Council Directive 2004/35/EC on environmental liability with
regard to the prevention and remedying of environmental damage
(Environmental Liability Directive)
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
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
Damage Regulations, Preventing and Remedying Environmental
Damage (England and Wales)
Environmental Liability (Scotland) Regulations
Liability (Prevention and Remediation) Regulations (Northern