the ELD involves a system of financial guarantees to ensure the effectiveness of
the liability scheme.
The EC Guidance Document on Article 6(4) of the Habitats Directive sets out detailed criteria for
designing compensatory measures focused exclusively on ecological factors relating to the
compensation of the biodiversity losses to be caused by the implementation of the plan/project, such
as: the relation to the reference conditions defined after the characterisation of the biological integrity
of the site concerned; the effectiveness of the compensatory measure; its technical feasibility; the long-
term implementation. The Guidance Document on Article 6 of the Habitats Directive specifies
technical requirements for each of the criteria with a view to ensure a thorough assessment of the
impacts of any compensatory measures is carried out and that any compensatory measures, whilst
remaining exceptional, meet a minimum requirement to ensure the coherence of the Natura 2000
Network.
In contrast, Annex II of the ELD includes other criteria that are not exclusively related to the adverse
effects on biodiversity in the site, such as, for instance, the cost of implementation of the options.
Similarly, the choice of the remedial measures to be undertaken would not only depend on the
effectiveness of the primary remedial measures, or the complementary and compensation measures,
but external reasons, such as cost, as well. It could be argued that the requirements under Article 6(4)
of the Habitats Directive should be introduced to ensure the adequacy of any compensatory measures
when adopted in the framework of the ELD.
Overall, it can be concluded that the effects of the complementary and compensatory measures under
the ELD are more ambitious and stringent than those of the Habitats Directive – under Article 6(4).
Compensatory measures under the Habitats Directive can only be authorised in exceptional
circumstances, and the requirements might be tighter for priority species and priority habitats. Under
the ELD, the complementary and compensatory measures are not related to the conflicting interest of
the damaging project or activity, but rather, to the effectiveness of the remediation measures and the
requirement to compensate for the interim losses undergone by the EU’s biodiversity, pending its
recovery. The compensation for interim losses goes beyond the Habitats Directive which does not
require it. Under the Habitats Directive the site would be lost and would not be recovered – the
compensatory measures aim at replacing it. Under the ELD, the compensation for interim losses would
provide an improvement on the conservation status of the damaged habitats or species from the
baseline condition once they are recovered.
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5.2.4 Preventive measures
Both the ELD and the Habitats Directive refer to measures with a view to preventing any damage to,
or deterioration of, biodiversity in protected areas. Moreover, the principle of prevention can be
considered a core objective of both legal instruments. The overall objectives to maintain the
favourable conservation status of the natural habitats and protected species covered by both schemes,
relate to this concept of prevention of any damage, or deterioration, of the EU’s biodiversity.
In the context of the ELD, establishing an EU-wide liability scheme for environmental damage, with
important financial consequences for operators, has a deterrent effect and acts as an incentive for
operators to prevent any environmental damage occurring – thus limiting any financial consequences
at a later stage. Moreover, the ELD contains explicit preventive procedural and substantial
requirements when environmental damage has not yet occurred but there is an imminent threat of such
damage occurring.
The Habitats Directive requires Member States to avoid any deterioration of natural habitats and
significant disturbances of species in Special Areas of Conservation that are part of the Natura 2000
Network. This requirement applies at all times, in contrast to the requirements of Articles 6(3) and
6(4) of the Habitats Directive which apply only in the context of the assessment procedure for the
authorisation of plans and projects that are likely to affect the integrity of the network’s biodiversity.
Preventive measures under the ELD
Where environmental damage has not yet occurred but there is an imminent threat of such damage
occurring, Article 5 of the ELD requires the operator to immediately take the necessary preventive
measures. In its Article 2(10), the ELD defines such preventive measures 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. This definition needs to be understood in
relation to the definition under Article 2(1) of ELD regarding environmental damage to biodiversity
which is ‘any damage that has significant adverse effects on reaching or maintaining the favourable
conservation status of such habitats or species’. Preventive measures, therefore, are those actions
applied before a significant damage would occur. It covers different situations: cases where any
incident causing damage has not yet occurred or cases where the event has occurred but the
‘environmental damage’ to biodiversity in the sense of the ELD has not yet occurred - is not
significant yet. (please see case study 4 in chapter 4)
The legal interpretation ‘strictu senso’ of preventive measures would therefore consider those
measures carried out before any incident may occur or before any incident may cause ‘significant
damage’. Therefore, measures to contain the damage from going further and becoming significant
would fall under the consideration of preventive measures under the ELD, even if an event and non-
significant damage has already happened.
The above mentioned interpretation differs from the interpretation that preventive measures are only
those carried out before the incident causing any damage occurs. This interpretation has three major
failures:
(a) it does not comply with the wording of the Directive which does not refer to incident or even but
to environmental damage. In this sense, environmental damage under the ELD is any damage that
has significant effects on the FCS of biodiversity.
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(b) it frames a discontinuity in the logical application of the ELD. In case of a threat of biodiversity
damage the ELD would be applicable before the incident/damage happens. Once the damage
happens, the preventive measures to minimize the damage to prevent it from becoming significant
would not be considered under the ELD but under sectorial legislation. However, the ELD would
be applicable again once the damage is determined as significant and remedial measures need to
be taken. This discontinuity is more important in those Member States where the threshold for
‘significant damage’ is very high, covering mainly severe cases.
(c) it jeopardises the effectiveness of the ELD in relation to the achievement of its objectives. The
potentially applicable sectorial legislation is not based on the ‘polluter pays principle’ and does
not purports for the liability of operator; it is rather based on the responsibility of public
authorities unless there is fault (and sometimes negligence) in implementing of permits, regulatory
or legal requirements by the operator. Therefore tax payers would bear the cost of biodiversity
damages caused by operators, against the objective of the ELD.
An example of the problems generated by this interpretation are expressed in the French Guidance
document 171
which considers that any measures undertaken after the incident causing the damage but
before the damage to biodiversity is significant and carried out with the aim to prevent the damage
from becoming significant, would not fall under the ELD. In other words, any measures that would be
effective to prevent the damage becoming significant would never be considered part of the ELD
regime. In those cases, the measures would be considered emergency measures under sectorial
legislation. However, if the measures carried out had not been effective and the damage had become
significant, the remedial measures would fall under the ELD, including emergency remedial measures
to prevent further damage.
The preventive measures should be implemented as from the occurrence of an imminent threat of
environmental damage. This means that there should be an indication that environmental damage, as
defined in the ELD, is close to occurring. As mentioned above, the definition of damage to protected
species and natural habitats covers any damage that has significant adverse effects on reaching or
maintaining the favourable conservation status of such habitats or species assessed with reference to
the baseline condition. As a consequence, an operator is required to take the preventive measures
under the ELD when there is an imminent threat of significant implications for the favourable
conservation status of the protected natural habitats or species.
However, it is worth noting that if the threshold of significant biodiversity damage is harmonised with
the one used under Article 6(2) of the Habitats Directive as proposed in this Study, the number of
preventive measures carried out once there is damage to prevent it from becoming significant would
be very low as the damage affecting protected habitats or species would be considered significant and
remediation measures would be applied. In other words, if the concept of significant damage under the
ELD would cover any damage on protected species and natural habitats (under EU or national
legislation) that affects their ability to reach, or maintain their favourable conservation status then
preventive measures would be taken from the moment there is a threat that an event would cause
significant damage in terms of affecting the favourable conservation status of the protected habitats
and species under the Habitats and Birds Directive or national legislation.
The ELD includes information requirements for operators regarding all relevant aspects of such a
situation, in particular, when the preventive measures have not dispelled the imminent threat of
171
The Environmental Liability Law (EEL) and the equivalency methods – Methodological Guide, p.23
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environmental damage. The competent authorities can then give instructions to the operator or take
any necessary preventive measures itself.
Whilst currently, there is no obligation under the ELD for operators to have any type of financial
security to ensure the financial capacity to cover the risk of environmental damage, several Member
States have opted to impose it as a mandatory requirement. Various insurance companies have
developed specific policies to cover the risk of environmental damage for the professional activities
listed in Annex III. However, the conditions of an insurance contract might require that an operator
has taken sufficiently adequate environmental management and safety measures, in line with normal
practice, to limit any further damage in order for later remedial measures to be covered by the
insurance. This would, however, depend of the specific conditions of an individual insurance contract.
Preventive measures under Article 6(2) of the Habitats Directive
Article 6(2) of the Habitats Directive also contains preventive requirements in relation to biodiversity
loss. It requires Member States to take appropriate steps to avoid, in the Natura 2000 Network sites,
the deterioration of natural habitats and the habitats of species as well as the significant disturbances of
species in relation to the objectives of the Directive, which include their maintenance or restoration at
a favourable conservation status.
The EC Guidance Document on Article 6 of the Habitats Directive specifies that this article should be
understood as requiring Member States to take all the appropriate actions which they may reasonably
be expected to take, to ensure that no deterioration or significant disturbance occurs. This
responsibility is not limited to intentional acts, but could cover unintended events as long as they are
predictable.172
In contrast to the ELD, the Habitats Directive places the responsibility for the
implementation of any preventive measures, in this case, only on the competent authority. It is worth
noting that, contrary to the ELD, the requirements of Article 6(2) only apply to those natural habitats
and protected species that are part of the Natura 2000 Network.
The threshold for application of the requirements of Article 6(2) of the Habitats Directive is lower than
that of the ELD, however the ELD scope is broader. The EC Guidance Document clearly interpreted
that ’[I]n order to be significant a disturbance must affect the conservation status173
. The ELD’s
criteria require that the damage has ‘significant effects on reaching or maintaining the favourable
conservation status of such habitats or species’. While under the Habitats Directive, any disturbance
affecting the conservation status should be considered significant; under the ELD the damage should
have a significant adverse effect on FCS: not any effect on FCS but a significant effect is required
under the ELD.
Furthermore, under the Habitats Directive the likelihood of damage is enough to trigger its application
while the ELD triggers preventive actions when there is sufficient likelihood that environmental
damage will occur in the near future.
As specified in the EC Guidance Document on Article 6, disturbances are to be assessed in the same
way as deterioration as long as they trigger change in indicators of the conservation status of protected
172 EC Guidance Document. Managing Natura 2000 sites. The provisions of Article 6 of the Habitats Directive 92/43/EEC,
2000, page 25 173 Idem to the footnote above, page 29
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species in such a way as to affect the conservation status of the species concerned. Both, deterioration
and disturbance are to be assessed against the objectives of the Directive174
.
The preventive measures required in view of Article 6(2) of the Habitats Directive should avoid the
deterioration of the protected habitat or the disturbance of the protected species. In this context, a
deterioration or significant disturbance is assessed in view of the favourable conservation status of the
habitat or species.
Both the Habitats Directive and the ELD use the favourable conservation status as the point of
reference. It is therefore the favourable conservation status of a habitat or species which determines
the limit of an acceptable deterioration or disturbance of the habitat or species. Where the conservation
status was favourable at the time of the deterioration or disturbance, this will be the reference point.
Where the conservation status of a habitat or species was not yet favourable, the assessment will take
place against the baseline condition aiming to improve the conservation status announced at the time
of the setting-up of the Natura 2000 Network.
However, it is worth noting that in practice, in a case of damage to biodiversity under the ELD the
competent authorities should and can realistically assess the conservation status of habitats and species
in relation to the site and not within the European territory of a Member State or the natural range of a
specific species (as established under Article 2(4) of the ELD. This aspect may be another cause for a
low number of ELD cases and should be considered for amendment.
The deterioration of a habitat should be understood as a physical degradation of a habitat which can be
assessed through a series of indicators. For this assessment, a Member State is required to take into
consideration all the influences on the environment hosting habitats.175
If these influences result in
making the conservation status of the habitat less favourable than it was before, the deterioration can
be considered to have occurred.176
The Guidance Document further specifies the factors to be
considered in view of this assessment, such as the stability of the natural range and areas covered, the
existence of functions and structure for long-term maintenance, and the favourable conservation status
of its typical species. The threshold for triggering the application of Article 6(2) covers nearly all
negative variability in the habitat concerned.
In relation to protected species, the Habitats Directive explicitly refers to the idea that a disturbance of
protected species shall be covered by the requirements of Article 6(2) if it is significant. However the
EC Guidance Document on Article 6 of the Habitats Directive states that disturbances are assessed in
the same way as deterioration as long as they trigger change in indicators of the conservation status of
the species concerned. It is not necessary to prove that there will be a real and significant effect, since
the likelihood is enough to justify corrective measures.177
The EC guidance document specifies that, in
the context of a significant disturbance to species, ‘a certain degree of disturbance is tolerated’ and in
order to be significant, a disturbance must affect the conservation status of the species. It states that
deterioration or disturbance is assessed against the conservation status of species and habitats
concerned.
174 Idem to the footnote above, page 25 175 Idem previous footnote, page 28 176 Idem previous footnote, page 28 177 Idem previous footnote, page 26
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Events contributing to the long-term decline of the population of a species, the reduction or likely
reduction in the foreseeable future of the species, or the disappearance of a sufficiently large habitat,
would be regarded as significant disturbances.178
The same criteria are considered by the ELD, when
defining conservation status in respect of species under Article 2(4b). The EC Guidance document on
article 6 of the Habitats Directive states that Article 6(2) applies permanently in Special Areas of
Conservation and that ‘it can concern past, present or future activities or events – for instance, the case
of a toxic spill affecting a wetland – this article would mean that all preventive measures should have
been taken to avoid the spillage, even if its location is distant from the wetland’.179
Complementary preventive measures: the need for harmonisation of thresholds
The preventive requirements of Article 6(2) of the Habitats Directive would therefore apply in many
circumstances where the current ELD might not apply due to the different threshold - besides the cases
falling outside the ELD scope such as when there is no occupational activity involved.. The competent
authorities will thus have the overall responsibility to avoid any deterioration of the natural habitats or
significant disturbance of protected species regardless of the type of activities having caused or being
likely to cause environmental damage. Article 6(2) of the Habitats Directive is not limited to any list
of activities. Only when an occupational activity has caused biodiversity damage and when it is
considered that it has a significant effect on the FCS, or there is an imminent threat of such damage,
shall the operator be liable for the implementation of preventive measures, under the ELD.
Since the entry into force of the ELD, Member States’ authorities can face situations of imminent
threat, for example to a Natura 2000 site resulting from the activity of an operator where they have to
assess the situation in light of both directives with the different thresholds to be reached, or the
likelihood of it, in order to take the required measures according to one regime or another. This
difference in criteria and procedures may lead to a fragmented application of both instruments. For
example, according to the analyses of Member States’ systems, carried out for this report, some
Member States, e.g. Denmark, have established the rule that when a case is considered to fall within
the ELD, the rules under ELD have priority and should be applied instead of the relevant act reading
the damage, e.g. nature legislation.180
In countries like the UK, France or Germany, the competent
authorities would first apply the existing regimes under sectorial legislation (see Case Study 1 and
Annex to this Study). However, this systematic preference for Member States’ intervention for
preventive actions in application of Article 6(2) of the Habitats Directive, leads to situations
whereoperator responsibility in application of ELD for cases concerning a Special Area of
Conservation is not activated, hindering the ‘furtherance’ of the ‘polluter-pays principle’ and leaving
de facto operators free from any liability incentive to act responsibly.
In certain Member States, the interaction between Article 6(2) of the Habitats Directive and the ELD
is limited, as it is understood that the Habitats Directive will apply until the higher threshold for ELD
application has been reached. Below the threshold, the competent authority of the Member State will
be responsible for the implementation of corrective measures that aim to avoid any deterioration of the
natural habitats or significant disturbances of protected species covered. Once the threshold for
application of the ELD has been reached, the operator becomes responsible for the implementation of
preventive and, ultimately, remedial measures under the ELD. The operator then becomes responsible
178 Idem previous footnote, page 29 179 European Commission. 2000. Managing Natura 2000 Sites: The provisions of Article 6 of the ‘Habitats’ Directive
92/43/EEC, 3.2 180 Environmental Liability Directive Guidelines, p.21 and 22
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for the implementation of the necessary measures whilst the competent authority remains responsible
for the acceptance and approval of proposed measures or, in absence of the operator, eventually for the
implementation of such measures. Also in the situation in which no causality can be proven, or an
operator cannot be identified, the requirements of Article 6(2) of the Habitats Directive would ensure
that the necessary corrective measures to avoid any deterioration or disturbance are adopted by the
competent authorities. Further to the preventive objective of Article 6(2) of the Habitats Directive,
there is a remediation obligation derived from any legal enforcement action arising from the breach of
this provision. Should the deterioration or the significant disturbance occur, it would be considered a
breach of Article 6(2) of the Habitats Directive. In this case, it could trigger the start of enforcement
actions that are ex post and complementary to the actions foreseen by the ELD aiming to determine
the strict liability of operators or, eventually, the liability at fault for occupational activities not listed
in Annex III.
In conclusion: The Commission may want to consider clarifying the concept of preventive measures
under the ELD to define any measure undertaken to prevent the damage from happening and therefore
measures prior to the incident but also to after the damage in order to prevent it from becoming
significant and align the concept of significant damage with the definition used under Article 6(2) of
the Habitats Directive.
It is worth noting that while the ELD would have a more limited scope since it only applies to
occupational activities, the regime could apply to more natural habitats or protected species than those
covered by Article 6(2) of the Habitats Directive because the ELD applies also to protected species
and habitats outside of special areas of conservation under the Habitats and Birds Directive.
Furthermore the ELD may expand its scope due to the possibility for Member States to extend the
level of protection provided by the ELD to domestically designated habitats and species that are not
protected pursuant to the Habitats and Birds Directives. Indeed, the natural habitats and protected
species covered by the Habitats Directive that are not part of the Natura 2000 Network are not covered
by Article 6(2) which only applies to ‘special areas of conservation’. The ELD can therefore provide
for an additional level of protection for those areas not covered by Article 6(2) of the Habitats
Directive and in addition to Articles 12 and 13 of the Habitats Directive prohibiting damaging actions
to species.
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6 The added value of the ELD
The research carried out in this Study shows the challenges of the implementation of the ELD at
national level. It also presents the need for harmonisation between the ELD and the Habitats Directive
in relation to key concepts such as significant biodiversity damage. However, despite those challenges,
the following elements are highlighted as providing the ELD with added value to other pieces of
legislation.
1. Strict liability and the Polluter-Pays Principle
The added value of the ELD is the possibility to attribute strict liability to any Annex III operator for
damage to biodiversity regardless of their fault or negligence.
Fault based liability already exists in different national or sectorial legislation at national or EU level.
Biodiversity damage can also be prevented or remediated through the provisions of Article 6(2) of the
Habitats Directive requiring Member States to adopt the necessary measures to avoid deterioration of
habitats or significant disturbances to species in relation to their favourable conservation status. In this
sense, should the damage occur, the responsibility would lie in the public authorities and eventually
enforcement measures could be initiated for the identification of the operator causing the damage due
to fault, negligence or breach of the conditions set out in the permit regulating the operator’s activity.
However, the proof of fault or negligence is not always easy, as clearly evidenced in the toxic spill
affecting the Doñana National Park in Spain in 1998 when the dam of the Aznalcóllar mine tailings
lagoon – belonging to the company Boliden Apirsa – burst resulting in the release of 6 million m³ of
acidic water and toxic sludge high in heavy metals.
One of the main objectives of the ELD is to set up a common framework or, in other words, to
harmonise the liability of operators for environmental damage; the research of the ELD
implementation by EU Member States shows that this objective has not been sufficiently achieved and
further harmonisation might be necessary. The liability should be applied in all Member States to the
same cases and therefore the threshold for defining significant biodiversity damage required to trigger
application of the ELD for biodiversity damage should be harmonised.
Whilst strict liability is applied to biodiversity damage caused by Annex III activities, biodiversity
damage caused by non-Annex III activities is not subject to strict liability. There is no justification
under the ‘polluter pays principle’ for that differentiation. All occupational activities causing damage
to protected biodiversity should be subject to strict liability. Moreover, the permit defence and the
state-of-the-art defence weaken the strict liability and consideration should be given to delete the
reference to them under the ELD.
2. Common liability framework at reasonable costs to society – the Polluter Pays Principle
The ELDs objective to establish a common framework for the prevention and remedying of
environmental damage at a reasonable cost to society is based on two elements: the existence of a
common framework for prevention and remediation as well as the requirement for the financial
liability not to burden on society.
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Further to the possibility to apply strict liability and make operators financially liable of their
activities, one of the benefits of the ELD is that costs for damages are borne by operators and it
recognises the enforcement authorities’ wider powers to recover costs from liable operators, in cases
where environmental damage, or an imminent threat of such, is established and the operator is
identified and liable.
However, costs associated with assessment of significance of environmental damage, or its threat, may
have a deterrent effect on the application of the ELD regime by competent authorities. The procedures
for those assessments should be harmonised with those carried out under other sectorial legislation,
e.g. the Habitats Directive. Furthermore, financial mechanisms to cover their implementation are
needed (see Case Study 6).
The uncertainty on interpretation of key concepts for the implementation of the ELD such as
significant or preventive measures jeopardise the applicability of the liability framework of the ELD.
Certain preventive measures are carried out as part of sectorial legislation emergency measures which
do not allocate liability to operators. Thus, the costs are borne by society in contradiction of the
‘polluter pays principle’.
The diverging ways of interpretation and implementation of the ELD had as a consequence that, in
similar situations, operators and society will be treated differently. Evidence shows that in similar
cases of biodiversity damage, in certain Member States the competent authorities would remain
responsible for biodiversity damage whereas, in other Member States, the operator of the occupational
activity having caused such damage would be responsible for the implementation of corrective or
remedial measures. This can be considered as affecting the level playing field for operators across the
EU and thus creating distortions in the internal market.
The added value of the ELD can only be achieved if the uncertainty on the application of key concepts
or the difficulties in determining significant damage are solved and the ELD is applied to all cases of
damage caused by operators .
3. Preventive measures and emergency preventive measures
One of the added values of the ELD is that it establishes a system where the operator is required to act
to prevent an imminent threat of damage but it gives a possibility to the competent authorities to act
themselves in case no action to prevent the imminent threat of environmental damage is undertaken by
the operator. The ELD regime covers the gap where there is no legislation establishing emergency
systems to prevent the damage.
In several Member States the current ELD scheme is based on a procedure which is different to the
conventional emergency procedure which may be initiated under sectorial legislation when the
damage caused is not considered significant by the competent authorities and, therefore, does not
trigger the application of the ELD. Sectorial legislation, such as the Industrial Emissions Directive
does not require the operators to adopt preventive measures to avoid an imminent threat of damage.
The responsibility therefore would lie on the authorities. In case of the competent authorities acting
under Article 6(2) of the Habitats Directive, only applicable to Natura 2000 areas, the costs of
preventive actions would also be borne by the tax payers. Clarification on the concept of preventive
measures would strengthen the ELD’s added value covering the gaps and ensuring that operators take
responsibility in preventing damage.
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4. Remedial measures: primary, complementary and compensatory
The current ELD procedure provides for an additional step to the remediation of the damage in
comparison to the Habitats Directive or other conventional systems. The ELD requires compensating
for the interim losses going beyond pure restoration to the baseline condition. The Habitats Directive
requires the adoption of measures to restore, rehabilitate or replace damaged natural resources, or
impaired services, or to provide an equivalent alternative to those resources or services. Furthermore
the French Report submitted to the Commission under Article 18 of the ELD181
refers to the fact that
the ELD introduced a requirement for compensatory remediation for interim losses that do not exist in
other systems.
The introduction by the ELD of the requirement for compensatory remediation for interim losses has
been highlighted in the UK Report to the Commission under Article 18 of the ELD as an added value
to other existing systems. Furthermore, one of the benefits of the ELD is that it recognises the
enforcement authorities’ wider powers to recover the costs of remedial measures from responsible
operators, but only in cases where significant environmental damage is established and the operator is
liable. On the other hand, costs associated with assessment of significance of environmental damage,
or its threat, may have a deterrent effect on application of the ELD regime in the UK.
5. Horizontal procedure
The ELD provides for a procedure covering all types of damage which might be the responsibility of
different bodies and competent authorities. Furthermore, the damage might be caused by several
operators. The ELD procedure is the only instrument that enables de-blocking cases with several liable
operators and/or multiple damages regulated through different sectorial legislation and under different
responsible bodies. The ELD procedure would therefore be the instrument to address all types of
damages, responsible authorities with a single procedure. It would also enable the handling of the
dossier in a way that incorporates all liable operators.
6. Stakeholders’ rights: public participation and access to justice
In some countries like Germany, NGOs, or interested parties, have the right to request action or legal
review only under the legislation transposing the ELD – Article 12, but not under legislation
regulating Annex III activities or the Habitats Directive. Furthermore, in the UK the nature
conservation regime does not contain provisions for ‘interested parties’ to submit comments in the
procedure for biodiversity damage under the Wildlife and Countryside Act 1981, or the Conservation
of Habitats and Species Regulations 2010/490182
while they do under the transposing legislation of the
ELD.
However, NGOs should be enabled to request action to ensure the favourable conservation status of
habitats and species protected under EU law but also under national legislation. There is no
justification for differentiating the stakeholders’ rights due to the scope of the ELD. Similarly
interested parties rights should be the same under the nature conservation legislation or the
environmental liability legislation.
181 See Annex to this Study. 182
Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 361.
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7 Register of information sources
7.1 Introduction
The aim of this task was to develop a register of information sources and methodological approaches
at EU and national levels in order to determine the baseline conditions of biodiversity in a particular
area that has been or will be subjected to environmental damage. The key objective is to improve the
monitoring, comparison and assessment of the damages to biodiversity that can help inform the
required preventive and remedial measures to be taken.
The register is intended to include the information sources for baseline conditions at both the EU level
and at the state level; the latter was given the priority considering the needs and practical application
requirements in Member States. It is different from the analysis of legal requirements, as the register
does not confine itself to the selected Member States but rather to collecting as much information as
possible for all the Member States. Such a register should capture the key information sources for all
Member States to enable the improved implementation of ELD to prevent and restore biodiversity
damage at a larger scale. Due to the wide definition and scope of biodiversity, the register drawn up
under this task is to be considered as a necessary and preliminary step in creating a tool to assess the
biodiversity status and support the implementation of the ELD. The register aims not only at gathering
but also harmonizing relevant biodiversity information for easier access by ELD competent
authorities, operators and other relevant actors. It is to be noted that the register has not considered the
sources at sub-state and local level due to time and resource constraints.
7.2 Approach
The ELD reports submitted by the Member States contain scarce information on sources and
methodologies of biodiversity baseline data used in the ELD application. In parallel with the legal
analysis of these reports in the context of biodiversity damage carried out by Milieu, research on the
sources and methodologies of biodiversity baseline data was undertaken by IUCN (International
Union for Conservation of Nature).
Compiling the register involved an in-depth online search for biodiversity related databases and
information sources at the EU and Member State level. International sources of information, such as
country reports to the Convention on Biological Diversity (CBD) and the Global Biodiversity
Information Facility (GBIF) were utilised as an entry point for national information sources and this
was particularly useful when searching for information in a common language. The research benefited
from the ELD Training Handbook, the guidelines on environmental liability of some member states
and EU reports produced in association with the topic of biodiversity conservation or the
implementation of ELD (see references). Direct responses to our request for additional information
were provided by ELD focal points from Spain, Estonia, Bulgaria, Germany, Poland, and France
regarding the baseline information and methodological approaches. A summary is included in the
country profiles below.
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7.3 Overview of the register
The complete register is made up of 30 worksheets in Excel and comprises: one worksheet for baseline
data sources at the EU level; one to describe the methodological approaches used for setting up
baseline data; and a worksheet for each of the 28 Member States capturing country specific baseline
data sources.
The information for baseline data sources has been categorised by type and scope, and includes a brief
description, URL (internet link to the website), conditions for access (i.e. what language the
information is in and whether it is freely accessible or not) and lastly the hosting agency of the site.
For easier reference, the identified sources of baseline data are colour-coded in 4 categories:
1) information sources directly related to the ELD,
2) baseline information directly related to Birds and Habitats Directives,
3) baseline information related to all species and habitats, and
4) supplementary information of environment data in general.
However, as the register focuses on biodiversity baseline information sources to be used in the case of
biodiversity damage, categories 2) and 3) have been the main area of the study. No baseline
information sources directly related to biodiversity damage under the ELD have been identified. The
information sources listed under category 1) are only those referring to the ELD in general. Category
4 sources of supplementary information of environmental data in general are indicative and only
included as a side product of the biodiversity focused research.
7.4 Baseline Information Sources at the EU Level
The EU Biodiversity Register consists of 53 data sources and includes a range of information on
biodiversity that can directly aid the implementation of the ELD across the European Union. The
European register was developed by conducting a thorough web search.
The type of sources in the EU Register range from: knowledge portals or data centres, i.e. websites
that cover a broad range of topics and have links to important biodiversity information; databases,
where one can simply search and access the required baseline data; and maps, publications, reports
and indicators. The sources of information cover a range of biomes for species and habitats from
terrestrial, freshwater and marine environments, while describing environmental related topics such as
soil, water management, and waste amongst others.
The main sources of information that have proved to be the most useful are the Natura 2000 map
viewer and the European Nature Information System (EUNIS). These websites provide biodiversity
baseline data for the Natura 2000 network but do not cover the rest of Europe. Unfortunately, they are
not very user friendly with regards to obtaining baseline biodiversity data, as they are slow and/or the
information is not targeted for use under the ELD and therefore would put off users.
There are no websites at the EU level that directly provide baseline biodiversity data to be used
specifically for the ELD. There are a number of other website links that can provide baseline
biodiversity data for Europe, outside of the Natura 2000 network, although a lot of work would be
required by the ‘operator’ to gather this information. The IUCN Red List of Threatened Species
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website (http://www.iucnredlist.org/initiatives/europe) and the European Red List of Threatened
Habitats, which is underway and due for 2017, can and will both provide baseline biodiversity data at
the EU level. There are ongoing initiatives that aim at bringing this variety of biodiversity information
under an ‘umbrella’ website, such as the BISE-Biodiversity Information System for Europe
(http://biodiversity.europa.eu/), but there is nothing specifically related to compiling all the baseline
biodiversity information for the ELD.
As the data sources included in the register cover all or most parts of the EU, all sources of
information are in English and the data is freely available.
As species and habitats are affected by many environmental factors, data sources relating to waste,
water management (e.g. flooding), soil erosion, pollution etc are relevant to the ELD and therefore the
EU register includes links to key environmental data. It is important to make a distinction between the
baseline biodiversity information and the environmental data sources that contain information on how
biodiversity may be damaged. This information is listed under ‘Supplementary Information’.
Overall there is a great deal of information available to be able to quantify and understand the status of
biodiversity in the EU and how it may be affected. We think that operators may be more inclined to
use data from the national or local level, but this should not detract from creating an ELD database at
the EU level. This register should not be static; rather it should be a dynamic document that is kept up
to date with the latest developments at the EU and Member State level.
7.5 Baseline Information Sources of Member States: Country Profile
Austria
Biodiversity information can be easily accessed through the webpages of the Federal Ministry of
Agriculture, Forestry, Environment and Water Management and the Environment Agency of
Austria. The availability of databases and maps on Austrian biodiversity provide a good overview on
the status of the country's biodiversity, but most of them are only available in German. Limited
English translation is available for a number of webpages. A great deal of information on water and
soil is available through several databases with maps, indicators and GIS applications.
Belgium
There appear to be many sources available with a wide scope, across species and habitats, covering
most aspects of biodiversity in Belgium. The Belgian Biodiversity Platform and Convention on
Biological Diversity Belgian Clearing House Mechanism (CHM) are two websites with centralized
information on biodiversity in Belgium. The Belgian Biodiversity Platform has a focus on biodiversity
data publication and use, while the CHM covers extensive information on biodiversity policies such as
national strategies, plans, and programmes. In addition, CHM provides contact information of
biodiversity-related expertise which can be referred to in the case of biodiversity damage. Databases
have been created by governmental bodies, research institutes, and NGOs. Most of the databases are
available in French, Flemish and English.
Bulgaria
The Ministry of Environment and Water maintains a public register of Natura 2000 protected areas. It
lists all Natura 2000 sites in the country with detailed information on the distribution and assessment
of the conservation status of habitats and species within these sites. This is a primary information
source that can be used to inform the ELD with regards to baseline biodiversity data in Bulgaria. Most
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species related baseline data concerns bird species. Besides the sites hosted by government agencies,
such as the National Biodiversity Monitoring System, many of the databases are hosted by
environmental NGOs through volunteers and birds-enthusiasts.
Croatia
The web-pages of the Nature Protection section, Ministry of Environmental and Nature Protection of
Croatia, provides a comprehensive overview of the status of habitat and species in Croatia. Two public
institutes, the State Institute for Nature Protection and the Croatian Environment Agency, host a
number of databases concerning biodiversity, habitat and species. Information maintained by these
three agencies can be considered as the most important information sources for baseline data regarding
biodiversity damage under the ELD. The databases either have limited English versions or are in
Croatian only. Access to the required information is relatively easy although some of the websites are
still under construction.
Cyprus
The information gathered for Cyprus largely focuses on habitats, soil, forest and birds. The web pages
are available in English. The databases have been created by the Greek government, and Cyprian
NGOs. Access to the required information is easy.
Czech Republic
Information was found on marine protection, soil, habitat, species and birds. Databases are created by
governmental bodies, research institutes (Natura 2000) and NGOs. Most of the databases have limited
information in English. Access to the required information is relatively easy, despite the limited
English, although some of the websites are still under construction.
Denmark
In the Environmental Liability Directive Guidelines of Denmark, three information sources of baseline
status were of particular relevance: Nature Data Denmark under the Danish Nature and Environmental
Portal (www.miljoeportal.dk), which is an important source of information about range and population
development of animals, plants and habitats of Denmark; Agency for Spatial and Environmental
Planning (www.blst.de) for information on the Natura 2000 designated areas; and
www.vandognature.dk, a database as part of the Danish Nature and Environmental Portal. In addition,
the National Red List database and water related information sources are included in the register of
Denmark.
