Framework on cards to enforce pollutor pays principle

Date: 23/11/1995

PROPOSALS to turn the 'polluter pays' principle into a reality will be considered by the European Commission early next month.

DGXI, the Directorate-General for the environment, is putting the finishing touches to a report suggesting an EU framework directive governing the responsibilities polluting industries should face for cleaning up the damage they cause.

But the report on environmental liability will limit itself to measures covering future ecological damage and steer clear of suggesting any immediate consideration of some form of 'retroactive liability'.

The internal report will be presented to the Commission early in December. Discussions held with other directorates-general will then determine whether firm proposals are to be included in the Commission's work programme for 1996.

Although the paper will shy away from recommending 'retroactive liability', representatives of the EU chemical industry suspect that it will favour the application of 'strict liability', which removes the need to establish that the environmental damage resulted from negligence.

The latest report is the result of Environment Commissioner Ritt Bjerregaard's attempts to give new impetus to her department's 1993 Green Paper on remedying environmental damage.

Earlier this year, Bjerregaard initiated two studies from private consultants to look at the potential legal and economic impacts of EU-wide legislation to require industry to bear some of the responsibility for cleaning up environmental damage.

Commission officials stress that the reports are not yet ready, but claim that enough information has become available to allow them to draw initial conclusions.

Although the Commission will discuss the possibility of extending the measures in the future to cover past pollution, officials have hinted that the Commission feels that it would be extremely difficult to coordinate this aspect with measures to deal with future pollution cases under a single framework.

Although the proposed system would cover all types of environmental damage, it would focus in particular on environmental damage in major areas such as water supplies and natural habitats.

Any move towards an EU-wide framework will be rendered extremely difficult by the wide divergence of legislation currently in place in the different member states.

To avoid running into serious problems with the more sceptical countries, the Commission's approach will seek to plug the gaps in existing member state legislation.

Some countries, led by Germany and Denmark, remain sceptical of the need for EU action, fearing that it might water down their own national legislation. But at least five others, including the Netherlands, Austria, Belgium, Italy and Greece, are understood to be in favour of an EU framework.

The UK is not convinced that there is any need for action on an EU level at all. When public hearings were held in the European Parliament on the Commission's Green Paper in November 1993, London suggested that EU laws might require legal systems to be harmonised, something which the Commission is keen to deny.

But the Commission still believes that national measures are not achieving all that they might and also points to problems operating the single market if standards vary too greatly between member states.

However, the Commission is moving towards an approach under which much would be left to the discretion of the individual member states, as was the case in the Council of Europe's “Convention on civil liability for damage resulting from activities dangerous to the environment”.

Suggestions are that the Commission favours extending rights of access to the law to environmental groups and even individuals, rather than purely to those directly affected by ecological damage.

Europia, the European Petroleum Industry Association, insists that any framework should only cover direct damage to health or property, while “the environment as a public interest has been and should remain in the domain of public law”. It warns strongly against a retroactive approach.

In a position paper on the question, Greenpeace called for the establishment of a compensation fund, full use of the concept of strict liability, no limits on potential compensation and no time-limit within which claims for damages could be made.