13th eld government - european...

13th ELD Government Experts Meeting

10th June 2013 Centre Albert Borschette

13th ELD government experts meeting

Commission Update: 1. MS reports 2013 and way forward to

Commission report 2014 2. ELD implementation study 2012 and

new studies 2013 3. Bilateral ELD process - update

MS reports 2013 – state of play

Per 10th June: 18 Member States submitted reports on the experience gained in the application of the Environmental Liability Directive. Reports focus on the data pursuant to Annex VI ELD, many include voluntary part and supplementary information pursuant to agreed non-binding guidance.

MS reports 2013 – number of cases

Number of ELD cases per Member State vary considerably from: • 85 annual cases, • 10 annual cases, • 3 annual cases, to • less than 1 annual case. Some Member States have up to date no ELD case

MS reports 2013 – main data (1)

Preliminary information based on rough evaluation of 13 MS reports: • Category of damage: water (40%), land

(30%), biodiversity (30%) • Type/classification of activity: mostly III.7,

followed by fault-based, then III.1, III.6, III.8 • Length of remediation procedure: between 5

days and more than 3 years, average duration approximately more than 14 months

MS reports 2013 – main data (2)

Preliminary information based on rough evaluation of 13 MS reports: • Judicial review procedures: between very few

and max. one third of the cases • Costs of prevention and remediation:

depending on calculating large scale cases or not: between €2950 and €2 million (€65.4 million) – average: €300000 (€4.6 million)

• Other points: Financial security, Promotion activities, Strengths and Weaknesses, etc.

MS reports 2013 – supplementary information

Implementation of financial security Activities to promote the implementation of the ELD Application of thresholds determining the significance of damage Relationship between ELD and other legislation Difficulties in implementation

COM Report 2014: Way forward - Basis

1. Member States reports – due by 30 April 2013: see above

2. Review points pursuant to Art. 18(3) ELD 3. Commission report 2010 (conclusions) 4. Supplementary information, in particular

from Commission studies 2012 and 2013

COM Report 2014 - Review points according to Article 18(3) ELD

1. Application of the International Conventions listed in Annexes IV and V ELD (IMO, nuclear) 2. Application of the Directive to environmental damage caused by GMOs 3. Application of the Directive in relation to protected species and natural habitats 4. Instruments that may be eligible for inclusion in Annexes III (list of dangerous activities), IV or V

ELD – Report 2010: Conclusions (1)

Mandatory financial security:

• Slow transposition and the factors shown above resulted in limited number of ELD cases and limited practical experience (authorities had no rules, operators were unaware of their obligations, insurers were insufficiently aware of the rules their products have to comply with).

• Therefore, reliable conclusions with regard to the introduction of a harmonised system of mandatory financial security at EU level could not be drawn.

ELD – Report 2010: Conclusions (2) Issues to be addressed:

• Scope of Directive: Gap as regards damage to water beyond territorial waters (cf. Deepwater Horizon incident)

• Lack of experience and of data impede in particular the development of financial security products

• Diverging national transposing rules potentially create difficulties for example to financial security providers

• Uneven implementation of the permit and state of the art defences

• Uneven extension of the scope to cover species and natural habitats protected under domestic law

ELD – Report 2010: Conclusions (3) Further recommendations

• Improving communication and information exchange between stakeholders at all levels (MS’s authorities, operators, insurers, brokers, risk managers), f.i. on ELD cases and available financial security products

• Raising awareness of operators and financial institutions by industry associations, financial security associations, competent authorities

• Developing interpretation guidance at European level regarding Annex II and key definitions and concepts

• Establishing MS registers of ELD cases

Follow-up to ELD Report 2010: • Improving communication and information exchange: 2

ELD Stakeholder Conferences: 8 November 2011, 11 June 2013 (upcoming)

• Raising awareness: of information sheet and information brochure for operators, competent authorities, financial security providers etc.

• Developing interpretation guidance at national level (9 guidance documents) and training material at EU level: handbooks and ppt. presentations for 1/2 –day, 1-day and 2-days training sessions

• Establishing MS registers of ELD cases: not yet • ELD implementation studies: 1 in 2012, 3 more specific in

2013

COM Report 2014 - main results from ELD studies 2012, 2013

Further to the MS reports and Art, 18(3) ELD: - Severity threshold (significant damage) - Optional defences (permit, state of the art) - Scope of strict liability (Annex III) - Scope of environmental damage - Harmonisation of scope, exceptions, standards - Financial security including feasibility of a fund

ELD Implementation Study 2012

Main results: Transposition of the ELD into national law did "not result in a level playing field but a patchwork of liability systems" (procedural and substantive variations) due to • Legal framework character including reference to national

law • Explicit options offered • Minimum standards (Art. 193 TFEU, Art. 16 ELD)


Procedural variations: • Differences in administrative and judicial systems • Transposition as stand-alone legislation or

incorporating into existing legislation • Degrees of complexity of transposition • Designation of competent authorities • Number of jurisdictions in Member States • Issuance of guidance documents, tools • Public register of cases, enforcement data


Substantive variations (1): • Optional provisions in ELD (optional defences,

biodiversity scope) • Reference to national law (multi-party causation,

financial security • General authorisation for more stringent

provisions (Article 16 ELD) • Application of national law concepts (standard of

liability, level of causation, secondary liability)


Substantive variations (2): • Imprecise language in the ELD (defences,

biodiversity damage, rights/duties of competent authorities) - guidance

• National legislation filling gaps in ELD (penalties, right of access to third parties land, registers/data bases of ELD incidents)