Estonia
The biodiversity baseline data for Estonia is extensive and very accessible. The Estonian Environment
Information Center (EEIC) offers a variety of databases, maps, and reports related to species, natural
resources, protected areas, and other environmental parameters. For example, the EEIC maintains the
Estonian Nature Information System (EELIS), Estonian Nature Observations Database (LVA),
Estonian Environmental Register, and National Environment Monitoring Programme. Estonia is a
Party to the European Union Habitats and Birds Directives, as well as a number of international
environmental conventions. As such, Estonia produces regular reports that inventory the state of its
environment, most of which are available through the European Environment Agency’s Central Data
Repository (EIONET).
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Finland
The Finnish biodiversity websites and databases are very well developed and user-friendly. The
websites are often in Finnish, Swedish, and English. Biodiversity Finland and Biodiversity Indicators
partnership provide extensive up-to-date information on Finland’s biodiversity. It also appears that the
government and academic institutions are committed to further developing and strengthening the
biodiversity databases. The websites are well connected and link to one another to create a network of
biodiversity databases.
France
Information related to the state of France’s environment is extensive; however, the lack of a
centralized system and numerous environmental administrative services often make the information
difficult to locate. The most well-organized source of information was the Service d’administration
nationale des données et référentiels sur l’eau (French National Service for Water Data and Reference
Datasets Management), which acts as a repository for datasets, maps, and other information related to
water. France regularly submits reports on its legal obligations under a number of European
environmental directives and international environmental conventions, all of which are available
through the European Environment Agency’s Central Data Repository (EIONET). The web pages are
available in French and English.
Germany
The web pages of the Federal Environment Agency and the Federal Agency for Conservation of
Nature serve as the main entry points for biodiversity information sources. Through the Agencies'
website the user can directly access different databases or is redirected to websites where databases
sponsored by other parties can be found. Mostly, translation into English is available. However,
several websites exist where the lack of translation into English serves as a barrier for non-German
speakers. Regarding the content of the databases, they cover the broad categories of water, soil, and
species. Water-related biodiversity is thoroughly covered by hydrological maps, databases, indicators,
reports and assessments on marine biodiversity. Other topics include forest and vegetation diversity,
and general overviews on biodiversity in Germany.
Greece
Environmental information to establish a baseline for Greece was difficult to find, primarily due to the
fact that the majority of websites and documents were in Greek with no English translation available.
The Hellenic Ministry for the Environment, Physical Planning & Public Works offers some general
information about Natura 2000 sites in both Greek and English on its website. The Hellenic Zoological
Society and Hellenic Ornithological Society also provide general information about rare, threatened,
endangered, and protected bird and animal species and their associated habitats. Many of the data
sources in the register are reports conducted by organizations such as the Food and Agricultural
Organization (FAO), International Union for the Conservation of Nature (IUCN), and the European
Environment Commission.
Hungary
Hungary has a long tradition for maintaining data related to its biodiversity. Through the National
Research Infrastructure Register, biodiversity data can be accessed through members of the ecological
biodiversity databases network among which the Hungarian Biodiversity Monitoring System is one
with the most relevance. Other databases cover habitat, birds, forest, and river system. The centralized
information management on biodiversity enables a relative easy access to data and expertise.
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Ireland
Ireland is one of the most developed member states in terms of biodiversity databases. The websites
are in English and Gaelic. There are government sponsored sites, university sponsored ones and NGO
websites on a particular species or issue of biodiversity. One website that was referenced by many
other websites was Biodiversity Ireland. Ireland has a strong network of biodiversity databases that are
easily accessed and user-friendly.
Italy
Italy, in general, has a wide variety of resources that allow for the understanding of the country’s
baseline biodiversity condition. The information includes mostly statistics and datasets, and also
reports and inventories. The sources are generally in Italian and English while the data is easy and free
to access.
Latvia
Latvia is very advanced in terms of biodiversity databases management. The sources are mainly from
governmental authorities, environmental societies, and the European Environment Agency. A wide
range of species groups are represented such as birds, bats, snails, beetles, plants and others. However,
most of the information is available only in Latvian with only limited English webpages. A lot of
European databases include information about Latvia as well.
Luxembourg
Luxembourg has national databases with information on biodiversity mainly covering habitat and
species diversity, with a particular focus on birds. The information is available in French, German and
Luxembourgish, with only some of the sites offering an English translation.
Lithuania
Most of the information is in Lithuanian and English, although in some cases the English is limited. A
number of departments and governmental bodies are designed specifically to gather information about
the status of wildlife in Lithuania, so most information is available on their web-pages. However, in
many cases, access to this data is restricted to registered users. There are two websites run by
volunteers that contain information about the wildlife species of Lithuania. Eionet provides raw data
relating to Lithuania’s environment.
Malta
Environmental information about Malta is collected and maintained by the Malta Environment
Planning Authority and is easily accessible through the Authority’s website. Additional information
about Malta’s biodiversity and Natura 2000 sites is available through reports by the IUCN, European
Environment Agency, and Global Biodiversity Information Facility (GBIF). Up-to-date reports and
inventories of different aspects of Malta’s environment are available through the European
Environment Agency’s central data repository (EIONET).
The Netherlands
Most of the information is available only in Dutch, however it is comprehensive and covers most
biodiversity topics. Most databases have been created and maintained by governmental bodies or
research institutes. The most relevant sources for the ELD include the Dutch Species Catalogue,
Natura 2000 website, and National Database of Flora and Fauna.
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Poland
The biodiversity baseline data for Poland is extensive. Poland has made an effort in centralize its
biodiversity data through various platforms such as the Polish Biodiversity Information Network and
Biodiversity Clearing House Mechanism. As a Party to the European Union Habitats and Birds
Directives, as well as a number of international environmental conventions, reports and inventory the
status of its environment are also available through the European Environment Agency’s Central Data
Repository (EIONET). Other than the databases included in the excel table, the ELD focal points of
Poland reported that more information sources could be used in the case of ELD biodiversity damage,
including publicly available information included in geographical information services (geoportal,
geoserwis, google earth), information provided by other administrative units including extracts from
the land registry, cadastral maps and background maps obtained under agreements and entered into the
GIS-type programmes; specialised literature such as the Red List, the results of the natural monitoring
conducted under the State Environmental Monitoring by the Chief Inspectorate of Environmental
Protection, expertises commissioned for specific cases, and site inspections.
Portugal
Portugal has an extensive variety of useful resources to establish the baseline condition of biodiversity.
Many of them are geographical tools so information is provided in map formats. Most of the
information is only available in Portuguese, but apart from that the information is easy to access.
Romania
The Romanian Ministry of Environment and Forests, Ministry of Agriculture, Forests, and Rural
Development, and National Environmental Protection Agency record and report information about
Sites of Community Importance (SCI), Special Protected Areas (SPAs), and the state of Romania’s
environment using a variety of environmental indicators. However, most of this information is only
available in Romanian. Other organisation reports and maps, such as the IUCN, and GBIF offer
supplemental information about the state of Romania’s biodiversity. Romania provides up-to-date
reports to the European Environment Agency according to its obligations under European
environmental directives (Habitat and Birds Directive) and international environmental conventions
(Convention on Biological Diversity). In order to view and download most of these reports, a log-in
for the EIONET Central Data Repository is required.
Slovakia
Natura 2000 website is recommended as the main source of information for protected species and
habitat of European Importance at the Slovakian ELD national website. In addition to this main source
of information, a great number of sources are available for bird species. There are also abundant
information sources available for water and soil.
Slovenia
Information sources for Slovenia were relatively difficult to identify compared to many of the other
EU member states. Despite that, the National Environment Agency of Slovenia and the Natura 2000
websites provide main information on the status of biodiversity, especially on species and habitats.
The information serves as a solid basis for baseline purpose in the implementation of ELD. Further
support might be needed to the further development of the biodiversity databases of Slovenia.
Spain
The Inventory on Natural Heritage and Biodiversity, maintained by the Ministry of Agriculture, Food
and Environment, is considered the main source. It is described as an inventory of inventories. Thus,
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the Inventory consists of inventories, catalogues, records and lists that provide insight into the
elements of natural heritage, their wealth, their state of preservation and use of its resources. The
inventory covers information on ecosystems, wildlife, and protected areas. Furthermore, a system of
indicators is under development within the Inventory of Natural Heritage and Biodiversity to provide
directly relevant information on the status, trends and variations of the elements of the natural heritage
and biodiversity on an annual basis.
Sweden
Sweden is one of the most advanced countries regarding biodiversity databases. Some databases are
created by governmental bodies or research institutes (Swedish Environmental Protection Agency) and
NGOs. Most of the sources are available in Swedish and English. Access to the information
encounters no obstacles.
United Kingdom
United Kingdom has well-recorded and maintained systems for biological data storage and sharing,
with a strong emphasis on habitat and species, and especially birds. The Joint National Conservation
Committee (JNCC) provides a central platform for biodiversity databases. The British Ornithological
Trust (BTO) hosts a number of information sources on bird species. The Department for Environment,
Food and Rural Affairs (DEFRA) offers official statistics on biodiversity in the UK. Information is
only available in English.
7.6 Methodological Approaches
The three most commonly used methodologies for the determination of biodiversity baseline condition
in relation to the ELD are the use of existing data, reference sites, and models. Environmental risk
analysis is another methodology not only used by the competent authorities but also by some ELD
insurance providers.
Another approach worth noting is the use of smart phone applications that involve the public in
collecting raw data for the improvement of biodiversity records that can help in the assessment of
biodiversity damage. Examples from Spain and Germany are provided.
7.7 Observations and Recommendations
There is a comprehensive amount of data available that can be used to establish the biodiversity
baseline condition within the EU for use under the ELD application.
Three information sources have been particularly useful in identifying resources both at the national
and EU level during the research. As previously mentioned, the Natura 2000 map viewer is identified
as one of the most useful sources of information at the EU level for biodiversity baseline data required
under the ELD. The Natura 2000 websites of Member States also proved to be the most relevant
sources of information at the national level for biodiversity baseline data required for ELD
biodiversity damage.
The knowledge portal Biodiversity Information System for Europe (BISE) provides a single entry
point for biodiversity data and information at the EU level which is beyond the Natura 2000 network.
It organises information under five entry points:
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- Policy: policy, legislation and supporting activities related to EU directives, the EU Biodiversity
Action Plan (BAP), pan-European and global policies
- Topics: state of species, habitats, ecosystems, genetic diversity, threats to biodiversity, impacts of
biodiversity loss, evaluation of policy responses
- Data: data sources, statistics and maps related to land, water, soil, air, marine, agriculture,
forestry, fisheries, tourism, energy, land use, transport
- Research: important EU-wide research projects related to biodiversity and ecosystem services,
improving the science-policy interface
- Countries and networks: national biodiversity reporting activities and information sharing by
networks across national borders
Focusing on biodiversity-related information, BISE also provides information on related issues such as
land, water, soil etc. It could be a natural information hub for baseline data related to ELD
implementation.
The EuMon is an independent knowledge portal on EU-wide monitoring methods and systems of
surveillance for species and habitats of community interest. It can be searched by Member States and
is particularly helpful in identifying information sources for a number of Member States during the
study. Its constantly updated monitoring information of species and habitats serves as a key source of
information to understand the latest status of a particular species or habitat in a Member State.
Despite the availability of substantive information sources at the national level, research has
encountered two main difficulties, i.e. the language barrier for some Member States with limited
information available in a common EU language and scattered information sources. Although some
member states have made an effort to centralize the biodiversity related information, many others have
not yet linked all relevant information sources in a coordinated matter. It is particularly the case with
information from academic research institutions not fully connected with that of the relevant
ministries.
During the research of sources of information for biodiversity baseline data, we came across
successful experiences of mainstreaming citizens initiative of voluntary biodiversity data collection
into the official biodiversity research and data collection in some member states such as Spain,
Germany and UK. With the rapid development of crowd sourcing, it could become a very cost-
effective measure to mobilize relevant sectors of the public at the national level to involve and support
biodiversity data collection and monitoring, and the ELD implementation in general.
Based on the above observations, the following recommendations are proposed to the European
Commission and the national competent authorities to enable easy access to biodiversity baseline data
for effective implementation of the ELD.
At the EU level, a centralized biodiversity baseline data register for ELD biodiversity
damage should be hosted and updated under an existing biodiversity information platform
such as the Biodiversity Information System for Europe (BISE).
o It is important to note that no website at the EU level is specifically dedicated to ELD
biodiversity damage reporting and establishing the biodiversity baseline condition. In
order to utilise the information contained in the ELD biodiversity register, it needs to be
embedded in relevant platforms. This would increase the usage of such information.
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o ELD implementation for biodiversity damage will benefit substantively from the
availability of such interconnected information entry points, and they could also serve a
much wider audience and purpose with its easy access of related information.
o The EU Commission’s webpage on ELD is a natural platform to place the register for
biodiversity baseline data to be accessed by relevant actors. Nevertheless, considering the
constant development in biodiversity assessment and reporting, it is recommended
eventually to host and update the register under a biodiversity-focused information
system, such as the BISE.
o BISE already contains links to each member state but we would recommend a specific
page on the website relating to ELD. Here, under each Member State, important website
information could be placed and categorised according to the colour coding of the register
(see ELD biodiversity register). This would allow Member States who are not so
developed, in terms of ELD baseline data and reporting, the opportunity to access and
benefit from the experiences of other leading countries such as Spain, Estonia and the UK.
It would also prove useful to compile the data at the national level to form an EU level
ELD baseline biodiversity database to allow for the assessment of biodiversity baseline
condition at the EU level.
o However, this process will not happen independently once the first stage is complete, i.e.
the website created and the information embedded. The website would need to be
promoted, updated and utilised for it to be a success. The ELD Working Group would
provide a good place to begin this second stage.
At the national level, competent authorities of Member States are to be supported to
streamline the biodiversity baseline data through either existing platforms or the creation of
a centralized biodiversity data inventory.
o To understand the baseline condition of any given area, the ‘operator’ may need to use an
EU level database of baseline biodiversity information, but more importantly the ELD
databases at the Member State level.
o A centralised national ELD database: It is important for the European Commission to
create an enabling environment to encourage and assist each Member State to create their
own ELD databases, as many of the ELD cases will only be relevant to the host country,
and so the operator will require information specific to the national or local level.
o Natura 2000 is identified as a common source of information of biodiversity condition in
each Member States. As the information in the Natura 2000 websites is required to cover
the Habitats Directive and Birds Directive which overlaps with the scope of focus for
ELD biodiversity damage, the Member States could consider linking the Natura 2000
database with more specific baseline data required for ELD biodiversity damage, in
particular detailed information from the subnational level. Mutual links at both the Natura
2000 websites and national ELD platform should be created to address the issue of
biodiversity damage.
o It is also recommended that capacity building programmes for the ELD should be
designed and conducted to key stakeholders of Natura 2000 at the national level. An in-
depth understanding of ELD reporting and of what data is required, would help the
departments involved in Natura 2000 to provide the appropriate data to allow for Member
States to effectively report on ELD biodiversity baseline condition. This will help to
create a momentum and technical support network from biologists, zoologists and
ecologists to ELD competent authorities in preventing and remedying biodiversity
damage.
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o In addition to Natura 2000, competent authorities of Member States should be encouraged
to establish other centralized information platforms for the dissemination of ELD relevant
baseline biodiversity condition data beyond the Natura 2000 network. Inventory on
Natural Heritage and Biodiversity maintained by the Ministry of Agriculture, Food and
Environment of Spain is a good example. These websites can then be listed on the EU
central ELD platform and this can then help build a database for Europe.
o When considering the creation of a centralized information platform on biodiversity
baseline data beyond Natura 2000 for the ELD, the competent authorities of Member
States could also consider the Clearing House Mechanism of the Convention on
Biological Diversity (CBD) which has been established by most of the Member States.
The main purpose of the CBD Clearing House Mechanism is to fulfil the requirement of
CBD parties in information service and facilitation of scientific and technical cooperation,
knowledge sharing and information exchange. Nevertheless, the biodiversity data and
information included could serve the purpose of ELD biodiversity damage as well. It can
also provide a potential solution to streamline the scattered information of biodiversity at
the national level.
Encourage public participation in creating and updating biodiversity baseline data for
effective ELD application, particularly at the sub-national level through the use of smart
phone applications and other latest information and communications technology.
o It is not new that volunteers and nature lovers participate in biodiversity data collection
such as bird counting and surveys. However, with the rapid development and use of the
new communications technology based on mobile devices, there is an unprecedented
potential to mobilize and channel data from the so called “crowd sourcing” movement.
o During the course of this study, both ELD focal points of Spain and Germany have
reported the success of using smartphone applications in involving the public in the
collection of biodiversity data at local and national levels to improve and update the
existing biodiversity data. Successful experiences of mobile applications for biodiversity
data collection and species identification have been identified in the UK, France and
Germany at proximamobile.eu, the European Portal of Mobile Services for Citizens.
These and further experiences and case studies among EU Member States need to be
identified and promoted to document biodiversity status and changes to support ELD
implementation.
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8 CONCLUSIONS & RECOMMENDATIONS
This section draws the conclusions and recommendations from the analysis of chapters 4, 5, 6 and 7.
Some repetition therefore seemed necessary in order to ensure consistency and clarity in the
justification of the recommendations.
8.1 The coordinated application of the ELD and the Habitats Directive:
harmonisation of significant biodiversity damage
Whilst the Habitats Directive183
recognises that ‘the polluter-pays principle can have only limited
application in the special case of nature conservation’184
the ELD was adopted twelve years later with
one of its objective being that ‘the prevention and remedying of environmental damage should be
implemented through the furtherance of the polluter-pays principle, as indicated in the Treaty and in
line with the principle of sustainable development’185
.
Analysis of Member States’ implementation of the ELD, suggests that in some Member States, the
ELD would apply only to severe cases: ‘as the ELD’s scope is limited to significant environmental
damage, the national ELD regimes are triggered only in large, relatively exceptional cases’186
. This
would leave Member States and tax payers to bear the financial expenses for prevention and
remediation of those cases of biodiversity damages not considered severe. A recent study states that, in
many Member States, there is a misperception that the ELD only applies to the most severe instances
of biodiversity damage and the application of a very high threshold for defining ‘significant’
biodiversity damage187
. This misperception needs to be corrected if the ELD is to be effective in
relation to its objective of halting biodiversity loss. Furthermore, this approach taken for national
implementation by several Member States may be more restrictive than the initial purpose envisaged
for ELD.
The current ELD provisions related to the concept of ‘significant’ biodiversity damage are unclear and
the practice evidences there is a need for more detailed specifications to define it. The threshold to
determine when the ‘significant’ level has been reached may be different and partially disconnected
from the Habitats Directive in most Member States. A more consistent application of the ELD seems
necessary with a view to ensure a greater harmonisation of environmental liability for biodiversity
damage across the EU.
The explanatory note to the Commission’s proposal for the ELD Directive,188
states that environmental
damage should be defined whenever possible by reference to the relevant provisions of Community
environmental law – the Habitats Directive – so that common criteria could be used and uniform
183 Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [1996] L 206/1. Eleventh
recital of the Preamble 184 Nicolas de Sadeleer, The Polluter-pays Principle in EU Law – Bold Case Law and Poor Harmonisation, in
http://www.tradevenvironment.eu/uploads/papers/de%20Sadeleer.pdf, page 4 185 Council directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental
damage, OJ L 143/56, 30.4.2004, recital (2) 186 The EU Environmental Liability Directive – A Commentary, ed Lucas Bergkamp and Barbara Goldsmith, Oxford
University press (2013) page 313 (point 13.48) – Chapter 13: The ELD’s Effects in Practice Michael G Faure and Kristel de
Smedt 187 Implementation challenges and obstacles of the Environmental Liability Directive, report for the European Commission,
May 2013, p12 188 COM(2002) 17 final
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application could be promoted. The proposal follows the approach of the White Paper on
environmental liability189
which anticipated that criteria for significant biodiversity damage should be
derived, in the first place, from the interpretation of this notion in the context of the Habitats Directive.
Contrary to the initial intention of the legislator, the differences in the understanding of ‘significant’
biodiversity damage and in the definition of the threshold of significant effects to FCS triggering the
application of the ELD have been developed and jeopardized its effectiveness in establishing a
common liability system based on the polluter pays principle.
The diverging ways of interpretation and implementation of this key concept had as a consequence
that, in similar situations, operators and society will be treated differently. Evidence shows that in
similar cases of biodiversity damage, in certain Member States the competent authorities would
remain responsible for biodiversity damage whereas, in other Member States, the operator of the
occupational activity having caused such damage would be responsible for the implementation of
corrective or remedial measures. This can be considered as affecting the level playing field for
operators across the EU and thus creating distortions in the internal market.
One of the main objectives of the ELD is to harmonise the liability of operators for environmental
damage. The research carried out evidences the low effectiveness of the ELD in achieving fully this
objective and the need for further harmonisation. These would concern the threshold for application of
the ELD and, more precisely, the concept of significance required to trigger application of the ELD for
biodiversity damage.
The obligations contained in Article 6(2) of the Habitats Directive require corrective measures –
preventive and remedial, to be taken by the competent authorities for a general deterioration
irrespective of its origin, whilst the ELD requires operators to prevent or remedy any biodiversity
damage caused by Annex III occupational activities or by non-annex III activities when the operator
has been at fault or negligent.. It can therefore be argued that both instruments regulate similar
situations that complement each other. As mentioned in Chapter 2 of this Study both instruments share
the same objective: to ensure the maintenance or restoration of biodiversity at favourable conservation
status but the threshold for defining significant damage under the ELD and Article 6(2) of the Habitats
Directive has been interpreted differently leading to differences in Member States application.
The threshold for triggering application of the requirements contained in Article 6(2) is considerably
lower than that of the ELD. First of all, the provision is applicable from the moment the disturbance
could be significant (likelihood). Secondly, the EC guidance document argues that, in the context of a
significant disturbance to species, ‘a certain degree of disturbance is tolerated’ and states that ’[I]n
order to be significant, a disturbance must affect the conservation status190
. This concept is
slightly different to the ELD’s criteria that require that the damage has ‘significant effects on reaching
or maintaining the favourable conservation status of such habitats or species’. Under the Habitats
Directive, any disturbance affecting the conservation status should be considered significant; while
under the ELD the damage should have a significant adverse effect on FCS: not any effect on FCS but
a significant effect is required. This slight difference between the Habitats Directive’s interpretation
and the definition of environmental damage under the ELD has led to an interpretation and application
of the ELD by most Member States based on higher thresholds.
189 COM(2000) 66 final of 9 February 2000, p. 19 190 EC Guidance Document. Managing Natura 2000 sites. The provisions of Article 6 of the Habitats Directive 92/43/EEC,
2000, page 29
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Under the Habitats Directive, deterioration or disturbance is assessed against the conservation status of
species and habitats concerned. They are significant if they trigger change in indicators of the
conservation status of protected species in such a way as to affect the conservation status of the
species concerned. 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 ELD Annex I specifies that significant adverse changes to the baseline condition should be
determined by means of measurable data related to the number of individuals affected, their density or
the area covered, the role of the particular individuals or of the damaged area in relation to the species
or to the habitat conservation, the rarity of the species or habitat the species' capacity for propagation.
It also depends on its viability or the habitat's capacity for natural regeneration the species' or habitat's
capacity, after damage has occurred, to recover within a short time, without any intervention other
than increased protection measures, to a condition which leads, solely by virtue of the dynamics of the
species or habitat, to a condition deemed equivalent or superior to the baseline condition. The second
part of Annex I relates to the negative variations due to natural fluctuations, similar to the criteria
under the Habitats Directive. The criteria under the ELD are very much like the ones defining FCS
under the Habitats Directive.
However, the fact that the Habitats Directive requires the disturbance to affect the conservation status
while the ELD requires ‘significantly’ affect the conservation status remains an important difference
that has been considered at the heart of the interpretation by certain Member States that a significant
damage is a severe damage.
The determination of the threshold for ELD implementation should take consideration of the ultimate
objective of the ELD, i.e. to contribute to halting the loss of biodiversity in the EU. It should be noted,
in this context, that the requirements of the Habitats Directive apply to the Natura 2000 protected
areas, the natural habitats and species listed in the Habitats Directive and in the Birds Directive. These
habitats are listed under EU law because they are considered in danger of disappearance, with small
natural range or presenting outstanding examples of typical characteristics of one or more of the nine
biogeographical regions. Similarly the species are listed under EU law because they are considered
endangered, vulnerable, rare or endemic species. The significance of those protected habitats and
species should be enough for the damage to be considered ‘significant damage’.
The analysis of Member States systems presented in the national reports (Annex I to this Study) and
the assessment summarised in Case Study 1 of this Report evidence the lack of coordination of both
instruments. The absence of ELD cases reported by Member States when cases of biodiversity damage
are reported by environmental inspectorate is another evidence of a situation where biodiversity
damage is generally dealt with by public authorities under other legal instruments not based on the
‘polluter-pays principle’ enshrined by the ELD.
The ‘significant’ damage to biodiversity threshold, or the criteria for its definition, should be clarified
and harmonised at EU level as well as aligned to previous environmental liability regimes and to the
Habitats Directive Article 6(2). This would increase the effectiveness of the ELD regime and ensure
the application of the ‘polluter-pays principle’ aiming to determine the liability of operators rather than
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it systematically being the public authorities’ responsibility. Furthermore, clarification of existing
obligations for the authorities for the determination of significant damage is also required.
The Commission may want to consider that a reasonable application of the Annex I criteria would
define ‘significant damage’ triggering the application of ELD in cases of protected species and
habitats (under EU and national legislation) suffering any damage from occupational activities that
affects their ability to reach, or maintain their favourable conservation status at site level; the remedial
measures should aim at restoring the damage to baseline condition. This proposal is in line with the
interpretation under Article 6(2) of the Habitats Directive as it pursues the same objective to ensure
favourable conservation status of the protected habitats and species. Therefore the threshold to define
significant damage under the ELD should be coherent with the one used by the Habitats Directive. In
other words, from the moment a habitat or species listed under the Habitats Directive or protected
under national law, is under threat or damaged caused by an occupational activity, the ELD should
apply, requiring operators to take preventive or remedial measures to ensure their favourable
conservation status.
Furthermore, well-coordinated procedures and harmonised assessment criteria should be applied to
avoid duplication, unnecessary costs and ultimately, avoid damage to protected habitats and species
not being properly dealt with and biodiversity being ultimately lost.
Recommendation:
The coordinated implementation of the ELD and the Habitats Directive
The coordinated implementation of both instruments in relation to significant damage can be done
through the EC Handbook on the ELD presenting to Member States the mechanisms to coordinate
and harmonise the procedures for prevention and remediation of biodiversity damage through the
Habitats Directive and the ELD, including the procedures for assessment of significant damage.
It should be based on the acknowledgement that the Habitats Directive would enter into practice when
the activities causing the damage are not occupational activities and to prevent or restore to a
favourable conservation status any deterioration of habitats and disturbance to species in a protected
SAC. The competent authorities would be responsible for adopting prevention and remediation
measures to ensure the ‘maintenance or restoration, at favourable conservation status, the natural
habitats and species of wild fauna and flora of Community Interest’.191
On the other hand, the ELD would apply when significant damage or the imminent threat of it has
already occurred due to occupational activities. The damage would be considered significant in any
case where the FCS of the habitats and species protected under the Habitats and Birds Directives or
national legislation (habitats or species considered endangered, rare or vulnerable), are likely to be
affected. The ELD for biodiversity damage and the Habitats Directive aim to the same conservation
objective but with different means. The ELD seeks to ensure the application of the ‘polluter-pays
principle’ and, on that basis, it aims at establishing a liability scheme for those operators whose
activities caused the biodiversity damage.
191 Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [1996] L 206. Art. 2
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Furthermore, the EC Guidance document on Article 6 of the Habitats Directive should also be updated
so that interpretation of both instruments, the ELD and the Habitats Directive, is based on the
complementary nature of the provisions and procedures under the ELD and the Habitats Directive
when habitats or species protected under EU nature legislation are at stake.
The concept of significant biodiversity damage would be provided higher legal certainty by:
Amending Article 2(1) of the ELD in relation to the definition of significant biodiversity damage
which should be considered as any damage, or threat of damage caused by any occupational activity to
habitats and species protected under the Habitats and Birds Directives (or equivalent provisions of
national law on nature conservation) that is likely to affect their favourable conservation status.
As explained above, the ELD would be applicable from the moment the damage could be significant
(likelihood). Sufficient likelihood is confusing and not used under other instruments such as the
Habitats Directive. Therefore, in order to be significant, the damage must (be likely to) affect the
favourable conservation status192
. This concept is in line with Article 6(2) of the Habitats Directive,
where any disturbance affecting the conservation status should be considered significant. Currently
under the ELD the damage should have a significant adverse effect on FCS: not any effect on FCS but
a significant effect is required.
Reference to deterioration and disturbance
In order to ensure the coherence between both instruments the Commission may consider proposing an
amendment to Article 2(1 a) of the ELD adding an explicit reference to deterioration of habitats and
disturbance of species as per Article 6(2) of the Habitats Directive, in the definition of significant
adverse effect.
The coherence between the Habitats Directive and ELD for damages to protected habitats or species,
would be improved by ensuring explicit reference to the wording of Article 6(2) of the Habitats
Directive, namely significant deterioration and disturbance resulting from the activity of an operator.
Compensatory measures
The EC Guidance Document on Article 6(4) of the Habitats Directive sets out detailed criteria for
designing compensatory measures focused exclusively on ecological factors relating to the
compensation of the biodiversity losses to be caused by the implementation of the plan/project, such
as: the relation to the reference conditions defined after the characterisation of the biological integrity
of the site concerned; the effectiveness of the compensatory measure; its technical feasibility; the long-
term implementation. The Guidance Document on Article 6 of the Habitats Directive specifies
technical requirements for each of the criteria with a view to ensure a thorough assessment of the
impacts of any compensatory measures and that they meet a minimum requirement to ensure the
coherence of the Natura 2000 Network.
In contrast, Annex II of the ELD includes other criteria that are not exclusively related to the adverse
effects on biodiversity in the site, such as, for instance, the cost of implementation of the options. It
192 EC Guidance Document. Managing Natura 2000 sites. The provisions of Article 6 of the Habitats Directive 92/43/EEC,
2000, page 29
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could be argued that the requirements under Article 6(4) of the Habitats Directive should be
introduced to ensure the adequacy of any compensatory measures when adopted in the framework of
the ELD (See Chapter 5.2).
Strict liability
As one of the main objectives of the ELD is to harmonise the liability of operators for environmental
damage, it can be argued that this objective has not yet been sufficiently achieved and further
harmonisation might be necessary. These would concern not only the threshold for defining significant
biodiversity damage required to trigger application of the ELD but also the scope of ELD for
biodiversity damage. The scope of the ELD for strict liability applied to biodiversity damage should
include all occupational activities. There is no justification under the ‘polluter pays principle’ to
maintain the difference between strict liability and fault-based liability for different types of
occupational activities causing damage to protected biodiversity. All occupational activities causing
damage to protected biodiversity should be subject to strict liability. The current differentiation
between Annex III occupational activities and non-Annex III activities where the operator is subject to
liability when has been at fault or negligent distorts the liability system based on the polluter pays
principle. Furthermore, the difficulties of Member States proving negligence or fault-based liability
have been identified as an important factor jeopardizing the implementation of the ELD and its
effectiveness to establish liability of operators193
(see case study 7)
The above would require re-drafting of Article 3(1)b) in order to ensure that the ELD would apply
strict liability for damage to biodiversity derived from all occupational activities. The proposed
wording could be:
‘This Directive shall apply to
a)environmental damage caused by any of the occupational activities listed in Annex III, and to
any imminent threat of such damage occurring by reason of any of those activities
b) damage to protected species and natural habitats caused by any occupations activities other than
those listed in Annex III, and to any imminent threat of such damage occurring by reason of those
activities’
This modification would also strengthen a better coordination of the Habitats Directive and the ELD.
As stated above, this proposal considers that the ELD should require operators to prevent or remedy
any biodiversity damage caused by any occupational activities, whilst Article 6(2) of the Habitats
Directive should cover, and therefore require corrective measures – preventive and remedial to be
taken by the competent authorities, cases of damage or general deterioration in all other activities
irrespective of its origin.
The impact of the choice of scope of biodiversity under the ELD (See Chapter 5.1 of the Study)
From a legal implementation point of view, it has not been possible to determine any special
consequences or impacts on the interpretation, or systems of implementation, of the ELD stemming
from the choice of the habitats and species protected under the ELD. The scope of the ELD, in relation
to the protected natural habitats and species, does not change the nature of the regime. As stated in
Section 4 of this Study, the number of ELD cases, depends on other factors such as the criteria and
threshold used for the consideration of ‘significant’ biodiversity damage. The choice in the scope of
193
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biodiversity has not been identified as a challenge, or reported by Member States as an issue affecting
the implementation of the ELD.
One aspect highlighted in few Member States seem to be linked to stakeholder’s right to participation
and access to justice. While, in practice, this is a very important point given that one of the challenges
identified for the implementation of the ELD is the lack of notification of biodiversity damages by
operators, there is no measure at EU level or under the ELD that would seem appropriate.
Our analysis cannot take account of the impacts that the scope of the Directive would have on the
achievement of the objective of halting biodiversity loss. The assessment of this objective goes beyond
the remit of this study/project which is not meant to assess the current biodiversity status, or the
contribution of the ELD, to halting biodiversity loss. However, in that context, it could be conceivable
to anticipate a higher impact on biodiversity conservation derived from an expanded scope of the
biodiversity covered by the ELD. That impact could justify the suggestion for the Commission to
consider EU level harmonisation of the ELD and the Habitats Directive – expanding them both to
cover not only habitats and species listed under the current EU law but also habitats and species
protected under national or regional legislation in all EU Member States. From a legal point of view,
that would require expanding the list of habitats and species to cover all nationally protected habitats
and species. The EU does not have the competence to impose legal obligations affecting nationally
protected species or habitats. Their inclusion under EU law would have to be justified within the
subsidiarity and proportionality principles probably on the basis of the European importance of the
habitats and species given the current status of biodiversity in the EU.
In the framework of an eventual revision of the Habitats Directive
a reference to the prevention and remediation regime of ELD could be added to Article 6(2) of
the Habitats Directive. This could include a general obligation of information for operators in
case of imminent threat of environmental damage – including threat of a deterioration or
significant disturbance, or at the minimum, in cases when the imminent threat is not dispelled
despite the preventive measures taken by the operator.
