Is Harmonisation Always Effective? The Implementation of the Environmental Liability Directive

Abstract: The objective of the Environmental Liability Directive (ELD) is to establish a framework of environmental liability based on the 'polluter–pays' principle, to prevent and remedy environmental damage. The difficult negotiations during the development phase of the Directive however caused that the final decision on crucial elements of the liability regime were passed on to the Member States, as for example the scope of the regime, or the insertion of defences. Hence, the implementation of the ELD in the Member States can differ. Which choices do the Member States now make with respect to these crucial elements? Do the Member States go further than what the Directive requires or do they take advantage of the discretionary provisions to minimise the Directive’s impact? This article examines, from a law and economics perspective, whether the Directive, considering the content and the implementation by the Member States, can realise its ambitious objective.