experience gained in the application of eld biodiversity...

Experience gained in the

application of ELD biodiversity

damage

Final Report, February 2014

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ISBN 978-92-79-35535-6

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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; [email protected]; 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.

http://www.milieu.be/

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

Milieu Ltd. Experience gained in the application of the ELD biodiversity damage / ix

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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

Milieu Ltd. Experience gained in the application of the ELD biodiversity damage / 1

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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

http://www.envliability.eu/docs/CaseStudySelection_D11_201107.pdf


January 2014

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


January 2014

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)


January 2014

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


January 2014

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)


January 2014

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


January 2014

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


January 2014

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


January 2014

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

http://www.bfn.de/15346+M52087573ab0.html


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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

http://ec.europa.eu/environment/nature/knowledge/rep_habitats/index_en.htm

http://bd.eionet.europa.eu/activities/Reporting/Article_17/Reports_2007/chapter3


https://circabc.europa.eu/faces/jsp/extension/wai/navigation/container.jsp


January 2014

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.

http://inpn.mnhn.fr/docs/rapport_eval_2009.pdf

http://jncc.defra.gov.uk/page-5705

http://jncc.defra.gov.uk/pdf/FCS_Actingonoutcomes09.pdf


January 2014

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

http://cdr.eionet.europa.eu/Converters/run_conversion?file=gb/eu/art17/envukl4fa/GB_habitats_general_report.xml&conv=348&source=remote

http://cdr.eionet.europa.eu/Converters/run_conversion?file=gb/eu/art17/envukl4fa/GB_habitats_general_report.xml&conv=348&source=remote

http://cdr.eionet.europa.eu/Converters/run_conversion?file=bg/eu/art17/envur088a/BG_habitats_general_report.xml&conv=348&source=remote

http://cdr.eionet.europa.eu/Converters/run_conversion?file=bg/eu/art17/envur088a/BG_habitats_general_report.xml&conv=348&source=remote


January 2014

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.



January 2014

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


January 2014

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


January 2014

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


January 2014

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.


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


January 2014

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)


January 2014

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.


January 2014

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


January 2014

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.


January 2014

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


January 2014

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


January 2014

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.


January 2014

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.


January 2014

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.


January 2014

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


January 2014

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)


January 2014

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)


January 2014

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


January 2014

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.


January 2014

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


January 2014

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


January 2014

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.

http://eportal.magrama.gob.es/mora/login.action

http://www.keskkonnaamet.ee/teenused/keskkonnakorraldus-2/keskkonnavastutus-2/keskkonnakahju-ja-kahju-ohuga-seonduv-teave/



January 2014

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.

http://www.moew.government.bg/?show=top&cid=280



January 2014

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


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.


January 2014

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


January 2014

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


January 2014

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.


January 2014

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.


January 2014

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


January 2014

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


January 2014

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


January 2014

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.


January 2014

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

http://cdr.eionet.europa.eu/Converters/run_conversion?file=se/eu/art17/envucgywg/SE_habitats_general_report.xml&conv=348&source=remote

http://cdr.eionet.europa.eu/Converters/run_conversion?file=se/eu/art17/envucgywg/SE_habitats_general_report.xml&conv=348&source=remote


January 2014

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


January 2014

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


January 2014

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


January 2014

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


January 2014

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.


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


January 2014

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.


January 2014

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.


January 2014

(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


January 2014

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


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


January 2014

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


January 2014

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.


January 2014

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.


January 2014

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



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.


January 2014

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.


January 2014

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.


January 2014

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


January 2014

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

http://www.iucnredlist.org/initiatives/europe

http://biodiversity.europa.eu/


January 2014

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).

http://www.miljoeportal.dk/

http://www.blst.de/


January 2014

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.


January 2014

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.


January 2014

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,


January 2014

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:


January 2014

- 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.


January 2014

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


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.


January 2014

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.


December 2013

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

http://www.tradevenvironment.eu/uploads/papers/de%20Sadeleer.pdf


January 2014

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


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


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


January 2014

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


January 2014

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


January 2014

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


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


2000, page 29


January 2014

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


January 2014

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,


2000, Section 3.2 Scope page 24


January 2014

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


Directive actually lead to the restoration of damaged natural resources? Utrecht Law Review, Vol. 5, Issue 1:, page 130.


January 2014

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.


January 2014

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


January 2014

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.


January 2014

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


January 2014

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)


January 2014

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


January 2014

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)


January 2014



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.


January 2014

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


January 2014

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.






January 2014

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


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.


January 2014

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.


January 2014

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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January 2014

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.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/221095/pb13895-indepth-guide-regs09.pdf

http://www.doeni.gov.uk/eld_guidance.pdf

http://www.scotland.gov.uk/Topics/Environment/waste-and-pollution/Pollution-1/ELD/ELDGuidance


January 2014

10 Annex 1 – Description of selected Member States’ ELD regimes


January 2014

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.