Further complementarity between the two Directives could be sought in the wording of Article
6(2) of the Habitats Directive requiring Member States to take ‘appropriate steps’. The EC
Guidance document defines these appropriate steps as ‘all the appropriate actions which it
may reasonably be expected to take, to ensure that no significant deterioration or disturbance
occurs’.194
With the perspective of bringing the two regimes closer together, it could be
appropriate for the definition of ‘appropriate steps’ to refer to the list of actions that
competent authorities may take as listed in Article 5(3) of ELD in cases when the activity of
an operator is at stake.
Coordination in Article 6(1) of the Habitats Directive implementation
The preparation of Natura 2000 management plans should include the consideration of
occupational activities from operators that could threaten the site. An explicit requirement in
the EC Guidance document on Article 6 would strengthen the implementation of ELD,
194 EC Guidance Document. Managing Natura 2000 sites. The provisions of Article 6 of the Habitats Directive 92/43/EEC,
2000, Section 3.2 Scope page 24
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preventing accidental damages to Natura 2000 sites, facilitating access to information and data
concerning Natura 2000 sites as well as facilitating decisions on the best remedial actions in
case of accident.
Furthermore, Natura 2000 management plans and conservation objectives should be
communicated as widely as possible to local and regional stakeholders and operators to be
effectively taken into consideration in their risks prevention and risks management strategies
as well as in their monitoring plans. In addition reference should be made to Natura 2000 sites
and their priority conservation objectives in any local or regional plan for risks prevention or
monitoring plans. This could help operators being better informed about the specificity of the
ecosystems, species and habitats that could be affected by an environmental damage resulting
from their operations.
8.2 Clarification of key ELD concepts: Favourable Conservation Status;
Preventive measures and Causal link.
8.2.1 Favourable conservation status under the ELD: applicability
The concept of favourable conservation status is implemented since 1992 under the Habitats Directive.
Following the definition in its Article 1, conservation status for habitats is ‘the sum of influences
acting on a natural habitat and its typical species that may affect its long-term natural distribution,
structure and functions as well as the long-term survival of its typical species within the territory of the
Member States to which the Treaty applies or the natural range of that habitat’.
According to this definition conservation status is seen as the result of influences which include the
present state of the habitat, together with current environmental and human influences that may
influence its long-term survival.
Member States have been implementing the Habitats Directive for more than 10 years and it seems
that the concept is feasible to apply, both in the context of the Habitats Directive and under the ELD.
There seems to be no difficulties in the application of the concept of Favourable Conservation Status
beyond the lack of information and data.
The availability of accurate information is crucial to enable measuring any damage occurred in species
or habitats and to determine if it has significant adverse effects on reaching or maintaining their
favourable conservation status. It is likely that most available data would be collected within the
framework of the EU Birds and Habitats Directives and relate to the Natura 2000 Network (see
Chapter 7 on the Register). The practical applicability of the ELD will largely depend on the quality
and accuracy of the information gathered under the reporting requirements of the above-mentioned
Nature Directives195
.
There is however no particular mention of difficulties as regards the implementation of the concept of
conservation status beyond the lack of data or information. These difficulties may relate to the level of
ambition in defining the appropriate baseline for determining FCS or to specific ecological
considerations (e.g. whether to take also aspects of genetic diversity into consideration, or not; what
195 Van den Broek, G.M. 2009. Environmental liability and nature protection areas: Will the EU Environmental Liability
Directive actually lead to the restoration of damaged natural resources? Utrecht Law Review, Vol. 5, Issue 1:, page 130.
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are key species of a particular ecosystem) or to the monitoring of the implementation of the FCS
concept. Further clarity and sufficiency of the standards set for FCS from a biological and ecological
point of view seem needed, taking into account that they are evolving issues that might change in the
future196
. An important element that needs clarification is how to consider the extent of the damage at
EU level or whether or not damage impacting the population of a protected species in one area
constitutes environmental damage in the sense of the ELD if the population exists in another area.
Recommendations: Based on the results to be reflected in the 2014/2015 report, the Commission
might consider giving national authorities further guidance on the common monitoring process and
assessment criteria for the conservation status, should Member States raise any problem regarding its
implementation.
In this sense, it seems that in case of damage to biodiversity under the ELD the competent authorities
should and can realistically assess the conservation status of habitats and species in relation to the site
and not within the European territory of a Member State or the natural range of a specific species (as
established under Article 2(4) of the ELD). The effect of the damage on the FCS would be
meaningless if measured in such scale. This aspect could be an additional cause for a low number of
ELD cases and should be considered for amendment to establish the significance of damage to the
effects on the FCS at site level. The Commission may consider clarifying this aspect, within the
context of the Habitats Directive implementation, and modifying this provision.
The conservation status of 65% of habitats and 52% of species was unfavourable in the synthesis
report published in 2009 (covering the period 2001-2016), however, the implementation of the ELD
from 2007 might have had a positive effect. Indeed, some of the national reports on implementation of
the ELD submitted to the Commission in 2013 show a very low number of biodiversity damage cases
which might imply an improvement on the status of European biodiversity during the period 2007-
2012 of implementation of the Habitats Directive. The analysis of the effectiveness of the ELD due to
be presented by the European Commission by 2014, should respond to the question of how the
implementation of the ELD contributes to changing the trend in the unfavourable conservation status
of biodiversity and halting biodiversity loss in Europe.
When difficulties arise in assessing the significance of the damage on the conservation status of
community species or habitats in a Natura 2000 site in a specific ELD case, the Commission may wish
to suggest Member States to take into consideration the conservation objectives set up for the Natura
2000 site affected by the incident. The conservation objectives defined for the Natura 2000 sites are
established in relation to the conservation status of the species and habitats at stake. So referring to
these conservation objectives to assess the significance of the damage may be a specific and targeted
way to assess the damage threshold relating it to the importance of the site or of the specific
population in relation to the overall conservation status of the species or habitat. The completion of the
terrestrial Natura 2000 network and the progress made in establishing management plans for the sites
should enable national authorities to facilitate access and use of data for the purpose of better
implementation of the ELD in case of biodiversity damage or for preventing it.
196 Interview with expert at IUCN, January 2014.
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8.2.2 Preventive measures under the ELD
The interpretation of preventive measures needs to be clarified. The definition of ‘preventive
measures’ is not applied in a harmonised way by EU Member States. The text of the Directive has
been subject to divergent interpretations and applications by different Member States.
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’.
Article 5 of the ELD states that ‘where environmental damage has not yet occurred, but there is an
imminent threat of such damage occurring, the operator shall, without delay, take the necessary
preventive measures’. Article 5 not only refers to situations where any damage has not yet occurred
but also to the situation when an event, accident or omission causing damage might have happened but
the damage is not yet significant .
The most obvious interpretation relates preventive measures with situations where no damage at all
(significant or not) has happened with the aim to prevent it from happening. However, the definition
under Article 2 of preventive measures refers to measures taken with a view to preventing and
minimising the damage. Furthermore Article 2 refers to environmental damage. The interpretation
needs to be based on the definition of environmental damage under Article 2 which is the damage that
is ‘significant’. Therefore, from a literal interpretation of the Directive’s wording, preventive measures
should cover not only the measures to prevent the damage from happening but also those actions that
prevent or minimise any damage from becoming significant, and thus constitute an ELD case. Article
5 should be interpreted as referring to measures taken with a view to preventing the damage from
occurring or becoming significant – even if the event, in itself, has already occurred and to measures
taken with a view to minimising future damage or damage already occurred.
However, some argue that ELD measures apply as well when a damage caused by an event, accident
or omission has occurred but only if a significant environmental damage has been determined. An
example of this interpretation is reflected in the French Guide in relation to a case occurred on 16
March 2008 on a spillage of about 400 tonnes of heavy fuel oil during the loading of a vessel at the
Donges refinery.
Under the French system, preventive measures are those undertaken prior to the occurrence of the
damage caused by an accident or event – when there is an imminent threat of significant
environmental damage to biodiversity – and will then aim immediately at preventing it. When the
accident and damage has occurred, under the French interpretation, actions aiming at reducing its
impact once the damage has been considered significant fall under the ELD as remedial measures. If
the damage has not been considered significant, the actions carried out to prevent it becoming
significant will not be considered preventive measures under the ELD. The analysis of the above-
mentioned example in the French Guide leads to conclude that the current French system considers
that the actions undertaken before an occurred damage is considered significant but aiming to
minimise it, would never be considered part of the ELD system precisely because the damage was not
yet determined as significant. This type of measure would not be considered a preventive action under
Article 5 of the ELD, nor would be remedial actions under Article 6 of the ELD. Therefore, in the
French system preventive actions under the ELD can only happen in cases when there is not yet any
damage or incident at all, or eventually, when non- Annex III activities are involved and no emergency
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measures under current specific sectorial legislation can be undertaken. In those cases, preventive
measures could be carried out to contain or minimise the damage caused by a non-Annex III activity
so that it does not become ‘significant damage’ and prior to the adoption of emergency remedial
measures.
The challenge related to this legal uncertainty results in an uneven application of the ELD across the
EU which could affect the internal market. Furthermore, an interpretation of preventive measures that
excludes the application of the ELD in favour of sectorial legislation would transfer the liability on to
the public authorities and undermine the polluter pays principle and one of objectives for the
Directive’s adoption – namely to establish a common framework for the prevention and remedying of
environmental damage at a reasonable cost to society.
Recommendations:
Such an interpretation could be considered legally incorrect and therefore the Commission might want
to contemplate clarifying it:
The opportunity offered by the future review of the Directive under the fitness check exercise
should be used to amend Article 2 and Article 5 of the ELD.
This concept should also be clarified through the Commission document The Environmental
Liability Directive: Training Handbook and Accompanying Slides, which currently does not
provide clarification in this respect since it consistently uses the term ‘incident’.
The amendment or clarification should be addressed to ensure that the definition of preventive
measures includes not only those taken to prevent the damage from happening but also those measures
adopted to prevent the biodiversity damage from becoming ‘significant’ and therefore minimising it.
This interpretation is based on the understanding that environmental damage in the ELD context refers
to significant environmental damage. The difference between preventive measures and emergency
remedial measures needs to be clarified as well. Preventive measures are prior in time and are taken at
the initiative of the operator or to the request of the competent authorities in order to prevent the
damage becoming significant.
Alternatively, should the Commission decide to limit this concept as referring to those measures taken
prior to the occurrence of any damage and therefore aiming to prevent it from happening, the wording
with a view to minimising should be eliminated from Article 2. Indeed while the wording preventing
the damage can clearly be understood as measures prior to damage and preventing it from happening,
the use of minimising is confusing as it entails that the damage has occurred.
However, this option excludes from the ELD any action undertaken once the event has happened
before the damage is considered significant (French case) triggering the application of the ELD. It
would therefore lose the sequential logic of ELD covering preventive measures prior to the damage,
preventive measures once the event occurred in order to prevent the damage from being significant
and remedial measures once the damage is significant. In this option measures taken once damage has
happened and prior to being significant would be excluded from ELD which is important in those
countries where the threshold of significance is high. In those cases where any damage to biodiversity
beyond natural fluctuations is considered under the ELD, the distinction is less relevant. In brief, this
interpretation has three major failures:
it does not comply with the wording of the Directive which does not refer to incident or event but
to environmental damage. In this sense, environmental damage under the ELD is any damage that
has significant effects on the FCS of biodiversity.
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it frames a discontinuity in the logical application of the ELD. In case of a threat of biodiversity
damage the ELD would be applicable before the incident/damage happens. Once the damage
happens, the preventive measures to minimize the damage to prevent it from becoming significant
would not be considered under the ELD but under sectorial legislation. However, the ELD would
be applicable again once the damage is determined as significant and remedial measures need to
be taken. This discontinuity is more important in those Member States where the threshold for
‘significant damage’ is very high, covering mainly severe cases.
it jeopardises the effectiveness of the ELD in relation to the achievement of its objectives. The
potentially applicable sectorial legislation is not based on the ‘polluter pays principle’ and does
not purports for the liability of operator; it is rather based on the responsibility of public
authorities unless there is fault (and sometimes negligence) in implementing of permits, regulatory
or legal requirements by the operator. Therefore tax payers would bear the cost of biodiversity
damages caused by operators, against the objective of the ELD.
The ELD should also be amended to include an obligation on the competent authorities to carry out
preventive measures should the operator fail to comply with the obligations or not be identified. In
this way, the added value of the ELD will be further strengthened (see Chapter 6).
8.2.3 Causal link
Whilst in many countries, e.g. Spain and Estonia, the causal link in the case of Annex III activity is
assumed, in other countries such as Germany, the UK, Italy, France, and Denmark, the causal link
requires investigation and proofs. Some countries such as France or Denmark use the changes in the
baseline condition as the indicator for the liability of operators, in respect to the damage. The
requirement of proof complicates the procedure and makes it more difficult, longer and more costly.
These difficulties increase in those cases of fault-base liability link to non-Annex III occupational
activities.
The case of Stóg Izerski in Poland illustrates the problems derived from the above.197
Here, the
operator was an investor that began construction of a cableway for a ski ride through StogIzerski – a
Natura 2000 site designated as a Special Protection Area under the Birds Directive, without an
environmental impact assessment. The operator ignored the obligation to monitor the Black Grouse
population in the construction area, the interdiction to continue work during the birds’ nesting season,
and did not comply with requests for information on measures to prevent negative impacts to the
Black Grouse population.198
The competent authority, the Regional Directorate for Environmental
Protection (RDOS), consulted with an expert and ordered the operator to undertake a list of specific
preventive and remedial measures in July 2012.199
In November 2012, the General Directorate for
Environmental Protection (GDOS) invalidated the RDOS decision on the grounds that the specified
remedial measures were not in compliance with the Damage Act that transposed the ELD into Polish
law.200
The two main challenges for ELD implementation in this case were, first, that the operator’s
actions were not subject to strict liability and the competent authority found it difficult to prove the
fault.201
Second, there was a lack of data and the significance of the damage could not be
197 BIO Intelligence Service, 2013. Implementation challenges and obstacles of the Environmental Liability Directive, Annex
– Part B prepared for European Commission – DG Environment in collaboration with Stevens & Bolton LLP 198 Idem to the footnote above, p. 5 199 Idem to the footnote above, p. 6 200 Idem to the footnote above, p. 6 201 Idem to the footnote above, p. 10
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determined.202
The case could not be determined as an ELD case and to date, neither the operator nor
the competent authority have undertaken any remedial actions.
In Raffinerie Mediterranee, the European Court of Justice203
found that the ELD does not specify how
a causal link between the activities of the operator(s) and the environmental damage is to be
established. Whilst the Court recognises the possibility that a Member State may impose remedial
measures for environmental damage on the presumption that there is a causal link between the
pollution found and the activities of the operator(s), if the latter are located close to that pollution, it
requires the competent authority to have ‘plausible evidence’ capable of justifying that presumption.
While the Court case only enables the use of the presumption if it exists, it does not change the
national law.
Recommendation: The wording of the ELD should be amended to reflect the Case law and ensure
harmonised implementation by clearly stating that the causal link should be assumed, if the operator is
located close to the pollution and that a ‘plausible evidence’ should be provided by the competent
authorities to justify the rebuttable presumption of a causal link under the ELD. This would facilitate
easier implementation of the ELD. A more simple system would reduce costs for implementation and
limit the duration of the process for determining liability.
8.3 Problems of implementation
8.3.1 Notification of biodiversity damages
Operators are required to inform, as soon as possible, on the imminent threat of environmental damage
– including ‘biodiversity damage’ and of all relevant aspects of the situation, when appropriate and in
any case when the preventive measures taken by the operator do not dispel the threat. Operators are
also required to inform, without delay, of the relevant aspects of the situation when the environmental
damage has occurred.204
The competent authorities have an obligation to require operators to take
preventive and remedial measures.205
Finally, certain natural and legal persons affected by the
environmental damage, and having a sufficient interest or alleging an impairment of a right, are
entitled to submit to the competent authorities any observations relating to instances of environmental
damage – including ‘biodiversity damage’, or an imminent threat of such damage, and to request
action, or request the competent authority to take action under the ELD.206
The analysis carried out in this study evidences that, in relative terms, the ELD system procedure was
initiated in more cases by a request for action by natural and legal persons within the meaning of
Article 12 of the ELD. Operators of occupational activities which, according to the ELD are the
primary responsible persons to submit a notification of imminent threat of ‘biodiversity damage’ do
not seem to fulfil their role in practice. Identification of the biodiversity damages would often require
monitoring and investigation procedures which are not systematically foreseen by operators or
competent authorities..
202 Idem to the footnote above, p. 10 203 Case C-378/08, Raffinerie Mediterranee, 9 March 2010, [2010] ECR I-0000, paras. 56-58 204 ELD, Art. 5(2) and 6(1) 205 ELD, Art. 5(4) and 6(3) 206 ELD, Art. 12(1)
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Recommendations: Reports by the inspection authorities on breaches of emission limit values for
Annex III activities should immediately trigger actions on possible environmental biodiversity damage
cases and the need for prevention and remedial measures.207
Furthermore, the ELD should contain an
obligation on the operators and the competent authorities to carry out regular monitoring and
inspection activities in their surroundings with the aim to identify biodiversity damage, or imminent
threat of biodiversity damage.
8.3.2 Costs of implementing competent authorities obligations: Assessment of
damages
In accordance with Article 11(2) of the ELD, the Member State’s competent authority has the
responsibility, inter alia, to establish the operator who caused the damage, or its imminent threat; and
to assess the significance of the damage.
These obligations require investigation, inspections or other type of activities that incur costs. It is
understood that the operators should ultimately bear the costs of the above indicate responsibilities.
However, those costs would be borne by the competent authorities in cases where the operators could
not have been established or the threshold of significant damage was not reached.
According to the research carried out, the competent authorities may be hesitant to carry out the above
mentioned duties due to the costs that authorities may incur and which may not be able to recover.
While the competent authority is obliged to recover the costs incurred in relation to preventive and
remedial actions, the legislation is not clear regarding the costs incurred in relation to the assessment
of the significance of the biodiversity damage and whether they can be considered part of the
preventive or remedial measures which shall certainly be recovered by the CA - unless the operator
has a defence, is bankrupted or is not identifiable. The costs would certainly not be recovered if the
results of the assessment carried out would determine that the damage is not significant and therefore
the case is not determined as an ELD case.
These costs may have a deterrent effect on the competent authorities to apply the ELD system
therefore hindering the application of the Directive and fulfilment of its objective. For example, this
was recognised as an issue by Estonia208
. Furthermore, the procedures required for the assessments due
under Article 6(2) or even under Article 6(3) of the Habitats Directive could be harmonised with those
to be carried out under the ELD in order to reduce costs. The competent authorities in the UK209
highlighted that the difficulties and costs associated with the necessary assessment to determine
‘significant biodiversity damage’, or its threat, may have a deterrent effect on the application of the
ELD regime. Furthermore national representatives interviewed stated the ELD is considered a cross-
cutting instrument, prescriptive on process rather than result-oriented, and that, in practice, a legal
instrument that would enable a similar result achieved by using a more flexible tool but with different
thresholds and standards such as the pre-existing legislation has been prioritised. The pre-existing
system in the UK includes certain liability provisions for damages to biodiversity triggered through
Court action and the imposition of sanctions to operators.
207 For example, in Bulgaria and Slovenia, there are no cases of remedial measures carried out for ‘biodiversity damage’. On
the other hand, information from relevant inspectorates (such as the Regional Inspectorates for Environment and Water)
suggests that there are a significant number of cases of breach of emission limit values by Annex III activities. 208 From Estonian Report on the application of Directive 2004/35/EC on environmental liability with regards to the
prevention and re,eddying of environmental damage submitted pursuant to Article 18 of the ELD on 15 April 2013. 209 See Annex I to this Study
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Recommendations: The problem of costs associated with establishment of a liable operator and
assessment of significance of damage could be reduced by harmonising the assessments to be carried
out under nature conservation legislation and under the ELD, including the harmonisation of the
thresholds of significant damage and significant disturbance as well as the deteriorations.
Furthermore, Member States should be encouraged to share best practices and lessons learnt from the
establishment of national funding mechanisms to finance these costs. Consideration should be given to
Member States experiences such as the initiative in Slovenia where a special Fund funded by polluter
pays taxes of Annex III activities was set up; however, this funding has not been used to cover the
costs linked to the prevention or remedial measures under the ELD. Similar Environmental Funds at
national level have been set up in Sweden and the Netherlands but their legal basis were abolished at a
later stage because of the Funds’ lack of positive results. The Fund in Finland is still operational.
8.3.3 Obligations on competent authorities: Preventive and Remedial
measures
The Commission may also consider amending the ELD to include an obligation on the competent
authorities to carry out preventive and remedial measures should the operator fail to comply with the
obligations or not be identified.
Under the ELD the competent authorities hold the responsibility to undertake the preventive
measures if the operator does not carry them out. According to the current text of the Directive, the
competent authority should establish which operator has caused imminent threat of damage210
and
require the operator to take preventive measures.211
However, if the operator fails to comply with the
obligations, cannot be identified or is not required to bear the costs under this Directive, the competent
authority may take these measures itself.
Similar legal structure is designed for remedial measures. According to the current text of the
Directive, the competent authority should establish which operator has caused the damage212
, assess
the significance of the damage – or require the operator to do so,213
, determine which remedial
measures should be taken214
and require the operator to take remedial measures. However, under
Article 6(3) if the operator fails to comply with the obligations and adopt the necessary remedial
measures, cannot be identified or is not required to bear the costs under this Directive, the competent
authority may take these measures itself, as a means of last resort.215
.
In the proposal for a Directive published by the Commission, the competent authorities were required
to take preventive measures under certain conditions216
and to take the remedial measures in the above
mentioned cases where the operator cannot be made liable.217
In the adopted text of the Directive, this
was watered down to a power of discretion,218
which had an impact on the implementation of the ELD.
210 ELD, Art. 11(2) 211 ELD, Art. 5(4) 212 ELD, Art. 11(2) 213 ELD, Art. 11(2) 214 ELD, Art. 11(2) 215 ELD, Art. 6(3) 216 Art. 4(1) and (4) and 13(2) of the Commission’s proposal for the Directive COM(2002) 17 final 217 Art. 6(3) of the ELD of the Commission’s proposal for the Directive COM(2002) 17 final 218 ELD, Art. 5(4)
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One of the added values of the ELD is that it establishes a system where the operator is required to act
to prevent an imminent threat of damage but it gives a possibility to the competent authorities to act
themselves in case no action to prevent the imminent threat of environmental damage is undertaken
and to recover the costs. Furthermore, operator is required to take all the necessary remedial measures
(including those aiming to limit or prevent further damage) while recognising the role of the public
authorities to intervene and to recover the costs. This is something that, for example, the Industrial
Emissions Directive does not provide for. In case of the competent authorities acting under Article
6(2) of the Habitats Directive, which has a more restricted scope than the ELD because it is only
applicable to certain areas, relates only to prevention, not to restoration and does not foresee any
liability on operators, the costs of competent authorities’ actions are borne by the tax payers. The UK
the system for nature conservation linked to the Habitats Directive includes some liability elements to
restore damage that can be triggered through Court action.
Under the Bulgarian system, the competent authorities are required to undertake remedial measures
under certain circumstances. In this way, the Bulgarian legislation goes beyond the requirements of
the ELD. Similarly in Poland the authorities are required to take preventive or remedial measures
should the operator fail to take them, or if it cannot be identified, if enforcement against this entity
cannot be initiated or is ineffective, or in case of risk to human life, health or irreversible
environmental damage219
.
The Commission may consider to amendment articles 5 related to the obligation of the competent
authorities to carry out preventive measures should the operator fail to comply with the obligations or
not be identified would further strengthen the added value of the ELD. Similarly Article 6 of the ELD
should be amended in a way to include an obligation of the competent authorities to carry out remedial
measures when the operator fails to comply with the obligations, cannot be identified or is not required
to bear the costs under the Directive. In this way, it will be ensured that remedial measures are carried
out in each case. Financing of these measures could be fed by polluter pays taxes of Annex III
activities in order to avoid the transfer of costs from operators to tax payers.
8.4 The need to increase awareness Awareness about the ELD is needed in different ways. First, there is a need for properly understanding
the Directive by those in charge of its implementation, namely the competent authorities and the
operators. Certain technical aspects of the Directive such as the assessment of biodiversity damage
require support and awareness measures. In addition, stakeholder’s awareness is needed to ensure their
involvement in identifying damages or providing input for risk assessments. Finally, the research
evidences that operators do not always notify the imminent threat of damage or the damage itself.
Recommendations
Training is needed at national and local level. Some of the problems mentioned in this report could be
solved if the measures suggested for improvement were accompanied with training and raising
awareness campaigns. Indeed, measures to clarify certain ELD concepts, or to solve problems in the
implementation such as the lack of operator’s notification, would require the development of training
at national and local level. However, training and awareness raising measures would only work within
the appropriate legal framework and the structures designed to implement it. Guidance documents
explaining the interpretation of the legal framework, procedures and competent authorities help the
219 Article 16 of the APRED.
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implementation. However, an effort of harmonisation in the interpretation of certain concepts is
needed. The Commission training material should be used as the basis for implementing the
recommendations above.
Furthermore the Commission may want to consider promoting a more systematic sharing by Member
States representatives of best practices and information dissemination initiatives reaching local
authorities, operators and stakeholders. The Commission could facilitate it maybe through the
coordination meetings (allocating time for presentations on this issue) but also through allocating
funding for raising awareness projects. Specific attention should be made to the development of
register of ELD cases with information on the notification of damages and the preventive and remedial
measures (to be) undertaken.
Different Member States have invested different efforts in raising awareness concerning the
implementation of the ELD. Whilst several countries have developed Guidance documents to facilitate
the implementation of the Directive, i.e. Denmark, France, Spain and the UK, some others have gone
further and have undertaken the task to provide training for stakeholders and local authorities, for
example France and Spain.
Based on a guidance document and briefings on the implementation of ELD, training sessions at
national level have been developed in France to raise the awareness of public authorities and the
general public about the implementation of ELD. Furthermore, free-of-charge software has been
developed by the University of Montpellier III in collaboration with the Centre for Functional and
Evolutionary Ecology (CEFE) in Montpellier. It allows calculation of the cost of damages and the
benefits from the restoration measures. It thus facilitates the definition of ‘significant damage’ and the
design – in time and space, of the restoration project. The software is also available to the public free-
of-charge.
Similar to France, Spain considered that the implementation of the ELD requires raising awareness
measures to communicate the key elements of the Directive to ensure harmonised interpretation. Both,
the General Administration of the Spanish State and the Autonomous Communities have organised
numerous training courses and information sessions for operators and competent authorities on the
application of environmental liability rules, including how the financial guarantees apply.
Furthermore, an IT tool has been developed to offer operators and industrial sectors with
comprehensive assistance for calculating the financial cost of the environmental damage associated
with each risk scenario, as well as, the costs of the remedial actions – including primary and
compensatory measures, and additional measures, along with the best available techniques to return
the natural resources and the services that these provide, to their baseline condition. This application
gives both operators and public administrations guidance as to which are the best remedial techniques
to apply if environmental damage occurs and the need arises to design a project to remedy it. Another
interesting tool developed in Spain is a mailbox consultation service and technical assistance for
Annex III operators to implement the provisions related to the environmental risk assessment under
Spanish Law.
Estonia has a register containing a list of all ELD cases which is regularly updated and publicly
accessible online. Information on the cases of environmental damage and the threat of damage is
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provided in this website220
. It also includes up to date information on the notification of environmental
damage or threat of it and the rights of the persons concerned can be found online. This register is to
be further developed and merged with the environmental information system currently in use. Such a
solution would allow expert assessments submitted in the course of proceedings, monitoring data,
information on any submitted notices of environmental damage, as well as any other important
information, to be stored compactly – allowing the existing information to be used within the context
of a case or as part of national monitoring activities. Although there are no guidelines on the
interpretation of the significance of ‘biodiversity damage’, a series of information days have been
organised with an aim of raising awareness amongst operators and the general public on
environmental liability.
In Poland, in 2009, the General Directorate for Envrionmental Protection disseminated a letter among
Regional Directorates for Environmental Protection disclosing its position on the correlation between
thermal modernisation works in buildings settled by common swifts. This letter contributed to
existence of 21 similar ELD cases in Poland. Furthermore, the Environmental Protection Inspectorate
manages a register gathering information in electronic form of cases of environmental damages and
imminent threats of such damages including the preventive and remedial measures carried out221
. The
Register is open to public access on a request. Italy is considering the development of a Register of
cases in order to ensure awareness raising and proper management of the ELD cases.
In Bulgaria, the Ministry of Environment and Water provides information about the ELD on its
website under a section designated specifically for Environmental Liability222
providing access, inter
alia, to environmental liability-related legal instruments and training materials on the implementation
of the ELD legislation. A register of operators carrying out occupational activities has been set up and
a guidance document for is implementation is available on line223
. Annual workshops are organised
with competent regional authorities where the implementation of LPREDA is discussed. Workshops
on the implementation of LPREDA are also organised for operators – even so, the interest of
environmental NGOs in the implementation of LPREDA has dwindled over time.
At EU level, the Commission has developed a guidance document to support Member States
application and interpretation of the Directive entitled; Environmental Liability Directive: Training
Handbook and Accompanying Slides. Furthermore training events are being promoted aiming to reach
most Member States. A European Biodiversity Registry for ELD is currently being developed with
information sources at EU level as well as in each of the EU Member States about biodiversity to help
determine biodiversity baseline condition.
Recommendation: The Commission may want to consider making the European Biodiversity
Registry for ELD available to the public in the specific ELD website.
8.5 Financial Securities – ELD
Article 14 of the ELD requires Member States to take measures to encourage the development of
financial security instruments and markets by the appropriate economic and financial operators,
220 Environmental Board website:http://www.keskkonnaamet.ee/teenused/keskkonnakorraldus-2/keskkonnavastutus-2/keskkonnakahju-ja-
kahju-ohuga-seonduv-teave/, accessed on 14 November 2013. 221 Article 28a of the Act on the Environmental Protection Inspectorate of 20 July 1991 and Ordinance on the register of imminent threats of environmental damage and environmental damage of 26 February 2008 222 http://www.moew.government.bg/?show=top&cid=280, accessed on 8 October 2013. 223 http://www.moew.government.bg/?show=top&cid=329, in Bulgarian, accessed on 26 January 2014.
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including financial mechanisms in case of insolvency, with the aim of enabling operators to use
financial guarantees to cover their responsibilities under the Directive. The Commission reviewed the
situation in 2010 and considered that it was too early to propose a harmonised mandatory financial
security regime as there is no experience enabling to conclude the need for it.
It appears that only eight EU Member States have opted for mandatory financial security, including
Spain and Bulgaria, whilst others, e.g. France, have opted for reinforcing the insurance system for
environmental damages.
Recommendation: Further analysis and exchange of information should be ensured in order to
determine whether a harmonised mandatory financial security regime is needed and the obstacles
encountered by Member States. The analysis should be carried out with a view to ensure a high level
of environmental protection and particularly the objective to halt biodiversity loss.
8.6 Baseline Information Sources
There is a comprehensive amount of data available that can be used to establish the biodiversity
baseline condition within EU for use under the ELD application. The following recommendations are
proposed to the European Commission and the national competent authorities to enable easy access to
biodiversity baseline data for effective implementation of the ELD.
At the EU level, a centralized biodiversity baseline data register for ELD biodiversity
damage should be hosted and updated under an existing biodiversity information platform
such as the Biodiversity Information System for Europe (BISE).
o It is important to note that no website at the EU level is specifically dedicated to ELD
biodiversity damage reporting and establishing the biodiversity baseline condition. In order to
utilise the information contained in the ELD biodiversity register, it needs to be embedded in
relevant platforms. This would increase the usage of such information.
o ELD implementation for biodiversity damage will benefit substantively from the availability of
such interconnected information entry points, and they could also serve a much wider audience
and purpose with its easy access of related information.
o The EU Commission’s webpage on ELD is a natural platform to place the register for
biodiversity baseline data to be accessed by relevant actors. Nevertheless, considering the
constant development in biodiversity assessment and reporting, it is recommended eventually to
host and update the register under a biodiversity-focused information system, such as the BISE.
o BISE already contains links to each member state but we would recommend a specific page on
the website relating to ELD. Here, under each Member State, important website information
could be placed and categorised according to the colour coding of the register (see ELD
biodiversity register). This would allow Member States who are not so developed, in terms of
ELD baseline data and reporting, the opportunity to access and benefit from the experiences of
other leading countries such as Spain, Estonia and the UK. It would also prove useful to
compile the data at the national level to form an EU level ELD baseline biodiversity database to
allow for the assessment of biodiversity baseline condition at the EU level.
o However, this process will not happen independently once the first stage is complete, i.e. the
website created and the information embedded. The website would need to be promoted,
updated and utilised for it to be a success. The ELD Working Group would provide a good
place to begin this second stage.
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At the national level, competent authorities of Member States are to be supported to
streamline the biodiversity baseline data through either existing platforms or the creation of
a centralized biodiversity data inventory.
o To understand the baseline condition of any given area, the ‘operator’ may need to use an EU
level database of baseline biodiversity information, but more importantly the ELD databases at
the Member State level.
o A centralised national ELD database: It is important for the European Commission to create an
enabling environment to encourage and assist each Member State to create their own ELD
databases, as many of the ELD cases will only be relevant to the host country, and so the
operator will require information specific to the national or local level.
o Natura 2000 is identified as a common source of information of biodiversity condition in each
Member States. As the information in the Natura 2000 websites is required to cover the
Habitats Directive and Birds Directive which overlaps with the scope of focus for ELD
biodiversity damage, the Member States could consider linking the Natura 2000 database with
more specific baseline data required for ELD biodiversity damage, in particular detailed
information from the subnational level. Mutual links at both the Natura 2000 websites and
national ELD platform should be created to address the issue of biodiversity damage.
o It is also recommended that capacity building programmes for the ELD should be designed
and conducted to key stakeholders of Natura 2000 at the national level. An in-depth
understanding of ELD reporting and of what data is required, would help the departments
involved in Natura 2000 to provide the appropriate data to allow for Member States to
effectively report on ELD biodiversity baseline condition. This will help to create a
momentum and technical support network from biologists, zoologists and ecologists to ELD
competent authorities in preventing and remedying biodiversity damage.
o In addition to Natura 2000, competent authorities of Member States should be encouraged to
establish other centralized information platforms for the dissemination of ELD relevant
baseline biodiversity condition data beyond the Natura 2000 network. Inventory on Natural
Heritage and Biodiversity maintained by the Ministry of Agriculture, Food and Environment
of Spain is a good example. These websites can then be listed on the EU central ELD platform
and this can then help build a database for Europe.
o When considering the creation of a centralized information platform on biodiversity baseline
data beyond Natura 2000 for the ELD, the competent authorities of Member States could also
consider the Clearing House Mechanism of the Convention on Biological Diversity (CBD)
which has been established by most of the Member States. The main purpose of the CBD
Clearing House Mechanism is to fulfil the requirement of CBD parties in information service
and facilitation of scientific and technical cooperation, knowledge sharing and information
exchange. Nevertheless, the biodiversity data and information included could serve the
purpose of ELD biodiversity damage as well. It can also provide a potential solution to
streamline the scattered information of biodiversity at the national level.
