Commission to insist polluters pay for damage

Date: 13/01/2000

By Gareth Harding

THE European Commission will take a further step towards making polluters pay for the environmental damage they cause next month when it publishes a long-awaited White Paper on environmental liability.

Environment Commissioner Margot Wallström believes the plans outlined in the paper are vital to fill a significant gap in the Union's environment policy and provide an added incentive for firms to behave more responsibly.

But she has faced an uphill struggle to get the latest draft of the plan through the Commission because of the fierce opposition to some of the proposals it contains from the institution's powerful industry department.

The latest version of the text recommends that the EU draws up a legally-binding framework directive on environmental liability covering damage to health and property, the pollution of sensitive areas covered by Union nature protection laws and the contamination of sites caused by dangerous activities regulated at the EU level.

It is also expected to call for a strict liability scheme under which authorities seeking to punish polluters would not have to prove the firm involved had actually broken the law, only that there was a link between its activities and the damage caused.

However, unlike many other liability schemes in Europe, responsibility for cleaning up environmental damage would not be applied retroactively.

The draft paper says that "for reasons of legal certainty and subsidiarity it should be left to member states to deal with pollution from the past".

The latest version of the text is less prescriptive than its predecessor. Plans to reverse the 'burden of proof' to force alleged polluters to show that they were not responsible for the damage caused have been toned down and the issue of whether to sign up to an international convention on liability is left hanging in the air.

But the draft proposals have still raised howls of protests from both industry and environmental campaigners.

The European employers' organisation UNICE says the liability regime proposed by the Commission would damage firms' competitiveness and be difficult to manage. "It is impossible to make companies run the risk for damage they cannot assess," insisted legal adviser Erik Berggren.

UNICE wants the EU to adopt a scheme closer to the American model, which sets out the precise cost of environmental damage on a sliding scale and puts ceilings on the amount which firms can be forced to pay.

It also insists that firms must not be held responsible for products which were safe when developed but are later found to be damaging. Berggren warns this would substantially affect innovation.

Green groups, which favour a strict application of the 'polluter pays' principle, have also reacted with dismay to the latest version of the White Paper.

Christian Hey of the Brussels-based European Environmental Bureau said it raised "serious doubts about the effectiveness of an EU liability scheme".

The European Commission will take a further step towards making piolluters pay for the environmental damage they cause when it publishes a long-awaited White Paper on environmental liability in February 2000.