January 2014

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.


January 2014

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.

http://www.moew.government.bg/files/file/Industry/Registri/Publichen_registar_ZOPOESht.xls




January 2014

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).


January 2014


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.


January 2014


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).


January 2014

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.

http://www.moew.government.bg/



http://www.moew.government.bg/


http://www.mondaq.com/x/206920/Waste+Management/Environment+in+22+jurisdictions+worldwide+2013


January 2014

ELD implementation - Country Report for Denmark

(Template for Member States without reported ELD biodiversity cases)


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.


‘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.

http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/denmark.pdf


January 2014

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


January 2014

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.


January 2014

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-

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v3VJtSBdHnmXoa1Gka6ZMoi7QWXhliKTx0gvw8B7L8x1tl39DbxYE%3D&attredirects=0 277 http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/denmark.pdf,

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_mma2LmKJ2vp-fim_sQZC-Br4yFVwk8dlvu2VaYbgwKPvgtQIyyY5T8kzxoMKzrLUNwp1WWAxQ3-KcC0JcEzDzfotPmLagd_CLIxG08OKcF8Sv54ZHRcWDu8STfEeAKNVo_0jAm0JrNgiJfc8KYvXjvd_bfepAxt01WaMpSzv3VJtSBdHnmXoa1Gka6ZMoi7QWXhliKTx0gvw8B7L8x1tl39DbxYE%3D&attredirects=0,




January 2014

ELD implementation - Country Report for Estonia


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

.


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.

http://www.envir.ee/58736



January 2014

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.




January 2014

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.


January 2014

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.


Estonia

ELD


GENERAL



Article 4(5) of the ELD, in cases of damages caused to

biodiversity.


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.





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.


January 2014


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


concerning prevention measure – Article 5 of the ELD,

namely:




competent authorities – Article 5(3) of the

ELD;



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.


January 2014


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


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


remediation actions – Article 8 of the ELD.


concerning an exception to bear the costs of preventive


Articles 8(3) and (4) of the ELD.



of the ELD, in cases concerning protected species and

natural habitats.


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.


January 2014


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.



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.


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.


January 2014

4. References

Legislation:

- Act on Environmental Liability which entered into force on 16 December 2007.

Miscellaneous:


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.



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








January 2014

ELD implementation - Country Report for France

(Template for Member States without reported ELD biodiversity cases)


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’.


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.

http://fr.wikipedia.org/wiki/Pr%C3%A9fet_de_d%C3%A9partement

http://fr.wikipedia.org/wiki/Pr%C3%A9fet_de_d%C3%A9partement


January 2014

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

.


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


January 2014

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:


January 2014

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.



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


January 2014

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-





v3VJtSBdHnmXoa1Gka6ZMoi7QWXhliKTx0gvw8B7L8x1tl39DbxYE%3D&attredirects=0. 337 Methodological Guide: http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/french_guide_en.pdf.

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_mma2LmKJ2vp-fim_sQZC-Br4yFVwk8dlvu2VaYbgwKPvgtQIyyY5T8kzxoMKzrLUNwp1WWAxQ3-KcC0JcEzDzfotPmLagd_CLIxG08OKcF8Sv54ZHRcWDu8STfEeAKNVo_0jAm0JrNgiJfc8KYvXjvd_bfepAxt01WaMpSzv3VJtSBdHnmXoa1Gka6ZMoi7QWXhliKTx0gvw8B7L8x1tl39DbxYE%3D&attredirects=0

http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/french_guide_en.pdf







http://ec.europa.eu/environment/legal/liability/pdf/eld_guidance/french_guide_en.pdf


January 2014

ELD implementation - Country Report for Germany


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

.


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.

http://www-user.uni-bremen.de/~avosetta/germenvliabdir.pdf

http://ec.europa.eu/environment/legal/liability/pdf/eld_meetings/ELD_germany.pdf


January 2014

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.


January 2014

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.


January 2014

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.


January 2014

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.


Germany

ELD


GENERAL




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.





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.


January 2014


Germany

PREVENTIVE MEASURES


concerning prevention procedure – Article 5 of the

ELD, namely:





ELD;



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


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.

http://www.hoganlovells.com/files/Publication/fb7a456d-804f-47ea-a577-d55baaffb3d7/Presentation/PublicationAttachment/ff3b751c-5c9b-4fe3-93c8-d7d3a1ad91b5/EnvironmentalUpdate.pdf



January 2014


Germany

included sealing the drainage ditch with a wedge of soil; or

the construction of a bed pitch.