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Encourage public participation in creating and updating biodiversity baseline data for
effective ELD application, particularly at the sub-national level through the use of smart
phone applications and other latest information and communications technology.
o It is not new that volunteers and nature lovers participate in biodiversity data collection such
as bird counting and surveys. However, with the rapid development and use of the new
communications technology based on mobile devices, there is an unprecedented potential to
mobilize and channel data from the so called “crowd sourcing” movement.
o During the course of this study, both ELD focal points of Spain and Germany have reported
the success of using smartphone applications in involving the public in the collection of
biodiversity data at local and national levels to improve and update the existing biodiversity
data. Successful experiences of mobile applications for biodiversity data collection and species
identification have been identified in the UK, France and Germany at proximamobile.eu, the
European Portal of Mobile Services for Citizens. These and further experiences and case
studies among EU Member States need to be identified and promoted to document
biodiversity status and changes to support ELD implementation.
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http://www.developpement-durable.gouv.fr/IMG/pdf/Ref-LRE.pdf .
The Environmental Liability Law and equivalency methods (July 2012 –English version). France. At:
https://melanissimo.developpement-
durable.gouv.fr/lecture.jsf?uuid=a68f13ea74835beaa7d4952be0c33e7f
Environmental Protection Agency, Ireland (2011), Environmental Liability Regulations: guidance
document. Available at:
https://www.epa.ie/pubs/advice/general/environmentalliabilityregulations.html#.UrP55yfCsnY
The Netherlands (2008) Guidelines for Part 17.2 of the Dutch Environmental Management Act:
measures in the event of environmental damage or its imminent threat (English translation). Available
at: http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/netherlands.pdf
Agencia Portuguesa do Ambiante, Ministério da Agricultura, do Mar, do Ambiente e do Ordenamento
do Território (2011), Guia para a Avaliação de Ameaça Iminente e Dano Ambiental Responsabilidade
Ambiental. Available at:
http://www.apambiente.pt/_zdata/Instrumentos/Responsabilidade%20Ambiental/Guia%20%20Avaliac
ao%20de%20Dano%20e%20Ameaa%20Iminente.pdf
German Federal Agency for nature Conservation - http://www.bfn.de/15346+M52087573ab0.html
Spanish Ministry for Agriculture, Food and Environment:
http://eportal.magrama.gob.es/mora/login.action
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The following guidance documents in the UK:
- The Environmental Damage (Prevention and Remediation) Regulations 2009 – Guidance for
England and Wales225
;
- The Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009
Guidance226
;
- Environmental Liability (Scotland) Regulations 2009 Guidance227
.
225 2nd Update, November 2009. Available under the following link:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/221095/pb13895-indepth-guide-regs09.pdf,
accessed 24 October 2013. 226 Available under the following link: http://www.doeni.gov.uk/eld_guidance.pdf, accessed on 24 October 2013. 227 http://www.scotland.gov.uk/Topics/Environment/waste-and-pollution/Pollution-1/ELD/ELDGuidance, accessed on 27
January 2014.
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10 Annex 1 – Description of selected Member States’ ELD regimes
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ELD implementation - Country Report for Bulgaria
1. Introduction: legal and institutional framework
The primary transposing legal act is the Liability for Prevention and Remediation of Environmental
Damage Act (LPREDA) adopted through ‘O.G. Republic of Bulgaria’ No. 43/2008 amended by
12/2009, 32/2009, 35/2009, 77/2010, 98/2010, 92/2011, 14/2012 and 53/2012. The transposition of
the ELD was therefore late. Other transposing legal instruments are: the Regulation 1/2008 on types
of preventive and remedial measures under the LPREDA the minimum cost of implementation of such
measures, and the Regulation concerning the public register of operators who carry out activities
referred to in Annex 1 to Article 3(1) of LPREDA i.e. ‘O.G. Republic of Bulgaria’, No. 109.
Guidelines related to the public register of operators carrying out activities referred to in Annex 1 to
Article 3(1) of LPREDA were issued by the Ministry of Environment and Water are available
online228
.
According to the LPREDA, the following authorities are the competent environmental liability
authorities:
- the Ministry of Environment and Water;
- the Regional Inspectorates for Environment and Water – within the Ministry of Environment
and Water;
- the Water Management Directorates;
- the National Park authorities229
.
2. Definition of relevant terms
Biodiversity damage is defined as a damage to protected species and natural habitats that has
significant adverse effects on reaching or maintaining the favourable conservation status of such
habitats or species230
. The definition of favourable conservation status is related to the Biological
Diversity Act231
. The criteria for the establishment of ‘significant damage’, as indicated in Annex I of
the ELD, has been transposed almost literally in Annex 2 of the LPREDA.
Bulgaria did not extend the applicability of the environmental liability regime to habitats or species
not covered by relevant provisions of the Habitats (92/43/EEC) and Birds (2009/147/EC) directives232
.
According to LPREDA, for all activities listed in Annex 1 of the Act, i.e. Annex III of the ELD, the
strict liability regime applies. Bulgaria limited the strict liability regime to those activities indicated in
Annex III of the Directive233
. For those activities not listed in Annex 1 of the LPREDA, i.e. Annex III
228
http://www.moew.government.bg/?show=top&cid=329, in Bulgarian, accessed on 26 January 2014. 229 Article 6 of the Prevention and Remediation of Environmental Damage Act (‘O.G. Republic of Bulgaria’, No. 43/2008, 12/2009, 32/2009, 35/2009, 77/2010, 98/2010, 92/2011, 14/2012 and 53/2012). 230 Article 4(1) of the LPREDA. 231 § 1(3) of the LPREDA. 232 Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental liability with regard to the prevention and
remedying of environmental damage, COM(2010) 581 final, p. 3 and 4. 233 The EU Environmental Liability Directive – A Commentary, ed. Lucas Bergkamp and Barbara Goldsmith, Oxford University press (2013), p. 153.
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of the ELD, the operator or the third party is considered liable if it has been at fault for environmental
damage.
An operator under this legislation is considered either as:
a) a natural person, a trader within the meaning of the Commerce Act, a cooperative as defined in the
Cooperatives Act, a person as defined in the Act on non-profit legal persons, a partnership as
defined in the Obligations and Contracts Act, a budget-funded enterprise within the meaning of
the Accountancy Act, a State enterprise not formed under the Commerce Act;
or;
b) a natural person, a trader, a non-profit legal person, a budget-funded enterprise within the national
legislation of another State which performs an activity on the territory of the Republic of Bulgaria
– including when it has been delegated rights to carry on such an activity or it holds a permit,
authorisation or licence in respect of the activity.
The definitions of prevention and remediation – including different types of remediation, are
included in the LPREDA234
. Remediation measures, as indicated in Annex II of the ELD, are
transposed under Annex 4 of the LPREDA.
According to the LPREDA, the Executive Environment Agency is required to create and maintain a
database at national level of the status of protected species and natural habitats235
. This database is
closely linked to an obligation stemming from Article 115 of the Biological Diversity Act which
requires creation of a national system for monitoring biodiversity236
. Currently, the available data is
insufficient to prepare assessment of the status of species at the national level, but this is expected to
improve by 2015237
.
3. Application of the ELD in Bulgaria
Bulgaria submitted a report to the Commission on the experience gained in the application of the
Directive in accordance with Article 18(1) of the Directive – the national Report. The report concerns
environmental damage that occurred in the period of 29 April, 2008 to 30 April, 2013. According to
the Report, a register of operators carrying out activities listed in Annex III of the ELD regime was
created and is being continuously updated.
Furthermore, the Report states that not a single case of environmental damage has been observed in
Bulgaria during the reference period. However, it does refer to two cases where preventive measures
were carried out due to imminent threat of ‘biodiversity damage’. In both cases, the damage could also
potentially affect water and/or soil. One of the cases was still on-going when the national Report was
being drafted.
However, the number of ELD biodiversity damage cases in Bulgaria might actually be higher than the
number of cases reported. Information from the Regional Inspectorate for Environment and Water
evidences an important number of infringement cases from Annex III activities238
. Yet, the competent
234 § 1 of the LPREDA. 235 Article 11 of the Prevention and Remediation of Environmental Damage Act (‘O.G. Republic of Bulgaria’, No. 43/2008, 12/2009,
32/2009, 35/2009, 77/2010, 98/2010, 92/2011, 14/2012 and 53/2012). 236 Response to the questionnaire requesting further information sent to the identified Member State authority. 237 Response to the questionnaire requesting further information sent to the identified Member State authority.
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authorities have not considered any of them as falling within the framework of the ELD – probably
because the ‘significant adverse effect’ is linked by law to human health risks.
Despite the fact that financial guarantees are mandatory in Bulgaria, they have rarely been used in
practice. Bank guarantees, pledges and mortgages were available from April 2008, whilst insurance
policies were only developed from January 2011, and since then, 24239
out more than 600240
operators
have acquired such insurance policies.
The Ministry of Environment and Water provides information about the ELD on its website under a
section designated specifically for Environmental Liability241
. The following, inter alia, can be
accessed on the website:
- texts of relevant environmental liability-related legal instruments;
- information and training materials on the implementation of the ELD legislation;
- a list of operators whose information is entered into the public register, i.e. operators carrying
out ELD Annex III activities.
According to the Report, competent authorities have been meeting on an annual basis to discuss and
exchange information on the practical experience gained in the application of the ELD legislation.
Competent authorities are investing efforts in raising awareness concerning the implementation of
LPREDA. Annual workshops are organised with competent regional authorities where the
implementation of LPREDA is discussed and the latest information received from the European
Commission is presented. Workshops on the implementation of LPREDA are also organised for
operators – even so, the interest of environmental NGOs in the implementation of LPREDA has
dwindled over time. All the relevant information is published on the website of the Ministry of
Environment and Water242
.
Coordination between the ELD and sectorial legislation systems
Bulgarian authorities interpreted the Directive in a way that the criteria for significant environmental
damage are only met if there is a danger to human health. In those cases, the competent authority
should determine that the damage is significant and that the beginning of the procedure243
is based on
the LPREDA. For those cases not considered as falling within the ELD, the sectorial, e.g. industrial
emissions, and biodiversity legislation would be applicable244
.
The existing sectorial legislation in Bulgaria regulating Annex III activities does not recognise the
powers of the competent authorities to carry out preventive measures in relation to potential or
imminent damages – the ELD transposing legislation closed that gap.
239 Response to the questionnaire requesting further information sent to the identified Member State authority. 240 http://www.moew.government.bg/files/file/Industry/Registri/Publichen_registar_ZOPOESht.xls, accessed on 9 October 2013. 241 http://www.moew.government.bg/?show=top&cid=280, accessed on 8 October 2013. 242 http://www.moew.government.bg/?show=top&cid=280, accessed on 8 October 2013. 243 Phone call with relevant Bulgarian authorities that took place on 15 November 2013. 244 Phone call with relevant Bulgarian authorities that took place on 15 November 2013.
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Analysed case245
The analysis of the implementation of ELD by Bulgaria has been further developed through the
selection of one of the cases of imminent threat of biodiversity damage. The case concerned an IPPC
installation246
where toxic substances were used and the toxic waste disposed into a toxic water tank.
The operator went insolvent prior to event causing the threat of damage. Pumps were used to prevent
this toxic water from spilling over into the river which contained protected species. Furthermore, the
pollution of the river by the toxic spill from the tank could cause risk to human health. The competent
authority decided to apply the LPREDA because it would facilitate the adoption of preventive actions
by the authorities to avoid the spill over effect.
ELD implementation related to biodiversity damage: Challenges and obstacles
Bulgaria
ELD
National legislation / Application
GENERAL
1. Experience in establishing a causal link between the
damage and the activities of individual operators –
Article 4(5) ELD, in cases of damages caused to
biodiversity.
Legal remedies used by the operator – Article 11(4)
ELD.
Article 4(5) of the ELD is transposed in Bulgaria in Article
3(3) of the LPREDA.
According to the Report, no instances of ‘biodiversity
damage’ were observed. However, the causal link between
the imminent threat of damage and the operator was easily
determined as the operator informed the competent
authorities of the situation.
According to the LPREDA, operators are permitted to use
legal remedies against orders imposing preventive and
remediation measures by the competent authority247. The
lack of cases implies that this provision has not been used.
The lack of solvency by the operator in the case analysed
justified the adoption of the prevention measures by the
authorities.
2. Procedure for notification of information – Articles
5(2), (3)(a) and Articles 6(1),(2)(a) of the ELD.
Availability of such information to third parties in
relation to Article 12.
The LPREDA transposed the Directive in this regard.
The operator informed the competent authority of the threat
of damage in accordance with Article 20(2) and (3) of the
LPREDA.
PREVENTIVE MEASURES
3. Procedure set in place in national legislation
concerning the prevention procedure – Article 5 ELD,
namely:
- experience in requiring the operator to take
the necessary preventive measures, or
alternatively, preventive measures taken by
competent authorities – Article 5(3) ELD);
According to the LPREDA, the operator is obliged to
undertake preventive measures. In case the undertaken
measures do not avert the imminent danger, the operator is
obliged to inform the competent authority of it without a
delay. According to the LPREDA, the operator is required
to provide the competent authority with information on the
imminent threat of damage and to propose additional
preventive measures. The competent authority is required to
245 Information concerning the analysed case was obtained from the Report on the experience gained in the application of Directive 2004/35/EC on environmental liability with regards to the prevention and remedying of environmental damage, submitted pursuant to Article
18 of the ELD, responds to the questionnaire requesting further information sent to relevant Bulgarian authorities and phone interview
carried out with the relevant Bulgarian authorities. 246 Installation subject to Integrated Pollution Prevention and Control Directive referred to in the ELD Annex III as Directive
96/61/EC. 247 Articles 20, 29 and 36 of the Prevention and Remediation of Environmental Damage Act (‘O.G. Republic of Bulgaria’, No. 43/2008, 12/2009, 32/2009, 35/2009, 77/2010, 98/2010, 92/2011, 14/2012 and 53/2012).
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ELD implementation related to biodiversity damage: Challenges and obstacles
Bulgaria
- giving instructions for these measures to be
taken and taking these measures itself.
carry out on-site inspections and may order additional
preventive measures to be undertaken248. In case the
operator does not, or cannot, take the preventive measures,
the Ministry of Environment is required to issue an order
designating a local authority to carry them out249.
According to Article 20 of the LPREDA, operators whose
activities have resulted in imminent threats of
environmental damage are required to immediately
implement preventive measures.
In the analysed case, the operator informed the authority of
the imminent threat of damage in accordance with Article
20(2) and (3) of the LPREDA. On-site inspection was
carried out in accordance with Article 20(4) of the
LPREDA. The competent authority asked for preventive
measures to be carried out in accordance with Article 20(5)
of the LPREDA.
However, they were implemented by the competent
authority two months after discovery of the imminent threat.
The preventive measures consisted of paying the electricity
bill to enable the use of the pumps, preventing the contents
of the toxic water tank from spilling over into the river.
REMEDIAL MEASURES
4. Timing and procedure for carrying out remediation
measures – Articles 6(2)(b – e), 7, and 11(2) ELD, in
cases of damages to biodiversity. Reference to national
legislation.
According to the LPREDA, in case of ‘biodiversity
damage’, the operator is obliged to inform the competent
authority about it immediately and to undertake primary
remediation measures250. In case the damage occurs, the
operator is obliged to immediately take all practicable steps
to control, contain and remove contaminants and/or other
factors causing the environmental damage in order to limit
or prevent further environmental damage, adverse effects on
human health and further impairment of natural resources
services251. These measures are called emergency remedial
measures.
Within ten days of the occurrence of the damage, the
operator is obliged to propose the necessary remediation
measures. According to the LPREDA, the competent
authority will carry out inspection and order/approve the
remediation measures.
When the operator does not take emergency remedial
measures, the Ministry of Environment is then required to
carry them out, list specific remedial measures and the
deadlines for their enforcement, and identify the local
authority, i.e. the regional governor, responsible for
implementing them. In case the operator cannot take the
remediation measures, the Ministry of Environment is
required to issue an order designating a local authority, i.e.
the regional governor, to carry them out.
248 Chapter 2, Section I of the Prevention and Remediation of Environmental Damage Act (‘O.G. Republic of Bulgaria’, No. 43/2008,
12/2009, 32/2009, 35/2009, 77/2010, 98/2010, 92/2011, 14/2012 and 53/2012). 249 Article 24 of the Prevention and Remediation of Environmental Damage Act (‘O.G. Republic of Bulgaria’, No. 43/2008, 12/2009, 32/2009, 35/2009, 77/2010, 98/2010, 92/2011, 14/2012 and 53/2012). 250 Article 26 of the Prevention and Remediation of Environmental Damage Act (‘O.G. Republic of Bulgaria’, No. 43/2008, 12/2009,
32/2009, 35/2009, 77/2010, 98/2010, 92/2011, 14/2012 and 53/2012). 251 Article 26(1) of the APRED.
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ELD implementation related to biodiversity damage: Challenges and obstacles
Bulgaria
In Bulgaria, neither ‘permit defence’ nor the ‘state-of-the-art
defence’ – Article 8(4) of the Directive, are applicable252.
No cases of remediation of ‘biodiversity damage’ were
reported.
5. The timing and procedure for definition of the operator
that caused the biodiversity damage, assessment of
significance of the damage, and determination of the
remedial measures – Article 11.
No cases of remediation of ‘biodiversity damage’ have been
reported and, therefore, the effectiveness of the deadlines
established under law could not be assessed.
COSTS
6. Experience in covering the costs of preventive and
remediation actions – Article 8 ELD.
Legal framework and practical implementation
concerning the exception to bear the costs of preventive
and remedial actions taken pursuant to the ELD –
Article 8(3) and (4) ELD).
Legal framework and practical experience concerning
financial security instruments and markets – Article 14
ELD, in cases concerning protected species and natural
habitats.
Financial guarantees to cover responsibility in case of
an operator’s insolvency.
The provisions concerning the costs are contained in the
LPREDA and the Regulation on types of preventive and
remedial measures under LPREDA and the minimum cost
of such measures – ‘O.G. Republic of Bulgaria’, No.
96/2008.
In Bulgaria, according LLPREDA the operators (carrying
out the occupational activities listed in the Annex III of the
ELD) financially secure the activities under the law through
choosing among at least one of the following financial
instruments - insurance, bank guarantee, pledge, mortgage.
According art. 43 (3) of LLPREDA the insurance cannot be
less than BGN 50,000253.
In the analysed case, the operator did not have a financial
guarantee. Costs were paid by the competent authority
which did not initiate a cost recovery procedure presumably,
because the costs of recovery would exceed the amount to
be recovered.
REQUEST FOR ACTION AND LEGAL REVIEWS
7. Legal framework on natural and legal persons entitled
to request action by competent authorities – Articles
7(4) and 12 ELD, including definitions of sufficient
interest and impairment of a right.
Obstacles preventing them from requesting action by
the competent authorities – Article 12(1) ELD.
The relevant legislation contains provisions regarding the
request for action and legal reviews254. However, no cases
concerning the request for action have been reported.
8. Recorded cases of legal review procedure (Article 13
ELD). Awareness among NGOs concerning this right.
No cases have been reported.
252 Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental liability with regard to the
prevention and remedying of environmental damage, COM(2010) 581 final, p. 4. 253 BGN is pegged to EURO. BGN 50,000.00 = EUR 25,516.22. 254 Chapter Four of the Prevention and Remediation of Environmental Damage Act (‘O.G. Republic of Bulgaria’, No.
43/2008, 12/2009, 32/2009, 35/2009, 77/2010, 98/2010, 92/2011, 14/2012 and 53/2012).
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4. References
Legislation:
- Liability for Prevention and Remediation of Environmental Damage Act – ‘O.G. Republic of
Bulgaria’, 43/2008, 12/2009, 32/2009, 35/2009, 77/2010, 98/2010, 92/2011, 14/2012 and 53/2012;
- Regulation1/2008 on the types of preventive and remedial measures under the LPREDA and the
minimum cost of such measures – ‘O.G. Republic of Bulgaria’, No. 96/2008;
- Regulation concerning the public register of operators who carry out activities referred to in
Annex 1 to Article 3(1) of the LPREDA – ‘O.G. Republic of Bulgaria’, No. 109.
Miscellaneous:
- Report on the experience gained in the application of Directive 2004/35/EC on environmental
liability regarding the prevention and remedying of environmental damage submitted pursuant to
Article 18 of the ELD on 29 May 2013;
- Response to the questionnaire requesting further information sent to the identified Member State
authority;
- Phone interview carried out with the identified Member State authority;
- EU Environmental Liability Directive – A Commentary, ed. Lucas Bergkamp and Barbara
Goldsmith, Oxford University press (2013);
- Various information available on the website of the Ministry of Environment and Water255
;
- Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental liability
with regard to the prevention and remedying of environmental damage, COM(2010) 581 final;
- Study to explore the feasibility of creating a fund to cover environmental liability and losses
occurring from industrial accidents (2013);
- Study on the implementation and challenges and obstacles of the Environmental Liability
Directive (2013);
- Various information available on and through DG Environment’s ‘Environmental Liability’
portal256
;
255 http://www.moew.government.bg/ 256 DG Environment’s ‘Environmental Liability’ portal: http://ec.europa.eu/environment/legal/liability/ and
http://www.mondaq.com/x/206920/Waste+Management/Environment+in+22+jurisdictions+worldwide+2013, accessed on 8
October 2013.
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ELD implementation - Country Report for Denmark
(Template for Member States without reported ELD biodiversity cases)
1. Introduction: legal and institutional framework
The ELD was transposed by the Environmental Damage Act (EDA) of 17 June 2008, dealing with the
investigation, prevention and remedying of environmental damage. The transposition was therefore
late. The transposing legislation required the amendment of over 15 existing Acts and seven
Ministerial Orders257
.
The Danish Environmental Protection Agency and the Agency for Spatial and Environmental Planning
has published guidelines on the implementation of the ELD transposing legislation258
– the Guidelines.
The competent authorities are the Ministry of the Environment and the relevant municipal or regional
administrative bodies.
2. Definition of relevant terms
‘Biodiversity damage’ is defined as damage that has significant adverse effects on reaching or
maintaining the favourable conservation status of protected species or international nature
conservation areas259
– including Natura 2000 areas. The effects are to be assessed with reference to
the baseline condition in accordance with the Order of 28 June 2008 on criteria to determine the
presence of environmental damage and on the requirements to remedy certain types of environmental
damage, which transposes Annex I of the ELD. More information on what constitutes ‘biodiversity
damage’ is indicated in the published guidelines260
.
The 2008 EDA expressly excludes from its scope the damage which results from previously identified
adverse effects due to actions covered by plans or projects expressly authorised by authorities after
assessments, as required by: Articles 6(3) or 16 of the Council Directive on the conservation of natural
habitats and of wild fauna and flora, or Article 9 of the Council Directive on the conservation of wild
birds. Furthermore the scope of the 2008 EDA is limited to environmental damage to protected species
or international nature conservation areas, which would have problems of compliance with the ELD
(therefore being subject to an infringement procedure for incorrect transposition of the ELD). The
2008 EDA is not applicable to environmental damage, or an imminent threat of environmental damage
if the damage or threat is caused by diffuse pollution, where it is not possible to establish the
connection between the damage and the actions or omissions of the individual polluter – therefore
transposing Article 4(5) of the ELD.
Denmark has not extended the application of its environmental liability regime to nationally protected
birds and habitats261
. However, Denmark has extended the scope of strict liability to some activities
257 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 33. The amended acts include the Nature Conservation Act, the Forestry Act, the Hunting and Game Administration Act, etc. 258 Danish Environmental Liability Directive Guidelines are available on the following link :
http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/denmark.pdf, accessed on 25 November 2013. 259 Section 7 of the 2008 EDA. 260 Section 8 of the Danish Environmental Liability Directive Guidelines. 261 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 46.
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that cause the imminent threat of environmental damage. Specifically, it extends strict liability for
biodiversity to dumping of waste262
In Denmark, the effects of occupational activities on the environment and nature are regulated by
many different laws. The Danish environmental liability rules, therefore, to date, cut across the
regulation on the protection of the environment and nature in a similar way in which the
Environmental Liability Directive does263
.
Definition of the operator, given in the EDA, refers to the subject of an administrative decision
covered by 15 existing Acts which were amended by the EDA264
. The causal link between Annex III
activity and damage is not assumed265
in order to determine the operator.
The EDA defines preventive measures 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 damage266
. Remedial measures in respect of ‘biodiversity damage’ are defined as any action, or
combination of actions, including mitigating or interim measures, to restore, rehabilitate or replace
damaged natural resources or impaired services, or to provide an equivalent alternative to those
resources or services267
. Annex II remedial measures are transposed in the Order on criteria to
determine the presence of environmental damage and on the requirements to remedy certain types of
environmental damage of 28 June 2008.
Denmark allowed permit defence but not state-of-the-art defence268
.
3. Application of the ELD in Denmark269
On 7 May 2013, Denmark submitted a report to the Commission on the experience gained in the
application of the Directive in accordance with Article 18(1) of the Directive – the Report.
The Danish implementation of the ELD can be considered as a minimum implementation270
as
described recurrently in the Guidelines which estimated the maximum number of ELD cases per year,
i.e. 5 to 10 cases271
. Denmark has not reported any ELD cases during the period of 2008 – 2013.
Significant biodiversity damage
Significant impact is determined on the basis of a long or short time effect, the reversibility and the
cumulative effects. According to the Guidelines272
, the ELD is not considered applicable if the adverse
262 Implementation challenges and obstacles of the Environmental Liability Directive, report for the European Commission,
May 2013, p. 46; and Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges
and obstacles of the Environmental Liability Directive (2013), p. 43. 263 Danish Environmental Liability Directive Guidelines, p. 16. 264 Section 12 of the EDA. 265 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the
Environmental Liability Directive (2013), p. 43. 266 Section 13 of the EDA. 267 Section 14 of the EDA. 268 Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental liability with regard to the
prevention and remedying of environmental damage, COM(2010) 581 final, p. 4. 269 Presented information on the application of the ELD in Denmark is based on the information contained in the Danish
Environmental Liability Directive Guidelines and in the Report to the Commission on the experience gained in the
application of the Directive in accordance with Article 18(1) of the Directive. Relevant authorities in Denmark did not
provide any additional information on the application of the ELD in Denmark which was asked on numerous occasions.
Furthermore, the relevant authorities did not respond to interview requests. 270 Danish Environmental Liability Directive Guidelines, p. 15. 271 Danish Environmental Liability Directive Guidelines, p. 17. 272 Page 23
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effect is not significant, i.e. when it is very trivial in extent or character, quite old, or caused by a
private activity. The last requirement is not defined in the Guidelines. Article 2 of the ELD defines
occupational activities as any activities carried out in the course of economic activities, of business or
undertakings – irrespective of their private or public, profit or non-profit character. Whilst it seems
that the Danish authorities interpret private activities as those carried out by individuals and opposite
to occupational activities, it would provide more legal certainty to use the term 'non-occupational'
activity. Even though the authorities seem to have confirmed what is meant, the literal wording of the
Guidelines is confusing and should be changed.
The competent authority is in charge of evaluating whether or not a specific damage, or imminent
threat thereof, can be considered significant on the basis of the specific criteria related to the extent
and character of the damage, or other circumstances such as the origin of the damage. A case of
damage to biodiversity will not be considered an ELD case if the competent authority is not able to
clarify how the adverse effect was caused.
Danish authorities estimated that there would be between 15 to 30 cases per year where it will be
necessary to clarify whether or not the criteria of significant environmental damage had been
fulfilled273
. The Danish Report does not contain information on whether or not these assessments were
carried out in the period of 2008-2013.
Co-relation between the ‘Habitats and Birds directives’ and the ELD regimes in Denmark
When a case meets the criteria of significant damage, the rules under the legislation transposing the
ELD have priority and should be applied instead of the relevant act reading the damage, e.g. nature
legislation274
. In case it does not meet the criteria of significant damage, the competent authority will
continue handling the case according to the general regulation for nature conservation restoration – as
stipulated in the relevant legal act275
.
The ELD's requirements for prevention and remediation of environmental damage are significantly
more stringent than the requirements for prevention and remediation of adverse effects on the
environment and nature legislation.
The Danish system considers that the ELD rules do not require additional investigative or inspection
actions by the competent authorities, other than those required under nature legislation. The obligation
to inform the competent authorities of the adverse effects on biodiversity exists in both regimes: the
nature/environmental legislation and in the legislation transposing the ELD. However, no other
information sources, such as inspections or monitoring activities, have been established for operators
or competent authorities to gather knowledge on cases of adverse effects to biodiversity under the
ELD.
273 Danish Environmental Liability Directive Guidelines, p. 22 and 23. 274 Environmental Liability Directive Guidelines, p. 21 and 22 275 Danish Environmental Liability Directive Guidelines, p. 22.
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4. References
Legislation:
- Act on the investigation, prevention and remedying of environmental damage – Environmental
Damage Act, 17 June 2008;
- Order on criteria to determine the presence of environmental damage and on requirements to
remedy certain types of environmental damage of 28 June 2008.
Miscellaneous:
- Report to the Commission on the experience gained in the application of the Directive in
accordance with Article 18(1) of the Directive;
- Annex Part A: Legal Analysis of the National Transposing Legislation – Implementation
challenges and obstacles of the Environmental Liability Directive (2013)276
- Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental
liability with regard to the prevention and remedying of environmental damage, COM(2010)
581 final;
- The EU Environmental Liability Directive , A Commentary, edited by Lucas Bergkam and
Barbara Goldsmith, Oxford Publishing, Oxcford 2013;
- The Danish Environmental Liability Directive Guidelines277
.
276https://c40a451c-a-c40695c0-s-sites.googlegroups.com/a/biois.com/eld-
implementation/ELD%20implementation%20challenges%20and%20obstacles_Annex%20Part%20A_16%20May%202013.p
df?attachauth=ANoY7cqtKJw4yUeHi_oLU5Lra9gS2QdiwZnXNLntWfYlP_wmHDCq32FCKAbrlYGCPZF2JlH9YYAA3N
s3JChVLCgt_B_mma2LmKJ2vp-fim_sQZC-Br4yFVwk8dlvu2VaYbgwKPvgtQIyyY5T8kzxoMKzrLUNwp1WWAxQ3-
KcC0JcEzDzfotPmLagd_CLIxG08OKcF8Sv54ZHRcWDu8STfEeAKNVo_0jAm0JrNgiJfc8KYvXjvd_bfepAxt01WaMpSz
v3VJtSBdHnmXoa1Gka6ZMoi7QWXhliKTx0gvw8B7L8x1tl39DbxYE%3D&attredirects=0 277 http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/denmark.pdf,
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ELD implementation - Country Report for Estonia
1. Introduction: legal and institutional framework
The Directive was transposed by the Act on Environmental Liability (AEL) which entered into force
on 16 December 2007. Therefore, the transposition of the ELD in Estonia was late. The AEL contains
the legal basis for the adoption of several by-laws, such as the list of data which must be submitted to
the competent authority in a case of imminent threat of damage, or damage itself278
.
The Estonian authorities announced the intention to draft guidelines on significant damage – however,
they were never drafted279
.
The Ministry of the Environment in Estonia has competences concerning the environmental liability
regime280
. The principal competent authority is the Environmental Board281
in the Ministry of the
Environment. The Health Protection Inspectorate must also be informed in case of imminent threat of
damage and human health risk282
.
2. Definition of relevant terms
According to § 2(1) of the AEL, the following constitutes ‘biodiversity damage’:
- a significant adverse effect on reaching or maintaining the favourable conservation status of a
habitat or species;
- a significant adverse effect on a protected area, a special conservation area, a species protection
site, or a protected natural object283
, i.e. protected zones.
The significance of ‘biodiversity damage’ is established in accordance with § 3 of the AEL which
literally transposes Annex I of the ELD. The definition of the favourable conservation status of
habitats and species is indicated in the § 3 of the Nature Conservation Act which transposes the
relevant provisions of the Habitats and Birds directives284
.
Estonia extended the application of the environmental liability regime to species and habitats protected
under domestic legislation285
. Furthermore, the transposing legislation reflects both types of liability
regimes set up by Article 3(1) of the ELD, including strict liability, as well as, liability in cases of fault
and negligence.
The operator is defined as an individual whose activity or inactivity causes environmental damage or a
threat thereof286
.
The definition of preventive measures is similar to the definition in the ELD, including control,
containment, elimination or management of the relevant contaminants in order to limit or to prevent,
278 § 9(2) of the AEL. 279 Phone call with the relevant Estonian authority that took place on 15 November 2013. 281 Please see http://www.envir.ee/58736, accessed on 28 October 2013. 281 Please see http://www.envir.ee/58736, accessed on 28 October 2013. 283 Defined under Article 10 of the Nature Conservation Act. 283 Defined under Article 10 of the Nature Conservation Act. 284 § 5 of the AEL. 285 Phone call with the relevant Estonian authority that took place on 15 November 2013. 286 § 6(1) of the AEL.
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inter alia, further damage and deterioration in the quality of benefit afforded by the habitat, species
and protected zones287
. The AEL transposes the definition of remedial measures288
– specifically, the
remedial measures listed under Annex II of ELD are stipulated in Articles 16 – 19 of the AEL.
