Council Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (Environmental Liability Directive)

The Environmental Liability Directive aims to make those causing damage to the environment (water, land and nature) legally and financially responsible for that damage. The Directive was adopted in April 2004. It addresses only damage and damaging events which occur after the deadline for transposition at Member States level, i.e. 30 April 2007.

The Directive covers environmental damage caused by or resulting from occupational activities to:

• Species and natural habitats protected under the 1992 Habitats Directive and the 1979 Wild Birds Directive. Damage to protected species and natural habitats is “any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species”.
• Waters covered by the 2000 Water Framework Directive. Water damage is “any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, as defined in the Water Framework Directive 2000/60/EC, of the waters concerned”. Adverse effects where Article 4(7) of the Water Framework Directive applies are excluded.
• Land contamination that creates a significant risk of harming human health. Land damage is “any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, or substances, preparations, organisms or micro-organisms”.

For certain high-risk activities listed in Annex III, which consists of a list of EU Directives and Regulations on dangerous activities, e.g. in relation to IPPC, waste, water pollution, water abstraction, dangerous substances, air pollution and GMOs, liability for all three categories of environmental damage is covered and strict liability applies, i.e. operators are liable irrespective of whether or not they are at fault. The strict liability is subject to the “mitigating considerations” of Article 8 (4).

Operators of activities other than listed in Annex III may also be liable for damage to protected species and natural habitats (although not for damages to land and water) if they are at fault or have been negligent. Consequently, if an operator of an un-listed activity causes biodiversity damage without being at fault, or if damage to soil or water occur as a result of operator activities, the operator will not be caught by the Directive.

An operator is any person who operates or controls an occupational activity. An occupational activity is one carried out in the course of an economic activity, a business or an undertaking, regardless of its private or public, profit or non-profit character (Article 2 (7)).

Member States may extend the definition to include persons to whom decisive economic power over the functioning of such an activity has been delegated.

Transposition to UK Legislation

Information for England  and for Wales
The Environmental Damage Regulations, Preventing and Remedying Environmental Damage   (England and Wales)
The Environmental Liability (Scotland) Regulations 2009   
The Environmental Liability (Prevention and Remediation) Regulations  (Northern Ireland) 2009

April 2010