EU liability white paper now due in February

Inclusion of liability for damage to biodiversity remains focus of intra-Commission debate

Publication of the long-awaited EU white paper on environmental liability has been put back to February, European Commission sources have confirmed. The paper was to have been adopted later this month, having already been delayed numerous times. Discussions are still ongoing on how to deal with damage to biodiversity, ENDS Daily understands.

Most Brussels observers expect that the white paper is now finally about to be published, following Ms Wallström's pledge to the European Parliament last autumn. However, they caution that this may necessitate considerable compromise and the avoidance of "hot political issues".

Several changes have been made to a draft put forward by incoming environment commissioner Margot Wallström in the autumn (ENDS Daily 15 November). Seen by sources as "less prescriptive, simpler and shorter" than its predecessors, it excludes contentious clauses such as the concept of joint and several liability and special rules for damage caused by waste. A proposal to "reverse" the burden of proof by placing it on alleged polluters was also replaced with a clause calling for "alleviation" of the burden of proof.

The European employers' federation Unice, which has been one of the most ardent opponents of successive proposals since a discussion paper was first prepared in 1993, says it still hopes to get liability for damage to biodiversity removed from the text. Describing such damage as "unquantifiable," a spokesperson said any regime must be "manageable and insurable." Unice is also lobbying against the proposed exclusion of development risk - which protects companies if there is no indication of a future risk from a new product or process - arguing that this would stifle innovation.

A spokesperson for NGO coalition the European Environmental Bureau declared the organisation "very ambivalent" about the latest draft. "We welcome the fact that it still contains principles of strict liability, but are worried about the more and more vague and open-ended wording," the spokesperson told ENDS Daily.

In particular, the EEB worries that thresholds for requiring compensation for environmental damage may be set too high, and that parent companies should be given clear responsibility for damage done by their subsidiaries. It is also unhappy about a proposed link to product liability - giving a 1985 directive priority when the two overlap. "This is a much weaker system, and we would like both to be applied equally," the spokesperson added.

Follow Up:
European Commission, tel: +32 2 296 1111; Unice, tel: +32 2 237 6550; EEB, tel: +32 2 289 1090.

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