3. Application of the ELD system in Estonia
On 15 April 2013, Estonia submitted a report to the Commission on the experience gained in the
application of the Directive in accordance with Article 18(1) of the Directive – the Report.
According to the Report, the Environmental Board, as the competent authority, had initiated 16
proceedings with regard to the detection of environmental damage, or the threat thereof, on the basis
of the AEL. Out of these 16 proceedings, there are two confirmed and reported cases of
biodiversity damage in the sense of the ELD. One of the cases concerns an imminent threat of
‘biodiversity damage’ which was notified to the competent authorities by a citizen. The activity
concerns illegal construction work in a special conservation area. The case was on-going at the
moment of submission of the Report by Estonia.
The second case, which is further analysed below, concerns both the imminent threat of the
biodiversity damage and the biodiversity damage itself.
According to the Report, information on cases of environmental damage and the threat of damage is
provided by means of a register of environmental liability cases which is publicly accessible on the
Environmental Board’s website289
. Also, according to the Report, up to date information on the
notification of environmental damage or threat of it and the rights of the persons concerned can be
found online. This register is to be further developed and merged with the environmental information
system currently in use. Such a solution would allow expert assessments submitted in the course of
proceedings, monitoring data, information on any submitted notices of environmental damage, as well
as any other important information, to be stored compactly – allowing the existing information to be
used within the context of subsequent cases or as part of national monitoring activities.
In practice, the Environmental Board initially attempts to estimate the significance of the damage or
the imminent threat of it290
. The estimate is based on the available data, literature, and expertise of the
employees of the Board291
. The Environmental Board makes a site visit to carry out a more informed
estimate292
. In case the Environmental Board is not capable of estimating whether or not the damage or
the imminent threat of it is significant, other expert opinion is sought293
. The involvement of experts is
allowed under § 10 of the AEL.
As mentioned above, there are no guidelines on the interpretation of the significance of ‘biodiversity
damage’. However, previous practice has resulted in some clarifications. For example, damage to one
single protected species does not normally result in an initiation of procedure under the AEL294
.
287 § 7(1) of the AEL. 288 § 7(2) and (3) of the AEL. 289 Environmental Board website:http://www.keskkonnaamet.ee/teenused/keskkonnakorraldus-2/keskkonnavastutus-2/keskkonnakahju-ja-
kahju-ohuga-seonduv-teave/, accessed on 14 November 2013. 290 Phone call with the relevant Estonian authority that took place on 15 November 2013. 291 Phone call with the relevant Estonian authority that took place on 15 November 2013. 292 Phone call with the relevant Estonian authority that took place on 15 November 2013. 293 Phone call with the relevant Estonian authority that took place on 15 November 2013. 294 Response to the questionnaire requesting further information sent to the identified Member State authority.
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According to the Report, a series of information days have been organised with an aim of raising
awareness amongst operators and the general public regarding environmental liability. More events
are planned for the future.
Despite the invested effort in raising awareness on the implementation of the ELD, notifications
concerning possible ELD cases usually do not come from operators or the public. According to the
Estonian authorities, notifications mostly result from the inspection supervision of permitted
installations, protected areas and species295
. However, notification of one of the two recorded
‘biodiversity cases’ came from the public.
Coordination of the ELD and sectorial legislation systems
The Habitats Directive’s Article 6(2) is transposed in Estonian legislation in the Nature Conservation
Act. According to the nature protection regime, the deterioration of habitat types and the habitats
of species, as well as the disturbance of the species for which the area has been designated, are
prohibited. The criteria for the establishment of deterioration of protected habitats and significant
disturbance of species is less stringent than the criteria for determining significant ‘biodiversity
damage’296
. As a consequence of this, in the period of 2008 – 2013, there were ten times as many cases
which met the criteria under the Nature Conservation Act, i.e. 22 cases, but did not meet the criteria
under the AEL, i.e. 2 cases297
.
The competent authority under the Nature Conservation Act is the Environmental Inspectorate. In
addition to handling cases which fall under the Nature Conservation Act, the Inspectorate is providing
the Environmental Board with information concerning cases that would fall under the AEL.
Analysed case298
The case concerns biodiversity damage to protected species and habitats under the Habitats Directive.
More precisely, the case concerns damage to the habitat of salmon (Salmo salar) and the thick-shelled
river mussel (Unio crassus) in the Loobu River conservation area – a Special Conservation Area299
,
and the threat of environmental damage to the species of salmon (Salmo salar)300
.
Procedure was initiated three months after the occurance/discovery of the damage. The damage was
caused by an Annex III activity, i.e. water abstraction and impoundment of water subject to prior
authorisation in pursuance of the Directive 2000/60/EC.
In this case, the operator was issued a water use permit. The permit was used to widen the river, allow
changes in the physical and chemical characteristics of the water in relation to the construction of a
weir for fish, and allow for the dilatation and cleaning of the reservoir sediments in the county of
Kadrina, in the village of Loobu, on the Loobu river. During the works performed in the vicinity of the
reservoir, certain tracks of the river were significantly harmed – the stony gravel-bottomed rapids had
been replaced with extensive beds of sand as machines had moved around in the river. The riverbed
295 Phone call with the relevant Estonian authority that took place on 15 November 2013. 296 Response to the questionnaire requesting further information sent to the identified Member State authority. 297 Response to the questionnaire requesting further information sent to the identified Member State authority.
298 Information concerning the analysed case was obtained from the Report on the experience gained in the application of Directive 2004/35/EC on environmental liability with regards to the prevention and remedying of environmental damage,
submitted pursuant to Article 18 of the ELD, responds to the questionnaire requesting further information sent to relevant Estonian authorities and phone interview carried out with the relevant Estonian authorities.
299 A significant adverse effect on a Special Conservation Area constitutes as ‘biodiversity damage’ under § 2(1) of the AEL. 300 Both species are indicated in Annex II of the Habitats Directive as species of Community interest whose conservation requires the designation of special area of conservation.
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had been extensively altered using heavy equipment during the construction works and a large
quantity of sediment was carried downstream. These construction activities had damaged the habitat of
the salmonids and the thick-shelled river mussel.
The initial observation that biodiversity damage took place was reported by an expert. The competent
authority engaged additional experts to confirm the existence of damage. These experts also provided
their suggestions for future avoidance of ‘biodiversity damage’, and possible remediation measures.
The operator was involved in the selection of experts and the arrangement of fees. The competent
authority confirmed the existence of ‘biodiversity damage’, and the further threat of ‘biodiversity
damage’ on the basis of the expert’s opinion, having in mind the legal requirements.
In order to remedy the damage, the operator was obliged to build a spawning site – a 490 m long
stretch suitable as salmon spawning grounds and habitat which would function whilst performing the
construction and water abstraction works.
The procedure was finalised 16 months after its commencement.
ELD implementation related to biodiversity damage: Challenges and obstacles
Estonia
ELD
National legislation / Application
GENERAL
1. Experience in establishing a causal link between the
damage and the activities of individual operators –
Article 4(5) of the ELD, in cases of damages caused to
biodiversity.
Legal remedies used by the operator – Article 11(4)
ELD.
Under the current legislation, a causal relationship between
activity or inactivity and damage arisen is assumed when it
is probable that the damage has arisen during an ELD
Annex III activity.
According to § 1(3) of the AEL, the Act is applied to
environmental damage, or the threat thereof, caused by
diffuse pollution if it is possible to establish a causal
relationship between the environmental damage, or threat
thereof, and the action or inaction of an individual or
individuals.
Since the analysed case is related to an Annex III activity,
the casual link was assumed. However, the competent
authority also based its assumption of the causal link on the
expert opinion.
No legal remedies were used by the operator.
2. Procedure for notification of information – Articles
5(2), (3)(a) and Articles 6(1),(2)(a) of the ELD.
Availability of such information to third parties in
relation to Article 12.
The AEL requires the operator to inform the competent
authority in case of threat of damage, or the damage itself,
and other relevant information301. The competent authority
can also request additional information.
Articles 5(3)(a) and 6(2)(a) are also transposed in § 9(3) of
the AEL.
Information on notified cases of environmental damage is
available to the public through the register of environmental
liability cases.
In the current case, the notification was done by an expert.
The competent authority conducted an observation visit to
301 § 9(1) of the AEL.
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ELD implementation related to biodiversity damage: Challenges and obstacles
Estonia
the site where it established that the issued water use permit
was breached in a few instances. Expert opinion was sought
which established that significant damage was caused.
PREVENTIVE MEASURES
3. Procedure set in place in national legislation
concerning prevention measure – Article 5 of the ELD,
namely:
- experience in requiring the operator to take
the necessary preventive measures, or
alternatively, preventive measures taken by
competent authorities – Article 5(3) of the
ELD;
- giving instructions for these measures to be
taken and taking these measures itself.
The legislation states that the Competent authority may
involve experts to establish the imminent threat of damage
and prevention measures302. The expert will be chosen in
cooperation between the competent authority and the
operator303.
Articles 5(3) and 5(4) are transposed in Estonian
legislation304.
Control, containment, elimination or management of the
relevant contaminants in order to limit, or to prevent, inter
alia, further damage and deterioration in the quality of the
benefit afforded by habitats, species and protected zones,
are also considered as prevention305.
Preventive measures in Estonia are triggered by both a
possibility of an act of pollution, and by existing damage
caused by pollution which may in the future become
significant ‘biodiversity damage’306.
In the case analysed, additional expertise was used on the
basis of §10(1) of the AEL to assess the possible damage to
the environment.
On the basis of § 12(3) the operator was ordered to
implement preventive measures by containing the further
creation of biodiversity damage in addition to establishing
that certain biodiversity damage already took place.
Both the preventive measures and the remedial measures
were imposed by the same order.
REMEDIAL MEASURES
4. Timing and procedure for carrying out of remediation
measures – Articles 6(2)(b – e), 7, 11(2) of the ELD, in
cases of damage to biodiversity. Reference to national
legislation.
Provisions of Article 6(2)(c – e) are transposed307.
In compliance with Article 7 of the ELD, remedial measures
are implemented on the basis of a remedial measures plan308
approved by the Estonian competent authority309.
The operator is established by the competent authority310.
Damage and threats of damage, established by the
competent authority311, might involve the use of experts to
establish the damage and the remedial measures312. An
expert will be chosen in cooperation between the competent
authority and the operator313.
302 § 10(1) and (2) of the AEL. 303 § 10(3) and (4) of the AEL. 304 § 12 and 13 of the AEL. 305 § 7(1) of the AEL. 306 Phone call with the relevant Estonian authority that took place on 15 November 2013. 307 § 14(3) and 15 of the AEL. 308 § 14(1) of the AEL. Provisions on Remedial Measures Plan are stipulated in § 18 and 22 of the AEL. 309 § 21 of the AEL. 310 § 6(4) of the AEL. 311 § 3(5) of the AEL. 312 § 10(1) and (2) of the AEL. 313 § 10(3) and (4) of the AEL.
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ELD implementation related to biodiversity damage: Challenges and obstacles
Estonia
Estonia introduced both the permit and state-of-the-art
defence. According to the Estonian authorities, in case
permit defence is invoked, the competent authorities are
required to carry out the revision of the permit.
Analysed case
The competent authority deemed that the expert opinion and
suggestions were to be considered in the remedial measures
plan since the operator did not provide any comments.
Both preventive measures – which in Estonia are emergency
remedial measures, and remedial measures, were imposed
by the same order.
Procedure was initiated three months after the occurance
/discovery of the damage. The total duration of the process
was 16 months.
Upon the completion of the remedial measures, the operator
was obliged to submit to the competent authority a summary
describing the measures carried out, together with
confirmation from the expert that the works were carried out
properly.
5. Timing and procedure for definition of the operator that
caused the biodiversity damage, assessment of the
significance of the damage and determination of the
remedial measures – Article 11.
The legislation recognises the competent authority the
power to ask a third person to carry out the remedial
measures314. Provisions on legal reviews are contained in §
33 of the AEL.
Since the analysed case refers to an Annex III activity, the
casual link was assumed. This assumption was further
strengthened by the experts’ opinions.
Preventive and remedial measures were ordered on the basis
of the experts’ opinions.
COSTS
6. Experience in covering the costs of preventive and
remediation actions – Article 8 of the ELD.
Legal framework and practical implementation
concerning an exception to bear the costs of preventive
and remedial actions taken pursuant to the ELD –
Articles 8(3) and (4) of the ELD.
Legal framework and practical experience concerning
financial security instruments and markets – Article 14
of the ELD, in cases concerning protected species and
natural habitats.
Financial guarantees to cover responsibility in case of
Articles 8(3) and (4) of the ELD is transposed in Estonia315.
The competent authority may allow the costs of the damage
to be paid in instalments316. In that case, appropriate
security e.g. a mortgage, may be requested317.
According to the Report, a system of optional financial
guarantees is in operation. The lack of available insurance
products was noted in the Report.
The competent authorities in Estonia recognise the
challenges concerning the payment of the costs of
assessment in case the criteria for ‘biodiversity damage’ are
not met.
In the analysed case, the operator did not comply with the
314 Conclusion drawn from § 34(5) of the AEL. 315 § 26 of the AEL. 316 § 28 of the AEL. 317 § 29 of the AEL.
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ELD implementation related to biodiversity damage: Challenges and obstacles
Estonia
an operator’s insolvency. issued permit requirements. The environmental liability
regime was applied in this case. The expenditure on expert
assessments was paid for by the Environmental Board, i.e.
the competent authority, to the amount of EUR 1,330. The
total expenditure incurred by the operator causing the
damage, on the preventive and remedial measures including
the expert assessments, was EUR 2,950.
REQUEST FOR ACTION AND LEGAL REVIEWS
7. Legal framework on natural and legal persons entitled
to request action by the competent authorities – Articles
7(4) and 12 of the ELD, including the definitions of
sufficient interest and impairment of a right.
Obstacles preventing them from requesting action by
the competent authorities – Article 12(1) of the ELD.
According to the law, a person who could be affected by the
damage, or with a legitimate interest, as well as
environmental NGOs, have rights to request the
implementation of prevention and remedial measures, by
submitting the relevant information318. The competent
authority is obliged to evaluate the request and to notify the
requestor of the decision319.
Provisions on legal reviews are contained in § 33 of the
AEL.
Natural and legal persons entitled to request action did not
participate in the analysed case.
8. Recorded cases of legal review procedure – Article 13
of the ELD). Awareness amongst NGOs concerning
this right.
A series of information days have been organised with an
aim of raising awareness among operators and the general
public on environmental liability.
Analysed case: No legal reviews were initiated.
318 § 23(1) of 24 of the AEL. 319 § 23(2) of the AEL.
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4. References
Legislation:
- Act on Environmental Liability which entered into force on 16 December 2007.
Miscellaneous:
- Report on the experience gained in the application of Directive 2004/35/EC on environmental
liability with regards to the prevention and remedying of environmental damage, submitted
pursuant to Article 18 of the ELD on 15 April 2013;
- Response to the questionnaire requesting further information sent to the identified Member
State authority;
- Phone interview carried out with the identified Member State authority;
- Estonian Register of environmental liability cases320
accessed on 14 November 2013.
- Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental
liability with regard to the prevention and remedying of environmental damage, COM(2010)
581 final;
- Website of the Ministry of Environmental Protection 321
accessed on 28 October 2013.
320 Estonian Register of environmental liability cases: http://www.keskkonnaamet.ee/teenused/keskkonnakorraldus-
2/keskkonnavastutus-2/keskkonnakahju-ja-kahju-ohuga-seonduv-teave/ 321
http://www.envir.ee/67244
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ELD implementation - Country Report for France
(Template for Member States without reported ELD biodiversity cases)
1. Introduction: legal and institutional framework
The ELD is transposed by:
- Act No. 2008-757 of August 2008 on environmental liability (EEL);
- Decree of 23 April 2009 which sets out the content of the new environmental liability regime;
- Decree of 2 May 2009 extending strict liability to the transport of oil by pipeline.
The Law and the Decree of April 2009 inserted a new title VI into the Environmental Code322
. The
transposition of the ELD in France was therefore late. The competent authority in France is the ‘Préfet
de département’.
2. Definition of relevant terms
French legislation on environmental liability literally transposes the ELD, including the definition of
‘significant’ environmental damage, and specifically, biodiversity damage under Article 2 of the
ELD323
. Environmental damage is any damage that fulfils the condition of being ‘significant’ on
reaching or maintaining favourable conservation status. Whilst neither the Directive nor French law
define what significant environmental damage is, Annex I of the ELD criteria are used and followed
by the competent authorities in France to determine whether or not the damage has to be qualified as
significant324
. More information on ‘biodiversity damage’ is contained in the Guide on application of
the ELL. For example, taking account criteria given in the Annex I of the ELD, the Guide has
established a list of examples or indicators to help the competent authorities to assess the gravity of
damage.
The scope of the Directive is maintained by French legislation which does not, however, extend the
application of biodiversity damage to national protected species and habitats325
. Furthermore, it does
not extend strict liability to additional activities other than those listed in Annex III of the ELD. The
standard liability for a non-Annex III activity is fault or negligence326
. The causal link between Annex
III activity and damage is not assumed.
Under French legislation, preventive measures are those undertaken prior to the occurrence of an
accident or event when there is an imminent threat of environmental damage. Those preventive
measures aim at avoiding the damage from happening, or at reducing it in case it inevitably takes place
– Article L162-3.
France allows state-of-the-art defence but not permit defence327
.
322 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 96. 323 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013). 324 The Environmental Liability Law (EEL) and the equivalency methods – Methodological Guide, p. 1. 325 Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental liability with regard to the prevention and
remedying of environmental damage, COM(2010) 581 final, p. 4. 326 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 98. 327 Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental liability with regard to the prevention and remedying of environmental damage, COM(2010) 581 final, p. 4.
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Following the break of an underground pipeline in August 2009, when over 4,000 cubic metres of
crude oil spilled onto the Coussouls de Crau nature reserve, the French Government adopted a Decree
on 2 May 2009 in order to extend strict liability to the transport of oil by pipelines328
.
In May 2012, a draft Bill was proposed to introduce a new Article 1382-1 into the French Civil Code
which would provide that ‘any act which causes damage to the environment, obliges the person by
whose fault it occurred, to compensate for it. The compensation must be carried out primarily by
specific performance’329
.
3. Application of the ELD in France
France submitted a report to the Commission on the application of the Directive in accordance with
Article 18(1) of the Directive – the Report, but no ELD cases were reported for the period of 2009-
2013. From the analysis carried out for this study, it can be concluded that the interpretation and
application of the concept of ‘significant’ biodiversity damage is the root cause of this very low
number of reported ELD cases330
.
Significant biodiversity damage
According to the French Guide, the application of ‘significant’ biodiversity damage requires its
‘gravity’ to be qualified according to the environmental characteristics and the contamination criteria
defined in Articles R-161-1, R.161-2 and R-161-3 of the ELL – for example, the conservation status of
a protected species or natural habitat, concentration levels of contaminants, the level of danger and
possibility of dispersion of the contaminants331
.
The ELL does not define the thresholds, of ‘gravity’, or the significance of damage occurred. The
Guide provides examples332
of what can be estimated as non-significant damage when considered on a
case-by-case basis, e.g. decisions are taken by the prefect of the location where the damage occurs.
The examples in the Guide show that the corner stone for defining what significant damage is in each
case is the interpretation and application of Annex I criteria of the ELD.
The case of 16 March 2008 relates to a spillage of approximately 400 tonnes of heavy fuel oil during
the loading of a vessel at the Donges refinery, causing such environmental damage in the sea and the
estuary that would not be considered as ‘significant’ according to the guide. The accident caused
damage to habitats and bird species which were badly oiled. Recovery action operations were
promptly organised, including a prefectoral order banning any occupational and recreational sea
fishing which was eventually lifted on 4 April 2008. The proportion of oiled birds decreased as the
clean-up operations advanced. The conclusion of the guide is that no serious consequences to the
environment were retained.
According to the experts interviewed in the Ministry of Environment, the damage in this case was not
considered significant since the damage had occurred after the entry into force of the ELD, and it was
determined that the species or habitats had the capacity to recover after the damage, in a short time,
and without any intervention other than the increased protection measures, to the baseline condition or
328 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 98. 329 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 95. 330 The representatives of the French authorities consulted highlight the impact of other reasons such as exclusions under
Article 4, the high number of inspections and pre-existing sectorial environmental legislation 331 The Environmental Liability Law (EEL) and the equivalency methods – Methodological Guide, p. 21. 332 The Environmental Liability Law (EEL) and the equivalency methods – Methodological Guide, p.17-18
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to a condition which led by virtue of the dynamics of the species and habitats, to a condition
equivalent or superior to the baseline condition – Annex I criteria.
The recovery actions adopted in this case are considered emergency measures carried out once the
accident had happened and are not considered prevention measures to reduce the damage – as defined
in the law. They are not considered remediation actions in the sense of the ELD because the actions
were taken when the damage had not reached the level to be considered ’significant’ and therefore the
case is not considered an ELD case.
However, it could conceivably be argued that the Directive requires the capacity to recover within a
short time and to be achieved without any ‘recovery’ action or intervention other than the increased
protection measures. The measures undertaken, in this case, could be considered as more than
protection measures. The condition equivalent to the baseline condition does not seem to have been
reached as the proportion of oiled birds had decreased but not disappeared. It is not clear what should
be considered a ‘short time’ in the eyes of the Directive.
The case described in the Guide seems to present an interpretation of the ‘significance’ of the damage
– which would explain the low number of ELD cases reported in France. In this sense the French
authorities differentiate between significance of industrial accident and the significance of
environmental damage under the ELD so that if after a serious pollution incident, emergency or
preventive measures are implemented, environmental damage might be limited, preventing it from
becoming significant and therefore from becoming an ELD case.
Preventive measures
Analysis of the examples in the French Guide leads to conclude that the current French system
considers that the actions undertaken, once an incident has happened, aiming to prevent the damage
from becoming significant, are not considered preventive actions under Article 5 of the ELD, nor
remedial actions under Article 6 of the ELD when the damage is not significant. Those measures are
considered emergency measures under sectorial legislation regulating Annex III activities. When no
Annex III activities are involved, and no emergency measures would be possible under Annex III
sectorial legislation, preventive measures to avoid the damage becoming significant under the ELD
should fall under the Habitats Directive or under the ELD. However, the French Guide does not
present an example of it. In practice it seems that the preventive measures would be limited to the
situations where events have not yet happened.
Co-relation between the ‘Habitats and Birds directives’ and ELD regimes in France
The French authorities consider them complementary. Whilst the Habitats and Birds Directives act
prior to the event or damage by assessing the potential impact of a project on a Natura 2000 site, the
ELD acts ex post once the damage has happened.
No relation between the ELD and Article 6(2) of the Habitats Directive has been considered.
Raising awareness
The French authorities considered that the proper application of the ELD requires information and
raising awareness actions. Several actions have been undertaken from which the following two are
highlighted:
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Development of a Guide to the ELL implementation333
, discussed with stakeholders, published
in 2012 and addressed to those who need to apply the law in cases of environmental damage.
The publication of this guide was accompanied by a national seminar in September 2012 to
raise awareness and train the administrative services and the public on the implementation of
this law.
A training kit composed of two presentations of the ELL and the equivalency methods: one
which provides a short 1 hour overview and a long presentation of half a day that is publicly
available and can be downloaded from the website of the Ministry334
.
Specific ELD software
Furthermore, the French authorities commissioned the University of Montpellier III and the Centre for
Functional and Evolutionary Ecology, to develop specific software that allows the calculation of the
losses due to the environmental damage and the gains derived from restoring the damaged
environment. The software facilitates the design of the restoration project and the calculation of its
costs. The software is available to the public free of charge.
Environmental liability insurance system
In France335
, a special insurance system on environmental liability has been developed which enables
broader and faster penetration rate for this type of environmental liability insurance contracts and
ensures a more competitive insurance market environment. The system is based on the following
elements:
- the existence of a co-reinsurance pool, Assurpol, which collects financial resources (fee) from
the companies members and provides them with co-reinsurance (which can benefit from re-
insurance as a counterpart to their financial participation).
- An insurance framework known as CARE (“cadre d’assurance responsabilité
environnementale”) developed by Assurpol which defines a set of terms and conditions
(definitions, liability, exclusions, …) for environmental risk insurance (including environmental
liability). Based on those common elements Assurpol members design their own insurance
contracts. Their products need to respect this common framework to be eligible to Assurpol
reinsurance service.
This system enables the provision of an affordable re-insurance in France for risks with low frequency
and high expected costs and thus enables insurance companies to develop products covering
environmental liability as defined by the ELL. This system is also compatible with a competitive
environment since insurance companies are free to purchase reinsurance from other companies,
(mainly from the US), and offer competitive environmental liability contracts.
333 ELL implementation: http://www.developpement-durable.gouv.fr/IMG/pdf/Ref-LRE.pdf. 334 http://www.developpement-durable.gouv.fr/IMG/pdf/La_LRE_et_ses_methodes_equivalence_-_Presentation_guide.pdf.
http://www.developpementdurable.gouv.fr/IMG/pdf/La_LRE_et_ses_methodes_equivalence_seminaire_21septembre_2012.pdf. 335 Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental liability with regard to the prevention and remedying of environmental damage, COM(2010) 581 final, p. 6.
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The Added value of the ELD procedure
The ELD procedure is different to the conventional emergency procedure which is initiated when there
is damage that is not significant. It follows the provisions defined by sectorial legislation and applied
to the activities under Annex III, such as the integrated pollution prevention and control legislation,
and the Habitats Directive – regarding biodiversity.
When the prefect decides that the damage is significant, the ELD procedure is initiated. This involves
the evaluation of damages based on equivalency methods, definition of the losses, and the remediation
actions – including any compensatory measures.
Remedial measures are undertaken to restore, rehabilitate or replace damaged natural resources or
impaired services, or provide equivalent alternatives to those resources or services. The French
authorities consider that the ELD procedure provides for an additional step to the remediation of
damage since it requires compensation for the interim losses going beyond pure restoration to the
conditions prior to the events.
Measures to limit, or prevent further environmental damage, or further impairment of services, is
considered a primary remedial measure, i.e. following Art 6(2) of the ELD that would only take place
once the accident or event causing significant environmental damage has happened.
4. References
Report to the Commission on the experience gained in the application of the Directive in accordance
with Article 18(1) of the Directive;
Annex – Part A336
: Legal Analysis of the National Transposing Legislation – Implementation
challenges and obstacles of the Environmental Liability Directive (2013), accessed on 24 October
2013;
Commission’s Report under Article 14(2) of Directive 2004/35/CE on environmental liability with
regard to the prevention and remedying of environmental damage, COM(2010) 581 final;
The Environmental Liability Law (EEL) and the equivalency methods – Methodological337
Guide,
accessed on 1 November 2013.
336 Annex – Part A:
https://c40a451c-a-c40695c0-s-sites.googlegroups.com/a/biois.com/eld-
implementation/ELD%20implementation%20challenges%20and%20obstacles_Annex%20Part%20A_16%20May%202013.p
df?attachauth=ANoY7cqtKJw4yUeHi_oLU5Lra9gS2QdiwZnXNLntWfYlP_wmHDCq32FCKAbrlYGCPZF2JlH9YYAA3N
s3JChVLCgt_B_mma2LmKJ2vp-fim_sQZC-Br4yFVwk8dlvu2VaYbgwKPvgtQIyyY5T8kzxoMKzrLUNwp1WWAxQ3-
KcC0JcEzDzfotPmLagd_CLIxG08OKcF8Sv54ZHRcWDu8STfEeAKNVo_0jAm0JrNgiJfc8KYvXjvd_bfepAxt01WaMpSz
v3VJtSBdHnmXoa1Gka6ZMoi7QWXhliKTx0gvw8B7L8x1tl39DbxYE%3D&attredirects=0. 337 Methodological Guide: http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/french_guide_en.pdf.
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ELD implementation - Country Report for Germany
1. Introduction: legal and institutional framework
Germany transposed the ELD Directive at the Federal level, through the Act transposing the Directive
of the European Parliament and of the Council on environmental liability, with regard to prevention
and remedying of environmental damage – the Environment Damage Act. The Act entered into force
in November 2007 – more than six months after the expiration of the transposition deadline.
The Act enlarged the existing civil and public law criteria for liability338
.
Germany does not have guidelines on the interpretation or implementation of the ELD transposing
legislation, although the adoption of these guidelines was discussed in the past339
. German authorities
believe that whilst national guidelines could be helpful, EU-wide guidelines may not deliver the
expected results due to the many differences between protected habitats and species across the EU,
and different circumstances in different Member States340
.
The competent authorities for implementation of the ELD are the designated authorities in each länder
in accordance with the Law on Federal States341
.
2. Definition of relevant terms
Biodiversity damage is defined as damage to species and natural habitats pursuant to the Federal
Nature Conservation Act (NCA)342
. It only concerns damage to protected species and habitats under
the Habitats and Birds directives343
. The Länder do not have the authority to include any species or
natural habitats within the ELD regime beyond those covered by Habitats and Birds directives344
.
The significance of adverse effects must be determined in relation to the baseline condition taking into
account the criteria in Annex I of the ELD345
. The transposition of the ELD’s Annex I criteria is done
by direct reference to it.
The environmental liability regime in Germany applies to damage or imminent threat of such damage,
caused by the ELD Annex III activities, i.e. strict liability, and to damage or any imminent threat of
such damage to protected species and habitats where the operator has acted wilfully or by gross
negligence346
.
The operator under the Environment Damage Act is any natural or legal person who practices an
occupational activity – including the holder of a permit or authorisation for such an activity or the
person registering such an activity, and who has caused environmental damage or given rise to the
imminent threat of such damage347
.
338http://www-user.uni-bremen.de/~avosetta/germenvliabdir.pdf, accessed on 1 October 2013. 339 Phone call with the relevant German authority which took place on 15 November 2013. 340 Phone call with the relevant German authority which took place on 15 November 2013. 341 http://ec.europa.eu/environment/legal/liability/pdf/eld_meetings/ELD_germany.pdf, accessed on 1 October 2013. 342 Article 1, Section 2(1) of the EDA. 343 Article 2 of the EDA. 344 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 125. 345 Article 2 of the EDA. 346 Article 1, Section 3(1) of the EDA. 347 Article 1, Section 2(2) of the EDA.
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When transposing the definition of prevention, German legislation refers to the measures when there is
‘an imminent threat of environmental damage, with a view to preventing or minimising that
damage’348
– leaving out ‘…event, act or emission that has created…’. This aspect would not have an
impact on the correct transposition of the ELD. It shows that, in Germany, the occurrence of the event
or act would not be the determinant, but rather, the damage or imminence of the damage – the
prevention measures would aim at preventing or minimising the damage. From this wording, it may be
assumed that preventive measures are to be used not only in case an emission, event or incident has
occurred in order to prevent biodiversity environmental damage, but also in order to to minimise it if
the damage has happened but is not yet ‘significant’ – as required by the ELD, and the damage
adversely affects the favourable conservation status of the habitats and species.
The Environment Damage Act defines remedial measures as ‘any measure to remedy environmental
damage in accordance with the relevant technical legislative provisions’349
. Provisions of the Federal
Nature Conservation Act would be considered relevant technical legislative provisions for biodiversity
damage350
. Germany has introduced the definition of ‘damage limitation measures’ which are defined
as ‘any measure 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’351
. Damage limitation
measures would be considered part of the remedial measures352
.
3. Application of the ELD in Germany
Germany submitted a report to the Commission on the application of the Directive in accordance with
Article 18(1) of the Directive – the Report, where 60 ELD cases have been reported. This figure is
considered a high number in relation to those of all other EU Member States. The Report presents
information per case, but the number of biodiversity cases is not clear.
According to the descriptions of those cases, almost half of them, i.e. 27 cases, concern ‘biodiversity
damage’. In 14 of those cases, the reported ‘biodiversity damages’ are bundled with ‘water damages’
and there has not been a single recorded case where ‘biodiversity damage’ was linked to ‘land
damage’. The significance of ‘biodiversity damage’ is established almost always by expert opinion353
.
Nevertheless, the actual reported number of ‘biodiversity damage’-related ELD cases in Germany may
be lower than indicated in the Report. Germany strictly applies the concept of protected species and
natural habitats and only applies it to the natural habitats and species covered in the Habitats and Birds
directives. However, from the description of ‘biodiversity damage’ provided in the Report, it is not
clear whether or not in 12 of the cases, where ‘biodiversity damage’ is bundled with ‘water damage’,
damage was limited to water and did not affect the habitats and species protected by the above
indicated directives.
348 Article 1, Section 2(6) of the EDA. 349 Article 1, Section 2(8) of the EDA. 350 Article 1, Section 2(1) of the EDA. 351 Article 1, Section 2(7) of the EDA. 352 Article 1, Section 7 of the EDA. 353 Phone call with the relevant German authority which took place on 15 November 2013.
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However, the lack of a database with all of the ELD cases prevents an accurate account of the number
of biodiversity damage cases. Furthermore, it can be assumed that some potential ELD cases might
have been dealt with by Article 13 of the Nature Conservation Act354
.
Prevention measures under the ELD are very rarely applied in practice due to the existence of sectorial
legislation where preventive measures are foreseen, e.g. by the Industrial Emissions legislation355
.
Where the ELD is applied, the competent authority has the power to require the operator to carry out
the preventive measures but does not have the duty to undertake them itself356
.
Similarly, in case of remedial measures, the competent authority has a power but not the duty to
undertake them357
. This is a new power to the authorities which is recognised by the EDA –
modifying the previous system where the competent authorities had the possibility to undertake
remediation measures limited to water and land damages358
.
The regional authorities (länder) have the competence to adopt legislation imposing the permit and
state-of-the-art defences. However, they have not enacted the optional provision of the ELD
concerning the permit or state-of-the-art defences.
Although no Member State level guidelines, preventing environmental damage from taking place have
been adopted, some research institutions provide such guidelines. For example, the University of
Applied Sciences in Bingen drafted guidelines for the prevention of environmental damage taking
place in forestry and extraction industry sectors359
.