COSTS


remediation actions – Article 8 of the ELD.


concerning the exception to bear the costs of

preventive and remedial actions taken pursuant to the

ELD – Articles 8(3) and (4).




natural habitats.



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.



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.


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.


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.




January 2014

6. References

Legislation:

- Environment Damage Act;

- Nature Conservation Act.

Miscellaneous




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


, 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-





v3VJtSBdHnmXoa1Gka6ZMoi7QWXhliKTx0gvw8B7L8x1tl39DbxYE%3D&attredirects=0


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January 2014

ELD implementation - Country Report for Italy


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.


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

http://europa.eu/rapid/press-release_IP-12-68_en.htm


January 2014

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.


January 2014

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.


January 2014

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:


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;


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.


January 2014

- Annex – Part A426


challenges and obstacles of the Environmental Liability Directive (2013), accessed on 24

October 2013;



581 final.

426


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









January 2014

ELD implementation - Country Report for Poland


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

.


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.


January 2014

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.


January 2014

- 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.


January 2014

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.

http://en.wikipedia.org/wiki/Poland

http://en.wikipedia.org/wiki/Municipality

http://en.wikipedia.org/wiki/Gmina


January 2014

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


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.


January 2014

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.


January 2014

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.


Poland

ELD


GENERAL




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




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.


January 2014


Poland

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:


the necessary preventive measures or

alternatively preventive measures taken by

competent authorities (Article 5(3) ELD);



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


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.


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.


January 2014


Poland

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


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.


January 2014


Poland

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




concerning the exception to bear the costs of preventive


Articles 8(3) and (4) of the ELD.




natural habitats.



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.




7(4) and 12 of the ELD, including definitions of




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.


January 2014


Poland

an environmental damage had taken place; It does not seem

that the NGO was involved in the proceedings.


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:


State authority;






October 2013.

470


implementation/ELD%20implementation%20challenges%20and%20obstacles_Annex%20Part%20A_16%20May%202013.pdf?attachauth=ANoY7cqtKJw4yUeHi_oLU5Lra9gS2QdiwZnXNLntWfYlP_wmHDCq32FCKAbrlYGCPZF2JlH9YYAA3Ns3JChVLCgt_B_mma2LmKJ

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January 2014

ELD implementation - Country Report for Slovenia (Template for Member States without reported ELD biodiversity cases)


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.


‘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.


January 2014

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


January 2014

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

.


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.

http://www.iko.gov.si/si/o_inspektoratu/porocila_o_delu_inspektorata/

http://www.iko.gov.si/si/o_inspektoratu/porocila_o_delu_inspektorata/


January 2014

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.

http://www.ekosklad.si/index.html


January 2014

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:



- 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);



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/

http://www.mko.gov.si/fileadmin/mko.gov.si/pageuploads/zakonodaja/varstvo_okolja/measures_enivronmental_damage_en.pdf

http://www.mko.gov.si/fileadmin/mko.gov.si/pageuploads/zakonodaja/varstvo_okolja/environmental_damage_en.pdf



http://www.mko.gov.si/en/

http://www.ekosklad.si/index.html

http://www.iko.gov.si/en/


January 2014

ELD implementation - Country Report for Spain (Template for Member States without reported ELD biodiversity cases)


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.


January 2014


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.


January 2014

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.


January 2014

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.


January 2014

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.


January 2014

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:


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;



pursuant to Article 18 of the ELD;




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-





v3VJtSBdHnmXoa1Gka6ZMoi7QWXhliKTx0gvw8B7L8x1tl39DbxYE%3D&attredirects=0












January 2014

ELD implementation - Country Report for the UK


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:


England and Wales526

;

- The Environmental Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009

Guidance527

;


.

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.





January 2014


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.


January 2014

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

.


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.


January 2014

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


Liability Directive (2013), p. 361. 544


Liability Directive (2013), p. 361.


January 2014

- 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.


January 2014


The United Kingdom (England)

ELD


GENERAL

1.

Experience in establishing a causal link between the


Article 4(5) of the ELD, in cases of damages caused

to biodiversity.


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.





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


concerning prevention procedure – Article 5 of the

ELD, namely:





ELD;



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


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.


January 2014



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


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.


January 2014



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


the significance of the damage and determination of


COSTS




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.


financial security instruments and markets – Article

14 of the ELD, in cases concerning protected species

and natural habitats.



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.




7(4) and 12 of the ELD, including definitions of




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.


January 2014

5. References

Legislation:

- Environmental Damage (Prevention and Remediation) Regulations 2009, SI 2009/153, as

amended.

Miscellaneous:



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


, accessed on 24

October 2013;


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.


562 Annex – Part A: https://c40a451c-a-c40695c0-s-sites.googlegroups.com/a/biois.com/eld-





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

experience gained in the application of eld biodiversity...

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