Green scheme under attack by ‘big three’

Date: 09/01/1997

By Michael Mann

PLANS for a EU-wide system to ensure environmental responsibility look set to founder in the face of opposition from the 'big three' member states.

Senior advisers to the 20 European Commissioners are due to discuss a paper prepared by the Directorate-General for the environment (DGXI) in the coming days.

But strong resistance is expected from the British, French and German Commissioners to any attempt to introduce new Union legislation.

Officials working for Environment Commissioner Ritt Bjerregaard have been wrestling for several months with plans to give the so-called 'polluter pays' principle firm roots in EU policy.

But they have run into stiff opposition from the business community, concerned at the potentially crippling costs and legal complications of making polluters liable for damage done to the environment.

Now, after seemingly endless rounds of study and discussion, Bjerregaard has come up with three options which she will ask her colleagues to consider.

A first option, which officials accept is unlikely to receive much support, is to draw up a directive establishing a general EU-wide liability scheme. Such a system would be limited to future liability, mainly because of widespread concern that a US-style 'superfund' system of 'joint and several liability' would discourage industry from making major investment decisions.

Secondly, Bjerregaard will suggest bringing Union rules more closely into line with the Council of Europe's Lugano Convention, a framework agreement covering general environmental impairment which has already been ratified by a few member states, but which goes too far for others.

A more favoured objective is a limited instrument, filling the gaps in existing national legislation and, in the words of a senior official, “levelling the playing- field” around Europe.

This approach would be narrow in scope, limited to site clear-up or ecological damage, as opposed to covering general personal injury and damage to property.

“This type of instrument would avoid interfering in member states' systems of civil law, dealing instead with public law. On this basis, we believe it could be easier to agree to do something,” said a senior official.

Bjerregaard's paper is due to be considered by the full Commission at its meeting next Thursday (16 January), although the timing will depend on the stance taken by senior advisers at a series of meetings beginning this week.

When the Commission discusses the issue, it will have to decide whether it is worth pursuing any further. If it judges the idea has a future, it may call for EU membership of Lugano, ask Bjerregaard to return at a later stage with a Green or White Paper, or ask the Council and Parliament to study the conclusions of its debate.

“We have prepared a rather cautious document as there is a general reluctance at this stage towards too much action at Community level. The three largest member states are strongly against the idea, partly because of the legal complexities and partly because of subsidiarity,” said an official.

Bjerregaard herself is thought to be generally in favour of the idea of a directive. A general principle of liability could, if carefully applied, make a number of pieces of existing environmental legislation superfluous.

At this stage, the Commission has not looked in any detail at the implications of the plan for the insurance industry. This aspect will only be dealt with if there is general support for taking the initiative further.

“Quite honestly, even the British insurance industry, which is Europe's most advanced, is relatively undeveloped in this field,” commented a Commission official.

A spokesman for the London International Insurance and Reinsurance Market Association urged Europe “not to repeat the mistakes of the US”, and added: “The superfund has not achieved its environmental goals and has cost the insurance industry a fortune. Two-thirds of the money paid out has gone to lawyers.”