Due to the division of competences between the Federal and regional (Länder) levels, the German
Länders are required to define provisions on: costs concerning the ELD; the competent authorities to
implement the ELD; to carry out the necessary training workshops360
. In addition, Federal and länder
representatives have regular meetings concerning the implementation of the ELD where they exchange
information on the implementation of the Directive361
.
4. Coordination of the ELD with sectorial legislation
The EDA is the Federal Law and applies to damage cases, unless more detailed provisions for the
prevention and remedying of environmental damage are provided for by legislation adopted by the
lander, or where the requirements laid down by that legislation conflict with the EDA362
. Legislation,
with more stringent requirements going beyond the requirements of the EDA, remains.
Article 13 of the NCA transposes the requirements of Article 6(2) of the Habitats Directive363
regarding the deterioration of protected habitats and significant disturbance of species. Article 13 of
the nature conservation legislation applies to cases of biodiversity damage affecting EU and German
354 Phone call with the relevant German authority which took place on 15 November 2013. 355 Phone call with the relevant German authority which took place on 15 November 2013. 356 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 127. 357 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 128 and Phone call with the relevant German authority which took place on 15 November 2013. 358 Phone call with the relevant German authority which took place on 15 November 2013. 359 Phone call with the relevant German authority which took place on 15 November 2013. 360 Phone call with the relevant German authority which took place on 15 November 2013. 361 Phone call with the relevant German authority which took place on 15 November 2013. 362 Article 1, Section 1 of the EDA. 363 Phone call with the relevant German authority which took place on 15 November 2013.
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protected species and habitats364
going beyond the Habitats Directive. The threshold for biodiversity
damage under Article 13 NCA is less strict, or lower than the threshold for the application of the
EDA365
.
Information on the number of cases dealt with under the nature conservation system during the period
of 2008 – 2013 is not available, but some authors have estimated that the number is over 800 times
higher than the number of cases dealt with under the ELD system in Germany, in the same period366
.
Since there are no guidelines on which regime should be applied, a case-by-case approach is used367
leaving it up to the competent authorities to decide. There is some jurisprudence on this point, but it
has not precisely defined the relevant concepts determining the applicability of one system or any
other368
.
The key differences between both of the regimes, i.e. Article 13 of the NCA and the ELD, can be
summarised as:
1. The NCA does not cover compensatory remediation in respect of biodiversity damage in the sense
of the ELD reference to damages for interim losses.
2. The liability for impairing an ecosystem under the NCA is not limited to occupational activities as
defined in the ELD, but also includes any activities – professional or private.
3. The NCA applies to all species and habitats, not only those protected by the Habitats and Birds
directives.
4. Environmental NGOS have the right to submit comments and observations under the ELD but not
under the NCA.
In practice, it seems that the majority of cases, where the ELD was applied, were based on information
reported by NGOs369
which are very active in Germany. The fact that NGOs may report on the
existence of biodiversity damage has been recognised as an added value of the ELD transposing
legislation in Germany370
.
An environmental civil liability regime existed in Germany prior to the ELD. The Environmental
Liability Act covers liability for personal injury and property damage371
as the basis for a
compensation system. Property damage includes the claimant’s property interests in the damaged
nature or landscape372
, and it does not require the operator to remediate the environmental damage.
The amount of compensation for such damage is linked to the restoration of the nature and
landscape373
. Therefore, this regime may overlap with the ELD regime in Germany.
364 Phone call with the relevant German authority which took place on 15 November 2013. 365 Phone call with the relevant German authority which took place on 15 November 2013. 366 Anrea Eberlein & Gerhard Roller, in their study on the ‘Application of the Environmental Liability Directive in practice, The German
Experience’ from 2012, estimate that there are annually 4,600 cases where competent authorities are applying pre-ELD system. On the other hand, in the period 2008 – 2013, there were only 27 reported ‘biodiversity damage’ cases where competent authorities applied ELD system.. 367 Application of the Environmental Liability Directive (ELD) in practice, The German experience, Andrea Eberlein & Gerhard Roller,
January 2012. 368 Application of the Environmental Liability Directive (ELD) in practice, The German experience, Andrea Eberlein & Gerhard Roller,
January 2012. 369 Phone call with the relevant German authority which took place on 15 November 2013. 370 Phone call with the relevant German authority which took place on 15 November 2013. 371 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 121. 372 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 121. 373 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 121.
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5. Analysed Case374
The case took place in Rotenburg –Wümme, ex-Hannover, in Lower Saxony between the rivers Elbe
and Weser. The case was handled by the Department for Nature and Landscape Conservation. The
damage was caused by a biogas plant leaking fermentation substrates into a drainage ditch. The
damage was caused to the bullhead fish (Cottus gobio) whose population was almost entirely
destroyed. The remediation measures taken included: sealing the drainage ditch with a wedge of soil;
installation of gravel beds; addition of grit chambers; construction of a bed pitch – although not
completed at the time of submission of the Report.
ELD implementation related to biodiversity damage: Challenges and obstacles
Germany
ELD
National legislation / Application
GENERAL
1. Experience in establishing a causal link between the
damage and the activities of individual operators –
Article 4(5) of the ELD, in cases of damages caused to
biodiversity.
Legal remedies used by the operator – Article 11(4) of
the ELD.
Article 4(5) of the ELD is literally transposed in the German
legislation375.
The EDA does not establish that the causal link between the
operator’s activity and the biodiversity damage can be
assumed when an Annex III activity is involved.
Any administrative decision regarding the ELD must be
motivated and provide information on the legal remedies
available to the operator376. In the analysed case the use of
legal remedies was not reported.
2. Procedure for notification of information – Articles
5(2), (3)(a) and Articles 6(1),(2)(a) of the ELD.
Availability of such information to third parties in
relation to Article 12.
German legislation establishes that in case there is imminent
threat of environmental damage, or if such damage has
already occurred, the operator has the obligation to inform
the competent authority of all relevant aspects of the
situation without delay377.
The competent authority may also require the operator to
provide all the necessary information and data concerning an
imminent threat of environmental damage, or a suspected
imminent threat of such damage, or the actual occurrence of
such damage, as well as an assessment of the situation378.
The competent authority is required to notify the persons and
associations eligible to request action of the remedial
measures planned and give them an opportunity to submit
their observations379. The observations received have to be
taken into account by the competent authority’s decision.
Analysed case: The competent authority was not officially
notified.
374 Information concerning the analysed case was obtained from the Report on the experience gained in the application of
Directive 2004/35/EC on environmental liability with regards to the prevention and remedying of environmental damage, submitted pursuant to Article 18 of the ELD, responds to the questionnaire requesting further information sent to relevant German
authorities and phone interview carried out with the relevant German authorities. 375 Article 1, Section 3(4) of the EDA. 376 Article 1, Section 11(1) of the EDA. 377 Article 1, Section 4 of the EDA. 378 Article 1, Section 7(2)(1) of the EDA. 379 Article 1, Section 8(4) of the EDA.
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ELD implementation related to biodiversity damage: Challenges and obstacles
Germany
PREVENTIVE MEASURES
3. Procedure set in place in national legislation
concerning prevention procedure – Article 5 of the
ELD, namely:
- experience in requiring the operator to take
the necessary preventive measures, or
alternatively, preventive measures taken by
competent authorities – Article 5(3) of the
ELD;
- giving instructions for these measures to be
taken and taking these measures itself.
German legislation requires the operator to take the
necessary preventive measures without delay in case of an
imminent threat of environmental damage380. The competent
authority is required to monitor that the operator takes those
preventive measures381. The competent authority may itself
take the necessary preventive measures382.
Legislation recommends that the operator agrees with the
competent authority on the preventive measures to be
undertaken prior to their implementation383.
No preventive measures were carried out in the analysed
case.
REMEDIAL MEASURES
4. Timing and procedure for carrying out remediation
measures – Articles 6(2)(b – e), 7, 11(2) of the ELD, in
cases of damages to biodiversity.
Reference to national legislation.
Under the current legislation, when an environmental
damage has occurred, the operator is required to take the
necessary damage limitation measures and necessary
remedial measures384. The emergency remedial measures or
‘containment measures’ are considered part of the remedial
measures.
The competent authority is required to monitor that the
operator takes the necessary damage limitation and remedial
measures385. The competent authority may also take the
necessary damage limitation and remedial measures386.
The operator is required to identify the remedial measures
under the relevant technical legislative provisions and to
submit them to the competent authority for approval387.
Therefore competent authority has the power, but not the
duty, to require an operator to carry out remedial measures
or to carry out these actions itself388.
Analysed case: The damage was discovered and limited on
the same date that it occurred.
5. Timing and procedure for definition of the operator
that caused the biodiversity damage, assessment of
significance of the damage and determination of
remedial measures (Article 11).
The competent authority is required to enforce the duties to
take remedial action ex officio389.
The competent authority is required to decide on the type
and scope of the remedial measures to be implemented in
accordance with the relevant technical legislative
provisions390.
Analysed case: the remedial measures undertaken were not
completed by the time of submission of the Report, which
380 Article 1, Section 5 of the EDA. 381 Article 1, Section 7(1) of the EDA. 382 Section 7(2)(2) of the EDA. 383 http://www.hoganlovells.com/files/Publication/fb7a456d-804f-47ea-a577-d55baaffb3d7/Presentation/PublicationAttachment/ff3b751c-
5c9b-4fe3-93c8-d7d3a1ad91b5/EnvironmentalUpdate.pdf, accessed on 1 October 2013. 384 Article 1, Section 7 of the EDA. 385 Article 1, Section 7(1) of the EDA. 386 Article 1, Section 7(2)(3) of the EDA. 387 Article 1, Section 8(1) of the EDA. 388 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 127 and 128. 389 Article 1, Section 10 of the EDA. 390 Article 1, Section 8(2) of the EDA.
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ELD implementation related to biodiversity damage: Challenges and obstacles
Germany
included sealing the drainage ditch with a wedge of soil; or
the construction of a bed pitch.
COSTS
6. Experience in covering the costs of preventive and
remediation actions – Article 8 of the ELD.
Legal framework and practical implementation
concerning the exception to bear the costs of
preventive and remedial actions taken pursuant to the
ELD – Articles 8(3) and (4).
Legal framework and practical experience concerning
financial security instruments and markets – Article 14
of the ELD, in cases concerning protected species and
natural habitats.
Financial guarantees to cover responsibility in case of
an operator’s insolvency.
The operator is required to bear the costs for the preventive
damage limitation and remedial measures391. The EDA
leaves the actual details – including provisions on cost
exemptions, reimbursements and payment periods, to be
decided by the regions (lander)392.
Germany has not established a mandatory financial security
system concerning environmental liability. The insurance is
the most prominent means of financial security. The
insurance users are free to decide to what extent they want to
transfer risks to the insurance industry, and the insurance
providers are free to decide at what terms and conditions
they will accept such risks. Many of the 140 liability insurers
provide ELD policies. The insurance is not provided through
pools393.
In the current case: there is no information on whether or not
the operator had an insurance policy.
REQUEST FOR ACTION AND LEGAL REVIEWS
7. Legal framework on natural and legal persons entitled
to request action by the competent authorities –
Articles 7(4) and 12 of the ELD, including definitions
of sufficient interest and impairment of a right.
Obstacles preventing them from requesting action by
competent authorities – Article 12(1) of the ELD.
The competent authority is required to enforce the
obligations to take remedial measures if an affected party or
association, eligible to seek legal remedy, requests the
competent authority to take action and evidences in a
plausible manner that the environmental damage exists394.
Any administrative decision under the EDA must be
motivated and inform of the legal remedies available395. In
the case of recognised associations, section 2 of the
Environmental Remedies Act will be applicable in respect of
legal remedies against a decision or omission to take a
decision by the competent authority under the EDA396.
In the past, German legislation limited environmental
association’s access to justice in cases where their individual
rights were breached. This changed with the CJEU ruling in
case C-115/09.
In the analysed case, there was no involvement of any
natural or legal person.
8. Recorded cases of legal review procedure – Article 13
of the ELD. Awareness among NGOs concerning this
right.
No information has been provided on this aspect.
391 Article 1, Section 9(1) of the EDA. 392 http://www.hoganlovells.com/files/Publication/fb7a456d-804f-47ea-a577-d55baaffb3d7/Presentation/PublicationAttachment/ff3b751c-
5c9b-4fe3-93c8-d7d3a1ad91b5/EnvironmentalUpdate.pdf, accessed on 1 October 2013. 393 Environmental Liability Directive – Handbook for 2 Days Training – Version – February 2013, p. 137. 394 Article 1, Section 10 of the EDA. Criteria for constituting a right to parties or association eligible to seek legal remedy are indicated in
Section 11 of the EDA. 395 Article 1, Section 11(1) of the EDA. 396 Article 1, Section 11(2) of the EDA.
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6. References
Legislation:
- Environment Damage Act;
- Nature Conservation Act.
Miscellaneous
- Report to the Commission on the experience gained in the application of the Directive in
accordance with Article 18(1) of the Directive;
- Response to the questionnaire requesting further information sent to the identified Member
State authority;
- Phone interview carried out with the identified Member State authority which took place on 15
November 2013;
- Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation
challenges and obstacles of the Environmental Liability Directive (2013)397
, accessed on 24
October 2013;
- Andrea Eberlein & Gerhard Roller ‘Application of the Environmental Liability Directive
(ELD) in practice. The German experience’, January 2012.
- http://www-user.uni-bremen.de/~avosetta/germenvliabdir.pdf, accessed on 1 October 2013;
- http://ec.europa.eu/environment/legal/liability/pdf/eld_meetings/ELD_germany.pdf, accessed
on 1 October 2013;
- http://www.hoganlovells.com/files/Publication/fb7a456d-804f-47ea-a577-
d55baaffb3d7/Presentation/PublicationAttachment/ff3b751c-5c9b-4fe3-93c8-
d7d3a1ad91b5/EnvironmentalUpdate.pdf, accessed on 1 October 2013.
397
Annex – Part A: https://c40a451c-a-c40695c0-s-sites.googlegroups.com/a/biois.com/eld-
implementation/ELD%20implementation%20challenges%20and%20obstacles_Annex%20Part%20A_16%20May%202013.p
df?attachauth=ANoY7cqtKJw4yUeHi_oLU5Lra9gS2QdiwZnXNLntWfYlP_wmHDCq32FCKAbrlYGCPZF2JlH9YYAA3N
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KcC0JcEzDzfotPmLagd_CLIxG08OKcF8Sv54ZHRcWDu8STfEeAKNVo_0jAm0JrNgiJfc8KYvXjvd_bfepAxt01WaMpSz
v3VJtSBdHnmXoa1Gka6ZMoi7QWXhliKTx0gvw8B7L8x1tl39DbxYE%3D&attredirects=0
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ELD implementation - Country Report for Italy
1. Introduction: legal and institutional framework
The transposition took place through the Decree No. 152/2006 – Environmental Code, especially Part
VI of the Decree and, thus, was timely.
In September 2013, Italy adopted new legislation ensuring the transposition of additional aspects of
the ELD. The legislation was adopted with an aim of further improving the system in Italy, integrating
EU legislation with existing national rules and coordinating environmental damage prevention and
remediation rules with any other relevant provisions. The regulatory framework that emerged from the
transposition of the ELD was found to be complex, and required a simplification process which is still
under way. However, the new legislation was not applicable during the period of implementation
covered by the report (2007-2012)398
and, therefore, has not been taken into account or analysed for
the present study.
No guidance documents have been issued concerning the application of the transposing legislation.
The Ministry for the Protection of the Environment, Land and Sea is the competent Member State
level authority. The Ministry is required to cooperate with the regions, local authorities and any
suitable public bodies which are also considered as competent authorities.
2. Definition of relevant terms
Italy did not extend the scope of the environmental liability regime to national protected species and
habitats beyond those covered by the Habitats and Birds directives399
. However, Italian legislation
defines ‘damage to protected species and natural habitats’ to those protected under Italian nature
conservation law 157/1992 and Decree No. 357 of 8 September 1997. The Italian Report on
implementation of the ELD, submitted to the Commission on 25 July 2013, states that national law
covers a broader range of natural resources protected by environmental damage prevention and
remediation rules. This, in particular, concerns ‘damage to protected species and natural habitats’.
‘Biodiversity damage’ is defined as any impairment on protected species and natural habitats – by
comparison with the baseline conditions. The Report states that the ‘national law on the prevention
and remedying of environmental damage allows the Ministry to apply the polluter pays principle to
anyone causing significant and measurable, direct or indirect impairment of any natural resource or
of its potential for use’. The criteria for evaluation of significance of damage are contained in Part VI,
Annex 4 of the Environmental Code. This Annex almost literally transposes Annex I of the ELD.
The definition of favourable conservation status is partially transposed400
. The introductory part under
items (a) and (b) of the ELD’s Article 2(4) was not transposed.
The European Commission initiated infringement proceedings against Italy in 2012401
due to the
absence of the imposition of strict liability provisions for the ELD’s Annex III activities. The list of
398 Phone interview carried out with the identified Member State authority on 15 November 2013. 399 Article 300 of the Environmental Code and Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental
liability with regard to the prevention and remedying of environmental damage, COM(2010) 581 final, p. 4. 400 Article 302(1) and (2) of the Environmental Code. 401 See Press release IP/12/68, 26 January 2012. http://europa.eu/rapid/press-release_IP-12-68_en.htm
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activities contained in Annex III is transposed in Section VI, Annex 5 of the Environmental Code.
Fault-based liability is contained in Article 311 of the Environmental Code402
. In Italy, the causal link
between Annex III activity and the damage is not assumed.
Definition of the operator has been properly transposed403
. The causal link between Annex III activity
and the damage is not assumed in Article 303(1)(h) of the Environmental Code and the operator may
appeal against the decision of the competent authority404
.
Definition of preventive measures has been fully transposed405
as well as definition of remediation
measures which in Italian legislation are translated as recovery406
. Remediation measures are
contained in Part VI, Annex 3 of the Environmental Code. This Annex almost literally transposes
Annex II of the ELD.
3. Application of the ELD in Italy
On 25 July 2013, Italy submitted a report to the Commission on the experience gained in the
application of the Directive 2004/35/EC on environmental liability regarding the prevention and
remediation of environmental damage, pursuant to Article 18(1) of the Directive – the Report. The
Report recognises the changes in the legal framework for transposition of the ELD to be carried out in
2013 – which we referred to under point 1. The Italian authorities acknowledged that the report
provides limited information due to problems in collecting it from the competent regional authorities.
The complex implementation process carried out by the national Ministry and competent authorities,
together with the lack a Registry made it difficult to collect the required information.
Coordination between the ELD and analysed legislation
Prior to transposition of the ELD in Italy, Law No. 349 of 8 July 1986 concerning the ‘Establishment
of the Ministry of the Environment and rules on environmental damage’407
imposed liability for
damages to the environment, including a compensation system under its Article 18. The pre-existing
legislation and the ELD transposing legislation were integrated into one system with the aim to ensure
proper environmental protection. As a consequence of this regulatory consolidation effort, the main
provisions governing environmental damage were gathered into a single law: the Legislative Decree
No. 152/2006, known as the Environmental Code408
whose Title II, part VI is devoted to transposing
the ELD and Title III and part VI of Legislative Decree No. 152/2006 to the pre-existing
environmental liability legislation409
.
Significant damage
In Italy, significance of the damage is assessed by the competent authorities through a specific
assessment procedure which includes a preliminary technical assessment to verify the occurrence of
402 ‘Any person who performs an unlawful act or who omits mandatory activities or behaviour, in breach of law, regulations or administrative provisions, with negligence, lack of skill, carelessness or breach of technical standards, causes damage to the environment by altering,
impairing or destroying it, in whole or in part, shall be obliged to restore the situation which existed previously and, failing that, to pay
compensation to the State by way of the proprietary equivalent’. 403 Article 302(4) of the Environmental Code. 404 Article 316 of the Environmental Code. 405 Article 302(8) of the Environmental Code. 406 Article 302(9) of the Environmental Code. 407 Report on the experience gained in the application of Directive 2004/35/EC on environmental liability with regards to the prevention and
remedying of environmental damage, submitted pursuant to Article 18 of the ELD on 25 July 2013. 408 Report on the experience gained in the application of Directive 2004/35/EC on environmental liability with regards to the prevention and
remedying of environmental damage, submitted pursuant to Article 18 of the ELD on 25 July 2013. 409 Report on the experience gained in the application of Directive 2004/35/EC on environmental liability with regards to the prevention and remedying of environmental damage, submitted pursuant to Article 18 of the ELD on 25 July 2013.
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environmental damage distinguishing between imminent threat of damage and actual damage410
. The
procedure continues determining liability and identifying appropriate actions to be taken411
.
According to the Report, in the period of 2007 to 2012 the competent authorities received notification
on potential instances of environmental damage for 4,918 cases out of which 2,979 cases were notified
by operators and 1,846 by Public Prosecutor’s offices or State legal service and 93 cases responded to
a request for action submitted by natural or legal persons. In about 2,000 of these cases, the competent
authorities issued requests for preliminary technical assessments. The preliminary technical
assessments of 1,000 cases were concluded by 2012 determining that 15% of these cases caused actual
environmental damage or imminent threats of damage. The exact number of ‘biodiversity damage’ or
imminent threat of it has not been determined. According to the Report, at least six biodiversity
damage cases could be determined.
The option of setting up and maintaining a ‘National Register of environmental liability and damage
cases’ is currently being assessed412
in order to facilitate the management of environmental damages.
Preventive measures
The operator must inform the competent authority of an imminent threat of damage and provide the
required information prior to taking preventive measures413
. Preventive measures are to be taken
immediately after the notification of the imminent threat of environmental damage. The competent
authority may, at any time, request further information414
, order the operator to take preventive
measures, specify the methodology and/or take the necessary preventive measures415
.
Remedial measures
The operator is required to identify potential remedial measures in accordance with Part VI, Annex 3
of the Environmental Code – almost literally transposing Annex II of the ELD, and submit them to the
competent authority for approval within 30 days of the date of the damage416
. Emergency remedial
measures are considered part of remedial measures. The competent authority may, at any time, require
the operator to take the necessary remedial measures, or take them itself417
. When deciding on the
remedial measures, the competent authority may consult other government authorities or independent
experts418
. They may also carry out on-site inspections where the damage has taken place419
.
Italy has introduced both permit and state-of-the-art defence.
Article 308 of the Environmental Code contains provision on costs.
The competent authority has an obligation to identify the operator that caused the damage, for which
collaboration with other government bodies with appropriate powers such as the Forestry department,
the Police, and the Tax authorities may be sought420
.
410
Report on the experience gained in the application of Directive 2004/35/EC on environmental liability with regards to the prevention and
remedying of environmental damage, submitted pursuant to Article 18 of the ELD on 25 July 2013. 411
Idem to footnote above. 412 Idem to footnote above. 413 Article 304(2) of the Environmental Code. 414 Articles 304(3)(a) and 305(2)(a) of the Environmental Code. 415 Article 304(3)(b) and (c) of the Environmental Code. 416 Article 306(1) of the Environmental Code. 417 Article 305(2)(b), (c) and (d) of the Environmental Code. 418 Article 312(3) of the Environmental Code. 419 Article 312(4) – (8) of the Environmental Code. 420 Article 312(2) of the Environmental Code.
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Financial securities
Part VI of the Environmental Code foresees the possibility of introducing financial securities, but this
has not taken place yet421
.
Request for action
Natural or legal persons affected, or likely to be affected by the damage, or having an interest to
participate in the proceedings related to defining the preventive and remedial measures – including
environmental NGOs, may submit a request for action accompanied with relevant information to the
competent authority422
. The competent authority is required to assess the request for action and to
inform the applicant, without delay, of the decisions made423
.
Rotation fund
The compensation for environmental damage system was based on the collection of sums including
those sums derived from guarantees in favour of the State which had been issued to cover
compensation for environmental damages itself. The Rotation fund was established by pulling together
those sums with the purpose of financing the following actions:
- urgent actions to mark out, define and secure polluted sites, with priority for areas in respect of
which compensation for environmental damage has been paid;
- environmental depollution, reclamation and restoration actions for the areas in respect of
which compensation for environmental damage has been paid;
- environmental reclamation and restoration actions provided for in the national environmental
reclamation and restoration programme for polluted sites;
- research centre activities in the areas of reducing greenhouse gas emissions and global climate
changes424
.
This Rotation Fund was introduced in order to boost the financial feasibility of damage remediation
measures, hence to improve the effectiveness of damage remediation425
.
4. References
Legislation:
- Decree No. 152/2006 (Environmental Code).
Miscellaneous:
- Report on the experience gained in the application of Directive 2004/35/EC on environmental
liability regarding the prevention and remedying of environmental damage, submitted
pursuant to Article 18 of the ELD on 25 July 2013;
- Phone interview carried out with the identified Member State authority by 15 November 2013;
421 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 201. 422 Article 309(1) and (2) of the Environmental Code. 423 Article 309(3) of the Environmental Code. 424 Article 317(5) of the Environmental Code. 425 Report on the experience gained in the application of Directive 2004/35/EC on environmental liability with regards to the prevention and remedying of environmental damage, submitted pursuant to Article 18 of the ELD on 25 July 2013.
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- Annex – Part A426
: Legal Analysis of the National Transposing Legislation – Implementation
challenges and obstacles of the Environmental Liability Directive (2013), accessed on 24
October 2013;
- Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental
liability with regard to the prevention and remedying of environmental damage, COM(2010)
581 final.
426
Annex – Part A: https://c40a451c-a-c40695c0-s-sites.googlegroups.com/a/biois.com/eld-
implementation/ELD%20implementation%20challenges%20and%20obstacles_Annex%20Part%20A_16%20May%202013.pdf?attachauth=ANoY7cqtKJw4yUeHi_oLU5Lra9gS2QdiwZnXNLntWfYlP_wmHDCq32FCKAbrlYGCPZF2JlH9YYAA3Ns3JChVLCgt_B_mma2LmKJ
2vp-fim_sQZC-Br4yFVwk8dlvu2VaYbgwKPvgtQIyyY5T8kzxoMKzrLUNwp1WWAxQ3-
KcC0JcEzDzfotPmLagd_CLIxG08OKcF8Sv54ZHRcWDu8STfEeAKNVo_0jAm0JrNgiJfc8KYvXjvd_bfepAxt01WaMpSzv3VJtSBdHnmXoa1Gka6ZMoi7QWXhliKTx0gvw8B7L8x1tl39DbxYE%3D&attredirects=0
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ELD implementation - Country Report for Poland
1. Introduction: legal and institutional framework
The ELD Directive is transposed in Poland by the following legal instruments:
- Act on the prevention and remedying of environmental damage of 13 April 2007 (APRED);
- Ordinance on assessment criteria for environmental damage of 30 April 2008 – transposing
Annex I of the ELD;
- Ordinance on types of remedial measures and on the conditions and manner in which they are
carried out as of 4 June 2008 – transposing Annex II of the ELD.
The transposition was late due to the late adoption of the two ordinances.
The competent authorities in Poland did not publish any guidance documents on the application of the
above indicated legislation.
The competence for implementation of the ELD in Poland relies mostly on the regional level. The
Regional Directors for Environmental Protection are defined as the primary competent authorities
within Voivodeships (Administrative division or regions in Poland). In addition, the Chief Inspectorate
of Environmental Protection has a role in, inter alia, maintaining the register of environmental liability
cases427. The General Director for Environmental Protection (state level authority) has a role in
implementation and application of the ELD in Poland.
The Inspector of Environmental Protection is obliged to keep a register of environmental damages and
imminent threats of such damages in an electronic form428
. The Register is open to public access on a
request429
.
2. Definition of relevant terms
Scope
The Polish environmental liability scheme under the APRED has a similar scope to the ELD and
distinguishes both types of liability – strict and fault, or negligence-based liability. It applies to
damage or imminent threat of damage caused by:
- activities of entities which use the environment as indicated in Article 3 of the APRED, i.e. the
ELD Annex III activities;
- other activities affecting protected species or natural habitats when the entity which uses the
environment has been at fault430
.
Article 2 stipulates that the APRED applies to biodiversity damage or imminent threat of such, caused
by ELD Annex III activities, i.e. Article 3 of the APRED, and other activities where the operator
intended to cause damage or was negligent.
427 Article 28a of the Act on the Environmental Protection Inspectorate of 20 July 1991 and Ordinance on the register of imminent threats of
environmental damage and environmental damage of 26 February 2008. 428 Idem footnote above. 429 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 242. 430 Articles 2(1) and 3 of the APRED.
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Biodiversity damage
‘Biodiversity damage’ is defined as measurable adverse change in a natural resource, or measurable
impairment of a natural resource service as compared to the baseline condition, which was caused
directly or indirectly by activities carried out by an entity, causing significant adverse effects on the
protected species and protected natural habitat from reaching or maintaining the favourable
conservation status431
.
The applicability of the APRED was extended to the habitats and species protected under Polish
legislation and not just to those covered by the Habitats and Birds Directives. The protected national
habitats are:
- national habitats enjoying a form of protection within the meaning of the provisions of the Act
on Nature Protection of 16 April 2004, or enjoying protection under Article 33(2) of that Act;
- national habitats which belong to the type of habitats specified in the provisions issued under
Article 26 of the Act on Nature Protection of 16 April 2004;
- habitats and the breeding grounds of protected species;
- breeding, moulting and wintering areas of migratory birds and staging posts along their
migratory routes432
.
Protected species are considered as:
- species protected within the meaning of the Act on Nature Protection of 16 April 2004;
- migratory bird species433
.
‘Significant’ biodiversity damage
‘Significant’ biodiversity damage is to be assessed in accordance with the criteria set in the Ordinance
on assessment criteria for environmental damage of 30 April 2008 which transposes and extends the
criteria contained in Annex I of the ELD.
The deterioration of natural habitats and the habitats of species, as well as disturbances of the species
for which the areas have been designated, as foreseen within Article 6(2) of the Habitats Directive,
falls within the meaning of biodiversity damage under the APRED.
The criteria regarding ‘significant’ damage to species contained in the Ordinance consists of:
- destruction of, or damage to the habitat of protected species;
- adverse change to the status of (or the service provided by) populations of protected species on
the territory of a commune, within administrative divisions or regions, i.e. Voivodships, the
country, the biogeographic region, or the European Community, consisting in particular of:
o a decrease in the number of individuals within the population of protected species, a decrease
of their density or the area covered;
o deterioration of the protected species’ capacity for propagation, their spread, or a deterioration
of other vital functions;
o increased mortality
o limited possibility of contact of protected species with neighbouring populations.
431 Article 6(11) of the APRED. 432 Article 6(2) of the APRED. 433 Article 6(7) of the APRED.
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- decrease of the area of protected species’ habitat, or adverse change to the use by protected
species of natural resources, of their habitat in the territory of a commune, a Voivodship, the
country, the biogeographic region, or the European Community;
- deterioration in the possibility of conservation of protected species, including the possibility to
achieve a favourable conservation status.
The assessment of significant environmental damage to a protected natural habitat involves the
analysis of the change, or changes provoking one or more of the following measurable effects:
- destruction of, or damage to, a part of the protected natural habitat;
- adverse change to the status of the population or of the protected natural habitat (or the services
provided by them) on the territory of a commune, a Voivodship, the country, the biogeographic
region, or the European Community, consisting in particular of:
o loss of a part of the biological diversity;
o loss or deterioration of specific features of the structure;
o deterioration in the ecosystem services;
o deterioration of the landscape diversity of the protected natural habitat.
- deterioration in the conservation status of protected species typical for the protected natural
habitat;
- deterioration in the possibility of conservation of protected natural habitats, including the
possibility to achieve a favourable conservation status.
Favourable conservation status
‘Favourable conservation status’ of the species and habitats is defined by reference to Article 5 of the
Act on Nature Protection of 16 April 2004.
In Poland, an operator is considered as an entity which uses the environment. Article 6(9) of the
APRED defines an ‘entity which uses the environment’ as an entity within the meaning of Article 3.20
of the Act of 27 April 2001 – the Environmental Protection Act. This entity carries out an activity
involving a risk of environmental damage or any other activity referred to in Article 2.1(2) with a risk
of causing environmental damage or an imminent threat of such damage.
The definitions of both prevention and remedial measures are transposed into Polish legislation434
.
Article 14 of the APRED obliges the competent Ministry to enact an ordinance on the types of
remedial measures, as well as the conditions and methods for carrying out remedial measures. This
obligation was fulfilled through the Ordinance on the types of remedial measures and on the
conditions and manner in which they are carried out as of 4 June 2008.
434 Article 6(3) of the APRED.
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3. Application of the ELD in Poland
Poland submitted a report to the Commission on the experience gained in the application of the
Directive in accordance with Article 18(1) of the Directive – the Report.
Poland is one of the Member States in the EU with the highest number of ELD cases. Out of the total
515 reported cases of environmental damage during the period of 2007 – 2012, approximately one-in-
five cases concerned biodiversity damage.
One of the explanations for such a high number of cases is a lower threshold for defining ‘significant’
biodiversity damage provided in the Ordinance on assessment criteria for environmental damage of 30
April 2008, adopted in accordance with Article 10 of the APRED.
There are no binding methods to assess whether or not significant biodiversity damage has occurred.
The existence of biodiversity damage is assessed on a case-by-case basis435
. According to the Polish
relevant authorities, it involves a comparative assessment weighing the data concerning the baseline
condition against the data presented by those notifying the environmental damage436
.
The following elements are considered with respect to specific protected species and natural habitats
when assessing whether or not the biodiversity damage has occurred: number of destroyed specimens;
the area of the destroyed habitat; the ‘sparseness’ of their presence on the Gmina437
, country scale.
Site inspections are also organised to assess the actual condition438
. For example, if a notification and
investigation regarding a damage determines that it was caused as a result of an activity of an user of
the environment and that the damage was in one of the sites of a protected plant species in the
Voivodeship – identified through biological inventories, e.g. the Eastern pasqueflower (Pulsatilla
patens), then a ‘significant’ biodiversity damage to protected species is declared439
. Any change
having a significant adverse impact on the maintenance of the proper conservation status of the
species, assessed in relation to the baseline condition, will be considered as significant damage440
.
Approximately one-in-three confirmed ELD cases in Poland were reported by natural or legal
persons441
.
Training is organised by regional authorities on environmental protection and implementation of the
APRED. The regional authorities are also organising region-specific and Poland-wide scientific
conferences on the implementation of the ELD in Poland.