• Extension to include civil liability system


"Severity threshold": "… misperception that the ELD applies only to the most severe instances of damage" Annex I ELD sets the determination criteria for the significance threshold of biodiversity damage: • natural recovery • smaller than natural fluctuations • specie's/habitat's capacity to recover within a short time,

etc.,


Conclusions regarding limited ELD application drawn from empirical study: • ELD not applicable due to ELD-related legal constraints

("significance threshold", Annex III-activity) • Pre-existing legislative frameworks used(being considered

more adequate or stringent) instead of the ELD regime • Non-legal grounds: lack of expertise, experience,

proactivity of liable operators, robustness of traditional legislation

•


Conclusions drawn from empirical study regarding main identified strengths: • Effectiveness of ELD and its procedures: straightforward

process, stronger powers to fulfil responsibilities, allowing to deal parallel with several types of environmental damage

• Prevention of environmental damage: some operators involved in implementation of preventive actions (e.g. risk assessments)

• Remediation of environmental damage: higher remediation standards emphasized

• Involvement of stakeholders: application of the ELD fostered cooperation of different actors and stakeholders


Conclusions drawn from empirical study regarding main identified challenges (1): • Requirements of the ELD and conditions for application:

complexity of transposing legislation, difficulty to demonstrate that significance threshold is met, Annex III (either considered too broad, too narrow or inappropriate)

• Expertise and knowledge: lack of experience and knowledge, lack of data to determine environmental damage or imminent threat

• Resources (human, financial)


Conclusions drawn from empirical study regarding main identified challenges (2): • Tools, such as guidance documents absent in many Member

States • Level of cooperation of liable operators: despite in general good,

in several instances not satisfactory • Legislative environment: coexistence of several liability regimes in

one MS; more stringent pre-existing legislation; discrepancies or possible overlap between ELD and pre-existing legislation; lack of coordination between several related directives

• Economic and financial environment: current economic climate could be an obstacle; concerns of some operators concerning purchase of financial instruments developed by insurers


Recommendations to foster practical implementation of the ELD: • Organisation of workshops and conferences to increase awareness

of stakeholders; establishing networks of stakeholders • Development of supporting tools: elaboration of guidance

documents, national or EU registers of ELD cases, tools to promote purchase of insurance policies (GIS, leaflets etc.)

• Resolving the following issues: widely varying liability systems, clashes between self-executing provisions and determination of environmental damage, relationship to Annex III legislation (e.g. IPPC/IED), implementation of the correct threshold for biodiversity damage, relationship between ELD and Birds and Habitats Directives


Potential actions to strengthen implementation and enforcement of the ELD: • Drafting technical guidance to support competent

authorities in determining significant environmental damage

• Developing actions to improve expertise and knowledge of all stakeholders

• Promoting the development of databases for the collection of data on the quality of environmental sectors

• Ensuring greater coordination between the ELD and other related directives (coordination of corresponding expert groups etc.)

New Commission studies 2013

Following the ELD Implementation Study 2012, and to inform the ELD report and review through supplementary information: • Legal analysis: Completion of the legal part in the 2012

study covering 16 MS, the remaining 11 MS pursuant to the same template

• Biodiversity damage: following from Article 18(3) ELD, ELD Report 2010 and ELD Implementation Study 2012

• ELD effectiveness: following from Article 18(3) ELD, ELD Report 2010 and ELD Implementation Study 2012

New Commission studies 2013 Biodiversity Damage: • Assess the experience in practical implementation of

the ELD in relation to damage to protect: • What are the main challenges and obstacles drawn from

practical experience? • Does the different definition of biodiversity damage (EU scope

vs. national extension) call for further harmonisation? • How are concepts and definitions applied? What are the main

approaches to tackling biodiversity damage? • What are the potential differences and how is the relationship

between ELD and Habitats and Birds Directives re species and habitats protection?

• Drawing up a register of information sources and methodological approaches for the determination of "baseline condition"


ELD Effectiveness (Scope and Exceptions) (1): • Application of International Conventions

listed in Annexes IV and V: Analysis and comparison of incidents under International Conventions and ELD; eligibility of other international instruments

• Scope of strict liability, Annex III: considering options, extension of Annex III?


ELD Effectiveness (Scope and Exceptions) (2): • Scope of environmental damage: considering

options with a view to harmonisation and streamlining?

• Appropriateness of significant thresholds: harmonising land damage, significance criteria for water damage?

• Application of permit and state of the art defence: need for harmonisation?, how often invoked? etc.

Bilateral ELD meetings – Update

Bilateral dialogue completed: Bulgaria, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Spain, Sweden Outstanding dialogue: Austria, Belgium, Czech Republic, Italy, Latvia, Lithuania, Luxemburg, Hungary, Slovenia, United Kingdom

http://ec.europa.eu/environment/liability/index.htm E:mail: [email protected]

• Member States’ reports by April 2013: • Annex VI ELD • Questionnaire useful? • Records of ELD cases

• Commission report by April 2014: • International instruments in Annexes IV and V (IMO,

Euratom), considering eventual studies by the IOPCF • GMOs: Nagoya-Kuala Lumpur Supplementary Protocol on

Liability and Redress under the Cartagena Protocol • Application of ELD to protected species/natural habitats • Instruments for incorporation into Annexes III, IV and V • Mandatory vs. voluntary security; financial security in

particular for large scale accidents (2010 ELD Report)

Thank you for your attention !

13th eld government - european...

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