435 Idem to previous footnote. 436 Response to the questionnaire requesting further information sent to the identified Member State authority. Response received on 15
November 2013. 437 Gmina is the principal unit of administrative division of Poland at its lowest uniform level. It is often translated as ‘commune’ or
‘municipality’. As of 2010 there were 2,459 gminas throughout the country. - http://en.wikipedia.org/wiki/Gmina, accessed on 18 November
2013. 438 Response to the questionnaire sent by Milieu Ltd to the Member State authority requesting information (received on 15 Nov 2013) 439 Idem to previous footnote. 440 Idem to previous footnote. 441 Idem to previous footnote.
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4. Coordination between the ELD and other liability systems
Prior to the adoption of the legislation transposing the ELD, Poland had legislation concerning
biodiversity protection, including certain provisions imposing obligations on the authorities such as
avoiding biodiversity damage442
. For example, Article 37 of the Act on Nature Protection of 16 April
2004 authorises a competent authority to issue a decision that requires a person, whose activity may
significantly affect a Natura 2000 site, to cease carrying out the activity and to restore the site to its
baseline conditions443
. In addition, Article 362 of the Environmental Protection Act of 27 April 2001
applied to damage of areas and to species protected under Polish law444
.
The relationship between these three acts should be established445
. The foreseen relationship between
these three systems will be as follows:
- the APRED will apply to biodiversity damage under the ELD;
- Article 37 of the Act on Nature Protection of 16 April 2004 will apply to any damage to a
Natura 2000 site to which the APRED does not apply;
- Article 362 of the Environmental Protection Act of 27 April 2001 will apply to all other
biodiversity damage cases446
.
According to the relevant Polish authorities, the Member State provisions implementing the ELD pay
more attention to remediation of ‘biodiversity damage’, whilst the Member State provisions
implementing the Habitats Directive pays more attention to the conservation of protected sites and
species447
. Furthermore, strict liability on the operator was not foreseen under the nature conservation
legislation.
5. Analysed cases448
In Poland, two cases have been analysed in order to better undertake assessment on the
implementation of the ELD in Poland.
Case number 1
Case 1 concerns damage caused by Konsorcjum Zarządców Nieruchomości DEXTERUS to the
habitats of the common swift (Apus apus) – a migratory and protected bird species in a residential area
at ul. Górczewska 10 in Warsaw. The damage was remedied by installing five-compartment nest
boxes for swifts on the roof of the building.
In 2009, the General Directorate for Environmental Protection sent a letter to Regional Directorates
for Environmental Protection disclosing its position on the correlation between thermal modernisation
442 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 239. 443 Idem to previous footnote. 444 Idem to previous footnote. 445 Idem to previous footnote. 446 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 239. 447 Response to the questionnaire requesting further information sent to the identified Member State authority. Response received on 15
November 2013. 448 Information concerning the analysed case was obtained from the Report on the experience gained in the application of Directive
2004/35/EC on environmental liability with regards to the prevention and remedying of environmental damage, submitted pursuant to Article
18 of the ELD, responds to the questionnaire requesting further information sent to relevant Polish authorities and phone interview carried out with the relevant Polish authorities.
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works in buildings settled by common swifts. The letter stated that all works restricting the swifts’
access to places of their normal nesting and breading are to be treated as destruction of breeding sites
and shelters of common swifts. The letter furthermore stated that in cases of thermal modernisation
works, it is necessary to conduct such works in a manner respecting the needs and biology of the swift,
e.g. obtaining all permits from the State administration to: avoid startle and disturb the birds; perform
an ornithological inventory before starting the works; to ensure replacement breeding sites for the
birds in places where they used to have their nests if it is necessary or essential to destroy the habitats
of these birds. An reason for determining whether or not the damage is significant is the fact that these
swifts, apart from rare populations in the mountains and very rare populations in old primeval forests,
occur only in cities where they nest on buildings, e.g. flat roof openings. The availability of these and
similar places to breed determines the number of individuals, and the progressive removal of such
places, undoubtedly, has a negative impact on the population numbers of this protected bird.
This letter, providing interpretation of the General Directorate for Environmental Protection on the
correlation between thermal modernisation works in buildings settled by common swifts, resulted in
over 20 similar cases of biodiversity damage in a total 515 reported cases.
The proceedings were initiated and finalised within one month after the occurrence or determination of
the damage.
Case number 2
The second case concerns damage to protected natural habitats and species in the area of Lake
Nidzkie. The damage occurred within the protected areas of Natura 2000 Birds Directive SPA
‘Puszcza Piska’ and Natura 2000 Habitats Directive SAC ‘Ostoja Piska’. The damage was caused
during the construction of a guest house, a harbour master’s office and a hangar for boats. Therefore,
the activity that caused the damage is not covered by the ELD’s Annex III. The damage was caused
whilst grading the area directly adjacent to Nidzkie Lake and cutting down trees and undergrowth
from the coastal slope.
An assessment of the impacts on the Natura 2000 area was carried out pursuant to the provisions of the
Act of 3 October 2008 – on the provision of information regarding the environment and its protection,
public participation in environmental protection and environmental impact assessment. As a result, the
competent authority rejected the terms for implementation of the project involving the construction of
the guest house and harbour master’s office, due to the impact on the Natura 2000 sites – the Natura
2000 Birds Directive SPA ‘Puszcza Piska’ and the Natura 2000 Habitats Directive SAC ‘Ostoja
Piska’.
Nevertheless, the construction was carried out. As a result of the conducted works, significant
biodiversity damage occurred affecting the protected natural habitats and protected species. During the
construction works, natural habitats were damaged – the habitats and species of which require
protection under Natura 2000 site, such as the Tilio-Carpinetum code: 9170, Alnenion glutinoso-
incanae code: 91E0 and the natural eutrophic lake code: 3150.
Tilio-Carpinetum constituted an important breeding and feeding biotope of the Middle Spotted
Woodpecker (Dendrocopos medius) and Red-breasted Flycatcher (Ficedula parva) – bird species
listed in Birds Directive. Due to cutting down the trees and undergrowth the living conditions for these
species deteriorated greatly.
The proceedings for this case lasted for 14 months after the occurrence or determination of damage.
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Layers of demolition debris and construction waste were removed from the shore area of Lake
Nidzkie. The distorted terrain was reshaped by filling up soil cavities and planting native tree species
typical for the site.
ELD implementation related to biodiversity damage: Challenges and obstacles
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ELD
National legislation / Application
GENERAL
1. Experience in establishing a causal link between the
damage and the activities of individual operators –
Article 4(5) of the ELD, in cases of damages caused to
biodiversity.
Legal remedies used by the operator – Article 11(4) of
the ELD.
Article 2(2) of the APRED transposes Article 4(5) of the
ELD. The relevant legislation does not contain provisions
on how the causal link should be established.
The transposing legislation does not explicitly provide for a
legal remedy to be used by the operator. However legal
remedies may be used by operators, on the basis of the rules
provided by the Administrative Procedure Act.
In case number 1, the damage was attributable to the
operator since it performed works despite the conditions
included in the administrative opinion.
In the second case, there was no information on the causal
link.
An appeal by the operator was submitted against the
decision issued by the competent authority. In the appeal it
was purported that the user of the environment had a permit
to cut down the trees. Thus the user did not cause
environmental damage to protected natural habitats and
protected species. It was also emphasised that covering the
area next to the lake with rubble and waste is not an
environmental damage within the meaning of the
Environmental Damage Act. However, the instance of
appeal, i.e. the General Director for Environmental
Protection, dismissed the complainant's allegations and
upheld the contested decision.
2. Procedure for the notification of information – Articles
5(2), (3)(a) and Articles 6(1),(2)(a) of the ELD.
Availability of such information to third parties in
relation to Article 12.
The transposition of the referred articles of the ELD is
ensured by Article 11 of the APRED. It contains a list of
items that a notification must contain. Whenever an
imminent threat of environmental damage is not dispelled
despite the preventive measures undertaken, or where
environmental damage occurred the notification should
include a description of the preventive and remedial
measures after the notification and at a later stage of their
completion449. The competent authority then will forward
this notification to the Environmental Protection
Inspector450.
The Inspector of Environmental Protection is obliged to
keep a register of environmental damages and imminent
threats of such damages in an electronic form451. The
Register is open to public access on a request452.
449 Article 19 of the APRED. 450 Article 26 of the APRED. 451 Article 28a of the Act on the Environmental Protection Inspectorate of 20 July 1991 and Ordinance on the register of imminent threats of environmental damage and environmental damage of 26 February 2008.
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In case 1: The competent authority was notified by a natural
person.
In case 2: An NGO informed the competent authorities that
environmental damage had taken place.
PREVENTIVE MEASURES
3. Procedure set in place in national legislation concerning
prevention measures (Article 5 ELD), namely:
- experience in requiring the operator to take
the necessary preventive measures or
alternatively preventive measures taken by
competent authorities (Article 5(3) ELD);
- giving instructions for these measures to be
taken and taking these measures itself.
In the Polish legislation, an operator is obliged to
immediately take preventive measures453. The competent
authority is obliged to require the operator to carry our
preventive measures and to give instructions on how this is
to be done in case the operator fails to do so454.
Furthermore, the competent authority is obliged to
undertake preventive measures itself in certain cases, i.e. the
operator cannot be identified, enforcement against this
entity cannot be initiated or is ineffective, or in case of risk
to human life, health or irreversible environmental
damage455.
Polish legislation refers to ‘the case where an imminent
threat of environmental damage occurs’ as the trigger for
preventive action456.
In cases 1 and 2: No preventive measures were taken in any
of the cases analysed.
REMEDIAL MEASURES
4. Timing and procedure for carrying out of remediation
measures (Articles 6(2)(b – e), 7, 11(2) ELD) in cases
of damages to biodiversity. Reference to national
legislation.
Polish legislation does not recognise the permit defence or
state-of-the-art defence permit.
In case damage occurs, the operator is obliged to
immediately control and contain damage and take remedial
measures457. Measures to control and contain the damage
are considered remedial measures.
The operator is obliged to submit a request to the competent
authorities concerning the conditions of remedial
measures458, as well as information on the baseline
condition and the proposal for the remedial measures. The
competent authority, after conducting the administrative
procedure, will determine the conditions of remedial
measures and conservation status to which the environment
must be returned (provided in a form of administrative
decision459.
The competent authority is obliged to consult other relevant
authorities when making a decision concerning remedial
measures. For example, according to Article 13(6)(5) of the
APRED, the Director of a national park must be consulted
in respect of environmental damage that took place in that
National Park.
452 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 242. 453 Article 9(1) of the APRED. 454 Article 15 of the APRED. 455 Article 16 of the APRED. 456 Article 9(1) of the APRED. 457 Article 9(2) of the APRED. 458 Article 13(1) and (2) of the APRED. 459 Article 13(3) of the APRED.
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ELD implementation related to biodiversity damage: Challenges and obstacles
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The competent authority is obliged to require the operator to
carry our remedial measures and to give instructions on how
this is to be done in case the operator fails to do so460. The
operator may be required to carry out subsequent
monitoring461. Furthermore, the competent authority is
obliged to undertake remedial measures itself in certain
cases, i.e. when the operator cannot be identified,
enforcement against this entity cannot be initiated or is
ineffective, or in case of risk to human life, health or
irreversible environmental damage462.
Case 1: The operator did not take steps to immediately
control, remove or manage the damage. Furthermore, the
operator did not consult the competent authority concerning
the remedial measures in accordance with Article 13 of the
APRED.
The Regional Director for Environmental Protection in
Warsaw issued, on the basis of APRED’s Article 15, a
decision requiring the user to conduct remedial measures
consisting of an installation of 15 clutches for swifts on the
building.
Case 2: The operator did not take steps to immediately
control, remove or manage the damage. Furthermore, the
operator did not consult the competent authority concerning
remedial measures in accordance with Article 13 of the
APRED.
The competent authority ordered remedial measures to be
undertaken. The undertaken remedial measures consisted of
removing layers of demolition debris and construction waste
from the shore area of Lake Nidzkie. The distorted terrain
was reshaped by filling up soil cavities and planting of
native tree species typical for the site.
5. Timing and procedure for definition of the operator that
caused the biodiversity damage, assessment of
significance of the damage and determination of
remedial measures – Article 11.
Article 11(3) of the ELD is not transposed in the APRED
but through a regulatory act. The significance of
biodiversity damage is assessed on the basis of the
Ordinance on assessment criteria for environmental damage
of 30 April 2008 – transposing Annex I of the ELD.
Remedial measures are determined on the basis of the
Ordinance on types of remedial measures and on the
conditions and manner in which they are carried out of 4
June 2008 – transposing Annex II of the ELD. Proposals for
remedial measures are submitted by the operators but the
competent authorities adopt the final decision determining
what remedial measures should be taken s463.
In the first case, the proceedings were initiated and finalised
within one month after the occurrence or determination of
damage. Closing or barring the ventilation openings in the
flat roofs, which are the breeding sites of swifts, was
considered as a destruction of a habitat of a protected
species. The damage was attributable to the operator
carrying out the works – since it performed works despite
460 Article 15 of the APRED. 461 Article 20 of the APRED. 462 Article 16 of the APRED. 463 Article 13(3) of the APRED.
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the conditions included in the environmental impact
assessment.
In case number 2: the operator causing the damage was
identified when assessing the environmental damage.
Proceedings were finalised 14 months after the occurrence
or determination of damage.
COSTS
6. Experience in covering the costs of preventive and
remediation actions – Article 8 ELD.
Legal framework and practical implementation
concerning the exception to bear the costs of preventive
and remedial actions taken pursuant to the ELD –
Articles 8(3) and (4) of the ELD.
Legal framework and practical experience concerning
financial security instruments and markets – Article 14
of the ELD, in cases concerning protected species and
natural habitats.
Financial guarantees to cover responsibility in case of
an operator’s insolvency.
The costs are defined in Article 21 of the APRED. The
competent authority which carried out the preventive and
remedial measures is entitled to recover the costs from the
operator that caused the damage464.
Poland does not have a mandatory financial security
regime465.
In neither of the analysed cases did the competent
authorities incur any costs. The costs of the undertaken
remedial measures were paid by the operators.
REQUEST FOR ACTION AND LEGAL REVIEWS
7. Legal framework on natural and legal persons entitled
to request action by competent authorities – Articles
7(4) and 12 of the ELD, including definitions of
sufficient interest and impairment of a right.
Obstacles preventing them from requesting action by
competent authorities – Article 12(1) of the ELD.
Under the Polish law, the competent authority is obliged to
accept requests for action from any entity, i.e. any natural
and legal person and any organisational unit with no legal
personality466. This means that the APRED, in this sense, is
broader than the requirements of the ELD.
According to the general rules under the Administrative
Procedure Act, the competent authority has a duty to
respond to the person making the notification467.
Persons that have submitted notification have the right to
participate as parties in the proceedings468. In case the
competent authority considers the provided notification
justified, it will directly send the notification to the
Environmental Protection Inspector469.
In case 1, the competent authority was notified by a natural
person; however, it does not seem that the person was
involved in the proceedings.
In case 2, an NGO informed the competent authorities that
464 Article 23 of the APRED. 465 Article 187 of the Environmental Protection Act of 27 April 2001 466 Article 24(1) of the APRED and Response to the questionnaire requesting further information sent to the identified Member State
authority. Response received on 15 November 2013. 467 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 258. 468 Article 24(6) of the APRED. 469 Article 25 f the APRED.
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an environmental damage had taken place; It does not seem
that the NGO was involved in the proceedings.
8. Recorded cases of legal review procedure – Article 13
of the ELD.
Awareness amongst NGOs concerning this right.
Analysed cases 1 and 2
Legal review procedures within the meaning of Article 13
of the ELD were not undertaken.
6. References
Legislation:
- Act on the prevention and remedying of environmental damage of 13 April 2007;
- Ordinance on assessment criteria for environmental damage of 30 April 2008;
- Ordinance on types of remedial measures and on the conditions and manner in which they are
carried out as of 4 June 2008;
Miscellaneous:
- Response to the questionnaire requesting further information sent to the identified Member
State authority;
- Report to the Commission on the experience gained in the application of the Directive in
accordance with Article 18(1) of the Directive;
- Annex – Part A470
: Legal Analysis of the National Transposing Legislation – Implementation
challenges and obstacles of the Environmental Liability Directive (2013), accessed on 24
October 2013.
470
Annex – Part A: https://c40a451c-a-c40695c0-s-sites.googlegroups.com/a/biois.com/eld-
implementation/ELD%20implementation%20challenges%20and%20obstacles_Annex%20Part%20A_16%20May%202013.pdf?attachauth=ANoY7cqtKJw4yUeHi_oLU5Lra9gS2QdiwZnXNLntWfYlP_wmHDCq32FCKAbrlYGCPZF2JlH9YYAA3Ns3JChVLCgt_B_mma2LmKJ
2vp-fim_sQZC-Br4yFVwk8dlvu2VaYbgwKPvgtQIyyY5T8kzxoMKzrLUNwp1WWAxQ3-
KcC0JcEzDzfotPmLagd_CLIxG08OKcF8Sv54ZHRcWDu8STfEeAKNVo_0jAm0JrNgiJfc8KYvXjvd_bfepAxt01WaMpSzv3VJtSBdHnmXoa1Gka6ZMoi7QWXhliKTx0gvw8B7L8x1tl39DbxYE%3D&attredirects=0
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ELD implementation - Country Report for Slovenia (Template for Member States without reported ELD biodiversity cases)
1. Introduction: legal and institutional framework
The main transposing act of the ELD in Slovenia is the Environmental Protection Act (EPA) 46/2006
in its consolidated text and amended several times. This Act was complemented by the Decree
55/2009 on the Types of Measures for Remediation of Environmental Damage and Regulation
46/2009 on the Criteria for Establishing of Environmental Damage. The transposition of the ELD was
late.
Other relevant legislation includes the:
- Nature Conservation Act;
o Decree on Protected Wild Animal Species;
o Decree on Protected Wild Plant Species;
o Decree on Habitat Types.
- General Administrative Procedure Act;
The competent authorities in Slovenia did not publish any guidance documents on the application of
the above indicated legislation.
The competent authority is the Ministry of Agriculture and Environment.
2. Definition of relevant terms
‘Biodiversity damage’ is defined as damage that has significant adverse effects on reaching or
maintaining the favourable conservation status of protected species and habitats, in accordance with
regulations on the protection of nature, and is assessed on the basis of prescribed criteria471
. The
transposition of the favourable conservation status is almost literal. Annex I of the ELD was
effectively transposed in the Regulation 46/2009 on the Criteria for Establishing of Environmental
Damage.
Slovenia did not extend the applicability of the environmental liability regime to habitats or species
not covered by relevant provisions of the Habitats and Birds directives472
.
The environmental liability regime in Slovenia applies to the following:
- occupational activities responsible for the prevention of imminent threat of environmental
damage and for prevention and/or restitution of environmental damage without consideration
of whether or not there is guilt;
- other occupational activities responsible for damage to protected species and habitat types or
for any imminent threat of such damage, if acting at fault or negligently473
.
The operator who would be considered liable for the environmental damage, is defined as a legal or
471 Article 110b(1) of the EPA. 472 Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental liability with regard to the prevention and
remedying of environmental damage, COM(2010). 473 Article 110a(3) of the EPA.
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natural person who directly, or indirectly, solely or simultaneously, pollutes the environment, uses
natural resources, or causes environmental disaster474
.
According to Slovenian legislation, preventive measures are any measures taken by the operator in
response to an event, act, or omission to act, that has created an imminent threat of environmental
damage, with a view of preventing or minimising the possibility of such damage475
. In the event of
imminent threat of environmental damage, the operator must take all necessary measures to prevent
such damage476
. If the competent authority is informed, or becomes aware of, an imminent threat of
environmental damage, it may issue a decision ordering the execution of preventive measures, with
detailed instructions for their implementation477
.
Remedial measures are any action, or combination of actions, including mitigating or interim
measures to restore, rehabilitate or replace damaged natural resources and/or impaired services, or to
provide an equivalent alternative to those resources or services478
. The provision on remedial
measures refers to the Decree on Types of Measures for Remediation of Environmental Damage
which almost entirely transposed Annex II of the ELD479
.
In the case of imminent threat of environmental damage, the operator must immediately notify the
competent authority of any relevant facts480
. If the competent authority is informed or becomes aware
of an imminent threat of environmental damage, or the damage itself, it may request certain
information from the operator481
.
In case of environmental damage, the operator must immediately take all the necessary measures to
limit the damage and then send the competent authority information about all relevant facts and
proposals of remedial actions for approval482
. The operator is obliged to propose remedial measures
and submit them to the competent authority for approval483
. This means that in Slovenia, emergency
measures to limit further damage are prior to the approval of remedial measures and would be
considered preventive measures. However, the remedial measures may contain measures to limit
further damage. The competent authority is obliged to examine the nature, extent and importance of
environmental damage for the specific part of the environment, and the possibility of its natural
recovery, before issuing the decision484
.
However, the EPA does not explicitly require the competent authority to determine which operator has
caused the damage or the imminent threat of damage. Also it does not explicitly require the competent
authority to assess the significance of the damage and to determine remedial measures, unless
informed of the imminent threat of damage or the damage itself by the operator485
. However, in
practice these assessments seem to be carried out by the Ministry of Agriculture and Environment
regardless the notification by the operator486
.
474 Article 3(7) of the EPA. 475 Article 110d(2) of the EPA. 476 Article 110d(1) of the EPA. 477 Article 110d(3) of the EPA. 478 Article 110e(3) of the EPA. 479 Instances of failure to transpose certain aspects of ELD’s Annex II were observed. 480 Article 110e(1) of the EPA. 481 Articles 110d(3) and 110e(6) of the EPA. 482 Article 110e(g) of the EPA. 483 Article 110e(1) of the EPA. 484 Article 110e(2) of the EPA. 485 Article 3(6) and 11 of EPA 486 Representative of Slovenia to the Commission ELD expert group
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In Slovenia, neither ‘permit defence’ nor the ‘state-of-the-art defence’ – Article 8(4) of the Directive,
are applicable487
.
Any natural or legal person, affected or likely to be affected by an environmental damage, and any
non-governmental organisation fulfilling certain requirements, have the right to inform the competent
authorities of cases of environmental damage and require action from them488
. These persons have a
status of a party in the procedure for the determination of remedial measures489
.
3. Application of the ELD in Slovenia
Slovenia submitted a report to the Commission on the experience gained in the application of the
Directive in accordance with Article 18(1) of the Directive – the Report.
The Report concerns environmental damage that occurred between the entry into force of the
transposing legislation, i.e. 26 July 2008 and 25 April 2013. According to the Report, no cases of
environmental damage have been observed.
However, according to the reports concerning the work of the Inspectorate for Agriculture and the
Environment490
, a significant number of cases of breach of permit requirements for Annex III activities
have been observed in the period of 2008–2012491
. According to the Slovenian authorities, these
measures did not concern imminent threat of ‘biodiversity damage’492
.
Significant biodiversity damage
According to the Slovenian authorities, there has never been a case of (imminent threat of)
‘biodiversity damage’. So regardless of the criteria for definition of significant biodiversity damage
applied, there has not been any case determined under the ELD or 493
under the Slovenian legislation
transposing Article 6(2) of the Habitats Directive494
.
The EPA provisions transposing Articles 5(3d) and (4) and 6(2e) and (3) of the ELD require the State
to eliminate the consequences of excessive environmental burdens and to cover the costs of such
action if payment of costs cannot be imposed on particular or identifiable operators, or if there is no
legal basis for the imposition of liabilities on the operators, or if the consequences cannot be
eliminated otherwise495
. The EPA defines ‘excessive environmental burden’ as any burden to the
environment which is caused by exceeding emission limit values, environmental quality standards and
rules of conduct or permitted use of natural resources496
.
487 Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental liability with regard to the prevention and remedying of environmental damage, COM(2010) 581 final, p. 4. 488 Article 110g(1). 489 Article 110e(8) of the EPA. 490 Please see list of reports on the work of the Inspectorate available under the following link (in Slovenian only):
http://www.iko.gov.si/si/o_inspektoratu/porocila_o_delu_inspektorata/ 491 Please see list of Report on the work of the Inspectorate available under the following link (in Slovenian only): http://www.iko.gov.si/si/o_inspektoratu/porocila_o_delu_inspektorata/ 492 A phone interview with relevant Slovenian authorities on 20 November 2013. 493 A phone interview with relevant Slovenian authorities on 20 November 2013. 494 Articles 33, 45 and 60 of the Nature Conservation Act; Articles 16 and 17 of the Decree on Protected Wild Plant Species; Article 22 of the
Decree on Protected Wild Animal Species; and Article 7 of the Decree on Special Protected Sites (Natura 2000 sites). 495 Article 11(1) of the EPA. 496 Article 3(6)(1) of the EPA.
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The definition of the State liability does not require any assessment of significant or ‘excessive’
damage. The State is liable from the moment there is any burden to the environment caused by
exceeding emission limit values, environmental quality standards and rules of conduct or permitted
use of natural resources if payment of costs cannot be imposed on particular or identifiable operators
or if there is no legal basis for the imposition of liabilities on the operators for such burden or if the
consequences cannot be eliminated otherwise.
In accordance with the above, and complemented by the Regulation 46/2009 on the Criteria for
Establishing of Environmental Damage, any burden to biodiversity would therefore be considered as
damage under the ELD. In making the decision aimed at ensuring the improvment the quality of the
environment, the State takes into account the technical feasibility of the necessary actions at a
reasonable costs and whether the action is justified in respect of the envisaged improvement in the
quality of the environment or a component thereof497
.
Whilst the publically available inspection reports show a high incidence of damage to the environment
and to biodiversity derived from Annex III occupational activities, there are no reported cases of
(imminent threat of) ‘biodiversity damage’ in Slovenia. However, according to the Slovenian
authorities, there has never been a case of (imminent threat of) ‘biodiversity damage’, regardless of the
criteria applied. No cases of ‘biodiversity damage’ have been reported by the NGO sector. According
to the relevant authorities, the environmental NGO sector in Slovenia is considered to be very
vigilant498
.
The reason for non-existence of cases of (imminent threat of) ‘biodiversity damage’ could be
attributed to many different factors including the limitation of ‘significant damage’ to those cases
caused by exceeding emission limit values, environmental quality standards and rules of conduct or
permitted use of natural resources or to the extensive application of the ex-ante assessments of the
impact of plans or projects likely to affect Natura 2000 sites carried out under Slovenian legislation
transposing Articles 6(3) and (4) of the Habitats Directive499
.
Concerning existing legislation prior to the ELD in Slovenia, and further to the legislation transposing
Article 6(2) of the Habitats Directive, Slovenia had legislation on environmental accidents and civil
liability for some types of damage. However, the ELD has more detailed provisions and establishes a
more complete system than the pre-existing regime500
.
Financial guarantees
Financial guarantees are not mandatory501
in Slovenia. According to the Report, the competent
authority ordered two specialist studies on the use of financial securities instruments for the
implementation of the ELD in 2010 and 2012. Both studies concluded that the introduction of
mandatory insurance was not to be recommended. One of the studies recommended that the funds
available for the existing Environmental Fund502
should be used to remedy environmental damage,
when such an obligation is passed on to the State, whilst the other study called for encouraging the
insurance sector to develop ELD products.
497
Article 23(1) of the EPA.. 498 A phone call with relevant Slovenian authorities on 20 November 2013. 499 A phone call with relevant Slovenian authorities on 20 November 2013. 500 A phone call with relevant Slovenian authorities on 20 November 2013. 501 Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental liability with regard to the prevention and remedying of environmental damage, COM(2010) 581 final, p.4. 502 Environmental Fund manages assets earmarked for environmental protection. It issues loans, gives guarantees, provides financial,
economic and technical councils, etc. Work of the Fund is regulated by the EPA and the Law on establishment of Environmental Fund. More information on the work of the Fund is available on the following link: http://www.ekosklad.si/index.html.
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4. References
Legislation:
- Environmental Protection Act – ‘O.G. Republic of Slovenia’, No. 17/2006, 20/2006, 28/2006,
39/2006, 49/2006, 66/2006, 112/2006, 33/2007, 57/2008, 70/2008, 108/2009, 48/2012, 57/2012,
97/2012, 92/2013;
- Decree on the Types of Measures for Remedying Environmental Damage ‘O.G. Republic of
Slovenia’ 55/2009;
- Rules on Detailed Criteria for Determining Environmental Damage ‘O.G. Republic of
Slovenia’ No. 46/2009;
- Nature Conservation Act including the Decree on Protected Wild Animal Species; the Decree on
protected wild plant species and the Decree on Habitat Types;
- General Administrative Procedure Act;
Miscellaneous:
- Report to the Commission on the experience gained in the application of the Directive in
accordance with Article 18(1) of the Directive;
- Phone interview with relevant Slovenian authorities on 20 November 2013;
- The EU Environmental Liability Directive – A Commentary, ed. Lucas Bergkamp and
Barbara Goldsmith, Oxford University press (2013);
- Commission’s Report under Article 14(2) of Directive 2004/35/CE on the environmental
liability with regard to the prevention and remedying of environmental damage, COM(2010)
581 final;
- Study to explore the feasibility of creating a fund to cover environmental liability and losses
occurring from industrial accidents (2013);
- Study on the implementation, challenges and obstacles of the Environmental Liability
Directive (2013);
- Various information is available on DG Environment’s ‘Environmental Liability’ portal503
;
- Ministry of Agriculture and the Environment,504
;
- Slovenian Environmental Public Fund505
; and
- Web site of Inspectorate of the Republic of Slovenia of Agriculture and the Environment506
503 http://ec.europa.eu/environment/legal/liability/ 504 http://www.mko.gov.si/en/ 505 http://www.ekosklad.si/index.html 506 http://www.iko.gov.si/en/
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ELD implementation - Country Report for Spain (Template for Member States without reported ELD biodiversity cases)
1. Introduction: legal and institutional framework
The Environmental Liability Directive 2004/35/EC – the ELD in Spain, was transposed by Law No.
26/2007 of 23 October 2007 on environmental liability (LEL). Therefore, the transposition of the
ELD in Spain was about 6 months late. The Law regulates the responsibility of operators to prevent
and repair environmental damage. The transposition was complemented with the adoption of the
Regulation on the partial implementation of Law No. 26/2007, adopted by Royal Decree No.
2090/2008 of 22 December 2008.
The Autonomous Communities are the primary competent authorities for the implementation and
execution of the LEL507
. The Autonomous Communities may adopt more stringent measures regarding
the prevention, containment or remediation of biodiversity damage, or subject other activities or
persons to the liability procedure as stipulated in the LEL508
. However, none of the Autonomous
Communities has exercised this power yet509
. At State level, the competence lies on the Ministry for
Agriculture, Food and the Environment and specifically, on the General Directorate of Environmental
Quality and Assessment and Nature.
The organisational structure in Spain for the implementation of the ELD has been complemented with
the establishment of a Technical Commission for the prevention and remediation of environmental
damage, as a body to ensure collaboration between the Central Government and the regional
authorities to exchange information and advice on the prevention and remediation of environmental
damage.
No guidelines on the interpretation of the legislation transposing the ELD have been drafted. However,
several technical documents related to specific aspects of the ELD have been developed, in particular
those aspects related to estimation of the costs of compensatory measures or environmental risk
assessment. For example, document entitled ‘Overall structure and content of sectoral instruments for
environmental risk analysis’ complemented with the document for ‘Analysis of the tools for assessing
the distribution and behaviour of chemicals in the legal framework of environmental liability’
providing operators with an overview of the most appropriate models to be used when implementing
the Model for an Environmental Liability Report, which sets up a methodology for calculating the
compensatory costs and the risk scenarios in the environmental risk assessment of an installation (see
below section 3 of this country report).
Certain measures related to liability for damages to biodiversity were included in the nature
conservation legislation prior to transposition of Habitats Directive and the ELD in Spain. However,
this Law 4/1989 was repealed by Law 42/2007 on Natural Heritage and Biodiversity.
507 Articles 7 and 8 of the LEL. 508 Second additional provision. Application of more stringent environmental regulations, of the LEL. 509 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 308.
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2. Definition of relevant terms
Biodiversity damage is the damage to natural species or habitats, i.e. any damage having a significant
adverse effect on the possibility of attaining or maintains a favourable state of conservation of these
habitats or species510
. In addition to the habitats and species covered by Natura 2000, the LEL system
is applicable to species and habitats protected by International, national and autonomous zones511
. The
definition of favourable conservation status512
is in line with the definition provided in the ELD.
Significant damage
The significance of the biodiversity damage must be assessed with reference to the baseline condition,
taking into account the criteria set out in Annex I of the LEL which almost literally transposes Annex I
of the ELD. Article 16 of the 2090/2008 Regulation states that the damages to biodiversity would be
considered significant when the adverse effects would affect the maintenance of the habitats and
species at a favourable conservation status.
Operators
An operator under the LEL is any natural or legal, public or private person performing an economic or
professional activity or who, under any title, controls the said activity or has decisive economic power
over its technical operation. In determining such status, the provisions laid down in sectoral, national
or regional law concerning the granting of permits or authorisations, inscriptions in registries or
communications to the administration for each activity shall be taken into consideration513
.
The liability of an operator performing one of the Annex III activities is assumed given the nature and
the course of the incident. Spain has introduced permit defence and state-of-the-art defence with
certain exceptions.
Going beyond the requirements of Article 3 of the ELD, operators of non-Annex III activities are
required to carry out prevention and containment measures in case of biodiversity damage even if
there is no fraud, fault or negligence required by the ELD for those types of activities514
.
Spanish Law foresees prevention measures, containment measures and remedial measures. Within the
meaning of the ELD, containment measures could constitute prevention or primary remediation
measures515
. In Spain, containment measures are usually carried out with prevention measures,
therefore limiting further damage516
prior to remedial measures for a significant damage.
Prevention measures
Article 2 differentiates between prevention measures and measures to prevent further or new damage.
A prevention measure is considered any measure ‘adopted in response to an event, act or omission
causing an imminent threat of environmental damage with a view to preventing its occurrence, or
reducing the said damage as much as possible’. On the other hand, measures to prevent new damage
are those ‘employed in the aftermath of environmental damage to contain or prevent greater
environmental damage by controlling, containing or eliminating the factors giving rise to the latter or
510 Article 2(1) of the LEL. 511 Article 2(4) of the LEL. 512 Article 2(6) of the LEL. 513 Article 2(10) of the LEL. 514 Article 3(2)(b) of the LEL. 515 Please see Article 2, Article 5 and Article 6(2)(b) of the ELD and the Environmental Liability Directive Handbook for 2 Days Training,
Version – February 2013, p. 11. 516 Please see Article 18 of the LEL.
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combating them in any other way’. The criteria to determine prevention or containment measures are
laid down under Annex II of the Act.
Provisions on the prevention and containment of biodiversity damage are stipulated in Chapter III,
Section 1 of the LEL. Article 17 regulates prevention and limitation of further damage and requires the
operator of an Annex III activity to adopt without delay and without prior warning, and orders official
action or any appropriate preventive actions in case of imminent threat of environmental damage. The
procedure is therefore quicker and more effective to prevent the damage.
This provision requires the operator to take appropriate measures to avoid further damage, regardless
of whether or not the operator is subject to the obligation to take remedial measures by applying the
provisions of this law.
The competent authority, in case it believes that there is a danger of damage, may act in accordance
with Article 5(3) of the ELD517
.
Remedial actions
Article 2 of LEL defines remediation measures as any action or set of actions, including provisional
ones, which aim to remedy, restore or replace damaged natural resources and natural resource
services, or to provide an equivalent replacement alternative in accordance with Annex II.
Provisions on the prevention and containment of biodiversity damage are stipulated in Chapter III,
Section 1 of the LEL – Articles 19 and 17, which require the operators to take action for the
remediation of damage caused by Annex III activities regardless of the existence of culpability, fraud
or negligence. Similarly, the operators are required to take action for damages caused by non-Annex
III activities if there is culpability, fault or negligence, and containment measures for damages caused
by non-Annex III activities, regardless the existence of culpability, fraud or negligence.
Article 20 reiterates that the operator has to take action without prior official warning, order or action
and differentiates between measures by operators to remedy, restore or replace damaged resources and
remedial measures once adopted by the competent authority.
In the event of damage, the competent authority may, at any time, act in accordance with Article 6(2)
of the ELD518
.
3. Application of the ELD system in Spain
Spain submitted a report to the Commission on the experience gained in the application of the
Directive in accordance with Article 18(1) of the Directive. The report concerns environmental
damage that occurred in the period of 30 April 2007 – until the time of drafting of the Report.
No biodiversity damage cases have been identified in Spain. The report submitted to the Commission
eight cases initially defined as ‘biodiversity damage’ cases. However, none of them affected habitats
or species protected under EU law or national legislation and therefore, were not confirmed as
biodiversity damage cases in the additional information provided by the Spanish authorities within the
framework of this project.
517 Article 18 of the LEL. 518 Article 21 of the LEL.
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Significant damage
Article 16 of the 2090/2008 Regulation states that the damages to biodiversity would be considered
significant when the adverse effects would affect maintenance of the habitats and species at a
favourable conservation status. The evaluation of the significance of this damage should be done
according to the criteria set out in Annex I of Law 26/2007.
The practical application of the above mentioned provisions under the LEL, and the implementing
Regulation which defines significant biodiversity damage is based on the understanding that the cases
covered by the ELD are accidents or incidents causing severe damage, i.e. catastrophes, and ensure
that operators are made liable. Spanish sectorial legislation regulates ‘non-significant’ damages and
establishes procedures to define damages and liabilities for those damages. These procedures have
been working for years and might have generated some inertia on the competent authorities’ reactions
in cases of environmental damages.
On the other hand, the quantification of the damage relates to the extent, intensity and temporal scale.
Coordination between the ELD and sectorial legislation
In case of concurrent legislative acts, Article 5 of Regulation 2090/2008 requires the competent
authority to determine, pursuant to Article 6.3 of law 26/2007, if the remediation of the damage should
be done in accordance with the provisions of the ELD Regulation or with other sectorial legislation by
which equivalent results could be achieved in terms of remediation of the damage.
Under the ELD, significant damage is measured in relation to the baseline condition related to the
favourable conservation status of the affected habitats or species as defined by the Habitats Directive.
Furthermore, the concept of significant damage under the ELD is related to the concept of significant
disturbance and deterioration under Article 6(2) of the Habitats Directive. The relationship between
those provisions regarding requirements, criteria or procedures has not been determined by the
Spanish authorities or legislation. However, the need to establish that link has been acknowledged and
discussed internally and the European Commission is invited to define the relationship between the
ELD and the Habitats Directive at the EU level.
Raising awareness
Spain considered that the implementation of the ELD requires ‘raising awareness measures’ to
communicate the key elements of the Directive to ensure harmonised interpretation. Both the General
Administration of the Spanish State and the Autonomous Communities have organised numerous
training courses and information sessions for operators and competent authorities on the application of
environmental liability rules, including how the financial guarantees apply519
.
Furthermore, it has developed a mailbox consultation service and technical assistance for Annex III
operators to implement the provisions related to the environmental risk assessment under Spanish
Law.
Mandatory financial guarantee
Law No. 26/2007 requires operators of activities included in its Annex III to have a ‘financial
guarantee’, covering environmental liability. However, there are some exceptions. The amount of
519 The Report on the experience gained in the application of Directive 2004/35/EC on environmental liability with regards to the prevention and remedying of environmental damage, submitted pursuant to Article 18 of the ELD.
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guarantee differs from case to case and is set by the competent authority in accordance with criteria
set-out in a by-law. It would be determined by an environmental risk assessment. In accordance with
the fourth final provision of Law No. 26/2007, the date on which a financial guarantee is required for
each activity listed in Annex III will be laid down by a ministerial order. The requirement to hold a
financial guarantee will therefore be introduced gradually, according to a timetable that has to be
established. The Ministerial Order No. ARM/1783/2011 of 22 June 2011) laid down the order of
priority and the timetable for adopting the individual orders per sector of activity.
Spanish legislation on environmental liability lays down an obligation for operators of activities
listed in Annex III to draw up an ‘environmental risk assessment’ with the aim of identifying
possible accident scenarios and calculating the cost of the environmental damage that these might
entail. This risk assessment will enable operators to find out if they are ‘obliged to hold a financial
guarantee’ and, if so, to calculate its value – it is also a vital part of the management of
environmental risk.
The Regulation on the partial implementation of Law No. 26/2007 provides for a number of
voluntary instruments, i.e. environmental risk assessments by sector and scale charts, to help assess
risk scenarios and reduce the cost of drawing them up. In this way, operators are able to draw up
their environmental risk assessments, taking as a starting point these sectorial risk assessment tools
which were, at an earlier stage, approved for each sector by the Technical Commission for Damage
Prevention and Remediation – a body set up in Article 3 of the Regulation on the partial
implementation of Law No. 26/2007520
.
Risk assessment is currently being developed per sector of activity in order to facilitate and reduce
costs for the risk assessments to be developed by individual installations at a later stage.
Based on the results of the impact assessment, the LEL and the 2008 Regulation require the
establishment of an ‘environmental damage fund’. The fund is built with the contributions from the
operators who subscribed for insurance policies to cover their environmental liability. The fund should
be managed and administered by the Insurance Consortium521
(Consorcio de compensacion de
seguros). The purpose of the fund is to extend coverage of the liabilities for damages caused by
activities authorised during the period of validity of the insurance, but materialise, or are claimed after
the deadline date envisaged in the policy for such materialisation or claim. The fund has not yet
entered into force.
The Royal Decree No. 2090/2008 lays down a methodology for determining the costs of the
environmental damage. The Technical Commission for Damage Prevention and Remediation has
developed a series of activities and technical instruments to support the development of these impact
assessments including Technical assistance, and a methodological guide and form complemented with
an IT application.
The IT tool offers to all operators, and industrial sectors, comprehensive assistance for calculating the
financial cost of the environmental damage associated with each risk scenario, as well as the costs of
the remedial actions, including primary and compensatory measures, and additional measures, with the
best available techniques to return the natural resources and the services that these provide, to their
baseline condition. This application gives both operators and public administrations guidance as to
which are the best remedial techniques to apply if environmental damage occurs and the need arises to
520 The Report on the experience gained in the application of Directive 2004/35/EC on environmental liability with regards to the prevention
and remedying of environmental damage, submitted pursuant to Article 18 of the ELD. 521 Article 33 of the LEL.
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design a project to remedy it.
The IT took is available to the public since 5 April 2013, free of change, on the web page522
of the
Ministry for Agriculture, Food and the Environment.
ELD implementation costs in Spain
The development of technical tools in the State General Administration, described in the above section
and carried out by the General Directorate of Environmental Quality and Assessment and Nature of
the Ministry for Agriculture, Food and the Environment, has cost over EUR 5 million in service
contracts over the last four years.
On top of these costs, the staff costs of the Directorate-General for Environmental Quality and
Assessment must be added, which acts as the Presidency and Secretariat of the Technical Commission
for Damage Prevention and Remediation. These are estimated at EUR 20,000 per year.
Meanwhile, in the Autonomous Communities and Autonomous Cities the establishment and running
of the administrative structures required to apply the new environmental rules has incurred
administrative costs estimated between EUR 684,000 and EUR 1,995,000 per year.
4. References
Legislation:
- Law No. 26/2007 of 23 October 2007 on environmental liability;
Miscellaneous:
- Response to the questionnaire requesting further information sent to the identified Member
State authority, received on 13 November 2013;
- Phone interview carried out with the identified Member State authority, which was carried out
on 14 November 2013;
- Report on the experience gained in the application of Directive 2004/35/EC on environmental
liability with regards to the prevention and remedying of environmental damage, submitted
pursuant to Article 18 of the ELD;
- Annex – Part A523
: Legal Analysis of the National Transposing Legislation – Implementation
challenges and obstacles of the Environmental Liability Directive (2013), accessed on 24
October 2013;
522 web page of the Ministry for Agriculture, Food and the Environment http://eportal.magrama.gob.es/mora/login.action. 523 Annex – Part A:
https://c40a451c-a-c40695c0-s-sites.googlegroups.com/a/biois.com/eld-
implementation/ELD%20implementation%20challenges%20and%20obstacles_Annex%20Part%20A_16%20May%202013.p
df?attachauth=ANoY7cqtKJw4yUeHi_oLU5Lra9gS2QdiwZnXNLntWfYlP_wmHDCq32FCKAbrlYGCPZF2JlH9YYAA3N
s3JChVLCgt_B_mma2LmKJ2vp-fim_sQZC-Br4yFVwk8dlvu2VaYbgwKPvgtQIyyY5T8kzxoMKzrLUNwp1WWAxQ3-
KcC0JcEzDzfotPmLagd_CLIxG08OKcF8Sv54ZHRcWDu8STfEeAKNVo_0jAm0JrNgiJfc8KYvXjvd_bfepAxt01WaMpSz
v3VJtSBdHnmXoa1Gka6ZMoi7QWXhliKTx0gvw8B7L8x1tl39DbxYE%3D&attredirects=0
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ELD implementation - Country Report for the UK
1. Introduction: legal and institutional framework
The Directive was transposed through a number of legal acts, including the following:
England: Environmental Damage (Prevention and Remediation) Regulations 2009, SI
2009/153, as amended;
Wales: Environmental Damage (Prevention and Remediation Regulations) (Wales)
Regulations 2009, SI 2009/995;
Scotland: Environmental Liability (Scotland) Regulations 2009, SSI 2009/266, as amended;
Northern Ireland: Environmental Liability (Prevention and Remediation) Regulations
(Northern Ireland) 2009, SI 2009/252, as amended;
Gibraltar: Environmental Liability Regulations 2008, Legal Notice No. 100 of 2008,
Gibraltar Gazette, No. 3689, December 11, 2008, as amended.
Therefore, the transposition of the ELD in the UK was late.
Many of the provisions of these regulations are similar. However, they have significant differences
between them – both procedural and substantive524
. Each of the entities that make up the UK has a
number of competent authorities designed to implement and enforce the ELD transposing
legislation525
.
The following guidance documents have been issued in the UK:
- The Environmental Damage (Prevention and Remediation) Regulations 2009 – Guidance for
England and Wales526
;
- The Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009
Guidance527
;
- Environmental Liability (Scotland) Regulations 2009 Guidance528
.
The present section of the study on the implementation of the ELD concerning biodiversity damage in
the UK mostly refers to the situation in England for two main reasons. Firstly because the selected
analysed case of biodiversity damage took place in England; and secondly, the guidance document
issued by the Department for Environment Food and Rural Affairs in England was selected to be
analysed more closely.
The competent authorities in England are the Environment Agency, Natural England, the Marine
Management Organisation and local authorities depending on the circumstances of the case529
.
524 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the
Environmental Liability Directive (2013), p. 357. 525 For a full list of competent authorities, please see Annex – Part A: Legal Analysis of the National Transposing Legislation
– Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 366 and 367. 526 2nd Update, November 2009. Available under the following link:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/221095/pb13895-indepth-guide-regs09.pdf,
accessed 24 October 2013. 527 Available under the following link: http://www.doeni.gov.uk/eld_guidance.pdf, accessed on 24 October 2013. 528 http://www.scotland.gov.uk/Topics/Environment/waste-and-pollution/Pollution-1/ELD/ELDGuidance, accessed on 27
January 2014.
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2. Definition of relevant terms
The ELD regime, concerning biodiversity damage in England and Wales, applies to damage to
protected species and natural habitats under Habitats and Birds Directive, as well as to damage to a
site of special scientific interest (SSSI) which has a wider application than the Habitats and Birds
Directive530
.
The criteria for assessing the damage to protected species, natural habitats and sites of special
scientific interest is more closely regulated in Schedule 1 of the Environmental Damage (Prevention
and Remediation) Regulations 2009, SI 2009/153, as amended. In England and Wales, the criteria are
further explained in the guidance documents, according to which significance of biodiversity damage
is assessed on the basis of the impact on site integrity effect and on the conservation status (closely
referring to the terminology of the Habitats Directive, Article 6.
Regulation 5 applies to biodiversity damage or imminent threat of such damage caused by the ELD
Annex III activities and other activities, i.e. Schedule 2 of the Regulations, in case the operator
intended to cause the damage or was negligent.
Regulation 2 defines the operator as the person who operates or controls such an activity, including the
holder of a permit or authorisation relating to that activity, or the person registering or notifying such
an activity.
According to Regulations 13 and 14, the operator of an activity that causes an (imminent threat of)
environmental damage, or an (imminent threat of) damage that according to reasonable grounds could
become an environmental damage, is required to take all practicable steps to prevent the damage
and/or to limit further damage, and notify it to the competent authorities. Competent authorities may
issue a prevention notice, inter alia, specifying the measures required to prevent further damage. It is
worth noting that in England measures preventing the damage becoming significant (and therefore
prior to it being determined as significant damage) would be considered preventive measures but
emergency remedial measures (as defined under the ELD) would also be considered remedial
measures under Regulations 13 and 14.
Where the damage has been caused, and there are a reasonable grounds for believing that it is or may
be environmental damage, the competent authority must establish whether or not it is environmental
damage within the meaning of the transposing legislation. The assessment is carried out by the
competent authority in accordance with relevant guidance documents531
on assessing significant
damage532
. Remedial measures, including emergency remedial measures, would be adopted from the
moment environmental damage within the meaning of the ELD is determined (Regulation 17 and 18).
Annex II of the ELD is transposed in Schedule 4 of the Environmental Damage (Prevention and
Remediation) Regulations 2009, SI 2009/153, as amended.
529 Regulation 10 of the Environmental Damage (Prevention and Remediation) Regulations 2009, SI 2009/153, as amended. 530 Regulations 2 and 3 of the Environmental Damage (Prevention and Remediation) Regulations 2009, SI 2009/153, as amended. 531 For example, Annex 1 (A1.2 – A1.45) of the Environmental Damage (Prevention and Remediation) Regulations 2009 – Guidance for
England and Wales - 2nd Update, November 2009 provides guidance on what biodiversity damage is and how is it to be assessed. 532 Guidance on site integrity effect and guidance on significant conservation status effect are provided in A1.7 – A1.21 and A1.23 – A1.45 of the Annex 1 of the Environmental Damage (Prevention and Remediation) Regulations 2009 – Guidance for England and Wales - 2nd
Update, November 2009, respectively. Term site integrity is to be understood in accordance with Article 6(3) of the Habitats Directive.
Significant conservation status effect is to be understood in accordance Article 1(e) and (i) of the Habitats Directive (also contained in Schedule 1 of the Environmental Damage (Prevention and Remediation) Regulations 2009, SI 2009/153, as amended.
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3. Application of the ELD in the UK
The UK submitted to the Commission a report on the application of the Directive in accordance with
Article 18(1) of the Directive – the Report, stating that 19 ELD cases had occurred during the period
of 2009-2012.
From these 19 cases, two were confirmed as cases of biodiversity damage whilst four were cases of
imminent threat of ‘biodiversity damage’533
. Out of those six cases, three were initiated through a
request for action by natural and legal persons and one by enforcement investigation procedures; none
of the cases were notified by operators. The Report further refers to a number of other instances where
action under the ELD transposing legislation was considered, but finally dismissed because, inter alia,
the relevant test for damage to an SSSI, species or habitat protected under EU Law, had not been met,
or the damage was to species not protected under EU law, or the habitat was not within an English
SSSI.
In England and Wales, the competent authority has powers to carry out the necessary investigations
and measurements, have access to premises, recordings, photographs or samples, and even take
possession of articles that might have caused the damage534
.
Significant biodiversity damage
In England, the significance of biodiversity damage is assessed on the basis of Schedule 1 of the
Environmental Damage (Prevention and Remediation) Regulations and the guidance document which
refers to the following criteria:
- site integrity effect;
- significant conservation status effect535
.
According to the Report, the threshold for biodiversity damage is set high because the assessment
required is relatively onerous and should only be necessary for large-scale cases.
Furthermore, according to the Report, in a UK context, pre-ELD systems can be applied more
effectively and efficiently for smaller scale cases. The UK Government expected the ELD regime to
cover less than one per cent of the 30,000 incidents of damage to the environment – including
biodiversity, each year in England and Wales536
.
533 Please note that while the Report mentioned five cases of imminent threat of biodiversity damage, the follow up check of provided tables
for 2009, 2010, 2011 and 2012 resulted in a conclusion that there are in fact four such cases which brings the total number of(imminent threat of) ‘biodiversity damage’ cases to six instead of seven, as indicated in the Report. 534 Environmental Damage (Prevention and Remediation) Regulations 2009 – Guidance for England and Wales - 2nd Update, November
2009, p. 21 and 22. 535 Guidance on site integrity effect and guidance on significant conservation status effect are provided in A1.7 – A1.21 and A1.23 – A1.45
of the Annex 1 of the Environmental Damage (Prevention and Remediation) Regulations 2009 – Guidance for England and Wales - 2nd
Update, November 2009, respectively. Term site integrity is to be understood in accordance with Article 6(3) of the Habitats Directive. Significant conservation status effect is to be understood in accordance Article 1(e) and (i) of the Habitats Directive (also contained in
Schedule 1 of the Environmental Damage (Prevention and Remediation) Regulations 2009, SI 2009/153, as amended. 536 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 362.
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Preventive measures
In England, action preventing further contamination damage prior to the damage being determined as
significant is also considered prevention537
. . It may be concluded that in England, the preventive
action includes measures taken once the damage has occurred and before it becomes significant
environmental damage.
Coordination between the ELD with other systems
Prior to the adoption of the ELD, the UK had a liability system for remediating and restoring
biodiversity damage538
based on two instruments:
Under the Wildlife and Countryside Act 1981, a person who is convicted for destroying or
damaging flora, fauna or the geological or physiographical features of a SSSI may be ordered by
the court to restore the SSSI to its conditions prior to the damage539
.
Under the Conservation of Habitats and Species Regulations 2010/490, a special nature
conservation order may be issued on a person who damages or destroys natural resources within a
Natura 2000 site540
. This Regulation implements the requirements of Article 6(2) of the Habitats
Directive541
.
These pre-existing systems are still in force. The Conservation of Habitats and Species Regulations
2010/490 is applicable in those cases where the requirements of biodiversity damage are not met
within the meaning indicated in the ELD transposing legislation and provided guidance. In addition,
civil sanctions (without prosecution) have been introduced under the Regulatory Enforcement and
Sanctions Act 2008.According to the Report, during the transposition of the ELD in the UK, it was
noted that integration of the requirements of the ELD into pre-existing legal frameworks would be a
difficult and complex exercise. The reasons for this conclusion, according to the Report, were that the
ELD is cross-cutting, prescriptive on process rather than result-oriented, and that the scope of the
existing legislation and the thresholds and standards were different.
In England and Wales, according to the government guidance on the English and Welsh transposing
regulations, the pre-existing system may be used instead of the ELD system, if the same outcomes can
or have already been fully achieved542
.
There are some differences between the ELD system and the pre-existing nature conservation regime.
Some of these differences are:
- the pre-existing nature conservation regime does not foresee liability for complementary and
compensatory remediation543
;
- the pre-existing nature conservation regime does not contain provisions for ‘interested parties’ to
submit comments544
;
537 Regulation 14 of the Environmental Damage (Prevention and Remediation) Regulations 2009, SI 2009/153, as amended. 538 Environmental Damage (Prevention and Remediation) Regulations 2009 – Guidance for England and Wales - 2nd Update, November
2009., p. 6. 539 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 361. 540 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 362. 541 Phone interview with the UK representative. 542 Annex 4 (A4.2) of the Environmental Damage (Prevention and Remediation) Regulations 2009 – Guidance for England and Wales - 2nd Update, November 2009. 543
Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 361. 544
Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 361.
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- the ELD system recognises the wider powers of the enforcing authorities to recover costs from
responsible operators, but only in cases where environmental damage, or an imminent threat of
such, is established and the operator is liable545
.
In reality, in the UK, the competent authorities very rarely revert to the use of the ELD system. The
difficulties in establishment of imminent threat of ‘significant biodiversity damage’ and the knowledge
of the competent authorities of the existing national legislation, may encourage competent authorities
to use the pre-existing national legislation.
ELD Added Value
According to the Report, one of the benefits of the ELD is that it recognises the enforcement
authorities’ wider powers to recover costs from responsible operators, but only in cases where
environmental damage, or an imminent threat of such, is established and the operator is liable.
Furthermore the Report refers to the fact that the ELD introduced a requirement for compensatory
remediation for interim losses that do not exist in other systems. However, costs associated with
assessment of significance of environmental damage, or its threat, may have a deterrent effect on
application of the ELD regime in the UK.
4. The analysed case - the case of damage to an SSSI546
The analysed case took place in England. ‘Biodiversity damage’ took place on protected species and
natural habitats within a SSSI. Water abstraction caused severe stress and mortality on the pearl
mussel population in the River Ehen. However, the population of the species, after the damage took
place, remained large at approximately 500,000 individuals.
The damage was observed by pearl mussel specialists who were undertaking work in the River Ehen
for both the Environment Agency and the operator. The damage was within an SSSI and affected a
species protected under the Habitats Directive. The damage was severe enough to have an ‘adverse
effect on the integrity of the site’ in accordance with Annex 1 of the Guidance document.
The stress to the mussels was caused by low flow of the river which was exacerbated by rapid rises
and falls in flow. The pattern of stress is consistent with the effects of low velocity flows, with mussels
trying to reach faster water to enable filter feed. The damage took place in the period of March–June
2012. The operator who caused the damage had a water abstraction licence which was not breached.
The competent authority ordered a prevention notice with which the operator complied. No remedial
measures were proposed by the operator.
The competent authority and the operator funded surveys to estimate the extent of the damage. The
competent authority did not attempt to recover the costs of the survey. Within the review of the
abstraction licence for the activity which caused the damage, steps were taken to ensure that no further
damage was/is caused and to ensure the long-term recovery of the mussel population.
545
The Report on the experience gained in the application of Directive 2004/35/EC on environmental liability with regards to the prevention
and remedying of environmental damage, submitted pursuant to Article 18 of the ELD. 546 Information concerning the analysed case was obtained from the Report on the experience gained in the application of Directive
2004/35/EC on environmental liability with regards to the prevention and remedying of environmental damage, submitted pursuant to Article
18 of the ELD, response to the questionnaire sent to DEFRA requesting further information and phone interview carried out with the representative of DEFRA.
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ELD implementation related to biodiversity damage: Challenges and obstacles
The United Kingdom (England)
ELD
National legislation / Application
GENERAL
1.
Experience in establishing a causal link between the
damage and the activities of individual operators –
Article 4(5) of the ELD, in cases of damages caused
to biodiversity.
Legal remedies used by the operator – Article 11(4)
of the ELD.
The legislation in the UK does not foresee rebuttable
presumption for establishing the causal link547.
The Environmental Damage (Prevention and Remediation)
Regulations 2009, SI 2009/153, as amended, only applies to
environmental damage caused by pollution of a diffuse
character if it is possible to establish a causal link between the
damage and specific activities548.
In the analysed case, the pearl mussel specialists who
discovered and notified the damage advised the competent
authorities on what must be the causal link. The competent
authority followed the advice of the specialists. No legal
remedies were used by the operator.
2. Procedure for notification of information – Articles
5(2), (3)(a) and Articles 6(1),(2)(a) of the ELD.
Availability of such information to third parties in
relation to Article 12.
In England, failure to notify the damage or imminent threat of
the damage in case preventive measures are not effective is
considered an offence549.
Analysed case: The damage was notified by the pearl mussel
specialists who were undertaking work in in the River Ehen
for both the Environment Agency and the operator. The
operator was not aware of the damage.
PREVENTIVE MEASURES
3. Procedure set in place in national legislation
concerning prevention procedure – Article 5 of the
ELD, namely:
- experience in requiring the operator to take
the necessary preventive measures, or
alternatively, preventive measures taken by
competent authorities – Article 5(3) of the
ELD;
- giving instructions for these measures to be
taken and taking these measures itself.
In the UK and Gibraltar, the operator is under a duty to
prevent damage and competent authorities have the power,
but not the duty, to require an operator to carry out preventive
measures and to carry them out themselves550.
In Scotland, the competent authority may require a ‘public
body’ to carry out preventive measures if they need to be
carried out urgently and if the public body is better able to
carry them out551. The costs are borne by the competent
authority which may recover the costs from the operator.
In England, Wales, Northern Ireland and Gibraltar, it is an
offence not to carry out preventive measures, whilst in
Scotland, the operator failing to carry such measures must
have a reasonable excuse552.
In England, action preventing further contamination damage
547 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 367. 548 Regulations 8 of the Environmental Damage (Prevention and Remediation) Regulations 2009, SI 2009/153, as amended. 549 Regulation 13(3) and 14(3) of the Environmental Damage (Prevention and Remediation) Regulations 2009, SI 2009/153, as amended. 550 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 376. 551 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental
Liability Directive (2013), p. 375. 552 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 378.
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The United Kingdom (England)
before the damage is determined as significant is also
considered prevention553. It may be concluded that in
England, the preventive action includes measures taken before
the damage becomes significant environmental damage.
In England, Wales, Northern Ireland and Gibraltar there is no
appeal against a preventive order. In Scotland, the operator
may appeal a prevention notice.
Analysed case: In December 2012, the competent authority
issued a Prevention Notice to the operator pursuant to
Regulation 14(2) of the Environment Damage Regulations
2009. The Notice stated the competent authority’s opinion
that biodiversity damage had been caused by the operator’s
activity, described the type of damage, and required the
operator to carry out specified measures to prevent further
damage, within a specified period.
REMEDIAL MEASURES
4. Timing and procedure for carrying out of remediation
measures – Articles 6(2)(b – e), 7, 11(2) of the ELD,
in cases of damages to biodiversity.
Reference to national legislation.
In the UK and Gibraltar, the competent authorities have the
duty to require an operator to carry out remedial measures554.
However, they have the power, not the duty, to carry out
remedial measures.
The guidance documents in the UK provide guidance on the
establishment of remedial measures for biodiversity
damage555 as well as examples of such measures556.
All jurisdictions within the UK have adopted permit defences
and state-of-the-art defences. The application of the permit
defence has been activated in one case during the period of
2009–2012, whilst the state-of-the-art defence has not been
invoked within the same period.
In England, Wales, Northern Ireland and Gibraltar, it is an
offence not to carry out emergency remedial measures, whilst
in Scotland, the operator failing to carry such measures must
have a reasonable excuse557.
In the UK, the remediation notice may be appealed.
Analysed case: The damage was within an SSSI, affecting a
species protected under the Habitats Directive. The damage
was severe enough to have an ‘adverse effect on the integrity
of the site’ in accordance with Annex 1 of the Guidance
document. Therefore the ELD was applicable. However, the
Remediation Notice was not issued – having in mind the fact
553 Regulation 14 of the Environmental Damage (Prevention and Remediation) Regulations 2009, SI 2009/153, as amended. 554 A detailed guidance on identification of remedial measures is indicated in relevant guidance documents. For example, please see Annex 2
of the Environmental Damage (Prevention and Remediation) Regulations 2009 – Guidance for England and Wales - 2nd Update, November 2009. 555 For example, please see Annex 2 (A2.1 – 2.38) of the Environmental Damage (Prevention and Remediation) Regulations 2009 –
Guidance for England and Wales - 2nd Update, November 2009. 556 For example, please see Annex 3 of the Environmental Damage (Prevention and Remediation) Regulations 2009 – Guidance for England
and Wales - 2nd Update, November 2009. 557 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 378.
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that the operator may invoke the permit defence and the
authorities did not carry out any additional remediation
measures. However, the amendments introduced in the water
abstraction permit included conditions to ensure long term
conservation objectives.
5. Timing and procedure for definition of the operator
that caused the biodiversity damage, assessment of
the significance of the damage and determination of
remedial measures – Article 11.
COSTS
6. Experience in covering the costs of preventive and
remediation actions – Article 8 ELD.
Legal framework and practical implementation
concerning the exception to bear the costs of
preventive and remedial actions taken pursuant to the
ELD – Articles 8(3) and (4) of the ELD.
Legal framework and practical experience concerning
financial security instruments and markets – Article
14 of the ELD, in cases concerning protected species
and natural habitats.
Financial guarantees to cover responsibility in case of
an operator’s insolvency.
Costs that a competent authority could seek are likely to be
lower under the pre-existing national legislation than those
under the ELD where the definition of ‘costs’ is broader558.
In England, Wales, Northern Ireland and Gibraltar, the
competent authority may recover costs, whilst in Scotland,
this is a requirement559.
Mandatory financial guarantees are not required in the UK.
In the analysed case, the costs incurred by the competent
authority concerning the assessment of biodiversity damage
were not recovered from the operator. However, the operator
also carried out its own assessment concerning the stress and
recovery of the mussels.
REQUEST FOR ACTION AND LEGAL REVIEWS
7. Legal framework on natural and legal persons entitled
to request action by competent authorities – Articles
7(4) and 12 of the ELD, including definitions of
sufficient interest and impairment of a right.
Obstacles preventing them from requesting action by
competent authorities – Article 12(1) of the ELD.
Regulation 29, in England, stipulates the procedure for a
request by interested parties.
In the UK and Gibraltar, the transposing legislation does not
specify the methods for notifying interested parties of planned
remedial measures560. Parties with sufficient interest may
inform the competent authorities of the damage or the
imminent threat of it.
The analysed case: action was initiated by the competent
authority on the advice of specialists working in the Ehen
River. No legal reviews were requested by any interested
party.
8. Recorded cases of legal review procedure – Article
13 of the ELD.
Awareness among NGOs concerning this right.
The transposing legislation does not mention article 13(1) of
the ELD, but a right to a review procedure seems to be in
place at least in England, Wales and Gibraltar561.
558 Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation challenges and obstacles of the Environmental Liability Directive (2013), p. 363. 559 Idem to footnote above, p. 378. 560 Idem to footnote above, p. 380. 561 Idem to footnote above p. 381.
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5. References
Legislation:
- Environmental Damage (Prevention and Remediation) Regulations 2009, SI 2009/153, as
amended.
Miscellaneous:
- Report on the experience gained in the application of Directive 2004/35/EC on environmental
liability with regards to the prevention and remedying of environmental damage, submitted
pursuant to Article 18 of the ELD;
- Response to the questionnaire sent to DEFRA requesting further information;
- Phone interview carried out with a representative of DEFRA;
- Annex – Part A: Legal Analysis of the National Transposing Legislation – Implementation
challenges and obstacles of the Environmental Liability Directive (2013)562
, accessed on 24
October 2013;
- The Environmental Damage (Prevention and Remediation) Regulations 2009 – Guidance for
England and Wales - 2nd
Update, November 2009563
, accessed on 24 October 2013;
- The Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland)
2009 Guidance564
, accessed on 24 October 2013.
- Environmental Liability (Scotland) Regulations 2009 Guidance565
562 Annex – Part A: https://c40a451c-a-c40695c0-s-sites.googlegroups.com/a/biois.com/eld-
implementation/ELD%20implementation%20challenges%20and%20obstacles_Annex%20Part%20A_16%20May%202013.p
df?attachauth=ANoY7cqtKJw4yUeHi_oLU5Lra9gS2QdiwZnXNLntWfYlP_wmHDCq32FCKAbrlYGCPZF2JlH9YYAA3N
s3JChVLCgt_B_mma2LmKJ2vp-fim_sQZC-Br4yFVwk8dlvu2VaYbgwKPvgtQIyyY5T8kzxoMKzrLUNwp1WWAxQ3-
KcC0JcEzDzfotPmLagd_CLIxG08OKcF8Sv54ZHRcWDu8STfEeAKNVo_0jAm0JrNgiJfc8KYvXjvd_bfepAxt01WaMpSz
v3VJtSBdHnmXoa1Gka6ZMoi7QWXhliKTx0gvw8B7L8x1tl39DbxYE%3D&attredirects=0 563 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/221095/pb13895-indepth-guide-regs09.pdf. 564 http://www.doeni.gov.uk/eld_guidance.pdf. 565 http://www.scotland.gov.uk/Topics/Environment/waste-and-pollution/Pollution-1/ELD/ELDGuidance
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11 Annex 2 - Register
Milieu Ltd. Experience gained in the application of the ELD biodiversity damage / Annex 3 /
January 2014
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